Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37

Land and Environment Court New South Wales

Medium Neutral Citation: Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 Hearing dates: 12, 13, 14, 15, 16 and 20 December 2016 Decision date: 29 March 2017 Jurisdiction: Class 4 Before: Moore J Decision: See directions at [204] and [205] Catchwords: EASEMENT – application pursuant to s 88K of the Conveyancing Act 1919 for imposition of an easement – easement sought for the purpose of creating an asset protection zone for bushfire protection – tests in s 88K(1) and (2) considered – tests satisfied – easement ordered EASEMENT – calculation of area for easement – whether whole easement required in perpetuity – valuation of easement – basis of and amount for easement determined CROSS-CLAIM – road constructed by owner of land on land adjoining not owned by it for the purported satisfaction of condition of development consent – whether construction authorised or was construction a trespass – construction not authorised and therefore a trespass – ordinary damages to await outcome of related Land and Environment Court proceedings – modest exemplary damages warranted and awarded – issues of injunctive relief also to await outcome of related Land and Environment Court proceedings – cross-claim adjourned DEVELOPMENT CONSENTS – 2006 development commenced – status of 2006 development consent in light of different 2013 consent that is partially incompatible and which has been implemented – 2006 consent remains on foot – 2006 consent provides for mandated route to adjacent hospital – 2013 consent mandates such access by different route – 2013 consent holder causes road to be conducted along route in 2006 consent – no legal basis to do so – construction also not authorised by Right of Access in favour of 2013 consent holder – discretionary relief matters stood over to further hearing Legislation Cited: Conveyancing Act 1919, s 88K Environmental Planning and Assessment Act 1979, ss 79BA, 79C and 124 Wyong Local Environmental Plan 2013, Land Use Table Cases Cited: ABI-K Pty Limited v Frank Shi [2014] NSWSC 551 City of Canterbury v Saad [2013] NSWCA 251 Khattar v Weise [2005] NSWSC 1014 Project Blue Sky v Australian Broadcasting Authority 194 CLR 355; 72 ALJR 841; 153 ALR 490; [1998] HCA 28 Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2 Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15,845 Whitfeld v De Lauret and Company (1920) 29 CLR 71; [1920] HCA 75 Category: Principal judgment Parties: Louisiana Properties Pty Ltd (Applicant in Matter No 322081 of 2016 and Respondent and Cross-claimant in Matter No 261922 of 2016 ) Hakea Holdings Pty Ltd (First Respondent in Matter No 322081 of 2016 and Applicant and Cross-defendant in Matter No 261922 of 2016) Caverstock Group Pty Limited (Second Respondent in Matter No 322081 of 2016) Central Coast Council (Third Respondent in Matter No 322081 of 2016 – submitting appearance) Representation: Counsel: Mr C Ireland, barrister (Louisiana Properties Pty Ltd) Mr T Hale SC and Mr J Tobin, barrister (Hakea Holdings Pty Ltd) Mr A Carney, solicitor (Caverstock Group Pty Limited)