Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2)
[2013] NSWLEC 93
•27 June 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 Hearing dates: 20-22, 27-31 May, 3-5, 7, 11 June 2013, (further written submissions) 12, 14 and 18 June 2013, and (further hearings) 19, 24, 25 June 2013 Decision date: 27 June 2013 Jurisdiction: Class 3 Before: Biscoe J Decision: Easements to be granted subject to owner's consent to lodgement of an application for approval or consent to construct and use ramps along the lines of attached draft orders. Matter to be re-listed tomorrow to make final orders.
Catchwords: REAL PROPERTY - easements - application under s 88K Conveyancing Act 1919 for easements of carriageway and for construction, maintenance and use subject to a term that owner of servient tenement give landowner's consent to lodging an application or approval under Part 3A or consent under Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) to construct and use ramps to connect applicant's land to a future road bridge or abutment so as to enable applicant to obtain vehicular access for development of its land - preconditions to imposition - whether easements reasonably necessary for effective use or development of applicant's land - applicant's land landlocked for future development and future development sterilised unless easements granted - whether term of easements should be imposed that owner of burdened land give land owner's consent to lodging of application for works on and use of burdened land under Part 3A or Part 4 or both of the EPA Act - relationship between s 88K and planning laws. Legislation Cited: Contaminated Land Management Act 1997
Conveyancing Act 1919 s 88K
Environmental Planning and Assessment Act 1979 ss 36, 57(5), Part 3A, Part 4, s 125
Land and Environment Court Act 1979 s 40
Local Government Act 1993 ss 30
Environmental Planning and Assessment Regulation 2000 cll 8F, 49(1)(b)
Liverpool Development Control Plan 2008
Liverpool Local Environmental Plan 1997
Liverpool Local Environmental Plan 2008 Schedule 1 cll 1, 11,
State Environmental Planning Policy (State and Regional Development) 2011 cl 8(1)(b), Schedule 1 cl 23(3)Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Annwrack Pty Ltd v Williams, NSWSC, 8 February 1989, unreported
Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202
Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152
Commissioner of Police v Eaton [2013] HCA 2, (2013) 87 ALJR 267
Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295, (2009) 14 BPR 27,257
Khattar v Wiese [2005] NSWSC 1014, (2005) 12 BPR 23,235
Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, (2010) 171 LGERA 286
Samy 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
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545Texts Cited: AS 5100 Bridge Design Code Part 2 cl 6.2 Category: Principal judgment Parties: Moorebank Recyclers Pty Ltd (Applicant)
Liverpool City Council (First Respondent)
Tanlane Pty Ltd (Second Respondent)Representation: COUNSEL:
T Robertson SC and J Lazarus (Applicant)
J Hutton (First Respondent)
T Hale SC and Z Steggall (Second Respondent)
SOLICITORS:
Mark McDonald & Associates Lawyers Pty Ltd (Applicant)
Sparke Helmore (First Respondent)
Minter Ellison (Second Respondent)
File Number(s): 30141/13
Judgment
CONTENTS
Paragraphs
INTRODUCTION...............................................................................
THE LANDS.....................................................................................
BACKGROUND...............................................................................
MOOREBANK'S PART 3A APPLICATION..................................
EXPERT EVIDENCE......................................................................
SECTION 88K CONVEYANCING ACT 1919...............................
CONSIDERATION...........................................................................
TIMING OF REGISTRATION OF EASEMENTS...........................
ORDERS...........................................................................................
1-18
19-21
22-59
60-90
91-101
102-115
116-169
170-175
176-179
INTRODUCTION
This is an application under s 88K of the Conveyancing Act 1919 by Moorebank Pty Ltd (Moorebank) for the grant of easements of carriageway and for construction, maintenance and repair benefiting its land located at Moorebank in the Liverpool local government area, subject to a term that the owner of the land to be burdened give written owner's consent to the making of any application for any consent or approval required to construct and use a road and bridge abutment with ramps as contemplated by the easements. This ancillary term is the principal matter in dispute.
The first respondent, Liverpool City Council, owns the land to be burdened by the proposed easements. The second respondent, Tanlane Pty Ltd (Tanlane), owns land used for industrial purposes adjoining the Moorebank land.
Tanlane has development consent from Council to construct a road bridge passing mostly about 6 metres above the Council land and the adjoining handle (known as the panhandle) of Moorebank's battleaxe land. When constructed, the road bridge will run between the Tanlane land and Brickmakers Drive, a public road owned by Council. Brickmakers Drive runs north-south and connects on the north to Newbridge Road, the major east-west trunk road in the locality. The road bridge will comprise two sections, in the west a solid embankment adjoining Brickmakers Drive and in the east a structure suspended on pylons to join the Tanlane land.
Consistently with Council's vision for the last decade and as required by Roads and Maritime Services (RMS), the only road access for future developments on the lands in the precinct east of Brickmakers Drive, including the Moorebank and Tanlane lands, is via the future road bridge in this location.
Moorebank has a pending major project application to develop its vacant and unused land for a materials recycling facility (MRF) under the transitional provisions of Part 3A (since repealed) of the Environmental Planning and Assessment Act 1979 (EPA Act). Under Part 3A the approval authority is the Planning Assessment Commission (PAC) as delegate of the Minister. Completion of assessment of the Part 3A application is dependent on Moorebank satisfying one of the Director-General's requirements (DGRs) under Part 3A that, as a "key issue", Moorebank must "demonstrate that suitable arrangements have been made to secure access to the site, including written evidence of the relevant landowner's consent for the proposed site access work". These proceedings are aimed at satisfying that DGR thereby opening the way to PAC to determine Moorebank's Part 3A MFR application. The only means of access to the Moorebank land is by means of ramps connecting the panhandle to the road bridge, either to the embankment (Ramps B), which is Moorebank's preference, or to the suspended structure (Ramps A). Without such ramps the Moorebank land will be landlocked and all potential developments thereon sterilised.
Moorebank's Further Amended Summons claims the following relief:
1. An order that an easement be imposed under section 88K of the Conveyancing Act 1919 (NSW) burdening the first respondent's land, being Lots 308 309 and 310 in DP 1118048 and benefiting the applicant's land, being Lot 6 in DP 1065574 in the terms set out in Annexure A, or otherwise on such terms as the Court thinks fit. [Annexure A indicates that this easement is for the construction, maintenance and repair of a road and bridge abutment with ramps].
1A An order that a right of carriageway be imposed under section 88K of the Conveyancing Act 1919 (NSW) burdening the first respondent's land being Lots 309 and 310 in DP 1118048 and benefiting the applicant's land, being Lot 6 in DP 1065574 in the terms set out in the Annexure A, or otherwise on such terms as the Court thinks fit.
2. An order that the first respondent do all things and execute all documents which it is proper and necessary for it to do and execute in order to enable the registration of the easement and right of carriageway referred to in orders 1 and 1A in accordance with the Real Property Act 1900 (NSW).
3. An order that to the extent necessary as part of the granting of the easement and right of carriageway referred to in orders 1 and 1A, the first respondent on the written request of the applicant, shall forthwith give its written owner's consent for any application for any consent or approval required to construct and use the road and bridge abutment with ramps in the manner contemplated by the said easement and right of carriageway.
...
8. Such further or other orders as the Court deems fit.
Prayer 3 concerning owner's consent is the dominant issue in the case. It requires clarification in four respects:
(a) the reference to "consent or approval" means "consent" under Part 4 of the EPA Act where Council is the consent authority (Part 4 owner's consent term), or "approval" under Part 3A where the Planning Assessment Commission (PAC) is the approval authority as delegate of the Minister (Part 3A owner's consent term). Written owner's consent for lodgement of a development application under Part 4 is required by s 78A(1) and cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000, and owner's consent for lodgement of a project application under Part 3A is required by cl 8F(1). Council is not just the owner of the proposed servient tenement: it also happens to be the consent authority for Part 4 development applications in the area unless Part 4 is ousted by s 75R(1), which Moorebank contends it is in this case.
(b) Although prayer 3 is couched as an "order", any requirement that Council give "owner's consent" should be framed as a term of the easements: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 522 (Hodgson CJ in Eq); Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [99].
(c) All that is sought in prayer 3 is owner's consent for the making of an application for a Part 4 consent or Part 3A approval. An order for an easement with that term does no more than overcome a legal obstacle to the making of an application. The order and the easement does not require Council to consent to the development itself. Such a term of an easement leaves the servient owner at liberty to object to the application before the approval authority and to exercise such rights as are given to it by the planning laws: 117 York Street at 523.
(d) Moorebank's essential object, opposed by the respondents, is to obtain an unqualified Part 3A owner's consent term for the ramps because it has a pending Part 3A application for an MRF. Part 4 owner's consent term is very much its fallback position if for some reason a Part 3A approval is not forthcoming.
Council, supported by Tanlane, consents to the proposed easements provided that a Part 4 owner's consent term is imposed and no unqualified Part 3A owner's consent term. Ultimately, Council indicated that it would also consent to a qualified Part 3A owner's consent term to take effect only in the event a Part 4 development consent for construction and use of the ramps is not forthcoming within 12 weeks after a Part 4 development application is lodged. That is the period Council requires to process a development application for the ramps. Council concedes that if there is no development consent by that time, then it would be reasonably necessary for Moorebank to have a Part 3A owner's consent for the effective development of its land. Compensation for the proposed easements in the sum of $25,000 under s 88K(4) is agreed between Moorebank and Council.
The grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. Such ancillary rights include, where appropriate, a right to written consent by the owner of the burdened land to the lodgement of any application for construction and use of works in the manner contemplated by the easement. Such an ancillary right is implied in a statutory grant of an easement. In a s 88K application, it is appropriate, to avoid any doubt or dispute, to grant it expressly as a term of the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 521 per Hodgson CJ in Eq; followed Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 171, 171 LGERA 286 at [196] per Preston CJ of LEC. In the usual case the only statutory approval course open to an applicant for development of the land burdened by an easement is under Part 4 of the EPA Act. In the present case the Part 3A approval course is open to Moorebank related to its pending Part 3A MRF application. Indeed, as analysed later, a Part 4 consent for the ramps would be unlawful under s 75R(1) of the EPA Act so long as a Part 3A application extending to access over the Council land is on foot. It is implicit, in my view, in the grant of the easements Moorebank seeks that Council would provide its written owner's consent for the lodgement by Moorebank of a Part 3A application or a Part 4 application relating to construction of and use of ramps along the lines set out in prayer 3 of the summons. Hence, what Council, supported by Tanlane, is proposing is an express term of the easements that cuts down on what would otherwise be an implied term.
Thus, the choices confronting the Court include:
(a) as claimed by Moorebank in prayer 3 of the summons, an unqualified Part 3A owner's consent term and an unqualified Part 4 owner's consent term; or
(b) as contended for by Council, supported by Tanlane, an unqualified Part 4 owner's consent term coupled with a qualified Part 3A owner's consent term that would only operate if a Part 4 owner's consent was not forthcoming 12 weeks after a Part 4 development application is lodged.
The case is unprecedented in that the dominant issue does not concern the easements but the owner's consent term. It is a power struggle over whether Council or PAC should be the approval authority for the ramps. The tail is wagging the dog. However, it is said that there are legal and practical reasons for the competing positions, which I address later.
Underlying Council's position are two matters. First, by the imposition of a Part 4 owner's consent term, Council seeks to compel Moorebank to make a Part 4 application to Council for consent for construction and use of the ramps so that Council, as the local planning authority, can maintain design and construction control over the road bridge, ramps and traffic control works at the intersection of Lot 309 and Brickmakers Drive. The road bridge will provide the only access to Brickmakers Drive not only for the Moorebank land (via ramps) but to the Tanlane land and other land east of Brickmakers Drive. The road bridge is a key component of the precinct, which Council has for a number of years been seeking to develop in an integrated manner. Secondly, Moorebank seeks the easements in order to obtain vehicular access to and from Brickmakers Drive for a proposed MRF on the Moorebank land, but since 2011 Council has been opposed to an MRF on the Moorebank land and to Moorebank having access over the Council land for the purpose of an MRF on the ground that an MRF is not suitable for the residential and recreational character of the area.
However, Council accepts, and during the hearing made an open offer to Moorebank along the lines, that the Moorebank land should have the proposed easements subject to a Part 4 owner's consent term on the reasoning that the easements are required anyway to permit vehicular access for any other development permissible under the zoning of the Moorebank land, and that the ramps should be capable of carrying heavy trucks - even though that would include trucks required to service Moorebank's proposed MRF. In other words, Council consents to the easements provided they are not linked to a Part 3A MRF application by a Part 3A owner's consent term.
Moorebank's reasons for its position include the following. First, it submits that a Part 4 owner's consent term would be futile because a Part 4 consent for construction and use of the ramps would be unlawful under s 87R(1) of the EPA Act whilst its Part 3A MRF application is pending. Secondly, it submits that the Part 4 route for consent for construction and use of ramps would create the potential for serious conflict between two separate approval regimes. Thirdly, it submits that there is reason to believe Council would not apply an unbiased mind to a ramps application. Fourthly, it submits that to embark on a Part 4 consent route at this stage would cause such delay as to be a recipe for disaster for its Part 3A MRF application because the Department of Planning has stated its intention that all Part 3A projects will be determined by 30 June 2013 and, whilst some extension of that time should not be a difficulty, the time required for a new Part 4 process would likely be unacceptable to the Department leading to the dismissal of its Part 3A application.
Although the Supreme Court joined Tanlane to the present proceedings in order that Tanlane could protect its interests, Tanlane in evidence and submissions has entered quite fully into the entire fray. Nevertheless Tanlane says that its only concerns are that if easements are granted (a) Tanlane's interests are taken into account, (b) Tanlane is in no way consenting to an MRF on Moorebank's land, and (c) its forthcoming s 88K easement over Moorebank's panhandle is registered before registration of any easements granted to Moorebank. Tanlane says that three terms of the easements and one undertaking by Moorebank proposed by the respondents in draft short minutes reflect what Tanlane seeks in that regard. Those proposed terms are broadly to the effect that the owner of the Moorebank land not hinder, interfere or prejudice rights under the Tanlane easement for construction or use of the road bridge the subject of the construction development consent. The proposed undertaking by Moorebank - which, however, Moorebank declines to give - is to the effect that Moorebank's rights in relation to any easements that I grant, particularly the right of registration of the easements, be postponed until after registration of the Tanlane easement.
In September 2012 Moorebank commenced these proceedings against Council in the Supreme Court. In February 2013 the Supreme Court (Pembroke J), on Tanlane's motion, joined Tanlane as a respondent and transferred the proceedings to the Land and Environment Court. In March 2013, on Moorebank's motion, this Court expedited the hearing with a view to determining the proceedings before 30 June 2013. The reason for this urgency is that the Department of Planning and Infrastructure (the Department) stated in an August 2012 circular titled "Accelerating completion of the assessment of transitional Part 3A projects" that: "It is the intention that all transitional Part 3A projects will be determined by 30 June 2013".
By what was thought at the time to be the conclusion of the hearing on 11 June 2013, less than three weeks were left to deliver judgment before the 30 June 2013 date specified by the Department. However, further submissions and documents for tender were received thereafter leading to further short hearings on 19, 24 and 25 June. Although this judgment is delivered before 30 June 2013, it is inevitable that determination by PAC of the Part 3A application will occur some time later. Moorebank proceeds on the justifiable assumption that the 30 June 2013 date is not an immutable deadline and will be extended for a reasonable time if it obtains the relief it seeks before that date.
I have had the advantage of a view of the parties' lands and the surrounding area. Orientation and an understanding of Ramps B are assisted by the following documents annexed to this judgment and marked as follows:
"1"
An extract from the zoning map in the Liverpool Local Environmental Plan 2008 (LEP), on which has been superimposed title details of the parties' lands.
"2"
An aerial photograph on which has been superimposed a plan of the proposed MRF and descriptions of (inter alia) Lot 309 and the panhandle.
"3"
A plan of Ramps B
THE LANDS
The Moorebank land to be benefited by the proposed easements is Lot 6 in DP 1065574. It is former landfill, vacant and unused. It has an area of about 20.5 hectares. It includes a dirt track panhandle about 10 metres wide and 840 metres long running north to Newbridge Road, a major arterial road. The panhandle is the only road access to the main body of the Moorebank land. The Moorebank land is bounded on the east by the Georges River, on the west by Council's land Lots 309 and 310 in DP 1118048, on the north (and east of the panhandle) by the Tanlane land, and on the south by a golf course. There is a drainage channel adjacent to and immediately east of the panhandle.
The Council land to be burdened by the proposed easement of carriageway comprises Lot 309 and Lot 310 in DP 1118048. Lot 309 is an 18 metre wide east-west strip between Moorebank's panhandle and Brickmakers Drive, over which Tanlane has development consent to construct the road bridge. That land is vacant and unused. Lot 310 lies north and south of Lot 309. Lot 310 is environmentally sensitive land and classified as community land under the Local Government Act 1993. The Council land to be burdened by the proposed easement for construction, maintenance and repair comprises Lots 309 and 310 as well as Lot 308, being Brickmakers Drive. Brickmakers Drive was dedicated to Council as a public road in August 2012 by Boral whose land on the western side of Brickmakers Drive is being developed as a large residential estate known as Georges Fair.
The Tanlane land is Lot 7 in DP 1065574. It has an area of about 22.31 hectares. It is bounded on the south by the main body of the Moorebank land, on the west by the Moorebank panhandle, on the north partly by Newbridge Road and partly by land owned by Flower Power, and on the east by the Georges River. The Tanlane land is about six metres higher than the panhandle, the drainage channel and the Council land Lots 309 and 310. The Tanlane land is used for an MRF and for sand extraction by the Benedict Group to which Tanlane is related. Benedict is a competitor of Moorebank in the MRF business and would be its major local competitor upon operation of an MRF on the Moorebank land unless the MRF on the Tanlane land ceases operation.
BACKGROUND
In 1995, in response to a rezoning request from Moorebank's planner Mr Kennan, a report for Council said that a concrete recycling facility would seem to be a reasonable short-term use of the Moorebank land, and, so as to maximise future planning options, a sunset provision could be incorporated into the LEP and development consent requiring the recycling facility use to cease in, say, 20 years when planning for the whole area will be under review. Later that year Council wrote to Mr Kennan stating that it had resolved to prepare a draft LEP to allow a concrete recycling facility on the Moorebank land on the basis that it may be an appropriate short-term use of the site.
In 1996 Mr Kennan wrote to a Council committee that Moorebank seeks to rezone the land for a definite period of time to allow a concrete recycling facility and was willing to have Council place a sunset clause in the LEP.
In 1997 the Liverpool Local Environmental Plan 1997 (LEP 1997) was gazetted. It zoned the Moorebank land 1(a) Rural.
In 2000 the "Boral Moorebank Precinct" was formed including the lands owned by Moorebank, Tanlane, Boral, Flower Power and the Brighton Golf Club.
In 2001, after a site audit under the Contaminated Land Management Act 1997, the Moorebank land was certified as being suitable for commercial/industrial use including a concrete recycling facility, on conditions.
In 2002 Council adopted a non-statutory Moorebank Structure Plan. The Structure Plan identifies the indicative land use for the Moorebank land as "Waste and Recycling Uses/ Open Space". It provides for the Moorebank, Tanlane, Flower Power and Boral lands east of Brickmakers Drive to be accessed not by Newbridge Road but by a link road to be dedicated to Council by Boral as part of the redevelopment of the former Boral brick pit. That link road is now Lot 309.
Later in 2002 Moorebank and Tanlane entered into a deed under which Moorebank agreed to grant Tanlane an easement over the panhandle for construction and use of a road bridge.
In 2004 Mr Kennan on behalf of Moorebank made a rezoning submission to Council. He wrote that, assuming rezoning, Moorebank considered that the establishment of an MRF will occur well in advance of any redevelopment of the Boral site for residential purposes, and that Moorebank would agree to a sunset clause in the development consent requiring a further development consent after an appropriate number of years, which would provide for a limited period following completion of redevelopment of the Boral land during which the MRF could operate.
In 2004 the Roads and Traffic Authority (RTA) wrote to Council regarding an amendment to the LEP 1997 referring to the need to remove existing access points along Newbridge Road in the event of redevelopment of the Moorebank Precinct. The RTA noted that the intention of the proposed service road shown in the draft amendment was to provide vehicular access to the Moorebank, Tanlane and Flower Power lands once they are developed and existing access on Newbridge Road is removed.
In 2004 an amendment to LEP 1997 was gazetted with new zoning designations. An 18 metre wide corridor was rezoned 2(a) Residential: this is Lot 309. Land adjoining both sides of Lot 309 was rezoned 7(c) Environment Protection - Conservation: this is Lot 310.
Later in 2004 Benedict (to whom Tanlane is related) wrote to Council regarding the rezoning application for the Moorebank land stating that given the recent rezoning of the Boral land to residential and Benedict's stated goals of a residential and recreational rezoning for the Tanlane land, they questioned the appropriateness of an MRF on the Moorebank land in an environmentally sensitive area. Shortly afterwards, Boral objected to the rezoning of the Moorebank land as an inappropriate and incompatible use of the site and referred to Moorebank's proposed sunset clause on operations as a condition of a future development consent.
In December 2004 a Council report said the draft LEP is consistent with Council's Structure Plan and recommended that Council proceed with an amendment to permit, with development consent, an MRF on the Moorebank land.
In September 2005, Amendment No 76 to LEP 1997 was gazetted. It did two things. First, it rezoned the Moorebank land from 1(a) Rural to partly 1(a) Rural, partly 7(a) Environmental Protection - Waterway and partly 7(c) Environment Protection - Conservation. Secondly, it permitted, with the consent of Council, an MRF on part of the Moorebank land.
In December 2005 a developer deed was entered into between Council and Boral for development of the Boral land for residential purposes, under which Boral agreed to dedicate Lots 308, 309 and 310.
In December 2005 the Minister for Planning by his delegate declared the MRF development as a project to which Part 3A of the EPA Act applied. In 2006 Moorebank lodged a Part 3A application for approval of an MRF on its land. These and subsequent events relating to the Part 3A application are dealt with separately in the next section of this judgment.
In 2006 Moorebank and Tanlane explored design options for a road bridge and ramps.
On 1 May 2006 Moorebank gave owner's consent to the lodgement by Tanlane of a development application for construction of a road bridge over that part of the panhandle within the area of Tanlane's proposed easement for the road bridge.
In May 2006 Benedict, to which Tanlane is related, lodged a development application with Council for consent to construct a road bridge on Lot 309 and part of the panhandle.
In June 2006 Council granted development consent to Moorebank for bulk earthworks, to ensure that part of the Moorebank land on which the MRF was proposed to be built would not be affected by one in 100 year flood events.
In July 2006 Council adopted Development Control Plan No 50, which indicates that the preferred method of access for properties east of the panhandle is from the link road connecting to Brickmakers Drive.
In 2007 Council granted Tanlane development consent for the construction of a road bridge over Lot 309 between the Tanlane land and Brickmakers Drive. The consent did not extend to the use of the road bridge, which requires a further development consent. Conditions of the consent require the road bridge to be designed and constructed such that it is able to accommodate access ramps as designed in concept for Moorebank (Ramps A) and that the design be certified that it complies with AS 5100 - Bridge Design Code. This was to ensure that the road bridge would have the structural adequacy to carry the large trucks that would service the proposed MRF on Moorebank's land. In 2007 the consent was modified including widening the bridge to 12 metres.
In 2009 this Court dismissed Moorebank's judicial review challenge to the validity of the consent: Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 (Lloyd J). Moorebank had submitted that Council failed to consider whether the bridge would harm Moorebank's access and whether the bridge's design and structure were insufficient to allow access for the purposes of materials recycling on Moorebank's land. Lloyd J held that this was met by a condition of the development consent which required the bridge to be designed in accordance with the loads prescribed in AS 5100 since this would be sufficient to deal with the trucks and loads required for Moorebank's future MRF use: at [50].
Meanwhile, in January 2008, Council, Tanlane and Boral entered into a deed under which Tanlane was given exclusive rights of occupation of Lot 309 for the construction of the road bridge in accordance with Tanlane's 2007 construction development consent (after construction the road bridge is to be dedicated as a public road). Moorebank submits that this would contractually prevent Council agreeing to give Moorebank an easement over Lot 309 prior to construction of the bridge. This seems to me to have force.
In 2008 the Liverpool Local Environmental Plan 2008 (LEP 2008) was gazetted. It continued to zone the Moorebank Land E2 Environmental Conservation, in which zone there are permitted with consent identification signs, drainage, earthworks, environmental facilities, flood mitigation works, information and education facilities and roads. In addition, cl 11 of Schedule 1 provides that part of the Moorebank land can be used with consent for the purpose of an MRF. It states that cl 11 "is repealed on 1 September 2018". In my opinion, that is the sunset date for development consent to an MRF on the Moorebank land. However, cl 11 does not restrict a consent (by that date) from permitting construction and use of an MRF beyond that date. This is reinforced by contrasting cl 11 with cl 1 of Schedule 1 which provides, in relation to certain land in another zone that its "temporary" use for the purpose of industry is permitted with consent but that such consent may be granted "for a maximum period of 3 years": no such language appears in cl 11.
On the same day as LEP 2008 was gazetted, Council adopted the Liverpool Development Control Plan 2008 (DCP 2008). It provides for residential subdivision for a maximum of 216 dwellings on the Tanlane land. It also provides for flood free access via a road bridge in the vicinity of Lot 309 to Brickmakers Drive prior to any such subdivision. Tanlane intends to develop this residential subdivision, as well as a marina, upon cessation of the existing industrial uses in about late 2014. The timing of that development will have to take account of remediation of the Tanlane land after cessation of its current recycling use. Tanlane has lodged a development application with Council for the marina but not yet for the residential subdivision.
In June 2008 Council and Tanlane entered into a voluntary planning agreement (VPA), under which Tanlane agreed to construct a bridge from the Tanlane land to Brickmakers Drive and to dedicate and transfer the bridge to Council if and when Council granted consent for Tanlane's proposed subdivision of its land to create up to 225 residential lots.
The only vehicular access in the event of future development of the Moorebank, Tanlane or Flower Power lands is to and from Brickmakers Drive via Lot 309, which is about 300 metres south of Newbridge Road. That is because, first, that has been Council's strategy since its 2002 Structure Plan and, secondly, the position of RMS since 2003 has been that they will not allow vehicular access to and from Newbridge Road in the event of future development of the Moorebank, Tanlane and Flower Power lands and that such access should be over Lot 309. Thus, redevelopment of the Moorebank land and the Tanlane land will be sterilised because those lands will then be landlocked unless they can access Brickmakers Drive over, or by connecting to, Lot 309.
In order to construct the road bridge, Tanlane requires an easement over Lot 309 and through the air space above Moorebank's panhandle. Council agreed to give Tanlane an easement over Lot 309. As mentioned earlier, under a 2002 deed Moorebank agreed to give Tanlane an easement over the panhandle. However, five years later Moorebank exercised its right under the deed to terminate the deed if construction of the bridge did not commence within five years.
In 2008 Tanlane brought proceedings in the Supreme Court claiming, first, that Moorebank wrongly terminated the 2002 deed and, alternatively, seeking an easement over the panhandle under s 88K of the Conveyancing Act. Moorebank opposed the grant of the easement because the bridge would obstruct its planned ground access route (the Marshall plan) over Lot 309 to Brickmakers Drive for its proposed MRF and it feared the bridge would be constructed in such a manner that it would be unsuitable for heavy vehicles servicing its proposed MRF. Young JA rejected the former claim but granted Tanlane an easement on terms under s 88K in the course of three judgments delivered between 2008 and 2012: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341; Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90. In order to protect Moorebank's proposed development of an MRF, his Honour granted the easement to Tanlane but made an order that Tanlane undertake to the Court to have the easement extinguished if, despite the best endeavours of both parties, after all appeals to and from the Land and Environment Court are exhausted, Moorebank cannot obtain access for 48 tonne trucks from its land across the proposed easement to Brickmakers Drive, and that, if the easement be extinguished, Moorebank undertake to the Court to return the compensation with interest.
On 21 December 2012 the Court of Appeal upheld the grant of the easement to Tanlane over the panhandle but varied the terms including adding terms that the road bridge and any ramps over Lot 310 to be attached to the road bridge would be constructed to a specified standard, which would permit the road bridge and the ramps to bear the load of large trucks servicing Moorebank's proposed MRF: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, (2012) 16 BPR 31,257 at [256] (the Tanlane Case). The Court of Appeal ruled that the easement should not be imposed until the compensation payable pursuant to s 88K(4) has been assessed and that the compensation is to be not less than $26,500. I note that, following assessment, the easement does not take effect until it is registered: s 88K(7)(a). The Court of Appeal set aside the conditional order imposed by the primary judge referred to above because he thereby effectively failed to determine whether the easement was reasonably necessary in the circumstances which existed at the time of the hearing, and only determined that it would be reasonably necessary if certain events occurred in the future, namely Council's consent to the construction of the ramps: at [97]. It was also held that the conditional order was problematic because terms of an easement must be specified in the order imposing the easement and not in an order or undertaking independent of the easement: at [99] citing 117 York Street at 522.
In the TanlaneCase the Supreme Court considered two alternative accesses proposed between the Tanlane land and Brickmakers Drive. The alternative for which Moorebank contended was called "the Marshall plan" (after its designer) and was over Lot 309. The Marshall plan did not require a road bridge but was for a surface road over Lot 309 from the panhandle to Brickmakers Drive. It could not co-exist with the road bridge over Lot 309 which Tanlane had development consent to construct and for which the Supreme Court granted Tanlane an easement over the panhandle. The alternative was for up and down ramps over Lot 310 to be bolted to either side of the bridge on Lot 309 (Ramps A). The Court of Appeal's decision killed the Marshall plan. The Court of Appeal was at pains to keep Ramps A alive for it imposed terms on the Tanlane easement that not only the bridge but the ramps be constructed to a specified standard, which would enable them to carry the loads of the large trucks that would service Moorebank's proposed MRF. There was no inquiry by the Court of Appeal into whether the proposed MRF was suitable for the area or any other aspect of its merits.
Soon after the Court of Appeal's decision, Moorebank commissioned Cardno to prepare engineering drawings for an alternative ramps proposal. The Cardno drawings provide for up and down ramps with both ramps connecting not to the road bridge itself but to the embankment to the bridge about 30 metres from Brickmakers Drive (Ramps B). It is Ramps B for which Moorebank now primarily contends. Ramps B involves a little more land take in Lots 310 and 308 than Ramps A.
Because Ramps B connects to the embankment rather than to the suspended structure of the bridge, it has advantages for Moorebank compared with Ramps A. First, it has the economic advantage that it is not dependent on Tanlane's construction of the road bridge, except for the embankment which would be constructed by Moorebank if it is not constructed first by Tanlane. Thus, Moorebank can control the timing of its ramps development without being the handmaiden to Tanlane's road bridge development. If Tanlane has not constructed the road bridge by the time Moorebank is ready to construct the ramps, then under Ramps A Moorebank would have to construct two spans of the road bridge at an additional estimated cost of about $2 million, to which the ramps would be bolted. The construction and cost of those spans would otherwise be borne by Tanlane. Tanlane says that that is a purely hypothetical risk because it wishes to get on with constructing the road bridge but cannot do so until the Supreme Court assesses compensation for the Tanlane easement and that it has been frustrated for years in getting on with it by Moorebank's forensic opposition to the Tanlane easement. Nevertheless, future circumstances, including the economic climate, are sufficiently uncertain that I think the risk is real. Secondly, Tanlane is related to the Benedict Group which conducts an MRF on the Tanlane land as well as a sand extraction operation. Benedict is one of Moorebank's competitors and would be its major local competitor upon operation of an MRF on the Moorebank land unless the MRF on the Tanlane land ceases. If it were to be decided that the industrial activities on the Tanlane land would continue, Tanlane could decline to construct the road bridge. The bolts in Ramps A deliver to a competitor potential control over Moorebank's development. Ramps B has a potential economic advantage for Tanlane in that Moorebank would pay for the embankment, which would otherwise be payable by Tanlane if Moorebank were to construct the ramps before Tanlane constructed the road bridge pursuant to Tanlane's construction development consent.
In the Tanlane Case at [202] the Court of Appeal summarised Moorebank's position in relation to the Marshall plan as one involving Moorebank applying for a s88K easement subject to a Part 3A owner's consent term and then obtaining approval for that means of access from PAC under Part 3A, as follows (the references to the "2A land" and the "7(c) land" are to respectively, Lots 309 and 310) (emphasis added):
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 supra at 522.
(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. Mr Kennan's view as to the suitability of the Moorebank site for a recycling facility may well be disputed in such proceedings. 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 (see par 4.2.3(a) of the joint expert report set out in par [193] above), on the material available the only alternative proposal, namely, Davy Robinson Drive is not a realistic proposal.
The Court of Appeal from [202(vii)] summarised Moorebank's position in relation to the ramps proposal as one where it was extremely likely that Moorebank would have to obtain a section 88K easement subject to a Part 4 owner's consent term and then obtain a Part 4 ramps development consent from Council or, on a merits appeal against refusal, this Court (emphasis added):
(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. Mr Mitchell acknowledged that Council may decline to give such consent. In our opinion it is extremely likely that Council will decline to grant it.
(ix) If Council decided to reject the development application under cl 51(1)(b) of the Regulations under the EPA Act and refused to review that decision under s 82A of that Act, then 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 under s 80(1)(b) of the EPA Act or there was a deemed refusal for lapse of time under s 82(1) of that Act, 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: Sydney City Council v Claude Neon Pty Limited (1989) 15 NSWLR 724 at 732; Sydney City Council v Ipoh Pty Limited, supra at [9], [10] and [34]. 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.
Two comments may be made. First, the Court of Appeal thought it "extremely likely" that Council would decline to give owner's consent to the lodgement of a Part 4 development application with Council for a ramps proposal: at [202 (viii)]. This forecast has turned out to be incorrect for that is what Council gave owner's consent to during the hearing before me in conjunction with consenting to the easements sought. Secondly, it is unclear why the Court of Appeal thought that Part 3A would be the approval route for the Marshall plan construction and use but Part 4 would be the approval route for ramps construction and use. In fact, Moorebank wishes to make a Part 3A application for construction and use of ramps.
In May 2013 the Supreme Court postponed a hearing date for the assessment of compensation in the Tanlane Case until after the s 88K matter before me is determined: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545 (Rein J). The reason for the postponement was that Moorebank indicated that it may wish to claim compensation of $19.1 million if it cannot progress its Part 3A MRF application because it cannot access Brickmakers Drive through its s 88K application in this Court: at [23], [29].
On 27 March 2013 Council resolved to investigate alternative zoning options for the Moorebank East precinct to better reflect the emerging recreation and residential precinct and environmental value of the area. On 29 May 2013 (during the hearing before me) Council resolved to initiate an amendment to LEP 2008 to rezone the Moorebank land from E2 to RE2 and remove item 11(permitting an MRF with consent) from Schedule 1, and to forward a planning proposal to the Department seeking gateway determination.
MOOREBANK'S PART 3A APPLICATION
Section 75B (within Part 3A) of the EPA Act provides:
75B Projects to which Part applies
(1) General
This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies:
(a) by a State environmental planning policy, or
(b) by order of the Minister published in the Gazette.
The carrying out of particular development, or development for a program or plan of works or activities, may be so declared.
(2) Kinds of projects
The following kind of development may be declared to be a project to which this Part applies:
(a) major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance,
(b) major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part.
(3) Related development
If part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies.
...
Pursuant to s 75B(1)(a), in December 2005, on Moorebank's application, the Minister for Planning by his delegate declared the MRF project as a project to which Part 3A applied. The declaration described the development as being on the Moorebank land. The effect was that the approval authority for such development became the Minister or the Minister's delegate (now PAC) not Council.
This opened the way to Moorebank in May 2006 making a Part 3A application for approval of an MRF on its land. That application likewise described the development as being on the Moorebank land. The proposed MRF has an annual capacity of 500,000 tonnes.
As mentioned earlier, in June 2006 Council granted development consent for bulk earthworks on part of Moorebank's land, required for the purpose of construction of the MRF. In May 2008 Council extended the lapsing period of that consent.
In August 2008 the Roads and Traffic Authority wrote to a Moorebank consultant advising that it would not permit Moorebank to have temporary access to Newbridge Road via the panhandle to service the proposed MRF.
In August 2006 the Director-General's delegate wrote to Moorebank attaching the Director-General's requirements (DGRs) under Part 3A. The letter included the following statement:
The Department understands that site access issues are yet to be resolved. Consequently, you are required to ensure that suitable site access agreements are in place prior to the lodgement of the draft Environmental Assessment.
The attached DGRs included the following as one of the "Key Issues":
Site access - demonstrate that suitable arrangements have been made to secure access to the site, including written evidence of the relevant landowner's consent to the proposed site access works.
This was reiterated in a letter in July 2008 from the Director-General's delegate to Moorebank and in the attached modified DGRs.
On 22 December 2008 Moorebank wrote to Council in the following terms:
Moorebank Recyclers Pty Ltd, the owner of Lot 6, DP 1065574, Newbridge Road, Moorebank, is currently preparing an application for the establishment of a "Materials Recycling Yard" on that land.
At its meeting of 25 February 2002, the Council adopted the Moorebank Structure Plan which sought to provide guidance with regard to the future development of the land owned by Boral, Moorebank Recyclers, Tanlane (Benedict Sands) and Flower Power.
Part of the Moorebank Structure Plan was for all future development of the land to the east of the Boral land to be accessed not by way of Newbridge Road but via an accessway which was to be dedicated to Council by Boral as part of the redevelopment of the former Boral brick pit. The access corridor is now known as Lot 309, DP 1118048 which connects to Brickmakers Drive which is known as Lot 308, DP 1118048. We understand that both Lots 308 and 309, DP 1118048 have been dedicated to the Council.
The proposed "Materials Recycling Yard" on the Moorebank Recyclers land is a "project" pursuant to State Environmental Planning Policy (Major Projects) 2005 and, as such, the Minister for Planning is the consent authority for the proposed development.
We have received the Director-General's requirements for the Environmental Assessment to be undertaken as part of the preparation of the project application to the Minister. One requirement of the Director-General is that we obtain landowner's consent for access to the proposed development. As such, we required a letter from the Council giving landowner's consent for the lodgement of the Part 3A Project Application with the Minister for Planning over the abovementioned Council owned land.
...
On 27 January 2009 Council replied by letter to Moorebank as follows:
Re: Landowners Consent - Lots 308 & 309 DP 1118048 - Moorebank
We refer to your letter dated 22/12/2008 and confirm that Council grants consent for the lodgement of the Part 3A Project Application with the Minister for Planning in relation to the abovementioned Land for access purposes to the proposed materials recycling yard.
The Department in an email to Moorebank of 12 October 2011 said:
In response to questions raised in our conversation on 5 October 2011, the DGRs require the Proponent to demonstrate that suitable site access has been obtained, including written evidence of the relevant landowner's consent for the proposed site access work.
As such, an 'adequate' EA must include land owner's consent for the proposed site access work, not just consent for the lodgement of the Part 3A application.
In the Tanlane Case the Court of Appeal at [47] and [190] construed Council's 27 January 2009 letter in relation to Lots 308 and 309 as owner's consent "to the lodgement by Moorebank of an application under Part 3A of the EPA in respect of its proposed" MRF, but not "as an agreement to site access to carry out the works necessary to complete the proposal" (meaning, I understand, the Marshall plan). Although Council had given owner's consent to the lodgement of a Part 3A MRF application for access (by the Marshall plan) through Lots 308 and 309, it will not give such consent for access over Lot 310 required for ramps even though that has become the only possible means of access once the Marshall plan was knocked out by the decision in the Tanlane Case.
In October 2011 the Department sent an email stating that any undetermined Part 3A application in the system after 1 October 2011 would be revoked where an environmental assessment (EA) had not been lodged by 1 October 2013, unless the Director-General determined before then that substantial progress had been made in finalising the EA.
The second judgment of Young JA was delivered in November 2011.
Until 2011 Council was supportive of an MRF and the Part 3A application. Three examples suffice. First, in 2006 Council granted development consent to Moorebank for bulk earthworks required to construct the MRF. Secondly, Council rezoned the Moorebank land in 2005 and confirmed that zoning in the LEP 2008, to permit, with consent, an MRF on the Moorebank land. Thirdly, in 2009 Council gave its owner's consent to Moorebank lodging a Part 3A application for an MRF to obtain access over Lot 308 (Brickmakers Drive) and Lot 309. That owner's consent did not extend to consent to construction and use of the ramps over Lot 308 and 309: Tanlane Case at [190]. It was limited to Lots 308 and 309 and did not extend to Lot 310 because at that time Moorebank was pursuing the Marshall plan, which only required the use of those two lots. Under either ramps proposals, Moorebank needs Council's owner's consent to lodging an application for construction and use of the ramps on all three lots, and presses for a Part 3A owner's consent.
Notwithstanding its 2009 owner's consent, in June 2011 Council changed its mind and resolved to recommend to the State government refusal of Moorebank's Part 3A development application "as the proposed use of this site is incompatible with the current and planned residential and recreational uses of the area", and to inform Moorebank that approval will not be granted for access over part Lot 310 and Lot 309 for the MRF. In July 2011 Council wrote to Moorebank noting (in relation to the Part 3A application) that a key DGR issue related to access, that Council had resolved not to support the Part 3A application, and that approval for access over part Lot 310 and Lot 309 "will not be granted for the proposed project". This resolution and letter extend to the ramps proposal: Tanlane Case at [202(vii)]. This is the genesis of the position that Council takes in these proceedings.
In March 2012 Mr Kennan for Moorebank wrote to the Director-General of the Department asking three questions:
As discussed with Mr Chris Ritchie on 20 March 2012, our client, Moorebank Recyclers, seeks advice from the Department as to the approvals process for access to the subject land.
Having regard to the detail provided below and in the attachments to this letter, the question which is posed by Moorebank Recyclers is:
Is the Minister for Planning and Infrastructure the consent authority for:
(a) the application for a Materials Recycling Facility on Lot 6, DP 1065574,
(b) a road on Lot 309, DP 1118048, and
(c) use of Lot 308, DP 118048.
...
On 7 June 2012 the Department replied:
...
Firstly, the Department confirms that the Minister for Planning and Infrastructure is the approval authority for the Project, which involves the construction and operation of a materials recycling facility on Lot 6 DP 1065574 Newbridge Road, Moorebank. However, the operation of the proposed Project would require suitable site access, including over land owned by Liverpool City Council (Council) on Part Lots 308 and 309 in DP 1118048.
As a relevant landowner for part of the Project's access road, Council is required to provide landowners consent for the lodgement of the Project and approval to access the land to build and use the road.
In relation to landowners consent, it would appear to the Department that Council has granted its landowners consent under Clause 8F of the Environmental Planning and Assessment Regulation 2000.
However in addition to providing landowners consent, the Director-General's Requirements for the Project specifically requires the Proponent demonstrate that suitable site access arrangements have been made to secure access to the site. At this stage and based on Council's advice provided to the Department in its letter dated 14 July 2011 (see copy attached), the Department does not consider that the Proponent has complied with this component of the Director-General's Requirements.
On 11 December 2012 Moorebank submitted a draft EA to the Department under Part 3A. It provided for access to Moorebank's proposed MRF across Lot 309 by the Marshall plan. However, as stated earlier, under the decision on 21 December 2012 of the Court of Appeal in the Tanlane Case the Marshall plan was no longer possible.
Moorebank submitted the EA to the Department on 25 February 2013. Between late February and early April 2013 it was on public exhibition. The EA wrongly identified the proposed access to the MRF as the Marshall plan. During the hearing before me, Moorebank adduced affidavit evidence from its planner, Mr Kennan, explaining this misstatement in the EA. The explanation was that following the Court of Appeal's decision Mr Kennan told an officer of the Department that as a result of that decision the Marshall plan was no longer achievable if the road bridge were to be constructed and that Moorebank proposed to amend the EA to incorporate the Ramps B plans when completed. The officer told Mr Kennan that due to the time frame the Department had set for completion of Part 3A matters, it would not be possible to amend the EA to substitute ramps for the Marshall plan, but that an amendment to the EA could be made to make reference to an alternative access which is being investigated. This limited amendment was made to the EA before it was exhibited.
On 8 February 2013 Moorebank's solicitors wrote to Council contending that access arrangements for the proposed MRF formed part of the Part 3A application and that, accordingly, there was no need for Moorebank to lodge a development application with Council for those works. The letter also requested Council's owner's consent to the lodgement of an amended Part 3A application. On 20 February 2013 council replied requesting a copy of the proposed application. There was no reply.
On 19 April 2013 the Sydney Regional Development Advisory Committee wrote to the Department concerning Moorebank's Part 3A application making a number of recommendations and stating them as RMS requirements. Moorebank accepts before me, and I agree, that these recommendations and requirements are likely to be accepted by PAC as terms of any Part 3A approval of the MRF. Recommendations 8 and 9 are as follows:
8. Traffic control facility at Brickmaker Drive and Link Road intersection should be provided to Council's satisfaction.
9. The proposed "No left turn" sign from the link Road into Brickmaker Drive should be referred to Council for approval. Considerations should be given to negative implications to the Marina Development.
By letter dated 12 April 2013 the Department requested Moorebank to provide the response to the issues raised in submissions, a (statutory) preferred project report if changes were proposed to the project to minimise its environmental impacts, and a revised statement of commitments.
In May 2013 the Environment Protection Authority made a submission to the Department, with which I agree, that "if residential development is not yet approved for this [Tanlane] site then it would be unreasonable for EPA to not support the proposed [MRF] facility because approval for residential development is not guaranteed or may not occur for some time in the future. In addition...noise mitigation measures...could be incorporated in any residential approval".
On 28 May 2013 (during the hearing before me), Moorebank's planner, Mr Kennan, submitted to the Department that access over Lots 308 and 309 was part of the Part 3A application. The Department's reply the next day was that (on the basis of the information provided), the Minister will consider the access arrangements to the site as part of the Part 3A application and if the Part 3A application is approved the proposed ramps access arrangements will form part of the terms of a Part 3A approval.
Mr Kennan in an affidavit of 29 May 2013 deposed that he had instructions that the Part 3A application will be amended by way of a preferred project report (pursuant to s 75H(6) of the EPA Act) by changing the proposed access route from the Marshall plan to Ramps B, as well as in other respects apparently intended to meet certain merits issues that were raised during the hearing. He said he envisaged that the preferred project report would be ready in approximately two weeks. In discussion with counsel at that time, I raised the question whether it would be necessary for the Minister's 2005 declaration to be amended by amending the development described therein so as to include access over Council's land and Ramps B.
That is what then happened on the last scheduled day of the hearing on 11 June 2013. In the last hour of that day during submissions in reply, Moorebank tendered and I admitted over objection the Minister's "Amendment of project declaration" of the same date. It extends the project to access over the Council land in accordance with the ramps proposals. It is in the following terms:
Amendment of project declaration
Section 75B (b) of the Environmental Planning and Assessment Act 1979
I, the Director-General of the Department of Planning and Infrastructure as delegate of the Minister for Planning and Infrastructure, in pursuance of section 75B (5) of the Environmental Planning and Assessment Act 1979 (as continued in force by Schedule 6A to that Act), amend the Project declaration made on 19 December 2005 in relation to the proposal to construct and operate a demolition and construction waste recycling facility at Lot 6 DP 1065574 Newbridge Road, Moorebank, by replacing the development described in the Schedule to the "Record of Minister's opinion" dated 19 December 2005 with the development described in Schedule 1 to this instrument.
Dated 11th June 2013
Sam Haddad
Director-General
Department of Planning and Infrastructure
As delegate of the Minister for Planning and Infrastructure (Instrument of delegation published in Gazette No 95 of 28 September 2011 at page 5685)
SCHEDULE 1
A proposal to construct and operate a demolition and construction waste recycling facility at Lot 6 DP 1065574 Newbridge Road, Lots 308, 309 and 310 DP 1118048 Moorebank, generally as described in:
- A letter dated 12 October 2005 from Nexus Environmental Planning Pty Ltd on behalf of Moorebank Recyclers Pty Ltd to the Department of Planning; and
- An email dated 4 June 2013 (received at 12:33pm) from Nexus Environmental Planning Pty Ltd to the Department of Planning and Infrastructure
And including any development that is ancillary to the above
The email of 4 June 2013 referred to in Schedule 1, which was from Moorebank's planner Mr Kennan, enclosed the Ramps B plans and is in the following terms:
As I have discussed with you previously, as part of the response to submissions following exhibition of the Part 3A Environmental Assessment, and indeed the decision of the Court of Appeal to grant an easement for Tanlane over the Moorebank access handle, it is clearly the case that the access arrangement proposed in the Environmental Assessment cannot be achieved.
As such, Moorebank is proposing as part of the Preferred Project Report which is currently being prepared, to provide an alternative form of access in the form of ramps connecting to the abutment of the approved Tanlane road bridge as referred to in the Environmental Assessment. To assist, I attach a copy of the plans of the now proposed access.
Please be advised that Moorebank Recyclers now wishes to amend the Part 3A application such that the Project applies to Lots 308, 309 and 310, DP 1118048 in addition to Lot 6, DP 1065574. We seek confirmation from the Department that the Part 3A can be amended as proposed.
These documents strengthen Moorebank's submission, considered below, that it would be futile to impose a Part 4 owner's consent term because s 75R(1) of the EPA Act make a Part 4 consent unlawful whilst it has a Part 3A application pending which includes the ramps. I accept it is likely that Moorebank will soon carry out its intention to amend its Part 3A application via a preferred project report. The tender of these documents led the respondents to object to their admissibility and to submit that if they shut the door to the Part 4 route for the ramps, the proper response was not to grant any easements.
Other communications between Mr Kennan and the Department on 4 and 5 June 2013 were later unearthed leading to a further short hearing. They included an email from the Department to Mr Kennan to the effect that although it considered access arrangements to be covered by s 75B(3), it was recommending to the Director-General to amend the original s 75B declaration to include the Council land and the proposed works in order to remove any doubt as to the scope of the works. Tanlane submitted inferences should be drawn that (a) the original Part 3A declaration and application did not include the design and construction of ramps over Lot 310; (b) the timing of Mr Kennan's emails of 4 June 2013 was for the purpose of forensic advantage after the conclusion of submissions in chief by Moorebank so as to advance its argument that Part 3A and s 75R would prevent the Part 4 route in order to create a further obstacle; (c) the project may be amended and reduced to not include design and construction of the access ramps; and (d) lack of evidence of a request by Moorebank to the Department to reduce the scope of the Part 3A to not include access ramps infers Moorebank's lack of good faith in disenabling Council's offer to be accepted. I draw the first and third inferences independently of these documents (the first by construing the original Part 3A declaration and application). I accept the second inference. I reject the fourth. Moorebank was not under a good faith obligation to channel a ramps construction and use application down the Part 4 route; it is open to it to make the proposed amended application; and it was open to the Minister to make the amended declaration. The lateness of all this has caused procedural inconvenience in the case and was to obtain a forensic advantage but does not provide a sound basis for declining to grant the easements or for saying that Moorebank has acted in bad faith.
Moorebank did little to advance its Part 3A MRF application between 2006 and 2012. That delay has resulted in this expedited hearing in order to meet the Department's intention to have all Part 3A applications determined by 30 June 2013. However, Moorebank's explanation, which I accept, for the delay is that it was awaiting the outcome of the Court of Appeal's decision in the Tanlane Case in the hope that the Marshall plan would be upheld. It says that it was the Tanlane Case that impacted upon its Part 3A application, not (as Tanlane submits) vice versa.
On 19 June 2013 I made a consent order that the parties' experts confer and endeavour to reach agreement on a preferred design for the ramps within seven days. This was later extended to eight days (ie until today). As at 24 June 2013 Moorebank reported that its preferred project report under s 75H(6)(b) incorporating amendments including Ramps B was ready for submission to the Director General subject to (a) waiting to see if the experts reached agreement on the design and (b) if they agreed, obtaining final comments thereon from Moorebank's experts. Moorebank anticipated submission of the preferred project report within two weeks after receipt of the experts' report as to the design and that, by reference to a PAC publication "Procedures for Decision Making", this would be followed by public exhibition of the preferred project for two weeks, determination of the application following consideration of the Director General's report under s 75I, possibly a PAC decision to hold a public meeting on 14 days notice, and its determination as soon as possible thereafter or at the public meeting.
EXPERT EVIDENCE
Expert evidence was adduced from structural engineers, hydrologists, ecologists, traffic experts, acoustic experts, air quality experts, planners and valuers. The valuers, and subsequently the parties, agreed that the compensation payable for the grant of the proposed easements is $25,000.
Last week a consent order was made that the structural engineers, hydrologists and traffic experts should meet and attempt to agree on a preferred design for the construction of a ramp and bridge abutment and traffic control works at the intersection of Brickmakers Drive and Lot 309 within 7 days. That was later extended to today. Although their report virtually coincides with publication of this judgment and therefore is too late for analysis in this judgment, there is no suggestion that this affects, or should delay, publication of this judgment. The subject matter of their report and much of the expert evidence adduced goes beyond anything that has to be determined in these proceedings. Much of it involves an intensity of merits analysis which is appropriate to a consent authority's consideration of a development application for construction and use of the ramps and the MRF. I am satisfied that it is reasonably open to a consent authority to grant approval for construction and use of the ramps and that there is a realistic chance of obtaining such approval, and that any impacts on the Council land or the area are capable of being managed through conditions attached to any development approval.
Engineers
The structural engineers are in general agreement including that both ramps proposals are unlikely to have any adverse flood impacts, Ramps A will be considerably more expensive given that two spans of the bridge have to be constructed by Moorebank (this assumes Tanlane has not already constructed them), both ramps proposals allow either Tanlane or Moorebank to complete their access first, and the size of the easements can be made to comply with the consent authority's requirements.
Hydrologists
The flooding experts agree that the construction of the proposed ramps will not have a significant impact on flood levels upstream of the proposed ramps. They recommend a more detailed flood study.
Ecologists
The ecologists agree that Ramps B is likely to result in a loss of 0.22 ha of RFEF, requiring some offsetting which could be the subject of conditions of approval granted by PAC.
Traffic experts
The traffic experts agree that RMS concurrence to traffic signals at the intersection with Brickmakers Drive would be required. They disagree as to the design of the ramps connections shown on the Ramps B plans, relating mainly to queuing on the bridge because of the need for lights. Queuing would occur beyond the entry points of both ramps proposals to the traffic stream. Three of the four traffic experts agree that Ramps B provide a better traffic outcome. Merging of general traffic with recycling trucks creates safety issues and requires design in order to be managed. As proposed by Council's expert, Council submits that neither Ramps A nor Ramps B is wholly satisfactory and that a better solution may be to construct ramps on Council land not covered by the proposed easements, by moving the beginning of the up ramp a little further south to enable a lesser gradient or moving the beginning of the down ramp a little further north to avoid difficulties with the interaction between the down ramp and the intersection. This is one of the matters that the experts are likely to address in their report due today. Such matters are relevant to the approval authority's consideration of a development application for the ramps.
I do not need to resolve these traffic issues. I am satisfied that what is proposed (access by Lots 309 and 310) is practically possible, that it would be open to a consent authority to approve a development application for the ramps, and that such an application is not hopeless.
Acoustic experts
On the evidence of the acoustic experts, I am satisfied that the noise impacts from use of the bridge, ramps and access road can be managed by noise mitigation measures as conditions of any development approval. In May 2013 the Environment Protection Authority (EPA) made a submission to the Department, with which I agree, that "if residential development is not yet approved for the [Tanlane] site then it would be unreasonable for EPA to not support the proposed facility because approval for residential development is not guaranteed or may not occur for some time in the future" and that noise mitigation measures could be incorporated in any residential development approval. Such noise mitigation measures are expressly contemplated in DCP 2008.
Air quality experts
The air quality experts agree that NSW air quality assessment criteria are unlikely to be exceeded. They agree that the MRF should implement air quality measures that could be made the subject of conditions of a development approval.
Planners
The evidence of the planners was largely directed to their interpretation of various planning documents, about which the Court can form its own view. Mr Mitchelll (Tanlane's planning expert) proffered opinions about problems he perceived that I think are outside his area of expertise, irrelevant or outweighed by the evidence of other experts in various disciplines that noise impacts may be managed by noise mitigation measures, traffic issues can be addressed, potential flooding impacts will be minor, disturbance of threatened species or plants is unlikely and can be managed, engineering issues to which he refers can be resolved, and direct emissions from the proposed facility appear to be at acceptable levels.
The respondents' planners opined that an MRF is no longer a development that is appropriate to the area. I disagree for reasons discussed later. They dwelt on Council documents in the mid 1990's and Moorebank communications in the mid 1990's and 2004 (to which I have referred) in connection with the rezoning application indicating that use of an MRF on the Moorebank land would be for a limited period. However, the fact is that the Moorebank land was rezoned in 2005, and confirmed in the LEP 2008, for an MRF without a sunset limitation on use. It is a matter for the approval authority, if it grants approval for an MRF, whether to impose a sunset condition on use.
SECTION 88K CONVEYANCING ACT 1919
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 88K raises five questions:
(1) Is the proposed easement "reasonably necessary for the effective use or development" of the applicant's land: s 88K(1)?
However, it would not make unlawful a Part 4 owner's consent term of the easements. If, in the exercise of the Court's discretion, a Part 4 owner's consent term and no unqualified Part 3A owner's consent term were imposed, Moorebank would have no option if it wished to proceed with its Part 3A MRF application but to ensure it did not include access over the Council land and ramps work, thus avoiding s 75R(1) and enabling a lawful Part 4 consent for construction and use of the ramps to be made. It may also have to arrange for the Minister to amend the amended Part 3A declaration in the same way. However, I would not exercise the Court's discretion in this way for reasons expressed later in this judgment.
The second and alternative reason, Moorebank submits, why Council could not lawfully consent to a Part 4 development application for the ramps is that even if s 75R(1) does not preclude Part 4, as soon as Moorebank made a Part 4 application for ramps for the purpose of an MRF the ramps would become "State significant development" and under s 89D(1) of the EPA Act the Minister would become the consent authority. It is said that the ramps would be "State significant development" under cl 8(1)(b) of the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) because the ramps application would be to permit "development for the purpose of resource recovery on recycling facilities that handle more than 100,000 tonnes per year of waste" being the "purpose" nominated in cl 23(3) of Schedule 1 of the SEPP. Moorebank submits that the ramps cannot be said to be for any purpose because the ramps must accommodate Moorebank's trucks and Moorebank's sole purpose in making the application would be for an MRF. Moorebank submits that the line of authority represented by Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 does not assist because here because unlike the 2008 LEP (which the SEPP overrides to the extent of any inconsistency: s 36 EPA Act) there is no definition of "road".
Sections 89C and 89D of the EPA Act provide:
89C Development that is State significant development
(1) For the purposes of this Act, State significant development is development that is declared under this section to be State significant development.
(2) A State environmental planning policy may declare any development, or any class or description of development, to be State significant development.
...
89D Minister consent authority for State significant development
(1) The Minister is the consent authority for State significant development.
Note. Section 23 enables the Minister to delegate the consent authority function to the Planning Assessment Commission, the Director-General or to any other public authority.
...
The SEPP provides:
8 Declaration of State significant development: section 89C
(1) Development is declared to be State significant development for the purposes of the Act if:
...
(b) the development is specified in Schedule 1 or 2.
...
Schedule 1 State significant development-general
23 Waste and resource management facilities
(3) Development for the purpose of resource recovery or recycling facilities that handle more than 100,000 tonnes per year of waste.
I do not accept Moorebank's second reason for its unlawfulness submission. Under the 2008 LEP, roads are permissible on the Council land and the ramps are roads. Argyropoulos is indistinguishable. In that case the question was whether a use of land as a road in a residential zone was permitted where the purpose of the road was to provide access to an area zoned as a light industrial zone where the use of land in the residential zone for light industrial purposes was prohibited. It was submitted for the council in that case that because the access road was intended to serve the light industrial use, the land use for which consent was sought over the land in the residential zone ought to be characterised as being a use for the purpose of the storage of formwork material (the light industrial use) and not as a road (at 206). Cripps CJ of LEC rejected the submission. His Honour said, at 207, 208:
I do not think that the innominate prohibited light industrial use excludes, in the present case, the nominate permissible use. It is true that the road will serve an area of land zoned light industrial but that circumstances does not give it a separate single "light industrial" purpose or, perhaps more precisely, a "formwork and materials storage" purpose within the meaning of the Canterbury Planning Scheme Ordinance. In my opinion "road" use is contemplated by the Scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a "road" which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because of the start and/or destination of vehicles passing over the road is light industrial land.
Moorebank's other objections to a Part 4 owner's consent term
Thirdly, Moorebank submits that (a) contrary to the assumption underlying Council's letter of offer, the proposal advanced by the Council would not satisfy the DGR relating to suitable site access arrangements; (b) it could not be said that the letter the Council proposes to write to the Department would satisfy the requirement to "demonstrate that arrangements have been made to secure access to the site"; (c) it is only once the easements have been ordered and development consent has been obtained for the construction of the ramps, that Moorebank will be able to give the Department the assurance that it has secured legal access to the site. The DGR merely requires that "arrangements have been made" to secure access. In my opinion, the Council's proposed letter to the Department would satisfy that requirement.
Fourthly, Moorebank submits that (a) there is no guarantee that Council would approve the ramps proposal, either Ramps A or B; (b) all it promises to do is to write to the Department to the effect that it "approves in principle" the construction of the ramps (it does not specify which) and associated works on Lots 308, 309 and 310 to provide access to Brickmakers Drive; (c) the Council cannot fetter its discretion in advance of its consideration of the merits of the development application. Council replies that (a) it is correct that Council could not promise to approve the development application, there is no difficulty from the perspective of the no-fettering rule with it indicating that in principle it strongly favours granting consent to some form of the ramps proposal; (b) Council has investigated the ramps proposal through experts retained by it and has indicated that it will be guided by those experts; and (c) Court's orders can be crafted in a manner that does not offend the fettering rule but makes Council consent very likely, particularly given that Moorebank will have a right of merits appeal under s 97 of the EPA Act. In my view, notwithstanding the points made by Council, there remains a small possibility that consent of the ramps will not be obtained under the Part 4 route.
Fifthly, Moorebank submits that (a) the Council's offer only refers to a development application for the "construction" of the ramps and associated works, not their "use"; (b) Council has in the past imposed a condition limiting the bridge consent to its construction only; (c) Council has said nothing about its attitude, whether "in principle" or not, in relation to the issue of whether a planning consent would be granted by it for the "use" of the ramps for the purpose of a MRF. Council replies, and I accept, that this objection is met by moulding a Part 4 owner's consent term so that it extends to use as well as construction.
Sixthly, Moorebank objects that (a) there is no evidence that the Council resolution of 15 June 2011 has been rescinded; and (b) unless that resolution is rescinded, there is a serious question mark as to the authority of Council's solicitors to make the offer on behalf of Council. Council submits, and I accept, that (a) there is no question of Council officers not having the power to instruct that the offer be made since the terms of Council's resolution of 15 June 2011 were that "approval will not be granted for access of Part Lot 310 and Lot 309...for waste management/recycling purposes" and the offer does not grant access for those purposes; (b) it takes up the Court's suggestion that the question of access and the question of the MRF can be decoupled and grants access for the use of the Moorebank land, which use may include for an MRF.
The seventh and eighth objections can be dealt with together. Seventhly, Moorebank objects that the process of re-classification of Lot 310 from operational land to community land would be a lengthy one, requiring a local environmental plan (s 30 Local Government Act 1993) and possibly also a public hearing (EPA Act, s 57(5)) or, if by resolution of the Council, only after public notice has been given and submissions have been received (Local Government Act) - and there would be no guarantee of a successful outcome. Eighthly, Moorebank objects that (a) as Council's letter of offer itself acknowledges, unless Lot 310 were re-classified as operational land, the Court would still have to make an order under s 88K granting the easement; (b) the Court would still have to be satisfied as to the jurisdictional preconditions in s 88K; and (c) there is no indication that Tanlane would also consent to the grant of the easement by the Court. In short, Moorebank submits that without the re-classification, the proposal will not obviate the need for the Court to undertake the consideration of the matters that are currently the subject of dispute, thus not resulting in any saving of time or cost. Council submits, and I accept, that the community land issue is overcome by Council's consent to the Court making an order under s 88K on the basis that the easements are necessary for all reasonable uses of the Moorebank land.
The next three objections can be dealt with together. Ninthly, Moorebank objects that (a) there are other timing issues that make the Council's proposal highly undesirable from Moorebank's perspective; for example (based on its flood expert's evidence), Council might require a further flood study to be carried out which may take months if not years; (b) the Part 4 process itself would likely take months; (c) Moorebank should not have to wait any longer before it has certainty concerning its development proposal. Tenthly, Moorebank objects that (a) the Council's proposal is silent as to its preferred traffic treatment of the intersection with Brickmakers Drive; (b) unless Council's position is made clear, and involves a set of traffic lights, then the proposal could not work; (c) a roundabout at that location would not permit Moorebank's trucks to use the intersection, thereby defeating the purpose for which the ramps would be constructed, and the easement granted. Eleventhly, Moorebank objects that (a) contrary to the stated basis for Council's opposition to the grant of the easement sought by Moorebank, the RMS submission to the Department in respect of the EA for the Part 3A application makes clear that the traffic control facility at the Brickmakers Drive intersection "should be provided to Council's satisfaction"; that advice is highly likely to be made the subject of a condition of any approval granted by the PAC. In other words, Council will not lose control over the traffic treatment at the intersection. Council submits, and I accept, that (a) the issues raised by these three objections can be dealt with by orders of the Court; (b) Moorebank will need ramps planning approval in one form or another; and (c) it is a matter for the Court's discretion whether it should get orders from the Court restricting its selection of the forum it regards as most desirable.
In my view, s 88K(1) is not offended by Moorebank pursuing a Part 3A ramps application nor is that or the other matters referred to by Council sufficient reason to exercise the Court's discretion to force Moorebank down the Part 4 consent path for the ramps through the imposition of a Part 4 owner's consent term (without an unqualified Part 3A owner's consent term in addition). The matters that I have mainly taken into consideration in reaching this conclusion are as follows:
(a) It is an implied term of the grant of an easement that the owner of the burdened land will give owner's consent to the lodgement of an application for statutory approval of work on and use of the burdened land for the purpose that the easement is granted. Under that implied term the applicant for statutory approval is entitled, in my opinion, to follow whatever statutory planning approval path is available: in the present case either Part 3A or Part 4 of the EPA Act.
(b) The Court will enforce such an implied term.
(c) When an easement is granted under s 88K, the Court may impose an express owner's consent term to the same effect as the implied term as Moorebank seeks in the present case.
(d) The Court should be cautious about exercising its discretion to cut down what would otherwise be implied by refusing a Part 3A owner's consent term.
(e) The time required for Moorebank to prepare and lodge a Part 4 development application for the ramps and the twelve weeks thereafter that Council says it would require to process and determine it, poses a significant risk that Moorebank's Part 3A MRF application will be refused. I accept that the Part 3A application is likely to be determined in substantially less time. The risk arises because of the Department's expressed intention that all pending Part 3A applications should be determined by 30 June 2013. Moorebank justifiably expects an extension of that time if by then it obtains the relief it seeks including a Part 3A owner's consent term. If it is forced down the Part 4 consent route for the ramps, I accept that there is a significant risk that this would not be acceptable to the Director-General or PAC in the Part 3A context such that the Part 3A MRF application may be rejected.
(f) There is a risk of conflict between the approval authorities if PAC regards the design of the ramps approved by Council under Part 4 as unacceptable for an approved MRF.
(g) Although Council approves ramps in principle, it cannot fetter its discretion; therefore there is a risk, albeit small, that Council would reject a Part 4 ramps application.
(h) I understand why Council wishes to be the consent authority for the ramps given the importance of the road bridge to the precinct. However, that has to be balanced against, and I think is outweighed by the intention of Part 3A of the EPA Act to make the Minister the approval authority for developments that the Minister declares to be within Part 3A and the fact that the Minister has made such a declaration in relation to the ramps.
(i) Since the road bridge and its intersection with Brickmakers Drive are important not just to Moorebank but to the precinct for which Council is responsible as the local planning authority, orders should be made to bolster Council's participation in the Part 3A process taking into account the parties' suggested draft orders provided to me. The parties' experts are already subject to a consent order to meet and endeavour to reach agreement today on a preferred design for the ramps. The draft orders I propose are attached to this judgment and I will give the parties an opportunity overnight to consider them. They include orders to the following effect:
(i) maximising as far as possible the prospect of an objector merits appeal by Council from a Part 3A determination under s 75L of the EPA Act;
(ii) if agreement is reached between the experts and the parties (or in the case of Council, a designated officer) on a preferred design for the ramps and bridge abutment, that design will be submitted to the Department as the agreed position of the parties. Council has said it will be guided by its experts. The parties (and, in the case of Council, a designated officer) will be directed to confer and endeavour to reach agreement within 14 days;
(iii) a similar order should be made in relation to the design for the traffic control works at the intersection of Brickmakers Drive and Lot 309;
(iv) if no such agreement under (ii) or (iii) is reached, Moorebank will submit that the construction (but not the design) of the ramps and bridge abutments and the design of the traffic control works at the intersection of Brickmakers Drive and Lot 309 should be to Council's satisfaction. So far as traffic control works are concerned, this reflects an RMS requirement;
(v) Moorebank is to seek a condition of approval that the proposed "No left turn" sign for Lot 309 into Brickmakers Drive should be provided to the satisfaction of Council. This also reflects an RMS requirement.
(j) A Part 3A owner's consent term satisfies the DGR for suitable access arrangements to be made for the MFR, although so too does a Part 4 owner's consent term.
Conclusion
For these reasons, in my opinion the easements are reasonably necessary for the effective development of the Moorebank land.
Section 88K(2)(a) Public Interest
Under s 88K(2)(a) the Court must be satisfied that the use of the dominant tenement, being the Moorebank land having the benefit of the easement, will "not be inconsistent" with the public interest. In my view, this test of "will not be inconsistent" with the public interest is less exacting than a test of "will be in the public interest" or a test of "will be consistent with the public interest'". In Rainbowforce Preston CJ of LEC held at [95] (omitting citations):
Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the Court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest.
Approved in Samy Saad v City of Canterbury [2012] NSWSC 389 at [34] - [36] (Nicholas J).
In Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295, (2009) 14 BPR 27,257 at [63] White J held:
... If the requisite consents were obtained to the use of the plaintiff's land, that would not be inconsistent with the public interest. To the contrary, the public interest is in favour of landlocked land being able to be used.
The respondents submit that the Court could not have the requisite satisfaction of the matter under s 88K(2) (a) due to the incompatibility of the use with the existing and future planning for the area; (b) the fact that it might be possible to make amendments to the proposal, including to the access, to lessen that incompatibility, is not to the point as no amended proposal is made available for consideration; and (c) due to potential inconsistencies between, on the one hand, the proposal and, on the other hand, the approved road bridge and the easement the Court of Appeal is to grant.
I do not accept the submission. I have earlier explained why I consider that the use of the Moorebank land is appropriate for the area at the present time; I have no doubt that the amended Part 3A application will soon be made and that its contents have been sufficiently identified; and I do not see any such potential inconsistencies.
I am satisfied that use of Moorebank's land will not be inconsistent with the public interest.
Section 88(2)(c): attempts
I am satisfied that all reasonable attempts have been made by Moorebank to obtain the easements or easements having the same effect but have been unsuccessful.
Section 88K(4): Compensation
As noted earlier, compensation for the proposed easements has been agreed between Moorebank and the Council in the sum of $25,000 which I consider is appropriate. Therefore, any order for such easements will provide for the payment by Moorebank to Council of that sum as compensation.
Discretion
The respondents submit that the Court would refuse to exercise its discretion to grant the easements having regard to the matters they have raised to which I have earlier referred. I do not accept the submission. My earlier response to those matters satisfies me that the discretion should be exercised in favour of Moorebank.
TIMING OF REGISTRATION OF EASEMENTS
Tanlane proposes an order that any easements granted to Moorebank should not be registered before the Tanlane easement is registered. Tanlane offers an undertaking to do all things reasonable and proper to enable the Tanlane easement to be registered as soon as possible. Council proposes as an alternative that, if the Court is minded not to make such an order because of Moorebank's concerns about timing, there should be an order restraining Moorebank, before Tanlane's easement is registered, from exercising any rights in relation to the easements save for requiring Council to give landowner's consent. Moorebank opposes both proposals.
Tanlane obtained development consent in 2007 for construction of the road bridge and in January 2008 unsuccessfully requested Moorebank to agree not to hinder or obstruct it from undertaking works. Tanlane was successful in obtaining a grant of an easement in the Supreme Court before Young JA and orders were made in February 2012. Following Moorebank's appeal from that decision, in December 2012 the Court of Appeal found that an easement should be granted to Tanlane subject to compensation of not less than $26,500 being assessed. The matter was remitted to the Equity Division for assessment and set down for a hearing before Rein J on 9-11July 2013. Moorebank successfully sought a stay of the compensation proceedings until the outcome of these proceedings: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545. Rein J said at [29]:
Since Moorebank's foreshadowed case for expanded compensation is dependent on it being unsuccessful in the Land and Environment Court and unsuccessful solely because of the Tanlane easement there is considerable utility in awaiting the outcome because the expanded compensation claim will not be advanced if Moorebank succeeds in the Land and Environment Court, or fails on a different basis, and the question of whether Moorebank's expanded claim can be advanced will not need to be determined.
His Honour said that Moorebank should be required within a specified period following delivery of judgment in this Court to advise Tanlane and the Supreme Court whether it wishes to proceed with its expanded claim. If it does, consideration would need to be given as to how the controversy surrounding Moorebank's entitlement to advance such a claim is to be dealt with.
Tanlane's access to Brickmakers Drive and ability to construct the road bridge depends upon registration of its easement. Moorebank has advanced the argument that its access via ramps to Brickmakers Drive should not be the "handmaiden" to Tanlane constructing the bridge. Tanlane submits that it is possible Moorebank would seek to "further frustrate" the completion of the Supreme Court proceedings, thus also further delaying any further construction of the bridge by Tanlane prior to any approval Moorebank may obtain via the Part 3A application. Tanlane submits that the Supreme Court proceedings may be delayed further because before Rein J Moorebank submitted that: "Assuming that Moorebank is granted its easement and is successful with its Part 3A application, then Moorebank would seek to adduce the following evidence: 1. Valuation...". Before me Moorebank indicated that if it obtains the easements, it may advance a compensation claim in the Supreme Court in excess of the $26,500 minimum: it mentioned a figure in the order of $50,000. Tanlane submits that the importance of the road bridge in the planning and redevelopment of the Tanlane land is clear and the Court should not enable Moorebank to make Tanlane's residential development the "handmaiden" to its Part 3A application. Tanlane submits that the Court should require Moorebank to act in good faith and ensure Tanlane obtains legal access to Brickmakers Drive by making orders to the effect that any easement over Lot 309 for the benefit of the Moorebank land may not be registered until Tanlane is able to register its easement.
Moorebank submits that:
(a) There is no prospect of Tanlane's rights being interfered with. The bridge could be built first or the ramps could be built first. In the case of Ramps B the cost to Moorebank of constructing the ramps first would be an additional $2 million.
(b) Tanlane has no standing to seek conditions to be imposed on Moorebank's easement because it was joined to the proceedings on a false premise, namely, that its easement rights would be affected by the grant of easements in favour of Moorebank.
(c) There should be no condition imposed relating to registration of Moorebank's easement. The only purpose of such a condition would be to hold Moorebank to ransom in relation to the compensation hearing in the Supreme Court, which has been stayed pending the outcome of these proceedings. If the condition imposed by Tanlane were to be imposed, then Moorebank would in effect have to accede to the $26,500 minimum compensation amount referred to by the Court of Appeal in order for its easement to be registered.
The Supreme Court proceedings aimed at securing the Tanlane easement have been on foot for some six years and the postponement of their conclusion until these proceedings are determined was at Moorebank's behest. In the circumstances, I am persuaded that Tanlane has a sufficient equity for an order that its easement be registered first, subject to giving its proposed undertaking to the Court. I do not accept Moorebank's submission that this holds Moorebank "to ransom" in the Supreme Court proceedings by compelling it to accept $26,500 compensation. It does, however, provide an incentive to get the Supreme Court proceedings concluded as soon as possible.
ORDERS
Orders will be made under s 88K granting the claimed easements on terms including (a) an owner's consent term for the making by Moorebank of any application for approval or consent for the ramps (whether under Part 3A or Part 4); (b) a term that the ramps design is to be sufficient to accommodates access ramps to and from the servient tenement having the load bearing capacity required by SM1600 referred to in cl 6.2 of Part 2 of AS 5100 Bridge Design Code (ie the same term as the Court of Appeal imposed in the Tanlane Case at [256]); and (c) a term postponing registration of the Moorebank easement until after registration of the Tanlane easement.
Draft orders are attached. The matter will be listed tomorrow at 2.15 pm for the purpose of making final orders. Counsel are to confer beforehand and any agreed or competing changes to the attached draft that are consistent with these reasons for judgment are to be emailed to my Associate before the hearing tomorrow.
It is possible that the area of the easements identified in the plan forming part of the attached draft instrument for registration may require enlargement if, as discussed earlier, the parties' experts or any of them contend that the beginning of the ramps should be relocated further north or south such that they are outside the proposed easements. This would require a relatively minor enlargement of the proposed area of the easements to provide for the possibility that the approval authority for the ramps might approve such a design. The experts are reporting today on whether they have agreed on a preferred design for the ramps. If they or any of them contend for a ramps design which would require enlargement of the easements, Council agrees to that enlargement. In that event, Council is to prepare an amended plan before the hearing tomorrow which may be incorporated in the final orders.
Prima facie, Moorebank should pay Council's costs of the proceedings pursuant to s 88K(5) of the Conveyancing Act, and there should be no order as to Tanlane's costs. The possibility has been raised of a different costs order. I propose to make the prima facie costs order subject to providing for any party to apply to vary it within seven days.
DRAFT ORDERS
ANNEXURE 1
ANNEXURE 2
ANNEXURE 3
Decision last updated: 03 July 2013
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