Hillpalm v Heaven's Door

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Hillpalm v Heaven's Door [2001]  NSWCA 242

FILE NUMBER(S):
40479/01

HEARING DATE(S):            23 July 2001

JUDGMENT DATE: 23/07/2001

PARTIES:
Hillpalm Pty Ltd
v
Heaven's Door Pty Ltd

JUDGMENT OF:      Handley JA     

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S):        LEC 40066/01

LOWER COURT JUDICIAL OFFICER:     Sheahan J

COUNSEL:
Claimant:  D M Wilson
Opponent:  J A Ayling

SOLICITORS:
Claimant: Bolster & Co, Tweed Heads
Opponent: Woolf Associates, Sydney

CATCHWORDS:
LAND AND ENVIRONMENT COURT - development consent - enforcement of condition for granting of easement and construction of access - stay of orders pending appeal - no question of principle

LEGISLATION CITED:

DECISION:
Stay of proceedings on orders - orders made

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40479/01
LEC 40066/01

HANDLEY JA

23 July 2001

HILLPALM PTY LTD  v  HEAVEN’S DOOR PTY LTD

JUDGMENT

1. HIS HONOUR:      In this matter Mr Wilson moves on behalf of the appellant for a stay of the orders made by Sheahan J in the Land and Environment Court on 7 June this year.

2. Sheahan J heard and determined proceedings in Class 4 of the Court's jurisdiction brought by Heaven's Door Pty Ltd, the owner of land described as Lot 1, Deposited Plan 601049, which is to the east of a large area of land owned by the appellant, Hillpalm Pty Ltd.

3. The proceedings before Sheahan J arose out of a condition imposed by the Tweed Shire Council on the grant of development consent on 22 December 1977 to a predecessor in title of the appellant.  The consent was for a subdivision of land it owned to the west and to the north of the land owned by Heaven's Door Pty Ltd.  The condition, which was Condition (a) of the consent, was that the developer should within one month create a 10 metre wide right of carriageway as shown on Deposited Plan 601049 by registering that plan on the title to its land and should construct a track at least 2.5 metres wide within that right-of-way.

4. No such right-of-way has been created on the title of what has now become the land of Hillpalm Pty Ltd, although it seems that some work was done on the surface in and about the site of that right-of-way to facilitate vehicular access.

5. The proceedings before Sheahan J occupied two days and he reserved for approximately three months.  The Judge upheld the validity of the condition and made orders for its enforcement.  The appellant was ordered to create the right of carriageway within one month and was ordered to construct a track at least 2.5 metres wide within the right of carriageway within three months.

6. The unsuccessful respondent has appealed to this Court but at the moment the only notice of appeal is one without appointment.  The transcript of the proceedings has recently become available to the appellant's solicitors and there is now no reason why the appeal should not be prosecuted expeditiously.

7. Meanwhile Heaven's Door…