Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council

Background facts

1. The Council is the registered proprietor of land immediately adjoining to the South of Lot 1. That land is all of the land comprising Lot 1 in Deposited Plan 107494 (the Council Land). The Council Land is classified as community land pursuant to the provisions of the Local Government Act 1993 (LG Act). The Council Land is also the subject of a Trust for the purposes of "providing public garden and public recreation space". The Trust also includes a large area adjoining the Council Land known as Cooke Park.
2. The land adjacent to the Council Land's southern boundary and Lot 1 are also subject to a stormwater channel easement in favour of the Minster for Public Works for the conveyance of stormwater in a constructed concrete channel.
3. Aussie Skips carries on a use for the purposes of a waste transfer and recycling facility on Lot 1 pursuant to a number of development consents. Sometime after 2000, a previous occupier of the land expanded 'the area of' that use such that it was also carried on upon part of the Council Land. At or around the same time the previous occupier also constructed an acoustic wall on the Council Land together with a concrete pad and stormwater services. The use of the Council Land and the construction were not undertaken pursuant to any express authority given by the Council as landowner or otherwise.
4. Aussie Skips and the Landowner (the Plaintiffs) now seek four easements over that part of the Council Land to the north of the existing acoustic wall (the Easement Land). The Council opposes the granting of each of the four easements on the Council Land.
5. These proceedings were commenced in the Supreme Court by way of Summons seeking orders for easements pursuant to the provisions of s 88K of the Conveyancing Act (s 88K). The proceedings were transferred from the Supreme Court to this Court for determination by order of Darke J on 6 August 2019.

Features and nature of Council Land

1. Historically the Council Land was created as a separate Lot after the relocation of Cox's Creek into a formed drainage channel. The Council Land, by the imposition of the channel, was physically separated from the remainder of the land that was subject to the Trust for public recreation and gardens, forming what is known as Cooke Park.
2. The only practical access to the Council Land is via an unmade road known as Chisholm Street. The unmade road is presently covered in dense vegetation.
3. The Council Land falls from its north boundary to the formed channel. The evidence discloses that it has not been used for any active use. Apart from the part of the Council Land occupied by the Plaintiffs, the Council Land is best described as having been left in its natural state. The part not occupied is presently covered in vegetation.
4. The Council Land forms part of the visual catchment of Cooke Park, however, it does not operate in any physical sense as part of the Park.
5. It was generally agreed that the Council Land was incapable, as a single allotment, of being used for any use that required the erection of a building or for any of the uses permissible in the zone. The only way in which the Council Land could be utilised for such use would be in conjunction with Lot 1. As a consequence, and in light of the Trust and classification of the Council Land as community land, the most efficient use of that land at present was for a passive use.

Zoning of Lot 1 and Council Land

1. Under the Strathfield Planning Scheme Ordinance, Lot 1 and the Council Land were zoned "Industrial (4)".
2. Under the Strathfield Local Environment Plan 2012, which commenced on 29 March 2013, Lot 1 and the Council Land are zoned IN1 General Industrial.

Waste transfer and recycling consent - DA 9899/452

1. In about June 1999, the company Aussie Skips (Aust) Pty Limited (ACN 067 450 444) (Aussie Skips Australia) (which is not related to Aussie Skips) lodged a development application with the Council (being DA 9899/452) to use Lot 1 as a waste transfer and recycling facility for solid inert building and demolition waste (the Facility).
2. On about 17 April 2000, Council granted consent to DA 9899/452, subject to conditions (DA 9899/452). The Facility commenced operating shortly thereafter.
3. DA 9899/452 does not apply to the Council Land.
4. The conditions of consent for DA 9899/452 include the following: 1. The development shall be generally in accordance with the approved plans accompanying the development consent but subject to any variation as required by the conditions detailed therein (Condition 1); 2. All work shall be contained wholly within the building (Condition 14); 3. The operating noise level of plant and equipment shall not exceed 45dB(A) when measured at any point on any residential premises between the hours of 7am to 6pm Monday to Saturday (Condition 16); 4. The operating noise level of plant and equipment shall not exceed 65dB(A) when measured at any point on the boundaries of the land (Condition 17); and 5. The implementation of this development shall not adversely affect the amenity of the neighbourhood by reason of the generation and escape of dust, waste products or sediment from the land (Condition 19(1)).
5. The approved plans for DA 9899/452 depicted the following site layout: 1. The land was shown as wholly within Lot 1; 2. An "access roadway" was designated offset from the southern boundary of Lot 1 that ran along that boundary from the entry gates off the right of way on Lot 3 to the drive over bund referred to in (3) below; 3. The north-eastern corner of the land was designated as a "grassed yard" of 1,065m2 in size and was separated from the rest of the land by "drive over bunds"; 4. The "main yard" was described as a concrete surface of 1,520m2, which was a vacant area except for one "hard fill bay" (11m x 7.3m) and one "soil bin" (11.4m x 6m); 5. All processing work was depicted as occurring within "Building 3" (in accordance with Condition 14); and 6. All proposed stormwater infrastructure was located within Lot 1.

Acoustic wall consent - DA 203/040

1. In 2002, a report prepared by RSA Acoustics concluded that the Facility was exceeding the mandated noise level of 45dB(A) under Condition 16 of DA 9899/452 and recommended that an acoustic wall be constructed along the boundary of the Lot 1 separating it from the residential areas of Chisholm Street.
2. In about July 2002, Aussie Skips Australia lodged a development application (being DA 203/040) for the construction of an acoustic wall on Lot 1 in accordance with the recommendations of RSA Acoustics.
3. On about 20 June 2003, Council granted consent to DA 203/040, to erect a 3.6m high wall along the eastern boundary of Lot 1 (DA 203/040). Subsequently, on about 19 July 2005, the Council approved a modification application in respect of DA 203/040 that increased the length of the wall but did not approve the relocation of the wall from the boundary of Lot 1 to the Council Land.
4. DA 203/040 does not apply to the Council Land.
5. The conditions of consent for DA 203/040 (as modified) included that the acoustic wall be constructed in accordance with the approved plans (Condition 1).
6. The acoustic wall was constructed sometime between about February 2007 (when a construction certificate for the wall was issued) and June 2010 (when an occupation certificate for the wall was issued).
7. On about 10 June 2010, the Council issued Occupation Certificate No 203/40 "to create a wall along the eastern boundary". The description of the land in the occupation certificate was "5/84-108 Madeline Street, South Strathfield Lot 1 DP 556743".
8. The acoustic wall was not constructed in the approved location approved or at the height or for the length referred to in the consent (as modified). In particular: 1. The acoustic wall was not constructed on the eastern or south-eastern boundary, but rather was constructed partly on the Council Land; 2. The approved height of the acoustic wall was 3.6m. The acoustic wall is presently approximately 8.9m in height; and 3. The acoustic wall extends further south along the Council Land than depicted in the approved plans. The acoustic wall had been depicted as terminating on the boundary in line with the south-eastern corner of Building 3. As built, the acoustic wall extends further south on the Council Land to a point immediately adjacent to the weighbridges on Lot 1.

Weighbridge consent - DA 2015/144

1. On about 11 November 2015, Aussie Skips Australia lodged a development application (being DA 2015/144) for the construction and installation of two weighbridges on Lot 1. The development application form DA 2015/144 described the land as "Unit 5 84-108 Madeline Street, Strathfield South" and "Lot 1 DP 556743".
2. On about 24 February 2016, Council granted consent to DA 2015/144 for the installation of two vehicle weighbridges on the land at "5/84-108 Madeline Street, Strathfield South Lot 3 and Lot 1 DP 556743", "to be used in conjunction with the approved waste transfer station".
3. As part of the weighbridge consent an "Environmental Management & Operational Procedures Manual" (EMP) was approved and by Condition 1 the development was required to be carried out in accordance with the EMP. The EMP relevantly provided: 2.1 Storage of Materials Materials to be stored on the site include waste, residual waste, products or by-products from the facility. waste will be stored within the recovery building; or in the yard in covered waste containers either on or off vehicles prior to processing; residual waste will be stored either within the recovery building; or in the yard in covered waste containers either on or off vehicles prior to disposal to landfill; by-products may be stored in either the recovery building or in the yard in containers or in stock bins; products may be stored in either the recovery building or in the yard in containers or in stock bins; recovered bricks may be stored on pallets in the yard. 2.2 Yard Storage Materials are stored in the yard in either containers (skips or bins) or in stock bins. The latter are moveable, three sided containers constructed from steel, timber or (most commonly) large concrete blocks. Typical dimensions of stock bins are 3 metres wide, 5 metres long and 2 metres high. The stock bins will be located along the western northern and eastern boundaries of the yard. The quantity of materials stored in the yard will vary with the type and amount of recoverable materials in the waste stream. At present plastics are not recovered from the waste stream. The quantity of materials stored at any one time are estimated below: Materials Quantity stored Storage method Storage location waste materials for processing 100 tonnes in containers on or off trucks yard residual waste 20 tonnes stock bin Facility concrete by-product 25-50 tonnes stock bin yard recovered material say 1 truck load in container yard soil product 25-50 tonnes stock bin yard

3. Unloading of Trucks The procedure for unloading truck (sic) containing waste is as follows: all loads of waste are to be unloaded within the recovery building; the waste may be sprayed with water to control dust before unloading onto the sorting floor; after unloading the waste may be sprayed with water to control dust; after emptying the waste container to be inspected that all waste have been removed, and if necessary the container swept with a broom. 3.1 Loading of Trucks Trucks are loaded with either residual waste, products or by-products from the facility. Loading is by front-end loader or by hydraulic excavator. In general the loading of trucks will not take place before 7 AM. Loading of trucks in the yard with concrete and similar materials will not take place before 8.30 AM.
4. There is a dispute as to whether DA 2015/144 applied to the Council Land as well as Lot 1.

Council's awareness that there was use and occupation of the Council Land

1. By email dated 13 February 2008, Sydney Water advised the Council, inter alia, that: The land where the sewer traverse (sic) is owned by Strathfield Council and it appears some section of the development (noise barrier wall) is in your land - council issue
2. This is the first point in time, on direct evidence, it is established that the Council knew (actually or constructively) that the acoustic wall was being built on its land. This date precedes the granting, by the Council, of the occupation certificate for the acoustic wall.

Aussie Skips purchase of the Facility and entry into the lease of Lot 1

1. Aussie Skips purchased the Facility in early November 2016 and has operated it since that time.
2. In 2017, Aussie Skips entered into registered lease AN45453 as Lessee with the Landowner as Lessor. It was a term of that Lease that: 27. ACOUSTIC WALL AND BOND 1. The Lessee is aware that: (a) A previous tenant of the Premises, Aussie Skips (Aust) Pty Ltd ("Aussie"): (i) Constructed an Acoustic Wall ("the Wall'') partly on the Premises and partly on adjacent land (being Lot 1 DP 107494) ("the adjacent land"); and (ii) Used the Wall and the adjacent land in conjunction with the business it operated on the Premises. (b) The construction of the Wall and use of the adjacent land were without consent of the owner of the adjacent land, Strathfield Council ("the Council"). (c) Aussie had requested but had not obtained the consent of the Council to the Wall and use of the adjacent land. 2. The Lessee as a term of its purchase of business from Aussie accepted responsibility for future dealings with the Council regarding the Wall. 3. The Lessee agrees with the Lessor that it will be responsible for all costs and expenses which may arise in future regarding the Wall including dealings with the Council. 4. The Lessor makes no representation or warranty to the Lessee in relation to the Wall or to any issues arising from it or in respect to any ongoing issue with the Council. 5. The Lessor is concerned that it could incur liability in respect to the Wall, including in relation to removal of the Wall and making good the adjacent land, which could incur substantial cost and expense. 6. The Lessee shall prior to the commencement date of this Lease provide to the Lessor a Bank Guarantee in its favour in the sum of One Hundred and Eight Thousand Dollars ($108,000) to be held by the Lessor as a bond against liability it may incur regarding the Wall ("the Wall Bond"). The Wall Bond (not containing an expiry date) shall be issued by a financial institution approved by the Lessor unlimited in time and in a form approved by the Lessor. If the Lessor sells or transfers the property the Lessee shall when called upon provide a replacement Wall Bond in favour of the purchaser or transferee. 7. The Lessor shall hold the Wall Bond pending resolution of all issues with the Council regarding the Wall to the Lessor's satisfaction at which time the Lessor shall return the Wall Bond, to the Lessee. 8. If the Lessor incurs any cost or expense in relation to the Wall it shall be entitled without notice to the Lessee to claim such amounts from the Wall Bond. The Lessee will at any time the Wall Bond is called on by the Lessor top up the Wall Bond to $108,000. 9. The Lessee releases the Lessor from any claim or demand it may otherwise have against the Lessor arising from the subject matter of this clause including but not limited to any requirement of Council that the Wall be removed or reconstructed, any interruption to the business of the Lessee or otherwise. 10. The Lessee shall keep the Lessor informed of all its dealings with the Council regarding the Wall and provide upon request copies of relevant correspondence and documents. 11. The Lessee shall pay the Lessor's legal costs and expenses incurred before commencement of the Lease arising from its consideration of the issues regarding the Wall and shall pay all the Lessor's cost and expenses, including costs of experts and consultants engaged by the Lessor, incurred after the commencement of the Lease which relate to the subject matter of this clause. 12. The parties acknowledge and agree that the Lessor shall retain all interest that may have accrued under the Lease AM47515 in relation to the Bond paid under that Lease.
3. There is a dispute between the parties as to the application of the term of the Lease and the potential liability and consequences arising from the Lease. I do not need to determine those questions in order to determine these proceedings. The term of the Lease is relevant, however, as evidence of what Aussie Skips was aware of at the time it commenced its occupation and the potential range of financial risks (to the extent they are relevant) that the Landowner and Aussie Skips may have for the removal of works from the Council Land.

Current site layout and operations of the Facility on Lot 1 and the Council Land

1. At present, Aussie Skips occupies an area of approximately 341m2 of the Council Land immediately adjacent to Lot 1, on which is constructed: 1. part of the acoustic wall which runs generally along or near the eastern and south-eastern boundary of Lot 1; 2. stormwater drainage infrastructure; and 3. a concrete slab.
2. The structures and other infrastructure on the Council Land have been constructed without development consent. The location of the structure and the extent of the residue on the Council Land have been identified in part of the survey in Exhibit S which is appended to this judgment as Annexure A.
3. Aussie Skips presently uses that part of the Council Land for the purposes of the use of Lot 1 for the Facility. This use includes, but is not limited to: the use by trucks to access and depart from the Land; to use the weighbridges; to load and unload vehicles; and to store and sort waste material. These uses have not been the subject of development consent on the Council Land.
4. The site layout of the current use of Lot 1 and the Council Land is depicted in a plan that was attached to the Joint Report of the Traffic Engineers as Drawing No: 2019-0532-21B which is appended to this judgment as Annexure B. For the purposes of these proceedings I am prepared to accept that the current site layout is as per this plan, notwithstanding that the source of the plan was not identified in evidence, as it generally accords with the site layout I am able to ascertain from the truck turning videos (Exhibit T) and other photographic evidence available to me.

Proposed use of Lot 1 and Council Land

1. Apart from seeking to regularise the current use of that part of the Council Land the Plaintiffs propose to erect what is described as an "acoustic enclosure" around and over the Facility where it operates on Lot 1 and the Council Land.
2. The enclosure will: run along the north boundary of Lot 1; tie into the current acoustic wall and run along the Council Land to a point adjacent to the northern end of the site office and the westerly to enclose part of the existing shed; and run easterly to a point adjacent to the western extension of the building on adjacent land. It will be fully enclosed but for two roller doors in the western and eastern facades to allow vehicular access and two pedestrian access doors either side of the eastern roller door. As part of these proceedings it is also proposed to install two doors of indeterminate location on the acoustic wall to provide access to the residue of the Council Land. The enclosure will be roofed with a maximum ridge height of 11.5m above ground level.
3. It is proposed that the use of Lot 1 and that part of the Council Land presently used by Aussie Skips will continue to be used in the current manner both within and outside the enclosure, generally as depicted in Annexure B.
4. Ancillary matters
5. There are presently a number of separate proceedings pending in this Court relating to obtaining development consent for the use of the Council Land; regularising buildings that have been constructed without development consent; and seeking orders and declarations restraining the use of the Council Land. Other than providing me with context, this material is of little weight or relevance in the broader context of the issues in these proceedings.
6. In the context of those proceedings the Parties also attended mediation where the parties entered into Heads of Agreement. Whilst the parties placed some weight on this document, I do not consider that, as a representation of an agreement between the parties and not a document of title or one where a material agreement was made in connection with these proceedings, it is of any real assistance in the determination of these proceedings.
7. The Plaintiffs have also obtained an Environmental Protection License to conduct the Facility on Lot 1. The License does not extend to uses on the Council Land.

Easements sought

1. The four easements sought are: 1. Easement 1 - For encroaching structure to remain. The terms are more expansive than the short description suggests and provides for: Subject to the conditions in this easement, the Grantor grants to the Grantee and every person who is at any time entitled to an estate or interest in possession of the Lot Benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by those persons (including the lessee from time to time of the Lot Benefited) the right to: (a) Construct, maintain and enjoy the Acoustic Enclosure on or over the Easement Site: (i) to be supported vertically and horizontally by; and (ii) to overhang, overshadow and encroach over, the structure and soil of the Lot Burdened and any part of it including by all pillars, beams, columns, slabs, roof and walls actually standing for the time being in, on, above or across the soil of the Lot Burdened (or to be constructed) but only to the extent that they are (or will be once constructed) within the site of the Easement Site; and (b) enter onto the Easement Site and also to remain there (with tools, plant, equipment, machinery, vehicles, scaffolding or other materials) for the purposes of inspecting, cleaning, repairing, constructing, maintaining, augmenting, renewing, replacing, constructing or removing and making good any part of the Acoustic Enclosure which is or will be located on, supported by or which is or will overhang or encroach upon the Lot Burdened. 1. Easement 2 - Easement for services. The terms of this easement are unremarkable. I note that the definition of services in the proposed easement envisages both existing services and services which, on the evidence, do not appear to presently exist. Services are defined as: Services includes: (a) the supply of water (including recycled) or electricity; (b) the provision of drainage and stormwater; (c) fibre, cable, or other transmission means; (d) security and sprinkler (including fire safety and irrigation) systems; (e) ventilation (mechanical or otherwise) systems; or (f) any other facility, supply or transmission, and includes any wires, ducts, cables, conduit tracks, pipes, drainage pits and risers for that Service. 1. Easement 3 - Right of Carriageway. The scope of the terms of this easement is the subject of submission by the Council. The terms proposed are: The Grantor grants the Grantee and every person who is at any time entitled to an estate or interest in possession of the Lot Benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by those persons (including any lessee of the Lot Benefited) the right to enter, pass and repass over the Easement Site at all times and for all purposes with or without vehicles, for the purposes of access and egress through and onto the Easement Site and to remain on the Easement Site with such vehicles, machinery and equipment required for the use of the Easement Site as a waste transfer and recycling facility, including for the purpose of constructing and maintaining the Acoustic Enclosure, and including for the purpose of operating, maintaining and Repairing the weighbridges on the Easement Site. The reference to the weighbridges being on the Easement Land is clearly an error, as they are located on Lot 1. In the event an easement is granted, the terms of this easement should be amended to reflect that fact. 1. Easement 4 - Easement for access and use for waste transfer and recycling facility. The proposed easement is in the following terms: Subject to the terms of this easement, the Grantor grants to the Grantee and every person who is at any time entitled to an estate or interest in possession of the Lot Benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by those persons (including the lessee from time to time of the Lot Benefited) the right to: (a) enter, pass and repass over the Easement Site at all times and for all purposes with or without vehicles, for the purposes of access and egress through and onto the Lot Benefited and to remain on the Easement Site with such vehicles, machinery and equipment required for the use of the Easement Site as a waste transfer and recycling facility, including for loading and unloading; and (b) construct and maintain the portion of the Acoustic Enclosure on (and to be on) the Easement Site.
2. The complete terms and plan of these easements is annexed to the Amended Summons.
3. It was agreed by both parties that whilst the Plaintiffs sought four easements, those easements were to be considered and treated as a composite package as each easement relied on the others for its efficacy. Therefore, the easements should be treated, for the purposes of determining this application, as an application for a single bundle of rights over the Council Land. Collectively the four easements will be referred to as the Easements.

Issues for determination in these proceedings

1. Having regard to the provisions of s 88K and the nature of that power, the parties identified, by agreement, the relevant issues as arising for determination in these proceedings. The relevant part of this agreement will be extracted in connection with the issues to which they relate where those issues are dealt with in this judgment.

Do the proposed easements fall within the jurisdiction conferred by s 88K

Statement of agreed issues

1. Matters of jurisdiction to be determined independent of the consideration under s 88K: (1) Issue for determination: Are the "easements" sought capable of being an easement within the meaning of that term in s 88K of the Conveyancing Act? (2) Statement of law: This question is to be answered having regard to matters of fact and degree based on the facts of the particular case. (3) Issue for determination: Do the easements amount to exclusive occupation of a kind and extent that would deprive the Council of proprietorship or legal possession, having regard to: (a) Severance from residue; (b) Degree of interference to surface area; (c) "Development" capacity of Council Land. (4) Statement of relevant factors: What are the assumptions to be made as to the residual user of the Council Land to determine that question: (a) That the current use of the Council Land exists? (b) That whether there is any use of the Council Land that has no capacity for use of any kind, and in particular not of a kind envisaged by its zoning? (c) Whether there is a capacity for user of the whole of the Council Land with the proposed easements in force? If so, is this diminished by the easements? (5) Jus Spatiandi - is this still pressed in light of easement amendment to identify easement situs? (6) Issue for determination: Does s 47D of the Local Government Act 1993 operate as a prohibition of the proposed user of the Easement Land such that it is incapable of being implemented? (a) Is the use a public utility? (b) If so, is it capable of approval by Council? (c) If not, does it act on an absolute prohibition to the grant of easement?
2. As identified in the agreed statement, the Council raised three issues going to the jurisdiction of the Court to determine the matter. These matters require determination independent of the jurisdictional limitations conferred by the terms of s 88K.
3. The first issue asserts that there is no power to grant, as an easement a right or entitlement, the Easements as they do not legally fall within the meaning of an "easement". The gravamen of this issue is that the easements amount to exclusive occupation.
4. The Second issue arises on a construction of s 47D of the LG Act that provides: 47D Occupation of community land otherwise than by lease or licence (1) The exclusive occupation or exclusive use by any person of community land otherwise than in accordance with - (a) a lease, licence or estate to which section 47 or 47A applies, or (b) a sublease or other title directly or indirectly derived from the holder of such a lease, licence or estate, is prohibited. (2) This section does not apply to - (a) the occupation or use of part of the site of a senior citizens' centre or home or community care facility by a duly appointed manager of the centre, or (b) the occupation or use of community land by persons, and in circumstances, prescribed by the regulations.
5. The Council accepted that if exclusive occupation was not found in relation to the first jurisdictional ground there was no need to independently determine the second jurisdictional ground, as it too relied upon a finding of exclusive occupation or exclusive use. Whilst there may be some question as to whether, if there was exclusive occupation or use, s 47D may not apply to the subject easements, a finding (either positive or negative) on the first jurisdictional ground would be sufficient for the Council's purposes and would not require determination if the Council was not successful on the first jurisdictional ground.
6. The third jurisdictional matter referred to in the issues to be determined was not pressed by the Council as an actual claim, rather, it relied upon easements seeking uses such as jus spatiandi as being examples analogous to the Easements in this case. Therefore that issue does not require separate determination as a jurisdictional matter.

Are the proposed easements an easement within the legal meaning of that term?

1. An easement must be capable of comprising a grant. This statement is commonly referred to as "the fourth test of an easement" derived from the often cited decision of Re Ellenborough Park [1956] Ch 131 at 164, where, relevantly to this case the fourth test was described as requiring a determination of the question: …whether, if and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the…owners of proprietorship or legal possession;…
2. In determining whether the easements satisfy this fourth test in Ellenborough Park it is not necessary that the Council retain reasonable use of the Council Land in its entirety. Whilst it is a relevant consideration and, may in some cases be determinative, it is also relevant to consider the extent of interference with the part of the Council's Land actually affected by the Easements. It may be that interference with possession is sufficient to constitute effective interference with property rights such that it can lead to a finding of invalidity of an easement, but this is a matter that turns on the particular facts of each case: Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321 at [64].
3. The relevant facts relating to this issue are outlined above.

Plaintiffs' submissions

1. The Plaintiffs contended that the Easements did not offend the fourth test in Ellenborough Park as: 1. The Easement Land does not constitute the whole of the Council Land. The Council Land has a total area of 500.6m2; the Easement Land has an area of 341.5m2; and the residue an area of 159m2; 2. The Council retained legal ownership as it could continue to use the residue land and erect a building on the Easement Land both in the airspace and below ground; 3. The Council retained rights of access to the Easement Land as indicated in the terms of the proposed Easements that provided (with respect to each of the four easements) in terms: The Grantee acknowledges and agrees that the Grantor's representatives, relevant service providers and representatives of other statutory authorities may require access to the Easement Site at any reasonable time following 24 hours' prior notice and for that purpose may enter onto the Easement Site at any time subject always to compliance with the induction requirements under the Work Health and Safety Act 2011 and the Grantee's reasonable site access procedures. The Grantee acknowledges and agrees that the acoustic wall shall be modified to include at least 2 doors in its southern elevation allowing pedestrian access by the Grantor through it onto the Easement Site to and from the remainder of the Lot Burdened. 1. Easements, by their nature, are a fetter on the rights and enjoyment of the land by the landowner. The mere fact that the easement permits exclusive use does not mean that the easement confers exclusive possession. A finding of exclusive occupancy is insufficient, of itself, to disentitle the creation of an easement; 2. The easements are limited in time to 30 years or upon cessation of the use in the following terms: 3.6 Removal of Acoustic Enclosure Upon the earlier of: (a) the expiration of 30 years from the date of registration of this instrument; or (b) the waste transfer and recycling facility ceasing operation, the Grantee acknowledges and agrees that: (c) all rights in this easement are extinguished immediately and this easement will cease to have effect; (d) the Grantor will be entitled to have this easement and notation for this easement removed from the title to the Lot Burdened; and (e) the Grantor and the Grantee must, as soon as reasonably practicable, do all things and sign all documents necessary to remove this easement from the title, including signing any plans, requests or other dealings and producing certificates of title at Land Registry Services NSW as required for registration. (f) The Grantee shall promptly remove the Acoustic Enclosure in accordance with any reasonable directions and requirements of the Grantor. I note that whilst it was submitted that this provision related to The Easements it is only a proposed term of Easement 1. The proposed defined term "acoustic enclosure" in The Easements included the concrete slab, existing services (undefined) and acoustic wall and the proposed acoustic enclosure. On the terms of the Easements, however, Easements 2, 3 and 4 are not proposed to be time limited or require restoration of the Council Land; and 1. Questions of proportionality and the relationship between the portion the subject of the easement and the balance of the servient tenement are to be considered in determining whether the owner has been deprived of proprietorship or legal possession.

Council's submissions

1. When the Easements are viewed as a package the impact on the Council Land is to deprive it of proprietorship or legal possession of the Easement Land and/or the whole of the Council Land as: 1. The acoustic wall physically severs the Easement Land from the residue of the Council Land; 2. The enclosure of the Easement Land by the construction and use of the acoustic enclosure further severs the Easement Land from the Council Land; 3. The provision of services is over the Easement Land and is unspecified and unlimited with respect to the nature and extent of the services; 4. The access reserved to the Council is "illusory" as the terms of the Easements: 1. permit the beneficiaries of the Easements to enter and remain on the Easement Land and to carry out the use on the Easement Land, the consequence of which is that no other use could be carried out on the Easement Land; 2. preclude the public from any access or enjoyment, the public being the body for whom the benefit of the Council Land is held; 3. the creation of the suggested doorways in the acoustic wall serves no purpose other than access for access sake; 4. the access provisions of the Easements illustrate the defect in the claim, in that, rather than granting rights to the beneficiary the Easements must reserve or confer limited access rights on the Council as landowner. This is an inversion of the legal nature of an easement; 1. The Easements affect the residue of the Council Land by severance and by the limited and constrained nature of the residue such that, in effect, there is no reasonable use of that land available; and 2. The fixed period of the term of the Easements does not cure the fact that during the term of the Easements (which may be as much as 30 years) the Council as landowner is deprived of its proprietorship. It is the easement in the terms proposed that is to be considered not the capacity to use the land for the period after an easement has been extinguished.

Findings on whether the proposed easements fall within the jurisdiction conferred by s 88K

1. As stated above, in order for there to be jurisdiction under s 88K the easements must be capable of legally comprising an easement. For the reasons that follow I find that the Easements, as proposed, are not capable of comprising an easement at law. In effect, the Easements seek to confer on the beneficiary an entitlement to occupy and use the Easement Land to the practical exclusion of the Council (both the Easement Land alone and/or together with the residue) and as a consequence deprive the Council, as landowner, of its proprietorship or legal possession. Accordingly, the Easements fail the fourth test in Ellenborough Park.
2. The mere presence of the acoustic wall with its attendant concrete slab has the practical effect that the Council is physically excluded from the Easement Land for any purpose. This exclusion is exacerbated by the carrying out of the use for the purposes of the Facility on the Easement Land, as that use, by its nature and intensity, precludes any other reasonable use being carried out on the Easement Land
3. When the enclosure of the Easement Land by the proposed acoustic enclosure is taken into account the exclusion of the Council from the now enclosed Easement Land is absolute. The retention of "access" entitlements does not ameliorate the exclusion of the Council from its land. The access as proposed in the Easements reinforces the exclusivity of occupation: the Council must give notice 24 hours before entering; the purpose for which access is sought is limited; the class of persons to which access is granted is limited and excludes the public generally; and the access must be consistent with the beneficiaries' usage by way of induction and compliance with occupational safety requirements.
4. Additionally, the access conferred on the Council is in truth an illusion as to what purpose the access would serve? The access rights conferred are not access to further or to facilitate the Council's proprietorship of its land. The access is, at best, permitting inspections to ensure compliance with the terms of the Easements.
5. The introduction of two doors to the acoustic wall does not cure the absolute occupation. Even if access is more convenient through a door it still does not overcome the inherently exclusionary occupation by the beneficiary of the Easements of the Easement Land. The requirement for the inclusion of doors in the acoustic wall reinforce the factual difficulty the Council will have accessing the residue land due to the size, configuration and topography of that land.
6. It was submitted that the residue land was sufficient to dispel the suggestion that the Council has lost proprietorship or possession of its land. It was submitted that the Council retained the residue and like the facts of the case in Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321 the Council retained a right to develop the airspace and subterranean space of the whole of the Council Land including the Easement Land. Whilst, on the facts of this case, this is a notional potential, it is not a real one. The Plaintiffs agreed that the Council Land due to its inherent constraints, as a standalone parcel, was unable to be developed for industrial uses consistent with its zoning. They also acknowledged that the capacity of the Council Land was in reality as some passive amenity for the beneficiaries of the Trust in which it is held. Therefore, there can be no real potential exercised whilst the Easement Land is occupied by the beneficiaries to the Easements: Clos Farming Estates Pty Ltd v Easton & Anor (2002) 11 BPR 20,605.
7. The Plaintiffs relied heavily on the principle that the servient tenement does not need to retain a reasonable use of the whole of its land and that many easements known to law permit the dominant tenement to occupy, in effect exclusively, a part of the servient tenement, such as encroaching buildings, scaffolding and the like. They also accepted that in each case the issue is one of fact and degree. In this case the Council Land is: small; isolated; and constrained by its topography, such that the imposition of the acoustic wall (that acts as a barrier), and the use of the Council Land by the Facility (where use is inconsistent with any other use of the Easement Land), is of such a degree that the retention by the Council of the small part of the residue is insufficient to offset the exclusive occupation by the Plaintiffs and permit a reasonable use of the Council Land by the Council.
8. The residue land also does not overcome the nature of the exclusionary use and occupation by the Plaintiffs. The Council Land is isolated from the adjoining Cooke Park by the concrete drainage channel. The Council Land is irregularly shaped and falls towards the channel. The severance of more than half of the land behind the acoustic wall exacerbates the already significant constraints suffered by the residue of the Council Land. The width is significantly reduced as can be deduced from Annexure A. With the irregular shape, the narrow width and the existing fall of the residue land, the capacity to continue to use the residue land for any meaningful purpose (absent the balance of the Council Land) is difficult to quantify, but clearly it is far more constrained than if the whole of the Council Land was available. Clearly, a passive use can be undertaken - as the land has given itself over to nature - but no evidence was adduced as to whether the residue land was constrained by the presence of the acoustic wall and the channel such that the reduced area was so confined that the only use was its natural state or that the planting of a garden or other passive uses were now precluded. Without evidence that the capacity of the residue land for its intended use as defined by the Trust and the designation as community land has been impacted to a significant extent has not been addressed by the Plaintiffs on the evidence, the only available inference is that the residue land is now so constrained that its only available use is to leave it to nature. Such an informal use is less than that anticipated by the Trust and is a consequence of the severance of the small and constrained residue land from the Council Land.
9. Clearly, the purpose for which the Council Land is capable of being used, namely for amenity and passive purposes in conjunction with some formal or informal planting, is incompatible with the use as a waste recovery and recycling facility. The effect is not even the case of a joint occupation where two uses may co-exist. It is a wholesale occupation of the Easement Land to the exclusion of the Council. To the extent that the Council may presently physically access the Easement Land, such access serves no purpose consistent with the ownership and occupation of the Council of its Land, as the present occupier's use with the wall and the concrete slab lend itself only to the occupier's use and not the Council's.
10. Accordingly, for those reasons I find that the Easements are incapable of comprising easements at law. On the facts of this case, the impact on the Easement Land alone is sufficient to disentitle the Plaintiffs from obtaining rights sought from comprising an easement. When the impact on the residue of the Council Land is considered, that finding is reinforced. If I am wrong in this regard, I will determine whether the Easements should be imposed having regard to the provisions of s 88K.

Legislative provisions

1. Section 88K provides: 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. (6) Such an easement may be - (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect - (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (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. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.

Nature of the power conferred by s 88K

1. The matters the subject of s 88K(1) must be determined first as they operate as a precondition to the exercise of the power to impose an easement, absent satisfaction of those matters in s 88K that do not arise for consideration. If s 88K(1) is satisfied, the Court is required to determine the matters in s 88K(2). At this point of the determination the easement must be refused if the satisfaction required by s 88K(2) is not met. Then, even if the matters in s 88K(1) and s 88K(2) are satisfied, the Court may still, in the exercise of its discretion, refuse to impose the easement. For those reasons I will first turn to consider the provisions of s 88K(1) as is required by the facts of this case.
2. The relevant principles relating to the satisfaction of the factors in s 88K(1) have been the subject of numerous decisions. The principles to be derived from those decisions have been summarised by Preston CJ (in the often-cited authority) in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286 commencing at [67], in the following terms: [67] Section 88K(1) of the Conveyancing Act gives the Court a discretionary power to "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". At least ten points can be made about this power. [68] First, the power to impose an easement is made conditional upon satisfaction of the requirement in s 88K(1). Subsection (1) has been described as the "governing subsection", although the criteria in subsection (2) must also be met if an order is to be made: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 at 15,854. It is "a precondition of the exercise of the jurisdiction" that "there must be a finding that the easement sought is reasonably necessary for the effective use or development of the land which will have the benefit of it": Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 19. A finding that the pre-condition in s 88K(1) is met is to be determined objectively: Tregoyd Gardens Pty Ltd v Jervis at 15,854. That finding "involves the making of a value judgment, but not the exercise of a discretion": Woodland v Manly Municipal Council at 19. [69] Secondly, the requirement in s 88K(1) is to be satisfied with respect to the particular easement that the Court is considering ordering to be imposed. The reference to the "easement" in the beginning of the conditional phrase in s 88K(1) is a reference to the easement the Court orders to be imposed. Section 88K(3) requires the Court to specify in the order, the nature and terms of the easement. The applicant for an order imposing an easement will propose the nature and terms of the easement sought. The proposed easement will accord with the easement which the applicant has made all reasonable attempts to obtain, or have the same effect as that easement, so as to satisfy s 88K(2)(c). The Court's power to impose an easement under s 88K(1) would extend to amending the proposed easement of the applicant, including so as to ensure the easement which the Court orders to be imposed satisfies the requirement in s 88K(1) of being reasonably necessary for the effective use or development of other land that will have the benefit of the easement. [70] Thirdly, the inquiry directed by the requirement in s 88K(1) is whether the easement is reasonably necessary "for the effective use or development of other land that will have the benefit of the easement". This other land will be the land of the applicant for the order. The easement may be reasonably necessary for either the effective use or the effective development or both of the applicant's land. Most of the cases in which an easement has been sought have involved the carrying out of development on land and the subsequent use of the development, but some have involved only use of the land. An example of the latter is Owners Strata Plan No 13635 v Ryan (2006) 12 BPR 23,485. [71] The inclusion of "development" as well as "use" means that the Court's power to impose an easement is enlivened not only if the easement is reasonably necessary for a particular development or use proposed by the applicant but also if the easement is reasonably necessary for any development or use of the applicant's land, which is within the law: Tregoyd Gardens Pty Ltd v Jervis at 15,854. [72] Fourthly, the easement is to be reasonably necessary for the "effective" use or development of the land that will have the benefit of the easement. The adjective "effective" bears its ordinary meaning of "serving to effect the purpose; producing the intended or expected result": Macquarie Dictionary and see Woodland v Manly Municipal Council at 7. In context, therefore, the easement is to be reasonably necessary in order for the use or development of the land benefited by the easement to effect the purpose or produce the intended or expected result of the use or development. Thus, if use or development of land for some planning purpose, such as residential, commercial or industrial purposes, cannot be achieved without the creation and use of an easement for, say, access to the land or services to the land or for drainage of the land, the easement is reasonably necessary for such use or development to be effective: see King v Carr-Gregg [2002] NSWSC 379 at [47] and Khattar v Wiese at [30]. [73] Fifthly, the easement is to be reasonably necessary for the effective use or development of the land itself, namely the land that will have the benefit of the easement; it is not sufficient for the easement to be reasonably necessary for the enjoyment of the land by any of the persons who, for the time being, are the proprietors: Hanny v Lewis (1998) 9 BPR 16,205 at 16,209; (1999) NSW ConvR 55-879; Woodland v Manly Municipal Council at 19. Accordingly, evidence as to the particular problems that one of the existing proprietors may have, or the hardship suffered as a result of those problems, would not be relevant: Hanny v Lewis at 16,209; Owners Strata Plan 13635 v Ryan at [28], [33]. [74] Sixthly, the requirement in s 88K(1) is that the easement be "reasonably necessary". This has two components: first, "reasonably" and second, "necessary". The requirement that the easement be "reasonably" necessary for the effective use or development of the applicant's land does not mean that there must be an absolute necessity for the easement: Tregoyd Gardens Pty Ltd v Jervis at 15,854; 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508; 98 LGERA 171 at 175; Woodland v Manly Municipal Council at [7], 19. [75] This reduction in the quality of necessity to what is reasonable means that an easement may be able to be imposed although another means of right of way may exist (Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317 at 320-321; In Matter of Application by Kindervater [1996] ANZ ConvR 331 at 333; Tregoyd Gardens Pty Ltd v Jervis at 15,854 and Grattan v Simpson (1998) 9 BPR 16,649 at 16,651 or possibly even when the land could be effectively used or developed without the easement (117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508; Durack v De Winton (1998) 9 BPR 16,403 at 16,447; Khattar v Wiese at [24]). [76] The requirement that the easement be reasonably "necessary" for the effective use or development of the applicant's land means that there needs to be "something more than mere desirability or preferability over the alternative means available": In the matter of an application by Kindervater at 333; Tregoyd Gardens Pty Ltd v Jervis at 15,854; Hanny v Lewis at 16,209 and Woodland v Manly Municipal Council at [7], [19]. Indeed, it has been suggested, "the tone of the word 'necessary' is getting close to something which is a vital requirement": Hanny v Lewis at 16,209. [77] Reasonable necessity has to be assessed having regard to the burden which the easement would impose. Hence "[i]n general terms, the greater the burden the stronger the case needed to justify a finding of reasonable necessity": Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 at [42]; Woodland v Manly Municipal Council at [12], 19; Khattar v Wiese at [27]. [78] Seventhly, applying the test of reasonable necessity to the effective use or development of the land that will have the benefit of the easement has the consequence that: (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: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508-509; 175. [79] This passage has been cited with approval in many subsequent cases, including Durack v de Winton at 16,447-16,448; Hanny v Lewis at 16,209; Khattar v Wiese at [25]; Owners Strata Plan 13635 v Ryan at [50], [57] and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 at [92]. However, Hamilton J in Woodland v Manly Municipal Council at [9] expressed concern as to the use in the second proposition of the words "(at least) substantially" saying: But what I am most troubled by is that the proposition may be taken to constitute a general and inflexible rule and to provide a criterion or precondition that must be met in every case. No doubt the alternatives will require to be considered and there is unlikely to be a finding of reasonable necessity (or, indeed, an exercise of discretion in favour of a grant) if there is a viable alternative. But to lay down as invariable an additional precondition (if this be what his Honour intended) will in effect create a gloss upon the statute and distract the Court from carrying out its function in accordance with the terms of the statute; and see 19 below. [80] Hamilton J summarised his position in Woodland v Manly Municipal Council at 19 as: In considering that reasonable necessity, the Court will take into account whether and to what extent use with the easement is preferable to use or development without the easement. That use with the easement is preferable or, a fortiori, substantially preferable to use or development without the easement, will conduce to a finding of reasonable necessity, but is not a necessary precondition to that finding … [81] Eighthly, the requirement of reasonable necessity does not demand that there be no alternative land over which an easement could be equally efficaciously imposed. Hamilton J noted in Tregoyd Gardens Pty Ltd v Jervis at 15,854 that "[i]t cannot be the intention of the Act that if an easement would be equally efficacious over two pieces of land it cannot be granted over either because it cannot be said that it is necessary for it to be granted over that piece of land as opposed to the other": see also Durack v de Winton at 16,445; Khattar v Wiese at [31], [32]. [82] Ninthly, the requirement of reasonable necessity is to be decided in light of the present circumstances at the time of the hearing of the application for an order: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511; 178; Durack v de Winton at 16,448; Katakouzinos v Roufir Pty Ltd at [39]; and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd at [92]. Hence, it would not matter for the purposes of deciding whether the easement is reasonably necessary that the present circumstances were due to the applicant for the order taking a gamble: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511; 178. However, if such reasonable necessity for an easement as presently exists arose from previous unreasonable conduct from the applicant, that could be a discretionary factor counting against the granting of relief: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511; 175. [83] Tenthly, the requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required, in addition to obtaining the easement, for the effective use or development of land, such as obtaining some statutory consent. For example, if an easement in the form of a right of carriageway is created, it may be necessary to obtain development consent under the EPA Act to construct the road in the right of carriageway. The requirement in s 88K(1) does not require that all other obstacles to the proposed use or development of the land that will have the benefit of the easement must have been overcome before the Court has power to grant an easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 512; 179. Only if use of the proposed easement would be absolutely illegal and there was no chance of obtaining a consent necessary to make it other than illegal, would the Court be precluded from finding that the easement was reasonably necessary: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511-512; 178.
3. The summary in Rainbowforce was adopted by the NSW Court of Appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257, with a qualification to his Honour's observations at [72] in the following terms: 155 In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show 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. That in our opinion is consistent with what was said by Hodgson J in 117 York Street supra in the passage which we have cited above (see also Lonergan v Lewis [2011] NSWSC 1133 at [22]). (Emphasis added)
4. These statements of principle are to be applied in the determination of whether the subject application meets the preconditions to the exercise of the power in s 88K(1), remembering that such determination is to be made objectively and that the finding involves the making of a value judgment, but not the exercise of a discretion. Ultimately, the question is to be resolved having regard to the facts and circumstances of each particular case. Whilst there is abundant case law on the exercise of the power under s 88K(1), apart from the commonality of the above principles being applied, each case turned on the evaluation of its own particular facts. Unless the facts and circumstances are sufficiently analogous they are of little assistance in determining the outcome of the application of the principles to particular facts and circumstances.
5. As was observed by Leeming JA in Community Association DP270447 v ATB Morton Pty Ltd & Others (2019) 19 BPR 39,277 at [158]-[159] : [158] I have derived assistance from the writing of Professor Butt on this issue. In "Compulsory Easements: A New Black Letter Syndrome?" (2015) 89 ALJ 753 he said (at 753), of s 88K and its Queensland counterpart, that: "One issue with the exercise of such powers is that courts, being constrained by precedent, feel the need to develop principles to govern their exercise. In turn, these principles, despite being forged in the facts of a particular case, tend to become hardened rules to be applied across the board." [159] The tendency of which Professor Butt warned … is to be resisted.
6. The principles developed are merely guidelines; the test remains that in the statutory language of s 88K(1).

Agreed statement of issue

1. Considerations under s 88K(1) (A) Statement of law: Section 88K(1) is to be determined as a matter preliminary before consideration of the matters in ss 88K(2), (3) and (4) or the exercise of the residual discretion. (B) Statement of law: Section 88K(1) requires a consideration of whether the easements are reasonably necessary for the effective use and development of the Applicants' land. In determining those matters in accordance with principle the following matters are relevant: (i) The nature and purpose of the current development application to enclose the land including the easement land; (ii) The constraints on the capacity of the use by truck of 19m or 12.5m if the Council land was not available; (iii) The impact of the easements on the Council land having regard to: (a) Its past and current use/non-use; (b) Historical context of how it came to be on Council land and Council's knowledge of use of Council land; (c) Its zoning; (d) Whether there is any evidence of actual present use; (e) Whether there is any evidence of past or current use as a "public garden and recreation space"; (f) Adjoining community land, including Cooke Park and Begnell Field; (C) The requirement is to be assessed by reference to the circumstances existing as at the time of the hearing and taking into account the historical context of both the dominant and servient tenement.

Are the easements reasonably necessary for the effective use of Lot 1?

1. In these proceedings the Plaintiffs formulated their claim on a particular use of the land (as opposed to the development more broadly). The particular use was summarised in [22] of its closing submissions in the following manner: [22] The sole purpose of the Easements is to facilitate the continued use of Lot 1 for its approved purpose, namely as a waste transfer and recycling facility for solid inert building and demolition wastes, whilst reducing noise and dust impacts arising from that use and thereby improving the amenity of the neighbourhood. The Easements sought will bring the use of Lot 1 closer to or into compliance with the conditions of the 2000 Consent and ameliorate the existing noise and (alleged) dust impacts of the Facility.
2. The reasons on which it was suggested that the Easements were reasonably necessary was summarised at [23] of the Plaintiffs' closing submissions as: [23] In summary, the grant of the Easements is reasonably necessary for the effective use or development of Lot 1 for operational reasons relating to traffic and internal manoeuvring, and also because one of the Easements proposed will ensure the Facility is covered with an acoustic enclosure or roof, and without that Easement the construction of the roof over the whole Facility would not be possible. This acoustic enclosure will allow effective management of the noise and dust impacts of the Facility.
3. The Plaintiffs agreed, in the agreed statement of issues, that these summaries should be used as the statement of their position for the purposes of defining the scope of the relevant matters for determination in these proceedings.

Evidence relating to the considerations under s 88K(1)

1. A significant amount of evidence was adduced relating to this issue. Expert evidence from a range of disciplines was adduced by both parties going to matters of: town planning; acoustics; air quality; traffic and quantity surveying. In addition, a large amount of documentary evidence dealing with the long history of the lands the subject of these proceedings and the dealings between the parties (and predecessors) over that time was also adduced. Some of the evidence was in some respects uncontroversial and can be noted without the requirement to resolve competing opinion, and that evidence is set out below. Where a particular aspect of the evidence requires adjudication in so far as it is relevant to the determination of this matter, I will address that evidence separately. To a great degree, the dispute between the parties related to the manner in which I would apply the evidence to the relevant principles rather than a dispute as to the substance of the evidence itself.

Air Quality

1. Evidence from Mr Fishwick for the Plaintiffs and Mr Todoroski for the Defendants was adduced by way of individual expert reports and a joint report of the experts together with oral evidence. There was largely agreement between these experts on the matters relevant to the determination of these proceedings.
2. The air quality experts agreed that there is a capacity for dust from the Facility and the access drive to become airborne and pose an amenity concern for adjoining premises, particularly those occupied by residential uses.
3. The air quality experts also agreed that the enclosure of the Facility, together with unexceptional dust management measures outside the enclosure, will reduce the potential for dust emissions such that the amenity impacts on residential properties will be well within acceptable levels.
4. The experts also agreed that from an air quality perspective the enclosure was not required on the Easement Land if the Easement Land was not being used as part of the Facility. From an air quality perspective if the Facility was limited to Lot 1, only Lot 1 would need to be enclosed to ameliorate the potential air quality impacts to acceptable levels.

Acoustics

1. Evidence from Mr Ishac for the Plaintiffs and Mr Cooper for the Defendants was adduced by way of individual expert reports and a joint report of the experts and oral evidence. There was, in large measure, agreement between these experts on the matters relevant to the determination of these proceedings.
2. The experts agreed that at present the Facility is emitting more noise than is permitted pursuant to the conditions imposed upon the development consent under which the Facility operates. This is so even with the current acoustic wall to its present height.
3. An acoustic enclosure is an acoustically appropriate measure to ensure that the Facility will achieve compliance with the noise conditions in the development consent (or any reasonable variation to those conditions).
4. The acoustic enclosure is only required to enclose land used as part of the Facility. That is, if the Facility is limited to Lot 1, only Lot 1 and not the Easement Land would need to be enclosed to ensure appropriate acoustic performance. If the Easement Land is used as part of the Facility then it will also need to be acoustically enclosed to achieve the appropriate acoustic performance.
5. Provided the acoustic enclosure is appropriately designed to achieve the necessary acoustic performance there is no need for the existing acoustic wall to remain or to be incorporated into the design of the acoustic enclosure.

Town Planning

1. Evidence from Mr Juradowitch for the Plaintiffs and Ms Robinson for the Defendants was adduced by way of individual expert reports, a joint report of the experts and oral evidence.
2. The town planners gave a comprehensive background to the historic zoning of the relevant parcels of land.
3. Both experts relied on the evidence of the other experts to form their opinions. They both agreed that there was no necessity arising from any planning controls that related to Lot 1 that required the Easements to be granted in order to facilitate the use of Lot 1 for the Facility.
4. Mr Juradowitch was of the opinion that based on the evidence of Mr McLaren as to traffic matters, the Easements were necessary so as to maintain the use by the 19m truck and dog vehicles. He noted that if the Easements were not granted the use of the Facility would require reorganisation and would as a consequence incur significant costs, based on the assessment of the quantity surveyor.
5. Ms Robinson's opinion was that with changes to the layout or processes from that presently undertaken, the Facility could operate without the Easements. Those changes could include (either alone or in combination): the volume of waste processed being reduced; the type or number of trucks visiting the land being changed; operational changes such as compaction of waste; or re-planning the site layout including the removal or re-location of the unauthorised site office and awning or the weighbridges.
6. Both experts also acknowledged that the extent, manner and consequence of any changes to the Facility to enable the use to be contained on Lot 1 was a matter beyond their expertise and a matter they had not adequately examined such that they could assist with any meaningful evidence.

Traffic

1. Evidence from Mr McLaren for the Plaintiffs and Mr Hollyoak for the Defendants was adduced by way of individual expert reports and a joint report of the experts. There was largely agreement between these experts on the matters relevant to the determination of these proceedings.
2. The experts agreed that 19m truck and dog vehicles, along with other trucks, utilised the land for delivering and removing waste from the Facility. The 19m truck and dog were the vehicles most likely to be impacted by the exclusion of the Easement Land from use.
3. In the joint report of the experts, swept paths were prepared to demonstrate the capacity of Lot 1 alone, and Lot 1 with the Easement Land, to accommodate a particular manoeuvre by a truck and dog to permit the vehicle to enter and leave the Facility in a forward direction over the appropriately sized weighbridge. Those swept paths indicated that the particular manoeuvre illustrated could only be accommodated if the Easement Land was available. The underlying assumption for these swept paths was that the configuration of the Facility was that as shown in Annexure B. The underlying assumptions also required the experts to assume that the loading bay adjacent to Stockpile E was not available. The experts both agreed in cross examination that the truck and dog would usually utilise the loading bay and that they had not performed that swept path. Mr McLaren indicated that he had not seen a truck and dog load or unload in a manner that would utilise the manoeuvre in the swept path, but that he had assumed, from discussions with an employee of Aussie Skips, that this manoeuvre could be used if the loading bay was not available.
4. Both experts agreed that if the truck and dog vehicle was to be used on Lot 1 without the Easement Land or the loading dock, some change to the configuration or operations on Lot 1 would have to be undertaken to accommodate the manoeuvre in the yard area. However, both experts stated that what those changes would be or the impact such changes would have on the current operations was a matter beyond their expertise.
5. Both experts also agreed that if the 19m truck and dog was unable to utilise the land, it could be replaced by smaller trucks that could undertake the manoeuvre on Lot 1 but that the number of trucks would increase such that four smaller trucks would be required to replace the one 19m vehicle. Neither expert had quantified or identified the consequences of such change in truck mix but relying on their experience asserted that, on numbers alone, such an increase in numbers may increase congestion on the right of way over Lot 3 and within the land.
6. Mr Hollyoak, in his individual report, provided two swept paths for the truck and dog assuming that Stockpile E and some structures constructed outside the sorting shed were not a constraint. The swept paths indicated that such a vehicle could perform the relevant manoeuvre without requiring the Easement Land. However, the appropriately sized weighbridge would not be able to be used for one of the available manoeuvers.
7. Mr McLaren, in his individual report, provided swept paths assuming a layout different to Annexure B for a 12.5m truck and a 19m truck and dog. Those swept paths demonstrated that the Easement Land was required to perform either of those manoeuvres.
8. Both experts agreed that the principal constraints for truck manoeuvres on the land were: the location of the weighbridges; the presence and location of the site office; and the extent to which Stockpile E extended into the yard area toward the acoustic wall.

Quantity Surveying

1. Evidence was adduced by the Plaintiffs from Mr Lawson, a quantity surveyor. Mr Lawson was instructed to answer the following specific questions: (1) What would be the cost of moving the acoustic barrier/wall from the Council Land to the boundary between the Council Land and Lot 1; (2) If the acoustic wall was required to be moved as contemplated in (1) above, what would be the cost of moving or reconfiguring the weighbridge so it is directed onto the main part of the site, whilst maintaining the use of the facility; (3) Identify any other matters you consider relevant.
2. Mr Lawson undertook the task as instructed and determined that (as particularised by him in his report), the answer to question (1) including the works relating to question (2) was $825,959. Of that total, the component relating to question (2) was $129,460. He raised no other matters he considered relevant.
3. Mr Lawson's expert report was tendered without objection and he was not cross examined on his evidence.

Plaintiffs' submissions

1. The Plaintiffs' took the Court to the relevant principles and identified the following as particularly relevant to their case: 1. The requirement that an easement be reasonably necessary for the effective use and development of the dominant tenement means something more than merely desired or preferable over the alternative means available. However, the requirement of necessity is not absolute; reasonable necessity does not mean absolute necessity. 2. The requirement of 'reasonably necessary' may be satisfied even when the dominant tenement could be effectively used or developed without the easement: 117 York Street Pty Ltd v Proprietors for Strata Plan No 16123 (1998) 43 NSWLR 504 at 175-176. The requirement is to be assessed by reference to the circumstances existing as at the time of the hearing. This includes a consideration of the historical context. 3. In 117 York Street, Hodgson CJ in Eq, having found that the requirement of 'reasonably necessary' may possibly be satisfied even when the dominant tenement could be effectively used or developed without the easement, determined: '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.' 1. It is not necessary for the Plaintiffs to establish that the use of the Council Land is necessary for any effective use or development of Lot 1: Arinson v City of Canada Bay Council [2014] NSWLEC 43 at [47]-[49]; 2. As was held in the joint judgment of Bathurst CJ, Beazley and Meagher JJA in Moorebank at [158], "The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity." 3. In determining whether an easement is reasonably necessary, relevant considerations include: 1. the effect of the grant of the easement on the servient tenement. This includes not only physical effects but also economic effects such as diminution in value. The greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Khattar v Weise (2005) 12 BPR 23,325. Such considerations also encompass the historical context of the use of both the dominant and servient tenement land; 2. the capacity of the dominant tenement for use or development of particular kinds; 3. the nature of the specific proposed development; 4. the manner in which the proposed development is to be effected.
2. The Plaintiffs contended that all they had to do to discharge the onus that they bore in establishing reasonable necessity was that, prima facie, the use of the easement was (in relation to the particular form of development) preferable as compared with not granting the easement: Wilson v Forrester-Babcock [2000] NSWSC 1208 at [12]. This is particularly the case where the development proposed has a planning approval that requires the easements to be provided to facilitate that approved use: Shi v Abi-K Pty Ltd (2014) NSWLR 568 at [8]. The Plaintiffs submitted that where there are two equally desirable, viable and effective alternatives available, one wholly within the Plaintiffs' land and the other relying on the Council Land, it would be an error to determine in those circumstances that the easement was not reasonably necessary: King v Carr-Gregg [2002] NSWSC 379.
3. The Plaintiffs then submitted that if the Council wished to rely on the existence of an alternative to argue that reasonable necessity had not been shown, the evidentiary onus shifts to the Council to both propose both the alternative and demonstrate its viability.
4. Applying the principles to the facts and circumstances of this case the Plaintiffs submitted that the following factors demonstrated the necessary reasonable necessity for the Easements for their current use (as summarised at [79] above): 1. The Easements will permit access and use that allows the Facility to continue to operate as it has done for over a decade, without major reorganisation, redesign and the associated costs; 2. If the use of Council Land is not allowed pursuant to the Easements, in order to allow the Land to be used as a waste transfer and recycling facility the approved weighbridges would need to be relocated; 3. Precluding the use of Council Land will significantly change the existing operations of the Land and require a reconfiguration of the number of trucks required to achieve the 100,000 tonnes per annum capacity of material to be processed on the Land; 4. There would be an increase in the number of vehicles required to maintain the existing operation of the Land, which would be likely to result in longer wait times and could interfere with other occupants of the estate and may result in queuing back into Madeleine Street; 5. The safety of the Land would be compromised; 6. Currently the Land is successfully accessed by a 19m truck and dog but with the relocated acoustic wall these vehicles will no longer be able to access/manoeuvre/egress the Land successfully, or enter the eastern areas under the current configuration at all; 7. The Land would need to be reconfigured to allow continued operation, at significant cost which may result in Aussie Skips not being able to process 100,000 tonnes of material; 8. If the acoustic wall is moved the tonnage deposited/removed from the Land by vehicles 19m or larger would need to be replaced by a higher number of smaller length vehicles of lesser capacity; 9. At the very least the larger weighbridge would become redundant, as 19m vehicles could not use the Land; 10. The Easements permit access and allow the existing acoustic wall to remain, which allows the continued use of the Facility with the existing acoustic wall, which screens the Facility from residents and provides acoustic attenuation; 11. The Easements permit construction of, maintenance of and access to the new acoustic enclosure and together avoid the imposition of an additional $825,000 in costs that would need to be expended to remove and rebuild the acoustic wall on the Lot 1 boundary. (Although the acoustic enclosure itself comes at a cost, an acoustic enclosure would also need to be built if the Facility were confined to Lot 1, on the evidence of the acoustic and dust experts, so there is this additional sunk cost if the wall has to be removed and rebuilt); and 12. The Easements allow the construction and maintenance of the acoustic enclosure and wall which will allow the Facility to further reduce and better manage its noise and dust impacts.
5. As to the impact on the Council Land the Plaintiffs submitted that as the Council has not put the Land to any active use the impact of the Easements upon the Land was at best minimal. Further, the Plaintiffs submitted that, in fact, as they were putting the Council Land to an industrial use in accordance with its zoning, they were in fact improving the Council Land's capacity for use. On that basis the Plaintiffs contended that the Court would not find that there was a significant detriment to the Council Land from the Easements.

Council's submissions

1. The Council contended that the Plaintiffs have failed to discharge the onus placed upon them by the terms of s 88K(1) as they have failed to demonstrate that Lot 1 could not be used effectively without the Easement Land. In particular, the Plaintiffs have not adduced any evidence of what changes, if any, would be required on the Plaintiffs' land or in its current method of operations such that the Court could be satisfied that the current and proposed uses were reasonably necessary for the effective use of that Lot.
2. Further, contrary to the evidence attempting to establish reasonable necessity, the acoustic and air quality evidence is unequivocal in establishing that the Easement Land is not required to provide for the amelioration of dust or noise if the use were carried out solely on Lot 1. The only reason why the Council Land is required to be enclosed is because it is presently being used by the Plaintiffs.
3. The traffic evidence that the Plaintiffs rely upon, at its highest, demonstrates that: 1. if the proposed easements over the Council Land were not granted, then the First Plaintiff could not continue using two large types of trucks in the Facility's operations, based on the current layout and configurations of the land; and 2. as a result, the First Plaintiff would have to use more smaller trucks to replace the larger trucks previously used in the Facility's operations, which would result in (unquantified) increases in congestion on the land and surrounding roads, which would have (unquantified and unspecified) management and safety impacts; 3. however, it may be possible to reconfigure the Land to allow the continued use of the larger trucks in the Facility's operations even if the First Plaintiff were not able to use any part of the Council Land. Even taken at its highest the evidence fails to demonstrate that the use of Lot 1 with the proposed easements is substantially preferable to its use without them. The evidence goes to commercial desirability or commercial preference rather than preferability in the context of that required by s 88K(1)
4. The issue raised about the potential cost savings to the Plaintiffs if they could retain and use the existing acoustic wall that was constructed on Council's Land is an irrelevant consideration to the exercise of judgment in s 88K(1). But even if it were relevant, the quantity surveying evidence confirms that the proposed easements are not reasonably necessary for the use and development of Lot 1, because a reasonable alternative to the imposition of the Easements over the Council Land is instead for the Plaintiffs to carry out the various building works to reconfigure the Land in the ways identified by the quantity surveyor.
5. The evidence discloses that the use of the Facility in its current form is not a reasonable use or development of the Land, as the evidence indicates that, historically and presently, the Facility's operations have generated excessive noise and dust emissions, which have had a detrimental impact on the surrounding residential and public recreation areas. Aussie Skips has admitted that the Facility's operations have generated noise and dust emissions that have breached the relevant conditions of consent.
6. The Plaintiffs cite one of the reasons for the "need" for the proposed Easements is so that the acoustic enclosure can be constructed to mitigate the negative noise and air quality impacts of the Facility on the surrounding area. However, this "need" has come about solely by reason of the way in which Aussie Skips has chosen to use the Land and operate the Facility. The Plaintiffs cannot by its own actions bring about the "need" for the easements it seeks. In such a case, the Easements are not "reasonably necessary", because it is not reasonable to create an adverse impact by use of the Land and then claim the need for the imposition of easements over public land to mitigate those adverse impacts: ING Bank Australia Limited v O'Shea (2006) 12 BPR 23,485.
7. Even if the Plaintiffs have established the reasonable necessity required by s 88K(1), the impact on the Council Land (outlined with respect to the jurisdictional matters) is so great that the need required to be demonstrated by the Plaintiffs has not been established.

Findings on whether the Easements are reasonably necessary for the effective use of Lot 1

Application of guiding principles in this case

1. In large measure, the approach that the Plaintiffs have taken in this case is to identify a guideline principle, then frame it narrowly, and then apply it as if it were an immutable rule that must lead to a nominated result. In effect, the Plaintiffs formulate the guidelines as if they were a "tick-a-box" checklist. As observed above, such an approach is not to be endorsed. The guidelines "guide" the analysis of the legislative requirements in the context of each relevant fact and circumstance that arises for consideration in each particular case.

Demonstration of need and onus

1. The Plaintiffs contend that they are not required to establish any more than a prima facie preferability for use with the Easements. They contend that this is demonstrated by the fact that Lot 1 has been used with the Council Land for many years and is therefore, prima facie, an effective use of the Land as it is desirable and preferable over not using the Council Land. The Plaintiffs rely upon the decision in Wilson v Forrester-Babcock at [13] to support this proposition where it states: 13 Although there is no evidentiary burden on the defendant, the facts shown by the plaintiffs at least make out a prima facie case that it is a reasonable and effective use and development of the land to do what the plaintiffs want to do. Had there been other considerations dealing with the topography of the land and the use of the buildings, that prima facie situation may have been displaced, although it is hard to see when the only real effect is on the access to the defendant's land.
2. The Plaintiffs contend that once they have established a prima facie case the evidentiary onus shifts to the Council to establish there is another alternative 'viable' use of the land. The Plaintiffs also rely on Wilson at [17] to support this submission where it was stated: 17 I then turn to the question of costs. Under s 88K(5) the costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. In the instant case, the opposition to what would, on the face of it, appear to be the plainest of cases was vigorous and negative. It was negative in the sense of repeated submissions that the plaintiffs had not discharged the onus of proof on them and that the plaintiffs had not produced the appropriate amount of evidence. Very few cases in this Division are decided on onus of proof. The Court usually looks to the merits. In these temporary scaffolding cases where there is nothing put as to the merits, but the defendant merely relies on her proprietary rights, the defendant runs great danger in having to pay at least some of the costs of the suit.
3. The observations made in this case were not a statement of principle that all that was required in every case was prima facie satisfaction of the statutory requirements. This passage is reflecting the factual situation in that particular case which related to the erection, for a short period of time, of scaffolding to enable construction on the dominant tenement. The Court considered the factual matters evidenced before it and made those observation he did. In some factual circumstances the fact that there is no true alternative to the grant of an easement will be obvious without a great deal of evidence, such as a landlocked parcel of land. In others it will not be so apparent. Where the proposition is obvious, then perhaps the relevant provisions of s 88K(1) can be met by evidence establishing the prima facie basis and the Court is able to make the determination required by the statutory language without more. The fact that such situations do exist on the facts of those cases does not mean that it equally applies to all cases. This is not an overarching principle, but a recognition that the evidence required to establish reasonable necessity will vary with the facts of each case.
4. Where a particular easement is sought and it is not apparent on the face of the circumstances that the easement would be required for the efficient use of the applicant's land then, at the very least, the applicant will be required to examine the extent to which the use can be carried out without the easement in order to demonstrate that the easement is reasonably necessary. The guideline that has been often stated, and most recently in by the NSW Court of Appeal in Moorebank at [158] (which I note is one of the specific passages the Plaintiffs referred me to in their submissions), is that: The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity.
5. As to the suggestion that Wilson is authority for the proposition that onus does not play a role in s 88K proceedings, I do not accept that this is what is being said in that case. The particular paragraph cited was dealing only with the question of costs and not the substantive decision. Further, his Honour had, in the preceding paragraphs, undertaken an analysis as to whether the applicant's onus to establish reasonable necessity had been met. I do not understand this passage to be seeking to depart from the clear words of s 88K(1) that places the burden of establishing reasonable necessity on the applicant.
6. In this case it is not obvious on the face of the facts that the easement is reasonably necessary for the efficient use of Lot 1. Accordingly, the Plaintiffs are required to establish more than a mere prima facie need for the Easements.
7. The Plaintiffs elected not to adduce any evidence as to the extent to which the current use (which includes the presently unauthorised use of the Council Land) is more desirable (in the context of that term as used in s 88K(1)) to the carrying out of the use on Lot 1 exclusively. Rather, the Plaintiffs have relied upon statements of various experts that to exclude the use of the Council Land may require a reconfiguration of the present site layout and potentially affect the truck size that can access the Land or potentially reduce the amount of tonnage of waste able to be processed.
8. All of the experts indicated that the exercise of determining which response would be necessary and the consequences (if any) on production was beyond them and would need to be undertaken by others. This evidence is insufficient to discharge the onus cast on the Plaintiffs by s 88K(1) as it does not establish what the alternative of using Lot 1 alone in fact is. It is not enough to say that some changes to an existing use that relies on the Easement Land will have to be changed, without identifying what those changes are and how they will impact on the effective use of Lot 1. The Plaintiffs' case proceeds on the misunderstanding that s 88K relates to the desires of the Aussie Skips or the need to maximise a particular use - rather than whether the use of another's land is reasonably necessary in the circumstances.
9. Without such information, even at the most basic level, the Court is unable to assess whether the use of the Facility constrained to Lot 1 is not an effective use of the Lot 1 such that it can be assessed as an alternative to that proposed. This is particularly so in the circumstances of this case where the Plaintiffs have numerous consents that authorise the use of Lot 1 for the Facility without the expectation of the use of any of the Council Land. Further, there is clear evidence from aerial photography that the Facility operated without the use of any of the Council Land until about 2000. In those circumstances, without evidence to the contrary, there is an overwhelming inference that the use of Lot 1 for the Facility can be undertaken efficiently without it being reasonably necessary or desirable to use the Council Land.
10. The forensic decision not to adduce evidence of alternatives is sufficient to dispose of these proceedings. Absent some evidence of alternative use of Lot 1 without the Council Land, the required satisfaction of reasonable necessity for the effective use of Lot 1 cannot be established. However, I will turn to consider on the evidence that was adduced, and why, even at its highest, this evidence does not permit satisfaction of the requirements of s 88K(1).
11. At least to some degree, some of the inefficiencies on the use of Lot 1 by the Facility are necessary to overcome self-imposed constraints caused by the erection of buildings (such as the office) without approval and the management of Stockpile E that encroached upon the yard area where truck manoeuvres occurred. The extent to which these constraints contributed to the asserted inefficient use of Lot 1 or the extent to which those inefficiencies could be addressed by alternative management of these constraints was not examined by the Plaintiff in a material way in any of the evidence before the Court: Hanny v Lewis; 117 York Street. Absent such evidence, it is impossible to determine whether the constraints were mere inconveniences, or were liable to fundamentally affect the operations of the Facility.

Is the use preferable to the use or development without the Easements

1. The question of preferability is not whether the particular applicant prefers to use the land proposed in the Easements to carry out its use, but is an objective assessment of whether, in the carrying out of the efficient use, the capacity to take advantage of the proposed easement is preferable to not being able to do so. As has been observed, "…the tone of the word 'necessary' is getting close to something which is a vital requirement": Hanny v Lewis at 16,209. So whilst an applicant may identify preferability it must be more than mere preference or desirability in a general sense. On the potential range of preferences it must be more than merely preferable and less than absolutely necessary, but closer to the latter end of that scale than the former.
2. When the evidence that the Plaintiffs rely upon to demonstrate desirability is examined, the case put by them does not reach the level of preferability or necessity required by s 88K(1). Rather, the evidence discloses a mere preference not to disturb the current layout and operations of the Facility.

Regularising the status quo

1. The Plaintiffs rely heavily on the proposition that the Easements are only seeking to regularise the status quo and that the inconvenience and cost that would flow from not allowing the status quo to continue is prima facie evidence that the Easements are more preferable or desirable and are, therefore, reasonably necessary. This submission relies in part on the authorities that found an easement was reasonably necessary, in part, because it was regularising a pre-existing circumstance: Owners of Strata Plan 13635 v Ryan [2006] NSWSC 221; The Owners of Strata Plan 61233 v Arcidiacono; The Owners of Strata Plan 17719 v Arcidiacono [2019] NSWSC 1307; King v Carr-Gregg [2002] NSWSC 379. Again, however, there is no statement of principle that the fact that the proposed easement is seeking to regularise an historic situation is evidence (without more) of reasonable necessity. In those cases the existing situation was many years in existence and occurred at a time when there were misconceptions as to entitlements for access or where there was private infrastructure that needed to connect to public infrastructure and the presence of the easement would have little impact on the servient tenement. That is not the factual situation in this case. Those authorities cannot act to absolve the Plaintiffs of the need to establish that the use of the Council's Land is reasonably necessary for the efficient use of Lot 1. This approach has the effect of inverting the statutory test from the requirement to establish why an applicant should obtain an easement to a question as to why the applicant should not obtain the easement. Such an approach is beyond the scope of the statutory test.
2. Even if the issue of the status quo or the desire to continue to use the Council Land so as to avoid the costs, inconvenience and potential disruption to the Facility were compelling, the circumstances of this case would not, without more, lead to a finding of reasonable necessity. The evidence establishes that: 1. Lot 1 was granted a number of consents to use Lot 1 and did not authorise the use of the Council Land. The use of the Council Land was said to have occurred as a mistake by an earlier occupier when the acoustic wall was constructed; 2. That mistake was then inadvertently taken advantage of and the land north of the acoustic wall was treated as if it was part of Lot 1; 3. To the extent that the Council was or should have been aware of this use I consider this as a neutral consideration as the Plaintiff, equally should have been aware that it had, without any authority, built the acoustic wall in a location in which it was not approved and utilised land that it was not entitled to use for a use that had not been approved; 4. Apart from this fortuitous annexation of the Council Land there does not appear to be any asserted need, desirability or preference relating to the use of Lot 1 or the operations of the Facility that led to the Council Land being used in the manner now undertaken; and 5. The Plaintiffs, and in particular Aussie Skips, have been aware of the risks of continuing to use the Council Land as evidenced by the special provision in their Lease.
3. Further, to the extent that the use of Council Land is said to be desirable, as to not do so would lead to inconvenience, cost and potential consequences on the operation of the Facility, those matters are not relevant to the s 88K(1) exercise. As has been observed on a number of occasions, whilst the general history of the matter may be relevant to the determination of reasonable necessity for the efficient use of land, such reasonable necessity would not arise in circumstances where the need arose as a consequence of actions taken by the applicant or circumstances personal to a particular applicant: Hanny v Lewis; 117 York Street. The circumstances identified by the Plaintiffs have not been linked to the needs of Lot 1. The circumstances appear to be primarily personal or commercial to Aussie Skips. Absent evidence that the effective use of Lot 1 (as opposed to the current Facility) is tied or linked to the Council Land, there is no basis on which to find that it is reasonably necessary for the effective use of Lot 1 that the Easements be granted.
4. The evidence in this case demonstrates that the use of the Facility is dynamic, in the sense that the size and locations of stockpiles are not fixed. The decision to utilise Stockpile E in the manner currently undertaken does not appear, on the evidence, to be a decision borne out of operational reasons in the sense that it could not be changed. Clearly, Lot 1 has operated in the past without Stockpile E in its current configuration. Therefore, the significant constraint on vehicular manoeuvring on Lot 1 is one that was caused by the Plaintiffs' utilisation of Stockpile E. The same is so for the location of the weighbridges and site office in so far as they operate as constraints to vehicular manoeuvring.
5. As to the cost consequence of having to relocate the acoustic wall versus being able to utilise it, this cost has arisen as a consequence of the predecessors to Aussie Skips having constructed the wall in a location and to a height that was not approved in any development consent or expressly authorised by Council in any other capacity. Again, this notional loss consequent on having to build a new acoustic wall (as Aussie Skips did not expend the money on the wall) and the cost of removal is one personal to the Plaintiffs and not a matter going to the reasonable necessity for the use of Lot 1. The Plaintiffs, through the Lease, were aware of the risks of occupation - a deal has been struck, at least ostensibly, as to the party required to take responsibility for its removal and relocation, if required, (subject to the determination of any dispute as to the operation of the terms of the Lease). These personal matters are not relevant to the s 88K(1) exercise and for that reason I do not take them into account.
6. The assertion that the Easements are required for acoustic and air quality amelioration cannot be sustained. This evidence is circular. This evidence and the submissions suggest that the Plaintiffs are required to enclose Lot 1 and the Easement Land because of air quality and acoustic impacts that are being caused by the current use of the Facility. However, the sole basis that this enclosure is required on the Easement Land is IF the Easement Land is being used for the Facility. That is, the Plaintiffs are saying that they need to use the Easement Land for ameliorative measures because the use by them of the Easement Land will require ameliorative measures. For that reason alone, issues of air quality and acoustic compliance cannot support a finding of reasonable necessity as required.
7. The traffic evidence is also not compelling. The traffic engineers performed an, in effect, hypothetical manoeuvre, in that it is not a usual manoeuvre, on Lot 1. By failing to consider either the utilisation of an existing loading bay or a reconfiguration of the Facility (to even a minor extent) the evidence fails to satisfy that 19m truck and dogs could not effectively use Lot 1 absent the Council Land or that the manoeuvre was more efficient if Lot 1 and the Council Land were used.
8. Further, the evidence is also clear that the Facility can accommodate smaller trucks. There is no evidence adduced that would demonstrate, apart from operational inconvenience, that the Facility could not operate effectively with this truck mix or even that it would in any material operational sense diminish the capacity or capability of the Facility.
9. All of these factors would indicate that the justification for the status quo use of Council Land does not arise from need but rather a desire to continue to take advantage of a set of serendipitous circumstances. Therefore, in this case, the Plaintiffs have failed to satisfy the requirements of demonstrating reasonable necessity for the efficient use of Lot 1 as required by s 88K(1).

Impact on Council Land

1. Even if the Plaintiff had established a degree of reasonable necessity, it is inherent in the assessment of reasonable necessity that the impact the easement will have on the Council Land is a relevant consideration. This impact has been described as a consideration of both physical impacts and impacts on proprietary rights: City of Canterbury v Saad [2013] NSWCA 251 at [29]-[31].
2. The Plaintiffs' primary contention with respect to impact on the Council Land was that the Council was not in any real or active sense using its land. Further, because of the nature of the inherent constraints of this land as a single isolated lot the scope for active or even minor passive use was extremely limited, if not non-existent. The use by the Plaintiffs would improve this situation as the land would be put to an economically efficient active use in accordance with the zoning of the Council Land. These submissions are largely an accurate statement of facts, however, it focuses on an assumed inherent requirement that the Council "use" its land in an active sense and if it does not then the requirements of s 88K(1) dictate that the impact of the imposition of the Easements is not to be given anything more than minor weight in the determination of the competing uses. This proposition is not consistent with authority, or the nature and scope of the enquiry required by s 88K(1).
3. The authorities demonstrate that the greater the impact on both the proprietary rights and physical use of land is to be measured. Those impacts are to be objectively assessed as part of the objective determination required by s 88K(1). A property owner is entitled to decide what uses to put to their own land. They may even decide to put it to no active use at all. This fact cannot operate to give a prima facie entitlement to another person to insist on the conferral of a right over that land for the reason of underutilisation alone. As is made clear by the wording of s 88K(1) the concept of the "efficient use of land" relates only to the proposed dominant tenement and not the servient tenement.
4. In this case the available range of uses that the Council Land may be put to is not informative for the relevant assessment of impact. The impact is to be measured by the erection of physical structures on the Council Land and the use to which it is proposed to be used. In this case, those impositions are completely at odds with even a passive use of the land. The fact that the use of the Council Land is passive is part of the assessment but in this case it does not reduce the physical impact. Further, because of the nature of the physical structures and the uses proposed in the Easements, the Council's proprietary rights are significantly compromised. Whilst for the purposes of this assessment I assume that the use is capable of comprising an easement at law, for the reasons outlined in connection with the first jurisdictional question above, the impacts are still significant with respect to the practical exclusion of the Council from a large proportion of its land and the incompatibility of the uses proposed in the easements for any exercise of proprietorship over that land.
5. For those reasons I find that the imposition on the Council Land is significant. In those circumstances it is necessary for the Plaintiffs to demonstrate a greater need to overcome this impost: Woodland v Manly Municipal Council (2003) 127 LGERA 120 at [12] and [19]. For the reasons I have outlined the Plaintiffs have failed to do this.

Conclusion on 88K(1)

1. Having regard to the necessary precondition to the exercise of the power provided for by s 88K(1), I find that the Plaintiffs have not demonstrated that it is reasonably necessary for the effective use of Lot 1 that the Easements should be imposed.
2. As I have determined that the Easements do not meet the statutory precondition set out in s 88K(1) the Summons must be dismissed. With that finding, for the purposes of determining these proceedings, there is no need for me to consider the matters raised in s 88K(2) or the exercise of the general discretion.

Reasons for rejection of affidavits of Mr Hammond

1. On the sixth day of the hearing the Plaintiffs sought to read two affidavits of Mr James William Hammond sworn 20 and 24 February 2020. The reading of the affidavits was objected to by the Council. After hearing argument from both parties the evidence was not permitted to be read. The parties agreed that rather than giving reasons for the rejection of that evidence immediately it was appropriate that reasons should be provided in this judgment.
2. Mr Hammond is an employee of a company known as Aussie Industries Pty Ltd of which Aussie Skips is a subsidiary. He holds the title of "Compliance Officer". There was no part of the proposed evidence that elucidated on the nature of the duties that were undertaken by such a title holder.
3. His evidence sought to adduce evidence as to the number and mix of trucks that attended the Facility. Those details were a sample of data said to be produced by the weighbridges. The data was presented as a series of excel spreadsheets. His evidence also sought to make good the contents of Annexure B to this judgment.
4. The Council objected to the evidence on the basis that: 1. It was late, being sought to be adduced on the sixth day after the evidence had been adduced; 2. The evidence did not go to any relevant matter in issue before the Court; and 3. To permit the evidence would be unfairly prejudicial and would result in a waste of time. The material from the weighbridge records do not establish the number or types of truck on their face and also do not establish that the sample records are typical. The Council would have to interrogate the weighbridge records, and consult their traffic engineer before they would be able to deal with the evidence.
5. The Plaintiffs asserted that the evidence: 1. Was relevant to prove the representation of the site layout in Annexure B; 2. Was business records; and 3. Reinforces the evidence of the traffic engineers that large 19m trucks presently use the Facility.
6. The lateness of the production of this evidence and the manner in which it is provided is prejudicial to the Council. The provision of excel spreadsheets without any analysis requires the Court and the Council to undertake an examination of a large amount of documents and to form opinions about what that information establishes. This exercise is not appropriate for the Court to undertake in circumstances where the evidence gives no assistance as to what purpose the evidence should be put and what inferences are able to be drawn from this large data pool.
7. The evidence is not relevant to an issue in dispute that has not already been the subject of evidence. Both the site layout and the use of the Facility for 19m vehicles had been established on the evidence. The weighbridge data and Mr Hammond's evidence is not necessary to establish those facts.
8. Accordingly in the exercise of my discretion pursuant to s 135 of the Evidence Act 1995 I reject the evidence as its probative value does not outweigh the prejudice to the Plaintiffs of the late provision of this material and the unhelpful manner in which it has been adduced (that is, the provision of excel spreadsheets from which the Court and the Council are required to determine the inferences to be drawn).

Costs of the proceedings

1. Section 88K(5) provides that the costs of the proceedings are to be paid by the applicant, subject to any order of the Court to the contrary. The Plaintiffs agreed that whatever the outcome of these proceedings it was appropriate that an order be made that the Plaintiffs pay the Council's costs of the proceedings. There being no submission that an order otherwise than in accordance with the presumption in s 88K(5) should be made, such an order will be made.

Conclusions and Orders

1. For the reasons outlined above, I am not satisfied that the Easements are either easements capable of comprising a grant and/or are not easements that are reasonably necessary for the effective use of the Plaintiffs' Land. Accordingly, the Court Orders that: 1. The Amended Summons filed in Court on 25 February 2020 is dismissed; 2. The Plaintiffs pay the Defendant's costs; and 3. The exhibits are returned.
2. There are a number of proceedings in this Court relating to the land the subject matter of these proceedings. Those proceedings were adjourned pending the determination of these proceedings. In accordance with the Orders made the Court directs that proceedings: 1. 2019/358381 2. 2019/189000; 3. 2019/189008; 4. 2019/204468; and 5. 2019/204496 6. are listed for mention before Moore J at 9am on Friday, 27 March 2020. Annexure A (299 KB, pdf) Annexure B (1.55 MB, pdf)

Amendments 20 March 2020 - Typographical error - citation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2020