Lennard v Jessica Estates Pty Ltd - [2008] NSWCA 121

Reported Decision: 159 LGERA 420

New South Wales

Court of Appeal

CITATION: Lennard v Jessica Estates Pty Limited [2008] NSWCA 121
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 April 2008

JUDGMENT DATE:
30 May 2008

JUDGMENT OF: Tobias JA at 1; McColl JA at 70; Bell JA at 71

DECISION: (a) Extend the time in which the appellants were to file their Notice of Appeal with Appointment up to and including 19 February 2008.
(b) Appeal allowed.
(c) Set aside the declarations and orders made by Brereton J on 10 December 2007.
(d) Dismiss the summons filed by the respondent on 12 September 2007.
(e) The respondent to pay the appellants’ costs of the proceedings before Austin J and Brereton J and the costs of the appeal (excluding the Notice of Motion for an extension of time in which to file their appeal) but to have with respect to the costs of the appeal, a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified.

CATCHWORDS: REAL PROPERTY – Restriction on use of land lodged pursuant to s 88B Conveyancing Act – Whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and provisions of Local Environmental Plan - STATUTORY INTERPRETATION – Whether construction given to provision of Local Environmental Plan below produced an irrational result - WORDS AND PHRASES – Meaning of ‘prohibits’ – Whether an instrument which permits certain land uses only with consent is in effect a prohibition – Meaning of ‘land use’ – Meaning of ‘development’ – Distinction between ‘development’ and ‘land use’. - RELIEF – Whether conduct of the respondent in relation to construction amounted to laches – Exercise of discretion to grant relief.

LEGISLATION CITED: Conveyancing Act 1919 (NSW): section 88B
Environmental Planning and Assessment Act 1979 (NSW): sections 4, 4B and 123
Singleton Local Environmental Plan 1996 (NSW): clauses 2, 3, 6, 9, 28 and 35

CASES CITED: Cooper-Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297;
Foley v Padley [1984] HCA 50; (1984) 154 CLR 349;
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472;
House v The King [1936] HCA 40; (1936) 55 CLR 499;
Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1175;
Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1434;
Public Transport Commission NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336;
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681;
Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319;
Young v Gosford City Council [2001] NSWLEC 191; (2001) 120 LGERA 243

PARTIES: Tony Lennard
Laura Lennard
Jessica Estates Pty Limited

FILE NUMBER(S): CA 40021/08

COUNSEL: A: J R Clarke
R: J E Robson SC / J E Lazarus

SOLICITORS: A: Curtis Delaney Gray, Singleton

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: [2008] NSWCA 121
Decision Date: 30 May 2008

CaseChat Overview and Summary

The appellants, Lennard and others, sought to appeal a decision of Brereton J in the Supreme Court of New South Wales concerning a restriction on the use of land lodged pursuant to section 88B of the *Conveyancing Act 1919* (NSW). The dispute centred on whether this restriction, which limited certain land uses, was rendered inapplicable by the provisions of the *Environmental Planning and Assessment Act 1979* (NSW) and the relevant Local Environmental Plan (LEP).

The primary legal issues before the Court of Appeal were whether the construction given to the relevant provision of the LEP produced an irrational result, and the meaning of the word "prohibits" in the context of an instrument that permits certain land uses only with consent. The court also considered the distinction between "development" and "land use" and whether the respondent's conduct amounted to laches, impacting the exercise of discretion to grant relief.

The Court of Appeal, comprising Tobias JA, McColl JA, and Bell JA, allowed the appeal. Their Honours reasoned that the LEP, when properly construed, did not render the section 88B restriction inapplicable. The court clarified that an instrument permitting land uses only with consent does not, in effect, amount to a prohibition for the purposes of the relevant statutory provisions. The court found that the respondent's actions did not constitute laches, and the discretion to grant relief was exercised in favour of the appellants. Consequently, the declarations and orders made by Brereton J were set aside, and the summons filed by the respondent was dismissed. The respondent was ordered to pay the appellants' costs of the proceedings at first instance and on appeal, with a certificate under the *Suitor's Fund Act 1951* (NSW) granted for the appeal costs.

Orders

Orders of the court

(a) Extend the time in which the appellants were to file their Notice of Appeal with Appointment up to and including 19 February 2008. (b) Appeal allowed. (c) Set aside the declarations and orders made by Brereton J on 10 December 2007. (d) Dismiss the summons filed by the respondent on 12 September 2007. (e) The respondent to pay the appellants' costs of the proceedings before Austin J and Brereton J and the costs of the appeal (excluding the Notice of Motion for an extension of time in which to file their appeal) but to have with respect to the costs of the appeal, a certificate under the Suitor's Fund Act, 1951 if otherwise qualified.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lennard v Jessica Estates Pty Limited [2008] NSWCA 121 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 April 2008
JUDGMENT DATE:	30 May 2008
JUDGMENT OF:	Tobias JA at 1; McColl JA at 70; Bell JA at 71
DECISION:	(a) Extend the time in which the appellants were to file their Notice of Appeal with Appointment up to and including 19 February 2008. (b) Appeal allowed. (c) Set aside the declarations and orders made by Brereton J on 10 December 2007. (d) Dismiss the summons filed by the respondent on 12 September 2007. (e) The respondent to pay the appellants’ costs of the proceedings before Austin J and Brereton J and the costs of the appeal (excluding the Notice of Motion for an extension of time in which to file their appeal) but to have with respect to the costs of the appeal, a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified.
CATCHWORDS:	REAL PROPERTY – Restriction on use of land lodged pursuant to s 88B Conveyancing Act – Whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and provisions of Local Environmental Plan - STATUTORY INTERPRETATION – Whether construction given to provision of Local Environmental Plan below produced an irrational result - WORDS AND PHRASES – Meaning of ‘prohibits’ – Whether an instrument which permits certain land uses only with consent is in effect a prohibition – Meaning of ‘land use’ – Meaning of ‘development’ – Distinction between ‘development’ and ‘land use’. - RELIEF – Whether conduct of the respondent in relation to construction amounted to laches – Exercise of discretion to grant relief.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW): section 88B Environmental Planning and Assessment Act 1979 (NSW): sections 4, 4B and 123 Singleton Local Environmental Plan 1996 (NSW): clauses 2, 3, 6, 9, 28 and 35
CASES CITED:	Cooper-Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; Foley v Padley [1984] HCA 50; (1984) 154 CLR 349; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472; House v The King [1936] HCA 40; (1936) 55 CLR 499; Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1175; Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1434; Public Transport Commission NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681; Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319; Young v Gosford City Council [2001] NSWLEC 191; (2001) 120 LGERA 243
PARTIES:	Tony Lennard Laura Lennard Jessica Estates Pty Limited
FILE NUMBER(S):	CA 40021/08
COUNSEL:	A: J R Clarke R: J E Robson SC / J E Lazarus
SOLICITORS:	A: Curtis Delaney Gray, Singleton