Huntington and Macgillivray v Hurstville City Council

[2004] NSWLEC 694

Land and Environment Court

of New South Wales

CITATION:

Huntington & Macgillivray v Hurstville City Council & Ors [2004] NSWLEC 694

PARTIES:

APPLICANT
Huntington & Macgillivray

FIRST RESPONDENT
Hurstville City Council

SECOND RESPONDENTS
David and Rosaline Kutcher

FILE NUMBER(S):

10873 of 2004

CORAM:

Pain J

KEY ISSUES:

Question of Law :- What land does development application relate to

LEGISLATION CITED:

City of Brisbane Town Planning Act 1964-1976
Environmental Planning and Assessment Act 1979 s 81A, s 97
Environmental Planning and Assessment Regulation 2000 cl 49(1)(b)
Land and Environment Court Act 1979 s 36(5), s 40

CASES CITED:

Currey v Sutherland Shire Council & Ors (1998) 100 LGRA 365;
Grace Bros Pty Ltd v Willoughby Council [1981] 2 NSWLR 80 ;
Hillpalm Pty Limited v Tweed Shire Council (2002) 119 LGRA 86 ;
Hillpalm v Tweed Shire Council [2002] NSWCA 332 ;
King v Great Lakes Shire Council (1986) 58 LGRA 366 ;
North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470;
Pioneer Concrete (Qld) Pty Limited v Brisbane City Council (1980) 145 CLR 485

DATES OF HEARING:

11/11/2004

DATE OF JUDGMENT:

12/16/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Newport instructed by Mr M. Ball (agent for the Applicant)

FIRST RESPONDENT
Mr P. Riggs (solicitor) of Deacons

SECOND RESPONDENTS
Mr P. Tomasetti with Mr M. Fraser instructed by Andreones Pty Limited Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

16 December 2004

10873 of 2004 Huntington & Macgillivray v Hurstville City Council and David Kutcher and Rosaline Kutcher

JUDGMENT

1 Her Honour: The Applicant, Huntington & Macgillivray, is a firm of architects retained by Mr Antipas, the owner of Lots 31 and 32 of Section 1 in DP 1399, being 35-41A Penshurst Street, Penshurst (“Lots 31 and 32”). On 1 July 2004 the Applicant lodged a development application with the Council seeking development consent for the demolition of the existing buildings and the erection of two new buildings, consisting of 24 two bedroom units and three shops. The development application form lodged with the Council on 1 July 2004 states that the land to which the development application relates is Lots 31 and 32. The development the subject of the development application includes basement car parking for 51 cars over two levels of car parking. The development application as initially lodged proposed that access to the proposed development be via Penshurst Street, which fronts the land described in the development application form. On 7 July 2004 the Council refused the development application. On 23 July 2004 the Applicant commenced Class 1 proceedings in this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) appealing against the Council’s refusal of the development application.

2 On 30 August 2004, following the lodgement of the Class 1 application, the Applicant varied its development application so that access to the development was to be from Victoria Street, across a right of carriageway which burdens:

(a) Lot A DP332036 known as 33A Penshurst Street, Penshurst (“Lot A”), owned by David Kutcher and Rosaline Kutcher; and
(b) Lot 1 DP 1399 (“Lot 1”) owned by Mr Antipas.

3 On 21 September 2004 the Council indicated that it was prepared to agree to consent orders granting consent to the Applicant’s development application as amended. On 29 September 2004 David Kutcher and Rosaline Kutcher filed a Notice of Motion seeking to be joined as a party to these proceedings. On 1 October 2004 the Court ordered that David Kutcher and Rosaline Kutcher be joined in these proceedings as the Second Respondents.

4 The hearing of the Applicant’s Class 1 appeal commenced before Commissioner Brown on 5 October 2004. On 5 October 2004 the Second Respondents raised the issue of whether the consent of the Second Respondents, as owner of Lot A, was required in order for the Applicant’s development application to be valid. Commissioner Brown referred a number of questions of law and fact to McClellan J for determination by a judge pursuant to s 36(5) of the Land and Environment Court Act 1979 (“the Court Act”). The parties considered that the following questions of law were able to be answered by me:

1. Does the development applied for relate to the land being Lot A DP332036 known as 33A Penshurst Street, Penshurst (the Second Respondents’ land) within the meaning of cl 49(1)(b) of the EP&A Regulation 2000?
2. If the answer to 1 is yes, then in the absence of the consent in writing being provided by the Second Respondents, was the Applicant entitled to make the development application to the First Respondent?
3. If the answer to 2 is no, is there a valid development application before the Court as consent authority?
4. In light of answers to 1 and 3, does the Land and Environment Court have jurisdiction to determine this development application without consent to the development by the Second Respondents?

5 The questions of law referred by the Commissioner also included the following:

Questions preliminary to answering the questions of law in 1 to 4
(a) What is the “use” that the Applicant is seeking consent for?
(b) Is the use of the right of way over Lot A in DP332036 (and Lot B in DP332036) an integral part of the use to which Lot 32 Section 1 DP1399 and/or Lot 31 Section 1 DP1399 is sought to be put?
(c) If so, does the DA in fact make application for use of the right of way over Lot A in DP332036 (and Lot B in DP3323036)?
(d) If the DA did not make such application, ought, as a matter of law as in questions 1 to 4, that use to have been specified in the DA, such that the DA specified all land to which the use applied including Lots A and B in DP332036?

Although the above four separate questions are asked as preliminary to question 1, I do not think these need to be answered individually as these questions simply raise matters that must be considered in relation to question 1.

6 The balance of the questions referred by the Commissioner are as follows:

5 (a) Does Lot 31 Section 1 DP 1399 have any legal entitlement to use any part of Lot A in DP 332036 for access either by right of carriageway, easement or otherwise?
(b) Does Lot 31 Section 1 DP 1399 acquire any legal entitlement to use any part of Lot A in DP 332036 for access either by right of carriageway, easement or otherwise when consolidated with Lot 32 Section 1 DP 1399?
6 Would the proposed use of the easement benefiting Lot 32 over Lot A DP 332036 (both solely and in conjunction with Lot 31) be in the nature of “ excessive user ”? What lawful entitlement if any does the Lot 32 have to increase the use of the easement over Lot A in the manner the proposal would require?

7 The parties submitted that:

(a) questions 5(a) and (b) no longer require determination as the parties have agreed that, as only Lot 32 has the benefit of the right of carriageway burdening Lot A, the land currently constituted by Lot 31 cannot use the right of carriageway even after Lot 32 and Lot 31 are amalgamated into the one lot. Accordingly, the parties agree that these questions are to be answered in the negative; and
(b) question 6 is more appropriately dealt with by the Commissioner as it is a question of fact relating to the extent of the proposed use of the right of way over the Second Respondents’ land. I agree that I cannot answer question 6 as it involves matters of fact not before me. As will become clear in this judgment it is unclear how question 6 should be dealt with in these Class 1 proceedings.

8 As the hearing before Commissioner Brown has been stood over pending the determination of these questions, the Court has yet to determine whether it will grant consent to the Applicant’s development application and, if so, whether it will do so on the basis of the consent conditions agreed by the Applicant and the Council.

9 In determining the questions referred by Commissioner Brown the Court has had the benefit of a Statement of Agreed Facts. The relevant parts of the Statement of Agreed Facts provide as follows:

Land and Ownership
…

Lot 32 is benefited and Lots A and 1 are each burdened by a Right of Carriageway created by Transfer C388369 dated 31 October 1935 (the ROC).

Lot 31 does not have the benefit of the ROC, and currently enjoys no other legal entitlement to use any part of Lot A either by right of carriageway, easement or otherwise.

The ROC is in the terms and for the purposes set out in Transfer C388369.

The Application
On 18 July 2003 the Applicant lodged a development application with the First Respondent for the demolition of the existing buildings and erection of buildings on Lots 31 and 32 being development application DF 567/03 (DF 567/03).

…

DF 567/03 is presently comprised by and described in the following documents:
(a) the Statement of Environmental Effects prepared by Huntington and Macgillvray Architects dated July 2003 and November 2003 (Exhibit 4 at p 12-30);
(b) the development application form of 567/03 dated 18 July 2003 (Exhibit 4);
(c) the plans which are now Exhibit A in the proceedings;
(d) letter from Sanders Penshurst Real Estate dated 9 July 2003;
(e) submission of Adrian Minaard dated 17 November 2003.

The development proposed in DF 567/03 will utilise the ROC for access to the development for the duration of use of the development upon completion and occupation.

Owners’ Consents
The Second Respondents have not given their written consent to the making of DF 567/03 as owners of Lot A.

Current Use of the Lands
Lot 1 in DP186197 has erected thereon a two storey building consisting of four commercial business on the ground floor and an accountancy practice and one residential unit on the first floor, and parking for five cars.

Lot A has erected thereon a two storey building consisting of the Second Respondents’ accountancy premises on the first floor, two retail shops on the ground floor, and parking for eight cars.

35 – 41A Penshurst Street, Penshurst is currently comprised of:
(i) No 35 – 37 being a two storey building which is 75 per cent vacant and 25 per cent occupied by a hairdresser with parking for 5 cars; and
(ii) No 39 – 41A being a single story building with four commercial shops and no parking.

The plan (Exhibit 2) at Annexure A to this judgment sets out the relationship between properties referred to in the Statement of Agreed Facts.

10 The Second Respondents argued that the development the subject of the Applicant’s development application relates to Lot A and that the Second Respondents, as owners of Lot A, have not given written consent to the lodgement of the development application as required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”). Clause 49(1) of the EP&A Regulation provides that:

A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.

11 The Second Respondents relied on the decision of King v Great Lakes Shire Council (1986) 58 LGRA 366 as authority for the proposition that where a landholder’s consent is required for the lodgement of a development application and that consent has not been obtained the development application is void. Accordingly, the Second Respondents argued that it is not open to the Court to determine the Applicant’s development application in the absence of the written consent of the Second Respondents.

12 The Second Respondents noted that s 81A of the EP&A Act provides that a “development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application”. The Second Respondents argued that the effect of s 81A is that if development consent is granted to the Applicant’s development application that consent will authorise the use of the Second Respondents’ land for the purpose of, amongst other things, providing access to the development the subject of the development application.

13 The Second Respondents argued that the decision of Stein JA in the Court of Appeal in Currey v Sutherland Shire Council & Ors (1998) 100 LGRA 365 (“Currey”) at p 367 makes it clear that the relevant question which the Court has to determine is “what was the subject matter of the development application”. The Second Respondents argued that the Applicant cannot rely on the development application form filed with the Council, which only refers to Lots 31 and 32, as determining the extent of the land the subject of the development application as:

(a) this is a matter for the Court to determine; and
(b) the access arrangements have been modified since the development application form was lodged so that access is via the right of carriageway from Victoria Street.

14 The Second Respondents argued at par 7 to 9 of their written submissions that the documents the subject of the development application (as listed in the extracts from the Statement of Agreed Facts set out above) clearly show that the right of way is to be used as the sole means of access to the Applicant’s development and indicate that the use of the right of way is part of the development application as:

7. The DA documents indicate that the development includes parts of Lots A and 1 (the right of way) in the use of Lots 31 and 32 because:
(a) the plans use language which is consistent only with the use of the right of way being part of what is applied for:
- Sheet O – Notation “*3 owner of 33 penshurst st to grant increase in row to 6000” [sic]
- Note the numeral “3” is repeated to indicate the location of the notation on the plan
- Drawing 1A has the notation in the southern corner:
“Existing 3.05 wide right of carriage way:, as well as “Amendments: A:4.3,04 access for parking from rear to basement level.”
- Plan 3A has the same last mentioned notation, as well as a notation on section A.A “Driveway”. Note the location of the section is shown on other plans and is within the subject land. The driveway can only lead to Lot A and Lot 1.
- Sheet 7 “Site Management Plan” shows two “shaker grids” with notation:
“Alternative entry. Shaker grid with 4m wide gate.”,
“Alternative entrance at existing right of way shaker grid plus 3m wide gate.”
(b) Regulation 50 of the EP&A Regulations sets out the information and documents which must accompany the DA. Reference is made to Part 1 of Schedule 1 to the Regulations. Part 1 of Schedule 1 requires that the applicant must provide a “sketch” of the development. The sketch referred to must indicate certain matters including:
“(e) … proposed … entry and exit points for vehicles …”
Accordingly the use of Lot A and Lot 1 must be shown in the sketch.
(c) The Statement of Environmental Effects is consistent with use of the right of way being part of the application itself. There is no separate statement in relation to how access is to be obtained later by separate application in the Statement of Environmental Effects.
(d) In the Amended Submission dated 17 November 2003 from the Applicant’s consultant commenting on the report of the Design Review Panel of 7 August 2003, the language again is consistent with the access from the right of way being part of the Application. Note at the time of this submission, there was dual access provided in the development plans then before the Council, namely access from Victoria Avenue as well as access from Penshurst Street, much as shown on the site analysis. Note in particular, the language at p 34-35 of the bundle.
(e) On 12 March 2004, a letter was sent from the Applicant to the Council enclosing four sets of amended architectural drawings. This document changed the vehicular access point. This letter and the plans (now before the Court) are consistent only with access over the right of way being part of the application.
8. The use of Lot A and Lot 1 for vehicular access to the development is an essential and integral element of the development proposed because:
(a) Parking for 51 cars is proposed over two levels.
(b) All vehicular access and egress to the parking area is over Lots A and 1. There is no other alternative access proposed for cars.
(c) On site car parking is an essential aspect of the development under the relevant planning instruments.
(d) The development is not permitted without the parking. The parking is not available without access to the public street. Access to the public street is not available without the use of Lot A and Lot 1.
(e) From any sensible, common sense, logical or proper planning point of view, the development application must in this case relate to Lot A and Lot 1.

9. The Council proposes that deferred development consent be granted upon condition that an easement be obtained for access over Lot A and Lot 1 for the vehicular/egress to the building without the need for development consent to be obtained to use the land in that way.

15 The Second Respondents relied on the decision of the High Court in Pioneer Concrete (Qld) Pty Limited v Brisbane City Council (1980) 145 CLR 485 (“Pioneer Concrete”) to support their argument that if the development the subject of the Applicant’s development application is held to relate to Lot A the land the subject of the development application must include this land.

16 The Second Respondents noted that the decision of the High Court in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 (“Ligon”) had narrowed the application of Pioneer Concrete in respect of the New South Wales planning regime because the statutory provisions are different to those considered in Pioneer Concrete. However the Second Respondents argued that Ligon and the cases which follow it do not mean that the Second Respondents’ case cannot succeed as the facts in these cases are different from those applying here in that:

(a) the right of way benefiting the land does not extend to all the land the subject of the development application, necessitating the creation of a further right of way if development consent is granted; and

(b) the right of way will provide the sole means of vehicular access to the development.

Further, the Second Respondents noted that it did not appear that the High Court in Ligon was referred to any provision equivalent to s 81A of the EP&A Act.

The Applicant’s and the Council’s Submissions

17 The Applicant and the Council argued that the development application form initially lodged with the Council correctly stated the land on which the development the subject of the development application was to be carried out, and this land did not include the land burdened by the right of way, being Lot A and Lot 1. The Applicant and the Council argued that no physical work is proposed to be carried out on the Second Respondents’ right of way under this development application. Accordingly, the Applicant and the Council argued that the consent of the Second Respondents was not required for the lodgement of the development application pursuant cl 49(1)(b) of the EP&A Regulation.

18 The Applicant and the Council noted that the amended development application plans in Exhibit 6 quite appropriately show the means of access across Lot 1 and Lot A but argued that this does not mean that development consent is being sought to use the right of carriageway burdening Lot A. The Applicant and the Council argued that, while work on Lot 1 will be necessary in the future if development consent is granted as:

(a) the right of way over Lot 1 is to be extended to 6m from the current 3.05m to allow for a passing lane; and

(b) the benefit of the right of way is to be extended to both Lot 31 and 32;

any works required will be the subject of a future development application. I note that it was unclear whether the Applicant and the Council considered that a development consent would be needed in relation to Lot A. Accordingly, the Applicant and the Council argued that the land burdened by the right of way currently benefiting Lot 32 is not land which is the subject of the development application before the Court.

19 The Applicant and the Council argued that Ligon was directly on point and the facts here are not materially different from those considered by the High Court in Ligon. Accordingly, the Applicant and the Council relied on Ligon and the decisions of the Court of Appeal in Hillpalm v Tweed Shire Council [2002] NSWCA 332 (“Hillpalm”), Currey and Grace Bros Pty Ltd v Willoughby Council [1981] 2 NSWLR 80 to argue that the land the subject of the Applicant’s development application is confined to the land on which the development will actually be built, being the land nominated in the development application form initially lodged with Council, and does not extend to Lot A although this will provide access to the development.

20 The Applicant and the Council argued that the decision of the High Court in Ligon and the decisions of the Court of Appeal which follow it make it clear that the decision of Pioneer Concrete, which concerned an extended definition of use contained in the City of Brisbane Town Planning Act 1964-1976, is of limited application to the EP&A Act which does not contain any such extended definition of use.

Finding

21 The Second Respondents’ counsel has sought to distinguish the facts before me from those in Ligon, Currey and Hillpalm in order to argue that the principles enunciated in these cases are not applicable here.

22 The judgment of Lloyd J in Hillpalm Pty Limited v Tweed Shire Council (2002) 119 LGRA 86 contains the following useful summary of Ligon and Currey at par 56 to 64, which I respectfully adopt:

The Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 was concerned with the development of a residential flat building on top of an existing club premises, the North Sydney Club. The club had existing rights of footway over adjoining land owned by the proprietors of the Century Plaza building which were used by patrons of the club. In conjunction with the proposed development, these rights of footway were thenceforth to be used both by the patrons of the club as well as the residents of the new apartments.

Sheller JA, in the majority judgement, relied on authorities relating to the use of easements to show that the use of the easement proposed by the development application was within the rights of the dominant tenement. His Honour then stated (at 450):

Unless the development of the Club land results in a change of the manner or purpose of the user of the rights of footway or an excessive user of them, the owners of the servient tenement … cannot prevent or interfere with that use. …

No one proposes to carry out any development, as the Act defines that word, on the Century Plaza land. … In the absence of any evidence that it is proposed to use the easements in a way not permitted by their terms or to erect a building or carry out a work in, on, over or under the servient tenement there is not nor is there any need for a development application which relates to the servient tenement.

The High Court on appeal did not endorse this approach, rather it stated (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 475-6):

With respect, the need for consent to a use of land is not dependent on the terms of the proprietary or contractual rights of persons proposing to use the land or to suffer the use of the land by others. …Nor is it self-evident that a relationship for the purposes of s 77(1)(b) between a development application for consent to erect a building on one parcel of land and an adjoining parcel of land is established by the need for consent to a development on the adjoining parcel.

The High Court also found that the consent of the owner of the Crown Plaza land was not required, but on a different basis. Its conclusion was based on the fact that the purpose of obtaining a consent is to obtain relief against the prohibition contained in s 76(2) of the EP&A Act (now effectively re-enacted as s 76A(1)), which was a prohibition imposed on particular parcels of land by an environmental planning instrument. It adopted an interpretation of the word "relates" in this context which was limited to the parcel of land on which the development the subject of the application was to be carried out (at 476).

It was accepted by the High Court that a development "carried out on one parcel of land may entail a development on an adjoining parcel or on another parcel in the locality”; however, the proper place for taking into account such developments was a relevant consideration under s 90(1)(h). The High Court concluded (at 477):

Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel - not to the adjoining parcel.

Currey v Sutherland Shire Council (1996) 92 LGERA 85 concerned a subdivision of land, access to which had to be gained via an existing right of way over a lot in separate ownership (lot 1). Pearlman J, following Ligon, found that the consent of the owner of lot 1 was not required because of the mere fact that access to the proposed new lots had to be gained over lot 1 did not make lot 1 the land to which the development application related, and that the development application did not require any works to be done on lot 1 (although the council had subsequently required details of road upgrading on lot 1 to be provided as part of the consent process).

The Court of Appeal in Currey v Sutherland Shire Council (1998) 100 LGERA 365 upheld Pearlman J's decision, but used a different reasoning process to arrive at the same conclusion. Stein JA said (at 367):

In my opinion, the appellant's submission that the development application is invalid because it lacks the consent of the owner of lot 1 is misconceived. This is apparent from answering the following question. What was the subject matter of the development application? When this is examined, it is abundantly clear that it is the subdivision of lot 4 into three lots. The development application did not encompass lot 1, nor did the council grant consent to carry out development on lot 1.

This passage suggests that the approach may be one of characterisation; if one determines the true "subject matter” of the application and the land to which that "subject matter” applies, the implication is then that one may ignore ancillary works which are to take place on other parcels of land. But this impression is counteracted by Stein JA's reference to evidence showing that the off-site road improvement proposals were not part of the initial application. This suggests that he may have been willing to regard lot 1 as part of the land to which the development application "related" if these works had been part of the application from the outset.

23 Consideration of the judgment of Lloyd J in Hillpalm Pty Limited v Tweed Shire Council is instructive as his Honour considers not only the development application form but also the statement of environmental effects which accompanied the development application form to determine whether, as a matter of fact, that application did in fact relate to the adjacent land. In Hillpalm Pty Limited v Tweed Shire Council the development application form referred only to the land on which the proposed subdivision was to take place and not to the land over which access was necessary. The land proposed for subdivision had the benefit of an existing right of way. The statement of environmental effects referred to the need for work to be done on the access road on the adjoining land. His Honour concluded that these statements in the statement of environmental effects were put forward so that the off-site impacts of the development could be considered, rather than as aspects of the development for which consent was sought. The decision of Lloyd J was upheld on appeal by the Court of Appeal in Hillpalm with Meagher J noting at par 12 that: “What land an application “relates to” must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document”. The reasoning process followed by Lloyd J in Hillpalm Pty Limited v Tweed Shire Council and upheld by the Court of Appeal would appear to apply directly to the facts before me.

24 The Second Respondents submitted they do not seek to cavil with the principles in Ligon but argued that the facts here are so different that these principles do not apply. The further difference relied on by the Second Respondents was that s 81A of the EP&A Act provides that when consent is given to the erection of a building that consent extends to consent to use the building for the purpose for which it is erected and this was not specifically referred to in Ligon. I do not consider that these differences are sufficiently great to suggest that the principles in Ligon do not apply or that I should not follow the reasoning process adopted in Hillpalm.

25 It follows that the land the subject of the Applicant’s development application is that specified in the development application form initially lodged with the Council. The fact that the development proposed has altered so that access is to be provided over a right of carriageway burdening Lot A does not mean that the land the subject of the development application includes Lot A. The answers to questions 1-4 are:

1. No
2. Not applicable
3. Not applicable

4. Yes

There are however consequences of this decision for the Applicant’s development application.

26 The intensification of the use by Lot 32 of the right of way burdening Lot A requires development consent in accordance with the EP&A Act given that the use of land is “development”. This is also in accordance with Ligon at p 478. Accordingly, the Applicant needs to apply for and obtain development consent for the intensification of the use of the right of way for Lot 32 if this development application is to ultimately proceed. Obviously the consent of the Second Respondents will be necessary for any such development application lodged for Lot A.

27 It is a matter for the Commissioner whether he chooses, in circumstances where it is not known whether consent to the more intensive use of the right of way over Lot A by Lot 32 can be obtained, to grant consent to the development application currently before the Court. Theoretically a deferred commencement condition requiring that development consent be obtained for the intensification in use before any development consent granted to this development application commences could be considered. If the Second Respondents’ consent for such a development application is not forthcoming then presumably such a condition will not be fulfilled.

28 I noted at par 7 above that the parties did not consider that question 6 should be answered by me. I have a couple of concerns as to whether question 6, as currently drafted, can be answered in these proceedings. Firstly, the wording of question 6 suggests that it raises mixed questions of fact and law. In my view, the legal context in which this question needs to be answered requires clarification. What is highlighted by the circumstances here is the appropriate interaction, if any, between obtaining development consent for a use and that use being the subject of an application for an easement under s 40 of the Court Act. Given that there is no development consent currently sought for the intensification of use of the right of way on Lot A (or Lot 1), question 6 which relates to “excessive user” of Lot A by Lot 32 (or Lot 31 but I consider that requires separate consideration) is simply not a matter which I would have thought can be finally decided by the Court in these Class 1 proceedings. Access is of course a relevant consideration in these Class 1 proceedings but final resolution of that matter presumably arises if a development application is lodged, with the consent of the Second Respondents, seeking development consent for the intensification of use of the right of way on Lot A by Lot 32. I am not seeking to finally determine here whether question 6 is appropriately worded as these matters were not discussed with the parties as they have only occurred to me in the course of writing this judgment.

29 I have asked the parties to provide further submissions on the issue as to whether, given that Lot 31 has no access to Victoria Street, a deferred commencement condition providing for the creation of an easement in reliance on s 40 of the Court Act is appropriate. Presumably the same issue as I have raised in par 28 concerning obtaining development consent for the use of Lot A as a right of way by Lot 31 also needs consideration.

30 The parties need to consider the matters raised in this judgment and advise whether they wish the matter to return to Commissioner Brown for his further consideration or whether there are further legal issues which require clarification before a judge. I note that I will need to give my decision on the additional issue concerning Lot 31 and that the Second Respondents are filing further submissions in mid-January 2005 on that matter. To that end the matter should be put in the Registrar’s callover list on a date convenient to the parties or some other course convenient to the parties adopted.