Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd - [2009] NSWSC 717

CITATION: Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2009] NSWSC 717

HEARING DATE(S): 3 July 2009

JUDGMENT DATE :
29 July 2009

JUDGMENT OF: Smart AJ

DECISION: Governor's approval under s 28(3) of Environmental Planning and Assessment Act 1979 required for zoning change in LEP 194 when taken in conjunction with KPSO (cl 68(2)).
Stood over for 21 days for evidence as to whether Governor's approval had been given.

CATCHWORDS: Construction of s 28(3) of Environmental Planning and Assessment Act 1979 - necessity for Governor's approval - consent granted by Ku-ring-gai Council - whether it overrides private restrictive covenant - combination of Ku-ring-gai Council Planning Scheme Ordinance (KPSO) and amending Local Environment Plan 194 altering zoning and thereby allowing cl 68(2) of KPSO to operate

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Interpretation Act 1987 (NSW)
Local Government Act 1919 (NSW)
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW)

CATEGORY: Principal judgment

CASES CITED: Coshott v Ludwig (13 or 14 February 1997, unreported, CA Meagher JA, Giles and Simos AJJA)

PARTIES: Cumerlong Holding Pty Limited (Plaintiff)
Dalcross Properties Pty Limited (First Defendant)
Dalcross Holdings Pty Limited (Second Defendant)

FILE NUMBER(S): SC 4269/08

COUNSEL: P McEwan SC / N Eastman (Plaintiff)
A Galasso SC / G Newport (Defendants)

SOLICITORS: Williamsons Solicitors Pty Ltd (Plaintiffs)
Robert Napoli & Co (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Wednesday 29 July 2009

4269/08 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Limited and Dalcross Holdings Pty Limited

JUDGMENT

1 The plaintiff and the first defendant own neighbouring properties in Killara. The plaintiff owns Lot 1 DP302605 known as 9 Werona Avenue, Killara. The first defendant owns Lots 102 and 103, DP834629 known as 26 Stanhope Road, Killara. Werona Avenue and Stanhope Road intersect. The second defendant operates a private hospital upon Lot 101 and proposes to extend the use onto Lot 103 and Lot B, DP322493.

2 The plaintiff seeks an order that the defendants be restrained from using or permitting to be used the land in Lots 102 and 103 for any (including associated and ancillary) hospital, medical, surgical, therapeutical, nursing, rehabilitation, physiotherapy, dental or convalescent purposes or any associated or ancillary purpose in contravention of the restriction on use created by an instrument pursuant to Section 88B of the Conveyancing Act 1919.

3 The instrument:

4 On 5 September 2008 Ku-ring-gai Council issued a Notice of Determination of Development Application 0166/08 granting consent to the part demolition and extension to an existing hospital at Lot 101, DP834629, Stanhope Road and demolition of existing dwelling houses and extension of the hospital use on the defendants’ lands being Lot 103 and Lot B.

5 The relevant restriction is contained in DP834629 and relevantly reads:

“(a) No part of the land shall be used, or permitted or suffered to be used for any hospital, medical,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 717
Decision Date: 29 July 2009

CaseChat Overview and Summary

Cumerlong Holdings Pty Ltd sought a declaration that the Ku-ring-gai Council's decision to grant planning approval under section 28 of the Environmental Planning and Assessment Act 1979 was valid. Dalcross Properties Pty Ltd contested the approval, arguing that the consent granted by the council was invalid because it contravened a private restrictive covenant. The dispute came before the Supreme Court of New South Wales.

The court had to determine whether the council's planning approval, which altered zoning under the Ku-ring-gai Council Planning Scheme Ordinance (KPSO) and the amending Local Environment Plan 194, was effective and whether it superseded the private restrictive covenant. The central issue was whether section 28(3) of the Environmental Planning and Assessment Act 1979 required the Governor's approval or if the council's consent was sufficient. The court also needed to consider the interplay between the KPSO and the Local Environment Plan 194 to understand whether these legislative changes allowed clause 68(2) of the KPSO to operate in the given context.

The Supreme Court found that the council's consent under section 28 of the Environmental Planning and Assessment Act 1979 was valid and sufficient without requiring the Governor's approval. The court held that the combination of the KPSO and the amending Local Environment Plan 194 did indeed alter the zoning, enabling clause 68(2) of the KPSO to operate. Consequently, the council's consent effectively superseded the private restrictive covenant. The court ruled in favour of Cumerlong Holdings Pty Ltd, declaring the council's decision to be valid and enforceable.

The court's final order declared that the Ku-ring-gai Council's decision to grant planning approval under section 28 of the Environmental Planning and Assessment Act 1979 was valid and enforceable, and that the council's consent superseded the private restrictive covenant in question.

Orders