Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777

Supreme Court New South Wales

Medium Neutral Citation: Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777 Hearing dates: 17 – 19 February 2020; 3 June 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Equity Before: Darke J Decision: Defendant's challenges to validity and enforceability of Deed of Agreement not made out. Plaintiff's claim for orders for specific performance declined. Catchwords: CONTRACT — breach — parties enter into a Deed which contemplates a re-zoning of defendant's land so that it is partly zoned industrial and partly zoned conservation — Deed provides for defendant to lodge a development application to subdivide the land into two lots to reflect the zonings — Deed further provides for the defendant to transfer to the Council the conservation lot following approval of the subdivision — defendant lodges development application for subdivision and vegetation clearing — Council issues Notice of Determination consenting to subdivision but rejecting vegetation clearing — defendant appeals to Land and Environment Court — whether defendant by failing to lodge subdivision application breached implied term to do all that is reasonably necessary to secure performance of the Deed — held that Deed does not prevent exercise of rights of appeal — held that defendant not in breach where rights of appeal have not been exhausted — specific performance not granted

LOCAL GOVERNMENT — powers, functions and duties — property — whether Council entered into the Deed ultra vires or unlawfully — held that Council had statutory power to enter into the Deed

LOCAL GOVERNMENT — powers, functions and duties — property — whether the Deed included an unlawful fetter upon the future exercise of Council's statutory powers — held that Council did not fetter the future exercise of its statutory powers where Deed does not include any obligation upon the Council to grant development consent Legislation Cited: Amendment No 21 to State Environmental Planning Policy (Major Projects) 2005 Environmental Planning and Assessment Act 1979 (NSW), ss 8.13, 8.14 Environmental Planning and Assessment Amendment Act 2017 (NSW) Interpretation Act 1987 (NSW), s 50(1)(e) Local Government Act 1993 (NSW), ss 186(1), 187(1) Local Government (General) Regulation 2005, cl 400(4) Cases Cited: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 Lacey v Attorney-General Qld (2011) 242 CLR 573; [2011] HCA 10 Nullagine Investments Pty Ltd v The Western Australian Club Incorporated (1993) 177 CLR 635 Pacific National Investments Ltd v Victoria (City) [2000] 2 SCR 919 Pastoral Investment Land & Loan Pty Ltd v Central Coast Council [2020] NSWLEC 1135 Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Ransom & Luck Ltd v Surbiton Borough Council [1949] 1 Ch 180 Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Watson's Bay and South Shore Ferry Company Ltd v Whitfeld (1919) 27 CLR 268 Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104; [2001] NSWCA 271 Category: Principal judgment Parties: Central Coast Council (Plaintiff/Cross-Defendant) Pastoral Investment Land & Loan Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr R D Marshall SC with Mr E A Walker (Plaintiff/Cross-Defendant) Mr J R Young with Mr M F Fozzard (Defendant/Cross-Claimant)