Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd

(2018) 98 NSWLR 439; [2018] NSWCA 240

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Impersonal nature of consent
4. › Whether successor in title may rely on development consent obtained by predecessor
5. › Whether owner's personal consent required
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(a), 76A(1)(b)
1. Environment and Planning
2. › Erection of buildings
3. › Definition of 'building'
4. › Whether roadway following natural lie of land is a 'building'
5. › Whether construction certificate required
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 4, 81A(2)
1. Land Law
2. › Easements
3. › Section 88B instruments
4. › Right of access
5. › Construction of statutory short form meaning
6. › Whether right of access includes right to construct trafficable surface
7. › Whether 'pass across' requires passage from one boundary to another
8. › Conveyancing Act 1919 (NSW), ss 88B, 181A, Sch 8 Pt 14
1. Statutory Interpretation
2. › Contextual construction
3. › Definition using 'includes'
4. › Use of dictionaries
5. › Purposive construction
6. › Words and phrases — 'building' — 'erection' — 'structure' — 'pass over'

Quick Take

A roadway following the natural lie of the land is not a 'building' requiring a construction certificate under s 81A(2) of the Environmental Planning and Assessment Act 1979 (NSW), and a 'right of access' easement under Sch 8, Pt 14 of the Conveyancing Act 1919 (NSW) includes the right to construct trafficable surfaces and does not require passage from one boundary of the burdened lot to another.