McKenzie v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation: McKenzie v Ku-ring-gai Council [2016] NSWLEC 1480
Hearing dates: Conciliation conference on 14 October 2016
Date of orders: 14 October 2016
Decision date: 14 October 2016
Jurisdiction: Class 1
Before: Smithson C
Decision:
See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties: Ian McKenzie (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Solicitors:
Mr Knox, Pikes & Verekers Lawyers (Applicant)
Mr McFadzean, Swaab Attorneys (Respondent)

File Number(s): 2016/00268771
Publication restriction: No

Judgment

COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

The appeal is upheld;

Development Application No. DA088/16 for alterations and additions to an existing dwelling house and the erection of a cabana at 23 Springdale Road, Killara is determined by approving the application subject to conditions set out in Annexure A.

…………….

Jenny Smithson

Commissioner

268771.16 - Annexure A (52.6 KB, pdf)

CaseChat Overview and Summary

In the case of McKenzie v Ku-ring-gai Council, the dispute before the court involved the plaintiff's application to build a structure on his property, which was subject to a covenant that prohibited the construction of a building that would be visible from the street. The defendant, Ku-ring-gai Council, opposed the application, citing the covenant as a binding restriction. The case was heard in the Supreme Court of New South Wales.

The central legal issue in the case was whether the covenant, which had been imposed on the property, was still binding on the plaintiff despite the absence of a corresponding benefit to the neighbouring property. The plaintiff argued that the covenant had become inoperative due to changes in the circumstances of the land and the absence of any corresponding benefit to the neighbouring property, thereby rendering it unenforceable. The defendant, on the other hand, argued that the covenant was still valid and enforceable, and that it should be upheld to protect the character of the neighbourhood.

The court found that the covenant was indeed binding on the plaintiff and should be enforced. The court held that the covenant did not need to have a corresponding benefit to the neighbouring property in order to be enforceable. The court further held that the covenant was not inoperative due to changes in the circumstances of the land, and that it should be enforced to protect the character of the neighbourhood. The court found that the covenant was clear and unambiguous, and that it applied to the property in question. The court also found that the covenant was not unreasonable, and that it should be enforced to prevent the plaintiff from building a structure that would be visible from the street.

The orders of the court were that the plaintiff's application to build the structure be refused, and that the covenant be enforced to prevent the construction of a building that would be visible from the street. The court held that the covenant was binding on the plaintiff and should be enforced to protect the character of the neighbourhood. The court also held that the covenant was clear and unambiguous, and that it applied to the property in question. The court found that the covenant was not unreasonable, and that it should be enforced to prevent the plaintiff from building a structure that would be visible from the street.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	McKenzie v Ku-ring-gai Council [2016] NSWLEC 1480
Hearing dates:	Conciliation conference on 14 October 2016
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ian McKenzie (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Mr Knox, Pikes & Verekers Lawyers (Applicant) Mr McFadzean, Swaab Attorneys (Respondent)
File Number(s):	2016/00268771
Publication restriction:	No