Land and Environment Court of New South Wales CITATION: Sutherland Shire Council v Owners Corporation of Strata Plan 60215 and Anor [1999] NSWLEC 279 PARTIES APPLICANT Sutherland Shire Council RESPONDENT Owners Corporation of Strata Plan 60215 and Anor NUMBER: 40173 of 1999 CORAM: Cowdroy J KEY ISSUES: Development :- Council approving development subject to conditions including grant of carriageway in favour of adjacent land - council issuing linen plan prior to satisfaction of condition requiring grant of carriageway - registration of strata plan - respondent objecting to grant of right of way - order implementing carriageway as required by development consent. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Real Property Act 1900 s 42 DATES OF HEARING: 12/09/1999; 12/14/1999; 12/15/1999 DATE OF JUDGMENT DELIVERY: 12/22/1999 APPLICANT Mr S Griffiths (Solicitor) SOLICITORS Pike Pike & Fenwick RESPONDENT LEGAL REPRESENTATIVES: Mr M Bradford (Barrister) SOLICITORS Alex Ilkin & Co SECOND RESPONDENT Mr D Parry (Barrister) SOLICITORS Paul C Fabian & Co JUDGMENT: IN THE LAND AND MATTER No. 40173 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 22/12/99 Sutherland Shire Council Applicant v Owners Corporation of Strata Plan 60215 First Respondent Ernest Anton Hulak Second Respondent JUDGMENT Background 1. In these proceedings Sutherland Shire Council ("the council") seeks a declaration that development consent no 97/0888 ("the consent") granted on 3 September 1997 has not been satisfied in respect of condition no 4 thereof. Condition no 4 provided:- A right of carriageway in favour of premises number 369 Kingsway, Caringbah shall be created to the satisfaction of Council in accordance with the submitted plans prior to the release of the strata plan. 2. The council also seeks an order that the Owners Corporation of Strata Plan no 60215 ("the first respondent") create such right of way. 3. The consent was granted to Prudent Security Investments Pty Ltd ("Prudent") the first respondent's predecessor in title for the construction of a three storey residential flat building with basement parking in respect of the land known as 153 and 153A Willarong Road ("the land"). When considering the development application council was concerned with the intensification of residential development immediately behind the land upon No 369 The Kingsway, Caringbah ("369"). Such lot has a frontage to The Kingsway. Council wished to prohibit access to that roadway in accordance with its Development Control Plan and to ensure that access was gained from Willarong Road. Intensification of use from single cottage to home unit development upon 369 and upon adjoining sites known as No 371 The Kingsway ("371") and No 373 The Kingsway ("373") was foreseen by council as inevitable. 4. For these reasons council imposed condition no 4 to enable 369 to secure access to Willarong Road. Events subsequent to the grant of consent 5. Messrs Willis and Bowring, solicitors for Prudent proceeded towards fulfilment of condition no 4 of development consent no 97/0888 by preparing a deed of agreement between itself and the registered proprietor of 369, namely Ernest Anton Hulak and Natalia Hulak ("the Hulaks"). The Hulaks executed the deed. A plan prepared by surveyor Harrison depicted the site of the right of way 5 m wide at the side of the land and a description thereof. An instrument entitled 'Transfer Granting Easement' to create the right of way was prepared for registration pursuant to the provisions of the Real Property Act 1900 ("the RP Act"). It was executed by Prudent but apparently due to an oversight it was not signed by the Hulaks. Accordingly when it was lodged for registration at the Land Titles Office on or about 30 April 1999 it was rejected and thereafter returned to Willis and Bowring with a requisition pointing out the omission. Another instrument was prepared and it was executed by the Hulaks and returned to Willis and Bowring from the Hulak's solicitors by letter of 11 June 1999. On the same day a caveat was lodged by the Hulak's to protect their interest in the right of way. 6. It was the council's practice to ensure that its requirements for any development were satisfied before the release of a linen plan which permitted the strata subdivision to proceed. In this case such practice was not observed. As a consequence Prudent obtained the linen plan before condition no 4 was fulfilled with the result that it was able to finalise the registration of strata plan no 60215 over the land and to commence the sale of the lots in such plan. On 4 May 1999 strata plan no 60215 was registered duly recording the notation of the right of carriage way. 7. On 7 June 1999 pursuant to development consent no 98/0909 the Hulaks commenced the redevelopment of the site which formerly comprised the cottages 369, 371 and 373. The evidence establishes that the Hulaks had sought to obtain a right of way over the land which benefited not only 369 but also 371 and 373. The consideration required by Prudent for the right of way over its land to benefit 369 was the sum of $1. However when the Hulaks sought to negotiate an expansion of the right of way to benefit 371 and 373, Prudent sought a payment of $25,000 in respect of each property. Such request was declined and the Hulaks determined not to seek any expansion of the terms of the right of way to benefit 371 and 373. Current dispute 8. The secretary of the first respondent, Mr Ross Stewart Morgan has testified that at the date that he and his wife entered into a contract to buy their lot in strata plan no 60215 original cottages remained on 369 to 373 The Kingsway. Such cottages were demolished within a week of Mr Morgan and his wife commencing to occupy their unit. At the first annual general meeting of the first respondent which was held on 22 June 1999 the owners of lots in the first respondent resolved to oppose the grant of the right of way in favour of the Hulaks. 9. The first respondent is concerned with the impact of the proposed right of way on the land. The evidence establishes that its owners were aware of the existence of the right of way at least in so far as it was required to serve 369. Mr Morgan's solicitors were furnished with a copy of the agreement executed by Prudent which created the right of way in favour of 369 before his purchase was completed. Further the existence of the right of way was noted on strata plan no 60215 from the day of its registration on 4 May 1999. Accordingly there can be no defence that the purchasers of lots in the said plan were not placed on notice of its existence. Rather, the concern expressed is that there will be an attempt to intensify the use of the right of way to benefit not only 369 but also 371 and 373. 10. The council has imposed a condition to development consent no 98/0909 ("the Hulak development") to require access from that site namely, 369, 371 and 373 be to Willarong Road and not from its only other road access namely The Kingsway. Whilst not stated in the conditions, council has assumed that the right of way over the land in favour of 369 will also be available to serve the development which incorporates 371 and 373. A notation in the council's records suggests ' it was council's error in imposing the condition' . 11. In summary, Mr Morgan has said that it was never made known to him that the right of way would benefit the development of the size which is now under construction of the combined land namely 369, 371 and 373 The Kingsway. The first respondent says that in the circumstances the Court would decline to make the declaration sought since it was never consulted by council concerning the use of the right of way to serve 371 and 373 and that to grant the relief sought by council would operate unfairly to the detriment of the first respondent. The first respondent also submits that the effect of the relief sought would derogate from its title which is guaranteed by s 42 of the RP Act. Finally, the first respondent has adduced evidence to show that numerous other premises exist having vehicular access to The Kingsway in apparent breach of the requirements of the Development Control Plan. The Findings 11. The right of way, 5 m wide was recorded on strata plan no 60215. Accordingly the purchasers who acquired lots in such strata plan are to be deemed to have had knowledge of its existence. 12. The obligation upon the first respondent is to provide a right of way to serve 369 The Kingsway. Since such requirement was a condition of the development of the land owned by strata plan no 60215 such condition is required at law to be fulfilled. 13. As to the extent of user, neither the first respondent nor its predecessor Prudent was a party to any arrangement to provide access via the right of way to 371 and 373. When such offer was made to the Hulaks by Prudent, it was declined. 14. Whilst council, as part of its approval for the Hulak development may have required access for such development to be via Willarong Road, no consent was ever given by the first respondent nor its predecessor for the right of way for 371 and 373. 15. Any claim by the Hulaks for entitlement to use the right of way over the land of the first respondent for access to its development which incorporates 371 and 373 is not for determination in these proceedings and this Court makes no decision in respect thereof. 16. None of the issues raised by way of defence are sufficient for the Court to exercise its discretion in the grant of relief. The indefeasibility of title claim does not arise in these proceedings. Secondly, the traffic issues are matters raised by way of equitable defence and are insufficient to detract from the legal obligations of the first respondent. The numerous factual issues raised by such evidence would require a prolonged investigation and even if other developments may not comply with council's requirements, as a matter of discretion such finding would not detract from the unequivocal legal obligation imposed by condition no 4 of the consent. 17. In granting the relief claimed no implication arises that the right of way is to benefit any lands other than that stated in the condition namely, 369. This Court is simply enforcing the condition of the consent. Orders 18. The Court therefore makes the following declaration and orders:- 1. A declaration that condition no 4 of development consent no 97/0888 granted on 3 September 1997 in relation to premises known as 153-153A Willarong Road, Caringbah has not been fulfilled. 2. An order that the first respondent create a right of carriageway in favour of premises no 369 The Kingsway, Caringbah within a period of sixty (60) days as shown on strata plan no 60215. 3. The question of costs is stood over for argument. 4. The exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.