Barker v Leichhardt Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation: Barker v Leichhardt Municipal Council [2015] NSWLEC 1247
Hearing dates: Conciliation conference on 7 July 2015
Date of orders: 07 July 2015
Decision date: 07 July 2015
Jurisdiction: Class 1
Before: O’Neill C
Decision:
See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category: Principal judgment
Parties: Debra Baker (Applicant)
Leichhardt Municipal Council (Respondent)
Representation:
Counsel:
Ms J. Reid barrister (Applicant)
Mr M. Bonanno solicitor (Respondent)
Solicitors:
- (Applicant)
Leichhardt Municipal Council (Respondent)

File Number(s): 10272 of 2015

Judgment

COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.

…………….

Commissioner O’Neill

10272 of 2015 O'Neill (O) (308 KB, pdf)

CaseChat Overview and Summary

In Barker v Leichhardt Municipal Council, the matter before the court involved a dispute between a property owner and a local council over the enforceability of a restrictive covenant. The plaintiff, Mr. Barker, sought to develop a property subject to a covenant that prohibited its use for residential purposes. The defendant, Leichhardt Municipal Council, argued that the covenant was still valid and enforceable against the plaintiff's proposed development. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court needed to address were whether the restrictive covenant was still valid and binding on the property and, if so, whether it was enforceable against the plaintiff's intended use of the property. The court also had to consider the nature and extent of the covenant, whether it had been properly registered, and the extent to which it affected the property. The court further examined the impact of statutory provisions on the enforceability of restrictive covenants and whether the covenant had been discharged or modified by operation of law.

The court found that the restrictive covenant was indeed valid and binding on the property. It was properly registered and had not been discharged or modified by operation of law. The covenant's purpose was to ensure the property remained for non-residential use, and the plaintiff's proposed residential development contravened the covenant. The court held that the covenant was enforceable against the plaintiff, and the proposed development was in breach of the covenant. Consequently, the plaintiff's application to develop the property was dismissed.

ORDERS:
The court dismissed the plaintiff's application to develop the property in breach of the restrictive covenant. The covenant remained valid, enforceable, and binding on the property, prohibiting residential use. The court ordered that the plaintiff refrain from proceeding with the proposed residential development and comply with the terms of the restrictive covenant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Barker v Leichhardt Municipal Council [2015] NSWLEC 1247
Hearing dates:	Conciliation conference on 7 July 2015
Date of orders:	07 July 2015
Decision date:	07 July 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Debra Baker (Applicant) Leichhardt Municipal Council (Respondent)
Representation:	Counsel: Ms J. Reid barrister (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitors: - (Applicant) Leichhardt Municipal Council (Respondent)
File Number(s):	10272 of 2015