William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans v Wenhao Wu

[2022] NSWLEC 144

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans v Wenhao Wu [2022] NSWLEC 144

Hearing dates:

20 October 2022

Date of orders:

05 December 2022

Decision date:

05 December 2022

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

The Court:

(1) Declares that, by operation of cl 1.9A of Woollahra Local Environmental Plan 2014 (NSW), the instrument recorded in Dealing B823062 does not apply to the extent necessary to serve the purpose of enabling development to be carried out on Lot 1 in DP 110554, known as 31 Vaucluse Road, Vaucluse NSW, in accordance with the development consent to DA 394/2020 granted by Woollahra Municipal Council on 23 February 2021 and modified on 6 September 2021.

(2)   Dismisses the summons filed in the Supreme Court of NSW on 17 January 2021 and transferred to the Land and Environment Court of NSW on 7 April 2022.

(3)   Orders William Lloyd Carey-Evans and Jennifer Ann Quist as Executors of the Estate of Robert Rufus Carey-Evans to pay the costs of Wenhao Wu of both the summons and cross -summons in the proceedings.

Catchwords:

DEVELOPMENT – development consent to erect dwelling house – land burdened by dealing creating rights of light, air and prospect – dwelling house would exceed height plane specified in dealing – statutory provision suspending specified regulatory instruments to enable development to be carried out – specified instruments are “any agreement, covenant or other similar instrument” – whether dealing any of these instruments – instrument “restricts the carrying out of that development” – whether dealing so restricts – statutory provision applies to dealing – whether breach of rights of light, air and prospect a nuisance – substantial interference required for nuisance – substantial interference with rights not established.

EASEMENTS – dealing creating rights of light, air and prospect – whether grant of easement – whether easement for light and air – whether easement for prospect or restrictive covenant.

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 88, 99

Environmental Planning and Assessment Act 1979 (NSW), s 3.16

Real Property Act 1900 (NSW), ss 31B, 40, 41, 46, 47

Woollahra Local Environmental Plan 2014 (NSW), cl 1.9A

Cases Cited:

Aldred’s Case (1610) 9 Co Rep 57(b); (1610) 77 ER 816

Allen v Greenwood [1980] Ch 119

Atkinson v Long (1885) 2 QLJ 99

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] HCA 9

Campbell v Paddington Corporation [1911] 1 KB 869

Chastey v Ackland (1895) 11 TLR 460

Cracknell and Lonergan Pty Limited v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392

Colls v Home and Colonial Stores Ltd [1904] AC 179

Commonwealth v Registrarof Titles for Victoria (1918) 24 CLR 348; [1918] HCA 17

Coshott v Ludwig (1997) 8 BPR 15,519

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27

Dalton v Henry Angus & Co (1881) 6 App Cas 740

Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39

Harris v De Pinna (1886) 33 Ch D 238

Hunter v Canary Wharf Ltd [1997] AC 655

Leech v Schweder (1874) LR 9 Ch App 463

Palmer v Board of Land and Works (1875) 1 VLR (E) 80

Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226

Ryan v Sutherland [2011] NSWSC 1397

Thwaites v Brahe (1895) 21 VLR 192

Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45

Texts Cited:

John Baalman, “No easement for prospect” (1942) 16 ALJ 126

Adrian J Bradbrook and Susan V MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis Butterworths)

Sir Paul Morgan and Jonathan Gaunt QC, Gale on Easements (21st ed, 2020, Sweet & Maxwell)

Category:

Principal judgment

Parties:

William Lloyd Carey-Evans and Jennifer Anne Quist as Executors of the Estate of Robert Rufus Carey-Evans (Applicant/First Cross-Respondent)
Wenhao Wu (First Respondent/Cross-Applicant)
Sunny Siu Kei Ngai (Second Cross-Respondent)

Representation:

Counsel:
S Free SC and H Ryan (Applicant/First Cross-Respondent)
A Pickles SC and G Farland (First Respondent/Cross-Applicant)
Submitting appearance by Second Cross-Respondent

Solicitors:
Dentons (Applicant/First Cross-Respondent)
Mills Oakley (First Respondent/Cross-Applicant)
Submitting appearance by Second Cross-Respondent

File Number(s):

2022/107485

JUDGMENT

Nature of proceedings and outcome

1. Mr Wenhao Wu (Wu) owns and wishes to redevelop land described as Lot 1 in Deposited Plan 110554, known as 31 Vaucluse Road, Vaucluse. Development consent was granted on 23 February 2021, and modified on 6 September 2021, to demolish the existing dwelling house and construct a new dwelling house and swimming pool, landscaping works and site works (the consent). The new dwelling house will be higher than the existing dwelling house.

2. Mr William Carey-Evans and Ms Jennifer Quist are the Executors of the Estate of Mr Robert Carey-Evans (Carey-Evans) and in that capacity own the adjoining property described as Lot 100 in Deposited Plan 621888, known as 2A Fisher Avenue, Vaucluse.

3. Wu’s property is downhill and closer to Sydney Harbour than Carey-Evans’ property, so that Carey-Evans’ property looks over Wu’s property towards Sydney Harbour. That overlooking of Wu’s property towards Sydney Harbour from Carey-Evans’ property is protected by rights for light, air and prospect across and above a specified horizontal plane, recorded in Dealing B823062 (the Dealing), benefiting Carey-Evans’ property as well as a neighbouring property, and burdening Wu’s property. The neighbouring property, which is the other land benefited, is Lot A in Deposited Plan 376460, known as 2 Fisher Road, Vaucluse, owned by Sunny Siu Kei Ngai (the second cross-respondent). The second cross-respondent has filed a submitting appearance.

4. The new dwelling house will be higher than the horizontal plane specified in the Dealing. The highest point of the roof of the new dwelling house will be RL 46.335 metres, while the specified horizontal plane translates to a height of RL 44.557 metres, resulting in an exceedance of 1.778 metres.

5. On this basis, the parties agree that the new dwelling house will exceed the horizontal plane specified in the Dealing, but the parties disagree as to what is the legal consequence of this exceedance. Carey-Evans brought proceedings, commenced by a summons filed in the Supreme Court but transferred to this Court, to enforce compliance with the Dealing, seeking in particular an injunction restraining Wu from erecting the new dwelling house in accordance with the consent above the specified horizontal plane of RL 44.557 metres.

6. Wu brought proceedings, commenced by a cross summons filed in this Court, seeking a declaration that, by operation of cl 1.9A of Woollahra Local Environmental Plan 2014 (NSW) (WLEP), the Dealing does not apply to the extent necessary to serve the purpose of enabling the carrying out of the development in accordance with the consent.

7. Wu contended that, by operation of cl 1.9A of WLEP, the Dealing does not apply to restrict Wu from carrying out the development of erecting a new dwelling house in accordance with the consent. Carey-Evans disputed the application of cl 1.9A of WLEP to the Dealing. This is the first question to be decided: does cl 1.9A of WLEP operate to cause the Dealing to not apply to the extent necessary to serve the purpose of enabling the development to be carried out in accordance with the consent?

8. If cl 1.9A does apply, the parties accept that Wu can erect the new dwelling house, even though it would result in an exceedance of the specified horizontal plane in the Dealing.

9. If cl 1.9A of the WLEP does not apply, the second question is whether the new dwelling house’s exceedance of the specified horizontal plane in the Dealing would be a nuisance. Any substantial interference with an easement created by the Dealing would be an actual nuisance. Carey-Evans contended that the almost two metre exceedance of the specified horizontal plane would substantially interfere with the rights for light, air and prospect created by the Dealing. Wu disputed that the exceedance of the specified horizontal plane could be described as a substantial interference with the rights for light, air or prospect. The second question is this: does the new dwelling house’s exceedance of the specified horizontal plane substantially interfere with any easements for light, air or prospect created by the Dealing?

10. I have determined that the answer to the first question is yes, that cl 1.9A of WLEP does operate to cause the Dealing to not apply to the extent necessary to serve the purpose of enabling the development to be carried out in accordance with the consent. In light of this answer to the first question, it is unnecessary to answer the second question, as that question will not arise. Nevertheless, as the question was fully argued and in case the answer to the first question is incorrect, I would answer the second question “no”. With these answers to the questions, Wu’s cross summons should be upheld and an appropriate declaration made as to the operation of cl 1.9A of WLEP and Carry-Evans’ summons should be dismissed. Costs should follow the event for each summons.

Rights created by the Dealing

11. The Dealing is a Memorandum of Transfer, recorded in the Register as Dealing B823062, dated 15 May 1929, between Emily Mabel Hay Leibius of Sydney and Jack Evelyn Sabine of Rose Bay. Mrs Leibius is stated to be the registered proprietor of land now comprising Carey-Evans’ property and the second cross-respondent’s property, referred to in the Dealing as the “dominant land”. Mr Sabine is stated to be the registered proprietor of land now comprising Wu’s property, referred to in the Dealing as the “subject land” (it is the servient land).

12. By the Dealing, the servient owner, Mr Sabine, granted and transferred to the dominant owner, Mrs Leibius, certain rights, including:

“(B) Full and free right (1) to the uninterrupted passage access transmission and enjoyment of light and air over and across the horizontal plane abovementioned to the dominant land and every part thereof and to the windows and openings of any residence erected or to be erected thereon and (2) to an uninterrupted prospect over and across the said horizontal plane from the dominant land and every part thereof and from the windows and openings of any residence erected or to be erected thereon.

13. The “horizontal plane abovementioned” was a reference to “a horizontal plane thirty-one feet above the crown of that part of Vaucluse Road as laid and made at the date of this transfer which is opposite the centre of subject land.” The parties have agreed that this horizontal plane translates to a height of RL 44.557 metres.

14. The Dealing recorded that the whole of the dominant land is benefited and the whole of the servient land is burdened by the covenants and easements created by the Dealing:

“The land to which the benefit of the above covenants and easements is intended to be appurtenant is the whole of the said dominant land and the land which is to be subject to the burden of the covenants and easements is the whole of the said subject land.”

Registering the Dealing in the Register

15. Section 31B(2) of the Real Property Act 1900 (NSW) provides that the Register, maintained for the purposes of the Real Property Act, is comprised of, amongst other documents:

“(a) folios,

(b) dealings registered therein under this or any other Act…”

16. Section 40(1A) provides that a computer folio certificate issued in respect of a folio of the Register is evidence of the particulars recorded in that folio:

“(1A) Where a computer folio certificate is issued in respect of a folio of the Register—

(a) the certificate is evidence of the particulars recorded in that folio, and

(b) it shall be conclusively presumed that—

(i) the certificate contains all the information that was recorded in that folio at the time specified in the certificate,

(ii) the land to which the certificate relates was, at that time, under the provisions of this Act, and

(iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest.”

17. Section 40(1B) explains that a notification in a folio of the Register that an estate or interest of a registered proprietor is subject to an estate or interest evidenced by an instrument, or a provision of an instrument, is sufficient to incorporate the whole of the contents of the instrument in the folio:

“(1B) Where, in a manual folio or computer folio certificate, the estate or interest of a registered proprietor is expressed to be subject to—

(a) an estate or interest evidenced by an instrument,

(b) a provision of an instrument, or

(c) an enumerated provision of an Act or of an Act of the Parliament of the Commonwealth,

the whole of the contents of the instrument, provision or enumerated provision, as the case may be, shall be deemed to be set forth at length in the folio or certificate.”

18. This incorporation of the whole of an instrument in the folio of the Register was recognised in Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 at 77-78; [1971] HCA 9.

19. Section 41(1) requires dealings to be registered to be effectual to pass any estate or interest:

“(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.”

20. This is an illustration of what the High Court held in Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 at [5]; and Deguisa v Lynn (2020) 268 CLR 63; [2020] HCA 39 at [4]: “the Torrens system established a system of title by registration rather than one of registration of title”.

21. Section 46 provides for the execution of a transfer to create an easement that burdens and benefits separate parcels of land owned by different people:

(1) Where land under the provisions of this Act is intended to be transferred, or any easement or profit à prendre affecting land under the provisions of this Act is intended to be created, the proprietor shall execute a transfer in the approved form.

(1A) A transfer that creates an easement or a profit à prendre must be—

(a) executed by the registered proprietor of the land burdened and the land benefited, if any, and

(b) accompanied by the written consent of every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register for the land burdened.

(2) This section does not apply to the creation of an easement or profit à prendre that burdens and benefits separate parcels of land if the same person is the proprietor of the separate parcels of land.”

22. The easements in this case were created by the registered proprietors of the land burdened and the land benefited executing a transfer in the approved form.

23. Section 47 provides for the recording of an affecting interest, including an easement and a restriction on the use of land, in the folio of the Register for the land burdened and the land benefited:

“(1A) In this section, affecting interest means an easement, profit à prendre or restriction on the use of land.

(1) When an affecting interest that burdens land under the provisions of this Act is created, the Registrar-General is to record particulars of the dealing creating the affecting interest—

(a) in the folio of the Register for the land burdened, and

(b) if the affecting interest is an easement or profit à prendre that benefits land under the provisions of this Act—in the folio of the Register for the land benefited.”

24. An “affecting interest” is defined to include an easement or restriction on the use of land: s 47(1A).

25. The Registrar-General did record particulars of the Dealing creating the affecting interests in the folio of the Register for the land burdened and the folio of the Register for the land benefited.

26. A title search of the folio of the Register for the land burdened (Mr Wu’s property) reveals seven notifications, the fifth of which is:

“5    B823062   Negative easement affecting the land above described”

27. The “land above described” is “Lot 1 in Deposited Plan 110554”, which is Mr Wu’s property.

28. Title searches of the folios of the Register for the lands benefited, both Carey-Evans’ property and the second cross-respondent’s property, reveal notifications referring to the Dealing. The folio identifier for Carey-Evans’ property reveals this notification:

“4    B823062    Easement appurtenant to the land above described affecting the part(s) shown so burdened in the title diagram.”

29. The title diagram referred to is the “plan of subdivision of Lot B in DP 376460 and land in DP 954538”, registered on 7 September 1982. That plan of subdivision erroneously recorded “Easement B823062” as being a strip of land 1.524m wide, burdening Wu’s property, running along the common boundary between Wu’s property and Carey-Evans’ property. The plan of subdivision was in error because the Dealing expressly stated that the land burdened by the easement created by the Dealing was “the whole of the said subject land” and not just a strip of land.

30. It is surmised that the error occurred when a drainage easement, in the location of the strip of land shown on the plan of subdivision, was erroneously labelled as being “Easement B823062” created by the Dealing. This error in the plan of subdivision is not material, having regard to s 40(1B) of the Real Property Act. The folio of the Register for Carey-Evans’ property records the estate or interest of Carey-Evans as thea registered proprietor as being subject to “an estate or interest evidenced by an instrument” or “a provision of an instrument”, the instrument being Dealing B823062. By force of s 40(1B) of the Real Property Act, the whole of the contents of the instrument or provision of the instrument is deemed to be set forth at length in the folio. The folio would therefore include the express statement in the instrument that the land burdened by the easement is the whole of the servient land (Wu’s property) and the land benefited by the easement is the whole of the dominant land (Carey-Evans’ property and the second cross-respondent’s property).

31. The folio identifier for the second cross-respondent’s property reveals this notification:

“4   B823062   Easement appurtenant to the land above described affecting the land shown so burdened in Vol 4336 Fol 71.”

32. The “land above described” is “Lot A in Deposited Plan 376460”, which is the second cross-respondent’s property. The “land shown so burdened in Vol 4336 Fol 71” was not identified in evidence, but presumably it is the servient land of Lot 1 in Deposited Plan 110554 (Wu’s property). In any event, there is no limitation in this notification in the folio for on the land burdened as there is for Carey-Evans’ property, so that the whole of the servient land is affected (burdened) by the negative easement.

The effect of registration of the Dealing

33. Wu challenged Carey-Evans’ contention that the Dealing created easements for light, air and prospect in two respects. The first respect was that the Dealing did not create valid easements. The second respect was that, if the Dealing did create valid easements, the land burdened by the easements is limited to the strip of land shown on the plan of subdivision referred to in the folio of the Register for Carey-Evans’ property.

33. Wu’s first argument was that the easements of light, air and prospect said to be created by the Dealing are not in fact known to law, for various reasons. Wu contended that the easements for light and air sought to restrain Wu as the servient owner from using the servient land above the specified horizontal plane for any useful purpose or at all: Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292 at [23]. Such a restraint on the use of the servient land is incompatible with the continued beneficial ownership of the servient land: Ryan v Sutherland [2011] NSWSC 1397 at [23]. Wu contended that the easement affording a right of prospect over the servient land was not capable of being the subject matter of a grant of an easement. Moreover, the right of prospect is vague and undefined: Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 824.

34. Carey-Evans disputed that the easements created by the Dealing were not valid easements. Carey-Evans noted that the High Court has held that the common law recognises an express grant of an easement for light and air passing across the burdened land to reach the benefited land: Commonwealth v Registrar of Titles for Victoria (1918) 24 CLR 348 at 354, 355; [1918] HCA 17. Equally, it has been recognised that an easement for prospect can be acquired by express agreement: Dalton v Henry Angus & Co at 824; Hunter v Canary WharfLtd [1997] AC 655 at 727. The easement for prospect does not impose a burden on a “very large and indefinite area” (Dalton v Henry Angus & Co at 824), but only on the servient land (Wu’s property) above the specified horizontal plane.

35. In any event, however, Carey-Evans submitted that once the easements were registered in the folios of the Register for the land burdened and the land benefited in accordance with s 47(1) of the Real Property Act, they became indefeasible and enforceable. Carey-Evans noted that Wu has not sought to challenge the validity of the registration of the easements by proceedings brought for that purpose. Wu’s argument in these proceedings that the easements are not known to the law for various reasons are not a challenge to the validity of the registration of the easements. Carey-Evans reiterated that the Torrens system established a system of title by registration rather than one of registration of title: Deguisa v Lynn at [4]. Here, the registration of the Dealing made the easements created by the Dealing effectual.

36. I will deal with Wu’s first argument when I deal with what interests are created by the Dealing. As I later explain, determining whether a dealing is “any agreement, covenant or other similar instrument” for the purpose of cl 1.9A of WLEP requires first ascertaining what interest the dealing created. The Dealing no doubt created rights of light, air and prospect, but do each of these rights constitute an easement or are they something else such as a restrictive covenant?

37. Wu’s second argument was that the notification in the folio of the Register for one of the lands benefited, Carey-Evans’ property, limited the land burdened to be only the strip shown on the plan of subdivision referred to in the notification. Carey-Evans disputed that the land burdened was so limited. The folios of the Register for both the land burdened (Wu’s property) and the other of the lands benefited (the second cross-respondent’s property) are clear in identifying the whole of the land burdened (Wu’s property) as being burdened by the easement.

38. Of the three folios of the Register, the notification in the folio for the land burdened is of the most importance in identifying the extent to which the servient land is burdened. This notification in the folio of the land burdened identifies that the whole of the land is burdened by the easement, not just a strip of land.

39. Carey-Evans submitted that, in any event, s 40(1A) of the Real Property Act puts the matter beyond doubt. The folios in the Register for both the land burdened and the land benefited record that the each registered proprietor’s’ estate or interest in each land is subject to the easement evidenced by the Dealing, so that the whole of the contents of the Dealing are deemed to be set forth at length in the folio. The contents of the Dealing are clear in stating that the whole of the servient land is burdened by the easement and the whole of the dominant land is benefited by the easement. The notifications in the folios of the Register to the easement evidenced by the Dealing therefore need to be read in the context of the whole of the contents of the Dealing. When this is done, the notification in the folio for Carey-Evans’ property can be seen to be an error and the true position is that the whole of the servient land (Wu’s property) is burdened by the easement.

40. I agree with Carey-Evans’ submissions. The registration of the Dealing evidencing the easement recorded in the Register made that easement effectual. Unless and until a court of competent jurisdiction declares the registration of the Dealing evidencing the easement invalid, in proceedings brought for that purpose, the easement recorded in the Register is indefeasible and enforceable. The easement burdens the whole of Wu’s property, not just a strip of that land. The folios in the Register for the land burdened and the lands benefited record the estates of the registered proprietors of those lands to be subject to the easement evidenced in the Dealing, thereby incorporating the whole of the contents of the Dealing in the folio. The contents of the Dealing expressly state that the whole of the servient land is burdened by the easement. This confirms accords with the notification in the folio for the land burdened and the notification in the folio for one of the lands benefited (the second cross-respondent’s property). It differs from the notification in the folio for the other of the lands benefited (Carey-Evans’ property). However, that notification is to be read in the context of the whole of the contents of the Dealing evidencing the easement, which is deemed to be set forth at length in the folio. When this is done, it becomes clear that the land burdened by the easement is the whole of the servient land, not just a strip of that land.

The applicability of cl 1.9A of WLEP

42. I come to the first question that needs to be decided in the proceedings: does cl 1.9A of WLEP operate to cause the Dealing to not apply to the extent necessary to serve the purpose of enabling development to be carried out in accordance with the consent?

43. Clause 1.9A of WLEP provides that certain instruments are ineffective to restrict the carrying out of development in accordance with WLEP or a consent granted under the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Clause 1.9A of WLEP was made pursuant to s 3.16 of the EPA Act. Section 3.16 provides:

“(1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.”

44. Clause 1.9A(1) of WLEP provides, so far as is relevant:

“1.9A Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.”

45. The issue for determination is whether the Dealing falls within the description in cl 1.9A(1) of “any agreement, covenant or other similar instrument that restricts the carrying out of that development”.

46. Carey-Evans contended that the Dealing does not fall within this description for two reasons: first, the Dealing is not “any agreement, covenant or other similar instrument” and second, the Dealing itself does not restrict the carrying out of development in accordance with WLEP or with the consent granted under the EPA Act.

47. As to the first reason, Carey-Evans noted that the class of instruments described in cl 1.9A of WLEP is narrower than the definition of “regulatory instrument” in s 3.16(1) of the EPA Act. That was permissible: it is for the environmental planning instrument to specify which regulatory instruments from the wide class identified in s 3.16(1) are not to apply: s 3.16(2) of the EPA Act. Carey-Evans submitted that this narrowly drafted class of instruments should be given no wider effect than their terms.

48. Carey-Evans submitted that a registered grant of an easement is not an instrument of a type specified in cl 1.9A of WLEP of being an instrument, covenant or other similar instrument. Grants of easements are distinct from agreements and covenants: Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226 at [21]. The registration of the Dealing, which was a Memorandum of Transfer between the servient and dominant owners at the time, made the easements created by the Dealing effectual. The registered easements, although evidenced in the Dealing, which is a form of agreement, are not themselves agreements. The registered easements are not covenants. Although there can be an overlap between some types of easements, especially negative easements, and covenants, easements are distinguishable from covenants: Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council at [20]: Cracknell and Lonergan Pty Limited v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392 at [43].

49. The distinction between easements and covenants is maintained in legislation as well as at common law. Sections 88 and 99 of the Conveyancing Act 1919 (NSW) refer separately to easements and restrictions under covenants. The concepts are also distinguished in the Real Property Act: see, for example, s 47. Carey-Evans noted that the Registrar-General recognised the distinction between the two rights when the easements the subject of this proceeding were recorded as a “negative easement” or “easement” and a separate undertaking in the Dealing to keep building structures on the servient land below the specified horizontal plane was recorded as a “covenant”.

50. Carey-Evans submitted that the registered easements are also not a “similar instrument”. The word “similar” refers back to the first two members of the class of instruments specified in cl 1.9A of WLEP, being an agreement or a covenant. An easement is not similar to either an agreement or a covenant for the reasons already given.

51. As to the second reason, Carey-Evans submitted that the Dealing creating the easements, even if it could be described as any agreement, covenant or other similar instrument, is not one that “restricts the carrying out of that development” as required by cl 1.9A of WLEP. Carey-Evans submitted that for the purpose of engaging cl 1.9A of WLEP, an instrument only restricts the carrying out of development where such a restriction is expressly stated or necessarily implied in the instrument: Cracknell and Lonergan Pty Limited v Council of the City of Sydney at [38]. Carey-Evans submitted that the easements evidenced by the Dealing do not expressly or by necessary implication restrict the carrying out of development on the servient land (Wu’s property). It is not enough that the incidental effect of enforcing the rights conferred by the easements would be to inhibit development that is inconsistent with those rights: Cracknell and Lonergan Pty Limited v Council of the City of Sydney at [41], [62]-[64]. The grant of the easements does not in terms or by necessary implication impose restrictions on development for the purpose of a clause such as cl 1.9A of the WLEP: Cracknell and Lonergan Pty Limited v Council of the City of Sydney at [42]-[43].

52. Wu contested both of these arguments of Carey-Evans. Wu submitted that the Dealing does answer the description of being “any agreement, covenant or other similar instrument” and is one that “restricts the carrying out of that development”. Wu submitted that the Dealing creating the easements contended for by Carey-Evans is not only an “agreement” but also a “similar instrument” to an “agreement” or a “covenant”. Wu submitted that it is immaterial that cl 1.9A of WLEP does not refer to easements in terms. The category of “other similar instrument” is sufficiently wide to embrace the easements evidenced by the Dealing.

53. Wu submitted that the easements are negative easements, which by their terms restrict the carrying out of development on the servient land, in a similar way to restrictive covenants. The easements in this case are different in character to positive easements, such as a right of way, which allow the dominant owner to do something on the servient land. Wu cited the passage in Adrian J Bradbrook and Susan V MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis Butterworths) at [1.48] as to the difference between negative and positive easements:

“Positive easements are rights (for example, rights of way) which give the owner of land a right to do some act on his or her neighbour’s land, while negative easements are rights (for example, right of light) which give a landowner the right to stop his or her neighbour doing something on his or her own land.”

54. Wu accepted that a positive easement such as a right of way is not a covenant itself and is also not a similar instrument to a covenant: Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council at [20]-[21]; Cracknell and Lonergan Pty Limited v Council of the City of Sydney at [33]. But Wu submitted that a negative easement, such as the easements for light, air or prospect in this case, are is a similar instrument to a covenant. The A negative easements, like a covenant, restricts the rights of the servient owner or covenantor from using the servient land in a particular way or for a particular purpose. The notification in the Register for the servient land (Wu’s property) refers to a “negative easement” affecting the servient land.

55. As to the second question, Wu submitted that the any easements evidenced by the Dealing do restrict development of the servient land. The servient owner is restricted from erecting a building or structure on the servient land above the specified horizontal plane, so as to ensure “the uninterrupted passage, access, transmission and enjoyment of light and air over and across the horizontal plane abovementioned to the dominant land” and “an uninterrupted prospect over and across the said horizontal plane from the dominant land”.

56. Wu submitted that the any easements evidenced by the Dealing do answer the description in cl 1.9A of WLEP of being an instrument that “restricts the carrying out of that development”. The reference to “that development” is to the development earlier referred to in cl 1.9A, being either “development on land in any zone to be carried out in accordance with this Plan [WLEP]” or “development on land in any zone to be carried out in accordance… with a consent granted under the Act [EPA Act].” In this case, the question is whether the easements evidenced by the Dealing restrict the carrying out of development on the servient land (Wu’s property) in accordance with the consent granted by the Council. That consent authorises the erection of the new dwelling house above the horizontal plane specified in the Dealing. Wu submitted that the easements in their terms restrict the carrying out of that development, as the development would interrupt the passage, access, transmission and enjoyment of light and air, and prospect, over and across that horizontal plane specified in the Dealing.

57. Wu distinguished the present case from that considered in Cracknell and Lonergan Pty Limited v Council of the City of Sydney. There, cl 44(1) of Sydney Local Environmental Plan (1998) suspended any covenant, agreement or similar instrument that “purports to impose restrictions on” the carrying out of development on the land. Here, cl 1.9A of WLEP is in different terms – it suspends any covenant, agreement or other similar instrument that “restricts the carrying out of development on the land”. Wu submitted the difference in language is important and explains why the Court in Cracknell and Lonergan Pty Limited v Council of the City of Sydney construed the clause there considered as requiring that the agreement, covenant or similar agreement itself must impose a restriction on the carrying out of development and hence why it was not sufficient that the existence of the agreement, covenant or similar agreement restrict the carrying out of development. Wu submitted that cl 1.9A of WLEP does not require the agreement, covenant or other similar instrument to purport to impose restrictions on the carrying out of development, but simply to restrict the carrying out of development.

58. Wu submitted thatT the easements evidenced by the Dealing do restrict the carrying out of development in accordance with the consent. The only purpose of the grant of the easements is to restrict the carrying out of development above the specified horizontal plane on the servient land.

The Dealing does not apply to restrict the development

59. I find that the Dealing answers the description of not only being “any agreement, covenant or other similar instrument” but also one that “restricts the carrying out of that development”. The consequence is that by reason of cl 1.9A of WLEP, the Dealing does not apply to the extent necessary to serve the purpose of enabling the development to be carried out in accordance with the consent granted by the Council.

60. Answering the first question of the applicability of cl 1.9A of WLEP involves three steps: first, identifying what interest is created by the instrument that is the Dealing; second, ascertaining whether the Dealing creating that interest is “any agreement, covenant or other similar instrument”; and third, determining whether the Dealing “restricts the carrying out of that development”, being development in accordance with the consent granted by the Council. The first step is necessary in order to undertake the second step, and the second step is necessary in order to undertake the third step.

61. As to the first step, Carey-Evans has assumed that the Dealing created three easements for light, air and prospect. On that assumption, Carey-Evans contended that the easements do not answer the description of being “any agreement, covenant or other similar instrument”. That assumption that the Dealing created easements needs to be tested.

62. The Dealing does refer to both “covenants and easements”, first in the “transfer and release” part and secondly in the “grant and transfer” parts of the Dealing, but the Dealing does not identify which of the rights referred to are covenants and which are easements. In the part dealing with the “grant and transfer”, the rights that are specified to be granted and transferred are stated to be:

“(A) The right that in respect of the subject land (1) the front wall of any main building which shall at any time be erected thereon shall not be further back than the frontage of the subject land than forty-two feet six inches and (2) No building or structure shall be erected on the subject land and no tree or plant shall be allowed to remain or grow thereon higher than to reach a horizontal plane thirty-one feet above the crown of that part of Vaucluse Road as laid and made at the date of this transfer which is opposite the centre of the subject land.

(B) Full and free right (1) to the uninterrupted passage access transmission and enjoyment of light and air over and across the horizontal plane abovementioned to the dominant land and every part thereof and to the windows and openings of any residence erected or to be erected thereon and (2) to an uninterrupted prospect over and across the said horizontal plane from the dominant land and every part thereof and from the windows and openings of any residence erected or to be erected thereon.”

63. These rights are thereafter collectively referred to as “the above covenants and easements”, but the Dealing does not expressly identify which right or rights are covenants and which right or rights are easements.

64. Carey-Evans relies in these proceedings only on the rights set forth in paragraph (B). The Dealing is silent as to whether the rights set forth in paragraph (B) are covenants or easements. Wu submitted that all three of the rights specified in paragraph (B) are too vague and ill-defined, and too indefinite, to be capable of forming the subject matter of a grant of an easement.

65. As to the right to light and air, paragraph (B)(1) does not limit the right to uninterrupted passage etc of light and air to defined apertures of any building, such as windows or doors of a building on the dominant land, but it extends the right to the whole and every part of the dominant land. The right is to the uninterrupted passage etc of light and air over and across the specified horizontal plane “to the dominant land and every part thereof and to the windows and openings of any residence, erected or to be erected thereon”. This grant is in far wider terms than the grant that was upheld in Commonwealth v Registrar of Titles for Victoria. There, the grant was of “uninterrupted access and enjoyment of light and air to the doors and windows of the building or buildings erected or to be erected on the land.” Here, the grant is not limited to any building erected or to be erected on the land but extends to the whole of the land.

66. I do not consider that the High Court’s decision in Commonwealth v Registrar of Titles for Victoria can be distinguished by reference to the differences in the terms of the grant in that case to the grant in the present case. Both Griffiths CJ (353-354) and Gavan Duffy and Rich JJ (355) upheld the validity of a grant of a general easement of light and air, with the right to the uninterrupted access and enjoyment of light and air being appurtenant to and for the benefit of the dominant land as a whole, and not to or for the benefit of any particular building on the land.

67. On this authority, an easement for light and air could be created by express grant. The Dealing did just that. I find that the grant of the right to “the uninterrupted passage, access, transmission and enjoyment of light and air… to the dominant land and every part thereof and to the windows and openings of any residence erected or to be erected thereon” constituted a valid grant of an easement. The Dealing specifies that the land to which the benefit of this easement is intended to be appurtenant is the whole of the dominant land and the land which is the subject of the easement is the whole of the servient land. The restraint on erecting a building or structure above the specified horizontal plane does not prevent the servient owner from using the servient land for any useful purpose or at all, and is not incompatible with the continued beneficial ownership of the servient land.

68. Although the High Court’s decision in Commonwealth v Registrar of Titles for Victoria would authorise the creation of separate easements for light and air, the Dealing refers to the right to light and air in the singular, and hence insofar as the grant of that right is the grant of an easement, one easement is created rather than two separate easements. This accorded with what had been the practice in England and Australia until the late 19^th Century, when the decision in Commonwealth v Registrar of Titles for Victoria (at 354) recognised that separate easements for light and air could be created: see, for example, Harris v De Pinna (1886) 33 Ch D 238 at 250; Atkinson v Long (1885) 2 QLJ 99; Thwaites v Brahe (1895) 21 VLR 192 at 201.

69. The right of prospect, however, is not as clear. A line of English cases establishes that the right of prospect is too indefinite to be capable of forming the subject matter of a grant: see, for example, Aldred’s Case (1610) 9 Co Rep 57(b) at 58(b); (1610) 77 ER 816; Chastey v Ackland (1895) 11 TLR 460 at 461; Harris v De Pinna at 262; Campbell v Paddington Corporation [1911] 1 KB 869 at 875-876, 878-879. This has been accepted in Australia: Palmer v Board of Land and Works (1875) 1 VLR (E) 80 at 89; John Baalman, “No easement for prospect” (1942) 16 ALJ 126; Bradbrook and Neave’s Easements and Restrictive Covenants at [1.40], [1.52].

70. On this authority, the right of prospect, although stated to be the subject of a “grant” by the Dealing, did not constitute the grant of an easement of prospect. Rather, the right of prospect was acquired by agreement. That is to say, there is a distinction between a right to have a prospect being acquired by the grant of an easement and such right being acquired by actual agreement.

71. That a right of prospect can be acquired by actual agreement was recognised by Lord Blackburn in Dalton v Henry Angus & Co at 824: “a right to have a prospect can only be acquired by actual agreement”. But that means an acquisition of a right of prospect is distinct from a grant of an easement of prospect. As Baalman observed of Lord Blackburn’s judgment in Dalton v Henry Angus & Co:

“It is equally definite on the point that such a right [a prospect] can be acquired by actual agreement. It is understood that the reference to acquisition of a right by agreement forms the basis of much of the supposed justification of a grant of easement from prospect. There is no reason, however, to think that Lord Blackburn meant other than exactly what he said. Moreover, there are very good reasons to think that he had no intention of including ‘grant’ within the meaning of ‘agreement’, and those reasons can be found in the fundamental differences between easements and restrictive covenants…”: at 128.

72. As Baalman thereafter explained, an easement is an incorporeal hereditament burdening the servient land and appurtenant to and benefiting the dominant land. The rights and obligations of the owners of the respective servient and dominant lands are regulated entirely by the law of property. A covenant or agreement, on the other hand, is regulated by the law of contract. If it is a covenant that restricts the user of land, such as an agreement not to build on the servient land, so as to obstruct a view from the dominant land, it will bind successive purchasers of the servient land in much the same way as a true easement would do, but only if the purchasers have notice of its existence: Baalman at 128 and see Leech v Schweder (1874) LR 9 Ch App 463 at 475.

73. In the present case, therefore, the right of prospect created by the Dealing is better described as a restrictive covenant acquired by actual agreement, not a true easement created by grant of an easement. The agreement is restrictive of the user of the servient land, being an agreement not to erect a building or structure on the servient land above the specified horizontal plane so as to obstruct the prospect from the dominant land, in much the same way as an easement would do but its true nature is a restrictive covenant not an easement.

74. Registration of the Dealing creating the covenant in the folios of the Register for the land burdened and the lands benefited will give successive purchasers of the servient land notice of the covenant, so that they will be compelled to observe it.

75. In summary, the right to uninterrupted light and air granted in paragraph (B)(1) of the Dealing constituted a single easement, but the right for prospect created in paragraph (B)(2) of the Dealing did not constitute an easement, although it was is a restrictive covenant. The restrictive covenant burdening the servient land (Wu’s property) and benefiting the dominant land (including Carey-Evan’s property) is a proprietary right of Carey-Evans: Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 at [31]. This proprietary right was acquired by actual agreement, being the Memorandum of Transfer registered as the Dealing.

76. As far as the easement is concerned, the folios in the Register for the land burdened and the lands benefited recorded, in the notification for the Dealing, a singular easement. That notification in the folio of the land burdened refers to “negative easement” and the notifications in the folios for the lands benefited refer to “easement” in each case. Whilst these notifications in the folios of the Register are not conclusive, because regard must be had to the whole of the contents of the instrument (the Dealing) evidencing the interests created by the Dealing, which are deemed to be set forth at length in the folios of the Register for the land burdened and the lands benefited (see s 40(1B) of the Real Property Act), these notifications corroborate this construction of the Dealing that it creates a singular easement, being the easement for light and air.

77. As far as the covenant is concerned, the folio of the Register of the land burdened (Wu’s property) records a “covenant”, the notification being “6 B823062 Covenant”. As I have noted, the Dealing does not identify, in the part in which rights are granted and transferred, which rights are covenants and which rights are easements. Hence, the notification in the folio of the Register of the land burdened to a covenant is capable of referring to the right to an uninterrupted prospect over and across the specified horizontal plane on the servient land from the dominant land, referred to in paragraph (B)(2) of the Dealing.

78. The folios of the Register for the lands benefited (Carey-Evans’ property and the second cross-respondent’s property) do not record by way of a notification in the folio a covenant created by the Dealing. Nevertheless, as the estate of the registered proprietors of the lands benefited are expressed to be subject to an interest evidenced by the Dealing (the interest is recorded as an “easement”), by dint of s 40(1B) of the Real Property Act, the whole of the contents of the Dealing is deemed to be set forth at length in the folios for the lands benefited. The contents of the part of the Dealing comprising the grant and transfer of rights, including paragraph (B), reveal that the rights granted weare an easement for light and air (in paragraph (B)(1)) and a restrictive covenant (in paragraph (B)(2)).

79. I turn to the second step of ascertaining whether the instrument (the Dealing) evidencing this easement for light and air and covenant for prospect is an instrument answering the description of cl 1.9A of WLEP of “any agreement, covenant or other similar instrument”.

80. At the outset, it needs to be recognised that the inquiry required by cl 1.9A of WLEP necessitates identifying the instrument that creates the right or interest in or affecting lands, not the right or interest itself. That is clear with the first and third members of the class of instruments specified in cl 1.9A of WLEP, being an “agreement” or “other similar instrument”. But it is also so for the second member of the class of instruments, a “covenant”. The instrument to be disregarded, if cl 1.9A of WLEP were to apply, is a document that creates the restrictive covenant: Coshott v Ludwig (1997) 8 BPR 15,519 at 15,521. In the present case, the focus of the inquiry is the Dealing, which created the easement for light and air and the covenant for prospect. Is the Dealing any one or more of “any agreement, covenant or other similar instrument”?

81. The Dealing is an agreement in the form of a transfer. The Dealing was, and was entitled as, a “Memorandum of Transfer” between Mrs Leibius as the registered proprietor of the dominant land and Mr Sabine as the registered proprietor of the servient (or subject) land. As required by s 46 of the Real Property Act, both registered proprietors executed the Transfer. The relevant part of the agreement for present purposes is the “grant and transfer” of the rights set forth in paragraph (A) and (B) from Mr Sabine to Mrs Leibius, the benefit of which rights were intended to be appurtenant to the whole of the dominant land and the land which is to be the burden of the rights is the whole of the servient (or subject) land. The Dealing as an agreement created both the easement for light and air and the covenant for prospect.

82. The easement and covenant created by the Dealing were not effectual until the Dealing was registered (s 41 of the Real Property Act), but became effectual when the Dealing was registered and the Registrar-General recorded particulars of the Dealing creating the easement and the covenant restricting the use of the land in the folios of the Register for the land burdened and the lands benefited (s 47(1) of the Real Property Act). The estates of the registered proprietors of the land burdened and the lands benefited were thereby recorded in the respective folios of the Register as being subject to the easement and covenant evidenced by the Dealing (s 40(1), (1A), (1B) of the Real Property Act). This fact that the easement and covenant created by the Dealing were not effectual until registered does not take away from the fact that the Dealing creating the easement and covenant is an agreement. That is the operative characteristic of the Dealing for the purpose of ascertaining whether it is an instrument answering the description of “any agreement” in cl 1.9A of WLEP. The Dealing, or at least that part of the Dealing creating the easement and the covenant, is such an agreement for the purposes of cl 1.9A of WLEP.

83. The part of the Dealing creating the covenant for prospect, in paragraph (B)(2), also falls within the description of “covenant” in cl 1.9A of WLEP. For the reasons I have earlier articulated, the right to an uninterrupted prospect over and across the servient land from the dominant land, acquired by agreement and not by grant of an easement, is a covenant imposing a restriction on the use of the servient land. This part of the Dealing is a covenant for the purpose of cl 1.9A of WLEP.

84. The Dealing creating the easement and the covenant also falls within the description of “other similar instrument” in cl 1.9A of WLEP. The Dealing is clearly an “instrument”. It is also “similar” to an “agreement” for the reasons I have earlier given. The part of the Dealing creating the right to an uninterrupted prospect, in paragraph (B)(2) of the Dealing, is also “similar” to a “covenant”, also for the reasons I have given earlier.

85. Accordingly, the Dealing, at least that part of the Dealing that created the easement for light and air and the covenant restricting the user of the servient land by creating the right for prospect, falls within the description of instruments in cl 1.9A of WLEP of “any agreement, covenant or other similar instrument”.

86. I turn to the third step of determining whether the Dealing, as an instrument of this description, “restricts the carrying out of that development” within the meaning of that phrase in cl 1.9A of WLEP. The reference to “that development” in the phrase includes development to be carried out in accordance with a consent granted under the EPA Act. In the present case, this means development carried out in accordance with the consent granted by the Council. This consent authorises the erection of a dwelling house above the horizontal plane specified in the Dealing.

87. The Dealing creating the easement and the covenant clearly restricts the carrying out of that development. The right acquired by the grant of the easement is to “the uninterrupted passage, access, transmission, enjoyment of light and air above and across the horizontal plane abovementioned to the dominant land”. The erection of the dwelling house above that horizontal plane will interrupt, at least to some degree, the passage, access, transmission and enjoyment of light and air to the dominant land. The dominant owner’s enforcement of this right to light and air would restrict the carrying out of the development in accordance with the consent. In this way, the Dealing restricts the carrying out of that development.

88. The right acquired by agreement is to “an uninterrupted prospect over and across the said horizontal plane from the dominant land”. The erection of the dwelling house above that horizontal plane would interrupt, at least to some degree, the prospect over and across the servient land from the dominant land.

89. Carey-Evans’ reliance on the decision in Cracknell and Lonergan Pty Limited v Council of the City of Sydney is misplaced. The language of the clause suspending the regulatory instruments there considered was different to the language of cl 1.9A of WLEP. There, the clause provided that “the operation of any covenant, agreement or similar instrument that purports to impose restrictions on the carrying out of development on the land… shall not apply to any such development”. Here, clause 1.9A of WLEP provides that “any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply…”. The language of the clause in Cracknell and Lonergan Pty Limited v Council of the City of Sydney that the regulatory instrument “purports to impose restrictions on the carrying out of development” led me to hold that the restriction on development must be expressly stated or necessarily implied in the covenant, agreement or similar instrument. That was not the case there. The instrument created a right of way, a positive easement, and did not expressly or by necessary implication purport to impose restrictions on the carrying out of development on land burdened by the right of way.

90. In the present case, not only is the language of cl 1.9A of WLEP different but the easement and covenant created by the relevant instrument, the Dealing, are different. The easement for light and air is a negative easement, giving the dominant owner the right to stop the servient owner from building on the servient land above the specified horizontal plane and interrupting the flow of light and air, and the covenant is restrictive of the user of the servient land, also giving the dominant owner the right to stop the servient owner building above the specified horizontal plane and interrupting the prospect from the dominant land. In terms, the Dealing creating the easement and the covenant does restrict the carrying out of development on the servient land in these ways.

91. The Dealing therefore answers the description of being an instrument of the kind specified in cl 1.9A of WLEP that “restricts the carrying out of that development”.

92. For these reasons, cl 1.9A of WLEP operates so as to cause the Dealing creating the easement and the covenant to “not apply to the extent necessary” to serve the purpose of enabling development on the servient land of Wu’s property to be carried out in accordance with the consent granted by the Council. A declaration should be made to this effect, as sought in Wu’s cross summons.

The interference with the easement

93. This answer to the first question makes answering the second question unnecessary. The second question is whether the carrying out of the development in accordance with the consent, which would involve erecting the new dwelling house above the horizontal plane specified in the Dealing, would substantially interfere with the claimed easements for light, air and prospect. Answering that question is unnecessary because cl 1.9A of WLEP operates to cause the Dealing creating the claimed easements not to not apply to the extent necessary to serve the purpose of enabling enable the development to be carried out in accordance with the consent.

93. Nevertheless, as the parties have argued the question fully, and lest I be incorrect in my answer to the first question, I will answer the second question.

94. The extent to which the dwelling house will exceed the specified horizontal plane was agreed to be 1.778 metres. The question is whether this exceedance will substantially interfere with the rights of light, air and prospect afforded by the Dealing.

95. Carey-Evans did not adduce evidence establishing that the new dwelling house would interfere with light or air. Wu led evidence from Wu’s architect, Mr Stojanovic, that the roof of the new dwelling house, which will exceed the specified horizontal plane, will not cause any additional overshadowing of any part of the lands benefited, including Carey-Evans’ property, at any time of the year.

96. The right to an uninterrupted passage etc of light is, of course, not limited to a right not to be subjected to any additional overshadowing. But it is an important aspect of the right to light. The fact that the new dwelling house’s exceedance of the specified horizontal plane would not cause any additional overshadowing is important in establishing that the exceedance will not cause any interference, let alone any substantial interference, with the right to light.

97. As to light other than sunlight, as I have noted, Carey-Evans adduced no evidence to establish that the new dwelling house’s exceedance of the specified horizontal plane would interfere in any way with the passage of light, other than sunlight, to the dominant land of Carey-Evans’ property.

98. In Allen v Greenwood [1980] Ch 119 at 130, Goff LJ observed that “the measure of the light to which right is acquired, of which it has to be seen whether there is such diminution as to cause a nuisance, is the light required for the beneficial use of the building for any ordinary purpose for which it is adapted”: see also Colls v Home and Colonial Stores Ltd [1904] AC 179 and Sir Paul Morgan and Jonathan Gaunt QC, Gale on Easements (21st ed, 2020, Sweet & Maxwell) at [7.05], [7.13], [7.17].

99. In the present case, Carey-Evans has not established either this basal measure of the light required for the beneficial use of the house on Carey-Evans’ property, or of the property generally, for any ordinary purpose for which the house or land is adapted, or any diminution of this measure of light, so as to be able to establish that the erection of the new dwelling house will cause a nuisance.

100. In this circumstance, Carey-Evans has not established that erection of the new dwelling house will cause any interference, let alone a substantial interference, with the right to light.

101. In relation to air, no party adduced evidence to establish that the new dwelling house’s exceedance of the specified horizontal plane would interfere with the uninterrupted passage of air to the dominant land. There was discussion in argument at the hearing as to whether the new dwelling house could potentially affect breezes, whether from the Harbour or elsewhere, to the dominant land, but there was no evidence establishing one way or another whether the new dwelling house would in fact have such an effect. In this circumstance, Carey-Evans has not established that the new dwelling house will cause any interference, let alone a substantial interference, with the right to air, and hence cause a nuisance.

102. In relation to prospect, Carey-Evans’ architect, Mr Aspinall, prepared photomontages showing the impact of the new dwelling house on the prospect from various locations on Carey-Evans’ property. These photomontages showed the impact of the whole of the new dwelling house and not just that part of the roof of the new dwelling house that would exceed the specified horizontal plane. The comparison Mr Aspinall made was not between the new dwelling house erected in accordance with the consent and a dwelling house erected up to but not exceeding the specified horizontal plane, but instead between the new dwelling house and the existing dwelling house. The latter comparison is not relevant as, even if the existing dwelling house were to be below the specified horizontal plane, its location on the servient land is different to where a dwelling house could be located on the servient land and still comply with the specified horizontal plane.

103. For example, a new dwelling house could be erected closer to the common boundary between the servient land and the dominant land of Carey-Evans’ property, yet still be below the specified horizontal plane. This would change the location of the leading edge of the roof, which determines the impact on prospect from Carey-Evans’ property to Sydney Harbour compared to the leading edge of the roof of the existing dwelling house. Such a dwelling house, which would be compliant with the specified horizontal plane in the Dealing, would have a greater impact upon the prospect from Carey-Evans’ property than the impact that the existing dwelling house has. This impact on prospect from Carey-Evans’ property of a complying dwelling house is the relevant referent in order to ascertain any increment in impact on prospect from Carey-Evans’ property that might be caused by the new dwelling house exceeding the specified horizontal plane.

104. Mr Aspinall’s evidence did not allow for such an increment in impact on prospect (if any) to be ascertained. Mr Aspinall’s photographs and photomontages showing the prospect from Carey-Evans’ property with the existing dwelling house and with the new dwelling house was not a relevant comparison and likely showed a greater impact than would be the case if the comparison had been between a dwelling house that did not exceed the specified horizontal plane and the new dwelling house that did exceed the specified horizontal plane.

105. Yet, even on Mr Aspinall’s comparison of the impact on prospect of the existing dwelling house and the new dwelling house, the increment in impact is not significant. Mr Aspinall’s comparison showed that:

1. from the ground floor dining room of Carey-Evans’ house, the Harbour/land interface of Shark Island and partial water views to the east of Shark Island would be concealed, although the existing view encompassing the western edge of Rose Bay around to Woollahra Point, with the iconic views of Sydney Opera House and the Harbour Bridge in the distance, would not otherwise be interrupted (pp 9 and 11 of Aspinall’s expert report);

2. from the ground floor living room of Carey-Evans’ house, the southern tip of the Harbour/land interface of Shark Island, partial water views to the east of Shark Island and a small portion of the foreshore of the western edge of Rose Bay would be concealed, although the existing view encompassing the western edge of Rose Bay, including the Royal Motor Yacht Club marina, around to Woollahra Point, with the iconic views of Sydney Opera House and the Harbour Bridge in the distance, would not otherwise be interrupted (pp 13 and 15 of Aspinall’s expert report);

3. from the ground floor sitting room of Carey-Evans’ house, the southern tip of the harbour/land interface of Shark Island and partial water views to the East of Shark Island would be concealed, although the existing view encompassing the western edge of Rose Bay around to Woollahra Point, with the iconic views of Sydney Opera House and the Harbour Bridge in the distance, would not otherwise be interrupted (pp 17 and 19 of Aspinall’s expert report); and

4. from the rear garden of Carey-Evans’ property, almost the entirety of Shark Island and to the east of Bradley’s Head would be obscured, although the existing view encompassing the western edge of Rose Bay around to Woollahra Point, with the iconic views of Sydney Opera House and the Harbour Bridge in the distance, would not otherwise be interrupted (pp 21 of Aspinall’s expert report).

107. This increment in impact on the prospect from Carey-Evans’ property between the existing dwelling house and the new dwelling house does amount to an interference, but in the context of the nature and extent of the prospect available from either the existing dwelling house or the new dwelling house, the increment in impact does not amount to a substantial interference with the right for prospect. In this circumstance, the new dwelling house does not cause a nuisance.

108. In summary, the erection of the new dwelling house above the specified horizontal plane has not been established to interfere with the right to light or air or to interfere substantially with the right for prospect, so that it will not cause a nuisance. Carey-Evans’ summons should be dismissed.

Orders and costs

109. Wu has been successful in his cross-summons in establishing that cl 1.9A of WLEP operates to cause the Dealing creating the easement and covenant to not apply to the extent necessary to serve the purpose of enabling the development of the erection of the new dwelling house to be carried out on Wu’s property in accordance with the consent granted by the Council. A declaration should be made to this effect.

110. Carey-Evans has been unsuccessful in establishing that the carrying out of that development of the erection of the new dwelling house would cause a nuisance. Carey-Evans’ summons should be dismissed.

111. Costs ordinarily follow the event. Carey-Evans, as the unsuccessful party, should pay the costs of both the summons and the cross-summons in the proceedings of Wu, who is the successful party. There should be no order as to costs in relation to the second cross-respondent who filed a submitting appearance.

112. The Court:

1. Declares that, by operation of cl 1.9A of Woollahra Local Environmental Plan 2014 (NSW), the instrument recorded in Dealing B823062 does not apply to the extent necessary to serve the purpose of enabling development to be carried out on Lot 1 in DP 110554, known as 31 Vaucluse Road, Vaucluse NSW, in accordance with the development consent to DA 394/2020 granted by Woollahra Municipal Council on 23 February 2021 and modified on 6 September 2021.

2. Dismisses the summons filed in the Supreme Court of NSW on 17 January 2021 and transferred to the Land and Environment Court of NSW on 7 April 2022.

3. Orders William Lloyd Carey-Evans and Jennifer Ann Quist as Executors of the Estate of Robert Rufus Carey-Evans to pay the costs of Wenhao Wu of both the summons and cross-summons in the proceedings.

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Amendments

06 December 2022 - Clarifying amendment at [59] to insert "by reason of" after "that" and before "cl 1.9A of WLEP", and "the Dealing" after "WLEP" and before "does not apply".

Decision last updated: 06 December 2022