New South Wales Supreme Court CITATION : PD Consultants Pty Limited v Leonard Childs & Anor [2004] NSWSC 1076 HEARING DATE(S) : 9/11/04 JUDGMENT DATE : 9 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Brownie AJ DECISION : Application dismissed. CATCHWORDS : Easements - imposition under s.88K Conveyancing Act - reasonable attempt to reach agreement LEGISLATION CITED : Conveyancing Act 1919 Supreme Court Act 1970 (NSW) PD Consultants Pty Limited (Plaintiff) PARTIES : Leonard Childs (First Defendant) Hendrikje Childs (Second Defendant) FILE NUMBER(S) : SC 2039/04 COUNSEL : Mr G Carolan, Mr A Crossland (Plaintiff) Mr S Bell (Defendants) SOLICITORS : Back Schwartz Vaughan (Plaintiff) Webster O'Halloran & Associates (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Brownie AJ Tuesday 9 November 2004 ex tempore Revised 15 November 2004 2039/04 PD Consultants Pty Limited v Leonard Childs & Anor JUDGMENT 1 The plaintiff seeks an order under s 88K of the Conveyancing Act 1919 imposing over certain land, of which the defendants are the registered proprietors, an easement, generally speaking at least, for electricity transmission lines and associated equipment. The plaintiff is itself the registered proprietor of some land situated near Braidwood, sufficiently identified for present purposes as lot 4. The defendants' land lies generally to the north and to the east of the plaintiff's land. Those two parcels of land are separated by a road called Sawyers Ridge Road. Generally speaking the land in the area is steep, crossed by many gullies and creeks, and, it seems, was originally thickly forested country. Some parts of it have been cleared. Others remain covered by what appears to be a eucalyptus forest. 2 The plaintiff purchased its land some few years ago and has since developed it building a house and other improvements. Initially the plaintiff had installed some solar power equipment but found it unsatisfactory, at least for its purposes, and for approximately the last three years it has been using generators. It says, in a way which is easy to understand, that it would be much better if it had some connection to the electricity grid in the area, provided by Country Energy. Unfortunately there is no such connection immediately available. 3 The defendants' land is connected to the electricity grid. A line runs across the land of a neighbour of the defendants, coming from the east and terminating at the moment at a transformer on a pole situated not very far from the south-eastern corner of the defendants' land. 4 The plaintiff approached the defendants seeking their agreement to what a lawyer would describe as the creation of an easement over the defendants' land. Country Energy suggested three possibilities as to how a connection might be made between the plaintiff's land and the electricity grid using the line terminating with the transformer on the defendants' land. These, in the jargon of this case, have been called option one, option two and option three. 5 To state matters shortly for the moment, option one involved the construction of an above ground power line running from the transformer mentioned in a generally westerly direction across the defendants' land on to the land of a neighbour named Whist, which is generally to the west of the defendants' land and to the north of the plaintiff's land. The option one proposal involved the construction of a line then which crossed Sawyers Ridge Road from north to south. Country Energy provided a budget estimate of the costs involved in that of $20,000. 6 Option two involved a variation of option one. Instead of a straight line running from the transformer mentioned in a generally westerly direction on to the land of Mrs Whist there was proposed instead a line running initially more or less southwards from the transformer to a point close to the southern boundary of the defendants' land and then generally westwards, meeting up with the line of the proposal called option one on Mrs Whist's land. That generally westward line is not a straight line. It lies just to the north of a tree line, which is, itself, on or close to the southern boundary of the defendants' land and then the southern boundary of Mrs Whist's land. Country Energy's budget estimate of the cost of providing option two was $27,000. 7 Option three, which had a budget estimate of $50,000, was quite different. It involved constructing a new transformer on or near the eastern boundary of the defendants' land running south across Sawyers Ridge Road and then more or less westwards more or less immediately on the southern side of the road. It is common ground that option three is simply not a viable option. The local council apparently will not approve of it nor will the Department Infrastructure Planning and Natural Resources. It can be put out of consideration. 8 It seems clear that until today the plaintiff has been advocating option one. Mr Moore, a director and perhaps the moving spirit behind the plaintiff, said in paragraph 17 of his affidavit of 1 March last that option one was the only viable option available to the plaintiff. The plaintiff's then solicitor, Mr King, in a letter to the defendants dated 24 June 2003 said much the same. 9 The one factor telling against that is that Mr Davies, a valuer and land economist who prepared a report and swore an affidavit read in the plaintiff's case, prepared a valuation report in which he valued the diminution in value of the defendants' land upon the assumption that option two would be utilised. It seems clear that the defendants have come to court to fight a case about option one. Today, for whatever reason, the plaintiff has chosen to abandon that case and to propound a case based upon option two. When I say for whatever reason I do not mean to suggest that the decision was not a wise one. If one looks at the way in which Mr Childs, the first defendant, marked exhibit 1, and has regard to the evidence of the two valuers about the way the land is regarded in the district, option one really is unthinkable. It would involve, on the evidence of Mr Childs, which I accept, the construction of overhead power lines which would run either over or very close to over the place where Mr and Mrs Childs propose to build a house. It is true that at the moment they live in another dwelling on the land described as a converted shed. It does not seem to me that an order ought to be made under section 88K which would effectively impair the use of the land over which the easement might be imposed in the way that option one contemplates. The view to the west or the south-west from the position chosen for the proposed construction of the new house has a view which most people would regard as very desirable. The fact that the local council has, at the moment, only authorised the use of the existing dwelling on the defendants' land does not mean that the council's position will not change in the future, nor should it. 10 The case boils down then to what might be done in relation to option two. The difficulties which I perceive in the plaintiff's case at the moment is that within the meaning of subs (2)(c) of s 88K the plaintiff has not satisfied me that all reasonable attempts have been made by the applicant for the order (that is, the plaintiff) to obtain the easement now contended for or an easement having the same effect, that is to say, some easement the form of which is yet to be worked out relating to the adoption of option two. For that reason I think that the present application must be dismissed. 11 The defendants raise a separate objection based upon subs (1). They say that it has not been shown that it is reasonably necessary for the effective use or development of the plaintiff's land that it have the benefit of some such easement, contrasting that expression with the more enjoyable use of the land by the plaintiff or by Mr and Mrs Moore I do not need to consider that position, but it is not a point to be lightly waved aside. 12 I would dismiss the summons immediately but for the terms of s 63 of the Supreme Court Act which might or might not, on a strict construction, be appropriate, and but for what seems to me to be the common sense practicalities of this case. Mr and Mrs Moore and Mr and Mrs Childs are neighbours. They have to live in close proximity to each other. Sooner or later it seems likely someone will make an application either similar to the present one or not terribly dissimilar. Subject to what counsel might say I propose to adjourn the case to the first day of term next year. If anybody asks me to do so I will take appropriate steps to make a Registrar of the court available to act as a mediator. My suggestion to the parties is, having expended a considerable amount of money in costs now, they take advantage of the work which has been done, try to reach some agreement they can all live with and try to put this dispute behind them as quickly as they are able to do. As the statute provides, the plaintiff must pay the defendants' costs in any event. 13 I adjourn the matter until 31 January 2005 at 9.30am for directions. If in the meantime the parties want any further order they should feel free to contact my associate. I certify that paragraphs 1 - 13 are a true copy of the reasons for judgment herein of the Hon. Acting Justice Brownie given on 9 November 2004 ex tempore and revised on 15 November 2004 ___________________ Susan Piggott Associate 15 November 2004 Last Modified: 11/18/2004 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.