Conway v Leeroy Property Investments Pty Ltd - [2025] NSWSC 580

Supreme Court

New South Wales

Medium Neutral Citation: Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580
Hearing dates: 4 to 6 March 2025
Date of orders: 06 June 2025
Decision date: 06 June 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1)   The further amended statement of claim be dismissed.
(2)   The plaintiff pay the first defendant’s costs of the proceedings.
(3)   If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.

Catchwords:
ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle
LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility
LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation
LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation
ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 149E
Conveyancing Act 1919 (NSW), ss 88B, 88K
Environmental Planning and Assessment Act 1979 (NSW), ss 3.16, 4.15 and 4.16
Land and Environment Court Act 1979 (NSW), s 25B
Local Government Act 1993 (NSW), ss 377 and 378
Real Property Act 1900 (NSW), ss 3 and 42

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Aldridge v Wright [1929] 2 KB 117
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144
Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86
Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
JEA Holdings (Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255
Kebewar Pty Ltd v Hawkin (1987) 9 NSWLR 738
Ling v Pang [2023] NSWCA 112
Martinus Rail Pty Ltd v Qube Re Services (No 2) Pty Ltd [2025] NSWCA 49
McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Nahata v Robertson [2023] NSWSC 642
Phillips v Low (1892) 1 Ch 47
Pirrottina v Pirrottina [2025] NSWCA 55
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293
Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191
Schroders Australia Property Management Ltd v Shoalhaven Shire Council [2001] NSWCA 74
Sisic v Rockdale City Council (2007) 158 LGERA 170; [2007] NSWLEC 687
Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76
Swansborough v Coventry (1832) 9 Bind 305
Tenant v Goldwin (1704) 2 Ld Raym 1090
Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146
Warkworth Mining Ltd v Bulfa Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485
Wheeldon v Burrows (1879) 12 Ch D 31
Wilcox v Richardson (1997) 43 NSWLR 4
Williams v State Transit Authority (NSW) (2004) 60 NSWLR 286; [2004] NSWCA 179

Texts Cited:
Brendan Edgeworth, Butt’sLand Law (7th ed, 2017, Thomson Reuters)
F Burns, ‘Implied Easements and the Integrity of the Torrens System’ (2009) 21 Bond LR 1
LB Moses and C Sherry, ‘Unregistered access: Wheeldon v Burrows easements and easements by prescription over Torrens land’ (2007) 81 ALJ 491
M McGuire, ‘A New South Wales perspective of implied and prescriptive easements and the rights in personam exception to indefeasibility of title’ (2006) Australian Property Law Journal 228

Category: Principal judgment
Parties: Vashti Elizabeth Conway (plaintiff)
Leeroy Property Investments Pty Ltd (first defendant)
Tweed Shire Council (second defendant)
Representation:
Counsel:
A Fernon SC / T March (plaintiff)
M Seymour SC / L Nurpuri (first defendant)
Solicitors:
Yates Beaggi Lawyers (plaintiff)
Attwood Marshall Lawyers (first defendant)
Hall and Willcox (second defendant)

File Number(s): 2023/00277334
Publication restriction: Nil

JUDGMENT

These proceedings concern certain parcels of valuable beachfront land at Casuarina – a suburb of the far northern New South Wales coast within the Local Government Area of the Tweed Shire Council (Council).
The plaintiff, Vashti Elizabeth Conway (Ms Conway) is the registered proprietor of Lot 52 in DP X, commonly known as X Harper Court, Casuarina (Lot 52/Conway Land).
The first defendant, Leeroy Property Investments Pty Ltd (Leeroy) is the registered proprietor of the two parcels adjoining the Conway Land to the north comprising of:

Lot 50 in DP X (Lot 50) – commonly known as X Beason Court, Casuarina; and

Lot 51 in DP X (Lot 51) – commonly known as X Harper Court, Casuarina – together Lots 50 and 51 will be referred to as the Leeroy Land.

Set out below is an aerial photograph of the relevant lots (with the relevant lot numbers superimposed):

On 14 June 2022, Council granted development consent to Development Application DA 20/1021 (the Consent) under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), permitting construction and use of a dwelling on the Leeroy Land.
Ms Conway then commenced proceedings in the Land and Environment Court raising three matters:

a declaration that the Consent was invalid and of no effect;

a declaration that on the transfer of Lot 50 and Lot 51 to Leeroy, Lot 51 was burdened by an implied easement in favour of Lot 52 to provide adequate solar access to the principal private open space [1] centrally located in the dwelling constructed on Lot 52 (implied easement); and

an order imposing an easement over Lot 51 pursuant to s 88K of the Conveyancing Act 1919 (NSW) in favour of Lot 52 to provide adequate solar access to the principle private open space centrally located in the dwelling constructed on Lot 52 (s 88K easement).
1. There was no consistency in the documents as to whether the correct term was “principal private open space” or “principle private open space”. Throughout these reasons I have sought to maintain the word actually used in each document.

Because there was a doubt about the jurisdiction of the Land and Environment Court to hear and determine the latter two claims, the proceedings were transferred to the New South Wales Supreme Court: see Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86. Pursuant to s 149E of the Civil Procedure Act 2005 (NSW), the Supreme Court has all of the jurisdiction of the Land and Environment Court.
On 4 September 2023, Council filed a submitting appearance, save as to costs.
Ms Conway continued to advance the three claims. The proceedings were heard on 4 to 6 March 2025. Mr A Fernon SC and Mr T March appeared for Ms Conway. Mr M Seymour SC and Ms L Nurpuri appeared for Leeroy. Ms Conway was given leave to rely on a further amended statement of claim by leave granted, by consent, after the conclusion of the hearing.
For the reasons set out below, each of Ms Conway’s claims should be dismissed:

the decision of Council was not vitiated by any jurisdictional error;

the claim of an implied easement fails for want of the necessary undertaking by Mr Dunlop on behalf of Leeroy to respect Ms Conway’s solar access and natural ventilation so as to amount to an in personam exception to indefeasibility; and

the claim that the Court should impose an easement under s 88K of the Conveyancing Act 1919 (NSW) fails at several levels.

Approach to fact finding, the key witnesses and their credibility

The two principal witnesses were Ms Conway and Mr Sam Dunlop who is the principal of Leeroy (Mr Dunlop). Ms Conway made three affidavits dated 2 February 2024, 23 May 2024 and 3 March 2025 (the day before the hearing). Mr Dunlop made an affidavit dated 3 July 2024. Each was extensively cross-examined. I formed the view that each was doing their best to assist the Court and give their evidence in an honest and forthright manner.
Ms Conway, who is a solicitor who until recently held a practising certificate, was at times combative in the witness box but that was more a product of the nature of the questions being asked of her rather than bearing adversely on her credit. The major area where Ms Conway’s evidence was seriously challenged concerned the evidence contained in an affidavit made the day before the hearing as to what was allegedly said by Mr Dunlop to Ms Conway at a meeting that took place on Lot 52 on 12 June 2020. I deal with this evidence below when I deal with the disputed conversation. The circumstances in which this evidence was given, including delay, and the surrounding objective circumstances and probabilities lead me not to accept this evidence.
Mr Dunlop, on the other hand, was occasionally prone to giving self-serving answers that he would reasonably quickly resile from when pressed. For the most part, I accept his evidence including in relation to what was said on 12 June 2020.
In considering the credibility of Ms Conway and Mr Dunlop and more generally the factual findings I should make, I am conscious that a number of the most relevant events – including the alleged conversations involving Ms Lorna Savage (Ms Savage), Ms Conway and Mr Dunlop – occurred in 2020, almost five years prior to the hearing.
In Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 at [8]-[11], I summarised the well-known principles in the following terms:

[8]   … I consider below whether any of the representations were made. In so doing, I bear in mind the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 to the effect that:
(a)   it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading or were clear and unequivocal so as to found an equitable estoppel;
(b)   human memory of what was said in conversation is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often sub-consciously, constructed;
(c)   each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court must feel an actual persuasion of its occurrence or existence; and
(d)   considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action in the absence of some reliable contemporaneous record or other satisfactory corroboration.

[9]   As a corollary, I proceed on the basis that contemporaneous records (to the extent they exist) are likely to provide the most reliable evidence of what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing). Inherent probabilities in the circumstances are also a strong guide.
[10]   Mere mechanical comparison of probabilities, independent of any belief, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references: see Emmett J in Warner v Hung, Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].
[11]   As Legatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

The relevant facts

Very few of the relevant facts were in dispute.
I set out below the relevant facts, resolving any disputed facts.

An introduction to the properties

Prior to their sale to Ms Conway and Leeroy in 2020, Lots 50, 51 and 52 were in the common ownership of Lazy Axle Pty Ltd (Lazy Axle). Together, those three titles comprise approximately 2,911 square metres. Only Lot 52 was developed – a substantial dwelling having been constructed on it in about early 2007. The dwelling comprises, inter alia, five bedrooms and two double garages.
The dwelling was designed and built with an aluminium and glass floor to ceiling curved curtain wall to its north eastern elevation. This curtain wall measures approximately 20 metres in length and seven metres in height. This was designed to capture the natural light and natural ventilation from the north-east. The total land area of Lot 52 is 1,355 square metres.
Lot 51 had constructed on it a multicar garage and swimming pool. Lot 50 was largely vacant. The three properties were used as one land holding.
From in about May 2019, the three properties were marketed for sale by LS Properties and other agents at times on behalf of Lazy Axle. The principal of Lazy Axle is Mr Kees Weel (Mr Weel). LS Properties is run by Ms Savage. It was not in dispute that Brent Savage (Ms Savage’s son), who also worked for LS Properties was a friend of Mr Dunlop. Mr Dunlop also admitted that he had a “very friendly relationship” with Ms Savage.
The marketing material for the three properties included statements such as:

Built on a landholding of approx. 2911 sqm, incorporating four beachfront blocks with three titles, “... Harper”, is a timeless beachside residence in north-eastern New South Wales.
…
The two-level home was master built in 2005 … featuring chic yet earthy interiors with bespoke cabinetry, curved walls, 8-metre high ceilings and quartz tiles. Electric blinds and windows maximise natural light and airflow throughout.

Each of the relevant parcels are separated from Casuarina Beach by a public reserve.
Between 20 July 2018 to 10 August 2020, Mr Dunlop owned and lived in the property at X Beason Court, which is immediately to the north of Lot 50 and is known as Lot 49 in DP X (Lot 49). He owned this property through Leeroy. On that property was a house with a gross floor area of about 380 square metres. Leeroy sold that property to Mr Weel at about the same time as Leeroy bought Lot 51 from Mr Weel. The size of the house has some relevance in light of what Ms Conway says was said to her at the time of buying.

Conversations prior to Ms Conway buying

An important aspect of Ms Conway’s claim to an implied easement was conversations that she says she had either with the agent (Ms Savage) or Mr Dunlop prior to purchasing the Conway Land.
It was not in dispute that there were discussions but what was said, or in the case of what Ms Savage said, what could be attributed to Mr Dunlop, was in dispute. I set out the respective versions below and then make findings on the disputed aspects of the conversations.
Ms Conway first inspected Lot 52 and the house built on it in or around early 2020. She inspected Lot 52 with another agent who was marketing it for sale at the time.
She immediately observed, among other things, that because of its layout and curtain wall, it enjoyed substantial solar access to both its indoor and outdoor areas. She also observed that the private outdoor areas enjoyed frequent direct sunlight and frequent coastal breeze, and the indoor areas also benefited from frequent direct sunlight.
None of this evidence was seriously challenged. I accept it.
After inspecting Lot 52 for a second time with her family, Ms Conway made an offer to purchase it but did not receive a response. Ms Conway’s interest in Lot 52 returned in April or May 2020, as I describe below.
According to his affidavit evidence, Mr Dunlop was approached by Ms Savage shortly before 27 March 2020 and asked whether he was interested in purchasing Lots 50, 51 and/or 52. In cross examination he agreed that in January 2020, he exchanged text messages with Ms Savage in relation to him potentially purchasing all three blocks. On 18 January 2020, he sent a text message to Ms Savage which included:

As per our conversation of Thursday, speaking with my accountant, I have in the area of 4.5 – 5 million to spend. Without wasting everyone’s time, I thought I could only ask the question on Harper ct property if a deal could be done in this range. …

At some stage, Mr Dunlop inspected the three lots. He agreed in cross examination that it was obvious to him when he inspected the three lots that the house on Lot 52 had been designed and constructed with a northerly aspect. He was also aware that it had an outdoor living space in front of the house structure itself, facing north and that within the house it had a very large glass curtain wall with light coming into that area. There was no blockage or interference with the flow of sunlight or air. Mr Dunlop agreed that this was a significant feature amongst all the houses in that particular area of Casuarina – north facing design for the purposes of receiving the natural sunlight and natural ventilation. It was an important feature to him and, as he understood it, for any other prospective purchaser.
Mr Dunlop withdrew his “interest” in the three lots at the time (January 2020) because, in his words, his budget “wasn’t going to cut it” and because it was too big of a property.
According to Mr Dunlop, on or around 30 March 2020, he attended at Lot 50 to meet with Ms Savage and Mr Weel at which time a deal was done for Mr Dunlop to buy two of the blocks – Lots 50 and 51. Part of the arrangement was also for Mr Weel to buy Lot 49 from Leeroy. A contract was entered into at the time for Lot 50 for Leeroy to purchase it from Lazy Axle for $1,400,000, but the contract for Lot 51 was not entered into until later. Mr Dunlop was not seriously challenged on his evidence that a deal was struck at this time for him to buy both Lots 50 and 51, although in his affidavit evidence he said it was on 27 March 2020 he agreed to buy Lot 50 after a discussion with Ms Savage, with the offer to buy Lot 51 following on from a meeting with Mr Weel on 30 March 2020. For present purposes, the difference between these pieces of evidence is immaterial – the deal to buy the two lots was done by 30 March 2020.

The contract for the sale of Lot 50 settled on 7 May 2020.
In or around April or May 2020, Ms Conway decided to make a further inquiry about Lot 52 and ascertained it was no longer listed for sale. She expressed interest to Lazy Axle in buying all three lots – Lots 50, 51 and 52. Ms Savage then contacted her. I set out below the conversation which Ms Conway says she had with Ms Savage at or about this time. Before doing so, I set out Mr Dunlop’s evidence as to his contact with Ms Savage at or about this time as it probably occurred prior to the discussion between Ms Conway and Ms Savage.
According to Mr Dunlop, in May 2020 – and after he agreed with Mr Weel to buy Lots 50 and 51 – he had a discussion with Ms Savage in relation to what he was proposing to build on Lots 50 and 51. Mr Dunlop eventually agreed in cross examination that at the time of this discussion with Ms Savage, he was aware that Mr Weel was still trying to sell Lot 52, having first said he was not aware. Mr Dunlop was told by Ms Savage that she had two interested purchasers for Lot 52. Ms Savage spoke to Mr Dunlop about issues associated with prospective buyers inspecting Lot 52. Ms Savage asked Mr Dunlop what his plans were in relation to building on Lots 50 and 51 and said she wanted to know because she needed to tell prospective purchasers of Lot 52, because prospective purchasers would have concerns about the impact of such building work on the flow of light and air to Lot 52, as well as privacy.
On 22 May 2020, after the conversation with Ms Savage, Mr Dunlop sent a text message to Ms Savage in the following terms:

Hi Lorna,
No real plans as of yet, but my first impressions of what I can see ya [sic] doing would be mostly built to the front of the block with some lower set living towards the back,
One thing for sure is the pool is most definitely not going to be there as I [Mr Dunlop] have the neighbour, Jordan’s and my interest into being private as possible.
I know Kees was mentioning he was maybe going to replace the louvre fins to the arbour that extends to create more privacy.
Another thing to note to your buyers that I have no interest in having a house any bigger then what we are currently in, so in perspective of land size most of it will be towards the street. There will be no monstrosity being put there Lorna! You have our word! Haha.
Hope this helps.
Thanks,

Ms Savage replied on 22 May 2020:

Sam that’s great thanks so much! I will try to get you good neighbours.

In cross examination, Mr Dunlop:

said that Ms Savage wanted to know what his plans were in relation to building on Lots 50 and 51 because she needed to tell prospective purchasers of Lot 52 what his plans were, because prospective purchasers would have concerns about the impact of such building work on the flow of light and air to Lot 52, and privacy as well;

said he knew Ms Savage would pass on what he told her to prospective purchasers;

acknowledged the text message extracted above was sent by him after the conversation with Ms Savage;

acknowledged one of his concerns at the time was privacy – which is why he said in the text he was getting rid of the pool. He agreed that the issue of privacy was also very relevant to prospective purchasers of Lot 52 at the time;

said he would not agree that the part of the text where he referred to having no interest in having a house any bigger than his current house was a statement of what he was definitely going to do as he had started the message with “no real plans as of yet”;

said he did not have very firm views of the size and style of house he wanted to build because he had not engaged an architect yet;

accepted that what he conveyed to Ms Savage in the text was that “most of the modest house would be towards the street, and that there would be no monstrosity built there”, which he regarded as an eyesore, not a building that blocked out the solar and ventilation into Lot 52;

ultimately agreed that based on Ms Savage’s response he was aware that Ms Savage would be trying to get him good neighbours based on the information he provided, but he qualified his answer by reference to the fact that he began his text message with “no real plans of yet, but my first impressions …”;

did not agree that Mr Weel told him that he would not exchange in relation to Lot 49 and Lot 51 until he had done a deal for Lot 52.

Ms Conway’s evidence of the discussion she had at the time with Ms Savage (who Ms Conway refers to as Ms Zoe) was to the following effect:

Shortly after my approach to Lazy Axle, I received a telephone call from a female person who identified herself as Lorna Zoe of LS Properties (Agent). The Agent and I had a conversation the gist of which was to the following effect:
Agent:   “I am now the agent for ... Harper Court, Casuarina. The Vendor has sold the neighbouring blocks with the garage, pool, and gardens to the neighbour on the opposite side. The house is now being sold on its own.”
Me:   “That’s a shame. I’m not interested in the house without those blocks of land being included. I don’t want anyone to build on them and block out the sunlight or the coastal breeze the house receives from its north face. That would destroy the value of the property for me. I also want the privacy from neighbours looking onto my property or into my house.”
Agent    “I’ve been dealing with the buyers of those two blocks. They’ve told me they want to build something modest. The wife’s family has a lot of money. They considered buying the house but said it was too big. They’ve told me that they will build a second storey on the existing garage. They will build at the front of the two blocks. The blocks are longer than these ones. They travel further forward, closer to the road. So, they won’t be building anything that blocks the sunlight or sea breeze. Their plans won’t affect your privacy. I agree that any building close to the northern boundary would overshadow the house and destroy the value of the property. Why don’t you come and see the property again and see where the dividing fence and their building will go and how much space there still is.”

In response to this evidence, Mr Dunlop gave evidence in his affidavit, relevantly that:

…
(a)   At no stage did I have a conversation with Ms Savage and / or say words to Ms Savage to the following effect:
(i)   “l want to build something modest”:
(ii)   “my wife’s family has a lot of money”;
(iii)   “we will not be building something that blocks the sea breeze”;
(iv)   “we will build at the front of the two blocks”;
(v)   “we will build a second storey on the existing garage”;
(vi)   “the plans will not affect the [Ms Conway’s] privacy”.

(b)   I do recall having a discussion with Ms Savage in or around May 2020 where l said words to the following effect of the following:
(i)   I considered buying the house [Dwelling] but it is too big;
(ii)   We are looking to build at the front of the two blocks;
(iii)   We might build on the top of the garage;
(iv)   We have not yet engaged an architect so we are not entirely sure what we are going to do.

(c) At the time of having this discussion with Ms Savage, Leeroy had not engaged an architect, and as such there was no real idea of how we are going to develop the land other than in building dwellings.

Ms Conway also deposed (at paragraph 39 of her principal affidavit) to a further conversation with Ms Savage (who Ms Conway refers to as Ms Zoe) in the following terms:

I subsequently inspected the Property for a third, and or possibly fourth, time with Ms Zoe. During the subsequent inspection Ms Zoe drew my attention to the proposed location of the first defendant’s dwelling. She described by words and hand gestures that the first floor of the proposed dwelling would be built towards the front/ western boundary of the Neighbouring Land, and that construction of the first floor would not reach nor affect the area of private open space to the Dwelling, the Curtain Wall, nor the light and ventilation the Property and Dwelling enjoyed. She said words to me the gist of which were to the following effect: “From my discussion with buyers, their home will be built here at the front. It will be modest. It will end at a point where it doesn’t affect the northerly aspect of this house. It will still have privacy, sunlight, and coastal breeze into the courtyard and in through those doors and windows, to the house”.

There was no contemporaneous text message between Mr Dunlop and Ms Savage that preceded this discussion.
There was an occasion when Mr Dunlop spoke to Ms Conway directly, in relation to his plans. This occurred on or around 12 June 2020 at a meeting on Lot 52 attended by Mr Dunlop, Mr Weel, Ms Savage, Ms Conway and her children.
Mr Dunlop’s affidavit evidence in this regard came in response to Ms Conway’s evidence of her second substantive discussion with Ms Savage (extracted above) from paragraph 39 of her principal affidavit and was to the following effect:

23.   ln relation to paragraph 39 of the Conway Affidavit, l:
(a)   disagree that I said words to Ms Savage that would be to the effect stated.
(b)   I do recall having a discussion with Ms Savage sometime around 12 June 2020 to the following effect:
(i)   Ms Savage said: they [Ms Conway and her partner, Farshad Amirbeaggi (“Mr Amirbeaggl”)] are looking to make an offer but want to have a discussion about what you are going to build, because they are concerned about what you intend to build next door.
(ii)   I responded with: We are looking to build a two-storey house towards the front of the blocks, with a single storey wing along the southern side of the block. We still haven’t engaged an architect so we are not entirely sure what we are going to do.

24.   On or around 12 June 2020, I attended at the Property with Kees, Ms Savage, Ms Conway and her children. At that meeting, I recall Ms Conway and I exchanging words to the following effect:
(a)   Ms Conway said words to effect of: We want to know what you intend to build?
(b)   I said: We are looking to build a two storey towards the front of the blocks, with a single storey wing along the southern side of the block but we still haven’t engaged an architect so we are not entirely sure what we are going to do.

Ms Conway did not refer to this meeting (with Mr Dunlop) in her principal affidavit in which she set out her dealings with Mr Dunlop or in a subsequent affidavit made in May 2024. On 3 March 2025, the day before the commencement of the hearing and after Ms Savage had produced her text messages with Mr Dunlop including the message of 22 May 2020 extracted above – Ms Conway made a further affidavit which was read without objection at the hearing. The first paragraph of the affidavit deposed to the fact that in “preparation for final hearing of this matter it has come to my attention that I have not responded to” Mr Dunlop’s affidavit. There then followed two paragraphs. The first was brief, responding to paragraph 20 of the Dunlop affidavit by making a minor correction to her 2 February 2024 affidavit.
The second paragraph was in response to paragraph 24 of Mr Dunlop’s affidavit (set out above), to which Ms Conway said:

3.1 I do not recall Mr. Dunlop saying words to the effect of: “but we still haven’t engaged an architect so we are not entirely sure what we are going to do” as he alleges. I do not believe he said any such words because if he had and there was any doubt whatsoever about what he proposed to build I would not have proceeded with a purchase of ...Harper.
3.2 during the meeting Sam said words to the following effect of: “We are going to build a house at the front of the blocks. We’ll build a second level at the front and only build a single level along the back. We’ll make sure it doesn’t affect the sun and breeze or privacy of ... Harper. We don’t want anything big. It won’t be bigger than our current house. We want something modest. You have our word on that.”

Both Ms Conway and Mr Dunlop were cross examined about their evidence of this meeting.
Mr Dunlop:

agreed that at least part of the reason for the meeting was to discuss Leeroy’s plans for Lots 50 and 51;

denied Ms Conway’s version of the conversation as set out in her 3 March 2025 affidavit both that the conversation was anything specific in terms of solar access or ventilation or that he said “you have our word on that”;

denied that he was concerned to assure Ms Conway at the meeting on 12 June 2020 that he wasn’t going to build anything that would interfere with the flow of light and ventilation;

agreed that it was obvious to him in June 2020 that a concern to an incoming purchaser was that one of the consequences of his building work on Lot 51 was its impact on the flow of sunlight and air into the main living areas of Lot 52;

denied that he understood that Ms Conway would be relying on the information that he was giving her – that was for her to decide – that’s her judgment and he wouldn’t be buying a house just on a general conversation.

Ms Conway’s cross examination on this discussion focussed on two matters. First, why Ms Conway had not included the conversation in her first affidavit. Ms Conway said that “it was just an error on my part that I hadn’t included it. It was just an omission”. She later said:

When I prepared my earlier affidavit, I was reminding myself with emails and written communications, and so it didn’t come to mind at the time. But when it was brought to my attention, I very clearly recalled the event. It was something that I relied on at the time.

Second, Ms Conway was cross examined on whether, at the time she made her 3 March 2025 affidavit, she was aware of the text messages between Mr Dunlop and Ms Savage. Ms Conway said she had not read the text messages but was “generally aware of the evidence that’s been produced”. Ms Conway denied that her recollection could have been altered by what was in the text messages. I observe at this point that this answer is difficult to reconcile with the answer set out above to the effect that matters needed to be brought to her attention before she could recall them.
In cross examination, Ms Conway also gave evidence that at the 12 June 2020 meeting, Mr Weel had said to her words to a similar effect as was said by Mr Dunlop. Ms Conway agreed that the first time she had said this was in cross examination but that “doesn’t mean it’s not true”.
Ms Conway accepted that, at no time in the conversations she had with Ms Savage or Mr Dunlop, was an easement ever mentioned.
I set out below my findings on this disputed conversation. Before doing so, I complete this section of the chronology.
Ms Conway signed a contract for the purchase of Lot 52 on 18 June 2020 for $3,400,000. She said that she did so having inspected Lot 52 on several occasions and having comfort about the preservation of its solar access, natural ventilation and privacy. That contract settled on 1 September 2020.
Prior to entering into the contract, Ms Conway requested a special condition be included in the contract to, she says, deal with her concerns in relation to what might be built next door. The letter dated 5 June 2020 requesting amendments to the draft contract for sale was signed by Ms Conway herself as “Special Counsel - Yates Beaggi Lawyers”. The letter relevantly requested the following amendments:

The Vendor will not consent or make any development application relating to Lot 51 without the prior written consent of the Purchaser.
AND
If the Vendor completes on a Contract for Sale of Lot 51 before completion of this Contract:
(a) It must within 2 business days of notice of any development application in respect of Lot 51 notify the Purchaser (such notification to include provision of all documentation received by it); and
(b) the Vendor must lodge with the consent authority for and on behalf of the Purchaser within 2 business days of provision of it any submission or objection to the development application with respect to Lot 51.

The first amendment was rejected and the second accepted. Special condition 48 was included in the following terms:

48    Sale by Owner of Lot 51
If the vendor completes on a Contract for Sale of Lot 51 before completion of this Contract the vendor will:
a.   Within 2 business days of notice of any development application in respect of Lot 51 notify the purchaser (such notice to include provision of all documentation received by it); and
b.   The vendor must lodge with the consent authority for and on behalf of the purchaser within 2 business days of receipt (from the purchaser) of any submission or objection to the development application with respect to Lot 51.

Ms Conway said in her second affidavit that the amendment “was sought by me in furtherance of” her communications with Ms Savage and “as a measure by which I could preserve the solar access and natural ventilation enjoyed by [Lot 52] against any proposed development by [Leeroy] upon [Lots 50 and 51]”.
Ms Conway was cross-examined about the request to amend the contract. Ms Conway admitted that she did not make any claim on the vendor for them to create an easement benefitting Lot 52 and burdening Lot 51.
On or around 10 August 2020, Leeroy signed a contract to buy Lot 51 for $1,150,000. That contract settled on 25 September 2020.

Resolution of the disputed conversations and reliance

Having set out the competing evidence in relation to the various conversations, I now set out my findings.
A preliminary issue is whether there is any significance in the fact that Ms Savage was not called to give evidence in the proceedings. It is to be recalled that Ms Conway deposed to two conversations with Ms Savage and Mr Dunlop sent several text messages to Ms Savage.
Each party contended that the other should have called Ms Savage as part of their case and a Jones v Dunkel inference should be drawn against the other by reason of the failure to call.
Ms Conway relied on the fact that Mr Dunlop was a close friend of Ms Savage’s son, who was also a partner or worked in the real estate agency business. The text messages between Mr Dunlop and Ms Savage also suggest a friendly relationship between the two. Mr Dunlop admitted that he has a very friendly relationship with Ms Savage and has not, as at the time of the hearing, had much contact with Ms Savage or her son for a couple of months.
On the other hand, Leeroy contended that to the extent that Ms Savage is a material witness needed to confirm elements of the claim, it was incumbent on Ms Conway to call her. Ling v Pang [2023] NSWCA 112 at [29] was cited in support of this contention.
I do not regard the absence of Ms Savage as overly significant in the ultimate determination of what was said. Whilst it is clear that Ms Savage and Mr Dunlop have a friendly, or even very friendly relationship, there was no real dispute as to what Ms Savage said to Ms Conway – rather the dispute was as to what Mr Dunlop said to Ms Savage and whether everything that Ms Savage said to Ms Conway should be attributed to Mr Dunlop. In my view, there is no proper basis for everything said by Ms Savage to Ms Conway to be attributed to Mr Dunlop.
Ms Savage was communicating with Mr Dunlop in May 2020 – leading to the text message on 22 May 2020 – as agent for Lazy Axle seeking to obtain some information from Mr Dunlop as the incoming purchaser of Lots 50 and 51 as to what he was proposing to build. Ms Savage was not acting as Mr Dunlop’s agent such that everything said by Ms Savage should be attributed to Mr Dunlop. Given that the only reliable evidence of what Mr Dunlop conveyed to Ms Savage in this regard is what is set out in Mr Dunlop’s text message to Ms Savage of 22 May 2020, to the extent to which it is appropriate to attribute to Mr Dunlop anything said by Ms Savage, nothing should be attributed beyond that contained in the 22 May 2020 text. I have real concerns however, about why anything said by Ms Savage to Ms Conway should be attributed to Mr Dunlop and thus Leeroy. As set out below, I also regard what was said directly by Mr Dunlop to Ms Conway on 12 June 2020 as more relevant and overtaking anything previously said by Ms Savage to Ms Conway.

Relatedly, the approach taken by Leeroy was not to cross examine Ms Conway on the basis that she did not have the conversation which she says she had with Ms Savage. Rather, the approach taken – in final submissions – was to identify – from what Ms Conway says Ms Savage told her to what could be attributed Mr Dunlop based on his text message to Ms Savage on 22 May 2020.
Properly understood, there was thus no real issue as to what Ms Savage said to Ms Conway. Ms Savage’s absence as a witness in the proceedings thus does not bear against either party.
Turning to the first two conversations between Ms Conway and Ms Savage – which I have set out above – Leeroy sought to identify from that which Ms Conway deposed to what could be sourced back to Mr Dunlop’s text of 22 May 2020.
The following mark-up of the first conversation was provided:

Agent: I’ve been dealing with the buyers of those two blocks. They’ve told me they want to build something modest. The wife’s family has a lot of money. They considered buying the house but said it was too big. They’ve told me that they will build a second storey on the existing garage. They will build at the front of the two blocks. The blocks are longer than these ones. They travel further forward, closer to the road. So they wont be building anything that blocks the sunlight or the sea breeze. Their plans wont affect your privacy. I agree that any building close to the northern boundary would overshadow the house and destroy the value of the property. (Emphasis added.)

The emphasis in bold is what Leeroy contends is consistent with the text message from Mr Dunlop to Ms Savage. The un-emphasised portions of the conversation has no basis, Leeroy contends, in any authority granted by Mr Dunlop to be passed on to Ms Conway and, in any event, on their face represent Ms Savage’s own views. I accept this submission.
Turning to the second conversation between Ms Conway and Ms Savage, some of the statements made by Ms Savage are consistent with the earlier text message of 22 May 2020 and some are not. There is no suggestion that Mr Dunlop had a further discussion or discussions with Ms Savage providing for further information as to his plans.
I agree with Leeroy’s submission that the phrase “… their home will be built here at the front. It will be modest” could be fairly attributed to the earlier text message from Mr Dunlop to Ms Savage. The remainder is not.
The more relevant exchange is that which occurred at the meeting on Lot 52 on 12 June 2020. This was an exchange directly between Ms Conway and Mr Dunlop, and also Mr Weel. It was requested by Ms Conway. Notwithstanding what had apparently previously been said to her by Ms Savage, she wanted to speak to Mr Dunlop as the incoming owner of Lot 51.
In these circumstances, as a matter of ordinary common sense, it is only this later in time and direct discussion that could be relevant in terms of what assurance, if any, Mr Dunlop gave to Ms Conway.
I am not persuaded that the conversation occurred in the manner contended for by Ms Conway. I prefer Mr Dunlop’s account.
There is no contemporaneous documentation or material to support Ms Conway’s version. Ms Conway’s version of the conversation was not given until the day before the hearing commenced, almost five years after the 12 June 2020 meeting. Although on Ms Conway’s version, the statements made by Mr Dunlop were crucial to Ms Conway’s decision to buy and were of central relevance to the implied easement claim propounded by Ms Conway in these proceedings, Ms Conway obviously had no recollection of the conversation at the time that she made her two earlier affidavits in February and May 2024. Ms Conway’s initial answer in cross examination that the failure to include the conversation in her first affidavit was an error, or omission, is difficult to accept.
It seems that Ms Conway’s “recollection” was prompted by either seeing or being told the contents of Mr Dunlop’s 22 May 2020 text to Ms Savage, yet it is not entirely clear to me why the contents of that text message (which did not involve Ms Conway) would then prompt a recollection that Mr Dunlop made definite statements on a later occasion and directly to Ms Conway well beyond the contents of the text and offered “his word”, i.e. a guarantee on that.
I am also concerned that further important details were then apparently “recalled” by Ms Conway under cross examination – namely that Mr Weel also made similar statements and offered his word as well to Ms Conway.
These matters cause me to have serious reservations about Ms Conway’s account.
What occurred after the assurances were allegedly given is, in my view, inconsistent with any such assurances. As set out above, Ms Conway sought amendments to the draft contract. The amendments sought only related to whether Mr Weel could submit a development application on Lot 51, or an objection being lodged by Mr Weel on her behalf if a development application is submitted with respect to Lot 51.
The request is inconsistent with Ms Conway’s version of the conversation on, at least, several levels.
First, if assurances had been given by Mr Dunlop that he would only build in certain locations and would make sure that it did not affect the sun and breeze or privacy of her home, there is no reason why an agreement to this effect could not be documented if it was crucial to Ms Conway’s decision to buy. Alternatively, clauses could have been inserted into Ms Conway’s contract with Mr Weel requiring covenants to be included in the contract between Mr Weel and Mr Dunlop. It is of some significance in this regard, in my view, that Ms Conway is a solicitor and ought to have been, and obviously was, given the requested alterations to the contract, alert to seeking to legally protect her position.
Second, including a right to object to any development application is inconsistent with any assurances having been given. Ms Conway was obviously aware, given Lot 51 had no house constructed on it, that a house was going to be constructed on it and had no certainty at all as to what was proposed to be built and how it would likely impact her property. That is why she sought the amendments that she did.
Ms Conway’s failure to subsequently refer to the assurances she says were given directly to her by Mr Dunlop, and Mr Weel, is also telling.
Mr Dunlop’s version is, in my view, more consistent with the objective circumstances and inherent probabilities. There is no suggestion that Mr Dunlop had engaged any architect at the time or had any great clarity as to what it was that he was proposing to build. There is also no powerful reason as to why Mr Dunlop would be giving to a potential purchaser of the block next door, what is sought to be characterised as a virtual guarantee as to what he would build and where. I am conscious that the context for the discussion was Mr Weel wanting to sell Lot 52 and the intending purchaser (Ms Conway) wanting some idea as to what was proposed to be built on Lot 51. This, in my view, is not sufficient to conclude that Mr Dunlop effectively undertook not to interfere with Ms Conway’s light and ventilation, particularly having regard to the matters set out above.
That context lends itself more to the general statements of the kind which Mr Dunlop deposed to – namely what he was looking to do.
I am thus not persuaded that anything said by Mr Dunlop to Ms Conway on 12 June 2020 could be construed as any sort of undertaking by him to respect Ms Conway’s access to light and ventilation.
Relatedly, I do not accept Ms Conway’s evidence, no doubt intended in her March 2025 affidavit to buttress her recollection of the assurances that were allegedly given to her by Mr Dunlop, that if she was in any doubt as to what Mr Dunlop proposed to build, she would not have purchased Lot 52. Such evidence is, again in my view, inconsistent with Ms Conway’s conduct in only seeking the amendments she did. It is inherently unlikely, in my view, that in the circumstances a solicitor purchasing a property would apparently rely on an undocumented conversation with the incoming purchaser on an apparently crucial matter – an assurance she would not built out.
Having regard to all the evidence I find that Ms Conway was obviously concerned about what Mr Dunlop would build, she spoke to him about it, he made general statements – nothing more – and she then sought to protect her position as best she could. No assurance or undertaking was given by Mr Dunlop.

Lodgement of development application and its assessment

On 8 December 2020, Leeroy lodged a development application (through Zone Planning Group (ZPG)) for the demolition of the existing structure (the garage and pool on Lot 51) and the construction of a new two storey dwelling with attached garage, in-ground swimming pool and front fence. The plans for the proposed dwelling showed a proposed set back of 1,500 mm on both the ground floor and first floor in the area where the southern boundary of Lot 51 meets the open space area on the northern boundary of Lot 52. On the northern side of the proposed dwelling the proposed setback from the boundary was, at its closest, four metres on the ground floor and nearly ten metres on the first floor. The application also included several shadow studies.
Mr Sam Smith (Mr Smith), a Town Planner with Council was primarily responsible for assessing the application.
By email dated 25 January 2021, Mr Dunlop emailed a copy of his plans to Ms Conway. It appears that this followed on from a meeting of sorts on that day when Mr Dunlop showed Ms Conway his plans. Ms Conway says she became immediately concerned that the plans were completely contrary to what had been represented to her. She deposed to a conversation with Mr Dunlop to the following effect:

VC:   “I understood that you were building at the front of the property. On top of the existing garage. So that it wouldn’t block out the sunlight and ventilation to my property. That’s what Lorna said to me when I was negotiating to purchase the property.”
SD:   “We were but when we sat down and looked at it, we changed our mind. It works better this way. It’s not as bad as you think. It won’t block out all your sunlight or breeze. All the houses along here are built that way, so it’s kinda unavoidable that we will block out some of your light.”
VC:   “This is quite concerning for me. Can you please email the plans to me?”
SD:   “Yes. I will email them to you.”

Ms Conway admitted that she did not make any mention in this conversation to an easement benefitting Lot 52. (There is also no reference to any direct conversation with Mr Dunlop). She maintained, however, that based on what had been represented to her that there was an obligation held to her, although she admitted she did not assert any obligation at that time. She also accepted that at no time thereafter, during her objections to Council, did she assert any easement.
Mr Dunlop agreed that there was a discussion with Ms Conway on 25 January 2021 but not to the effect deposed by Ms Conway. According to Mr Dunlop, they exchanged words to the following effect:

(a)   Ms Conway said: wow it’s [the dwelling] big;
(b)   I said: we looked at it with the architects, and it wasn’t going to work to build at the front of the block, so we are building further back. It’s not as bad as you think. All the houses are built that way so it’s kinda unavoidable that we will block out some of your light.
(c)   She said: can you email me the plans,
(d)   l said: Yes. I will email them to you.

It is not necessary for me to resolve this dispute as the conversation post-dates the relevant purchases. I observe that on Ms Conway’s version there is no reference to any statements having been made directly to her by Mr Dunlop on 12 June 2020. Nothing in Ms Conway’s version causes me to alter my findings above as to what was stated prior to contract.
On 27 January 2021, Ms Conway sent a communication to Council stating that she had not been given formal notice of the development application by Council but had received a copy of the plans from Mr Dunlop. The communication further stated that Ms Conway proposed to object on several grounds and required 14 days to do so.
On 28 January 2021, Mr Smith emailed Ms Conway informing her that neighbour notification was in fact provided on 6 January 2021 but granting her an extension to 9 February 2021. Ms Conway lodged her objection on 3 February 2021, being submissions prepared by CityScape Planning and Projects (CityScape). The key planning issue raised in the submission was the overshadowing of Ms Conway’s external dining area.
On 4 February 2021, Ms Conway sent an email to Mr Smith of Council reserving her right to prosecute an appeal to the Land and Environment Court in certain circumstances. The email also advised that Ms Conway had engaged solicitors and counsel. The solicitors were her husband’s firm, Yates Beaggi Lawyers, where she was, and is, herself employed.
Mr Smith inspected Ms Conway’s property on 19 February 2021.
On 25 March 2021, Council wrote to ZPG raising several matters.
Under the heading Town Planning, the letter from Council stated:

1. The proposal results in considerable overshadowing to the principle private open space of the adjoining southern allotment and does not achieve compliance with the following control of the Tweed Development Control Plan 2008 - Section A1:
4.3 Solar Access and Natural Ventilation
C4. For neighbouring properties ensure:
i. Sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21

Although the submitted DCP A1 address identifies the eastern side of the southern adjoining dwelling as the ‘principle open space’, the northern side private open space highlighted below has been determined to be more appropriately identified as the ‘principle private open space’. This area extends off the primary internal living areas and is also to feature a recently approved inground pool, which further enhances the area as the principle private open space.
[The letter then contained three images from the shadow studies included in the application with the outdoor area on the northern side of Lot 52 highlighted]
The submitted shadow diagrams indicate that this area will not receive a compliant amount of sunlight on the 21 June between 9am and 3pm.
Please amend the design of the dwelling accordingly to ensure a complaint [sic] amount of solar access to the adjoining southern property.

Under the heading “Sustainability and Environment” the letter requested ZPG to provide:

1)   An amendment to the TPZ Project Arborist Arboricultural Report which includes;
a.   A more thorough arboricultural assessment of the potential impacts to Tree 1 and possible management options. The assessment is to take into consideration (at a minimum); the potential impacts of the proposed footpath, potential Atlanta Cell Stormwater System and construction of new 1200H boundary fence wall. TSC’s S&E Unit have provided an overlay of proposed plans with more accurate representations of Tree 1 ‘s TPZ and SRZ and of the potential Atlanta Cell Strom Water System (observed in the Bushfire Assessment Report) for reference sake.
b.   Accurate depiction (to sub 0.5 metre accuracy) of Trees 1 & 7’s location of as well as their TPZ and SRZ.

2) An internal sewer and stormwater drainage plan demonstrating compliance with the following recommendation made on page 6 of the arboricultural report being “In order to eliminate any potential impacts upon the vitality of Tree 7 it is proposed that the new sewer be routed outside of the TPZ of this tree”.

Questions were raised by ZPG and on 1 April 2021, Mr Smith sent an email to ZPG which stated inter alia (emphasis in original):

The objective of the control is to minimise the potential impacts on solar access and natural ventilation to adjoining properties. While I note your diagram identifies 50% of the total outdoor area, with consideration of the existing roof form and the objectives of this Clause, it needs to be adequately demonstrated that Sunlight to 50% of principle area of open space (the area which receives solar access and is not already shadowed by existing roof form) is not limited to less than 2hrs of sunlight on the 21 June between 9am and 3pm. I have highlighted this area below for further clarification.
Additionally the control specifies that sunlight to at least 50% of the principle area of private open space is not reduced to less than 2hrs ... .....
Including the area already shadowed by existing roof form would defeat the intent of the objectives and controls of this clause.
It is recommended that the response to Council’s further info request includes a floor plan of the adjoining property and clearly demonstrates the compliant overshadowing.

The area highlighted on the image is the area containing the concrete areas on the northern boundary of Lot 52. Only the unroofed section appears to be highlighted.
Mr Smith had, earlier that day sent an email to ZPG in which, inter alia, Mr Smith referred to the definition of Principle private open space in SEPP (Exempt and Complying Development Codes) 2008 of:

Principal private open space means an: area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling other than a bedroom.

On 16 April 2021, Damian Overeem, one of the designers of Mr Dunlop’s house, sent an email to Mr Smith in the following terms:

Hi Sam.
My name is Damian one of the designer’s [sic] of Sam house. I wanted to reach out in and unofficial manner to get a feel from you directly “your eyes only” how you would feel about this current sun study?
As Sam Dunlop mentioned to me yesterday, he had a chat with you about our predicament and we all appreciated your time and openness in sheading [sic] light on what our options could be so we can move forward. Thankyou.
In saying this Sam and I have been going back and forth on how much we can push his house to the North to give next door their best outcome without making Sam’s South side unliveable.
The intent of this study was just to show you what the current neighbours [sic] house does to itself, what the original DA house does to the neighbour and what we can do to less impact their area and a compromise to best serve both parties.
It would be a huge benefit for me to understand if I’m heading down the correct path in your eyes so I can go away and finalise this D.A and change all my drawings accordingly.
If you feel like calling I’m available also.
Thanks for your time.

Mr Smith replied later that day as follows (emphasis in original):

Hi Damian,
Thanks for clarifying further, this looks to be on the right path. if you could please send through shadow diagrams which indicate overshadowing from 9am to 3pm and are in accordance with the below control of the Tweed Development Control Plan 2008 – Section A1, we can move forward with the application.

Damian Overeem responded as follows:

Hi Sam,
Thanks for clarity.
I will run the proposed house from 9 to 3pm for your advice.
I picked 11 to 1 pm as you know it’s a 2-hour window and this best serves us at these times however ill [sic] show t=you [sic] the full study from 9-3pm.
C4 (I) Is impacted by 10%, so are you suggesting we cant [sic] move forward unless its 50%. This outcome doesn’t suit our client. This is our teams negotiation we wish to argue and comprise.
C4 (ii) We wil [sic] run this test to the neighbours’ windows.
C4 (ii) N.A
Thanks Sam.

In response, Mr Smith asked Mr Overeem to provide the shadow diagrams with the times specified and sufficient justification for his argument.
On 7 May 2021, ZPG responded to the Information Request in the letter from Council dated 25 March 2021, submitting an amended application.
In relation to Item 1 of the request, which contended that the proposed dwelling did not comply with the overshadowing requirements of the DCP and requesting an amended and compliant design, the following response was provided by ZPG:

... Harper Court, Casuarina was constructed prior to 2011. At this time the property was comprised of three lots, being the current Lot 52 DP ... and the two adjoining Lots 50 and 51 DP ..., which are the subject of the ... Harper Court / ... Beason Court development application (proposed dwelling).
Like many of the beachfront developments in Casuarina, the adjoining dwelling was constructed to orient to the north to take advantage of the space and land area afforded, as well as to harness the favorable [sic] solar access to the north. Subsequently, the two adjoining allotments (the subject of this DA) have been sold and this open area is no longer available to the adjoining dwelling.
The northern open space of ... Harper Court is part covered and part uncovered. DA for a new pool is to be constructed in the uncovered open space area and fenced from the undercover open space area. This land is within 4m of the adjoining property with ... Harper Court and no longer directly accessed from the living/habitable area of ... Harper Court. By definition under the DCP, this undercover section of ... Harper Court is no-longer defined as ‘principle private open space’, while the remaining portion of this northern land area is covered by its own development. Additionally, whilst this northern area may function as ‘private open space’, there is a large rear yard open space to the west of the living area, that is private, uncovered and setback greater than 4m from adjoining residential land. This open space area will maintain the current solar access.
The deep and narrow allotment subdivision pattern along this section of Casuarina aims to maximise the east/west solar access whilst encouraging dwelling designs to maximize the northern solar access where possible. This is evident in the construction pattern along this section of Beason Court just north of the site, as shown in Figure 2. The established pattern is such that many of these dwellings have a pool located to the northern boundary and large open space to the rear (east). The proposed dwelling, as well as the adjoining dwelling follows this pattern of development.
The roofed open space area of the adjoining dwelling is set back from the northern boundary by approximately 5 metres. Whilst this dwelling has historically enjoyed northern solar access whilst the adjoining lot was undeveloped, it is a logical expectation that there will be a similar pattern and level of overshadowing anticipated once the adjoining site is developed.
The proposed dwelling was designed to comply with the required 1.5m side setbacks and 9 meter building height development standards, as shown in the 21 June solar diagrams (noted as “existing”). In order to improve the solar access to the adjoining dwelling the proposed dwelling has been relocated northward away from the southern boundary by an additional 600mm. The proposed dwelling now provides a setback of 2100mm to the ground floor and 2700mm to the first floor.
The increased southern boundary setback provides a balance of:
• maintaining the maximum northern open space for the proposed dwelling as well as the usability and function of the southern side passage areas for the proposed dwelling;
• whilst improving the solar access to the adjoining property.

This revision of the plans results in improvement to the solar access for the adjoining dwelling uncovered open space area as follows:
•   As indicated on the architect’s plans, solar access is maintained for between 40 to 43% of the open space to the adjoining property for two hours between 11am and 1 pm on 21 June.
Whilst this is a variation to the required “50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21” (DCP Section Al Part 4.1 Solar Access C4), the variation is supported and sought based on:
•   The proposal satisfies all applicable setback provisions to the front, side and rear boundaries for the subject dwelling.
•   The proposal exceeds the setback provisions to the southern side boundary.
•   The proposal satisfies all applicable over shadowing controls with the exception of Control C4.
•   The dwelling siting has been amended to provide a greater setback to the southern boundary (2100mm to the ground level and 2700mm to the first floor) which minimises the potential impact on solar access and natural ventilation to the adjoining property, as required by the Objectives of DP Part Al 4.3 Solar Access and Natural Ventilation.
•   This minor non-compliances [sic] stems from the narrow widths of the lots, the east-west orientation and the “open space” focus placed on the pool, positioned on/along the northern boundary, as opposed to the larger rear yard opens space.
•   Whilst variation is sought the prescriptive control guideline, the aims of the Solar Access and Natural Ventilation provisions are met and the adjoining dwelling will still enjoy favorable [sic] sunlight to the northern pool area open space and the substantial rear yard open space area.

The amended plans attached to the response now included a set-back of 2,100 mm on the ground floor from Lot 52 (previously 1,500 mm) and 2,700 mm on level one (previously 1,500 mm). The proposed dwelling had thus been moved 600 mm to the north at ground level and 1,200 mm to the north on the first floor.
Further shadow studies were also included, together with detailed shadow studies. The detailed shadow studies suggested the following change from the existing features to the proposed design:

21 June, 9am 41% shaded to 72.7% shaded;

21 June, 12pm 28.9% shaded to 57.3% shaded;

21 June, 3pm 47.5% shaded to 74% shaded.

The response also included an arborist’s report purporting to deal with the issues raised under the heading Sustainable Environment. The report identified seven trees on Lots 50 and 51, two of which were proposed to be retained with the other five to be removed or relocated.
The response to the request was uploaded to the Council’s DA Tracker online portal on 11 May 2021. Mr Smith sent an email to Ms Conway on that day advising her of this and to notify Council by 25 May 2021 if she had any further concerns.
On 24 May 2021, Ms Conway sent to Council her response to Mr Dunlop’s Amended Architectural Drawings and Information Request Response. She also requested Mr Smith let her know the outcome of the application in writing. The response took the form of a further submission from CityScape. The submission maintained that the modified development still does not comply with Control C4 of the DCP, Section 4.3.
On 1 June 2021, Aida Sloman, Project Officer Biodiversity with Council sent a memorandum to Mr Smith which stated, inter alia:

Ecological Impact Assessment
• The proposed development involves the removal and transplanting of a number of mature Pandanus and construction works around a number of other native plants planted as part of the original landscaping.

Conclusion
• Providing the recommendations of the arboricultural report and the below conditions are followed during construction the proposed development is not anticipated to have a significant adverse ecological impact.

On 3 June 2021, Mr Smith sent a further email to ZPG on overshadowing. The email stated:

Hi Hannah,
Council has issued a new request for further information via the NSW Planning Portal.
Essentially the overshadowing is still non-compliant and cannot be accepted. I have provided some further clarification in the letter to help assist your amendments. Although the proposal is taking advantage of the northerly aspect, it allows sufficient space for a redesign.
Council cannot accept a design which maximises its own solar access to the detriment of the adjoining property.
I have attached the additional submission for your consideration also.

(The additional submission was that submitted by Ms Conway.)

The letter dated 3 June 2021 from Council to ZPG relevantly included:

…
The submitted shadow diagrams and overshadowing calculations have included the entire principle area of private open space, both roofed and unroofed, rather than just the area that is afforded sunlight and would be impacted by overshadowing.
The submitted plans still demonstrate a significant non-compliance with the relevant development Controls of the Tweed Development Control Plan Section A1.
Solar access calculations need to relate to the area which is afforded sunlight (unroofed portion).
Therefore the submitted plans are required to demonstrate that 50% of the principle area of private open space that is currently afforded sunlight will receive 2hrs of sunlight on the 21 June between 9am and 3pm (as demonstrated in the image below). A substantial redesign of the upper level may be required to achieve this.

The letter included a plan continuing to highlight the unroofed portion of the outdoor area of the Conway Land.
On 2 August 2021, ZPG responded to Council’s additional information request in respect of the overshadowing matters. The response was detailed, running to 14 pages.
The response relevantly included (emphasis in original):

…
We have reviewed the contents of Council’s letter, the contents of the updated neighbours submission and we have liaised with the proponent in respect of same.
We appreciate Council providing the opportunity to satisfy the concerns it has raised in the most recent letter. Indeed, it was immediately evident (based on an initial review of the letter) that if we were to address shadowing in the manner suggested by Council, it would result in design amendments that are unviable to the proponent and very much at odds with the established (over c.19 years) and uniformly acceptable design outcomes evident on all other lots of comparative relevance ie. the large majority of all beachfronts allotments in Casuarina, that accommodate two storey structures (we estimate that 90% of all lots are two storey in form) and that have been built to the zone boundary that forms the interface of the residential and 7(f) zones.
Our review also resulted in noting that we could find no evidence where Council (or indeed the CDC controls where applicable) have previously required a stepping in height and or setback on the southern boundary in order to ensure that ‘all private open space’ on an adjoining property is afforded sunlight access as suggested in Council’s letter.
Most importantly, our review highlighted what we believe to be a clear anomaly in Council’s interpretation of the relevant controls relating to Private Open Space, and indeed, those relating to the somewhat separate area of Principle Area of Private Open Space. This matter is explored further in the text below, however it is our position that:-
A.   There are separate controls and intent applicable to both Private Open Space and Principle Area of Private Open Space and that the control of note here strictly only applies to the Principle Area of Private Open Space;
B.   That the Principle Area of Private Open Space clearly includes those areas that are roofed or covered; and
C.   That there is established precedent and supporting statutory and dcp based controls to support our interpretation.

…
Having regard to what is capable of being categorised as PAOPOS, the proposed plans, when excluding the PAOPOS already covered by the existing roof, still exhibit an ability to provide at least two hours of sunlight to at least 50% of the PAOPOS that is not already covered.
The alternate way to interpret the extent of compliance is by utilising the provisions of Section 4.3(c.4)(iii), in which the DCP requires that where an existing PAOPOS is already covered in shade, that this area is not further reduced by 20%. In this regard, the proposal easily demonstrates that the proposed satisfies the provisions of this clause as the proposal retains substantially maintains the extent of sunlight accessed to the defined PAOPOS area and in any event, maintains it for a period exceeding two hours at mid winter.
Furthermore, it is clear from previous correspondence, that should the entire area of the northern private open space (including that area covered) be the PAOPOS, that the proposal continues to maintain sunlight for at least two hours in the period specified. It is noted that it is only when the covered area is excluded (incorrectly in our opinion) that the proposal is unable to satisfy the base requirements (whilst still complying with the performance provisions mind you, given the extensive alternate private open space areas available etc etc.

On 18 August 2021, Mr Smith emailed Ms Conway notifying her that Mr Dunlop has now submitted additional justification with regards to overshadowing, providing her with a link to the new material. The email asked Ms Conway to make any submission by 1 September 2021.
Ms Conway provided a submission by email dated 31 August 2021. This took the form of a letter from CityScape to Council.
On 27 October 2021, ZPG provided a further submission to Council on behalf of Leeroy. The submission purports to respond to “the further submission from a nearby landowner”. The submission makes a number of further submissions on what area should be regarded as “private open space”.
On 11 December 2021, Ms Conway sent an email to Mr Smith asking if there were any developments with the application. By email dated 13 December 2021, Mr Smith replied that there are currently no further updates to provide.
On 22 December 2021, Council sent a further letter to ZPG raising a number of matters and requiring a “satisfactory response” to each. The first issue raised is “the overshadowing of the adjoining southern allotment”. The letter referred to the definition of “Principle Private Open Space” in the State Environmental Planning Policy (Exempt and Complying Development) 2008 means “an area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling, other than a bedroom”. After referring to C4 of the DCP, the letter stated (emphasis in original):

As per the above definition, the principal area of private open space afforded No ... Harper Court would be defined as the covered and uncovered extended living area, including the not yet constructed pool, along the northern side, given the area adjoins the existing internal living area.
Clause 4.3, Control C4 of the Tweed DCP 2008 Section A1 above identifies that sunlight to this area should not be reduced to less than 2hrs. In this instance the uncovered area is the principal area of private open space afforded sunlight and therefore sunlight to this part of the area is should not be reduced by more than 50% for no less than 2hrs.
As has been noted in Council’s previous request for further information, the latest set of amended plans demonstrate that the uncovered principal area of private open space of No.... Harper Court will not be afforded sunlight to at least 50% of the area for no less than 2hrs the 21^st June and therefore is non-compliant with the above control.
…
Although the proposed development exceeds the minimum required side setback distances from the southern boundary, the proposed northern side setback of 8.755m for the upper storey presents ample space to make the necessary amendments to allow for adequate solar access for No.... Harper Court.
The applicant is therefore requested to amend the proposal to demonstrate that the uncovered principle area of private open space to the adjoining southern allotment (identified in red above) receives sunlight to at least 50% for no less than 2hrs on the 21 June.
Should the applicant fail to demonstrate adequate solar access to the principal area of private open space of the adjoining No....Harper Court in accordance with the relevant Control of the Tweed Development Control Plan 2008 Section A1, the application will be assessed in its current form, most likely by way of refusal.

A site meeting was then held on 10 February 2022, following which Mr Jarrod Gillies of ZPG sent an email response to Council in response to the 22 December 2021 letter. The email response contends that Council’s interpretation of the DCP is inconsistent with the meaning of the words on their face. Further “merit considerations” were provided. As part of those merit considerations, it was contended that relocating the “proposed Dwelling further to the north to enable greater solar access for X Harper Court, is not without further issues including tree removal”. The arboricultural report dated 30 April 2021 was again provided to Council in this regard.
The first merit consideration was as follows:

• A solar assessment study for the existing sites has been undertaken that considers the two established trees on site, retaining wall of 1.8m and the cross beams of the neighbouring dwelling (... Harper Court, Casuarina). The findings are shown in the fourth attachment and reveal that the existing site barely achieves 50% of the unshaded portion of the Principal Private Open Space (PPOS) of southern neighbouring site. The least shadow is at 9am and 11am the shadow at 49.3% and 45.6% shadow respectively. This means any new Dwelling House on the subject site is not to exceed 0. 7% and 4.4% additional shadowing at 9am and 11am. This is to achieve the control on face. Based on the permitted building height and floor space ratio for the site, this clearly is not achievable.
• Control 4 of Tweed DCP 2008 simply does not state 50% solar retention for at least 2 hours in mid-winter for only unshaded PPOS. This control is also provided in Apartment Design Guideline (ADG) and notwithstanding the guideline is not applicable for the proposed Dwelling House application, the control in the guideline has the same principle. It does not distinguish between existing shaded or unshaded open space areas for solar access purposes and is routinely implemented in the manner suggested by the applicant, not as the Council is suggesting in the case.

The attached shadow diagrams clearly demarcated between the roofed and unroofed sections.
The email concluded by noting that the email and its attachments would be uploaded to the NSW Planning Portal for registration and actioning.
On 30 March 2022, Mr Smith sent an email to ZPG confirming that he had “now revised the submitted information with Denise and she is also of the opinion that the application is now acceptable to recommend for approval”.
On 25 April 2022, Mr Farshad Amirbeaggi (Mr Amirbeaggi), Ms Conway’s husband and also her solicitor, emailed Mr Smith seeking an update on the application.

The Assessment Report

A Delegated Authority Development Application Report (Report) was then prepared. The Report is prepared by Mr Smith “Assessing Officer” and bears a date of 28 April 2022, although it is apparent that parts of the Report were prepared after that date as parts refer to documents created after 28 April 2022. The “Recommendation” at the end of the Report is that “the application be approved subject to the conditions contained at the end of this document”.
The Report also contains on its last page a box “Recommendation Approved” with the name “Denise Galle”. It was accepted that no Report was ever signed in the traditional sense but this entry recorded that Ms Galle approved Mr Smith’s recommendation.
The following extracts from the Report are relevant for present purposes (emphasis added):

on page 5 of 51:

Additional further information was requested on the 3 June 2021 (response received 2 August 2021) as a satisfactory response was not received in relation to overshadowing and articulation:
• Overshadowing - incorrect calculations and remains non-compliant despite increased setbacks.
• Articulation - further articulation required.
An in-depth response was received from the applicant on the 2 August 2021 which noted that strict compliance on an east-west lot was unviable and detailed the definition of principle area of private open space as per the SEPP (exempt and complying development code) 2008 and previous LEC determinations.

Second, the requirement of reasonable necessity is to be decided in light of the circumstances existing at the time of hearing: see 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (117 York Street) at 511 per Hodgson CJ in Eq.
Third, the inquiry directed by the requirement in s 88K(1) is whether the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easements: Rainbowforce at [70] per Preston CJ of the LEC.
Fourth, the authorities on “reasonably necessary” establish:

reasonable necessity does not mean absolute necessity but must be something more than mere desirability or preferability over the alternative means: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 (Moorebank) at [154] per Bathurst CJ, Beazley and Meagher JJA;

the requirement of reasonable necessity may be satisfied even if the plaintiff’s land could be effectively used or developed without the easement. In order to be reasonably necessary, the use with the easement must be at least substantially preferable to the use without the easement: 117 York Street at 508 per Hodgson CJ in Eq;

the effect of the grant of the easement on the servient tenement must be considered. The greater the burden on the servient land, the stronger the case required to find that the easement is reasonably necessary. A strong case of reasonable necessity is required if the effect of the imposition of the easement would be to effectively preclude a reasonably available development or use of the servient tenement: Moorebank at [156]-[157] per Bathurst CJ, Beazley and Meagher JJA;

ultimately, what is reasonably necessary cannot be assessed in isolation, but must be assessed by reference to the “whole picture” taking into account all relevant factors in conjunction with each other: Moorebank at [159] per Bathurst CJ, Beazley and Meagher JJA;

the plaintiff bears the onus of showing reasonable necessity: Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 at [39] per Bell P (Payne JA and Emmett AJA agreeing).

Senior counsel for Leeroy also referred to the fact that under s 88K(2)(a), the Court must be satisfied that the use of the dominant tenement would not be inconsistent with the public interest. In Rainbowforce at [94], Preston CJ of the LEC stated that it is the use of the dominant tenement that is not to be inconsistent with the public interest. At [95] Preston CJ of the LEC continued as follows:

[95] Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest: see Tregoyd Gardens Pty Ltd v Jervis at 15,847 and 15,854 and Second Reading Speech, Legislative Council, 4 December 1995.

I deal separately below with the question of compensation and deal with the relevant principles there.
The requirement of s 88K(2)(c) of all reasonable attempts also assumed some significance in the case in circumstances where a proposed form of easement (Exhibit H) was not proffered until the start of the hearing.
Whether an applicant has established that all reasonable attempts have (unsuccessfully) been made to obtain the easement is a question of degree and will turn on the particular circumstances: see Nahata v Robertson [2023] NSWSC 642 at [59] at [60] per Peden J. It is open to consider facts at the time of hearing, including facts arising after the commencement of proceedings: Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [83] per Basten JA (Bell P and Gleeson JA agreeing).
In Rainbowforce at [131] Preston CJ of the LEC stated:

[131] In order for an applicant for an order to make all reasonable attempts to obtain an easement:
(a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made: Hanny v Lewis at 16,210;
(b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14,654;
(c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14,654; and
(d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement: Coles Myer NSW Ltd v Dymocks Book Arcade at 14,653–14,654 and see also Antipas v Kutcher at [14].

Finally, it is also clear that the power under s 88K(1) to make an order imposing an easement is discretionary, notwithstanding satisfaction of the requirements of ss 88K(1) and (2). The purpose is to be exercised having regard to the purpose of the section which has been summarised as facilitating the reasonable enjoyment of land whilst ensuring that just compensation be paid for any erosion of private property rights: see Rainbowforce at [134]-[135] per Preston CJ of the LEC.

Consideration

A number of issues were agitated by the parties.
First and foremost, whether the imposition of the easement sought is reasonably necessary for the effective use of the Conway Land.
Second, Leeroy contended that the imposition of the easement would be inconsistent with the public interest.
Third, Leeroy contended that the Court would not be satisfied that reasonable attempts have been made to obtain an easement through negotiations with Leeroy.
Fourth, the quantum of compensation was in issue. I address this separately below.
Fifth, and allied to the second point raised above, Leeroy contended that the grant of the easement sought was not worthy of a grant in the discretion of the Court because such an easement would, in terms, contradict the local planning instruments.
Finally, reliance was placed on cl. 1.9A of the Tweed Local Environmental Plan (TLEP). This argument cuts across various of the causes of action alleged and so I deal with it separately at the end of these reasons.

Reasonably necessary?

The essence of the case advanced by Ms Conway in this regard was to focus on the fact that the house on Lot 52 was designed and constructed as a high-end luxury residential home in a particular location so as to accommodate the favourable solar access to the north. The vast curtain wall (referred to earlier in these reasons) is a central focus of the dwelling’s design, providing light, heating and cooling etc to the main living areas of the house including in its private open area, ground floor and first floor. The easement is said to be necessary to maintain these important features.
Ms Conway, relying on Mr Andren’s report, contends that the proposed easement would not have any impact on the Leeroy Land because the proposed dwelling can be moved but still maintain maximum exposure to sunlight and the like.
Leeroy contended that the Court would not be assisted by Mr Andren’s report in this regard in circumstances where Mr Andren’s design is only a “concept”, which has not been prepared mindful of the design and volumetric controls of the DCP. Further, it was contended that Mr Andren’s design, as posited, produces a built form on Lot 51 that is manifestly out of character with the surrounding properties in which it is apparent that built form tends to lay along southern boundaries with pools and living areas oriented to the north.
I am not satisfied that the imposition of the claimed easement is reasonably necessary for the effective use of the Conway Land.
Absent the easement, the Conway Land can continue to be used as a residential dwelling. There are, as the contents of the Report demonstrate, areas of open space on the Conway Land other than that which borders the boundary between Lots 51 and 52.
The fact that the dwelling on Lot 52 was constructed in a way to maximise solar access and natural ventilation from the north does not, in my view, mean that an easement should be imposed so as to maintain that solar access and natural ventilation. Maintenance of the pre-existing solar access and natural ventilation is not reasonably necessary for the effective use of the Conway Land.
Whilst maintenance of solar access and natural ventilation would no doubt be preferable or desirable, something more is required: Moorebank at [154] per Bathurst CJ, Beazley and Meagher JJA. Reasonable necessity cannot be reduced to substantial preference, or something “nice to have”: see ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 at [52]-[53] per Giles JA (Campbell JA agreeing).
Imposition of the proposed easement would undoubtedly have an impact on the Leeroy Land. So much is apparent from the fact that it would prevent Leeroy from constructing its proposed dwelling where it proposed to, being a dwelling which has otherwise been approved by Council. It would impact on Leeroy’s lawful use and development of its own land.
Whether Leeroy’s proposed development can be amended in the manner proposed by Mr Andren is by no means certain. It is clear that it does not comply with the relevant controls, and approval would be reliant on the flexibility that Council possesses under s 4.15(3A).
Even if Mr Andren’s concept was approved by Council, the fact remains that Leeroy would be required to build something different to that which Leeroy wanted to build which had been approved by Council. There is also the fact that Mr Andren’s concept is out of character with surrounding homes.

Public interest

Senior counsel for Leeroy contended that use of the Conway Land with the benefit of the easement, having a consequent limit on the built form on Lot 51 is not in the public interest or worthy of a grant of discretion by the Court. This is because such an easement would, in terms, contradict the local planning instruments which permit a wide range of built form on Lots 50 and 51 and which have been manifest in the type of built form permitted by the Consent.
Given that I am not satisfied that the easement is reasonably necessary, it is not strictly necessary for me to determine this issue. In my view there is, however, some force in Leeroy’s contentions in this regard. It is difficult to see how it is in the public interest to allow use of the Conway Land with the easement in circumstances where local planning instruments and further decisions are best made by those in whom planning and development decisions are reposed.

Reasonable attempts

Leeroy contended that reasonable attempts have not been made to obtain an easement through negotiations with Leeroy.
The evidence established that in December 2022, after proceedings had been commenced, Ms Conway’s solicitor (her husband, Mr Amirbeaggi) made an open offer to Leeroy’s solicitors that a valuation be obtained (at Ms Conway’s expense) valuing the diminution in value of the easement and Leeroy agree to grant an easement, and each party otherwise bear their own costs of the proceedings. No response was received to the offer. The offer was reinstated for 14 days by email dated 29 August 2023, together with an indication that Ms Conway’s lawyers were willing to talk. On 12 September 2023, Leeroy’s lawyers asked for the offer to be kept open for a further seven days, which was agreed to. The offer was again left open for seven days in an email dated 16 October 2023. No response was received.
A form of instrument consistent with the metes and bounds of the easement proposed by Mr Andren was provided to Leeroy for the first time at the start of the hearing. Leeroy thereafter continued to oppose the grant of the easement.
In the circumstances, and particularly the lack of any response on behalf of Leeroy, I am satisfied that reasonable attempts have been made.

Compensation for any easement of necessity

Given that I have already reached the position that I am not satisfied that an easement should be imposed, it is not necessary for me to consider the issue of compensation. Lest I be wrong, I now consider the question of compensation.
Section 88K(2)(b) provides that, in substance, an order imposing an easement can only be made if the Court is satisfied that the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. Further, s 88K(4) provides for the Court to order compensation to be paid.
There was no suggestion that a figure could not be determined. The debate was how much!
In Moorebank at [234], the Court of Appeal referred, with approval, to what was said by Young J (as his Honour then was) in Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 at [26] in relation to the compensation ordinarily payable under a number of heads:

[26] 1. The compensation referred to in subs (4) is the same compensation as is referred to in subs (2)(b), that is adequate compensation for loss or other disadvantage: see Goodwin at 15,801.
2. The compensation is not a substitute for the price that could have been exacted if the section did not exist: S J C Construction Co Ltd v Sutton London Borough Council (1975) 29 P&CR 322 at 326, a decision of the English Court of Appeal.
3. The compensation is not just the diminished value of the affected land: Seaforth Land Sales at 334.
4. Ordinarily the compensation will be:
(a) the diminished market value of the affected land (including what is sometimes called the hope value, that is the potential use to which the subject land could have been put: Re Bowden’s Application (1983) 47 P&CR 455 at 457 );
(b) associated costs that would be caused to the owner of the affected land: Tregoyd at 15,856;
(c) an assessment of the compensation for insecurity, loss of amenities such as loss of peace and quiet: Tregoyd at 15,856; S J C at 326; and see Preston and Newsom, Restrictive Covenants Affecting Freehold Land, 8th ed, Sweet & Maxwell, London, 1991, p 284;
(d) the compensation is to be less compensating advantages, if any.
5. There may be some exceptional cases which fall outside the net of s 88K(2)(b) yet are cases where it is extremely difficult to assess the compensation, but it is clear that the applicant is to derive a considerable benefit from the application. In such circumstances it may be appropriate to assess the compensation on a percentage of the profits that would be made.

It was not in dispute that Ms Conway bore the onus to establish what relevant losses and disadvantages will be suffered by persons having an interest in the servient tenement, as part of satisfying the Court that the persons affected by the easement can be adequately compensated. Nonetheless, courts have taken a relatively liberal approach to assessing compensation when faced with a paucity of evidence: see Moorebank at [247] per Bathurst CJ, Beazley and Meagher JJA.
As set out above, each of the parties produced expert evidence from a valuer in support of their respective contentions concerning compensation. Ms Conway tendered an expert report of Mr Ellis, and Leeroy an expert report of Mr Walker.
Mr Ellis and Mr Walker conferred prior to giving evidence in the proceedings and then gave evidence in concurrent session. To my observation, the process worked very efficiently and the parties and the experts are to be commended for this course.
As a result of their conferral, Mr Ellis and Mr Walker agreed on the following matters:

the market value of Lot 51 is $3.1 million, with the rate feeding into that market value being approximately $4,000 per square metre;

by reference to the draft s 88B plan (Exhibit H) which was provided to each of Mr Ellis and Mr Walker prior to conferring, they agreed that the total area of easement A is 77.406 square metres, easement B had a total area of 49.98 square metres, easement C had a total area of 60.57 square metres and easement D had a total area of 363 square metres;

the highest and best use of the land was for construction of a large, two-storey prestige dwelling.

There were two matters that Mr Ellis and Mr Walker were not able to agree on:

whether the inclusion of the easement D actually impacts on the highest and best use of the subject property; and

the discount rates that should be applied for each of the components.

Mr Ellis, was of the opinion that for each of the easement components, a discount rate of between 10 and 20 percent would apply, whereas Mr Walker was of the opinion that an 80 percent rate would apply to easements A to C.
The essential dispute between Mr Ellis and Mr Walker in relation to any impact of easement D is whether that easement would have any impact on what in fact can be built on the subject property. Mr Ellis’ assumption, having looked at Mr Andren’s proposed easement, was that the roofline of the proposed development would be accommodated within the terms of easement D such that the easement would have no impact on what could be built. Mr Walker, on the other hand, was not in a position to know one way or the other, whether proposed easement D would have any impact on what could be built.
In my view, the likelihood that easement D will impact in any significant way on what can be built is low, such that I do not consider it appropriate to apply any compensation to it.
The second area of disagreement was more fundamental. Both valuers agreed that the best evidence of the likely diminution would be to look at comparable sales where such easements do apply to the land being sold. There are no such comparable sales in the present case.
Each valuer was, in effect, drawing on their general experience in assessing the percentage figures which they contended for.
Mr Ellis drew some support for his figures from the table published by the New South Wales Valuer General to determine the percentage reduction in land value to reflect the compulsory acquisition of an easement over that land. Mr Walker accepted in cross examination that if these figures were being used by the New South Wales Valuer General then they would be appropriate for use in the present case. I did not understand Mr Walker, however, to therefore just agree with the percentage figures that are put forward by Mr Ellis. The position is, in my view, somewhat more nuanced.
Mr Walker’s position was essentially that because each of the easements had a substantial impact on what could be built, a figure of 80 percent was appropriate. In circumstances where the land is prestige land that would be attracting a prestige buyer. As Mr Walker put it in the concurrent session:

I contend that if you can’t build, or you can’t activate, the highest and best use of the property over a portion of the site, that it’s got a pretty high level of impact, and a pretty high level of compensation should be sort of payable for the impacted area.

In considering this debate between Mr Ellis and Mr Walker, I bear in mind what was said by the Court of Appeal in Moorebank at [248]:

[248] In Swann v Spiropoulos [2006] NSWSC 860; (2006) ANZ ConvR 496 Campbell J, as his Honour then was, faced with a paucity of evidence, stated that the appropriate approach was to put himself in the position of a juror and assess as best as he could what was the compensation payable. In Evans v Cornish Nominees Pty Limited supra, White J agreed that such an approach was appropriate. His Honour made the following remarks at [110]:

[110] The result is that I find neither valuer’s evidence persuasive. Although they reached agreement as to the current value of the defendant’s land, their reasons, so far as they concern the value of the aggregated portions which would form a 40-hectare area for a new building site, are widely different. I am not able to accept either valuer’s approach to assessing the effect on land value of the imposition of an easement. There is no certain answer to that question. I approach the question as did Campbell J (as his Honour then was) in Swann v Spiropoulos [2006] NSWSC 860 where his Honour said (at [108]):
‘It is necessary, it seems to me, to put myself into a position like that of a juror, and simply assess, as best I can, the amount of compensation that would be payable on that head. I recognise that I have criticised the valuers’ evidence because they in effect acted as jurors. There is, however, a critical difference between the way in which expert evidence should proceed, - calling on expertise to produce a reasoned conclusion, where premises of the argument and steps of the reasoning can be evaluated by the court, - and the way in which the tribunal of fact at a court hearing can proceed. In this case I am the tribunal of fact, and so am entitled to proceed in the way a juror would.’

Doing the best I can, I would assess the discount nowhere near as high as the 80 percent figure that has been suggested by Mr Walker but something higher than that put forward by Mr Ellis. In my view, an appropriate discount to apply is 30 percent.
This 30 percent discount would be applied to areas A, B and C, a total area of 187.956 square metres at the agreed rate of $4,000 per square metre. This totals $225,547.20.
In relation to the component sometimes referred to as “disturbance” – being the associated costs that would be caused to the owner of the affected land – the principal area of dispute concerned the additional cost imposed on Leeroy of either submitting an amended development application or an entirely new development application. The battle lines on this dispute were between Mr Andren’s estimate of somewhere between $10,000 to $40,000 depending on whether an amended or new development application is required, and Mr Dunlop’s estimate of up to $300,000.
Not unsurprisingly, there was little science to the position of either party on this issue. The “evidence” in support of the two positions was led orally at the hearing. The figure is necessarily based on an estimate of the cost of future work which is itself, uncertain. Given the broad disparity between each party’s position but accepting that it would be likely that Leeroy would continue to use the same architectural firm, which has some familiarity with the matter, I would allow $110,000 as an estimate.
To these figures I would add the agreed figure of $10,000 for the “blot” on title.
Having regard to each of these components, I would assess compensation at $225,547.20 plus $110,000 plus $10,000 which equals $345,547.20.

Clause 1.9A of the Tweed Local Environmental Plan 2014

In light of my conclusions above, that no implied easement arose and no easement under s 88K should be imposed, it is not strictly necessary for me to consider the application of cl 1.9A of the TLEP. The arguments were only advanced briefly in oral submissions and then in written submissions after judgment was reserved.
In deference to the arguments made, I make the following observations.
Clause 1.9A of the TLEP relevantly provides:

1.9A Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

Leeroy relied on this provision in several respects.
First, in answer to what was pleaded by Ms Conway, as ground 5 of the ground of judicial review – failure to take into account the implied easement. Nothing was said by senior counsel for Ms Conway in support of ground 5 and thus, as senior counsel made clear in closing submissions, it is taken to be abandoned.
Second, it was contended that clause 1.9A stood in the way of the implied easement claim. It was contended that clause 1.9A would apply to defeat the claimed implied easement and equity follows the law.
Third, in relation to the claimed s 88K easement, it was contended that any such easement would be inherently defeasible given the operation of cl 1.9A.
Ms Conway disputed that cl 1.9A had any application at all.
I summarise Ms Conway’s contentions below.
Before doing so I consider the legislative background and authorities in relation to cl 1.9A.
It was not in dispute that cl 1.9A took as its legislative source s 3.16 of the EPA Act. Section 3.16 provides:

3.16    Suspension of laws etc by environmental planning instruments (cf previous s 28)
(1)   In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.
(2)   For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3)   A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.
(4)   Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.
(5)   A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.
(6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

It was also not in dispute between the parties that there were two relevant authorities that considered the scope of clauses such as cl 1.9A of the TLEP. First, the decision of Preston CJ of the LEC in Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 (Wu) and the more recent decision of the Court of Appeal in JEA Holdings (Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255 (JEA), which approved the reasoning of Preston CJ of the LEC in Wu.
The terms of the Local Environmental Plan in issue in Wu (the Woollahra Local Environment Plan) is relevantly identical to cl 1.9A of the TLEP.
At [60] in Wu, Preston CJ of the LEC set out a three step inquiry as to the applicability of, relevantly, cl 1.9A:

… first, identifying what interest is created by the instrument that is the Dealing; second, ascertaining whether the Dealing creating that interest is ‘any agreement, covenant or other similar instrument’; and third, determining whether the Dealing ‘restricts the carrying out of that development’, being development in accordance with the consent granted by the Council. The first step is necessary in order to undertake the second step, and the second step is necessary in order to undertake the third step.

That three step test was referred to with apparent approval by Mitchelmore JA (with whom Payne and Stern JJA relevantly agreed) in JEA at [59].
At [80] in Wu, Preston CJ of the LEC stated:

At the outset, it needs to be recognised that the inquiry required by cl 1.9A of WLEP necessitates identifying the instrument that creates the right or interest in or affecting lands, not the right or interest itself. That is clear with the first and third members of the class of instruments specified in cl 1.9A of WLEP, being an “agreement” or “other similar instrument”. But it is also so for the second member of the class of instruments, a “covenant”. The instrument to be disregarded, if cl 1.9A of WLEP were to apply, is a document that creates the restrictive covenant: Coshott v Ludwig (1997) 8 BPR 15,519 at 15,521. In the present case, the focus of the inquiry is the Dealing, which created the easement for light and air and the covenant for prospect. Is the Dealing any one or more of “any agreement, covenant or other similar instrument”?

Against this background, Ms Conway’s contention was that in this case, there is no instrument or document in writing that creates either the asserted implied easement or the s 88K easement if ordered.
Further, in relation to the implied easement, Ms Conway contended that any declaration by the Court as to its existence and the restraint order sought as to its enforcement are not instruments within the meaning of cl 1.9A of the TLEP.
Instrument is defined in the RPA at s 3 as:

Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the deposition, devolution or acquisition of land or evidencing title to land.

If a form of easement is to be registered, as was sought by the amendments introduced in the further amended statement of claim, it was accepted that that document would be an “instrument” but it was contended that such document does not of itself restrict development. Rather, it was contended by Ms Conway that the instrument will simply evidence and give notice of the restriction that previously arose by reason of the implied easement found to exist in accordance with the above principles.
In relation to the s 88K easement, it was further contended by Ms Conway that such an easement arises pursuant to an Act, being the Conveyancing Act, but Acts are not included as a “regulatory instrument” in cl 1.9A of the TLEP, despite the power of their inclusion under s 3.16 of the EPA Act. Whilst an order under s 88K will restrict development, that order is not a relevant instrument.
Similarly to the argument in relation to the implied easement, Ms Conway contended that if an instrument under s 88B is to be registered giving effect to an order with respect to s 88K (as is required by s 88(7)), such an instrument does not restrict development. The instrument simply evidences and gives notice of the effect of the original order.
As a fallback argument, Ms Conway contended that the consequences of cl 1.9A should await determination of what ultimate development occurs. The argument appeared to rest on the fact that Leeroy may sell Lot 51 either on its own or with Lot 50 and it is not for the Court to speculate as to what an ultimate owner of Lot 51 will do.
Leeroy’s response to these contentions can be shortly summarised as follows:

in relation to the alleged implied easement, the source of the claim, as explained by Tobias JA in McGrath v Campbell is one arising from the presumed intention of the parties to an agreement and enforceable for that reason;

in any event, Ms Conway’s claim in relation to an implied easement necessarily involves registration of an instrument giving effect to the easement claimed. Reliance was placed on Preston CJ of the LEC’s conclusion in Wu at [81]-[85] to the effect that an instrument may be a product of an agreement or anterior step and that product falls under the terms of the clause but may fall under the clause itself;

the same analysis applies in relation to s 88K – an instrument must be registered on title. The registered dealing is an “instrument” which would then fall under the simple language of cl 1.9A;

the terms of the proposed easement, whether arising as implied or imposed under s 88K, “restrict” development by preventing built form where built form might otherwise be and fall under the clause – see Wu at [90].

As set out above, having determined that no implied easement arose and no s 88K easement should be imposed, it is not necessary for me to finally decide this point. The present context is also somewhat unusual in that Leeroy is seeking to use cl 1.9A as a reason why the Court should decline to find in favour of Ms Conway’s claim of an implied easement or a s 88K easement.
The previous cases that have considered cl 1.9A, principally Wu and JEA have of course been in the context of an actual instrument and an actual consent with the Court determining whether the registered instrument applies.
In my view, the existence of cl 1.9A does not provide a valid reason for the Court not to recognise an implied easement or impose an easement under s 88K, if the requisite elements are otherwise satisfied for the creation of each. The relevant easement can be registered on the title of the dominant and servient tenements. Whether the relevant easements apply in particular circumstances by reason of the effect of cl 1.9A is a matter to be determined if and when it arises. Whilst not wanting to encourage further litigation, it seems to me that this is the only logical outcome.
Accepting Leeroy’s contentions would have the effect that, notwithstanding that the Court is satisfied that an implied easement was created or a s 88K easement should be imposed, such easements would never be recorded on title. This is in circumstances where cl 1.9A of the TLEP could be amended, including to remove it, or the EPA Act could be amended including to no longer permit clauses of the kind of cl 1.9A. Further, there is no guarantee that Leeroy proposes to build in accordance with the Consent. There may also be further development proposals on the Leeroy Land pursuant to consent granted. Whether any easement would continue to apply by reason of cl 1.9A (assuming it remains) should then be determined at the appropriate time.
In short, I am not satisfied that cl 1.9A provides a reason to reject the implied easement or s 88K claims. Had I been satisfied that an implied easement had been created or a s 88K easement should be imposed, I would have made orders for the necessary instrument to be registered on title.
Finally, and again appreciating that it is not necessary to decide this point, it seems to me that there is much force in Leeroy’s contentions that, in the particular circumstances, the proposed implied easement or s 88K easement would not apply by reason of the effect of cl 1.9A in relation to the Consent.

Conclusion and orders

For the reasons set out above, all of Ms Conway’s claims fail.
There is no reason why costs should not follow the event. If either party wishes to contend for a different costs order they should notify my Associate by email within 14 days of these orders whereupon I will vacate the costs order and set a timetable for the question of costs to be determined on the papers.
The Court orders:

The further amended statement of claim be dismissed.

The plaintiff pay the first defendant’s costs of the proceedings.

If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.

**********

Endnote

Decision last updated: 06 June 2025

Medium Neutral Citation:	Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580
Hearing dates:	4 to 6 March 2025
Date of orders:	06 June 2025
Decision date:	06 June 2025
Jurisdiction:	Equity - Real Property List
Before:	Pike J
Decision:	(1) The further amended statement of claim be dismissed. (2) The plaintiff pay the first defendant’s costs of the proceedings. (3) If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.
Catchwords:	ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 149E Conveyancing Act 1919 (NSW), ss 88B, 88K Environmental Planning and Assessment Act 1979 (NSW), ss 3.16, 4.15 and 4.16 Land and Environment Court Act 1979 (NSW), s 25B Local Government Act 1993 (NSW), ss 377 and 378 Real Property Act 1900 (NSW), ss 3 and 42
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Aldridge v Wright [1929] 2 KB 117 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86 Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 JEA Holdings (Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255 Kebewar Pty Ltd v Hawkin (1987) 9 NSWLR 738 Ling v Pang [2023] NSWCA 112 Martinus Rail Pty Ltd v Qube Re Services (No 2) Pty Ltd [2025] NSWCA 49 McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Nahata v Robertson [2023] NSWSC 642 Phillips v Low (1892) 1 Ch 47 Pirrottina v Pirrottina [2025] NSWCA 55 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 Schroders Australia Property Management Ltd v Shoalhaven Shire Council [2001] NSWCA 74 Sisic v Rockdale City Council (2007) 158 LGERA 170; [2007] NSWLEC 687 Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 Swansborough v Coventry (1832) 9 Bind 305 Tenant v Goldwin (1704) 2 Ld Raym 1090 Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 Warkworth Mining Ltd v Bulfa Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 Wheeldon v Burrows (1879) 12 Ch D 31 Wilcox v Richardson (1997) 43 NSWLR 4 Williams v State Transit Authority (NSW) (2004) 60 NSWLR 286; [2004] NSWCA 179
Texts Cited:	Brendan Edgeworth, Butt’sLand Law (7th ed, 2017, Thomson Reuters) F Burns, ‘Implied Easements and the Integrity of the Torrens System’ (2009) 21 Bond LR 1 LB Moses and C Sherry, ‘Unregistered access: Wheeldon v Burrows easements and easements by prescription over Torrens land’ (2007) 81 ALJ 491 M McGuire, ‘A New South Wales perspective of implied and prescriptive easements and the rights in personam exception to indefeasibility of title’ (2006) Australian Property Law Journal 228
Category:	Principal judgment
Parties:	Vashti Elizabeth Conway (plaintiff) Leeroy Property Investments Pty Ltd (first defendant) Tweed Shire Council (second defendant)
Representation:	Counsel: A Fernon SC / T March (plaintiff) M Seymour SC / L Nurpuri (first defendant) Solicitors: Yates Beaggi Lawyers (plaintiff) Attwood Marshall Lawyers (first defendant) Hall and Willcox (second defendant)
File Number(s):	2023/00277334
Publication restriction:	Nil