Cumerlong Holdings Pty Limited v Dalcross Properties Pty Limited & Dalcross Holdings Pty Limited (No 2) [2009] NSWSC 1157

Cumerlong Holdings Pty Limited v Dalcross Properties Pty Limited & Dalcross Holdings Pty Limited (No 2) [2009] NSWSC 1157

LEP 194 was an environmental planning instrument, but it did not by its terms contain a provision specifying that the restrictive covenant or other regulatory instrument should not apply to permitted development. The relevant suspension provision was cl 68(2) of the Ku-ring-gai Council Planning Scheme Ordinance. Although LEP 194 indirectly affected the plaintiff's proprietary rights by rezoning Lot 103 so that the exemption from the suspension of covenants no longer applied, s 28(2) and (3) required close attention to the existence of such a provision in the environmental planning instrument itself. Because LEP 194 did not contain that provision, the Governor's approval to LEP 194 was not...

Jurisdiction
Australia
Judgment Date
30 October 2009
Procedural Posture
Equity Proceedings Concerning a Restrictive Covenant and Development Consent / Application by the Minister for Planning for Leave to Appear as Amicus Curiae After Judgment of 29 July 2009, With Reconsideration of the Substantive Issues
Outcome
Leave granted to the Minister for Planning to be heard as amicus curiae on terms as to costs; judgment of 29 July 2009 vacated; summons dismissed; costs orders made.
Legal Topics
['restrictive Covenants' 'environmental Planning Instruments' 'development Consent' "governor's Approval Under S 28 of the Environmental Planning and Assessment Act 1979" 'leave to Appear as Amicus Curiae' 'costs']
['planning and Environment Law' 'real Property Law' 'civil Procedure'] ['restrictive Covenants' 'environmental Planning Instruments' 'development Consent' "governor's Approval Under S 28 of the Environmental Planning and Assessment Act 1979" 'leave to Appear as Amicus Curiae' 'costs']

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Procedural Posture

Equity Proceedings Concerning a Restrictive Covenant and Development Consent / Application by the Minister for Planning for Leave to Appear as Amicus Curiae After Judgment of 29 July 2009, With Reconsideration of the Substantive Issues

Legal Issues

  1. 1 ['Whether the Minister for Planning should be granted leave to make submissions as amicus curiae despite delay.' 'Whether the restrictive covenant affecting Lot 103 DP834629 was suspended or enforceable in light of s 28(2) and (3) of the Environmental Planning and Assessment Act 1979 and cl 68(2) of the Ku-ring-gai Council Planning Scheme Ordinance.' "Whether the Governor's approval was required for LEP 194 because it changed the zoning of Lot 103 and indirectly altered the operation of the suspension of covenant provision."]

Ratio Decidendi

LEP 194 was an environmental planning instrument, but it did not by its terms contain a provision specifying that the restrictive covenant or other regulatory instrument should not apply to permitted development. The relevant suspension provision was cl 68(2) of the Ku-ring-gai Council Planning Scheme Ordinance. Although LEP 194 indirectly affected the plaintiff's proprietary rights by rezoning Lot 103 so that the exemption from the suspension of covenants no longer applied, s 28(2) and (3) required close attention to the existence of such a provision in the environmental planning instrument itself. Because LEP 194 did not contain that provision, the Governor's approval to LEP 194 was not...

Court Disposition

Leave granted to the Minister for Planning to be heard as amicus curiae on terms as to costs; judgment of 29 July 2009 vacated; summons dismissed; costs orders made.

Orders

  • ['Judgment of 29 July 2009 vacated.' 'Summons dismissed.' "Plaintiff pay the defendants' costs of these proceedings other than the costs of the application of the Minister of 13 August 2009 and the hearing on 14 October 2009." 'The Minister pay the costs of the plaintiff and the defendants of her application of 13...