Debbula Pty Ltd v The Owners - Strata Plan 6964 [2003] NSWSC 189

Reported Decision : (2004) NSW ConvR 56-073

New South Wales Supreme Court

CITATION : Debbula Pty Ltd v The Owners - Strata Plan 6964 [2003] NSWSC 189 HEARING DATE(S) : 16/12/2002, 17/12/2002 JUDGMENT DATE : 24 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 52

CATCHWORDS : Real Property - Easements. Application under section 88K of the Conveyancing Act 1919 for a drainage easement. No Council approval for development to be serviced by the proposed easement. Whether easement was necessary. Held it was not. Discussion of the need for particularity in respect of the proposed use or development. PARTIES : Debbula Pty Ltd v The Owners - Strata Plan 6964 FILE NUMBER(S) : SC 5272/03 COUNSEL : Mr T. Hale SC with Mr P Bolster for plaintiff Mr J.A. Timbs QC with Miss K. Rees for defendant SOLICITORS : Writer Ryan Boesen for plaintiff Phillippa Russell Lawyers for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Monday 24 March 2003

5272/01 Debbula Pty Limited v The Owners - Strata Plan 6964 JUDGMENT 1 Master: This is an application by the plaintiff under section 88 K of the Conveyancing Act 1919 seeking the grant to it of an easement to drain water through land owned by the defendant. The plaintiff's land is known as 5 Glenview Crescent, Terrigal and is Lot 3 in DP 228166. It is shown on the plan which is annexed to this judgment and it is the block of land on the plan fronting on to Glenview Crescent which has the legend "collect stormwater and pipe to Campbell Crescent". 2 The land over which is the easement is sought is immediately to the north and shown by the legend "Surf and Sun" on the plan. The defendant Owners Corporation owns the land. The defendant opposes the application. 3 The matter came before me when I was an Acting Judge of the Court and I have continued to deal with the matter pursuant to s 37(3A) of the Supreme Court Act. Background facts 4 The plaintiff's land has erected on it a single story house the outline of which is shown in the attached plan. The plaintiff has lodged two development applications with the Gosford City Council in respect of proposals to demolish the existing house and erect in its place three units. The proposals occupy a substantial part of the site which has an area of 809 sq m. 5 The plaintiff's land falls away sharply on its northern side and any drainage from any redevelopment taken away by a gravity system must pass down to Campbell Crescent and the Council's stormwater system in that street. There is no fall from the plaintiff's land to Glenview Crescent and the Council opposes any mechanical system that relies on pumping of stormwater back to Glenview Crescent. 6 The plaintiff lodged its first application with Gosford City Council in 1998. The application attracted objections from ten owners from nearby properties and they together with their architects, urban planners and solicitors lodged objections with the Council. The objections were as to the height, interruption of views, privacy and the bulk of the development. 7 One of the matters that was raised was the issue of a drainage easement and by July 1999 there were negotiations between the plaintiff and the defendant for granting of a drainage easement. On 22 September 1999 the Development Assessment Unit of the Council resolved to refuse the development application for reasons that included that a satisfactory method of drainage of stormwater from the site had not been identified. This led to an offer by the managing agents of the defendant of an easement on a number of conditions including $6,000 compensation. This offer was apparently accepted and the plaintiff applied for a redetermination of the refusal of the development application on the basis that the easement had been agreed. It also addressed other concerns which had been expressed by the Development Assessment Unit of the Council. 8 On 17 November 1999, the Development Assessment Unit of the Council refused the development application for the following reasons: 1. The height of the proposed development is considered excessive and does not comply with the requirements of clause 28 of the Gosford Planning Scheme Ordinance. 2. The proposed variation to the height limit of clause 28 of the Gosford Planning Scheme Ordinance under the provisions of SEPP 1 is excessive and is not supported. 3. The proposed building does not comply with the maximum building envelope permitted by DCP 100. 4. Due to its height, bulk and scale, the proposed development would have an adverse impact on adjoining properties. 5. Approval of the application under the above circumstances would not be in the public interest. 9 Again, the plaintiff applied for a redetermination of Council's refusal. The matter was referred to a Council meeting for determination. Council staff reported to Council: "It is considered however that the applicant has not adequately addressed the reasons for refusal." 10 On 14 December 1999, the Council resolved to refuse the development application for the same reasons as those given by the Development Assessment Unit. This refusal was given notwithstanding that the stormwater drainage easement had at this time been resolved. 11 In March 2000 the plaintiff lodged another development application. Like its predecessor it was for three two-storey units and was for a building, which, unlike its predecessor, did not contain view corridors for those who would lose some views because of the building. 12 In May 2000 the Council drew the plaintiff's attention to a number of problems with the proposed development. Council noted the lodgement of a caveat by the owner of one of the units by the defendant, a Mr Joseph. That caveat claimed that the Owners Corporation could not grant an easement except by unanimous resolution. This contention was at that stage correct. At the next General Meeting of the defendant held in July 2000 it was determined by the Owners Corporation that because of the caveat the Owners Corporation could not decide the matter 13 On 31 August 2000 the Development Assessment Unit refused the development application for the following reasons: 1 The proposed development does not comply with the 7 metre height limit applying under Clause 28 of the Gosford Planning Scheme Ordinance and the 4 metre maximum distance between the top-most floor and the ground level below applying under the provisions of DCP 100. 2 The external cut and fill is excessive and unsatisfactory in terms of the provisions and objectives of DCP 122 – Cut and Fill Restrictions. 3 The proposed development will have an unacceptable impact on the views from adjoining properties and it is not consistent with the principles of view sharing. 4 A method for the satisfactory disposal of stormwater from the proposed development has not been identified. 5 Approval of this application under the above circumstances would not be in the public interest. 14 On 6 June 2001 the plaintiff's solicitors asked the Council: "Please advise whether Council is prepared to support our client's application [to the Supreme Court] by way of an affidavit indicating that the easement is the only satisfactory way of disposing of the storm water from our client's property in the event of the approval of our client's development application." 15 Council replied as follows on 29 June 2001: "This application was refused on 31 August 2000 on a number of issues which included the satisfactory disposal of stormwater not being identified. Council is unable to support your client's application to the Supreme Court for the granting of a drainage easement pursuant to s. 88K of the Conveyancing Act . It is the responsibility of your client to engage a hydraulic engineer to examine all options to ensure satisfactory disposal of stormwater from the site." The relevant legal principles 16 Section 88 K of the Conveyancing Act 1919 provides: 88K. Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)--(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary…" 17 The evidence discloses that the parties are agreed that the plaintiff has made all reasonable attempts to obtain an easement from the owners but has been unsuccessful. So far as compensation is concerned the evidence on this aspect is not yet complete as the plaintiff had served some fresh affidavits just before the commencement of the proceedings. The parties are agreed that the question of compensation can be addressed once I decide the matter of principle, namely, whether the easement should be granted. This is one of a class of cases where there can be adequate compensation for any loss or other disadvantage that will arise from the imposition of the easement. 18 The remaining questions which arise are: