Weissflog v Community Association DP 270159 - [2022] NSWSC 239

Supreme Court

New South Wales

Medium Neutral Citation: Weissflog v Community Association DP 270159 [2022] NSWSC 239
Hearing dates: 7-9 February 2022
Date of orders: 9 March 2022
Decision date: 09 March 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Order to be made imposing right of carriageway over defendant’s land.

Catchwords:
EASEMENTS – 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’ land presently exists – whether such an easement is reasonably necessary given the existence of an undeveloped Crown road – where effects of proposed easement relatively minor – whether lack of development consent for plaintiffs’ use of their land as a residence and cat-breeding facility entails an absence of reasonable necessity or the existence of inconsistency with the public interest – whether discretion to impose easement should not be exercised due to plaintiffs’ unreasonable conduct – whether the plaintiffs would obtain a windfall gain by imposition of an easement

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88K

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251
Evans v Cornish Nominees Pty Ltd (2009) 14 BPR 27,257; [2009] NSWSC 1295
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328
Hanny v Lewis (1998) 9 BPR 16,205
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Tout v Johnson [2021] NSWSC 1311

Category: Principal judgment
Parties: Nikolas Weissflog (First Plaintiff)
Tamara Dunlop (Second Plaintiff)
Community Association DP 270159 (Defendant)
Representation:
Counsel:
Ms P Lane (Plaintiffs)
Mr J Lazarus SC with Mr R Sud (Defendant)
Solicitors:
Watkins Tapsell Solicitors (Plaintiffs)
Messenger & Messenger Solicitors (Defendant)

File Number(s): 2020/129550
Publication restriction: None

Judgment

Introduction

The plaintiffs in these proceedings, Mr Nikolas Weissflog and Ms Tamara Dunlop, are the owners of land in Folio Identifier 98/755773 (hereafter referred to as “Lot 98”). Lot 98 is located in a rural and bushland setting near Meadow Flat, south of the Great Western Highway between Lithgow and Bathurst. The land is within the Bathurst Regional Council area. Under the Bathurst Regional Local Environmental Plan 2014 the land is zoned RU1 Primary Production. By their Summons, the plaintiffs seek an order under s 88K of the Conveyancing Act 1919 (NSW) (“the Act”) for the imposition of an easement in the nature of a right of carriageway over the land in Folio Identifier 1/270159. That land is owned by the defendant, the Community Association DP 270159.
DP 270159 is a community plan of subdivision that was established as a community scheme in 1998. The community scheme is known as the Mount Haven Estate. The defendant’s land (which will hereafter be referred to as “Lot 1”) is the community property within the scheme. The scheme includes numerous other lots that have been developed and used for residential purposes, and a farm lot (which will hereafter be referred to as “Lot 63”).
Vehicular access to the community scheme is obtained from Diamond Swamp Road, which runs in a southerly direction off the Great Western Highway. Diamond Swamp Road connects with a road within the scheme known as Mount Haven Way. Mount Haven Way forms part of Lot 1. It is not a public road. Mount Haven Way runs through the scheme and provides, either directly or indirectly, a means of vehicular access to all of the residential lots. Toward its end (the end furthest away from Diamond Swamp Road), a dirt access road made with a crushed granite base runs off it to the right. The dirt access road runs to a Crown Road on Lot 63.
From that intersection, the Crown Road runs in a generally southerly direction across Lot 63 to the plaintiffs’ Lot 98, and in a generally northerly direction across Lot 63 to Lot 1 in DP 580287. This property, which is not part of the community scheme, is owned by Mr Patrick Reen. For convenience, this property will hereafter be referred to as the “Reen Land”. The Crown Road continues in a generally northerly direction across the Reen Land until it meets a public road at a point not far from the intersection of Diamond Swamp Road and Mount Haven Way at the entrance to the community scheme.
However, there is evidence that the portion of the Crown Road on the Reen Land is presently unsuitable for vehicular traffic. In practical terms, vehicular access between the plaintiffs’ Lot 98 and the public road system is presently available only by using Mount Haven Way and the dirt access road on Lot 1, and the southern part of the Crown Road on Lot 63. In these circumstances, the plaintiffs contend that for the purposes of s 88K(1) of the Act it is reasonably necessary for the effective use or development of Lot 98 to impose a right of carriageway over Lot 1 for the benefit of Lot 98.
The defendant opposes the application for the imposition of the easement on various grounds. First, the defendant denies that the easement is reasonably necessary for the effective use or development of the plaintiffs’ land within the meaning of s 88K(1) of the Act. In that regard, the defendant says that while it is open to the plaintiff to arrange for alternative access over the Crown Road, they have failed to take steps to do so. The defendant further says that the plaintiffs have developed their land and carried out commercial activity upon it without development consent and in circumstances where the commercial activity (of a cat breeding business) is a prohibited use. The defendant also says that the proposed easement would have a serious impact upon the amenity of the community scheme.
The defendant also contends that as the conduct of the cat breeding business is prohibited (such that development consent could never be granted), it would be inconsistent with the public interest to impose the easement (see s 88K(2)(a) of the Act).
The defendant appears to accept that if an easement were to be imposed it could be adequately compensated for the loss and disadvantage that would thereby 7arise (see s 88K(2)(b) of the Act). There is, however, a dispute about the amount of compensation that would be appropriate in that event. The defendant appears also not to dispute that the plaintiffs have made all reasonable attempts to obtain the easement sought but have been unsuccessful (see s 88K(2)(c) of the Act).
Finally, the defendant contends that even if the requirements of s 88K(1) and s 88K(2) of the Act are satisfied, the Court should not exercise its discretion to impose the easement, primarily due to unreasonable conduct on the part of the plaintiffs. The alleged unreasonable conduct of the plaintiffs includes purchasing Lot 98 without adequately informing themselves in relation to access to the property, and thereafter undertaking building works and carrying on the cat breeding business without seeking necessary approvals and without first resolving the issue of access. It was also put that a matter weighing against exercise of the power under s 88K was that the plaintiffs, having purchased Lot 98 at a price that reflected its problems with access, would obtain a windfall if the easement were to be imposed.

Summary of salient facts

The general configuration of the roads in the relevant area is broadly described in the preceding section. The annotated aerial photograph that appears in Exhibit C2 at page 375 provides a useful overview of the area. It contains references to lot numbers, and depicts Mount Haven Way and the dirt access road (in red) as well as the Crown Road (in green).
The plaintiffs entered into a contract to purchase Lot 98 on 23 December 2014. The purchase price was $190,000. The plaintiffs had inspected the property on four occasions prior to their entry into the contract. On these visits, access to the property was obtained via Mount Haven Way, the dirt access road and then the Crown Road. The selling agent who conducted the inspections had, or obtained, a green key to a locked gate across the dirt access road. This gate was generally referred to in the evidence as the “green key gate”. Mr Weissflog deposed that on settlement the plaintiffs received two green keys to the green key gate. The evidence is not clear as to the circumstances in which keys to the green key gate were made available to the plaintiffs.
In cross-examination, Mr Weissflog agreed that prior to entering into the contract no one had told him that access from a public road to the property could lawfully be obtained through the Mount Haven Estate. He agreed that he did not make that enquiry with the solicitor who acted on the purchase. Mr Weissflog said that he assumed that lawful access could be obtained through the estate because that was the route used for the inspection of the property.
At the time of the purchase, Lot 98 had only a simple shed upon it which contained a loungeroom, a bedroom and a kitchen. There was an outside toilet and shower. The plaintiffs proposed to construct improvements to the dwelling. By no later than October 2017 the plaintiffs had covered the existing building, enclosed its sides, and added an inside bathroom and another bedroom.
The plaintiffs and their two children moved in to live on Lot 98 in April 2015. Mr Weissflog gave evidence that they obtained access to the property from Diamond Swamp Road by driving through Mount Haven Estate to the Crown Road and then along the Crown Road to Lot 98.
However, in about June or July 2015, Mr Weissflog was told by Mr Robert Hood that the road through the estate was not the plaintiffs’ “legal access”. Mr Hood is the controller of Hood Rural Resources Pty Ltd, which was at that time the owner of Lot 63.
Mr Hood said words to the effect that “your access is over the Crown Road which runs through Pat Reen’s property”. In cross-examination, Mr Weissflog confirmed that his evidence was that it was only then that he became aware that legal access to Lot 98 was via the Crown Road not via Mount Haven Way.
The conversation with Mr Hood prompted Mr Weissflog to approach Mr Reen about the matter. Mr Weissflog deposed that Mr Reen told him that “the Crown Road through my property is not passable as there are dams across it”.
The plaintiffs continued to use Mount Haven Way and the dirt access road. It seems that they must have made a request to the management committee of the defendant to continue that use. On 28 August 2015 the Chair of the committee sent a letter to Mr Weissflog in the following terms:

Your request to use the roads of Mount Haven Estate as part of your route to access your lot, was considered at our last meeting.
The unanimous answer to your request was No.
The roads within the estate are for the use of Mount Haven Estate Residents and their guests.
We are in the process of updating security throughout the estate, part of the update will be changing the locks on Gates. This should happen by the 11^th September 2015.

Shortly thereafter the plaintiffs engaged Crennan Legal on the matter of access for Lot 98. Mr Crennan took steps toward obtaining the agreement of the defendant for the current access to continue. Arrangements of a temporary nature were subsequently agreed upon in that regard. These arrangements have since been the subject of ongoing negotiation, and at times contention. It is not necessary to refer to the details of what occurred. It is sufficient to note that the plaintiffs have, more or less continuously, and subject to various conditions, enjoyed access to Lot 98 using Mount Haven Way and the dirt access road. At present the arrangement is stated to be in place until the determination of these proceedings.
Mr Crennan also made contact with Mr Reen. In a letter to Mr Reen dated 17 September 2015, Mr Crennan stated:

As you will appreciate, in the absence of a permanent legal right of access over the Mount Haven Estate private road system our clients need to secure an alternative access.
After conducting preliminary investigations it appears to us that our clients must take steps to secure access along the Crown Road Reserve to the north of Lot 98 if they are to maintain effective access to their property.
As you will be aware, your property at Lot 1 DP 580287 has the Crown Road Reserve, running through it, presumably by way of an enclosure permit. This Crown Road Reserve leads to our client’s land and would, if made up, provide them with effective access to Diamond Swamp Road.
We have viewed the relevant mapping boundaries on the LPI “SIX Maps” online facility which appears to show that the Crown Road running through your land may be obstructed by two man-made dams. We have also been informed that a section of the Crown Road may have been ploughed.
We would like to open up discussions for our clients with you to establish the “on ground” situation. We hope that our clients (perhaps with our assistance) might be able to sort out a mutually convenient outcome regarding the physical establishment of an access over the Crown Road. Our clients wish to explore options which would provide our client with effective access to Diamond Swamp Road over the Crown Road without undue impact upon you, your farm and its infrastructure.
We have written to Crown Lands to notify them of our client’s interest in preserving the Crown Road. We have enclosed a copy of that letter for your information.

Mr Crennan had indeed written a letter (also dated 17 September 2015) to the Crown Lands Authority to inform them of the plaintiffs’ interest in ensuring that the Crown Road remained available to provide access to Lot 98. It was further stated in the letter that they intended to have discussions with the owner of the land (Mr Reen) about the situation.
Mr Reen sent a letter in response to Mr Crennan dated 20 October 2015 which included the following:

We are currently obtaining advice about your letter and will reply more fully shortly.
However, we strongly object to the construction of a roadway through our property, as (among other things) the impact on the property, improvements on the property, the landform, the surrounding drainage system and environmental conditions will be very significant, and potentially harmful.
…
In any event we fail to understand why your client would seek to undertake what would be an extremely costly and difficult exercise, when the existing route is available (apart from the apparent attitude of the Mount Haven Estate Management Committee), and convenient, and unlikely to burden any party whatsoever.
Further to this, the factual statement in your letter is completely incorrect, particularly to the reference regarding ploughing of the land which is inaccurate.

Little progress seems to have been made in dealing with the problem of access until early 2017. On 28 March 2017 the plaintiffs obtained a survey of the Crown Road route across the Reen Land. The survey shows that the route is impeded by three dams (two across the whole or almost the whole width, and one across about half the width of the road area). Markings on the survey suggest that the length of the route across the Reen Land is in the order of about 1.3km.
At around this time, the Department of Industry-Lands was investigating the carrying out of certain works on the Crown Road on Lot 63. These works were carried out by a contractor engaged by the plaintiffs. The Department was concerned that the works had been carried out without the permission of the Crown. Mr Gregory Campbell of the Department sent an email to the plaintiffs on 5 April 2017 about the matter. The email included the following:

Crown roads are managed by this department under the provisions of the Roads Act 1993 and the Crown Lands Act 1989 and while members of the public are entitled as a right to pass along a Crown road (whether on foot, in a vehicle or otherwise); this right does not burden the department to provide a particular standard of passage. The department is the Roads Authority for Crown roads however is not recognised in the areas of road construction or maintenance. Accordingly, the department does not support the development of Crown roads.
In circumstances where works are required on a Crown road to facilitate access to property the following actions should be considered in the first instance:
Approach local Council to accept control of the Crown road; or
Apply to close and purchase the subject Crown road; or
Seek alternative practical access
You should note that unauthorised work on Crown roads is prohibited and may be subject to regulatory and/or enforcement actions depending on the circumstances.
In this circumstance I believe offences have occurred against the provisions of the Roads Act 1993 and the Crown Lands Act 1989. I am yet to decide if enforcement actions will be applied. You are invited to show cause, in writing why enforcement action should not be considered. Responses should include copies of any claimed authorisation and/or clearly set out any proposal to resolve this issue.
You should consider this advice as formal notice not to undertake or cause any further works on Crown roads without appropriate consents.

By July 2017 the plaintiffs had made contact with the Bathurst Regional Council in relation to the development of Lot 98 and access to Lot 98. It seems that the plaintiffs had by that time already undertaken construction work upon Lot 98. It is not in dispute that the plaintiffs did not have a development consent for such works. Mr Daniel Dwyer, a planner at the Council, sent an email to the plaintiffs on 26 July 2017 which included the following:

A Development Application for the temporary dwelling would need to include the following:
Completed Development Application form;
Site plan showing location of building in relation to boundaries, including details of the whole access arrangement out to Diamond Swamp Road;
Floor plan of the building;
Elevations of the building;
Completed bush fire assessment form;
Payment of the prescribed application fee (fee will be based on the value of the building work or if no work is involved then a flat fee of $285.00 applies).
Obviously Council cannot accept any DAs until you have resolved the access issue.
In relation to Council’s acceptance of the road, you will need to make a formal request in writing to Council’s Engineering Services Department to determine whether or not they are prepared to accept transfer of ownership of the Crown road from the Department of Industry – Lands on the basis that you are committed to constructing the road to Council’s rural public road standard (i.e. bitumen seal). Your request should include a plan/map of the road and details of any consultation you have undertaken with the Department of Industry – Lands. Should Council’s Engineering Services Department agree to accept transfer of the road, a formal agreement will need to be reached between yourself, Council and the Department of Industry – Lands on the timing of the transfer and the timing of construction of the road. If transfer of ownership has to occur before construction then Council may seek a bond for the construction works to give Council certainty that the work will be completed within the agreed timeframe.

On 5 October 2017 Mr Dwyer and a more senior Council planner visited Lot 98. Mr Weissflog deposed that he recalls one of them saying that “as soon as you have obtained access you can put in a development application for your building”.

Mr Weissflog agreed in cross-examination that he understood that in order to complete the building works a consent was needed. It is clear, however, that since the inspection on 5 October 2017, the plaintiffs carried out further construction including the addition of a deck and living room, a pool and what Mr Weissflog described as “the cat area”. Mr Weissflog was not sure whether the photo room and gymnasium had been commenced at that time. He agreed that he knew that all of the building works (whether constructed before or after October 2017) were constructed without the Council’s consent in circumstances where he knew that such consent was required.
The plaintiffs made further enquiries in relation to the question of access in early 2018. On 12 February 2018 Mr Darrel Lawrence of the Department of Industry-Crown Lands & Water Division sent an email to the plaintiffs (copied to the Office of the Member for Bathurst) which set out options to consider to achieve access to their property as follows:

Please see below some options that you may wish to consider to provide access to your property.
Do nothing (continue to use current access arrangements); or
Approach Bathurst Regional Council to accept control of the Crown road (Council will advise if this is likely to succeed); or
Apply to close and purchase the subject Crown road/s (this will be subject to the normal road closure process); or
Apply to construct the Crown road (design standards and costs would need to be determined; the department may not consent under current policy and magnitude of works required); or
Seek alternative practical access

Mr Lawrence also reminded the plaintiffs that they must not carry out any works on Crown Roads, or other Crown Land, without the approval of the Department.
On 1 March 2018 the plaintiffs sent an email to Mr Eric Young, the Chair of the executive committee of the defendant. The email stated that having discussed the various options with Mr Lawrence “the best option at this stage is for us to apply through his office to construct the crown road to a fire trail standard and restrict access i.e. not open to the general public as a full road”. The email stated that the plaintiffs were “in the process of this application” and that they would advise the outcome.
The evidence is not entirely clear as to the precise nature and fate of the application referred to. I note, however, that Mr Weissflog deposed that to the best of his knowledge the suggestion that the Crown Road become a fire trail with limited public access was “not possible”. That evidence was not challenged in cross-examination. I infer that Mr Weissflog’s understanding is likely to have derived from responses given to enquiries he made with the Department. The Department had certainly made it clear to the plaintiffs by March 2020 that it could only consent to small scale road works on Crown Roads, and that the Crown Road (on both Lot 63 and the Reen Land) would require major or extensive works. Further, Mr Weissflog agreed in cross-examination that an application to upgrade the Crown Road through the Reen Land was rejected on the basis that the works were clearly not small scale works.
It is clear that the plaintiffs have never made any application for the Crown Road to be transferred into the control of the Council. This was accepted by Mr Weissflog in cross-examination. He agreed that he has instead made applications for the carrying out of certain maintenance works on the southern section of the Crown Road (on Lot 63). The plaintiffs have continued to use that section of the Crown Road, as well as Mount Haven Way and the dirt access road, to obtain access to Lot 98.
I note in passing that on 9 May 2019 the National Parks and Wildlife Service (“NPWS”) sent a letter to the defendant to express interest in the possible creation of an easement across the estate for the benefit of NPWS to facilitate access to the Eusdale Nature Reserve, located to the west of the estate.
On 23 October 2019 the plaintiffs, through Crennan Legal, made a formal request for an easement for access through Mount Haven Estate. Reference was made to “productive discussions” regarding the provision of an easement. It was noted that an easement already existed across the estate in favour of Lot 11 DP 755773. That lot is located to the west of Lot 63, slightly to the north of Lot 98. The letter stated that the plaintiffs would be happy to make contributions of time, tools and machinery for “working bees” in the estate.
On 25 October 2019, solicitors retained by the defendant, Le Fevre & Co, responded to the request. It was stated, amongst other things, that the plaintiffs had failed to show any progress toward resolving the issue of legal access to their property, and that the informal permission for access via the estate would be withdrawn on 1 November 2019. It was further stated that there had been no productive discussions, nor indeed any discussions, regarding the provision of an easement.
Le Fevre & Co sent a further letter to Crennan Legal on 1 November 2019. The letter included the following:

During 2017 there was an amendment to the Management Statement which was resolved by the various lot owners that precluded the granting of an easement through the Mount Haven Estate.
In light of this recent resolution and owing to the effluxion of time since this access issue initially arose, the management committee can see no benefit in meeting with your clients.
The management committee is not in a position to grant any easement of its own volition.

A further letter from Le Fevre & Co, dated 1 December 2019, stated that it was made “especially clear” at the extraordinary general meeting of the defendant held on 24 November 2019 that the community had no interest in providing an easement through the estate to any third party.
On 11 March 2020 NPWS sent a letter to the defendant in relation to its proposal for an easement across the estate. The letter included the following:

Thank you for responding to my enquiry regarding establishing access to the eastern portion of Eusdale Nature Reserve for management activities.
I apologise for my delayed response. Before I responded I wanted to clarify several points with the local Area staff. I have now had an opportunity to do so. In addition, the ranger Gavin Newton and I undertook a field survey of the Crown road.
As you pointed out there is a Crown road reserve that connects Diamond Swamp Road to Eusdale Creek, west of the original proposed compensation easement. However, there are several impassable features in the landscape that prevent the Crown road being trafficable. They include:
several dams that bisect the Crown road footprint,
naturally vegetated sections,
fences (should be unlocked gates),
an eroded gully, and
large piles of dumped earth.
The latter being approximately 65 meters long and greater than 3 metres tall. These impediments are all between the end of the proposed compensation easement route with the Association and Diamond Swamp Road.
The practical route and the Crown road both cross the eroded gully, which appears to make the access North – South in this location impassable to vehicles along its length as far as we could see. There is a pipe in the gully, but no headwalls and it has eroded severely.

A number of photographs were attached to the letter. The first two photographs show a dam (or perhaps two dams) across the Crown Road. Mr Reen gave evidence that those photographs were taken on his property. The other photographs seem to be of the gully area, and areas of dumped earth, that are referred to in the letter. Mr Reen said that these photographs were taken on Mr Hood’s property (i.e. Lot 63).

On 23 March 2020 the Department of Industry and Environment sent a letter to Mr Weissflog concerning his enquiry about constructing a Crown Road. The letter included the following:

I refer to your enquiry in regard to the construction of the crown road through Lot 1 DP580287 and Lot 63 DP270159 to provide formed access to your land being Lot 98 DP755773.
Crown Lands has a clear policy and comprehensive guideline to works on Crown roads.
The department can only consent to small-scale road works on Crown roads that comprise the following characteristics:
minimal slashing of undergrowth or tree clearing
light grading of the natural terrain – a maximum 500mm cut and fill; the department may approve a lesser amount of cut and fill, if circumstances require
slight crowning of the surface to establish cross fall drainage
form cross-banks and/or mitre drains or comparable effective devices to control water and sediment run off, and/or
place gravel, road base or stones to stabilise the surface or fill potholes.
Inspection of the crown road has revealed that major works would be required particularly at the northern end of the crown road within Lot 63 DP270159 due to a deep gully which would require major works to stabilise and form the crown road across the gully. The works required at this location clearly fall outside of the parameters of the Policy and Guideline.
There are also other areas of the crown road, within Lot 1 DP580287, that would require some extensive drainage works to stabilise any road constructed due to the topography of this parcel.

On 31 March 2020 Watkins Tapsell Solicitors, the plaintiffs’ present solicitors, sent a letter to Le Fevre & Co which contained an offer to pay $25,000 plus costs of $5,000 for an easement for access (and an easement for services) burdening the access ways of the estate “along the shortest formed road route from Diamond Creek Road to the new gate on the Crown Road”. The reference to the new gate is to a gate installed in January 2020 at the end of the dirt access road as it meets the Crown Road on Lot 63. The letter further stated that the plaintiffs would agree to pay $400 p.a. contribution to the cost of maintenance and repair.
In April 2020 the plaintiffs made a request for a right of carriageway through the Reen Land. The terms of the request are not in evidence. However, on 29 April 2020 Mr and Mrs Reen sent a letter to the plaintiffs in which it was stated that, for various reasons, the request would not be considered. On 30 April 2020 the plaintiffs commenced these proceedings.
Since the commencement of these proceedings, the plaintiffs have made an application to the Council seeking “retrospective” approval for the dwelling and cat breeding establishment on Lot 98. The application appears to have been lodged in early December 2021. On 8 December 2021 the Council sent a letter to the plaintiffs’ planning expert, Mr Anthony Daintith, stating that the application had been rejected pursuant to cl 51 of the Environmental Planning and Assessment Regulation 2000 (NSW). The letter included the following:

The submitted Development Application failed to demonstrate that there is the availability of legal and physical access to the dwelling house and cat breeding facility. Without confirmation of the matters relating access, Council cannot give adequate consideration to the suitability of the property for the intended use. Demonstration of legal and physical access as a prerequisite to any Development Application has previously been raised with the landowners both verbally and in writing.
Further, geotechnical report(s) should be submitted demonstrating that effluent disposal for the dwelling house and cat breeding facility can be accommodated on the site in accordance with the requirements of Chapter 6 of the Bathurst Regional Development Control Plan 2014.
Accordingly, Council has rejected the Development Application as the proposal does not sufficiently demonstrate compliance with the Bathurst Regional Local Environmental Plan 2014 and the Bathurst Regional Development Control Plan 2014.
The option remains for you to relodge the Development Application for use of the dwelling house and cat breeding facility provided that plans and documents include confirmation of legal and physical access and a geotechnical report.

On 28 January 2022 the Council sent a letter to Mr Weissflog in relation to the recent submission of a geotechnical report. The letter went on to note that the only remaining impediment to the lodgement of a new development application is submission of evidence of legal and physical access.

Legal principles

Section 88K of the Conveyancing Act provides:

88K   Power of Court to create easements
(1)   The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
(2)   Such an order may be made only if the Court is satisfied that—
(a)   use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c)   all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
(3)   The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4)   The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5)   The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
(6)   Such an easement may be—
(a)   released by the owner of the land having the benefit of it, or
(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification.
(7)   An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect—
(a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or
(b)   in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds.
(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.
(9)   Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.

The principal concept is whether the easement sought to be imposed is reasonably necessary for the effective use or development of the land that will have the benefit of it. An important statement of the relevant principles is found in the decision of the Court of Appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 at [154]-[159]. The Court of Appeal there stated:

The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows:
"It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement.
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.
The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court 'is not to judge upon the reasonableness of the particular development'. However, that statement is qualified by the words 'at least in this case'. If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be 'reasonably necessary for the effective use or development' of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable." (at 508-509 citations omitted)

In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land. That in our opinion is consistent with what was said by Hodgson J in 117 York Street supra in the passage which we have cited above (see also Lonergan v Lewis [2011] NSWSC 1133 at [22]).
That is not to say that an easement will always be granted in these circumstances. As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Rainbowforce supra at [77]; Khattar v Wiese supra at [27]; Woodland v Manly Municipal Council, supra at [12]; Lonergan v Lewis supra at [22].

As we indicated earlier (par [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the Court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed.
The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development.
None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other.

(See also Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 at [90]; Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 at [35]-[42].)

In Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014, Brereton J (as his Honour then was) stated at [27] that “[t]he authorities repeatedly point to the confiscatory nature of s 88K as requiring firm proof of the reasonable necessity for the easement, and that the court bear in mind that property rights are valuable rights not lightly to be taken away”.
Reference should also be made to the decision of the Court of Appeal in ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 where Giles JA (with whom Campbell JA agreed) said at [48]-[49]:

“Reasonably necessary” is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity.
A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as “convenient”. Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement.

(See also Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (supra) at [115]-[117] and Gordon v Lever (supra) at [91].)

The requirement of reasonable necessity is to be assessed by reference to the circumstances as they exist at the time of the hearing (see Gordon v Lever (supra) at [89]; Gordon v Lever (No 2) (supra) at [40]).
If the Court concludes that the imposition of an easement is reasonably necessary within the meaning of s 88K(1), the Court can proceed to make an order imposing the easement, but only if satisfied of the matters set out in s 88K(2). Even then, the Court retains a discretion as to whether to proceed to make the order (see Khattar v Wiese (supra) at [2]).
The above summary of the applicable principles is taken from the recent decision in Tout v Johnson [2021] NSWSC 1311 at [67]-[72].

Determination

The first question to consider is whether the easement sought by the plaintiffs is reasonably necessary for the effective use or development of Lot 98, so as to satisfy s 88K(1) of the Act. The plaintiffs, in supplying particulars of their claim, identify the relevant use or development as use as a residence and for all other purposes permitted within the RU1 zoning now and in the future. At the present time, the plaintiffs seek the easement in aid of the use of the land as a residence and also as a cat breeding facility. The easement is sought to enable vehicular access between Lot 98 and Diamond Swamp Road, a road open to the public.
As the authorities cited above demonstrate, in approaching the question of reasonable necessity the Court must, amongst other things, consider any alternative methods by which the use or development of the land could be achieved and must consider the effect the proposed easement would have upon the servient tenement. Ultimately, the question of whether an easement is reasonably necessary for the effective use or development of land must be determined by an evaluation of all the relevant factors in conjunction with each other.
The primary submission of the plaintiffs is that the imposition of the easement is necessary to enable Lot 98 to be effectively used as a residence. The plaintiffs further submit that the easement is necessary to enable Lot 98 to be effectively used as a cat breeding facility. It is submitted that both uses are permitted with consent under the applicable zoning. The plaintiffs contend that without access across the estate, Lot 98 is effectively landlocked. In my view, the existence of the Crown Road between Lot 98 and the public road system means that Lot 98 cannot strictly be described as landlocked, but the present unsuitability of parts of the Crown Road for vehicular traffic means that vehicular access between Lot 98 and the public road system can only be practically obtained by traversing the roads that pass through Mount Haven Estate.
The plaintiffs submitted that they have investigated the possibility of taking steps to have the Crown Road made trafficable, but have been unsuccessful. The plaintiffs submitted that the evidence shows that the works that would be required would be very substantial and involve great expense. The plaintiffs further submitted that the effect of the proposed easement on the servient tenement itself (as opposed to other lots within the community scheme) was not substantial, and they pointed out that Lot 1 is already burdened by a similar easement in favour of Lot 11.
The defendant accepted in its submissions that portions of the Crown Road “are in a state of substantial disrepair and blocked by obstacles, such that substantial works would be required to render it passable by vehicle and facilitate access to the Plaintiffs’ Land”. The defendant contends, however, that the Crown Road remains a lawful alternative means of access, and the proper course is for the plaintiffs to take steps to establish practical access over the Crown Road. The defendant submitted that the plaintiffs have not taken such steps or at least have not exhausted all of available avenues to establish access, and, moreover, have not obtained approval for their uses of Lot 98. The defendant further submitted that approval for the cat breeding facility could never be given as it is a prohibited use. The defendant submitted that in these circumstances, and having regard to the burden the easement would impose on Lot 1, the plaintiffs have failed to show that the easement sought is reasonably necessary within the meaning of s 88K(1) of the Act. The defendant emphasised that the onus of proof rests upon the plaintiffs, and submitted that they have failed to discharge their onus, particularly in relation to the alleged impracticality and high cost of establishing access over the Crown Road.
It is correct to say that the plaintiffs have not exhausted all available avenues to establish access using the northern section of the Crown Road, in particular as it runs across the Reen Land. They have not, for example, made an application for the Crown Road to be transferred to the Council so that the Council would become the road authority with responsibility for the road. A transfer of that nature could occur at the request of the Council or, in some circumstances, even without the consent of the Council (for example, where a Council grants a development consent which contains a condition that a Crown Road be maintained to a particular standard). The administrative guidelines in evidence indicate that the Crown Lands authority would consult with a Council before making a transfer in the absence of consent.
In answer to a question in re-examination, Mr Weissflog said that whilst no formal application had been made, he had made some “preliminary inquiries” with the engineering department of the Council. He said, in effect, that he was told that it was unlikely that the Council would be prepared to “take it on”. However, the evidence suggests that even if the Council were prepared to “take it on”, it would be on the basis that the plaintiffs would commit to constructing the road to the Council’s rural public road standard which (at least in 2017) requires a bitumen seal. A construction bond might also be required from the plaintiffs.
As pointed out by the defendants in submissions, there was no cogent evidence of how much it would probably cost to construct such a road. The quotation obtained by Mr Reen in 2021 concerning the cost of a road across the Reen Land – not necessarily along the Crown Road route – was not admitted as to the truth of its contents. Nevertheless, I am satisfied on the evidence that the cost would be very substantial indeed. The length of the Crown Road across the Reen Land alone is in the order of 1.3km. The length of the Crown Road between the plaintiffs’ land and the Reen Land is approximately twice that length. The route across the Reen Land is impeded by three dams and there is evidence that, due to the topography of the Reen Land, extensive drainage works would be required to stabilise any road constructed. South of the Reen Land, on Lot 63, the route is impeded by a severely eroded gully. There is evidence that major works would be required “to stabilise and form the crown road across the gully”. There are other impediments along the route, including large piles of dumped earth.
Construction of a suitable road along the northern section of the Crown Road does not appear to be impossible or even impractical, but it would undoubtedly require very substantial expenditure. I do not think it is necessary in the circumstances of this case to arrive at a precise estimate of the likely cost. I think that I can broadly conclude, based on the evidence described above, that the cost to construct a road across the northern section of the Crown Road could extend to some hundreds of thousands of dollars. Quite apart from the cost of materials and labour for construction, there would be professional costs associated with the engineering design of the road, given the need for drainage works to stabilise the road.
The defendant made the point that the plaintiffs had failed to adduce satisfactory evidence concerning the obtaining of access using the Crown Road, and in particular as to the cost of establishing such access. Reference was made to Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328 at [49]-[50] and Tout v Johnson (supra) at [97]-[106] (see also Gordon v Lever (No 2) (supra) at [39]). The observations made in in those cases are relevant to the situation here, but it is of course necessary to consider the particular circumstances of each case. In the present case, the point that the plaintiffs are best placed to adduce evidence as to the alternative means of access is to some degree lessened by the fact that (unlike the two cases cited) the alternative access under consideration is not access across the plaintiffs’ own land. In saying that, I of course recognise that the onus of establishing reasonable necessity for the purposes of s 88K(1) of the Act always rests upon the applicant.
The defendant adduced evidence from a number of residents of the estate as the anticipated effects of the easement sought by the plaintiffs. The residents raised a number of concerns, including the following:

that the easement would result in additional traffic through the estate;

that there would consequently be additional noise and dust, and increased wear and tear on the estate roads;

that visitors to the plaintiffs’ property would not observe the 50km per hour speed limit or other road rules within the estate;

that the serenity of the estate would reduced, and security within the estate lessened;

that difficulties and conflicts are likely to arise in relation to gates on the easement;

that the easement would make the plaintiffs’ property more attractive for future development, including subdivision; and

that an easement in favour of the plaintiffs would create a precedent for others to seek an easement across the estate.

The imposition of the easement is likely to bring about an increase in traffic through the estate. There was little evidence going to the precise extent of the likely increase, although I note that the Statement of Environmental Effects submitted to the Council in December 2021 suggests that the development (involving both the residence and the cat breeding facility) would likely generate an additional six traffic movements per day. I regard that as a modest increase in the context of an estate that consists of more than 40 residential lots.
It is relevant to observe here that the defendant would be entitled to maintain a locked gate across the easement (such as the existing green key gate). The existence of a locked gate, the unlocking of which would require a key, coupled with restrictions upon the availability of keys, would tend to limit the number of potential users of the easement and inhibit the frequency of its use. I accept that practical difficulties, including potential conflicts, could arise in connection with gates (especially locked gates) on the easement. However, provided that the rights conferred by the easement are clearly expressed in this regard, significant problems ought not arise.
The increased traffic will of course involve some additional wear and tear on the estate roads, particularly on the dirt access road, but the plaintiffs have indicated a willingness to pay an appropriate levy to cater for that. It would be possible to include, as a condition of any easement, a requirement that such a levy be paid to the defendant.
The increased traffic would also generate additional noise and dust. These effects seem to me to fall more upon the residents of the estate (particularly on those living in closest proximity to the dirt access road) rather than upon the defendant as the owner of what would become the servient tenement. A similar point can be made about any reduced serenity or security. These effects are nonetheless relevant to the consideration of the question of reasonable necessity (as they are in relation to the consideration of the public interest).
There is undoubtedly a prospect that users of the easement will not observe the road rules within the estate. In this regard, the plaintiffs have expressed a willingness to agree to be bound by those rules, which are contained in the Management Statement for the estate. Again, it would be possible to include a condition to that effect.
The Council has expressed the view that for a development application for Lot 98 to be lodged, evidence of “legal and physical access” is required. To that extent, the imposition of the easement can be seen as something that would facilitate the development of the plaintiffs’ land. However, I do not think that the easement itself is otherwise likely to make future development of the land more probable. Any future development will need to be the subject of an application which will be assessed and determined in accordance with the planning laws then applicable. Nor do I think that imposition of the easement would “create a precedent” for others (such as NPWS) to seek an easement over the estate. Again, any future application for the imposition of an easement would be determined on its own merits in accordance with the principles established for applications under s 88K of the Act. It is not possible to hypothesise as to whether the imposition of the easement sought by the plaintiffs would make any future application more or less likely to succeed.
Overall, the adverse effects the proposed easement would probably have upon Lot 1 and the residents of the estate seem to me to be relatively minor. Moreover, these effects can be ameliorated to a substantial degree by the inclusion of conditions of the character referred to above.
Another matter to consider on the question of reasonable necessity is the lawfulness of the proposed use of the plaintiffs’ land. The defendant submitted that the Court should assess the prospects of the plaintiffs obtaining the requisite approvals for the use of the land as a residence and as a cat breeding facility (see Evans v Cornish Nominees Pty Ltd (2009) 14 BPR 27,257; [2009] NSWSC 1295 at [52]-[56]). The defendant submitted that development consent cannot be granted for use as a cat breeding facility as it is a prohibited use. The defendant further submitted that the plaintiffs have failed to show that it is reasonably likely that approval will be obtained for use as a residence.
I think that there is a real chance that the plaintiffs will obtain approval for use of the existing dwelling on Lot 98 as a residence (see 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 511-2). Mr Apps, the town planner called by the defendant, accepted in cross-examination that, leaving aside the present lack of access for the property, the only barrier to obtaining consent was the absence of certain information (such as a Building Information Certificate, and information that the building complies with bushfire protection standards). Mr Apps agreed that the problem was capable of being remedied by providing the requisite information. I note that the Council has been aware of the plaintiffs’ construction and use of the dwelling (without approval) since the inspection carried out in mid-2017, but has not taken steps to restrain the use. There is no evidence to suggest that the Council has any concern that living in the residence is in any way unsafe.
The defendant made detailed submissions to the effect that the proposed cat breeding facility falls within the Local Environmental Plan definition of “commercial premises” and is thus a prohibited use. It was put that even though the proposed facility also falls within the definition of “animal boarding or training establishment”, which would be permitted with consent, the development would be prohibited (see Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [55]). However, it is not necessary that I express a concluded view on the question whether the proposed facility falls within the definition of “commercial premises”. Indeed, since the relevant material before the Court may not be the same as the material that is ultimately placed before the Council as the consent authority, it is perhaps undesirable that I do so. Even if it is assumed, in the defendant’s favour, that consent for a cat breeding facility will never be obtained, given that there is a real chance that the plaintiffs will obtain approval for use of the existing dwelling on Lot 98 as a residence, I am satisfied on the whole of the evidence that the easement sought by the plaintiffs is reasonably necessary for the effective use or development of Lot 98 as a residence (or other uses that might be approved), such that s 88K(1) of the Act is satisfied.

In my opinion, such use or development of Lot 98 with the proposed easement is at least substantially preferable to its use or development without it. The effective use of Lot 98 as a residence (or other uses that might be approved) requires that vehicles be able to travel the substantial distance between the property and the public road system. That access is not currently available along the length of the Crown Road. Obtaining the requisite permission to establish access by that route in the future is uncertain, and in any event the cost of construction of a road would undoubtedly be very substantial. On the other hand, the easement sought by the plaintiffs would provide the required access in a way that would not cause Lot 1 or the residents of the estate to be affected adversely in more than relatively minor respects, particularly if suitable conditions are included. The imposition of the easement would of course detract from the property rights of the defendant, but it is relevant to note that Lot 1 is already burdened by a similar easement in favour of Lot 11.
As the requirement of reasonable necessity within s 88K(1) has been satisfied, I turn to consider the three further requirements of s 88K(2) of the Act.
The first of these requirements is that use of the land having the benefit of the easement will not be inconsistent with the public interest (see s 88K(2)(a)). The focus of this provision is upon the use of the dominant tenement (see City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251 at [48]). The question is whether the use of that land, with the benefit of the easement, will not be inconsistent with the public interest.
The plaintiffs are currently using Lot 98 as a residence and as a cat breeding facility. The plaintiffs do not have a development consent for either of those uses. The plaintiffs intend to seek such consent, but the Council has taken the position that an application cannot be adequately considered (and thus should not be lodged) until the plaintiffs can confirm that the land has legal and physical access. If the easement they seek is granted the plaintiffs will be in a position to pursue their development application. The defendant has submitted that if the easement is imposed over its objection, it should be made conditional upon the plaintiffs obtaining a development consent within two years.
Accordingly, the present case is not one where there is an existing consent for the use of the land (cf Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 at [70]). The absence of an existing consent is not, however, a bar to the grant of an easement under s 88K (see City of Canterbury v Saad (supra) at [57]). The question of whether use of the land having the benefit of the easement will be inconsistent with the public interest depends upon the particular facts of each case (see City of Canterbury v Saad (supra) at [54]).
The defendant submitted that as the proposed cat breeding facility is a prohibited use, such that no development consent could ever be granted for it, it would be inconsistent with the public interest to impose an easement where one of the proposed uses cannot be made lawful.
It remains to be seen whether development consent will be granted for a cat breeding facility. If the defendant is correct, so no consent can be given, that use will continue to be unlawful. Use of Lot 98 with the benefit of the easement for that purpose could thus be seen to be inconsistent with the public interest. The same could be said about use of Lot 98 as a residence if no consent is given for that use.
However, as I have said, I think that there is a real chance that the plaintiffs will obtain approval for use of the existing dwelling on Lot 98 as a residence. Further, I would not dismiss the possibility that an approval will be given for a cat breeding facility. Whether such consents are given will depend upon the determination made by the Council as the consent authority.
There is merit in the suggestion that the easement, if imposed, be subject to a condition that would require the plaintiffs, within a reasonable period, to obtain a development consent for the use of Lot 98. The easement could also be made subject to a condition that it not be used for any purpose not connected with a use of Lot 98 that is the subject of a development consent.
If conditions of that nature were imposed, it is difficult to see why use of Lot 98 having the benefit of the easement would be inconsistent with the public interest, although I acknowledge that the land would continue for a period to be used unlawfully. It would of course be open to the Council (or indeed other persons) to take action to restrain such use if it was considered appropriate to do so in the circumstances. It seems, however, that the Council, at least up to now, has not seen fit to take such action.
`In these circumstances I am satisfied that use of Lot 98 having the benefit of the easement will not be inconsistent with the public interest for the purposes of s 88K(2)(a) of the Act.
The second requirement under s 88K(2) is that the defendant, as the owner of the land to be burdened by the easement, can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement (see s 88K(2)(b)). (There does not seem to be any other person with an estate or interest in Lot 1 pursuant to a registered instrument who may be required to be compensated.)
I am satisfied that the defendant can, by means of an award of monetary compensation, be adequately compensated for any loss or other disadvantage it would suffer if the easement is imposed. Valuation evidence was called by each side on that issue. The valuers produced a joint report dated 6 August 2021 which records their respective conclusions, as contained in their earlier reports, concerning the appropriate amount of compensation. Those conclusions fell within a range of $10,000 to $67,000. I note that the defendant did not submit that this requirement was not satisfied.
The third requirement under s 88K(2) is that all reasonable attempts have been made by the plaintiffs to obtain the easement but have been unsuccessful (see s 88K(2)(c)). I am also satisfied of this matter, and again the defendant did not submit to the contrary. It is clear that following the formal request made by the plaintiffs on 23 October 2019 for an easement for access, the defendant rejected the request, stating through its solicitors on 1 December 2019 that a general meeting of the defendant had made it clear that the community had “no interest” in providing an easement through the estate to any third party. The defendant has not since shown any willingness to grant an easement for the benefit of the plaintiffs’ land.
The Court is therefore satisfied of each of the matters identified in s 88K(2) of the Act.
The next matter to consider is whether the Court should proceed to exercise the discretion to make an order under s 88K to impose the easement sought by the plaintiffs.
The defendant raised a number of matters which it said should lead the Court to decline to exercise the discretion to make the order. It was submitted that any reasonable necessity for the easement only exists because of previous unreasonable conduct on the part of the plaintiffs. In this regard the unreasonable conduct of the plaintiffs is said to consist of:

purchasing Lot 98 without adequately informing themselves on the question of access; and

acting unlawfully in making significant improvements to the land and conducting a business on it without obtaining necessary approvals and without first resolving the matter of access.

The defendant also relied upon the unlawful conduct of the plaintiffs more generally as going to the exercise of the discretion. In addition to the unlawful conduct referred to above, the defendant also pointed to evidence which suggests that certain works that were carried out at the behest of the plaintiffs in 2015 on the southern section of the Crown Road were undertaken without consent, and thus unlawfully.
The defendant also submitted that as the plaintiffs purchased Lot 98 at a discounted price (of $190,000) which reflected its lack of practical access, they would obtain a windfall benefit if the Court imposed an easement that overcame that problem.
It is correct that the plaintiffs purchased Lot 98 without adequately informing themselves about access to the property. The contract disclosed no easement or other right in favour of Lot 98 to use the roads in Mount Haven Estate, and there is no evidence that the plaintiffs were given legal advice prior to entry into the contract that there was any such right. Mr Weissflog seems to have assumed that lawful access could be obtained through the estate because that was the route used for the inspections of the property. He gave evidence that although he knew that Mount Haven Estate was community title, he did not know that its road system was. In my view, the plaintiffs were careless in proceeding with the purchase on the assumption that there was a right of access through the estate. There was no firm basis to make that assumption.
It is also correct that the plaintiffs subsequently undertook building work on Lot 98, and conducted a business on the land, without obtaining the requisite development consents. Mr Weissflog accepted in cross-examination that he knew that consent was needed for at least the building work. He said that he only found out about two years ago that a consent was required for the cat breeding business. He said that he had believed that the activity fell under the banner of a home business or hobby, such that no consent was required. Even if that evidence is correct, it nonetheless shows a somewhat cavalier attitude towards compliance with planning laws. No enquiries seem to have been made with the Council concerning the proposed activity.
As submitted by the defendant, the conduct of the plaintiffs in these respects can be fairly described as unreasonable. I am not convinced, however, that the conduct is the reason the reasonable necessity for the easement exists. The reasonable necessity essentially arises from the fact that parts of the Crown Road are unsuitable for vehicular traffic, and that vehicular access between Lot 98 and the public road system is required in order for Lot 98 to be effectively used as a residence. That was the situation at the time of the plaintiffs’ purchase. There was a residence on Lot 98 at that time, however rudimentary it may have been. The improvements made by the plaintiffs and the establishment of the cat breeding business (which is not open to the public) may have brought about some increase in the volume of traffic, but these changes did not themselves create the reasonable necessity for the easement.
This case is not really like the situation referred to by Young J (as his Honour then was) in Hanny v Lewis (1998) 9 BPR 16,205 where his Honour said (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”. Similarly, I do not think that it is accurate to say that the plaintiffs have come to Court seeking an easement which would alleviate the consequences of their knowingly unlawful behaviour.
The plaintiffs’ unlawful development and use of the property is to be deprecated. As I have said, it reveals a cavalier attitude. Against that, it appears that the Council has taken the view (since it became aware of the development of Lot 98) that the question of access would need to be resolved before any development applications could be accepted. The carrying out in 2015 of what seems to be extensive works on the southern section of the Crown Road also exhibits a cavalier attitude on the part of the plaintiffs. Mr Weissflog proceeded to have the works done on the Crown Road without making enquiries of the relevant authority. I do not regard these matters as trivial. However, I find it difficult to see how they bear strongly against the exercise of the power to impose the easement which I have found to be reasonably necessary for the effective use or development of Lot 98. Although the plaintiffs, as the owners of Lot 98, benefit from the imposition of the easement, it should not be overlooked that the underlying rationale of the power under s 88K of the Act is to facilitate the effective use or development of land, provided various conditions are satisfied (see Khattar v Wiese (supra) at [60]; Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 at [134]).
Finally, I do not think that it is correct that the plaintiffs would obtain a windfall benefit if the easement they seek is imposed. There was some valuation evidence given to the effect that the plaintiffs’ purchase of Lot 98 may have occurred at a significant discount to reflect the difficulties with access. I would not treat that as evidence that the plaintiffs paid less than a fair market price for the property. On the contrary, the evidence suggests that the price was discounted below what it would have been in the market had there been no difficulties with access. In short, it seems that the plaintiffs paid a price that reflected the negative impact of the access issue. In order to overcome that problem, the plaintiffs have ultimately resorted to s 88K of the Act. That is itself an expensive exercise to undertake, even if the plaintiffs are successful. Apart from their own legal costs, it is very likely that the plaintiffs will have to pay the defendant’s costs (see s 88K(5) of the Act), as well as a substantial amount of monetary compensation (see s 88K(4) of the Act). In these circumstances, I cannot see that the plaintiffs will obtain any windfall benefit if the easement is imposed. In all the circumstances, and particularly taking into account the above matters raised by the defendant, I consider that I should proceed to exercise the discretion to make an order imposing an easement as sought by the plaintiffs.
The next matter to consider is the amount of compensation the plaintiffs should pay to the defendant for loss or other disadvantage that will arise from imposition of the easement.
The valuer called by the plaintiffs, Mr David Lunney, assessed the diminution in value of Lot 1 by the imposition of the easement at a nominal amount of $10,000. In so doing, he stated that it was difficult, if not impossible, to reliably quantify any diminution in value by applying either the “before and after” or the “piecemeal” methods of valuation (see report dated 9 July 2020 at paragraphs 90-102). No additional amounts were included for costs arising from the easement, or for reduced amenity or security.
The valuer called by the defendant, Mr Kent Wood, assessed the diminution in value of Lot 1 by both the “before and after” and “piecemeal” approaches, as $66,615 and $67,000 respectively (see report dated 9 December 2020 at page 17). The “before and after” approach ascribed a “before” value of $444,100 to Lot 1, and an “after” value of $377,485 (a reduction of 15% or $66,615). The “piecemeal” approach ascribed a value of $69,000 to the easement area (that is, Mount Haven Road and the dirt access road), from which 1/3, or $23,000, was deducted for the imposition of the easement, and a further $44,000 (being about 10% of the value of the entire Lot 1) was deducted for injurious affection.
In the Joint Report dated 6 August 2021, Mr Lunney noted the relatively small difference between his $10,000 and Mr Wood’s $23,000 figures, and stated that to give the benefit of any genuine doubt to the defendant he could accept that $23,000 may also be seen as an appropriate nominal sum representing the amount of compensation payable for loss or other disadvantage suffered by the defendant by reason of the imposition of the easement. Mr Lunney maintained that no further diminution in value would be suffered by Lot 1. The question of whether some further amount should be added for injurious affection thus became the centre of the dispute between the valuers.
Having read and considered the reports of the valuers (including Mr Lunney’s report in reply dated 23 February 2021), and the further evidence given by them in concurrent session, I generally prefer Mr Lunney’s approach to the question. I think that his opinions on the matter are cogent and logically expressed. He appeared to me to approach the matter with an open mind, conscious of the difficulties inherent in the exercise. He was prepared to accept in cross-examination that the additional traffic generated due to the easement might affect the recreation areas that form part of Lot 1, and that a further nominal amount could be added for that affectation. When pressed to assess a nominal amount, Mr Lunney said that it would be less than $10,000.
Mr Wood steadfastly maintained that his assessment of injurious affection was correct, but he struggled to explain the reasoning which underpinned his opinion. Even making due allowance for the fact that the matter clearly involves a large degree of professional judgment which rests upon experience, I was left unpersuaded that the easement, which is likely to cause only a small increase in traffic, would cause a 10% reduction in the value of Lot 1 as a whole. So, even if Mr Wood’s assessment of the overall value of Lot 1 is accepted, I am unable to accept that an amount in the order of $44,000 should be added for injurious affection.
However, having regard to Mr Lunney’s concession that a nominal amount of something less than $10,000 might be justified, I consider that a further nominal amount should be added for injurious affection. Taking into account Mr Lunney’s other concession (referred to at [100] above), I think that a total amount of compensation of $30,000 would be appropriate. I should add that it is accepted by the plaintiffs that it should be a condition of any easement imposed that they (or, more accurately, the owners of Lot 98 as the dominant tenement) would pay a levy or contribution at a suitable rate to compensate the defendant for additional costs that may be incurred as a result of the additional traffic likely to be generated due to the easement.
As mentioned earlier, there are other terms and conditions which ought to be imposed in respect of the easement. These include a condition that the users of the easement observe the estate road rules as contained in the Management Statement, and terms relating to the locked gate the defendant wishes to maintain across the dirt access road. I think that there should also be a condition that would require the owners of the dominant tenement to obtain, within a reasonable period, a development consent for the use of Lot 98, and a condition that the easement not be used for purposes that are not connected with an approved use.
These, and other terms and conditions, have been the subject of discussion between the parties. There is measure of agreement, but some differences remain. It would be appropriate to give the parties a further opportunity to seek to reach agreement concerning these issues, and as to a suitable levy or contribution to be paid to compensate for additional traffic. Depending upon the extent of any remaining disagreement, the Court may be able to proceed to settle final orders in Chambers without the need for any further oral hearing.
Accordingly, the parties are directed to confer and attempt to reach agreement as to a form of final orders to give effect to these reasons. Either an agreed form of orders or, in the absence of agreement, suggested forms of orders, should be submitted to my Associate within 21 days for the consideration of the Court.

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Decision last updated: 09 March 2022

Medium Neutral Citation:	Weissflog v Community Association DP 270159 [2022] NSWSC 239
Hearing dates:	7-9 February 2022
Date of orders:	9 March 2022
Decision date:	09 March 2022
Jurisdiction:	Equity
Before:	Darke J
Decision:	Order to be made imposing right of carriageway over defendant’s land.
Catchwords:	EASEMENTS – 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’ land presently exists – whether such an easement is reasonably necessary given the existence of an undeveloped Crown road – where effects of proposed easement relatively minor – whether lack of development consent for plaintiffs’ use of their land as a residence and cat-breeding facility entails an absence of reasonable necessity or the existence of inconsistency with the public interest – whether discretion to impose easement should not be exercised due to plaintiffs’ unreasonable conduct – whether the plaintiffs would obtain a windfall gain by imposition of an easement
Legislation Cited:	Conveyancing Act 1919 (NSW), s 88K
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251 Evans v Cornish Nominees Pty Ltd (2009) 14 BPR 27,257; [2009] NSWSC 1295 Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328 Hanny v Lewis (1998) 9 BPR 16,205 ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Tout v Johnson [2021] NSWSC 1311
Category:	Principal judgment
Parties:	Nikolas Weissflog (First Plaintiff) Tamara Dunlop (Second Plaintiff) Community Association DP 270159 (Defendant)
Representation:	Counsel: Ms P Lane (Plaintiffs) Mr J Lazarus SC with Mr R Sud (Defendant) Solicitors: Watkins Tapsell Solicitors (Plaintiffs) Messenger & Messenger Solicitors (Defendant)
File Number(s):	2020/129550
Publication restriction:	None