Wallis & Moore Pty Ltd v Sutherland Shire Council

For the reasons given at [50] above a comparison of the schedule of works in the East Bowral DCP and those in the 1993 Contributions Plan, could not establish a breach of s 94. But in any event, that comparison demonstrated that although not all the works in the East Bowral DCP had been or were going to be carried out, substantial work fulfilling the description of the condition had either been completed or was scheduled to be done. In those circumstances, unless it could be argued that the Council had a continuing obligation to undertake works because there remained unexpended funds, there was no breach so as to entitle the appellants to relief. But that was not the basis of the appellants' claim. The pre-July 1993 claim was based on a failure to carry out all of the work specified in the DCP. The only qualification was that the appellants submitted, alternatively, that the Council had not carried out the work in a reasonable time. However, if there was no obligation to carry out all of the works, there is no basis to claim that the works were not carried out in a reasonable time.

55 The factual circumstances in Frevcourt differ from the present proceedings in two respects. Firstly, in Frevcourt , there was insufficient evidence to establish that there was in fact any surplus of contributions. In the present case, the Council retains most of the monies upon trust. Secondly, in Frevcourt a substantial amount of work satisfying the description of work referred to in the condition had been done or was proposed. At the time of the institution of the present proceedings, the Council had resolved not to construct the northern access road to the subdivision. The question therefore arises whether the Council has abandoned the trust and is therefore in breach of s 94 of the Act.