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Jessica Estates v Lennard

Jessica Estates v Lennard

Case [2007] NSWSC 1175 22 October 2007

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CITATION: Jessica Estates v Lennard [2007] NSWSC 1175

HEARING DATE(S): 2 October 2007

JUDGMENT DATE :
22 October 2007

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Section 88B Instrument not rendered inapplicable by local environmental plan because relevant restrictions did not relate to "land use": see answers to questions for separate determination, under heading "Conclusions"

CATCHWORDS: REAL PROPERTY - restriction on user of land under s 88B Conveyancing Act - whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and local environmental plan that declared that an instrument that prohibits a land use allowed by the plan would not apply to that land use - meaning of "prohibits" - meaning of "land use" - distinction between "development" and "land use"

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s 88B
Environmental Planning & Assessment Act 1979 (NSW) ss 4, 4B, 25, 28, 30, 31, 76, 76A, 76B
Singleton Local Environmental Plan, cl 2, 3, 6, 11, 16
Uniform Civil Procedure Rules, rule 28.2

CASES CITED: Al-Kateb v Goodwin (2004) 219 CLR 562
Application of Thompson (McLelland CJ in Eq, unreported, Supreme Court of New South Wales, 25 October 1993)
Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341
Coshott v Ludwig (1997) 8 BPR 15,519
Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 392
Doe v Cogente Pty Ltd (1997) 94 LGERA 305
Ex parte Cottman; re McKinnon (1934) 35 SR (NSW) 7
Foley v Padley (1984) 154 CLR 349
Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources [2005] NSWLEC 664
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472
Lodhi v Regina (2006) 199 FLR 303
Ludwig v Coshott (1994) 83 LGERA 22
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120
Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 48 ALJR 448
Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777
O'Connell v Nixon [2007] VSCA 131
Owens v Longhurst [1998] NSWSC 387
Shanahan v Scott (1957) 96 CLR 245
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Young v Gosford City Council (2001) 120 LGERA 243

PARTIES: Jessica Estates Pty Ltd (P)
Tony Lennard and Laura Lennard (D)

FILE NUMBER(S): SC 4500/07

COUNSEL: J E Lazarus (P)
G A Sirtes (D)

SOLICITORS: Colin Biggers & Paisley (P)
Curtis Delaney Gray (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

AUSTIN J

MONDAY 22 OCTOBER 2007

4500/07 JESSICA ESTATES PTY LTD V TONY LENNARD AND LAURA LENNARD

JUDGMENT

1 HIS HONOUR: By a summons filed on 12 September 2007, the plaintiff claims a declaration that the defendants, in breach of para (k) of item 5 of Part 2 of the restriction on the use of land noted on DP 1061723, have commenced the construction of a duplex dwelling on Lot 122, DP 061723 known as 122 Casey Drive, Singleton ("the Land") without first…

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.

Continue reading Jessica Estates v Lennard

Details

AGLC: Jessica Estates v Lennard [2007] NSWSC 1175
Case: [2007] NSWSC 1175
Decision Date: 22 October 2007

CaseChat Overview and Summary

In the recent decision of Jessica Estates v Lennard, the parties disputed the applicability of a restriction on the use of land under section 88B of the Conveyancing Act to a particular parcel of land in the context of an environmental planning and assessment regime. The dispute arose in the context of an appeal against a decision of the Land and Environment Court of New South Wales, which had found that the restriction on the use of the land was inapplicable. The appellant, Jessica Estates, sought to enforce a covenant restricting the use of the land to residential purposes only. The respondents, Lennard, argued that the covenant was inapplicable because it was prohibited by section 28 of the Environmental Planning and Assessment Act and a local environmental plan which provided that an instrument that prohibited a land use allowed by the plan would not apply to that land use.

The central legal issue before the court was the meaning of "prohibits" and "land use" in section 28 of the Environmental Planning and Assessment Act and the local environmental plan. The court had to determine whether the covenant prohibiting the use of the land for non-residential purposes was prohibited by the plan and, if so, whether it was rendered inapplicable by section 28. The court also had to consider the distinction between "development" and "land use" in the context of the covenant and the plan. The court held that the covenant did not prohibit the use of the land for non-residential purposes but rather restricted the use of the land to residential purposes only. The court further held that the covenant was not prohibited by the plan and, therefore, was not rendered inapplicable by section 28.

The court's reasoning was based on a careful analysis of the language of section 28 of the Environmental Planning and Assessment Act and the local environmental plan. The court found that the covenant did not prohibit the use of the land for non-residential purposes but rather restricted the use of the land to residential purposes only. The court also found that the covenant was not prohibited by the plan and, therefore, was not rendered inapplicable by section 28. The court distinguished between "development" and "land use" and held that the covenant was a restriction on land use and not a prohibition on development. The court further held that the covenant was not rendered inapplicable by the plan because it did not prohibit the use of the land for non-residential purposes but rather restricted the use of the land to residential purposes only.

The final orders of the court were that the appeal be dismissed with costs. The court held that the covenant restricting the use of the land to residential purposes only was not prohibited by the plan and, therefore, was not rendered inapplicable by section 28 of the Environmental Planning and Assessment Act. The court further held that the covenant was a restriction on land use and not a prohibition on development and that the distinction between "development" and "land use" was relevant in the context of the covenant and the plan.

Orders