Hillpalm Pty Ltd v Heaven's Door Pty Ltd

Hillpalm Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning the creation of an easement. The dispute arose from a subdivision of land, where the respondent, Heaven's Door Pty Ltd, sought to establish an easement over land owned by the appellant to provide access. The Land and Environment Court had found in favour of Heaven's Door Pty Ltd, ordering the creation of the easement.

The primary legal issue before the Court of Appeal was whether the Land and Environment Court had the power to create an easement over land that was not part of the subdivision under section 88B of the *Conveyancing Act 1919* (NSW). Specifically, the court had to consider the scope of the Registrar-General's power to create easements under this section and whether the Land and Environment Court could direct the Registrar-General to create an easement over land outside the subdivided parcel.

The Court of Appeal, in dismissing the appeal, reasoned that section 88B of the *Conveyancing Act 1919* permits the creation of easements over land that is not part of the deposited plan of subdivision, provided that the easement is appurtenant to or for the benefit of land that is part of the subdivision. The court held that the Land and Environment Court had correctly interpreted the legislation and had the power to direct the creation of such an easement as part of the subdivision process. The court affirmed that the intention of section 88B was to facilitate the creation of necessary easements for the proper development and use of subdivided land, even if those easements burdened land outside the subdivision itself.

The appeal was dismissed with costs.