Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93

Land and Environment Court New South Wales

Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 Hearing dates: 20-22, 27-31 May, 3-5, 7, 11 June 2013, (further written submissions) 12, 14 and 18 June 2013, and (further hearings) 19, 24, 25 June 2013 Decision date: 27 June 2013 Jurisdiction: Class 3 Before: Biscoe J Decision: Easements to be granted subject to owner's consent to lodgement of an application for approval or consent to construct and use ramps along the lines of attached draft orders. Matter to be re-listed tomorrow to make final orders. Catchwords: REAL PROPERTY - easements - application under s 88K Conveyancing Act 1919 for easements of carriageway and for construction, maintenance and use subject to a term that owner of servient tenement give landowner's consent to lodging an application or approval under Part 3A or consent under Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) to construct and use ramps to connect applicant's land to a future road bridge or abutment so as to enable applicant to obtain vehicular access for development of its land - preconditions to imposition - whether easements reasonably necessary for effective use or development of applicant's land - applicant's land landlocked for future development and future development sterilised unless easements granted - whether term of easements should be imposed that owner of burdened land give land owner's consent to lodging of application for works on and use of burdened land under Part 3A or Part 4 or both of the EPA Act - relationship between s 88K and planning laws. Legislation Cited: Contaminated Land Management Act 1997 Conveyancing Act 1919 s 88K Environmental Planning and Assessment Act 1979 ss 36, 57(5), Part 3A, Part 4, s 125 Land and Environment Court Act 1979 s 40 Local Government Act 1993 ss 30 Environmental Planning and Assessment Regulation 2000 cll 8F, 49(1)(b) Liverpool Development Control Plan 2008 Liverpool Local Environmental Plan 1997 Liverpool Local Environmental Plan 2008 Schedule 1 cll 1, 11, State Environmental Planning Policy (State and Regional Development) 2011 cl 8(1)(b), Schedule 1 cl 23(3) Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Annwrack Pty Ltd v Williams, NSWSC, 8 February 1989, unreported Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152 Commissioner of Police v Eaton [2013] HCA 2, (2013) 87 ALJR 267 Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295, (2009) 14 BPR 27,257 Khattar v Wiese [2005] NSWSC 1014, (2005) 12 BPR 23,235 Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, (2010) 171 LGERA 286 Samy Saad v City of Canterbury [2012] NSWSC 389 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545 Texts Cited: AS 5100 Bridge Design Code Part 2 cl 6.2 Category: Principal judgment Parties: Moorebank Recyclers Pty Ltd (Applicant) Liverpool City Council (First Respondent) Tanlane Pty Ltd (Second Respondent) Representation: COUNSEL: T Robertson SC and J Lazarus (Applicant) J Hutton (First Respondent) T Hale SC and Z Steggall (Second Respondent) SOLICITORS: Mark McDonald & Associates Lawyers Pty Ltd (Applicant) Sparke Helmore (First Respondent) Minter Ellison (Second Respondent) File Number(s): 30141/13