Lennard v Jessica Estates Pty Ltd

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.