Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59

HIGH COURT OF AUSTRALIA

McHUGH ACJ, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

HILLPALM PTY LIMITED APPELLANT

AND

HEAVEN'S DOOR PTY LIMITED RESPONDENT

Hillpalm Pty Ltd v Heaven's Door Pty Ltd

[2004] HCA 59

1 December 2004

S530/2003

ORDER

1. Appeal allowed with costs.

2. Orders of the New South Wales Court of Appeal made on 3 October 2002 set aside and in their place order:

(i) Appeal allowed with costs.

(ii) Paragraphs 1 to 5 of the orders of the New South Wales Land and Environment Court made on 7 June 2001 set aside and in their place order that the application is dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with P R McGuire for the appellant (instructed by Bolster & Co)

T F Robertson SC with L M Byrne for the respondent (instructed by Woolf Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hillpalm Pty Ltd v Heaven's Door Pty Ltd

Real Property – Easements – Subdivision of land – Adjoining lots on a subdivision – Proposed plan of subdivision depicted "proposed right of way 10 wide" across one lot – Council approved subdivision – Whether creation of easement was a condition of the grant of approval of the subdivision – Easement not registered under the Real Property Act 1900 (NSW) – Whether appellant required to grant registered easement of right of way.

Real Property – Land titles under the Torrens system – Exceptions to indefeasibility of registered title – Whether Council's consent to the subdivision created a right in rem that could be relied upon by the respondent to require the appellant to grant a registered easement of way – Whether such a right consistent with s 42(1) of the Real Property Act 1900 (NSW).

Local Government – Town planning – Whether the creation of a right of way was a "condition" of a "development consent" under s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPAA") – Whether purchase and occupation of land was to "carry out development" of the subdivision and therefore a breach of s 76A(1) of the EPAA – Whether s 123 of the EPAA empowers the making of orders to remedy or restrain a breach of the EPAA to a person who had not committed any breach of the EPAA.