Random Primer Pty Ltd v The Owners Corporation Strata Plan 533

[2024] NSWSC 919

Supreme Court

New South Wales

Medium Neutral Citation:

Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 [2024] NSWSC 919

Hearing dates:

3-5 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Equity - Real Property List

Before:

Williams J

Decision:

See Orders at [88].

Catchwords:

LAND LAW – Easements – Right of Way – Full and free right for every person entitled to an estate or interest in the dominant tenement, and every person authorised by them, to go, pass and repass at all times and for all purposes, with or without vehicles, to and from the dominant tenement - Whether the defendant (servient owner) is infringing the right of the plaintiff (dominant owner) to enjoy the easement according to its terms and free of substantial interference by the servient owner, by refusing to consent to the plaintiff making a development application in respect of the dominant tenement – Where defendant’s consent is required because the proposed development also relates to the right of way – Whether the plaintiff’s use of the right of way following the proposed development would be excessive – Whether the plaintiff’s proposed development would unreasonably interfere with the defendant’s reasonable use of the servient tenement – Held: Defendant, in its capacity as the owner of the servient tenement, ordered to provide written consent to the making of the development application by the plaintiff

Legislation Cited:

Conveyancing Act 1919 (NSW) s 181A, sch 8 pt 1

Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 8.7, 8.10, 8.14, div 8.3, pt 4

Environmental Planning and Assessment Regulation 2021 (NSW) ss 23, 29

Land and Environment Court Act 1979 (NSW) ss 17, 34, 39

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245

Berryman v Sonnenschein [2008] NSWSC 213

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364

Finlayson v Campbell (1997) 8 BPR 15,703

Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74

Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264

Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

Timpar Nominees Pty Ltd v Archer [2001] WASCA 430

Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45

117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504

Texts Cited:

M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press)

Category:

Principal judgment

Parties:

Random Primer Pty Ltd (ACN 642 883 707) (Plaintiff)
The Owners Corporation Strata Plan 533 (Defendant)

Representation:

Counsel:
Mr P Tomasetti SC with Mr J Y Li (Plaintiff)
Mr J Doyle with Mr C Honnery (Defendant)

Solicitors:
CKSD Lawyers (Plaintiff)
Connor & Co Lawyers (Defendant)

File Number(s):

2023/423449

Publication restriction:

N/A

Judgment

Introduction

1. The plaintiff in these proceedings seeks an order requiring the defendant, as the owner of land burdened by a right of way benefitting the plaintiff’s land, to consent to the making of a development application by the plaintiff in respect of the proposed development of a residential apartment building on the plaintiff’s land. For all of the reasons explained below, I have determined that the plaintiff is entitled to the order sought. In coming to that conclusion, I have considered all aspects of the parties’ written and oral submissions, irrespective of whether they are expressly referred to in these reasons.

Salient facts

2. The plaintiff is the registered proprietor of the land at 186 Pacific Highway, Roseville (No. 186).

3. The plaintiff’s land shares a common boundary with the defendant’s land at 184 Pacific Highway, Roseville (No. 184).

4. Currently, a two-storey building containing two residential dwellings, and a separate structure containing a double garage and carport, are erected on No. 186. A residential apartment building containing 14 dwellings with garaging is erected on No. 184. The defendant is the owners corporation of the strata scheme in respect of that apartment building.

5. No. 184 and No. 186 were created by the registration of DP501158 in 1963. No. 184 was Lot 2 and No. 186 was Lot 1 in that deposited plan. By memorandum of transfer J305349, which was also registered in 1963, the owners of the land at that time transferred Lot 2 and retained Lot 1 for themselves:

“RESERVING nevertheless to the transferors as appurtenant to the residue of the land in Certificate of Title Volume 5071 Folio 26 (being now Lot 1 in the said Deposited Plan 501158) a right of carriageway over that part of Lot 2 in the said Deposited Plan delineated ‘Right-of-way” (15ft wide)’.”

6. It is common ground that, by operation of s 181A and Part 1 of Schedule 8 to the Conveyancing Act 1919 (NSW), that easement confers on the owners of Lot 1 (No. 186):

“Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement of any such part thereof.”

7. The location of Lot 1 (No. 186) and Lot 2 (No. 184) relative to the Pacific Highway, and the location of the right of way over Lot 2 (No. 184) is shown in DP501158:

8. A driveway has been constructed on the part of No. 184 (Lot 2) that is subject to the right of way. That driveway runs from the Pacific Highway along the side of the residential apartment building that was constructed on No. 184 (Lot 2) after the subdivision that was effected by the registration of DP501158. Three of the garages in that building face directly onto that driveway. A further five garages face directly onto a driveway that wraps around the rear of the building (furthest from the Pacific Highway), leading to a further driveway that has been constructed on the other side of the residential apartment building on No. 184 along or adjacent to its boundary with No. 182 Pacific Highway. Neither the wrap around driveway nor the driveway along or adjacent to the border with No. 182 are the subject of the easement which is in issue in these proceedings.

9. On 9 November 2022, the plaintiff lodged a development application in respect of No. 186. The development application was assigned no. 466/22.

10. Some of the documents comprising the development application were subsequently revised and reissued in response to various matters raised by the consent authority, Ku-ring-gai Council. As things presently stand, the development application comprises:

1. portal lodgement report;

2. letter from Visionata Architects dated 12 October 2022 enclosing the development application;

3. geotechnical investigation report dated 18 August 2021;

4. survey plans dated 24 January 2022;

5. revised architectural plans dated 19 May 2023;

6. submission requesting variation to development standards in respect of the minimum lot area and width dated October 2022;

7. submission requesting variation to development standards in respect of the maximum building height dated May 2023;

8. photomontage;

9. Design Verification Statement pursuant to s 29 of the Environmental Planning and Assessment Regulation 2021 (NSW) dated 30 May 2023;

10. BASIX stamped drawings dated 2 June 2023;

11. updated NatHERS and BASIX Assessment dated 2 June 2023;

12. structural statement dated 13 June 2023;

13. civil engineering drawings dated 17 August 2022together with revised civil engineering drawings dated 31 May 2023;

14. consultant’s letter dated 28 January 2022 concerning issues raised by the Council in relation to water management;

15. Sydney Water letter dated 6 October 2022 concerning approval of wastewater design;

16. plumber’s inspection report dated 1 February 2022 concerning existing stormwater drainage easement and accompanying photographs;

17. Solar Access Assessment dated 18 August 2022;

18. shadow diagrams dated 18 August 2022;

19. Acoustic Assessment Report dated 30 May 2023;

20. revised landscape plans dated 25 May 2023;

21. letter from landscape architect dated 25 May 2023 responding to issues raised by the Council;

22. site waste minimisation and management report dated 18 August 2022;

23. Statement of Environmental Effects dated October 2022;

24. Statement of Environmental Effects dated May 2023;

25. Construction Traffic Management Plan (Revision 7) dated 30 May 2023;

26. revised Access Review Report dated 22 May 2023; and

27. Transport Assessment Report prepared by Arc Traffic & Transport dated 26 August 2022 (the Arc Transport Report).

11. The development application proposes the demolition of the existing buildings on No. 186 and the construction of a new residential apartment building containing eight dwellings and a lower ground floor car parking area with eleven car parking spaces. It is proposed that vehicular access between the Pacific Highway and the car parking area will be via the existing driveway on No. 184 that is subject to the right of way in favour of No. 186, and that the driveway will be widened by the construction of the additional section described below.

12. The Arc Transport Report states that there will be no change to the existing driveway. However, the revised architectural plans dated 19 May 2023 provide for the construction on No. 186 of a new bitumen roadway abutting the existing driveway for a length of approximately nine metres leading up to the intersection of the driveway with the Pacific Highway, trimmed by a rollover kerb to the footpath. The plans indicate that this will require the removal of some sandstone edging that is presently within the existing easement. This proposed new roadway, which is approximately one metre wide, is also depicted in the revised landscape plans dated 25 May 2023. It was referred to by the parties to these proceedings as the “passing bay”, and I will adopt that terminology. It will have the effect of widening the existing driveway, by extending it onto the plaintiff’s land, at and near the intersection between the driveway and the Pacific Highway.

13. The development application does not include any report updating the Arc Transport Report to take into account the proposed passing bay. The Development Assessment Report prepared by Ku-ring-gai Council in respect of the development application states that the passing bay will need to be the subject of a “reciprocal” right of way to be created burdening No. 186 for the benefit of No. 184. I infer that the Council assessed a “reciprocal” right of way as necessary because, as the defendant submitted, it is implicit in the inclusion of the passing bay in the most recent iterations of the plans that traffic on the driveway will be managed in a way that requires drivers of vehicles exiting No. 184 or No. 186 to the Pacific Highway to cross over the boundary onto No. 186 into the passing bay, from which position they will turn onto the Pacific Highway.

14. Each of the parties adduced evidence from expert transport planners in these proceedings. It is common ground between those expert witnesses that the design of the passing bay should facilitate the passing of two light vehicles simultaneously entering onto the driveway from the Pacific Highway and exiting the driveway to the Pacific Highway. Ms Marshall-Evans – the expert witness called by the defendant – is of the opinion that the current proposed design of the passing bay does not accommodate this without the removal of garden beds, letter boxes, hedges, established gardens and walls on the driveway, but the removal of those structures does not form part of the development application. It is common ground between the experts that those structures associated with No. 184 encroach on the existing right of way, meaning that its full width is not currently available for its full length. Mr Brodie – the expert witness called by the plaintiff – is of the opinion that any future driveway design should be afforded the full width of that right of way.

15. It is implicit in the analysis undertaken by the expert witnesses that the existing driveway does not accommodate the passing of two light vehicles simultaneously entering onto the driveway from the Pacific Highway and exiting the driveway to the Pacific Highway. Indeed, Mr Jude Pavlovic, the owner of an apartment within No. 184, gave evidence confirming this. Mr Pavlovic deposed that he has experienced and observed instances in which a vehicle exiting onto the Pacific Highway comes into conflict with a vehicle seeking to enter onto the driveway from the Pacific Highway at the same time. There is no evidence of any collisions resulting from such conflicts to date. Mr Pavlovic asserted that this is a “significant issue” during the AM and PM peak periods. Mr Pavlovic also gave evidence of the need for cars travelling in opposite directions on the driveway to give way to one another by one car reversing back down the driveway to allow the other car to pass, as there is inadequate space for two cars to pass one another.

16. The Arc Transport Report estimated that the number of vehicle trips generated by No. 186 would be “essentially unchanged” by the proposed development. Ms Marshall-Evans and Mr Brodie have formed a different opinion. It is common ground between them that the existing building at No. 186 generates 1 vehicle trip in both the AM and PM peak periods, and that the proposed development will generate an increase of 3.3 vehicle trips in both the AM and PM peak periods (resulting in a total of 4.3 vehicle trips being generated by No. 186 in the AM and PM peak periods).

17. It is also common ground between Ms Marshall-Evans and Mr Brodie that the pedestrian sight distance is less than required by the relevant Australian Standard, that the proposed development should include a design for the access from No. 186 to the Pacific Highway that complies with that Australian Standard, and that safety along the length of the driveway should be enhanced by recommendations of a traffic management plan. The non-compliance with the pedestrian sight distance requirement is an existing problem, caused by the width of the existing driveway at its intersection with the Pacific Highway and the obstruction created by hedges on No. 184 and No. 186 abutting both sides of the driveway at that point. The proposed passing bay will require the removal of the hedge on the No. 186 side of the driveway, but the development application does not include any proposal for the removal of the hedge on the No. 184 side.

18. It is also common ground between Ms Marshall-Evans and Mr Brodie that there should be a pedestrian pathway separate from the driveway that is available for use by all pedestrians to access No. 186 and No. 184 from the Pacific Highway, and vice versa.

19. Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) provides for development assessment and consent.

20. Section 4.12(1) provides:

“(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.”

21. The Environmental Planning and Assessment Regulation 2021 (the EPA Regulation) provides:

“23   Persons who may make development applications

(1)   A development application may be made by –

(a)   the owner of the land to which the development application relates; or

(b)   another person, with the written consent of the owner of the land.

(2)   The consent of the owner of the land is not required for a development application made by a public authority or for public notification development if the applicant complies with subsections (3) and (4).

(3)   The applicant must give notice of the application –

(a)   to the owner of the land before the application is made, or

(b)   by publishing, no later than 14 days after the application is made, a notice in a newspaper circulating in the area in which the development will be carried out.

(4)   If the applicant gives notice under subsection 3(b), the applicant must also, no later than 14 days after the application is made –

(a)   if the applicant is a public authority – publish the notice on the public authority’s website, or

(b)   for public notification development – arrange for the consent authority to publish the notice on the NSW planning portal.”

…”

22. It is common ground between the parties that clause 23(1)(b) of the EPA Regulation concerns consent to the making of a development application, as opposed to consent to the proposed development that is the subject of the development application.

23. In Part 4 of the EPA Act, s 4.16 relevantly provides:

“(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.”

24. As I have already mentioned, the plaintiff lodged the development application that is the subject of these proceedings on the New South Wales planning portal on 9 November 2022. At that time, the plaintiff took the view that the development application related only to No. 186, and that it was not necessary for the owner of No. 184 to consent to the making of the development application under clause 23(1)(b) of the EPA Regulation.

25. In the course of its consideration of the development application, the Council informed the plaintiff that it considered that the development application also relates to No. 184. The plaintiff then wrote to the defendant on 15 September 2023 seeking its consent to the making of the development application 466/22.

26. It is common ground between the parties that, contrary to the view initially taken by the plaintiff, s 4.12 of the EPA Act and clause 23(1) of the EPA Regulation require the defendant’s written consent to the making of development application 466/22. I proceed on that basis.

27. The defendant contends that, in addition to obtaining the defendant’s consent to make the development application, the plaintiff was required by clause 23(3) of the EPA Regulation to notify the defendant of the development application before the application was made in accordance with clause 23(3)(a), or to publish a notice in accordance with clause 23(3)(b). The defendant complains that the plaintiff did neither of these things, and did not seek the defendant’s consent to the making of the development application at any time prior to 15 September 2023.

28. I reject the defendant’s contention that clause 23(3) of the EPA Regulation required the plaintiff to notify the defendant of this development application before it was made or to publish a notice in compliance with clause 23(3)(b) within 14 days after making the development application. I accept the plaintiff’s submission that clauses 23(3) and (4) apply only to development applications in respect of which the owner of the land is not required to consent to the making of the development application by reason of clause 23(2). Reading clause 23 as a whole, it is clear that clauses 23(3) and (4) relate to notification of development applications made by a public authority or in respect of public notification development. In those cases, clause 23(2) absolves the applicant from obtaining the consent of the owners to whose land the development application relates, but only if the applicant notifies those owners of the application either in accordance with clause 23(3)(a) or in accordance with clause 23(3)(b) and clause 23(4). In all other cases, including the present case, the making of the development application requires the consent of the owner of land to which the development application relates. It is not sufficient for the applicant to merely notify the owner of the development application.

24. The defendant did not accede to the plaintiff’s request for its consent to the making of the development application.

25. Identification of the land to which a development application relates, and the owners whose written consent to the making of the application is required by clause 23(1) of the EPA Regulation, is part of the process of a consent authority’s determination of the development application. A development application that is not accompanied by the written consent of the owner of land to which the development application relates is incomplete and ineffective to engage the consent authority’s power to grant consent to the development application. That is, owner’s consent is an essential prerequisite to the exercise of that power by the consent authority. [1]

    1. Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 (Hinkler Ave) at [101]-[131] (especially at [111] and [114]) (Preston CJ of LEC); Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [85]-[98] (Preston CJ of LEC, Leeming JA agreeing).

26. On 18 September 2023, Kur-ring-gai Council refused consent for the proposed development for reasons that included that the defendant’s consent to the making of the development application had not been provided. The Council’s letter to the plaintiff notifying it of that determination stated:

“Owner’s consent has not been provided in accordance with Section 23(1) of the Environmental Planning & Assessment Regulation 2021.

Particulars:

(a) Section 23(1) of the Environmental Planning and Assessment Regulation 2021 requires the written consent of the owner of the land to which the development application relates to.

(b)   The subject site benefits from vehicular access over a Right of Way (ROW) located on the adjoining property at 184 Pacific Highway, Roseville. Vehicular access for the proposed development is proposed via the existing ROW driveway.

(c)   The ROW is not wide enough to cater for the increased number of vehicles from the proposed development in accordance with Australian Standard AS2890.1. The proposed development includes the widening of the ROW through the provision of a passing bay on the subject site abutting the ROW. Creation of a reciprocal ROW for residents of 184 Pacific Highway to use the passing bay is also proposed.

(d) Therefore, in accordance with Section 23(1) of the Environmental Planning and Assessment Regulation 2021, the development application also relates to the adjoining land of 184 Pacific Highway and written consent from the owners of 184 Pacific Highway is required.

(e)   Consent from the owner of 184 Pacific Highway has not been provided.”

32. Further reasons for the Council’s refusal of consent related to issues concerning stormwater management, the Building Sustainability Index, landscape design, visual privacy impacts for No. 184 and No. 188 Pacific Highway, and car parking and vehicular access.

33. Division 8.3 of the EPA Act provides for appeals to the Land and Environment Court from decisions of consent authorities under Part 4 of the EPA Act.

34. Section 8.7 relevantly provides:

“(1)    An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.”

35. Section 8.10(1)(a) relevantly provides that an appeal may only be made within six months after the date on which the decision appealed from is notified.

36. In the present case, the Council notified the plaintiff of its refusal of development consent on 22 September 2023. On 15 March 2024, the plaintiff commenced appeal proceedings in the Land and Environment Court of New South Wales (the LEC) pursuant to s 8.7 of the EPA Act. Those proceedings fall within the Class 1 jurisdiction conferred on the LEC by s 17 of the Land and Environment Court Act 1979 (NSW) (the LEC Act). It is convenient to refer to them as the Class 1 proceedings.

37. In the Class 1 proceedings, the LEC has all of the functions and discretions which the Ku-ring-gai Council had under s 4.16 of the EPA Act to determine the development application by granting consent unconditionally, granting consent subject to conditions, or refusing consent. The “appeal” in respect of the Council’s refusal of development consent is by way of rehearing. Fresh evidence may be adduced. [2]

    2. LEC Act, s 39(3); EPA Act, s 8.14; Al Maha at [74]-[76] (Preston CJ of LEC, Leeming JA agreeing).

38. Compliance with clause 23(1) of the EPA Regulation is a jurisdictional prerequisite that must be satisfied in order to engage the power of the LEC to determine the development application by granting consent, either in accordance with any agreement reached by the parties after a conciliation conference under s 34 of the LEC Act, or following a contested hearing. However, as the plaintiff submitted and the defendant accepted, substantial compliance with clause 23(1) may be achieved by the provision of the defendant’s written consent to the making of the development application at any time prior to the determination of the development application by the LEC. [3]

    3. Al Maha at [95]-[98] (Preston CJ of LEC, Leeming JA agreeing); Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364 (Botany Bay v Remath) at [5]-[7] (Stein JA, Handley JA agreeing).

The proceedings in this Court

39. On 22 November 2023, the plaintiff commenced the present proceedings in this Court seeking an order that the defendant, in its capacity as the owner of the servient land at No. 184, provide its written consent to the making of development application 466/22. [4]

    4. A claim for damages included in the summons filed by the plaintiff is no longer pressed.

40. The plaintiff invokes the jurisdiction of this Court to enforce its rights and ancillary rights conferred by the easement.

41. The principles applicable to the exercise of that jurisdiction may be summarised as follows:

1. the dominant tenement owner is entitled to use a right of way in a manner that is authorised by the terms of the easement, without unreasonably interfering with the rights of the servient tenement owner or with the use of the right of way by any other dominant owner with an easement over the same land. Even where the grant of the right of way is expressed to be for all purposes, it must not be used so as to unreasonably interfere with the lawful use of the land by the servient tenement owner and any others having rights over the land; [5]

   5. Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 (Lowe) at [101]-[107] (Sackville AJA, Meagher and White JJA agreeing); Berryman v Sonnenschein [2008] NSWSC 213 (Berryman) at [19] (Einstein J).

2. the dominant owner has a right to enjoy the right of way free from substantial interference by the servient owner, together with such ancillary rights as are reasonably necessary for the dominant owner’s exercise or enjoyment of the rights expressly granted; [6]

   6. Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 (Westfield) at [23] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Lowe at [96] (Sackville AJA, Meagher and White JJA agreeing).

3. whether interference by a dominant or servient owner with the rights of the other constitutes substantial interference is a question of degree which requires a common sense judgment in light of the circumstances of each case; [7]

   7. Finlayson v Campbell (1997) 8 BPR 15,703 (Finlayson) at 15,706-15,707 (Young J); Lowe at [91]-[95] (Sackville AJA, Meagher and White JJA agreeing) and the authorities there referred to.

4. the dominant owner’s ancillary rights include the right to obtain the written consent of the servient owner to the dominant owner making a development application where the servient owner’s consent is legally necessary in order for the application to be made by the dominant owner, and refusal of such consent would infringe the dominant owner’s right to enjoy the easement according to its terms and free of substantial interference by the servient owner; [8]

   8. Lowe at [97]-[98] (Sackville AJA, Meagher and White JJA agreeing); see also 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 (117 York Street) at 521-522 (Hodgson CJ in Equity); Berryman at [16] (Einstein J).

5. in New South Wales, the servient owner’s consent is legally necessary for the dominant tenement owner to make a development application that relates to the servient tenement; [9]

   9. EPA Act, s 4.12; EPA Regulation, cl 23.

6. a servient owner’s refusal of its consent that is legally necessary for the dominant owner to make a development application will infringe the dominant owner’s right to enjoy the easement where, relevantly, the dominant owner’s increased use of the right of way that would result from the proposed development: [10]

   10. Lowe at [97]-[100] (Sackville AJA, Meagher and White JJA agreeing), referring to Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 (Sertari).

1. would not be excessive, such that it is not authorised by the terms of the easement, properly construed; and

2. would not unreasonably interfere with the use of the servient tenement by the servient tenement owner or by other persons with a right of way over the same land;

7. thus, the concept of reasonable use applies to both the dominant and servient owners. As Barrett JA said in Hare v van Brugge:[11]

“Each of them – the servient owner and the dominant owner – must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights. The necessary restraint does not, however, require one party to desist altogether from exercising some part of the totality of the party's rights so as to leave the field entirely clear for the other party. …

… All that obligations of reasonable use compel is that there should not be use inconsistent with the reasonable needs of the other party also to use the servient tenement.”

8. questions of whether a dominant owner’s proposed development would unreasonably interfere with the use of the servient tenement by the servient owner are not to be determined simply on the basis that the proposed development is necessary to allow the dominant owner to fully exploit its right of way, regardless of the extent to which the development will interfere with the servient owner’s rights. The impact on the dominant owner if the proposed development cannot proceed is a relevant consideration on the question of reasonableness, but it is not decisive; [12] and

9. the servient owner’s consent to the dominant owner making the development application does not preclude the servient owner from opposing the granting of development consent by the relevant consent authority.

   11. (2013) 84 NSWLR 41; [2013] NSWCA 74 (Hare) at [25]-[26] (Macfarlan JA and Tobias AJA agreeing).

   12. Lowe at [127] (Sackville AJA, Meagher and White JJA agreeing).

42. If this Court grants the mandatory injunction sought by the plaintiff requiring the defendant to provide its written consent to the making of development application 466/22, then, for reasons that are explained in more detail below, the LEC’s jurisdiction to determine the development application in the Class 1 proceedings will include jurisdiction to determine the development application by granting consent, either unconditionally or subject to conditions. [13] Of course, it will remain open to the LEC to determine the development application by refusing consent.

    13. See [85]-[87] below.

Issues

43. As the Court of Appeal held in Lowe, the ancillary right of the dominant owner to require the servient owner to consent to the making of a development application raises two separate, but related, questions: [14]

“(i)     Is the proposed use of the carriageway by the dominant owner excessive, such that it is not authorised by the terms of the easement and is therefore unlawful?

(ii)   Does the proposed development by the dominant owner unreasonably interfere with the reasonable use of the servient tenement by the servient owner (or by persons entitled to a right of carriageway over the same land)?”

14. Lowe at [100] (Sackville AJA, Meagher and White JJA agreeing).

44. If either of those questions are answered affirmatively in the present case, then the defendant will not be infringing the plaintiff’s rights in respect of the easement by refusing to consent to the making of the development application.

Outline of the parties’ submissions

45. The plaintiff submitted that the use of the driveway that will result from the proposed development is not excessive, noting that the easement expressly confers on the plaintiff as the dominant owner a full and free right to go, pass, and repass over the driveway to and from the dominant tenement, at all times and for all purposes. The plaintiff further submitted that the proposed development does not unreasonably interfere with the reasonable use of the servient tenement by the defendant, emphasising that safety issues relating to the exit of vehicles from the Pacific Highway onto the driveway, and the entry of vehicles from the driveway onto the Pacific Highway, are matters for the consent authority and are not relevant to questions of unreasonable interference. The plaintiff submitted that the defendant’s refusal to provide its written consent to the making of the development application is therefore substantially interfering with the plaintiff’s enjoyment of its rights under the easement. The plaintiff accepted that the defendant’s provision of written consent for the making of the development application would not constrain the defendant in any way from opposing the granting of development consent on such grounds as the defendant may choose to mount its opposition to the proposed development.

46. The defendant submitted that the Court should not grant the mandatory injunction requiring it to provide written consent to the making of the development application for four reasons.

47. First, the defendant submitted that the development application is materially inconsistent, incorrect, misleading and confusing. In oral submissions, counsel for the defendant went so far as to describe the development application as “incoherent”. It was submitted that the development application fails to describe the proposed development sufficiently for the Court to understand what is the substance of the development application that the Court is being asked to order the defendant to consent to.

48. Somewhat inconsistently with that submission, the defendant also submitted as part of its designated first reason that the proposed development is unworkable because the passing bay proposed to be constructed on the plaintiff’s land is of insufficient width to allow two cars to pass one another. It was submitted that the defendant is entitled to refuse to consent to the making of a development application that is “deficient” or “won’t work”.

49. The plaintiff submitted that inconsistencies between some of the documents comprising the development application were the result of the revision of certain plans and other documents to address issues that had been raised by the Council during its assessment of the application, that this was a common occurrence in development application processes, and that the inconsistencies identified by the defendant did not entitle it to refuse to consent to the making of the development application. The plaintiff further submitted that the defendant is not entitled to refuse to consent to the making of the development application on the basis that it disagrees with certain contents of the documents comprising the development application, which the defendant characterises as inaccurate or misleading. The plaintiff submitted that the defendant is entitled to raise all of those matters in opposition to the granting of development consent, after it consents to the making of the development application.

50. The second reason advanced by the defendant was that the development application is for a development that would increase traffic over the driveway to an extent that would constitute excessive user and/or an unreasonable interference with the defendant’s rights in respect of the driveway on its land. The defendant submitted that this was demonstrated not by the experts’ assessment of the increase in the number of vehicle trips over the driveway that will be generated by the proposed development, but by the very fact that the plaintiff itself has recognised that the increased traffic will require a widening of the driveway where it joins the Pacific Highway, and has therefore incorporated the passing bay into the development application.

51. The third reason advanced by the defendant was that the proposed development would unreasonably interfere with its own reasonable use of the servient tenement by managing the increased vehicular traffic on the driveway that is the subject of the easement in a way that requires all vehicles travelling along the driveway towards the Pacific Highway (including vehicles driven by occupants of and visitors to No. 184) to leave the driveway on No. 184 (the servient tenement) and pass onto the proposed passing bay on No. 186. It was submitted that the terms of the easement do not contemplate that the occupants of and visitors to the servient tenement would be precluded from using any part of the driveway on the servient tenement. It was submitted that the defendant is therefore not infringing the plaintiff’s rights under the easement by declining to consent to the making of the development application in respect of a development that would preclude the defendant from using that part of the driveway on its land for vehicles travelling in the direction of the Pacific Highway.

52. The defendant also submitted that the proposed development would unreasonably interfere with its own reasonable use of the servient tenement by requiring pedestrians passing between the apartment building on No. 184 and the Pacific Highway to use a pedestrian pathway to be constructed on No. 186, rather than using the existing driveway on No. 184. Moreover, the defendant complained that the development application does not explain how pedestrians using that proposed pathway would access No. 184 from the pathway. The revised landscape plans show landscaping along the edge of the pathway that the defendant submitted would effectively preclude pedestrians from accessing No. 184 from the proposed pathway. It was submitted that the terms of the easement do not contemplate that the occupants of and visitors to the defendant’s land would be precluded from using any part of the driveway on the servient tenement. It was submitted that the defendant is therefore not infringing the plaintiff’s rights under the easement by declining to consent to the making of the development application in respect of a development that would preclude the pedestrian residents of and visitors to No. 184 from using the existing driveway on the defendant’s land to access the Pacific Highway.

53. The defendant emphasised that both the proposed passing bay and the proposed pedestrian pathway will require new, enduring property rights to be conveyed from the plaintiff by way of easements over those parts of its land for the benefit of the defendant’s land. The defendant submitted that no such easements can be created or registered without its consent, and that it cannot be compelled to consent. It was submitted that the question whether the defendant will consent to those proposed easements must be resolved before the defendant could be ordered to consent to the making of the development application. Counsel for the defendant submitted that the development application process would otherwise be “moot” because, ultimately, the defendant would not consent to the transfer of the easements for its benefit that are required to implement the proposed development.

45. The defendant submitted in opening that, insofar as the proposed easements concern the passing bay, resolution of the question whether the defendant will consent to the proposed easements requires this Court to resolve the issues raised by the defendant about the proposed passing bay design, which it contends presents an obvious and clear safety risk. The defendant further submitted that, as a matter of discretion, this Court should not order the defendant to consent to the making of the development application that raises such safety risks. In closing submissions, however, counsel for the defendant expressly abandoned any suggestion that this Court should adjudicate issues of public safety in these proceedings. In my opinion, that concession was correctly made. [15]

    15. Sertari at [23] (Handley AJA, Tobias and McColl JJA agreeing).

46. As I have already mentioned, the plaintiff submitted that the proposed development would not give rise to excessive user or unreasonable interference by the plaintiff with the defendant’s use of the servient tenement. The plaintiff accepted that the defendant cannot be compelled to accept the transfer of new easements benefitting No. 184 over those parts of No. 186 that are shown in the revised architectural and landscape plans as the passing bay and pedestrian pathway. The plaintiff submitted that uncertainty about whether the defendant will accept those proposed transfers does not entitle the defendant to refuse to consent to the making of the development application, and does not constitute a reason for this Court declining to order the defendant to provide that consent if it is otherwise satisfied that such an order should be made. The plaintiff accepted that the defendant is entitled to raise any objections to the proposed new easements in opposition to the granting of development consent. The plaintiff also accepted that one potential outcome of the development application is that the LEC, exercising the powers of the consent authority in the Class 1 proceedings, might grant development consent conditional upon the defendant consenting to the transfer of the proposed easements and the registration of those easements. If the defendant then refused to consent, it would be incumbent on the plaintiff to apply to modify that condition if it wished to proceed with the development for which consent had been granted.

47. The fourth reason advanced by the defendant was that the development application is incomplete and ineffective because it was made without the defendant’s consent that is required by clause 23(1) of the EPA Regulation. It was submitted that the plaintiff therefore lacks the status of an “applicant”, and that there has been no “determination” of any development application, within the meaning of s 8.7 of the EPA Act. It follows, in the defendant’s submission, that the Class 1 proceedings were not “lawfully commenced”. Whilst the defendant accepted that the plaintiff’s development application would become effective if the defendant were now to provide its consent to the making of the application, and that this would confer on the plaintiff the status of an “applicant” within the meaning of s 8.7 of the EPA Act, the defendant submitted that the plaintiff then would need to commence fresh Class 1 proceedings. The defendant submitted that the plaintiff was out of time to do so because more than six months has passed since the date on which the plaintiff was notified of the Council’s refusal of development consent. Counsel for the defendant suggested that, if the defendant now provided its consent to the making of the development application, that would “in some way revive” the decision made by the Council to refuse development consent, so that there would be a determination from which the plaintiff could appeal under s 8.7 of the EPA Act. However, it was submitted that this “revival” would occur retrospectively, with the consequence that the six month limitation period under s 8.10 of the EPA Act commenced to run on 22 September 2023 and has already expired. It was submitted that this problem renders the present proceedings futile because, if this Court were to order the defendant to provide written consent to the making of the development application, the plaintiff would be time-barred from commencing fresh Class 1 proceedings appealing against the Council’s refusal of consent for the proposed development. It is implicit in these submissions that the defendant contends that the existing Class 1 proceedings must be dismissed by the LEC for want of jurisdiction.

48. In response to those submissions of the defendant, the plaintiff relied on the judgments of the Court of Appeal in Botany Bay v Remath and Al Maha.

49. This is a convenient point at which to record that the plaintiff objected to the evidence of Mr Pavlovic, and the expert evidence of Ms Marshall-Evans, on the grounds of relevance. The plaintiff nevertheless adduced Mr Brodie’s expert evidence responding to Ms Marshall-Evans’ report, and relied on the joint report of the two experts. The evidence to which the plaintiff objected was admitted subject to relevance. As will become apparent below, the evidence of Mr Pavlovic, Ms Marshall-Evans and Mr Brodie has been relevant to delineating between existing public road safety issues on the one hand, and questions of whether the proposed development would result in excessive use of the easement or unreasonable interference with the defendant’s rights on the other hand. That distinction has been relevant to the disposition of many of the defendant’s grounds of opposition to the relief sought by the plaintiff in these proceedings in accordance with the applicable principles summarised at [42] above.

Consideration and determination

59. It is convenient to structure my consideration of the issues according to the four reasons advanced by the defendant for opposing the plaintiff’s claim for relief, starting with the second and third grounds of opposition which are directly relevant to the issues to be determined as articulated by the Court of Appeal in Lowe. [16]

    16. See [44]-[45] above.

60. As to the second ground,[17] I accept the plaintiff’s submission that the starting point for considering questions of alleged excessive use by a dominant owner, or unreasonable interference by a dominant owner with the servient owner’s use of the servient tenement, is the rights conferred by the easement, properly construed.

    17. See [51] above.

61. The easement is to be construed in accordance with the language of the easement itself, without reference to extrinsic evidence of the kind that might be relevant to the construction of a contract, but having regard to the physical features of the dominant and servient tenements. [18] In the present case, the easement confers “full and free right … to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement of any such part thereof”. Those very wide words are not to be read down by reference to the purpose for which the dominant tenement was used at the date of the grant of the easement. [19]

    18. Westfield at [35]-[45](Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) ; Hare at [16]-[18] (Barrett JA, Macfarlan and Tobias JJA agreeing); Lowe at [87]-[90] (Sackville AJA, Meagher and White JJA agreeing).

    19. Ibid; see also Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 at [37] (Kennedy J, Wheeler and Pidgeon JJ agreeing).

62. It was submitted on behalf of the defendant that, having regard to the configuration of the dominant and servient parcels of land as at the date of the grant of the easement, which has not changed, the easement should not be construed as excluding the servient owner from using the area of its land over which the easement was granted. The plaintiff did not submit otherwise.

63. As referred to at [42] above, the requirement to avoid substantial interference applies to both the dominant and servient owners, requiring each of them to exercise some restraint. The question whether or not particular conduct of one constitutes unreasonable interference with the rights of the other requires a common sense judgment in all the circumstances of the case.

64. I reject the defendant’s submission that the incorporation of the proposed passing bay into the plaintiff’s development application demonstrates that the proposed development will generate an increased level of traffic using the driveway that will constitute excessive user or unreasonable interference by the plaintiff with the defendant’s rights in respect of No. 184. The revised architectural plans included in the development application show that the passing bay does not extend along the whole of the length of the driveway. It is to be constructed on the defendant’s land adjacent to the existing driveway for a distance of only nine metres over that part of the driveway closest to its intersection with the Pacific Highway. I infer from this that the object of the passing bay is not to facilitate the use of the whole of the driveway by the existing traffic together with the 3.3 additional vehicles from No. 186 that Ms Marshall-Evans and Mr Brodie estimate will use the driveway in the AM and PM peak periods if the proposed development proceeds. Rather, I infer that the object of the passing bay is to address existing public road safety issues that arise when a vehicle seeking to turn into the driveway from the Pacific Highway needs to wait stationary on the Pacific Highway to give way to a vehicle that is simultaneously seeking to exit from the driveway onto the Pacific Highway, as described in Mr Pavlovic’s evidence. Those public road safety issues arise from the existing width of the driveway, rather than the level of use of the driveway. The evidence in these proceedings does not establish that the instances of conflict between vehicles exiting and entering the driveway to and from the Pacific Highway would be likely to increase by the generation of an additional 3.3 vehicle movements from No. 186 in the AM and PM peak periods. That would depend inter alia on whether the estimated additional 3.3 vehicle movements were all trips in the same direction in each of the AM and PM peak periods. For those reasons, and having regard to the very wide terms of the easement granted to the plaintiff, the incorporation of the passing bay into the design of the proposed development application says nothing about whether those additional 3.3 vehicle movements in the AM and PM peak periods will result in excessive user or unreasonable interference with the defendant’s rights in respect of No. 184. As the plaintiff submitted, the public road safety issues raised by the defendant are matters for the consent authority in determining the development application, and are not matters for this Court in determining the present proceedings. [20]

    20. Sertari at [23] (Handley AJA, Tobias and McColl JJA agreeing).

65. Counsel for the defendant expressly disavowed any suggestion that the Court should determine whether or not the increase of 3.3 vehicle movements in the AM peak and in the PM peak, which the parties’ experts agree would be generated by the proposed development (resulting in No. 186 generating a total of 4.3 vehicle trips in the AM and PM peak periods), would constitute excessive user or a substantial interference with the defendant’s rights as the servient owner.

66. As to the defendant’s third ground of opposition,[21] I do not accept that the proposal that the defendant will have rights to use part of the plaintiff’s land for the purpose of vehicular and pedestrian access between No. 184 and the Pacific Highway per se entitles the defendant to refuse to consent to the plaintiff making the development application. The defendant submitted that the present case is analogous to Lowe, in which the Court of Appeal held that the owner of land to which the development application related was entitled to refuse consent to the making of the development application. I do not consider that Lowe is relevantly analogous to the present case. As the plaintiff submitted, the respondent’s proposed development in Lowe would have interfered with the appellant’s rights as servient owner of parts of the land to which the respondent’s development application related, and also with the appellant’s rights as the dominant owner under an easement in respect of other parts of the land to which the development application related. The Court of Appeal’s decision in Lowe turned on the facts of that particular case. The task of the Court in the present case is to address the questions articulated by the Court of the Appeal to the facts concerning development application 466/22. [22]

    21. See [52]-[55] above.

    22. See [44] above.

67. The question that arises from the proposed passing bay in the present case is whether it would constitute an unreasonable interference with the defendant’s rights as the servient owner for vehicles exiting No. 184 onto the Pacific Highway to be required to use part of No. 186 in order to make way for vehicles entering from the Pacific Highway and travelling to No. 184 or No. 186. My common sense judgment in all the circumstances of this case is that this would not amount to unreasonable interference. Indeed, in the absence of any evidence that the proposed development would increase instances of conflict between entering and exiting vehicles, the proposal may amelioriate the existing public road safety issues discussed at [65] above. Whether the proposal has this effect, and whether it ameliorates those issues sufficiently and in a manner that complies with relevant Australian Standards, are matters for the consent authority. However, the evidence adduced in these proceedings does not establish that a requirement for vehicular traffic emanating from No. 184 to use the passing pay in one direction of travel would unreasonably interfere with the defendant’s use of the servient tenement.

68. The question that arises from the proposed pedestrian pathway is whether it would constitute an unreasonable interference with the defendant’s rights by requiring pedestrians travelling to and from No. 184 to use the proposed pathway on No. 186, rather than using the existing driveway on No. 184. My common sense judgment in all the circumstances of this case is that this would not constitute unreasonable interference. The availability of the pathway must improve safety for pedestrians compared to the existing scenario in which pedestrians share the driveway with vehicles. I reject the defendant’s submission that the landscape design will effectively preclude pedestrians from No. 184 using the pathway. The revised landscape plans included in the development application show a hedge running along the length of the pathway, which effectively requires pedestrians to enter onto and exit from the pathway via a gravel path that joins the driveway almost immediately opposite one of the entries into the existing residential apartment building on No. 184. Thus, the proposed hedge controls the manner in which pedestrians travelling to and from No. 184 will use the pathway, but does not preclude them from using the pathway.

69. I accept that the defendant cannot be compelled to accept a transfer and registration of new easements that would grant enduring legal rights for the benefit of No. 184 to use the proposed passing pay and pedestrian pathway. All that is in issue in the present proceedings is whether the defendant should be compelled to consent to the making of the development application. If development consent is granted by the LEC in the Class 1 proceedings on conditions that require the registration of such new easements, and if the defendant maintains its present resistance to accepting the benefit of such easements, then that may have consequences of the kind outlined in the plaintiff’s submissions referred to at [56] above. I reject the defendant’s submission that the development application process will necessarily be rendered “moot” if it is not prepared to accept a transfer of new easements relating to the passing bay and pathway.

70. For all of the reasons at [61] to [70] above, the evidence adduced in these proceedings does not establish that the proposed development would result in excessive use of the easement by the plaintiff dominant owner, or would result in unreasonable interference by the dominant owner with the defendant servient owner’s use of No. 184.

71. It is convenient to return to the defendant’s first ground of opposition,[23] in support of which counsel for the defendant made lengthy submissions articulating numerous overlapping complaints about alleged inconsistencies, inaccuracies, and misleading or confusing elements of the development application. The substance of those complaints may be summarised as follows:

    23. See [48]-[49] above.

1. the description of vehicular access in the ARC Transport Report, and the plans depicted in Figures 2 and 3 of that report, do not provide for the passing bay and do not assess compliance of the design incorporating the passing bay with the relevant Australian Standards;

2. the width of the passing bay is inadequate to allow two light vehicles to pass simultaneously over the driveway as expanded by the passing bay, and that gives rise to uncertainty as to whether or not this problem will be solved by “losing further area within the development site” or by “significant changes to … structures within the way and … structures outside of the way but within the defendant’s land”;

3. the statement in the Arc Transport Report that the vehicle trips generated by No. 186 would be “essentially unchanged” by the proposed development, which the defendant submitted is inaccurate because it is contrary to the opinion of Ms Marshall-Evans and Mr Brodie that the proposed development will generate an increase of 3.3 vehicle trips in both the AM and PM peak periods; [24]

4. the statement in the Arc Transport Report that the development proposal includes a “new shared path between the main entry foyer and Pacific Highway allowing for safe pedestrian movements” is inconsistent with the revised landscape plans issued on 25 May 2023, which the defendant submitted shows that the pedestrian pathway to be constructed on No. 186 leading from the Pacific Highway to the entry foyer of the proposed new residential apartment building is separated from No. 184 by a hedge running along the length of the pathway; and

5. the development application includes a Statement of Environmental Effects dated October 2022 and a further Statement of Environmental Effects dated May 2023, which creates inconsistency and confusion because it is not clear whether one supersedes the other.

   24. See [17] above.

72. As to (1) and (2) above, it is tolerably clear from reading the development application as a whole that the design of the proposed development has evolved since the ARC Transport Report was issued on 26 August 2022 to include the passing bay shown in the revised architectural plans issued on 19 May 2023 and the revised landscape plans issued on 25 May 2023. I therefore reject the submission that the absence of any reference to the proposed passing bay in the ARC Transport Report is a material inconsistency or inaccuracy, or that the development application is misleading or confusing by reason of the evolution that is apparent from a comparison of the ARC Transport Report and the revised architectural plans. As I have already observed, it is clear from the defendant’s submissions concerning the alleged inadequacy of the passing bay that it is in no doubt that the development application is for a proposed development that includes the passing bay. [25]

    25. See [49] above.

73. As the plaintiff submitted, it is for the consent authority to assess the impact of the proposed passing bay on safety issues generated by vehicles entering from and exiting to the Pacific Highway. These issues are generated by the existing driveway, as I have explained at [16] above. It is for the consent authority to assess whether or to what extent they may be exacerbated by any increased vehicular movements on the driveway resulting from the proposed development, the adequacy or inadequacy of the proposed passing bay to address those issues, and any conditions that might be imposed on development consent (if granted) to address any inadequacies found by the consent authority. [26]

    26. See Sertari at [23] (Handley AJA, McColl and Tobias JJA agreeing).

72. As the plaintiff submitted, it is not to the point that the expert witnesses called by both parties in these proceedings have opined that the passing bay is inadequate, or that its design is less than optimum. [27] The LEC, exercising the functions of the consent authority, will be required by s 4.15 of the EPA Act to consider the likely impacts of the proposed development and the suitability of the site for the proposed development, including the issues to which I have referred immediately above. The LEC will do so by reference to such evidence as may be adduced in the Class 1 proceedings. The defendant’s complaints about the fact that the development application does not include a revised transport report addressing those issues, and its contentions that the passing bay is inadequate, are matters that it can propound in opposition to the development application in the Class 1 proceedings. The plaintiff accepted that the defendant would be entitled to participate in the Class 1 proceedings in order to ventilate its objections to the proposed development, and the defendant made no submission to the contrary.

    27. See [15]-[19] above.

73. Those reasons are sufficient to dispose of the defendant’s submission that it is entitled to refuse to consent to the making of a development application that is “deficient” or “won’t work”. [28] That is merely the defendant’s opinion about a public road safety issue which is for the consent authority to consider in the process of determining the development application.

    28. See [49] above.

74. For those reasons, applying the principles that I have summarised at [42] above, the matters raised by the defendant in (1) and (2) above are not matters that entitle the defendant to refuse to consent to the plaintiff making the development application in respect of a proposed development that it has not been established will generate excessive use of the easement burdening the defendant’s land or result in substantial interference with the defendant’s use of its own land. [29]

    29. See [42] above; see also Sertari at [23] (Handley AJA, Tobias and McColl JJA agreeing).

75. As to (3) above, the statement in the Arc Transport Report that the vehicle trips generated by No. 186 would be “essentially unchanged” by the proposed development, is in the nature of an opinion or estimate. As the defendant submitted, that opinion or estimate was informed, in part, by the Arc Transport Report treating the three garages at No. 184 that face directly onto the driveway as the only garages at No. 184 from which vehicles use the driveway. The expert witnesses called by the parties in these proceedings have formed a contrary opinion that the proposed development will generate an increase in the use of the driveway by 3.3 vehicle trips in the AM and PM peak periods. That opinion is informed by the expert witnesses having regard to the five garages at No. 184 that face onto the driveway at the rear of the building, which is connected to the driveway in issue in these proceedings that leads to the Pacific Highway. The experts agreed that the transport analysis should be undertaken on the basis that eight garages at No. 184 (not three) use that driveway. Contrary to the defendant’s submissions, I consider that the question whether to include in the analysis the five garages at the rear of No. 184 that have access to the driveways on both sides of the building is a matter about which experts might reasonably differ.

76. The defendant submitted that the statement in the Arc Transport Report was material, and that it would “count against” the defendant’s objections to the proposed development on the ground that it would increase traffic. However, the consent authority is not bound by that statement. Nor will it be bound by any alternative opinion put forward by the plaintiff or by the defendant or any other objector. As I have already said, the LEC, exercising the functions of the consent authority, will be required by s 4.15 of the EPA Act to consider the likely impacts of the proposed development and the suitability of the site for the proposed development, and will do so by reference to such evidence as may be adduced in the Class 1 proceedings. Refusal by the defendant servient owner to consent to the plaintiff making this development application, which will increase the use of the easement to a level that has not been shown to be excessive or to constitute substantial interference with the defendant’s rights, on the basis that the defendant disagrees with opinions that have been expressed in reports submitted by the plaintiff as part of the development application, is an infringement of the plaintiff’s rights to enjoy the easement according to its very wide terms free of substantial interference by the defendant. If the defendant maintains its opposition to development consent being granted, it will be entitled to put the contrary expert opinions on which it relies before the LEC in opposition to the development proposal during the Class 1 proceedings.

77. As to (4) above, I do not consider that there is any inconsistency between the Arc Transport Report and the revised landscape plans in relation to the pedestrian pathway. As I have already explained, the revised landscape plans depict a hedge along the length of the pathway that, together with a gravel path that connects the pathway and the existing driveway, will control the route of pedestrians between No. 184 and the pathway. The revised landscape plans are not inconsistent with the pathway being used by residents of No. 184, and the description of the pathway as a shared pathway in the Arc Transport Report is not inconsistent with the revised landscape plans. Any complaints that the defendant may have about the route that pedestrians traveling to and from No. 184 must take via the gravel path in order to use the pathway may be addressed to the consent authority. Such complaints do not entitle the defendant to withhold consent for the plaintiff to make the development application for this proposed development, which has not been established in these proceedings to result in excessive use of the easement burdening the defendant’s land, or substantial interference with the defendant’s use of the servient tenement.

78. As to (5) above, I reject the defendant’s submission that the inclusion of the October 2022 Statement of Environmental Effects and the May 2023 Statement of Environmental Effects in the development application creates any inconsistency, or that the development application is misleading or confusing by reason of both documents having been included. A cursory review of the two documents confirms that the October 2022 document has been superseded by the May 2023 document, which refers to the most recent iteration of the architectural and landscape plans that were issued in May 2023. By way of example only, section 4 of the October 2022 document states that the existing driveway that is the subject of the easement is to be utilised for vehicular access between the proposed residential apartment building and the Pacific Highway. Section 4 of the May 2023 document states that the existing driveway “with widening located within the development site” is to be utilised for that purpose. The widening is plainly a reference to the passing bay that has been incorporated in the May 2023 architectural and landscape plans, as referred to at [73] above. The principles summarised at [42] above do not entitle the defendant to refuse to consent to the plaintiff making this development application on the basis that the development application includes two Statement of Environmental Effects documents, one of which obviously supersedes the other. [30]

    30. See [42] above; see also Sertari at [23] (Handley AJA, Tobias and McColl JJA agreeing).

79. For all of those reasons, the defendant’s five complaints about the development application, whether considered individually or as a whole, do not entitle the defendant servient owner to refuse to consent to the plaintiff dominant owner making the development application.

80. I reject the defendant’s submission that it is “reasonable” for the defendant to refuse to consent to the making of the development application on basis that the Arc Transport Report includes superseded plans that do not show the passing bay, has “the wrong number of garages in it” and engages “reasoning about the trip generation [that] is patently wrong”. I repeat my observations at [73] to [77] above concerning the Arc Transport Report. For the reasons there explained, I reject the submission that the report is “wrong” in relation to the number of garages referred to, or in its trip generation analysis. Contrary to the defendant’s submissions, the development application, considered as a whole, describes the proposed development sufficiently for the defendant and for the Court to understand what is the development application for which the defendant is asked to provide its consent to under clause 23(1) of the EPA Regulation. In circumstances where it has not been established that the proposed development will result in excessive use of the easement or substantial interference by the plaintiff dominant owner with the defendant’s use of the servient tenement, the defendant is infringing the plaintiff’s rights under the easement by refusing to consent to the plaintiff making the development application. The test is not one of “reasonableness” of the servient owner’s adverse reaction to the contents of the development application.

81. I also reject the defendant’s submission that this Court should decline to exercise its discretion to order the defendant to consent to the making of the development application “that it doesn’t want to consent to because it’s wrong and misleading”. For all of the reasons I have explained in relation to the defendant’s five complaints, the development application, understood as a whole, is neither “wrong” nor “misleading”. Nor is the development application “incoherent”, as the defendant had earlier submitted. The development application merely raises issues that are the subject of differing expert opinions that have been expressed in the Arc Transport Report and in the evidence of Ms Marshall-Evans and Mr Brodie in these proceedings. As I have explained earlier in these reasons, there was ultimately a measure of agreement between Ms Marshall-Evans and Mr Brodie about some of those issues, but that does not support the defendant’s submissions purporting to characterise the Arc Transport Report as “misleading” or “false”.

82. It remains to address the defendant’s fourth ground of opposition, which it raised as a reason why it submitted that this Court should decline to grant the relief sought by the plaintiff as a matter of discretion on the basis that it would be futile to grant that relief, even if the Court were otherwise satisfied that the plaintiff’s ancillary rights under the easement entitled it to an order requiring the defendant to consent to the making of the development application. [31]

    31. See [57] above.

83. I was initially attracted to the defendant’s submission that the development application, absent the defendant’s written consent required by clause 23(1) of the EPA Act, was ineffective to engage the Council’s power to make any determination in respect of the development application. Indeed, that submission emerged during oral closing submissions in response to questions that I put to counsel for the defendant. However, on reflection, Hinkler Ave and Al Maha establish that the Council’s power to determine the development application was engaged, and the Council did make a “determination” within the meaning of s 8.7 of the EPA Act in refusing consent on 22 September 2023. As referred to at [31] above, Preston CJ of LEC explained in Al Maha that the identification of the land to which the development application relates is part of a consent authority’s determination of a development application. Unlike many other requirements for a development application under the EPA Act and EPA Regulation, any non-compliance with the requirement to provide written consent to the making of the development application from the owner of land to which the development application relates is likely to become apparent to the consent authority only after it has commenced its substantive process of determining the development application. It is for that reason that the Court of Appeal held in Al Maha that the owner’s consent to the making of the development application is an essential prerequisite to the exercise of the consent authority’s power to grant consent to the development application. Al Maha was cited with approval as authority for that proposition by the Court of Appeal in Hinkler Ave. It is necessarily implied in the Court of Appeal’s decision in Al Maha that the Council had jurisdiction to refuse development consent on the grounds that the owner of land to which the development application relates had not provided written consent to the making of the development application, that this constituted a “determination” and conferred on the party who had made the development application without the owner’s consent the status of an “applicant” within the meaning of s 8.7 of the EPA Act, and that the LEC had jurisdiction to hear and determine a Class 1 appeal from that determination, albeit that jurisdiction for the LEC to grant consent for the development will only be engaged if and when the owner provides consent to the making of the development application. If that consent is not forthcoming prior to the conclusion of the Class 1 proceedings, the LEC will be bound to determine the development application by refusing consent. [32] As the plaintiff submitted, that is consistent with the long line of authority referred to by the Court of Appeal in Botany Bay v Remath. [33]

    32. Hinkler Ave at [101]-[131] (Preston CJ of LEC); Al Maha at [85]-[98] (Preston CJ of LEC, Leeming JA agreeing).

    33. Botany Bay v Remath at [5]-[7] (Stein JA, Handley JA agreeing).

84. It therefore seems to me that the LEC has had jurisdiction to determine the development application in the Class 1 proceedings from the time that those proceedings were commenced. I am not persuaded that any limitation issue concerning the Class 1 proceedings will arise if the defendant now provides its written consent to the making of the development application, either voluntarily or pursuant to an order made by this Court. I therefore reject the defendant’s submission that such an order would be futile.

85. Even if I had considered that the defendant’s submissions raised doubts about the jurisdiction of the LEC in the existing Class 1 proceedings, I would have held that it was not appropriate for this Court to determine in these proceedings that the LED lacked jurisdiction, for the purpose of considering whether to decline on discretionary grounds to grant relief in these proceedings to which the plaintiff is otherwise entitled for the reasons that I have explained above. The LEC has jurisdiction to determine for itself whether or not it has jurisdiction in respect of any particular proceedings, and I would not have considered it appropriate to effectively usurp that jurisdiction of the LEC in respect of the existing Class 1 proceedings. [34]

    34. New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press), ch 2.5.

Conclusion and orders

88. For all of the foregoing reasons, the order of the Court is as follows:

1. Order that the defendant, in its capacity as the owner of the servient land known as 184 Pacific Highway, Roseville, New South Wales, which is affected by the right of carriageway easement created by registered dealing J305349, provide its written consent to the making of development application 466/22.

89. I will hear the parties in relation to costs.

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Endnotes

Decision last updated: 30 July 2024