Hillpalm v Heaven's Door [2001] NSWCA 242

Hillpalm v Heaven's Door [2001] NSWCA 242

The Court stayed Sheahan J's orders requiring creation of the right of carriageway and construction of the track because the pending appeal could be rendered practically burdensome if the appellant had to register an easement or undertake works before determination, while conditional delivery of a key would allow limited foot access without permanent alteration or damage.

Jurisdiction
Australia
Judgment Date
23 July 2001
Procedural Posture
Appeal; Motion for Stay of Orders Pending Appeal / Interlocutory Application in the Court of Appeal
Outcome
Stay of orders granted on condition; appeal expedited; costs of the motion to be costs in the appeal.
Legal Topics
['development Consent Condition' 'right of Carriageway' 'construction of Access Track' 'stay Pending Appeal' 'expedition of Appeal']
['land and Environment' 'planning and Development' 'appellate Procedure'] ['development Consent Condition' 'right of Carriageway' 'construction of Access Track' 'stay Pending Appeal' 'expedition of Appeal']

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Procedural Posture

Appeal; Motion for Stay of Orders Pending Appeal / Interlocutory Application in the Court of Appeal

Legal Issues

  1. 1 ['Whether orders enforcing a development consent condition requiring creation of a right of carriageway and construction of an access track should be stayed pending appeal.' "Whether any interim access should be allowed to Heaven's Door Pty Ltd while the appeal is pending."]

Ratio Decidendi

The Court stayed Sheahan J's orders requiring creation of the right of carriageway and construction of the track because the pending appeal could be rendered practically burdensome if the appellant had to register an easement or undertake works before determination, while conditional delivery of a key would allow limited foot access without permanent alteration or damage.

Court Disposition

Stay of orders granted on condition; appeal expedited; costs of the motion to be costs in the appeal.

Orders

  • ['Orders 2 and 3 made by Sheahan J on 7 June were stayed pending the hearing and determination of the appeal or until further order of the Court, on condition that the appellant by its servants and agents deliver or cause to be delivered a key to the padlock on the gate across the constructed vehicular access at the...