Hillpalm Pty Ltd v Heaven's Door Pty Ltd

The High Court of Australia heard an appeal concerning a dispute over a proposed right of way between Hillpalm Pty Ltd (appellant) and Heaven's Door Pty Ltd (respondent). The core of the disagreement involved whether the appellant, as the registered proprietor of land, was obligated to grant a registered easement for a right of carriageway, which had been depicted on a proposed plan of subdivision but was not registered on the appellant's title. The respondent contended that the creation of this easement was a condition of the subdivision approval and that the appellant should be compelled to grant it.

The legal issues before the court were whether the Tweed Heads Shire Council's approval of the subdivision, which included a condition for a constructed right of carriageway, created a registrable easement that bound subsequent registered proprietors, notwithstanding the absence of such an easement on the title. Specifically, the court had to consider the effect of the *Real Property Act 1900* (NSW) and its provisions regarding indefeasibility of title in light of the council's consent and the *Environmental Planning and Assessment Act 1979* (NSW), particularly whether the Land and Environment Court had the power to order the creation of such an easement.

The High Court allowed the appeal, finding that the appellant, as a registered proprietor under the Torrens system, took its title free of any unregistered easement or obligation to create one. The court reasoned that the *Real Property Act 1900* (NSW) prioritises registered interests, and the proposed right of way, not being registered, did not bind the appellant. Furthermore, the court determined that the *Environmental Planning and Assessment Act 1979* (NSW), specifically section 123, did not empower the Land and Environment Court to order the creation of an easement in favour of a party who had not suffered a breach of the Act, and that the council's approval of the subdivision did not, in itself, create a registrable interest that could override the principles of indefeasibility of title.

Consequently, the High Court allowed the appeal with costs, setting aside the orders of the New South Wales Court of Appeal and the Land and Environment Court. The application by the respondent was dismissed with costs.