Reported Decision : 107 LGERA 73 New South Wales Supreme Court CITATION : MARSHALL & ANOR v. THE COUNCIL OF THE CITY OF WOLLONGONG [2000] NSWSC 137 revised - 19/04/2000 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 4931/99 HEARING DATE(S) : 14/02/2000 JUDGMENT DATE : 10 March 2000 PARTIES : Bruce Alan Marshall and Gail Maxine Marshall (Plaintiff) The Council of the City of Wollongong (Defendant) JUDGMENT OF : Bryson J at 1 COUNSEL : L. Gyles for Plaintiff J. Peedom (s) for Defendant SOLICITORS : Sorensen & Brown for Plaintiff Peedom Brodie & Ward for Defendant CATCHWORDS : EASEMENTS and PRESCRIPTION - right of way - grant of ROW by Court under s.88K of Conveyancing Act - LOCAL GOVERNMENT - - Community Land - grant of ROW - where road access existed on the DP but was not practicable and access had been obtained for many years over land now owned by Council but not capable of any active use, the Court ordered a ROW - consideration of interaction of s.88K with limitations on powers of Council to deal with Community Land. Conveyancing Act 1919 s.88K LEGISLATION CITED : Local Government Act 1993 ss. 36F, 45, 46, 47 Real Property Act 1900 s.42 DECISION : See para.29 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J. FRIDAY 10 MARCH 2000 4931/99 BRUCE ALAN MARSHALL AND GAIL MAXINE MARSHALL v. THE COUNCIL OF THE CITY OF WOLLONGONG JUDGMENT 1 HIS HONOUR: The plaintiffs apply under s.88K of the Conveyancing Act 1919 for an order imposing an easement for a right of access over land owned by the defendant, Wollongong City Council. 2 The plaintiffs' land is a rectangular housing lot 120 feet deep with a western frontage of 50 feet to Wilson Street Scarborough, containing 22 perches, and is Lot A in Deposited Plan 368999. The house is an old galvanised iron two-bedroom cottage, now with brick veneering, and was in existence prior to 1949. The plaintiffs wish to demolish the cottage and build a modern three or four-bedroom two-storey home. The right of access claimed is shown by a plan of survey which Mr Dennis Smith completed on 21 December 1999, Annexure A to his affidavit of 4 February 2000. 3 Lot A was formed by DP 368999, which is a plan of a survey completed on 1 August 1949. The cottage was shown in the plan. Lot A is surrounded on all sides other than the frontage to Wilson Street by Lot B, which contains 2 acres 2 roods 12.5 perches. Lot B passed into the Council's ownership in 1975. 4 Wilson Street appears on Deposited Plan 2693, a nineteenth century survey of South Clifton township, and is now a dedicated road owned by the Council. A note on DP 2693 shows that the land was already under the Torrens System by 1884. DP 368999 shows that Wilson Street was dedicated as public road in or before 1949. Wilson Street runs generally south from its intersection with Lawrence Hargrave Drive. After 50 or 60 metres of formed surface the dedicated road falls away steeply to the south. Only a small part of Wilson Street has ever had a formed surface, and the part which is the frontage of Lot A does not. This part is not accessible to vehicles because of the gradient at which it falls, and it could only be traversed on foot with difficulty. According to ordinary standards for residential land there is no practicable access to Lot A from its street frontage. Access could only be created by extensive construction works which it is not possible that the Council would ever carry out. 5 The only practical means of access to Lot A, either on foot or with vehicles, is by a track which diverges onto Lot B, at first generally south-east from the end of the formed surface of Wilson Street and then in an arc generally south-west, intersecting with Lot A at its north-western corner where the track rejoins Wilson Street. On the track there is a vehicular driveway formed by two concrete strips. By following an arc the track achieves grades which, although quite steep, are considerably less steep than the grade of Wilson Street generally in a direct line southwards. The maximum grade on the arc is calculated by Mr Smith at 25 per cent, whereas he has calculated the grade on the direct line at 36 per cent. 6 The plaintiffs claim an order imposing a right of way appurtenant to Lot A over the part of Lot B which is used for access in this way. As there is no other means of access which could ever have been practicable it is likely that this track has been used for access to Lot A for a very long time, at least for the 50 or more years the cottage has existed. There is no indication in the evidence that its use has ever been resisted by the Council or any earlier owner of Lot B. Aerial photographs taken in 1965, 1977, 1986 and 1993 have been inspected by Mr Lucich, Council's statutory property officer. The vehicular track is clearly visible in the photographs taken in 1986 and 1993 but not in the earlier photographs. Notwithstanding this the probabilities are that some such access track was used long before 1986, although the time when the concrete strips were constructed is not known. Council's records have been searched and do not show any record relating to the construction of the vehicular track or approval of its construction. 7 Lot B is zoned 6(a) "Public Recreation" under the City of Wollongong Local Environment Plan 1990. By virtue of clause 37 of the LEP it is classified as Community Land under the Local Government Act 1993. The land is affected by Wollongong Technical Policy 9/47 Community Land Management Plan which was made on 24 August 1994; this is a Plan of Management for the purposes of the Local Government Act 1993. This plan categorises Lot B as Sportsground. 8 The dealings which a Council has power to make in relation to Community Land are limited by s.45 of the Local Government Act. Council's powers are much narrower than its powers with respect to Operational Land. Sections 45 and 46 provide: "45.(1) A council has no power to sell, exchange or otherwise dispose of community land. (2) A council may grant a lease or licence of community land but only in accordance with this Division. (3) A council may grant any other estate in community land to the extent permitted by this Division or under the provisions of another Act. … 46.(1) A lease, licence or other estate in respect of community land: (a) may be granted for the provision of public utilities and works associated with or ancillary to public utilities, or (b) may be granted in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate: (i) for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or (ii) for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or (iii) for a short term, casual purpose prescribed by the regulations, or (iv) for a residential purpose in relation to housing owned by the council, or (v) for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider that is situated on the community land, but may not otherwise be granted. (2) Despite subsection (1), a lease, or licence or other estate in respect of community land may be granted for a purpose mentioned in subsection (1)(b) only if the purpose for which it is granted is consistent with the core objectives, as prescribed in this Part, of its categorisation. … (4) The following purposes are prescribed for the purposes of sub-section (1)(b)(i): (a) the provision of goods, services and facilities, and the carrying out of activities, appropriate to the current and future needs within the local community and of the wider public in relation to any of the following: (i) public recreation, (ii) the physical, cultural, social and intellectual welfare or development of persons, (b) the provision of public roads: (5) Purposes prescribed by subsection (4) in relation to the matters mentioned in subsection (4)(a)(ii) include, but are not limited to, maternity welfare centres, infant welfare centres, kindergartens, nurseries, child care centres, family day-care centres, surf life saving clubs, restaurants or refreshment kiosks. (6) A plan of management is void to the extent that it purports to authorise the grant of a lease, licence or other estate in contravention of this section. 9 In relation to Community Land categorised as a sportsground the Local Government Act provides: "36F. The core objectives for management of community land categorised as a sportsground are: (a) to encourage, promote and facilitate recreational pursuits in the community involving organised and informal sporting activities and games, and (b) to ensure that such activities are managed having regard to any adverse impact on nearby residences. 10 In relation to estates in Community Land s.47 provides: "(1) If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must: (a) give public notice of the proposal, and (b) exhibit notice of the proposal on the land to which the proposal relates, and (c) give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and (d) give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person's enjoyment of community land. (2) A notice of the proposal must include: · information sufficient to identify the community land concerned · the purpose for which the land will be used under the proposed lease, licence or other estate · the term of the proposed lease, licence or other estate (including particulars of any options for renewal) · the name of the person to whom it is proposed to grant the lease, licence or other estate (if known) · a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice. (3) Any person may make a submission in writing to the council during the period specified for the purpose in the notice. (4) Before granting the lease, licence or other estate, the council must consider all submissions duly made to it. (5) If a person makes a submission by way of objection to the proposal, the council must not grant the lease, licence or other estate except with the Minister's consent. (6) If the council applies for the Minister's consent, it must forward with its application: · a copy of the plan of management for the land · details of all objections received and a statement setting out, for each objection, the council's decision and the reasons for its decision · a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate · a copy of the newspaper notice of the proposal · a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate · a statement setting out the manner in which and the extent to which the public interest would, in the council's opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council's opinion, be adversely affected by the granting of the proposed lease, licence or other estate. (7) On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies. (8) After considering the application and any report of the Director of Planning, the Minister, if satisfied that: (a) subsections (1), (2) and (6) have been complied with, and (b) such consent would not contravene section 46, and (c) in all the circumstances, it is desirable to grant consent, may consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies. (8A) On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8). (9) The Minister's consent is conclusive evidence that the council has complied with subsections (1), (2) and (6). (10) For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of Community land, according to which the council: (a) would suffer a disadvantage or penalty if the same or a similar lease, licence or estate were not to be granted, for a further term, after the expiry of the current lease, licence or other estate, or (b) would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted, is taken to confer an option for renewal for a term equal to the further term. 11 The grant of the right of way which the plaintiffs seek is not within any of the purposes for which an estate in respect of Community land can be granted having regard to s.46. The plaintiffs do not seek a lease or licence, but a permanent right of access. The Plan of Management of 24 August 1994 permits the creation of easements over Community land generally. In my opinion this general authorisation does not fall within s.46(1)(b). There is no provision of the Plan of Management which, in detail, provides for the grant of an easement over Lot B for access to Lot A, and the Council has taken no steps to initiate a Plan of Management which would have that effect. 12 It is possible for Community Land to be reclassified to Operational Land, but Council has no proposal to make any such reclassification. Mr Lucich, as statutory property officer would neither support nor recommend reclassification of the land as Operational Land. It would not be a simple matter for Council to reclassify Community Land if it wished to do so, as the process is regulated and involves thorough public consultation. 13 Council does not support the plaintiffs' application. It would be beyond Council's power to grant the right of way unless a Plan of Management providing for the right of way were brought into existence, and it is not within Council's power to create a right of way indirectly by consenting to an order of the Court which would have the effect of granting a right of way which is beyond power. 14 Council has no proposal for future development of Lot B. Lot B is affected by a steep downwards grade generally north to south and also a steep cross fall generally east towards the ocean. Development on Lot B is further complicated by problems associated with stability and potential landslip, and by its proximity to the coastal zone. The statutory property officer has expressed in evidence the view that because of the steepness of the terrain, the density of bush, the environmental sensitivity of the area and safety issues it would not be practical to develop the land for any form of use by the general public. This is a reasonable view having regard to the evidence relating to the land, including photographs illustrating the terrain. I accept this view. Apart from land near Wilson Street including the strip used for access, Lot B is characterised by steep grades and dense bushland, falling away towards the ocean. It is not capable of use by the public as a sportsground, or in any other way except in the most passive sense. 15 The grant of the easement will not prevent or impact adversely upon any activity of any member of the public or the public generally, which has taken place or is likely to, or on any likely activity of the Council. The grant of the right of way will continue the status quo of many years. Low intensity use of all of Lot B, in so far as there is any, can continue unimpeded. 16 Section 88K of the Conveyancing Act 1919 includes these provisions: "88K. (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. 17 In terms of subs.(1) I find that it is reasonably necessary for the effective use of Lot A that Lot A have the benefit of the easement. I so find because there is no other practicable access for vehicles, and access on foot by way of Wilson Street, in terms of day-to-day access to land used for a dwelling, is so highly inconvenient that it should be found that it is impracticable. It would be uneconomic for the plaintiffs or the Council to construct works which would open Wilson Street to vehicular traffic at its frontage to Lot A, and in reality there is no possibility that any such works will ever be constructed. It is highly likely that the site of the proposed easement, or some access way in a very similar position, has been used for access to Lot A and the house for as long as the house has existed. 18 Public interest questions relating to the benefited land arise on the exercise of the discretion under subs.(1); the public interest consideration referred to in subs.(2)(a) relates to the burdened land. Subsection (2)(a) directs attention to two questions: what is the public interest relating to the use of the Council's land?; and will use of the land in accordance with the easement be inconsistent with the public interest? The terms of subs.(2)(a) require consideration of the public interest in relation to the use of the part of Lot B which is to be subject to the proposed easement; it is to be considered whether the use of the arc of land which is the site of the proposed easement for access to Lot A will inconsistent with the public interest. The public interest, when applied to the facts, is the public interest in fulfilling the categorisation of the land as sportsground given to it by the Plan of Management. 19 Although Lot B is Community land under the Local Government Act and is categorised as "Sportsground" in the Plan of Management, no active use is made of it for the purpose of sports and there is no practical prospect that it will ever be developed for a sportsground. The land serves the community by being kept as bushland, a zone of undeveloped bush in the area between Lawrence Hargrave Drive and the sea. It is likely to be used only for occasional walkers to ramble over. If the right of way is granted, the access way will be open for use by Council officers and members of the public, as well as by persons who need access to the dwelling on Lot A in the same way as some such access has probably been open for a very long time, in the order of 50 years or longer. In terms of subs.(2)(a) I am of the view that use of Lot B in accordance with the easement will not be inconsistent with the public interest. 20 Other public interest considerations not specifically related to Lot B strongly support the grant of an easement, as without one the continued use and redevelopment of the plaintiff's land as a dwelling house, for which it has long been used, would be difficult to the point of being impracticable, and the value of Lot A and the dwelling would be neutralised. No public interest would be served by neutralising the worth of Lot A or by substantially impeding its use or development. 21 The question of compensation, referred to in subs.88K(2)(b), is dealt with by Mr Valuer J.Y. Wilson of the State Valuation Office in a valuation produced in evidence by the Council. In a reasoned valuation Mr Wilson gives the view that the creation of the right of way would cause loss of 80 per cent of the value of the land directly affected by the right of way, which is 150 square metres in area, and loss of 20 per cent of the value of the severed area within the arc between the affected area and Wilson Street, which is 250 square metres in area. There are no truly comparable market transactions, but after a review of what Mr Wilson regarded as relevant sales evidence it was his opinion that the land affected by the right of way has a value of about $80 per square metre as freehold. Mr Wilson's valuation was not disputed. In the circumstances I should be guided by his evidence and by his opinion that the total loss of value which would be caused to Lot B is $13,600. I find that that sum is a fair compensation. 22 In terms of subs.(2)(c) the limitations on the Council's powers have the effect, having regard to the terms of the plan of management, that the plaintiffs cannot obtain a right of way by agreement. The plaintiffs have previously made a request to the Council for a right of way substantially the same as that now sought. The Council canvassed local opinion and obtained no adverse expression of opinion. Council also canvassed the public authorities who are affected, or may appear to be, and there was no adverse opinion apart from the response from the Department of Local Government, with which I will deal. The request was declined by Council on 9 July 1999 on the grounds that Council is prohibited from granting a right of way over Council land classified as Community land by the provisions of the Local Government Act as amended in 1998; this was correct. In these circumstances, I find that all reasonable attempts have been made by the plaintiffs to obtain the easement but they have been unsuccessful. 23 In the course of Council's consideration of the plaintiff's request for a right of way the Director General of the Department of Local Government opposed the grant. The Director General pointed to the narrow limits of the Council's powers under s.46 of the Local Government Act and to the limited time and purpose for which access may be allowed under the Local Government (General) Regulation 1999. He also pointed to the limited scope of the savings and transitional provisions which relate to the amendment of ss.45 and 46. The tenor of these observations was that what the plaintiffs asked Council to do was beyond the Council's powers, unless the land was reclassified to Operational Land; this was correct, and the Council has followed this view. The Director General also observed that in an application under s.88K it would be open for consideration whether amendment of ss.45 and 46 of the Local Government Act to the current form took precedence over s.88K of the Conveyancing Act. The public interest question under s.88K was also raised. 24 Sections 45 and 46 operate by prescribing and limiting the powers of Councils in dealing with Community land; they do not limit or deal with other means by which easements may come into existence, and they do not limit or affect the Court's powers under s.88K by implication. The powers of the Court are not usually limited or altered by legislative implication, and in any event, there is no basis in the scheme of these provisions for that implication. 25 To say that there is no inconsistency between ss.45 and 46 of the Local Government Act and the provisions of s.88K is not to say that there is no interaction between them. In relation to Community land the provisions of public law including the Local Government Act and the relevant plan of management should be considered when the court considers the public interest under s.88K. The limits on what the Council can do within its powers have a bearing on considering the issue in subs.2(c) relating to reasonable attempts to obtain the easement. The fact that the land is Community land and is protected by limiting the Council to much narrower powers than landowners generally have is relevant for the exercise of the general discretion conferred by subs.(1), which remains to be exercised after the court has been satisfied of each of the matters in subs.(2). 26 It should not be thought that s.88K provides ready means for creating easements over public parks or other Community land. The facts of each case have to be addressed in detail and it would not often happen that anything like the circumstances of the present case would recur. It would be very rare that Community land used in any active way could be subjected to an easement without inconsistency with the public interest in achieving the purposes for which the Community land was held. It would be rare for Community land to have been used for access for so long. There is no basis to fear that s.88K makes public parks readily available for excising small pieces to create access to neighbouring developments. 27 Although it is likely that the track over Lot B has been used for access to the plaintiffs' property for many years, the plaintiffs did not attempt to show that a right of way already exists. In principle, a right of way can come into existence by prescription after long usage; however for land under the Torrens System there are formidable difficulties. The Council as registered proprietor has the protection of s.42(1) of the Real Property Act against interests which are not recorded. There is an exception in subs.42(1)(a1) in the case of the omission of an easement subsisting immediately before the land was brought under the Real Property Act; however, no attempt was made to show when the subject lands were brought under the Real Property Act, or to establish that the easement existed earlier; it would seem to be beyond the realm of possibility to attempt to prove these matters, as the plaintiffs have not owned the lot for many years and are not in a position to prove how access was gained at times in the distant past. 28 If the land had been held under the general law or Old System, in which s.42 does not apply, it seems possible that an easement such as they now claim might already have come into existence by prescription. There may also have been room for an argument that Lot A was entitled to an easement of necessity, as the access actually available was impracticable. I regard it as a relevant consideration, when acting under s.88K, that the plaintiffs' application is made in circumstances which, subject to proof, could give rise to an easement by prescription under the Old System. The situation has arisen over a long period of time, and this is not simply a case where the plaintiffs are seeking the Court's aid to conscript another person's resources to meet a difficulty which has arisen recently, or to the creation of which the plaintiffs contributed. Much valuable land in New South Wales is held subject to the Old System, and there is no element of enormity about the plaintiff's claim. However this while a relevant consideration cannot be a prominent one. 29 For these reasons I have decided to grant the plaintiffs' claim. Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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