Stanford v Pittwater Aquatic Club Co-Operative Limited

[2024] NSWSC 849

Supreme Court

New South Wales

Medium Neutral Citation:

Stanford v Pittwater Aquatic Club Co-Operative Limited [2024] NSWSC 849

Hearing dates:

8 and 9 July 2024

Decision date:

12 July 2024

Jurisdiction:

Equity - Real Property List

Before:

Peden J

Decision:

See [86]

Catchwords:

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where no other practical means of vehicular access to plaintiffs’ garaging at rear of property — Whether easement reasonably necessary for effective use and development of plaintiffs’ land where plaintiffs obtained development consent for garaging at front of property — Where effects of proposed easement relatively minor— Whether impact can be adequately compensated — Whether discretion to impose easement should be exercised — Determination of adequate compensation for imposition of easement — Easement imposed — Determination of costs deferred

Legislation Cited:

Conveyancing Act 1919 (NSW) ss 88, 88K

Evidence Act 1995 (NSW) s 53

Cases Cited:

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

Arcidiacono v The Owners — Strata Plan No 17719; Arcidiacono v The Owners — Strata Plan No 61233 (2020) 104 NSWLR 199

Arinson Pty Ltd v City of Canada Bay Council [2014] NSWLEC 43

Bloom v Lepre [2008] NSWSC 79

Bryant v Crompton [2024] NSWSC 238

City of Canterbury v Saad [2013] NSWCA 251

D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419

Dietrich v Denning [2016] NSWSC 597

Donnellan v Woodland [2012] NSWCA 433

Etwell v Newcastle City Council [2006] NSWSC 1165

Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295

Gordon v Lever (No 2) (2019) 101 NSWLR 427

Hanny v Lewis (1998) 9 BPR 16,205

Ing Bank (Australia) Ltd v O’Shea [2010] NSWCA 71

Jeffrey v Adams [2023] NSWSC 1270

Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045

Khattar v Wiese [2005] NSWSC 1014

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445

Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812

Owners Strata Plan 13635 v Ryan [2006] NSWSC 221

Rainbowforce Pty Limited v Skyton Holdings Pty Limited [2010] NSWLEC 2

Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286

The Owners — Strata Plan No 61233 v Arcidiacono; The Owners — Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307

Wengarin Pty Limited v Byron Shire Council [1999] NSWSC 485

Category:

Principal judgment

Parties:

Debra Stanford (First Plaintiff)
Eric James Stanford (Second Plaintiff)
Pittwater Aquatic Club Co-operative Limited (Defendant)

Representation:

Counsel:
D M Mitchell, S E Crosbie (Plaintiffs)
M Fozzard (Defendant)

Solicitors:
Dunstan Legal (Plaintiffs)
D G Briggs & Associates (Defendant)

File Number(s):

2022/00386205

Publication restriction:

Nil

Judgment

1. Debra and Eric Stanford are the owners of a steeply sloping residential property located near the water in Mona Vale, New South Wales. Their home is built over two lots, Lot 5 and Lot 6, and the street address is numbered 118-120.

2. To enter the front of their home from the street, it is necessary to walk down concrete stairs from the road to a grass council verge, down a pathway to the property and then down relatively narrow stairs to the front door. The street sits above the height of the property’s roof. The topography of the property slopes to the back, where a three-car garage and hardstand are located at the low-lying rear. At the back, the property adjoins land belonging to the Pittwater Aquatic Club Limited (the Club), which, in turn adjoins the public road, the Esplanade.

3. The Stanfords seek permanent access to the rear of their property on Lot 6 from the Esplanade over a small portion of the Club’s land that is undeveloped, and is described as “the Tip”, because of its triangular shape.

4. The remainder of the Club’s land is a fenced boatyard for about 40 boats and some dinghies. The Club also owns land across the road, on the waterfront, where it has a clubhouse, carpark and marina.

5. The Stanfords, and the previous owners of Number 120, have been permitted vehicular access from the Esplanade over the Tip since about 1972. The Club refuses permanent access, on the basis that one day it may wish to develop the Tip.

6. The Club will agree to a personal licence to Mr Stanford while he is a member of the Club. However, the Stanfords seek permanent access by way of an order of the Court imposing an easement pursuant to s 88K Conveyancing Act 1919 (NSW).

7. For the reasons that follow, I consider it appropriate to exercise the discretion to grant such an easement.

View

8. On the first day of the hearing, the Court conducted a view of the relevant properties pursuant to s 53 Evidence Act 1995 (NSW) to assist with an understanding of the evidence. The parties’ counsel and solicitors attended.

9. The various features of the properties and fences detailed on the below survey, which is in evidence, were identified.

10. The view commenced on the proposed driveway easement looking into the Stanfords’ land. The features detailed on the survey were apparent. For example, on the Tip to the north of the current driveway were located a power pole and water amenities and a large tree close to the neighbours’ land. The Stanfords’ hardstand was visible, upon which was parked a boat. The garage housed personal items and a vehicle.

11. The view then proceeded to the boatyard. There are various empty spaces to enable the manoeuvring of cars towing boats. One dinghy stand was visible and was not full. As at February 2024, there was a boatyard space available for a member to rent and there were spaces for dinghy storage. The current waitlists of members for spaces in the boatyard was not in evidence.

12. The view then proceeded back to the Stanfords’ property, past the hardstand parking, and into the carport, the rear wall of which was the original retaining wall constructed at sometime before 1979. The view proceeded up a steep set of stairs on the side of the carport that abutted the neighbour’s land to the left. As noted above, the front of the property was terraced down from the road. Multiple stairs were climbed to reach the top of the boundary and then to the road.

13. The location of any potential alternative carparking platform sitting above the height of the property at the front was pointed out.

14. The view proceeded down the road to observe the way other properties backing onto the Club’s boatyard accommodate carparking. Some have no off-street parking. Before buying the property, the Stanfords had obtained approval for a suspended, unenclosed carport above Number 116, which they had owned. They never constructed that carport. When the slope of the land reduces further down the road, some properties have steep driveways down to open parking hardstands next to, or slightly above, the entrance to their residences. None of those other residences have ever had permission to access the rear of their properties through the Club’s boatyard.

Access across the Tip by the Stanfords

15. In about 1972, the previous owners of the Stanfords’ land built the garage at the rear of the property. At that time, it may have been possible to access the garage from the front street. However, before the Stanfords bought the property, a retaining wall had been built, which rendered vehicular access to the rear of the property impossible.

16. Since July 1984, when they purchased the property, the Stanfords have accessed their garage and hardstand parking from the Esplanade at the rear.

17. The Club has always allowed the previous owner and the Stanfords to cross the Tip for that purpose. At first, the Club issued letters to the Stanfords giving written permission for their use of the land. In 1996, the Stanfords obtained development consent to renovate their home, including building over their hardstand in the rear of their building, and on top of the retaining wall. Because the Club would not agree to granting the Stanfords permanent vehicular access via the Tip, the Stanfords sought, and obtained, development consent to build an elevated two car open parking platform positioned above the front of their home.

18. They never carried out the construction of that parking platform, because from 1996 the Club continued to agree to an annual licence to allow the Stanfords to cross the Tip to access the rear of their property. While the only plans in evidence were from 1996, and would need to be updated, a platform would need to be supported by multiple concrete pylons, include some form of drainage and sit above the property’s front windows.

19. In May 2024, the Club offered a 10 year personal licence. The offer expired, but, in any event, the Stanfords seek a permanent easement.

Issues

20. The primary issue to be determined is whether the grant of an easement is “reasonably necessary” within the meaning of s 88K(1). The parties agreed the issues are:

1. Is the imposition of the easement reasonably necessary for the effective use or development of the Stanfords’ property, particularly in light of:

1. the possibility that they could construct a parking platform at the front of their property,

2. the existence of the current licence arrangement and

3. the impact of the proposed easement on the use or development of the Club’s land?

2. Is the use of Number 120 inconsistent with the public interest within the meaning of s 88K(2)(a)?

3. Can the Club be adequately compensated for the purposes of s 88K(2)(b)?

4. If the discretion to grant an easement is enlivened, should the Court refuse to exercise it?

21. There is no dispute that reasonable attempts have been made by the Stanfords to obtain the easement or an easement having the same effect for the purposes of s 88K(2)(c), nor that the form of the proposed easement satisfies s 88(1).

22. As explained below, the parties agree on the quantum of appropriate compensation for the purposes of s 88K(4).

Is the easement “reasonably necessary” – s 88K(1)?

23. The exercise of the power under s 88K involves the forcible appropriation of one person’s proprietary rights for the benefit of another, and for that reason the Court must be persuaded it is appropriate to exercise the power.

24. I summarised the relevant principles concerning “reasonable necessity” within the meaning of s 88K(1) in Bryant v Crompton [2024] NSWSC 238 at [10]:

1. Reasonable necessity does not mean “absolute necessity”, but more is needed than mere desirability or preferability over the alternative means: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257; [2012] NSWCA 445 at [154] (Bathurst CJ, Beazley and Meagher JJA) (Moorebank).

2. The requirement of reasonable necessity can still be satisfied even in circumstances where a plaintiff’s land could be effectively used without the grant of the easement sought. The use with the proposed easement must be at least substantially preferable to the use without the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508-509 (Hodgson CJ in Eq).

3. Regard must be given to the impact of a proposed easement on the servient tenement and the impact on the property rights of the owner of the servient tenement: Gordon v Lever (No 2) (2019) 101 NSWLR 427 at [42] (Bell P, Payne JA and Emmett AJA agreeing). The greater the burden on the servient tenement, the stronger the case must be for a finding of reasonable necessity: Moorebank at [156]-[157].

4. The comparison of possible easements in s 88K(1) may lead to an evaluation of the advantages and disadvantages of the easements involving considerations such as costs and viability; a detailed comparative inquiry is not required by the language of s 88K(1): see, eg Debbula Pty Ltd v The Owners – Strata Plan 6954 (2003) 12 BPR 22,617; [2003] NSWSC 189 at [26] (Macready M); Fiona Burns, ‘Court Imposed Easements in the Australian Torrens System: Are the Rights of Servient Owners Adequately Protected?’ in Lyria Bennett Moses, Brendan Edgeworth and Cathy Sherry, Property and Security: Selected Essays (2010, Lawbook Co) at 226.

5. Past and actual use of the putative servient tenement may be considered in the assessment of “reasonable necessity”: Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 at [60]-[63] (Rein AJ) and the cases cited therein.

25. See also the discussion of authorities in Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812 at [16]-[22] (Peden J).

26. The parties’ submissions as to whether the easement is reasonably necessary for the use or development of the Stanfords’ land concerned:

1. Whether the relevant question is whether the easement is reasonably necessary for “use” of the Stanfords’ land specifically as a residential dwelling, such that the easement is not reasonably necessary, since it can be used as a dwelling without vehicular access to the rear of the property.

2. Whether the proposed easement is substantially preferable to the alternative available means of parking.

3. Whether use of the land with the easement is merely at best preferable or desirable, and so is not reasonably necessary for the use of the land.

4. Whether the impact on the Club’s use of the land on which the easement would be placed would be too significant, because there are possible uses that would be lost.

27. For the reasons that follow, I consider that, based on the above issues and all the relevant facts, s 88K(1) is satisfied and the easement is reasonably necessary.

Relevant “use” of the land   

28. The Club submits that vehicular access to the Stanfords’ level rear yard is not reasonably necessary for the use of the property as a residential dwelling. Counsel for the Club explained in closing submissions:

[T]he dwelling can still be used without the easement, can still be used without the garages. There’s no change to the use of the dwelling, on the evidence, absent the garages. If the easement is only there to serve the garages, for garaging things, car parking and other things, there’s no evidence to suggest that the dwelling house could not be used without the garages.

29. I do not accept this submission. Section 88K easements enabling vehicular access to a property have been held reasonably necessary for the use or development of land, including residential land: see eg Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 (Owners v Ryan) at [72] (Rein AJ); Etwell v Newcastle City Council [2006] NSWSC 1165 (Etwell v Newcastle) at [29] (Palmer J); The Owners — Strata Plan No 61233 v Arcidiacono; The Owners — Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307 (Owners v Arcidiacono) at [481] (Henry J), upheld on appeal: (2020) 104 NSWLR 199 at [65] (Macfarlan JA, White and McCallum JJA agreeing); City of Canterbury v Saad (2013) 17 BPR 32,207; [2013] NSWCA 251 (Canterbury v Saad) at [44] (Beazley P, Meagher and Leeming JJA agreeing).

30. This is unsurprising, given that s 88K has a remedial function which supports a flexible interpretation of its language: Donnellan v Woodland [2012] NSWCA 433 at [98] (Beazley JA, Barrett and Hoeben JJA and Sackville AJA agreeing), citing 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (117 York Street) at 512 (Hodgson CJ in Eq). The remedial nature of s 88K has been said specifically to justify a wide reading of the words “use or development”: Bloom v Lepre (2008) 13 BPR 24,923; [2008] NSWSC 79 (Bloom v Lepre) at [44]-[45] (Young CJ in Eq).

31. Further, the authorities often refer to “uses or developments” (plural) of land in determining reasonably necessity. In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 (Moorebank v Tanlane), for example, the Court endorsed as correct Hodgson CJ in Eq’s approach to the question of reasonably necessity in 117 York Street at 508-509: at [154] (Bathurst CJ, Beazley and Meagher JJA). This approach clearly envisages that multiple uses of the land may be considered. His Honour explained (emphasis demonstrating the focus on a particular use added):

In my opinion: (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.

32. I do not consider I ought only to approach the question of whether the proposed easement is reasonably necessary for use and development of the land on the basis of whether it is reasonably necessary for use and development of the residential dwelling as a residential dwelling.

33. The Club’s submission is also directly contrary to a decision of this Court in Owners v Ryan. The plaintiffs in that case had for many years used a section of the defendant’s land to access garages and, for the first plaintiff, hard-stand, at the rear of their properties. Off-street parking at the front of the properties was impossible for the first plaintiff, and possible only after undertaking works at expense for the second and third plaintiffs.

34. Rein AJ rejected a submission that, because the dwellings were not landlocked, and could be used as dwellings without off-street parking, an easement enabling vehicular access was not reasonably necessary “for the use” of the plaintiffs’ land; instead, for the purpose of s 88K(1), “use” of the plaintiffs’ land embraced use of the garages and hardstand: at [49].

35. Here, the Stanfords have urged that the Court ought to adopt Rein AJ’s approach at [56] of Owners v Ryan, where his Honour considered that the proposed easements were automatically necessary under s 88K(1), since the plaintiffs’ garages and the hard-stand could not be used at all without such easements. The fact that part of an applicant’s land cannot be used for an intended purpose without an easement is clearly relevant to whether that easement is reasonably necessary. However, I consider the relevant inquiry is as to the use and development of an applicant’s land more generally.

36. Without access across the Tip, the Stanfords cannot use the rear yard for vehicular access to the existing improvements of the garages and hardstand. This militates in favour, but is not dispositive, of the easement being found to be reasonably necessary for use of the land generally.

Alternative to the easement

37. The Club also submits that the easement is not reasonably necessary for use of the Stanfords’ land, since there are three alternative means of parking the Stanfords’ vehicles, other than by grant of an easement:

1. Immediate on-street parking.

2. A parking platform at the front of the property, once the plans are updated and approved and it is constructed.

3. Immediate use of the Tip pursuant to the Club’s offer of a licence while Mr Stanford is a member.

38. The relevant question is whether use of the Stanfords’ land with the easement is substantially preferable to use of the land without it, under one (or more) of the above alternatives. In assessing alternatives, regard may be had to cost, delay or inconvenience: Owners v Arcidiacono at [445] (Henry J). However, as Brereton J explained in Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 (Khattar v Wiese) at [32], the comparison of available alternatives:

… need not involve a precise assessment of the respective advantages and disadvantages of each course, nor necessarily acceptance that the applicant’s preferred course is objectively superior to the alternatives, so long as it is reasonable.

39. In respect of the first alternative, on-street parking would clearly be considerably less convenient than having access to the hardstand and garages at the rear of the land. Availability of street parking close to the property would not be certain, it would be open to weather and only allow foot access to the property over a steep verge and down steep stairs. There are also security risks which attend street parking, which would be alleviated under the proposed easement: see eg Etwell v Newcastle at [22] (Palmer J).

39. The second alternative, of the parking platform, may alleviate the above concerns. However, it would generate difficulties of its own. In particular:

1. An updated design has not been approved, and while very likely, cannot be guaranteed.

2. The platform would not be enclosed and therefore would not provide secure storage.

3. It would provide an eyesore viewed from the street, but also from the neighbouring properties. For example, the next-door neighbour complained to the council that he would need to invest in landscaping to screen the sight of the platform from his property.

4. It would be expensive, based on the necessary extensive use of engineer-designed concrete piers being buried in the ground to support the structure.

5. The platform would interfere with the Stanfords’ light in the front windows.

6. A pedestrian parking a car would have the same issues of walking from the street to the property; the platform is not designed with more direct stair access.

41. The first and second alternatives would also both result in a state of affairs, in which the rear portion of the Stanfords’ property could not be used for what is now clearly its purpose, and the use to which it has been put since 1972. The rear portion of the land would, in turn, be of considerably less utility as part of the land, should either the first or second alternatives be adopted.

42. In support of the preferability of the second alternative, the Club submits that by making this application, the Stanfords are “approbating and reprobating” in relation to the 1996 development application. I do not accept this. I accept that “s 88K(1) … [is] to be construed and applied in the context of, and as far as possible in harmony with, relevant legislative planning controls”: Arinson Pty Ltd v City of Canada Bay Council [2014] NSWLEC 43 at [52] (Biscoe J). It may also be accepted that the council required a plan for vehicular off-street parking before the consent for other building works was given in 1996. However, the council was not concerned with the test in s 88K(1) as to the "effective use" of the land. Additionally, reasonable necessity is determined with reference to the circumstances at the time of hearing: Gordon v Lever (No 2) (2019) 101 NSWLR 427 at [30] (Bell P, Payne JA and Emmett AJA agreeing). Here, those circumstances include that since 1996 the Club has allowed the Stanfords to use the Tip, meaning they perceived no need to build the parking platform.

43. The third alternative, of accepting the personal licence, would avoid the above problems by preserving the status quo for the time being. However, it would also generate uncertainty, including for potential future owners, who may not have the benefit of a licence. It would also necessitate renegotiation at the time of expiry, in circumstances where there may be dispute, as these proceedings demonstrate. It is for these reasons that the existence of a licence has not been an impediment to the imposition of an easement in other cases: see eg Owners v Arcidiacono at [581] (Henry J).

44. I am satisfied that based on the above deficiencies identified of the alternatives, the use of the Stanfords’ land with the easement is substantially preferable to use of the land without the easement. This supports a finding that the easement is reasonably necessary, but is not of itself sufficient for the exercise of the discretion: Ing Bank (Australia) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 at [53] (Giles JA, Campbell JA agreeing).

Is the easement merely desirable or preferable

45. The Club also submits that the easement is, at its highest, merely desirable or preferable, which is insufficient for its imposition. This submission is put on multiple bases. First, the defendant relies on the decision of Young J in Hanny v Lewis (1998) 9 BPR 16,205 (Haney v Lewis), where his Honour observed at 16,209 that s 88K “does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect others to make their land available for access.”

46. However, Hanny v Lewis was a very different case. There, the plaintiffs built a property on a very steep slope and thereafter sought the imposition of an easement to allow them to build an inclinator on the defendant neighbours’ land. The easement was refused by Young J for several reasons:

1. An inclinator would not fall within the meaning of a “right of footway”, which was being sought.

2. There was access by way of stairs.

3. The plaintiff had purchased and built a residence, without including alternative access.

4. There would be a significant detrimental impact on the servient tenement owner’s privacy and use of their land.

5. The terms of any proposed easement were problematic.

6. The plaintiff had not made any offer of compensation, and it may have been that compensation could not adequately compensate the servient tenement owner for the imposition of the easement.

47. Here, there is no issue as to the terms of the proposed easement. As considered below, I also do not consider that the easement will have significant detrimental impact on the servient tenement, including issues of privacy, or that it is impossible to compensate the Club.

48. The fact that a plaintiff purchased a property knowing there was no particular access is relevant, but is not determinative: see eg Canterbury v Saad at [68]-[70]. Also relevant, is the long history of use by the Stanfords of the Tip for vehicular access to the rear of the property. I consider this history of use is a “weighty consideration” in favour of the easement being reasonably necessary for the use of the land: see eg D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24,103; [2006] NSWSC 1419 (D & D Corak v Yiasemides) at [18] (Young CJ in Eq).

49. Secondly, the Club emphasises the fact that neighbouring properties do not have rear access through the Club’s property. I accept that this is a relevant factual matter in determining reasonable necessity. However, I do not give it very much weight, because I consider that those neighbours are in a very different position to the Stanfords. Those neighbours have never had such access; such access would cut through the Club’s boatyard.

50. The Stanfords are in a different situation because of the location of their land relative to the Club’s small unused Tip and the vicinity of the Esplanade. The topography of the Stanfords’ land – which sloped more severely from top to bottom than the neighbouring properties – is also a matter that supports the granting of an easement for access that is comparatively flat and safe.

51. Thirdly, the Club refers to authorities in which a proposed easement to enable vehicular access to property was not considered reasonably necessary. However, each case must be considered on its own facts, and I consider those cases are distinguishable.

52. In Dietrich v Denning [2016] NSWSC 597, Darke J held that an easement was not reasonably necessary, notwithstanding the fact it would enable the movement of vehicles and large chattels to and from the plaintiff’s rear yard. In reaching this conclusion, his Honour inter alia emphasised the “significant and ongoing” impact of the proposed easement on the servient tenement: at [93]; as well as the fact that onsite parking for multiple vehicles was already available at the front of the plaintiff’s property: at [96]-[97].

53. In Bloom v Lepre, the plaintiff benefited from an existing easement which enabled vehicular access to his land, but was only wide enough to accommodate a small car. The plaintiff sought an order under s 88K to widen the easement to accommodate a larger car. Young CJ in Eq did not consider the easement was reasonably necessary. His Honour emphasised, inter alia, that there was already parking on the plaintiff’s property, and that even with the easement, no car longer than 4.5 metres could be accommodated: at [58]. His Honour also emphasised the negative impact of the easement on the servient tenement, which would require demolition of structures on the defendant’s land, relocation of a fence and shade structure, or reduction in the space available to the defendant to park her own cars: at [60], [75].

54. Those cases are different from the present situation. In both cases, vehicular access to and parking on the subject land was possible without the proposed easement, and without it first being necessary to undertake construction works. That is not the case here, where, as noted above, off-street parking would require substantial construction works to be undertaken. In both cases, it was also found that the proposed easement would significantly negatively impact on use of the servient land. For the reasons below, I do not accept that this is the case here.

Burden on the Club’s land

55. In considering the reasonable necessity of the proposed easement, regard must be had to the burden which the easement would place on the Club’s land: Moorebank v Tanlane at [156].

56. Here, the Club submits that the proposed easement “would deprive the [Club] the future use of the Boatyard, and for development potential, in circumstances of the unique nature and manner of its use of the land.” However, I do not accept this vague submission is supported on the evidence.

57. I do not accept that the Club has any intention or prospect of developing the Tip in any way in the near future, at least because:

1. The submission is contrary to the Club’s asserted position in late 2008, when the then-president of the Club wrote to the Stanfords and admitted the Club had no useful purpose for the Tip:

…we are currently unable to find a worthwhile use or the triangle of land. Income from Dinghy storage rental would not return sufficient funds to justify the development costs. …

2. There is no evidence that the cost of seeking development approval for concreting the area and buying the necessary racks would be more attractive to the members now than in 2008. Even if it was, I consider storage of boats or dinghies would require access that could be at the same location as the proposed easement. For example, the Club put in evidence some hand-drawn diagrams by a Club member, sketching the possible placing of further kayak stands or a few boats on the Tip. Mr Steel, the president of the Club, accepted that those plans were the “best” possible developments the Club could so far envisage since the proceedings commenced, and that those diagrams did not provide sufficient space for access or turning. He also conceded that if the driveway continued to be used by the Stanfords, that driveway could also be used by club members to manoeuvre their boats or kayaks into any additional racks or parking spaces on the Tip. Further, if the Club wished to use that part of the Tip nearest its boatyard behind its fence, it could do so, without the impediment of the easement, but with the impediment of the trees it planted. It has not attempted to do so. Further, the Stanfords’ expert town planner, Mr Halliwell’s uncontested evidence is that permission from the local council to remove the trees on the Tip would not be forthcoming.

3. The parties’ experts agreed that the Club cannot build any structures on the Tip, because of set-back requirements. Mr Halliwell accepted in cross-examination that it was “possible” that the Club could use the Tip as a playground or as green space. However, I do not accept that is a genuine or likely use, to which the Club would put that space. That is not a potential use the Club has ever introduced or disclosed at any time in correspondence or in its own evidence. Further, having visited the site, I consider it unlikely that children would want to play in that space right next to a noisy road and under powerlines, and in circumstances where in the very close vicinity they could play at a sandy beach and very beautiful parkland with substantial playground equipment. Most of the Tip is already green space and that would not change, should the easement be granted.

4. The Club has engaged experts to investigate improving the marina part of its land near the water, to at least bring it up to current standards or improve it further. No up to date evidence was brought forward by the Club that those plans were developing, or that it had the requisite funding to do so. Therefore, it would seem unlikely that the Club has further appetite to develop the Tip in addition.

5. The Club offered the Stanfords a 10 year licence, which indicates it has no current intention to carry out any works over the Tip for at least that period of time.

58. In any event, should the Club seek to redevelop its land, then the existence of the easement could be reconsidered.

Conclusion

59. For the reasons above, weighing all the relevant factors, I consider that the proposed easement is reasonably necessary within the meaning of s 88K(1).

Is use of plaintiffs’ land consistent with public interest – s 88K(2)(a)?

60. I reject the Club’s submission that the grant of the proposed easement would make the Stanfords’ use of their land inconsistent with the public interest.

61. The Club’s submission was to the effect that, because the Stanfords had obtained the 1996 development consent to build an elevated carpark platform at the front of their property, it can be inferred that such development was in accordance with the public interest, and the failure to build that platform demonstrated that the current application for an easement was contrary to the determined public interest.

62. I reject that submission. Merely because the Stanfords have made an application for an easement after having obtained a development consent for the carparking platform does not make the use of their land with the benefit of the easement inconsistent with the public interest.

63. This is not a case where there is a public use of the Tip, such that there might be a competition about public interest: see eg Canterbury v Saad; Etwell v Newcastle.

64. Securing off-street parking at the rear of their property is a rational use and is the local Council’s preferred parking solution, including because it would be less visible to the street and comply with Council preferences for parking at the rear of residences. I consider it is consistent with the public interest.

65. I note that the Club vaguely raised as an issue the possibility that the Stanfords had failed to comply with their 1996 development consent. Some evidence was deployed in an attempt to demonstrate that the consent conditions included a requirement to landscape the hardstand ramp in the rear yard. I am not satisfied that, on the balance of probabilities, it can be concluded that the council imposed such a condition, including because:

1. The handwritten reference to landscaping was not signed and dated or referred to in the consent conditions, as was commonly the case at that time, according to the Club’s expert town planner.

2. No one, including the council, drew any failure to comply with such a condition to the attention of the Stanfords. In fact, when in 1999 the Stanfords made a development application to build a swimming pool in the rear of their property, the council indicated that a condition of consent would be that landscaping was carried out, without reference to any previous failure to do such landscaping.

66. However, counsel for the Club later appeared to accept that a breach of development consent is not a matter relevant to the discretion here.

Can Club be adequately compensated – s 88K(2)(b)?

67. I consider that it is possible to adequately compensate the Club for the imposition of the easement. An applicant bears the onus of demonstrating what loss or other disadvantage the defendant will suffer and that such loss or disadvantage can be adequately compensated: Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045 at [66] (Hodgson CJ in Eq). The Stanfords accept that the Club ought to be compensated for the diminution in value of the land and blot of title.

68. The Club asserts that the “diminished value cannot be adequately compensated because of the [Club’s] unique nature of its use”. However, as outlined above, I do not accept there is any “unique nature” of the use of the Tip.

69. Here there is no evidence the easement would cause “injuries of an intangible kind”: Khattar v Wiese at [49] (Brereton J). Further there are no issues of:

1. Loss of privacy: see eg Hanny v Lewis.

2. Concerns of fire safety: see eg D & D Corak v Yiasemides.

3. Loss of unique tranquil and private rural development site. For example, in Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295 at [66], White J (as his Honour then was) would not impose an easement through an “informal bush retreat on the high ground in the clearing… a secluded area with dramatic views”.

4. Other “reduced amenity and enjoyment of property, and exposure to increased disruption and interference”: Khattar v Wiese at [50] (Brereton J).

70. The appropriate compensation for the imposition of an easement is considered below.

Discretion

71. Even though s 88K(1) and (2) have been satisfied, there remains a residual discretion whether to order an easement. The discretion is to be exercised having regard to the purpose of s 88K, which is to facilitate the reasonable and effective use or development of land, provided various conditions are satisfied, including that just compensation is paid for any erosion of private property rights.

72. In particular, the Club points to its May 2024 open offer of a 10 year licence to the Stanfords as a reason not to impose the easement. It was submitted that such a licence would provide the Stanfords with a short-term solution, which weighs against the imposition of an easement. While it is a relevant matter to consider, the Club does not suggest it is determinative and I do not consider it is.

73. The Club also submits that a development approval is necessary for the Stanfords to continue to use the driveway and it has not been obtained. I did not consider there was clear evidence to demonstrate that such approval was necessary; Mr Halliwell did not consider it was, although he had no examples to provide the Court. However, I consider that it is consistent with the exercise of the discretion to require the Stanfords to obtain some documentary approval from the council of their continued use of the driveway before the easement is registered: see eg Rainbowforce Pty Limited v Skyton Holdings Pty Limited [2010] NSWLEC 2 (Rainbowforce v Skyton) at [193] (Preston CJ); 117 York Street at 512 (Hodgson CJ in Eq).

74. Having considered the grounds of opposition to the easement raised by the Club, I am not persuaded that the Court should withhold the relief sought by the Stanfords. In all the circumstances and having regard to the underlying rationale of the power under s 88K, I am satisfied that it is appropriate to exercise the discretion and make an order imposing the easement sought.

Compensation

75. There is no dispute about the appropriate method of calculating compensation when an easement is imposed pursuant to s 88K.

76. Often, compensation for easements imposed will have three elements: (a) the diminished market value of the affected land; (b) associated costs that would be caused to the owner of the affected land; and (c) an assessment of compensation for insecurity and loss of amenities, such as loss of privacy or peace and quiet. Against these losses and disadvantages should be allowed, as an offset, compensating advantages (if any): Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 at [57] (Young JA); see also Wengarin Pty Limited v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 at [26] (Young J).

77. Although s 88K(4) creates a broad discretion for the Court to order compensation it “considers appropriate”, that does not extend to ordering compensation for a loss or disadvantage which does not arise from the imposition of the easement: Rainbowforce v Skyton at [106] (Preston CJ).

78. Should an easement be imposed, the Club relied on the expert valuation of Mr Kent Woods. The Stanfords do not resist Mr Woods’ valuation of $70,955 for diminution in value of the area of the proposed easement, and $10,000 for blot on title.

75. The Club originally sought additional compensation for that part of the land on the Tip, which would be “separated” by the easement from the rest of the Club’s current boatyard. Some evidence, which might have supported the submission was rejected in preliminary rulings on evidence and were not challenged by the Club. Further, no submissions supporting the additional compensation were advanced in closing.

76. Therefore, the Stanfords must pay the Club the sum of $80,955.

Costs

81. Section 88K(5) provides that the costs of the proceedings of an application for an easement are payable by the applicant “subject to any order of the Court to the contrary”. I summarised the relevant principles concerning costs where a successful plaintiff seeks an order that the defendant pay their costs or some of them of a s88K proceedings in Jeffrey v Adams [2023] NSWSC 1270 at [143]-[145].

82. The Stanfords indicated that they may wish to make further submissions as to why a “contrary order” ought to be made. I will therefore make the usual order under s 88K(5), but grant a short time for either party to seek a different order.

Conclusion and Orders

83. For completeness, I note that the Club has not sought any conditions, should an easement be imposed. The Stanfords indicated in correspondence and in evidence that they would agree to various conditions, should the Club request them. For example, they were prepared to have a condition imposed that they are responsible for the maintenance of the easement. Mr Stanford has been maintaining the Tip by mowing the lawn and replenishing the gravel since 1986. However, as no conditions are sought by the Club, I will not impose a requirement to maintain.

84. As noted above, I consider it appropriate to require the Stanfords to seek written confirmation from the council that they are entitled to continue using the easement, and if such approval is not forthcoming, to obtain the necessary formal approvals.

85. I will also require the Stanfords to demonstrate the registration of an entitlement for Lot 5 to enter Lot 6, so that the use of the easement from the Club’s land allows legal access to the garages located on Lot 5.

86. For the reasons above, the appropriate orders are:

1. Pursuant to s 88K of the Conveyancing Act 1919 (NSW) impose an easement on the defendant’s land at 9 The Esplanade Mona Vale NSW (Lot 10 in DP 730056) in favour of the plaintiffs’ land at Lot 6 section A in DP 975292 as follows:

A right of carriageway 3.5 meters wide affecting Lot 10 in DP 730056 and benefitting Lot 6 in section A in DP 975292 as shown in the survey prepared by Waterview Surveying Services dated 11 February 2022, a copy of which is annexed hereto.

2. Defendant take all necessary steps to effect the registration of the easement on the title of Lot 10 in DP 730056.

3. Orders 1 and 2 are conditional upon the plaintiffs:

1. registering on the title a right of way at the rear of Lot 6 in favour of Lot 5; and

2. obtaining written consent, whether by way of letter or otherwise, from the relevant local authority, to continue use of the gravel driveway, or to improve the driveway to the standard required by the local authority, including by way of any necessary development application.

4. Plaintiffs to pay the defendant $80,955 by way of compensation.

5. Pursuant to s 88K(5), plaintiffs to pay the defendant its reasonable costs of the proceedings, as agreed or assessed.

6. Grant liberty to either party to apply for a variation of order 5 within 14 days of these orders, by filing and serving any evidence, and submissions of no more than 3 pages. Should such application be made, the opposing party is to file and serve any evidence, and submissions of no more than 3 pages within 7 days of the application being made. The application will be determined on the papers, if appropriate.

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Decision last updated: 17 July 2024