Newton Developments Pty Ltd v Penrith City Council

[2020] NSWLEC 1444

Land and Environment Court

New South Wales

Medium Neutral Citation:

Newton Developments Pty Ltd v Penrith City Council [2020] NSWLEC 1444

Hearing dates:

Conciliation conference on 3 July 2020

Date of orders:

22 September 2020

Decision date:

22 September 2020

Jurisdiction:

Class 3

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) Pursuant to section 40 of the Land and Environment Court Act 1979 (NSW), the Court imposes a 2.5m wide easement for the drainage of water adjoining the entirety of the western boundary of Lot 6 in Deposited Plan 28248 pursuant to the instrument under section 88B of the Conveyancing Act 1919 (NSW) annexed herewith and marked “A”.

(3)   Within 28 days of the making of these orders the Applicant must register the Positive Covenant in the form annexed herewith and marked “B”.

(4)   The Applicant must pay the Respondent compensation for the imposition of the easement pursuant to this agreement in the amount of $35,000.

(5)   The Applicant must pay the Respondent’s legal costs of these proceedings fixed in the amount of $6,000 (including GST) on or within 28 days from the date that this agreement takes effect.

(6)   The Applicant must pay the Respondent’s costs for obtaining an expert valuation report for the purposes of these proceedings fixed in the amount of $2,200 (including GST) on or within 28 days from the date that this agreement takes effect.

(7)   The Applicant must pay to the Respondent the fees mandated by the Local Government Act for the grant of an easement over the Respondent’s property at Lot 6 in Deposited Plan 28248 fixed in the amount of $2,244 (including GST).

Catchwords:

APPEAL – easement for drainage of water – conciliation conference – agreement between the parties – orders

Legislation Cited:

Conveyancing Act 1919

Land and Environment Court Act 1979

Local Government Act 1993

Category:

Principal judgment

Parties:

Newton Developments Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
G Wiblin (Solicitor) (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Joseph Grassi + Associates (Applicant)
Penrith City Council (Respondent)

File Number(s):

2020/114916

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal is brought pursuant to s 40 of the Land and Environment Court Act 1979 (LEC Act). It concerns an application for an order imposing a 2.5m wide easement for the drainage of water adjoining the entirety of the western boundary of Lot 6 in DP 28248 pursuant to the instrument under s 88B of the Conveyancing Act 1919 annexed hereto and marked Annexure “A”.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 3 July 2020. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and the grant of the drainage easement pursuant to a positive covenant in the terms of the instrument under Annexures “A” and “B”.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 40 of the LEC Act. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 40 of the Land and Environment Court Act 1979 (NSW), the Court imposes a 2.5m wide easement for the drainage of water adjoining the entirety of the western boundary of Lot 6 in Deposited Plan 28248 pursuant to the instrument under section 88B of the Conveyancing Act 1919 (NSW) annexed herewith and marked “A”.

3. Within 28 days of the making of these orders the Applicant must register the Positive Covenant in the form annexed herewith and marked “B”.

4. The Applicant must pay the Respondent compensation for the imposition of the easement pursuant to this agreement in the amount of $35,000.

5. The Applicant must pay the Respondent’s legal costs of these proceedings fixed in the amount of $6,000 (including GST) on or within 28 days from the date that this agreement takes effect.

6. The Applicant must pay the Respondent’s costs for obtaining an expert valuation report for the purposes of these proceedings fixed in the amount of $2,200 (including GST) on or within 28 days from the date that this agreement takes effect.

7. The Applicant must pay to the Respondent the fees mandated by the Local Government Act for the grant of an easement over the Respondent’s property at Lot 6 in Deposited Plan 28248 fixed in the amount of $2,244 (including GST).

………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (1118981, pdf)

Annexure B (891025, pdf)

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Decision last updated: 23 September 2020