Billgate Pty Limited v Woollahra Municipal Council

Billgate Pty Limited v Woollahra Municipal Council - [2004] NSWLEC 436 - NSWLEC 2004 case summary — Zoe

[16]

40 Additional powers of Court - provision of easements (1) If the Court has determined to grant development consent on an appeal under section 97 of the Environmental Planning and Assessment Act 1979 , the appellant may apply to the Court for an order imposing an easement over land. (2) The Court, on application under subsection (1), may make an order imposing an easement over land if it is satisfied that: (a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and (b) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (c) the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (d) 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 jurisdiction of the Court to make an order under this section is exercisable only by a Judge, whether or not sitting alone. (4) Before making an order under this section, the Court must notify the owner of the land affected by the proposed easement (other than an owner who is a party to the proceedings before the Court), and the owner of any land on which it may be necessary for works to be carried out in connection with the easement (other than such a party), of the proposed easement or works, or both. (5) An owner of land affected by the proposed easement and an owner of land on which it may be necessary for works to be carried out in connection with the easement: (a) may object to the proposed easement or works, and (b) is entitled to appear before the Court in support of the objection. The Court must consider each objection. (6) The Court: (a) 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) of the Conveyancing Act 1919 as are appropriate, and (b) 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 of the Conveyancing Act 1919 . The terms may limit the times at which the easement applies. (7) The Court is to provide in the order for payment by the applicant for the order to such persons as the Court specifies 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. (8) The costs of the proceedings, in so far as they relate to an order sought or made under this section, are payable by the applicant for the order, subject to any order of the Court to the contrary. (9) An easement imposed under this section: (a) may be released by the owner of the land having the benefit of it, or (b) may be 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. (10) 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. (11) An easement imposed under this section has effect (for the purposes of the Conveyancing Act 1919 and the Real Property Act 1900 ) as if it were contained in a deed. (12) Nothing in this section prevents such an easement from being extinguished or modified under section 89 of the Conveyancing Act 1919 . (13) In this section, owner of land includes a person having an estate or interest in the land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 . C. THE COMPETING ARGUMENTS

[23]

14 Upon the assumption that the evidence adduced at the hearing of the appeals will be insufficient (either legally or factually) to enable the Court to conclude that "adequate provision" relevantly has been made for the disposal of stormwater (for example that the evidence satisfies the Court that there is no legal entitlement to utilise the existing easement over the adjoining property for the purpose of disposing of stormwater from the proposed development) my adjudication upon the remainder of the parties' competing arguments is as follows: (i) cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of the type suggested by the Applicant, not only because logically the imposition of such a condition requires the grant of development consent and that grant is proscribed by cl 25(2) unless the relevant adequate stormwater provision " has been made ", but also because the imposition of the condition necessarily carries the possibility of non-compliance therewith, with the legal consequence that the Court could not be satisfied that adequate provision relevantly "has been made ": cf Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 442 per Glass JA (with whom Mahoney JA at 443 agreed); and (ii) the power vested in the Court to make an order pursuant to the LEC Act, s 40 upon application being made to it, would be available in the event of Court "determining to grant development consent" to the pending development applications and the making of a s 40 Order would be capable of satisfying the requirements of cl 25(2) of the LEP. 15 In so concluding that the power conferred by the LEC Act, s 40 could be available to the Court in the present cases (ie if the Court relevantly "determines to grant development consent") I would reject the Council's argument that the proper construction of s 40 limits the availability of the power to cases where the Court has already granted development consent. The Council's argument that the verb "determine" in the expression in s 40(1) "If the Court has determined to grant development consent" is to be understood in the light of the EP&A Act, s 80(1) technical usage of the same word, is, in my opinion an unconvincing interpretation - both linguistically and purposively. The ordinary meaning of the verb "to determine" clearly fits the context, which is directed to the Court's appellate planning function under the EP&A Act - see also s 39 of the LEC Act - by conferring an adjunct power that relates to that planning function.

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