Bankstown Trotting Recreational Club Ltd v Chisholm [2016] NSWCA 274

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bankstown Trotting Recreational Club Ltd v Chisholm [2016] NSWCA 274 Hearing dates: 31 March, 1 April 2016 Decision date: 05 October 2016 Before: Bathurst CJ at [1]; Beazley P at [2]; Sackville AJA at [130] Decision: (1) Appeal dismissed;

(2) The appellant to pay the first, second and third respondents' costs of the appeal. Catchwords: REAL PROPERTY – leasehold – implied covenants & principle of non-derogation of grant – lease granted by local council as registered proprietor of land – local council subsequently approved subdivision and creation of easement burdening leased land – whether landlord local council had derogated from the rights granted under the lease

ENVIRONMENT AND PLANNING – suspension of laws and regulatory instruments by environmental planning instruments and development consents – Environmental Planning and Assessment Act 1979 (NSW), s 28 – local environment plan providing for non-application of covenants, agreements or similar instruments purporting to restrict or prohibit the carrying out of development – development consent imposing requirement for "onsite" parking – whether lease conferring entitlement to exclusive possession constitutes covenant or agreement purporting to restrict or prohibit the carrying out of development

CONTRACT – licence agreement for use of certain land for car parking – obligation of licencee to pay annual licence fee – provision for "a fair and reasonable sum considering all relevant circumstances" to be determined by agreement or arbitration – agreement by parties for determination to be made by primary judge – whether error demonstrated in treatment of expert evidence