Wallis and Moore Pty Ltd v Sutherland Shire Council

[2005] NSWLEC 397

Land and Environment Court

of New South Wales

CITATION:

Wallis & Moore Pty Ltd v Sutherland Shire Council [2005] NSWLEC 397

PARTIES:

Wallis & Moore Pty Limited
Sutherland Shire Council

FILE NUMBER(S):

40529 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Development Consent :- contribution paid under s 94 Environmental Planning and Assessment Act - whether developers entitled to refund of contributions - whether Council abandoned works - whether bus-only link constitutes roadworks

Practice and procedure - orders - consent orders - whether orders final or interlocutory - whether Court has power to alter consent orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 94, 124
Land and Environment Court Act 1979 s 20(2)
Land and Environment Court Rules 1996 Pt 3 rr 2, 9, Pt 6 r 1, Pt 10 r 7
Supreme Court Rules 1970 Pt 42 rr 11, 12, Pt 61 r 3
Sutherland Shire Local Environmental Plan 2000

CASES CITED:

A and Ors v Hayden and Ors (1984) 156 CLR 532;
Bailey v Marinoff (1971) 125 CLR 529;
Baines and Anor v State Bank of New South Wales (1985) 2 NSWLR 729;
Benjamin (ex rel Attorney-General) v The Mayor, Aldermen and Citizens of Hobart (1897) 1 N & S 51;
Brooks v Burns Philp Trustee Co Ltd & Anor (1969) 121 CLR 432;
Carr and Anor v Finance Corporation of Australia Limited [No 1] (1981) 147 CLR 246;
Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319;
Denham Pty Limited v Manly Council (1995) 89 LGERA 108;
DJL v The Central Authority (2000) 201 CLR 226;
D'Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 214 ALR 92;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGERA 306;
Frevcourt Pty Limited (ACN 003 601 787) & Anor v Wingecarribee Shire Council [2005] NSWCA 107;
Hall v The Nominal Defendant (1966) 117 CLR 423;
Hazell v Hammersmith and Fulham London Borough Council and Ors [1992] 2 AC 1;
Levadetes and Anor v Hawkesbury Shire Council (1988) 67 LGRA 190;
Licul and Ors v Corney (1976) 180 CLR 213;
Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500;
Rodmac Investments Pty Ltd v Great Lakes Shire Council (NSWLEC, 2 August 1991, unreported, Bignold J);
Royal Insurance Co Ltd v Sharp [1983] 1 NSWLR 480;
Rushby & Anor v Roberts & Anor [1983] 1 NSWLR 350;
Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261;
Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission & Ors (1981) 148 CLR 150;
Vital Finance Corporation Pty Ltd v Taylor & Anor (1996) 40 NSWLR 25;
William Cory & Son Ld v London Corporation [1951] 2 KB 476;
Wilkie v Blacktown City Council and Ors (2002) 121 LGERA 444

DATES OF HEARING:

10/03/2005, 11/03/2005, 24/05/2005, (written submissions: 07/06/2005, 21/06/2005,
28/06/2005)

 
DATE OF JUDGMENT: 

08/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
J Ayling SC
SOLICITORS
R S Davis and Davis

RESPONDENT
T Robertson SC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

19 August 2005

40529 of 2002

WALLIS AND MOORE PTY LIMITED
Applicant

SUTHERLAND SHIRE COUNCIL
Respondent

1 Cowdroy J : The applicant seeks the repayment of monies (“the monies”) held by the respondent (“the Council”), being the remainder of contributions originally paid to the Council pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The applicant is acting for all parties who made the contributions. The Council resists repayment and seeks to vacate consent orders made by the Court on 4 November 2003 (“the consent orders”) which provided for such repayment.

The original subdivision approval

2 The present proceedings arise out of a development undertaken in Sutherland Shire which was the subject of proceedings before this Court in 1982, namely proceedings 10406 of 1981. Proceedings 10406 of 1981 comprised an appeal from Council’s refusal of an application for subdivision of land located on the Woronora Plateau. The appeal was determined on 15 April 1982 when the Court granted development consent subject to conditions.

3 During the hearing in proceedings 10406 of 1981 evidence was adduced by the Council of the inadequacy of the road system servicing the proposed subdivision. Having noted that the appellant’s original proposals were insufficient, Assessor Hanson said:-

As it is, the matter has not been left on that basis and what is now proposed is the link and an additional fire trail to the south, a fire trail to the north and such road link to the north as the Council will ultimately determine.

4 Later in his judgment the Assessor said:-

I think, however, that the orders which I make below should make it sufficiently clear that I am granting consent to the total subdivision application including all Crown land subject to the provision of the road link and fire trail to the south… together with construction of the fire trail access to the north, such fire trail to be constructed to public road standards completely to the Council I think, however, that the orders which I make below should make it sufficiently clear that I am granting consent to the total subdivision application including all Crown land subject to the provision of the road link and fire trail to the south… together with construction of the fire trail access to the north, such fire trail to be constructed to public road standards completely to the Council’s satisfaction and the payment of a cash contribution towards the construction of the northern road link by the Council in such location and subject to such design and conditions as Council determines after proper investigation.

5 The Assessor granted approval to the subdivision making his orders subject to the following conditions:-

(a) Fire trails shall be constructed generally as shown in the drawings being Exhibit J to the proceedings.
(b) Fire trails shall be constructed to the standards required by the Council and shall not be closed off or locked except with the approval of the Council

(c) Compliance with all conditions set out in Exhibit L to the proceedings which are made Annexure No 1 to this judgment.

6 For present purposes, the only relevant condition contained in Annexure No 1 is condition 23 which provides:-

The payment of a contribution of $1,500 per residential lot shall be payable to Council towards the cost of roadworks providing access to the sub-division. This sum shall be adjusted annually in accordance with movements in the Consumer Price Index.

7 Condition 23 was imposed pursuant to s 94 of the EP&A Act, which, as enacted, relevantly provided as follows:

(1) Subject to subsection (2), where a council, being the consent authority, is satisfied that a development, the subject of a development application, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring -
…
(b) the payment of a monetary contribution …
(2) A condition referred to in subsection (1) shall be imposed only -
…
(b) to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
…
(3) The council shall hold any monetary contribution in trust for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such a manner as will meet the increased demand for those amenities or services or both.

Section 94 has been amended on several occasions since its original enactment. For the purposes of these proceedings, the amendments are not relevant.

8 Following the decision of Assessor Hanson, the applicant paid the contribution to the Council as provided by condition 23. The fire trails were built as required and the subdivision was created.

9 Between 1982 and 2001 the Council proceeded to obtain and consider a number of assessments relating to the potential provision of a link road to the north of the subdivision, although no road was constructed.

10 In 1998 the Council proposed to proceed to construct the northern access road on the site of the existing fire trail. It compulsorily acquired lands along the route of the proposed road which it did not already own. The proposed route was then zoned 5(e) Special Uses (Proposed Road) pursuant to the Sutherland Shire Local Environmental Plan 2000 (“the LEP”), but no final decision to construct the road was made. Subsequently on 9 April 2001 the Council resolved that the existing fire trail to the north not be opened to through traffic and that the site of the existing fire trail be re-zoned to Environmental Protection 7(b) (“the 2001 resolution”). A draft amendment to the LEP was prepared but was never implemented.

11 Seventeen months after the 2001 resolution the applicant commenced the present proceedings seeking a declaration that the Council had breached the EP&A Act by failing to use the monies for the intended purpose, and an order that the Council repay the monies.

12 Since the Council then had not plan to build the road, it did not oppose the repayment in principle. However, it did not wish to repay the monies immediately because the Engadine Area Traffic Action Group Inc (“ETAG”) had indicated its intention to file proceedings seeking to compel the Council to build the northern access road. As a result the applicant and the Council agreed upon the consent orders, which were made by the Registrar on 4 November 2003.

13 The consent orders provided as follows:-

By consent, the Court orders that:

1. Subject to the orders below, the Respondent account to the Applicant three months from the date of these orders in the amount of $825,810.17 being the sum presently held in Council’s trust account for the purpose of roadworks in accordance with Condition 23 of consent by Assessor Hanson in Wallis and Moore Pty Limited v The Council of the Shire of Sutherland (10406/81) (“the monies”).

2. The monies referred to in Order 1 be held by Council in trust in separate account from the date of this order until they are accounted for to the Applicant or the Court makes some or any other order concerning the use of the monies or condition 23, in an action taken by the Engadine Area Traffic Action Group Inc (ETAG) or any other person or entity, within three (3) months from the date of these orders. Interest on these monies shall be dealt with in the same manner as the principal amount under Orders 1 or 3 hereof.
3. If in proceedings referred to in order No. 2 the Court orders the monies are required to be expended or paid otherwise than in accordance with Order 1 or that Council undertake road works allowed by condition No. 23, the monies shall be provided to the Council or any other person or entity as the Court orders.
4. These orders are subject to any other order by the Court.
5. Each party bear their own costs.

14 On 30 January 2004, ETAG commenced proceedings 40087 of 2004 (“the ETAG proceedings”). As a result of the ETAG proceedings, the Court in these proceedings made orders (on 5 February 2004 and again on 9 February 2004) extending the operation of the consent orders pending further order. (The original orders of 5 February 2004 “suspended” the operation of the consent orders, however on 3 February 2005 the word “extended” was substituted by order of the Court pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996 (“the LEC Rules”) (the slip rule)).

15 The ETAG proceedings were dismissed on 31 May 2004. On 16 November 2004 the applicant in these proceedings filed a notice of motion seeking orders ( inter alia) as follows:

2. That the suspension or extension of Order 2 made on 4 November 2003, alternatively the suspension or extension of all orders made by this Honourable Court on 4 November 2003 resulting from the Orders of Justice Cowdroy on 5 February 2004 and/or 9 February 2004 be terminated or otherwise brought to an end.

3. Such further or other orders as are necessary to give effect to the Orders of 4 November 2003.

16 However, by June 2004 the Council had changed its policy in respect of the creation of the northern access road. On 28 June 2004 it resolved not to support the return of the funds to the applicant. At its meeting on 6 September 2004 the Council resolved the existing fire trail should be re-zoned to 5(e) Special Uses (Restricted Access Road) pursuant to the Sutherland Shire Local Environmental Plan 2000. It also resolved that the existing fire trail should become a bus-only link.

17 In response to the applicant’s motion seeking order for the repayment of the monies the Council by notice of motion filed on 4 March 2005 seeks, inter alia, orders that the consent orders be vacated.

Applicant’s submissions

18 The applicant resists the Council’s motion. It submits that the consent orders are final orders made in settlement of the proceedings, and that the Court has no power to vary them or to set them aside. The applicant relies on DJL v The Central Authority (2000) 201 CLR 226 (which held the Family Court did not have power to re-open final orders after entry); Bailey v Marinoff (1971) 125 CLR 529 (which held that there was no inherent power in a Court to deal further with an appeal already dismissed by final order when the order was entered before the application to vary was made) and D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 214 ALR 92 at [34] and [84] (which reiterated the need for finality in litigation).

The Council’s submissions

19 The Council submits that the consent orders should be vacated. It submits that the consent orders are interlocutory orders which do not make a declaration of right or finally determine the proceedings. It says that the consent orders preserved the status quo pending the determination of the foreshadowed ETAG proceedings, and that they were made expressly subject to further order. As the Council’s intention has changed, the consent orders are no longer appropriate.

20 The Council submits that Order 4 of the consent orders demonstrates that the consent orders are not final since they may be adjusted by “any other order of the Court”. The use of such words clearly indicates the interlocutory nature of the orders. The Council relies upon Rushby & Anor v Roberts & Anor [1983] 1 NSWLR 350 at 364 where Mahoney JA observed that an order “until further order of the Court” clearly demonstrated the interlocutory nature of the order. The Council says that the words in Order 4 have the same effect as those in the order referred to by Mahoney JA.

21 The Council submits that there is no basis on which Order 4 could be construed as being confined to an order in the ETAG proceedings. It submits that Orders 2 and 3 provide the Court with all the necessary power to make other orders arising out of the ETAG proceedings, and accordingly Order 4, being unrestricted, relates to other orders which do not arise from the ETAG proceedings.

22 The Council submits in the alternative that even if the consent orders are final, the Court would nevertheless decline to enforce them for several reasons. It submits that s 94(6) requires the Council to hold and apply the monies in a particular manner. The Council says that in view of its resolution not to repay the monies and to apply the monies for a bus-only link, the repayment of the monies by Council is unlawful. In these circumstances the Council has a statutory obligation to retain the monies, and the implementation of the consent orders would involve the Court in the sanction of a breach of the EP&A Act.

23 The Council submits the Court would not enforce an agreement contrary to a statutory provision. The applicant relies upon Vital Finance Corporation Pty Ltd v Taylor & Anor (1996) 40 NSWLR 25 (where the Court held that an agreement made contrary to the provisions of the Credit Act 1994 was void); Brooks v Burns Philp Trustee Co Ltd & Anor (1969) 121 CLR 432 (where the Court refused to enforce a deed of settlement which purported to oust the statutory jurisdiction of the Court) and Hazell v Hammersmith and Fulham London Borough Council & Ors [1992] 2 AC 1 (where interest contracts entered into by the council were held to be ultra vires).

24 The Council submits that the consent orders are invalid to the extent they might fetter the Council’s power to reconsider its position at any time prior to repayment. It says that the Council now has a proposal to expend the monies on a purpose which is authorised by s 94 of the EP&A Act, namely creation of a bus-only link between Bundanoon Road and the Crescent. It says that future statutory obligations of a public authority cannot be fettered and relies upon the observations contained in William Cory & Son Ld v London Corporation [1951] 2 KB 476 at 485.

25 Additionally the Council submits that in the absence of a declaration of right, the Court has no jurisdiction to make the consent orders. The Council submits that the Court can only enforce a right or a duty pursuant to s 20(2) of the Land and Environment Court Act 1979 and s 124 of the EP&A Act. The Council submits that the consent orders do not establish the existence of any right or duty which would enliven the jurisdiction of the Court and submits that the mere fact that parties reach a settlement does not establish a breach of the Act. It relies upon Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission & Ors (1981) 148 CLR 150 at 163 (which held that parties cannot by consent confer power upon the Court to make orders which the Court lacks power to make); Wilkie v Blacktown City Council and Ors (2002) 121 LGERA 444 at 454 (which held that the Land and Environment Court cannot make orders against persons who have not breached and are not in breach of the EP&A Act) and Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 (which held that jurisdiction could not be conferred on the Land and Environment Court by consent).

26 The Council also submits that Pt 42 rr 11 and 12 of the Supreme Court Rules 1970 (“SCR”) (adopted by Pt 6 r 1 of the LEC Rules) enable the Court to make further or other orders. The Council says if an event occurs which undermines the foundation for an order, Pt 42 r 12 specifically enables an application to be made to vacate that order. In this respect Pt 42 r 12 provides a statutory exception to the common law rule recognised by The Council also submits that Pt 42 rr 11 and 12 of the Supreme Court Rules 1970 (“SCR”) (adopted by Pt 6 r 1 of the LEC Rules) enable the Court to make further or other orders. The Council says if an event occurs which undermines the foundation for an order, Pt 42 r 12 specifically enables an application to be made to vacate that order. In this respect Pt 42 r 12 provides a statutory exception to the common law rule recognised by Bailey v Marinoff . Since the Council has changed its mind and now wishes to construct a bus-only link, Pt 42 r 12 provide the Court with the power to vacate the consent orders.

27 The Council submits that even if the consent orders are final, the Court would not enforce a promise at variance with a fundamental head of public policy: see A and Ors v Haydenand Ors (1984) 156 CLR 532, which held an agreement to be unenforceable because its operation interfered with the criminal law.

28 The Council submits that there is no evidence on which the Court could make a finding that the expenditure of the monies on the bus-only link was not a proper application of the monies paid pursuant to s 94(6) of the EP&A Act.

Applicant’s submissions in reply

29 The applicant submits that the consent orders provide a clear and final basis for the repayment of the monies to the applicant in the event that the ETAG proceedings were not successful. It says that the consent orders, although conditional upon the outcome of the ETAG proceedings, provided two definitive alternatives depending on that outcome and therefore finally disposed of the rights of the parties. It submits that Orders 2, 3 and 4 were included specifically to enable the Court to amend the consent orders if necessary for the ETAG proceedings, but that beyond this the consent orders were of inflexible application. No right remained undetermined as a result of the consent orders. Since the ETAG proceedings have now been dismissed, the applicant submits that one of the two alternatives provided by the consent orders, namely the repayment of the monies to the applicant, has crystallised and that the Council must now comply with the consent orders.

30 The applicant submits that it is immaterial that the Court has not made a declaration of breach of the EP&A Act, and that it is rare in settled proceedings for the Court to make a declaration of breach. The applicant also denies that the repayment of the monies would involve a breach of the EP&A Act. It relies upon Thomson Australia Holdings Proprietary Limited v The Trade Practices Commission at 164 and says that by agreeing to the consent orders, the Council admitted all facts necessary or appropriate to the granting of the relief sought.

31 The applicant submits that entering into the consent orders was not an act which placed an unlawful fetter upon the Council’s discretion. It says that a council is entitled to compromise litigation, as held in Benjamin (ex rel Attorney-General) v The Mayor, Aldermen and Citizens of Hobart (1897) 1 N & S 51. The applicant submits that the logical extension of the Council’s submission would be to prevent a Council compromising any proceedings involving the application of contributions made pursuant to s 94 of the EP&A Act.

32 The applicant also submits that the consent orders were not made “without admission of liability”. The consent of the Council gives rise to an estoppel which prevents the Council from now denying that it was in breach of the EP&A Act. Since the consent orders were intended to determine finally that a refund would be made unless the ETAG proceedings were successful, the Council is estopped from avoiding payment of the monies to the applicant.

33 The applicant submits that the purpose for which the monies are to be applied is a question of fact which can be gleaned not only from the words of the conditions of consent, but also from extrinsic materials. The applicant submits that the contributions under condition 23 were required for the purpose of a road link north of the subdivision. It says the construction of the bus-only link along the existing fire trail is not a use contemplated by condition 23.

34 The applicant submits that the Council’s reliance on Pt 42 r 12 SCR is misplaced and that such Part does not assist the Council. It submits that the Council’s change of mind does not affect its statutory obligations and that there has been no relevant change since the consent orders were made.

35 The applicant submits that the reliance by the Council upon Vital Finance is misplaced because in the instant proceedings the consent orders were not prohibited by any statute. Similarly, the reliance by the Council on the principle of public policy referred to by the High Court in A v Hayden is misplaced since the consent orders do not interfere with a fundamental head of important public policy. Further, the Council’s reliance upon the decision of the New South Wales Court of Appeal in Rushby v Roberts is erroneous, since the order there considered by the Court was of its very nature an interlocutory order.

Findings

Power of the Court to amend the consent orders

36 It is clear from the authorities that the Court does not have any inherent power to re-open its final orders: see DJL v The Central Authority (2000) 201 CLR 226; Bailey v Marinoff . Accordingly the Court will only have power to revisit the consent orders if it is permitted to do so by statute, if the orders are interlocutory or if the orders are beyond power.

Statutory power to amend the consent orders

37 Although not argued by the parties, the Court considers that it has a statutory power to amend the consent orders in these proceedings. The consent orders were made by the Registrar pursuant to Pt 3 r 2 of the LEC Rules, which provides:

Except where otherwise expressly provided by the Act, these rules, or any Practice Directions, the Registrar may exercise the powers of the Court to make any order which the Court may make, being an order consented to:
(a) by the parties to the application for an order; and
(b) by any other person who will be required to comply with the order or to permit anything to be done under the order.

38 Part 3 r 9 of the LEC Rules provides:

If the Registrar or Assistant Registrar gives a direction or makes an order or does any other act in any proceedings, the Court may, on application by any party, review the direction, order or act, and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.

39 There is no apparent time limit on the application of Pt 3 r 9 (cf Pt 61 r 3 SCR) and as such the provision would appear prima facie to be applicable in the present proceedings. In There is no apparent time limit on the application of Pt 3 r 9 (cf Pt 61 r 3 SCR) and as such the provision would appear prima facie to be applicable in the present proceedings. In Baines and Anor v State Bank of New South Wales (1985) 2 NSWLR 729, Powell J considered an application to set aside self-executing consent orders made by the Assistant Registrar which resulted in a statement of claim being struck out. An application was made under Pt 61 r 3 SCR, which, at that time, was in terms almost identical to Pt 3 r 9 of the LEC Rules (although Pt 61 r 3 SCR has subsequently been amended). Powell J stated at 736:-

Since the Supreme Court Rules do not fix any time within which an application for any such review must be filed, it would seem that the application may be made at any time, and may be made by way of an application to extend the time fixed by the relevant order … and any such application takes the form of a hearing de novo.

See also Royal Insurance Co Ltd v Sharp [1983] 1 NSWLR 480, where Martin DCJ determined that an order made by the Assistant Registrar of the District Court, including a self-executing order, could be reviewed at any time under the powers contained in the District Court Rules.

40 On the basis of the above, the Court considers that it has the power to review the consent orders made in these proceedings. However, since the Court has not heard argument on this provision, it will proceed to determine whether the consent orders are interlocutory or final.

Are the consent orders interlocutory or final?

41 The question of whether orders were final or interlocutory was considered by the High Court in Hall v The Nominal Defendant (1966) 117 CLR 423. In Hall, the Supreme Court had made an order setting aside an order for an extension of time for the institution of proceedings. The appellant had an appeal as of right to the High Court only if the order by the Supreme Court was a final order. The majority (Taylor, Windeyer and Owen JJ) found that the order of the Supreme Court was interlocutory. Taylor J said at 440:-

... an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only.

42 In Licul and Ors v Corney (1976) 180 CLR 213, the same issue was considered by the High Court. In that case the defendant had successfully challenged the validity of an order of a County Court relating to service of summonses upon him. The plaintiff could have, but had not, applied to the County Court for an extension of time for service of the summons before its expiry. In the appeal to the High Court it was held that the judgment of the Supreme Court was interlocutory and accordingly the appeal to the High Court was incompetent. In discussing whether the order by the Supreme Court was final or interlocutory, Barwick CJ said (at 219-20):-

To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action.

His Honour also said:-

I am clearly of the opinion that the order of the Supreme Court was not a final order disposing of the action between the parties and settling their substantive rights. Their actions remain on foot and are capable of being pursued if a judge of the County Court is minded upon an application duly made to extend the time for service of the original summonses.

43 Gibbs J said at 225:-

The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?

44 The above test was affirmed by the High Court in Carr and Anor v Finance Corporation of Australia Limited [No 1] (1981) 147 CLR 246 (see at 248 per Gibbs CJ), and should be applied to the consent orders in the present proceedings.

45 Order 1 of the consent orders provides that the Council is to account to the applicant for the monies on a date three months from the date of the consent orders, being 5 February 2005. However, Order 1 is made “subject to the orders below”. Orders 2 and 3 make provision for the disbursement of the monies in the event that ETAG commenced proceedings against the Council within three months of the date of the Order. Order 4 provides that “these orders are subject to any other order by the Court”.

46 Unfortunately, the intended interaction between each of these Orders is not self-evident. Orders 2 and 3 do not explicitly empower the Court to make another order varying the consent orders. Each order makes specific provision for the retention and/or disbursement of the monies otherwise than in accordance with Order 1. The Council contends that Orders 2 and 3 allow the Court to amend order 1 as may be necessary following the resolution of the ETAG proceedings and says that Order 4 was included for a purpose extraneous to the ETAG proceedings. In contrast, the applicant claims that Order 4 provides the power to make another order in the event that the ETAG proceedings were instituted, and that its inclusion was limited to use in the case of this eventuality. It contends that the power under Order 4 does not extend to make any Order other than an order in the ETAG proceedings.

47 The Court has read the affidavit of Ralph Davis sworn 1 February 2005 which describes the process of negotiation between the Council and the applicant in the period leading up to the making of the consent orders. The affidavit shows that the applicant sought a final, but conditional, settlement of the proceedings. However the affidavit does not establish that the Council had the same intention. According to Mr Davis’ affidavit, Order 4 was inserted at the suggestion of the Council towards the end of the period of negotiations. The applicant in fact requested its deletion before the consent orders were agreed, but the Council did not accede to this request and required that Order 4 be included. It is not clear why this was so, but it tends to confirm that there was no agreement that the orders were intended to be final.

48 After due consideration, the Court concludes that Order 4 cannot be given the restricted interpretation urged by the applicant. Regardless of whether Orders 2 and 3 empower for the Court to make further orders in these proceedings resulting from the ETAG proceedings, Order 4 is unlimited. If Order 4 were intended to be limited only to a matter arising from the ETAG proceedings, it could easily have been made apparent by including in it terms similar to those in Order 2, so as to read “these orders are subject to any other order by the Court in any proceedings instituted by ETAG or any other person or entity, within three (3) months from the date of these orders ” (emphasis added). The Court has no basis for implying these words into Order 4. This is especially the case given its juxtaposition with Orders 2 and 3, whose intended application is stated specifically.

Were the consent orders beyond power?

49 A council may “compromise a doubtful right; but that power must be exercised honestly; there must be reasonable grounds for it”: see A council may “compromise a doubtful right; but that power must be exercised honestly; there must be reasonable grounds for it”: see Benjamin v Hobart . The compromise of litigation does not constitute an unlawful fetter on the discretion of a council. However in some circumstances an agreement entered into by a council may involve a council in a breach of its statutory duties: see Hazell v Hammersmith at 38-9. If in the present proceedings s 94 did not empower the Council to repay the monies, the Court would not lend its aid to enforce the consent orders since to do so would constitute the enforcement of an ultra vires act. However for the reasons referred to hereunder, it is unnecessary for the Court to determine whether s 94 of the EP&A Act empowered the Council to repay the monies to the applicant.

Interpretation of s 94

50 There have been several decisions concerning the interpretation of s 94 of the EP&A Act: see for example Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Levadetes and Anor v Hawkesbury Shire Council (1988) 67 LGRA 190; Rodmac Investments Pty Ltd v Great Lakes Shire Council (NSWLEC, 2 August 1991, unreported, Bignold J); Denham Pty Limited v Manly Council (1995) 89 LGERA 108). Recently the New South Wales Court of Appeal delivered its judgment in the matter of Frevcourt Pty Ltd (ACN 003 601 787) and Anor v Wingecarribee Shire Council [2005] NSWCA 107. The latter decision related contributions made under a version of s 94 in essentially the same terms as that under which the monies were paid.

51 In Frevcourt , Beazley JA noted that in respect of pre-1 July 1993 consents, several decisions of this Court have held that Council retained a discretion concerning the application of contributions made pursuant to s 94 (see at [51]). Her Honour observed (at [53]):

I agree that in respect of pre-1 July 1993 consents, a council has a discretion as to the works undertaken when expending s 94 contributions, provided that the works are consistent with the statutory purpose and the conditions of development consent.

52 In Frevcourt , the applicant claimed that the contributions made by it were required to be expended in accordance with the provisions of a development control plan. Such plan had been made prior to the grant of consent and proposed a programme of roadworks for the area in which the subdivisions were located. The plan stated that a contribution towards the provision of services would be required with new development and s 94 contributions had been levied by the Council for the improvement of local roads in the locality.

53 The appellant claimed that the Council had abandoned some of the roadworks proposed in the plan, had reduced the scope of other roadworks and had failed to expend fully the s 94 contributions it had received. Accordingly the appellant claimed a refund of its contributions.

54 Beazley JA held that the provisions of the development control plan were not incorporated into the condition of consent requiring s 94 contributions. Her Honour held (at [56]):-

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.

56 The applicant relies upon the 2001 resolution, in which Council resolved:

1. that the existing fire trail between Bundanoon Road, Woronora Heights and the present Woronora Valley not be opened to through traffic including buses, ie Options for [sic: 4], 4a and 4b are rejected;
2. that the area of the existing Fire Trail be rezoned to Environmental Protection 7b.

57 The applicant also submits that the delay in the application of the monies is inconsistent with the Council’s obligations under s 94(3) to apply the monies “within a reasonable time”.

Chronology of Council’s decision making

58 Before the 2001 resolution the Council had commissioned various studies in relation to the northern access road. The first study was undertaken in June 1984 by Vallentine, Laurie and Davies Pty Ltd. The report, which recommended a new public road from Prince Edward Park Road to the Grand Parade, was made public and a public meeting was held on 9 May 1985. Following significant public comment which was reviewed by the consultant, additional traffic studies in Engadine were undertaken by consultant traffic engineers Colston & Budd Pty Ltd. Colston & Budd recommended different options depending upon the construction of a new bridge over the Woronora River.

59 At its meeting on 26 October 1987 the Council resolved not to proceed with the options for a northern access road and to investigate other options. In July 1988, the Council considered the alternative option and resolved that it not be further investigated.

60 During 1989 the State Government announced its intention to construct a high level bridge over the Woronora River (“the bridge”). In August 1989 the Council endorsed the preferred route for the northern access road and resolved to advise the Roads and Traffic Authority of its proposals so that the Authority could make provision for future traffic in its design of the bridge.

61 The construction of the bridge was delayed and the project was deferred for several years. Following bushfires in the Menai locality in November and December 1997, the Minister for Roads announced on 5 December 1997 that the bridge would be completed. In June 1998 the RTA and the Council commissioned a traffic study by Masson Wilson Twiney Pty Ltd.

62 Another extensive study entitled “Woronora Heights Access Route – Draft EIS” was prepared for the Council by Egis consulting in July 2000 ( Another extensive study entitled “Woronora Heights Access Route – Draft EIS” was prepared for the Council by Egis consulting in July 2000 (“the Egis EIS”). On the basis of the Egis EIS the Council prepared a report recommending, inter alia, the provision of a bus-only link along the existing fire trail to the north of the subdivision. At this stage the Council made the 2001 resolution.

63 Subsequently on 28 June 2004 the Council relevantly resolved as follows:

1. That Sutherland Shire Council does not support returning monies (ie. Section 94 contributions) to developers).

64 In its meeting on 5 July 2004 the Council considered a confidential report and resolved, inter alia:

1. That it be noted that Council is reconsidering its position with regard to the northern access road.

65 On 6 September 2004 the Council relevantly resolved:

1. That the implementation of the “bus only” link between Bundanoon Road, Woronora Heights and The Crescent, Woronora proceed.
2. That the Department of Infrastructure, Planning and Natural Resources be advised that Council no longer wishes to proceed with Sutherland Shire draft Local Environmental Plan No. 26 relating to the rezoning of the corridor of land zoned Special Uses 5(e) (Proposed Road) in its current form and requests that the draft plan be returned to Council.

The Council also resolved that a draft local environmental plan be prepared to change the existing zoning to zone 5(e) Special Uses (Restricted Access Road).

Consequences of Council’s resolutions

66 As a consequence of the above findings, it is apparent that the Council considered the creation of a northern access road to the subdivision over many years. Having conducted numerous studies concerning the possible alternative proposals, the Council, for a brief period, namely between 2001 and 2004 determined not to proceed with any proposal. However, such decision was reconsidered and reversed by 2004.

67 A bus-only link would provide public access to the north for the subdivision. Assessor Hanson’s decision left the precise nature of the access to the Council A bus-only link would provide public access to the north for the subdivision. Assessor Hanson’s decision left the precise nature of the access to the Council’s complete discretion when he referred to the creation of “such road link to the north as the Council will ultimately determine”. The Court is satisfied that the proposal to construct a bus-only link falls within condition 23 of the consent since it constitutes a road. Condition 23 required the monetary contribution for the purpose of “roadworks providing access to the sub-division”.

68 As observed by Beazley JA in Frevcourt , the Council retains a discretion concerning the method of the implementation of the trust created by s 94: see at [51]; see also Toadolla. Beazley JA said (at [49]):

To deny the Council any flexibility in relation to the works to be carried out would be an unreasonable and unwarranted fetter upon it, even recognising the statutory purpose it has in respect of those contributions.

69 The discretion of the Council includes the flexibility to postpone, delay, suspend, cancel and reinstate the implementation of the public purpose. A resolution of the Council to abandon the public purpose cannot operate to fetter a future Council’s resolution to proceed with that public purpose. Such conclusion must follow from the principle that a statutory authority is not bound by ”an expression of intention to act in a particular way”: see Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 per Rowlatt J at 503.

70 It follows that the 2001 resolution did not have the effect of abandoning the statutory trust arising from s 94 of the EP&A Act. In view of such finding, the applicant’s claim for relief can only be successful if it can be demonstrated that the Council has failed to expend the monies for the public purpose within a reasonable time. In Levadetes, Holland J said at 196:

What is a ‘reasonable time’ for the purposes of s 94(3) will obviously vary enormously with the circumstances of each case …

71 Both the Council and the applicant have conducted the proceedings on the basis that the measurement of the time period for the purpose of establishing “a reasonable time” commenced from Assessor Hanson’s decision delivered in 1982. So considered, prima facie a period of in excess of 20 years has elapsed. However, the records of the Woronora Heights Both the Council and the applicant have conducted the proceedings on the basis that the measurement of the time period for the purpose of establishing “a reasonable time” commenced from Assessor Hanson’s decision delivered in 1982. So considered, prima facie a period of in excess of 20 years has elapsed. However, the records of the Woronora Heights – Northern Access Road Trust Fund (Exhibit D) establish that the first contribution was not made until 21 December 1984. Contributions thereafter were made in the ensuing years until October 1996. Accordingly, the Court is not satisfied that it is correct to rely upon a period of 20 years to calculate the period for which the Council has held the monies.

72 However even if a period of 20 years is the correct time period against which the Court must consider the applicant’s claim, the Court is satisfied that, in the circumstances of the present case, such period is not unreasonable. The proposed northern access road involved substantial environmental and logistical considerations, as referred to in the Egis EIS. As detailed above, since 1982 the Council has, on advice, considered numerous alternative options and obtained advice. A significant portion of the delay has resulted from circumstances beyond the Council’s control, namely the postponed completion of the Woronora Bridge. It was not unreasonable for the Council to defer its consideration pending clarification of the RTA’s proposal. Unlike the factual circumstances in Levadetes , which concerned off-street car parking, the proposal to construct the northern access road involved complex issues extending beyond the lands the subject of development for which approval was given by Assessor Hanson and involved other public authorities. The public nature of the proposal required the Council to assess all possible options before implementing any specific proposal.

73 It follows from the above that the Council has not held the monies for an unreasonable period. Accordingly the Court finds that the Council is not in breach of s 94 of the EP&A Act.

74 The applicant made a submission that the Council was estopped from denying that the applicant was entitled to repayment of the monies. However no evidence was led to establish that the basis for such claim and in the absence of any breach of the EP&A Act the Court could not grant any relief.

75 It follows that no ground for relief as claimed by the applicant has been established and the Court will set aside the consent orders.

76 Costs have not been argued. The Court will make the usual order but allow each of the parties twenty-one days to apply for a different order.

Orders

77 The Court orders:

1. The applicant’s motion filed on 16 November 2004 be dismissed.

2. The consent orders made on 4 November 2003 and the orders of 5 February 2004 and 9 February 2004 be set aside.

3. The application be dismissed.

4. The applicant pay the respondent’s costs of the motion filed on 16 November 2004 and of these proceedings, unless within 21 days an application is made for a different order.

5. The exhibits be returned.