Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240

The appeal was allowed. Hakea could rely on the Louisiana development consent, which attached to and benefited the land, authorising construction of the road. The right of access under the s 88B instrument authorised construction of the road. The road was not a 'building' for the purposes of s 81A(2) of the Environmental Planning and Assessment Act 1979 (NSW), so no construction certificate was required. The evidence did not establish a breach of s 76A(1)(b), as the relevant findings were either not pleaded or based on inadmissible evidence. There was no trespass. Orders for damages and remediation were set aside and Louisiana's proceedings dismissed.

Parties
First Appellant: Hakea Holdings Pty Ltd; Second Appellant: Caverstock Group Pty Ltd; First Respondent: Louisiana Properties Pty Ltd; Second Respondent: Central Coast Council
Jurisdiction
Australia
Judgment Date
24 October 2018
Procedural Posture
Appeal / Judgment on Appeal From Land and Environment Court
Outcome
Appeal allowed; primary orders set aside; proceedings below dismissed; costs awarded to appellants.
Legal Topics
Development Consent, Trespass, Easements, Statutory Interpretation, Construction Certificate, Damages
Environment and Planning Land Law Development Consent Trespass Easements Statutory Interpretation Construction Certificate Damages

Case Brief

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Parties

Hakea Holdings Pty Ltd

First Appellant

Caverstock Group Pty Ltd

Second Appellant

Louisiana Properties Pty Ltd

First Respondent

Central Coast Council

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From Land and Environment Court

Legal Issues

  1. 1 Whether the construction of a road breached Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)(a) by being carried out without development consent
  2. 2 Whether the construction breached Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)(b), by not being in accordance with a development consent
  3. 3 Whether the construction breached Environmental Planning and Assessment Act 1979 (NSW), s 81A(2) due to the erection of a 'building' without a construction certificate

Ratio Decidendi

The appeal was allowed. Hakea could rely on the Louisiana development consent, which attached to and benefited the land, authorising construction of the road. The right of access under the s 88B instrument authorised construction of the road. The road was not a 'building' for the purposes of s 81A(2) of the Environmental Planning and Assessment Act 1979 (NSW), so no construction certificate was required. The evidence did not establish a breach of s 76A(1)(b), as the relevant findings were either not pleaded or based on inadmissible evidence. There was no trespass. Orders for damages and remediation were set aside and Louisiana's proceedings dismissed.

Court Disposition

Appeal allowed; primary orders set aside; proceedings below dismissed; costs awarded to appellants.

Orders

  • Grant Louisiana Properties Pty Ltd leave to file and rely upon the Notice of Contention attached to the Notice of Motion dated 5 June 2018.
  • Refuse Louisiana's application for leave to file and rely upon the Notice of Cross-Appeal attached to its written submissions dated 26 June 2018.