Monnock v Pittwater Council - [2003] NSWLEC 151

Reported Decision: 127 LGERA 66

Land and Environment Court

of New South Wales

CITATION: Monnock v Pittwater Council [2003] NSWLEC 151

PARTIES:
APPLICANT
Jan Monnock
RESPONDENT
Pittwater Council
INTERVENER
Attorney General of New South Wales

FILE NUMBER(S): (1)0774 of 2002

CORAM: Talbot J

KEY ISSUES: Development Consent :- validity of condition requiring restrictive covenant constraining transfer of ownership of dwelling by agreement based on the ownership of company shares
Words and Phrases :- subdivision

LEGISLATION CITED: Conveyancing Act 1919 s 23F, s 88E(2)
Corporations Act 2001 (Cth) s 258B(1)
Environmental Planning and Assessment Act 1979 s 4B, s 4B(1)(b), s 79C(1), s 80(1)(a), s 80A
Judiciary Act 1903 (Cth) s 78A
Pittwater Local Environmental Plan 1993 Div 3A, cl 21C, cl 21F, cl 21F(1),

CASES CITED: Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] NSWLEC 178, unreported;
Fortunate Investments Pty Ltd v North Sydney Council 114 LGERA 1;
Jelbart and Ors v Hume Shire Council (Talbot J, NSWLEC, 28 November 1997, unreported) ;
Ku-ring-gai Municipal Council v Kuttner (1980) 41 LGERA 1 ;
Masterton Homes Pty Limited v Pittwater Council [2003] NSWLEC 44, unreported ;
Personal Design Projects Pty Ltd v Hornsby Shire Council (Bignold J, NSWLEC, 15 March 1991, unreported);
NTL Australia v Willoughby Council [2000] NSWLEC 244, unreported;
S & I Investments Pty Ltd v Pittwater Municipal Council (Talbot J, NSWLEC, 13 October 1993, unreported)

DATES OF HEARING: 06/06/2003

DATE OF JUDGMENT:
06/25/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J B Simpkins SC
SOLICITORS
Hones Lawyers
RESPONDENT
Mr A E Galasso (Barrister)
SOLICITORS
Malleson Stephen Jaques
INTERVENER
Mr M G Sexton SC SG
SOLICITORS
Crown Solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0774 of 2002

Talbot J

25 June 2003

Jan Monnock

Applicant

Pittwater Council

Respondent

Judgment

Introduction

1 Land to which these proceedings relate is located within Area 2 of the Pittwater Local Environmental Plan 1993 (“the LEP”). On 19 August 2002 the respondent granted consent to the erection of an attached dual occupancy upon the land pursuant to cl 21C of the LEP.

2 Condition D1 of the consent relevantly provides as follows:-

Prior to occupation a covenant is to be created on the title of the land, at the applicant’s expense, that creates a restriction on the use of the land and the terms of which state that the ownership of the individual dwelling to be constructed on the property can not be individually assigned by any agreement, dealing or instrument based on the ownership of company shares.

3 On 2 April 2003 the applicant filed a preliminary point of law seeking determination of the following question:-

Whether condition D1 of the consent dated 19 August 2002 issued by the Respondent for the erection of an attached dual occupancy upon land described as Lot 3 in Deposited Plan 1037337, known as 5 Maybanke Court, Mona Vale is ultra vires.

4 The following provisions of the LEP are relevant:-

“dual occupancy development” means development that results in…

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: [2003] NSWLEC 151
Decision Date: 06/25/2003

CaseChat Overview and Summary

The case of Monnock v Pittwater Council involved a dispute concerning the validity of a condition attached to a development consent granted by the Pittwater Council. The applicant, Jan Monnock, sought a determination on whether a condition requiring a restrictive covenant to constrain the transfer of ownership of a dwelling based on the ownership of company shares was ultra vires. The Land and Environment Court of New South Wales was tasked with resolving this matter. The primary legal issues revolved around the interpretation of the Environmental Planning and Assessment Act 1979 and the Pittwater Local Environmental Plan 1993, particularly the implications of a condition that restricted the transfer of ownership based on company shares.

The court examined the statutory framework and the definitions of "subdivision" and "dual occupancy development" under the Environmental Planning and Assessment Act 1979. The court considered whether the condition in question, which prevented the individual assignment of ownership of a dwelling through the transfer of company shares, was enforceable and consistent with the statutory objectives. The court also explored the interplay between the Environmental Planning and Assessment Act 1979 and the Conveyancing Act 1919. The central issue was whether such a condition could be considered a valid restriction under the statutory authority granted to the council.

The court concluded that the condition, which aimed to restrict the transfer of ownership of a dwelling based on the ownership of company shares, was unenforceable. The court held that the transfer of shares in the company did not equate to a transfer of title to the land and thus did not affect the ownership of the land. The court found that the restrictive covenant did not achieve its intended purpose and therefore was outside the statutory authority of the council. Consequently, the court determined that the condition was ultra vires and not valid. The court's reasoning was grounded in the legal distinction between ownership of shares and ownership of land, and the practical implications of such a restrictive covenant.

Orders