Frevcourt Pty Ltd v Wingecarribee Shire Council

Frevcourt Pty Ltd (the appellant) sought a refund of financial contributions paid to Wingecarribee Shire Council (the respondent) under section 94 of the *Environmental Planning and Assessment Act 1979* (NSW). The appellant contended that these contributions, which were intended to fund specific works outlined in a Development Control Plan, should have been held in trust by the Council and were refundable to the extent they had not been expended on those particular works. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the financial contributions paid by the appellant to the Council were held on trust for the appellant, and consequently, whether the appellant was entitled to a refund of any unexpended contributions. Further, the Court was required to determine whether a schedule of works, referenced in the Development Control Plan, was incorporated into the terms of the development consent, and whether the Council was entitled to abandon works contained within its Contributions Plan.

The Court of Appeal held that moneys paid under section 94 of the *Environmental Planning and Assessment Act 1979* are not held on trust for the developer. Instead, such contributions are to be assessed and expended in accordance with the relevant Contributions Plan. The Court found that the Development Control Plan and its associated schedule of works did not operate to create a trust or impose a contractual obligation on the Council to expend the funds solely on the listed works. The Council retained a discretion as to the expenditure of these funds, and was not obliged to abandon works contained within its Contributions Plan.

The appeal was dismissed with costs.