Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd
[2012] NSWCA 445
•21 December 2012
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Hearing dates: 6, 7 and 10 August 2012 Decision date: 21 December 2012 Before: Bathurst CJ, Beazley JA, Meagher JA Decision: 1. Set aside orders 1, 2, 4, 5 and 7 of the orders made by the primary judge.
2 Release the respondent from the undertaking referred to in par [8] of the orders of the primary judge.
3 Direct the matter to be remitted to a judge or an associate judge of the Equity Division of the Court to be dealt with in accordance with pars [256]-[260] of this judgment.
4 Each party pay its costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - whether easement can be imposed subject to undertaking to extinguish it if certain future events do not occur - obligation to assess preconditions in s 88K in light of circumstances existing at time of hearing.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - power to order conditional easements - obligation to impose conditions as term of order imposing easement.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - whether obligation to consider effect on servient tenement.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - whether easement reasonably necessary for effective use and development of land - obligation to consider whether proposed development appropriate and economically rational - obligation to consider alternative methods of achieving development.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - effect on servient tenement - whether servient tenement "sterilised" by imposition.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - compensation - whether servient tenement able to be adequately compensated - whether possible to assess compensation where easement would create uncertainty as to development of servient tenement.
REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - compensation - appropriate measure of compensation - diminution in land value - whether sufficient evidence to calculate compensation payable.Legislation Cited: Conveyancing Act 1919 (NSW) s 88K, s 89
Environmental Planning and Assessment Act 1979, s 75B s 80, s 82, s 97, s 97C, s 122, Part 3A
Environmental Planning and Assessment Regulation 2000 cl 51
Land and Environment Court Act 1979 s 39, s 40
Supreme Court Act s 75ACases Cited: 117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Bloom v Lepre (2008) 13 BPR 24,923
Blulock Pty Limited v Majic [2001] NSWSC 1063; (2001) 10 BPR 19,143
Botany Bay City Council v Premium Custom Services Pty Limited [2009] NSWCA 226; (2009) 172 LGERA 338
Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295; (2009) 14 BPR 27257
Grattan v Simpson (1998) 9 BPR 16649
ING Bank Australia Limited v O'Shea [2010] NSWCA 71; (2010) 14 BPR 27,317
Kenny & Good Pty Limited v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Khattar v Wiese [2005] NSWSC 1014 at [27]; 12 BPR 23,235
Lonergan v Lewis [2011] NSWSC 1133
Mitchell v Boutagy [2001] NSWSC 1045; (2001) 10 BPR 19187
Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100
Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Rainbowforce Pty Limited v Skyton Holdings Limited [2010] NSWLEC 2; (2010) 171 LGERA 288
Spencer v The Commonwealth (1907) 5 CLR 418
Swann v Spiropoulos [2006] NSWSC 860; (2006) ANZ ConvR 496
Sydney City Council v Claude Neon Pty Limited (1989) 15 NSWLR 724 at 732
Sydney City Council v Ipoh Pty Limited [2006] NSWCA 300; (2006) 68 NSWLR 411
Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165
Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485; (1999) 9 BPR 16985
Western Exports Services Inc v Jireh International Pty Limited [2011] HCA 45; (2012) 86 ALJR 1
Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589Category: Principal judgment Parties: Moorebank Recyclers Pty Ltd (Appellant)
Tanlane Pty Ltd (Respondent)Representation: G Inatey SC and J Lazarus (Appellant)
T Hale SC and Z Steggall (Respondent)
Mark McDonald & Associate Lawyers (Appellant)
Minter Ellison Lawyers (Respondent)
File Number(s): 2012/73508 Publication restriction: No Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- 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- Before:
- Young JA
- File Number(s):
- 2008/277351
HEADNOTE
The respondent Tanlane Pty Ltd sought an easement over land owned by the appellant Moorebank Recyclers Pty Ltd under s 88K of the Conveyancing Act 1919. The purpose of the easement sought was to allow Tanlane to build a road bridge that it contended would provide access from its land to a nearby road (Newbridge Road), thus allowing it to pursue a planned residential development on its land. Moorebank opposed the imposition of an easement on the basis that the construction of the bridge would prevent it from gaining access to the same road from its own land. Such access was necessary for Moorebank to pursue the development of a planned materials recycling facility on its land.
Two access plans were proposed by Moorebank and Tanlane respectively. Tanlane supported a plan providing for the bridge sought by it to be built with ramps (the Ramps proposal), which it contended would also allow Moorebank access to Newbridge Road. An alternative access plan proposed by Moorebank (the Marshall plan) would have provided Moorebank with such access without the need for a bridge, but would have denied Tanlane access from its land to Newbridge Road. It was common ground that the two access plans could not co-exist. Each access plan involved the use of land owned by Liverpool City Council
In 2011, the council determined to oppose Moorebank's proposed materials recycling facility and stated it would not consent to Moorebank having access over council land for that purpose. As the council was landowner such consent was necessary to effect both the Ramps proposal and Marshall plan.
In those circumstances, Moorebank contended that the imposition of the easement sought would lead to the economic sterilisation of its land, as the Ramps proposal could not be effected. It further contended that the planned ramps may not have the load bearing capacity to accommodate the trucks it required. Moorebank also contended that Tanlane did not require access to Newbridge Road, as alternative access from its land to a public road was available. In those circumstances Moorebank submitted that the conditions in s 88K for the imposition of an easement, and in particular the precondition that the easement be "reasonably necessary for the effective use or development of other land", had not been made out.
In two judgments, of 4 November 2011 and 21 February 2012, the primary judge found in favour of Tanlane, imposing an easement on the condition that Tanlane undertake to extinguish the easement if, despite the best endeavours of the parties, Moorebank was unable to obtain access to Newbridge Road by means of the Ramps proposal. Moorebank appealed. By Notice of Contention, Tanlane contended that notwithstanding any errors by the primary judge, the easement should be imposed, on an unconditional basis.
The issues for determination on appeal were whether:
(i) The primary judge erred in imposing an easement conditional on an undertaking to extinguish it in certain circumstances.
(ii) The precondition of "reasonable necessity" in s 88K(1) had been satisfied.
(iii) The precondition that Moorebank be capable of being adequately compensated for the imposition of the easement in s 88K(2)(b) had been satisfied.
(iv) The primary judge erred in his calculation of the compensation payable to Moorebank.
The Court held, allowing the appeal in part but ordering that an easement be imposed in the terms of paragraph [256] of the judgment and following assessment of compensation payable pursuant to s 88K(4):
In relation to (i):
(1) By imposing an easement subject to an undertaking to the Court to apply for it to be extinguished if certain events did not occur, the primary judge effectively failed to fulfil the obligation to determine the question of whether the conditions in s 88K were satisfied in the circumstances which existed at the time of the hearing: [97] - [98].
(2) An easement can be subject to conditions and restrictions on its enjoyment, however these conditions must be specified in the order imposing the easement and not in an order or undertaking independent of the easement: [99].
In relation to (ii):
(3) Determining the question of reasonable necessity requires that there be taken into account the effect that the easement would have on the enjoyment of the servient tenement, including the property rights of the owner thereof: [114].
(4) The greater the burden of the easement on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity. If the effect of the imposition of an easement is to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed: [156] -[157].
(5) Establishing reasonable necessity requires the applicant for an easement to demonstrate that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land, as well as requiring a consideration of the alternative methods by which such use or development could be achieved: [155], [158].
(6) The possibility that the planned ramps may not have sufficient load bearing capacity to accommodate the trucks required by Moorebank could be overcome by specifying in the easement that any bridge constructed would have the capacity to accommodate such trucks: [183].
(7) Moorebank, irrespective of the grant of the easement, did not have an immediate right to the access it sought. The grant of the easement would put it out of Moorebank's power to pursue the Marshall plan but would leave it with the opportunity to take steps to implement the Ramps proposals. The prospects of success of either proposal were uncertain, but there was nothing to suggest that one was more likely to be successful than the other. In those circumstances the precondition of reasonable necessity had been made out: [202]-[205].
In relation to (iii) and (iv):
(8) It was possible to calculate adequate compensation, notwithstanding uncertainty as to prospects of future development of the Moorebank land arising from the grant of the easement: [237] -[238], [243].
(9) The relevant measure of compensation is the diminution in the value of the land, to be assessed by a consideration of what would be paid by a willing but not anxious buyer to a willing but not anxious seller before and after the grant of the easement, together with any expenditure wasted as a result of the easement's imposition: [238] -[239], [245].
(10) The appropriate approach to calculation of compensation when faced with unsatisfactory valuation evidence is for the Court to put itself in the position of a juror and assess as best as it can what was the compensation payable: [248].
(11) If there is no evidence from which compensation can be assessed, no order granting the easement should be made, as the precondition in s 88K(2)(b) will not have been made out: [249].
(12) The evidence established that the grant of the easement would not have a detrimental effect on the value of the Moorebank land. However, as the Court approached the matter on a different basis to that of the primary judge, the matter should be referred back to a judge or an associate judge for a final determination of compensation: [250] -[251].
Judgment
THE COURT: This is an appeal from orders made by Young JA, sitting as a single judge in the Equity Division, under s 88K of the Conveyancing Act 1919 (NSW) ("the Act") imposing an easement in favour of the respondent ("Tanlane") over certain land of which the appellant ("Moorebank") was the registered proprietor. The orders were made following the delivery of three judgments, the first delivered on 15 December 2008 (Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341), the second delivered on 4 November 2011 (Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286) and the third delivered on 21 February 2012 (Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90).
Background to the proceedings
A The land in question
Attached to this judgment is a plan ("Attachment 1") showing the relevant features of the land the subject of the proceedings. The land of which Moorebank is the registered proprietor is the land mainly to the southeast on the plan and shown as Lot 6 in DP 1065574. The land owned by Moorebank includes the narrow corridor etched in orange leading to Newbridge Road ("the panhandle"). The area coloured yellow immediately to the east of the panhandle is an easement for drainage.
The land of which Tanlane is the registered proprietor is the land coloured light and dark green on the attached plan, as well as the land described as Lot 7 in DP 1065574 and the land coloured light blue and described as B6 on the plan to the north of Lot 7 and facing Newbridge Road.
The land described as Lot 2 in DP 602988 is owned by Flower Power ("Flower Power"). Immediately to the east is part of the land owned by Tanlane, presently zoned Private Recreation and, further east, presently zoned Public Recreation. Adjacent to the latter part of that land is a public road, Davy Robinson Drive.
Lot 310 in DP 1118048, the land coloured orange immediately to the west of the Moorebank land and the panhandle zoned Environmental Protection - Conservation ("the 7(C) land") was formerly owned by Boral Bricks Pty Limited ("Boral") but was dedicated to the Liverpool City Council ("the Council") and transferred on 19 January 2010.
Immediately to the west of the 7(C) land, on the land coloured pink, is a road, Brickmakers Drive, which leads in its northerly direction to Newbridge Road. Brickmakers Drive has been constructed but it is yet to be dedicated as a public road although it has been agreed between the Council and Boral that this will take place.
Lot 309 in DP 1118048 ("the 2A land"), which is shown on the plan as intersecting the northern portion of Lot 310 between the panhandle and Brickmakers Drive, is now owned by the Council. It was formerly owned by Boral but was dedicated and transferred to the Council on 23 January 2008. The balance of the land to the west of the panhandle, Lots 301 and 303 to 308 in DP 118048 and Lots 200-201 in DP 117280 (previously Lot 302 in DP 118048), is owned by Boral.
It was common ground between the parties that where the 2A land abuts the panhandle, the land on either side of the panhandle is some 6 metres higher than the panhandle itself.
B Development and access proposals for the Moorebank land and the Tanlane land
Because of the way the parties put their case, it is necessary to outline the history of the proposed development of the land and the respective proposals to enable them to obtain access from their properties to Newbridge Road.
(1) Developments from 2000 to 2006
Prior to the rezoning which resulted in the current zoning of the properties in the area, the Moorebank land was zoned as to part 1(a) Rural and as to part 7(a) Environmental Protection - Waterway. It was and remains undeveloped.
The Tanlane land was zoned 1(a) Rural. Under existing use rights that land has been used for extractive industry with some recycling of building materials and waste.
The Moorebank land and Tanlane land has access to the public road system via Newbridge Road. The Moorebank land has that access by use of the panhandle.
The Boral land was zoned as to part 7(c) Environmental Protection - Conservation and as to part 2(a) Residential.
From about 2000 there were discussions concerning the proposed redevelopment of the land owned by Boral, Moorebank, Tanlane and Flower Power. One of the issues raised was the construction of a service road providing access to Newbridge Road from any development undertaken on these lands.
In a report dated 25 February 2002, officers of the Council reported that the Boral Moorebank Structure Plan had been developed for the area. The report stated that some land, such as that owned by Moorebank (described in the report as Concrete Recyclers) and Tanlane (described in the report as Benedict Sands), warranted a long-term environmental planning strategy, given its history of use and location within the Georges River floodplain. Consistently with the then existing zoning, the Structure Plan showed part of the Boral land as zoned Residential. It described the use of the Tanlane and Moorebank land as Existing Waste and Recycling Uses/Open Space with a note "Other uses subject to detailed investigations".
That Structure Plan, subject to certain amendments which are immaterial for present purposes, was adopted by the Council on 25 February 2002.
On 29 May 2002 Moorebank and Tanlane entered into a deed, by which Moorebank agreed to grant Tanlane an easement over the panhandle of an area 12 metres wide, in a location to be specified by Tanlane but within an area hatched on a plan annexed to the deed. That easement was to permit the construction of a road bridge between the Boral land and the Tanlane land adjacent to the area which is now the 2A land. The deed gave Moorebank a right to terminate that agreement if the construction of a bridge over the servient tenement did not commence within five years. In those circumstances Tanlane was required to take steps to apply to extinguish the easement, if registered.
Moorebank sought to exercise its right to terminate the deed on 6 November 2007 on the ground that construction of the bridge had not commenced. Tanlane challenged Moorebank's entitlement to terminate the deed and in the alternative sought the grant of an easement under s 88K of the Act for the purpose of the construction and use of a bridge over the panhandle to enable access from the panhandle to Brickmakers Drive. In his judgment dated 15 December 2008, the primary judge dismissed Tanlane's claim so far as it challenged Moorebank's right to terminate the deed but stood over the claim under s 88K of the Act. We will deal with that judgment later to the extent necessary. There is no challenge in this appeal to any of the orders made by the primary judge in that judgment.
On 3 July 2003 the Roads and Transport Authority of NSW ("RTA") wrote to Mr Steglick, a Town Planner engaged by Tanlane, saying it would support a rezoning of the area that provided for the relocation of all existing frontage access from the southern side of Newbridge Road between Davy Robinson Drive and Governor Macquarie Road to a service road to be built as part of the redevelopment. That service road was to include a bridge over the panhandle in the area of what is now the 2A land so as to provide access from the land on the eastern side to Brickmakers Drive, via the service road, and then to Newbridge Road at Governor Macquarie Drive.
The RTA made its position clear in July 2004, when it wrote to the Council in respect of Draft Local Environmental Plan 1997 (Draft Amendment No 76) in the following terms:
"Previous correspondence between the RTA and Council outlined the need to remove existing access points along Newbridge Road in the event of redevelopment of land owned by Concrete Recyclers, Benedict Sands and Flower Power and the upgrading of the Newbridge Road/Governor Macquarie Drive Intersection. The intention of the proposed service road, shown in draft Liverpool 1999 Amendment No. 75, was to provide vehicular access for Concrete Recyclers, Benedict Sands and Flower Power once development of their lands occurred and existing access on Newbridge Road is removed."
On 9 July 2004 Local Environment Plan 1997 (Amendment No 75) was gazetted. The amendments related primarily to the development of the Boral land. It provided that Council must not grant consent to the development for the purpose of dual occupancy housing, dwelling houses or multiple dwellings unless arrangements were made for appropriate provision of a road from Nuwarra Road at New Brighton Golf Course to Newbridge Road at Governor Macquarie Drive.
On 23 September 2005 Amendment No 76 to the Liverpool Local Environmental Plan was gazetted. It permitted a materials recycling yard to be conducted on part of the Moorebank land. Following an application on behalf of Moorebank, on 19 December 2005 the Director-General of the Department of Planning, as delegate of the Minister for Planning, declared the proposal for a materials recycling facility be one to which Part 3A of the Environmental Planning and Assessment Act 1979 ("the EPA Act") applied for the purpose of s 75B of that Act. The effect put shortly was that the relevant approval entity for the purpose of any such development would be the Planning Assessment Commission, as delegate of the Minister, rather than the Council. Further, Parts 4 and 5 of the EPA Act, which relate to development and environmental assessment do not apply except to a limited extent in respect of an approval sought under Part 3A.
On 1 May 2006 Moorebank, in its capacity as registered owner, consented to the lodgement by Tanlane of a development application for the construction of a road bridge over that part of the panhandle within the area of the proposed easement. On 2 May 2006 Moorebank lodged an application with the Department of Planning for approval under Part 3A of the EPA of a materials recycling facility on the Moorebank land. Receipt of that application was acknowledged by the Department on 8 August 2006. That response also advised the Director-General's requirements as including that Moorebank demonstrate that suitable site access arrangements were in place prior to the lodgement of the draft Environmental Assessment.
(2) Access
To put the events which subsequently occurred in context, it is convenient to describe the alternative proposals providing access to and from Newbridge Road to the Tanlane and Moorebank land which were put forward by Tanlane and Moorebank.
The proposal put forward by Tanlane in May 2006 and the one in respect of which the easement was sought was that the land to the eastern side of the panhandle would have access to Brickmakers Drive via the 2A land and across a bridge spanning the panhandle at that point. As part of the proposal as originally envisaged, the bridge could have ramps which would enable trucks travelling to and from the Moorebank land to gain access to Brickmakers Drive which at its northern end would intersect with Newbridge Road. A truck travelling south from Newbridge Road and along Brickmakers Drive to the Moorebank land would turn left into the service road and down a ramp. The vehicle would then turn right under the bridge and onto the panhandle and travel down the panhandle to the Moorebank land. Vehicles travelling from the Moorebank land to Newbridge Road would travel along the panhandle to a point just south of the 2A land, turn left and travel up a ramp which would provide access to the service road and then proceed along that road to Brickmakers Drive, turn right and then proceed in a northerly direction to Newbridge Road.
One significant feature of that proposal was that the proposed ramps would need to traverse the 7(C) land which was zoned Environmental Protection - Conservation. This proposal was commonly referred to as the "Ramps proposal" or the "Option A proposal". For convenience we shall describe it as the "Ramps proposal".
An alternative proposal proffered by Moorebank was designed by Mr Lyle Marshall, an engineer engaged by Moorebank. The proposal, somewhat grandiloquently, was described as the "Marshall plan". It did not involve any bridge providing access to the Tanlane land. Instead, a truck travelling north from the Moorebank land would turn left on a roadway which would follow the slope of the land up to the 2A land where it abuts the panhandle so as to provide access by turning right onto Brickmakers Drive.
Under the Marshall plan trucks travelling from Newbridge Road to the Moorebank land would turn left from Brickmakers Drive onto the 2A land and then travel down the slope of the land to the panhandle, turn right and proceed south along the panhandle.
An advantage of the Marshall plan was that it did not involve any construction or use of the environmentally sensitive 7(C) land. Its disadvantages included that it would prevent access by a bridge and service road to Brickmakers Drive from the Tanlane land and other land east of the panhandle. They also included that it would not provide flood free access.
The following matters were common ground between the parties in relation to these two proposals.
(a) The Ramps proposal and the Marshall plan were mutually exclusive. If the bridge was built over the panhandle the Marshall plan could not be put into effect. Similarly, implementation of the Marshall plan would prevent construction of the bridge.
(b) It followed that implementation of the Marshall plan would deny to the land to the east of the panhandle, including the Tanlane land, access to Brickmakers Drive.
(c) If the bridge was built without ramps or if the bridge and the ramps were not of sufficient strength to accommodate the trucks proposed to be used in the Moorebank recycling business, Moorebank would be unable to carry on that use of its land. That was because although Newbridge Road would still be physically accessible from the panhandle, the position of the RTA was that access to Newbridge Road for the purposes of a materials recycling facility would only be permitted via Brickmakers Drive.
(3) May 2006 to December 2008
On 30 May 2006 Tanlane lodged a development application with Council seeking consent to construct a bridge on the 2A land. Although Moorebank had given consent to the lodgement of the development application, on 14 July 2006 the town planner engaged by it, Mr Neil Kennan, wrote to the Council expressing reservations in respect of the proposal. He asserted that the proposal was premature as the Tanlane land had not been rezoned and that in any event the proposed bridge did not connect to Brickmakers Drive. More importantly, he submitted that the proposal did not secure Moorebank access to Newbridge Road. He referred to a plan jointly commissioned by the appellant and respondent showing bolt-on ramps and which he stated provided for ingress to and egress from the Moorebank land. He summarised Moorebank's position in the following terms:
"In light of the above, we are of the opinion that the Council should not grant consent to the proposed incomplete access and should only consider a development application which not only provides for access to the Benedict Sands site but also caters for access to Brickmakers Drive and provides for access to the Moorebank Recyclers' land.
In order to achieve the above, it is our opinion that the applicant should be requested to amend the Application so that it provides for access to Brickmakers Drive and also provides for the future access to the Moorebank Recyclers' land. It will also be necessary for the applicant to gain owners consent from Boral for that amended application."
On 26 July 2006 the Council adopted Development Control Plan No 50. That indicated that the preferred method of access for properties to the east of the panhandle was by a road connecting to Brickmakers Drive, crossing the panhandle in the area suggested by the respondent and then travelling over the 2A land.
On 24 April 2007 the Council consented to the Tanlane development application. It stated that the consent would lapse on 24 April 2009 unless construction of the bridge had physically commenced at that time. There were two conditions of importance. They were as follows:
"7. Consent is not granted nor implied to any future usage of the road bridge as a private road that provides access to development that is not permissible within a Residential 2(a) zone.
"14. The bridge is to be designed and constructed such that it is able to accommodate the access ramps (Concrete Recyclers Access Option A) as designed in concept by Patterson Britton and Partners Pty Ltd."
The Patterson Britton and Partners Pty Ltd concept design was the concept design jointly commissioned by Moorebank and Tanlane to which we have referred in paras [25] [26] and [31] above.
The development consent was modified on 25 May 2007. The only modification of any significance was that Tanlane was required to provide detailed plans to the Council showing the road bridges full connection to Brickmakers Drive and demonstrating the ability of the connection to accommodate the traffic that was intended by Tanlane to access the bridge, prior to a construction certificate being issued.
Notwithstanding some uncertainty as to the extent to which the development consent had extended beyond 24 April 2009, no point was raised in respect of this question either in the proceedings before the primary judge or on appeal.
On 8 August 2007 Moorebank commenced Class 4 proceedings in the Land and Environment Court challenging the validity of the development consent.
As we indicated earlier Moorebank, purported to terminate the deed for the granting of an easement on 6 November 2007. Tanlane commenced proceedings challenging that termination on 6 February 2008.
On 11 June 2008 Tanlane entered into a voluntary planning agreement with the Council ("the VPA"). It will be necessary to refer to the VPA in detail when dealing with one of the grounds of appeal. It provided that if Council granted development consent to a subdivision of Tanlane's land into up to 225 residential lots, Tanlane would dedicate and transfer certain designated land to the Council and make what was described as a works contribution by carrying out certain works.
On 7 July 2008 the Department of Planning issued modified requirements of the Director-General for the Moorebank waste recycling project. Relevantly those amended requirements directed attention to two key issues. First, Moorebank was required to demonstrate that suitable arrangements had been made to secure access to the site, including written evidence of the relevant landowner's consent for the proposed site access works. Second, the Director-General requested details of the traffic volumes likely to be generated during construction and operation.
By its letter dated 1 August 2008, the RTA made clear that it was not prepared to permit Moorebank to have temporary access to Newbridge Road via the panhandle to service a proposed materials recycling plant. The letter so far as relevant was in the following terms:
"An assessment and review of the original 250,000 tonne and current Part 3A - 500,000 tonne recycle waste and product proposal has been undertaken. The assessment and review identifies concerns about the operation and safety of the proposed temporary left-in and left-out access arrangement within the fabric of the existing roadway. The proposal has the following noteworthy implications.
The 60m length within the auxiliary land will expose pedestrians to turning trucks thus creating an unacceptable potential pedestrian hazard on the southern side of Newbridge Road.
The design vehicle turning movements require more width to turn than the narrow property frontage/access way affords, the design vehicle swept path swings into the westbound through lane and therefore there is potential for the ladened and unladened recycle, waste and product trusts to cause conflict (e.g. crash) and/or interfere with westbound traffic flow efficiency.
The narrow width of the access way restrict simultaneous inbound and outbound truck movements. Exiting truck drivers' line of sight distance (or visibility) of oncoming vehicles would be restricted by inbound trucks. Outbound trucks waiting for a suitable gap in the traffic flow would impede inbound truck turning movements, potentially causing trucks to queue back into the kerbside through traffic lane and therefore cause a conflict and/or interference to westbound traffic flow efficiency.
Construction would significantly impact on existing utility services located in the footway and there is no adjacent space provided (e.g. footway) to relocate services.
Civil works for a footway to contain the services adjacent to the inbound and outbound auxiliary lane inside the adjoining property has the potential to have an unacceptable environmental impact on a listed threatened flora species and the functioning of the existing stormwater systems. Property acquisition would also be required which may not be agreed to by the respective owners.
The work required to address the issues and concerns above would require significant investment for a short-term solution.
There is alternative access planned in Liverpool City Council's DCP planning framework preferred by the RTA. The preferred road network is shown on each DCP plan with the Moorebank East DCP (Benedict Sand and Gravel) showing a collector street that provides an east-west road link from Brickmakers Drive on the Boral site, across Lot 6's access way and, then through Benedict Sands Site to Davy Robinson Drive. The local area planning provides access to the site via the planned road network hierarchy shown in Council's Development Control Plans.
Mindful of the abovementioned concerns and the knowledge of a preferred safer alternative the Roads and Traffic Authority would not support direct access between Newbridge Road and the proposed material recycling development."
On 29 August 2008 the Liverpool Local Environment Plan 2008 was gazetted. That part of the Tanlane land comprising Lot 7 in DP 1065574 was zoned Medium Density Residential. The Moorebank land continued to be zoned E2 Environmental Conservation but cl 11 of Sch 1 to the plan provided that that part of the Moorebank land being Lot 6 in DP 1065574 could be used with consent for the purpose of a resource recycling facility. However, it also stated that the clause was repealed from 1 September 2018.
On the same day Liverpool Council adopted a Development Control Plan for the area. It stated that one of its objectives was to ensure a clear relationship between accessibility and land use. In that regard it proposed a road link from Brickmakers Drive to Davy Robinson Drive, although it stated this was not intended as a shortcut from Newbridge Road. It provided that subdivision of the land the subject of the plan should incorporate a link road between Brickmakers Drive and Davy Robinson Drive and that flood free access via a road bridge to Brickmakers Drive should be provided prior to any subdivision of Lot 7 in DP 1065574. It also stated that direct road connection was to be provided from the road bridge through the residential area to the private open space. That area is that part of Tanlane's land zoned RE2 Private Recreation as depicted on the plan Marked 1 attached to this judgment. Figure 2 in the Development Control Plan identified the location of the road bridge in the vicinity of the 2A land where the easement was sought.
(4) The first judgment of the primary judge
The primary judge delivered his first judgment on 15 December 2008. He found that Moorebank had validly terminated the deed and dismissed the respondent's claim so far as it sought a declaration that the deed remained on foot. As there is no appeal from this order, there is no need to refer to his reasoning on this issue.
So far as the respondent's application for an s 88K easement was concerned, after considering the competing submissions of the parties, the primary judge reached a preliminary view that an easement was reasonably necessary. He stated that it was not inconsistent with the public interest and that he saw no reason why a court could not assess compensation. In particular he noted the appellant's submission that if the easement was granted the great probability was that Moorebank's land would be denied access to a public road in all practical senses. He said that this provided a reason why no final decision should be made until Moorebank's challenge in the Land and Environment Court to development consent had been determined. His ultimate conclusion on this issue was as follows:
"[118] I should note (this is not an order), that as the evidence stands at this stage, I would favour the grant of an easement under s 88K to the plaintiff to line up with the 2a land provided that there is the existing development consent or a subsequent substantial equivalent and the question of compensation is adequately resolved."
No party suggested that the primary judge was doing other than expressing a tentative view on this issue. No appeal has been brought from the judgment but equally no reliance was placed upon it for the purpose of the appeal.
(5) 2009 to 2012
On 23 July 2009 Lloyd J dismissed Moorebank's appeal against the grant of development consent to Tanlane: Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100. One of the issues raised was whether the proposed development (i.e. the construction of the bridge) would prevent Moorebank having access to Newbridge Road for its commercial purposes. In this regard Moorebank had submitted that the Council had failed to consider whether the bridge would harm Moorebank's access and had failed to consider that the design and structure of the road bridge was insufficient to allow access for the purpose of materials recycling, a permitted used of Moorebank's land. Lloyd J rejected these submissions reaching the following conclusion (at [50]):
"[50] I conclude from this evidence, therefore, that condition 45 of the development consent which requires the bridge to be designed in accordance with the loads prescribed in AS5100 would be sufficient to deal with the trucks and loads required for Moorebank's future use. Even if cl 1.2 of AS5100 allowed Council to modify the requirements of load prescriptions, I reject any suggestion that the Council had modified those requirements, merely by virtue of the stamped approved plans showing a design vehicle with a load capacity lower than the standard loads prescribed by AS5100. I also reject Moorebank's submission that condition 45 was ambiguous."
On 27 January 2009 the Council, as owner of the land, consented to the lodgement by Moorebank of an application under Part 3A of the EPA in respect of its proposed materials recycling yard. That consent was in the following terms:
"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."
Notwithstanding that it had given that consent, the Council, prompted by agitation from local residents, on 15 June 2011 passed a resolution that it do the following:
"That Council:
1. Writes to the State Government immediately to recommend refusal for this development as the proposed use of this site is incompatible with the current and planned residential and recreational uses of the area.
2. Writes to Moorebank Recyclers clearly stating that approval will not be granted for access over Part Lot 310 and Lot 309 in DP 118048 for waste management/recycling purposes.
3. Makes submissions to the Director General which summarises and comments on the community concerns and such submissions should note that Council does not support the application."
Following that resolution the Council wrote to Moorebank on 14 July 2011 in the following terms:
"I write in regard to your company's proposal for a Resource and Waste Project on the abovementioned property. It is noted that the Department of Planning has issued modified Director-General's requirements for the project.
A key issue that is noted in the letter from the Department of Planning dated 7 July 2008 regarding the Director-General's requirements is relating to access.
Council considered this matter at its meeting of 15 June 2011, and resolved that Council does not support the application, and that approval for access over Part Lot 310 and Lot 309 in DP 1118048 will not be granted for the proposed project."
It was suggested in argument that the change in the Council's attitude was inspired by opposition from Tanlane and Boral to the Moorebank proposal. However, it was not suggested this was a relevant factor to take into account in deciding whether or not to exercise any discretion to grant the easement.
On 12 October 2011 the Department of Planning sent an email to Moorebank representatives in the following terms:
"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."
It was clear from this email that the consent to the lodgement of the application given in January 2009 was not sufficient for the Department's requirements to constitute a consent from any relevant landowners to access for the purpose of undertaking any works.
On 18 October 2011 the Department sent a further 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 that date that substantial progress had been made in finalising the EA. This was consistent with the transitional arrangements adopted as a result of the repeal of Part 3A of the EPA Act.
A further hearing of the proceedings took place before the primary judge on 8 to 10 August 2011 and his Honour delivered his second judgment on 4 November 2011.
Prior to dealing with that second judgment, it is convenient to set out s 88K in full:
"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."
(6) The second judgment of the primary judge
The primary judge set out the pre-conditions to the making of an order under s 88K contained in subs (1) and (2) of that section and recognised that he had a residual discretion as to whether or not to grant an easement.
He referred to his first judgment and stated that the principal problem for the grant of an easement at that time was whether Moorebank's loaded trucks would have been able to safely access the road bridge over the panhandle and make their way to Brickmakers Drive.
He referred to the lodgement by Moorebank of the Part 3A application and the proposed access by way of the Marshall plan. He referred to Moorebank's submission that the easement was not reasonably necessary because of the detriment it would suffer if the easement were granted, namely, the inability to use the land for recycling purposes.
The primary judge then expressed the view that the question of detriment to the servient tenement was not a matter which fell for consideration in considering whether the easement was reasonably necessary for use or development of the applicant's land as required by s 88K(1), but was rather a discretionary matter which was required to be taken into account if the pre-conditions to the grant of the easement in s 88K(1) and (2) were made out.
The primary judge rejected the contention that Tanlane had not demonstrated that the easement was reasonably necessary, as it had not shown that the grant of the easement increased the value of its land or even what was its highest and best use. The primary judge held that these matters were irrelevant. He held that if the proposed use of the land was reasonable as against the possible alternatives and the proposed easement was reasonably necessary for that use, then Tanlane had satisfied the requirements in s 88K(1).
The primary judge held that the proposed use of the land was not inconsistent with the public interest, so that the pre-condition in s 88K(2)(a) was made out.
The primary judge then turned to the question of compensation. Following Preston J in Rainbowforce Pty Limited v Skyton Holdings Limited [2010] NSWLEC 2; (2010) 171 LGERA 288 at [111], he stated that compensation ordinarily has three elements:
(a) the diminished market value of the affected land;
(b) associated costs that would be caused to the owner of the affected land; and
(c) an assessment of compensation for insecurity and loss of amenities, such as loss of peace and quiet.
It should be noted that on the third day of the hearing of the appeal, senior counsel for Moorebank stated that the only loss identified before the trial judge was the loss of value of the land. In making this concession senior counsel was not abandoning the other heads of compensation ordered by the primary judge or the additional compensation to which Moorebank asserted it was entitled in Ground 19(a) of the Notice of Appeal.
His Honour stated that it was not uncommon in cases dealing with valuation of land that a Court has to make assumptions as to the capacity of the land to be rezoned and that the determination of whether the potential servient tenement can be adequately compensated is not "stymied by ... the assessment process".
His Honour concluded that the difficulties in assessing compensation could be overcome by making what he described as a conditional order. The approach he adopted was summarised in the following terms:
"[67] I will make a conditional order below which removes the effect of most of the uncertainties. If the local authorities kybosh the ramps, etc (preventing access to the Moorebank Land), then the easement will be extinguished and compensation refunded. Thus, compensation can be assessed on the basis that the ramp proposal, discussed in detail under E, is viable."
The primary judge then proceeded, as part of the exercise of his discretion, to consider the claim that the Moorebank land would be sterilised. He noted that the zoning permitted use of the land for recycling purposes and Moorebank's submissions that the construction of the road bridge would prevent that occurring, because having regard to the Council letter of 14 July 2011 (see par [49] above) it was clear that Council would not consent to ramps being built for the purpose of use by its proposed trucks. His Honour also noted Tanlane's submission that the bridge with bolt-on ramps was the approved means of access and that the Marshall plan would deny landholders to the east of the panhandle access to Newbridge Road, unless they could obtain access directly on to that road or from Davy Robinson Drive. He noted Tanlane's submission in reliance on Mr Mitchell, an expert town planner engaged by Tanlane, that the development of the Tanlane land could not occur without the link to Brickmakers Drive and that Moorebank's most likely prospect of obtaining access to Newbridge Road was through implementation of the ramps proposal.
The primary judge stated that he did not have sufficient material to make a judgment as to who was right in their predictions as to what planning authorities might do, but that access for Moorebank by way of the ramps proposal was "not hopeless". The primary judge also noted Moorebank's submission that the VPA entered into by Tanlane required Tanlane to dedicate the bridge to Council and that as Tanlane would not be the owner of the land on which the bridge was constructed, it would not be able to do so. He seemed to accept this submission but stated that it did not have great significance because it simply meant that "some more work ha[d] to be done on adjusting the terms of the consent and the development concept to remove anomalies".
The primary judge noted there were very significant problems with Moorebank having access over the bridge. The first was that there was some doubt as to whether the bridge was "sufficiently strong to take 48 tonne laden trucks" and, second, whether approval to construct the ramps would be obtained. In relation to the first of these matters he referred to the judgment of Lloyd J in Moorebank Recyclers Pty Limited v Liverpool Council, supra, and stated that although it did not give rise to any issue estoppel he could proceed, having regard to the findings of Lloyd J, on the basis that the bridge would support Moorebank's trucks.
His Honour also considered that whilst it was correct that the Council had indicated in its letter of 14 July 2011 that it would not grant access to the 2A land for the purpose of Moorebank's recycling proposal, this was not conclusive. He stated that the Council could change its mind, Tanlane could make an application under s 88K for the grant of an easement over the 2A land or there could be an administrative law review. He ultimately concluded, however, that the sterilisation of the Moorebank land was a "real possibility". He came to the view that this could be largely overcome by a conditional order. He stated that conclusion as follows:
"[142] Thus I should grant an easement on terms that Tanlane undertakes to the Court to have the easement extinguished, if, despite the best endeavours of both parties (ie there is to be no undermining directly or indirectly of each other's efforts), after all appeals to the Land and Environment Court (or appeals therefrom) are exhausted, Moorebank cannot obtain access for 48 tonne trucks from its land across the proposed easement to Brickmakers Drive.
[143] Should the easement be extinguished, Moorebank is to undertake to the Court to return the compensation with simple interest at, say, 8%.
[144] It follows that, if the 3A Application succeeds, it cannot be fully implemented unless this order is set aside or the easement granted by this order is later extinguished."
His Honour directed the parties to bring in short minutes to give effect to those conclusions.
The primary judge then turned to the question of compensation, by reference to the three elements referred to in Rainbowforce, supra, at [111] (see par [62] above).
His Honour first referred to the evidence of a valuer engaged by Tanlane, Mr Wotton, who assessed the quantum of compensation arising from the imposition of the proposed easement at less than $10,000.
The primary judge described this as a "very rubbery figure". He noted that it was based on an assumption that Moorebank's land was worth about $5 million or $24.35 per square metre and that the affected land comprised 120.89 square metres, its value thus being $2,944.23. He noted that Mr Wotton discounted this value by 30 percent as an easement only was being taken and thereby arrived at a compensation figure of $883.27 to which he added an allowance for "the blot on title", to bring the figure to $10,000.
His Honour noted the contrary evidence of Moorebank's valuer, Mr Dempsey, who said the land should be valued at its highest and best use, namely, as a recycling facility. He noted that Mr Dempsey's evidence was that if used in that way the land had a value of $25,249,118, whereas if this use was denied the land would only be worth $6,159,000. In those circumstances Mr Dempsey assessed Moorebank's loss at $19,100,000.
His Honour then noted that Mr Dempsey's figure did not relate to the value of "the land being taken out of Moorebank's ownership" but the consequential loss in value of Moorebank's remaining land.
In those circumstances his Honour assessed what he described as the value of the land taken at $1,500. His reasoning was as follows:
"[152] So far as the value of the land taken is concerned. I think it appropriate to take Mr Dempsey's $30 per square metre, multiply by Mr Wotton's 120.89 and discount 30%. This gives a figure of $1088. What Mr Wotton refers to as the 'blot on the title' will be dealt with as injurious affectation under (c). I will thus fix land value at $1,500."
His Honour then addressed "associated costs" caused to Moorebank as owner. He stated that the grant of the proposed easement would render "useless" costs expended by Moorebank on possible reasonable future use of the subject land. He also referred to the fact that Moorebank was paying rates and other outgoings on land which it could not use productively. His Honour, with respect arbitrarily, assessed compensation for these costs in an amount of $175,000.
Finally, his Honour dealt with what he described as "injurious affectation", which he said was the same factor as the blot on the title referred to by Mr Wotton. He stated that as Moorebank, would in his view likely be able to use its land for its highest and best use, this factor was minimal. He concluded that Mr Wotton's estimate was a little low and ultimately fixed on a figure of $25,000.
The primary judge fixed Moorebank's overall compensation at $201,500. However, he recognised the arbitrary nature of the $175,000 awarded for costs and as compensation for insecurity and loss of amenities. He stated that should Moorebank elect to do so, it could have an inquiry before an Associate Judge as to the appropriate order for these heads of compensation.
(7) The third judgment of the primary judge
His Honour gave a third judgment on 21 February 2012 following a hearing on 7 February 2012.
In this judgment the primary judge in effect settled the orders to be made as a result of the findings in his second judgment. He said that the statement in his reasons that Moorebank should be entitled to elect to a hearing on the question of compensation before an Associate Judge was limited to what he had described as "other factors" (in respect of which he had indicated $175,000 compensation was appropriate) and did not extend to compensation for land value or injurious affectation, which he said he had already assessed.
He stated that in respect of the inquiry on what were described as the "other factors" his expectation was that Moorebank would recover costs on that inquiry if the actual finding exceeded his estimation of $175,000, but that it was a matter ultimately in the discretion of the Associate Judge who heard it.
In the result the primary judge made orders in the form suggested by the respondent, subject to certain variations. Regrettably these orders do not appear to have been taken out. However, taking into account the trial judge's amendment to the draft short minutes, the orders made by him are as set out in a Schedule to this judgment.
(8) The Notice of Appeal
Because of the complexity of the issues raised, it is appropriate to set out the grounds of appeal in full:
"1. His Honour erred in failing to take into account the question of detriment to, or the burden on, the appellant, in considering the issue of reasonable necessity under s.88K(1) of the Conveyancing Act 1919 (NSW) (second judgment, [36]).
2. His Honour erred in failing to find that the imposition of the easement sought by the respondent would effectively sterilise the Moorebank Land for the purposes of materials recycling (second judgment, [48], [139]), and that the proposed easement would therefore fail the test of reasonable necessity.
3. His Honour erred in holding that that the following matters were irrelevant to the question of reasonable necessity:
(a) the only reason for the proposed easement is that the respondent wished to change the use of its land;
(b) there was no evidence that the changed use makes the Tanlane Land more valuable; and
(c) there was no evidence as to the highest and best use of the Tanlane Land
(second judgment, [38]).
4. His Honour erred in failing to find that the matters identified in ground 3 above, together with the absence of detail as to the nature of the proposed development on the Tanlane Land, and the fact that no approval had been given in respect of any such proposed development, had the consequence that the requirement of reasonable necessity was not satisfied.
5. His Honour erred in finding that the proposed easement was reasonably necessary in circumstances where the Tanlane Land could not be lawfully developed for residential use (given that the respondent could not lawfully dedicate the part of the pan handle over which the easement has been imposed, as required by the provisions of the VPA) (second judgment, [99]).
6. His Honour erred in finding that the proposed easement was reasonably necessary, having regard to the uncertainty of all relevant approvals or consents being obtained, and other events that needed to take place, in order to effectuate the ramp proposal.
In the present case although Tanlane was successful in obtaining an easement (at least subject to compensation being assessed) it succeeded only on the Notice of Contention and not in its defence of the reasoning of the Court below. Although this may not normally deprive a successful respondent of its costs, in the circumstances of the present case particularly having regard to the legislative policy underpinning s 88K(5) in our opinion there should be no order as to the costs of the appeal.
K Orders
In the circumstances the orders we make are as follows:
1 Set aside orders 1, 2, 4, 5 and 7 of the orders made by the primary judge.
2 Release the respondent from the undertaking referred to in par [8] of the orders of the primary judge.
3 Direct the matter to be remitted to a judge or an associate judge of the Equity Division of the Court to be dealt with in accordance with pars [256]-[260] of this judgment.
4 Each party pay its costs of the appeal.
**********
Schedule 1 (PDF)
Attachment 1 (PDF)
Attachment 2 (PDF)
Decision last updated: 18 June 2013
309
5
5