William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans v Wenhao Wu [2022] NSWLEC 144

William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans v Wenhao Wu [2022] NSWLEC 144

Clause 1.9A of the Woollahra Local Environmental Plan 2014 (NSW) operates to suspend the Dealing B823062, being an agreement/covenant or similar instrument restricting development, to the extent necessary to enable the approved development to proceed. As such, any restriction arising from the Dealing cannot be enforced to prevent the development. Even if this were wrong, no substantial interference or nuisance with the claimed easement/covenant rights was established.

Parties
Applicant/first Cross Respondent: William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans; First Respondent/cross Applicant: Wenhao Wu; Second Cross Respondent: Sunny Siu Kei Ngai
Jurisdiction
Australia
Judgment Date
05 December 2022
Procedural Posture
Principal Judgment / Final Decision and Orders After Cross Summons and Transferred Proceedings
Outcome
Cross-summons by Wenhao Wu upheld; summons by Carey-Evans dismissed.
Legal Topics
Easements, Restrictive Covenants, Development Consent, Negative Easement, Statutory Interpretation, Nuisance
Property Law Planning and Environment Law Easements Restrictive Covenants Development Consent Negative Easement Statutory Interpretation Nuisance

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Parties

William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans

Applicant/first Cross Respondent

Wenhao Wu

First Respondent/cross Applicant

Sunny Siu Kei Ngai

Second Cross Respondent

Procedural Posture

Principal Judgment / Final Decision and Orders After Cross Summons and Transferred Proceedings

Legal Issues

  1. 1 Does cl 1.9A of Woollahra Local Environmental Plan 2014 (NSW) operate to prevent enforcement of the instrument recorded in Dealing B823062 in relation to a proposed development?
  2. 2 If not, does the proposed development constitute a substantial interference/nuisance with rights for light, air and prospect created by the Dealing?

Ratio Decidendi

Clause 1.9A of the Woollahra Local Environmental Plan 2014 (NSW) operates to suspend the Dealing B823062, being an agreement/covenant or similar instrument restricting development, to the extent necessary to enable the approved development to proceed. As such, any restriction arising from the Dealing cannot be enforced to prevent the development. Even if this were wrong, no substantial interference or nuisance with the claimed easement/covenant rights was established.

Court Disposition

Cross-summons by Wenhao Wu upheld; summons by Carey-Evans dismissed.

Orders

  • Declared that, by operation of cl 1.9A of Woollahra Local Environmental Plan 2014 (NSW), the instrument recorded in Dealing B823062 does not apply to the extent necessary to serve the purpose of enabling development at 31 Vaucluse Road, Vaucluse NSW, in accordance with DA 394/2020 as modified.
  • Dismisses the summons filed in the Supreme Court of NSW on 17 January 2021 and transferred to the Land and Environment Court of NSW on 7 April 2022.