Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226

Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226

The applicants on the motion should be joined as respondents as their property interests (the benefit of the right of way) may be affected by the potential release, variation, or modification of the easement by the Court exercising its discretion under s 39(2) of the Land and Environment Court Act 1979 in the context of the development appeal; however, the legal questions raised in support of the joinder regarding the operation of the right of way and the obstruction from development lack merit or have little prospect of success save for the property rights issue justifying joinder.

Parties
Applicant: Pro-Vision Developments Pty Limited; Respondent: Ku-Ring-Gai Municipal Council; Applicants on the Motion: Andrew Picker and Jill Parker; Applicant on the Motion: Rabbi Nochum Schapiro; Applicant on the Motion: Roger G Jackson; Applicant on the Motion: Denis Conaglen; Applicants on the Motion: John William Sanders and Jane Ewing Sanders; Applicant on the Motion: Ronald Anderson; Applicant on the Motion: John Sainty; Applicant on the Motion: Specialist Property Limited (ACN 008 983 073); Applicants on the Motion: P Bachelard and J Bachelard
Jurisdiction
Australia
Judgment Date
20 October 2003
Procedural Posture
Appeal / Motion for Joinder; Interlocutory Determination
Outcome
Applicants on the motion joined as respondents; proceedings stayed pending hearing of evidence and submissions on behalf of applicants on the motion; question of costs reserved.
Legal Topics
Joinder of Parties, Rights of Way, Easements and Covenants, Development Application, Stay of Proceedings
Planning and Environment Law Property Law Civil Procedure Joinder of Parties Rights of Way Easements and Covenants Development Application Stay of Proceedings

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Parties

Pro-Vision Developments Pty Limited

Applicant

Ku-Ring-Gai Municipal Council

Respondent

Andrew Picker and Jill Parker

Applicants on the Motion

Rabbi Nochum Schapiro

Applicant on the Motion

Roger G Jackson

Applicant on the Motion

Denis Conaglen

Applicant on the Motion

John William Sanders and Jane Ewing Sanders

Applicants on the Motion

Ronald Anderson

Applicant on the Motion

John Sainty

Applicant on the Motion

Specialist Property Limited (ACN 008 983 073)

Applicant on the Motion

P Bachelard and J Bachelard

Applicants on the Motion

Procedural Posture

Appeal / Motion for Joinder; Interlocutory Determination

Legal Issues

  1. 1 Whether the right of way attaches to subdivided lots (including units) upon re-subdivision
  2. 2 Whether the instrument creating the rights of way is an agreement or covenant within the meaning of s 28 of the Environmental Planning and Assessment Act 1979 and cl 8 of SEPP No. 5
  3. 3 Whether the development proposal constitutes a substantial interference with the right of way, requiring an order under s 40 of the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The applicants on the motion should be joined as respondents as their property interests (the benefit of the right of way) may be affected by the potential release, variation, or modification of the easement by the Court exercising its discretion under s 39(2) of the Land and Environment Court Act 1979 in the context of the development appeal; however, the legal questions raised in support of the joinder regarding the operation of the right of way and the obstruction from development lack merit or have little prospect of success save for the property rights issue justifying joinder.

Court Disposition

Applicants on the motion joined as respondents; proceedings stayed pending hearing of evidence and submissions on behalf of applicants on the motion; question of costs reserved.

Orders

  • The applicants on the motion be joined as respondents.
  • Proceedings before the Commissioner be stayed pending hearing of evidence and submissions on behalf of the applicants on the motion.