Stepanoski v Chen
[2011] NSWSC 1573
•16 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: TONY STEPANOSKI v ZHIMIN CHEN [2011] NSWSC 1573 Hearing dates: 8/12/2011 - 9/12/2011 Decision date: 16 December 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: Easement ordered. Refer to Associate Justice to settle order
Catchwords: REAL PROPERTY - easements - order under Conveyancing Act 1919 s88K - plaintiffs applied for order for drainage easement over 1 metre wide strip 21m long along rear boundary of adjacent land to connect drainage to Council drainage in lane - easement required to comply with Condition of Development Consent for redevelopment of plaintiffs' suburban house property for dual occupancy - consideration of evidence of advantages and disadvantages of proposal and possible alternatives - order for easement. Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Real Property Act 1900
Supreme Court Rules 1970Cases Cited: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Category: Principal judgment Parties: Tony Stepanoski (First Plaintiff)
Sonja Stepanoski (Second Plaintiff)
Zhimin Chen (Defendant)Representation: Counsel:
Mr S Jacobs (Plaintiffs)
Mr F Corsaro SC (Defendant)
Solicitors:
Marando Solicitors (Plaintiffs)
Proctor Phair Lawyers (Defendant)
File Number(s): 2011/00060849
Judgment
The plaintiffs own the house at 144 XXXXX XXXXX XXXX XXXXX XX on Lot XXXX DP XXXXX XXX and apply by summons of 24 February 2011 under section 88K of the Conveyancing Act 1919 for an easement to convey storm water over the land of their neighbour, the defendant who owns 146 XXXXX XXXXX XXXXX , Lot XXXXX XXX DP XXXX. On the plaintiffs' land is a house which appears from photographs to be four or more decades old. They bought the property at auction on 23 October 2010 for $1,048,000 and settled the purchase in January 2011. The circumstances which led them to buy it included reference in advertising to a Development Consent which was granted by Willoughby City Council on 23 August 2010. That consent was to lapse on 23 August 2011 but has been extended for twelve months. There are many conditions in the Development Consent.
The Development Consent was given on a Development Application by Mr Orsatti, who sold the property to the plaintiffs. It is a deferred commencement consent pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 . Conditions in Schedule 1 relate to deferred commencement. Condition 1 is entitled "Documentary evidence of drainage easement":
"1. The applicant shall submit documentary evidence to Council by way of title documents and relevant instruments demonstrating that the subject property (Lot XXX of DP XXXXX X) benefits from a drainage easement of 1 metre minimum over the downstream property (XXXXX XXXXX X
XXXXX X)"
The second deferred commencement condition requires an inter-allotment drainage design; full hydraulic design for the drainage system to the point of discharge to the public drainage system. A great deal of information and many plans were prepared in support of Mr Orsatti's development application. In the course of design work, a storm water concept plan was prepared by Mr Lowry of Neil Lowry & Associates Pty Ltd, hydraulic engineer. The second condition has been complied with as the Council has accepted Mr Lowry's drainage design.
I incorporate two plans in this judgment. The first is the plan annexed to the summons and the second is DP XXXXX X which shows a wider area but does not show the resubdivision which produced the defendant's Lot XXX DP XXXXX . These show the layout of the properties referred to. The plaintiffs' land has a frontage on its northeastern side to XXXX Road. The defendant's land is immediately to the west and has an irregular frontage on its northern side to XXXXX XXXX. A public street, XXXXX X, which is only 6.095 metres wide, runs from the rear of the defendant's land generally westward to XXXXX XStreet.
To the south of both properties lies the house property No. 57AXXXXX XXXXX Avenue, connected by a battleaxe drive to XXXXX XXAvenue. No. 57A has a common boundary with the plaintiffs' property, and also a common boundary with the defendant's property. South of No. 57A is house property No. 57 XXXXX XAvenue, which has a narrow frontage to XXXXX xxAvenue. No. 57A has the benefit of an easement for services and an easement to drain water, both over a strip of land 1 metre wide running the length of No. 57 and reaching the street frontage of XXXXX X Avenue. Drainage from No. 57A discharges into the gutter in XXXXX XAvenue through a pipe in this easement.
The easement which the plaintiffs seek is shown on the plan annexed to the summons by Mr Surveyor Palmer of 24 August 2010 entitled "Proposed drainage line within new drainage easement." There is an accompanying sketch. The proposed easement relates to a strip of land one metre wide, running for 21.105 metres the full length of the rear line of the defendant's land, connecting the plaintiffs' land at its western corner with XXXX Lane. It is proposed in the plan that within that strip of land there should be a 200mm diameter drainage pipe centred within the easement and buried 0.45 metres below the surface. However the plaintiffs' experts now intend to use a 150mm diameter pipe. The experts agreed (Exhibit G) that a pipe of diameter 150mm would be appropriate, that the strip is not subject to vehicular traffic, that 100mm of cover over the pipe was permitted and that a minimum depth to the invert of the pipe was 250mm. The proposed pipe would continue past the defendant's boundary under XXXX Lane until it discharges into an existing lined open channel which is part of the Council's drainage works. The proposed pipe would generally follow the inclination of the natural surface, which slopes downwards slightly to the west, so that water would drain by gravity to XXXXX Lane.
The trench would be excavated with a bobcat. An aggregate base would be laid in the trench and the PVC pipe would be laid on top of that and back filled with aggregate. The aggregate keeps the pipe in place and also is itself means of drainage. No inspection pit would be required within the defendant's land. After back fill the presence of the pipe and of the easement would not be visually observable. Further excavation would be required in XXXX Lane. Of course there would be construction noise from the use of the bobcat. It is quite likely that rock requiring excavation would be encountered. Expressions in evidence about the likelihood of finding rock are not based on site investigation. There would also be construction noise from the use of a jackhammer in the likely event that rock would be encountered. I find that two weeks is a reasonable estimate of the maximum work period. Mr Lowry indicated circumstances in which the pipe would be available for potential storm water drainage from the defendant's property. He estimated the costs to the plaintiffs as about $15,000 and possibly $20,000.
Within the defendant's land there is already an existing 200mm diameter PVC drainage pipe which drains water from the defendant's land generally westward into XXXXX Lane and reaches a junction with drainage from another property from which water is piped to the lined open channel in XXXX Lane. The existing pipe is situated a little further than 1 metre from the rear line of the defendant's property.
The plaintiffs' land contains 1,015 square metres and has a frontage of 30.005 metres to XXXXX Road. Its dimensions are irregular but its rear line is approximately 37 metres from XXXXX Road. The natural gradient of 144 XXXXX X Road is a diagonal gradient across the block from the north east corner to the south west corner. The natural gradient takes surface water onto 146 XXXXX XRoad and 57A XXXXxAvenue. There is about a 6 metre fall from XXXXX Road to the rear line of the plaintiffs' property.
The defendant's land contains 592 square metres. Its rear line is approximately 45 metres from its frontage to XXXXX Road. The gradient of 146 XXXXX Road is basically front to back, from north north east to south south west from the XXXX Road frontage to the rear boundary. The natural flow of surface water is onto 57A XXXXX XX Avenue. The defendant's land was formerly part of Lot XXX DP XXXXX , and after a re-subdivision in 1995 two similar dwellings were constructed on what had previously been a single lot. A positive covenant in favour of the Council created by DP XXXXX relates to retention and management of storm water on the defendant's land. The existing pipe carrying drainage to XXX Lane could well be part of arrangements made in compliance with the covenant. The defendant's land is approximately 15 metres wide but is connected by a tongue of land 6.72 metres long to XXX Lane, producing a rear line 21.15 metres in total.
The defendant's property is not a dual occupancy, although it appeared so to Mr Lowry. The land title history taken with aerial photographs shows that there are two quite similar properties, but they are separate constructions on what was a parcel of land suitable for a single dwelling, until 1995, when there was a re-subdivision. At that stage there was a restrictive covenant requiring a single dwelling.
Section 88K(1) and (2) are:
(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.
An order must specify matter required by subsection (3). Subsection (4) contains provisions which must be observed on the making of the Court's order and subsection (5) makes special provisions for costs.
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 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.
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.
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]).
I address the considerations in subsection (2). The plaintiffs' land is used for a residence and is proposed to be used for a development for dual occupancy, which already has been considered by Council and received development consent, under the Environmental Planning and Assessment Act 1979 . The Council was required to consider the public interest .The proposed development by increasing the density of structures on the land will increase the accumulation and runoff of storm water and other surface water, which hitherto has not been subject to any particular regulatory control, but has been left to run off in accordance with natural ground surface; hence the deferred conditions. It can be expected that Council will not permit re-subdivision for a further five years after construction of dual occupancy dwellings. Mr Israel, architect, estimated the costs of the plaintiffs' proposed works at $950,000. The proposed development is in accordance with the highly regulated controls over town planning, and will take place in an area already developed for residential purposes which town planning requires primarily to be used for residential purposes. It will provide more modern housing, for more people. The proposed use of the plaintiffs' land will not in any way be inconsistent with any recognisable public interest. I am satisfied as to condition 2(a).
In March 2011 the plaintiffs proposed payment of $11,000 inclusive of GST as compensation and supported this proposal with a written valuation. While the proceedings were pending arrangements were made for a conclave among experts, including valuing experts, on issues involving expertise. The outcome included an agreement as to valuation, recorded in a letter in Exhibit 2, which assessed the value of the proposed easement if granted at $15,000 inclusive of GST. This agreement relates to land value, which is not the only element relevant to compensation. Works to put the pipe in place in the easement will involve excavation; until the work is undertaken it cannot be known how long the work will take or what subsoil conditions will be encountered, but it is likely that rock excavation will be required, there could well be some days of jackhammer work, the whole of the work will take up to a week and could well take longer, and this will involve disturbance, noise and other annoyance to the occupants of the defendant's house including the defendant herself. This will happen in circumstances where the work, and the presence of workmen are contrary to the defendant's wishes and feelings. However when the work is completed the pipe will be buried in soil, on a bed of aggregate, and is unlikely to require attention, probably none at all for some decades. It will be no more of an inconvenience or source of loss to the plaintiff than the presence of her own drainage pipes buried in her back yard. There is a prospect of further disturbance at some unknown time in the future should maintenance or replacement work be required on the pipe. An assessment of adequate compensation for loss or other disadvantage requires consideration of inconvenience and disturbance which may occur in the future.
In my assessment, $10,000 is adequate compensation for loss and disadvantage arising from imposition of the easement, in addition to $15,000 as agreed loss of value of the land: a total of $25,000. Condition 2(b) is satisfied.
Mr Orsatti called at the defendant's house late in August 2010 and spoke to the defendant's brother Mr Zhiyong Chen; Mr Orsatti told him that he needed some documents signed so that he could put a drainage pipe through the backyard. Mr Chen told him that he would speak to his sister. The following day Mr Orsatti brought some documents including a Transfer Granting Easement and left them with Mr Chen, who sent a copy by email to his sister who told him that she declined. Mr Chen informed Mr Orsatti by letter, and returned the documents. Mr Orsatti spoke to him again a few days later and asked for the reasons. Mr Chen said "It will have a bad effect on our property. It is our land and it is an infringement of our property and it will drop the value of house". There were some further communications and Mr Chen again told Mr Orsatti that the proposal was refused.
The defendant's evidence shows that she knew something of Mr Orsatti's development proposal because she asked her brother to tell Mr Orsatti in writing that she did not want any easement going through her property because it affected her use of land, created inconvenience and would affect value . These communications serve to show that when Mr Stepanoski did speak to the plaintiff, the proposal was not new to her. Mr Orsatti's attempts to obtain an easement are not otherwise in fulfilment of condition 2(c).
When Mr Stepanoski saw that the property was for sale and was to be auctioned he regarded it as very suitable for himself and his family in their circumstances; it would be a residence for his wife and children and an adjacent home for his parents. The advertising stated that the property was DA approved for dual occupancy. He regarded it as the ideal situation to realise a family dream. He took a very favourable view of the design which had been prepared by an architect Mr Israel, submitted to Council and approved. He made enquiries of Council's planners, was given some information by them and had access to their file. He noted information on the Council file to the effect that notification of the proposed development had been sent to the defendant and other neighbours on 31 May 2010 and that no objection or comments had been received. He understood that to get an easement it would be necessary for him to offer reasonable compensation. The plaintiffs sold their family home to raise the purchase price. He made arrangements to borrow construction costs.
The plaintiffs attempted to communicate with the defendant about the proposed easement but these attempts were unsuccessful because Mr Stepanoski did not encounter the defendant in occupation of the house. Mr Stepanoski called at the defendant's house a number of times but did not ever encounter her. On one occasion he told another person who was there that he had been trying to introduce himself to the people who lived there. Then in March he noticed that there was someone at home, and the plaintiffs called at the house and met the defendant. They made arrangements to speak to her again. They saw her again at her home; she gives the date as 14 March while Mr Stepanoski says it was on or about 21 March. The plaintiffs explained that they purchased the house from Mr Orsatti with the projected plan, that they needed to build an easement under the defendant's backyard, that they had been told that she did not agree with this easement and that they were willing to pay her for the easement. She told them to the effect that compensation was not her concern and she was concerned about the burden on her land.
The plaintiffs gave her a letter written by their solicitors; the letter actually bears date 27 January 2011 but she received it in March. The letter pointed out (as she had known) that the previous owner wished to acquire an easement, that the plaintiffs wished to resolve the matter without litigation, that they proposed to pay her $11,000 for an easement and that if the offer was not accepted they would commence litigation. By the time the letter was actually delivered these proceedings had been commenced. The defendant did not agree and has never agreed to grant an easement on any terms. Further approaches would not have achieved any change: her position is very firm.
Attempts to obtain the easement at all times up to the presentation of the application in Court before me should be regarded; there is no reason why attention is limited to attempts made before the proceedings were commenced. In the circumstances I am satisfied and I find that all reasonable attempts were made by the applicant to obtain the easement and the attempts have been unsuccessful. Condition 2(c) is satisfied.
The issue of reasonable necessity arises under subsection (1). The plaintiffs' proposed use of their land for re-development in dual occupancy accords with town planning controls and has development consent from the Willoughby City Council, with conditions I have mentioned. Development for dual occupancy is a normal event, although it has not frequently happened in the Chatswood West area. It appears that subdivision of a previous lot suitable for a dwelling into two happened in 1995 and produced the defendant's dwelling. I see nothing to commend a decision which in effect compelled the plaintiffs to continue with the existing dwelling on their land and to turn away from the dual occupancy development. I find that the redevelopment is a reasonable proposal.
The plaintiffs' proposal has the advantage, in the circumstances a large advantage, that it has been considered by the town planning authority, which is prepared to accept it. There are two alternative methods of managing drainage from the plaintiffs' land which were put forward as issues and dealt with in evidence. These do not have the same advantage; they have not been considered by the Council and its planners, because Mr Orsatti and the experts who dealt with his development application did not take them before Council for consideration. There are substantial reasons in what can be known of the Council's policy when dealing with development applications why Mr Orsatti's application took the form it did.
Redevelopment which increases the intensity of occupation leads to greater and more immediate runoff of storm water and other surface water, and town planning requires that this be dealt with by providing for collection and retention so that release does not overwhelm drainage facilities, and takes place in volumes which drainage facilities can deal with, so as to minimise risks of flooding or other water damage. Willoughby City Council adopted Water Management Developing Control Plan DCP 35 on 26 September 2005, for objectives which include applying water sensitive urban design (WSUD) principles which minimise impact on the natural water cycle. Its terms show that it applies to all development on private and public land in the City Council area where development requires consent from Council. It is not entirely mandatory; as is stated in its clause 1.6 page 103:
"As the consent authority, Council will assess each application on its merits. Consents, approvals and releases may be withheld if the application does not comply with the controls set out in this Development Control Plan.
If an application does not comply with a control under this Development Control Plan and any appropriate Technical Standards, the applicant must clearly demonstrate:
1. an understanding of the purpose of the control and Technical Standard; and
2. how the proposal will satisfy the objectives of this control."
In clause 5.2.4 there are statements about the required drainage easement widths. The statements about private drainage include a statement that where a pipe is less than 300mm in diameter the drainage easement width is to be 1.25 metres wide; but another statement is not consistent "... an inter-allotment drainage pipeline is to be contained within an easement of not less than an 0.9m width".
Mr Lowry contemplated a pipeline of 150mm diameter, saw the anomaly in clause 5.2.4, and said in evidence that to lessen the impact on the defendant's land "I pulled it back to a metre to see if Council would accept it upon submission". That is, he chose 1 metre, and events showed that this was acceptable to Council. The choice of 1 metre as the width of the land to be subject to the easement is conceivably wider than would be indispensably necessary to accommodate the pipe and its excavation and aggregate bed, but town-planning approval was unlikely to be available for a significantly narrower strip. Mr Lowry designed the drainage with an understanding of the architectural plans and their provision for impervious areas including paving. His understanding that Council did not permit any pump-out solution was important for his decision to design for storm water drainage through a number of retention pits to which storm water was to run and then be discharged by gravity along a pipe in the proposed easement.
An alternative proposal for disposal of storm water and other surface drainage in the proposed development with which evidence dealt was the provision of pump-out, electric pumps which come into operation when indicated by the contents of retention tanks and pump water from the tanks, which would be generally at the lowest level of the plaintiffs' land, up to the street drainage works in XXXXX Road, This is a feasible engineering task and similar works have been installed in many developments. However, although many town-planning authorities do not take this view, Willoughby City Council has a well-established policy averse to accepting pump-out arrangements, and a well-established policy favouring drainage arrangements which employ gravity. There are good reasons for this view; no less good because other town planning authorities take a different view. There may be electrical failure and pumps may be overwhelmed in extreme events. Of course all drainage arrangements have potential shortcomings, but the Council's policy and documents show decided preference for gravity drainage. Notwithstanding this policy, each application goes through detailed individual assessment.
It would be Council's duty to consider a pump out system, if a system of gravity drainage were not available in practical terms. Council's policy says (page 111)... "The exceptional circumstance is where physical constraints make it clearly impossible to drain to a Council system under gravity, Council may consider alternate methods".
Evidence shows that it is possible that Council might be persuaded to accept pump out systems. Mr Orsatti did not put this to the test; and there were good reasons for not doing so, in view of the Council's established views against pump-out. I see the possibility that if no other drainage solution were available Council might approve pump out; but there can be no certainty, and this is potentially a difficulty which would prevent redevelopment.
Another possible solution was drainage through two properties to the south of the plaintiffs' land. That land is at a significantly lower elevation than the land of the plaintiffs and of the defendant, 2 metres and more. It would be necessary to obtain an easement over the land of No. 57A. Its proprietor has been approached and has declined to grant such an easement. Drainage of water in this way would involve considerably more engineering work than drainage as the plaintiffs propose. It would be necessary to conduct water down a rock face to the rear yard of No. 57A; this may involve cutting into rock, or fixing a pipe to the rock, in each case with adverse effect on appearance. A pipe bolted to the exposed rock face would of course be visible and would have an adverse aesthetic impact which might be ameliorated by screening with shrubs. A pipe system concealed by cutting into rock would not present the same aesthetic issues. Sleeving or inserting the pipe into rock would involve significant further expense, estimated by Mr Lowry at $9,380 plus GST.
One proposal was that the drainage then be piped diagonally across the rear yard of No. 57A to a point where it would join a pipe on the easement which 57A now holds over No. 57. Creation of an easement over a diagonal strip would in my judgment be a very unsuitable arrangement because it would have a permanent adverse effect on possible redevelopment or further development of No. 57A, for example, for a new dwelling or a duplex. Design considerations include the presence of a swimming pool in the backyard there which any drainage easement must avoid. Evidence dealt with an alternative in which the easement was located within a 1 metre wide strip following the northern eastern and south eastern boundaries of No. 57A, until it reached the existing easement over No. 57. The relative elevations mean that gravity drainage to XXXXX XX Avenue would be feasible. Such an easement would involve far more work than the plaintiffs' proposal. The boundaries of No. 57A are heavily vegetated. The work would impact on trees on the site; there are trees near the boundary, and they are protected by a tree preservation order. Detailed attention would be required to planning and obtaining Council approval for such work, which would probably involve excavation and boring under trees. Council approval is uncertain. There would be dimensions of difficulty and expense which are not involved in the plaintiffs' proposal. The owner of No. 57A has been asked for his agreement and will not give it. In view of the difficulties and disturbance which the proposal would involve for an owner of No.57A, his withholding consent is entirely reasonable. Obtaining an easement over No. 57 could be expected to give less difficulty, as an easement and drainage in favour of No. 57A already exists. However the owner of No. 57 has also refused to grant an easement.
In my judgment this proposal is remarkably clumsy and presents no advantages in terms of land use or engineering work over the plaintiffs' proposal. The potential adverse effect on further development on No. 57A of the diagonal bisection is in my judgment prohibitive, and the potential adverse effect of an easement taken round the boundaries of No. 57A is significant. The proposal would be more expensive. It involves intervention in the rights of the owners of two parcels of land not of one. It depends on Council approvals which are uncertain. It has nothing to commend it from any point of view except the point of view of an owner of the defendant's land who very strongly wishes to resist an easement over her land. It is not beyond the feasible to run drainage through No 57 and No. 57A, but it would be a far less satisfactory solution than the plaintiffs' proposal.
The alternative drainage methods discussed, pump out and easements through No. 57A and No. 57, have far less to commend them in terms of practicality than the plaintiffs' proposal. They fail in terms of relative costs, feasibility and expense. There are good reasons why Mr Orsatti did not put them forward when he made his development application; they are both far less likely to commend themselves to town planners than a metre easement and drainage through the defendant's land.
The plaintiffs' proposal is the shortest and simplest and involves the least engineering work and it is unlikely to involve significant long-term expense. It will function through gravity and will not require significant use of machinery or maintenance. It will have no adverse aesthetic impact. It will have markedly less impact on the utility of the defendant's land than an easement through the land of No. 57A would have on that land.
The easement if granted will become a factor which requires consideration and may affect the form of possible future developments of the defendant's land. The possible adverse impact is limited because there is a strong tendency for development controls to prevent or severely limit development within 1 metre of property boundaries. This is reflected in several ways in provisions of Council's policy documents relating to development.
The defendant has in view developing a swimming pool in her backyard. She has had this in mind for some years as something she would possibly carry out in the future. The present proposal made it necessary and reasonable that she address this more fully. She asked her relative Mr Jackson Cheung to arrange with a swimming pool constructor Pride Pools to prepare plans and obtain Council approval. Mr Cheung arranged for a firm Right Angle Design and Draft to prepare plans for construction of a swimming pool. Mr Cheung produced in evidence a plan dated August 2011 which shows a proposed pool which would occupy most of the open space in the rear yard, at a lower elevation than the residence, marked off by a rock cliff between the pool and the residence. The planning is not complete and has not been submitted for development consent or other approval. There are signs on the plan that the planning is incomplete; for example the contemplated pool volume is 55,500 litres whereas it is stated on the plan that the pool is not to have a capacity greater than 48.5 kilolitres. Construction associated with the pool is shown as reaching the rear boundary at one point; this may well be paving. The side wall of the pool is shown as reaching a point 900mm from the rear boundary at one point. The existing drainage works in the defendant's yard are not shown or provided for.
Much depends upon the treatment by Willoughby City Council of any application for development consent when made. In my finding the existence of a drainage easement 1 metre wide, while it will require attention and consideration in planning for the pool and its construction, and may well require some modification to what would otherwise be done, would not raise serious difficulties for the construction of a pool. It should be understood that the existence of an easement for drainage would not prevent usage or development of the 1 metre strip except that it would prevent development which would unreasonably impede use of the easement. When the plaintiffs' works are constructed within the easement and then back-filled, there would be no interference with the easement by some works which could conceivably be carried out on the land; including paving over the surface or planting vegetation near the rear boundary to screen the swimming pool. The choice of plants would be limited and it would not be possible to plant large trees along the boundary line. Any such activities would be subject only to the contingency that at some time they may be disturbed by maintenance or repair on the pipe. It would not be the existence of the easement that would prevent construction of the side wall of the pool within that 1 metre strip, provided always that the plaintiffs remained able to use their drainage pipe unimpeded, and further provided that the pipe was not disturbed by construction works for the pool. There is the potential that lateral support of the pipe might be disturbed by some such works; and that potential exists even if works are carried out outside the 1 metre strip. However I do not accept that this is a significant difficulty, as tasks like that are within the ordinary range of work required in construction including pool construction.
It is far more likely that restrictions on the pool and its construction will arise, if they do arise, from requirements of the Council relating to development control or building control in relation to pool construction. DCP Clause D2.7 page D51 states the Council policy that there can be no swimming pool within 1 metre of a boundary. Elsewhere the policy states that structures cannot be built within 4 metres of a boundary. That is, the outer edge of the pool wall could reach the boundary of the easement. Mr Comanos, architect suggested in evidence that DCP 35 paragraph D.2.7 and its provision for setbacks contemplate that the water of the pool could reach the boundary of an easement at 1 metre and that the thickness of the wall could be built within that 1 metre, because Council in most cases allows structure to within 900mm of the property boundary. Whether Council would act on this basis cannot be known unless an application is made. In my view a wall 100mm thick standing within the 1 metre affected by the easement and erected after the pipe had been put in place would not be a breach of rights under the easement, because it would not impede reasonable enjoyment of those rights; so long as the pipe was not disturbed during construction. In the absence of an application to Council, this is an abstract subject. Any modification, indeed any influence at all on the location of the southern wall of the pool, and on the area of pool surface available, are unlikely to be more than minimal.
DCP 35 section 5.2.3 states Council policy against permanent structure or obstruction of overland flows on a drainage easement. For practical purposes, Water Management DCP 35 paragraph 5.2.5 means that Council approval of permanent structure over a drainage easement is unlikely, perhaps not entirely impossible. The defendant's experts expressed the view that compliance with section 5.2.5 of Development Control Plan 35 would require that the thickness of the wall of the proposed ground pool be offset outside the easement. They pointed to the possibility that additional offset may be required to minimise possible impact on the constructed easement drainage system. I do not regard this as a serious likelihood. In any event, Council can be expected to require that the pool be situated at least 1 metre from the boundary whether or not there is a drainage easement.
However this has not been put to the test by an actual application. The presence of the drainage easement and of the pipe within it would be factors requiring attention during pool construction, but would not be a serious impediment. Support during excavation and construction would require careful attention, by shoring or batter; but this would be within the ordinary range of skill required in construction work.
At the time the summons was filed Mr Stepanoski had not actually spoken to the defendant; he had tried to contact her and called at her house a number of times, and he had asked his solicitor to contact her because he was unsuccessful in doing so. He knew at the time of purchase that he would have to get an easement and that there was not already an easement. It was suggested against him that he had taken a chance on getting the easement, in counsel's phrase "taken a punt". I do not see any circumstance adverse to his application in his having bought the property with the understanding that the easement was still to be obtained. Only a person who had bought the property could apply under section 88K.
In my finding the impact of the easement on the defendant's land and on the enjoyment and use of the defendant's land by owners will be very slight, on an altogether ordinary scale for use of suburban land in Sydney, where such drainage easements are commonplace.
The plaintiffs' proposal is the shortest and most cost effective path for running a storm water pipe, and would involve pipe length of about 29 metres to reach the lined open channel in XXXXX Lane, the shortest route to Council drainage. After construction was complete there would be no adverse aesthetic impact on the defendant's property.
Except during construction and on what could expected to be extremely rare occasions when maintenance is carried out within the defendant's land, the easement would have next to no impact on day to day use of the defendant's land; the pipe would be buried in the soil, not visible, in the last one metre of the defendant's rear yard. It would function very much as the defendant's existing pipe work draining water to XXXX Lane. When I asked the defendant in evidence about the existing drainage works her answer showed that she had very little knowledge of them; plainly they have never given her any difficulty or trouble. It can be expected that the proposed easement would give her even less trouble, particularly as it would occupy a strip one metre wide close to her rear boundary and it is quite difficult to obtain approval for development there.
In my finding, the easement proposed is by far the simplest solution available to the need presented by the proposed dual occupancy for development for drainage of storm water.
I find that the proposed easement is reasonably necessary for the effective development of the plaintiffs' land.
I have regard to the parties' wishes and feelings which were clearly expressed on both sides and are not unreasonable. The defendant reasonably wishes to continue to have her rights undisturbed. However the wishes and feelings of both parties are completely outweighed in importance by land use considerations. I exercise the discretion in subsection (1) in favour of ordering an easement.
Drafting the Court's order requires careful attention to requirements of section 88K, including detailed specifications required by subsection (3). This requires satisfaction that the plan mentioned in subsection (3) and to be referred to in the order is capable of being registered. As today is the last day of my commission as an Acting Judge, it is unlikely that I will be able to attend to this. For this reason I will make an order of reference to an Associate Judge to settle the terms of the order in accordance with these reasons.
Liability for costs of these proceedings is prescribed by subsection (5). If there is a wish to seek an order contrary to the ordinary outcome in subsection (5), that application should be made to the Associate Judge.
Orders
My orders are:
(1) Order pursuant to section 88K (1) of the Conveyancing Act 1919 that an easement be imposed over the land of the defendant in favour of the land of the plaintiffs referred to in the summons according to the terms of an order to be made by an Associate Judge under the referral in order (2).
(2) Order pursuant to Schedule D Part 3 Rule 4(b) of the Supreme Court Rules 1970 that it be referred to an Associate Judge of the Court
(a) to settle the terms of and to make an order giving effect to this order in accordance with the reasons stated on 16 December 2011 and in accordance with the terms of section 88K of the Conveyancing Act 1919 particularly subparagraphs (1) (3) and (4) thereof;
(b) to hear and determine questions relating to costs of the proceedings and to make an order for costs in pursuance of section 88K(5).
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Decision last updated: 17 December 2011
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