Alramon Pty Ltd v City of Ryde Council - [2022] NSWLEC 108

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108
Hearing dates: 24-27 May 2022, 27-28 June 2022
Date of orders: 22 August 2022
Decision date: 22 August 2022
Jurisdiction: Class 4
Before: Pain J
Decision:
See [306]-[307]

Catchwords:
EASEMENT – grant of easement over council owned land used for car park not reasonably necessary for the effective use of the Applicants’ land – Court satisfied that grant of easement not inconsistent with the public interest of use of the land to be benefitted – Court not satisfied that the owner of burdened land can be adequately compensated – Court not satisfied that reasonable attempts to obtain easement or one having the same effect made
DEVELOPMENT APPLICATION – approval of centre-based childcare facility dependent on grant of easement for access over council owned land used as car park – access over council owned land prohibited development in SP2 zone – grant of development consent with deferred commencement condition not consistent with Mison principles

Legislation Cited:
City of Ryde Development Control Plan 2014
Civil Procedure Act 2005 (NSW), s 149B
Conveyancing Act 1919 (NSW), s 88K
Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 3.3, 3.34, 4.15
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW), ss 20, 40
Local Government Act 1993 (NSW)
Property Law Act 1974 (Qld), s 180
Roads Act 1993 (NSW), Pt 2, Dictionary
Ryde Local Environmental Plan 2014 (NSW), Land Use Table, Dictionary
State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), cll 2.49-2.51, 2.59-2.61, 2.84-2.86, 2.123, 3.34-3.36, 3.44-3.46, 3.51-3.53
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (NSW)

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Argyropoulos v Canterbury Municipal Council (1998) 66 LGRA 202
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14638
Community Association DP 270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83
D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24103; [2006] NSWSC 1419
Finlayson v Campbell (1997) 8 BPR 15703
Gordon v Gioia & Anor [2007] NSWLEC 509
Gordon v Lever [2018] NSWSC 1888
Govindan-Lee v Sawkins (2016) 18 BPR 35883; [2016] NSWSC 328
Grattan v Simpson (1998) 9 BPR 16649
Hanny v Lewis (1998) 8 BPR 16205
ING Bank (Australia) v O'Shea (2010) 14 BPR 27317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23235; [2005] NSWSC 1014
Ku-Ring-Gai Municipal Council v Masterplan Consultants Pty Ltd [1999] NSWCA 167
Louisiana Properties v Hakea Holdings [2017] NSWLEC 37
Lowe v Kladis (2018) 19 BPR 38599; [2018] NSWCA 130
Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Marshall v Council of Wollongong (2000) 107 LEGRA 73
Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2005] NSWLEC 467
Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2006] NSWCA 314
Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31257; [2012] NSWCA 445
North v Marina (2003) 11 BPR 21359; [2003] NSWSC 64
O’Shea v Athanasakis (2009) 14 BPR 27093; [2009] NSWSC 1150
Powell v Langdon (1944) 45 SR (NSW) 136
Quick v Alpine Nurseries [2010] NSWSC 1248
Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2
Re Worthston Pty Ltd [1987] 1 Qd R 400
Sader v Langham [2018] NSWSC 727
Serbian Cultural Club “St Sava” Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Sodhi v Stanes [2007] NSWSC 177
Stepanoski v Chen [2011] NSWSC 1573
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286
Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27
Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845
Vilro v Roads and Traffic Authority (2010) 179 LGERA 47; [2010] NSWLEC 234
Zenere v Leate (1980) 1 BPR 97029

Texts Cited:
Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)

Category: Principal judgment
Parties: Alramon Pty Ltd (First Applicant)
Coxs Road Investments Pty Ltd (Second Applicant)
Coxs Road Group Pty Ltd (Third Applicant)
Council of the City of Ryde (Respondent)
Representation:
Counsel:
N Eastman (Applicants)
G Farland with M Keene and P Lin (Respondent)
Solicitors:
Mills Oakley (Applicants)
Bartier Perry (Respondent)

File Number(s): 2021/51013, 2021/207884

JUDGMENT INDEX

Judgment

Easement sought in Class 1 and Class 4 proceedings
SOFAC in Class 1 proceedings
Remaining issues (MFI 2)
Conveyancing Act 1919 (NSW)
Roads Act 1993 (NSW)
State Environmental Planning Policy (Transport and Infrastructure) 2021
Ryde Local Environmental Plan 2014 (NSW)
Class 4 proceedings
Statement of Agreed Facts

Lay and documentary evidence in Class 4 proceedings
Applicants’ evidence
Council’s evidence
Gateway determination

Expert evidence in Class 4 proceedings
Traffic engineering experts
Town Planning experts
Urban design experts
Valuation experts

Threshold issue: is the use of Lot 1 proposed by the easement prohibited (issue (1)(a))
Applicants’ submissions
Purpose of use of Council land is a private road

Respondent’s submissions
Purpose of use not a (private) road
Easement not a road for purpose of Roads Act
Primary purpose of use prohibited

Proposed easement is prohibited use of Lot 1
Road not proposed
Characterisation of use

Deferred commencement conditions not acceptable under Mison principles

Issues in Class 4 proceedings
Reasonable necessity - section 88K(1) (issue (c))
Applicants’ submissions
Council’s submissions

Reasonable necessity not established
Easement not reasonably needed for effective use of Applicants’ land
Two way vehicle access to Coxs Road within Applicants’ land tenable
Long standing use of Council land insufficient
Substantial burden on servient land

Public interest - section 88K(2)(a) (issue (b))
Adequate compensation - section 88K(2)(b) (issue (d))
Applicants’ submissions
Council’s submissions

Adequate compensation not able to be provided
Have reasonable attempts been made to obtain alternative easement? Section 88K(2)(c) (issue (e))
Applicants’ submissions
Council’s submissions

Reasonable attempts not made

Discretion
Conclusion
Costs
Orders

JUDGMENT

Two proceedings have been commenced in relation to premises along a commercial high street in North Ryde. In Class 1 proceedings the Applicant Alramon Pty Ltd (Alramon) appeals against the refusal of its development application for a childcare centre by the Council of the City of Ryde (Council). The Applicant seeks to rely on access to the Council’s car park which adjoins the Applicant’s commercial premises for traffic arising from the childcare centre. In Class 4 proceedings the Applicants Alramon, Coxs Road Investments Pty Ltd (Coxs Road Investments) and Coxs Road Group Pty Ltd (Coxs Road Group) seek an easement under s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) in the form of a right of carriageway over the neighbouring Council car park. The Council opposes the grant of development consent in the Class 1 proceedings and the granting of the easement sought in the Class 4 proceedings.
The directors of Alramon were Eleni and Salvatore Cerreto and the director is now Tom Cerreto. Alramon was the registered proprietor of Lot 41 DP560408 (Lot 41) until 29 July 2021. The current registered proprietor of Lot 41 is Coxs Road Investments. The director of Coxs Road Investments is Anthony Cerreto. Alramon was the registered proprietor of Lot 3 DP220894 (Lot 3) until 27 October 2021. Coxs Road Group is now the registered proprietor of Lot 3. Its director is also Anthony Cerreto. Lots 41 and 3 are the land proposed to be benefitted by the easement and are also known as 142 and 144-148 Coxs Road. The Council’s land proposed to be burdened is Lot 1 DP605185 known as 150 Coxs Road (the Council Land). Both properties are entered from Coxs Road. There is one applicant in the Class 1 proceedings and three applicants in the Class 4 proceedings. I will refer to Applicants throughout the judgment.
The Court went on a view of the Applicants’ land and surroundings including the Council’s car park. The Applicants’ land and the Council’s land are located within a commercial high street along Coxs Road North Ryde. The surrounding area includes a primary school and a range of commercial developments between one and two stories in height. The proposed benefitted land and the Council’s car park are situated adjacent to a golf course to the south-west. A church is located at 152 Coxs Road which adjoins the Council land.
The Applicants’ land comprises a total area of 2,729.5 square metres and resembles an irregular rectangle with sole frontage to Coxs Road. It is currently occupied by a two-storey commercial building. The ground floor contains 11 single storey retail and/or office tenancies with active frontage to Coxs Road many of which are vacant. The second floor of the building is currently vacant and was previously used as a commercial office. There is on-site car parking at the rear of the building. Car entry to the on-site car park is along a single one-way tunnel driveway from Coxs Road on Lot 3 at one end of the building and exit is through the next-door Council land. Garbage trucks enter the Applicants’ land from the Council land as the tunnel driveway from Coxs Road is not large enough for trucks. Egress by vehicles from the Applicants’ land onto the Council land has been occurring for decades. The Applicants’ have no property rights in the Council’s land enabling them to use that land for ingress to or egress from the Applicants’ land. The land in its current state is shown in Figures 2 and 4 from the Statement of Environmental Effects produced by Planning Lab dated 11 June 2019 related to the development application the subject of the Class 1 proceedings (Ex E-C1):

The two proceedings were heard together with different documentary tenders of evidence in each proceeding. The order was made in the course of the joint hearing that the oral evidence heard from the traffic, urban designers and planning experts would be evidence in both proceedings.
The Applicants submitted that while the development application the subject of the Class 1 proceedings does rely on access to the Council’s land, the Class 4 proceedings are independent and separate and do not rely on the Applicants successfully obtaining development consent in the Class 1 proceedings. The easement sought in the Class 4 proceedings is intended to support the current use of the Applicants’ land and also the childcare centre use if granted.

Easement sought in Class 1 and Class 4 proceedings

The Class 4 proceedings were initially commenced in the Supreme Court and have been transferred to this Court pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (placing them in the Court’s Class 4 jurisdiction by virtue of s 20(1)(cj) of the Land and Environment Court Act 1979 (NSW) (LEC Act)). Under s 40 of the LEC Act if an appeal under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) with respect to the granting or modification of a development consent is pending before the Court an appellant may make an application to the Court for an order imposing an easement over land and the Court may exercise the jurisdiction of the Supreme Court under s 88K of the Conveyancing Act.
A second further amended summons in the Class 4 proceedings was filed in court on 27 May 2022 during the hearing given evidence which emerged about the reduced dimensions of the easement sought. The second further amended summons relevantly claims:

1 An order that an easement is imposed, under section 88K of the Conveyancing Act 1919, in the form of annexures A and B to this summons (the easement) over the land at Lot 1 DP 605185 (also known as 150 Coxs Road, North Ryde) for the benefit of Lot 41 DP 560408 and Lot 3 DP 220894 (also known as 142 and 144 -148 Cox Road, North Ryde) being an easement for a right of carriageway.
2 An order that the Applicants must, within seven days of the entry of these orders, deliver to the Respondent a dealing in registrable form providing for the Easement.
3 An order that the Respondent must, within seven days of that delivery, execute and deliver to the Applicants that dealing.
4 If the Respondent does not comply with order 3, an order that the Registrar is authorised to sign a dealing in registrable form providing for the Easement in the name of the Respondent.
5 An order that, pursuant to section 88K(4), the Applicants pay the Respondent compensation for the Easement in the total sum of $10,000.
5A The costs of the proceedings incurred after 25 August 2021 are not payable by the Applicants.
5B Costs.
…

The terms of the easement now sought under s 88K of the Conveyancing Act are:

1. DICTIONARY
In this instrument:
(a) Act means the Conveyancing Act 1919 as amended from time to time.
(b) Grantor means the owner of the Lot Burdened.
(c) Grantee means the owner of the Lot Benefited.
(d) Lot Benefited means a lot benefited by an easement, positive covenant or restriction in this instrument.
(e) Lot Burdened means a lot burdened by an easement, positive covenant or restriction in this instrument.
2. Terms of right of carriage way variable width numbered 1 in the plan
2.1 Easement
(a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the Lot Benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said Lot Benefited or any such part thereof.
(b) Despite term 2.1 (a):
(i) the right to go, pass and repass to and from the Lot Benefited is a reference to the existing ground level to a maximum height of 3.933m above that existing ground level of the Lot Benefited;
(ii) the right to the use of the Lot Burdened is limited to the existing ground level to a maximum height of 3.933m above that existing ground level of the Lot Burdened;
(iii) the right for the relevant persons to go, pass and repass is subject to compliance with the Grantor's reasonable traffic management measures (as communicated in the line markings, signage and other traffic management devices within the Lot Burdened);

(c) The Grantor may, for the purposes of developing the Lot Burdened, suspend (wholly or in part) the operation of this right of carriage way so that demolition or construction work may be carried out, provided that:
(i) the suspension must be for a reasonable period on reasonable terms;
(ii) the Grantor first uses its best endeavours to reach an agreement with the Grantee on the:
(A) date of commencement of the suspension;
(B) the period of the suspension;
(C) the terms of the suspension; and

(iii) if the Grantor, having used those best endeavours, is unable to reach agreement -- at least 12-months' written notice is given to the Grantee of:
(A) the date of commencement of the suspension;
(B) the reasonable period of the suspension; and
(C) the reasonable terms of the suspension.

(d) If the Grantor wishes to extinguish this right of carriage way, then provided that:
(i) the Grantor has granted (or grants) an alternative right of carriage way in favour of the Lot Benefited; and
(ii) the practical effect of that alternative right of carriage way is materially the same as this right of carriage way,

the Grantee must execute all documents (and otherwise do all things reasonably required) to remove this right of carriage way from the title to the Lot Burdened and to register the said right of carriage way over that land.
(e) For avoidance of doubt, this right of carriage way does not confer a right to use any part of the Lot Burdened that is not the subject of this easement in (whether for car parking or for any other purpose).

…

Annexure B of the summons shows the two-dimensional survey of the proposed easement and is reproduced below:
The area of the proposed easement is 206 square metres, which is about 20% of the total area of Council land according to the Council.
The area has a common boundary of 24.975 meters with the Applicants’ land.
What is not apparent from the survey attached to the easement is that the current access sought to be preserved is to the rear of the southern boundary, beyond the Applicants’ building on Lot 41 facing Coxs Road. Access from the Applicants’ land does not currently exist along the whole of the southern boundary between the Council land and Lot 41 as the Applicants’ building is located on that boundary. The location of the swept path for a garbage truck on the concept plan set out below, Annexure A to the supplementary joint report of the urban designers dated 14 June 2022 being a drawing produced by McLaren traffic engineering (drawing 2020-857-11D) dated 26 May 2022, is to the rear of the Applicants’ building. The easement has a variable width to accommodate a turning point on the Council’s land to enable use by garbage trucks.
The easement provisions allow car access to be two-way to and from the Applicants’ land to Coxs Road via the Council land in the location shown in the above concept plan between the two properties. The proposed easement enables the current building on the Applicants’ land to operate whether for its current use or if redeveloped for a child care centre.
As was obvious on the site view undertaken in the course of the hearing, the Council land slopes upwards from Coxs Road to the rear of the Council’s car park. The at-grade access to or from the Applicants’ land at the present location on the southern boundary of the Council land is described as “existing ground level” in the proposed easement. In the expert evidence summarised below the difference in height across the Council land from front (Coxs Road) to rear is estimated at between 1.8 to 2 metres.

Class 1 proceedings

The DA states that it is over the two lots owned by the Applicants (Lot 41, Lot 3). Mr Giovanni Cirillo town planner for Alramon confirmed in a letter dated 16 June 2021 (Ex E-C1) that the DA relates to the Council land because it relies on vehicular access over the Council land. The Council’s land zoned SP2 Infrastructure under the Ryde Local Environmental Plan 2014 (NSW) (RLEP) is presently used as a car park and is designated as such in the Land Zoning Map. Lots 3 and 41 are zoned B1 Neighbourhood Centre under the RLEP. The Council has not provided owner’s consent for the DA. The Council accepts that the Court can provide owner’s consent under s 39(2) of the LEC Act if the Court determines to grant development consent. A number of contentions were identified by the Council in its SOFAC and the Court was informed these were largely resolved.

Remaining issues (MFI 2)

The remaining issues in the Class 1 and Class 4 proceedings were helpfully agreed as stated in a document marked MFI 2, which I set out as follows:

1. General
a. Is the use proposed by the easement prohibited?
b. If the use of the servient land is prohibited, then is that use inconsistent with the public interest within the meaning of s88K(2)(a) of the CA?
c. Is the easement reasonably necessary, within the meaning of s88K(l) of the CA?
d. Can the servient owner be adequately compensated, within the meaning of s88K(2)(b) of the CA?
e. Have reasonable attempts been made to obtain an alternate easement, as required by s88K(2)(c) of the CA?
f. Are the proposed conditions of consent appropriate?

2. Traffic

a. What is the impact due to the proposed childcare use, on the servient land as currently configured, of vehicles and trucks using that land?
b. What is the impact on the servient land if redeveloped, due to vehicles and trucks using that land?
c. Can the dominant land provide access and egress for vehicles including trucks without using the servient land:
i. as the dominant land is presently used (Alternate Access 1) and
ii. With the proposed childcare use (Alternate Access 2)?

d. If so, what are the traffic impacts of each use, if the Alternate Access ls provided?

3. Planning (88K Proceedings)
a. What are the redevelopment possibilities for the servient land, and how does the proposed easement impact on those possibilities?
b. In town planning terms, can Alternate Access 1 and Alternate Access 2 be provided, and what are its impacts?

4. Urban Design (88K Proceedings)
a. What are the redevelopment possibilities for the servient land, in urban design terms, and how does the proposed easement impact on those possibilities?
b. In urban design terms, can Alternate Access Scenario 1 and Alternate Access Scenario 2 be provided, and what are its impacts?

5. Valuation (88K Proceedings)
a. Which scenario is appropriate for compensation to be assessed (scenario 1 - as is) or Scenario 2 (assuming a sale or redevelopment)?
b. What additional factors are to be taken into account (e.g. the amount of PGFA, construction cost and intangible matters)?

Conveyancing Act 1919 (NSW)

Section 88K of the Conveyancing Act states:

Part 6 Covenants and powers
…
Division 4 Easements and restrictive and positive covenants
…
88K   Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2) Such an order may be made only if the Court is satisfied that—
(a)  use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b)  the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c)  all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
…
(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.
…

Roads Act 1993 (NSW)

The following provisions of the Roads Act 1993 (NSW) (Roads Act) are relevant:

Dictionary
…
private road means any road that is not a public road.
…
public road means—
(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and
(b) any road that is declared to be a public road for the purposes of this Act.
…
road includes—
(a) the airspace above the surface of the road, and
(b) the soil beneath the surface of the road, and
(c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road.

State Environmental Planning Policy (Transport and Infrastructure) 2021

The State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) (TI SEPP) prevails over the RLEP to the extent of any inconsistency. Chapter 2 of the TI SEPP specifies a number of uses which are permitted with consent in the SP2 Infrastructure zone. These include emergency services facilities (cl 2.49-2.51), health services facilities (cl 2.59-2.61), public administration buildings (cl 2.84-2.86), electric vehicle facilities (cl 2.123), schools (cl 3.34-3.36), universities (cl 3.44-3.46) and TAFEs (cl 3.51-3.53).

Ryde Local Environmental Plan 2014 (NSW)

The following provisions of the RLEP are relevant:

Part 2 Permitted or prohibited development
…
Land Use Table
…
Zone B1   Neighbourhood Centre
1   Objectives of zone
•  To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
•  To encourage employment opportunities in accessible locations.
2   Permitted without consent
Home occupations
3   Permitted with consent
… Centre-based child care facilities; …
4   Prohibited
…
Zone SP2   Infrastructure
1   Objectives of zone
•  To provide for infrastructure and related uses.
•  To prevent development that is not compatible with or that may detract from the provision of infrastructure.
•  To ensure the orderly development of land so as to minimise any adverse effect of development on other land uses.
2   Permitted without consent
Nil
3   Permitted with consent
Aquaculture; Roads; The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose
4   Prohibited
Any development not specified in item 2 or 3

The purpose indicated on the Land Zoning Map is “Car Park”. Car park is defined in the RLEP as follows:

car park means a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not.

Road is defined in the RLEP as follows:

road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road.

Class 4 proceedings

Statement of Agreed Facts

The statement of agreed facts (SOAF) in the Class 4 proceedings (Ex A-C4) states as follows:

Statement of Agreed Facts
Background
1 The Respondent is the registered proprietor of Lot 1 DP 605185, also known as 150 Coxs Road, North Ryde (the proposed burdened land).
2 At all material times, the Respondent has remained a council constituted under the Local Government Act 1993 for the Ryde local government area.
3 The Respondent is a body politic of the State with perpetual succession and the legal capacity and powers of an individual.
4 The First Applicant was the registered proprietor of:
(a) Lot 41 DP 560408, also known as 144-148 Coxs Road, North Ryde (Lot 41) until 29 July 2021; and
(b) Lot 3 DP 220894, also known as 142 Coxs Road, North Ryde (Lot 3) until 27 October 2021.

5 From 29 July 2021, the Second Applicant is the registered proprietor of Lot 41 DP 560408, also known as 144-148 Coxs Road, North Ryde (Lot 41).
6 From 27 October 2021, the Third Applicant is the registered proprietor of Lot 3 DP 220894, also known as 142 Coxs Road, North Ryde (Lot 3).
7 The Applicants at all material times while they were relevantly the registered proprietors of Lot 41 and Lot 3 (together the proposed benefitted land) are and have remained a corporation duly registered and capable of being sued under its corporate name and style.
8 The director of the First Applicant is Tom Cerreta.
9 The director of the Second and Third Applicants is Anthony Cerreta.
The proceedings
10 The proceedings were commenced by the First Applicant in the Supreme Court under section 88K of the Conveyancing Act 1919 (CA Act).
11 The proceedings have been transferred to the Land and Environment Court as a result of an order made by the Supreme Court under section 1498(1) of the CivilProcedure Act 2005. As a consequence, the easement proceedings are class 4 proceedings (as per section 20(1)(cj) of the Land and Environment Court Act 1979).
12 The Second Applicant was added to the proceedings on 10 September 2021 when the amended summons was filed with the leave of the Court.
13 The Third Applicant was added to the proceedings on 25 March 2022 when the further amended summons was filed with the leave of the Court.
14 The Applicants seek an order imposing an easement over certain land.
15 The Respondent opposes the imposition of any easement.
The proposed burdened land
16 The proposed burdened land was transferred from the North Riding Golf Club Limited to the Respondent on 27 November 1979 (dealing R500618).
17 At the time of transfer, the proposed burdened land was zoned "Open Space (b) Recreation Private under the Ryde Planning Scheme Ordinance.
18 The Respondent has used the proposed burdened land as a public car park since this point-in-time.
19 The proposed burdened land is classified as 'operational land' within the meaning of the Local Government Act 1993 (gazetted on 24 May 1996).
20 The proposed burdened land is:
(a) subject to the Ryde Local Environmental Plan 2014 (the LEP);
(b) located within the 'SP2 Infrastructure' zone under that LEP;
(c) the special purpose is identified as 'Car Park' on the LEP 'Land Zoning Map' (LZN_005); [sic]

The proposed benefitted land
21 The proposed benefited land currently contains a two storey commercial building.
22 The transfer of Lot 41 to an entity under the ownership and control of the former directors of the First Applicant (Salvatore Cerreta and Eleni Cerreto) was registered on 24 February 1986 (dealing W197832).
23 The transfer of Lot 41 to the First Applicant was registered on 31 May 1994 (dealing U317922).
24 On or around 30 May 2001, the transfer of Lot 3 to the First Applicant was registered (dealing 7944797)
25 On or around 29 July 2021, the transfer of Lot 41 to the Second Applicant was registered (dealing AR286463).
26 On or around 27 October 2021, the transfer of Lot 3 to the Third Applicant was registered (AR557610).
Past development consents
The 1985 development consent
27 On 26 June 1985, the Respondent granted development consent number A4464 for Lot 41 (the 1985 consent).
28 The 1985 consent was for the erection of a commercial building containing shops.
29 The 1985 consent:
(a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end - of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land;
(b) in condition 2 required a minimum of thirty (30) off-street car parking spaces being provided, paved, linemarked and maintained at all times to the Respondent's satisfaction and in accordance with the Respondent's standards;
(c) in condition 3 required all parking areas to be provided in accordance with the design requirements as set out in then Section 6 of the Respondent's "Parking Code", and thereby increase the width of the manoeuvring area and/or clear width of such spaces to comply with the Respondent's standards; and
(d) in condition 4 required the vehicular entry to the property from Coxs Road between Lot 41 and Lot 3 to be widened to 4m and be suitably signposted to the Respondent's satisfaction 'entry only'.

The 1986 development consent
30 On 25 June 1986, the Respondent granted development consent number A4834 for Lot41 (the 1986 consent).
31 The 1986 consent was for the erection of a one/part two storey commercial building containing shops at ground level and one commercial/retail area at the first floor level.
32 The 1986 consent:
(a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land
(b) in condition 2 required a minimum of thirty-three (33) off-street car parking spaces being provided, paved, linemarked and maintained at all times to the Respondent's satisfaction and in accordance with the Respondent's standards;
(c) in condition 3 required all parking areas to be provided in accordance with the design requirements as set out in then Section 6 of the Respondent's "Parking Code";
(d) in condition 4 required the vehicular entry to the property from Coxs Road between Lot 41 and Lot 3 to be suitably signposted to the Respondent's satisfaction 'entry only'; and
(e) in condition 24 required that the carpark egress to Lot 41 be signposted for left turn only and for parking space no. 23 being relocated to allow service vehicle egress.

33 On 29 October 1986, Mr Brian Woolstone (on behalf of the Applicant of the 1986 consent) wrote to the Respondent seeking permission to potentially install gates at the exit of the car park between Lot 41 and the proposed burdened land.
34 On 2 December 1986, the Respondent wrote to the Applicant granting approval (in principle) for the installation of gates subject to conditions.
35 In February 1987, Mr Woolstone wrote to the Respondent confirming that no gate would be installed.
The 1989 development consent
36 On 1 March 1989, the Respondent granted development consent A5781 for Lot 41 (the 1989 consent).
37 The 1989 consent was to enlarge the commercial building, including erecting rear terraces to be built over the car park on Lot 41.
38 The 1989 consent, in condition 1, required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land.
The 2001 development consent
39 On 16 October 2001, the Respondent granted development consent LDA 621/2001 for Lot 3 and Lot 41 (the 2001 consent).
40 The 2001 consent was for alterations and additions to existing shops and offices on the whole of the proposed benefited land.
41 The 2001 consent
(a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end 9 of the site (between Lot 3 and Lot 1 DP203393) and exit on the western end of the site through the proposed burdened land;
(b) 'in condition 7 requires:
(i) signage to be provided adjacent to the driveway from Coxs Road indicating 'entry for cars only';
(ii) 'no exit' signs to also be provided to prevent vehicles from exiting from this driveway;
(iii) directional arrows to be provided to indicate the flow of traffic; and
(iv) details of the signs and arrows to be submitted on the construction certificate plans.

The 2008 development consent
42 On or around 19 November 2008, the First Applicant lodged development application LDA2008/0766 with the Respondent (the 2008 development application).
43 On 14 May 2009, the 2008 development application was recommended for refusal for the following reasons:
(a) The proposed development is inconsistent with Clause 51 of the Ryde Planning Scheme Ordinance in respect to the floor space ratio.
(b) The applicant's objection under the provisions of State Environmental Planning Policy No 1 is not well founded.
(c) The development fails to provide adequate on site car parking.
(d) The car park does not comply with AS2890 and the applicant has failed to demonstrate that compliance is possible.
(e) The development would require extensive adjustment to the existing Council car park and owners consent has not been granted.
(f) The development will result in increased traffic movements which will result in increased conflicts within the on-site car park as well as the adjoining Council car park.
(g) The development is inconsistent with the zone objectives and Clause 4.4 in respect to floor space ratio of Draft Local Environmental Plan 2008.
(h) The development is an overdevelopment of the site.

44 On or around May or June 2009, the Respondent resolved to defer determination of the 2008 development application affording the Applicant an opportunity to address the Respondent's concerns, following the recommendation of refusal.
45 On or around July and September 2009, the Applicant submitted amended plans which resulted in reassessment by the Respondent.
46 On 3 November 2009, the Respondent resolved to defer determination of the 2008 development application until such time as the Master Plan and the Coxs Road retail centre was completed and adopted by Council.
47 On 15 April 2011, the First Applicant withdrew the 2008 development application.
Other consents
48 In addition to the above, the Respondent has also granted the following consents:
(a) on 26 November 1986, development consent A5028 for Lot 41;
(b) on 11 February 1987, development consent A5109 for Lot 41;
(c) on 13 February 1987, development consent A5114 for Lot 41;
(d) on 13 November 1987, development consent A5374 for Lot 41;
(e) on 3 July 1990, development consent A6231 for Lot 41;
(f) on 1 April 2003, development consent 42/2003 for Lot 41;
(g) on 15 July 2008, development consent 378/2008 for Lot 41;
(h) on 22 January 2015, development consent LDA 2014/0550;
(i) on 20 April 2015, modification consent MOD 2015/0025 to modify development consent LDA 2014/0550; and
j) on 8 October 2015, modification consent MOD 2015/0056 to modify development consent LDA 2014/0550.

The subject development application to the DA proceedings
49 On 12 June 2019, the First Applicant lodged development application LDA 2019/0189 with the Respondent (the subject development application).
50 On 16 September 2020, the Respondent refused the subject development application.
Respondent's actions in relation to the proposed burdened land and the proposed benefited land
51 On 13 October 2009, the Respondent resolved that an urban design based master plan study be undertaken to investigate the potential of Coxs Road, Blenheim Road, Putney Village, Boronia Park and Denistone Station.
52 On 3 August 2010, the Respondent resolved that the Small Centres Master Plan Study Report dated 17 May 2010 which attached the Amended Draft Master Plan Report prepared by Olsson & Associated Architects be endorsed in principle and to prepare a traffic analysis report prior to undertaking targeted community consultation for the Coxs Road, North Ryde centre.
53 In relation to Coxs Road, the Small Centres Master Plan Study Report stated "New development is to provide basement parking. In particular, carspaces provided in the existing council carpark will be provided within the basement of the proposed council facility, freeing the Council site for development".
54 On 24 April 2012, the Respondent resolved to endorse the Amended Draft Master Plan Report prepared by Olsson & Associates Architects and the Landowners draft Masterplan dated 6 December 2011.
55 On 26 November 2013, the Respondent resolved to:
(a) endorse the proposed burdened land in its 'Property Investment Portfolio' (PIP); and
(b) confirm its commitment not to sell or redevelop any of the car park sites (including the proposed burdened land) without substantially increasing the number of available public car parking spaces, together with community benefit, and undertaking comprehensive community consultation.

56 On 8 April 2014, the Respondent considered a report entitled 'Property Investment Portfolio - Management framework and objectives' (Investment Portfolio), and resolved:
(a) that the management criteria and objectives for the property investment portfolio be adopted; and
(b) that the asset specific strategies and draft action plans for the key targeted properties be endorsed.

57 The Investment Portfolio deemed the proposed burdened land as a property falling within the category 'Investment Properties'.

58 The Investment Portfolio recommended general management framework and objectives including:
(a) investment property strategies are likely to involve capital or leasing initiatives to maximise income and lease tenure;
(b) to maximise financial returns to Council, PIP properties should be managed and viewed as commercial investments; and
(c) number of available public car parking spaces to be maximised in any redevelopment proposal.

59 For the purposes of the meeting on 8 April 2014, the proposed burdened land was identified:
(a) as an 'investment property';
(b) as having the current status of 'held as a car park'; and
(c) the recommended strategy was 'review options for the site'.

60 On 11 December 2014, the Respondent drafted a report entitled 'City of Ryde Key Properties Portfolio', which:
(a) stated that properties within the PIP 'have been earmarked from other properties, allowing specific focus on revenue generating activities consistent with growing Council's revenue base, to support future Council initiatives'; and
(b) identified the proposed burdened land as a 'key property' for which the Respondent should consider 'a higher use zoning compatible with adjoining land use.'

61 On 22 September 2015, the Respondent resolved to endorse the 'Strengthening Ryde Initiative - Property Strategy' to be explored and progressed ..
62 On 27 April 2016, the Respondent resolved to commence work to prepare a Coxs Road Masterplan in-house with the engagement of traffic and community engagement consultants and prepare a precinct-wide Planning Proposal for the whole Coxs Road precinct.
63 On 21 February 2017, the Respondent resolved to adopt the Ryde Property Strategy dated 6 October 2016. The Ryde Property Strategy:
(a) identified the proposed burdened land as a 'Priority 1' property which were properties identified as priorities for investigation or action within the next three to five years;
(b) stated that the proposed burdened lot had potential justification for rezoning;
(c) identified the informal access-way for the proposed benefitted land and the adjoining North Ryde Golf Course as 'constraints' with - to the best of Council's knowledge - no easement or legal contract, which could be 'discontinued at Council's discretion'; and
(d) noted that the draft master plan for Coxs Roads being prepared at the time 'should provide [the proposed burdened land] with the same development potential as adjoining sites, including zoning, floor space ratio and height limit.'

64 On 12 December 2019, the Respondent resolved to endorse the Planning Ryde: Draft Local Strategic Planning Statement 2020 for referral to the Greater Sydney - Commission.
65 On 21 March 2020, the current Planning Ryde Local Strategic Planning Statement 2020 came into effect, and identifies:
(a) Coxs Road as an emerging hubs/retail centre; and
(b) That the next Ryde LSPS will include targets to prepare master plans for emerging hubs, including Monash Road and Coxs Road. Page 109 sets out the planning priorities and actions to "create multipurpose, district-level community hub at Macquarie Park and Eastwood. 2030". At page 135, Coxs Road is identified as one of the activity hubs associated with developing Macquarie Park as a health and education strategic centre.

66 Between June 2021 and January 2022 the Respondent carried out works to upgrade Coxs Road.
Communications between the parties
67 On 22 April 2021, the First Applicant wrote to the Respondent with an offer to purchase the easement.
68 The Respondent did not accept this offer. No counter offer was made.
69 On 24 March 2022, the Applicants wrote to the Respondent with another offer to purchase the easement
70 The Respondent did not accept this offer. No counter offer was made.

Lay and documentary evidence in Class 4 proceedings

Applicants’ evidence

The Applicants’ lay evidence in the Class 4 proceedings consisted of:

An affidavit of Norm Cerrato dated 12 October 2021 (with exhibit);

An affidavit of Salvatore Cerreto dated 12 October 2021 (with exhibit);

An affidavit of Stella Zhao, solicitor, dated 11 October 2021 (with exhibit);

A second affidavit of Norm Cerreto dated 15 March 2022;

A second affidavit of Stella Zhao, solicitor, dated 19 April 2022; and

An affidavit of Sean Aaron Gadiel dated 30 May 2022.

Given the extensive SOAF of the parties including what is set out immediately above in pars 27-48 of the SOAF the affidavits of Mr Norm Cerreto and Mr Salvatore Cerreto do not need to be further summarised. These detail the history of the development consents granted for the Applicants’ land including the three consents granted in 1985, 1986, and 2001, conditioned on egress from the Applicants’ land via the Council car park. In his affidavit dated 12 October 2021, Mr Norm Cerreto stated that if there is any serious doubt about the ability to use the Council car park for access it is unlikely that the First and Second Applicants would be able to secure new tenants.
Ms Zhao’s affidavit of 11 October 2021 traversed the history of Mills Oakley’s engagement with these matters and the nature of correspondence between the parties. She deposed to the facts agreed at pars 67 and 68 of the SOAF, that on 22 April 2022 she sent an email to the Council enclosing a letter of offer on behalf of Alramon with an offer to purchase the easement sought or one having the same effect. No correspondence was received in reply. A reply to the offer of 22 April 2021 was not received as of the date of deposition. Proceedings were commenced in the Supreme Court on 7 June 2021. On 26 July 2021 an email was sent to the Council enclosing a without prejudice save as to costs offer to the Council. On 23 August 2021, a letter marked without prejudice was received in reply.
Ms Zhao deposed to the facts agreed at pars 68-70 of the SOAF in her affidavit of 19 April 2022, that on 24 March 2022 she sent an email to Mr Loether solicitor for the Council enclosing a letter on behalf of the Applicant with an offer to purchase the easement sought or one having the same effect dated 24 March 2022. No response was received to this correspondence.
Mr Gadiel’s affidavit of 30 May 2022 stated that on 30 May 2022 he sent an email to Mr Loether solicitor for the Council on behalf of the Applicants with an offer dated 30 May 2022 to purchase the revised easement described in Annexure B to the second further amended summons or one having the same effect. As of 30 May 2022 he had received no response to this correspondence.
The Applicants tendered the following lay or documentary exhibits in the Class 4 proceedings:

Development consents and associated plans from 1985,1986 and 1989 for 144-148 Coxs Road (Ex B-C4);

Tabs 1, 2, 4 and 9 of the Class 4 Evidence Book consisting of a development consent granted to Alramon for 142-148 Coxs Road on 16 October 2021, plans associated with that development consent dated July 2021, a development consent granted to an individual who is not a party to these proceedings for development at 142 Coxs Road on 22 January 2015, and a local planning panel report on the Alramon’s DA 2019/0189 related to alterations and additions to existing buildings to accommodate a childcare centre at 142-148 Coxs Road (Ex C-C4);

Exhibit SZ-3 to the affidavit of Ms Stella Zhao solicitor dated 11 October 2021 (Ex D-C4);

Particulars provided for a DA to erect a business retail development for the purpose of neighbourhood shops dated 7 May 1985 (Ex E-C4);

Tab N of the Class 4 Evidence Book (Ex F-C4), subtabs 7-11, consisting of a Community Consultation Draft Plan for Coxs Road Public Domain Upgrades produced for the Council; a Council communication to residents and business owners notifying them of the Coxs Road (North Ryde) Neighbourhood Centre Upgrade; A Site Layout Plan for the Coxs Road (North Ryde) Neighbourhood Centre Upgrade (Site Layout Plan); a concept plan of the Council car park and a Car Park Treatment Plan also produced for the Council;

The Class 1 Application which is also Ex A-C1 (Ex L-C4);

Tab 39 of the Class 1 Evidence Book, consisting of various DA plans in the Class 1 proceedings within Ex E-C1 (Ex M-C4);

Council’s evidence

The Council’s lay evidence was as follows:

The affidavit of Mr Dylan Govender council officer dated 8 February 2022;

The affidavit of Glen Davis manager of strategic property at the Council dated 10 February 2022;

The exhibit DG-1 to Mr Govender’s affidavit became Ex 1-C4 and exhibit GFD-1 to the affidavit of Glen Davis became Ex 2-C4.
The affidavit of Mr Govender traversed: the zoning history of the Council land; the Ryde Planning Scheme Ordinance; development consent No A.4464 (the 1985 consent); development consent No A.4834 (the 1986 development consent); development application No LDA2008/0766 (the 2008 development application; the Small Centres Master Plan Study conducted by Council’s strategic planner; the RLEP; the Landowner Masterplan 2011 which was issued by the owners of land in the vicinity of the Council land, including the Applicants; subsequent Council consideration of planning controls in Coxs Road; the RLEP; development application No. LDA2019/0189 for a childcare centre on the Applicants’ land; responses to the affidavit of Mr Norm Ceretto; and responses to the affidavit of Mr Salvatore Cerreto. Due to the comprehensive nature of the SOAF, this material was not referred to in the course of the hearing.
The affidavit of Mr Davis addressed the classification of the Council Land under the Local Government Act 1993 (NSW); Council’s intention to develop the Council land, the inclusion of the Council land in the Council’s investment portfolio; the identification of the Council land as a key property in the Council’s key property portfolio; the identification of the Council land as a Priority 1 property by the Ryde Property Strategy; the Council’s Coxs Road Draft Masterplan 2017 (Draft Masterplan 2017); preliminary concept sketches of the Council land based on a B1 zoning; and responses to the Applicants’ lay evidence.
Mr Davis deposed that in late 2013 the Council resolved to include 17 properties in its property investment portfolio in an effort to improve the Council’s revenue base, reduce future funding gaps and improve its overall financial position. The Council land was one of the seventeen properties included in the portfolio. The land was classified as operational land. The purpose of the property investment portfolio was to generate financial and commercial return and future revenue from the investment properties to deliver long-term benefits to the community. In 2014 the Council drafted its Key Properties Portfolio report. The Council land was identified as a key property and the report stated that the Council should consider a higher use zoning of the Council land compatible with adjoining land use.
In 2016 a strategy report was prepared for the Council. It categorised Council properties into three categories. Priority 1 properties were identified as the focus of investigation or action within the next 3 to 5 years. The Council land was a Priority 1 property. The identified property investment objectives included that the Council invest in income-producing commercial and industrial properties and develop or divest at-grade car parks where the transport and parking needs of a centre are shown to be met and reinvest funds through the property investment portfolio. Other car parks were identified as Priority 2. The Strategy report also noted that there was potential justification for rezoning. It further noted that the Council land lies across the road from a community facility and library and redevelopment opportunities should consider both sites. It was recommended that the Draft Masterplan 2017 provide for the same development potential in relation to the Council land as other adjoining sites.
In January 2017 the Council prepared its Draft Masterplan 2017. This is a broad-based conceptual level plan of the potential planning and development controls, built-form and density of buildings within a particular precinct. Under the Masterplan the Council land fell within Test Site 2 (Sites O and P) which would have development controls of: 6,924 square metres of residential gross floor area; 625 square metres of community/commercial gross floor area; expansion of public domain for open space (seven metres from the front property boundary); and 26 underground car parking spaces for public parking. The Council land was site P and the site at 152 Coxs Road was identified as site O. The Masterplan recorded that Test Site 2 (Sites O and P) was the preferred option because it would enable redevelopment of the car park site without reducing the number of accessible car parking spaces. This reflected Mr Davis’ understanding of what had been discussed at Council meetings. The Masterplan also stated that this test site option would enable redevelopment of the Council car park and a portion of the Church site (adjacent to the Council land), expansion of public domain, provision of desirable built-form and urban design outcomes and retention of parking provision (minimum of 26 parking spaces underground).
In March 2017 preliminary sketches for a proposed B1 Neighbourhood Centre zoning were prepared by the Council to identify redevelopment opportunities for the Council land. They provided for two levels of basement car parking, ground floor retail and a library/community facility.
The Council tendered lay and documentary exhibits in the Class 4 proceedings as follows:

The minutes and attachments to the agenda of a meeting of the Council on 22 March 2022 approving a planning proposal (Ex 3-C4);

Extracts of Chapter 2 of the TI SEPP (Ex 4-C4);

A planning proposal (PP-20222-1043) gateway determination dated 16 May 2022 (Ex 6-C4).

Gateway determination

The Council’s planning proposal to update the RLEP prepared in accordance with s 3.3 of the EPA Act was attached to the planning proposal housekeeping review within Ex 3-C4. It was proposed that community facilities would be permitted on land in the SP2 Infrastructure zone (such as the Council land).
In a gateway determination dated 16 May 2022 a delegate for the Minister for Planning and Homes approved the planning proposal under s 3.34(2) of the EPA Act subject to conditions (Ex 6-C4).

Expert evidence in Class 4 proceedings

Before summarising the expert evidence I note that given the dimensions of the easement changed during the course of the hearing, and some new expert reports were prepared in some disciplines in response, the original evidence may have become superseded in parts. Where that has occurred such evidence will not be summarised in much detail. Much of the analysis is undertaken by the experts concerned with the proposed childcare centre use. For example, Mr McLaren traffic engineer assesses the childcare centre use as a worst case scenario. It is not feasible to completely separate evidence addressing the current use from the evidence addressing the proposed childcare use.
A further clarification to make at the outset of the expert evidence concerns alternative vehicular access to the Applicants’ land other than through the Council land considered by the experts. The expert evidence was directed to:

the creation of a new driveway from Coxs Road to the Applicants’ land on Lot 41 (mid-block option); or

widening the existing tunnel driveway from Coxs Road on Lot 3 of the Applicants’ land to accommodate vehicle movements from Coxs Road in both directions (expanded tunnel driveway option).

Traffic engineering experts

The evidence of the traffic engineering experts was the following:

An individual report by Mr Craig McLaren the Applicants’ traffic engineer dated 17 February 2022;

An individual report by Mr Kenneth Hollyoak the Respondent’s traffic engineer dated 8 April 2022;

The joint report of the traffic engineering experts dated 4 May 2022 (Ex J-C4);

New swept paths for the proposed easement based on an eight metre Cleanaway garbage truck created by McLaren Traffic Engineering dated 26 May 2022 provided during the hearing, drawing 2020-857-11C (Ex N-C4).

McLaren

Mr McLaren’s individual report addressed the practicability of access to Lot 41 and Lot 3 without reliance on the Council land before considering the impact of likely vehicular movements on the use of the Council land and the impact of likely vehicular movement on the potential redevelopment of the Council land.
In Annexure C to the report Mr McLaren included swept path testing of the existing tunnel driveway on Lot 3 of the Applicants’ land. At Annexure D the detailed count results for existing traffic movements into and out of the car park on the Council land was included based on surveys undertaken in 2019 between 7:00am to 10:00am and 2:30pm to 7:00pm. The results of SIDRA analysis undertaken to ascertain the level of service (a metric based on average delay at an intersection) if the easement were imposed and the child care centre developed were provided in Annexure F. At Annexure H of his affidavit Mr McLaren included a multi-level car park design concept plan with the easement incorporated.
Turning to practicability of access to the Applicants’ land, Mr McLaren opined that in light of his analysis, access to the Applicants’ land would be impracticable without physical modifications to the existing buildings if reliance on the Council land was not provided. The easement sought is therefore reasonably necessary for the effective use and development of the proposed benefitted land.
The modifications necessary to provide for physical access to and from the Applicants’ land would, in accordance with the relevant standards, require a driveway access across Lot 41. For example, Figure 5 of the report showed a concept for two-way access from Coxs Road onto the Applicants’ land mid-block. Construction of such a driveway would result in significant loss of gross floor area and parking on the Applicants’ land. A corridor would be required through the existing building resulting in a direct loss of existing gross floor area. It is likely that three car spaces on the Applicants’ land would be lost.
In light of existing levels in the car park at the rear of the Applicants’ land a widening of the existing tunnel driveway (the expanded tunnel driveway option) would likely not be possible and a new access point through the buildings on Lot 41 would be necessary.
Mr McLaren conducted a SIDRA analysis for the purposes of assessing the impact of likely vehicular movements on the use of the Council land if the child care centre was approved. That would be a worst case scenario to establish if there is any impact on the Council car park as a result of the easement sought. The two conflict points analysed were where:

traffic enters the Council land from Coxs Road; and

traffic exits Lot 41 onto the Council land.

For conflict point 1 there was no change to the level of service and a minor increase in delay of 0.1 seconds. There is therefore no noticeable impact on the function of the car park on the Council land from the child care centre.
For conflict point 2 there is little to no potential to increase delays and queues for vehicles exiting Lot 41 and little to no potential to impact the function of the car park on the Council land as the vehicles entering and exiting Lot 41 must give way to vehicles in the car park circulation aisle.
In relation to heavy vehicle movements, Mr McLaren concluded that as a result of the scheduling of garbage collection in the early morning to avoid peak parking demand, the existing heavy vehicle movements in the car park on the Council land have no impact on the use of the Council land. The reversing movements of the rear loading vehicle (which I note are proposed to be smaller than identified at the time of Mr McLaren’s report) may cause delays in the order of 30 seconds or less while the truck enters Lot 41. This delay is inconsequential considering its low frequency. The rear loading vehicle would be required to give way to other vehicles when exiting Lot 41 and would have no impact on the use of the Council land. All other deliveries to the Applicants’ land are undertaken by smaller vehicles which are unlikely to have any impact on the function of the Council land as a car park.

In summary, there would be no noticeable impact as a result of likely vehicular movements arising from the proposed child care centre and easement on the Council land, as such movements, including of heavy vehicles, have been shown to cause no unacceptable delay and will not otherwise impinge on the function of the car park on the Council land.
Assessing the impact on a potential multi-level car park built on the Council land, Mr McLaren opined that a multi-level car park could be constructed if an easement for access to the Applicants’ land was established (as per the concept plan in his Annexure H). The efficiency of such a multi-level car park would be slightly reduced however the easement would not significantly interfere with or sterilise or impede the ability for a car park on the Council land to be developed and used effectively.
I note that Mr McLaren addressed the impact of likely vehicular movements on the potential redevelopment of the Council land before he was aware that there were more permissible uses on the land than a multi-level car park and before the easement was reduced in size during the course of the hearing.

Hollyoak

Mr Hollyoak’s individual report first addressed his assessment of the impact of the child care proposal on the Council land. Mr Hollyoak opined that after development of the childcare centre on the Applicants’ land, if the Council retained the existing at-grade car park, there will be increased delays for all traffic of around 10%.
Mr Hollyoak next identified issues with the proposed easement. Mr Hollyoak agreed with Mr McLaren that the existing tunnel driveway on Lot 3 could not be used as two-way access for cars and garbage trucks. He opined that the existing driveway could be widened and provided with additional height to facilitate cars and trucks based on plans prepared by Mr Olsson the Respondent’s urban designer as shown in Figure 10 of his individual report (a ground floor drawing of the expanded tunnel driveway option). There would be a loss of on-street car parking and trucks would have to use both lanes for ingress and egress however that was not significantly different to the proposed easement.
The mid-block option on Lot 41 could also be provided with adequate width and height clearance based on Mr Olsson’s plans in Figure 12 of his individual report. There would also be loss of on-street car parking and a turning circle on the land would need to be provided. If the Council land were unavailable, a design could be achieved which would allow all vehicles likely to use the Applicants’ land to achieve access to and from the Applicants’ land. The expanded tunnel driveway option which widens the existing driveway in terms of width and height and provides a turning facility on site would be the best option.
Mr Hollyoak believed that both the mid-block option and the expanded tunnel driveway option could be provided to an adequate standard with turning facilities for garbage trucks on the Applicants’ land. At present the configuration of the Applicants’ land means that it is impossible for vehicles to travel in and out and turn around solely on the Applicants’ land. A new turning bay/turntable would need to be provided in the car park on the Applicants’ land to allow large vehicles to turn around. The expanded tunnel driveway option or mid-block option would also be required.
Mr McLaren’s Annexure H has shown how a conceptual car park arrangement might work should the Council land be developed for an above ground development. That option would place significant constraints on the Council’s ability to redevelop as it would use a significant area to facilitate the truck manoeuvre. If Council chose to develop an underground car park with no parking at ground level the easement would be much more restrictive of the ability for cars to access the Council land from the Applicants’ car park. It was not clear that the proposed easement (which I note was amended after this report) would permit construction either below or above the easement because of the need to provide clearance above any garbage or delivery trucks. It would be extremely difficult if not impossible to provide a compliant ramp to meet a basement in a proposed underground car park.
A number of other issues arise from the easement being at-grade. If Council chooses to redevelop the site in a manner that required hoarding of materials on the Council land, the easement would block vehicular access to the Applicants’ land. If the Council wanted to use the Council land for storage for construction works locally or in support of an upgrade of the library at the adjacent block on Coxs Road, an easement would prevent this.

Joint report

In the joint expert report dated 4 May 2022 the experts discussed two discrete areas:

(a) Are there alternative access options which could provide a driveway with sufficient width and height to accommodate trucks and cars? If so, what are the traffic impacts [sic]
(b) Would the suggested easement on the Council car park restrict the development potential, the maintenance access and the potential for construction storage on the Council car park site? This could consider both at grade and underground car park options.

In relation to topic (a), they each considered the mid-block option in accordance with Figure 5 of Mr McLaren’s individual report and the option of retaining the existing driveway which is an entry only access through Lot 3. Mr McLaren considered the latter as a one-lane driveway whereas Mr Hollyoak considered providing a wider two-way driveway with greater height clearance.
Mr Hollyoak opined that either alternative proposed driveway option could work with adequate width and height. This would require works to the buildings on the Applicants’ land to provide the wider/higher opening and result in the loss of a small number of on-street car parking and the loss of on-site car parking to facilitate turning for the trucks within the site. His preference would be for the widening of the existing tunnel driveway as it is already present and pedestrians and cyclists will be aware of cars at this location. It could incorporate pedestrian sight splays.
Mr McLaren stated at pars 1.13 to 1.17:

1.13. CM states that the question as to whether physical works are possible or indeed feasible to achieve direct two-way (or separated entry & exit) vehicular access to and from Coxs Road to on-site parking and servicing within Lots 3 & 41 requires input from planners, urban designers, structural engineers, and traffic engineers. Traffic engineers can simply say that direct vehicular access to and from Lots 3 & 41, without any reliance on Lot 1, is possible, however the feasibility of that access requires input from experts in those other nominated fields of expertise. In isolation, traffic engineering evidence is of limited weight.
1.14. To be abundantly clear, CM does not endorse either a widened existing driveway on Lot 3 or a “midblock” access option on Lot 41 to facilitate direct two-way vehicular access (including provision for service vehicles, which will determine the height of that vehicular access provision) due to its impacts on passing pedestrian traffic (including the elderly, children, children on bicycles / skateboards, disabled, hearing / sight impaired, other vulnerable pedestrians and general pedestrians).
1.15. CM states that a driveway that facilitates exit from on-site parking / service areas along a shopfront pedestrian footpath area is typically not an expected outcome by passing pedestrians. This is further reinforced by Council’s own desire to limit or otherwise reduce the number of driveways, particularly EXIT driveways in this local centre. Pedestrians walking across a 3m to 4m ENTRY (from Coxs Road) only driveway is far less hazardous than pedestrians walking along a shopfront and needing to cross a wider driveway with limited “intervisibility” between the array of pedestrian types (referred to in Paragraph 1.14 above) and drivers of emerging vehicles.
1.16. CM further states that emerging drivers will be exiting from a “tunnel” / fully enclosed vehicular corridor and whilst AS2890.1-2004 and AS2890.2-2018 compliant sight lines can also be physically provided, the potential risk of pedestrian / vehicle collisions is still a real outcome as pedestrians generally do not expect traffic emerging from on-site parking / service areas within a shopfront pedestrian footpath environment. The nearby bus stop and schools further inflates this potential risk, as outlined in Paragraph 8.9 of CM’s expert report. The probability of pedestrian / vehicle conflict is high in CM’s opinion.
1.17. CM states that the council car park is currently in an open form, which is readily understood and observed by passing pedestrians. Any redevelopment of that car park, would, in CM’s view require an open setback (as opposed to a zero setback for the shops within Lots 3 & 41), in order to significantly reduce risks to passing pedestrians, which is a consistent view of council that underpinned its reductions of two separated driveways to one driveway, although Council may reconsider separated driveways for any future redevelopment of the council car park, together with an open setback from Coxs Road such that passing pedestrians can readily observe emerging vehicles from on-site parking and servicing areas.

The experts then turned to issue (b). Mr Hollyoak’s view was that whether a basement car park proposal or an above ground development with ground level car park is pursued on the Council land, the easement compromises the Council’s design as the ground floor level would need to accommodate the easement in terms of grade and the area required for turning trucks. Council garbage trucks may not be able to turn around using the proposed easement and additional turning area may need to be provided elsewhere on the ground floor plan which is inefficient. Accommodating the easement is likely to have significant effect on Council’s design of the Council land and does impose constraints. He reiterated the constraints identified by him above in [62].
In response to Mr Hollyoak’s concern that council garbage trucks could not use the easement, Mr McLaren was unsure of the inference drawn and not sure that all or part of the easement could not be used by council trucks under a time management condition.
Mr McLaren noted that the redevelopment options on the Council land are uncertain and less weight should be given to those matters. Mechanical means of vehicular access and parking such as car lifts, turntables, car stackers, car shuffler systems and other mechanical devices are possible options similar to conventional car park designs. In response to Mr Hollyoak’s opinion above in [62], Mr McLaren stated that retaining access during construction is commonly a matter agreed between the proponent of works and affected owners or the subject of a condition of consent. Truck reversing within the Council land is typically managed by the waste collection operators so that it occurs outside peak hours (e.g. in the early morning) and any issues can be managed with a traffic controller. It was unusual that easements are imposed through development sites including car parks that serve other properties.

Oral evidence

In cross-examination Mr McLaren was asked whether in traffic terms one could widen the throat of the existing tunnel driveway on the Applicants’ land and widen the width of the tunnel generally to achieve the necessary two-way access for the properties. Mr McLaren responded that you could do so, being conscious of the height being able to accommodate a truck.
In cross-examination Mr Hollyoak was asked whether he agreed that there are no safety concerns arising from a truck manoeuvring in the Council car park were the easement imposed if the service trucks were limited to a size of eight metres and conditions imposed as suggested by Mr Hollyoak restricting movement to between 12am and 5pm. Mr Hollyoak stated that the safety concerns would be “negligible, yes”.
Mr Hollyoak was asked about his analysis of the traffic delays that would ensue if the DA were approved. It was put to him that the identified delay of 10% is indicative of up to at worst one second, to which Mr Hollyoak responded that he agreed this is what the SIDRA results showed.

Town Planning experts

The documentary evidence of the town planning experts consisted of:

An individual report by Mr Giovanni Cirillo the Applicants’ town planner dated 1 March 2022;

An individual report by Mr Brendon Clendenning the Respondent’s town planner dated 8 April 2022;

The joint report of the town planning experts dated 17 May 2022 (Ex G-C4); and

The supplementary joint report of the town planning experts dated 25 May 2022 (Ex 5-C4), which identified that the TI SEPP expanded uses on land zoned SP2 and therefore the Council land, as summarised above in [20].

In light of the gateway determination dated 16 May 2022 which added community facilities as a permissible use on land zoned SP2 in the RLEP and the identification of the impact of the TI SEPP on land zoned SP2, the planning evidence evolved.

Cirillo

Counsel for the Applicants extracted in his closing submissions pars 19-21, 24-27, 51-61 and 66-71 of Mr Cirillo’s individual report.
Mr Cirillo stated that the existing provisions of the RLEP limit the site to continued use as a car park and that any alternative use of the Council land would require a planning proposal to amend the RLEP. I note that this opinion has been superseded by later reports.
Mr Cirillo opined that the key role the Council land plays in the locality is providing public parking, as demonstrated by the Council’s commitment to not sell or redevelop without substantially increasing the number of available parking spaces. Referring to the Draft Masterplan 2017 (see above in [37]) and preliminary sketches (see above in [38]), Mr Cirillo opined that it was not clear how Council could undertake such a development without relying on 152 Coxs Road which was not owned by Council. Nevertheless, joint development of the Council land and 152 Coxs Road would not inhibit development of the options in Mr Dickson’s first report (see below in [102]) because the massing of any residential development towards the boundary with 144-148 Coxs Road would be similar in either situation. Mr Cirillo agreed with Mr Dickson that the proposed easement would only impact the potential achievable gross floor area of the ground floor and the gross floor area of the upper levels would be unaffected if the Council proceeded with the Masterplan. The Masterplan and preliminary sketches would require a ramp to be located somewhere on the ground floor of the development which would reduce gross floor area anyway. Mr Dickson’s opinion that the easement would not prevent redevelopment of the site either in isolation or in coordination with 152 Coxs Road was correct.
The tenancies on the Applicants’ land represent the only activation to this part of Coxs Road. Removing retail tenancies to make way for a driveway (to enable the alternative accesses to the Applicants’ land directly from Coxs Road) would detrimentally impact upon the streetscape.

Clendenning

Mr Clendenning’s individual report was not referred to and does not need to be summarised.

First joint report

The joint report of the town planners dated 17 May 2022 addressed reasonable necessity and the public interest under s 88K of the Conveyancing Act. This joint report was prepared before the experts were aware that the gateway determination had been granted or were aware of the impact of the TI SEPP.
The alternative accesses on to the Applicants’ land outlined above in [43] were agreed. In either alternative access scheme, the expanded tunnel driveway option or mid-block option, a portion of the existing active frontage and retail tenancies would need to be removed and replaced with a driveway providing egress.
It was also agreed that any future development on the Council land which contains a basement, would require either:

that a driveway ramp first rise from Coxs Road towards the at-grade connection to the Applicants’ land before beginning to ramp downwards again towards a basement; or

that a driveway ramp be accommodated on the north-western side of the Council land in addition to maintaining access across the easement.

Reasonable necessity - Cirillo

Mr Cirillo stated the proposed alternative vehicular accesses to Coxs Road from Lots 3 and 41 would have negative streetscape and pedestrian and vehicle safety impacts. Specifically, he stated:

27 The area of Coxs Road around 144-148 already contains a multitude of driveways. The addition of a wider or a new driveway into the frontage of 144-148 Coxs Road would increase the number and/or width of driveways to be crossed by pedestrians along Coxs Road, reducing pedestrian safety and walkability of the Coxs Road neighbourhood centre. Conversely, if the proposed easement were granted, an existing driveway already servicing the site would be utilised.
28 This approach is consistent with that which was identified in the Coxs Road (North Ryde) Neighbourhood Centre Upgrade Site Layout Plan which sought to minimise driveway cross overs where possible.

He opined that the proposed easement better promotes the objectives of the Ryde Development Control Plan 2014 and Site Layout Plan (see above in [30(5)]) than the alternatives. At least three parking spaces, according to Mr McLaren, would need to be removed in the existing car park on the Applicants’ land to facilitate a widened driveway to Coxs Road. The easement furthers the objects of s 1.3 of the EPA Act by reducing the need for additional driveways, makes more efficient use of land within the local centre, and preserves existing active street frontage on Coxs Road.
Mr Cirillo relied on the evidence of Mr McLaren above in [54] to the effect that there would be no unacceptable delay caused to vehicles using the Council car park from vehicle movements into and out of the Applicants’ land. Mr Cirillo also relied on the evidence of Mr Rohan Dickson urban designer who considered a multi-storey car park or alternative use containing ground floor commercial space for the Council land (I note that Mr Dickson and Mr Cirillo’s evidence was prepared prior to knowledge of other possible redevelopments). He stated that Mr Dickson’s evidence indicates that the easement would not greatly impact the development potential of the Council land. In his opinion the proposed easement would not substantially impact the future development potential of the Council land if it was rezoned. There would be a small loss of gross floor area at ground level with upper levels unaffected. He agreed with Mr Dickson that a driveway would be located in the same area of the Council land regardless of whether an easement is granted. The alternative options for egress are inappropriate and the proposed easement would not prevent the redevelopment of the proposed burdened land.
Unlike Mr Clendenning, Mr Cirillo considered that there was no reason to assume that potential rezoning of the Council land was certain or likely, albeit it was possible.

Reasonable necessity - Clendenning

Mr Clendenning stated the following:

60. I do not consider that there is a reasonable necessity for the Proposed Easement. It is not a necessity, and it is agreed that there are other options to providing a carpark which functions independently of the Council Land.
61. With regards to impacts associated with active frontages and the streetscape, I do not believe this warrants a reasonable degree of necessity. There are no planning controls which prescribe active frontages in this location, or that prescribe that driveway areas in this location should be minimised through site consolidation, the sharing of driveways or the like…

Adequate compensation - section 88K(2)(b) (issue (d))

The next issue to arise is whether the Council as servient owner can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement as provided by s 88K(2)(b). The valuation evidence of Mr Hollinshead and Mr Konidaris is summarised above in [136]-[150].

Applicants’ submissions

Rainbowforce at [106]-[116] identifies the correct approach to the adequate compensation for any loss or other disadvantage that will arise from the imposition of the easement under s 88K. In Moorebank Recyclers CA at [236] the Court of Appeal stated:

236 Section 88K(4) will only be reached if the Court has determined under s 88K(2)(b) that the owner of the servient tenement can be adequately compensated. If it can be, even with difficulty, the Court is required by s 88K(4) to order the compensation it considers appropriate. …

In Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 (Moorebank Recyclers SC No 2) Young AJ stated at [49], [51]-[55]:

49. Assessing compensation is usually an exercise of some difficulty, not the least of which is the fact that valuation is not an exact science.
…
51. The meaning of s 88K(2)(b) has not, as far as I am aware, been fully fleshed out in the decisions on the section. Just reading the words in a natural way the Court must consider: (a) what loss; and (b) what other disadvantage will arise because of the easement.
52. "Loss" appears to include loss of intangible benefits, Khattar v Wiese [2005] NSWSC 1014; 12 BPR 23, 235 at 23,248 [49], and to include the suffering of potential loss of privacy as a result of strangers using the easement: Hanny v Lewis (1998) 9 BPR 16,205 at 16,209.
53. Such losses of intangible benefits are hard to value and, as Brereton J said in Khattar, may mean that compensation for such losses cannot be assessed so that no easement can be granted.
54. That problem is not present in the instant case.
55. A problem that does arise is what semantic significance should be given to the word "will" in the phrase "disadvantage that will arise". Does this mean that the Court does not need to consider (except as to discretion) disadvantages that might possibly arise or even those which have a 50/50 chance of occurring and only consider, under this head, those that will arise as a matter of virtual certainty?
…

Valuing potentialities does not permit speculation: Vilro v Roads and Traffic Authority (2010) 179 LGERA 47; [2010] NSWLEC 234 at [91] citing Serbian Cultural Club “St Sava” Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673 at [112]; Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2005] NSWLEC 467 per McClellan CJ at [28], and on appeal in Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2006] NSWCA 314 at [73], [77]). The fact that the valuers were able to reach agreement that two scenarios could apply (Scenario 1 blot on title, Scenario 2 loss of gross floor area) demonstrates that the Council can be adequately compensated. The correct valuation approach depends on the statutory language in s 88K(2)(b) which suggests that only Scenario 1 fits. Scenario 2 is contrary to the statutory language as it assumes a sale to a hypothetical purchaser (like the exercise undertaken under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)) not the loss and other disadvantage (the language of the Conveyancing Act) to the Council as the current owner. In oral submissions Scenario 1 was faintly pressed and it was accepted that Scenario 2 may be appropriate in the absence of any other valuation (Tcpt, 28 June 2022, p28(36)-(37)).
The intangible matters raised by Mr Kondiaris were considered in his individual report and are not intangible. As Mr Hollinshead says, they are matters which would be taken into account by the hypothetical purchaser (if Scenario 2 is correct) albeit their quantification is opaque at best and most likely guesswork.

Council’s submissions

The Court has no power to impose an easement unless satisfied that the owner of the servient land can be adequately compensated. The Council cannot be adequately compensated for the intangible losses for the reasons identified by Mr Kondaris in the joint report extracted above in [141].
That opinion is consistent with Re Worthston Pty Ltd [1987] 1 Qd R 400 (Re Worthston) at [404(15)], where Carter J held that the respondent could not be adequately compensated for the easement there considered, being a right of way over part of the adjoining land which, when subdivided, would become a dedicated road. The proposed easement will convert the Council land into a thoroughfare for the benefit of users of the Applicants’ land and it abrogates the Council’s ability to control the development of its land in whatever way it chooses. Such a loss is not compensable.
Mr Hollinshead’s responses to Mr Konidaris should be rejected as speculative and subjective inferences of fact. For example, Mr Hollinshead could not possibly know that any notification period (if required) would run in parallel with a planning proposal for redevelopment. The Court should accept Mr Konidaris’ evidence as drawn from clear facts.

Adequate compensation not able to be provided

In Rainbowforce at [106]-[116], Preston CJ summarised the principles to be applied when the Court assesses the statutory precondition in s 88K(2)(b), the key principles relevant to this matter being (references to caselaw omitted):

106 First, the adequate compensation referred to in s 88K(2)(b) is the same as the compensation that the Court may order under s 88K(4)…
107 Secondly, compensation is for “any loss or disadvantage” that will arise from the imposition of the easement. The addition of the words “or other disadvantage” provides for compensation for disturbance beyond the actual value of the proprietary right taken…
108 Thirdly, the compensation is not a substitute for the price that could have been exacted if the section did not exist … Hence, there can be no compensation for the loss of bargaining position of the owner of the land to be burdened...The owner is “to receive a just sum and for value for what he or she has to give over, rather than being able to demand the earth”...
109 Fourthly, the compensation is for any loss or disadvantage “that will arise from the imposition of the easement”. That language imposes a requirement for a causal relationship between the loss or disadvantage for which compensation is claimed and the imposition of the easement… The common law of causation should be applied, namely that causation is a question of fact to be determined by applying common sense to the facts of each particular case…
110 Fifthly, the Court’s task under s 88K is to be satisfied that the persons affected by imposition of the easement are “adequately compensated” and to provide for an order for payment of such adequate compensation. In assessing adequate compensation the Court “is not to err on the side of generosity or miserliness”… The Court should not depart from the task of assessing adequate compensation because the applicant for the order stands to gain from the development or use which leads to their applying for the order…
111 Sixthly, ordinarily, compensation will have three elements: (a) the diminished market value of the affected land; (b) associated costs that would be caused to the owner of the affected land, and (c) an assessment of compensation for insecurity and loss of amenities, such as loss of peace and quiet. Against these losses and disadvantages should be allowed, as an offset, any compensating advantages…
…
113 In the case of a grant of a permanent easement, such as a right of carriageway or easement for drainage or services, compensation includes the loss of proprietary rights by the imposition of the easement and compensation for the disturbance effected by the carrying out of the initial work, such as construction of a road or laying of pipes in the easement, and subsequent repair and maintenance from time to time…
114 Seventhly, if the imposition of the easement causes material injury to intangible benefits or the imposition of material intangible detriments, such as reduced amenity, enjoyment of property, and exposure to increased disruption and interference, which are not readily capable of being estimated in monetary terms, the Court may not be able to be satisfied that the servient owner can be adequately compensated… However, compensation is often able to be assessed for injury to intangible benefits or the imposition of intangible detriments…
…
116 Ninthly, the applicant for the order has to establish what the relevant losses and disadvantages are as part of satisfying the Court that the persons affected by imposition of the easement can be adequately compensated… In the course of the hearing, evidentiary onuses may shift to the person affected... Where facts are peculiarly within the knowledge of the person affected and that person does not adduce relevant evidence, it may be open to the Court to draw unfavourable inferences…

Considering those principles, that the Applicant will stand to gain financially from the imposition of the easement is irrelevant to the assessment of compensation. The focus is the loss or disadvantage to the Council as caused by the imposition of the easement. In Moorebank Recyclers SC No 2 Young AJ stated at [49] a proposition with which I agree:

49 Assessing compensation is usually an exercise of some difficulty, not the least of which is the fact that valuation is not an exact science.

The valuers’ approach to the assessment of compensation highlights the difficulty in devising a value for compensation for the potential loss and disadvantage which will arise for the Council if this particular easement is imposed. That the valuers did their best in what appears to be a vacuum as to the appropriate methodology to be applied largely supports the Council’s approach that it cannot be adequately compensated for the loss and disadvantage it will suffer if the easement is imposed.
I have found above in [257] that there is a reasonable likelihood of the Council deciding to develop its land in the foreseeable future. Although I appreciate that presents a challenge in this valuation exercise, to value solely on the basis of no future development does not result in adequate compensation for the Council.
The observations of Young AJ in Moorebank Recycling SC No 2 extracted above in [278] by the Applicants identify some of the challenges that arise from the statutory language of “disadvantage that will arise” in considering what ‘will arise’ means. I do not consider I need to further define ‘will’ in this context in concluding that Scenario 1 is too narrow given the circumstances of this case. It does not reflect the extent of “loss or disadvantage” which will accrue to the Council when it seeks to develop the Council land which I consider to be likely in the foreseeable future. The Scenario 1 ‘blot on title’ approach is inadequate to compensate the Council for its loss and disadvantage of having to cater for the easement in any future development of the Council land. Scenario 1 is predicated on the absence of any future development because the valuers were unaware of any current proposals and because Mr Hollinshead believed that the market would assess it as likely that the use as an at-grade car park would continue. This was confirmed in his evidence above in [139] and in cross-examination, summarised above in [145].
Scenario 2 was criticised by the Applicants in written submissions as not compliant with the statutory language of s 88K which does not permit any speculation such as a sale to a hypothetical purchaser. This criticism was more muted in oral submissions reflecting an acceptance that the Council should obtain some compensation greater than in Scenario 1 (Tcpt, 28 June 2022, p 28(36)-(38)). I do not need to resolve this issue as I consider Scenario 2 is also inadequate. Treating the loss of value of public land which could be used in the future for a wide range of possible uses including a park, skate park or community facility by applying a valuation method relying on hypothetical sales as used in the statutory framework for compulsory acquisition cases does not properly reflect the loss or more precisely the disadvantage that will arise to the Council.
I accept Mr Konidaris’ evidence that the loss or disadvantage is simply not compensable due to the inability to quantify the intangible losses he identifies above in [141]. I agree with Mr Konidaris that the losses or disadvantages he identifies are intangible impacts. As Brereton J noted in Khattar at [50]:

50 Thus in many cases, injury to intangible benefits and the imposition of intangible detriments, such as reduced amenity and enjoyment of property, and exposure to increased disruption and interference, may weigh heavily against a conclusion that the servient owner can be adequately compensated for the purposes of s.88K(2)(b).

Mr Konidaris changed his evidence in relation to intangible loss. In the first joint report he identified an amount of $110,000 as appropriate compensation for those losses. In the supplementary joint report he considered that the intangible losses could not be compensated (above in [141]), after advice from Mr Olsson (above in [150]). He denied in cross-examination that he was told what to do by anyone else and stated that upon further consideration of matters identified by Mr Olsson he more fully appreciated the Council’s position as the owner of public land. I consider his evidence reflects the nature of the loss or other disadvantage that will arise for the Council given the specific terms of the easement sought.
While Mr Hollinshead did not agree for the reasons extracted above in [142], maintaining that traditional market valuation methods can be used, I do not agree such methods can adequately compensate the Council as the owner of public land on which a variety of uses and developments are likely to occur. These cannot be reflected in the usual gross floor area loss calculations reflected in Scenario 2. The circumstances in Re Worthston, a decision of Carter J in the Supreme Court of Queensland considering s 180 of the Property Law Act 1974 (Qld) which is in similar terms to s 88K(2)(b), was relied on by the Council as being analogous. The Council submitted that requiring the Council land to provide permanent access to the neighbouring land in the location fixed by the easement results in consequences similar to the creation of the easement in Re Worthston, in that case over land which would become a dedicated road in due course. While the burden imposed in Re Worthston is arguably more onerous I agree that the imposition of the easement would convert the Council’s land into a thoroughfare for users of the Applicants’ land, with obvious substantial disadvantage occasioned to the Council.
I do not consider that the Council can be adequately compensated for the proposed easement as is required by s 88K(2)(b).

Have reasonable attempts been made to obtain alternative easement? Section 88K(2)(c) (issue (e))

Applicants’ submissions

The Applicants relied on Sodhi v Stanes [2007] NSWSC 177 at [140] where Austin J noted that the requirement is that reasonable attempts be made not all possible attempts. Reliance was also placed on Preston CJ’s exposition of the relevant principles in Rainbowforce at [131]. In Stepanoski v Chen [2011] NSWSC 1573 Bryson AJ said at [24]-[25] that there is no reason why attention is limited to attempts made before proceedings were commenced. In North v Marina (2003) 11 BPR 21359; [2003] NSWSC 64 Campbell J found that all reasonable attempts had been made having regard to the long course of negotiations: at [90].
The Applicants relied on the affidavit evidence of their solicitors Ms Zhao and Mr Gadiel of approaches to the Council to seek the easement as summarised above in [27]-[29].
The Council’s approach that the Applicants were required to attempt to secure some other outcome that does not rely on the Council land does not accord with the statutory language in s 88K(2)(c). The subsection is directed to requiring attempts to negotiate the actual easement or something similar.

Council’s submissions

The Council does not dispute that reasonable attempts were made by the Applicants through their lawyers to obtain the easement sought in these proceedings.
The Council focused on the words “or an easement having the same effect” in s 88K(2)(c). That second easement to which the subsection refers is an easement having the same effect as the first (proposed to the Court) easement. That second easement can be in respect of the same land as the first but is not limited to that land. It can also be an easement over other land having the same effect as the easement over the land the subject of the application: Tregoyd Gardens; Khattar at [53]-[58]; and Gordon v Gioia [2007] NSWLEC 509 at [18]. No evidence of any attempt to obtain an alternative easement that does not rely on the use of the Council land is before the Court resulting in a failure to comply with s 88K(2)(c).

Reasonable attempts not made

The requirement of reasonable attempts is a matter of degree and will generally be satisfied if negotiations have proved fruitless and it is extremely unlikely that further negotiations will produce a consensus in the reasonably foreseeable future: Tregoyd Gardens at 15855 citing Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14638 at 14653-4. In Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 at [72] I held that reasonable attempts could be considered after the filing of the application. There is no dispute that the Applicants have made reasonable attempts to obtain the easement they are seeking, as is clear from the evidence of Mr Gadiel and Ms Zhao and based on the Applicants’ authorities summarised above in [294].
Whether s 88K(2)(c) has been complied with depends on the approach taken to “or an easement having the same effect”. There is no evidence that the Applicants sought to obtain any other easement from any other neighbour or any different easement from the Council over the Council land.
In Tregoyd Gardens, Hamilton J rejected the plaintiff’s submission that the easement referred to by the words “or an easement having the same effect” in s 88K(2)(c) is required to be an easement over the same land as “the easement” in s 88K(2)(c). Tregoyd Gardens was applied on this point in Khattar at [54]-[58]; Gordon v Gioia & Anor [2007] NSWLEC 509 at [15]-[18] and Rainbowforce at [128]. If the easement over the alternative land would have the same effect as the proposed easement then the applicant is obliged to seek and make all reasonable attempts to obtain the alternative easement: Khattar at [54]; Butt’s Land Law at [16.560].
The Applicants provided no authority for the submission that the Council’s view is inconsistent with the statutory language. It is unclear why I should depart from the view taken in the authorities cited by the Council which give the words “or an easement having the same effect” separate work to do. No evidence was provided of any attempts to procure an easement having the same effect as the one sought on land other than the Council land. This underscores the very particular needs of the Applicants driven by the location of the building on their land, as identified above in [228]. I do not consider that reasonable attempts to obtain an easement having the same effect have been made by the Applicant. That is another precondition not able to be met by the Applicants.

Discretion

As preconditions which are required to be satisfied have not be met by the Applicants the easement cannot be granted. I note that the Court has a discretion whether to make an order even if the other matters in s 88K(1) and (2) are established by the applicant. The matters identified by the Council in the context of public interest set out above in [273]-[274] are relevant to the exercise of the Court’s discretion and also militate against the grant of the easement sought by the Applicants.

Conclusion

The Applicants have been unsuccessful in their application under s 88K and these Class 4 proceedings will be dismissed.

Costs

Section 88K(5) provides that an applicant is to pay the costs of proceedings, subject to any contrary order of the Court. No basis to make a contrary order arises from the proceedings. The Applicants are therefore liable for the Council’s costs of the Class 4 proceedings.

Orders

The Court orders in Class 1 proceedings No 2021/51013:

Proceedings in Class 1 (No 2021/51013) are dismissed.

Parties have liberty to apply for a costs order within 14 days.

The exhibits to be returned.

The Court orders in Class 4 proceedings No 2021/207884:

Second Further Amended Summons dated 27 May 2022 in Class 4 proceedings (No 2021/207884) are dismissed.

Applicants to pay Respondent’s costs of the Class 4 proceedings.

Respondent has liberty to apply for a different costs order within 14 days.

The exhibits to be returned.

**********

Amendments

24 August 2022 - Hyperlinking issue rectified

Decision last updated: 24 August 2022

Medium Neutral Citation:	Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108
Hearing dates:	24-27 May 2022, 27-28 June 2022
Date of orders:	22 August 2022
Decision date:	22 August 2022
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [306]-[307]
Catchwords:	EASEMENT – grant of easement over council owned land used for car park not reasonably necessary for the effective use of the Applicants’ land – Court satisfied that grant of easement not inconsistent with the public interest of use of the land to be benefitted – Court not satisfied that the owner of burdened land can be adequately compensated – Court not satisfied that reasonable attempts to obtain easement or one having the same effect made DEVELOPMENT APPLICATION – approval of centre-based childcare facility dependent on grant of easement for access over council owned land used as car park – access over council owned land prohibited development in SP2 zone – grant of development consent with deferred commencement condition not consistent with Mison principles
Legislation Cited:	City of Ryde Development Control Plan 2014 Civil Procedure Act 2005 (NSW), s 149B Conveyancing Act 1919 (NSW), s 88K Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 3.3, 3.34, 4.15 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW), ss 20, 40 Local Government Act 1993 (NSW) Property Law Act 1974 (Qld), s 180 Roads Act 1993 (NSW), Pt 2, Dictionary Ryde Local Environmental Plan 2014 (NSW), Land Use Table, Dictionary State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), cll 2.49-2.51, 2.59-2.61, 2.84-2.86, 2.123, 3.34-3.36, 3.44-3.46, 3.51-3.53 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (NSW)
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Argyropoulos v Canterbury Municipal Council (1998) 66 LGRA 202 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14638 Community Association DP 270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83 D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24103; [2006] NSWSC 1419 Finlayson v Campbell (1997) 8 BPR 15703 Gordon v Gioia & Anor [2007] NSWLEC 509 Gordon v Lever [2018] NSWSC 1888 Govindan-Lee v Sawkins (2016) 18 BPR 35883; [2016] NSWSC 328 Grattan v Simpson (1998) 9 BPR 16649 Hanny v Lewis (1998) 8 BPR 16205 ING Bank (Australia) v O'Shea (2010) 14 BPR 27317; [2010] NSWCA 71 Khattar v Wiese (2005) 12 BPR 23235; [2005] NSWSC 1014 Ku-Ring-Gai Municipal Council v Masterplan Consultants Pty Ltd [1999] NSWCA 167 Louisiana Properties v Hakea Holdings [2017] NSWLEC 37 Lowe v Kladis (2018) 19 BPR 38599; [2018] NSWCA 130 Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 Marshall v Council of Wollongong (2000) 107 LEGRA 73 Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2005] NSWLEC 467 Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2006] NSWCA 314 Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31257; [2012] NSWCA 445 North v Marina (2003) 11 BPR 21359; [2003] NSWSC 64 O’Shea v Athanasakis (2009) 14 BPR 27093; [2009] NSWSC 1150 Powell v Langdon (1944) 45 SR (NSW) 136 Quick v Alpine Nurseries [2010] NSWSC 1248 Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2 Re Worthston Pty Ltd [1987] 1 Qd R 400 Sader v Langham [2018] NSWSC 727 Serbian Cultural Club “St Sava” Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Sodhi v Stanes [2007] NSWSC 177 Stepanoski v Chen [2011] NSWSC 1573 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845 Vilro v Roads and Traffic Authority (2010) 179 LGERA 47; [2010] NSWLEC 234 Zenere v Leate (1980) 1 BPR 97029
Texts Cited:	Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
Category:	Principal judgment
Parties:	Alramon Pty Ltd (First Applicant) Coxs Road Investments Pty Ltd (Second Applicant) Coxs Road Group Pty Ltd (Third Applicant) Council of the City of Ryde (Respondent)
Representation:	Counsel: N Eastman (Applicants) G Farland with M Keene and P Lin (Respondent) Solicitors: Mills Oakley (Applicants) Bartier Perry (Respondent)
File Number(s):	2021/51013, 2021/207884