Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27

LEP 194, through its engagement with the Ordinance, effectively provided to suspend the restrictive covenant in question. However, such suspension could not have effect because approval by the Governor, as required by s 28(3) of the Environmental Planning and Assessment Act 1979 (NSW), was not obtained. Therefore, the appellant’s rights under the restrictive covenant were not lawfully suspended.

Parties
Appellant: Cumerlong Holdings Pty Ltd; First Respondent: Dalcross Properties Pty Ltd; Second Respondent: Dalcross Holdings Pty Limited; Third Respondent: Australasian Conference Association Ltd; Amicus Curiae: Minister for Planning and Infrastructure
Jurisdiction
Australia
Judgment Date
03 August 2011
Procedural Posture
Appeal / High Court Determination of Appeal From the Supreme Court of New South Wales, After Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
Town Planning, Suspension of Proprietary Rights, Restrictive Covenants, Statutory Interpretation, Environmental Planning Instruments
Local Government Property Law Administrative Law Town Planning Suspension of Proprietary Rights Restrictive Covenants Statutory Interpretation Environmental Planning Instruments

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 19 Party arguments 2
Sign in to unlock

Parties

Cumerlong Holdings Pty Ltd

Appellant

Dalcross Properties Pty Ltd

First Respondent

Dalcross Holdings Pty Limited

Second Respondent

Australasian Conference Association Ltd

Third Respondent

Minister for Planning and Infrastructure

Amicus Curiae

Procedural Posture

Appeal / High Court Determination of Appeal From the Supreme Court of New South Wales, After Court of Appeal Decision

Legal Issues

  1. 1 Whether LEP 194 and the Ku-ring-gai Planning Scheme Ordinance could validly suspend the operation of a private restrictive covenant without compliance with s 28 of the Environmental Planning and Assessment Act 1979 (NSW)
  2. 2 Whether the procedures in s 28 were mandatory or permissive
  3. 3 Whether the environmental planning instrument 'provided' for the restrictive covenant not to apply within the meaning of s 28(2)

Ratio Decidendi

LEP 194, through its engagement with the Ordinance, effectively provided to suspend the restrictive covenant in question. However, such suspension could not have effect because approval by the Governor, as required by s 28(3) of the Environmental Planning and Assessment Act 1979 (NSW), was not obtained. Therefore, the appellant’s rights under the restrictive covenant were not lawfully suspended.

Court Disposition

Appeal allowed

Orders

  • Orders of the Court of Appeal of the Supreme Court of New South Wales made 2 September 2010 set aside.
  • In place thereof, appeal allowed; first and second respondents to pay appellant's costs of the appeal to the Court of Appeal up to and including 11 July 2010; third respondent to pay appellant's costs thereafter.