Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214

LEP 194 did not contain a provision specifying that any regulatory instrument (including the covenant) shall not apply to particular development pursuant to s 28(2) of the EP&A Act; thus, s 28(3) was not engaged, and the Governor's approval was not required for the relevant zoning provisions. The suspension of the covenant occurred by operation of cl 68(2) of the KPSO, not by LEP 194 itself.

Jurisdiction
Australia
Judgment Date
02 September 2010
Procedural Posture
Appeal / Principal Judgment
Outcome
Appeal dismissed
Legal Topics
['development Control' 'planning Instruments' 'interpretation of Local Environmental Plan' "requirement of Governor's Approval Under S 28(3) of EPA Act" 'operation and Suspension of Restrictive Covenants' 'statutory Construction']
['environment and Planning' 'statutory Interpretation'] ['development Control' 'planning Instruments' 'interpretation of Local Environmental Plan' "requirement of Governor's Approval Under S 28(3) of EPA Act" 'operation and Suspension of Restrictive Covenants' 'statutory Construction']

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Procedural Posture

Appeal / Principal Judgment

Legal Issues

  1. 1 ['Whether the approval of the Governor was required under s 28(3) of the Environmental Planning and Assessment Act 1979 for provisions of Ku-ring-gai Local Environmental Plan No 194 affecting zoning and suspending private covenants.' "Whether LEP 194 'specified' regulatory instruments within the meaning of s 28(2) so as to engage the requirement for Governor's approval." "Construction of the meaning of 'provide,' 'provision,' 'regulatory instrument,' 'specify,' and 'tenor' in the context of the relevant statutes."]

Ratio Decidendi

LEP 194 did not contain a provision specifying that any regulatory instrument (including the covenant) shall not apply to particular development pursuant to s 28(2) of the EP&A Act; thus, s 28(3) was not engaged, and the Governor's approval was not required for the relevant zoning provisions. The suspension of the covenant occurred by operation of cl 68(2) of the KPSO, not by LEP 194 itself.

Court Disposition

Appeal dismissed

Orders

  • ["The appellant to pay the first and second respondents' costs of the appeal up to and including 11 July 2010." "The appellant to pay the third respondent's costs of the appeal from and including 12 July 2010."]