DOE v COGENTE PTY LTD AND ORS [1997] NSWCA 90

DOE v COGENTE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA 20 November 1997

[1997] NSWCA 90

Cole JA There is before me on thc callover, matter number 40568/97. Associated with that appeal are two further appeals, numbers 40198/97 and 40733/97. I understand that last week an application was made that the three appeals be heard together and that the three appeals be expedited. That matter came before Powell J and his Honour has reserved his consideration of that matter.

I am informed by the Registrar that Powell J has indicated that he is content if I deal with the application for the three matters to be heard together and the application that they be expedited.

The three appeals arise out of one set of circumstances. In essence there are a number of properties which have a right of way over an adjoining property. One of the parties sought to develop the adjoining property which is subject to the burden of the right of way. A number of persons having the benefit of that right of way objected to that development.

That led to litigation in the Land & Environment Court and to two pieces of litigation in the Equity Division. It was a condition of development consent that there be a s88E instrument to accommodate the capacity of either council or the developer to attend and service a piping structure which was desired to be put under the land which is subject to the right of way. It has been contended, apparently, that the s88E instrument, which was so provided, was not a proper s88E instrument but there is a decision of the Equity Division contrary to that contention.

An injunction was sought, apparently to restrain the development proceeding over the right of way, but there is a decision of the Equity Court rejecting that application.

There is also a contention that the condition of the development consent that there be a valid s88E instrument has not been satisfied and thus the consent is at risk, but there is a decision contrary to that contention.