Shoal Bay Developments Pty Ltd v Registrar-General of NSW [2021] NSWSC 764

Shoal Bay Developments Pty Ltd v Registrar-General of NSW [2021] NSWSC 764

Because the wick drainage system constructed during Stages 1 and 2 substantially departed from the development consent, was generally inaccessible and not practically feasible to rectify, and because an attempt to modify the development consent to accommodate the constructed system had failed, Stage 3 could not be undertaken in compliance with the consent. The scheme was not being carried out and there was no realistic prospect that it would be carried out in the future, so both completion of the staged scheme and continuation of the scheme had become impracticable within s 70(1) of the Community Land Development Act 1989 (NSW).

Jurisdiction
Australia
Judgment Date
24 June 2021
Procedural Posture
Application Under S 70 of the Community Land Development Act 1989 (nsw) Concerning Variation of a Community Scheme / Ex Tempore Principal Judgment on Proposed Consent Orders
Outcome
Orders made to effect a severance of Lot 114 from the community scheme.
Legal Topics
['community Title' 'community Scheme' 'staged Development' 'development Contract' 'severance of Land From Community Scheme' 'impracticability of Completion or Continuation of Scheme']
['land Law' 'equity'] ['community Title' 'community Scheme' 'staged Development' 'development Contract' 'severance of Land From Community Scheme' 'impracticability of Completion or Continuation of Scheme']

Case Brief

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Procedural Posture

Application Under S 70 of the Community Land Development Act 1989 (nsw) Concerning Variation of a Community Scheme / Ex Tempore Principal Judgment on Proposed Consent Orders

Legal Issues

  1. 1 ['Whether the completion of the staged scheme had become impracticable within the meaning of s 70(1)(a) of the Community Land Development Act 1989 (NSW).' 'Whether the continuation of the community scheme had become impracticable within the meaning of s 70(1)(b) of the Community Land Development Act 1989 (NSW).' 'Whether orders should be made to vary the community scheme and development contract to effect severance of Lot 114 from the community scheme.']

Ratio Decidendi

Because the wick drainage system constructed during Stages 1 and 2 substantially departed from the development consent, was generally inaccessible and not practically feasible to rectify, and because an attempt to modify the development consent to accommodate the constructed system had failed, Stage 3 could not be undertaken in compliance with the consent. The scheme was not being carried out and there was no realistic prospect that it would be carried out in the future, so both completion of the staged scheme and continuation of the scheme had become impracticable within s 70(1) of the Community Land Development Act 1989 (NSW).

Court Disposition

Orders made to effect a severance of Lot 114 from the community scheme.

Orders

  • ['Orders made varying the scheme to effect severance of Lot 114 from the community scheme.' 'Orders made varying the development contract.' 'Liberty to apply granted in case issues arise in the course of effecting the severance of Lot 114 from the community scheme.']