Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW)

Pennant Hills Golf Club Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision concerning the compulsory acquisition of land by the Roads and Traffic Authority (NSW) (the respondent). The dispute arose from the respondent's acquisition of a stratum of the appellant's land to enable the construction and maintenance of rock anchors. The appellant contended that the acquisition comprised more than just an easement or a right to use the land for specific purposes under section 62(1) of the *Land Acquisition (Just Terms) Compensation Act 1991* (NSW).

The central legal issue before the Court of Appeal was the proper construction of section 62(1) of the *Land Acquisition (Just Terms) Compensation Act 1991* (NSW) and, consequently, the nature of the interest in land acquired by the respondent. Specifically, the court had to determine whether the respondent's acquisition consisted solely of an easement or a right to use the land for the construction and maintenance of rock anchors, or whether it encompassed a broader proprietary interest that wholly deprived the appellant of its property rights in that stratum. This involved considering whether the right to have the soil remain undisturbed constituted a separate proprietary right from the right to construct and maintain the rock anchors, and whether the rights granted amounted to a *profit à prendre* or a covenant.

The Court of Appeal reasoned that the acquisition under section 62(1) was limited to the rights necessary for the construction and maintenance of the rock anchors, which constituted an easement. The court held that the right to have the soil remain undisturbed was inherent in the nature of an easement for the purpose of constructing and maintaining the anchors, and did not represent a separate proprietary interest that would wholly deprive the appellant of its rights. The court found that the grant did not amount to a *profit à prendre* or a covenant, but rather a specific and limited interest in land for the stated purpose.

The appeal was dismissed with costs.