Moorebank Recyclers Pty Ltd v Liverpool City Council
[2013] NSWLEC 33
•21 March 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Liverpool City Council and Anor [2013] NSWLEC 33 Hearing dates: 1 and 8 March 2013 Decision date: 21 March 2013 Jurisdiction: Class 3 Before: Sheahan J Decision: See par [115] of this judgment
Catchwords: EASEMENTS: Matter transferred from Supreme Court - summons under s 88K of the Conveyancing Act 1919 - applications for leave to amend the summons and for expedition of the hearing of the proceedings Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993
Real Property Act 1900
Environmental Planning and Assessment Regulation 2000
Uniform Civil Procedure Rules 2005
Liverpool Local Environmental Plan 2008Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Healthscope Ltd v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237
Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21
Saad v City of Canterbury [2012] NSWSC 389
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, 171 LGERA 286
Valuer-General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306
Vaughan v Dawson [2005] NSWSC 33
Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122Category: Interlocutory applications Parties: Moorebank Recyclers Pty Ltd (Applicant)
Liverpool City Council (First Respondent)
Tanlane Pty Ltd (Second Respondent)Representation: T Robertson SC and J Lazarus (Applicant)
J Hutton, barrister (1 March) and C Morton, solicitor (8 March) (First Respondent)
T Hale SC and Z Steggall (Second Respondent)
Mark McDonald & Associates Lawyers Pty Ltd (Applicant)
Sparke Helmore (First Respondent)
Minter Ellison (Second Respondent)
File Number(s): 30141 of 2013
Judgment
General Introduction
This judgment determines contested applications for leave to further amend the summons, and for expedition of the substantive proceedings seeking an easement.
Both the applicant, Moorebank Recyclers Pty Ltd ("Moorebank"), and the second respondent, Tanlane Pty Ltd ("Tanlane"), wish to develop their adjoining lands in the "Moorebank precinct" of the respondent (Liverpool) Council's area, and this is one of several proceedings concerning those proposals.
Moorebank has recently made what it says are necessary, but relatively minor, changes to the access arrangements for its project. It says they were forced upon it by a recent related Court of Appeal decision, to which Tanlane and Moorebank were parties, but Council was not.
Moorebank argues that its proposed amendment of its summons - which abandons the two mutually exclusive access proposals for which easements have so far been sought, and proposes only one instead - will narrow the proceedings.
Both Tanlane and the Council oppose both the proposed further amendment of the summons, and any expedition of these proceedings, but neither would oppose expedition if leave to amend were refused. Certainly, Tanlane argues that the proposed further amendment will give the proceedings an "entirely different character", and both respondents say it will require extensive preparation on their parts.
By way of evidence, the court has before it affidavits provided by Luke Walker (Solicitor for Tanlane - 12 December 2012, 28 February 2013 and 7 March 2013), Mark McDonald (Solicitor for Moorebank - 27 February 2013), Richard Kell (Engineer for Moorebank - 21 February 2013), and Neil Kennan (Town Planner for Moorebank - 25 and 26 February 2013), and plans, drawings, aerial photographs, expert reports and other documents tendered by Moorebank.
Kennan also gave oral evidence before me on 1 March, and on 8 March Mr Robertson SC (for Moorebank) - in reply to submissions made by Mr Hale SC (for Tanlane), which were supported by Ms Morton (on behalf of Mr Hutton, for Council) - referred me to pars 85-94 of Kennan's earlier affidavit, dated 16 October 2012.
Ms Morton filed in court, on 8 March 2013, with her written closing submissions, and with no objections from either company, clean copies of four items of correspondence between her firm and the solicitors for Moorebank, which Mr Hutton had foreshadowed, in his opening, tendering as exhibits (see T1.3.13, p50, L47-p51, L30, and T8.3.13, p72, LL29-50). All four letters were dated between 11 January 2013 and 20 February 2013, and discussed what might flow from the Court of Appeal decision to which I have referred.
Introduction to the lands, the proposals, and the access issues
Moorebank's proposal for its land involves a materials recycling plant, and several of the proceedings concern (or have concerned) arrangements for vehicular access to it. Tanlane's proposal for its land is a residential development, and much nearby development is also residential in character. Obviously it would be desirable to separate industrial from residential traffic within the precinct.
The Council has been responsive to Tanlane's needs, but appears to be consistently opposed to Moorebank's project, and will not fully facilitate its access proposal (a position confirmed in a detailed letter to the Department of Planning on 7 February 2013 - Exhibit M7 - and orally during the hearing of these applications). Indeed, counsel for Moorebank referred, in his written submissions in response to Tanlane's arguments (at par 12), to Council's "well-known antipathy" to Moorebank's proposal.
Moorebank's land (Lot 6 DP 1065574) has an area of approximately 20.5 hectares, including a narrow corridor leading to Newbridge Road (known as "the panhandle"), which is 900m long, 10m wide, and relevantly 6m lower than the land on either side of it.
Tanlane's land includes Lot 7 in the same deposited plan.
Council's relevant land (Lots 308, 309 and 310 DP 1118048) is west of both Moorebank's and Tanlane's land. Some, at least, of that land was transferred to Council by Boral (on 23 January 2008, and 19 January 2010).
Council has co-operated with Moorebank's objectives in so far as they impinge upon Lots 308 and 309, but not Lot 310, which is zoned "Community Land", under Chapter 6 of the Local Government Act 1993 ("LG Act").
All the relevant lands of the three parties are on the western side of Georges River, south of Newbridge Road. Moorebank's proposal for its materials recycling plant requires a road access to Newbridge Road, which access would pass Tanlane's residential land to its north.
Tanlane's access to Newbridge Road requires a flood-free road bridge to be built over the identified route of Moorebank's access (the panhandle or Brickmakers Drive). Moorebank, as registered owner of Lot 6, consented (with various reservations) to a development application ("DA") by Tanlane for construction of such a bridge, and Council granted development consent ("DC") to the bridge, but no consent has yet been granted for Moorebank's proposed ramps to the bridge, or for the development and residential use of the Tanlane land.
Tanlane required an easement over part of Moorebank's land (i.e. the panhandle) in order to build such a bridge, but Moorebank opposed the grant of that easement. A 2002 agreement led to an easement, but that agreement apparently faltered as a result of surveyor error.
Tanlane commenced Supreme Court proceedings under s 88K of the Conveyancing Act 1919 ('Conveyancing Act'), to obtain an easement in the correct position approved for the bridge. Tanlane succeeded before Young J (see [51] below), and successfully resisted much of an appeal by Moorebank to the Court of Appeal, to secure the necessary easement, subject to an outstanding question of compensation.
While the decision on that appeal was reserved, Moorebank commenced, in the Supreme Court, its own proceedings under s 88K, and those proceedings are now before this court.
The relevant statutory provisions and their interpretation
Section 88K of the Conveyancing Act provides:
88K Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
(6) Such an easement may be:
(a) released by the owner of the land having the benefit of it, or
(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification.
(7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect:
(a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or
(b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.
(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.
(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.
Section 40 of the Land and Environment Court Act 1975 ("the Court Act") also relevantly provides:
40 Additional powers of Court-provision of easements
(1) This section applies if:
(a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or
(b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners).
(2) The appellant may make an application to the Court for an order imposing an easement over land.
(3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900.
(4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.
Young J has opined - in Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286, at [15] - that s 88K requires a person seeking an order to establish five matters (emphasis mine):
A. That the proposed easement is reasonably necessary for the effective use or the development of the applicant's land;
B. The use of the land having the benefit of the easement will not be inconsistent with the public interest;
C. 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;
D. All reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful; and
E. The Court, in its discretion, considers it just that the order be made.
The amendment of pleadings is permitted pursuant to s 64 of the Civil Procedure Act 2005 ("CPA Act"). It is a discretion which the court must exercise having regard to the "dictates of justice" in ss 56-58 of that Act Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175; Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21.
The expedition of proceedings is permitted pursuant to s 61 of the CPA Act and r 2.1 of the Uniform Civil Procedure Rules 2005. Again ss 56-58 of the CPA Act, along with ss 62-3 are relevant to the exercise of the power.
The principles for granting expedition were well summarised by Campbell J in Vaughan v Dawson [2005] NSWSC 33, relying upon statements by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33, at 42-3. Those principles are regularly endorsed and applied by this court, e.g. Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122; Healthscope Ltd v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237. An application for expedition must be made promptly, once the perceived need arises: Valuer-General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306.
The Moorebank proposal
A 2005 amendment to Liverpool Local Environmental Plan 2008 ("LEP") permits a materials recycling plant on part of Moorebank's land, with consent, and, in 2005, the then NSW Minister for Planning declared that (the now repealed) Part 3A of the Environmental Planning and Assessment Act 1979 ("EPA Act") would apply to such a proposal, so taking away from the Council the right to approve or refuse it.
Pursuant to the Environmental Planning and Assessment Regulation 2000 (cl 8F(2)), landowner's consent to use of another's land for access purposes may be provided at any time prior to determination of Moorebank's Part 3A application, which was lodged on 2 May 2006.
Moorebank's environmental assessment was submitted on 25 February 2013, and its proposal was finally placed on public exhibition on 28 February 2013, for the period until 5 April 2013. It will be necessary for Moorebank to amend the exhibited proposal, as notified within it (T1.3.13, p47, L41 - p48, L13), once the access arrangements become clearer.
I am satisfied that Moorebank can adequately explain the loss of time on its part in finalising the form of its Part 3A application, i.e. from August 2006 until the end of 2012. Kennan explained it in his oral evidence before me on 1 March 2013 (T1.3.13, p38, L48-p41, L50), and Pembroke J did not require junior counsel for Moorebank (Mr Lazarus) to address him on that question on 22 February 2013 (T22.2.13, p11, LL7-10).
With the June 2011 repeal of Part 3A, following the election of a new State Government, the Department of Planning reviewed all pending Part 3A applications, and required some to proceed by way of Part 4 of the EPA Act, as State Significant Development.
Although Kennan did not mind whether the project proceeded under Part 3A or Part 4 (T1.3.13, p43, LL16-19), the Moorebank proposal was not redirected to a Part 4 process by the Department, and, indeed, the Department has facilitated its proceeding as a Part 3A project, e.g. by granting an extension of time for lodgement of its Environmental Assessment (a draft of which Moorebank lodged in July 2011).
The Moorebank proposal, therefore, remains a "transitional Part 3A" application, but is under a regulatory "guillotine", which mandates its determination by the Planning Assessment Commission ("PAC") not later than 30 June 2013. (See 'Planning & Infrastructure Fact Sheet', dated August 2012 - annexure 'M' to Kennan's affidavit of 25 February 2013).
It would appear to be highly unlikely, however, that the 30 June 2013 deadline on the PAC's determination will be extended by the government (see T1.3.13, p43, LL21-6). If no extension is granted, and landowner's consent is not obtained from Council in due time, the Minister would be expected to revoke his Part 3A declaration in respect of the project, leaving Moorebank to start afresh under Part 4.
If at any time the Moorebank proposal were (to be) dealt with under Part 4 of the EPA Act, it would be necessary for Moorebank to hold landowner's consent before lodgement of its application.
It is expected that both Council and Tanlane will lodge objections to the exhibited proposal. Council has already submitted to the Department, in opposition to exhibition itself: (1) that the impacts of the proposal cannot "be properly assessed without the access arrangements confirmed" (Exhibit M7, p1), and (2) that the "substantial civil works" needed in the Council's reserve to achieve access will cause "flood impacts" (p5).
The PAC determination cannot be made without the owner's consent to use of affected land. Such consent has been denied to Moorebank by the Council since July 2011, at least in respect of Lot 310.
To secure necessary access for its project, whichever option is employed, Moorebank needs an easement which Council will not grant. On 27 September 2012, while the Court of Appeal was reserved on Moorebank's appeal against Young J's Tanlane easement decision, Moorebank commenced these present s 88K proceedings in the Supreme Court (SC Matter No 2012/300936).
If the project is refused by the PAC, or rejected because of the 30 June deadline, serious prejudice will allegedly flow to Moorebank, in terms especially of cost and delay.
These proceedings
On 22 October 2012, Moorebank sought expedition of its s 88K proceedings, and Pembroke J so ordered on 2 November 2012.
On 8 November 2012, Moorebank filed an Amended Summons.
On 14 December 2012, Pembroke J urged the parties to these proceedings to continue preparation for an early hearing (see T14.12.12, p11, LL2-5 and 42-46).
On 21 December 2012, the Court of Appeal delivered its judgment on Moorebank's appeal ([2012] NSWCA 445). Tanlane succeeded in obtaining its easement, on terms, but it is not to be imposed until compensation has been assessed for the resultant loss in value of Moorebank's land. That assessment matter remains in the Supreme Court's lists.
On 22 February 2013, the present matter was transferred to this court, by order of Pembroke J, pursuant to s 149B of the CPA Act, (and became LEC Matter No 30141 of 2013). His Honour revoked his earlier expedition order, and ordered joinder of Tanlane as a respondent to the substantive proceedings.
Moorebank seeks relief - in both its amended summons of 8 November 2012, and in the further amended summons it has proposed, following the Court of Appeal decision - pursuant to s 88K of the Conveyancing Act, by way of an easement, and a right of carriageway, over land owned by Council, in the face of Council's refusal to give its "owner's consent" for such use of its land.
The transferred matter came before me as List Judge of this Court on 1 and 8 March 2013, with Moorebank seeking (in amended Short Minutes of Order ("SMO") filed in court on 8 March 2013):
(1) Leave to further amend the summons, in the form foreshadowed early in February 2013, and in terms circulated late in February 2013.
(2) Expedition of the hearing in this court, estimated in the SMO to require four days, but by Walker to require eight days.
(3) Various directions regarding evidence, including expert evidence. (The precise terms of the directions will depend on whether expedition and/or leave to amend is/are granted).
The proposed further amendment to the summons would delete alternative relief sought in the amended summons, and also substitute a new annexure, reformulating the terms of the easement being sought. Instead of an easement for construction, maintenance and repair of "a Road and Road Bridge with ramps and bridge abutment", the further amended summons seeks one in respect of "a Road, and bridge abutment with ramps".
Moorebank alleged before me on 1 March that Tanlane has itself been tardy in its pursuit of the final terms of its easement, and determination of the compensation payable, in a commercial manoeuvre designed to assist in delaying Moorebank's 3A application until passing of the 30 June deadline leads to its rejection or refusal.
Like Pembroke J (T22.2.13 p12, L6), I am not satisfied of any such motivation. The listing and hearing of the compensation aspect of the Tanlane matter was and remains the responsibility of the Supreme Court, and Tanlane was not required by the Court of Appeal to take any steps to initiate it, nor to seek expedition of it. While this judgment has been reserved the solicitor for Tanlane advised my Associate and the solicitors for the other parties that the Court of Appeal had relisted the matter for Friday 22 March 2013.
It is, however, important for me to note here that Tanlane will not obtain its easement until the question of compensation is resolved, and it needs the easement to build its bridge, for which DC was obtained in 2007. Yet, Tanlane argues before me that this court should not make any decision/direction that brings on the Moorebank easement proceedings in this court while Tanlane's proceedings remain to be concluded in the Supreme Court.
The relevant detailed history of Moorebank's project, and of all the proceedings of relevance to it, can be found in the Court of Appeal judgment, and among material now before me, but is too complex to repeat, in full, in an interlocutory judgment such as this. The summary below will provide adequate background for the decisions I intend to make. It is largely adapted from that judgment, and from so-far uncontested statements made in the evidence adduced before me.
Further Relevant Background
Tanlane's proceedings were heard at first instance by Young J, who found in its favour (see His Honour's three judgments - [2008] NSWSC 1341, [2011] NSWSC 1286, and [2012] NSWSC 90).
However, the Court of Appeal (in its judgment of 264 paragraphs) allowed Moorebank's appeal on the s 88K aspect, in part, and set aside some of Young J's orders, on the ground that they were beyond power.
Before the Court of Appeal each company advanced an access proposal for the Moorebank land. Tanlane supported what had become known as "the ramps proposal", developed after Young J's final orders, and Moorebank preferred its original scheme, known as "the Marshall plan" or "the road proposal". The Marshall plan did not need the proposed bridge, but would allegedly deny Tanlane access to Newbridge Road.
Each Moorebank access plan involved the use of former Boral land, now owned by Council.
The Director General's Requirements ("DGRs") for the Moorebank Part 3A proposal, as issued on 8 August 2006, included a requirement for demonstration by Moorebank, prior to lodgement of its draft Environmental Assessment ("EA"), that "suitable site access arrangements were in place" (Court of Appeal at [23]).
The Tanlane bridge proposal approved by Council envisaged (but did not approve) ramps to facilitate truck access/egress to/from the Moorebank land (the "ramps proposal" mentioned above). The "competing", but Moorebank-preferred, Marshall plan involved no bridge, and would allegedly not affect any environmentally sensitive land.
The position of the then RTA was that access to Newbridge Road for the purposes of a materials recycling plant ought to be permitted only via Brickmakers Drive, and Council adopted a development control plan ("DCP") limiting the means by which access would be gained to lands east of the panhandle.
On 24 April 2007, Council granted a (two-year) development consent (DC 1552/06) to Tanlane's bridge DA, on condition that the already designed access ramps be accommodated. Conditions 14 and 32 (pp12 and 15 of Annexure C to Exhibit M5) provided as follows:
14 The bridge is to be designed and constructed such that it is able to accommodate the access ramps (Concrete Recyclers Access Option A) as designed in concept by Patterson Britton and Partners Pty Ltd.
...
32 Full details are to be shown on the concept plan of the proposed bridge that allow for pedestrian movements on the proposed roadway. Pedestrian movements are only required on one side of the bridge and shall be able to accommodate a combined bicycle / pedestrian path of at least 3.5m and shall be accompanied by a detailed lighting plan. Details are to be provided and written approval given by Council prior to the issue of a Construction Certificate.
Kennan says that the Patterson Britton concept (Option 'A' in condition 14 above) was an option developed because Council wanted both Tanlane and Moorebank to obtain access to their lands when a bridge was mooted (T1.3.13, p48, LL29-32).
Tanlane then had its consent modified on 25 May 2007, and Condition 32 was amended to read (par 14 of Exhibit M5 itself - amendments emphasised by me):
32 Full details are to be shown on the concept plan of the proposed bridge that allow for pedestrian and bicycle movements on the proposed roadway. Pedestrian and bicycle movements are only required on one side of the bridge and shall be able to accommodate a combined bicycle/pedestrian path of at least 3.5m and shall be accompanied by a detailed lighting plan. Details are to be provided and written approval given by the Council or an accredited certifier prior to the issue of a Construction Certificate. As a result the road bridge is to be widened from 11 metres to 12 metres and amended plans are to be lodged with Council or an accredited certifier.
Option 'A' did not allow for those physical amendments to the bridge.
On 6 or 8 August 2007, Moorebank commenced class 4 proceedings in this court, challenging the validity of DC 1552/06.
Amended DGRs, dated 7 July 2008, required Moorebank to not only formulate "suitable access plans", but also provide written evidence of landowner's consent to the arrangements necessary for them.
On 29 August 2008, Tanlane's Lot 7 was zoned medium density residential, and the 2008 LEP provided that Lot 6 could be used, with consent, for a recycling plant. (The Lot 6 provision was time-limited, requiring any recycling plant DA to be lodged prior to 1 September 2018).
On 15 December 2008, Young J delivered the first of his three judgments in Tanlane's proceedings, and, on 23 July 2009, Lloyd J dismissed Moorebank's class 4 challenge ([2009] NSWLEC 100).
On 27 January 2009, Council, as landowner, consented to lodgement of Moorebank's Part 3A application, but, on 15 June 2011, it resolved to recommend to the State Government that it refuse it.
In July 2011, Council made clear to Moorebank that it would not grant access over, at least, Lot 310. That remains Council's position ([10] above - see Exhibit M7).
Since at least October 2011 the position regarding pending Part 3A applications has been dictated by the Department of Planning.
On 4 November 2011, Young J delivered his second judgment, and, on 21 February 2012, he delivered his third, making orders resulting from his findings in the second.
Moorebank lodged its appeal against Young J's orders, on 20 grounds, and the Court of Appeal expedited the hearing of that appeal.
Much of the Court of Appeal decision turned on (1) argument about the effect of leading authorities on s 88K, such as 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 ("117 York Street") (1998) 43 NSWLR 504 (per Hodgson J), and Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd ("Rainbowforce") [2010] NSWLEC 2, 171 LGERA 286 (per Preston ChJ), and (2) Young J's application of them (see, e.g, [154]ff).
The Court of Appeal (constituted by Bathurst CJ, Beazley JA, and Meagher JA) delivered a single judgment on 21 December 2012, some major paragraphs of which now follow:
140 Moorebank also pointed to authority to the effect that where a proposed easement involves appropriating another person's property and there is alternate means of access, there must be "considerable advantage" in obtaining the easement rather than developing the alternative: ... It submitted that the evidence failed to show such a considerable advantage. In this context senior counsel for Moorebank emphasised that Tanlane had not taken any steps to investigate the alternate access.
...
155 In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land. That in our opinion is consistent with what was said by Hodgson J in 117 York Street ....
...
202 The position, in our opinion, can be summarised as follows:
(i) At the present time, having regard to the position adopted by the Council as expressed in its letter of 14 July 2011, Moorebank cannot proceed further with the Part 3A Application because it cannot obtain Council's consent to access the 2A land to carry out the work necessary to implement the Marshall plan. This is because the Planning Authority has indicated it will not proceed further until it has that consent.
(ii) Thus, for Moorebank to proceed further it will be necessary for it to obtain an easement under s 88K of the Act to construct a road on the 2A land and to use it for vehicle access, including vehicle access for trucks used in the recycling business. It is only if such an easement is granted that the Marshall plan can be taken any further. Moorebank could seek as a condition of the easement that Council provide to the Planning Authority its consent to the carrying out of the necessary works: 117 York Street ....
(iii) Having regard to the terms of the resolution of 15 June 2011 and the Council letter of 14 July 2011, Council would oppose the grant of the easement.
(iv) In any application for the grant of an easement significant questions of public interest would undoubtedly arise. ... Further, the Court would have to take into account the fact that the grant of the easement would frustrate the Development Control Plan and at least significantly diminish the prospect of the development of the Tanlane land, in circumstances where it has at least obtained consent to a mode of access to and from Brickmakers Drive to enable such development to take place. Aligned to this, as no easement is sought over land owned by Tanlane, the Court in our opinion, would not have power to order any compensation for any loss Tanlane suffered by virtue of the imposition of the easement on its ability to develop the land. Even if this is not relevant to the public interest it will be a matter relevant to the discretion whether or not to grant an easement.
(v) Further, although Mr Kennan may well be correct as to the desirability of separate access points for the Tanlane and Moorebank development ... [O]n the material available the only alternative proposal, namely, Davy Robinson Drive is not a realistic proposal.
(vi) Even if the easement over the 2A land was granted, Moorebank would still need to obtain development consent from the Planning Authority to the recycling facility on conditions acceptable to it.
(vii) Contrary to Tanlane's submission, in our opinion the position of Council expressed in the resolution of 15 June 2011 and the 14 July 2011 letter extends to the Ramps proposal. The resolution referred to both Lots 309 and 310 and stated in terms that Moorebank's proposed use was incompatible with the current planned residential and recreational use of the area.
(viii) For the Ramps proposal to be implemented, Moorebank would need to lodge a development application with Council which would require Council's consent as owner of the 7(C) and 2A land.... In our opinion it is extremely likely that Council will decline to grant it.
(ix) If Council decided to reject the development application ... Moorebank's only option would be to seek an easement under s 88K over the 7(C) and 2A land. The grant of an easement of this nature would not affect the access to Brickmakers Drive by occupiers of land to the east of the panhandle, but there may be public interest considerations in granting an easement over the environmentally sensitive 7(C) land. If such an easement was granted, a condition that the Council grant owner's consent to the development application could be imposed. Moorebank would then need to lodge a development application. If Council rejected the development application Moorebank could have a right of appeal to the Land and Environment Court under s 97 of the EPA Act.
(x) If Council rejected the development application lodged without consent ... or there was a deemed refusal for lapse of time ... Moorebank could appeal to the Land and Environment Court under s 97 of the EPA Act. That Court is entitled to exercise the powers and discretions of Council by virtue of s 39(2) of the Land and Environment Court Act 1979, including the power to give owner's consent.... The Land and Environment Court also has power, in a case where it determines to grant development consent under s 97, to provide for an easement necessary to give effect to the development (Land and Environment Court Act s 40).
(xi) As we indicated earlier Mr Kennan's principal concerns about the Ramps proposal seemed to be that it encroached on the environmentally sensitive 7(C) land and the desirability of separate access points for the Moorebank land and the Tanlane land. Mr Kennan's ultimate evidence was he doubted Council would give consent to the lodging of a development application for the ramps. Mr Mitchell by contrast stated that the Ramps proposal was the preferable option to the Marshall plan but acknowledged that Council as landowner may resist it.
203 The evidence establishes, in our opinion, that at the present time Moorebank, irrespective of the grant of the easement, does not have any immediate right to access to Brickmakers Drive. The effect of the grant of the easement would put it out of Moorebank's power itself to obtain an easement from Council as a consequence of s 88K proceedings and then proceed with a development application with access to Brickmakers Drive as set out in the Marshall plan. Instead it would be left with the opportunity to take similar steps to implement the Ramps proposal, namely, to seek an easement from Council over the 7(C) and 2A land and proceed with a development proposal. The outcome in either case is uncertain. However, there is nothing to suggest that one of the courses of action has better prospects of success than the other. ... the Ramps proposal would seem to hold better prospects of success than the alternative.
204 In these circumstances we are satisfied that notwithstanding the fact that the grant of the easement will deprive Moorebank of the opportunity to implement the Marshall plan, the easement is reasonably necessary for the use and development of the Tanlane land.
205 It follows that the precondition to the exercise of the discretionary power under s 88K(1) to impose an easement is made out.
...
250 It follows, in our opinion, that the matters referred to in par [202] of this judgment and the valuation evidence referred to above, establishes [sic] that the grant of the easement would not have a detrimental effect on the value of the Moorebank land. The primary judge effectively allowed compensation for diminution of value in an amount of $26,500. This figure was not challenged by Tanlane on the appeal and though we respectfully consider that the reasoning by which the primary judge arrived at the figure was incorrect, such an amount would in our view constitute at least appropriate compensation.
251 However, no detailed argument was presented to the Court on this issue and as we are approaching the matter on a basis different to that adopted by the primary judge, Moorebank should have the opportunity of arguing that notwithstanding the conclusion which we reached in par [202], compensation for loss of value of the land greater than $26,500 should be awarded. The matter should be referred back to a judge or an associate judge for this purpose.
...
253 We do not consider that Ground 19 of the Notice of Appeal has been made out. The costs referred to in paragraph 19(a) of the Notice of Appeal would seem to us, having regard to the unlikely success of the Marshall plan, to be costs which would necessarily be incurred in any development of the land. Further, there is nothing to suggest that the costs would be any greater than obtaining approval to the Marshall plan, which would also involve a s 88K application in respect of Council land. Paragraph 19(b) of the Notice of Appeal was not pressed.
...
256 It follows that subject to an order providing for compensation under s 88K(4) being made, we would make an order in favour of Tanlane, imposing an easement on the terms ordered by the primary judge (see Schedule), but adding the following terms as cll 2(ca) and (cb):
(ca) The bridge is to comply with AS5100/Bridge Design Code and have the load bearing capacity required by SM1600 referred to in cl 6.2 of Part 2 of the Code.
(cb) The bridge design is to be sufficient to accommodate access ramps to and from the servient tenement themselves having the load bearing capacity required by SM1600.
257 However, the easement should not be imposed until the compensation payable pursuant to s 88K(4) has been assessed. In those circumstances the matter should be referred to a judge or associate judge of the Equity Division to be dealt with in accordance with these reasons and in particular:
(a) To assess compensation for the loss and value of the Moorebank land by the grant of the easement sought on the basis we have indicated, taking into account the conclusions reached in par [202] of this judgment. Such compensation should be not less than $26,500.
(b) To assess compensation for the matters referred to in Order 3 of the orders made by the primary judge, taking into account the conclusions reached in par [253] of this judgment.
(c) Once compensation has been assessed, to impose an easement in favour of Tanlane in the terms outlined and to provide pursuant to s 88K(4) for compensation awarded under subpars (a) and (b) above.
258 It will be a matter for the judge or associate judge conducting the assessment to determine what additional evidence he or she will permit to be led in carrying out the assessment referred to in subpars (a) and (b) of par [257] above.
The Court of Appeal decision effectively ruled out the Moorebank-preferred Marshall option for access, once Tanlane has its easement, so Moorebank proceeded to obtain "engineering advice as to how best to effectuate the ramps proposal" (submissions in reply to Council, par 3).
Moorebank's post-Court of Appeal engineering advice now indicates that the original ramps option, described in the hearing before me as a proposal for "bolt-on ramps", will also not work, because it does not accommodate Tanlane's May 2007 amendments to its bridge ([60] above), and raises traffic safety concerns.
Moorebank has, therefore, developed what it asserts to be a workable third option, which is essentially a variant of the original ramps proposal, and will not require the building of Tanlane's approved bridge. Moorebank's access ramps will be connected to a ramp abutment, rather than "bolted on" to the bridge, and the bridge itself will be connected to a bridge abutment, independent of the ramps.
Obviously that variant of the ramps option was not put before Young J, or the Court of Appeal, but it now finds expression in the draft further amended summons. It is described in Kell's affidavit of 21 February 2013, and illustrated in Drawings "SK101" etc, which he annexed to it.
The proposed ramps will require both approval and the easement.
This option also has advantages for Moorebank. Its development timetable will not be dependent on Tanlane's construction of its own infrastructure. At the same time it will not interfere with Tanlane's construction of the bridge (Kell, Exhibit M5, pars 40-5).
Moorebank emphasises that this is not an "entirely new" proposal, simply an improvement upon the original ramps proposal, having no substantial impact on the details of the easement sought.
However, Tanlane claims to be concerned that the third option will necessitate a redesign of its bridge. It argues that if the summons is further amended to bring the third option before the court for approval, Tanlane will need more time to prepare than will be afforded it if the hearing is expedited.
Moorebank responds that the experts for all parties are very familiar with all the issues involved.
Expert Evidence
Moorebank will rely at the substantive hearing on town planning evidence (Kennan), civil engineering evidence (Kell), traffic engineering evidence (Richard Thomas), and valuation evidence (Peter Dempsey). Kell's and Thomas's reports were filed on 8 March 2013 (Exhibits M5 & M6 respectively); Kennan has sworn several affidavits; and Dempsey's valuation evidence will be quickly finalised once a decision is made on amendment of the summons, so he can value the actual easement sought.
Kennan gave oral evidence. He has been involved with Moorebank's proposal since 1994, and has been involved in the development of the various access proposals, in dealings with both respondents, and in the finalisation of (a) the Part 3A project application lodged in May 2006, (b) the environmental assessment report in July 2011, and (c) the Part 3A proposal now on exhibition.
In his affidavit sworn on 16 October 2012, when both the Marshall and the original ramps proposals were under very active consideration, and the third option had not been developed, Kennan set out (in pars 85 to 94) his expert opinion on "reasonable necessity" and "public interest", in support of Moorebank's proposal as it then stood (the amended summons having not then been filed). As he opined (in par 85), the preferred mode of access then had to await the Court of Appeal's decision, and, now that it has been given, the third option has been developed, and has become Moorebank's preferred option, on the basis that the proposed Tanlane easement precludes the Marshall/road proposal, and Moorebank's engineering and traffic safety advice have vetoed the bolt-on ramps proposal.
In the hearing of these applications, Moorebank relied on Kennan's 25 February 2013 affidavit, which dealt largely with the development of the third option, and the finalisation of the Moorebank proposal for its public exhibition.
Kennan opined (25 Feb, par 69) that the determination of these proceedings is an essential pre-condition of the Part 3A application, and (par 65) that "there is a real possibility" that the PAC will determine the application by 30 June. He urged expedition of the proceedings, and (par 72) estimated that, once approved, the plant could be constructed and made operational within a year. If not expedited, the s 88K matter, and any fresh Part 4 application, may well take longer than that.
Kennan's affidavit of 26 February makes clear that the arguments he made in the relevant pars (85-94) of his 16 October 2012 affidavit "apply equally" to the easement now sought, by way of the further amended summons, to accommodate the revised ramps proposal.
Contrary to Tanlane's allegations of tardiness, Kennan explained Moorebank's detailed negotiations with the Department, the need for its preparation of a wide number of studies, and its need to obtain prior approval to raise some of the Moorebank land above the one-in-one-hundred year flood level, before the project proposal could be finalised.
The DGRs required Moorebank to demonstrate that it had access to Brickmakers Drive, and Kennan says that the two options (the preferred Marshall plan, and the as yet unamended ramps proposal) in the environmental assessment satisfied them. He testified (T1.3.13, p47, LL32-47):
A. ...The Department has said to us on numerous occasions that they're not concerned necessarily with whether there's an easement or not, they're concerned whether there's a development application or a part 3A application that can be assessed and, as I understand it, the fact that it's now on exhibition the Department has determined that we have satisfied the DTR's (sic) for the purposes of access and that's why it's on public exhibition.
Q. Because you show a Marshall plan access which you acknowledge cannot be constructed?
A. Yes and we've also put in a clause in there that says we're looking at a separate option which will end up being the amendment which will be the ramps proposal and that's in the environmental assessment.
Q. Yes, have you had discussions with members of the Department about what is required in order to amend the proposal?
A. Yes.
Consideration
In the factual circumstances proven before me, continuing with the proceedings as currently formulated would have no utility.
There is a clear necessity, in view of the Court of Appeal's judgment, and the necessary review it precipitated, for Moorebank to amend its summons as it proposes, and it is in the public interest that leave be granted.
There are genuine issues to be tried in these proceedings - necessity, effective use, public interest, reasonableness of attempts, alternative access, etc (see [22] above) - and it is in all parties' interests that they should be resolved soon.
The court cannot accept the respondents' rather unworthy demand that the price Moorebank must pay for leave to amend is its abandonment of, or the court's rejection of, its claim for expedition of the hearing.
Moorebank argues that expedition ought to be granted because it may otherwise find itself at the 30 June 2013 deadline unable to articulate, in time, the access component of its Part 3A project, as required by the DGRs, and needing to proceed, instead, under Part 4 of the EPA Act, with consequent delay and cost, and the need to finalise access before lodgement of its application.
Moorebank also argues that it is necessary to resolve these proceedings before it finalises its compensation claim in Tanlane's easement proceedings in the Supreme Court, as Moorebank's claim for loss in value of its land will be much greater if its preferred development is stymied by inability to get trucks to the main road. The Court of Appeal was careful not to confine the discretion residing in the judge or associate judge assigned the responsibility to determine the outstanding question of compensation.
Moorebank's evidence on its s 88K application, except for its valuer's report, has already been filed, in the form of affidavits and/or expert reports, and, now that the summons is to be amended to particularise only one form of easement, the outstanding valuation report can be finalised within days.
Mr Hale and Ms Morton want better particulars, but Moorebank contends (T8.3.13, pp82-3) that its arguments on the issues involved are clearly defined in its expert material, that it has no need to amend the particulars it provided in pars 85-94 of Kennan's evidence, and that there is also no need for it to put on Points of Claim.
On the question of expedition, Council argues (pars 1a, 17, and 38) that the appropriate approach for the court is to require Points of Claim, and to conduct "close case management", with a view to "running the proceedings quickly". It submits that "granting expedition is not appropriate", for the following reasons (par 16):
a. the manner in which the proceedings have been conducted by Moorebank;
b. the public importance of the issues involved and the complexity of the proceedings; and
c. Moorebank's failure to establish that it will suffer real prejudice unless the proceedings are determined on an expedited basis.
Despite:
(1) having had a long standing conviction (according to Tanlane's submission 19e, and see also T8.3.13, p64, L24) that Moorebank's proposal is incompatible with residential and recreational use of the area,
(2) having determined its position on the easement question by July 2011,
(3) Pembroke J's directive of 12 December 2012 to prepare for a hearing by February, and
(4) having already made an extensive detailed negative submission to the Department (on 7 February 2013 - Exhibit M7),
Council now says (T8.3.13, p66, LL18-20) that it requires 8-10 weeks to prepare for a hearing.
The court agrees with Mr Robertson (T8.3.13, pp86-89) that Council's submission of 7 February (Exhibit M7) basically addressed all the issues which its oral and written submissions on these applications say it now needs to explore. He said (Tp89, LL14-15, and 25-29):
... council can't convert these proceedings into a de facto appeal against a prospective part 3A approval.
...
... it's quite clear from that letter that council has had a very close and detailed look at this development proposal, including access. I don't think it lies in council's mouth to complain now about us about us seeking expedition in order to crystallise before the environmental determination is made on the part 3A.
Council also submitted (pars 30 and 41) that it would need to have Points of Claim address, and would then itself need to put on evidence regarding, the status of Lot 310 as "community land", upon which Council is inhibited (by Chapter 6 of the LG Act) as to the granting of interests, including by way of easement.
As Moorebank submits (submissions in reply, par 11), while Council may lack power to grant the easement sought, the court has discretionary power under s 88K to impose it: see Saad v City of Canterbury [2012] NSWSC 389, per Nicholas J at [7], and the cases His Honour there cited.
On Tanlane's behalf, Mr Hale submits (par 5) that its Supreme Court matter should be finalised before this matter, because:
(a) Tanlane's proceedings have been going on since 2008, and that delay (and Moorebank's class 4 challenge) have delayed its progress with the bridge.
(b) Moorebank's proceedings in some way (not argued in any specific detail) "will be in breach of its obligations under the Tanlane easement".
(c) The outcome of these proceedings "is irrelevant to the question of compensation" still before the Supreme Court.
Specifically in opposition to expedition, Mr Hale submits (par 6):
(a) The proceedings are "complex and imprecise in their formulation".
(b) It is not yet possible to determine either the nature of the evidence required or the length of the hearing.
(c) Moorebank should be required to identify the issues for hearing "by Points of Claim of other means".
(d) "Having regard to the delays to the litigation in the past, the Respondents should not be forced on to a premature hearing in a manner which is prejudicial to the proper preparation of the matter".
(e) The proceedings "are not deserving of expedition". The only prejudice Moorebank identifies is delay in Part 4 if it misses the Part 3A deadline - "... of little significance when weighed against potential prejudice to the respondents in having to prepare for the proceedings in haste and at the same time as preparing for the compensation proceedings in the Supreme Court".
In oral argument, Mr Hale alleged (T8.3.13, p68, LL15-19) that Tanlane is here "confronted with yet another endeavour ... to delay the Supreme Court proceedings"; (p69, LL40-42) "that the assessment of compensation bears no relation to the subject matter in these proceedings"; and (Tp70, LL29-30) that he was "quite happy to undertake to have expedited the determination of the compensation".
He also argued (p71) that the new ramps are "a complete change ... which nobody had previously considered ...", and (p74) that "time is required for the parties to really understand what is involved". Comparing drawings SK 101 and 102 with the approved plans for the Tanlane bridge, he submitted (Tp75, L38-p76, L23):
... what is proposed by this easement, if granted, which is to change the bridge in respect of which we obtained development consent. ... The approach embankment is widened to accommodate certain things, and the reinforced earth retaining wall is extended to support the widened approach embankment.
...
the only change in the design of the approved bridge required to accommodate the ramps would be to reinforce the bridge structure to accommodate the up ramp. This will require the bridge structure to be strengthened to support the edge, loading from the ramps et cetera.
...
You can see that what is proposed here are wholesale changes to the development consent that my client has obtained and secondly, when the easement ultimately issues that easement is clearly to commit the construction of the approved bridge.
...
because it so directly affects us we should have the opportunity at least to fully appreciate what those impacts are upon our design and our bridge and we should not be forced prematurely to put on that evidence. ..
He also submitted:
Tp80, L35:
...my client's development consent is going to be unilaterally changed ...
Tp82, LL3-6:
... one of the difficulties which would weigh on the public interest is the fact that my client would not be entitled to compensation even though my client's likely to be very much affected and that is a matter to which considerable weight would be given.
Tp89, LL38-47:
... this has not been a case of the more the Moorebank asking my client for a commitment it will construct the bridge. Rather, it has been now something like six years of litigation, millions of dollars expended by Moorebank trying to frustrate at every turn my client trying to construct this bridge. We had the Land and Environment Court proceedings. Then we have had the had easement proceedings in two stages, which were opposed on the basis that Moorebank did not want us to construct the bridge and that is what has been happening now for six years and now we have Moorebank trying to stop the final determination of the compensation, further frustrating us in our endeavour to get the appropriate consents.
I do not accept any of the submissions of Council and Tanlane against expedition, many of which are contrary to the evidence, and I propose to grant it.
There is no reason at all for the court, knowing the situation and the relevant history, to guarantee, by refusing expedition, that Moorebank be denied virtually any chance at all to meet the 30 June deadline imposed on it.
However, the big dilemma for the List Judge is to find, in the hectic court programme, sufficient early options for a hearing, which is said to require four to eight days, preferably consecutive, for it to be concluded in time for delivery of final judgment prior to 30 June.
Conclusion
Clearly it should now be possible to conduct this matter in a streamlined way, focussing on technical and legal issues genuinely in dispute, and putting aside tactical commercial considerations based on the "guillotine".
With that in view, I propose to now make orders 1 and 2 in the revised SMO filed in court on 8 March, and to stand the matter over to 4.15pm Monday 25 March 2013 for the appointment of hearing dates and the making of directions. I direct the applicant to file and serve its valuation evidence by that time and date.
The directions in pars 5 to 21 of the SMO presently appear suitable, and I would propose to make the dates in pars 5 and 6, 12 and 26 April 2013, respectively. That would facilitate commencement of the hearing in the week commencing 29 April, if space can be found in the court diary.
I direct the parties to confer and seek to agree on these arrangements before the directions hearing, and preferably agree upon a witness timetable for a hearing of preferably less than four days.
Orders
The formal orders of the court will be:
(1) That the applicant have leave to file and serve, by close of business 22 March 2013, its Further Amended Summons, in the form circulated on 20 February 2013.
(2) That the hearing of these proceedings be expedited.
(3) That the applicant file and serve its valuation evidence by 4pm 25 March 2013.
(4) The parties are directed to confer forthwith, and seek to reach agreement on a list of issues in dispute, together with schedules for preparation and hearing of the applicant's further amended summons over an agreed number of days.
(5) The matter will be listed before the List Judge at 4.15pm Monday 25 March 2013 for the appointment of hearing dates and the making of further directions.
(6) The exhibits are returned.
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Decision last updated: 21 March 2013
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