Conway v Leeroy Property Investments Pty Ltd

Conway v Leeroy Property Investments Pty Ltd involved a dispute between the plaintiff, Conway, and the defendant, Leeroy Property Investments Pty Ltd, concerning the approval of a development application by a local council. The plaintiff sought a declaration that the Council's decision to approve the development application was invalid and that the claimed easements in favour of the plaintiff's property were valid. The case was heard in the Supreme Court of New South Wales, Equity Division.

The primary legal issues revolved around whether the Council had properly considered the Development Control Plan as required by the Environmental Planning and Assessment Act 1979 (NSW) and if the decision to approve the development application was unreasonable. Additionally, the court had to determine whether an easement for light had been created by implication, whether an in personam exception to indefeasibility existed based on an undertaking by the purchaser of the servient tenement, and if a s 88K easement for light was reasonably necessary and in the public interest. Finally, the court needed to determine the quantum of appropriate compensation if a s 88K easement was established.

The court found that the Council had failed to consider the Development Control Plan in its terms as prescribed by the statute, and that the decision was unreasonable. The court held that an implied easement for light was created based on the common vendor sale and the principles of Wheeldon v Burrows, extended by Aldridge v Wright. However, there was no evidence of an undertaking by the purchaser of the servient tenement that would create an in personam exception to indefeasibility. The court found that a s 88K easement for light was reasonably necessary and in the public interest. The court considered the expert evidence on the value of the land and ordered that appropriate compensation be paid to the plaintiff.

The court declared that the Council's decision to approve the development application was invalid and that the claimed easements in favour of the plaintiff's property were valid. The court ordered that the defendant pay compensation to the plaintiff and that the defendant execute a deed creating the easements for light in favour of the plaintiff's property.