Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242

New South Wales Court of Appeal

CITATION: Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242

HEARING DATE(S): 2 September 2010

JUDGMENT DATE: 22 September 2010

JUDGMENT OF: McColl JA at [1]; Young JA at [2]; Lindgren AJA at [54]

DECISION: The appeal is dismissed with costs.

CATCHWORDS: Environment and Planning- Development Consent- Construction- whether consent allowed for staged development of subdivision- whether breach of condition in respondent's failure to submit a plan to council for extension of public road access to boundary of appellants' land- whether primary judge erred in declining to construe condition in the absence of council's submissions and in finding consent not breached. Remedies- Declarations- whether utility in making declaration- matter does not arise until uncertain future event- no certainty that all parties affected by declaration are parties to the appeal- deficient form- failure to identify event or time from which public road access to appellants' lot was required- no declaration made.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 102, 121B

CATEGORY: Principal judgment

Curtis v Sheffield (1882) 21 Ch D 1 CASES CITED: Re Tooth & Co Ltd (1978) 19 ALR 191 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

Alan Rich and Evelyn Rich (Appellants) PARTIES: Lennox Palms Estate Pty Ltd (First Respondent) Ballina Shire Council (Second Respondent)

FILE NUMBER(S): CA 2010/2893

D P Wilson (Appellants) COUNSEL: J Griffiths SC and N C T Bilinsky (First Respondent) Second Respondent Submitted

McCartney Young Lawyers (Appellants) SOLICITORS: Stafford Lawyers (First Respondent) Clarissa Huegill & Associates (Second Respondent)