Nash Bros Builders Pty Ltd v Riverina Water County Council [2016] NSWCA 225

Nash Bros Builders Pty Ltd v Riverina Water County Council [2016] NSWCA 225

By majority, Riverina Water could not rely on s 306(2) of the Water Management Act 2000 (NSW) because no application for a compliance certificate had been made. However, the development servicing charges were authorised by s 608(1) of the Local Government Act 1993 (NSW): the relevant services included provision of water supply infrastructure and related services to the development, those services were not provided or proposed to be provided on an annual basis, and ss 305-307 of the Water Management Act did not exclude the s 608 power. The appeal was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
25 August 2016
Procedural Posture
Environment and Planning Appeal / Appeal to the New South Wales Court of Appeal From a Class 4 Decision of the Land and Environment Court of New South Wales Refusing Declaratory Relief and Dismissing the Appellants' Summons With Costs
Outcome
Appeal dismissed with costs.
Legal Topics
['development Servicing Charges' 'council Fees for Services' 'compliance Certificates' 'water Management Works' 'developer Contributions' 'annual Charges for Water Supply Services']
['environment and Planning' 'local Government' 'water Management' 'statutory Interpretation'] ['development Servicing Charges' 'council Fees for Services' 'compliance Certificates' 'water Management Works' 'developer Contributions' 'annual Charges for Water Supply Services']

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Procedural Posture

Environment and Planning Appeal / Appeal to the New South Wales Court of Appeal From a Class 4 Decision of the Land and Environment Court of New South Wales Refusing Declaratory Relief and Dismissing the Appellants' Summons With Costs

Legal Issues

  1. 1 ['Whether Riverina Water County Council had power under s 306(2) of the Water Management Act 2000 (NSW), as applied by ss 64 and 400(1) of the Local Government Act 1993 (NSW), to levy development servicing charges in the absence of an application for a certificate of compliance.' 'Whether Riverina Water County Council had power under s 608(1) of the Local Government Act 1993 (NSW) to charge and recover development servicing charges for water supply infrastructure and related services.' 'Whether the availability of annual charges for water supply services under s 501 of the Local Government Act 1993 (NSW) excluded the use of s 608(1).' 'Whether ss 305-307 of the Water Management Act 2000 (NSW) operated as a code excluding the general fee power in s 608(1) of the Local Government Act 1993 (NSW).']

Ratio Decidendi

By majority, Riverina Water could not rely on s 306(2) of the Water Management Act 2000 (NSW) because no application for a compliance certificate had been made. However, the development servicing charges were authorised by s 608(1) of the Local Government Act 1993 (NSW): the relevant services included provision of water supply infrastructure and related services to the development, those services were not provided or proposed to be provided on an annual basis, and ss 305-307 of the Water Management Act did not exclude the s 608 power. The appeal was therefore dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']