A recent decision of Supreme Court of NSW illustrates some of the possibilities and pitfalls of using the Works-in-Kind provisions in Section 94 of the Environmental Planning and Assessment Act 1979 (NSW).
A Council and a Developer were in dispute as to the amount of Section 94 contributions which remained owing to the Council following completion of certain Works-in-Kind. The parties had entered into a Works-in-Kind Agreement. The Agreement provided that a Quantity Surveyor was to determine the value of the Works-in-Kind, being the construction of a new access road adjacent to the property being developed.
"... the Council had failed to properly cost the new access road ..."
Ultimately the Court found that the Quantity Surveyor appointed by the Council had failed to properly cost the new access road, and had in fact allowed only part of the legitimate costs.
The end result was that the Council was required to have the matter reconsidered by a Quantity Surveyor.
Part of the problem in determining whether the Quantity Surveyor had properly costed the value of the Work-in-Kind was a lack of clarity in the description of the works, as set out in the Works-in-Kind Agreement. Had there been clarity, then this dispute could have been avoided, with the attached costs and time involved.
Contactif you have questions about Works-in-Kind Agreements or other property development matters.