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.

Courts – Land and Environment Court – Powers of Court – Orders to remedy or restrain breaches of the EPAA.

Words and Phrases – "carry out development", "condition", "development consent".

Conveyancing Act 1919 (NSW) – s 88B.

Conveyancing Act Regulations (NSW) – reg 52A.

Environmental Planning and Assessment Act 1979 (NSW) – ss 4, 76A(1), 123.

Local Government Act 1919 (NSW) – Div 7 Pt XIIA, Div 7 Pt XII, ss 327(2), 342V(1A), 342U(2).

Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW).

Real Property Act 1900 (NSW) – ss 42(1), 96D.