What has happened?
In November 2017, we reported on the decision in Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 .
In that case, the NSW Land and Environment Court held that a private road forming part of the subject matter of those proceedings was a ‘building’ for the purposes of the EP&A Act.
On 24 October 2018, the NSW Court of Appeal overturned this finding in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240.
Its reasons for so doing are briefly summarised below.
Court of Appeal’s reasoning
The Court of Appeal observed that the only basis upon which the road could satisfy the definition of ‘building’ was if it were regarded as a ‘structure’.
The definition of ‘structure’ is broad but not unconfined. Its scope is determined by the statutory context in which it appears: at [95]. In this regard, the Court noted that the EP&A Act defines ‘building work’ as ‘any physical activity involved in the erection of a building’ (emphases added): at [95].
The Court noted that ‘one does not ordinarily speak of erecting a road’ and held that ‘[a] structure which is never described as having been “erected” does not fall within the concept of a building, even on an expansive view of that term’: at [98].
On this basis, the Court held that ‘ a roadway which follows the natural lie of the land (even with the occasional culvert) should not be identified as a “building”’: at [98].
Further information:
For further information on this judgment and its potential implications for your development please contact Marcus Steele Director, on (02) 8005-1976 or marcus.steele@bicksteele.com.au.