New South Wales Court of Appeal CITATION : Hillpalm v Heaven's Door [2001] NSWCA 242 FILE NUMBER(S) : CA 40479/01 HEARING DATE(S) : 23 July 2001 JUDGMENT DATE : 23 July 2001 Hillpalm Pty Ltd PARTIES : v Heaven's Door Pty Ltd JUDGMENT OF : Handley JA at 1 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40066/01 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER : COUNSEL : Claimant: D M Wilson Opponent: J A Ayling SOLICITORS : Claimant: Bolster & Co, Tweed Heads Opponent: Woolf Associates, Sydney CATCHWORDS : LAND AND ENVIRONMENT COURT - development consent - enforcement of condition for granting of easement and construction of access - stay of orders pending appeal - no question of principle CASES CITED: N/a DECISION : Stay of proceedings on orders - orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40479/01 LEC 40066/01 HANDLEY JA 23 July 2001 HILLPALM PTY LTD v HEAVEN'S DOOR PTY LTD JUDGMENT 1 HIS HONOUR: In this matter Mr Wilson moves on behalf of the appellant for a stay of the orders made by Sheahan J in the Land and Environment Court on 7 June this year. 2 Sheahan J heard and determined proceedings in Class 4 of the Court's jurisdiction brought by Heaven's Door Pty Ltd, the owner of land described as Lot 1, Deposited Plan 601049, which is to the east of a large area of land owned by the appellant, Hillpalm Pty Ltd. 3 The proceedings before Sheahan J arose out of a condition imposed by the Tweed Shire Council on the grant of development consent on 22 December 1977 to a predecessor in title of the appellant. The consent was for a subdivision of land it owned to the west and to the north of the land owned by Heaven's Door Pty Ltd. The condition, which was Condition (a) of the consent, was that the developer should within one month create a 10 metre wide right of carriageway as shown on Deposited Plan 601049 by registering that plan on the title to its land and should construct a track at least 2.5 metres wide within that right-of-way. 4 No such right-of-way has been created on the title of what has now become the land of Hillpalm Pty Ltd, although it seems that some work was done on the surface in and about the site of that right-of-way to facilitate vehicular access. 5 The proceedings before Sheahan J occupied two days and he reserved for approximately three months. The Judge upheld the validity of the condition and made orders for its enforcement. The appellant was ordered to create the right of carriageway within one month and was ordered to construct a track at least 2.5 metres wide within the right of carriageway within three months. 6 The unsuccessful respondent has appealed to this Court but at the moment the only notice of appeal is one without appointment. The transcript of the proceedings has recently become available to the appellant's solicitors and there is now no reason why the appeal should not be prosecuted expeditiously. 7 Meanwhile Heaven's Door Pty Ltd, which obtained a development consent early this year for the subdivision of its land, finds itself as a respondent to Class 4 proceedings brought by the present appellant, which challenges the validity of that development consent. 8 The opponent cannot proceed with its subdivision until the pending Class 4 proceedings are disposed of. I am informed that no date for hearing has yet been fixed and clearly it will be some months before the case can be heard and determined in the Land and Environment Court. In the circumstances some relief should be given to the appellant by way of a stay of the orders made by Sheahan J. 9 If the present appeal were to succeed, the successful appellant should not be embarrassed by having to seek to have a registered easement removed from its title, nor should it be faced with a waste of the money spent on upgrading the present road and constructing it within the registered right-of-way as required by the second of Sheahan J's orders. 10 I propose, therefore, to order a stay of proceedings on the orders of Sheahan J. However, the opponent, the successful party below, wishes to enjoy access to its land along the site of the proposed right-of-way while the appeal is pending. 11 The appellant has constructed a gate across the access road which is padlocked and the access road has been obstructed by a large boulder and by a fallen tree. It would not be appropriate for the Court to order the removal of these physical obstructions, or to permit the successful party itself to remove them, for the purpose of obtaining vehicular access while the appeal is pending. However, I see no reason why the successful party should not be entitled in the meantime to enjoy access to its land by foot along the site of the carriageway. Such access will not cause any permanent alteration to the position of the parties and will not cause any damage or injury to the appellant. 12 Accordingly, I propose to order that orders 2 and 3 made by Sheahan J on 7 June be stayed pending the hearing and determination of this appeal or until the further order of this Court on condition that the appellant by its servants and agents deliver or cause to be delivered a key to the padlock on the gate across the constructed vehicular access at the start of the proposed right of way either to Messrs Woolf Associates at Level 10, 82 Elizabeth Street, Sydney or to Mr John Donald Weller at his home or his professional rooms in Byron Bay in either case on or before 5pm on Friday 27 July 2001. 13 I order that the appeal be expedited but that a date for hearing not be fixed until it is known whether there is to be an appeal from the decision of the Land and Environment Court in the pending Class 4 proceedings which challenge the validity of the development consent granted to Heaven's Door Pty Ltd. 14 In the event of such an appeal being filed, the parties should take steps to have both appeals heard consecutively by the same bench, and for that purpose the second appeal should also be expedited. 15 I order that the costs of this motion be costs in the present appeal. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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