Land and Environment Court New South Wales Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 3) [2013] NSWLEC 95 Hearing dates: 28 June, 8 July 2013 Decision date: 08 July 2013 Jurisdiction: Class 3 Before: Biscoe J Decision: Orders made and undertakings noted set out in the attachment hereto. Catchwords: REAL PROPERTY - form of orders for easements under s 88K Conveyancing Act 1919 following earlier publication of reasons for judgment. Legislation Cited: Conveyancing Act 1919 s 88K Environmental Planning and Assessment Act 1979 Part 3A, Part 4 Cases Cited: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 Category: Consequential orders Parties: Moorebank Recyclers Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: COUNSEL: J Lazarus (Applicant) J Hutton (First Respondent) L Walker, solicitor (Second Respondent) SOLICITORS: Mark McDonald & Associates (Applicant) Minter Ellison (Second Respondent) Sparke Helmore (First Respondent) File Number(s): 30141/13 EX TEMPORE Judgment 1In my reasons for judgment dated 27 June 2013, I decided that orders should be made under s 88K of the Conveyancing Act 1919 granting the easements sought by the applicant, Moorebank, on terms and I annexed draft orders and undertakings for the parties to address: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93. The form of the final orders and undertakings has been debated before me at length. Without being exhaustive, the following subsequent developments and changes to the draft orders and undertakings may be noted: (a)Immediately following publication of Moorebank (No 2) and as foreshadowed as a possibility at [178], I was informed that the parties' experts had agreed that day to a variant of Ramps B (for which Moorebank contended in the proceedings) as the preferred access ramps (Ramps C). Ramps C includes the following new features compared with Ramps B: there is a longer embankment for the road bridge and a correspondingly shortened suspended structure; the down ramp begins further north on Brickmakers Drive and is free of the road bridge; and the up ramp begins further south on the panhandle and connects to the extended embankment substantially further to the east. Ramps C necessitates, first, a modest enlargement of the area of the easements to be granted to Moorebank, to which Council consents, and, secondly, a proportionate increase in the amount of compensation payable by Moorebank to Council, which they agree at $28,575. (b)Council and Tanlane support Ramps C but Moorebank reserves its position essentially because it estimates that the longer Ramp C's embankment will cost $900,000 more than the cost of the Ramps B embankment. Under Tanlane's existing development consent for construction of the road bridge, Tanlane would have to bear the cost of any embankment. However, Moorebank has agreed to pay the Ramps B embankment costs: Moorebank (No 2) at [54], [174(a)]. To the extent of any additional cost, Tanlane would obtain an economic advantage at Moorebank's cost if Moorebank happens to proceed with a Part 3A approved Ramps C construction first, unless Tanlane agrees to compensate Moorebank for the additional cost. There will be an order for Moorebank and Tanlane to negotiate in good faith with a view to reaching agreement on Tanlane compensating Moorebank for such additional cost. Moorebank says its attitude to Ramps C may depend on the outcome of those negotiations, which are to occur tomorrow. Because this is really a coordination issue, there is considerable force in Council's contention that such agreement should be reached if negotiations are in good faith so that the economic effect is neutral if Moorebank happens to proceed with construction first. (c)In relation to the Tanlane easement to be granted by the Supreme Court, on reflection I have decided that rather than ordering postponement of registration of the Moorebank easement until after registration of the Tanlane easement (to which I was initially attracted), it is more appropriate that there be an order restraining Moorebank before Tanlane's easement is registered from exercising any rights in relation to the Moorebank easements save for requiring Council to give landowner's consent: Moorebank (No 2) at [170] - [175]. Tanlane undertakes to the Court and to Moorebank to procure registration of the Tanlane easement within 14 days of the order being made imposing it. (d)Moorebank undertakes to notify the other parties of the ramps design for which it will seek approval as soon as practicable and in any event within 16 days and to lodge its amended application or preferred project report under Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act) as soon as practicable and in any event within 28 days. The respondents agree to those time frames. Moorebank undertakes that if that design differs from Ramps B or Ramps C, it will not do so significantly. This regime will enable Tanlane to know what Part 4 modification application (if any) it may need to make to its existing development consent, and will minimise concerns of Tanlane and Council that a Part 3A approval may be inconsistent with Tanlane's consent or modified consent, which arguably might lead to the latter being declared invalid under s 75R(1) of the EPA Act. Moorebank undertakes (inter alia) not to object to any application by Tanlane to modify its development consent so that it is not inconsistent with the Part 3A application or approval. (e)Tanlane undertakes not to commence construction of the road bridge before Moorebank obtains a Part 3A approval, but if such approval is not obtained within four months Tanlane may apply for release from or variation of the undertaking. (f)There will be restraints on Moorebank and Tanlane interfering with construction, maintenance or use of the road, bridge, abutment and ramps by the other without Council's consent, which is not to be unreasonably withheld. In this way, Council will have a useful role in resolving any coordination difficulties that might arise. 2The Court makes the orders and notes the undertakings set out in the attachment hereto. ORDERS ANNEXURE B ANNEXURE C 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: 10 July 2013