Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd

The case of Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd was heard in the Court of Appeal of New South Wales. The dispute involved Hakea Holdings Pty Ltd and Caverstock Group Pty Ltd (the appellants) who had constructed a road on land owned by Louisiana Properties Pty Ltd (Louisiana). Louisiana sought relief for trespass and breaches of the Environmental Planning and Assessment Act 1979 (NSW), alleging the road was constructed without development consent and otherwise than in accordance with any consent, and that entry onto the land for construction was not authorised by a general right of access.

The Court of Appeal was required to determine several legal issues. These included whether the constructed roadway constituted a "building" or the "erection" of a building under the Environmental Planning and Assessment Act 1979 (NSW), and consequently whether a construction certificate was required. The court also had to consider whether a right of access described in a section 88B instrument extended to the construction of a trafficable surface, and if the instrument's express terms varied the statutory short form meaning of "right of access". Finally, the court had to assess whether the construction of the road constituted a trespass.

The Court of Appeal reasoned that a roadway following the natural lie of the land was not a "building" for the purposes of the Act. It further held that the description of the "right of access" in the section 88B instrument did not grant a right to construct a trafficable surface, and that the express terms of the instrument did not vary the statutory short form meaning of "right of access". The court found that the construction of the road was a trespass. Consequently, the appeal by Hakea Holdings Pty Ltd and Caverstock Group Pty Ltd was allowed, with the previous orders set aside and the proceedings dismissed. The appeal by Hakea Holdings Pty Ltd concerning an award of damages on Louisiana's cross-claim was also allowed, with the order for exemplary damages set aside and the cross-summons dismissed. Louisiana was ordered to pay the appellants' costs.