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 Judgment CONTENTS Paragraphs INTRODUCTION............................................................................... 1-18 THE LANDS..................................................................................... 19-21 BACKGROUND............................................................................... 22-59 MOOREBANK'S PART 3A APPLICATION.................................. 60-90 EXPERT EVIDENCE...................................................................... 91-101 SECTION 88K CONVEYANCING ACT 1919............................... 102-115 CONSIDERATION........................................................................... 116-169 TIMING OF REGISTRATION OF EASEMENTS........................... 170-175 ORDERS........................................................................................... 176-179 INTRODUCTION 1This is an application under s 88K of the Conveyancing Act 1919 by Moorebank Pty Ltd (Moorebank) for the grant of easements of carriageway and for construction, maintenance and repair benefiting its land located at Moorebank in the Liverpool local government area, subject to a term that the owner of the land to be burdened give written owner's consent to the making of any application for any consent or approval required to construct and use a road and bridge abutment with ramps as contemplated by the easements. This ancillary term is the principal matter in dispute. 2The first respondent, Liverpool City Council, owns the land to be burdened by the proposed easements. The second respondent, Tanlane Pty Ltd (Tanlane), owns land used for industrial purposes adjoining the Moorebank land. 3Tanlane has development consent from Council to construct a road bridge passing mostly about 6 metres above the Council land and the adjoining handle (known as the panhandle) of Moorebank's battleaxe land. When constructed, the road bridge will run between the Tanlane land and Brickmakers Drive, a public road owned by Council. Brickmakers Drive runs north-south and connects on the north to Newbridge Road, the major east-west trunk road in the locality. The road bridge will comprise two sections, in the west a solid embankment adjoining Brickmakers Drive and in the east a structure suspended on pylons to join the Tanlane land. 4Consistently with Council's vision for the last decade and as required by Roads and Maritime Services (RMS), the only road access for future developments on the lands in the precinct east of Brickmakers Drive, including the Moorebank and Tanlane lands, is via the future road bridge in this location. 5Moorebank has a pending major project application to develop its vacant and unused land for a materials recycling facility (MRF) under the transitional provisions of Part 3A (since repealed) of the Environmental Planning and Assessment Act 1979 (EPA Act). Under Part 3A the approval authority is the Planning Assessment Commission (PAC) as delegate of the Minister. Completion of assessment of the Part 3A application is dependent on Moorebank satisfying one of the Director-General's requirements (DGRs) under Part 3A that, as a "key issue", Moorebank must "demonstrate that suitable arrangements have been made to secure access to the site, including written evidence of the relevant landowner's consent for the proposed site access work". These proceedings are aimed at satisfying that DGR thereby opening the way to PAC to determine Moorebank's Part 3A MFR application. The only means of access to the Moorebank land is by means of ramps connecting the panhandle to the road bridge, either to the embankment (Ramps B), which is Moorebank's preference, or to the suspended structure (Ramps A). Without such ramps the Moorebank land will be landlocked and all potential developments thereon sterilised. 6Moorebank's Further Amended Summons claims the following relief: 1. An order that an easement be imposed under section 88K of the Conveyancing Act 1919 (NSW) burdening the first respondent's land, being Lots 308 309 and 310 in DP 1118048 and benefiting the applicant's land, being Lot 6 in DP 1065574 in the terms set out in Annexure A, or otherwise on such terms as the Court thinks fit. [Annexure A indicates that this easement is for the construction, maintenance and repair of a road and bridge abutment with ramps]. 1A An order that a right of carriageway be imposed under section 88K of the Conveyancing Act 1919 (NSW) burdening the first respondent's land being Lots 309 and 310 in DP 1118048 and benefiting the applicant's land, being Lot 6 in DP 1065574 in the terms set out in the Annexure A, or otherwise on such terms as the Court thinks fit. 2. An order that the first respondent do all things and execute all documents which it is proper and necessary for it to do and execute in order to enable the registration of the easement and right of carriageway referred to in orders 1 and 1A in accordance with the Real Property Act 1900 (NSW). 3. An order that to the extent necessary as part of the granting of the easement and right of carriageway referred to in orders 1 and 1A, the first respondent on the written request of the applicant, shall forthwith give its written owner's consent for any application for any consent or approval required to construct and use the road and bridge abutment with ramps in the manner contemplated by the said easement and right of carriageway. ... 8. Such further or other orders as the Court deems fit. 7Prayer 3 concerning owner's consent is the dominant issue in the case. It requires clarification in four respects: (a)the reference to "consent or approval" means "consent" under Part 4 of the EPA Act where Council is the consent authority (Part 4 owner's consent term), or "approval" under Part 3A where the Planning Assessment Commission (PAC) is the approval authority as delegate of the Minister (Part 3A owner's consent term). Written owner's consent for lodgement of a development application under Part 4 is required by s 78A(1) and cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000, and owner's consent for lodgement of a project application under Part 3A is required by cl 8F(1). Council is not just the owner of the proposed servient tenement: it also happens to be the consent authority for Part 4 development applications in the area unless Part 4 is ousted by s 75R(1), which Moorebank contends it is in this case. (b)Although prayer 3 is couched as an "order", any requirement that Council give "owner's consent" should be framed as a term of the easements: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 522 (Hodgson CJ in Eq); Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [99]. (c)All that is sought in prayer 3 is owner's consent for the making of an application for a Part 4 consent or Part 3A approval. An order for an easement with that term does no more than overcome a legal obstacle to the making of an application. The order and the easement does not require Council to consent to the development itself. Such a term of an easement leaves the servient owner at liberty to object to the application before the approval authority and to exercise such rights as are given to it by the planning laws: 117 York Street at 523. (d)Moorebank's essential object, opposed by the respondents, is to obtain an unqualified Part 3A owner's consent term for the ramps because it has a pending Part 3A application for an MRF. Part 4 owner's consent term is very much its fallback position if for some reason a Part 3A approval is not forthcoming. 8Council, supported by Tanlane, consents to the proposed easements provided that a Part 4 owner's consent term is imposed and no unqualified Part 3A owner's consent term. Ultimately, Council indicated that it would also consent to a qualified Part 3A owner's consent term to take effect only in the event a Part 4 development consent for construction and use of the ramps is not forthcoming within 12 weeks after a Part 4 development application is lodged. That is the period Council requires to process a development application for the ramps. Council concedes that if there is no development consent by that time, then it would be reasonably necessary for Moorebank to have a Part 3A owner's consent for the effective development of its land. Compensation for the proposed easements in the sum of $25,000 under s 88K(4) is agreed between Moorebank and Council. 9The grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. Such ancillary rights include, where appropriate, a right to written consent by the owner of the burdened land to the lodgement of any application for construction and use of works in the manner contemplated by the easement. Such an ancillary right is implied in a statutory grant of an easement. In a s 88K application, it is appropriate, to avoid any doubt or dispute, to grant it expressly as a term of the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 521 per Hodgson CJ in Eq; followed Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 171, 171 LGERA 286 at [196] per Preston CJ of LEC. In the usual case the only statutory approval course open to an applicant for development of the land burdened by an easement is under Part 4 of the EPA Act. In the present case the Part 3A approval course is open to Moorebank related to its pending Part 3A MRF application. Indeed, as analysed later, a Part 4 consent for the ramps would be unlawful under s 75R(1) of the EPA Act so long as a Part 3A application extending to access over the Council land is on foot. It is implicit, in my view, in the grant of the easements Moorebank seeks that Council would provide its written owner's consent for the lodgement by Moorebank of a Part 3A application or a Part 4 application relating to construction of and use of ramps along the lines set out in prayer 3 of the summons. Hence, what Council, supported by Tanlane, is proposing is an express term of the easements that cuts down on what would otherwise be an implied term. 10Thus, the choices confronting the Court include: (a)as claimed by Moorebank in prayer 3 of the summons, an unqualified Part 3A owner's consent term and an unqualified Part 4 owner's consent term; or (b)as contended for by Council, supported by Tanlane, an unqualified Part 4 owner's consent term coupled with a qualified Part 3A owner's consent term that would only operate if a Part 4 owner's consent was not forthcoming 12 weeks after a Part 4 development application is lodged. 11The case is unprecedented in that the dominant issue does not concern the easements but the owner's consent term. It is a power struggle over whether Council or PAC should be the approval authority for the ramps. The tail is wagging the dog. However, it is said that there are legal and practical reasons for the competing positions, which I address later. 12Underlying Council's position are two matters. First, by the imposition of a Part 4 owner's consent term, Council seeks to compel Moorebank to make a Part 4 application to Council for consent for construction and use of the ramps so that Council, as the local planning authority, can maintain design and construction control over the road bridge, ramps and traffic control works at the intersection of Lot 309 and Brickmakers Drive. The road bridge will provide the only access to Brickmakers Drive not only for the Moorebank land (via ramps) but to the Tanlane land and other land east of Brickmakers Drive. The road bridge is a key component of the precinct, which Council has for a number of years been seeking to develop in an integrated manner. Secondly, Moorebank seeks the easements in order to obtain vehicular access to and from Brickmakers Drive for a proposed MRF on the Moorebank land, but since 2011 Council has been opposed to an MRF on the Moorebank land and to Moorebank having access over the Council land for the purpose of an MRF on the ground that an MRF is not suitable for the residential and recreational character of the area. 13However, Council accepts, and during the hearing made an open offer to Moorebank along the lines, that the Moorebank land should have the proposed easements subject to a Part 4 owner's consent term on the reasoning that the easements are required anyway to permit vehicular access for any other development permissible under the zoning of the Moorebank land, and that the ramps should be capable of carrying heavy trucks - even though that would include trucks required to service Moorebank's proposed MRF. In other words, Council consents to the easements provided they are not linked to a Part 3A MRF application by a Part 3A owner's consent term. 14Moorebank's reasons for its position include the following. First, it submits that a Part 4 owner's consent term would be futile because a Part 4 consent for construction and use of the ramps would be unlawful under s 87R(1) of the EPA Act whilst its Part 3A MRF application is pending. Secondly, it submits that the Part 4 route for consent for construction and use of ramps would create the potential for serious conflict between two separate approval regimes. Thirdly, it submits that there is reason to believe Council would not apply an unbiased mind to a ramps application. Fourthly, it submits that to embark on a Part 4 consent route at this stage would cause such delay as to be a recipe for disaster for its Part 3A MRF application because the Department of Planning has stated its intention that all Part 3A projects will be determined by 30 June 2013 and, whilst some extension of that time should not be a difficulty, the time required for a new Part 4 process would likely be unacceptable to the Department leading to the dismissal of its Part 3A application. 15Although the Supreme Court joined Tanlane to the present proceedings in order that Tanlane could protect its interests, Tanlane in evidence and submissions has entered quite fully into the entire fray. Nevertheless Tanlane says that its only concerns are that if easements are granted (a) Tanlane's interests are taken into account, (b) Tanlane is in no way consenting to an MRF on Moorebank's land, and (c) its forthcoming s 88K easement over Moorebank's panhandle is registered before registration of any easements granted to Moorebank. Tanlane says that three terms of the easements and one undertaking by Moorebank proposed by the respondents in draft short minutes reflect what Tanlane seeks in that regard. Those proposed terms are broadly to the effect that the owner of the Moorebank land not hinder, interfere or prejudice rights under the Tanlane easement for construction or use of the road bridge the subject of the construction development consent. The proposed undertaking by Moorebank - which, however, Moorebank declines to give - is to the effect that Moorebank's rights in relation to any easements that I grant, particularly the right of registration of the easements, be postponed until after registration of the Tanlane easement. 16In September 2012 Moorebank commenced these proceedings against Council in the Supreme Court. In February 2013 the Supreme Court (Pembroke J), on Tanlane's motion, joined Tanlane as a respondent and transferred the proceedings to the Land and Environment Court. In March 2013, on Moorebank's motion, this Court expedited the hearing with a view to determining the proceedings before 30 June 2013. The reason for this urgency is that the Department of Planning and Infrastructure (the Department) stated in an August 2012 circular titled "Accelerating completion of the assessment of transitional Part 3A projects" that: "It is the intention that all transitional Part 3A projects will be determined by 30 June 2013". 17By what was thought at the time to be the conclusion of the hearing on 11 June 2013, less than three weeks were left to deliver judgment before the 30 June 2013 date specified by the Department. However, further submissions and documents for tender were received thereafter leading to further short hearings on 19, 24 and 25 June. Although this judgment is delivered before 30 June 2013, it is inevitable that determination by PAC of the Part 3A application will occur some time later. Moorebank proceeds on the justifiable assumption that the 30 June 2013 date is not an immutable deadline and will be extended for a reasonable time if it obtains the relief it seeks before that date. 18I have had the advantage of a view of the parties' lands and the surrounding area. Orientation and an understanding of Ramps B are assisted by the following documents annexed to this judgment and marked as follows: "1" An extract from the zoning map in the Liverpool Local Environmental Plan 2008 (LEP), on which has been superimposed title details of the parties' lands. "2" An aerial photograph on which has been superimposed a plan of the proposed MRF and descriptions of (inter alia) Lot 309 and the panhandle. "3" A plan of Ramps B THE LANDS 19The Moorebank land to be benefited by the proposed easements is Lot 6 in DP 1065574. It is former landfill, vacant and unused. It has an area of about 20.5 hectares. It includes a dirt track panhandle about 10 metres wide and 840 metres long running north to Newbridge Road, a major arterial road. The panhandle is the only road access to the main body of the Moorebank land. The Moorebank land is bounded on the east by the Georges River, on the west by Council's land Lots 309 and 310 in DP 1118048, on the north (and east of the panhandle) by the Tanlane land, and on the south by a golf course. There is a drainage channel adjacent to and immediately east of the panhandle. 20The Council land to be burdened by the proposed easement of carriageway comprises Lot 309 and Lot 310 in DP 1118048. Lot 309 is an 18 metre wide east-west strip between Moorebank's panhandle and Brickmakers Drive, over which Tanlane has development consent to construct the road bridge. That land is vacant and unused. Lot 310 lies north and south of Lot 309. Lot 310 is environmentally sensitive land and classified as community land under the Local Government Act 1993. The Council land to be burdened by the proposed easement for construction, maintenance and repair comprises Lots 309 and 310 as well as Lot 308, being Brickmakers Drive. Brickmakers Drive was dedicated to Council as a public road in August 2012 by Boral whose land on the western side of Brickmakers Drive is being developed as a large residential estate known as Georges Fair. 21The Tanlane land is Lot 7 in DP 1065574. It has an area of about 22.31 hectares. It is bounded on the south by the main body of the Moorebank land, on the west by the Moorebank panhandle, on the north partly by Newbridge Road and partly by land owned by Flower Power, and on the east by the Georges River. The Tanlane land is about six metres higher than the panhandle, the drainage channel and the Council land Lots 309 and 310. The Tanlane land is used for an MRF and for sand extraction by the Benedict Group to which Tanlane is related. Benedict is a competitor of Moorebank in the MRF business and would be its major local competitor upon operation of an MRF on the Moorebank land unless the MRF on the Tanlane land ceases operation. BACKGROUND 22In 1995, in response to a rezoning request from Moorebank's planner Mr Kennan, a report for Council said that a concrete recycling facility would seem to be a reasonable short-term use of the Moorebank land, and, so as to maximise future planning options, a sunset provision could be incorporated into the LEP and development consent requiring the recycling facility use to cease in, say, 20 years when planning for the whole area will be under review. Later that year Council wrote to Mr Kennan stating that it had resolved to prepare a draft LEP to allow a concrete recycling facility on the Moorebank land on the basis that it may be an appropriate short-term use of the site. 23In 1996 Mr Kennan wrote to a Council committee that Moorebank seeks to rezone the land for a definite period of time to allow a concrete recycling facility and was willing to have Council place a sunset clause in the LEP. 24In 1997 the Liverpool Local Environmental Plan 1997 (LEP 1997) was gazetted. It zoned the Moorebank land 1(a) Rural. 25In 2000 the "Boral Moorebank Precinct" was formed including the lands owned by Moorebank, Tanlane, Boral, Flower Power and the Brighton Golf Club. 26In 2001, after a site audit under the Contaminated Land Management Act 1997, the Moorebank land was certified as being suitable for commercial/industrial use including a concrete recycling facility, on conditions. 27In 2002 Council adopted a non-statutory Moorebank Structure Plan. The Structure Plan identifies the indicative land use for the Moorebank land as "Waste and Recycling Uses/ Open Space". It provides for the Moorebank, Tanlane, Flower Power and Boral lands east of Brickmakers Drive to be accessed not by Newbridge Road but by a link road to be dedicated to Council by Boral as part of the redevelopment of the former Boral brick pit. That link road is now Lot 309. 28Later in 2002 Moorebank and Tanlane entered into a deed under which Moorebank agreed to grant Tanlane an easement over the panhandle for construction and use of a road bridge. 29In 2004 Mr Kennan on behalf of Moorebank made a rezoning submission to Council. He wrote that, assuming rezoning, Moorebank considered that the establishment of an MRF will occur well in advance of any redevelopment of the Boral site for residential purposes, and that Moorebank would agree to a sunset clause in the development consent requiring a further development consent after an appropriate number of years, which would provide for a limited period following completion of redevelopment of the Boral land during which the MRF could operate. 30In 2004 the Roads and Traffic Authority (RTA) wrote to Council regarding an amendment to the LEP 1997 referring to the need to remove existing access points along Newbridge Road in the event of redevelopment of the Moorebank Precinct. The RTA noted that the intention of the proposed service road shown in the draft amendment was to provide vehicular access to the Moorebank, Tanlane and Flower Power lands once they are developed and existing access on Newbridge Road is removed. 31In 2004 an amendment to LEP 1997 was gazetted with new zoning designations. An 18 metre wide corridor was rezoned 2(a) Residential: this is Lot 309. Land adjoining both sides of Lot 309 was rezoned 7(c) Environment Protection - Conservation: this is Lot 310. 32Later in 2004 Benedict (to whom Tanlane is related) wrote to Council regarding the rezoning application for the Moorebank land stating that given the recent rezoning of the Boral land to residential and Benedict's stated goals of a residential and recreational rezoning for the Tanlane land, they questioned the appropriateness of an MRF on the Moorebank land in an environmentally sensitive area. Shortly afterwards, Boral objected to the rezoning of the Moorebank land as an inappropriate and incompatible use of the site and referred to Moorebank's proposed sunset clause on operations as a condition of a future development consent. 33In December 2004 a Council report said the draft LEP is consistent with Council's Structure Plan and recommended that Council proceed with an amendment to permit, with development consent, an MRF on the Moorebank land. 34In September 2005, Amendment No 76 to LEP 1997 was gazetted. It did two things. First, it rezoned the Moorebank land from 1(a) Rural to partly 1(a) Rural, partly 7(a) Environmental Protection - Waterway and partly 7(c) Environment Protection - Conservation. Secondly, it permitted, with the consent of Council, an MRF on part of the Moorebank land. 35In December 2005 a developer deed was entered into between Council and Boral for development of the Boral land for residential purposes, under which Boral agreed to dedicate Lots 308, 309 and 310. 36In December 2005 the Minister for Planning by his delegate declared the MRF development as a project to which Part 3A of the EPA Act applied. In 2006 Moorebank lodged a Part 3A application for approval of an MRF on its land. These and subsequent events relating to the Part 3A application are dealt with separately in the next section of this judgment. 37In 2006 Moorebank and Tanlane explored design options for a road bridge and ramps. 38On 1 May 2006 Moorebank gave owner's consent to the lodgement by Tanlane of a development application for construction of a road bridge over that part of the panhandle within the area of Tanlane's proposed easement for the road bridge. 39In May 2006 Benedict, to which Tanlane is related, lodged a development application with Council for consent to construct a road bridge on Lot 309 and part of the panhandle. 40In June 2006 Council granted development consent to Moorebank for bulk earthworks, to ensure that part of the Moorebank land on which the MRF was proposed to be built would not be affected by one in 100 year flood events. 41In July 2006 Council adopted Development Control Plan No 50, which indicates that the preferred method of access for properties east of the panhandle is from the link road connecting to Brickmakers Drive. 42In 2007 Council granted Tanlane development consent for the construction of a road bridge over Lot 309 between the Tanlane land and Brickmakers Drive. The consent did not extend to the use of the road bridge, which requires a further development consent. Conditions of the consent require the road bridge to be designed and constructed such that it is able to accommodate access ramps as designed in concept for Moorebank (Ramps A) and that the design be certified that it complies with AS 5100 - Bridge Design Code. This was to ensure that the road bridge would have the structural adequacy to carry the large trucks that would service the proposed MRF on Moorebank's land. In 2007 the consent was modified including widening the bridge to 12 metres. 43In 2009 this Court dismissed Moorebank's judicial review challenge to the validity of the consent: Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 (Lloyd J). Moorebank had submitted that Council failed to consider whether the bridge would harm Moorebank's access and whether the bridge's design and structure were insufficient to allow access for the purposes of materials recycling on Moorebank's land. Lloyd J held that this was met by a condition of the development consent which required the bridge to be designed in accordance with the loads prescribed in AS 5100 since this would be sufficient to deal with the trucks and loads required for Moorebank's future MRF use: at [50]. 44Meanwhile, in January 2008, Council, Tanlane and Boral entered into a deed under which Tanlane was given exclusive rights of occupation of Lot 309 for the construction of the road bridge in accordance with Tanlane's 2007 construction development consent (after construction the road bridge is to be dedicated as a public road). Moorebank submits that this would contractually prevent Council agreeing to give Moorebank an easement over Lot 309 prior to construction of the bridge. This seems to me to have force. 45In 2008 the Liverpool Local Environmental Plan 2008 (LEP 2008) was gazetted. It continued to zone the Moorebank Land E2 Environmental Conservation, in which zone there are permitted with consent identification signs, drainage, earthworks, environmental facilities, flood mitigation works, information and education facilities and roads. In addition, cl 11 of Schedule 1 provides that part of the Moorebank land can be used with consent for the purpose of an MRF. It states that cl 11 "is repealed on 1 September 2018". In my opinion, that is the sunset date for development consent to an MRF on the Moorebank land. However, cl 11 does not restrict a consent (by that date) from permitting construction and use of an MRF beyond that date. This is reinforced by contrasting cl 11 with cl 1 of Schedule 1 which provides, in relation to certain land in another zone that its "temporary" use for the purpose of industry is permitted with consent but that such consent may be granted "for a maximum period of 3 years": no such language appears in cl 11. 46On the same day as LEP 2008 was gazetted, Council adopted the Liverpool Development Control Plan 2008 (DCP 2008). It provides for residential subdivision for a maximum of 216 dwellings on the Tanlane land. It also provides for flood free access via a road bridge in the vicinity of Lot 309 to Brickmakers Drive prior to any such subdivision. Tanlane intends to develop this residential subdivision, as well as a marina, upon cessation of the existing industrial uses in about late 2014. The timing of that development will have to take account of remediation of the Tanlane land after cessation of its current recycling use. Tanlane has lodged a development application with Council for the marina but not yet for the residential subdivision. 47In June 2008 Council and Tanlane entered into a voluntary planning agreement (VPA), under which Tanlane agreed to construct a bridge from the Tanlane land to Brickmakers Drive and to dedicate and transfer the bridge to Council if and when Council granted consent for Tanlane's proposed subdivision of its land to create up to 225 residential lots. 48The only vehicular access in the event of future development of the Moorebank, Tanlane or Flower Power lands is to and from Brickmakers Drive via Lot 309, which is about 300 metres south of Newbridge Road. That is because, first, that has been Council's strategy since its 2002 Structure Plan and, secondly, the position of RMS since 2003 has been that they will not allow vehicular access to and from Newbridge Road in the event of future development of the Moorebank, Tanlane and Flower Power lands and that such access should be over Lot 309. Thus, redevelopment of the Moorebank land and the Tanlane land will be sterilised because those lands will then be landlocked unless they can access Brickmakers Drive over, or by connecting to, Lot 309. 49In order to construct the road bridge, Tanlane requires an easement over Lot 309 and through the air space above Moorebank's panhandle. Council agreed to give Tanlane an easement over Lot 309. As mentioned earlier, under a 2002 deed Moorebank agreed to give Tanlane an easement over the panhandle. However, five years later Moorebank exercised its right under the deed to terminate the deed if construction of the bridge did not commence within five years. 50In 2008 Tanlane brought proceedings in the Supreme Court claiming, first, that Moorebank wrongly terminated the 2002 deed and, alternatively, seeking an easement over the panhandle under s 88K of the Conveyancing Act. Moorebank opposed the grant of the easement because the bridge would obstruct its planned ground access route (the Marshall plan) over Lot 309 to Brickmakers Drive for its proposed MRF and it feared the bridge would be constructed in such a manner that it would be unsuitable for heavy vehicles servicing its proposed MRF. Young JA rejected the former claim but granted Tanlane an easement on terms under s 88K in the course of three judgments delivered between 2008 and 2012: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341; Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90. In order to protect Moorebank's proposed development of an MRF, his Honour granted the easement to Tanlane but made an order that Tanlane undertake to the Court to have the easement extinguished if, despite the best endeavours of both parties, after all appeals to and from the Land and Environment Court are exhausted, Moorebank cannot obtain access for 48 tonne trucks from its land across the proposed easement to Brickmakers Drive, and that, if the easement be extinguished, Moorebank undertake to the Court to return the compensation with interest. 51On 21 December 2012 the Court of Appeal upheld the grant of the easement to Tanlane over the panhandle but varied the terms including adding terms that the road bridge and any ramps over Lot 310 to be attached to the road bridge would be constructed to a specified standard, which would permit the road bridge and the ramps to bear the load of large trucks servicing Moorebank's proposed MRF: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, (2012) 16 BPR 31,257 at [256] (the Tanlane Case). The Court of Appeal ruled that the easement should not be imposed until the compensation payable pursuant to s 88K(4) has been assessed and that the compensation is to be not less than $26,500. I note that, following assessment, the easement does not take effect until it is registered: s 88K(7)(a). The Court of Appeal set aside the conditional order imposed by the primary judge referred to above because he thereby effectively failed to determine whether the easement was reasonably necessary in the circumstances which existed at the time of the hearing, and only determined that it would be reasonably necessary if certain events occurred in the future, namely Council's consent to the construction of the ramps: at [97]. It was also held that the conditional order was problematic because terms of an easement must be specified in the order imposing the easement and not in an order or undertaking independent of the easement: at [99] citing 117 York Street at 522. 52In the Tanlane Case the Supreme Court considered two alternative accesses proposed between the Tanlane land and Brickmakers Drive. The alternative for which Moorebank contended was called "the Marshall plan" (after its designer) and was over Lot 309. The Marshall plan did not require a road bridge but was for a surface road over Lot 309 from the panhandle to Brickmakers Drive. It could not co-exist with the road bridge over Lot 309 which Tanlane had development consent to construct and for which the Supreme Court granted Tanlane an easement over the panhandle. The alternative was for up and down ramps over Lot 310 to be bolted to either side of the bridge on Lot 309 (Ramps A). The Court of Appeal's decision killed the Marshall plan. The Court of Appeal was at pains to keep Ramps A alive for it imposed terms on the Tanlane easement that not only the bridge but the ramps be constructed to a specified standard, which would enable them to carry the loads of the large trucks that would service Moorebank's proposed MRF. There was no inquiry by the Court of Appeal into whether the proposed MRF was suitable for the area or any other aspect of its merits. 53Soon after the Court of Appeal's decision, Moorebank commissioned Cardno to prepare engineering drawings for an alternative ramps proposal. The Cardno drawings provide for up and down ramps with both ramps connecting not to the road bridge itself but to the embankment to the bridge about 30 metres from Brickmakers Drive (Ramps B). It is Ramps B for which Moorebank now primarily contends. Ramps B involves a little more land take in Lots 310 and 308 than Ramps A. 54Because Ramps B connects to the embankment rather than to the suspended structure of the bridge, it has advantages for Moorebank compared with Ramps A. First, it has the economic advantage that it is not dependent on Tanlane's construction of the road bridge, except for the embankment which would be constructed by Moorebank if it is not constructed first by Tanlane. Thus, Moorebank can control the timing of its ramps development without being the handmaiden to Tanlane's road bridge development. If Tanlane has not constructed the road bridge by the time Moorebank is ready to construct the ramps, then under Ramps A Moorebank would have to construct two spans of the road bridge at an additional estimated cost of about $2 million, to which the ramps would be bolted. The construction and cost of those spans would otherwise be borne by Tanlane. Tanlane says that that is a purely hypothetical risk because it wishes to get on with constructing the road bridge but cannot do so until the Supreme Court assesses compensation for the Tanlane easement and that it has been frustrated for years in getting on with it by Moorebank's forensic opposition to the Tanlane easement. Nevertheless, future circumstances, including the economic climate, are sufficiently uncertain that I think the risk is real. Secondly, Tanlane is related to the Benedict Group which conducts an MRF on the Tanlane land as well as a sand extraction operation. Benedict is one of Moorebank's competitors and would be its major local competitor upon operation of an MRF on the Moorebank land unless the MRF on the Tanlane land ceases. If it were to be decided that the industrial activities on the Tanlane land would continue, Tanlane could decline to construct the road bridge. The bolts in Ramps A deliver to a competitor potential control over Moorebank's development. Ramps B has a potential economic advantage for Tanlane in that Moorebank would pay for the embankment, which would otherwise be payable by Tanlane if Moorebank were to construct the ramps before Tanlane constructed the road bridge pursuant to Tanlane's construction development consent. 55In the Tanlane Case at [202] the Court of Appeal summarised Moorebank's position in relation to the Marshall plan as one involving Moorebank applying for a s88K easement subject to a Part 3A owner's consent term and then obtaining approval for that means of access from PAC under Part 3A, as follows (the references to the "2A land" and the "7(c) land" are to respectively, Lots 309 and 310) (emphasis added): 202 The position, in our opinion, can be summarised as follows: (i) At the present time, having regard to the position adopted by the Council as expressed in its letter of 14 July 2011, Moorebank cannot proceed further with the Part 3A Application because it cannot obtain Council's consent to access the 2A land to carry out the work necessary to implement the Marshall plan. This is because the Planning Authority has indicated it will not proceed further until it has that consent. (ii) Thus, for Moorebank to proceed further it will be necessary for it to obtain an easement under s 88K of the Act to construct a road on the 2A land and to use it for vehicle access, including vehicle access for trucks used in the recycling business. It is only if such an easement is granted that the Marshall plan can be taken any further. Moorebank could seek as a condition of the easement that Council provide to the Planning Authority its consent to the carrying out of the necessary works: 117 York Street supra at 522. (iii) Having regard to the terms of the resolution of 15 June 2011 and the Council letter of 14 July 2011, Council would oppose the grant of the easement. (iv) In any application for the grant of an easement significant questions of public interest would undoubtedly arise. Mr Kennan's view as to the suitability of the Moorebank site for a recycling facility may well be disputed in such proceedings. Further, the Court would have to take into account the fact that the grant of the easement would frustrate the Development Control Plan and at least significantly diminish the prospect of the development of the Tanlane land, in circumstances where it has at least obtained consent to a mode of access to and from Brickmakers Drive to enable such development to take place. Aligned to this, as no easement is sought over land owned by Tanlane, the Court in our opinion, would not have power to order any compensation for any loss Tanlane suffered by virtue of the imposition of the easement on its ability to develop the land. Even if this is not relevant to the public interest it will be a matter relevant to the discretion whether or not to grant an easement. (v) Further, although Mr Kennan may well be correct as to the desirability of separate access points for the Tanlane and Moorebank development (see par 4.2.3(a) of the joint expert report set out in par [193] above), on the material available the only alternative proposal, namely, Davy Robinson Drive is not a realistic proposal. (vi)Even if the easement over the 2A land was granted, Moorebank would still need to obtain development consent from the Planning Authority to the recycling facility on conditions acceptable to it. 56The Court of Appeal from [202(vii)] summarised Moorebank's position in relation to the ramps proposal as one where it was extremely likely that Moorebank would have to obtain a section 88K easement subject to a Part 4 owner's consent term and then obtain a Part 4 ramps development consent from Council or, on a merits appeal against refusal, this Court (emphasis added): (vii) Contrary to Tanlane's submission, in our opinion the position of Council expressed in the resolution of 15 June 2011 and the 14 July 2011 letter extends to the Ramps proposal. The resolution referred to both Lots 309 and 310 and stated in terms that Moorebank's proposed use was incompatible with the current planned residential and recreational use of the area. (viii) For the Ramps proposal to be implemented, Moorebank would need to lodge a development application with Council which would require Council's consent as owner of the 7(C) and 2A land. Mr Mitchell acknowledged that Council may decline to give such consent. In our opinion it is extremely likely that Council will decline to grant it. (ix) If Council decided to reject the development application under cl 51(1)(b) of the Regulations under the EPA Act and refused to review that decision under s 82A of that Act, then Moorebank's only option would be to seek an easement under s 88K over the 7(C) and 2A land. The grant of an easement of this nature would not affect the access to Brickmakers Drive by occupiers of land to the east of the panhandle, but there may be public interest considerations in granting an easement over the environmentally sensitive 7(C) land. If such an easement was granted, a condition that the Council grant owner's consent to the development application could be imposed. Moorebank would then need to lodge a development application. If Council rejected the development application Moorebank could have a right of appeal to the Land and Environment Court under s 97 of the EPA Act. (x) If Council rejected the development application lodged without consent under s 80(1)(b) of the EPA Act or there was a deemed refusal for lapse of time under s 82(1) of that Act, Moorebank could appeal to the Land and Environment Court under s 97 of the EPA Act. That Court is entitled to exercise the powers and discretions of Council by virtue of s 39(2) of the Land and Environment Court Act 1979, including the power to give owner's consent: Sydney City Council v Claude Neon Pty Limited (1989) 15 NSWLR 724 at 732; Sydney City Council v Ipoh Pty Limited, supra at [9], [10] and [34]. The Land and Environment Court also has power, in a case where it determines to grant development consent under s 97, to provide for an easement necessary to give effect to the development (Land and Environment Court Act s 40). (xi) As we indicated earlier Mr Kennan's principal concerns about the Ramps proposal seemed to be that it encroached on the environmentally sensitive 7(C) land and the desirability of separate access points for the Moorebank land and the Tanlane land. Mr Kennan's ultimate evidence was he doubted Council would give consent to the lodging of a development application for the ramps. Mr Mitchell by contrast stated that the Ramps proposal was the preferable option to the Marshall plan but acknowledged that Council as landowner may resist it. 57Two comments may be made. First, the Court of Appeal thought it "extremely likely" that Council would decline to give owner's consent to the lodgement of a Part 4 development application with Council for a ramps proposal: at [202 (viii)]. This forecast has turned out to be incorrect for that is what Council gave owner's consent to during the hearing before me in conjunction with consenting to the easements sought. Secondly, it is unclear why the Court of Appeal thought that Part 3A would be the approval route for the Marshall plan construction and use but Part 4 would be the approval route for ramps construction and use. In fact, Moorebank wishes to make a Part 3A application for construction and use of ramps. 58In May 2013 the Supreme Court postponed a hearing date for the assessment of compensation in the Tanlane Case until after the s 88K matter before me is determined: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545 (Rein J). The reason for the postponement was that Moorebank indicated that it may wish to claim compensation of $19.1 million if it cannot progress its Part 3A MRF application because it cannot access Brickmakers Drive through its s 88K application in this Court: at [23], [29]. 59On 27 March 2013 Council resolved to investigate alternative zoning options for the Moorebank East precinct to better reflect the emerging recreation and residential precinct and environmental value of the area. On 29 May 2013 (during the hearing before me) Council resolved to initiate an amendment to LEP 2008 to rezone the Moorebank land from E2 to RE2 and remove item 11(permitting an MRF with consent) from Schedule 1, and to forward a planning proposal to the Department seeking gateway determination. MOOREBANK'S PART 3A APPLICATION 60Section 75B (within Part 3A) of the EPA Act provides: 75B Projects to which Part applies (1) General This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies: (a) by a State environmental planning policy, or (b) by order of the Minister published in the Gazette. The carrying out of particular development, or development for a program or plan of works or activities, may be so declared. (2) Kinds of projects The following kind of development may be declared to be a project to which this Part applies: (a) major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance, (b) major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part. (3) Related development If part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. ... 61Pursuant to s 75B(1)(a), in December 2005, on Moorebank's application, the Minister for Planning by his delegate declared the MRF project as a project to which Part 3A applied. The declaration described the development as being on the Moorebank land. The effect was that the approval authority for such development became the Minister or the Minister's delegate (now PAC) not Council. 62This opened the way to Moorebank in May 2006 making a Part 3A application for approval of an MRF on its land. That application likewise described the development as being on the Moorebank land. The proposed MRF has an annual capacity of 500,000 tonnes. 63As mentioned earlier, in June 2006 Council granted development consent for bulk earthworks on part of Moorebank's land, required for the purpose of construction of the MRF. In May 2008 Council extended the lapsing period of that consent. 64In August 2008 the Roads and Traffic Authority wrote to a Moorebank consultant advising that it would not permit Moorebank to have temporary access to Newbridge Road via the panhandle to service the proposed MRF. 65In August 2006 the Director-General's delegate wrote to Moorebank attaching the Director-General's requirements (DGRs) under Part 3A. The letter included the following statement: The Department understands that site access issues are yet to be resolved. Consequently, you are required to ensure that suitable site access agreements are in place prior to the lodgement of the draft Environmental Assessment. The attached DGRs included the following as one of the "Key Issues": Site access - demonstrate that suitable arrangements have been made to secure access to the site, including written evidence of the relevant landowner's consent to the proposed site access works. 66This was reiterated in a letter in July 2008 from the Director-General's delegate to Moorebank and in the attached modified DGRs. 67On 22 December 2008 Moorebank wrote to Council in the following terms: Moorebank Recyclers Pty Ltd, the owner of Lot 6, DP 1065574, Newbridge Road, Moorebank, is currently preparing an application for the establishment of a "Materials Recycling Yard" on that land. At its meeting of 25 February 2002, the Council adopted the Moorebank Structure Plan which sought to provide guidance with regard to the future development of the land owned by Boral, Moorebank Recyclers, Tanlane (Benedict Sands) and Flower Power. Part of the Moorebank Structure Plan was for all future development of the land to the east of the Boral land to be accessed not by way of Newbridge Road but via an accessway which was to be dedicated to Council by Boral as part of the redevelopment of the former Boral brick pit. The access corridor is now known as Lot 309, DP 1118048 which connects to Brickmakers Drive which is known as Lot 308, DP 1118048. We understand that both Lots 308 and 309, DP 1118048 have been dedicated to the Council. The proposed "Materials Recycling Yard" on the Moorebank Recyclers land is a "project" pursuant to State Environmental Planning Policy (Major Projects) 2005 and, as such, the Minister for Planning is the consent authority for the proposed development. We have received the Director-General's requirements for the Environmental Assessment to be undertaken as part of the preparation of the project application to the Minister. One requirement of the Director-General is that we obtain landowner's consent for access to the proposed development. As such, we required a letter from the Council giving landowner's consent for the lodgement of the Part 3A Project Application with the Minister for Planning over the abovementioned Council owned land. ... 68On 27 January 2009 Council replied by letter to Moorebank as follows: Re: Landowners Consent - Lots 308 & 309 DP 1118048 - Moorebank We refer to your letter dated 22/12/2008 and confirm that Council grants consent for the lodgement of the Part 3A Project Application with the Minister for Planning in relation to the abovementioned Land for access purposes to the proposed materials recycling yard. 69The Department in an email to Moorebank of 12 October 2011 said: In response to questions raised in our conversation on 5 October 2011, the DGRs require the Proponent to demonstrate that suitable site access has been obtained, including written evidence of the relevant landowner's consent for the proposed site access work. As such, an 'adequate' EA must include land owner's consent for the proposed site access work, not just consent for the lodgement of the Part 3A application. 70In the Tanlane Case the Court of Appeal at [47] and [190] construed Council's 27 January 2009 letter in relation to Lots 308 and 309 as owner's consent "to the lodgement by Moorebank of an application under Part 3A of the EPA in respect of its proposed" MRF, but not "as an agreement to site access to carry out the works necessary to complete the proposal" (meaning, I understand, the Marshall plan). Although Council had given owner's consent to the lodgement of a Part 3A MRF application for access (by the Marshall plan) through Lots 308 and 309, it will not give such consent for access over Lot 310 required for ramps even though that has become the only possible means of access once the Marshall plan was knocked out by the decision in the Tanlane Case. 71In October 2011 the Department sent an email stating that any undetermined Part 3A application in the system after 1 October 2011 would be revoked where an environmental assessment (EA) had not been lodged by 1 October 2013, unless the Director-General determined before then that substantial progress had been made in finalising the EA. 72The second judgment of Young JA was delivered in November 2011. 73Until 2011 Council was supportive of an MRF and the Part 3A application. Three examples suffice. First, in 2006 Council granted development consent to Moorebank for bulk earthworks required to construct the MRF. Secondly, Council rezoned the Moorebank land in 2005 and confirmed that zoning in the LEP 2008, to permit, with consent, an MRF on the Moorebank land. Thirdly, in 2009 Council gave its owner's consent to Moorebank lodging a Part 3A application for an MRF to obtain access over Lot 308 (Brickmakers Drive) and Lot 309. That owner's consent did not extend to consent to construction and use of the ramps over Lot 308 and 309: Tanlane Case at [190]. It was limited to Lots 308 and 309 and did not extend to Lot 310 because at that time Moorebank was pursuing the Marshall plan, which only required the use of those two lots. Under either ramps proposals, Moorebank needs Council's owner's consent to lodging an application for construction and use of the ramps on all three lots, and presses for a Part 3A owner's consent. 74Notwithstanding its 2009 owner's consent, in June 2011 Council changed its mind and resolved to recommend to the State government refusal of Moorebank's Part 3A development application "as the proposed use of this site is incompatible with the current and planned residential and recreational uses of the area", and to inform Moorebank that approval will not be granted for access over part Lot 310 and Lot 309 for the MRF. In July 2011 Council wrote to Moorebank noting (in relation to the Part 3A application) that a key DGR issue related to access, that Council had resolved not to support the Part 3A application, and that approval for access over part Lot 310 and Lot 309 "will not be granted for the proposed project". This resolution and letter extend to the ramps proposal: Tanlane Case at [202(vii)]. This is the genesis of the position that Council takes in these proceedings. 75In March 2012 Mr Kennan for Moorebank wrote to the Director-General of the Department asking three questions: As discussed with Mr Chris Ritchie on 20 March 2012, our client, Moorebank Recyclers, seeks advice from the Department as to the approvals process for access to the subject land. Having regard to the detail provided below and in the attachments to this letter, the question which is posed by Moorebank Recyclers is: Is the Minister for Planning and Infrastructure the consent authority for: (a) the application for a Materials Recycling Facility on Lot 6, DP 1065574, (b) a road on Lot 309, DP 1118048, and (c) use of Lot 308, DP 118048. ... 76On 7 June 2012 the Department replied: ... Firstly, the Department confirms that the Minister for Planning and Infrastructure is the approval authority for the Project, which involves the construction and operation of a materials recycling facility on Lot 6 DP 1065574 Newbridge Road, Moorebank. However, the operation of the proposed Project would require suitable site access, including over land owned by Liverpool City Council (Council) on Part Lots 308 and 309 in DP 1118048. As a relevant landowner for part of the Project's access road, Council is required to provide landowners consent for the lodgement of the Project and approval to access the land to build and use the road. In relation to landowners consent, it would appear to the Department that Council has granted its landowners consent under Clause 8F of the Environmental Planning and Assessment Regulation 2000. However in addition to providing landowners consent, the Director-General's Requirements for the Project specifically requires the Proponent demonstrate that suitable site access arrangements have been made to secure access to the site. At this stage and based on Council's advice provided to the Department in its letter dated 14 July 2011 (see copy attached), the Department does not consider that the Proponent has complied with this component of the Director-General's Requirements. 77On 11 December 2012 Moorebank submitted a draft EA to the Department under Part 3A. It provided for access to Moorebank's proposed MRF across Lot 309 by the Marshall plan. However, as stated earlier, under the decision on 21 December 2012 of the Court of Appeal in the Tanlane Case the Marshall plan was no longer possible. 78Moorebank submitted the EA to the Department on 25 February 2013. Between late February and early April 2013 it was on public exhibition. The EA wrongly identified the proposed access to the MRF as the Marshall plan. During the hearing before me, Moorebank adduced affidavit evidence from its planner, Mr Kennan, explaining this misstatement in the EA. The explanation was that following the Court of Appeal's decision Mr Kennan told an officer of the Department that as a result of that decision the Marshall plan was no longer achievable if the road bridge were to be constructed and that Moorebank proposed to amend the EA to incorporate the Ramps B plans when completed. The officer told Mr Kennan that due to the time frame the Department had set for completion of Part 3A matters, it would not be possible to amend the EA to substitute ramps for the Marshall plan, but that an amendment to the EA could be made to make reference to an alternative access which is being investigated. This limited amendment was made to the EA before it was exhibited. 79On 8 February 2013 Moorebank's solicitors wrote to Council contending that access arrangements for the proposed MRF formed part of the Part 3A application and that, accordingly, there was no need for Moorebank to lodge a development application with Council for those works. The letter also requested Council's owner's consent to the lodgement of an amended Part 3A application. On 20 February 2013 council replied requesting a copy of the proposed application. There was no reply. 80On 19 April 2013 the Sydney Regional Development Advisory Committee wrote to the Department concerning Moorebank's Part 3A application making a number of recommendations and stating them as RMS requirements. Moorebank accepts before me, and I agree, that these recommendations and requirements are likely to be accepted by PAC as terms of any Part 3A approval of the MRF. Recommendations 8 and 9 are as follows: 8. Traffic control facility at Brickmaker Drive and Link Road intersection should be provided to Council's satisfaction. 9. The proposed "No left turn" sign from the link Road into Brickmaker Drive should be referred to Council for approval. Considerations should be given to negative implications to the Marina Development. 81By letter dated 12 April 2013 the Department requested Moorebank to provide the response to the issues raised in submissions, a (statutory) preferred project report if changes were proposed to the project to minimise its environmental impacts, and a revised statement of commitments. 82In May 2013 the Environment Protection Authority made a submission to the Department, with which I agree, that "if residential development is not yet approved for this [Tanlane] site then it would be unreasonable for EPA to not support the proposed [MRF] facility because approval for residential development is not guaranteed or may not occur for some time in the future. In addition...noise mitigation measures...could be incorporated in any residential approval". 83On 28 May 2013 (during the hearing before me), Moorebank's planner, Mr Kennan, submitted to the Department that access over Lots 308 and 309 was part of the Part 3A application. The Department's reply the next day was that (on the basis of the information provided), the Minister will consider the access arrangements to the site as part of the Part 3A application and if the Part 3A application is approved the proposed ramps access arrangements will form part of the terms of a Part 3A approval. 84Mr Kennan in an affidavit of 29 May 2013 deposed that he had instructions that the Part 3A application will be amended by way of a preferred project report (pursuant to s 75H(6) of the EPA Act) by changing the proposed access route from the Marshall plan to Ramps B, as well as in other respects apparently intended to meet certain merits issues that were raised during the hearing. He said he envisaged that the preferred project report would be ready in approximately two weeks. In discussion with counsel at that time, I raised the question whether it would be necessary for the Minister's 2005 declaration to be amended by amending the development described therein so as to include access over Council's land and Ramps B. 85That is what then happened on the last scheduled day of the hearing on 11 June 2013. In the last hour of that day during submissions in reply, Moorebank tendered and I admitted over objection the Minister's "Amendment of project declaration" of the same date. It extends the project to access over the Council land in accordance with the ramps proposals. It is in the following terms: Amendment of project declaration Section 75B (b) of the Environmental Planning and Assessment Act 1979 I, the Director-General of the Department of Planning and Infrastructure as delegate of the Minister for Planning and Infrastructure, in pursuance of section 75B (5) of the Environmental Planning and Assessment Act 1979 (as continued in force by Schedule 6A to that Act), amend the Project declaration made on 19 December 2005 in relation to the proposal to construct and operate a demolition and construction waste recycling facility at Lot 6 DP 1065574 Newbridge Road, Moorebank, by replacing the development described in the Schedule to the "Record of Minister's opinion" dated 19 December 2005 with the development described in Schedule 1 to this instrument. Dated 11th June 2013 Sam Haddad Director-General Department of Planning and Infrastructure As delegate of the Minister for Planning and Infrastructure (Instrument of delegation published in Gazette No 95 of 28 September 2011 at page 5685) SCHEDULE 1 A proposal to construct and operate a demolition and construction waste recycling facility at Lot 6 DP 1065574 Newbridge Road, Lots 308, 309 and 310 DP 1118048 Moorebank, generally as described in: + A letter dated 12 October 2005 from Nexus Environmental Planning Pty Ltd on behalf of Moorebank Recyclers Pty Ltd to the Department of Planning; and + An email dated 4 June 2013 (received at 12:33pm) from Nexus Environmental Planning Pty Ltd to the Department of Planning and Infrastructure And including any development that is ancillary to the above 86The email of 4 June 2013 referred to in Schedule 1, which was from Moorebank's planner Mr Kennan, enclosed the Ramps B plans and is in the following terms: As I have discussed with you previously, as part of the response to submissions following exhibition of the Part 3A Environmental Assessment, and indeed the decision of the Court of Appeal to grant an easement for Tanlane over the Moorebank access handle, it is clearly the case that the access arrangement proposed in the Environmental Assessment cannot be achieved. As such, Moorebank is proposing as part of the Preferred Project Report which is currently being prepared, to provide an alternative form of access in the form of ramps connecting to the abutment of the approved Tanlane road bridge as referred to in the Environmental Assessment. To assist, I attach a copy of the plans of the now proposed access. Please be advised that Moorebank Recyclers now wishes to amend the Part 3A application such that the Project applies to Lots 308, 309 and 310, DP 1118048 in addition to Lot 6, DP 1065574. We seek confirmation from the Department that the Part 3A can be amended as proposed. 87These documents strengthen Moorebank's submission, considered below, that it would be futile to impose a Part 4 owner's consent term because s 75R(1) of the EPA Act make a Part 4 consent unlawful whilst it has a Part 3A application pending which includes the ramps. I accept it is likely that Moorebank will soon carry out its intention to amend its Part 3A application via a preferred project report. The tender of these documents led the respondents to object to their admissibility and to submit that if they shut the door to the Part 4 route for the ramps, the proper response was not to grant any easements. 88Other communications between Mr Kennan and the Department on 4 and 5 June 2013 were later unearthed leading to a further short hearing. They included an email from the Department to Mr Kennan to the effect that although it considered access arrangements to be covered by s 75B(3), it was recommending to the Director-General to amend the original s 75B declaration to include the Council land and the proposed works in order to remove any doubt as to the scope of the works. Tanlane submitted inferences should be drawn that (a) the original Part 3A declaration and application did not include the design and construction of ramps over Lot 310; (b) the timing of Mr Kennan's emails of 4 June 2013 was for the purpose of forensic advantage after the conclusion of submissions in chief by Moorebank so as to advance its argument that Part 3A and s 75R would prevent the Part 4 route in order to create a further obstacle; (c) the project may be amended and reduced to not include design and construction of the access ramps; and (d) lack of evidence of a request by Moorebank to the Department to reduce the scope of the Part 3A to not include access ramps infers Moorebank's lack of good faith in disenabling Council's offer to be accepted. I draw the first and third inferences independently of these documents (the first by construing the original Part 3A declaration and application). I accept the second inference. I reject the fourth. Moorebank was not under a good faith obligation to channel a ramps construction and use application down the Part 4 route; it is open to it to make the proposed amended application; and it was open to the Minister to make the amended declaration. The lateness of all this has caused procedural inconvenience in the case and was to obtain a forensic advantage but does not provide a sound basis for declining to grant the easements or for saying that Moorebank has acted in bad faith. 89Moorebank did little to advance its Part 3A MRF application between 2006 and 2012. That delay has resulted in this expedited hearing in order to meet the Department's intention to have all Part 3A applications determined by 30 June 2013. However, Moorebank's explanation, which I accept, for the delay is that it was awaiting the outcome of the Court of Appeal's decision in the Tanlane Case in the hope that the Marshall plan would be upheld. It says that it was the Tanlane Case that impacted upon its Part 3A application, not (as Tanlane submits) vice versa. 90On 19 June 2013 I made a consent order that the parties' experts confer and endeavour to reach agreement on a preferred design for the ramps within seven days. This was later extended to eight days (ie until today). As at 24 June 2013 Moorebank reported that its preferred project report under s 75H(6)(b) incorporating amendments including Ramps B was ready for submission to the Director General subject to (a) waiting to see if the experts reached agreement on the design and (b) if they agreed, obtaining final comments thereon from Moorebank's experts. Moorebank anticipated submission of the preferred project report within two weeks after receipt of the experts' report as to the design and that, by reference to a PAC publication "Procedures for Decision Making", this would be followed by public exhibition of the preferred project for two weeks, determination of the application following consideration of the Director General's report under s 75I, possibly a PAC decision to hold a public meeting on 14 days notice, and its determination as soon as possible thereafter or at the public meeting. EXPERT EVIDENCE 91Expert evidence was adduced from structural engineers, hydrologists, ecologists, traffic experts, acoustic experts, air quality experts, planners and valuers. The valuers, and subsequently the parties, agreed that the compensation payable for the grant of the proposed easements is $25,000. 92Last week a consent order was made that the structural engineers, hydrologists and traffic experts should meet and attempt to agree on a preferred design for the construction of a ramp and bridge abutment and traffic control works at the intersection of Brickmakers Drive and Lot 309 within 7 days. That was later extended to today. Although their report virtually coincides with publication of this judgment and therefore is too late for analysis in this judgment, there is no suggestion that this affects, or should delay, publication of this judgment. The subject matter of their report and much of the expert evidence adduced goes beyond anything that has to be determined in these proceedings. Much of it involves an intensity of merits analysis which is appropriate to a consent authority's consideration of a development application for construction and use of the ramps and the MRF. I am satisfied that it is reasonably open to a consent authority to grant approval for construction and use of the ramps and that there is a realistic chance of obtaining such approval, and that any impacts on the Council land or the area are capable of being managed through conditions attached to any development approval. Engineers 93The structural engineers are in general agreement including that both ramps proposals are unlikely to have any adverse flood impacts, Ramps A will be considerably more expensive given that two spans of the bridge have to be constructed by Moorebank (this assumes Tanlane has not already constructed them), both ramps proposals allow either Tanlane or Moorebank to complete their access first, and the size of the easements can be made to comply with the consent authority's requirements. Hydrologists 94The flooding experts agree that the construction of the proposed ramps will not have a significant impact on flood levels upstream of the proposed ramps. They recommend a more detailed flood study. Ecologists 95The ecologists agree that Ramps B is likely to result in a loss of 0.22 ha of RFEF, requiring some offsetting which could be the subject of conditions of approval granted by PAC. Traffic experts 96The traffic experts agree that RMS concurrence to traffic signals at the intersection with Brickmakers Drive would be required. They disagree as to the design of the ramps connections shown on the Ramps B plans, relating mainly to queuing on the bridge because of the need for lights. Queuing would occur beyond the entry points of both ramps proposals to the traffic stream. Three of the four traffic experts agree that Ramps B provide a better traffic outcome. Merging of general traffic with recycling trucks creates safety issues and requires design in order to be managed. As proposed by Council's expert, Council submits that neither Ramps A nor Ramps B is wholly satisfactory and that a better solution may be to construct ramps on Council land not covered by the proposed easements, by moving the beginning of the up ramp a little further south to enable a lesser gradient or moving the beginning of the down ramp a little further north to avoid difficulties with the interaction between the down ramp and the intersection. This is one of the matters that the experts are likely to address in their report due today. Such matters are relevant to the approval authority's consideration of a development application for the ramps. 97I do not need to resolve these traffic issues. I am satisfied that what is proposed (access by Lots 309 and 310) is practically possible, that it would be open to a consent authority to approve a development application for the ramps, and that such an application is not hopeless. Acoustic experts 98On the evidence of the acoustic experts, I am satisfied that the noise impacts from use of the bridge, ramps and access road can be managed by noise mitigation measures as conditions of any development approval. In May 2013 the Environment Protection Authority (EPA) made a submission to the Department, with which I agree, that "if residential development is not yet approved for the [Tanlane] site then it would be unreasonable for EPA to not support the proposed facility because approval for residential development is not guaranteed or may not occur for some time in the future" and that noise mitigation measures could be incorporated in any residential development approval. Such noise mitigation measures are expressly contemplated in DCP 2008. Air quality experts 99The air quality experts agree that NSW air quality assessment criteria are unlikely to be exceeded. They agree that the MRF should implement air quality measures that could be made the subject of conditions of a development approval. Planners 100The evidence of the planners was largely directed to their interpretation of various planning documents, about which the Court can form its own view. Mr Mitchelll (Tanlane's planning expert) proffered opinions about problems he perceived that I think are outside his area of expertise, irrelevant or outweighed by the evidence of other experts in various disciplines that noise impacts may be managed by noise mitigation measures, traffic issues can be addressed, potential flooding impacts will be minor, disturbance of threatened species or plants is unlikely and can be managed, engineering issues to which he refers can be resolved, and direct emissions from the proposed facility appear to be at acceptable levels. 101The respondents' planners opined that an MRF is no longer a development that is appropriate to the area. I disagree for reasons discussed later. They dwelt on Council documents in the mid 1990's and Moorebank communications in the mid 1990's and 2004 (to which I have referred) in connection with the rezoning application indicating that use of an MRF on the Moorebank land would be for a limited period. However, the fact is that the Moorebank land was rezoned in 2005, and confirmed in the LEP 2008, for an MRF without a sunset limitation on use. It is a matter for the approval authority, if it grants approval for an MRF, whether to impose a sunset condition on use. SECTION 88K CONVEYANCING ACT 1919 102Section 88K of the Conveyancing Act 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. (6) Such an easement may be: (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect: (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court. 103Section 88K raises five questions: (1)Is the proposed easement "reasonably necessary for the effective use or development" of the applicant's land: s 88K(1)? (2)Is the Court satisfied that the use of the applicant's land "will not be inconsistent with the public interest": s 88K(2)(a)? (3)Is the Court satisfied that the owner of the servient tenement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement: s 88K(2)(b)? (4)Is the Court satisfied that the applicant has made all reasonable attempts without success to obtain the easement or an easement having the same effect: s 88K(2)(c)? (5)If the above four preconditions are established, should the Court exercise its discretion to impose an easement: s 88K(1)? 104The first four matters are conditions precedent to the fifth - the exercise of the Court's power to impose an easement - and therefore are jurisdictional facts. The first matter is objective. The second, third and fourth are subjective: that is, they are concerned with the primary judge's subjective state of mind being a state of "satisfaction". The question on judicial review of a subjective jurisdictional fact is not whether the reviewing court thinks that the state of satisfaction was unreasonable but whether it was so unreasonable that no reasonable body could have had that state of satisfaction; the latter requires something overwhelming: Notaras v Waverley Council [2007] NSWCA 333, 161 LGERA 230 at [124]. 105A leading decision on the meaning and application of s 88K is that of Hodgson CJ in Eq in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504. There the plaintiff sought an easement under s 88K for the tail of a crane (to be used in the construction of a multi-storey building) to pass through the air space of land being common property of a strata title building owned by the defendants. It was proposed to erect the crane on a public street but consent to do so from the relevant consent authority was not forthcoming without owner's consent from the defendants. Hodgson J granted the easement on terms including a term that the defendants, on the written request of the plaintiff or its solicitors, forthwith given their written consent to the making of a development application under the EPA Act for the erection in the public street referred to in the easement and its use within the airspace of the defendants' land in the manner contemplated by the easement: at 522. His Honour held that the grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment; that such ancillary rights include, where appropriate, a right to written consent for the lodging of a development application; that such a right would probably be implied in any event in a statutory grant of an easement; and that to avoid doubt it should be granted expressly: at 521. His Honour emphasised that this did no more than overcome a legal obstacle to the making of a development application, that the defendants were not required to consent to the development itself, and that such a term of an easement leaves the servient owner at liberty to object to the development and to exercise rights under the planning laws. As the easement took effect only upon registration (s 88K(7)), his Honour took the view that it was not appropriate to stay the order creating the easements until appropriate consents had been given (as he had initially contemplated): rather, he ordered that the plaintiff not commence to erect the crane in the public street referred to in the easement until development consent was achieved for such erection: at 522. His Honour held at 508-509: What does "reasonably necessary" mean? It is clear that "reasonably necessary" in s 88K(1) does not mean "absolutely necessary", and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement: Tregoyd Gardens v Jervis (Hamilton J, 25 September 1997, unreported); Goodwin v Yee Holdings Pty Ltd (Windeyer J, 6 November 1997, unreported); Re Seaforth Land Sales Pty Ltd's Land [No 2] [1977] Qd R 317. In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court "is not to judge upon the reasonableness of the particular development". However, that statement is qualified by the words "at least in this case". If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be "reasonably necessary for the effective use or development" of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular proposed use or development would need also to be preferable to the alternatives; but whether or not that it so, it would in my opinion certainly need to be at least reasonable. 106His Honour held at 511-512 I turn to the question of illegality. If use of a proposed easement would be absolutely illegal, or (probably) if it were shown that there was no chance of obtaining a consent necessary to make it other than illegal, then this would in my opinion prevent the Court from finding that the easement was reasonably necessary. However, I do not think that the proposed use in this case is absolutely illegal, nor do I think that there is no chance of obtaining consent. 107In Khattar v Wiese [2005] NSWSC 1014, (2005) 12 BPR 23,235 Brereton J held at [32]: ...the purpose of s.88K would be defeated if, it being equally efficacious to obtain an easement over either of two lots, it could then be said that it was not necessary for it to be obtained over one or the other of them. In such a situation, the applicant may, within reason, select that lot over which it desires to acquire an easement. This may require the court to undertake some evaluation of the alternatives, in order to be satisfied that the applicant's proposal is reasonable as between them, but this need not involve a precise assessment of the respective advantages and disadvantages of each course, nor necessarily acceptance that the applicant's preferred course is objectively superior to the alternatives, so long as it is reasonable. In this, the court may be guided by the inference that an applicant will ordinarily pursue that course which offers the greatest practical and economic advantages for the development, and incur the least liability to pay compensation: a developer's economic interests will powerfully influence it to select the most reasonable course. 108In Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, (2010) 171 LGERA 286 a local council granted development consent to Rainbowforce for a high density residential development subject to a condition that it was not to operate until Rainbowforce satisfied the council that a right of carriageway had been created over adjoining land owned by the respondents. Pursuant to s 40 of the Land and Environment Court Act 1979, under which the Court may exercise the jurisdiction of the Supreme Court under s 88K of the Conveyancing Act, Preston CJ of LEC granted such an easement of carriageway. His Honour at [68] - [83] made the following points by reference to the authorities about the s 88K(1) power (omitting citations): (1)It is a precondition of the exercise of the jurisdiction that there must be a finding that the easement sought is reasonably necessary for the effective use or development of the land which will have the benefit of it. A finding that that pre-condition is met is to be determined objectively and involves the making of a value judgment. (2)The requirement in s 88K(1) is to be satisfied with respect to the particular easement that the Court is considering ordering to be imposed. Section 88K(3) requires the Court to specify in the order, the nature and terms of the easement. The proposed easement will accord with the easement which the applicant has made all reasonable attempts to obtain, or have the same effect as that easement, so as to satisfy s 88K(2)(c). The Court's power to impose an easement under s 88K(1) would extend to amending the proposed easement of the applicant, including so as to ensure the easement which the Court orders to be imposed satisfies the requirement in s 88K(1). (3)The "other land" referred to in s 88K(1) is the land of the applicant for the order. The easement may be reasonably necessary for either the effective use or the effective development or both of the applicant's land. The Court's power to impose an easement is enlivened not only if the easement is reasonably necessary for a particular development or use proposed by the applicant but also if the easement is reasonably necessary for any development or use of the applicant's land, which is within the law. (4)If use or development of land for some planning purpose, such as residential, commercial or industrial purposes, cannot be achieved without the creation and use of an easement for, say, access to the land or services to the land or for drainage of the land, the easement is reasonably necessary for such use or development to be effective. (5)The easement is to be reasonably necessary for the effective use or development of the land that will have the benefit of the easement; it is not sufficient for the easement to be reasonably necessary for the enjoyment of the land by any of the persons who, for the time being, are the proprietors. Accordingly, evidence as to the particular problems that one of the existing proprietors may have, or the hardship suffered as a result of those problems, would not be relevant. (6)The requirement that the easement be "reasonably necessary" does not mean that there must be an absolute necessity for the easement. An easement may be able to be imposed although another means of right of way may exist or possibly even when the land could be effectively used or developed without the easement. There needs to be something more than mere desirability or preferability over the alternative means available. In general terms, the greater the burden the stronger the case needed to justify a finding of reasonable necessity. (7)The proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. (8)The requirement of reasonable necessity does not demand that there be no alternative land over which an easement could be equally efficaciously imposed. It cannot be the intention of the Act that if an easement would be equally efficacious over two pieces of land it cannot be granted over either because it cannot be said that it is necessary for it to be granted over that piece of land as opposed to the other. (9)The requirement of reasonable necessity is to be decided in light of the present circumstances at the time of the hearing of the application for an order. Hence, it would not matter for the purposes of deciding whether the easement is reasonably necessary that the present circumstances were due to the applicant for the order taking a gamble. However, if such reasonable necessity for an easement as presently exists arose from previous unreasonable conduct from the applicant, that could be a discretionary factor counting against the granting of relief. (10)The requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required, in addition to obtaining the easement, for the effective use or development of land, such as obtaining some statutory consent. For example, if an easement in the form of a right of carriageway is created, it may be necessary to obtain development consent under the EPA Act to construct the road in the right of carriageway. The requirement in s 88K(1) does not require that all other obstacles to the proposed use or development of the land that will have the benefit of the easement must have been overcome before the Court has power to grant an easement. Only if use of the proposed easement would be absolutely illegal and there was no chance of obtaining a consent necessary to make it other than illegal, would the Court be precluded from finding that the easement was reasonably necessary. 109In ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71, (2010) 14 BPR 27,317, at [48]-[49] Giles JA (Campbell JA agreeing) held: 48"Reasonably necessary" is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity. 49A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as "convenient". Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement. 110In Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 at [34] Young JA said he broadly agreed with what Preston CJ LEC said in Rainbowforce. On appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at 155 (the Tanlane Case) the Court of Appeal qualified the fourth Rainbowforce point extracted above by saying that the desirability or economic effect of the proposed development on the applicant's land should also be considered. The Court of Appeal at [113] and [154] quoted with approval the passages quoted above from 117 York Street at 508-509 and ING. 111I have touched upon the Tanlane Case earlier. In the Tanlane Case, Tanlane sought an easement over Moorebank's panhandle under s 88K. The purpose of the easement was to allow Tanlane to build the road bridge to provide access via Council's Lot 309 from the Tanlane land to Brickmakers Drive (and thence to Newbridge Road), thus allowing it to pursue a planned residential development on its land. Moorebank opposed the imposition of an easement on the basis that the construction of the bridge would prevent it from gaining access to Brickmakers Drive from its own land across the surface of Lot 309 by the Marshall plan, in particular to pursue the development of a planned MRF on its land. The road bridge could not co-exist with the Marshall plan. Tanlane's answer was that the road bridge be built to accommodate ramps (Ramps A) which would run over Lot 310 to the panhandle, thus allowing Moorebank to access Brickmakers Drive. In 2011 Council determined to oppose Moorebank's proposed MRF and stated it would not consent to Moorebank having access over Council land for that purpose. As Council was landowner, its consent was necessary to effect both the ramps proposal and Marshall plan. Moorebank contended that (a) in those circumstances imposition of the easement sought would lead to the economic sterilisation of its land as the ramps proposal could not be effected; (b) the ramps may not have the load bearing capacity to accommodate the trucks it required for the MRF; (c) Tanlane did not require access to Newbridge Road, as alternative access from its land to a public road was available; and (d) in those circumstances the s 88K(1) precondition for the imposition of an easement that the easement be "reasonably necessary for the effective use or development of [the Tanlane] land", had not been made out. As mentioned previously, the primary judge considered the matter in three judgments delivered between 2008 and 2012 and found in favour of Tanlane, imposing an easement on (inter alia) the condition that Tanlane undertake to extinguish the easement if, despite the best endeavours of the parties, Moorebank was unable to obtain access to Newbridge Road by means of the ramps proposal. Moorebank appealed. The Court of Appeal set aside the order for the undertaking as being beyond power and, subject to a s 88K(4) order for compensation and assessment of compensation, said it would make an order imposing the easement in favour of Tanlane on the other terms ordered by the primary judge but, importantly, adding the following terms with the object of protecting Moorebank's interests under the ramps proposal, at [256]: (ca) The bridge is to comply with AS5100/Bridge Design Code and have the load bearing capacity required by SM1600 referred to in cl 6.2 of Part 2 of the Code.' (cb) The bridge design is to be sufficient to accommodate access ramps to and from the servient tenement themselves having the load bearing capacity required by SM1600. 112The Court of Appeal recognised the following principles in relation to s 88K(1): (1)"reasonably necessary" for the effective use or development of the applicant's land does not mean absolute necessity but means something more than mere desirability or preferability over the alternative means available. The correct approach was stated in 117 York Street: at [154] (quoted above). This requirement was satisfied because (inter alia) there was no other viable alternative access to the proposed development on Tanlane's land other than through the imposition of an easement over Moorebank's panhandle: at [164], [204]. (2)If use or development for some planning purpose (such as residential, commercial or industrial purpose) cannot be achieved without the creation of the use of an easement for, say, access to the applicant's land, the easement is necessary for such use or development to be "effective" subject to consideration of the development's desirability or economic effect: at [155]. (3)In a case "where the easement is said to be necessary for the commercial development of the land, it is sufficient...to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land": at [155]. Use or development of the Tanlane land for a residential planning purpose could not be achieved without the creation and use of the easement for access appropriate to the area and was at least an economically rational use of the Tanlane's land. (4)That is not to say an easement will always be granted in these circumstances because consideration is required of the effect of the grant of the easement on the servient tenement. The greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonably necessity. If the effect of construction of an easement was to effectively preclude a reasonably available development or use of the servient tenement, then it would require a strong case of reasonable necessity before the easement was imposed: at [157]. Ultimately, the question whether the easement is reasonably necessary for the effective use or development of the applicant's land will be determined by an evaluation of the above factors not in isolation but in conjunction with each other: at [159]. (5)For the easement to be "reasonably necessary" for that use and development, as pointed out in 117 York Street, the development with the easement must be substantially preferable to development without the easement. This is particularly the case if the grant of the easement would raise significant detriment to the servient tenement: at [163]. (6)The effect of the grant of the easement to Tanlane would put it out of Moorebank's power to itself obtain a s 88K easement from Council to implement the Marshall plan and then proceed with a development application with access to Brickmakers Drive as set out in the Marshall plan. However, it would be left with the opportunity to take similar steps in relation to the ramps proposal, which, if anything, would seem to hold better prospects of success than the Marshall plan. In these circumstances, the Tanlane easement was reasonably necessary for the use and development of the Tanlane land: at [203] - [204]. 113The Court of Appeal's decision, as the latest appellate authority, is important not only for the principles which it recognises, but also for application of the principles to the facts of the case: (a)Tanlane was granted an easement for access over Moorebank's panhandle to enable Tanlane to construct a road bridge for which it had obtained development consent to construct but not use. (b)The Court of Appeal attached terms to the order imposing the Tanlane easement which required both the bridge and its access ramps to have the load bearing capacity required by SM1600 referred to in cl 6.2 of Part 2 of AS5100/Bridge Design Code. This was in order to accommodate the trucks required for Moorebank's proposed MRF on its land: at [177] - [185], [256]. (c)Use and development of the Tanlane land for residential purposes was held to be an "effective use and development" within s 88K(1) because, (i)the Tanlane land was rezoned for that purpose in 2008; (ii)DCP 2008 approved at the same time referred to a proposed subdivision to a maximum of 216 dwellings on Tanlane's land and the social and environmental benefits to be derived from the subdivision; and (iii)when a comparison is made between a subdivision in accordance with the DCP 2008 and a non conforming use pursuant to existing use rights for excavation and recycling, it must follow that the proposed development is at least reasonable compared to the alternative: at [160] - [162]. 114I do not think that there is no chance of obtaining approval for the proposed MRF on the Moorebank land. On the contrary, if it is necessary to go further, I consider that Moorebank has a substantial prospect of obtaining such approval if appropriate access is provided. The Moorebank land is zoned to permit an MRF, the Minister has paved the way toward a Part 3A approval by recently making an amended Part 3A declaration, and the consent authority is not the Council but the PAC, which is not bound by Council policies including as those contained in the 2008 LEP or the Development Control Plan. 115Planning witnesses for the respondents expressed an opinion that if development consent were granted for an MRF on the Moorebank land, it would only be for a short or medium period because of the reference to 2018 in cl 11 of Schedule 1 of the 2008 LEP. Apart from the fact that the Minister and PAC are not bound by the LEP in the Part 3A context, I disagree that cl 11 has anything to say about restricting the period of the use. The 2018 reference only means that development consent has to be obtained by then. CONSIDERATION 116In my opinion, s 88K should be construed in accordance with the principle of statutory construction that statutes enacted by the same legislature "are to be construed so far as possible to operate in harmony and not in conflict": Commissioner of Police v Eaton [2013] HCA 2, (2013) 87 ALJR 267 per Gageler J. It is harmonious to construe s 88K as far as possible so that it does not require determination or consideration of matters that are required to be determined or considered by an approval authority under State planning laws. Section 88K(1): reasonably necessary for the effective use and development of the Moorebank land 117In summary, Moorebank submits that: (a)as Council accepts, the easements sought by Moorebank are necessary for all reasonable uses of the Moorebank land (putting aside whether those uses include the MRF) and this is a sufficient basis on which to grant the easements subject to a Part 3A owner's consent term; (b)alternatively, the effective use and development of the Moorebank land as an MRF satisfies s 88K; (c)Part 4 is ousted because of Moorebank's Part 3A application or proposed amended Part 3A application by s 78R(1) of the EPA Act, therefore a Part 4 development consent for construction and use of the ramps would be unlawful, therefore it is futile to impose a Part 4 owner's consent term; (d)in any event, as a matter of discretion, a Part 3A owner's consent term is preferable to a Part 4 owner's consent term. Council offer 118During the hearing Council's made an open offer by letter dated 28 May 2013. Although I do not think it matters, I doubt that the terms of the offer were sufficiently complete that it was capable of acceptance so as to form a contract. It was changed by a later agreement that compensation payable to Council for the easements under s 88K(4) is $25,000 and by Council's subsequent proposed short minutes of order. The essential element of the offer is that the easements be granted subject to a Part 4 owner's consent term and not subject to an unqualified Part 3A owner's consent term. 119In summary, Council's position as expressed in the offer is as follows: (a)Council accepts it is appropriate that the Moorebank land have road access to Brickmakers Drive over Lots 309 and 310, and that the road access, namely the ramps, have the load bearing capacity required by AS5100/Bridge Design Code. That position is consistent with Council's overall vision for the precinct, that access to all areas east of Brickmakers Drive should be via Lot 309. (b)On that basis, Council consents to orders under s 88K imposing easements for access in favour of the Moorebank land over Lot 309 and part of Lots 308 and 310 on conditions that: (i) the easements do not prejudice the development plans or interests of other landowners east of Brickmakers Drive, particularly Tanlane; (ii) the easements are not imposed on the footing that they are reasonably necessary for the purpose of the proposed MRF, although Council accepts that, if the MRF is approved and proceeds, that is most likely what it will be used for and will not be seeking anything in the design of the ramps that would preclude their use in connection with the proposed MRF; and (iii) Council is not compelled to give landowner's consent to the lodgement of an (extended) Part 3A application in respect of the MRF. Council is prepared to write to the Department of Planning in the terms described in its letter of offer so as to enable the Part 3A MRF application to proceed. (c)Council's approach takes up the Court's suggestion during the hearing that the issue of the desirability or appropriateness of the development of the Moorebank land for the proposed MRF, and the issue of the desirability or appropriateness of Moorebank having access to Brickmakers Drive from its land over Lot 309 and part Lot 310, can and should be treated as separate issues. (d)It will be necessary for planning approval to be granted under either Part 3A or Part 4 of the EPA Act. If, as Council submits, the proposed ramps are not part of the development comprising the Part 3A project, then Part 4 applies and the construction of the ramps is a development that could not be carried out without development consent on any of Lots 308-310 (see the land use table in LEP 2008, which specifies that development for the purpose of "roads" is permitted with consent under both the RE2 and the E2 zonings). Construction of the ramps without development consent would amount to the carrying out of unauthorised development in contravention of s 76A(1) of the EPA Act and potentially would be an offence under s 125 of the EPA Act. (e)There is no justification for orders (i) imposing an easement other than in terms of Council's offer, and (ii) compelling it to give owner's consent to the (extended) Part 3A application in respect of the MRF. (f)Council does not concede that an easement for all uses of the Moorebank land, whatever its condition, is "reasonably necessary" for the purposes of s 88K(1) such that the only question before the Court is what conditions ought to be imposed on such an easement. Rather, Council offers specific easements subject to conditions, including that it is not compelled to give landowner's consent to the Part 3A application. It is the fact of that offer - which provides a way for Moorebank to obtain access to Brickmakers Drive over Lots 309 and 310 - that means the easements on different terms sought by Moorebank are not reasonably necessary for the purposes of s 88K(1). (g)Because Moorebank seeks an order compelling Council to give landowner's consent to the lodging of a Part 3A application for the MRF, it must be a part of Moorebank's case that the MRF is a "reasonable" or "effective" use or development of the Moorebank Land and that it is "appropriate to the area in which (the Moorebank Land) is situated" (Tanlane Case at [155]). Council cannot accept that proposition (particularly in light of the resolutions it has passed) and contests it. Council emphasises that this does not mean it will frustrate the proposed development of the ramps: Council accepts that ramps compliant with AS5100/Bridge Design Code, which will be capable of carrying Moorebank's trucks for the MRF, should be built and that Moorebank should have an unrestricted right of carriageway on them. 120There was a counter-offer by Moorebank including provision for Moorebank to amend its Part 3A application to include ramps and a traffic control facility at the intersection with Brickmakers Drive, that Council give owner's consent to lodgement of a part 3A access application and that Moorebank agrees to pay Council compensation in the sum of $25,000. Council did not accept the counter-offer, although it agreed to the $25,000 compensation. 121Subsequently, Council accepted that if a Part 4 development consent for the ramps were not forthcoming within twelve weeks after lodgement of a development application (being the time Council would require to process the application), a Part 3A owner's consent term would then be reasonably necessary for the effective use of the Moorebank land. Principal issues 122Council submits that as the case has evolved, the principal issues are now: (a)whether the easements offered by Council, if accepted by Moorebank, would enable the "effective use or development" of the Moorebank land (to use Moorebank's language, whether it is "legally and practically workable"). If the answer is "yes", the appropriate course would be for the Court to impose the easements in the terms offered by the Council; and (b)if the answer to (a) is "no", whether the development of the Moorebank land for an MRF is a "reasonable development" or is "appropriate to the area in which the land is situated", such that it would be appropriate and not inconsistent with the public interest for the Court to order that Council give landowner's consent to lodging of the Part 3A application; 123As to the first principal issue identified by Council, Council (supported by Tanlane) submits that Moorebank is able to obtain access and achieve "effective use and development" of its land by accepting Council's offer and therefore the easements on the terms sought by Moorebank are not "reasonably necessary". 124I do not accept the submission. It would give a respondent a power to veto an applicant's proposal in favour of the respondent's proposal. I do not accept that an applicant under s 88K must fail unless it accepts the respondent's proposal. Within reason, an applicant is entitled to select between alternative courses, although this may require the court to undertake some evaluation of the alternatives in order to be satisfied that the applicant's proposal is reasonable between them: Khattar v Wiese at [32]. The court's power extends to changing the easement proposed by the applicant, including so as to ensure that it complies with s 88K(1): Rainbowforce at [69]. Similarly, the court is not bound by a competing easement proposed by the respondent. The court has a discretion as to the scope and terms of any easement imposed and is not constrained by any party's proposal. Importantly, the easements offered by Council are identical to the easements sought by Moorebank. They only disagree on the ancillary owner's consent term for the making of a ramps approval application. In my evaluation, Moorebank's proposal is reasonable as between that proposal and the respondents' proposal. In circumstances where it is open to Moorebank under the planning laws to seek a Part 3A owner's consent (particularly where, as elsewhere considered, s 75R(1) of the EPA Act ousts Part 4 while Moorebank's expanded Part 3A application including access is on foot), I do not consider that s 88K(1) is offended by Moorebank rejecting an offer that in consequence of the imposition of a Part 4 owner's consent term requires it to give up that Part 3A course, backtrack, and go down the Part 4 course. This view may perhaps be fortified if one assumed a situation, which is no different in principle, where the owner of Lots 309 and 310 was not Council but insisted that Moorebank must seek ramps approval from Council under Part 4 rather than proceeding under Part 3A. 125As to the second principal issue identified by Council, Council (supported by Tanlane) submits that an MRF is not an "effective development" of the Moorebank land because it is not "appropriate to the area in which [the Moorebank] land is situated": Tanlane Case at [155]. Reliance is placed on the opinion of the respondents' planning experts that an MRF is inconsistent with the residential development of the area in accordance with Council's long term planning objectives. 126As the respondents accept, access via the road bridge is necessary for any development of the Moorebank land and the proposed easements are reasonably necessary for "all reasonable uses" of the Moorebank land - leaving aside whether reasonable uses include an MRF - in order to permit access via ramps and the road bridge to Brickmakers Drive. And, as the Court of Appeal required in the Tanlane Case, Council also accepts that the road bridge and ramps should have the load capacity required to carry heavy trucks that would service the proposed MRF. This is consistent with Council's vision for a decade that access to all lands in the precinct east of Brickmakers Drive should be via the road bridge on Lot 309. In my opinion, that is sufficient to establish that the easements sought are reasonably necessary for the effective use and development of the Moorebank land. It satisfies the first part of the first test in 117 York Street at 508 that a proposed easement must be reasonably necessary for "all reasonable uses or developments of the land". Planning approval is necessary for construction and use of the ramps whether under Part 3A or under Part 4. In my opinion, whether a Part 3A owner's consent term or a Part 4 owner's consent term (or both) is imposed is not relevant to whether the easements are "reasonably necessary for the effective use and development of" the Moorebank land. Rather, I think it is relevant to the Court's discretion. 127If I am in error and s 88K(1) has to be considered by reference to the MRF, then in determining whether the MRF is an "effective use and development", the threshold set in the Tanlane Case at [155] applies. It is sufficient to show that the proposed development is one which is "appropriate to the area" in which the Moorebank land is situated and is "at least an economically rational use of the land". In the Tanlane Case there was no development application by Tanlane for residential development of its land and it was being used for an MRF. Nevertheless, the Court of Appeal concluded that the future use and development of the Tanlane land for residential purposes was an effective use and development of the land, relying on (a) its residential zoning in 2008; (b) DCP 2008 which referred to the possibility of redevelopment of the Tanlane land for residential and business uses; and (c) the fact that when a comparison is made between a subdivision in accordance with the DCP and a non-conforming use pursuant to existing use rights for excavation and recycling, it must follow that the proposed development is at least reasonable compared to the alternative: at [160] - [162]. 128Whether a development for which an easement is required is appropriate to the area calls for an evaluative judgment. The respondents' planners opined that an MRF is not appropriate for the area given its residential character and the potential impacts of the MRF. My evaluation is that an MRF is appropriate to the area at the present time having regard to the following: (a)The Moorebank land was singled out in the area for rezoning as an MRF in 2005 and this was confirmed as recently as the LEP 2008 - notwithstanding that the DCP providing for residential development of the Tanlane land was made at the same time. (b)Until 2011 Council apparently regarded an MRF on the Moorebank land as appropriate to the area not only because of the introduction of the 2005 zoning and 2008 confirmation of the zoning, but also in other ways by - (i)making it a condition of Tanlane's 2006 development consent for construction of the road bridge that it be designed to carry the load of heavy trucks required for the MRF; and (ii)consenting in 2009 to access over Lots 308 and 309 for the purpose of Moorebank's Part 3A MRF application. (c)The Moorebank land, which is the site of a former tip, is clearly compatible with the current industrial activities on the Tanlane land, which it adjoins. (d)The present residential development in the area is on the other side of Brickmakers Drive. (e)the Moorebank land is screened by the existing vegetation, which has been protected through the Boral site rezoning. (f)Any future development of the Moorebank site will need to take into consideration the environmental, traffic, drainage, acoustic and visual impacts. (g)The Court does not look at the likelihood of the Part 3A MRF application being granted. However, the Court can determine whether there is no chance of it being granted and can consider whether an MRF is desirable compared with other possible uses. It is clear that it cannot be said that there is no chance of obtaining a Part 3A MRF approval. That makes it more difficult to say that an MRF is inappropriate to the area. I also think that an MRF is desirable compared with other possible uses under the zoning. (h)in the Tanlane Case, the Court of Appeal provided for ramps for Moorebank's MFR without any suggestion that it was futile because an MRF was not appropriate for the area and therefore Moorebank could not obtain a s 88K easement. 129Has anything much changed since the 2008 zoning of the Moorebank land for an MRF? Mr Mitchell, Tanlane's planning witness, proffered in evidence that three circumstances had changed since the 2008 LEP: (a)There has been significant residential development in Georges Fair (the Boral land west of Brickmakers Drive). However, as Mr Kennan said, the zoning of Georges Fair for that purpose has existed since 2005 and the development is that which was then expected. (b)Part of the golf course south of the Moorebank land has been zoned residential. However, as Mr Kennan said, if it was thought to be inconsistent with the MRF zoning for the Moorebank land, one would have expected the latter to be rezoned at the same time. (c)A development application has recently been lodged for a marina on the Tanlane land. I do not think any conclusion of inconsistency should be drawn simply from that fact. 130Council evidently did not think an MRF was inappropriate for the area until at least 2011 when it resolved to oppose it. The Court of Appeal in the Tanlane Case noted that this was "prompted by agitation from local residents": at [48]. The Court of Appeal found it unnecessary to deal with the suggestion that it was inspired by opposition from Tanlane and Boral: at [50]. The fact that Council was responsive to local agitation does not establish that objectively anything has changed such that the MRF has become inappropriate for the area. I accept that residential development in the area is likely to expand in the future. The time may come when an MRF on the Moorebank land may be inappropriate to the area. This may (or may not) influence an approval authority, if it approves an MRF on the Moorebank land, to impose a sunset term on the use of the MRF, but that is not a matter into which I have to enter in these proceedings. Other issues 131Council submits that an MRF is not reasonably necessary for the effective use of the Moorebank land because of unacceptable impacts of the Ramps B proposal compared with Ramps A. Council relies upon the evidence of its experts in flood impacts, traffic impacts and ecology. This is contested by the applicant's experts. I have considered the expert evidence earlier. An owner's consent term, if imposed, has nothing to say about whether Ramps B or Ramps A, or a variant, will ultimately find favour with the approval authority. 132Tanlane submits that the MRF proposal is not an economically rational use of the land if limited in time. Mr Kennan agreed in cross-examination that if approval for an MRF was short term (5 years), it would not be an economically rational use of the land. So much may be accepted. If approval were granted for such a short period of use, I have no doubt that the MRF would not proceed because it would not be economically rational. If approval were granted for a substantially longer period that would make it economically rational, then the objection that the MRF would not be economically rational disappears. 133If the focus has to be on the MRF, "reasonable necessity" under s 88K(1) cannot be established if Moorebank has "no chance" of obtaining approval for an MRF: 117 York Street at 511-512. This stops well short of a merits review of the MRF application that an approval authority would embark upon. In my opinion, it cannot be said that Moorebank has no chance of obtaining a Part 3A approval for an MRF on its land. I did not understand the contrary to be submitted. The zoning of the Moorebank land permits an MRF with consent and Moorebank has a body of expert opinion available to support its Part 3A application. 134The respondents' submissions concerning the MRF implicitly assume that a Part 3A approval for the MRF will be granted and do not confront the prospect of conditions being attached to the approval that appropriately address any adverse impacts. PAC's function is to determine whether approval for the MRF should be granted. It is virtually certain that, if approval is granted, it will be subject to conditions that PAC regards as appropriate to deal with potential impacts of the MRF. It is therefore unsafe to conclude that there will be unacceptable adverse impacts: Annwrack Pty Ltd v Williams, NSWSC, 8 February 1989, unreported, which was cited in 117 York Street at 523. In Annwrack the defendant's land was burdened by an easement of carriageway in favour of the plaintiff's land. Waddell CJ in Eq ordered the defendants to consent to the plaintiff making a development application seeking consent to its use of the defendant's land and to enlargements and extensions of that use. The defendants had objected that what the plaintiff proposed would intensify the use of the plaintiff's land and increase the interference experienced by the defendants. Waddell CJ in Eq rejected the objection at 10-12: I pointed out to the parties that the defendants' submission assumed that the plaintiff's application would be granted and that, if granted, there would be no condition imposed which might safeguard the interests of the defendants. It is possible that the application might be refused, or that it might be allowed only in part, and one would like to think probable that conditions would be imposed which would prevent undue interference with the manner in which each of the defendants is entitled to enjoy their respective properties and to exercise their rights of access to and from Mulgoa Road. Having regard to these considerations, it is unsafe to conclude that any of the detriments which this Court can take into account in relation to a claim of excessive user will in fact occur because they may be prevented by the way in which the council deals with the development application. This being so it cannot be said that the fears about the future which the defendants have provide any justification for refusing to give their consent to the application. So far as a continuance of the present detriments is concerned, if the application is granted, these may well be modified by conditions imposed by the council. If the application is refused they will have suffered no adverse effects by having given their consent to the application. On this reasoning no case has been made out to justify the refusal of the defendants to give their consent to the making of the development application so far as it affects their respective lands. In this respect it should be pointed out that the consent sought is only to the making of the application. There is no justification for regarding such a consent as being a consent to the development proposed, nor is this suggested. The defendants would be at liberty to object to the development application and in this respect to exercise such rights as are given to them by the planning laws. 135The respondents submit that an MRF on the Moorebank land is not an effective development because: (a)In 117 York Street at 508 Hodgson J said "the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments"; (b)therefore there is an onus on Moorebank to show that there is not some other commercial or industrial uses available that are preferable to an MRF; (c)although an MRF is the only commercial or industrial use permissible with consent under the current zoning, Moorebank could have secured some other preferable commercial or industrial use by (i) applying for a rezoning, or (ii) seeking a Part 3A declaration and making a Part 3A application referable to that preferable use as a result of which the Minister would not be constrained by the current zoning (s 75R(3) EPA Act); (d)such an application would have substance because there is a 2002 site audit by the Environment Protection Authority which indicates that the site is suitable for commercial/industrial use including a concrete recycling facility; on 27 March 2013 Council resolved to investigate alternative zoning options for the Moorebank East precinct to better reflect the emerging recreation and residential precinct and the environmental value of the area; and on 29 May 2013 (during the hearing) Council resolved to initiate an amendment to LEP 2008 to rezone the Moorebank land from E2 to RE2 and remove item 11 from Schedule 1 and to forward a planning proposal to the Department seeking gateway determination. 136I do not accept the submission. In my view, s 88K(1) does not require an applicant for an easement to go to the extraordinary lengths of seeking to change the law through a rezoning or seeking to persuade the Minister to disregard the existing zoning and make Part 3A declaration for a development that is not permissible without consent or is prohibited under the existing zoning. The outcome of Council's resolution during the hearing to initiate an amendment to the zoning is unpredictable but it is known that the Department, which would be involved in a zoning amendment, appears to be somewhat supportive of the Part 3A application. 137Tanlane submits that Moorebank has not established that the grant of the easements is reasonably necessary because there is no reason to conclude that it could not achieve access by entering into a voluntary planning agreement with Council for access via the proposed road bridge without the need for easements. I do not accept the submission. Until the hearing before me the prospect of any voluntary agreement with Council seemed unlikely given that Council's opposition to the MRF was such that it did not disassociate access for the MRF from access otherwise, as its offer during the hearing did. And the Court of Appeal in the Tanlane Case thought it very unlikely that Council would give owner's consent to a Part 4 application for ramps and it was not until the hearing before me that that consent was forthcoming. It is unnecessary to go further, but the 2008 deed between Council, Tanlane and Boral giving Tanlane exclusive rights of occupation to Lot 309 may contractually restrict Council from voluntarily agreeing to give Moorebank access over Lot 309 without s 88K easements. 138Tanlane makes the following additional submissions as to why an MRF is not an effective development within s 88K(1): (a)If the planning authorities were to refuse the Part 3A proposal on its merits, it must follow that the development is not appropriate (nor is it in the public interest); so having regard to the complexity of the proposal and the uncertainty of whether the project will be approved, the Court is not in a position to find that s 88K(1) is satisfied. I do not accept the submission. I am in a position to pass judgment on the material before the Court. (b)Moorebank proposes to amend its Part 3A application but has not yet done so; having regard to the impacts or potential impacts of the proposal referred to by the experts, the Court cannot be satisfied of the matters in s 88K(1). I disagree for the same reason. (c)The necessity that Moorebank relies upon is the necessity for owner's consent to permit the proposal to be extended under Part 3A to include access over Lots 308, 309 and 310; this is not a necessity within the meaning of s 88K(1); in the circumstances, Moorebank is seeking to have the Court exercise its discretion for an improper purpose and the grant of relief is beyond power. I do not accept the submission. Reasonable necessity under s 88K(1) is not governed by the scope of an ancillary owner's consent term. I can see no improper purpose. (d)The fact that the Ramps A will only give access after Tanlane builds the bridge or if Moorebank builds part of the bridge does not establish necessity; nor does the fact that Moorebank cannot immediately obtain access establish necessity. I do not understand the submission and therefore do not accept it. Part 4 owner's consent term 139The respondents submit that: (a)The Part 4 route is either open or could be made open by Moorebank amending its Part 3A application so as not to include access over Council land and ramps works and use, and that a consequence of it being open is that there is no basis for compelling Council to grant owner's consent to the lodgement of the (extended) Part 3A application. (b)Any impediment to the Part 4 route is one of Moorebank's own making. Therefore, it cannot satisfy the reasonable necessity requirement for the imposition of an ancillary order that the Council, as landowner, consent to its extended Part 3A application. Moorebank's preference is to have the ramps approved under Part 3A rather than Part 4, but that preference cannot justify an order that is required to meet the test of reasonable necessity. (c)There are sound practical reasons why the Part 4 route is preferable to the Part 3A route for considering the planning merits of the proposed ramps: (i)The independent experts retained by Council have considered the planning issues carefully, as is apparent from their reports and joint reports. (ii)The planning issues in relation to the ramps will require consideration of its interaction with the bridge to a greater or lesser degree. Council has granted a development consent to Tanlane in respect of the bridge. If that consent needs to be further modified (for instance, to increase the width of the bridge) to achieve a better design or traffic solution, that could better be achieved under Part 4 than Part 3A. (iii)Council is the owner of the land on which both the bridge and ramps are to be situated. Some of the solutions to the traffic and design issues might require additional access to Council land (that is, beyond the boundaries of the easement sought). There is greater flexibility in dealing with the design issues (particularly the design issues relating to the merger problem identified by the traffic experts) if it proceeds under Part 4. (d)Because the Part 4 route offered could be taken and is preferable, an order is not "reasonably necessary" for a Part 3A owner's consent term and in any event should be refused as a matter of discretion. 140Moorebank submits that there are eleven objections to the Council's proposal for a Part 4 owner's consent term that make it unworkable both legally and practically. Moorebank's first and second objections: lawfulness 141First, Moorebank submits that a Part 4 owner's consent term is futile because, for two reasons, a Part 4 development consent for construction and use of the ramps would be unlawful and invalid: Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152 at [37] - [38]. 142The first reason is said to be that s 75R(1) of the EPA Act ousts Part 4 in respect of an "approved project", which includes steps taken in determining a project application. Section 75R relevantly provides: 75R Application of other provisions of Act (1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project). ... (3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project. ... 143Moorebank submits that three alternative ways lead to s 75R(1) ousting Part 4: (a)First, access over Council's land has always been part of Moorebank's Part 3A MRF "project" on the proper construction of the Minister's 2005 Part 3A project declaration and the letter incorporated by reference in it. It is just the means of access that has changed over time (first Newbridge Road, then the Marshall plan, then the ramps). (b)Secondly and alternatively, s 75B(3) deems access over the Council land to be part of its Part 3A MRF project because that project is part of a "development" and access over the Council land is the other part of the same development. (c)Thirdly, and alternatively, access over the Council land will become part of the Part 3A project when Moorebank amends its Part 3A application to include Ramps B via a preferred project report under s 75H(6), which its evidence at the hearing indicates that it will do this month. (d)Therefore, access over the Moorebank land is ((a) above), or is taken to be ((b) above), or will be ((c) above), an "approved project" and Part 4 of the EPA Act does not or will not apply to or in respect of the approved project: s 75R(1), (3); Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, (2009) 178 LGERA 347 at [102] - [103]. Therefore, by s 75R(1), a Part 4 development application for construction of access works over Council's land under Part 4 of the EPA Act would be unlawful. 144Section 75B of the EPA Act relevantly provides: 75B Projects to which Part applies (1) General This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies: (a) by a State environmental planning policy, or ... (3) Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project. ... (5) Amendment or revocation of declaration The declaration of a project may be amended or revoked at any time (including before or after an approval for the project is given under this Part). 145I do not accept Moorebank's first two ways. They turn on the construction of the Minister's 2005 Part 3A declaration and Moorebank's 2006 Part 3A application, in particular how they describe "the development". In my opinion, they describe the development as being only on the Moorebank land (Lot 6): access over the Council land is separate. 146I accept Moorebank's third way. The Minister's 2013 amended declaration overcomes a potential obstacle raised during the hearing before me as to whether Moorebank's Part 3A application could only be effectively amended to include access over the Council land and Ramps B if the Minister's 2005 declaration was likewise amended. I accept that Moorebank will shortly amend its Part 3A application to the same effect as the amended Minister's declaration. The question then is whether a Part 4 owner's consent term would be futile because, as Moorebank submits, s 75R(1) would make a Part 4 consent for the ramps unlawful. 147The term "approved project" in s 75R(1), by reason of the words in brackets, is not limited to the project as approved but extends to the whole process of approval including the Minister's declaration that the project is a project to which Part 3A applies and the Minister's approval of the project. This extended meaning of s 75R(1), compared with s 75R(3), was noted in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, (2009) 178 LGERA 347 at [102] - [103] per Preston CJ of LEC: 102. I do not agree that the term "approved project" in s 75R(3) bears the extended meaning it is given in s 75R(1). ... 103. The legislative draftsperson did not include in subs (3) the words in brackets inserted after "approved project" in subs (1). The words in brackets cause the term "approved project" to include not only the project as approved, but also things that are not the project itself but relate to the process of approval of the project, such as the declaration that the project is a project to which Pt 3A applies and the approval of the project by the Minister. The extension of the meaning of "approved project" in subs (1) beyond the definition of "approved project" in s 75A must be taken to be deliberate and intended to extend the exclusory operation of subs (1) in respect of Pt 4 and Pt 5 of the Act. Similarly, the non-inclusion of the words in brackets found in subs (1) in subs (3) should also be seen to be deliberate and intended to allow the term "approved project" to operate only as defined in s 75A and not have the extended meaning found in subs (1). Accordingly, on this construction, s 75R(3) does not cause SEPPs to apply to any of the things referred to in the words in brackets in subs (1), including to the approval of the project by the Minister. 148The respondents submit that s 75R(1) only ousts Part 4 of the EPA Act from, as it were, the four walls of the Part 3A application such that, assuming there will be a Part 3A amended application for access over the Council land, there can still be a concurrent lawful Part 4 development application for construction and use of the ramps. I do not accept the submission. Section 75R(1) should be construed in light of the aim of Part 3A to transfer development control of "approved projects" to the State. On the respondents' submission there could be a Part 3A application to the Minister for major project approval of a development and a concurrent Part 4 development application to the local council for the same development. In my view, that is an unlikely legislative intention having regard to the aim of Part 3A and the text of s 75R(1). Section 75R(1) excludes the application of Part 4 not only "to" but also "in respect of" an "approved project" (which, as discussed earlier, has an extended meaning). A Part 4 application for the same project or part of the same project, would be an application "in respect of" the project. For these reasons, I am of the opinion that, by reason of s 75R(1), the amended Part 3A application would make unlawful a purported Part 4 application and consent for construction and use of the ramps. 149However, it would not make unlawful a Part 4 owner's consent term of the easements. If, in the exercise of the Court's discretion, a Part 4 owner's consent term and no unqualified Part 3A owner's consent term were imposed, Moorebank would have no option if it wished to proceed with its Part 3A MRF application but to ensure it did not include access over the Council land and ramps work, thus avoiding s 75R(1) and enabling a lawful Part 4 consent for construction and use of the ramps to be made. It may also have to arrange for the Minister to amend the amended Part 3A declaration in the same way. However, I would not exercise the Court's discretion in this way for reasons expressed later in this judgment. 150The second and alternative reason, Moorebank submits, why Council could not lawfully consent to a Part 4 development application for the ramps is that even if s 75R(1) does not preclude Part 4, as soon as Moorebank made a Part 4 application for ramps for the purpose of an MRF the ramps would become "State significant development" and under s 89D(1) of the EPA Act the Minister would become the consent authority. It is said that the ramps would be "State significant development" under cl 8(1)(b) of the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) because the ramps application would be to permit "development for the purpose of resource recovery on recycling facilities that handle more than 100,000 tonnes per year of waste" being the "purpose" nominated in cl 23(3) of Schedule 1 of the SEPP. Moorebank submits that the ramps cannot be said to be for any purpose because the ramps must accommodate Moorebank's trucks and Moorebank's sole purpose in making the application would be for an MRF. Moorebank submits that the line of authority represented by Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 does not assist because here because unlike the 2008 LEP (which the SEPP overrides to the extent of any inconsistency: s 36 EPA Act) there is no definition of "road". 151Sections 89C and 89D of the EPA Act provide: 89C Development that is State significant development (1) For the purposes of this Act, State significant development is development that is declared under this section to be State significant development. (2) A State environmental planning policy may declare any development, or any class or description of development, to be State significant development. ... 89D Minister consent authority for State significant development (1) The Minister is the consent authority for State significant development. Note. Section 23 enables the Minister to delegate the consent authority function to the Planning Assessment Commission, the Director-General or to any other public authority. ... 152The SEPP provides: 8 Declaration of State significant development: section 89C (1) Development is declared to be State significant development for the purposes of the Act if: ... (b) the development is specified in Schedule 1 or 2. ... Schedule 1 State significant development-general 23 Waste and resource management facilities (3) Development for the purpose of resource recovery or recycling facilities that handle more than 100,000 tonnes per year of waste. 153I do not accept Moorebank's second reason for its unlawfulness submission. Under the 2008 LEP, roads are permissible on the Council land and the ramps are roads. Argyropoulos is indistinguishable. In that case the question was whether a use of land as a road in a residential zone was permitted where the purpose of the road was to provide access to an area zoned as a light industrial zone where the use of land in the residential zone for light industrial purposes was prohibited. It was submitted for the council in that case that because the access road was intended to serve the light industrial use, the land use for which consent was sought over the land in the residential zone ought to be characterised as being a use for the purpose of the storage of formwork material (the light industrial use) and not as a road (at 206). Cripps CJ of LEC rejected the submission. His Honour said, at 207, 208: I do not think that the innominate prohibited light industrial use excludes, in the present case, the nominate permissible use. It is true that the road will serve an area of land zoned light industrial but that circumstances does not give it a separate single "light industrial" purpose or, perhaps more precisely, a "formwork and materials storage" purpose within the meaning of the Canterbury Planning Scheme Ordinance. In my opinion "road" use is contemplated by the Scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a "road" which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because of the start and/or destination of vehicles passing over the road is light industrial land. Moorebank's other objections to a Part 4 owner's consent term 154Thirdly, Moorebank submits that (a) contrary to the assumption underlying Council's letter of offer, the proposal advanced by the Council would not satisfy the DGR relating to suitable site access arrangements; (b) it could not be said that the letter the Council proposes to write to the Department would satisfy the requirement to "demonstrate that arrangements have been made to secure access to the site"; (c) it is only once the easements have been ordered and development consent has been obtained for the construction of the ramps, that Moorebank will be able to give the Department the assurance that it has secured legal access to the site. The DGR merely requires that "arrangements have been made" to secure access. In my opinion, the Council's proposed letter to the Department would satisfy that requirement. 155Fourthly, Moorebank submits that (a) there is no guarantee that Council would approve the ramps proposal, either Ramps A or B; (b) all it promises to do is to write to the Department to the effect that it "approves in principle" the construction of the ramps (it does not specify which) and associated works on Lots 308, 309 and 310 to provide access to Brickmakers Drive; (c) the Council cannot fetter its discretion in advance of its consideration of the merits of the development application. Council replies that (a) it is correct that Council could not promise to approve the development application, there is no difficulty from the perspective of the no-fettering rule with it indicating that in principle it strongly favours granting consent to some form of the ramps proposal; (b) Council has investigated the ramps proposal through experts retained by it and has indicated that it will be guided by those experts; and (c) Court's orders can be crafted in a manner that does not offend the fettering rule but makes Council consent very likely, particularly given that Moorebank will have a right of merits appeal under s 97 of the EPA Act. In my view, notwithstanding the points made by Council, there remains a small possibility that consent of the ramps will not be obtained under the Part 4 route. 156Fifthly, Moorebank submits that (a) the Council's offer only refers to a development application for the "construction" of the ramps and associated works, not their "use"; (b) Council has in the past imposed a condition limiting the bridge consent to its construction only; (c) Council has said nothing about its attitude, whether "in principle" or not, in relation to the issue of whether a planning consent would be granted by it for the "use" of the ramps for the purpose of a MRF. Council replies, and I accept, that this objection is met by moulding a Part 4 owner's consent term so that it extends to use as well as construction. 157Sixthly, Moorebank objects that (a) there is no evidence that the Council resolution of 15 June 2011 has been rescinded; and (b) unless that resolution is rescinded, there is a serious question mark as to the authority of Council's solicitors to make the offer on behalf of Council. Council submits, and I accept, that (a) there is no question of Council officers not having the power to instruct that the offer be made since the terms of Council's resolution of 15 June 2011 were that "approval will not be granted for access of Part Lot 310 and Lot 309...for waste management/recycling purposes" and the offer does not grant access for those purposes; (b) it takes up the Court's suggestion that the question of access and the question of the MRF can be decoupled and grants access for the use of the Moorebank land, which use may include for an MRF. 158The seventh and eighth objections can be dealt with together. Seventhly, Moorebank objects that the process of re-classification of Lot 310 from operational land to community land would be a lengthy one, requiring a local environmental plan (s 30 Local Government Act 1993) and possibly also a public hearing (EPA Act, s 57(5)) or, if by resolution of the Council, only after public notice has been given and submissions have been received (Local Government Act) - and there would be no guarantee of a successful outcome. Eighthly, Moorebank objects that (a) as Council's letter of offer itself acknowledges, unless Lot 310 were re-classified as operational land, the Court would still have to make an order under s 88K granting the easement; (b) the Court would still have to be satisfied as to the jurisdictional preconditions in s 88K; and (c) there is no indication that Tanlane would also consent to the grant of the easement by the Court. In short, Moorebank submits that without the re-classification, the proposal will not obviate the need for the Court to undertake the consideration of the matters that are currently the subject of dispute, thus not resulting in any saving of time or cost. Council submits, and I accept, that the community land issue is overcome by Council's consent to the Court making an order under s 88K on the basis that the easements are necessary for all reasonable uses of the Moorebank land. 159The next three objections can be dealt with together. Ninthly, Moorebank objects that (a) there are other timing issues that make the Council's proposal highly undesirable from Moorebank's perspective; for example (based on its flood expert's evidence), Council might require a further flood study to be carried out which may take months if not years; (b) the Part 4 process itself would likely take months; (c) Moorebank should not have to wait any longer before it has certainty concerning its development proposal. Tenthly, Moorebank objects that (a) the Council's proposal is silent as to its preferred traffic treatment of the intersection with Brickmakers Drive; (b) unless Council's position is made clear, and involves a set of traffic lights, then the proposal could not work; (c) a roundabout at that location would not permit Moorebank's trucks to use the intersection, thereby defeating the purpose for which the ramps would be constructed, and the easement granted. Eleventhly, Moorebank objects that (a) contrary to the stated basis for Council's opposition to the grant of the easement sought by Moorebank, the RMS submission to the Department in respect of the EA for the Part 3A application makes clear that the traffic control facility at the Brickmakers Drive intersection "should be provided to Council's satisfaction"; that advice is highly likely to be made the subject of a condition of any approval granted by the PAC. In other words, Council will not lose control over the traffic treatment at the intersection. Council submits, and I accept, that (a) the issues raised by these three objections can be dealt with by orders of the Court; (b) Moorebank will need ramps planning approval in one form or another; and (c) it is a matter for the Court's discretion whether it should get orders from the Court restricting its selection of the forum it regards as most desirable. 160In my view, s 88K(1) is not offended by Moorebank pursuing a Part 3A ramps application nor is that or the other matters referred to by Council sufficient reason to exercise the Court's discretion to force Moorebank down the Part 4 consent path for the ramps through the imposition of a Part 4 owner's consent term (without an unqualified Part 3A owner's consent term in addition). The matters that I have mainly taken into consideration in reaching this conclusion are as follows: (a)It is an implied term of the grant of an easement that the owner of the burdened land will give owner's consent to the lodgement of an application for statutory approval of work on and use of the burdened land for the purpose that the easement is granted. Under that implied term the applicant for statutory approval is entitled, in my opinion, to follow whatever statutory planning approval path is available: in the present case either Part 3A or Part 4 of the EPA Act. (b)The Court will enforce such an implied term. (c)When an easement is granted under s 88K, the Court may impose an express owner's consent term to the same effect as the implied term as Moorebank seeks in the present case. (d)The Court should be cautious about exercising its discretion to cut down what would otherwise be implied by refusing a Part 3A owner's consent term. (e)The time required for Moorebank to prepare and lodge a Part 4 development application for the ramps and the twelve weeks thereafter that Council says it would require to process and determine it, poses a significant risk that Moorebank's Part 3A MRF application will be refused. I accept that the Part 3A application is likely to be determined in substantially less time. The risk arises because of the Department's expressed intention that all pending Part 3A applications should be determined by 30 June 2013. Moorebank justifiably expects an extension of that time if by then it obtains the relief it seeks including a Part 3A owner's consent term. If it is forced down the Part 4 consent route for the ramps, I accept that there is a significant risk that this would not be acceptable to the Director-General or PAC in the Part 3A context such that the Part 3A MRF application may be rejected. (f)There is a risk of conflict between the approval authorities if PAC regards the design of the ramps approved by Council under Part 4 as unacceptable for an approved MRF. (g)Although Council approves ramps in principle, it cannot fetter its discretion; therefore there is a risk, albeit small, that Council would reject a Part 4 ramps application. (h)I understand why Council wishes to be the consent authority for the ramps given the importance of the road bridge to the precinct. However, that has to be balanced against, and I think is outweighed by the intention of Part 3A of the EPA Act to make the Minister the approval authority for developments that the Minister declares to be within Part 3A and the fact that the Minister has made such a declaration in relation to the ramps. (i)Since the road bridge and its intersection with Brickmakers Drive are important not just to Moorebank but to the precinct for which Council is responsible as the local planning authority, orders should be made to bolster Council's participation in the Part 3A process taking into account the parties' suggested draft orders provided to me. The parties' experts are already subject to a consent order to meet and endeavour to reach agreement today on a preferred design for the ramps. The draft orders I propose are attached to this judgment and I will give the parties an opportunity overnight to consider them. They include orders to the following effect: (i)maximising as far as possible the prospect of an objector merits appeal by Council from a Part 3A determination under s 75L of the EPA Act; (ii)if agreement is reached between the experts and the parties (or in the case of Council, a designated officer) on a preferred design for the ramps and bridge abutment, that design will be submitted to the Department as the agreed position of the parties. Council has said it will be guided by its experts. The parties (and, in the case of Council, a designated officer) will be directed to confer and endeavour to reach agreement within 14 days; (iii)a similar order should be made in relation to the design for the traffic control works at the intersection of Brickmakers Drive and Lot 309; (iv)if no such agreement under (ii) or (iii) is reached, Moorebank will submit that the construction (but not the design) of the ramps and bridge abutments and the design of the traffic control works at the intersection of Brickmakers Drive and Lot 309 should be to Council's satisfaction. So far as traffic control works are concerned, this reflects an RMS requirement; (v)Moorebank is to seek a condition of approval that the proposed "No left turn" sign for Lot 309 into Brickmakers Drive should be provided to the satisfaction of Council. This also reflects an RMS requirement. (j)A Part 3A owner's consent term satisfies the DGR for suitable access arrangements to be made for the MFR, although so too does a Part 4 owner's consent term. Conclusion 161For these reasons, in my opinion the easements are reasonably necessary for the effective development of the Moorebank land. Section 88K(2)(a) Public Interest 162Under s 88K(2)(a) the Court must be satisfied that the use of the dominant tenement, being the Moorebank land having the benefit of the easement, will "not be inconsistent" with the public interest. In my view, this test of "will not be inconsistent" with the public interest is less exacting than a test of "will be in the public interest" or a test of "will be consistent with the public interest'". In Rainbowforce Preston CJ of LEC held at [95] (omitting citations): Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the Court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest. Approved in Samy Saad v City of Canterbury [2012] NSWSC 389 at [34] - [36] (Nicholas J). 163In Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295, (2009) 14 BPR 27,257 at [63] White J held: ... If the requisite consents were obtained to the use of the plaintiff's land, that would not be inconsistent with the public interest. To the contrary, the public interest is in favour of landlocked land being able to be used. 164The respondents submit that the Court could not have the requisite satisfaction of the matter under s 88K(2) (a) due to the incompatibility of the use with the existing and future planning for the area; (b) the fact that it might be possible to make amendments to the proposal, including to the access, to lessen that incompatibility, is not to the point as no amended proposal is made available for consideration; and (c) due to potential inconsistencies between, on the one hand, the proposal and, on the other hand, the approved road bridge and the easement the Court of Appeal is to grant. 165I do not accept the submission. I have earlier explained why I consider that the use of the Moorebank land is appropriate for the area at the present time; I have no doubt that the amended Part 3A application will soon be made and that its contents have been sufficiently identified; and I do not see any such potential inconsistencies. 166I am satisfied that use of Moorebank's land will not be inconsistent with the public interest. Section 88(2)(c): attempts 167I am satisfied that all reasonable attempts have been made by Moorebank to obtain the easements or easements having the same effect but have been unsuccessful. Section 88K(4): Compensation 168As noted earlier, compensation for the proposed easements has been agreed between Moorebank and the Council in the sum of $25,000 which I consider is appropriate. Therefore, any order for such easements will provide for the payment by Moorebank to Council of that sum as compensation. Discretion 169The respondents submit that the Court would refuse to exercise its discretion to grant the easements having regard to the matters they have raised to which I have earlier referred. I do not accept the submission. My earlier response to those matters satisfies me that the discretion should be exercised in favour of Moorebank. TIMING OF REGISTRATION OF EASEMENTS 170Tanlane proposes an order that any easements granted to Moorebank should not be registered before the Tanlane easement is registered. Tanlane offers an undertaking to do all things reasonable and proper to enable the Tanlane easement to be registered as soon as possible. Council proposes as an alternative that, if the Court is minded not to make such an order because of Moorebank's concerns about timing, there should be an order restraining Moorebank, before Tanlane's easement is registered, from exercising any rights in relation to the easements save for requiring Council to give landowner's consent. Moorebank opposes both proposals. 171Tanlane obtained development consent in 2007 for construction of the road bridge and in January 2008 unsuccessfully requested Moorebank to agree not to hinder or obstruct it from undertaking works. Tanlane was successful in obtaining a grant of an easement in the Supreme Court before Young JA and orders were made in February 2012. Following Moorebank's appeal from that decision, in December 2012 the Court of Appeal found that an easement should be granted to Tanlane subject to compensation of not less than $26,500 being assessed. The matter was remitted to the Equity Division for assessment and set down for a hearing before Rein J on 9-11July 2013. Moorebank successfully sought a stay of the compensation proceedings until the outcome of these proceedings: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2013] NSWSC 545. Rein J said at [29]: Since Moorebank's foreshadowed case for expanded compensation is dependent on it being unsuccessful in the Land and Environment Court and unsuccessful solely because of the Tanlane easement there is considerable utility in awaiting the outcome because the expanded compensation claim will not be advanced if Moorebank succeeds in the Land and Environment Court, or fails on a different basis, and the question of whether Moorebank's expanded claim can be advanced will not need to be determined. 172His Honour said that Moorebank should be required within a specified period following delivery of judgment in this Court to advise Tanlane and the Supreme Court whether it wishes to proceed with its expanded claim. If it does, consideration would need to be given as to how the controversy surrounding Moorebank's entitlement to advance such a claim is to be dealt with. 173Tanlane's access to Brickmakers Drive and ability to construct the road bridge depends upon registration of its easement. Moorebank has advanced the argument that its access via ramps to Brickmakers Drive should not be the "handmaiden" to Tanlane constructing the bridge. Tanlane submits that it is possible Moorebank would seek to "further frustrate" the completion of the Supreme Court proceedings, thus also further delaying any further construction of the bridge by Tanlane prior to any approval Moorebank may obtain via the Part 3A application. Tanlane submits that the Supreme Court proceedings may be delayed further because before Rein J Moorebank submitted that: "Assuming that Moorebank is granted its easement and is successful with its Part 3A application, then Moorebank would seek to adduce the following evidence: 1. Valuation...". Before me Moorebank indicated that if it obtains the easements, it may advance a compensation claim in the Supreme Court in excess of the $26,500 minimum: it mentioned a figure in the order of $50,000. Tanlane submits that the importance of the road bridge in the planning and redevelopment of the Tanlane land is clear and the Court should not enable Moorebank to make Tanlane's residential development the "handmaiden" to its Part 3A application. Tanlane submits that the Court should require Moorebank to act in good faith and ensure Tanlane obtains legal access to Brickmakers Drive by making orders to the effect that any easement over Lot 309 for the benefit of the Moorebank land may not be registered until Tanlane is able to register its easement. 174Moorebank submits that: (a)There is no prospect of Tanlane's rights being interfered with. The bridge could be built first or the ramps could be built first. In the case of Ramps B the cost to Moorebank of constructing the ramps first would be an additional $2 million. (b)Tanlane has no standing to seek conditions to be imposed on Moorebank's easement because it was joined to the proceedings on a false premise, namely, that its easement rights would be affected by the grant of easements in favour of Moorebank. (c)There should be no condition imposed relating to registration of Moorebank's easement. The only purpose of such a condition would be to hold Moorebank to ransom in relation to the compensation hearing in the Supreme Court, which has been stayed pending the outcome of these proceedings. If the condition imposed by Tanlane were to be imposed, then Moorebank would in effect have to accede to the $26,500 minimum compensation amount referred to by the Court of Appeal in order for its easement to be registered. 175The Supreme Court proceedings aimed at securing the Tanlane easement have been on foot for some six years and the postponement of their conclusion until these proceedings are determined was at Moorebank's behest. In the circumstances, I am persuaded that Tanlane has a sufficient equity for an order that its easement be registered first, subject to giving its proposed undertaking to the Court. I do not accept Moorebank's submission that this holds Moorebank "to ransom" in the Supreme Court proceedings by compelling it to accept $26,500 compensation. It does, however, provide an incentive to get the Supreme Court proceedings concluded as soon as possible. ORDERS 176Orders will be made under s 88K granting the claimed easements on terms including (a) an owner's consent term for the making by Moorebank of any application for approval or consent for the ramps (whether under Part 3A or Part 4); (b) a term that the ramps design is to be sufficient to accommodates access ramps to and from the servient tenement having the load bearing capacity required by SM1600 referred to in cl 6.2 of Part 2 of AS 5100 Bridge Design Code (ie the same term as the Court of Appeal imposed in the Tanlane Case at [256]); and (c) a term postponing registration of the Moorebank easement until after registration of the Tanlane easement. 177Draft orders are attached. The matter will be listed tomorrow at 2.15 pm for the purpose of making final orders. Counsel are to confer beforehand and any agreed or competing changes to the attached draft that are consistent with these reasons for judgment are to be emailed to my Associate before the hearing tomorrow. 178It is possible that the area of the easements identified in the plan forming part of the attached draft instrument for registration may require enlargement if, as discussed earlier, the parties' experts or any of them contend that the beginning of the ramps should be relocated further north or south such that they are outside the proposed easements. This would require a relatively minor enlargement of the proposed area of the easements to provide for the possibility that the approval authority for the ramps might approve such a design. The experts are reporting today on whether they have agreed on a preferred design for the ramps. If they or any of them contend for a ramps design which would require enlargement of the easements, Council agrees to that enlargement. In that event, Council is to prepare an amended plan before the hearing tomorrow which may be incorporated in the final orders. 179Prima facie, Moorebank should pay Council's costs of the proceedings pursuant to s 88K(5) of the Conveyancing Act, and there should be no order as to Tanlane's costs. The possibility has been raised of a different costs order. I propose to make the prima facie costs order subject to providing for any party to apply to vary it within seven days. DRAFT ORDERS ANNEXURE 1 ANNEXURE 2 ANNEXURE 3 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. Decision last updated: 03 July 2013