Jolly v District Council of Yankalilla

The appellant, Mr Jolly, appealed a decision of the District Council of Yankalilla (the Council) that refused consent for a proposed development to a shack on land owned by Lady Bay Shores Pty Ltd (Lady Bay Shores). The proposed development involved the erection of a second storey to the shack, which was subject to a Land Management Agreement (LMA) prohibiting the erection of a second storey. The Council refused consent on the basis that the proposed development was hypothetical because Lady Bay Shores was not prepared to waive the provisions of the LMA prohibiting the erection of a second storey. The Environment, Resources and Development Court (ERD Court) upheld the Council’s decision, and Mr Jolly appealed to the Supreme Court.

The appeal raised two primary legal issues: first, whether the proposed development was hypothetical, and second, whether Mr Jolly, who was not the owner of the shack, was bound by the LMA. The court found that the proposed development was not hypothetical because a second storey had already been erected on the shack pursuant to a valid planning consent. The court also found that the clause in the LMA prohibiting the erection of a second storey had become irrelevant and could not be relied upon by the Council to refuse consent. The court further found that the LMA was a valid agreement under the Development Act 1993, and that Mr Jolly was bound by it.

The court held that the Council’s decision to refuse consent was flawed because it had not properly considered the fact that a second storey had already been erected on the shack. The court held that the proposed development was not hypothetical and that the clause in the LMA prohibiting the erection of a second storey had become irrelevant. The court also held that the LMA was a valid agreement under the Development Act 1993, and that Mr Jolly was bound by it. The appeal was allowed, and the matter was remitted to the ERD Court for reconsideration in accordance with the decision of the Supreme Court.