New South Wales Supreme Court CITATION : Pasade Holdings Pty Ltd v Council of City of Sydney [2006] NSWSC 299 HEARING DATE(S) : 12 April 2006 JUDGMENT DATE : 12 April 2006 JURISDICTION : Equity JUDGMENT OF : Campbell J EX TEMPORE JUDGMENT DATE : 04/12/2006 DECISION : Easements granted CATCHWORDS : EASEMENTS – creation – by court order under Conveyancing Act 1919 – Section 88K – dead end laneways in middle of city block – no known owner – council and other frontages do not oppose – one easement required for satisfaction of condition of development consent for applicant's building – no competing interest or activity – order made without provision for compensation LEGISLATION CITED : Conveyancing Act 1919 CASES CITED : Pasade Holdings v Sydney City Council [2003] NSWSC 515 Pasade Holdings v Sydney City Council [2003] NSWSC 584 Pasade Holdings Pty Limited - Plaintiff/First Cross Defendant Council of City of Sydney - First Defendant/Second Cross Defendant Graham William Byrne - Second Defendant/Third Cross Defendant Peter Sydney Emery - Third Defendant/Fourth Cross Defendant PARTIES : Brian Bradley - Fourth Defendant/Fifth Cross Defendant The Owners of Strata Plan 61233 - Fifth Defendant/Sixth Cross Defendant The Owners of Strata Plan 73850 - Seventh Cross Defendant John Anthony Arcidiacono - Sixth Defendant/First Cross Claimant/Applicant Anna Maria Arcidiacono - Seventh Defendant/Second Cross Claimant/Applicant FILE NUMBER(S) : SC 2610/03 COUNSEL : C Carroll - First and Second Cross Claimants SOLICITORS : Dobes & Andrews - First and Second Cross Claimants LOWER COURT DATE OF DECISION : 04/12/2006 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J WEDNESDAY 12 APRIL 2006 2610/03 PASADE HOLDINGS PTY LIMITED v COUNCIL OF CITY OF SYDNEY & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: On the western side of York Street in Sydney, and about mid way between Barrack and King Streets, a small laneway heads in a westerly direction. That laneway goes only about half of the distance from York Street to Clarence Street. When it has gone that far, it reaches a building. There, another small laneway heads in a northerly direction, at a right angle from the terminus of the first laneway. That second laneway is likewise one which terminates at a building, rather than carrying through to the next street. 2 The laneway which heads in a northerly direction is one which lies at the rear of a building at 100 Clarence Street, which is owned by the first and second cross-claimants. 3 The circumstances in which these laneways are owned, and have been used over the years, have been set out in two judgments of Bryson J, given in this case, on 12 June 2003 and 27 June 2003 respectively: Pasade Holdings v Sydney City Council [2003] NSWSC 515; Pasade Holdings v Sydney City Council [2003] NSWSC 584. In those cases, his Honour granted easements under section 88K Conveyancing Act 1919 over these two laneways to the plaintiff, who also owns a building which adjoins the laneways. The evidence in those cases has also been read on the present application. I gratefully adopt his Honour's account of those matters. 4 The first and second cross-claimants are seeking to subdivide the building which they own into strata title units. They have been informed that the Council will require an easement for fire egress before it approves any such subdivision. 5 Within the cross claimants' premises is a space which is used for car parking. Two tenants of the cross claimants use that carpark. There is evidence from a director of one of them that she has used it for the order of 16 or 17 years. The only way to obtain access to that car parking area is by going from York Street along the two laneways. The tenant's director who has used the car parking space for over 16 years has never been questioned about her entitlement to do so. Likewise, the first and second cross-claimants, who purchased their property in 2002, have never had any reason to suspect that anyone questioned the entitlement of the tenants to use those laneways. 6 The first and second cross-claimants seek the granting of easements over the two laneways, which will: (a) provide the easement for fire egress which the Council would require before it approves a subdivision; (b) grant a right of way, in terms substantially the same as those set out in Schedule 4A to the Conveyancing Act , over the two laneways; and (c) provide an easement to enable services, such as water, gas, electricity, telephone and television services, and discharge of the sewerage sullage and other fluid waste, to be provided to the first and second cross-claimants' building. Physical examination has shown that there are various conduits for such services located in the laneways, and there is no evidence in any title document of the first and second cross-claimants having any right to use those conduits. 7 In the circumstances outlined in the judgments of Bryson J, earlier referred to, it is not known who is the owner of the two laneways. All reasonable efforts to locate an owner have proved fruitless. 8 The Sydney City Council has been notified of the present application, and its solicitors have stated that it does not oppose the orders sought. The other parties to these proceedings are certain land owners in the vicinity. They have also been notified of the application for these present orders, and have not opposed them. 9 I accept that the requirements for the grant of an easement under section 88K, are those stated by Young J in Hanny v Lewis (1998) 9 BPR 16,205, namely: (a) that the easement is reasonably necessary for the effective use or development of the plaintiff's land; (b) that the use of the plaintiff's land in accordance with the easement will not be inconsistent with public interest; (c) that the grant of the easement can be adequately compensated for; and (d) that all reasonable attempts have been made by the plaintiff to obtain the easement but those attempts have been unsuccessful. 10 It is, in my view, reasonably necessary for each of the easements sought to be granted. It is highly undesirable that any building in the city not have a right to use those passages which, as a matter of physical necessity, need to be used to get away from the building in the event of a fire emergency. The grant of the right of way is likewise something which is reasonably necessary to enable the tenants of the building to be accommodated, and also to provide a more ready means of access to the building which is not as troubled by traffic as the frontage in Clarence Street would be. The need for a city building to be connected to services needs no elaboration. 11 The granting of the easements is not inconsistent with the public interest. The laneways do not lead anywhere, apart from to the immediately adjoining buildings, and no problem has been occasioned by the carrying out of activities such as those which would be authorised by the easements for a period of well over a century. The planning authority, namely, the Sydney City Council, sees no difficulty concerning them. As well, the factor which Bryson J relied upon, namely, that it is in the public interest that there be the most effective use of assets, including assets in private hands, assists in showing that this requirement is complied with. 12 There is valuation evidence that the granting of the easements would reduce the value of the land in question by a purely nominal amount. The owner of the laneways, can, in any event, not be found. Both those factors show that the grant of the easements can be adequately compensated for. 13 As well, the first cross-claimant proffers an undertaking, which I shall accept, to pay such compensation as the Court fixes to the owner of the two laneways in the event that person is ever located. In these circumstances, I am satisfied that the grant of the easements can be adequately compensated for. 14 Further, the attempts to find the owner, which I have earlier outlined, show that all reasonable attempts to obtain the easements by extra curial process have been unsuccessful. 15 For these reasons, I shall make the type of orders which are sought. There are some minor drafting matters that need to be attended to, as discussed with Counsel. I direct the first and second cross-defendants to bring in Short Minutes. ********** 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.