Owners of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255

> Reported Decision : 129 LGERA 364

Land and Environment Court of New South Wales

CITATION : Owners of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255 APPLICANT: Owners of SP 39204 PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 40547 of 2002 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- meaning of development consents-aged persons housing projects-whether any limitation on age of residents of development. LEGISLATION CITED: Auburn Council v Szabo (1971) 67LGRA 427; CASES CITED: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 DATES OF HEARING: 18/08/2003 DATE OF JUDGMENT: 10/28/2003

APPLICANT: Mr P Tomasetti, Barrister SOLICITORS Gregory J Halpin LEGAL REPRESENTATIVES: RESPONDENT: Mr J E Robson, Barrister SOLICITORS Duffy and Associates

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . . 40547 of 2002 Coram : Bignold J 29 October 2003

THE OWNERS OF STRATA PLAN 39204

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. By class 4 application filed 23 August 2002, the Applicant claims the following declaratory relief: 1. A declaration that, on the true construction of Development Consent No. 1643/70 granted by the Respondent and in the events which have happened, there is no restriction, prohibition or limitation that requires the development on Lots A, MPS(RP) 120497 and 2, DP 207250 (No 322) Willarong Road, Caringbah to be occupied by persons aged sixty (60) years or older. 2. A declaration that, on the true construction of Development Consent No 403/76 granted by the Respondent and in the events which have happened, there is no restriction, prohibition or limitation that requires the development on Lot 8 in FP 389498 (No 314) Willarong Road, Caringbah to be occupied by persons aged sixty (60) years or older.