appellant. Appeal allowed with costs. Orders of the New South Wales Court of Appeal made on 3 October 2002 set aside and in their place order that the appeal to that Court be allowed with costs and that...
Key principles
The notation 'proposed right of way 10 wide' on a deposited plan registered in 1979 did no more than illustrate the site of an easement intended to be created later by an...
A subsequent purchaser and occupier of a subdivided lot does not 'carry out development' consisting of the subdivision of land by the act of purchase and occupation, and...
Section 123 of the Environmental Planning and Assessment Act 1979 (NSW) empowers the Land and Environment Court to make orders only to remedy or restrain a breach of that Act by...
A development consent under former planning instruments preserved by the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW) does not create a right in rem capable...
Issues before the court
Whether a condition requiring provision of a constructed right of carriageway imposed in 1977-1978 correspondence remained enforceable against a...
Plain English Summary
A neighbour tried to force a landowner to build and register a road across its property because an old 1979 subdivision plan showed a 'proposed right of way'. The High Court said no. The plan only flagged a future intention; it did not create a legal right. Buying and using the land years later is not the same as carrying out the original subdivision, so the landowner was not breaking planning laws. Court orders under s 123 of the planning Act can only be made against someone actually breaking the law. A clean Torrens title cannot be overridden by an unrecorded historical planning condition. The neighbour's claim failed and the earlier orders were overturned.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,528 words · generated 24/04/2026
What happened
In 1977 Winchcombe Carson Trustee Co (Canberra) Ltd owned a large parcel of land near Tweed Heads used for banana growing. Surveyors applied to the Tweed Shire Council for permission to subdivide the land to create rural lots. Council correspondence in December 1977 approved the creation of a 45-hectare lot (which became the respondent's land) "with right of way access to Clothiers Creek Road" subject to two conditions: provision of a constructed right of carriageway at least 2.5 metres wide with 150 mm of gravel, and submission of final plans and payment of fees ([19]).
Whether the notation of a 'proposed right of way 10 wide' on the registered plan created a right in rem enforceable against the appellant's...
Cited legislation
18 cited instruments linked from this judgment.
Further correspondence in April and May 1978 varied the physical location of access. The surveyor proposed using an existing track for immediate physical access while the formal right of carriageway followed the route of a proposed new road. Council replied that this arrangement was acceptable provided the rural/residential estate proceeded, but required Winchcombe Carson to "declare by statutory document as a condition of subdivision" that a right of carriageway over the existing track would be created if new roads were not dedicated within two years ([21]).
In November 1978 Council wrote that it would grant final approval even though the earlier conditions had not been met. It stated it would take no responsibility for the existing track being outside the right of way. The plan of subdivision, certified by the Shire Clerk as complying with the requirements of the Local Government Act 1919 (NSW) other than registration, was lodged and registered as Deposited Plan 601049 in 1979. The plan bore the notation "proposed right of way 10 wide" across what later became the appellant's land ([22]-[23]).
Between 1979 and 1998 Lot 2 was further subdivided. The respondent purchased Lot 1 in January 1998. The appellant purchased its land (Lot 529 in Deposited Plan 1003396) in December 1998. It was common ground that the appellant's Computer Folio Certificate recorded no easement, estate or interest in favour of the respondent ([11]).
In the Land and Environment Court the respondent sought a declaration that the appellant was in breach of a condition of the 1977 development consent and orders requiring the appellant to register a 10-metre right of carriageway and construct a 2.5-metre-wide track within it. The primary judge granted the relief sought ([10]). The New South Wales Court of Appeal dismissed the appellant's appeal, with Meagher JA delivering the principal judgment, Handley JA concurring and Hodgson JA adding further reasons ([46]).
By special leave the appellant appealed to the High Court. The Court (McHugh ACJ, Hayne and Heydon JJ, with Kirby and Callinan JJ dissenting) allowed the appeal with costs, set aside the Court of Appeal orders and substituted orders allowing the appeal to that Court and dismissing the Land and Environment Court application with costs ([57]).
Why the court decided this way
The joint judgment of McHugh ACJ, Hayne and Heydon JJ rested on three interlocking propositions grounded in the text of the governing statutes.
First, the notation "proposed right of way 10 wide" on Deposited Plan 601049 had a narrowly defined legal effect. Since 1964 s 88B of the Conveyancing Act 1919 (NSW) has regulated the creation of easements by plan. Regulations made under that Act (reg 52A) expressly permitted a plan to illustrate the site of an easement "intended to be created by an instrument of grant or reservation" provided the word "proposed" was used and no statement of intention appeared elsewhere on the plan. The regulation expressly provided that such illustration "shall not be taken for the purposes of the said section 88B to indicate in the prescribed manner an intention to create an easement" ([25]). Registration of the 1979 plan therefore did not create any easement. At most it recorded Winchcombe Carson's intention to create one at some unspecified future time by separate instrument ([32]-[33]).
Second, the respondent's reliance on s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) failed because the appellant was not in breach of that Act. The respondent pointed to s 76A(1), which prohibits carrying out development except in accordance with a development consent. "Development" includes subdivision ([37]). The joint judgment held that the subdivision was completed in 1979 when the plan was registered. The appellant's later purchase and occupation of its lot did not constitute carrying out the development of subdivision. Therefore the appellant was not contravening s 76A(1) ([43]-[44]). Section 123 authorises orders "to remedy or restrain a breach" of the EPAA. An order directed to a person who is neither in breach nor threatening breach would neither remedy nor restrain any breach ([49]). The joint judgment rejected Hodgson JA's "objective contravention" analysis as obscuring the statutory requirement that the person against whom relief is sought must be the person in breach ([47]-[50]).
Third, the proposition that a development consent creates a right in rem enforceable by later transferees was inconsistent with the Torrens system. Section 42(1) of the Real Property Act 1900 (NSW) provides that the registered proprietor holds title "absolutely free from all other estates and interests that are not so recorded" except in cases of fraud or the four statutory exceptions. The joint judgment quoted Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 385-386 that the certificate of title is not historical or derivative; registration itself vests the title ([53]). If a development consent created an unregistered right in rem it would contradict s 42(1). The respondent accepted it had no current estate or interest recorded on the appellant's title. Any right it possessed was therefore personal, not in rem, and no statutory provision imposed a personal obligation on the appellant ([54]-[55]).
The joint judgment further held that the 1977-1978 correspondence did not impose a condition binding the appellant. Council had abandoned insistence on the original conditions when it sealed the plan in November 1978 without requiring further statutory declarations or construction ([30]). Even if the plan notation itself constituted a condition, it required only that an intention be stated, which was done. Nothing in the Local Government Act 1919 (NSW) or the EPAA obliged Winchcombe Carson or its successors to fulfil that intention within any particular time or at all ([33]-[35]).
Before and after state of the law
Before the decision, New South Wales planning law contained transitional provisions that preserved consents and conditions granted under the Local Government Act 1919 (NSW). Clause 7(1) of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW) provided that any consent granted under a former planning instrument continued in full force and effect subject to its terms and any conditions. Clause 9 of the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation (NSW) deemed such conditions to be conditions for the purposes of s 122(b)(iii) of the EPAA, thereby making breach of a condition a breach of the EPAA ([67]-[69]).
Lower courts had used language suggesting that planning restrictions "enur[e] for the benefit of all future owners or occupiers" (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434) or give rise to rights in rem (Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 at [199]). The Court of Appeal in the present case had adopted that language, stating that "the council's consent to the subdivision operates to create a right in rem, so that it may be relied on (inter alia) by all later transferees of any lot" ([51]).
After the decision the law is clearer. A development consent condition relating to subdivision does not survive as an enforceable obligation against a subsequent registered proprietor who is not carrying out the development of subdivision and whose title is not subject to any recorded interest. The EPAA does not create rights in rem that override Torrens indefeasibility. Section 123 is not a general remedial power allowing the Land and Environment Court to order any person able to fulfil a historic condition to do so irrespective of breach. The notation "proposed" on a plan retains its limited statutory meaning under reg 52A and does not itself impose ongoing obligations binding successors in title.
The joint judgment emphasised that analogies with real property concepts must yield to the text of the statutes. This has reinforced the primacy of the registered title under the Real Property Act 1900 (NSW) in cases where planning conditions are said to affect land many years after subdivision.
Key passages with plain-English translation
Paragraph [25]: "registration of the plan of subdivision of the Winchcombe Carson land as Deposited Plan 601049 did not create an easement over the 'proposed right of way 10 wide'. That plan, by describing the right of way as a 'proposed right of way 10 wide', did no more than 'illustrate the site of an easement intended to be created by an instrument of grant or reservation'."
Plain English: The words "proposed right of way" on the map are a technical signal that someone might create an easement later by a separate legal document. They do not create any legal right today.
Paragraph [43]: "Where, as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not 'carry that development out' by occupying, and thus using, one of the lots in the subdivision."
Plain English: Once the subdivision is finished and the plan is registered, later owners who simply live on or use their block are not doing the thing the planning law was regulating. They are not "carrying out" the subdivision again.
Paragraph [49]: "An order directed to a person who is not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach."
Plain English: The Land and Environment Court can only order someone to fix a planning breach if that person is the one breaking (or about to break) the law. You cannot order an innocent later owner to fix someone else's old breach.
Paragraph [52]: The full quotation of s 42(1) of the Real Property Act 1900 (NSW) ending with the words "absolutely free from all other estates and interests that are not so recorded".
Plain English: If it is not on the title certificate, it does not affect the owner. The law deliberately gives certainty by making the register the complete statement of who owns what.
Paragraph [53]: "It is the title which registration itself has vested in the proprietor." (quoting Barwick CJ in Breskvar v Wall).
Plain English: When the appellant became the registered owner it received a fresh title created by the act of registration, not a title carrying forward every historical planning condition that had never been recorded.
What fact patterns trigger this precedent
The precedent applies where:
a plan of subdivision registered before or after the EPAA contains the word "proposed" next to a right of way or similar notation;
the alleged condition arises from correspondence or a consent given under the Local Government Act 1919 (NSW) or an interim development order;
the person against whom relief is sought became registered proprietor after the subdivision was completed and its title contains no recording of the alleged easement or condition;
the relief sought under s 123 of the EPAA is a mandatory order requiring the creation and/or construction of an easement or works where the relevant development was the subdivision itself rather than an ongoing use of land;
no fraud or statutory exception to indefeasibility under s 42(1) of the Real Property Act 1900 (NSW) is engaged.
The precedent does not apply where the development in question is a use of land and the current owner is using the land in a manner that itself breaches a condition of an extant development consent. In such cases the current owner is carrying out development (use) and is therefore capable of being in breach of s 76A(1). Nor does the decision affect cases where an easement has in fact been created by instrument and registered, or where a recorded interest appears on the folio.
How later courts have treated it
The joint judgment treated Breskvar v Wall (1971) 126 CLR 376 as authoritative for the nature of Torrens title and applied the statement that registration vests a new title not a derivative one ([53]). It applied the principle from Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 that jurisdictional provisions should be given full amplitude but without reading in limitations not found in the text, while still confining s 123 to actual breaches ([48]).
The decision distinguished Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 to the extent that those cases used language of rights in rem or restrictions enuring for the benefit of future owners. Such language was said to be no substitute for examination of the statutory text when a novel question arises ([51]).
The joint judgment noted that the Court of Appeal's reasoning, which had accepted an "objective contravention" analysis and a right in rem arising from the consent, could not stand once the statutes were read according to their terms ([46]-[50]). Callinan J's separate reasons, although reaching a different outcome, accepted that the deposited plan formed part of the Register under the Real Property Act 1900 (NSW) but still required examination of whether s 123 could overcome the indefeasibility provision ([118]-[120]). The majority view prevailed.
Still-open questions
The joint judgment left open whether, had the original subdivider remained the owner, a condition requiring construction of a carriageway after subdivision could have been enforced under the EPAA transitional provisions. It also left open the precise content of the May 1978 variation and whether a "statutory document" was ever required after the two-year period expired ([21], [30]).
The decision assumes but does not decide that the Interim Development Order No 2 - Shire of Tweed was a "deemed environmental planning instrument" under the EPAA; the point was not contested ([39]). It did not decide whether the transitional provisions would have preserved a condition beyond a limited time had a condition been found to exist ([40]).
Questions remain about the interaction between s 123 orders and the power to impose conditions under s 124 of the EPAA, and the extent to which personal equities arising from notice of an historic condition might found relief in jurisdictions other than the Land and Environment Court. The joint judgment noted that rights in personam are consistent with Torrens title but found no statutory source for any personal right against the appellant ([55]).
Whether a different outcome would follow if the relevant development consent had been granted after the commencement of the EPAA, or if the condition had been expressly imposed on a use rather than on subdivision, is not addressed. The precise limits of the "reasonable time" concept for fulfilment of an intention stated on a plan were left undecided because the evidence did not permit any finding ([35]).
These open questions illustrate that the decision is narrowly grounded in the particular facts, the 1977-1979 legislative scheme, and the absence of any recorded interest on the appellant's title.
Catchwords
Hillpalm Pty Ltd v Heaven's Door Pty Ltd
Judgment (75 paragraphs)
[1]
The applicant for the initial subdivision was Winchcombe Carson Trustee Co (Canberra) Ltd ("Winchcombe Carson"), which owned the land of which the appellant's land and the respondent's land formed a part. See the reasons of McHugh ACJ, Hayne and Heydon JJ at [4], [5] and [19]. ↑
[2]
Section 3(1)(a) defines instrument in this way: "Any grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing relating to the disposition, devolution or acquisition of land or evidencing title thereto." ↑
[3]
At 230 b; see also Rufa Pty Ltd v Cross [1981] Qd R 365 at 371 per Kneipp J. ↑
[4]
Contrast s 176 of the Land Title Act 1994 (Q) which relevantly provides:
[5]
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach." ↑
[6]
[18]Winn v Director General of National Parks and Wildlife[2001] NSWCA 17 at [199] per Stein JA.
[22]Breskvar v Wall (1971) 126 CLR 376 at 385 per Barwick CJ.
[10]
[23] From the New South Wales Court of Appeal: Hillpalm Pty Ltd v Heaven's Door Pty Ltd[2002] NSWCA 301; (2002) 55 NSWLR 446.
[11]
[24]Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134 at 139 per Street J.
[12]
[25] Terms of the order of the Land and Environment Court, entered 7 June 2001, par 2. See Heavens Door Pty Ltd v Hillpalm Pty Ltd[2001] NSWLEC 116; (2001) 116 LGERA 138 at 157 [114].
[35] The equivalent provisions to Pt XIIA LGA are now found in Pt 4 EPAA. Those in Pt XII LGA are now found in Pt 4A EPAA.
[23]
[36] IDO, cl 11(1)(c): "... land shall not be sub-divided ... unless ... the frontage of any such allotment to a main road is not less than 400 metres".
[54] See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 422-423 [108].
[35]
[55] See Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 at 386-387.
[36]
[56]Knight v FP Special Assets Ltd[1992] HCA 28; (1992) 174 CLR 178 at 204; Ainsworth v Criminal Justice Commission[1992] HCA 10; (1992) 175 CLR 564 at 581-582; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-30.
[37]
[61] EPAA, s 4 (definition of "environmental planning instrument").
[38]
[62]Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA (Jacobs P and Manning JA concurring); Friends of Stradbroke Island Association Inc v Sandunes Pty Ltd (1998) 101 LGERA 161 at 169; House of Peace Pty Ltd v Bankstown City Council[2000] NSWCA 44; (2000) 48 NSWLR 498 at 504 [23], 507 [37].
[39]
[63]Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 at 215 per Lord Denning MR ("A grant of permission runs with the land and may come into the hands of people who have never seen the application at all"); see also at 223 per Upjohn LJ.
[66] See eg Sydney County Council (1985) 2 NSWLR 383 at 386-387; Mandalong Progress Association Inc (2003) 126 LGERA 408 at 418-419 [30]-[33].
[42]
[67] See Fox, "The Story behind the Torrens System", (1950) 23 Australian Law Journal 489.
[43]
[68] The applicable provisions of the RPA appear in the reasons of Callinan J at [117]-[120]. See also Whalan, "Immediate Success of Registration of Title to Land in Australasia and Early Failures in England", (1967) 2 New Zealand Universities Law Review 416 at 424.
[44]
[69] Cooper, "Equity and Unregistered Land Rights in Commonwealth Registration Systems", (2003) 3 Oxford University Commonwealth Law Journal 201; Agbosu, "Land Registration in Ghana: Past, Present and Future", (1990) 34 Journal of African Law 104.
[45]
[70] Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law, (2004); Esposito, "A Comparison of the Australian ('Torrens') System of Land Registration of 1858 and the Law of Hamburg in the 1850s", (2003) 7 Australian Journal of Legal History 193.
[46]
[71] Simpson, Land Law and Registration, (1976) at Ch 21.
[47]
[72]Breskvar v Wall (1971) 126 CLR 376 at 386. The passage is quoted in the joint reasons at [52].
[48]
[73] Radan, "Indefeasibility and Overriding Statutes", (2003) 41(6) Law Society Journal 66 at 67.
[49]
[74] Which in New South Wales must maintain a register of development consents that is open to public inspection. See EPAA, s 100; Environmental Planning and Assessment Regulation (NSW), Pt 16.
[77][1939] HCA 40; (1939) 62 CLR 603 at 627-628. See also at 621-622 per Starke J.
[53]
[78]Miller v Minister of Mines [1963] AC 484 at 498.
[54]
[79] See eg Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 at 361-364 per Rich AJ; Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98 at 103; Pratten (1969) 90 WN (Pt 1) (NSW) 134 at 140-142 per Street J; Quach v Marrickville Municipal Council [Nos 1 & 2] (1990) 22 NSWLR 55 at 70 per Young J.
[55]
[80] As stated in Breskvar (1971) 126 CLR 376 at 385-386. See eg O'Connor, "Public Rights and Overriding Statutes as Exceptions to Indefeasibility of Title", (1994) 19 Melbourne University Law Review 649.
[56]
[81]Trust Co of Australia Ltd v Commissioner of State Revenue[2003] HCA 23; (2003) 77 ALJR 1019 at 1029 [68]- [69]; [2003] HCA 23; 197 ALR 297 at 310-311.
[57]
[82]Goodwin v Phillips[1908] HCA 55; (1908) 7 CLR 1 at 7; Travinto Nominees Pty Ltd v Vlattas[1973] HCA 14; (1973) 129 CLR 1 at 33-34 per Gibbs J.
[58]
[83] See Minister for Immigration and Multicultural and Indigenous Affairs v B[2004] HCA 20; (2004) 78 ALJR 737 at 769 [176]; [2004] HCA 20; 206 ALR 130 at 174, citing Phillips v Lynch[1907] HCA 34; (1907) 5 CLR 12 at 28-29. See also Goodwin[1908] HCA 55; (1908) 7 CLR 1 at 7; Butler v Attorney-General (Vict)[1961] HCA 32; (1961) 106 CLR 268 at 276, 280, 290-291; Saraswati v The Queen[1991] HCA 21; (1991) 172 CLR 1 at 17-18, 23.
[59]
[84]P E Bakers Pty Ltd v Yehuda (1988) 66 LGRA 403 at 410; Hillpalm (2002) 55 NSWLR 446 at 449 [14].
[94] See the reasons of McHugh ACJ, Hayne and Heydon JJ at [18].
[69]
[95] The applicant for the initial subdivision was Winchcombe Carson Trustee Co (Canberra) Ltd ("Winchcombe Carson"), which owned the land of which the appellant's land and the respondent's land formed a part. See the reasons of McHugh ACJ, Hayne and Heydon JJ at [4], [5] and [19].
[70]
[96] Section 3(1)(a) defines instrument in this way: "Any grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing relating to the disposition, devolution or acquisition of land or evidencing title thereto."
[71]
[97] At 230 b; see also Rufa Pty Ltd v Cross [1981] Qd R 365 at 371 per Kneipp J.
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach."
Parties
Applicant/Plaintiff:
Hillpalm Pty Ltd
Respondent/Defendant:
Heaven's Door Pty Ltd
Legislation Cited (18)
Local Government Act 1919(NSW)
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979(NSW)
Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 at [199] per Stein JA. ↑
Miller v Minister of Mines [1963] AC 484 at 498. ↑
(2001) 116 LGERA 138
(2002) 55 NSWLR 446
(1994) 181 CLR 404
(1988) 165 CLR 268
(1995) 184 CLR 265
AI Analysis
Outcomeappellant
Disposition:
Appeal allowed with costs. Orders of the New South Wales Court of Appeal made on 3 October 2002 set aside and in their place order that the appeal to that Court be allowed with costs and that paragraphs 1 to 5 of the orders of the Land and Environment Court made on 7 June 2001 be set aside and in lieu thereof the application be dismissed with costs.