The Owners Corporation - Strata Plan 105507 v Newcastle City Council

Case •

[2025] NSWLEC 111

•

03 October 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: The Owners Corporation – Strata Plan 105507 v Newcastle City Council [2025] NSWLEC 111
Hearing dates: 3 October 2025
Date of orders: 3 October 2025
Decision date: 03 October 2025
Jurisdiction:Class 1
Before: Preston CJ
Decision:

The Court orders:

(1)   Merewether Historical Society Incorporated (the Society) is joined as a party to the proceedings, to be designated as the Second Respondent.

(2)   The Society is to file a notice of appearance within 2 days.

Catchwords:

PARTIES – joinder of party – modification of development consent to extinguish easement – easement in gross benefitting local council – servient owner obstructing easement – public body litigating to remove obstruction – extinguishment of easement would affect public body’s contingent right in easement and interest in litigation – joinder of public body necessary and in interests of justice – public body seeks to raise issues concerning power to approve modification – issues otherwise not sufficiently addressed – joinder appropriate

Legislation Cited:

Conveyancing Act 1919, ss 88A, 88B

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15(1)(e), 4.55(1A), 8.15(2),15(2)(b)

Land and Environment Court Act 1979

Newcastle Local Environmental Plan 2012

Uniform Civil Procedure Rules 2005, r 6.24

Cases Cited:

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112

Arrage v Inner West Council [2019] NSWLEC 85

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226

Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310

Category:Procedural rulings
Parties: Merewether Historical Society Incorporated (Applicant for Joinder)
The Owners Corporation – Strata Plan 105507 (Applicant)
Newcastle City Council (Respondent)
Representation:

Counsel:
J Farrell (Applicant for Joinder)
M Fraser (Applicant)
S Faux (Solicitor) (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant for Joinder)
Bilbie Faraday Harrison Solicitors (Applicant)
Matthews Folbigg Lawyers (Respondent)
File Number(s): 2025/61685
Publication restriction: NIL

EX TEMPORE JUDGMENT

  1. Merewether Historical Society Incorporated (the Society) seeks to be joined as a party to an appeal brought by The Owners Corporation – Strata Plan 105507 (Owners Corporation) against the decision of Newcastle City Council (Council) on 2 December 2024 to refuse an application to modify a development consent for a mixed use development at 37 Llewellyn Street, Merewether (development site). The Society seeks joinder under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR).

  2. The Society moved on its notice of motion filed on 22 September 2025. It read in support of its motion the affidavits of Mr McKelvey of 22 September 2025 and Mr Wright of 22 September 2025 and 1 October 2025 and tendered the exhibits to these affidavits. The Society also tendered a bundle of documents with the relevant instruments and consents.

  3. The development consent sought to be modified had been granted by the Council on 9 March 2018 for a mixed use development on the development site. That development has since been built. An occupation certificate was issued on 9 December 2022. A driveway for the development has been constructed in the location of an existing easement but the development obstructs use of the existing easement in various ways, including by the installation of a roller door and a fire door which if closed would obstruct access to the easement.

  4. After completing the development, the Owners Corporation applied to the Council to modify the development consent by substituting one condition, condition 69, and deleting another condition, condition 86, concerning the creation and maintenance of an easement, a right of carriageway, burdening the development site. Conditions 69 and 86 sought to impose a new easement in addition to the existing easement burdening the development site. The existing easement was created by a Deed on 19 April 1982 and registered as part of the then Deposited Plan 623369. The existing easement is an easement in gross, as it is an easement without a dominant tenement, in favour of the Council: see s 88A(1A) of the Conveyancing Act 1919 (NSW). The right of carriageway is 3.66m wide and runs from Llewellyn Street to the Council owned land at the rear with frontage to Caldwell Street. The Council owned land comprises of a park at 25B Caldwell Street, known as Campbell Park, and a licensed bowling club at 23 Caldwell Street, known as Club Merewether, with bowling greens. Since its creation, the right of carriageway has provided for occasional vehicular use and public pedestrian thoroughfare from Llewellyn Street to Caldwell Street.

  5. The lot burdened by the existing easement was consolidated in 2020 with adjoining lots into Lot 1 DP1264323. The existing easement was not, however, recorded against the consolidated Deposited Plan at this time. This omission was rectified on 24 February 2022 when a request was made to the NSW Land Registry Services to include the easement on Deposited Plan 1264323. Later that year, the title of the land was converted to strata title, with Strata Plan 105507 being registered on 15 December 2022 showing the land to be burdened by the existing easement.

  6. As I have noted, the development consent for the mixed use development was granted by the Council on 9 March 2018. The Council approved three modifications of the consent on 26 April 2019, 5 August 2020 and 19 March 2021. The Owners Corporation sought a further modification on 5 November 2024 by modification application MA2024/00391 to substitute condition 69 and delete condition 86 of the development consent. This is the modification application that is the subject of the Owners Corporation’s appeal to the Court.

  7. The current condition 69 provides:

"The proposed driveway to a height of 3.5m for the full length of the property is to be the subject of an appropriate reciprocal right-of-carriageway for access to lot 25 [sic] Caldwell Street, Merewether and the necessary survey plan and accompanying instrument under Section 88B of the Conveyancing Act 1919 (NSW) being registered with NSW Government Land & Property Information prior to the issuing of any Occupation Certificate for the proposed development, it being noted that the instrument is to provide that the right-of-way is unable to be relinquished, varied or modified without the concurrence of The City of Newcastle."

  1. The proposed substituted condition 69 would provide:

"Within 2 months of this modified Condition 69 being substituted for Condition 69 as in the Notice of Determination of Modification of DA2016/01411 dated 19 March 2021, the Owners Corporation for SP105507 (formerly being Lot 1 DP1264323 prior to registration of the strata plan) shall present to the Council for endorsement and upon endorsement register with NSW Government Land & Property Information the survey plan and accompanying instrument under Section 88B of the Conveyancing Act 1919 in the form annexed and marked “A”."

  1. The current condition 86 sought to be deleted provides:

"A minimum clear opening height of 3.5m being maintained over the proposed 'right of carriageway' within 37 Llewellyn Street and servicing 25 Caldwell Street, Merewether."

  1. The Owners Corporation’s proposed modification is to extinguish the existing easement burdening the development site and substitute a new easement. Comparison of the survey plans and s 88B instruments reveals two key differences between the existing and new easements. The first difference is that whilst the existing easement and the new easement required by the current condition 69 would extend along the full depth of the development site, from its frontage to Llewellyn Street to the boundary with the Council owned land with frontage to Caldwell Street, the easement proposed to be created by the Owners Corporation would stop short of the boundary with the Council land by 3.745m. The reason for this difference, the Owners Corporation advanced, is that when the mixed use development was constructed, buildings and other structures were erected in this nearly 4m space at the rear of the driveway for the development.

  2. The second difference is that the easement required by the current conditions 69 and 86 require a minimum clear opening height above the easement of 3.5m while the easement proposed to be created by the Owners Corporation would not require this opening height above the easement. The reason for this difference, the Owners Corporation advanced, is that the development has been built partly in the airspace over the easement and there are sewer pipes and other infrastructure related to the fire protection system which hang below the level of the underneath surface of the first floor concrete slab, which reduce the opening height to less than the 3.5m required by the current conditions 69 and 86.

  3. The Council determined on 2 December 2024 to refuse the second modification application. The Owners Corporation has appealed to the Court against the refusal. The Council raises in its Amended Statement of Facts and Contentions two contentions why the modification application should be refused. The first is that the proposed modification of the development consent is not in the public interest with respect to the proposed extinguishment of the existing right of carriageway. This would restrict public access through the development site from Llewellyn Street to the Council land fronting Caldwell Street. The second contention is that the Court, on appeal, lacks power under the EPA Act or the Land and Environment Court Act 1979 (Court Act) to make orders to extinguish the existing easement.

  4. These are the proceedings to which the Society seeks to be joined as a party. The Society contends that it should be joined as a party, first, under r 6.24(1) of the UCPR as its joinder as a party is necessary to the determination of a matter in dispute in the proceedings and, second, under s 8.15(2) of the EPA Act as the Society is able to raise issues that should be considered on the appeal but would not be likely to be sufficiently addressed if the Society is not joined as a party (s 8.15(2)(a)) and it is in the interests of justice and the public interest that the Society be joined as a party (s 8.15(2)(b)).

  5. As to the first reason, the Society argues that it is necessary to join it as the Court’s determination of the Owners Corporation’s appeal may directly affect the Society’s rights or interests. The Society has brought proceedings in the Supreme Court of NSW against the Owners Corporation claiming that the Owners Corporation is unlawfully obstructing the existing right of carriageway, by having built structures and installed a roller door and a fire door in the easement that prevent members of the public, including the Society’s members, from using the easement to pass through the development site between Llewellyn Street and the Council land fronting Caldwell Street. The Society seeks orders that the Owners Corporation remove the obstructions and otherwise abate the nuisance. The Owners Corporation is defending the proceedings, arguing that members of the public are not authorised by the Council, the authority in whose favour the easement was created, to use the right of carriageway. The Society’s proceedings in the Supreme Court have been adjourned pending the resolution of the Owners Corporation’s appeal in this Court.

  6. The Society argues that if the Owners Corporation’s appeal were to be upheld, and condition 69 of the development consent were to be modified as sought by the Owners Corporation to extinguish the existing easement and substitute a new easement, the Society’s proceedings in the Supreme Court would be rendered futile. The existing easement that the Society seeks to enforce in the Supreme Court proceedings would have been extinguished by this Court’s order modifying the development consent.

  7. As to the second reason, the Society argues that it would wish to raise four issues on the appeal in this Court, which are not being raised by the Council. First, the Court lacks power to approve the modification application under s 4.55(1A)(b) of the EPA Act because the development as modified will not be substantially the same as the development for which the consent was originally granted. Second, the modification application should be refused having regard to the objectives of the applicable zone E1 Local Centre under Newcastle Local Environmental Plan 2012. Third, approval of the modification application is not in the public interest under s 4.15(1)(e) of the EPA Act because extinguishment of the existing easement will remove access along the existing easement by members of the public, including members of the Society. Fourth, the modifications lack sufficient information and detail to be properly assessed.

  8. The Society argues that it is necessary to join the Society as a party to the proceedings in order for it to assist the Court in its determination of, firstly, whether the Court has the power under s 4.55(1A) of the EPA Act to approve the modification application and, if so, whether the Court in its discretion ought to exercise that power having regard to the matters of relevance in s 4.15(1) of the EPA Act. The Society argues that these issues will not otherwise be “sufficiently addressed” if the Society is not joined as a party (see s 8.15(2)(a) of the EPA Act). The Council has not raised these issues and the Owners Corporation will not address them if no party raises them as principal contested issues in the appeal.

  9. The Society argues that it is in the interests of justice that the Society be joined as a party to be heard on the Owners Corporation’s modification application to extinguish the existing easement, the use of which members of the Society currently enjoy and the obstruction of which the Society is seeking to restrain and remedy in the proceedings in the Supreme Court (s 8.15 (2)(b)(i)). The Society argues that approval of the modification application to extinguish the existing easement would be contrary to the public interest. The joinder of the Society to oppose such modification is in the public interest (s 8.15(2)(b)(ii)).

  10. The Council did not oppose the joinder of the Society to the appeal. The Owners Corporation did not seek to adduce any evidence on the motion and also did not oppose the joinder of the Society to the appeal.

  11. I consider the Society should be joined as a party for two reasons. The first reason is that joinder of the Society as a party is necessary to the determination of all matters in dispute in the proceedings. A necessary party includes a party that enjoys a legal right or interest which may be affected by the outcome of the proceedings: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [15], [187]. Members of the Society, as members of the public, arguably have a right to use the existing easement to pass through the development site between Llewellyn Street and the Council land fronting Caldwell Street. The existence and nature of that right is yet to be determined by the Supreme Court, but it is at this stage a contingent right. The public’s use of the easement has been obstructed by the Owners Corporation building over the easement and installing a roller door and a fire door. The Society’s proceedings in the Supreme Court seek orders for the removal of the obstructions and abatement of the nuisance.

  12. The contingent right of members of the public, including members of the Society, to use the existing easement and the interest of the Society in its proceedings in the Supreme Court stand to be affected by the determination of the Owners Corporation’s appeal in this Court. If this Court were to uphold the appeal and approve the modification sought by the Owners Corporation to extinguish the existing easement and substitute a different easement, the Society’s contingent right under the existing easement and interest in the Supreme Court litigation would be rendered futile. These adverse effects on the Society’s right and interest make joinder of the Society as a party to the Owner Corporation’s appeal not only necessary under UCPR r 6.24, but also in the interests of justice under s 8.15(2)(b)(i) of the EPA Act: see Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226 at [23]-[25].

  13. Second, the Society seeks to raise issues that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the Society were not joined as a party (s 8.15(2)(a) of the EPA Act). Of the four issues the Society has foreshadowed raising if it were to be joined as a party, the first issue is the most significant. Section 4.55(1A)(b) of the EPA Act sets a precondition to the exercise of the power to modify a development consent that the consent authority be “satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)”.

  14. The Council has not raised as an issue in the appeal that the development, if modified as sought by the Owners Corporation, will not be substantially the same development as that approved by the original development consent. This issue was not a reason for the Council refusing the modification application. In the Council’s assessment of the modification application, the Council did not undertake the comparative analysis required by s 4.55(1A)(b) of comparing the modified development and the originally approved development to assess whether the former is substantially the same as the latter: see Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]; Arrage v Inner West Council [2019] NSWLEC 85 at [24]-[29]. The Society, however, will put before the Court evidence of this comparative analysis and make submissions seeking to establish that the pre-condition to the exercise of the power under s 4.55(1A) is not satisfied.

  15. I consider that this issue concerning the precondition in s 4.55(1A)(b) is one that is necessary for the Court to consider to determine the appeal but it will not be likely to be sufficiently addressed if the Society is not joined as a party to the appeal. The Council is not proposing to call evidence or make submissions on the issue. The Owners Corporation would not address the issue unless it is raised as a principal contested issue, as a party need only address the principal contested issues raised by the parties or by the Court: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [42]-[44]. The joinder of the Society is therefore needed for the issue to be raised and sufficiently addressed.

  16. As I am of the opinion that the Society should be joined as a party to raise this issue concerning the precondition in s 4.55(1A)(b) of the EPA Act, it is unnecessary to decide whether joinder of the Society as a party is also appropriate under s 8.15(2)(a) or (b)(ii) of the EPA Act to allow the Society to raise the other issues it has foreshadowed it wishes to raise. Once joined as a party, the Society is free to raise whatever issues it considers relevant and appropriate, including these other foreshadowed issues.

  17. Accordingly, on the motion, the Court orders:

  1. Merewether Historical Society Incorporated (the Society) is joined as a party to the proceedings, to be designated as the Second Respondent.

  2. The Society is to file a notice of appearance within 2 days.

  1. The parties agreed on directions to be made in the event that the Society were to be joined as a party to the proceedings, which I accept are appropriate directions to be made.

  2. The Court directs in the proceedings:

  1. The Applicant is given leave to rely on the terms of the proposed 88B Instrument upon which the Applicant relies being the document at pages 203-207E of the Applicant’s Amended Bundle filed on 2 October 2025.

  2. The Second Respondent is to file its Statement of Facts and Contentions in the form of Tab 21 of Exhibit AM-1, as updated to address the amendment of the modification application referred to in order 2, by 7 October 2025.

  3. The Applicant is given leave to amend its Statement of Facts and Contentions in Reply by 10 October 2025.

  4. The Second Respondent is to file and serve any further evidence upon which it relies by 7 October 2025.

  5. The applicant is to file and serve any further evidence upon which it seeks to rely in response to the Second Respondent’s evidence by 14 October 2025.

  6. The parties are to confer and agree upon, and file, an Evidence Book comprising of the affidavit evidence filed and served by the parties, by 15 October 2025.

  7. The First Respondent is to provide the Class 1 application and statements of facts and contentions filed by the Applicant and First Respondent in the proceedings to the Second Respondent by 9 October 2025.

  8. Pursuant to paragraph 17 of the Practice Note, the First Respondent is to provide to the Second Respondent and the Applicant by 9 October 2025 all of the documents:

  1. forming part of the Council’s file for development application DA 2016/01411; and

  2. forming part of the Council’s file for Modification Application No. MA/2024/00391.

  1. The parties also brought the Court’s attention to an error and omission in the directions the Court made on 20 October 2025, which should be rectified.

  2. The Court therefore orders:

  1. The reference in Direction 1(c) made on 2 October 2025 to “Condition 65” be corrected to “Condition 69”

  2. Direction 1 made on 2 October 2025 be amended to insert at the beginning of the direction the words “By 14 October 2025,”

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Decision last updated: 03 October 2025

Cases Citing This Decision

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