Arinson Pty Limited v City of Canada Bay Council [2014] NSWLEC 43

Land and Environment Court New South Wales

Medium Neutral Citation: Arinson Pty Limited v City of Canada Bay Council [2014] NSWLEC 43 Hearing dates: 8-10 April 2014 Decision date: 24 April 2014 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The parties, having conferred beforehand, are to email to Biscoe J's Associate their agreed or competing draft orders consistent with these reasons for judgment by 1 May 2014. (2) The proceedings will be listed before Biscoe J on 2 May 2014 to make final orders. (3) The plaintiffs are to pay the defendant's costs of the proceedings. (4) The exhibits may be returned. Catchwords: EASEMENTS - Imposition of easements Court under s 88K Conveyancing Act 1919 - right of way and easement for services - whether reasonably necessary for effective use or development of dominant tenement - whether use of dominant tenement not inconsistent with the public interest - whether owner of servient tenement can be adequately compensated - whether all reasonable attempts made to obtain easements - whether discretion to make order should be exercised - whether compensation not payable because of special circumstances of the case - quantum of appropriate compensation - valuation approach and adjustments - costs. Legislation Cited: Canada Bay Local Environmental Plan 2008 Civil Procedure Act 2005 s 149B(1) Concord Planning Scheme Ordinance Conveyancing Act 1919 ss 88, 88K Environmental Planning and Assessment Act 1979 s 55 Land and Environment Court Act 1979 s 40 Roads Act s 43(4) Strathfield Triangle Development Control Plan 2002 Strathfield Triangle Development Control Plan 2013 Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Arinson Pty Ltd v City of Canada Bay Council, unreported SC of NSW, 21 February 2014 City of Canterbury v Saad [2013] NSWCA 251 Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295, (2009) 14 BPR 27,257 F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159 Khattar v Wiese [2005] NSWSC 1014, (2005) 12 BPR 23,235 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, (2012) 16 BPR 31,257 Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, (2010) 171 LGERA 286 Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589 Category: Principal judgment Parties: Arinson Pty Limited (First Plaintiff) Omaya Holding Pty Limited (Second Plaintiff) Omaya Investments Pty Limited (Third Plaintiff) City of Canada Bay Council (Defendant) Representation: COUNSEL: B Coles QC and M Sahade (Plaintiffs) A Galasso SC and M Izzo (Defendant) SOLICITORS: Sattouts Legal (Plaintiffs) Maddocks Lawyers (Defendant) File Number(s): 40092/14