Samy Saad v City of Canterbury
[2012] NSWSC 389
•27 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: Samy Saad v City of Canterbury [2012] NSWSC 389 Hearing dates: 22.03.12, 23.03.12 Decision date: 27 April 2012 Before: Nicholas J Decision: Pars 56, 57
Catchwords: REAL PROPERTY – easements – imposition of easement by court – right of carriageway – reasonable necessity for easement over community land – whether easement reasonably necessary for effective use or development of landlocked dominant tenement – whether use of dominant tenement will be inconsistent with the public interest – whether servient owner can be adequately compensated – whether all reasonable attempts made to obtain easement – whether any discretionary factors justify refusing relief Legislation Cited: Conveyancing Act 1919
Environmental Planning & Assessment Act 1979
Local Government Act 1993Cases Cited: Etwell v Newcastle City Council [2006] NSWSC 1165; (2006) 151 LGERA 64
Marshall v Council of the City of Wollongong [2000] NSWSC 137; (2000) 107 LGERA 73
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286
Stepanoski v Chen [2011] NSWSC 1573Category: Principal judgment Parties: Samy Saad - plaintiff
City of Canterbury - defendantRepresentation: Counsel:
J A Loxton - plaintiff
D A Priestley - defendant
Solicitors:
Gamble Law & Estate Planning - plaintiff
Pikes Lawyers - defendant
File Number(s): 11/221285
Judgment
By summons filed 8 July 2011 the plaintiff seeks an order under s 88K Conveyancing Act 1919 (the Act) imposing a right of carriageway over land owned by the defendant.
The plaintiff is the registered proprietor of lot 1 in deposited plan 502314 (lot 1), being the whole of the land comprised in certificate of title folio identifier 1/502314 and known as 23A Gornall Avenue, Earlwood. Lot 1 is a vacant, undeveloped lot and zoned "residential 2(a)" under the Canterbury Planning Scheme Ordinance (the Ordinance).
The defendant is the registered proprietor of lot 13 in deposited plan 16660 (lot 13) and of lot 7 in deposited plan 502325 (lot 7). The land comprised in these lots is public land, known as Heynes Reserve. Each lot is zoned "open space 6(a) - existing recreation" under the Ordinance and is classed as "community land", pursuant to Ch 6, Pt 2, Div 1 Local Government Act 1993, by operation of Sch 7, cl 6 of that act. Each lot is also categorised as "a park" pursuant to Ch 6, Pt 2, Div 2 of that act, under the defendant's Generic Plan of Management for Parks dated 23 March 1995.
The plaintiff's land is landlocked by Heynes Reserve and neighbouring houses.
A plan of the proposed easement is incorporated in this judgment. It shows the layout of the properties referred to, and the relationship of the plaintiff's land with residences which have a frontage to Gornall Avenue. The shaded area depicts the proposed right of carriageway which leads from the cul-de-sac at the western end of Gornall Avenue over portions of lots 7 and 13 to the plaintiff's land, lot 1. The right of carriageway is a strip of land about 2.83 metres wide and 32 metres in length, and covers an area of about 90 square metres. It runs alongside the western boundary fence of no. 21 Gornall Avenue.
Heynes Park is located at the junction of the Cooks River and Cup and Saucer Creek. Gornall Avenue is a local residential street with a carriageway width of 9.2 metres and footpaths along both sides. The northern footpath continues in a westerly direction from the end of Gornall Avenue to link up with a bridge over Cup and Saucer Creek giving access to Sutton Park.
The defendant opposes the plaintiff's claim. It is common ground that the defendant has no power to grant the easement requested by the plaintiff, and that it is prevented from doing so by s 45 Local Government Act, and the exceptions under s 46 and s 47 do not apply. It is accepted that, under s 88K of the Act, the court has the discretionary power to make an order imposing an easement over community land (Marshall v Council of the City of Wollongong [2000] NSWSC 137; (2000) 107 LGERA 73; Etwell v Newcastle City Council [2006] NSWSC 1165; (2006) 151 LGERA 64).
Background
The following history was common ground and, in any event, is established by the evidence.
In 1998 lot 1 was owned by the Roads & Traffic Authority (the RTA) and bordered the road reservation known as Cooks River County Road Reservation. In September 1998 the road reservation was abandoned.
By letter of 30 September 1998 the RTA advised the defendant of the abandonment of the road reservation, and requested the affected land be rezoned under s 117 Environmental Planning & Assessment Act 1979 (EPA Act).
On 10 June 1999 the defendant's Staff and Legal committee resolved to form a working party to examine the zoning proposals for land affected by the abandonment, with the task of recommending a zoning proposal to achieve a significant regional linear park along the Cooks River Valley.
The report of 8 September 2005 to the defendant's City Development Committee included the following reference to lot 1:
"23A Gornall Avenue, Earlwood
This property is a landlocked allotment that was specifically created for the RTA to purchase for road widening purposes. It is still owned by the RTA and is vacant land that provides informal open space in the Gornall Avenue/Cup and Saucer Creek Area.
Under the draft plan the land is proposed to be zoned Residential 2(a). This has been a long standing proposed zone for this land, and reflects that the general area in which it is located is already well supplied with existing open space.
The size of this land is 923.1 m² and is therefore of sufficient size to contain a separate dwelling house. However any development on the land should be subject to satisfactory access arrangements being made given the landlocked nature of this allotment. An amendment to the written instrument to achieve this has been made. The RTA has also been advised verbally of this proposed amendment and has no objection."
The report of 14 July 2006 from the Director General to the Minister under s 69 EPA Act referred to an amendment to the proposed Canterbury Local Environmental Plan No. 205 (the LEP) as follows:
"The other amendment involves land at 23A Gornall Avenue, Earlwood. This property is a landlocked allotment that was specifically created for the RTA to purchase for road widening purposes.
Under the draft plan the land is proposed to be zoned Residential 2(a). Any development on the land should be subject to satisfactory access arrangements being made given the landlocked nature of this allotment. An amendment to the written instrument to achieve this has been made. The RTA has also been advised verbally of this proposed amendment and has no objection."
On 18 August 2006 the LEP was gazetted. It amended the Ordinance by adding cl 62P which applied to lot 1, and provided:
"(2) The Council must not consent to development for the purposes of a dwelling-house or dwelling on the land unless the Council is satisfied that development provides for adequate vehicular access to the land."
On 9 November 2006 the defendant's City Development Committee noted the gazettal of the LEP.
On 5 July 2007 the RTA, through its agent Sinclair Knight Merz (SKM) asked the defendant whether it would grant an easement over the defendant's land so that lot 1 could be disposed of on the open market, alternatively, whether the defendant would be interested in purchasing lot 1 at market price.
By letter of 3 September 2007 to SKM, the defendant declined the proposal. It said:
"The surrounding area is relatively well serviced with open space and there already is a satisfactory open space link along the Cook's River foreshore. Accordingly, Council is not actively seeking to acquire further open space in this area. Should however the RTA find in the future that it no longer has any interest in the land and was prepared to sell it to Council as open space for nominal consideration, Council may well be interested."
On 3 November 2007 SKM advertised lot 1 for sale in the newspaper "The Sydney Morning Herald". On 18 December 2007 the RTA and the plaintiff exchanged contracts for the sale and purchase of lot 1 for the price of $140,000. Settlement took place on 29 January 2008.
Between 24 February and 5 March 2010 the plaintiff unsuccessfully negotiated with Mr Kevin Teel, then his neighbour and the owner of the adjacent property at no. 21 Gornall Avenue, for the provision of access to lot 1.
By letter of 3 June 2010 to the defendant, the plaintiff requested its consent to the grant of an easement over its land. By its letter of 30 June 2010 the defendant refused the request. It advised that it lacked the power to grant the easement, and would oppose any application to the court under s 88K of the Act.
Between 16 August and 11 September 2010 the plaintiff unsuccessfully negotiated with Mr and Mrs John McDermott who had acquired the adjacent property from Mr Teel.
Determination
Relevantly, s 88K provides:
"88K Power of Court to create easements
(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful."
Under s 88K(3) and (4) the court is required to specify in an order various matters referred to, including the nature and terms of the easement, and the persons to whom compensation is to be paid. Subsection (5) makes provision for costs.
In these proceedings the grounds of opposition are:
(1) The easement is not reasonably necessary for the effective use or development of lot 1;
(2) The use of lot 1 with the benefit of the easement will be inconsistent with the public interest;
(3) The defendant cannot be adequately compensated for loss or disadvantage arising from the imposition of the easement;
(4) The plaintiff failed to make reasonable attempts to obtain the easement or one of similar effect; and
(5) The court should not exercise its discretion to impose an easement.
In Stepanoski v Chen [2011] NSWSC 1573 Bryson AJ explained the operation of s 88K in terms with which I respectfully agree:
"14 The terms and subject matter of section 88K show that its primary purpose relates to the public interest in effective land use. The purpose of section 88K is illustrated by the nature of an easement as a right annexed to land irrespective of who may from time to time own it, a right which touches and concerns that land, and to which another piece of land is servient, again irrespective of who from time to time may own it. The advantages for the proposed dominant land, and the disadvantages for the proposed servient land are the most prominent considerations. As shown in the words of section 88K, that the proposed easement is reasonably necessary for the effective of [sic] use or development of the dominant land is not enough to produce a positive exercise of the discretion in section 88K(1); There is discretion, and the effect on the servient land is also relevant and important.
15 The power in subsection (1) is discretionary, and in my opinion the discretionary considerations include consideration of matters personal to the owners of pieces of land, which may extend more widely than considerations affecting land use. Such considerations are likely to be less cogent than considerations which bear on effective use or development of land, and on the subjects expressly mentioned in subsections (1) and (2). As subsection (2) shows, satisfaction of each of the matters in subparagraphs (a), (b) and (c) is a necessary precondition for the making of an order imposing an easement. It is an important consideration that an order imposing an easement is an invasion of property rights made without the consent (and in this case against the wish) of the owner of property; those rights require respect and protection; and an order should not be made unless grounds clearly exist within statutory authorisation.
16 There are many first instance decisions on applications under section 88K, each strongly influenced by the facts of the instant case. What can be gathered from the case law was meticulously restated in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 (Preston CJ at [67] to [83])."
It is the plaintiff's intention to build a dwelling house on lot 1 and to move into it. The area proposed for the easement is a grassy bank near the junction of the pathway and bikeway. The following description of the proposed carriageway is found in the report of 14 April 2011 of Mr Christopher Hallam, a traffic and transport engineer:
"3.1 Proposed Access Drive
... The start of this drive in Gornall Avenue would not overlap with any existing residential driveways. A car entering or leaving Gornall Avenue would have unrestricted sight lines to and from Gornall Avenue, to see other cars.
The drive will be defined not only by the surface but also by bollards on each side. These will physically prevent a car from driving onto the adjoining reserve and path areas. Where the drive will cross over the western continuation of the Gornall Avenue northern footpath, this footpath will be re-aligned so that it crosses the drive at right-angles, with a designated crossing point ... At this crossing, the bollards at the north-eastern corner will be combined with a low horizontal fence bar, to direct pedestrians along the path and prevent pedestrians from walking beside the low brick fence on the southern frontage to No. 21 Gornall Crescent. This is to improve the sight lines for a driver leaving the subject lot and driving to Gornall Avenue.
The access drive will continue along the western side of No. 21, prior to entering the subject lot, at a shallow angle. Between the lot and the footpath crossing of the drive, a combination of low height divider wall and open-form mental fence on the outside (western side) of the access drive will separate cars from pedestrians, and reduce the chance of pedestrians walking on the access drive ..."
The defendant declined to buy lot 1 from the RTA because it did not require further open space in the area. Its view was that the surrounding area was well-serviced with open space, which was adequate for the purposes of public recreation.
According to Mr Brad McPherson, the defendant's manager of governance and administration, lots 7 and 13 are currently used by members of the public for unstructured and informal passive and active recreation. The paved pathway and bikeway is used for cycling, jogging, and walking, and occasional use is made of the grassed areas. This land is for play, exercise, and picnicking, and contributes to an overall sense of spaciousness in the open space of the park.
Reasonably necessary
I turn first to the question under s 88K(1) whether the easement is reasonably necessary for the effective use or development of the land which will have the benefit of the easement, in this case, lot 1. Relevant considerations were stated in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286 by Preston CJ to include the following:
"72 ... the easement is to be reasonably necessary for the "effective" use or development of the land that will have the benefit of the easement. The adjective "effective" bears its ordinary meaning of "serving to effect the purpose; producing the intended or expected result": Macquarie Dictionary and see Woodland v Manly Municipal Council at [7], (5). In context, therefore, the easement is to be reasonably necessary in order for the use or development of the land benefited by the easement to effect the purpose or produce the intended or expected result of the use or development. Thus, if use or development of land for some planning purpose, such as residential, commercial or industrial purposes, cannot be achieved without the creation and use of an easement for, say, access to the land or services to the land or for drainage of the land, the easement is reasonably necessary for such use or development to be effective: see King v Carr-Gregg [2002] NSWSC 379 at [47] and Khattar v Wiese at [30].
...
76 The requirement that the easement be reasonably "necessary" for the effective use or development of the applicant's land means that there needs to be "something more than mere desirability or preferability over the alternative means available": In the matter of an application by Kindervater at 333; Tregoyd Gardens Pty Ltd v Jervis at 15,854; Hanny v Lewis at 16,209 and Woodland v Manly Municipal Council at [7], [19]. Indeed, it has been suggested, "the tone of the word 'necessary' is getting close to something which is a vital requirement": Hanny v Lewis at 16,209.
77 Reasonable necessity has to be assessed having regard to the burden which the easement would impose. Hence "[i]n general terms, the greater the burden the stronger the case needed to justify a finding of reasonable necessity": Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; (1999) 9 BPR 17,303 at [42]; Woodland v Manly Municipal Council at [12], [19](8); Khattar v Wiese at [27].
78 Seventhly, applying the test of reasonable necessity to the effective use or development of the land that will have the benefit of the easement has the consequence that:
'(1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement': 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508-509.
...
82 Ninthly, the requirement of reasonable necessity is to be decided in light of the present circumstances at the time of the hearing of the application for an order: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511; Durack v de Winton at 16,448; Katakouzinos v Roufir Pty Ltd at [39]; and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd at [92]. Hence, it would not matter for the purposes of deciding whether the easement is reasonably necessary that the present circumstances were due to the applicant for the order taking a gamble: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511. However, if such reasonable necessity for an easement as presently exists arose from previous unreasonable conduct from the applicant, that could be a discretionary factor counting against the granting of relief: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511.
83 Tenthly, the requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required, in addition to obtaining the easement, for the effective use or development of land, such as obtaining some statutory consent. For example, if an easement in the form of a right of carriageway is created, it may be necessary to obtain development consent under the EPA Act to construct the road in the right of carriageway. The requirement in s 88K(1) does not require that all other obstacles to the proposed use or development of the land that will have the benefit of the easement must have been overcome before the Court has power to grant an easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 512. Only if use of the proposed easement would be absolutely illegal and there was no chance of obtaining a consent necessary to make it other than illegal, would the Court be precluded from finding that the easement was reasonably necessary: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511-512."
Lot 1 is zoned "residential 2(a)". It is landlocked. Development for the purposes of a dwelling on the land as envisaged by cl 62P of the Ordinance cannot be carried out, and would be impossible, unless and until adequate vehicular access has been provided. The evidence established beyond argument, and I find, that the proposed easement is the only realistic solution available to the need for the effective development for the purposes of a dwelling on the land. The defendant does not require the land for other purposes. Accordingly, if the status quo remains, the land cannot be developed for the benefit of the community because it is private land, and there will be no effective use or development of it in accordance with its zoning.
Applying the abovementioned principles in this case, I find that the easement proposed by the plaintiff to permit the construction and use of a driveway over lot 7 and 13 is reasonably necessary for the effective use or development of lot 1 which will have the benefit of the easement.
In reaching this conclusion I have taken into account the burden which the easement would impose. Overall, the driveway is about 2.83 metres wide, 32 metres in length, and has an area of about 90 square metres. The space in lot 7 is a pinch of grassy land along the western side of no. 21 Gornall Avenue. So much of lots 7 and 13 over which the driveway is proposed is but a very small part of the whole of the surrounding area of open space which includes Heynes Reserve and Sutton Park. There was no evidence that the loss of this area would have any discernible adverse effect on the public use of the surrounding area. A commonsense and objective evaluation of the likely impact of the driveway over these lots supports the finding that any impediment to the public's use and enjoyment of the community land would be minimal.
This conclusion is reinforced by the statement in the City Development Committee's Report of 8 September 2005 that the decision that lot 1 be zoned "residential 2(a)" reflected the view "... that the general area in which it is located is already well supplied with existing open space". Furthermore, the extent of any adverse impact will be limited because the development application for the final design of the driveway must be approved by the defendant. Much will depend upon the requirements of the defendant with respect to the application when made.
Public interest
Under s 88K(2)(a) the court must be satisfied that the use of the dominant tenement, being the land having the benefit of the easement, will not be inconsistent with the public interest. Upon the proper construction of the provision, it is the use of the dominant tenement, not the use of the easement on the servient tenement, which is the focus of the provision. In Rainbowforce Preston CJ held:
"94 Section 88K(2)(a) of the Conveyancing Act requires the Court to be satisfied that "use of the land having the benefit of the easement will not be inconsistent with the public interest". The land having the benefit of the easement is the dominant tenement. It is the use of the dominant tenement that is not to be inconsistent with the public interest: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 513; Durack v de Winton at 16,448; Hanny v Lewis at 16,209; Grattan v Simpson at 16,651; Woodland v Manly Municipal Council at [13], [19](4).
95 Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the Court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest: see Tregoyd Gardens Pty Ltd v Jervis at 15,847 and 15,854 and Second Reading Speech, Legislative Council, 4 December 1995."
The thrust of the defendant's submissions was that the easement over lots 7 and 13 for a driveway would deprive the public of the use of community land and open space which, in the circumstances, would be inconsistent with the public interest. The submissions were directed to the proposition that the use of the servient tenement in accordance with the easement would be inconsistent with the public interest. Reliance was placed on the view of the proper interpretation of s 88K(2)(a) taken by Bryson J in Marshall pars 18, 19.
However, the cases in Rainbowforce (par 94) to which Preston CJ referred demonstrate that the weight of authority is against the construction adopted in Marshall by Bryson J. In my respectful opinion, also, the view taken in Rainbowforce is correct, and I adhere to it. In my opinion the defendant wrongly focused on the use of the easement on the servient tenement rather than on the use of the dominant tenement (Rainbowforce pars 99, 102).
In this case, there is nothing in the proposed use or development of the dominant land which would be against the public interest. The Director General's report of 14 July 2006 to the Minister under s 69 EPA Act shows that the amendment to the Ordinance by cl 62P recognised that the land was landlocked, and any development on it should be subject to satisfactory access arrangements being made. Provision of an easement which permits vehicular access to occupiers of a dwelling on lot 1 is entirely consistent with the public interest in the use or development of the land for its designated purpose. That such use necessarily involves the creation of an easement over portions of community land in lots 7 and 13 is a use which, in my opinion, will not be inconsistent with the public interest. Accordingly, I am satisfied as to the requirement of subs (2)(a).
Compensation
Section 88K(2)(b) requires the court to be satisfied that the owner of the land to be burdened can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. It is necessary to show a causal relationship between the loss or disadvantage for which compensation is claimed and the imposition of the easement. In the case of a grant of a permanent easement such as a right of carriageway, compensation includes compensation for the resulting loss of proprietary rights, and for disturbance by the carrying out of the initial work, such as construction of a road, and subsequent repair and maintenance from time to time (Rainbowforce pars 109, 113).
In his report of 23 March 2011, Mr Paul Waterhouse, registered valuer, expressed the opinion that the average value of residential land in Gornall Avenue is $1,200 per square metre. He considered that as a right of carriageway would normally have a discounted value over the actual land value, 50 per cent of the actual land value was the fair market value of the proposed right of carriageway with an area of about 90 square metres. Accordingly, he valued the right of carriageway in the amount of $54,000.
In cross-examination Mr Waterhouse accepted that had the relevant land been valued for acquisition the reasonable valuation would be in the amount of $108,000 calculated at the rate of $1,200 per square metre. To the suggestion that for the purpose of calculating the amount of compensation in this case a 20 per cent deduction would be reasonable he responded that it would be "... a bit stingy".
The plaintiff has offered to pay the sum of $54,000 being the amount determined by Mr Waterhouse.
The defendant's primary submission was that the payment of a sum of money would not be adequate compensation. Mr McPherson's evidence was that financial compensation may not be adequate because of the lack of suitable available replacement land for purchase by the defendant. Alternatively, with regard to Mr Waterhouse's valuation, it was put that the amount should be $86,400, being an amount 20 per cent less than the valuation of $108,000.
Having regard to the circumstances in which the defendant declined to purchase lot 1 from the RTA, and in which the Ordinance was amended by cl 62P, I am unpersuaded that the defendant would be interested in acquiring replacement land if appropriate land became available. The evidence shows that the relevant loss or disadvantage would be that caused by the loss of the use of such part of lots 7 and 13 which comprise the servient tenement. It is a loss which may be adequately compensated by the payment by the plaintiff of a monetary sum equivalent to the value of the land which would be effectively lost to the defendant.
Apart from Mr Waterhouse's evidence there was no other evidentiary basis upon which the court should arrive at an amount different to that he proposed. There was no evidence upon which, for example, a component for disturbance or loss of amenity could be calculated. As quantification of compensation is a matter of significant interest to both parties it should not be left to speculation. In my opinion, therefore, the amount of compensation should be calculated with regard to Mr Waterhouse's evidence, being the only evidence on this issue. It was common ground that the actual land value was $1,200 per square metre. Recognising the paucity of evidence available to the court, in my assessment $54,000 is adequate compensation for loss and disadvantage arising from imposition of the easement, including the agreed loss of value of the land. Accordingly, I am satisfied as to the requirement under subs (2)(b).
All reasonable attempts to obtain an easement
Section 88K(2)(c) requires the court to be satisfied that "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". The easement referred to is that which the applicant asks the court to impose. In Rainbowforce, the principles were stated as follows:
"131 In order for an applicant for an order to make all reasonable attempts to obtain an easement:
(a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made: Hanny v Lewis at 16,210;
(b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14,654;
(c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14,654; and
(d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement: Coles Myer NSW Ltd v Dymocks Book Arcade at 14,653-14,654 and see also Antipas v Kutcher at [14]."
The attempts are illustrated by the emails of 24 February and 5 March 2010 between the plaintiff and Mr Teel, and the emails of 9 September and 11 September 2010 between the plaintiff and Mr McDermott in which various proposals to obtain access through no. 21 Gornall Avenue, including by purchase, were unsuccessful. In any event, by letter of 2 December 2010 the defendant notified the plaintiff of the development application for alteration to the house thereon which effectively precluded the plaintiff from any further opportunity to obtain an easement over that property. With respect to the properties at no. 17 and no. 19 Gornall Avenue the plaintiff said that by reason of the location of the house on each, there was no room for a driveway through to lot 1 and, accordingly, he did not attempt to raise the matter with the owners. I accept this evidence, and there was ample evidence by way of photographs to support it.
The defendant submitted that the plaintiff had failed to prove he had made all reasonable attempts to obtain an easement having the same effect as that proposed. As I understood it, the submission was based on the fact that in his correspondence with Mr Teel and Mr McDermott the plaintiff sought only the provision of access rather than specifically seeking access by means of an easement.
With regard to the applicable principles, the defendant's submission must be rejected. I am entirely satisfied that the plaintiff's negotiations with Mr Teel and Mr McDermott amount to reasonable, and unsuccessful, attempts to obtain access to his land by way of an easement or otherwise. It is difficult to see any rational basis for concluding otherwise. This conclusion finds ample support in the emails referred to, as well as in the plaintiff's evidence under cross-examination, the details of which are unnecessary to recite. In the circumstances, I am satisfied as to the requirement under subs (2)(c).
Discretion to impose the easement
The power under s 88K(1) to order the imposition of an easement is discretionary, notwithstanding proof of reasonable necessity, and satisfaction of the requirements of subs (2). The approach was explained in Rainbowforce thus:
"134 The discretion is to be exercised having regard to the purpose of the section, which Brereton J in Khattar v Wiese at [60] summarised as "facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights", referring to the Second Reading Speech, Legislative Council, 4 December 1995: see also Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 at [58], [59]."
The defendant submitted that the exercise of discretion should be against the making of an order.
Firstly, it was put against the plaintiff that he purchased lot 1 knowing it was landlocked, and without vehicular access necessary for its use or development for a dwelling. It was put that the plaintiff had purchased with his "eyes wide open" at a discounted price because it was landlocked. The short answer to the submission is that the application is to be decided in light of the circumstances at the time of the hearing of the application for an order. The fact that the land was purchased in the knowledge that the easement was still to be obtained is not a factor adverse to the application. The plaintiff could not make an application under s 88K before he did so (Rainbowforce par 82, Stepanoski par 45). Furthermore, there was no evidence that lot 1 had been purchased at a discounted price.
The defendant further submitted that the present case did not justify the court making available a piece of community park land for access to a development on private land (Marshall par 26). Support was taken from the following passage in the judgment of Palmer J in Etwell:
"31 The Court never makes an order under s.88K(1) lightly. The Court must be particularly cautious when the proposed servient tenement over which the easement is sought is community land. That land has been designated as being retained for the benefit of the public for the indefinite future. Its appropriation for private use by recourse to s.88K must be jealously scrutinised."
However, for the reasons earlier given for my findings as to reasonable necessity, and for satisfaction of the requirements of subs (2)(a) and (b) the fact that the servient tenement is community land should not weigh against the making of an order in this case. In this context, I have also taken into account the unchallenged conclusion of Mr Hallam that the traffic safety implication of the proposed driveway will be satisfactory for the reasons given in his report which included the following:
"4.0 Conclusions
...
2 As shown on Figure 1, the access drive will start from the centre of the cul-de-sac head of the termination of Gornall Avenue. This location does not overlap with any other driveway. It affords good sight lines to other traffic in Gornall Avenue and to cars on adjoining driveways.
3 The design of the access drive precisely delineates the location of the access drive, keeping it separate from the pathways. It will require drivers to travel at a low speed to negotiate the drive.
4 At the point where the drive will enter the subject lot, there are satisfactory sight lines to any pedestrians nearby. I recommend that car turning facilities be provided on the lot so that drivers are always proceeding in a forwards direction on the access drive.
5 At the location where the access drive will cross the pathway between Gornall Avenue and the bridge over Cup & Saucer Creek, the layout will provide satisfactory sight lines for drivers.
6 The level of traffic generation of one dwelling is about 9 vehicle movements each day, and up to one movement in the week day peak hour. From counts of pedestrian and cyclist movements on the pathways in the area, the one vehicle movement in peak hours will conflict with 4-8 pedestrian movements. This is a very low level of conflict."
The defendant also invited consideration of some evidence, being emails received from two persons by Mr McPherson indicative of the concern of residents, although it was accepted that, taken alone, it did not justify refusal. In the same vein, it was put that the court should have regard to the existence of an easement in favour of Sydney Water which would be traversed by the proposed easement. The plaintiff's evidence was to the effect that the proposed easement will be subject to the Sydney Water easement, and the relevant water main was outside the area of the proposed easement. Reference was also made to an easement for a transmission line and to a telegraph pole positioned immediately adjacent to the proposed easement. The plaintiff's evidence was that the pole referred to is located outside the proposed easement which will, in any event, be subject to the power easement, and will not require the removal of a power cable. In my opinion these factors do not support the exercise of discretion against the plaintiff.
In my opinion the plaintiff has demonstrated entitlement to an order imposing an easement over lots 7 and 13. Such an order will render possible the use and development of lot 1 consistent with its designated zoning and, it follows, consistent with the public interest that this usage should be achieved. There will be adequate compensation for any loss arising from the imposition of the easement. On my assessment of the totality of the evidence there are no discretionary factors which justify refusal of the order. For these reasons an order under s 88K(1) should be made.
Conclusion
I find that the requirements of s 88K(1), subs (2) and (4) are all met. In principle, I would make an order granting an easement in terms of par 1 of the summons, and orders in terms of pars 2 and 3 thereof. However, as it is necessary for the plaintiff to obtain the defendant's approval to a development application for the proposed easement it is inappropriate at this stage to make an order under s 88K(3) specifying the terms of the easement. Nevertheless, to enable finalisation of these proceedings it is desirable that the process be completed without delay.
Unless the parties wish to be heard on the question of costs, I propose to order that the costs of the proceedings be paid by the plaintiff under s 88K(5).
In the circumstances, the plaintiff should bring in short minutes of orders to give effect to these reasons. Arrangements should be made with my associate by 4pm 4 May 2012 to re-list the matter.
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Annexure A (PDF)
Decision last updated: 27 April 2012
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