Alramon Pty Ltd v City of Ryde Council - [2022] NSWLEC 108 - NSWLEC 2022 case summary — Zoe

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Alramon Pty Ltd v City of Ryde Council

[2022] NSWLEC 108

Land and Environment Court (NSW)|2022-05-27|Before: Pain J, Community Association DP

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-05-27

Before

Pain J, Community Association DP

Catchwords

[2013] NSWLEC 147 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
[2019] NSWCA 83 D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24103
[2010] NSWCA 71 Khattar v Wiese (2005) 12 BPR 23235
[2012] NSWCA 445 North v Marina (2003) 11 BPR 21359

Source

Original judgment source is linked above.

Catchwords

[2013] NSWLEC 147 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400[2019] NSWCA 83 D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24103[2010] NSWCA 71 Khattar v Wiese (2005) 12 BPR 23235[2012] NSWCA 445 North v Marina (2003) 11 BPR 21359[2003] NSWSC 64 O'Shea v Athanasakis (2009) 14 BPR 27093

Judgment (79 paragraphs)

[1]

20 Marshall v Council of Wollongong (2000) 107 LEGRA 73 Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2005] NSWLEC 467 Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2006] NSWCA 314 Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31257; [2012] NSWCA 445 North v Marina (2003) 11 BPR 21359; [2003] NSWSC 64 O'Shea v Athanasakis (2009) 14 BPR 27093; [2009] NSWSC 1150 Powell v Langdon (1944) 45 SR (NSW) 136 Quick v Alpine Nurseries [2010] NSWSC 1248 Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2 Re Worthston Pty Ltd [1987] 1 Qd R 400 Sader v Langham [2018] NSWSC 727 Serbian Cultural Club "St Sava" Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Sodhi v Stanes [2007] NSWSC 177 Stepanoski v Chen [2011] NSWSC 1573 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845 Vilro v Roads and Traffic Authority (2010) 179 LGERA 47; [2010] NSWLEC 234 Zenere v Leate (1980) 1 BPR 97029 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Alramon Pty Ltd (First Applicant) Coxs Road Investments Pty Ltd (Second Applicant) Coxs Road Group Pty Ltd (Third Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: N Eastman (Applicants) G Farland with M Keene and P Lin (Respondent)

[4]

JUDGMENT

Two proceedings have been commenced in relation to premises along a commercial high street in North Ryde. In Class 1 proceedings the Applicant Alramon Pty Ltd (Alramon) appeals against the refusal of its development application for a childcare centre by the Council of the City of Ryde (Council). The Applicant seeks to rely on access to the Council's car park which adjoins the Applicant's commercial premises for traffic arising from the childcare centre. In Class 4 proceedings the Applicants Alramon, Coxs Road Investments Pty Ltd (Coxs Road Investments) and Coxs Road Group Pty Ltd (Coxs Road Group) seek an easement under s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) in the form of a right of carriageway over the neighbouring Council car park. The Council opposes the grant of development consent in the Class 1 proceedings and the granting of the easement sought in the Class 4 proceedings.
The directors of Alramon were Eleni and Salvatore Cerreto and the director is now Tom Cerreto. Alramon was the registered proprietor of Lot 41 DP560408 (Lot 41) until 29 July 2021. The current registered proprietor of Lot 41 is Coxs Road Investments. The director of Coxs Road Investments is Anthony Cerreto. Alramon was the registered proprietor of Lot 3 DP220894 (Lot 3) until 27 October 2021. Coxs Road Group is now the registered proprietor of Lot 3. Its director is also Anthony Cerreto. Lots 41 and 3 are the land proposed to be benefitted by the easement and are also known as 142 and 144-148 Coxs Road. The Council's land proposed to be burdened is Lot 1 DP605185 known as 150 Coxs Road (the Council Land). Both properties are entered from Coxs Road. There is one applicant in the Class 1 proceedings and three applicants in the Class 4 proceedings. I will refer to Applicants throughout the judgment.
The Court went on a view of the Applicants' land and surroundings including the Council's car park. The Applicants' land and the Council's land are located within a commercial high street along Coxs Road North Ryde. The surrounding area includes a primary school and a range of commercial developments between one and two stories in height. The proposed benefitted land and the Council's car park are situated adjacent to a golf course to the south-west. A church is located at 152 Coxs Road which adjoins the Council land.
The Applicants' land comprises a total area of 2,729.5 square metres and resembles an irregular rectangle with sole frontage to Coxs Road. It is currently occupied by a two-storey commercial building. The ground floor contains 11 single storey retail and/or office tenancies with active frontage to Coxs Road many of which are vacant. The second floor of the building is currently vacant and was previously used as a commercial office. There is on-site car parking at the rear of the building. Car entry to the on-site car park is along a single one-way tunnel driveway from Coxs Road on Lot 3 at one end of the building and exit is through the next-door Council land. Garbage trucks enter the Applicants' land from the Council land as the tunnel driveway from Coxs Road is not large enough for trucks. Egress by vehicles from the Applicants' land onto the Council land has been occurring for decades. The Applicants' have no property rights in the Council's land enabling them to use that land for ingress to or egress from the Applicants' land. The land in its current state is shown in Figures 2 and 4 from the Statement of Environmental Effects produced by Planning Lab dated 11 June 2019 related to the development application the subject of the Class 1 proceedings (Ex E-C1):
The two proceedings were heard together with different documentary tenders of evidence in each proceeding. The order was made in the course of the joint hearing that the oral evidence heard from the traffic, urban designers and planning experts would be evidence in both proceedings.
The Applicants submitted that while the development application the subject of the Class 1 proceedings does rely on access to the Council's land, the Class 4 proceedings are independent and separate and do not rely on the Applicants successfully obtaining development consent in the Class 1 proceedings. The easement sought in the Class 4 proceedings is intended to support the current use of the Applicants' land and also the childcare centre use if granted.

[5]

Easement sought in Class 1 and Class 4 proceedings

The Class 4 proceedings were initially commenced in the Supreme Court and have been transferred to this Court pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (placing them in the Court's Class 4 jurisdiction by virtue of s 20(1)(cj) of the Land and Environment Court Act 1979 (NSW) (LEC Act)). Under s 40 of the LEC Act if an appeal under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) with respect to the granting or modification of a development consent is pending before the Court an appellant may make an application to the Court for an order imposing an easement over land and the Court may exercise the jurisdiction of the Supreme Court under s 88K of the Conveyancing Act.
A second further amended summons in the Class 4 proceedings was filed in court on 27 May 2022 during the hearing given evidence which emerged about the reduced dimensions of the easement sought. The second further amended summons relevantly claims: 1 An order that an easement is imposed, under section 88K of the Conveyancing Act 1919, in the form of annexures A and B to this summons (the easement) over the land at Lot 1 DP 605185 (also known as 150 Coxs Road, North Ryde) for the benefit of Lot 41 DP 560408 and Lot 3 DP 220894 (also known as 142 and 144 -148 Cox Road, North Ryde) being an easement for a right of carriageway. 2 An order that the Applicants must, within seven days of the entry of these orders, deliver to the Respondent a dealing in registrable form providing for the Easement. 3 An order that the Respondent must, within seven days of that delivery, execute and deliver to the Applicants that dealing. 4 If the Respondent does not comply with order 3, an order that the Registrar is authorised to sign a dealing in registrable form providing for the Easement in the name of the Respondent. 5 An order that, pursuant to section 88K(4), the Applicants pay the Respondent compensation for the Easement in the total sum of $10,000. 5A The costs of the proceedings incurred after 25 August 2021 are not payable by the Applicants. 5B Costs. …
The terms of the easement now sought under s 88K of the Conveyancing Act are: 1. DICTIONARY In this instrument: (a) Act means the Conveyancing Act 1919 as amended from time to time. (b) Grantor means the owner of the Lot Burdened. (c) Grantee means the owner of the Lot Benefited. (d) Lot Benefited means a lot benefited by an easement, positive covenant or restriction in this instrument. (e) Lot Burdened means a lot burdened by an easement, positive covenant or restriction in this instrument. 2. Terms of right of carriage way variable width numbered 1 in the plan 2.1 Easement (a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the Lot Benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said Lot Benefited or any such part thereof. (b) Despite term 2.1 (a): (i) the right to go, pass and repass to and from the Lot Benefited is a reference to the existing ground level to a maximum height of 3.933m above that existing ground level of the Lot Benefited; (ii) the right to the use of the Lot Burdened is limited to the existing ground level to a maximum height of 3.933m above that existing ground level of the Lot Burdened; (iii) the right for the relevant persons to go, pass and repass is subject to compliance with the Grantor's reasonable traffic management measures (as communicated in the line markings, signage and other traffic management devices within the Lot Burdened); (c) The Grantor may, for the purposes of developing the Lot Burdened, suspend (wholly or in part) the operation of this right of carriage way so that demolition or construction work may be carried out, provided that: (i) the suspension must be for a reasonable period on reasonable terms; (ii) the Grantor first uses its best endeavours to reach an agreement with the Grantee on the: (A) date of commencement of the suspension; (B) the period of the suspension; (C) the terms of the suspension; and (iii) if the Grantor, having used those best endeavours, is unable to reach agreement -- at least 12-months' written notice is given to the Grantee of: (A) the date of commencement of the suspension; (B) the reasonable period of the suspension; and (C) the reasonable terms of the suspension. (d) If the Grantor wishes to extinguish this right of carriage way, then provided that: (i) the Grantor has granted (or grants) an alternative right of carriage way in favour of the Lot Benefited; and (ii) the practical effect of that alternative right of carriage way is materially the same as this right of carriage way, the Grantee must execute all documents (and otherwise do all things reasonably required) to remove this right of carriage way from the title to the Lot Burdened and to register the said right of carriage way over that land. (e) For avoidance of doubt, this right of carriage way does not confer a right to use any part of the Lot Burdened that is not the subject of this easement in (whether for car parking or for any other purpose). …
Annexure B of the summons shows the two-dimensional survey of the proposed easement and is reproduced below:
The area of the proposed easement is 206 square metres, which is about 20% of the total area of Council land according to the Council.
The area has a common boundary of 24.975 meters with the Applicants' land.
What is not apparent from the survey attached to the easement is that the current access sought to be preserved is to the rear of the southern boundary, beyond the Applicants' building on Lot 41 facing Coxs Road. Access from the Applicants' land does not currently exist along the whole of the southern boundary between the Council land and Lot 41 as the Applicants' building is located on that boundary. The location of the swept path for a garbage truck on the concept plan set out below, Annexure A to the supplementary joint report of the urban designers dated 14 June 2022 being a drawing produced by McLaren traffic engineering (drawing 2020-857-11D) dated 26 May 2022, is to the rear of the Applicants' building. The easement has a variable width to accommodate a turning point on the Council's land to enable use by garbage trucks.
The easement provisions allow car access to be two-way to and from the Applicants' land to Coxs Road via the Council land in the location shown in the above concept plan between the two properties. The proposed easement enables the current building on the Applicants' land to operate whether for its current use or if redeveloped for a child care centre.
As was obvious on the site view undertaken in the course of the hearing, the Council land slopes upwards from Coxs Road to the rear of the Council's car park. The at-grade access to or from the Applicants' land at the present location on the southern boundary of the Council land is described as "existing ground level" in the proposed easement. In the expert evidence summarised below the difference in height across the Council land from front (Coxs Road) to rear is estimated at between 1.8 to 2 metres.

[7]

Remaining issues (MFI 2)

The remaining issues in the Class 1 and Class 4 proceedings were helpfully agreed as stated in a document marked MFI 2, which I set out as follows: 1. General a. Is the use proposed by the easement prohibited? b. If the use of the servient land is prohibited, then is that use inconsistent with the public interest within the meaning of s88K(2)(a) of the CA? c. Is the easement reasonably necessary, within the meaning of s88K(l) of the CA? d. Can the servient owner be adequately compensated, within the meaning of s88K(2)(b) of the CA? e. Have reasonable attempts been made to obtain an alternate easement, as required by s88K(2)(c) of the CA? f. Are the proposed conditions of consent appropriate? 2. Traffic a. What is the impact due to the proposed childcare use, on the servient land as currently configured, of vehicles and trucks using that land? b. What is the impact on the servient land if redeveloped, due to vehicles and trucks using that land? c. Can the dominant land provide access and egress for vehicles including trucks without using the servient land: i. as the dominant land is presently used (Alternate Access 1) and ii. With the proposed childcare use (Alternate Access 2)? d. If so, what are the traffic impacts of each use, if the Alternate Access ls provided? 3. Planning (88K Proceedings) a. What are the redevelopment possibilities for the servient land, and how does the proposed easement impact on those possibilities? b. In town planning terms, can Alternate Access 1 and Alternate Access 2 be provided, and what are its impacts? 4. Urban Design (88K Proceedings) a. What are the redevelopment possibilities for the servient land, in urban design terms, and how does the proposed easement impact on those possibilities? b. In urban design terms, can Alternate Access Scenario 1 and Alternate Access Scenario 2 be provided, and what are its impacts? 5. Valuation (88K Proceedings) a. Which scenario is appropriate for compensation to be assessed (scenario 1 - as is) or Scenario 2 (assuming a sale or redevelopment)? b. What additional factors are to be taken into account (e.g. the amount of PGFA, construction cost and intangible matters)?

[8]

Conveyancing Act 1919 (NSW)

Section 88K of the Conveyancing Act states: Part 6 Covenants and powers … Division 4 Easements and restrictive and positive covenants … 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. … (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. …

[12]

Statement of Agreed Facts

The statement of agreed facts (SOAF) in the Class 4 proceedings (Ex A-C4) states as follows: Statement of Agreed Facts Background 1 The Respondent is the registered proprietor of Lot 1 DP 605185, also known as 150 Coxs Road, North Ryde (the proposed burdened land). 2 At all material times, the Respondent has remained a council constituted under the Local Government Act 1993 for the Ryde local government area. 3 The Respondent is a body politic of the State with perpetual succession and the legal capacity and powers of an individual. 4 The First Applicant was the registered proprietor of: (a) Lot 41 DP 560408, also known as 144-148 Coxs Road, North Ryde (Lot 41) until 29 July 2021; and (b) Lot 3 DP 220894, also known as 142 Coxs Road, North Ryde (Lot 3) until 27 October 2021. 5 From 29 July 2021, the Second Applicant is the registered proprietor of Lot 41 DP 560408, also known as 144-148 Coxs Road, North Ryde (Lot 41). 6 From 27 October 2021, the Third Applicant is the registered proprietor of Lot 3 DP 220894, also known as 142 Coxs Road, North Ryde (Lot 3). 7 The Applicants at all material times while they were relevantly the registered proprietors of Lot 41 and Lot 3 (together the proposed benefitted land) are and have remained a corporation duly registered and capable of being sued under its corporate name and style. 8 The director of the First Applicant is Tom Cerreta. 9 The director of the Second and Third Applicants is Anthony Cerreta. The proceedings 10 The proceedings were commenced by the First Applicant in the Supreme Court under section 88K of the Conveyancing Act 1919 (CA Act). 11 The proceedings have been transferred to the Land and Environment Court as a result of an order made by the Supreme Court under section 1498(1) of the Civil Procedure Act 2005. As a consequence, the easement proceedings are class 4 proceedings (as per section 20(1)(cj) of the Land and Environment Court Act 1979). 12 The Second Applicant was added to the proceedings on 10 September 2021 when the amended summons was filed with the leave of the Court. 13 The Third Applicant was added to the proceedings on 25 March 2022 when the further amended summons was filed with the leave of the Court. 14 The Applicants seek an order imposing an easement over certain land. 15 The Respondent opposes the imposition of any easement. The proposed burdened land 16 The proposed burdened land was transferred from the North Riding Golf Club Limited to the Respondent on 27 November 1979 (dealing R500618). 17 At the time of transfer, the proposed burdened land was zoned "Open Space (b) Recreation Private under the Ryde Planning Scheme Ordinance. 18 The Respondent has used the proposed burdened land as a public car park since this point-in-time. 19 The proposed burdened land is classified as 'operational land' within the meaning of the Local Government Act 1993 (gazetted on 24 May 1996). 20 The proposed burdened land is: (a) subject to the Ryde Local Environmental Plan 2014 (the LEP); (b) located within the 'SP2 Infrastructure' zone under that LEP; (c) the special purpose is identified as 'Car Park' on the LEP 'Land Zoning Map' (LZN_005); [sic] The proposed benefitted land 21 The proposed benefited land currently contains a two storey commercial building. 22 The transfer of Lot 41 to an entity under the ownership and control of the former directors of the First Applicant (Salvatore Cerreta and Eleni Cerreto) was registered on 24 February 1986 (dealing W197832). 23 The transfer of Lot 41 to the First Applicant was registered on 31 May 1994 (dealing U317922). 24 On or around 30 May 2001, the transfer of Lot 3 to the First Applicant was registered (dealing 7944797) 25 On or around 29 July 2021, the transfer of Lot 41 to the Second Applicant was registered (dealing AR286463). 26 On or around 27 October 2021, the transfer of Lot 3 to the Third Applicant was registered (AR557610). Past development consents The 1985 development consent 27 On 26 June 1985, the Respondent granted development consent number A4464 for Lot 41 (the 1985 consent). 28 The 1985 consent was for the erection of a commercial building containing shops. 29 The 1985 consent: (a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end - of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land; (b) in condition 2 required a minimum of thirty (30) off-street car parking spaces being provided, paved, linemarked and maintained at all times to the Respondent's satisfaction and in accordance with the Respondent's standards; (c) in condition 3 required all parking areas to be provided in accordance with the design requirements as set out in then Section 6 of the Respondent's "Parking Code", and thereby increase the width of the manoeuvring area and/or clear width of such spaces to comply with the Respondent's standards; and (d) in condition 4 required the vehicular entry to the property from Coxs Road between Lot 41 and Lot 3 to be widened to 4m and be suitably signposted to the Respondent's satisfaction 'entry only'. The 1986 development consent 30 On 25 June 1986, the Respondent granted development consent number A4834 for Lot41 (the 1986 consent). 31 The 1986 consent was for the erection of a one/part two storey commercial building containing shops at ground level and one commercial/retail area at the first floor level. 32 The 1986 consent: (a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land (b) in condition 2 required a minimum of thirty-three (33) off-street car parking spaces being provided, paved, linemarked and maintained at all times to the Respondent's satisfaction and in accordance with the Respondent's standards; (c) in condition 3 required all parking areas to be provided in accordance with the design requirements as set out in then Section 6 of the Respondent's "Parking Code"; (d) in condition 4 required the vehicular entry to the property from Coxs Road between Lot 41 and Lot 3 to be suitably signposted to the Respondent's satisfaction 'entry only'; and (e) in condition 24 required that the carpark egress to Lot 41 be signposted for left turn only and for parking space no. 23 being relocated to allow service vehicle egress. 33 On 29 October 1986, Mr Brian Woolstone (on behalf of the Applicant of the 1986 consent) wrote to the Respondent seeking permission to potentially install gates at the exit of the car park between Lot 41 and the proposed burdened land. 34 On 2 December 1986, the Respondent wrote to the Applicant granting approval (in principle) for the installation of gates subject to conditions. 35 In February 1987, Mr Woolstone wrote to the Respondent confirming that no gate would be installed. The 1989 development consent 36 On 1 March 1989, the Respondent granted development consent A5781 for Lot 41 (the 1989 consent). 37 The 1989 consent was to enlarge the commercial building, including erecting rear terraces to be built over the car park on Lot 41. 38 The 1989 consent, in condition 1, required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end of the site (between Lot 41 and Lot 3) and exit on the western end of the site through the proposed burdened land. The 2001 development consent 39 On 16 October 2001, the Respondent granted development consent LDA 621/2001 for Lot 3 and Lot 41 (the 2001 consent). 40 The 2001 consent was for alterations and additions to existing shops and offices on the whole of the proposed benefited land. 41 The 2001 consent (a) in condition 1 required development to be carried out substantially in accordance with the approved plans which set out that cars would enter the site through a one-way driveway from Coxs Road on the eastern end 9 of the site (between Lot 3 and Lot 1 DP203393) and exit on the western end of the site through the proposed burdened land; (b) 'in condition 7 requires: (i) signage to be provided adjacent to the driveway from Coxs Road indicating 'entry for cars only'; (ii) 'no exit' signs to also be provided to prevent vehicles from exiting from this driveway; (iii) directional arrows to be provided to indicate the flow of traffic; and (iv) details of the signs and arrows to be submitted on the construction certificate plans. The 2008 development consent 42 On or around 19 November 2008, the First Applicant lodged development application LDA2008/0766 with the Respondent (the 2008 development application). 43 On 14 May 2009, the 2008 development application was recommended for refusal for the following reasons: (a) The proposed development is inconsistent with Clause 51 of the Ryde Planning Scheme Ordinance in respect to the floor space ratio. (b) The applicant's objection under the provisions of State Environmental Planning Policy No 1 is not well founded. (c) The development fails to provide adequate on site car parking. (d) The car park does not comply with AS2890 and the applicant has failed to demonstrate that compliance is possible. (e) The development would require extensive adjustment to the existing Council car park and owners consent has not been granted. (f) The development will result in increased traffic movements which will result in increased conflicts within the on-site car park as well as the adjoining Council car park. (g) The development is inconsistent with the zone objectives and Clause 4.4 in respect to floor space ratio of Draft Local Environmental Plan 2008. (h) The development is an overdevelopment of the site. 44 On or around May or June 2009, the Respondent resolved to defer determination of the 2008 development application affording the Applicant an opportunity to address the Respondent's concerns, following the recommendation of refusal. 45 On or around July and September 2009, the Applicant submitted amended plans which resulted in reassessment by the Respondent. 46 On 3 November 2009, the Respondent resolved to defer determination of the 2008 development application until such time as the Master Plan and the Coxs Road retail centre was completed and adopted by Council. 47 On 15 April 2011, the First Applicant withdrew the 2008 development application. Other consents 48 In addition to the above, the Respondent has also granted the following consents: (a) on 26 November 1986, development consent A5028 for Lot 41; (b) on 11 February 1987, development consent A5109 for Lot 41; (c) on 13 February 1987, development consent A5114 for Lot 41; (d) on 13 November 1987, development consent A5374 for Lot 41; (e) on 3 July 1990, development consent A6231 for Lot 41; (f) on 1 April 2003, development consent 42/2003 for Lot 41; (g) on 15 July 2008, development consent 378/2008 for Lot 41; (h) on 22 January 2015, development consent LDA 2014/0550; (i) on 20 April 2015, modification consent MOD 2015/0025 to modify development consent LDA 2014/0550; and j) on 8 October 2015, modification consent MOD 2015/0056 to modify development consent LDA 2014/0550. The subject development application to the DA proceedings 49 On 12 June 2019, the First Applicant lodged development application LDA 2019/0189 with the Respondent (the subject development application). 50 On 16 September 2020, the Respondent refused the subject development application. Respondent's actions in relation to the proposed burdened land and the proposed benefited land 51 On 13 October 2009, the Respondent resolved that an urban design based master plan study be undertaken to investigate the potential of Coxs Road, Blenheim Road, Putney Village, Boronia Park and Denistone Station. 52 On 3 August 2010, the Respondent resolved that the Small Centres Master Plan Study Report dated 17 May 2010 which attached the Amended Draft Master Plan Report prepared by Olsson & Associated Architects be endorsed in principle and to prepare a traffic analysis report prior to undertaking targeted community consultation for the Coxs Road, North Ryde centre. 53 In relation to Coxs Road, the Small Centres Master Plan Study Report stated "New development is to provide basement parking. In particular, carspaces provided in the existing council carpark will be provided within the basement of the proposed council facility, freeing the Council site for development". 54 On 24 April 2012, the Respondent resolved to endorse the Amended Draft Master Plan Report prepared by Olsson & Associates Architects and the Landowners draft Masterplan dated 6 December 2011. 55 On 26 November 2013, the Respondent resolved to: (a) endorse the proposed burdened land in its 'Property Investment Portfolio' (PIP); and (b) confirm its commitment not to sell or redevelop any of the car park sites (including the proposed burdened land) without substantially increasing the number of available public car parking spaces, together with community benefit, and undertaking comprehensive community consultation. 56 On 8 April 2014, the Respondent considered a report entitled 'Property Investment Portfolio - Management framework and objectives' (Investment Portfolio), and resolved: (a) that the management criteria and objectives for the property investment portfolio be adopted; and (b) that the asset specific strategies and draft action plans for the key targeted properties be endorsed. 57 The Investment Portfolio deemed the proposed burdened land as a property falling within the category 'Investment Properties'. 58 The Investment Portfolio recommended general management framework and objectives including: (a) investment property strategies are likely to involve capital or leasing initiatives to maximise income and lease tenure; (b) to maximise financial returns to Council, PIP properties should be managed and viewed as commercial investments; and (c) number of available public car parking spaces to be maximised in any redevelopment proposal. 59 For the purposes of the meeting on 8 April 2014, the proposed burdened land was identified: (a) as an 'investment property'; (b) as having the current status of 'held as a car park'; and (c) the recommended strategy was 'review options for the site'. 60 On 11 December 2014, the Respondent drafted a report entitled 'City of Ryde Key Properties Portfolio', which: (a) stated that properties within the PIP 'have been earmarked from other properties, allowing specific focus on revenue generating activities consistent with growing Council's revenue base, to support future Council initiatives'; and (b) identified the proposed burdened land as a 'key property' for which the Respondent should consider 'a higher use zoning compatible with adjoining land use.' 61 On 22 September 2015, the Respondent resolved to endorse the 'Strengthening Ryde Initiative - Property Strategy' to be explored and progressed .. 62 On 27 April 2016, the Respondent resolved to commence work to prepare a Coxs Road Masterplan in-house with the engagement of traffic and community engagement consultants and prepare a precinct-wide Planning Proposal for the whole Coxs Road precinct. 63 On 21 February 2017, the Respondent resolved to adopt the Ryde Property Strategy dated 6 October 2016. The Ryde Property Strategy: (a) identified the proposed burdened land as a 'Priority 1' property which were properties identified as priorities for investigation or action within the next three to five years; (b) stated that the proposed burdened lot had potential justification for rezoning; (c) identified the informal access-way for the proposed benefitted land and the adjoining North Ryde Golf Course as 'constraints' with - to the best of Council's knowledge - no easement or legal contract, which could be 'discontinued at Council's discretion'; and (d) noted that the draft master plan for Coxs Roads being prepared at the time 'should provide [the proposed burdened land] with the same development potential as adjoining sites, including zoning, floor space ratio and height limit.' 64 On 12 December 2019, the Respondent resolved to endorse the Planning Ryde: Draft Local Strategic Planning Statement 2020 for referral to the Greater Sydney - Commission. 65 On 21 March 2020, the current Planning Ryde Local Strategic Planning Statement 2020 came into effect, and identifies: (a) Coxs Road as an emerging hubs/retail centre; and (b) That the next Ryde LSPS will include targets to prepare master plans for emerging hubs, including Monash Road and Coxs Road. Page 109 sets out the planning priorities and actions to "create multipurpose, district-level community hub at Macquarie Park and Eastwood. 2030". At page 135, Coxs Road is identified as one of the activity hubs associated with developing Macquarie Park as a health and education strategic centre. 66 Between June 2021 and January 2022 the Respondent carried out works to upgrade Coxs Road. Communications between the parties 67 On 22 April 2021, the First Applicant wrote to the Respondent with an offer to purchase the easement. 68 The Respondent did not accept this offer. No counter offer was made. 69 On 24 March 2022, the Applicants wrote to the Respondent with another offer to purchase the easement 70 The Respondent did not accept this offer. No counter offer was made.

[14]

Applicants' evidence

The Applicants' lay evidence in the Class 4 proceedings consisted of: 1. An affidavit of Norm Cerrato dated 12 October 2021 (with exhibit); 2. An affidavit of Salvatore Cerreto dated 12 October 2021 (with exhibit); 3. An affidavit of Stella Zhao, solicitor, dated 11 October 2021 (with exhibit); 4. A second affidavit of Norm Cerreto dated 15 March 2022; 5. A second affidavit of Stella Zhao, solicitor, dated 19 April 2022; and 6. An affidavit of Sean Aaron Gadiel dated 30 May 2022.
Given the extensive SOAF of the parties including what is set out immediately above in pars 27-48 of the SOAF the affidavits of Mr Norm Cerreto and Mr Salvatore Cerreto do not need to be further summarised. These detail the history of the development consents granted for the Applicants' land including the three consents granted in 1985, 1986, and 2001, conditioned on egress from the Applicants' land via the Council car park. In his affidavit dated 12 October 2021, Mr Norm Cerreto stated that if there is any serious doubt about the ability to use the Council car park for access it is unlikely that the First and Second Applicants would be able to secure new tenants.
Ms Zhao's affidavit of 11 October 2021 traversed the history of Mills Oakley's engagement with these matters and the nature of correspondence between the parties. She deposed to the facts agreed at pars 67 and 68 of the SOAF, that on 22 April 2022 she sent an email to the Council enclosing a letter of offer on behalf of Alramon with an offer to purchase the easement sought or one having the same effect. No correspondence was received in reply. A reply to the offer of 22 April 2021 was not received as of the date of deposition. Proceedings were commenced in the Supreme Court on 7 June 2021. On 26 July 2021 an email was sent to the Council enclosing a without prejudice save as to costs offer to the Council. On 23 August 2021, a letter marked without prejudice was received in reply.
Ms Zhao deposed to the facts agreed at pars 68-70 of the SOAF in her affidavit of 19 April 2022, that on 24 March 2022 she sent an email to Mr Loether solicitor for the Council enclosing a letter on behalf of the Applicant with an offer to purchase the easement sought or one having the same effect dated 24 March 2022. No response was received to this correspondence.
Mr Gadiel's affidavit of 30 May 2022 stated that on 30 May 2022 he sent an email to Mr Loether solicitor for the Council on behalf of the Applicants with an offer dated 30 May 2022 to purchase the revised easement described in Annexure B to the second further amended summons or one having the same effect. As of 30 May 2022 he had received no response to this correspondence.
The Applicants tendered the following lay or documentary exhibits in the Class 4 proceedings: 1. Development consents and associated plans from 1985,1986 and 1989 for 144-148 Coxs Road (Ex B-C4); 2. Tabs 1, 2, 4 and 9 of the Class 4 Evidence Book consisting of a development consent granted to Alramon for 142-148 Coxs Road on 16 October 2021, plans associated with that development consent dated July 2021, a development consent granted to an individual who is not a party to these proceedings for development at 142 Coxs Road on 22 January 2015, and a local planning panel report on the Alramon's DA 2019/0189 related to alterations and additions to existing buildings to accommodate a childcare centre at 142-148 Coxs Road (Ex C-C4); 3. Exhibit SZ-3 to the affidavit of Ms Stella Zhao solicitor dated 11 October 2021 (Ex D-C4); 4. Particulars provided for a DA to erect a business retail development for the purpose of neighbourhood shops dated 7 May 1985 (Ex E-C4); 5. Tab N of the Class 4 Evidence Book (Ex F-C4), subtabs 7-11, consisting of a Community Consultation Draft Plan for Coxs Road Public Domain Upgrades produced for the Council; a Council communication to residents and business owners notifying them of the Coxs Road (North Ryde) Neighbourhood Centre Upgrade; A Site Layout Plan for the Coxs Road (North Ryde) Neighbourhood Centre Upgrade (Site Layout Plan); a concept plan of the Council car park and a Car Park Treatment Plan also produced for the Council; 6. The Class 1 Application which is also Ex A-C1 (Ex L-C4); 7. Tab 39 of the Class 1 Evidence Book, consisting of various DA plans in the Class 1 proceedings within Ex E-C1 (Ex M-C4);

[15]

Council's evidence

The Council's lay evidence was as follows: 1. The affidavit of Mr Dylan Govender council officer dated 8 February 2022; 2. The affidavit of Glen Davis manager of strategic property at the Council dated 10 February 2022;
The exhibit DG-1 to Mr Govender's affidavit became Ex 1-C4 and exhibit GFD-1 to the affidavit of Glen Davis became Ex 2-C4.
The affidavit of Mr Govender traversed: the zoning history of the Council land; the Ryde Planning Scheme Ordinance; development consent No A.4464 (the 1985 consent); development consent No A.4834 (the 1986 development consent); development application No LDA2008/0766 (the 2008 development application; the Small Centres Master Plan Study conducted by Council's strategic planner; the RLEP; the Landowner Masterplan 2011 which was issued by the owners of land in the vicinity of the Council land, including the Applicants; subsequent Council consideration of planning controls in Coxs Road; the RLEP; development application No. LDA2019/0189 for a childcare centre on the Applicants' land; responses to the affidavit of Mr Norm Ceretto; and responses to the affidavit of Mr Salvatore Cerreto. Due to the comprehensive nature of the SOAF, this material was not referred to in the course of the hearing.
The affidavit of Mr Davis addressed the classification of the Council Land under the Local Government Act 1993 (NSW); Council's intention to develop the Council land, the inclusion of the Council land in the Council's investment portfolio; the identification of the Council land as a key property in the Council's key property portfolio; the identification of the Council land as a Priority 1 property by the Ryde Property Strategy; the Council's Coxs Road Draft Masterplan 2017 (Draft Masterplan 2017); preliminary concept sketches of the Council land based on a B1 zoning; and responses to the Applicants' lay evidence.
Mr Davis deposed that in late 2013 the Council resolved to include 17 properties in its property investment portfolio in an effort to improve the Council's revenue base, reduce future funding gaps and improve its overall financial position. The Council land was one of the seventeen properties included in the portfolio. The land was classified as operational land. The purpose of the property investment portfolio was to generate financial and commercial return and future revenue from the investment properties to deliver long-term benefits to the community. In 2014 the Council drafted its Key Properties Portfolio report. The Council land was identified as a key property and the report stated that the Council should consider a higher use zoning of the Council land compatible with adjoining land use.
In 2016 a strategy report was prepared for the Council. It categorised Council properties into three categories. Priority 1 properties were identified as the focus of investigation or action within the next 3 to 5 years. The Council land was a Priority 1 property. The identified property investment objectives included that the Council invest in income-producing commercial and industrial properties and develop or divest at-grade car parks where the transport and parking needs of a centre are shown to be met and reinvest funds through the property investment portfolio. Other car parks were identified as Priority 2. The Strategy report also noted that there was potential justification for rezoning. It further noted that the Council land lies across the road from a community facility and library and redevelopment opportunities should consider both sites. It was recommended that the Draft Masterplan 2017 provide for the same development potential in relation to the Council land as other adjoining sites.
In January 2017 the Council prepared its Draft Masterplan 2017. This is a broad-based conceptual level plan of the potential planning and development controls, built-form and density of buildings within a particular precinct. Under the Masterplan the Council land fell within Test Site 2 (Sites O and P) which would have development controls of: 6,924 square metres of residential gross floor area; 625 square metres of community/commercial gross floor area; expansion of public domain for open space (seven metres from the front property boundary); and 26 underground car parking spaces for public parking. The Council land was site P and the site at 152 Coxs Road was identified as site O. The Masterplan recorded that Test Site 2 (Sites O and P) was the preferred option because it would enable redevelopment of the car park site without reducing the number of accessible car parking spaces. This reflected Mr Davis' understanding of what had been discussed at Council meetings. The Masterplan also stated that this test site option would enable redevelopment of the Council car park and a portion of the Church site (adjacent to the Council land), expansion of public domain, provision of desirable built-form and urban design outcomes and retention of parking provision (minimum of 26 parking spaces underground).
In March 2017 preliminary sketches for a proposed B1 Neighbourhood Centre zoning were prepared by the Council to identify redevelopment opportunities for the Council land. They provided for two levels of basement car parking, ground floor retail and a library/community facility.
The Council tendered lay and documentary exhibits in the Class 4 proceedings as follows: 1. The minutes and attachments to the agenda of a meeting of the Council on 22 March 2022 approving a planning proposal (Ex 3-C4); 2. Extracts of Chapter 2 of the TI SEPP (Ex 4-C4); 3. A planning proposal (PP-20222-1043) gateway determination dated 16 May 2022 (Ex 6-C4).

[19]

McLaren

Mr McLaren's individual report addressed the practicability of access to Lot 41 and Lot 3 without reliance on the Council land before considering the impact of likely vehicular movements on the use of the Council land and the impact of likely vehicular movement on the potential redevelopment of the Council land.
In Annexure C to the report Mr McLaren included swept path testing of the existing tunnel driveway on Lot 3 of the Applicants' land. At Annexure D the detailed count results for existing traffic movements into and out of the car park on the Council land was included based on surveys undertaken in 2019 between 7:00am to 10:00am and 2:30pm to 7:00pm. The results of SIDRA analysis undertaken to ascertain the level of service (a metric based on average delay at an intersection) if the easement were imposed and the child care centre developed were provided in Annexure F. At Annexure H of his affidavit Mr McLaren included a multi-level car park design concept plan with the easement incorporated.
Turning to practicability of access to the Applicants' land, Mr McLaren opined that in light of his analysis, access to the Applicants' land would be impracticable without physical modifications to the existing buildings if reliance on the Council land was not provided. The easement sought is therefore reasonably necessary for the effective use and development of the proposed benefitted land.
The modifications necessary to provide for physical access to and from the Applicants' land would, in accordance with the relevant standards, require a driveway access across Lot 41. For example, Figure 5 of the report showed a concept for two-way access from Coxs Road onto the Applicants' land mid-block. Construction of such a driveway would result in significant loss of gross floor area and parking on the Applicants' land. A corridor would be required through the existing building resulting in a direct loss of existing gross floor area. It is likely that three car spaces on the Applicants' land would be lost.
In light of existing levels in the car park at the rear of the Applicants' land a widening of the existing tunnel driveway (the expanded tunnel driveway option) would likely not be possible and a new access point through the buildings on Lot 41 would be necessary.
Mr McLaren conducted a SIDRA analysis for the purposes of assessing the impact of likely vehicular movements on the use of the Council land if the child care centre was approved. That would be a worst case scenario to establish if there is any impact on the Council car park as a result of the easement sought. The two conflict points analysed were where: 1. traffic enters the Council land from Coxs Road; and 2. traffic exits Lot 41 onto the Council land.
For conflict point 1 there was no change to the level of service and a minor increase in delay of 0.1 seconds. There is therefore no noticeable impact on the function of the car park on the Council land from the child care centre.
For conflict point 2 there is little to no potential to increase delays and queues for vehicles exiting Lot 41 and little to no potential to impact the function of the car park on the Council land as the vehicles entering and exiting Lot 41 must give way to vehicles in the car park circulation aisle.
In relation to heavy vehicle movements, Mr McLaren concluded that as a result of the scheduling of garbage collection in the early morning to avoid peak parking demand, the existing heavy vehicle movements in the car park on the Council land have no impact on the use of the Council land. The reversing movements of the rear loading vehicle (which I note are proposed to be smaller than identified at the time of Mr McLaren's report) may cause delays in the order of 30 seconds or less while the truck enters Lot 41. This delay is inconsequential considering its low frequency. The rear loading vehicle would be required to give way to other vehicles when exiting Lot 41 and would have no impact on the use of the Council land. All other deliveries to the Applicants' land are undertaken by smaller vehicles which are unlikely to have any impact on the function of the Council land as a car park.
In summary, there would be no noticeable impact as a result of likely vehicular movements arising from the proposed child care centre and easement on the Council land, as such movements, including of heavy vehicles, have been shown to cause no unacceptable delay and will not otherwise impinge on the function of the car park on the Council land.
Assessing the impact on a potential multi-level car park built on the Council land, Mr McLaren opined that a multi-level car park could be constructed if an easement for access to the Applicants' land was established (as per the concept plan in his Annexure H). The efficiency of such a multi-level car park would be slightly reduced however the easement would not significantly interfere with or sterilise or impede the ability for a car park on the Council land to be developed and used effectively.
I note that Mr McLaren addressed the impact of likely vehicular movements on the potential redevelopment of the Council land before he was aware that there were more permissible uses on the land than a multi-level car park and before the easement was reduced in size during the course of the hearing.

[20]

Hollyoak

Mr Hollyoak's individual report first addressed his assessment of the impact of the child care proposal on the Council land. Mr Hollyoak opined that after development of the childcare centre on the Applicants' land, if the Council retained the existing at-grade car park, there will be increased delays for all traffic of around 10%.
Mr Hollyoak next identified issues with the proposed easement. Mr Hollyoak agreed with Mr McLaren that the existing tunnel driveway on Lot 3 could not be used as two-way access for cars and garbage trucks. He opined that the existing driveway could be widened and provided with additional height to facilitate cars and trucks based on plans prepared by Mr Olsson the Respondent's urban designer as shown in Figure 10 of his individual report (a ground floor drawing of the expanded tunnel driveway option). There would be a loss of on-street car parking and trucks would have to use both lanes for ingress and egress however that was not significantly different to the proposed easement.
The mid-block option on Lot 41 could also be provided with adequate width and height clearance based on Mr Olsson's plans in Figure 12 of his individual report. There would also be loss of on-street car parking and a turning circle on the land would need to be provided. If the Council land were unavailable, a design could be achieved which would allow all vehicles likely to use the Applicants' land to achieve access to and from the Applicants' land. The expanded tunnel driveway option which widens the existing driveway in terms of width and height and provides a turning facility on site would be the best option.
Mr Hollyoak believed that both the mid-block option and the expanded tunnel driveway option could be provided to an adequate standard with turning facilities for garbage trucks on the Applicants' land. At present the configuration of the Applicants' land means that it is impossible for vehicles to travel in and out and turn around solely on the Applicants' land. A new turning bay/turntable would need to be provided in the car park on the Applicants' land to allow large vehicles to turn around. The expanded tunnel driveway option or mid-block option would also be required.
Mr McLaren's Annexure H has shown how a conceptual car park arrangement might work should the Council land be developed for an above ground development. That option would place significant constraints on the Council's ability to redevelop as it would use a significant area to facilitate the truck manoeuvre. If Council chose to develop an underground car park with no parking at ground level the easement would be much more restrictive of the ability for cars to access the Council land from the Applicants' car park. It was not clear that the proposed easement (which I note was amended after this report) would permit construction either below or above the easement because of the need to provide clearance above any garbage or delivery trucks. It would be extremely difficult if not impossible to provide a compliant ramp to meet a basement in a proposed underground car park.
A number of other issues arise from the easement being at-grade. If Council chooses to redevelop the site in a manner that required hoarding of materials on the Council land, the easement would block vehicular access to the Applicants' land. If the Council wanted to use the Council land for storage for construction works locally or in support of an upgrade of the library at the adjacent block on Coxs Road, an easement would prevent this.

[21]

Joint report

In the joint expert report dated 4 May 2022 the experts discussed two discrete areas: (a) Are there alternative access options which could provide a driveway with sufficient width and height to accommodate trucks and cars? If so, what are the traffic impacts [sic] (b) Would the suggested easement on the Council car park restrict the development potential, the maintenance access and the potential for construction storage on the Council car park site? This could consider both at grade and underground car park options.
In relation to topic (a), they each considered the mid-block option in accordance with Figure 5 of Mr McLaren's individual report and the option of retaining the existing driveway which is an entry only access through Lot 3. Mr McLaren considered the latter as a one-lane driveway whereas Mr Hollyoak considered providing a wider two-way driveway with greater height clearance.
Mr Hollyoak opined that either alternative proposed driveway option could work with adequate width and height. This would require works to the buildings on the Applicants' land to provide the wider/higher opening and result in the loss of a small number of on-street car parking and the loss of on-site car parking to facilitate turning for the trucks within the site. His preference would be for the widening of the existing tunnel driveway as it is already present and pedestrians and cyclists will be aware of cars at this location. It could incorporate pedestrian sight splays.
Mr McLaren stated at pars 1.13 to 1.17: 1.13. CM states that the question as to whether physical works are possible or indeed feasible to achieve direct two-way (or separated entry & exit) vehicular access to and from Coxs Road to on-site parking and servicing within Lots 3 & 41 requires input from planners, urban designers, structural engineers, and traffic engineers. Traffic engineers can simply say that direct vehicular access to and from Lots 3 & 41, without any reliance on Lot 1, is possible, however the feasibility of that access requires input from experts in those other nominated fields of expertise. In isolation, traffic engineering evidence is of limited weight. 1.14. To be abundantly clear, CM does not endorse either a widened existing driveway on Lot 3 or a "midblock" access option on Lot 41 to facilitate direct two-way vehicular access (including provision for service vehicles, which will determine the height of that vehicular access provision) due to its impacts on passing pedestrian traffic (including the elderly, children, children on bicycles / skateboards, disabled, hearing / sight impaired, other vulnerable pedestrians and general pedestrians). 1.15. CM states that a driveway that facilitates exit from on-site parking / service areas along a shopfront pedestrian footpath area is typically not an expected outcome by passing pedestrians. This is further reinforced by Council's own desire to limit or otherwise reduce the number of driveways, particularly EXIT driveways in this local centre. Pedestrians walking across a 3m to 4m ENTRY (from Coxs Road) only driveway is far less hazardous than pedestrians walking along a shopfront and needing to cross a wider driveway with limited "intervisibility" between the array of pedestrian types (referred to in Paragraph 1.14 above) and drivers of emerging vehicles. 1.16. CM further states that emerging drivers will be exiting from a "tunnel" / fully enclosed vehicular corridor and whilst AS2890.1-2004 and AS2890.2-2018 compliant sight lines can also be physically provided, the potential risk of pedestrian / vehicle collisions is still a real outcome as pedestrians generally do not expect traffic emerging from on-site parking / service areas within a shopfront pedestrian footpath environment. The nearby bus stop and schools further inflates this potential risk, as outlined in Paragraph 8.9 of CM's expert report. The probability of pedestrian / vehicle conflict is high in CM's opinion. 1.17. CM states that the council car park is currently in an open form, which is readily understood and observed by passing pedestrians. Any redevelopment of that car park, would, in CM's view require an open setback (as opposed to a zero setback for the shops within Lots 3 & 41), in order to significantly reduce risks to passing pedestrians, which is a consistent view of council that underpinned its reductions of two separated driveways to one driveway, although Council may reconsider separated driveways for any future redevelopment of the council car park, together with an open setback from Coxs Road such that passing pedestrians can readily observe emerging vehicles from on-site parking and servicing areas.
The experts then turned to issue (b). Mr Hollyoak's view was that whether a basement car park proposal or an above ground development with ground level car park is pursued on the Council land, the easement compromises the Council's design as the ground floor level would need to accommodate the easement in terms of grade and the area required for turning trucks. Council garbage trucks may not be able to turn around using the proposed easement and additional turning area may need to be provided elsewhere on the ground floor plan which is inefficient. Accommodating the easement is likely to have significant effect on Council's design of the Council land and does impose constraints. He reiterated the constraints identified by him above in [62].
In response to Mr Hollyoak's concern that council garbage trucks could not use the easement, Mr McLaren was unsure of the inference drawn and not sure that all or part of the easement could not be used by council trucks under a time management condition.
Mr McLaren noted that the redevelopment options on the Council land are uncertain and less weight should be given to those matters. Mechanical means of vehicular access and parking such as car lifts, turntables, car stackers, car shuffler systems and other mechanical devices are possible options similar to conventional car park designs. In response to Mr Hollyoak's opinion above in [62], Mr McLaren stated that retaining access during construction is commonly a matter agreed between the proponent of works and affected owners or the subject of a condition of consent. Truck reversing within the Council land is typically managed by the waste collection operators so that it occurs outside peak hours (e.g. in the early morning) and any issues can be managed with a traffic controller. It was unusual that easements are imposed through development sites including car parks that serve other properties.

[24]

Cirillo

Counsel for the Applicants extracted in his closing submissions pars 19-21, 24-27, 51-61 and 66-71 of Mr Cirillo's individual report.
Mr Cirillo stated that the existing provisions of the RLEP limit the site to continued use as a car park and that any alternative use of the Council land would require a planning proposal to amend the RLEP. I note that this opinion has been superseded by later reports.
Mr Cirillo opined that the key role the Council land plays in the locality is providing public parking, as demonstrated by the Council's commitment to not sell or redevelop without substantially increasing the number of available parking spaces. Referring to the Draft Masterplan 2017 (see above in [37]) and preliminary sketches (see above in [38]), Mr Cirillo opined that it was not clear how Council could undertake such a development without relying on 152 Coxs Road which was not owned by Council. Nevertheless, joint development of the Council land and 152 Coxs Road would not inhibit development of the options in Mr Dickson's first report (see below in [102]) because the massing of any residential development towards the boundary with 144-148 Coxs Road would be similar in either situation. Mr Cirillo agreed with Mr Dickson that the proposed easement would only impact the potential achievable gross floor area of the ground floor and the gross floor area of the upper levels would be unaffected if the Council proceeded with the Masterplan. The Masterplan and preliminary sketches would require a ramp to be located somewhere on the ground floor of the development which would reduce gross floor area anyway. Mr Dickson's opinion that the easement would not prevent redevelopment of the site either in isolation or in coordination with 152 Coxs Road was correct.
The tenancies on the Applicants' land represent the only activation to this part of Coxs Road. Removing retail tenancies to make way for a driveway (to enable the alternative accesses to the Applicants' land directly from Coxs Road) would detrimentally impact upon the streetscape.

[27]

Reasonable necessity - Cirillo

Mr Cirillo stated the proposed alternative vehicular accesses to Coxs Road from Lots 3 and 41 would have negative streetscape and pedestrian and vehicle safety impacts. Specifically, he stated: 27 The area of Coxs Road around 144-148 already contains a multitude of driveways. The addition of a wider or a new driveway into the frontage of 144-148 Coxs Road would increase the number and/or width of driveways to be crossed by pedestrians along Coxs Road, reducing pedestrian safety and walkability of the Coxs Road neighbourhood centre. Conversely, if the proposed easement were granted, an existing driveway already servicing the site would be utilised. 28 This approach is consistent with that which was identified in the Coxs Road (North Ryde) Neighbourhood Centre Upgrade Site Layout Plan which sought to minimise driveway cross overs where possible.
He opined that the proposed easement better promotes the objectives of the Ryde Development Control Plan 2014 and Site Layout Plan (see above in [30(5)]) than the alternatives. At least three parking spaces, according to Mr McLaren, would need to be removed in the existing car park on the Applicants' land to facilitate a widened driveway to Coxs Road. The easement furthers the objects of s 1.3 of the EPA Act by reducing the need for additional driveways, makes more efficient use of land within the local centre, and preserves existing active street frontage on Coxs Road.
Mr Cirillo relied on the evidence of Mr McLaren above in [54] to the effect that there would be no unacceptable delay caused to vehicles using the Council car park from vehicle movements into and out of the Applicants' land. Mr Cirillo also relied on the evidence of Mr Rohan Dickson urban designer who considered a multi-storey car park or alternative use containing ground floor commercial space for the Council land (I note that Mr Dickson and Mr Cirillo's evidence was prepared prior to knowledge of other possible redevelopments). He stated that Mr Dickson's evidence indicates that the easement would not greatly impact the development potential of the Council land. In his opinion the proposed easement would not substantially impact the future development potential of the Council land if it was rezoned. There would be a small loss of gross floor area at ground level with upper levels unaffected. He agreed with Mr Dickson that a driveway would be located in the same area of the Council land regardless of whether an easement is granted. The alternative options for egress are inappropriate and the proposed easement would not prevent the redevelopment of the proposed burdened land.
Unlike Mr Clendenning, Mr Cirillo considered that there was no reason to assume that potential rezoning of the Council land was certain or likely, albeit it was possible.

[28]

Reasonable necessity - Clendenning

Mr Clendenning stated the following: 60. I do not consider that there is a reasonable necessity for the Proposed Easement. It is not a necessity, and it is agreed that there are other options to providing a carpark which functions independently of the Council Land. 61. With regards to impacts associated with active frontages and the streetscape, I do not believe this warrants a reasonable degree of necessity. There are no planning controls which prescribe active frontages in this location, or that prescribe that driveway areas in this location should be minimised through site consolidation, the sharing of driveways or the like… …
The prospect of a driveway large enough to contain vehicular movements within the Applicants' land would create limited negative impacts on the character of the locality. There is already an existing crossover on the Applicants' land to Coxs Road which could be expanded. The active frontage that is provided is sufficiently wide that an expanded driveway would not unduly impact the commercial character of the area. As there is no rear or alternative vehicular access available, driveway crossovers are relatively commonplace within the Coxs Road commercial strip. If the alternative access options are adopted a larger active frontage could be provided on the Council land in the future which would more than offset the lost active frontage on the Applicants' land. The granting of the easement would severely inhibit the capacity of the Council land to be used for an alternative purpose in the future.
Mr Clendenning stated that providing a vehicular crossing to the Applicants' land will come at some expense and will reduce floor space that is available towards Coxs Road. However, in his experience these design considerations are a relatively ordinary part of the redevelopment of land.
The agreed alternative access options do not fundamentally change the use of the Applicants' land which can continue to be used as a multi-unit commercial property with an active frontage and similar street presentation. Such options would give the operators of the site complete control of vehicular access. The lost developable area if one of the alternatives were adopted is likely to be a small portion of the development area gained through the proposed child care centre, which is to be contrasted with the significant burden of the easement on the Council's use of its land. Elaborating on that burden Mr Clenndenning relied on the traffic evidence of Mr Hollyoak's traffic evidence, including his opinion that after the development of the child care centre there will be marginal increased delays post traffic development of around 10%. Mr Clendenning's view was that the impacts of the easement would materially affect the existing use of the Council land even if its use was not changed.
On the subject of the easement's impact on a multi-storey car park scenario for the Council land, Mr Clendenning opined: 80. …If the Proposed Easement were granted, it would be the responsibility of the owners of the Council Land to ensure that the point of access between the two properties is provided at grade. The proposed point of access (i.e. where the easement adjoins the Alramon Land) is approximately 1.8 - 2 metres above the street level of Coxs Road (scaled from the existing elevation plan and not notated on the submitted survey). Any future development on the Council Land would need to account for that connection at the existing grade. 81. The most efficient design for a multistorey car park may be for a ramp downwards from Coxs Road, or for a ramp that rises at a gradient that does not meet the egress point from the Alramon Land at grade. The Proposed Easement could interfere with an efficient design of a multistorey car park. 82. The Proposed Easement would constrain the multistorey carpark use as outlined by Mr Hollyoak in his affidavit from [77] - [80]. Moreover, at Figure 5 attached to the affidavit of Mr Olsson, the Proposed Easement would interfere with the low ceiling heights associated with a multi-storey car park development at the Council Land. This may not need to constrain a development that was contained within the Neighbouring Land, as the proponent would be able to pursue options to adjust ceiling heights as needed. A multistorey car park designed with ceiling heights determined by a neighbouring development is not, in my view, an efficient design for a carpark. 83. At [72] - [74], Mr Hollyoak has outlined how a multistorey basement carpark on the Council Land would be significantly constrained by the Proposed Easement. …
In Mr Clendenning's view a planning proposal to rezone the Council land to B1 Neighbourhood Centre would likely have strategic merit. Proper consideration of the reasonable necessity of the easement would involve consideration of currently prohibited land uses for this reason. At pars 97 and 98 he concludes on reasonable necessity: 97. The imposition of the easement sought will have a material adverse effect on the role, function, use or re-development potential of the proposed burdened land. It will significantly impede development on the Council Land. 98. The denial of the easement will not severely constrain the capacity of the Alramon Land to be used for commercial purposes or for the purposes of a child care centre, but would severely constrain the use of the Council Land.

[29]

Public Interest

On the subject of public interest, Mr Cirillo's view was that the easement is consistent with the public interest given his previously expressed view that the easement would be consistent with the objects in s 1.3 of the EPA Act and the aims in s 1.2 of the RLEP.
Mr Clenndenning was of the view that a multi-storey car park or mixed-use development with basement parking is a more efficient use of land than an at-grade car park. At-grade car parking is becoming a less preferred use of public land. It is relatively common for low-rise commercial strips to be subject to rezoning or other changes permitting an uplift in development potential. The easement would interfere with Council's capacity to provide a civic development on the land and impair the capacity to adapt to planning controls which do not mandate vehicular parking on the site (were planning controls to change). These factors are contrary to the public interest. The need to maintain access to the Applicants' land will be prioritised over the best outcome for the community. At par 120, 126 and 127 Mr Clendenning stated: 120. The Easement is not an incidental consideration in the development of the Council Land, but a critical and fundamental constraint for future redevelopment that would prevail over Council's intent to improve the manner in which the land meets the needs of the public. … 126. The Proposed Easement would provide an unnecessary barrier to a master plan which sought to maximise pedestrian safety or streetscape benefits. Even if Council were to nominate the Council Land for a purpose other than a car park, in a manner which could somehow still accommodate the Proposed Easement, the complexity in pursing development on that land could result in the orderly redevelopment of the Council Land remaining unrealised beyond the expect timeline of the realisation of a future master plan. 127. The Easement would constrain the Council in that the need to maintain access to the Neighbouring Land would be necessarily prioritised over the best outcome for the community and the orderly development of the Council Land.
Both Mr Cirillo and Mr Clenndenning opined on the burden or lack thereof to the Council of the loss of parking spaces in the Council car park as a result of the imposition of the easement. The Court is unclear whether that evidence remains current as it may have been affected by the revision of the easement to a smaller size in the course of the hearing.

[30]

Oral evidence

In cross-examination Mr Cirillo was asked whether in light of his further supplementary joint report with Mr Clenndenning dated 25 May 2022 Mr Cirillo's statement that alternative uses of the Council land would require a change in the RLEP was not correct. Mr Cirillo confirmed that it was no longer correct. Mr Cirillo also confirmed that the statement that the development potential of the Council land was limited in substance to a more intensive use of the car park was incorrect. Mr Cirillo accepted that the ground floor of the Council's concept plan preliminary sketch for the redevelopment of the Council land as shop top retail (see above in [38]) could not occur with the driveway to the north if a driveway was needed to connect to the Applicants' land.
Mr Cirillo confirmed that pars 62-63 of his individual report remained his evidence, to the effect that the imposition of the easement sought will not have any material adverse effect on the role, function, use or re-development potential of the proposed burdened land and will not sterilise, significantly interfere with or impede the use and enjoyment of the servient tenement.
Mr Cirillo agreed that the Council land must accommodate the driveway by connecting to the Applicants' land if the easement is approved. He agreed that the driveway access has to connect at the existing ground level of the Applicants' land and that the Council could not build a wall in the location of the connection to the Applicants' land. He agreed that the Council could not excavate to provide a level site without accommodating the driveway to the Applicants' land. He maintained that this was not a significant interference with the Council land.
Mr Cirillo accepted that Scenario 6 Figure 11B, annexed to the joint urban design report dated 14 June 2022 (below in [116]) showing the expanded tunnel driveway option on the Applicants' land, was not physically impossible to build. He had substantial town planning concerns however he was not suggesting that these would prevent construction of that scenario. He also accepted that the mid-block option was feasible noting his previously expressed pedestrian and traffic safety concerns. He accepted that if there was a blank wall where the current access for the Applicants' land was, the owner would seek to achieve access on that site.

[32]

Mr Dickson

In his individual report, Mr Dickson set out his opinion with respect to the effect of the easement on the redevelopment potential of the Council land. Mr Dickson considered two multi-storey car park options that retain the proposed easement along the common boundary between the Council land and Applicants' land, the first a three-storey above ground option (option 1) and the second an option with two basement levels (option 2). Mr Dickson also considered a mixed-use commercial and residential development on the Council land (option 3) and mixed-use commercial and community facility development on the Council land (option 4). Option 4 was similar to the Council's preliminary sketches based on a B1 zoning (see above in [38]). It also incorporated changes which resolved urban design problems with the Council's sketches in Mr Dickson's view.
Counsel for the Applicants referred to the following extract in his closing submissions: 25 Under the current planning framework, in my opinion, there is no basis in statutory decision making to use the land for anything other than what the land is currently zoned, being SP2 Infrastructure - Car Park. In my experience, master plans (particularly ones endorsed by Council) are used to inform planning proposals or DCP controls. Council has declined to realise the outcomes of these master plans after considering and eventually endorsing them. On this basis, it appears that the endorsed master plans purely seem to be speculation. … 37 In 2017, Council identified the highest and best use of the proposed burdened land for a shop top housing development with a height up to 7 storeys in the internal draft of the Coxs Road Master Plan (Excerpt at Attachment 5). 38 It appears Council anticipated the redevelopment of the proposed burdened land in conjunction with a portion of the neighbouring SP2 zoned land to the north-west at 152 Coxs Road, whilst retaining a minimum of 26 underground car parking spaces. 39 There are no details on how basement car parking that retains 26 publicly accessible car spaces and provides enough car spaces for 6,924m2 of residential GFA (approximately 85 units) can been achieved without amalgamating the two properties. Vehicle ingress and egress locations have also not been disclosed in the 2017 Coxs Road Master Plan. 40 The property at 152 Coxs Road is not owned by Council. 41 A Planning Proposal to amend the land use zoning and height of buildings development standards would be required to realise a shop top housing development. As the proposed burdened land and the property at 152 Coxs Roadare in separate ownership, there is no certainty that such Planning Proposal would be approved. 42 In my opinion, if a Planning Proposal was successful, the proposed easement would not have any material adverse effect on the re-development potential of the proposed burdened land. …. 58 Shop top housing development, as contemplated by Council in their master plans, could only occur on the proposed burdened land if Council proceeded with a Planning Proposal to rezone the proposed burdened land to another land use zone that permits (with consent) shop top housing development. The LEP permits shop top housing in the following (but not limited to) land use zones, R1 General Residential; R4 High Density Residential; B1 Neighbourhood Centre; B3 Commercial Core; B4 Mixed Use. 59 Even if a Planning Proposal was lodged to rezone the proposed burdened land, there is no certainty that it would be approved. 60 If a Planning Proposal was successful, the proposed easement access would not have any material adverse effect on the re-development potential of the proposed burdened land if: a. Council proceeded with the built form outcomes in the 2017 Coxs Road Master Plan. b. Council developed in isolation as shown in Options 3 and 4 above and noting that amalgamation cannot be guaranteed. In both instances, public car parking is retained.
Counsel for the Applicants also extracted the following from Mr Dickson's individual report in the context of the burden on the Council's possible redevelopment of the Council land in the future arising from the imposition of the easement: 29 If the proposed burdened land was redeveloped into a multi-storey car park, the proposed easement will not have any material adverse effect on its redevelopment. I have considered two multi-storey car park options (See Attachment 2) that retain the proposed access easement along the common side boundary of the proposed burdened land and the site to demonstrate this. I note these multi-storey car park options are subject to the detailed review of the Plaintiff's traffic expert. a. Multi-Storey Car Park Option 1 i. 3 storey height above-ground ii. Total of 53 car parks b. Multi-Storey Car Park Option 2 i. Ground + 2 basement levels ii. Total of 59 car parks 30 Both multi-storey car park options are consistent with the swept paths prepared by McLaren Traffic Engineers dated 17 February 2022 (Attachment 3). 31 The ramp used for Option 1 is consistent with the ramp for the Concept Car Park Design (Annexure H of Mr Craig McLaren's evidence. Advice from the Plaintiff's traffic consultant was obtained in relation to the basement ramp for Option 2. Preliminary swept paths for the basement ramp can be found in Attachment 4. 32 Both multi-storey car park options provide in excess of the existing number of car parking spaces currently available on the proposed burdened land. In my opinion, Option 2 would be more desirable in terms of streetscape presentation and visual amenity to neighbouring properties. 33 Multi-storey Car Park Option 2 incorporates 2 basement levels below the proposed easement. I rely on the Plaintiff's traffic expert to provide detailed advice on the access arrangement during construction stage of a basement on the proposed burdened land. 34 In this regard, the multi-storey proposed access easement does not impeded [sic] on the redevelopment potential of the proposed burdened land into a multi-storey car park under the current planning controls.
In the context of addressing the impact of the easement on redevelopment of the Council land for a use other than as a car park, Counsel for the Applicants extracted the following aspects of Mr Dickson's individual report (including pars 41 and 42 of that report extracted above in [101]): 44 A minimum setback of at least 6m to the south-eastern side boundary would be required for the first 4 storeys. This figure is consistent with the Applicant's proposed access easement arrangement on the proposed burdened land. 45 The impacts of the proposed access easement in its existing location would only impact potential ground floor commercial or retail gross floor area (GFA). There would be no impacts to potential residential GFA. 46 In this regard, the proposed easement access would not have any material adverse effect on the redevelopment potential of the proposed burdened land if Council proceeded with the built form outcomes in the 2017 Coxs Road Master Plan. 47 Secondly, as amalgamation cannot be guaranteed, the following mixed-use development options (Attachment 2) could be considered if the proposed burdened land was developed in isolation: a. Mixed-Use Development Option 3: i. Existing location of vehicle access and proposed access easement retained. ii. Basement car parking with a total of 57 car parking spaces. iii. Mixed use development: • Ground floor commercial/retail tenancies • Upper level residential. b. Mixed-Use Development Option 4: i. Existing location of vehicle access and proposed access easement retained. ii. Basement car parking with a total of 57 car parking spaces. iii. Mixed use development: • Ground floor commercial/retail tenancies • Upper level community facility. 48 Both options demonstrate the redevelopment of the proposed burdened land whilst retaining the existing vehicular access and proposed access easement into the site. The options provide a high-level development scenario that provides opportunity to retain public car parking spaces via basement levels. Advice from the Plaintiff's traffic consultant was obtained in relation to the basement ramp (See preliminary swept paths at Attachment 4). 49 Detailed feasibility would be required to investigate the residential parking component required for Mixed-Use Development Option 3, however this would be subject to any proposed height, FSR or any built form controls of a potential planning proposal. 50 Mixed-Use Development Option 4 presents a similar development scenario explored by Council in their preliminary sketches based on a B1 Neighbourhood Centre zoning as disclosed by Mr. Davis at paragraph 70-73 in his Affidavit filed 10 February 2022. 51 Similarly with Council's preliminary sketches, Mixed-Use Development Option 4: a. Provides basement car parking; b. Activates the street frontage along Coxs Road; c. Provides a public benefit through the provision of community facilities above ground retail tenancies; d. Provides employment opportunities. 52 Whilst I acknowledge Council's sketches were preliminary, based on my review: a. Access to retail tenancies from basement car parking appears to be via the rear of the building, which is not a good urban design outcome and would result in poor sightlines and implicate way-finding. b. There doesn't appear to be any consideration to waste storage; loading areas or the provision of fire stairs. 53 Mixed-Use Development Option 4 resolves these issues. 54 As demonstrated in the Mixed-Use development scenarios, in my opinion, the proposed easement would not have any material adverse effect on the re-development potential of the proposed burdened land if developed in isolation.

[33]

Mr Olsson

In his individual report, Mr Olsson considered that the child care centre development could proceed without the benefit of the easement and identified two possible access points within the Applicants' land from Coxs Road with the expanded tunnel driveway option preferred from the mid-block option from an urban design perspective on the Applicants' land (Figures 10, 11, 12, 13). He further considered that from an urban design perspective, the Applicants' land could give effect to the Applicants' proposed development by having an expanded tunnel driveway (Scenario 6 Figures 10, 11) or mid-block access (Scenario 7 Figures 12, 13).
Developments available on the Council land if the easement is not granted include the potential for development with the North Ryde Library site to the north together with the car park. These would be desirable and feasible.
Possible future uses of the Council land if the easement is granted are restricted (Figures 5 and 6 show a multi-level car park scenario on the Council's land). The Council will need a taller car park to accommodate the easement height which is more expensive and less efficient. There will be reduced design options (including compromising the ability to develop a skatepark or park) and a loss of potential functionality of the Council land.
Mr Olsson's view was that the easement is designed to serve the purpose of enabling the proposed child care development given its terms and layout. The irregular geometry of the easement is unlike that of a typical road and is conceptually part of the child care centre.
Community facilities are likely to be permitted on the Council land, and will be constrained by the easement: see Figures 7, 8. Figure 9 shows a retail and residential shop-top development scenario on the Council's land. Community facilities which could potentially be developed on the Council land are a two-storey community facility with basement level car park (possibly in conjunction with a twin facility across Coxs Road where the library is located), a skate park, or a park. Mr Olsson also responded to various issues raised in Mr Dickson's report which are unnecessary to further discuss given the later joint reports.

[34]

First joint report

In the joint report of the urban designers dated 12 May 2022 they addressed whether the easement is reasonably necessary adopting the language of s 88K(1) of the Conveyancing Act. The experts discussed other permissible uses arising from the Council's planning proposal to allow community facilities on SP2 zoned land, which had not yet been determined.
Mr Dickson's opinion in full was as follows: 3 The options for the redevelopment of the proposed burdened land are limited to more intensive car parking and roads. These uses are permissible as any other uses would require the site to be rezoned. The proposed road will be a private road and as such is permissible in the zone. • I note Mr Olson offers two other potential uses arising from the adoption of Council recent Policy to allow community uses. These include a skateboard park and local park. • The additional uses would only be permissible if and when the rezoning is achieved. • A review of select skateboard parks in the LGA located at Sturt Park, Telopea; North Ryde Skate Park, Macquarie Park; and Meadowbank Skate Park, Meadowbank, reveals that skate parks are larger than the burden and are located within other public spaces. • Council Open Space Review for 2036 does not identify the need for a local park in the neighbourhood centre 4 The imposition of the easement sought will not have any material adverse effect on the role, function and use of the development potential of the proposed burdened land as: • The concept options included in my evidence paragraphs 27-35 illustrate how the burdened site could be developed. • Provision of 4.2 metre floor clearance is appropriate on any site to allow garbage collection by Council. • Although the current SP2 zoning only permits a carpark and roads, the Council's potential development of a multi-level carpark to accommodate a 4.2m height on the ground level would be desirable. It would provide the flexibility of the car parking structure to be converted into a community use building that would be consistent with the changes proposed for the permissible uses within the LEP SP2 zoning. • From an urban design and an architectural perspective, if the site were rezoned, I would expect retail commercial and community uses on the ground level fronting Coxs Road. Council garbage trucks would have to access the site to collect garbage. It is unlikely Council would use a private contractor who uses smaller trucks to pick up garbage for their own developments. • Proposing a single, double access point along the south-east side boundary of the Applicants site would result in an additional dual access point along Coxs Road approximately 25m away from an existing single, double access point for lots 136 and 138 Coxs Road. • Proposing a single, double access point with a minimum height of 4.2m central to the site would result in finish floor levels not aligning with the existing building. It will require stairs/ramps within the child care outdoor play spaces and restrict the separate childcare buildings would not have an internal connection between classrooms. • Based on Figure 9 of RO evidence demonstrates that the proposed easement will not reduce the GFA on the Council land. The area located within the proposed easement is storage and a fire stair which is not considered GFA. Based on the turning requirements for trucks within the Council land and the location of the basement ramp, the area within the proposed easement will unlikely ever be used for retail or commercial uses; therefore the loss of floor area is not significant. • The scenarios included in my evidence anticipate that the truck movement for the council land would have a similar movement within the proposed access easement and reverse into 144-148 (Applicant land) to turn around. • The proposed easement currently addresses the existing car park layout. Suppose Council were to develop the land and prefer trucks to turn wholly within the Council lot. In that case, the applicant easement can be reduced and consistent with the loading area identified in figure 9, as the loading for the Council lot will require a minimum ground level height of 4.2m.
Mr Olsson's opinion in full was as follows: 5. The proposed easement is not reasonably necessary for the effective development of the proposed benefitted land, as car and truck access to the applicant's site can be gained from Coxs Road as demonstrated in 2 design options in Figures 10, 11, 12 and 13 of [Mr Olsson's first report]. These 2 design options allow for vehicle access and egress from the site and the effective use of the site as the uses proposed. The 2 design options would require minimal change to the functioning of the proposed Child Care Centre and ground floor shops. The option in Figures 10 and 11 [expanded tunnel driveway option] requires the least interruption to the shops and Child Care Centre and its outdoor play space and is a reasonable design solution. The Option in Figures 12 and 13 [mid-block option] is a reasonable alternative. 6. The options for the re-development of the proposed burdened land under the current zoning include a multilevel carpark. Multi-level carparks are most economical when the floor-to-floor height of each level is less than 3.2m high and is typically 2.8m high. The Council could build a multi-level carpark on its site, as a carpark does not require garbage truck access, as there are no habitable uses in a carpark. The existence of the neighbours easement would force the Council to have a ground floor height of at least 4.2m high to accommodate the neighbours garbage truck (Figures 5 and 6 of Statement by Russell Olsson [first report]). This is an unreasonable imposition on the Council owned property. 7. Two other potential uses arise from the recent adoption of Council Policy to allow community uses. A Council owned park or skateboard park would be achievable outcomes following the Council policy. The existence of an easement for truck and car access would render a park or skateboard park unsafe and unworkable, creating a substantial loss to public recreation and amenity. 8. Mr Dickson says that the scenarios included in his evidence would require the Council truck to reverse into 144-148 (Applicant land) to turn around. That is not legal and Mr Dickson's proposal would not be a legal development application. Further, it is not in Council's interest to reverse its truck onto the neighbour's land. 9. Mr Dickson says that the necessary area for 2 truck turning bays shown in Figure 9 in my evidence would not reduce Council's GFA. However, it does limit the design options for Council and uses more area on Council's site for servicing than if the Council had sole use of its own site without having to accommodate the easement. The easement makes any Council development of its land less efficient and more expensive that it would otherwise be. 10. Mr Dickson says that the current easement is located in relation to the existing carpark layout and that if Council were to re-develop its site for other uses, the easements could be re-located. This demonstrates that the current siting of the easement would impact on future uses by Council, causing unnecessary nuisance to Council. 11. The existence of the easement on Council's site would require Council to keep the easement operational during maintenance operations such as re-surfacing the existing carpark, otherwise the Child Car Centre would not have car access or a waste service. This could require the Child Care Centre to close for the duration of the maintenance. 12. The ground level R.L. of the proposed car and truck entry and exit across the boundary with Council's carpark would have to be retained by Council in any form of re-development of the carpark site. This would limit the design options for Council to set floor levels in any development of their site. 13. The distance between having 2 car and truck entries and exits, one on the applicant's site and one on the Council site, is common in Sydney and is consistent with the pattern of existing vehicle cross-overs in Coxs Road, as shown in Figure 14 of my expert witness statement [first report].

[35]

Supplementary joint report

The supplementary joint expert report of the urban designers dated 14 June 2022 responds to the dimensions of the proposed easement as revised (reduced) during the course of the hearing. By this time the gateway determination referred to above in [40]-[41] had occurred and the town planners had identified the impact of the TI SEPP on land zoned SP2. I note that the plan used by both urban designers as a primary reference point for the dimensions and functions of the easement appeared in Annexure A as designed by Mr McLaren's firm (see above in [13]). They also referred to the plan attached to the easement (see above in [10]).
Additional attachments include Annexure B, a photo of unknown provenance which details the clearance requirements for a Cleanaway garbage truck. Annexure C was an image prepared by Mr McLaren of a Cleanaway garbage truck containing further details of its characteristics. Annexure D included a number of concept drawings produced by Mr Olsson's firm on 7 June 2022: 1. Scenario 1 Figure 4A shows the existing car park with the revised easement on the Council's land; 2. Scenario 2 Figure 5A shows a multi-level car park scenario incorporating basement levels and the easement on the Council's land; 3. Scenario 2 Figure 6A also shows an above-ground multi-level car park scenario for level 1 (ground), level 2 and level 3 and the easement on the Council's land; 4. Scenario 3 Figure 7A shows a community facility scenario with a basement parking level, level 1 (ground) and level 2 on the Council's land; 5. Scenario 4 Figure 8A shows a retail and commercial facility scenario with a basement parking level, level 1 (ground) showing the easement and level 2 (including a courtyard) on the Council's land; 6. Scenario 5 Figure 9A shows a retail and residential facility scenario with a basement parking level, commercial level 1 (ground) showing the easement and residential level 2 with a courtyard on the Council's land; 7. Scenario 6 Figure 10A shows a ground floor plan of the Applicants' land with existing tenancies and a section incorporating the expanded tunnel driveway option and showing swept paths for a waste truck onto Coxs Road and on the Applicants' land at the rear of the building on Lot 3; 8. Scenario 6 Figure 11A shows the first floor plan and section for the expanded tunnel driveway option incorporating a child care centre on the Applicants' land; 9. Scenario 7 Figure 12A shows a ground floor plan of the Applicants' land with existing tenancies and a section for the mid-block option with swept paths for a waste truck; 10. Scenario 7 Figure 13A shows a first floor and a section for the mid-block option incorporating a child care centre with swept paths for a waste truck; 11. Scenario 8 Figure 15 shows a community facility scenario on the Council's land with basement parking, level 1 (ground) community facility with a driveway in the north-western corner and level 2 community facility with a courtyard; and 12. Figure 16 is a table showing the gross floor area of all of the proposed scenarios in metres squared.
Annexure E provided additional scenario concept drawings produced by Mr Olsson's firm on 10 June 2022: 1. Scenario 2 Figure 5B showed a multi-level car park scenario on the Council land with two basement levels. The section drawing for Scenario 2 shows that the height of the basement levels and level 2 is between 2.8 and 2.9 metres. The height of level 1 (that is, the ground floor) is shown as needing to accommodate 3.6 metres, being the height of the private garbage truck proposed to be used to service the Applicants' child care centre with the addition of 0.2 metres to comply with relevant Australian parking standards (off-street commercial vehicle facilities); 2. Scenario 6 Figure 11B showed a first floor plan of the childcare centre on the Applicants' land with the expanded tunnel driveway option; and 3. Scenario 7 Figure 13B showed a further first floor plan of the childcare centre on the Applicants' land with the mid-block option for access.
The figures in Annexures D and E showed that the frontage of Lots 41 and 3 along Coxs Road measures 74.98 metres.
Annexure F contained an email from Mr McLaren to Mr Dickson and the experts' qualifications.
Mr Olsson stated that based on Annexure B, the clearance height to any obstruction within the easement is 3.6 metres. Where the truck swept path is under a floor or above an outdoor play area the clearance height is 4.2 metres. Given his design for a multi-level car park in Figure 5B, the need for a 3.6 metre high truck clearance would make a multi-level car park less efficient than typical multi-level car parks, which would have a lower clearance. An electric vehicle facility, a permissible use, would also have a lower clearance.
Mr Olsson also stated that the location of the easement on the southern boundary of the Council's land connecting to the car park on the Applicants' land would force the Council to locate the driveway for any future land use along the southern boundary. Locating the driveway anywhere else would result in a doubling up of driveways, one for the easement and one for the Council. An approximately 12 metre width for two driveways would substantially reduce the frontage for active uses which would be a poor urban design outcome. If the easement did not exist and the Council could locate the driveway along the northern boundary, a community facility such as a library or theatre could be located along the southern end of the street façade allowing for continuous active frontage of shops, a better urban design outcome.
The easement is inefficient for the Council's ground floor layout as shown in Figures 7A, 8A and 9A. The Council's garbage truck must perform turning movements outside the dimensions of the easement to service the site. No additional gross floor area is achieved in the revised easement compared to the original easement sought.
The revised easement places the same impositions on future levels of the Council's land as the original easement. The Council would have to maintain the same relative level (RL) at the Applicants' land at the boundary between the lots. There is a height difference of 1.56 metres requiring a height of 6.06 metres at the street frontage to accommodate the garbage trucks. If it didn't have to accommodate this, the Council's development could have a 4.5 metre ground floor height.
Mr Dickson stated that it is possible to effect any of the various development scenarios identified in Mr Olsson's supplementary expert report of 7 June 2022. All of the scenarios except that where the proposed easement is granted require an additional vehicular crossing on Coxs Rd contrary to best urban design practice, which suggests that vehicular crossings should be minimised along a retail street to maximise active street frontage and continuity of built form. Mr Olsson's Scenario 6 and 7 would break up the retail frontage although Scenario 6 to a lesser extent. Mr Olsson's Scenario 6 Figure 10A and Figure 11A and Scenario 7 Figure 12A and 13A should incorporate a lower height than the openings proposed given the height of the smaller garbage truck now proposed.
Adopting Mr Olsson's Scenario 6 or 7 will add another driveway crossing along the southern side of Coxs Road negatively contributing to the already significantly eroded active street frontages. Mr Dickson agreed with Mr Olsson that if the Council land was used for an electric vehicles facility that would be unlikely to contain gross floor area for habitable spaces as it would be used for the garaging of cars however such a use could be provided in conjunction with other uses. Mr Dickson agreed with Mr Olsson that if a multi-level car park were to be built, that would require a 3.933 metre floor to ceiling height for garbage trucks. Best practice would be to have the height at that level in any case to accommodate other uses such as retail or community uses. If the Council were to develop the site for community or other uses, these would require garbage collection. Council garbage trucks with a height of 4.5 metres would be required and the ground floor would need to accommodate this height.
The easement allows the Council to extinguish it if an alternative right of carriageway is provided. Therefore, contrary to Mr Olsson above in [120], if the Council were to redevelop its land two driveways need not be developed, nor would the Council be burdened to retain the right of way in that location. Mr Dickson was unsure why Mr Olsson was proposing a driveway in a different location to the southern boundary of the Council land in Figure 15 (a concept plan for a community facility scenario on the Council land) when the easement would provide access to both sites. There would not need to be a doubling up by providing an access located in the north-west corner. There is a 1.26 metre difference between the RLs at the ground level on the southern frontage corner and the ground level at the northern frontage corner. If a driveway were to be located along the northern boundary as illustrated in Figure 15, a 3.933 metre ground floor height would be required resulting in a ground height of 4.76 metres at the southern boundary. If the driveway were located along the southern boundary a 3.933 metre ground floor height would still be required along the northern boundary. Mr Olsson's proposal in Figure 15 would also locate another dual-width driveway adjacent to the existing driveway servicing the northwest side of the Council land and existing pedestrian crossing.
Mr McLaren's comments (in an email sent to Mr Dickson) on the proposal in Mr Olsson's Figure 15 were attached to the supplementary joint report. Mr McLaren stated that there were adverse pedestrian and vehicle safety issues raised by the driveway on the north-western corner of the Council land and that it was contrary to the applicable Australian road standards.
Mr Olsson's desired outcome for a community facility (Figure 15) is to have the driveway located along the north-western boundary resulting in a gross floor area of 282.8 metres squared. While Figure 7A was considered inefficient by Mr Olsson it has a 301.6 metre squared gross floor area which is larger than the Figure 15 outcome. Mr Dickson stated that although the revised easement does not enable the achievement of additional gross floor area, the concept plan that shares the easement for access achieves more gross floor area than the concept with a driveway along the north-western boundary.
The terms of the easement at cl 2.1(d) mean that it can be amended to increase the ground gross floor area on the Council land.

[36]

Oral evidence

Mr Dickson accepted in cross-examination that as a result of the joint supplementary report of the town planners dated 25 May 2022, in his first report his statement that there is no basis for using the Council land for anything other than a car park was incorrect. Mr Dickson confirmed that it was still his evidence that as demonstrated by the mixed-use development scenarios considered, in his opinion the proposed easement would not have any material adverse effects on the redevelopment potential of the Council land if developed without reliance on another lot.
Mr Dickson accepted in cross-examination that the driveway as proposed on the Council land if redeveloped in line with the preliminary sketches developed by Council in 2017 (see above in [38]) could not be accommodated if the Council was required to provide the proposed easement. He also accepted that it was not physically impossible to widen the existing driveway on the Applicants' land and this is an option available to the Applicants. He suggested that he would not recommend that option to a client because of streetscape concerns. Mr Dickson accepted that the Council could not build a wall across the boundary between the Council's land and the Applicants' land if the easement was in place. He accepted that if the Council had to accommodate a connection to the Applicants' land the Council's choice of redevelopment would be limited to some extent. He accepted that the Council could not excavate the Council's land in the area adjacent to the boundary between the Council's land and the Applicants' land if the easement was in place. He accepted that redevelopment of the Council land would still face some limitation because at some point the level of the Council land needed to reach the Applicants' land. He accepted that the Council or any other proponent of redevelopment of the Council land would need to accommodate the easement's height of 3.933 metres. He also accepted that the easement would prevent him from recommending that the Council develop a skate park or park on the Council land. Mr Dickson accepted that a development with a basement where the basement entry was in the location of the present access would be limited by the easement. He further accepted that using a blank canvass for the Applicants' land would not require the easement sought.
Mr Dickson agreed that the design of the easement shape is to accommodate the garbage truck's turning movements. He also accepted that the easement was designed to allow two-way traffic to and from the Applicants' land. Mr Dickson accepted that since the existing development and any proposal for a child care centre on the Applicants' land would always require garbage trucks there is no question that the height of garbage trucks would always have to be accommodated.
Mr Olsson was also cross-examined. He agreed that community facilities are not presently permitted by any of the planning instruments as far as he understood and commercial or residential uses are not permitted. He was not aware of any present Council plans for development of the Council land or any DA submitted. He agreed that if any community facilities or commercial or residential use occurs on the Council land, they would require servicing, which would require access off Coxs Road for a truck potentially larger than an eight metre vehicle. This would require a higher clearance than 3.933 metres and a greater internal area for the manoeuvrability than is provided in the easement.
Mr Olsson was asked whether he drew the courtyard area in Figure 9A (retail/residential scenario) of the supplementary joint report because of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (NSW). Mr Olsson disagreed as the apartment design guide may not apply. It is highly desirable to have communal space and to cover the ground floor. The courtyard was optional under the planning controls. I note that this evidence was relevant to the valuers' evidence, see below in [148].
Mr Olsson agreed that, by reference to Figure 6A of the supplementary joint report (a multi-level car park scenario on the Council's land), the optimal place for access is where it is drawn, as that corresponds with where the access along the easement would be located if it were imposed. Mr Olsson agreed that the basement entry ramp would not follow on directly from the easement on the southern side of the Council land.
Mr Olsson agreed that the entrance on the northern boundary shown in Figure 15 of the supplementary joint report was the same entry that existed before the recent reconfiguration of the car park in the last 12 months. He agreed that Mr Hollyoak described the new configuration as safer and the old as unsafe. He agreed that Figure 15 would require a rezoning, a plan to build a community facility, a relocation of the current cross walk that the traffic experts considered safer than the location to which it would be relocated, and an option that has the car park entry and exit on the northern side.

[38]

Joint reports

In the joint report dated 20 May 2022 Mr Konidaris expressed the view that the quantum of intangible impacts of the imposition of the easement on the valuation of the Council land were difficult to measure. The most significant impact is on the potential likelihood of the Council land being rezoned which could result in the land being quarantined as an at-grade car park into perpetuity as a worst-case scenario. This impact cannot be measured however Mr Konidaris resolved to measure those impacts based on the B1 value rate, which uses the value a purchaser would put on the land if it were zoned B1 Neighbourhood Centre. Mr Konidaris allowed a value of $110,000 for intangible losses.
In the supplementary joint report dated 20 June 2022 the valuation experts reached agreement to a large extent. They agreed that the appropriate amount of compensation arising from the imposition of the easement is either: Scenario 1 - Loss or other disadvantage suffered by Council assessed based on Council's existing use of the Servient Tenement as an at grade council carpark. The appropriate amount of compensation which would adequately compensate Council, for any loss or other disadvantage which would be suffered by Council by reason of the imposition of an easement for Right of Carriageway (the Easement) over the Easement Land, is $10,000 excluding GST, as set out in the Hollinshead Original Report. Or, Scenario 2 - Loss or other disadvantage suffered by Council assessed assuming a sale by Council of the Servient Tenement. Then compensation is assessed based on the loss of Potential Gross Floor Area (GFA) and impacts to additional development costs. Our opinions as to compensation are: Assuming a level 2 Courtyard is required as envisaged in the Supplementary Urban Design Report we both agree that compensation is $355,000 plus GST; and Assuming a level 2 Courtyard is not required we both agree that compensation is $210,000 plus GST.
Mr Hollinshead believed that compensation should be assessed based on Council's existing use of the Council land (Scenario 1). He was not aware of any proposal for redevelopment, intensification or change of use of the Council land and the market would assess that the existing use of the Council land is most likely to continue for the foreseeable future. Mr Konidaris was of the view that loss in development potential and flexibility in use of the site, whether the property was developed immediately or in the foreseeable future, or not, is a direct impact that is suffered by the Council land. The imposition of the easement should be addressed having regard to Scenario 2.
For the purposes of discussing Scenario 2 the valuers analysed the scenarios for development on the Council land proposed by Mr Olsson in Annexure D of the supplementary joint report of the urban design experts (see above in [115]). There were six scenarios assessed: existing car park, multi-level car park, community facility, retail and commercial, retail and residential, and community facility (alternate access). The community facility option with an alternate access, which corresponds to Mr Olsson's Figure 15 showing a site with an access from Coxs Road on the north-western boundary of the Council land, (discussed by the urban designers, e.g. above in [125]-[127]) was not analysed because it was not considered the highest and best use of land.
Mr Konidaris was of the opinion that further intangible losses would arise from the imposition of the easement. His opinion with respect to the issue of intangible loss in full was as follows: Mr Konidaris 2.9.2 Mr Konidaris opines that the calculations set out at paragraph 2.8.30 above quantify the loss that would result from direct impacts of the Proposed Easement and other "tangible" impacts, specifically the higher construction costs that would result from the requirement of additional building height as a direct result of the easement being imposed. 2.9.3 Intangible impacts can be better described as impacts that may or may not influence the market value of the land but are disadvantages that would be suffered as a result of the imposition of the Easement. 2.9.4 Given the nature of these intangible impacts, they are difficult to measure using traditional market or cost-based valuation methodologies. I note that many of these are discussed in the Initial Joint Valuation Report and have included the most notable of these impacts and provided further detail as follows: a. Clause 2.1 (c) [of the easement] potentially adding 12 months to the development period of the Subject Land and potentially not allowing a suspension to the easement on reasonable terms, increased holding and development costs, professional fees as a result. b. The terms of the easement impact the overall flexibility of any potential development in future and limit the configuration of potential basement construction. c. The Subject Land would have a reduced likelihood of a potential rezoning if affected by the Proposed Easement. 2.9.5 The impact to timelines would in line with point (a) outlined in paragraph 2.9.4 have been discussed between the experts and it was agreed that negotiation with the Dominant Tenement to temporarily suspend the right of way to allow development would be negligible. 2.9.6 The actual ability to achieve a suspension to access for the site would be viewed as an unknown and is a point of disagreement. 2.9.7 It is opinion of Mr Konidaris that a child-care centre operator, or lessor of the Dominant Tenement would not find it reasonable to allow a suspension to access to allow for any significant construction longer than several weeks. 2.9.8 It has been suggested during earlier proceedings that the child-care centre would cease operations during a construction period. In my view, this would not be viewed as reasonable and would be vehemently opposed by the Dominant Tenement if it were to be applied. 2.9.9 This impact leads to limited options that would allow further development of the land. These would be: ▪ The provision of alternate access with an arrangement with another adjoining owner possibly with the adjoining Golf Club at the cost and effort of the Servient Tenement; or, ▪ Maintenance of the easement access through the Servient Tenement during the development phase which would result in likely further possible limitations to the potential of the site and added construction cost to the Servient Tenement. ▪ A worst case, an inability to complete any construction over the Easement Land that would further reduce potential GFA over and above the scenarios provided by Mr Olsson. 2.9.10 None of these scenarios have been modelled, would be extremely difficult to attribute cost to, and would almost certainly impact the marketability of the site for sale. 2.9.11 A likely example of the application of this Clause would be a temporary suspension of access to the Dominant Tenement for several days to resurface the existing at-grade carpark. Any construction that would require an extended suspension, of longer than several weeks to allow any construction, basement excavation or significant works to the Servient Tenement would likely be viewed as unreasonable to the Dominant Tenement. 2.9.12 This impact would also limit the marketability of the site with a proportion of purchasers in the market deeming the site too problematic to develop. This would likely result in a significant discount, being a conservative overestimation of the impact to the value of property over and above the impact to the floor space modelled. 2.9.13 Point (b) in Para 2.9.4 above raise the loss of flexibility of use of the site, including the ability to develop as in a manner it sees fit is also impacted. 2.9.14 Some examples to the impact to flexibility to the ability to develop the land include: ▪ The inability to excavate the ground floor to road level as a result of the site requiring to maintain its existing topography over the Easement Land. The natural topography has an increase in increase in [sic] slope of between 2.44m (76.57 NW corner / 79.01 SW corner) and a cross fall of approximately 1.26m (76.57 NW corner / 75.31 NE corner) based on site elevations taken from Annexure D Scenarios in the Supplementary Joint Expert Urban Design Report. The natural topography of the site lends itself to a moderate cut of the site to create a level building footprint with retail entry at the road level. This results in two significant impacts which include: i. The lost opportunity for a potential third level of built form as a community facility or other use permitted within the current SP2 zone which does not have a floor space control. This is particularly relevant if the property is to be retained by Council for an ongoing Community Purpose and if permitted would be a more efficient use of Council's assets. ii. A higher ground floor and increased development costs that result (addressed earlier) iii. Inferior design outcomes resulting from the requirement for existing topography over the easement to be maintained. This is especially important for retail tenancies to attract passing trade. ▪ The scenarios provided appear to assume a cut to the entire site, or a split-level ground floor (change in Ground Floor elevation to the site mid-block) maintaining the topography of the site over the Easement Land. Due to the Scenarios being preliminary with no elevation drawings annexed, the location of elevation changes or retaining walls are not visible. This would result in split-level internal tenancies at the ground level which have a lower appeal than a single level floorplate and provide other issues relating to disability access with stairs and disability access requirements etc. ▪ The limitation in development options that would be conducted as a combined site with the adjacent North Ryde Library site as envisaged in [87] of the Individual Town Planning Report of Mr Clendenning, Options explored include a full development of the Servient Tenement with parking to be provided on the adjacent parcel as part of a larger Community Hub. This option is no longer available to the Servient Tenement and impacts the ability to develop the Servient Tenement and the adjacent Library Site. ▪ Ongoing maintenance of the easement area appears to have not been considered in the Easement Terms and would therefore be at the cost of Council. ▪ Potential Liability issues relating to potential accidents or injuries for Child Care patrons on Council Land. 2.9.1 [sic] Point (c) in 2.9.4 above relates to the impact to the potential likelihood of the Servient Tenement being a suitable candidate for a rezoning after the imposition of the Easement. 2.9.2 [sic] This was previously noted as the most significant impact as it would impact the ability having the effect of essentially sterilizing the site for a carpark into perpetuity. Having regard to the permitted uses now afforded in the TI SEPP, it is acknowledged that this impact is somewhat reduced as there is still potential available to the Servient Tenement which is more intense than a carpark. 2.9.3 [sic] A carpark was initially understood to be the highest and best use in the Initial Joint Valuation Report. The reasoning for the reduced likelihood for rezoning is detailed below. 2.9.4 [sic] The impacts of the Easement Terms discussed earlier being too difficult to overcome for a purchaser and therefore the site being limited to its current zoning into perpetuity. 2.9.5 [sic] In terms of the ownership of the Servient Tenement by a local Council. The Servient Tenement forms part of a large Operational Land portfolio. When assessing sites to "value add" or consider for disposal, the natural preference is put to properties that would achieve the highest amount of uplift. 2.9.6 [sic] The imposition of the easement on the Servient Tenement would render the land far less appealing when viewed against other unconstrained sites within Council's Portfolio of Operational Land and would therefore carry little weight when considering allocation of resources or impost to pursue a Planning Proposal for rezoning. 2.9.7 [sic] It is acknowledged that the majority of these impacts suffered are unique to the Council and when considered as part of sale, may not be considered in a market value calculation considering a hypothetical sale of the Servient Tenement. This is due to no other purchaser. This results in a significant difficulty when attempting to quantify the loss caused by these impacts. Notwithstanding the impacts being unique to Council in this instance, they should not be ignored nor understated. 2.9.8 [sic] Mr Konidaris previously resolved to adopt the headline B1 value rate in an attempt to reconcile this impact. It is the view of Mr Konidaris' that the value of these impacts cannot be measured using traditional market valuation methods however are an impact to the owner of the property and adopting a top line for convenience and without appropriate rationale to support the adoption would not be appropriate.
Mr Hollinshead responded to Mr Konidaris' opinions in respect of intangible losses in the following way: 2.9.9 [sic] Mr Konidaris raised various concerns that he identifies as being "intangible" in the Initial Joint Report, the vast majority of them still remain a concern for Mr Konidaris, they include: 1. Potentially adding 12 months to the development period; 2. Potentially not allowing a suspension to the easement on reasonable terms; 3. Increased holding and development costs, and professional fees; 4. Easement terms limit alternate options for the easement location; 5. Limit alternate options for redevelopment; 6. Reduced likelihood of rezoning; Additional "intangible" concerns not identified in Initial Joint Report 7. Limited marketability with some purchasers deeming the site too problematic; 8. Ongoing maintenance of the easement area; 9. Potential Liability Issues 2.9.10 [sic] Mr Konidaris opines that the majority of these impacts are unique to Council and result in a significant difficulty when attempting to quantify the loss of other disadvantage suffered by Council. I disagree with this proposition. 2.9.11 [sic] In our Initial Joint Report, Mr Konidaris, included an allowance of $110,000 in his compensation assessment for so-called "intangible impacts". 2.9.12 [sic] In preparing this Supplementary Joint Report, Mr Konidaris advises that he is unable to measure these impacts but they are an impact to the owner. 2.9.13 [sic] I respond to each of the "intangible" impacts as follows: 2.9.14 [sic] I disagree that the imposition of the Easement would adversely affect the development period of a hypothetical development on the Servient Tenement. 2.9.15 [sic] The period for attempting to reach an agreement for suspension of the easement and any notification period (if required) would run in parallel with a planning proposal for redevelopment and/or any development approval process. 2.9.16 [sic] The period for attempting to reach an agreement for suspension of the easement and any notification period (if required) would run in parallel with a planning proposal for redevelopment, it would therefore follow that increased holding costs, would not be incurred. 2.9.17 [sic] It is my opinion that a prospective purchaser of the Servient Tenement would consider that the Easement Terms are extremely flexible in favour of the owner of Servient Tenement. 2.9.18 [sic] A commercially minded developer would be concerned about impacts on development costs (if any) and impacts on PGFA (if any) [footnote omitted]. 2.9.19 [sic] A reduced number of alternate development options would not in itself, in my opinion, result in any reduction in 'value' of the Servient Tenement. 2.2.20 [sic] Mr Konidaris in the Initial Joint Report at [2.8.12] opined, "the most significant impact as an impact to the potential likelihood of the Servient Tenement being a suitable candidate for a rezoning after the imposition of the Easement". 2.2.21 [sic] Mr Konidaris has confirmed during conferencing that this is no longer a concern. Of the $110,000 previously allowed by Mr Konidaris for "intangible" impacts it is unclear what proportion was attributable by him to this rezoning risk. However, it was previously identified by him as being the most significant impact, it is now not considered a concern at all. 2.9.22 [sic] I agree that the uncertainty / risk of potential for increased development costs (including professional fees) on account of the imposition of the Easement should be captured in our "Before and After" approach. 2.9.23 [sic] Mr Konidaris and I agree that the maintenance of the Easement Land would be the responsibility of Council. Having consideration [sic] to the existing use (which the market would perceive as continuing for the foreseeable future, [sic] maintenance of the Easement Land would be the same whether the easement existed or not and as such does not sound in any compensation. 2.9.24 [sic] In terms of potential liability issues.[sic] Again, having [sic] consideration to the existing use, which the market would perceive as continuing for the foreseeable future, liability issues would be the same whether the easement existed or not and as such does not sound in any additional compensation. 2.9.25 [sic] I disagree with Mr Konidaris, none of the concerns identified by him as "intangible" are in fact intangible. Each concern, if they actually resulted in a loss or other disadvantage, they would be capable of being measured using traditional market valuation methods.

[39]

Oral evidence

In cross-examination, Mr Hollinshead maintained his evidence in the supplementary joint report that "the market would perceive that the existing use of the servient tenement is most likely to continue for the foreseeable future". He agreed that evidence focused on the Council's intention for the car park. He agreed that the $10,000 figure adopted in Scenario 1 was acknowledging the blot on title if the easement were imposed. Mr Hollinshead was asked whether Scenario 1, which he agreed depends on the continuing use of the Council land as an at-grade car park, disregards loss the Council or whoever owned the Council Land would suffer by reason of imposition of the easement. He answered "no" because in Scenario 1 it was agreed there was no loss.
Mr Hollinshead agreed that if an offer was made to buy the property, that buyer would have regard to the fact that an easement had been imposed although the impact may be different dependent upon what the proposed use would be. Mr Hollinshead agreed that if the hypothetical purchaser, for example the owner of the property to the south, wished to buy the Council land they would take into account the easement. He dealt with that in Scenario 2. If the easement did not diminish the gross floor area of what was proposed by the hypothetical buyer, there would not be a change in value.
Mr Hollinshead agreed that Scenario 1 was predicated upon no other use being proposed other than the current at-grade car park. When it was put to him that the market would not know Council's plans for the Council land, he answered that a fully informed purchaser would make proper inquiries. Mr Hollinshead accepted that if the Council changed its mind and decided to redevelop the land for one of the purposes in the TI SEPP, the Scenario 1 figure would not compensate it for its loss. He agreed that what the valuers were doing in Scenario 2, that is, looking at what the hypothetical highest and best use purchaser would do with the land, is almost the reverse of what was done in Scenario 1, because that only considered the current use.
By reference to the community facility option with an alternate access, which corresponds to Mr Olsson's Figure 15 (see above in [140]), Mr Hollinshead was asked whether the Council's choice to use that option would become unavailable if the easement were imposed. He agreed. He further agreed that he could not assess compensation for the Figure 15 scenario because it could not be built were the easement imposed.
Mr Hollinshead agreed that he had used the existence of the TI SEPP to lessen the discount he applied from the highest B1 value for the Council land (the value if the land were re-zoned B1) to arrive at the value of the land.
Mr Hollinshead was asked whether it was appropriate to determine the gross floor area having regard to the presence of a courtyard at the rear of the first floor of a development in Mr Olsson's Scenarios 3, 4 and 5 (see above in [115]). In Mr Hollinshead's opinion, a commercially minded developer would not build something if it did not increase the value. Whether or not the courtyard existed the gross floor area would not change. Mr Hollinshead agreed that a courtyard would enhance the saleability and marketability of residential units on the Council land, but would not sound in significant measurable uplift in the value of the units. If it would result in an uplift that amount would be small. Mr Hollinshead accepted that the examples given by the urban designers were not the only way the Council land could be developed and this is only one of a number of scenarios where courtyards could be provided for in any redevelopment.
When it was put to Mr Hollinshead that he had not attempted to value the intangible matters identified by Mr Konidaris, he responded that where those items sounded in compensation he dealt with them however the intangible impacts were not real impacts. It was suggested that the fact that the Council could not redevelop the land as a park was an intangible impact that could not be valued, being a matter of personal preference, to which Mr Hollinshead ultimately replied "yes". He gave the same answer in respect of placing the driveway on the northern rather than the southern boundary being a matter of choice.
Mr Konidaris agreed in cross-examination that the intangible losses he noted in the first joint report were the same as in the supplementary joint report. He agreed that he decided not to quantify these in the supplementary joint report. It was put to Mr Konidaris that he did value these impacts because someone told him to do that. He disagreed. He had discussions with Mr Olsson since the initial joint report that indicate that there were intangible losses that he did not "know the answer to". He was asked what he meant when he stated in the first joint report that he resolved to value the intangible impacts by adopting the headline B1 value. Someone other than the Council would find the land with the easement imposed appealing at a certain price. He assumed that a deduction from the B1 value was the worst-case scenario.

[41]

Purpose of use of Council land is a private road

The answer to issue 1(a) is determined by the proper approach to characterisation of the use of the Council's land as set out by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake Works) at [57]-[68]. That pathway is directly available here.
Class 2.3 of the RLEP provides the mechanism for the identification of development that is permissible or impermissible. Roads are permitted in the SP2 Infrastructure zone with consent under item 3 in the land use table in the RLEP. Item 4 states that any development not specified in items 2 or 3 is prohibited. The only relevant question given the absence of centre-based child care facility in item 2 or 3 is whether the proposed development falls outside the types identified in items 2 or 3. Whether a proposed use of Lot 1 is for the purposes of a centre-based child care facility is not the correct question.
The vehicular egress is development for the purpose of a private road as listed in item 3 of the land use table and as defined in the RLEP dictionary (see above in [23]). That definition picks up the definition of private road in the Roads Act, namely any road that is not a public road. The vehicular egress is for a private road and the fact that it would connect a centre-based child care facility to a public road does not mean it is not for the purpose of a private road. It is irrelevant that the vehicular egress might also be regarded as being for the purposes of a centre-based child care facility (and for that matter, the other uses within the building on the Applicants' land such as offices) and that is directly in line with the approach adopted in Palm Lakes Works.
The road is also not a public road given the definition of that term in the Roads Act. There is a prescriptive list in Part 2 of the Roads Act for the creation of public roads and there is no proof that the Council car park is a public road.
In any event, the vehicular egress is also development that is ordinarily incidental or ancillary to development for the purpose of car park (noting that this is the purpose shown on the Land Zoning Map). This is a separate development type in item 3 of the Land Use Table.
The development is therefore permissible with consent on two grounds, each sufficient.

[42]

Purpose of use not a (private) road

The principles applicable to characterisation of use of land are summarised in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) at [26]-[28] and Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [27]-[32]. A use must be for a purpose, which is distinguishable from the nature of the use. Further, the characterisation of the purpose should be at a level sufficient to cover the individual activities, and characterisation should be undertaken in a common sense and practical way: Chamwell at [27], [34], [36], [45]. The end purpose which the development serves in contrast to individual uses or activities on the land must be identified: Pet Carriers at [25]. The Applicants contend the purpose of the use of the Council's land is for vehicular egress for a private road.
No works are proposed on the Council car park as part of the application. Instead: a. The vehicular access proposed is shared with users of Council's Car Park; b. According to the traffic experts, the vehicular traffic over the Council Car Park destined for the Alramon Land represents 50% of the use of the Council Car Park; c. In any event, the shape of the right of carriageway does not look like a road; d. Instead, that shape appears to be governed by the need for garbage vehicles servicing the childcare land to reverse; e. The casual observer would not discern any marked surface change to delineate the so-called private road, and f. The proposed right of carriageway specifically records that it is intended to benefit the Alramon Land.
The Applicants rely on Palm Lake Works. Critically, the quoted reference to that decision includes the acknowledgement at [58] that at first instance the Commissioner noted that the Council had accepted that "any type of access way on private land could be categorised as a private road" (at [77]). In this case, there is nothing private about the use of the right of carriageway, having regard to its character, extent and other features: Pet Carriers at [28]. The use is shared with other users looking to park in the Council's car park, the use is not carried out on private land, rather it is carried out on public land, and the Applicants propose no work to delineate its would be private use. By the terms of the easement the Council can change the location of the carriageway and suspend its use for a reasonable period.
All these matters lead to the conclusion that the purpose of the use of the Council's land is not as a road, let alone a private road.

[44]

Primary purpose of use prohibited

Furthermore, if a proposed development of land for an apparently permissible purpose (a road) is actually designed to enable a primary purpose that would be prohibited on such land, then the development is impermissible: Chamwell at [35], [42], [45], [51]. The easement is specifically and primarily designed to serve the Applicants' land. Firstly the easement is limited to the existing ground level of the Applicants' land which is designed to facilitate access to that land. Secondly the easement is for a limited height above ground level to allow garbage trucks to access the Applicants' land. Thirdly the turning bay is specifically designed to accommodate garbage truck movements including entry and exit over the site of the easement. Fourthly the easement is wide enough to allow for the flow of two-way traffic to and from the Applicants' land. All of these features are evident from the swept path drawing above in [13] and Mr Dickson's oral evidence below in [131]. The easement is designed for the primary purpose of serving the proposed child care centre and the Applicants' land generally. That use falls under Item 4 of the Land Use Table of the RLEP as it is development not specified in item 2 or 3 and is prohibited.
Unlike the decision of Cripps J in Argyropoulos v Canterbury Municipal Council (1998) 66 LGRA 202 (Argyropoulos), the Council car park is not a road and was never constructed as a road within the ordinary meaning of that word. In fact, the only reason why the proposition of road is being put forward is not because of some existing use but rather, because it is asserted the "vehicular egress is development for the purposes of a 'road.'" The corollary is that one must look at first, in the case of use of land for the purpose of a child care development, the fact that that purpose can only be achieved by the physical acts of constructing not only the space in which the childcare will take place but also the spaces for the associated activities, such as parking and vehicular access. The physical acts involved in the erection of the childcare centre including the construction of the car park, driveways and access ways are the means by which the land is made to serve the child care purpose. The child care could not function on the land without the car park, driveways and access ways: Chamwell at [30]. The end to which the right of carriageway is to serve is not a road and as such, is integrated and indivisible from that of the child care centre.
The passage the Applicants rely on in Palm Lakes Works relies on Pet Carriers, the facts of which bear no analogy to the ones before the Court.

[47]

Characterisation of use

The parties made conflicting submissions about how the proposed use of the car park should be characterised. As part of arguing their characterisation of that use as a private road, the Applicants relied on Palm Lake Works on the basis that it applies directly to the circumstances in this case. The Applicants extracted Palm Lake Works at [57]-[68] as part of asserting it directly supported the Applicants' approach. I disagree that Palm Lake Works does directly or indirectly support the Applicants' case. In Palm Lake Works the operator of a seniors housing development had an application to build 75 new serviced apartments and associated works refused by the council. An access way on private land from the housing development to a nearby road fell outside the RU2 zoning which permitted seniors housing. In order to be permissible with consent, the access way needed to be categorised as for the purpose of a road. The council accepted before the commissioner that any type of access way on private land could be categorised as a private road. On appeal the use as a road was determined to be the relevant characterisation of use, not use for seniors housing. Palm Lake Works addressed different facts, being a development application which sought access to seniors housing over private land. The council in that case conceded that the access could be for a road. Here the access is sought over public land and there is no such concession. Palm Lakes Works does not provide a basis for finding that the easement sought is a road in the circumstances of this case.
Reliance was also placed on Argyropoulos in which the access to the applicants' land included the handle of a battle-axe block zoned residential in which light industrial use was prohibited. Light industrial use of the head of the battle-axe block was permitted. Cripps CJ was asked to assume that a development application before the council was to use the axe head for a permissible industrial purpose and to use the axe handle as a road being a nominative permissive use in a residential zone. The respondent submitted that the axe handle was intended to be used for the purpose of the innominate light industrial use because the access was intended to serve a light industrial use. Cripps CJ held that the function of a road is to permit the passing and repassing of vehicles. A declaration was made that permission could be granted for the use of the axe handle as a road notwithstanding that the start and/or destination of vehicles passing over the axe handle was light industrial land used for the purpose of storage of formwork material. I agree with the Council's submission on why Argyropoulos is distinguishable as identified in [165] above.
Considering characterisation of the use of the Council land for vehicle traffic supporting the child care centre use, I take into account that Mr Olsson and Mr Dickson's evidence was that the easement is designed to serve the child care centre, unlike a regular road (Mr Olsson's individual report above in [109], Mr Dickson's oral evidence above in [131]). Consequently I agree with the Council's characterisation of the use of the land as summarised above in [162]-[166]. The Council rightly submitted there is no physical definition of the area intended to be a road and the design, shape, intended use and terms of the easement are not reflective of a road use, rather it is a carriageway serving the childcare centre. Applying Chamwell, the purpose of the easement on the Council land is indivisible from and integrated with the rest of the child care centre which could not function in the proposed form without it, meaning its primary purpose is for a child care centre, a prohibited use on SP2 zoned land.
The proposed use of the Council land zoned SP2 infrastructure is prohibited as it is not a road for the purposes of the RLEP.
I further reject the Applicant's argument that the proposed use on the Council land is also permissible on the basis that it is ancillary or subordinate to the use identified on the Land Zoning Map, being a car park. This follows from my conclusion that the proper characterisation of the purpose of the use is for the purpose of a child care centre for the reasons given.
Consequently the DA the subject of the Class 1 proceedings is not able to be consented to in its present form unless I impose deferred commencement consent conditions proposed by the Applicants relating to access.

[48]

Deferred commencement conditions not acceptable under Mison principles

The deferred commencement condition proposed by the Applicants states: 1. Creation of Right of Carriageway or other legal arrangement. The development will require the creation of a "Right of Carriageway" over the neighbouring property at 150 Coxs Road (Lot 1 DP 605185) or the existence of an alternate legal arrangement so as to permit vehicular access on this property. The dimensions and terms of any "Right of Carriageway" are to be as per the orders made by the Land and Environment Court in Alramon Pty Ltd v Council of the City of Ryde, proceedings 2021/00207884. Title details confirming the registration of the "Right of Carriageway" must be submitted to Council for approval before the development consent can become operative. (A) Written evidence that the matter identified in deferred commencement conditions (1) and (2) above has been satisfied, must be submitted to Council within 5 years from the date of this development consent, failing which, this development consent will lapse pursuant to Section 4.53 (6) of the Environmental Planning and Assessment Act 1979. (B) This Development Consent will not operate until such time that the Council notifies the Applicant in writing that that deferred commencement consent condition (A) (1) and (2) above has been satisfied; and Upon Council giving written notification to the Applicant that deferred commencement consent condition (A) (1) and (2) above has been satisfied, the development consent will become operative from the date of that written notification, subject to the following conditions of consent …
On the assumption that the easement was prohibited, the Applicants submitted that it should have the opportunity to make alternate legal arrangements about access with the Council over the car park land.
I agree with the Council's submission that to impose such deferred commencement conditions is to postpone an essential element of the development which should not occur in light of the long established authority of Mison and Ors v Randwick Municipal Council (1991) 23 NSWLR 734 at 740.
The Class 1 proceedings will be dismissed.

[49]

Issues in Class 4 proceedings

Section 88K identifies the power of a court to create an easement. The structure of s 88K raises the following threshold issues for determination by the Court: 1. Is the easement over land reasonably necessary for: 1. the effective use; or 2. development (this need not be considered in light of my decision concerning the child care centre); of other land that will have the benefit of the easement; and 1. Is the Court satisfied that the use of the land having the benefit of the easement will not be inconsistent with the public interest; and 2. Is the Court satisfied that the owner of the burdened land and each person having a registered estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement; and 3. Is the Court satisfied that all reasonable attempts have been made by the applicant for: 1. the order to obtain the easement; or 2. an easement having the same effect; but have been unsuccessful.
For a similar exposition of the matters to be considered under s 88K, see Khattar v Wiese (2005) 12 BPR 23235; [2005] NSWSC 1014 (Khattar) at [2]. Once the applicant has cleared those hurdles, the Court retains a discretion whether or not to grant the easement indicated by the use of the word "may" in s 88K(1). That discretion must be exercised having regard to the purpose of s 88K (Khattar at [60]): 60 …facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights [Second Reading Speech, Legislative Council, 4 December 1995]…
A number of these statutory requirements are addressed in the remaining issues identified by the parties. Returning to the issues identified in MFI 2, these questions remain from Question 1 General: b. If the use of the servient land is prohibited, then is that use inconsistent with the public interest within the meaning of s88K(2)(a) of the CA? c. Is the easement reasonably necessary, within the meaning of s88K(l) of the CA? d. Can the servient owner be adequately compensated, within the meaning of s88K(2)(b) of the CA? e. Have reasonable attempts been made to obtain an alternate easement, as required by s88K(2)(c) of the CA?
The remaining issues in MFI 2 according to the expert disciplines inform these questions in relation to traffic, planning and urban design, and valuation. I will consider reasonable necessity (issue (c)) first.

[50]

Applicants' submissions

The terms of s 88K refer to an easement being "reasonably necessary for the effective use or development of other land…". The Applicants rely on both effective use and separately development for this application. Effective use is relied on in relation to the Applicants' land as it is currently used. Development is relied on having regard to the development application in the Class 1 proceedings. The Applicants therefore put their case in two ways. I note that given my finding above in [181] concerning the Class 1 proceedings, I will only summarise the submissions relevant to the Applicants' effective use claim.
Relevant principles are identified in Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2 (Rainbowforce) at [76] to the effect that use or development must be more than just desirable or preferable: see also Gordon v Lever [2018] NSWSC 1888 at [64]. Firstly the proposed use must be substantially preferable to the use without the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 (117 York Street) at [508]-[509].
Secondly reasonable necessity does not mean absolute necessity for any development or use of land: 117 York Street. The current use relies on access to the Council land, demonstrating reasonable necessity. There is a need to demonstrate 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": Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31257; [2012] NSWCA 445 (Moorebank Recyclers CA) at [154].
The Court must take into account other relevant matters including impacts of the easement on the burdened land: ING Bank (Australia) v O'Shea (2010) 14 BPR 27317; [2010] NSWCA 71 (ING Bank) at [48]-[49], [141]-[161]. That there is other means of access to a property does not preclude an order being made: Grattan v Simpson (1998) 9 BPR 16649 at 16651.
Thirdly the greater the burden on the servient tenement the stronger the case needed to justify a finding of reasonable necessity of the easement for the effective use or development of the land in order to justify its imposition, for example, an easement that would sterilise the use of the land would require a very strong case of reasonable necessity: Moorebank Recyclers CA at [156]-[159].
The burden on the Council land is considered under three scenarios in the evidence: 1. as land in its present state; 2. as if it were to be developed for a multi-level car park; and 3. as if it were to be developed for another purpose following rezoning.
The easement will not impose a significant burden on the Council land under any of these scenarios.

[52]

The burden in scenario two

In the second scenario above in [191], the easement would not be disruptive if the Council were to construct a multi-level car park. The test for whether an obstruction of a right of way may give rise to a legal remedy should be applied, namely whether what is done or proposed is a "real substantial interference with the right of way": Powell v Langdon (1944) 45 SR (NSW) 136, 139; Zenere v Leate (1980) 1 BPR 97029 at [6]; Lowe v Kladis (2018) 19 BPR 38599; [2018] NSWCA 130 at [92]-[95]. In Quick v Alpine Nurseries [2010] NSWSC 1248 at [139]-[176], Ward J as her Honour then was summarised the principles of substantial interference (I note that her Honour was addressing a claim in nuisance in that case).
There is no general presumption that a right of way should always be open to the sky: Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 at 423. A right of way can be built over if sufficient height clearance is given to avoid the benefiting landowner carrying out vehicle manoeuvres without "far greater attention" (cf Finlayson v Campbell (1997) 8 BPR 15703 at 16) or if the building work by the burdened landowner would not make it "substantially more difficult to pass and re-pass along the right of way" (cf Sader v Langham [2018] NSWSC 727 at [100], [107]).
The multi-level car park designs of the urban designers all place the ramp accessing the basement or access ramp to a higher level on the north-western side of the car park and not adjacent to the egress point from the Applicants' land to the Council land. There is no real or apparent disruption in the latter location. The terms of the easement in cl 2.1(d) permit reconfiguration of the easement if there is a redevelopment. The existing location of the crossover from the street appears appropriate. A ramp or basement access point would not need to be put in that location. Therefore the location of the easement would most likely be directly contiguous with how the user of the Council car park would already be utilising the space for access.
The Applicants relied on Mr Dickson's evidence in his individual report, above in [104] and in the joint report above in [112], par 4.
The only two factors that might be considered a burden are that the Council will need to design something which keeps the same access point off the street, which is no real burden (Mr Hollyoak said this is a safer and better access point) and that a 3.933 metre clearance would need to be provided on the entry area where the easement is for waste collection, a limited burden. There is no real burden on the potential redevelopment of the Council land for another car park.

[54]

Council's submissions

The Applicants bear the onus of demonstrating s 88K should apply for their benefit: Darke J in Govindan-Lee v Sawkins (2016) 18 BPR 35883; [2016] NSWSC 328 (Govindan-Lee) at [49]. The Council agreed with the principles identified by the Applicants, largely from 117 York and Moorebank Recyclers CA, but not their application in the circumstances of this case. Moorebank Recyclers CA stated that implicit in reasonable necessity is consideration of the alternative methods by which the proposed use or development could be achieved.
The Applicants' first proposition (above in [187]) with respect to reasonable necessity was that the use or development of the land with the easement must be at least substantially preferable to the use or development of the land without the easement. This proposition does not mean that an applicant need only establish that the easement is substantially preferable, given the words "at least". The requirement is necessity qualified by reasonable, not just substantial preference. The Applicants' reliance on 117 York (Hodgson J) is misplaced. ING Bank at [53] confirmed in Community Association DP 270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83 (ATB Morton), is to the effect that reasonable necessity cannot be reduced to substantial preference. The proposed use is not appropriate as it is prohibited.
While the Applicants' second proposition (above in [188]) that necessary does not mean absolutely necessary is correct, necessary does mean more than something convenient or nice to have and one must look for a requirement that is far closer to necessity than convenience: D & D Corak Investments Pty Ltd v Yiasemides (2006) 13 BPR 24103; [2006] NSWSC 1419. The word necessary is getting close to a vital requirement: Hanny v Lewis (1998) 8 BPR 16205 (Hanny); Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845 (Tregoyd Gardens). The proposed easement is a matter of preference and convenience.
The Court needs to look at whether the need for the easement was created by an applicant. Implicit is the need for an applicant for an easement to look at alternative methods by which proposed use or development can be achieved: Moorebank Recyclers CA at [158]. The Applicants' case fails to engage with alternatives for development of their land.
The expert evidence indicates that there are alternative options available to the Applicants. It is only more convenient for the Applicants to seek access over the Council land. The Council relied on the evidence of the town planners above in [81]-[82], [87] and [88]; Mr Olsson's urban design evidence above in [113], Mr Olsson's Scenario 6 and 7 whereby alternative access could be created within the Applicants' site by widening the existing tunnel driveway (see above in [115], [116]); and Mr Dickson's evidence above in [123] that it is possible to effect any of the various development scenarios created by Mr Olsson. Mr Dickson's evidence in which he identifies various purported issues with using the Applicants' existing tunnel driveway for ingress and egress amounts to nothing more than identifying issues of convenience and preference. In cross-examination, Mr Dickson accepted that widening the existing tunnel driveway is not physically impossible and is available to the Applicants (see above in [130]). Mr McLaren also accepted that you could widen the existing tunnel driveway and achieve two-way access to the property, conscious of the height needed for trucks (see above in [70]).
The Applicants' evidence points only to desirability or preference to justify the easement, precisely what the authorities say the section is not to be used for. The Applicants bear the onus of showing reasonable necessity. The Applicants have no evidence which establishes any legitimate difficulties or uncertainties in constructing the desired access on their land, whether configured for its current use or a childcare centre. The Applicants were best placed to adduce evidence as to any alternative means of access and did not do so, similar to the finding in Govindan-Lee at [49].
The further issue for the Applicants is that an easement must be needed for development or use of the land regardless of who is the proprietor. Any use must be unrelated to the current owner's needs and aspirations: Hanny at 16205. If this easement was granted and the existing building demolished the easement would not be reasonably necessary for the use or development of the land itself.
The Applicants' third proposition was that the impact of the easement on the servient tenement is to be considered in relation to reasonableness, a proposition with which the Council agrees: Moorebank Recyclers CA at [156]. The Applicants did not refer to Moorebank Recyclers CA at [157], where the Court of Appeal held that if the effect of the imposition of the easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, it would require a strong case of reasonable necessity before an easement would be imposed.
The evidence identifies that if granted the easement will preclude certain developments and uses so that increased threshold arises. Mr Clendenning opined that the easement would severely inhibit the capacity of the Council land to be used for an alternative purpose in the future (see above in [88]). Mr Konidaris opined that the imposition of the easement could impact the Council greatly and result in the land being quarantined as an at-grade car park in perpetuity (see above in [137]). Mr Olsson opined that the existence of an easement for vehicular access would render a park or skateboard park unsafe creating a substantial loss to public recreation and amenity (see above in [113]). The increased threshold has been enlivened.

[57]

The burden in scenario three

Turning to the scenario of redevelopment of the Council land following rezoning, the Applicants' contention that any redevelopment would require servicing and have the same type of access and clearance requirements as the easement is unfounded. It does not consider the fact that Council could develop the Council land into a park or in conjunction with the library site to the North so that such access and servicing would not be needed.
The easement will abrogate the Council's ability to develop in any way it chooses. The burden is extreme as the Council cannot have access from wherever it likes from Coxs Road and needs to maintain a height of 3.993 metres for 200 square metres of its land.
The Applicants are wrong to assert that there is no lawful way to achieve egress from their land in light of the existing consent. They could achieve egress through their own land.
The Council emphasised the following propositions which it said were simply not addressed by the Applicants: 1. the easement must be reasonably necessary for the effective use or development of the Applicants' land itself, not merely for any of the persons who are its proprietors from time to time (such that the subjective circumstances of the proprietors are not relevant). 2. the requirement of reasonable necessity is to be decided in light of the circumstances at the time of the hearing of the application of the order. 3. the particular proposed use or development would need also to be preferable to the alternatives.
Mr Dickson (see above in [129]-[131]) conceded that the easement: 1. would prevent a wall being constructed at the connection between the Council and Applicants' land; 2. would prevent Council from excavating Council's land in the area adjacent to the common boundary; 3. would mean that any redevelopment of the Council land must accommodate the easement, limiting Council's choices for redevelopment to some extent; 4. would mean that redevelopment would have to accommodate the easement height; and 5. would prevent Council developing its land into a park.
He further accepted that he would not be able to recommend that the Council develop a park or skate park. He also conceded that the easement would limit the Council's ability to redevelop the land to include a basement where access is in the same location as the easement.
In cross-examination Mr Cirillo maintained his individual evidence above in [97] however he also accepted that the easement meant the Council: 1. must accommodate the driveway in respect of any future development; 2. cannot build a wall at the connection between Council land and the Applicants' land; and 3. cannot excavate the Council land without accommodating the driveway (see above in [98]).
His positions are inconsistent with his initial evidence and that evidence should not be accepted.

[58]

Reasonable necessity not established

The Applicants bear the onus of establishing that an order granting an easement under s 88K ought to be made. The principles concerning reasonable necessity are essentially agreed but with a different emphasis placed on these by the parties. In Moorebank Recyclers CA the Court of Appeal stated at [154]: 154 The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows: "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. 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 use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable." (at 508-509 citations omitted)
As identified in Moorebank Recyclers CA at [159] all relevant matters must be considered together not in isolation. Consideration of alternative methods to achieve a use must be considered: Moorebank Recyclers CA at [158].

[59]

Easement not reasonably needed for effective use of Applicants' land

Whether the easement is reasonably necessary for the effective use of the Applicants' land as the dominant tenement must be considered. Unlike a number of the cases referred to where new development was proposed for which an easement was sought, for example Moorebank Recyclers CA, Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 (ABI-K), the Applicants are seeking an easement to support a longstanding specific use. There is no evidence about the general capacity for development of the Applicants' land (a relevant factor to consider per ABI-K at [6]).
The very particular nature of the easement described above in [9]-[15] is important to consider in assessing whether it is reasonably necessary for the effective use of the Applicants' land. The proposed location as shown on the survey plan and its terms include the positioning of the easement at-grade which means that the existing slope of the Council's land must be maintained along its southern boundary to enable vehicle access towards the rear of the Applicants' building. As identified in the evidence the difference in slope between the entry level on Coxs Road and the existing and proposed access point is some 1.8 to 2 metres. The irregular shape of the easement is to provide a turning circle for entering and exiting garbage trucks collecting waste on the Applicants' land towards the rear of the southern boundary of the Council's land, in addition to providing two way access for car traffic at the same location. That location is at the rear of the Applicants' building. The survey plan attached to the proposed easement shows the area of the easement is along much of the southern boundary from Coxs Road to the end of the swept path along the common boundary, a distance of 24.975 metres. The easement is of variable width. According to the evidence access is not sought for that whole distance along the southern boundary. The swept path location on the Council's land is to accommodate the current built form on the Applicants' land, as can be seen in the swept path diagram above in [13]. The height of 3.933 metres reflects the need to have a certain size garbage truck able to use the easement to access the Applicants' land, creating a tunnel within the easement footprint.
The Council's submission that the effective use intended to be facilitated is the use of the current building on the Applicants' land, rather than the land per se, is correct when the peculiar terms of the easement are considered. As the Council submitted if the current building were demolished the need for the easement as proposed is not apparent. As the Council submitted citing Hanny at 16205 the use supported by an easement must not be related to a particular owner. This application is for an easement which peculiarly suits the current owner of the dominant tenement. This finding is arguably fatal to this application as the Applicants have not demonstrated reasonable necessity in relation to the effective use of their land, in contrast to the building on it, which s 88K(1) is directed to.

[60]

Two way vehicle access to Coxs Road within Applicants' land tenable

Whether there is alternative access to give effect to the use of land must be considered: Moorebank Recyclers CA at [158]. The evidence focussed on whether two way vehicle access to Coxs Road can be provided within the Applicants' land. The Applicants' land enjoys a long frontage to Coxs Road of 74.98 metres according to figures prepared by Mr Olsson (above in [117]). There is a one-way access driveway onto the Applicants' land from Coxs Road at one end of the existing building.
The traffic experts Mr McLaren and Mr Hollyoak identified in their evidence summarised above in [47], [58] that the current layout of the existing building on the Applicants' land does not enable vehicular entry and exit from that land. Mr McLaren's report included a swept path diagram (summarised above in [48]) showing the possible path of cars and garbage trucks using the mid-block option in relation to turning around at the rear of the Applicants' land into and out of Coxs Road. The traffic experts agreed that the expanded tunnel driveway and mid-block options were physically achievable on the Applicants' land: see above in [58]-[60], [65] (Mr Hollyoak), [48], [66], [70] (Mr McLaren).
The town planning evidence summarised above in [73]-[99] disagreed about whether the easement was reasonably necessary in relation to the use of the Applicants' land. Mr Cirillo considered the widening of the Applicants' existing driveway would be inconsistent with the City of Ryde Development Control Plan 2014 and Site Layout Plan which aims to minimise driveways. As Mr Clendenning stated there were no specific planning controls which prescribe active frontages in this location: above in [87]. His views above in [88]-[90] that the existing access point from the Applicants' land from Coxs Road means that an expanded driveway would not unduly impact the commercial character of the area is preferable given what I saw on the site view. The alternative access options on the Applicants' land do not change its fundamental use. Mr Cirillo accepted in cross-examination that the expanded tunnel driveway option could be built (see above in [99]), as it clearly can.
The expanded tunnel driveway option and the mid-block option on the Applicants' land were also identified by Mr Olsson in his individual report summarised above in [106]-[110]. Mr Olsson considered both were feasible. The expanded tunnel driveway option was preferable from an urban design perspective. Mr Olsson provided numerous concept drawings which were annexed to the supplementary joint report, as summarised above in [115], which demonstrated the ability of the Applicants' land to accommodate two-way ingress and egress for cars and garbage trucks with room to manoeuvre at the rear of the Applicants' building, taking into account the reduced height of the garbage truck now intended to be used. The reduction in size of the garbage truck intended to be used reduced the increase in height of the expanded tunnel option, which in turn impacts what can be done on the second level. Mr Olsson identified that additional area on the second level could be provided elsewhere on the Applicants' land to compensate for the area lost above the expanded tunnel driveway if built. The oral evidence of Mr Dickson was to the effect that there was no physical impediment as opposed to a preference from an urban design perspective to achieving access entirely on the Applicants' land: above in [130]. Mr Dickson's view that the urban streetscape was not as well served by the Applicants using their land for access and egress in what is essentially a merits assessment does not undermine my finding that the Applicants can provide two way access onto their land and in any event is not a view shared by Mr Olsson.
While the evidence of Mr McLaren extracted above in [66] was that whether it was appropriate to have two way access from the Applicants' land was more than an issue of traffic management, there was no physical impediment to doing so. No expert evidence has identified any prohibition on or insurmountable impediment to the use of the Applicants' own land for entry and exit to Coxs Road, and the use at the rear of the existing building for two-way traffic in addition to parking.
Enabling access to Coxs Rd from the Applicants' land does require a change to the existing building but there is nothing inherent in the land or its surroundings which suggests this can't be done. As already noted there is a one-way access driveway already at one end of the building. Indeed the current state of the two-storey commercial building which is largely vacant suggests now is an opportune time to make changes to enable ingress and egress from within the Applicants' land.
The evidence supports a finding that the Applicants have a preference to continue to use the current exit arrangements onto the Council land as that enables use of the existing building. As the Council submitted above in [206], while absolute necessity need not be demonstrated, more than a preference for a particular access must be established, citing Hanny and Tregoyd Gardens. The evidence does not support a finding that the easement is reasonably necessary for the Applicants' use of their land as required by s 88K(1).

[62]

Substantial burden on servient land

The greater the burden on the servient land the less likely the finding that the easement is reasonably necessary: Moorebank Recyclers CA at [156]. The terms of the easement sought also inform the extent of the burden on the servient tenement. The description of the easement is identified above in [9]-[10]. Some of the unusual aspects of the easement have already been identified above in [228].
Firstly the precise effect of the proposed easement is not clear in its terms in that it refers to existing ground level, which is not specified. Secondly as noted above in [15] and as evident on the view the Council land slopes up from Coxs Road, with difference in level of 1.8 to 2 metres, which prevents excavation to actual ground level at that location on the Council land. The difference in level is not minor. The evidence refers to the access in the swept path location (see above in [13]) being at-grade.
Thirdly the survey plan attached to the proposed easement shows the area of the easement is along much of the southern boundary from Coxs Road to the end of the swept path along the common boundary, a distance of 24.975 metres. According to the evidence access is not sought for that whole distance, only the driveway access towards the rear at the back of the Applicants' building.
Fourthly the proposed easement is sought to a height of 3.933 metres above the existing ground level (noting the lack of clarity about what that is in the evidence), requiring the Council to provide a tunnel to satisfy the easement in whatever future development occurs on the land.
Fifthly that the easement provides for its suspension or extinguishment to enable the grantor the Council to develop its land, with complicated provisions for reaching agreement about suspension or extinguishment by the grantor provided that an alternative carriage way is provided with the same practical effect, is uncertain in execution were the easement to be imposed. Mr Dickson considered above in [125] that the extinguishment clause in the proposed easement would mean that access points to the Council land from Coxs Road other than the existing access point could be achieved without doubling up, such as on the northwest of the Council land as identified in Mr Olsson's Figure 15 of the supplementary joint report of the urban design experts. As there is considerable uncertainty about the feasibility of providing alternative at-grade access to the Applicant's land in this scenario, giving rise to uncertainty for the Council, I consider his opinion to be speculative.
I consider the peculiar terms of the easement alone would be a burden on the Council given the five matters identified immediately above.
Turning to the burden on the Council's land in terms of its present use and future development in light of the proposed easement, three scenarios are addressed in the extensive evidence and in submissions. The town planning evidence identified the potential uses on the Council's land which changed in the course of evidence preparation to identify that more uses than car parking were permissible, being community facilities in the SP2 zone following approval of a gateway determination in May 2022 and uses identified in the TI SEPP above in [20].
In respect of the burden on the Council land in terms of traffic, I note that the SIDRA analysis undertaken by Mr McLaren traffic engineer assessed the impact of traffic from the childcare centre on the operation of the current car park as identified above in [50]-[54]. This was said to be a worst-case scenario for traffic generation on the Council land and for that reason remains relevant to the determination of the burden of the easement on the Council land. Mr Hollyoak agreed in cross-examination that the additional traffic would lead to delay of one second for those using the carpark. This in itself is not a consequential burden.
As the Council emphasised, it cannot build a wall along its boundary or level the Council land to match the level of Coxs Road for future development in the current carpark driveway location if the easement is imposed. That is self-evidently a substantial burden. Nevertheless the Court was provided with extensive town planning and urban design evidence disputing the extent of burden.

[64]

Scenario 2 - multi-storey car park on Council land

It is obvious that the nature of the easement sought is burdensome on the Council's ability to redevelop its land given the requirements of the easement for at-grade access along a portion of the southern boundary of Lot 1 towards the rear of Lot 1, whether that is for a reconfigured single level car park with a different access point (scenario 1), a multi-level car park (scenario 2) or a different development (scenario 3).
The town planning evidence summarised above in [73]-[99] identified inter alia what uses can be applied to the Council land, which expanded over time, as explained by the evidence above in [20], [40]-[41] (the gateway determination and TI SEPP), [73(4)] (supplementary town planning joint report), [96] (cross-examination of Mr Cirillo), [129] (cross-examination of Mr Dickson).
Mr Cirillo essentially supported the opinions of Mr Dickson in relation to possible redevelopment of the Council land with the next door site and the impact of the easement on a multi-level carpark on the Council land to the effect that the burden would be minimal.
Mr Clendenning's opinion above in [91] was that the easement would constrain future development as a multi-level carpark, as supported by Mr Hollyoak above in [61], [67].
The lengthy evidence of the urban designers summarised above in [100]-[135] included their individual reports and two joint reports. Mr Dickson in his first report prepared two multi-storey car park options for the development of the Council land in isolation to demonstrate that the proposed easement can be readily accommodated in his opinion. He opined that the easement would not have any material adverse effect on the redevelopment of the Council land in either multi-storey car park scenarios as both retain the easement along the common side boundary of the Applicants' land and Council land. Both were subject to more detailed review by the traffic experts and both provided for more than the existing car park spaces in the at-grade car park. In his view option 2 was preferable.
Focusing on a multi-level car park proposal, Mr Olsson's evidence in the joint report above in [113], and supplementary joint report above in [119] as identified in Figures 5A, 6A identifies that the height requirement of the easement would not enable the Council to build each level at an optimum height of 2.8/2.9 metres resulting in a taller and more expensive, less efficient car park.
Mr Dickson's opinion in the first joint report above in [112] that a higher height at the ground level entry of a multi-level car park as required by the easement would be a sensible approach to accommodate garbage trucks or enable conversion to other uses such as a community facility was somewhat fanciful. As the Council submitted a multi-level car park does not need a garbage truck collection service as it is not habitable. Why it would be a suitable structure to convert to a community facility is not at all apparent.
As I understand the Applicants' submission above in [196]-[197] whether the proposed easement represents a significant burden on the Council land can be considered by reference to case law on whether what is proposed to be done is a substantial interference with the right of way. This is a question arising in a different context and would appear to add little to what I am considering.

[65]

Scenario 3 - other developments on Council land

The evidence identifies a skatepark or park, or building to accommodate community activities, or a use permitted by the TI SEPP as possibilities arising in Scenario 3.
As identified in the affidavit of Mr Davis council officer above in [34]-[38] the Council considered the car park in 2013 when it was classified as operational land with the aim of generating income and future revenue from investment. The land was identified as a key property in 2014 with a recommendation for a higher use zoning made. A Council strategy report was prepared in 2016 which identified the land as priority 1 meaning it would be the focus of investigation within the next 3 to 5 years with potential for rezoning. Potential for redevelopment with nearby sites was recognised. The car park was identified in the Council's Draft Masterplan 2017, summarised above in [37]. The Draft Masterplan 2017 identified the best use of the Council land as a shop top development. I do not agree with Mr Dickson's description of the Draft Masterplan 2017 as speculative. The Council also prepared preliminary sketches for development opportunities of the Council land which included basement car parking, ground floor retail and a library/community facility in March 2017 for a proposed B1 Neighbourhood Centre zoning. This evidence suggests that the Council is more likely than not to move to redevelop the car park site in the foreseeable future, which may well require a planning proposal if not for a carpark. I do not agree with Mr Cirillo that this is no more than a possibility. I agree with Mr Clendenning that it is likely. While Mr Dickson has provided his view that approval of a planning proposal cannot be assumed, nor can the likelihood of its approval be ignored. The burden placed on the Council's land must be assessed in light of the reasonable likelihood that the Council will wish to redevelop the site in the foreseeable future from a single level at-grade carpark in its current layout.
The third scenario, other development, is potentially affected to a significant extent. No park or skate park could be built. While Mr Dickson thought such a possibility was unlikely under current planning policies or instruments above in [112] that is essentially an informed guess in my view. Whatever the likelihood that option for a use cannot occur if the easement is imposed. In his individual report Mr Dickson considered both shop top and commercial/community facility mixed use developments to be possible (Options 3 and 4) and expressed the view that the easement would not adversely impact the possibility of redevelopment even if Council were able to build the development envisaged in its Draft Masterplan 2017 involving 152 Coxs Road, which in his view was unlikely (see above in [103]).
In the joint report Mr Dickon's view was that the provision of a 4.2 metre floor clearance (and I would gather this view applies to the lesser height of 3.933 m now sought) is appropriate on any site to allow garbage collection by the Council. He would expect that in any redevelopment Council garbage trucks would have to access the site to collect garbage as a private contractor would be unlikely to be used. He opined that there would not be a significant loss of gross floor area from the easement, that the easement can be reduced if necessary, and that the concept options in his evidence show the possible developments that would not be materially impacted.
In the supplementary joint report above in [124]-[128] Mr Dickson agreed with Mr Olsson that if a multi-level car park were to be built that would require a 3.933 metre floor to ceiling height for garbage trucks, however concluded that best practice would be to have the height at that level in any case to accommodate other uses such as retail or community uses. He reiterated his view that servicing by Council garbage trucks of any site would require a height that accommodated the trucks. He emphasised that the easement could be amended under cl 2.1.
Mr Olsson's view was different. He believed the easement would restrict Council's future uses of its land (above in [108]). A skate park or park could not be built, the easement would make any development less efficient and more expensive, and the easement would require ground levels to be retained across the boundary with the Applicants' land limiting design options (see above in [113]).
In the supplementary joint report Mr Olsson added that an electric vehicle facility, a permissible use, would be less efficient than a typical development of that type because it would ordinarily have a lower clearance height than would need to be provided if the easement were imposed. He reiterated that the need to provide the same RLs at the boundary and the presence of the easement on the southern boundary would limit the redevelopment options such as locating a community facility along the southern end of the street façade (above in [119]-[122]).
As Mr Olsson identified and I accept the Council would be limited in its ability to develop its land in isolation and develop its land in conjunction with the neighbouring land to the north as it sees fit if it has to accommodate the easement. The Council's future design options will be limited including in setting floor levels for development on the Council land.
The lengthy evidence of Mr Dickson was at best an educated guess about how the Council could in his view readily satisfy the provision of the easement in any future development in light of current planning controls or what may occur in the foreseeable future. Mr Dickson's view as a consultant urban designer at large about what was a reasonable future development for the Council simply cannot reflect what the Council may do in the future. Mr Dickson's evidence failed to address any of the obvious burdens likely to arise for the Council as identified by Mr Olsson if the easement is imposed.
Mr Cirillo accepted in cross-examination that the ground floor of the Council's concept plan for the redevelopment of the Council land as shop top retail identified in the Draft Masterplan 2017 could not occur with the driveway in the north if the easement was in place. As Mr Cirillo's opinion that the easement would not give rise to significant interference with the Council land was essentially arrived at relying on Mr Dickson's evidence it follows that I do not accept that opinion. There is clear evidence that it will impose a substantial burden on future development options.
Mr Clenndenning believes the impacts of the easement would significantly impede the redevelopment of the Council land (above in [92]) and that the easement would interfere with the Council's capacity to provide a civic development and adapt to planning controls should they wish to change them. The easement would be, in his opinion, a critical and fundamental constraint that would prevail over Council's intent to improve the manner in which the land meets the needs of the public (above in [94]). It would be a barrier to the orderly redevelopment of the land in line with the Council's Draft Masterplan 2017.
Mr Cirillo and Mr Dickson made significant concessions in cross-examination which the Council rightly submitted reveals the burden on the Council land in any redevelopment scenario (see Council's submissions above in [221], [223]).
That the burden is significant is supported by the Council's urban design evidence of Mr Olsson and town planning evidence of Mr Clendenning, which evidence I consider dealt far more realistically with the obvious substantial burden imposed on the Council in relation to future development than the experts called by the Applicants.
As stated in Moorebank CA if the effect of the imposition of an easement is to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed. Such a case has not been established by the Applicants.
Taking into account the matters identified above I conclude that reasonable necessity for the purposes of s 88K has not been established by the Applicant.

[66]

Public interest - section 88K(2)(a) (issue (b))

Section 88K(2)(a) states that an order may only be made if the court is satisfied that use of the land having the benefit of the easement will not be inconsistent with the public interest.
I have found that the use of the easement would be prohibited under the RLEP. The Applicants maintain that the easement is not inconsistent with the public interest. While prohibition in the Class 1 proceedings will mean the easement can no longer be sought for the development of other land, it is still reasonably necessary for the effective use of the land as it is currently used according to the Applicants. They submit that an easement for the effective use of their land as currently used would not be inconsistent with the public interest because the development consents from 1985, 1986 and 2001 create a legal obligation to egress via the Council car park. Those consents were given with mandatory regard to the public interest under (now) s 4.15(1) of the EPA Act. The proposed right of carriageway is compliant with all of the Council's planning controls. The Applicants rely on ABI-K at [25] to the effect that an approved use will ordinarily be in the public interest. Louisiana Properties v Hakea Holdings [2017] NSWLEC 37 at [56] was also relied on to the effect that nothing in the material suggests that the previous approvals were contrary to the public interest. The Applicants accept they do not have any enforceable property right in relation to accessing the Council's car park.
The Council submits that the proposed easement is not in the public interest. The proposed easement is prohibited in the SP2 zone and therefore the use of the Applicants' land would be inextricably associated with a prohibited use of land. There is also a real possibility that the Council may wish to put its land to a use that would conflict with the easement (see Mr Clendenning's evidence above in [87]-[92]).
The matter of public interest from a planning perspective was addressed by the town planners in their joint report as summarised above in [93]-[94]. Mr Clendenning explained why redevelopment and rezoning of the site away from an at-grade single level carpark is more efficient and that such redevelopment and rezoning is common in commercial strips such as that on Coxs Road. He opined that the easement prioritises access to the Applicants' land over the most efficient and preferred uses for the public land owned by the Council. His view was that the easement adds complexity to the task of utilising public land for the benefit of the community.
The Council's submissions do not really address the terms of s 88K(2)(a) which refers to use of the land to benefit from an easement. The Council's submissions focus on the use of the Council's land and whether use for the easement if imposed is in the public interest, which does not reflect the wording in s 88K(2)(a). Those submissions are relevant to the overall exercise of the Court's discretion which applies in addition to the express considerations identified in s 88K, and which I refer to below in [303]. The use of the Applicants' land for its current use is not inconsistent with the public interest.

[68]

Applicants' submissions

Rainbowforce at [106]-[116] identifies the correct approach to the adequate compensation for any loss or other disadvantage that will arise from the imposition of the easement under s 88K. In Moorebank Recyclers CA at [236] the Court of Appeal stated: 236 Section 88K(4) will only be reached if the Court has determined under s 88K(2)(b) that the owner of the servient tenement can be adequately compensated. If it can be, even with difficulty, the Court is required by s 88K(4) to order the compensation it considers appropriate. …
In Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286 (Moorebank Recyclers SC No 2) Young AJ stated at [49], [51]-[55]: 49. Assessing compensation is usually an exercise of some difficulty, not the least of which is the fact that valuation is not an exact science. … 51. The meaning of s 88K(2)(b) has not, as far as I am aware, been fully fleshed out in the decisions on the section. Just reading the words in a natural way the Court must consider: (a) what loss; and (b) what other disadvantage will arise because of the easement. 52. "Loss" appears to include loss of intangible benefits, Khattar v Wiese [2005] NSWSC 1014; 12 BPR 23, 235 at 23,248 [49], and to include the suffering of potential loss of privacy as a result of strangers using the easement: Hanny v Lewis (1998) 9 BPR 16,205 at 16,209. 53. Such losses of intangible benefits are hard to value and, as Brereton J said in Khattar, may mean that compensation for such losses cannot be assessed so that no easement can be granted. 54. That problem is not present in the instant case. 55. A problem that does arise is what semantic significance should be given to the word "will" in the phrase "disadvantage that will arise". Does this mean that the Court does not need to consider (except as to discretion) disadvantages that might possibly arise or even those which have a 50/50 chance of occurring and only consider, under this head, those that will arise as a matter of virtual certainty? …
Valuing potentialities does not permit speculation: Vilro v Roads and Traffic Authority (2010) 179 LGERA 47; [2010] NSWLEC 234 at [91] citing Serbian Cultural Club "St Sava" Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673 at [112]; Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2005] NSWLEC 467 per McClellan CJ at [28], and on appeal in Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of NSW [2006] NSWCA 314 at [73], [77]). The fact that the valuers were able to reach agreement that two scenarios could apply (Scenario 1 blot on title, Scenario 2 loss of gross floor area) demonstrates that the Council can be adequately compensated. The correct valuation approach depends on the statutory language in s 88K(2)(b) which suggests that only Scenario 1 fits. Scenario 2 is contrary to the statutory language as it assumes a sale to a hypothetical purchaser (like the exercise undertaken under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)) not the loss and other disadvantage (the language of the Conveyancing Act) to the Council as the current owner. In oral submissions Scenario 1 was faintly pressed and it was accepted that Scenario 2 may be appropriate in the absence of any other valuation (Tcpt, 28 June 2022, p28(36)-(37)).
The intangible matters raised by Mr Kondiaris were considered in his individual report and are not intangible. As Mr Hollinshead says, they are matters which would be taken into account by the hypothetical purchaser (if Scenario 2 is correct) albeit their quantification is opaque at best and most likely guesswork.

[70]

Adequate compensation not able to be provided

In Rainbowforce at [106]-[116], Preston CJ summarised the principles to be applied when the Court assesses the statutory precondition in s 88K(2)(b), the key principles relevant to this matter being (references to caselaw omitted): 106 First, the adequate compensation referred to in s 88K(2)(b) is the same as the compensation that the Court may order under s 88K(4)… 107 Secondly, compensation is for "any loss or disadvantage" that will arise from the imposition of the easement. The addition of the words "or other disadvantage" provides for compensation for disturbance beyond the actual value of the proprietary right taken… 108 Thirdly, the compensation is not a substitute for the price that could have been exacted if the section did not exist … Hence, there can be no compensation for the loss of bargaining position of the owner of the land to be burdened...The owner is "to receive a just sum and for value for what he or she has to give over, rather than being able to demand the earth"... 109 Fourthly, the compensation is for any loss or disadvantage "that will arise from the imposition of the easement". That language imposes a requirement for a causal relationship between the loss or disadvantage for which compensation is claimed and the imposition of the easement… The common law of causation should be applied, namely that causation is a question of fact to be determined by applying common sense to the facts of each particular case… 110 Fifthly, the Court's task under s 88K is to be satisfied that the persons affected by imposition of the easement are "adequately compensated" and to provide for an order for payment of such adequate compensation. In assessing adequate compensation the Court "is not to err on the side of generosity or miserliness"… The Court should not depart from the task of assessing adequate compensation because the applicant for the order stands to gain from the development or use which leads to their applying for the order… 111 Sixthly, ordinarily, compensation will have three elements: (a) the diminished market value of the affected land; (b) associated costs that would be caused to the owner of the affected land, and (c) an assessment of compensation for insecurity and loss of amenities, such as loss of peace and quiet. Against these losses and disadvantages should be allowed, as an offset, any compensating advantages… … 113 In the case of a grant of a permanent easement, such as a right of carriageway or easement for drainage or services, compensation includes the loss of proprietary rights by the imposition of the easement and compensation for the disturbance effected by the carrying out of the initial work, such as construction of a road or laying of pipes in the easement, and subsequent repair and maintenance from time to time… 114 Seventhly, if the imposition of the easement causes material injury to intangible benefits or the imposition of material intangible detriments, such as reduced amenity, enjoyment of property, and exposure to increased disruption and interference, which are not readily capable of being estimated in monetary terms, the Court may not be able to be satisfied that the servient owner can be adequately compensated… However, compensation is often able to be assessed for injury to intangible benefits or the imposition of intangible detriments… … 116 Ninthly, the applicant for the order has to establish what the relevant losses and disadvantages are as part of satisfying the Court that the persons affected by imposition of the easement can be adequately compensated… In the course of the hearing, evidentiary onuses may shift to the person affected... Where facts are peculiarly within the knowledge of the person affected and that person does not adduce relevant evidence, it may be open to the Court to draw unfavourable inferences…
Considering those principles, that the Applicant will stand to gain financially from the imposition of the easement is irrelevant to the assessment of compensation. The focus is the loss or disadvantage to the Council as caused by the imposition of the easement. In Moorebank Recyclers SC No 2 Young AJ stated at [49] a proposition with which I agree: 49 Assessing compensation is usually an exercise of some difficulty, not the least of which is the fact that valuation is not an exact science.
The valuers' approach to the assessment of compensation highlights the difficulty in devising a value for compensation for the potential loss and disadvantage which will arise for the Council if this particular easement is imposed. That the valuers did their best in what appears to be a vacuum as to the appropriate methodology to be applied largely supports the Council's approach that it cannot be adequately compensated for the loss and disadvantage it will suffer if the easement is imposed.
I have found above in [257] that there is a reasonable likelihood of the Council deciding to develop its land in the foreseeable future. Although I appreciate that presents a challenge in this valuation exercise, to value solely on the basis of no future development does not result in adequate compensation for the Council.
The observations of Young AJ in Moorebank Recycling SC No 2 extracted above in [278] by the Applicants identify some of the challenges that arise from the statutory language of "disadvantage that will arise" in considering what 'will arise' means. I do not consider I need to further define 'will' in this context in concluding that Scenario 1 is too narrow given the circumstances of this case. It does not reflect the extent of "loss or disadvantage" which will accrue to the Council when it seeks to develop the Council land which I consider to be likely in the foreseeable future. The Scenario 1 'blot on title' approach is inadequate to compensate the Council for its loss and disadvantage of having to cater for the easement in any future development of the Council land. Scenario 1 is predicated on the absence of any future development because the valuers were unaware of any current proposals and because Mr Hollinshead believed that the market would assess it as likely that the use as an at-grade car park would continue. This was confirmed in his evidence above in [139] and in cross-examination, summarised above in [145].
Scenario 2 was criticised by the Applicants in written submissions as not compliant with the statutory language of s 88K which does not permit any speculation such as a sale to a hypothetical purchaser. This criticism was more muted in oral submissions reflecting an acceptance that the Council should obtain some compensation greater than in Scenario 1 (Tcpt, 28 June 2022, p 28(36)-(38)). I do not need to resolve this issue as I consider Scenario 2 is also inadequate. Treating the loss of value of public land which could be used in the future for a wide range of possible uses including a park, skate park or community facility by applying a valuation method relying on hypothetical sales as used in the statutory framework for compulsory acquisition cases does not properly reflect the loss or more precisely the disadvantage that will arise to the Council.
I accept Mr Konidaris' evidence that the loss or disadvantage is simply not compensable due to the inability to quantify the intangible losses he identifies above in [141]. I agree with Mr Konidaris that the losses or disadvantages he identifies are intangible impacts. As Brereton J noted in Khattar at [50]: 50 Thus in many cases, injury to intangible benefits and the imposition of intangible detriments, such as reduced amenity and enjoyment of property, and exposure to increased disruption and interference, may weigh heavily against a conclusion that the servient owner can be adequately compensated for the purposes of s.88K(2)(b).
Mr Konidaris changed his evidence in relation to intangible loss. In the first joint report he identified an amount of $110,000 as appropriate compensation for those losses. In the supplementary joint report he considered that the intangible losses could not be compensated (above in [141]), after advice from Mr Olsson (above in [150]). He denied in cross-examination that he was told what to do by anyone else and stated that upon further consideration of matters identified by Mr Olsson he more fully appreciated the Council's position as the owner of public land. I consider his evidence reflects the nature of the loss or other disadvantage that will arise for the Council given the specific terms of the easement sought.
While Mr Hollinshead did not agree for the reasons extracted above in [142], maintaining that traditional market valuation methods can be used, I do not agree such methods can adequately compensate the Council as the owner of public land on which a variety of uses and developments are likely to occur. These cannot be reflected in the usual gross floor area loss calculations reflected in Scenario 2. The circumstances in Re Worthston, a decision of Carter J in the Supreme Court of Queensland considering s 180 of the Property Law Act 1974 (Qld) which is in similar terms to s 88K(2)(b), was relied on by the Council as being analogous. The Council submitted that requiring the Council land to provide permanent access to the neighbouring land in the location fixed by the easement results in consequences similar to the creation of the easement in Re Worthston, in that case over land which would become a dedicated road in due course. While the burden imposed in Re Worthston is arguably more onerous I agree that the imposition of the easement would convert the Council's land into a thoroughfare for users of the Applicants' land, with obvious substantial disadvantage occasioned to the Council.
I do not consider that the Council can be adequately compensated for the proposed easement as is required by s 88K(2)(b).

[74]

Reasonable attempts not made

The requirement of reasonable attempts is a matter of degree and will generally be satisfied if negotiations have proved fruitless and it is extremely unlikely that further negotiations will produce a consensus in the reasonably foreseeable future: Tregoyd Gardens at 15855 citing Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14638 at 14653-4. In Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 at [72] I held that reasonable attempts could be considered after the filing of the application. There is no dispute that the Applicants have made reasonable attempts to obtain the easement they are seeking, as is clear from the evidence of Mr Gadiel and Ms Zhao and based on the Applicants' authorities summarised above in [294].
Whether s 88K(2)(c) has been complied with depends on the approach taken to "or an easement having the same effect". There is no evidence that the Applicants sought to obtain any other easement from any other neighbour or any different easement from the Council over the Council land.
In Tregoyd Gardens, Hamilton J rejected the plaintiff's submission that the easement referred to by the words "or an easement having the same effect" in s 88K(2)(c) is required to be an easement over the same land as "the easement" in s 88K(2)(c). Tregoyd Gardens was applied on this point in Khattar at [54]-[58]; Gordon v Gioia & Anor [2007] NSWLEC 509 at [15]-[18] and Rainbowforce at [128]. If the easement over the alternative land would have the same effect as the proposed easement then the applicant is obliged to seek and make all reasonable attempts to obtain the alternative easement: Khattar at [54]; Butt's Land Law at [16.560].
The Applicants provided no authority for the submission that the Council's view is inconsistent with the statutory language. It is unclear why I should depart from the view taken in the authorities cited by the Council which give the words "or an easement having the same effect" separate work to do. No evidence was provided of any attempts to procure an easement having the same effect as the one sought on land other than the Council land. This underscores the very particular needs of the Applicants driven by the location of the building on their land, as identified above in [228]. I do not consider that reasonable attempts to obtain an easement having the same effect have been made by the Applicant. That is another precondition not able to be met by the Applicants.

Alramon Pty Ltd v City of Ryde Council

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