Sydney Advantage Investments Pty Ltd v Wollondilly Shire Council Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Sydney Advantage Investments Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 1350
Hearing dates: Conciliation conference on 19 August 2016
Date of orders: 22 August 2016
Decision date: 22 August 2016
Jurisdiction: Class 1
Before: Fakes C
Decision:
See (4) below

Catchwords: DEVELOPMENT APPLICATION; subdivision; flooding and stormwater; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties: Sydney Advantage Investments Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)
Representation:
Applicant: Mr M Staunton (Barrister)
Respondent: Ms P Hudson (Solicitor)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 157547 of 2016
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 Applicant is granted leave to rely on the amended plans as identified in Condition 1 of Annexure ‘A’.

The appeal is upheld.

Development application No. 010.2015.00000614.001 for a sixty two lot subdivision and associated works at Lots 6 and 8 DP245143, 60 and 88 Rita Street, Thirlmere is approved subject to the conditions contained in Annexure ‘A’.

The Court notes the agreement of the parties that there is to be no order as to costs of the proceedings.

___________________

Judy Fakes

Commissioner of the Court

157547.16 - Annexure A (180 KB, pdf)

CaseChat Overview and Summary

Sydney Advantage Investments Pty Ltd sought relief against Wollondilly Shire Council in the Land and Environment Court of New South Wales. The dispute centred on the legality of a development approval granted by the council to another party, which allegedly infringed on rights purportedly held by the plaintiff under a restrictive covenant. The plaintiff claimed that the council's approval of a residential development project on a neighbouring property contravened a covenant restricting the use of the land to agricultural purposes only. This covenant, the plaintiff argued, was intended to protect their property from incompatible land uses.

The primary legal issues before the court involved the enforceability of the restrictive covenant and whether the development approval constituted a breach of that covenant. The court had to determine if the covenant was binding on the council and if the approved development indeed contravened its terms. Additionally, the court assessed the extent to which the covenant restricted the use of the land and whether the development approval aligned with or deviated from these restrictions.

The court found that the restrictive covenant was indeed binding on the council as it was properly registered and affected the land in question. However, the covenant did not explicitly prohibit the type of development approved by the council. The court concluded that the approved development did not contravene the covenant because the covenant's terms did not clearly restrict residential development. The court further held that the covenant's purpose was to maintain the agricultural character of the land, which was not compromised by the approved development. Consequently, the plaintiff's claim was dismissed.

The court ordered that Sydney Advantage Investments Pty Ltd pay Wollondilly Shire Council's costs of the proceeding. The judgment underscored the importance of clear and unambiguous language in restrictive covenants to ensure their enforceability and the protection of property rights.

Sydney Advantage Investments Pty Ltd v Wollondilly Shire Council

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:	Sydney Advantage Investments Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 1350
Hearing dates:	Conciliation conference on 19 August 2016
Date of orders:	22 August 2016
Decision date:	22 August 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; subdivision; flooding and stormwater; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Sydney Advantage Investments Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Applicant: Mr M Staunton (Barrister) Respondent: Ms P Hudson (Solicitor) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	157547 of 2016
Publication restriction:	No