Supreme Court New South Wales Medium Neutral Citation: Spring v North Sydney Council [2018] NSWSC 463 Hearing dates: 26 March; 4, 6 April 2018 Date of orders: 06 April 2018 Decision date: 06 April 2018 Jurisdiction: Equity Before: Parker J Decision: Plaintiff's application for adjournment refused. Order made for separate and later determination of quantum of any compensation required for grant of compulsory easement sought by plaintiff. Catchwords: PRACTICE AND PROCEDURE – application for adjournment – where adjournment is sought so that a development application can be assessed by a new independent planning panel – whether the planning panel obviates the need for a s 88K application – the new planning system is "not an appropriate reason" to adjourn the plaintiff's s 88K application – the absence of prejudice to the defendant is not enough to allow the plaintiff's application to proceed DEVELOPMENT APPLICATION – Environmental Planning and Assessment Act 1979 (NSW), s 9.1 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 – direction by Minister for Planning – Local Planning Panels Direction - Development Applications, Sch 1, cl 1 – discussion of whether development application is within the scope of cl 1 – discussion of whether Council is a "landowner" whose written consent is required for the plaintiff to lodge the development application EASEMENTS – Conveyancing Act 1919 (NSW), s 88K – discussion of grant of rights in an easement – discussion of whether a servient owner can owe a duty to the dominant owner to consent to the lodgement of a development application Legislation Cited: Conveyancing Act 1919 (NSW), s 88K Environmental Planning and Assessment Act 1979 (NSW), s 9.1 Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Kladis v Lowe [2016] NSWSC 1834 Owners Corporation – Strata Plan No. 8450 v Owners Corporation – Strata Plan No. 54547 [2002] NSWSC 780 Category: Procedural and other rulings Parties: Caroline Spring (Plaintiff) North Sydney Council (Defendant) Representation: Counsel: RM Higgins (Plaintiff) M Condon SC/R Mansted (Defendant) Solicitors: Sparke Helmore (Defendant) File Number(s): 2016/371758 Publication restriction: Nil Judgment – EX TEMPORE Revised and issued 1 May 2018 1. The trial of these proceedings is fixed for a three-day hearing commencing on 7 May. This judgment relates to an application by the plaintiff (Mrs Spring) for an adjournment, and a cross-application by the defendant to rely upon expert valuation evidence which has recently been served. 2. Mrs Spring is the owner of land at Cremorne in North Sydney, where she lives with her husband. Mrs Spring's land adjoins a small, irregular area of vacant land owned by the defendant Council. The Springs wish to redevelop the property by renovating and extending the house. Part of the proposed redevelopment would involve the construction of a paved terrace and landscaping works extending onto the Council land. The Springs' perception is that this would enable them to comply with planning requirements as to the area of landscaping to be provided, having regard to the proposed expansion of the footprint of the existing house. 3. Mrs Spring initially sought to buy part of the Council land for this purpose. The Council appeared willing to sell but now it is not. In March 2016 the Springs attended what is known as a pre-lodgement meeting with representatives of the Council. The purpose of this meeting, as its name suggests, was to get the likely reaction of the Council officers who would be responsible for considering and presenting the development application to the Council for consideration. In the course of the meeting, the Council officers indicated that they did not support any reduction in the required landscaping area, with the result that it would not be possible for the Springs to undertake the development which they seek and to include sufficient landscaped area to comply with that requirement within the boundaries of the land currently owned by Mrs Spring. 4. No development application has been lodged. Instead, in these proceedings, Mrs Spring as plaintiff seeks orders under the Conveyancing Act, s 88K, which would compel the Council to grant easements over its land sufficient to allow the terrace and landscaping to extend onto the land and thus to achieve the required area of landscaping. 5. The proceedings were commenced in December 2016 and, as I have indicated, have been prepared for hearing next month. Mrs Spring's application for an adjournment, which seeks orders vacating that hearing date, was made by way of notice of motion filed on 28 March. 6. The application arises in the following way. In February this year the Minister for Planning made a direction under the Environmental Planning and Assessment Act 1979 (NSW), s 9.1, to councils in the Greater Sydney and Wollongong regions, which requires those councils to establish what are described as independent local planning panels for the purpose of assessing certain classes of development application for which the council in question is the consent authority. The direction is known as the Local Planning Panels Direction - Development Applications. 7. As it applies to the defendant Council, the Direction establishes four categories of development for which a local planning panel is required. In support of the adjournment application it is put on behalf of Mrs Spring that a development application for her proposed redevelopment could be submitted and would now go before an independent planning panel, as it is said to fall within one of the applicable classes in the Direction. The suggestion is that the Springs may be able to achieve the planning outcome which they seek by going to an independent panel, an option which was not available, so it is contended, before; and that this may obviate the need to pursue the claim for a s 88K order being made in these proceedings. 8. The Council disputes that should Mrs Spring lodge a development application it would be covered by the Direction and accordingly the Council disputes that it is possible for Mrs Spring to submit a development application for determination by the independent panel. 9. This raises a question of construction of the Direction. The relevant classes of development, so far as the Direction applies to North Sydney Council, appear in Sch 1. The Springs rely on cl 1 of category 1, which is headed "Conflict of Interest". That category relevantly provides: Development for which the applicant or land owner is: (a) the Council, (b) a Councillor, (c) a member of Council staff who is principally involved in the exercise of Council's functions under the Environmental Planning and Assessment Act 1979 (d) a member of Parliament (either the Parliament of New South Wales or Parliament of the Commonwealth), or (e) a relative (within the meaning of the Local Government Act 1993) of a person referred to in (a) to (d). The category has a number of exceptions but none of them is suggested to be relevant for present purposes. 1. Counsel for Mrs Spring submits that the development in question is caught by sub-para (a) because the, or a, relevant "landowner" is the Council. 2. It is clear that the Direction must be interpreted in light of the system of development established by the Environmental Planning and Assessment Act 1979 (NSW) and the Environmental Planning and Assessment Regulation 2000 (NSW) made under that Act. Clause 49 of the Regulation provides that a development application can be made either by the owner of the land to which the development application relates or by any other person with the consent in writing of that owner. As I have mentioned, no development application has been lodged or even formulated. It is clear that if the Springs were to lodge a development application confined to the land owned by Mrs Spring, then the direction would not apply. In that situation the relevant "landowner" could only be Mrs Spring. 3. Counsel for Mrs Spring suggested the possibility that a development application could be lodged, which would cover not only Mrs Spring's land but also the portion of Council's land which it would be proposed to use for part of the terrace and the landscaping. In that event, on the face of it, the Direction would apply because the Council would be one of the owners of the land affected by the development. 4. The difficulty with this contention is that in order to make such a development application the consent in writing of the Council, as the owner of that land, would be required and the evidence makes it clear that as matters stand such consent would not voluntarily be given. 5. Where a landowner has the benefit of an easement over adjoining land and wishes to do works on that adjoining land, the Act and the Regulations do not directly permit the landowner to lodge a development application relying upon the landowner's right over the servient tenement under the easement. The consent of the servient tenement's owner is still required. But it is established by the course of decisions in this Court that the grant of rights in the easement by the servient owner carries with it an obligation to do what is reasonably necessary to allow the dominant owner to have and exercise in full the rights under the easement. Accordingly, in an appropriate case, a mandatory injunction can be granted against the servient tenement owner requiring that owner to consent to the lodgement of the application: see Owners Corporation – Strata Plan No. 8450 v Owners Corporation – Strata Plan No. 54547 [2002] NSWSC 780; Kladis v Lowe [2016] NSWSC 1834. 6. Counsel for Mrs Spring pointed out that, although consent is required from the owner, that consent does not have to be provided at the time the application is lodged but can be provided at any time prior to determination of the application. Accordingly it would be possible for the Springs to lodge a development application which included the Council land and that application would not be invalid; the Council would be required to deal with it. 7. The difficulty with this argument is, however, that for practical purposes the application, even if it could be lodged, would be liable to refusal in short order, unless an order could be obtained requiring the Council to consent to it. Until and unless the s 88K application is determined in Mrs Spring's favour, there would be no basis on which the Council could be compelled to provide the necessary consent. 8. It seems to me therefore that on analysis the argument presented in support of an adjournment only draws attention to the practical necessity of going ahead with the hearing. If the application is adjourned then there is no realistic prospect of Mrs Spring being able to make a successful development application, even if by naming the Council as a relevant land owner, she is able to ensure that the application goes before an independent planning panel. 9. For these reasons I conclude that the establishment of the panel system is not an appropriate reason for an adjournment of the proceedings. 10. Had I not been of this view, I would in any event not have been satisfied that this was an appropriate case for an adjournment. As I have mentioned, the proceedings were commenced in December 2016. The trial was fixed in November 2017, about five months ago, with the plaintiff's consent. Counsel for the plaintiff submitted that there would be no prejudice to the Council from an adjournment or at least no prejudice which could not be addressed as a matter of costs. 11. In my opinion, the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, has changed the way in which the courts consider, or at least should consider, an application for an adjournment in circumstances such as these. The decision makes it clear that an application will not succeed simply because the applicant indicates that an adjournment is sought and the respondent is unable, by way of response, to identify any specific prejudice. 12. The focus in such an application is, or should be, on the applicant, not the respondent. As I understand the High Court's approach, the applicant is required to show affirmative reasons for granting an adjournment in the interests of justice. The absence of prejudice (not curable by an order for costs) may be a factor but does not excuse the applicant from showing the existence of such an affirmative reason for disrupting the court's litigation timetable. 13. The Conveyancing Act 1919 (NSW), s 88K sub-para (1) and sub-para (2) provide: (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. 1. Because of the wording of sub-para (1) the plaintiff must show that the grant of the easement sought is "reasonably necessary for the effective use or development" of the land in question. I accept that planning restrictions of the sort in question here may arguably give rise to such a "reasonable necessity." But there is no evidence before the Court on this application that submission of the foreshadowed development application to an independent panel will necessarily make any difference. 2. It is clear from the evidence that has been presented that the Springs believe that the Council officers are seeking to thwart or obstruct their plans to redevelop the property in the way in which they seek. But there is no evidence that this is in fact the case. Nor is there any evidence that an independent planning body would apply any different criteria to the foreshadowed application. 3. Moreover, on the evidence it is unclear how long it would take for the plaintiff to make the application, have it determined, and, if unsuccessful, pursue any appeal rights that would result. The adjournment sought would effectively be open-ended. The Council may not be able to identify specific prejudice other than wasted costs, but there is a public interest in bringing proceedings of this sort on for decision. Accordingly, the plaintiff's application will be refused. 4. The Council's application relates to evidence recently served by the Council going to the quantum of any compensation which might be required by the Court as a condition of the making of an order under s 88K. The plaintiff's evidence from its expert, which is of a preliminary nature, indicates that eight weeks or so would likely be required to respond to the Council's evidence. Counsel for the defendant suggested that the actual period may be less, but in my opinion there is a clear risk that Mrs Spring will not have an adequate opportunity to respond to the evidence. However, in my view the problem could be accommodated in a way which is fair to both parties. 5. It is common in s 88K applications for there to be a disagreement as to the appropriate quantum of compensation, but any such issue can be dealt with in the ordinary way by the Court hearing evidence and fixing the appropriate amount. Once the amount is fixed, then if the applicant wishes to proceed to obtain the easement the relevant amount of compensation must be paid. If the applicant chooses at that point not to proceed, then no easement will ultimately be ordered. This sort of dispute is usually just presented as a dispute between experts, and it appears that this is the way in which it will be presented in the present case. 6. It is true that s 88K(2) imposes a condition upon the grant of relief which the Court must find is satisfied before any easement can be ordered. But that provision deals with whether the landowner "can be adequately compensated." In my opinion it is directed to the question whether monetary compensation is suitable at all rather than the quantum of such compensation. 7. In the present case counsel for the defendant confirmed that it does not contend that the easement in question, if granted, could not be adequately compensated for. In the circumstances, I think I can safely proceed by hearing argument on whether a s 88K order should be made and defer any question of quantum to a later point. This obviates any need for Mrs Spring to respond to the recently served valuation evidence before the hearing. 8. Accordingly, I will make an order separating out the question of quantum and deferring it until after the determination of all other issues in the proceedings, and the hearing will proceed on that basis on 7 May. 9. The orders of the court are: On the plaintiff's notice of motion filed 28 March 2018: 1. Motion dismissed. 2. Order that the plaintiff pay the defendant's costs of the motion. On the defendant's notice of motion filed 28 March 2018: 1. I order that the appropriate quantum of compensation for any easement which might be granted by the court be determined separately and after all issues in the proceedings, 2. Order that the costs of the motion be the parties' costs in the cause. ********** 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: 01 May 2018