JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre v Registrar-General of New South Wales; Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre [2024] NSWCA 255

JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre v Registrar-General of New South Wales; Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre [2024] NSWCA 255

The relevant memorandum of transfer creating the easement was an 'agreement, covenant or other similar instrument' within cl 1.9A of the Liverpool LEP; the easement restricted the carrying out of development, permitting the Council to suspend the operation of the easement upon granting development consent. Therefore, there was no diminution in value of Lot 4 by reason of the easement and only legal costs associated with rectification were compensable. The appeal and cross-appeal were both dismissed with costs.

Parties
Appellant/cross Respondent: JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre; Respondent/cross Appellant: Registrar-General of New South Wales
Jurisdiction
Australia
Judgment Date
30 October 2024
Procedural Posture
Appeal and Cross Appeal / Court of Appeal; Post Trial Judgment
Outcome
Appeal and cross-appeal dismissed, both with costs.
Legal Topics
Torrens Title, Exceptions to Indefeasibility, Omitted Easements, Compensation for Omission, Diminution in Value, Environmental Planning Instruments, Easement as "agreement, Covenant or Other Similar Instrument"
Land Law Torrens Title Exceptions to Indefeasibility Omitted Easements Compensation for Omission Diminution in Value Environmental Planning Instruments Easement as "agreement, Covenant or Other Similar Instrument"

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Parties

JEA Holdings (Aust) Pty Ltd t/as Miller Shopping Centre

Appellant/cross Respondent

Registrar-General of New South Wales

Respondent/cross Appellant

Procedural Posture

Appeal and Cross Appeal / Court of Appeal; Post Trial Judgment

Legal Issues

  1. 1 Whether the omission of the easement resulted in diminution in value under the Real Property Act 1900 (NSW)
  2. 2 Whether the easement is an 'agreement, covenant or other similar instrument' under cl 1.9A of the Liverpool Local Environment Plan 2008 (NSW)
  3. 3 Whether the registration of the easement restricted the development of Lot 4

Ratio Decidendi

The relevant memorandum of transfer creating the easement was an 'agreement, covenant or other similar instrument' within cl 1.9A of the Liverpool LEP; the easement restricted the carrying out of development, permitting the Council to suspend the operation of the easement upon granting development consent. Therefore, there was no diminution in value of Lot 4 by reason of the easement and only legal costs associated with rectification were compensable. The appeal and cross-appeal were both dismissed with costs.

Court Disposition

Appeal and cross-appeal dismissed, both with costs.

Orders

  • The appeal is dismissed with costs.
  • The cross appeal is dismissed with costs.