Supreme Court New South Wales Medium Neutral Citation: Sanctuary Cammeray No 2 Pty Ltd v North Sydney Council [2018] NSWSC 1699 Hearing dates: 9 November 2018 Date of orders: 09 November 2018 Decision date: 09 November 2018 Jurisdiction: Equity Before: Emmett AJA Decision: See para [18] Catchwords: REAL PROPERTY - imposition of easement by court - s 88K of the Conveyancing Act 1919 (NSW) – where the grant of easement is unopposed - whether grant of easement is 'reasonably necessary' - whether grant of easement is consistent with the public interest – where quantum of compensation to be paid is agreed between the parties Legislation Cited: Conveyancing Act 1919 (NSW) Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 City of Canterbury v Saad [2013] NSWCA 251 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Category: Principal judgment Parties: Sanctuary Cammeray No 2 Pty Ltd v (Plaintiff) North Sydney Council (Defendant) Representation: Counsel: C R Ireland (Plaintiffs) R Manstead (Defendant) Solicitors: McKees Legal Solutions (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2018/279894 Judgment 1. By further amended summons filed on 8 November 2018, the plaintiffs, Sanctuary Cammeray No. 2 Pty Ltd (Sanctuary), Pamada 142 Pty Ltd (Pamada) and Sanctuary Cammeray Pty Ltd apply under s 88K of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) for the imposition of easements on land situated at Cammeray, New South Wales. Sanctuary and Pamada (together the Landowners) are the registered proprietors as Tenants in Common in the shares 81% and 19% respectively of the fee simple in Lot 10 in deposited plan 748772 (Lot 10). The Landowners seek orders imposing an easement for services and a right of carriageway on Lot 12 in deposited plan 599070 (Lot 12) and an easement for services and a right of carriageway on Lot 77 in deposited plan 923520 (Lot 77). Both Lot 12 and Lot 77 are owned by the defendant, North Sydney Council (the Council). The land that is to have the benefit of the proposed easements consists of lots 1 and 3 in a proposed subdivision of Lot 10, which will be designated deposited plan 976960. 2. Section 88K(1) of the Conveyancing Act relevantly provides that 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. Under s 88K(2), such an order may be made only if the Court is satisfied that: * use of the land in accordance with the easement will not be inconsistent with the public interest; * the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and * 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. Lot 10 is known as 2 Vale Street, Cammeray. Lot 12 and Lot 77 are located at the intersection of Cambridge Street and Abbott Street, Cammeray. Set out in the appendix to these reasons is a diagram indicating the location of Lot 12 and Lot 77 in relation to Abbott Street and Cambridge Street. Abbott Street intersects Vale Street. Each of Lot 10, Lot 12 and Lot 77 is land under the provisions of the Real Property Act 1900 (NSW) (the Real Property Act). 2. On 25 October 2010, the Land and Environment Court granted development consent for a residential apartment development on 2 Vale Street, Cammeray. The design of the approved development requires access to Vale Street. The proposed easements are required to enable the approved residential apartment development to become fully operational and to allow it to be occupied and used. Structures for services and driveway and pedestrian access have already been constructed on Lot 12 and Lot 77. The imposition of the easements will permit those structures to remain in place. Each of Lot 12 and Lot 77 is quite small and the land in those parcels has historically been used for access. 3. Lot 12 has been owned by the Council since March 2009. It is common ground that Lot 12 is "operational land" within the meaning of the Local Government Act 1993 (NSW) (the Local Government Act) and, accordingly, the Council could grant the proposed easements in respect of Lot 12. The Council consents to the imposition of the proposed easements in respect of Lot 12 under s 88K. 4. Lot 77 has been vested in the Council since May 1928 and is currently a drainage reserve used for drainage purposes with drainage infrastructure for storm water presently located on the land. It is common ground that Lot 77 is "community land" within the meaning of the Local Government Act and, accordingly, the Council cannot grant an easement over, or in respect of, Lot 77 except in circumstances that do not have any application to the present circumstances. The Council has no objection to the imposition of the proposed easements over Lot 77 and supports the imposition of the proposed easements under s 88K. 5. Two easements are proposed in respect of Lot 12 and two easements are proposed in respect of Lot 77. Each of them is described in full in a proposed instrument under s 88B of the Conveyancing Act, a copy of which has been marked Exhibit 1 in these proceedings. Exhibit 1 also includes copies of plans capable of being registered under Div 3 of Pt 23 of the Conveyancing Act, by reference to which the site of the proposed easements can be identified for the purposes of s 88K(3) of the Conveyancing Act. 6. Exhibit 1 provides for an easement for services and a right of carriageway to be imposed on Lot 12, which are described respectively as "Item 2 (designated B)" and "Item 3 (designated C)". Exhibit 1 also provides for an easement for services and a right of carriageway to be imposed on Lot 77, which are described respectively as "Item 12 (designated O)" and "Item 13 (designated P)". 7. Item 2 (designated B) is an easement for services of variable width affecting the whole of Lot 12. The owner of the lot benefited may use the lot burdened to provide domestic services to or from the lot benefited and may do anything reasonably necessary for that purpose, and may insist that the pipes, poles, wires, cables, conduits, structures and equipment on the lot burdened within the site of the easement as at the date of grant of the easement remain. In exercising those powers, the owner of the lot benefited must ensure all work is done properly and causes as little inconvenience and as little damage as is practicable, must restore the lot burdened as nearly as practicable to its former condition, and must make good any collateral damage. Should the owner of the lot burdened be required to remove any part of the driveway constructed over the burdened lot to carry out maintenance works or to install additional drainage pipes, all the costs associated with the reconstruction of the driveway are to be borne by the owner of the benefited lot and the owner of the burdened lot is not liable for any inconvenience or disruption caused by the prevention of access during such works. 8. Item 3 (designated C) is for a right of carriageway of variable width over the whole of Lot 12, being full and free right for every person who is at any time entitled to an estate or interest in possession of the lot benefited or any part thereof with which the right should be capable of enjoyment, and every person authorised by such person, to: * go, pass, and re-pass at all times with or without vehicles for all purposes through the lot burdened; and * carry out work within the lot burdened, such as constructing, placing repairing or maintaining trafficable services, driveways or structures. The cost of maintaining and repairing the trafficable surfaces, driveways or structures on the lot burdened is to be borne by the owner of the lot benefitted. Should the owner of the lot burdened be required to remove any part of the driveway constructed over the burdened lot to carry out maintenance works to the existing Council drainage system or to install additional drainage pipes, all costs associated with the reconstruction of the driveway are to be borne by the owner of the benefited lot. The owner of the burdened lot is not to be liable for any inconvenience or disruption caused by the prevention of access during such works. 1. Item 12 (designated O) is for an easement for services 1.22 m wide. The terms of item 12 are otherwise the same as the terms of item 2. 2. Item 13 (designated P) is for a right of carriageway 1.22 m wide. The terms of item 13 are otherwise the same as the terms of item 3. 3. I am satisfied that the proposed easements are reasonably necessary for the use and development of the residential apartment building as approved, giving access to Vale Street and the use of services and structures already constructed on Lot 12 and Lot 77. There is no evidence of any reasonably feasible alternative. In that context, an easement may be considered to be reasonably necessary if it is a substantially preferable means of carrying out reasonable development on the dominant tenement, as compared with the alternatives [1] . 4. The fact that Lot 77 is "community land" does not preclude the imposition of an easement over it. Where land is zoned to permit development for a particular purpose, access to the land across other land may be required to enable the development to take place and to do so is not inconsistent with the public interest even where access is required across a public reserve or park [2] . None of the proposed easements confers exclusive use. Public interest will not be detrimentally affected by the proposed easements and may in fact be promoted, in that normal driveway and pedestrian access for residents and visitors to the approved residential apartment development will be facilitated. 5. Mr Anthony Alford, a fellow of the Australian Property Institute, who is a certified practising valuer, has provided a written opinion that the total compensation that would be payable to the owner of Lot 12 and Lot 77 for the loss or any other disadvantage that could arise from the imposition of the proposed easements is $12,000. The Landowners propose to pay compensation to the Council in the sum of $27,950. The Council has agreed to that sum as being appropriate compensation. In the circumstances I am satisfied that the proposed compensation is appropriate for the purposes of s 88K(4) of the Conveyancing Act. 6. Section 88K(5) of the Conveyancing Act provides that the costs of proceedings for an order under s 88K are payable by the applicant, subject to any order of the Court to the contrary. No order to the contrary has been sought and it is appropriate that the Landowners pay the Council's costs of the proceedings. 7. I am satisfied that the imposition of the proposed easements over Lot 12 and Lot 77 in the terms of Exhibit 1 is reasonably necessary for the effective use and development, in accordance with the development consent granted by the Land and Environment Court, of the parts of Lot 10 that will become lots 1 and 3 in proposed deposited plan 976960, as shown on Exhibit 1. I am also satisfied as to the matters referred to in s 88K(2) of the Conveyancing Act. Under s 88K(3) of the Conveyancing Act, the Court is required to specify in an order under s 88K such of the particulars referred to in s 88(1)(a) to 88(1)(d) as are appropriate. Having regard to s 88K(6), there appears to be no requirement to specify any further particulars in relation to s 88(1)(c) or s 88(1)(d). 8. Accordingly, I propose to make orders as follows: 1. Order, pursuant to s 88K of the Conveyancing Act 1919 (NSW), that: 1. an easement for services in terms of item 2 in Exhibit 1 be imposed on Lot 12 in deposited plan 599070 for the benefit of the land shown in Exhibit 1 as benefited lot 1; 2. a right of carriageway in terms of item 3 in Exhibit 1 be imposed on Lot 12 in deposited plan 599070 for the benefit of the land shown in Exhibit 1 as benefited lots 1 and 3; 3. an easement for services in terms of item 12 in Exhibit 1 be imposed on Lot 77 in deposited plan 923520 for the benefit of the land shown in Exhibit 1 as benefited lot 1; and 4. a right of carriageway in terms of item 13 in Exhibit 1 be imposed on Lot 77 in deposited plan 923520 for the benefit of the land shown in Exhibit 1 as benefited lots 1 and 3. 1. Order the plaintiffs to pay to the defendant compensation in the sum of $27,950. 2. Order the plaintiffs to pay the defendant's costs of the proceedings. 3. Reserve liberty to apply in relation to the registration of Exhibit 1. ********** APPENDIX Diagram indicating the location of Lot 12 and Lot 77 in relation to Abbott Street and Cambridge Street. Endnotes 1. See 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 508-9; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445. 2. See City of Canterbury v Saad [2013] NSWCA 251 at [56] – [58]. 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: 09 November 2018