Lennard v Jessica Estates Pty Limited [2008] NSWCA 121

Reported Decision: 159 LGERA 420

New South Wales Court of Appeal

CITATION: Lennard v Jessica Estates Pty Limited [2008] NSWCA 121 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 April 2008

JUDGMENT DATE: 30 May 2008

JUDGMENT OF: Tobias JA at 1; McColl JA at 70; Bell JA at 71

(a) Extend the time in which the appellants were to file their Notice of Appeal with Appointment up to and including 19 February 2008. (b) Appeal allowed. DECISION: (c) Set aside the declarations and orders made by Brereton J on 10 December 2007. (d) Dismiss the summons filed by the respondent on 12 September 2007. (e) The respondent to pay the appellants' costs of the proceedings before Austin J and Brereton J and the costs of the appeal (excluding the Notice of Motion for an extension of time in which to file their appeal) but to have with respect to the costs of the appeal, a certificate under the Suitor's Fund Act, 1951 if otherwise qualified.

CATCHWORDS: REAL PROPERTY – Restriction on use of land lodged pursuant to s 88B Conveyancing Act – Whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and provisions of Local Environmental Plan - STATUTORY INTERPRETATION – Whether construction given to provision of Local Environmental Plan below produced an irrational result - WORDS AND PHRASES – Meaning of 'prohibits' – Whether an instrument which permits certain land uses only with consent is in effect a prohibition – Meaning of 'land use' – Meaning of 'development' – Distinction between 'development' and 'land use'. - RELIEF – Whether conduct of the respondent in relation to construction amounted to laches – Exercise of discretion to grant relief.