Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147

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 (No 2) [2017] NSWLEC 147 Hearing dates: 4 and 5 September 2017 Date of orders: 02 November 2017 Decision date: 02 November 2017 Jurisdiction: Class 4 Before: Moore J Decision: See directions at [203] Catchwords: EVIDENCE - objection to adducing of further evidence - objection said to be based on conclusions in earlier decision in these proceedings - proper understanding of earlier decision did not exclude possibility for further evidence - consent directions for further evidence - late objection to evidence - further evidence permitted DECLARATIONS - road constructed by owner of land on land adjoining not owned by it for the purported satisfaction of condition of development consent - no consent from owner of the land for construction of the road - no separate development consent for construction of road - no ability to rely on development consent granted to owner of the land - breach of s 76A(1)(a) of the Act - both owner of adjoining land and constructor of the road aware that breach would occur - appropriate to make declaration against each DECLARATIONS - if there was the ability to rely on development consent granted to owner of the land upon which the road was constructed, a construction certificate was required and had not been obtained - breach of s 81A(2) of the Act - further, if there was the ability to rely on development consent granted to owner of the land, the terms of condition (16) of the development had not been complied with - breach of s 76A(1)(b) of the Act - in addition, if there was the ability to rely on development consent granted to owner of the land, the road had not been constructed at the location approved in development consent granted to owner of the land - a separate breach of s 76A(1)(b) of the Act - further declarations available but unnecessary DISCRETION - consideration of relevant principles on exercising discretion - owner of land upon which road is constructed wishes removal of road - road not fit for purpose - road would be impediment to carrying out of landowner's approved development - order for removal of road at joint cost to adjoining landowner and road construction company Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4(1), 76A(1)(a) and (b), 81A(2), 109, 109D(1)(a), 123 and 124 Roads Act 1993, s 3 Cases Cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 344; [1999] HCA 9 Bowyer v Manly Council (1997) NSWLEC (unreported) Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 O'Brien v Shire of Rosedale (1968) 22 LGRA 262 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 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 J Denina, solicitor (Caverstock Group Pty Limited)