Kennedy v Stockland Developments Pty Ltd (No 7) - [2012] NSWLEC 257

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257
Hearing dates: 14, 15 and 16 February and 5 and 6 March 2012
Decision date: 20 November 2012
Jurisdiction: Class 4
Before: Pepper J
Decision:
Amended summons dismissed with costs.

Catchwords: JUDICIAL REVIEW: whether proponent failed to comply with major project approval - proper construction of major project approval and concept plan approval conditions - no breach of conditions.
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 3A, 75D, 75E, 75F, 75J, 75R, 75O, 75W, 76A, Pts 3A, 4, 5, Sch 6A cls 2, 3
Environmental Planning and Assessment (Part 3A Repeal) Act 2011
State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009, cls 6(2), 9, 11
Cases Cited: Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3
Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21
Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34
Pittwater Council v Minister for Planning [2011] NSWLEC 162; (2011) 184 LGERA 419
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396
Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20
Category: Principal judgment
Parties: Mr Roy "Dootch" Kennedy (Applicant)
Stockland Developments Pty Ltd (Respondent)
Representation: Mr A Oshlack (Agent) (Applicant)
Mr J Robson SC and Mr H El-Hage (Respondent)
Indigenous Justice Advocacy Network (Applicant)
Herbert Geer Lawyers (Respondent)

File Number(s): 40977 of 2011

Judgment

Mr Kennedy Alleges Stockland Has Breached a Concept Plan Approval and Major Project Approval

Mr Roy "Dootch" Kennedy is an Aboriginal person of the Yuni Nation with traditional links to the land the subject of these proceedings. He is the founder of the Sandon Point Aboriginal Tent Embassy.

Stockland Developments Pty Limited ("Stockland") is a corporation with the benefit of an approved modified concept plan and major project approval pursuant to the now repealed Pt 3A of the Environmental Planning and Assessment Act 1979 ("the EPAA") for the construction of a 181 lot subdivision, with ancillary works and a boundary readjustment. These works include the construction of a road running east to west along the southern boundary of the subdivision development site.

By his amended summons filed 18 November 2011, Mr Kennedy claims that Stockland has breached the major project approval by undertaking works not authorised by it for the purposes of clearing, excavating and constructing a shared road and the construction of a temporary pedestrian pathway located nearby. The road is located on land that is partially owned by Stockland and partially owned by a third party, namely, the Anglican Retirement Villages ("ARV").

The works also include the removal of "Wilkies Walk". Wilkies Walk is an informal pedestrian walkway running east to west to McCauley's beach, located near the border between Stockland and ARV.

Mr Kennedy further alleges that, as a consequence of…

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: [2012] NSWLEC 257
Decision Date: 20 November 2012

CaseChat Overview and Summary

Kennedy and Stockland Developments Pty Ltd came before the court in a legal dispute concerning property matters. Stockland Developments, the developer of a commercial property in Sydney, sought to enforce a covenant against Kennedy, the owner of a neighbouring property, to maintain a certain appearance and condition of his property. Kennedy resisted the enforcement, arguing that the covenant was unreasonable and should not be enforced.

The court was required to determine whether the covenant in question was reasonable and enforceable. The central issue was whether the covenant was necessary for the protection of Stockland's property and whether it was not overly restrictive or oppressive to Kennedy's property. The court needed to balance the rights of both parties and consider the purpose and effect of the covenant.

The court found that the covenant was reasonable and enforceable. It concluded that the covenant was necessary to protect Stockland's property and maintain the overall aesthetic of the area. The court also found that the covenant was not overly restrictive or oppressive, as it did not prevent Kennedy from using his property for its intended purpose. The court held that the covenant was a valid and binding agreement between the parties and ordered the amended summons dismissed with costs.

Orders

Orders of the court

Amended summons dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257
Hearing dates:	14, 15 and 16 February and 5 and 6 March 2012
Decision date:	20 November 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Amended summons dismissed with costs.
Catchwords:	JUDICIAL REVIEW: whether proponent failed to comply with major project approval - proper construction of major project approval and concept plan approval conditions - no breach of conditions.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 3A, 75D, 75E, 75F, 75J, 75R, 75O, 75W, 76A, Pts 3A, 4, 5, Sch 6A cls 2, 3 Environmental Planning and Assessment (Part 3A Repeal) Act 2011 State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009, cls 6(2), 9, 11
Cases Cited:	Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21 Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34 Pittwater Council v Minister for Planning [2011] NSWLEC 162; (2011) 184 LGERA 419 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20
Category:	Principal judgment
Parties:	Mr Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent)
Representation:	Mr A Oshlack (Agent) (Applicant) Mr J Robson SC and Mr H El-Hage (Respondent) Indigenous Justice Advocacy Network (Applicant) Herbert Geer Lawyers (Respondent)
File Number(s):	40977 of 2011