Community Association DP 270064 v Registrar-General Department of Lands [2010] NSWSC 1558

Community Association DP 270064 v Registrar-General Department of Lands [2010] NSWSC 1558

The original development plan could not be completed as lodged because the lots were not divided as required by the community development contract, the developer had gone into liquidation and been deregistered, and property intended to be communal had become available only to particular neighbourhoods. Those matters made implementation of the original scheme impossible and therefore impracticable within s 70, justifying approval of the proposed termination of the neighbourhood schemes and variation of the community scheme, particularly given unanimous consent and satisfaction of the mortgagees' conditions.

Jurisdiction
Australia
Judgment Date
13 December 2010
Procedural Posture
Application Pursuant to S 70 of the Community Land Development Act 1989 (nsw) for Variation of a Community Scheme / Ex Tempore Principal Judgment
Outcome
Proposed termination of neighbourhood scheme and variation of community scheme approved.
Legal Topics
['community Scheme Variation' 'termination of Neighbourhood Schemes' 'impracticability Under S 70 of the Community Land Development Act 1989 (nsw)' 'unanimous Consent of Proprietors and Mortgagees']
['community Land Development' 'property Law'] ['community Scheme Variation' 'termination of Neighbourhood Schemes' 'impracticability Under S 70 of the Community Land Development Act 1989 (nsw)' 'unanimous Consent of Proprietors and Mortgagees']

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Procedural Posture

Application Pursuant to S 70 of the Community Land Development Act 1989 (nsw) for Variation of a Community Scheme / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether s 70(1)(c) of the Community Land Development Act 1989 (NSW) applied where the plaintiffs sought to terminate neighbourhood schemes and vary, but not terminate, the community scheme.' 'Whether continuation or completion of the scheme had become impracticable within s 70 of the Community Land Development Act 1989 (NSW).' 'Whether the proposed variation should be approved where all lot owners, associations, mortgagees, the Registrar-General and the Council consented.']

Ratio Decidendi

The original development plan could not be completed as lodged because the lots were not divided as required by the community development contract, the developer had gone into liquidation and been deregistered, and property intended to be communal had become available only to particular neighbourhoods. Those matters made implementation of the original scheme impossible and therefore impracticable within s 70, justifying approval of the proposed termination of the neighbourhood schemes and variation of the community scheme, particularly given unanimous consent and satisfaction of the mortgagees' conditions.

Court Disposition

Proposed termination of neighbourhood scheme and variation of community scheme approved.

Orders

  • ['Orders made in the form of the consent orders handed up by counsel.']