Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd

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Council Planning Scheme Ordinance (KPSO) and the amending Local Environment Plan 194, was effective and whether it superseded the private restrictive covenant.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 Consequently, the council's consent effectively superseded the private restrictive covenant.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28 of the Environmental Planning and Assessment Act 1979 was valid and enforceable, and that the council's consent superseded the private restrictive covenant in question.