Cavcorp Australia Pty Ltd v Hunters Hill Council

Land and Environment Court (NSW)|2021-06-08

Introduction

By orders made on 18 May 2010 (entered 4 June 2010) the Court granted development consent (Consent) to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill (site) on the foreshore of Parramatta River.
The Consent was modified by the Court in proceedings 153799 of 2016 on 21 June 2017 to which further reference is made below.
The Applicant has made an application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the Consent (Modification Application). This is not an appeal against a decision of the First Respondent (Council), but an application invoking the jurisdiction of the Court to modify consents granted by the Court.
The Modification Application has evolved over the course of the hearing, but its essence is that it seeks to regularise certain work carried out otherwise than in accordance with the Consent (or any development consent) with additional work proposed in an effort to address the contentions raised by the Respondents. The detail of the modifications sought are set out later in this judgment.
The Second Respondent Dolly Diab (Mrs Diab) is the owner 29 Nelson Parade Hunters Hill (Number 29) the property generally to the west of the site. She was joined as a Respondent with the consent of the other parties on 21 February 2020. Aside from being an affected neighbour, Mrs Diab has the benefit of an easement for services, an easement for support and right of carriageway over parts of the site, including parts where the Applicant has unlawfully carried out work. Again, this is explained in more detail later in the judgment.

The Site

Critical to understanding the issues between the parties is an understanding of the site and its context. Below is a survey of Geometra Consulting dated 4 November 2020 showing the site outlined in red.
It is to be immediately observed that a public pathway not less than 1.2m wide runs through the site at its northern end. That is, the northern component of the site is separated from the balance. Nelson Parade terminates at the eastern boundary of the site.
The site has an area of 1457sqm and has 3 distinct components. The northern end to the north of the public pathway and the driveway area is largely flat. The site then falls to the south, towards Parramatta River, and the dwelling house and garage as constructed comprise the middle section of the site. The site further falls to the south from the dwelling house and the lower area leading to the foreshore of Parramatta River is largely landscaped.
The northern boundary of the site is virtually at the foot of a rock wall or small escarpment of about 3m. There are elements of retaining walls in rock and timber at various locations immediately to the north of the site.
Number 29 is immediately to the west of the site and also has the benefit of frontage to Parramatta River. Access to Number 29 is from the end of Nelson Parade thence along the driveway constructed over the right of carriageway in favour of Number 29 over the site. The driveway to Number 29 falls steeply from the eastern boundary of Number 29 at the end of the right of carriageway in a westerly direction to the garage of Number 29.
The following extract from the Geometra survey shows the northern end of the site and the easement for services and right of carriageway. There is an issue concerning structures constructed by the Applicant over the easement for services and the terms of the easement are set out in the consideration of that issue.

The Locality

The site is located at the southern side of the Hunters Hill peninsular, within two conservation areas under Hunters Hill Local Environmental Plan 2012 (HHLEP 2012) and a short distance east of Pulpit Point.
In the immediately surrounding locality the built form is made up of substantial dwelling houses generally in their own garden settings along both sides of Nelson Parade and beyond. The dwelling houses to the north of the site are elevated having regard to the rock and retained wall referred to above at [9]

Council commences Class 4 Proceedings

In October 2015 the Council commenced Class 4 civil enforcement proceedings against the Applicant and Mr and Mrs Cavasini (together the Cavasini's). Mr Cavasini is the controller of the Applicant and Mrs Cavasini is the owner of the site. The Cavasini's live in the dwelling house on the site.
The course of those proceedings is not relevant but for noting that the proceedings were resolved, with the consent of the parties, by the making of orders including an order for the provision of landscaping on the western boundary of the site, a boundary shared with Number 29, and the consequential modification of the Consent.
The orders were made by Pain J on 21 June 2017 (2017 orders) without admission by the Respondent save an admission that a breach of the EP&A Act had occurred. Such an admission was necessary in order for the Court to have power to make the orders, but the admission did not embrace any particularity as to the work which had been carried out in breach of the EP&A Act.
The detail of the 2017 orders is set out to the extent necessary when considering the issue relating to the western boundary later in this judgment.

Mrs Diab commences Class 4 proceedings

On 15 December 2017 Mrs Diab commenced Class 4 civil enforcement proceedings against the Applicant and the Cavasini's (the Diab proceedings). In the Diab proceedings Mrs Diab alleged that certain construction work undertaken at the site was carried out in breach of the EP&A Act.
The Diab proceedings apparently had a somewhat tortuous history and on 24 December 2019 Preston CJ ordered that: "The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found." (Diab v Cavasinni [2019] NSWLEC 204)
That separate question was determined by Robson J on 20 August 2020 (Diab v Cavasinni (No 3) [2020] NSWLEC 119) (Diab No. 3). His Honour observed at [2] that his judgment involved only making factual findings. His Honour made the following orders in response to the separate question Robson J orders): "(1) The Court answers the question of breach of development consent DA 08-1096 ('Consent') and the Environmental Planning and Assessment Act 1979 (NSW) by determining that the development on Lot 3 DP 840284, otherwise known as 27 Nelson Parade, Hunters Hill, is otherwise than in accordance with the Consent in the following respects: (a) As to the height of the roofline: (i) the ridges of the lower roofline of the new residence have been constructed to a height of approximately RL31.19 to RL31.20, whereas the approved plans require a finished RL of RL30.16; (ii) the ridges of the main roofline have been constructed to a maximum height of approximately RL31.91 to RL31.94, whereas the approved plans require a maximum finished RL of RL31.76; and (iii) the gutter has been constructed to an RL of RL28.6, whereas the approved plans (by scale) depict a finished RL of 28.1. (b) Two full-length French doors have been added to ground floor of the western façade to supplement the windows approved on the approved plans. (c) The footprints, roofs, eaves and gutters of the garage and garbage storage room as constructed are different to those shown in the approved plans as follows: (i) the footprints (floor and walls) of the garage and storage room are built in the Easements for Services and intrude into that Easements for Services by between 0.72 and 0.89 metres as depicted in the survey plan dated 23 January 2020 being annexure "A" to the affidavit of Stuart de Nett sworn on 29 January 2020 ('de Nett Survey') in circumstances where: A. no part of the floor and walls of the garage was authorised to be constructed in the Easements for Services; and B. no part of the floor and walls of the storage room was authorised to be constructed in the Easements for Services. (ii) the roof and eaves of the garage extend across the Easements for Services and intrude by approximately 100mm into the Right of Carriageway for the benefit of the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) in circumstances where no part of the garage was authorised to be constructed in the Right of Carriageway. (d) The "steps" and "tiled landing" located on the boundary with the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) are not in accordance with the approved plans, which show landscaping in that location. (e) The "piers" and "fence" located adjacent to and south of the driveway servicing the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) are not in accordance with the approved plans, in that the piers have been clad in sandstone as opposed to the nominated rendered finish and do not include the 600mm rendered plinth infills for their whole extent. (f) The excavation of the sandstone outcrop or formation ('sandstone formation') to the north of the driveway servicing 29 Nelson Parade, Hunters Hill as noted in red on the de Nett Survey as the "approximate base of sandstone outcrop prior to excavation", partly depicted in the survey plan prepared by Garvin Morgan & Company Survey Plan dated 26 March 2004 and shown in the photograph taken in December 2009 (Exhibit C in these proceedings), was not in accordance with the approved plans, which required that the sandstone formation and the vegetation overlying it be retained. (g) The subsequent flattening and concreting of the area where the sandstone formation had been located to make an area for the parking of cars was not in accordance with the approved plans, which required that the sandstone formation and the vegetation overlying it be retained. (h) Before it was excavated the sandstone formation consisted of a natural intact rock-like structure rising to approximately 2.75m in height as partly depicted in Exhibit C."
The Diab proceedings have been adjourned until after this judgment has been delivered.
The findings of fact reflected in the order made by Robson J are binding on the parties to those proceedings - the Applicant and Mrs Diab - and no issue was taken by them about those findings in these proceedings. Although the Council was not a party to the Diab proceedings and therefore strictly not bound by his Honour's orders, the Council did not at any time submit that the findings were otherwise than correct.
I therefore must and do accept the findings made by Robson J in the Diab proceedings as part of the context of the consideration of the present application.
A summary therefore of the relevant findings of the work carried out otherwise than in accordance with the Consent which give rise to this modification application are: 1. The increased height of the ridges of the dwelling house and the gutter; 2. Two doors added to the western façade; 3. Floor and walls of the garage and storage room are constructed partly over the easement for services; 4. Roof and eaves of the garage extend across the easement for services and the right of carriageway; 5. Steps and a landing have been constructed between the house and the western boundary (the boundary with Number 29) which was required to be a landscaped area; 6. The area to the north of the driveway was flattened and concreted rather than retained as a sandstone formation with vegetation.
As will be set out later in this judgement the issues for determination related to:

The incursion into the easement for services;
The landscape treatment of the western portion adjacent to Number 29;
The landscape treatment of the area north of the driveway.

The approach to the issues

It is regrettable that many cases come before the Court where Applicants need to regularise development which has been carried out in breach of the EP&A Act. The Court has taken a consistent approach to the assessment of such applications.
It is not part of my role to consider any form of punishment or to consider the fact of the works having been carried out, except to note their existence and the steps being taken to remedy any problems caused by that work having been carried out. I approach the matter on the basis that the applicant has no benefit for having carried out the work but, on the other hand, suffers no disbenefit in the assessment of the application in accordance with the provisions of the EP&A Act.
The task is tantamount to assessing a modification application assuming the unlawful work has not been carried out but having the advantage of the presence of the works to assist in the assessment process. As long ago as in Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240, Talbot J spoke at [53] of assessing a modification application "[s]tripped of the opprobrium of the applicant carrying out works illegally".

The course of the proceedings

The hearing commenced on site on 11 February 2021 and thereafter continued in Court on that day and the following day. It is no criticism of the parties that the time taken for the site inspection, openings and tender of documents occupied virtually the two days allocated for the matter. There was a lengthy history of the issues between all parties, a number of aspects of the modification needed to be properly understood and a significant amount of documentary evidence received.
At the conclusion of the second day of hearing the matter was listed for two further days - 6 and 7 April 2021. During the course of the evidence on 6 April 2021 the Applicant indicated that it wished to make an amendment to the modification application which would have the effect, according to the Applicant, of disposing of a significant issue. Hitherto the Applicant proposed retaining the concreted area to the north of the driveway as car parking whereas the Respondents sought to have it returned to landscaped area.
The Applicant then indicated that it now proposed to eliminate the car parking north of the driveway and landscape the area instead. The Applicant sought that the hearing be adjourned to allow that amendment to be given effect by the preparation of amended plans.
The Respondents consented to the adjournment application provided that the Applicant undertook to pay the costs of the Respondents of the day. That inter partes undertaking was given.
Having regard to the history of the matter, and the consent of the Respondents, I considered it preferable to adjourn the hearing and allow the amended plans to be prepared and considered, rather than have the prospect of a further modification application potentially delaying the Diab proceedings. The hearing was adjourned, fixed for further hearing on 8 June and directions made to facilitate the hearing being concluded on that day.
On 12 May 2021 the Applicant filed a Notice of Motion which in terms sought to "rely on" identified amended plans. I dealt with the motion on 17 May 2021 and with the consent of the parties granted the order sought. At that time, I raised with the Applicant the question of power to amend a modification application, but as the motion did not specifically seek that relief the question did not require determination.

An application to amend the modification application

At the outset of the resumption of the hearing on 8 June 2021 the Applicant sought leave to amend the modification application by relying on further amended plans. The Applicant did so because a recent joint report of planners and landscape experts had agreed on certain amendments to the plans.
Each of the Respondents consented to the application to amend the modification application.
I granted the application for reasons which had become evident during the course of the hearing of the application to amend, but I informed the parties that I would include reasons for making the order in my final judgment. The following paragraphs set out those reasons.
The Applicant identified the source of power to grant the amendment as s 64 of the Civil Procedure Act 2005 (CP Act) which provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate.
As to whether s 64 of the CP Act (which is in Part 6 of the CP Act) applies to this Court and its Class 1 jurisdiction it is first necessary to refer to s 4 of the CP Act which provides: 4 Application of Parts 3-10 (1) Subject to this section, Parts 3-9 apply to each court referred to in Schedule 1 in relation to civil proceedings of a kind referred to in that Schedule in respect of that court. (1A) Part 10 applies in relation to civil proceedings in the Supreme Court. (2) The uniform rules may exclude any class of civil proceedings from the operation of all or any of the provisions of Parts 3-9. (3) The Governor may, by regulation, amend or substitute Schedule 1. (4) A regulation under this section may contain provisions consequent on the amendment or substitution of Schedule 1, including - (a) provisions excluding any class of civil proceedings from the operation of all or any of the provisions of Parts 3-9, and (b) provisions modifying any specified provision of Parts 3-9, or of any other Act or law, in its application to any class of civil proceedings. (5) Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings.
Then one turns to Schedule 1 of the CP Act: Column 1 Column 2 Court Kinds of civil proceedings Supreme Court All civil proceedings Land and Environment Court All civil proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction Industrial Relations Commission All civil proceedings District Court All civil proceedings Dust Diseases Tribunal All civil proceedings Local Court All civil proceedings under Part 3 of the Local Court Act 2007 All civil proceedings under the Property (Relationships) Act 1984

Subject to the potential for exclusion by other legislation, by the operation of s 4 and Schedule 1 of the CP Act, Parts 3 to 9 of the CP Act, which includes s 64, apply to Class 1 proceedings in this Court.
It is observed that s 64(2) of the CP Act provides that the Uniform Civil Procedure Rules 2005 (UCPR) may exclude any class of civil proceedings from the operation of all or any of the provisions of Parts 3-9 of the CP Act. UCPR rule 1.6 provides: 1.6 Exclusion of provisions of Civil Procedure Act 2005 In respect of each court referred to in Column 1 of Schedule 1 - (a) civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of the provisions of Parts 3-9 of the Civil Procedure Act 2005 referred to in Column 3 of that Schedule in respect of those proceedings, and (b) the following proceedings, to the extent to which they are civil proceedings, are excluded from all of Parts 3-9 of the Civil Procedure Act 2005 - (i) proceedings under the Mental Health (Criminal Procedure) Act 1990, (ii) proceedings under the Habitual Criminals Act 1957, (iii) proceedings under the Bail Act 1978, (iv) proceedings under the Crimes (Domestic and Personal Violence) Act 2007, (v) proceedings under Part 4 of the Victims Support and Rehabilitation Act 1996.
Neither UCPR rule 1.6 itself nor Schedule 1 of UCPR exclude the operation of any of the provision of Parts 3-9 of the CP Act.
It follows that s 64 CP Act applies to Class 1 proceedings in the Court. The question remains whether s 64 is a source of power to amend a modification application.
The very recent decision of the Court of Appeal in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook) provides some illumination. Preston CJ sitting as a member of the Court of Appeal said at [260] ff: "260. Fourthly, the Court has no power under s 64 of the Civil Procedure Act 2005 or Part 19 of the UCPR to amend, or to allow the amendment of, the application or request for modification of a development consent or an approval. Both s 64 of the Civil Procedure Act and Part 19 of the UCPR apply to civil proceedings in the Land and Environment Court, including an appeal in Class 1 of the Court's jurisdiction. However, these provisions do not authorise amendment of documents that are not documents of the kind to which the provisions apply. 261 For s 64 of the Civil Procedure Act, "any document in the proceedings" refers to documents created for the purpose of the proceedings, including the originating process, pleadings, notices of motion, subpoenas, notices to produce, affidavits and other statements of evidence filed in the proceedings. A document brought into existence before the proceedings are commenced and for a purpose other than the purpose of the proceedings is not a "document in the proceedings". 262 In the case of proceedings in Class 1 of the Court's jurisdiction, including appeals against the determination of a development application or an application to modify a development consent, the application the subject of the determination is not a "document in the proceedings". The application is brought into existence for the purpose of seeking the approval of the consent authority, either a development consent in the case of a development application or the modification of a development consent or an approval in the case of an application or a request to modify a development consent or an approval. Although the determination of either such application founds the right of appeal to the Court, and hence the proceedings, the application is not a document in the proceedings. The application for approval is not the originating process commencing the proceedings - that is a separate document, called an Application Class 1, 2 or 3. The prescribed form for this type of application requires identification of the decision appealed against, being the determination of the application for development consent or the application or request for modification of the development consent. But such identification of the application for development consent or for modification of a development consent does not cause the application so identified to become a document in the proceedings. 263 The result is that the power of amendment of any document in the proceedings in s 64 of the Civil Procedure Act does not extend to allow amendment of an application for development consent or an application to modify a development consent."
The other members of the Court, Meagher and Leeming JJA said at [24]: "24 Preston CJ of LEC has expressed the view that there was no power to amend Dartbrook's modification application. Whether or not that is so is a pure question of law, and one which is capable of being determined for the first time in this Court. However, we are of the view that it is inappropriate to address that question. That is because it was common ground in the court below that there was power, in accordance with decisions such as Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245. It was also common ground in the parties' submissions in this Court; the debate instead was whether the alterations were so significant as to amount to a "new" modification application. True it is that in the course of argument, it was suggested that there was an anterior point, namely, whether there was power to accede to any amendment of a modification application. The fact that this was only raised during the hearing meant that this Court received incomplete submissions on the point. There is no good reason to resolve a point which the appellant would prefer not to be decided, in circumstances where that point was not advanced at first instance and where it was not as fully argued as it might be in this Court, and which (as is noted below) may not need to be decided at all."
In Dartbrook therefore, Preston CJ expressed very clearly that there was no power in the Land and Environment Court to grant an amendment to a modification application, whereas Meagher and Leeming JJA declined to consider the question, said the issue was not fully argued and in any event was not necessary to decide. Putting to one side whether the observations of Preston CJ were obiter, at the very least they are to be considered as very persuasive observations.
When dealing with the power under s 64 of the CP Act it is important to note that his Honour Preston CJ stated that an application made to a consent authority for development consent or to modify a consent is not a "document in the proceedings". Because the power to amend in s 64 of the CP Act is to amend a "document in the proceedings" and an application to amend a development consent of modification application is effectively an application to amend a document lodged with the consent authority, the application to amend the development application or consent is not a "document in the proceedings".
A "document in the proceedings" is a document created for the purposes of the proceedings such as an initiating process Preston CJ observed.
The facts in this case are different from the facts which gave rise to the observations of Preston CJ in Dartbrook. In Dartbrook the Court had before it an application to amend a modification application when that application to modify had been made to the consent authority pursuant to s 4.55(2) of the EP& A Act. An appeal from the determination of the consent authority of such an application was made pursuant to s 8.9 of the EP&A Act
In this case an application has been made to the Court pursuant to s 4.55(8) of the EP&A Act which provides: (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
Accordingly, this is not an appeal from a decision of the Council but an application directly to the Court. The present proceedings are an application pursuant to s 4.55(8) of the EPA Act in respect of which the Court has jurisdiction in Class 1 by virtue of s 17(d) of the Land and Environment Court Act 1979 (Court Act).
Part 3 of the Land and Environment Court Rules 2007 (LEC Rules) applies to Proceedings in Class 1, 2 or 3 of the Court's jurisdiction. Rule 3.2 of the LEC Rules provides that the initiating process in Class 1, 2 or 3 is an application prepared in the approved form. The approved form is described as Form B Application Class 1.
The initiating process, the Application Class 1, is in the present circumstance itself the application to modify the Consent. There is no antecedent application to a consent authority or a decision by a consent authority in respect of which an appeal is made to the Court.
The jurisdiction of the Court is invoked by the Applicant in reliance upon s 4.55(8) of the EP&A Act. The Application Class 1 itself must, and does, identify the manner in which it is sought to modify the Consent. It cannot, and does not, refer to an antecedent application or decision, because there were none. It is the Class 1 Application which the Applicant sought to amend because that is the document which constitutes the application to amend. The Applicant did not seek to amend a document brought into existence prior to the commencement of the proceedings. The Applicant sought to amend the very document which constitutes the application to modify the development consent and which is the initiating process in this Court, the Class 1 Application.
It follows in my opinion, that the Class 1 application in the circumstances of this case, is a document in the proceedings to which s 64 of the CP Act applies. The facts in this case are distinguished from those in Dartbrook which formed the basis for the observations of Preston CJ. Those observations do not apply to the facts of this case, except to the extent that his Honour identified, amongst other documents, the initiating process as a document in the proceedings for the purpose of s 64 of the CP Act. My conclusion here is consistent with the observations made by Preston CJ in Dartbrook.
Accordingly, I had power to grant to application to amend the modification application. It was appropriate that I do so having regard to the contents of the joint report which suggested the changes made by the Applicant and there was no prejudice to, nor opposition from, the Respondents.

The Modification application

At the heart of the application and the controversy are the proposals by the Applicant in relation to the unlawful work carried out. It is most convenient to summarise the Modification Application by reference to the factual findings made by Robson J (His Honour's findings are in italics): 1. The increased height of the ridges of the dwelling house and the gutter; The Applicant does not propose any changes to the ridges and gutter. 1. Two doors added to the western façade; The Applicant proposes to retain the doors. 1. Floor and walls of the garage and storage room are constructed partly over the easement for services; The Applicant does not propose any change to the garage and storage room but proposes as a condition of consent that the easement be widened by 1.5m (in addition to its present width of 1.5m) so that any new services can be comfortably accommodated away from the garage and storage room. 1. Roof and eaves of the garage extend across the Easement for Services and the Right of Carriageway; The Applicant does not propose any change and relies upon the increased width of the easement. 1. Steps and a landing have been constructed between the house and the western boundary (the boundary with Number 29) which was required to be a landscaped area; The Applicant proposes to retain the steps and landing and will provide some perimeter landscaping. 1. The area to the north of the driveway was flattened and concreted rather than retained as a sandstone formation with vegetation. The Applicant now proposes that the area be landscaped by the introduction of soil and retaining walls above the slab, whilst retaining the slab, but there is to be landscaping rather than carparking.
I will provide more detail as necessary when dealing with the issues.
There are other modifications of a minor nature which are proposed but they were not controversial, were not in contention, and did not require particular consideration in the determination of this application (see Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310).

Statutory Context

Whilst the Court's source of power is s 4.55(8) of the EP&A Act, that sub-section requires the Court to apply the other relevant provisions of s 4.55 in determining the modification application (see sub-section 4.55(8) at [50] above). The relevant provisions are set out below: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and …… (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
A pre-condition to the exercise of the power to amend the consent is satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. The Respondents did not assert that the development is proposed to be modified is not substantially the same as the development the subject of the Consent.
I am satisfied that the modified development is substantially the same as that for which development consent was originally granted. The Consent is for a large dwelling house and double garage. That remains the case after the proposed modifications. There are minor changes proposed which do not change the essence or substance of the original development - it remains a large dwelling house with double garage in generally the same location on the site, and largely a similar overall development envelope.
The Council notified the modification application in accordance with its policy and I take into account all the submissions received, including those from Mrs Diab, the Second Respondent and the letters in support from other neighbours.
I am also required to take into account such of the matters referred to in s 4.55(1) of the EP&A Act as are relevant to this application.
The site is zoned R2 Low Density Residential pursuant to HHLEP 2012. The objectives of the zone, which are mandatory relevant considerations pursuant to cl 2.3(2) of HLEP 2012, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities. • To provide for high levels of amenity that are consistent with a low density residential environment.
The Council particularly points to the third objective as relevant to the determination of the issues in this case - the garden suburb character of Hunters Hill.
Clause 5.10(4) of HHLEP 2012 provides that: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
Whilst the site is within two heritage conservations areas (Conservation Zone (General) C1 ("the Peninsular") and Conservation Zone (Landscape) C422 ("Sunnyside Estate")), heritage impacts as such did not ultimately form a central part of the Respondents' cases.
The provision or otherwise of appropriate landscaping is a central issue. Clause 6.9 of HHLEP 2012 applies: 6.9 Landscaped area for dwelling houses and secondary dwellings (1) The objectives of this clause are as follows - (a) to maintain the character and identity of Hunters Hill by ensuring that dwelling houses and secondary dwellings are surrounded and separated by individual gardens, (b) to soften the visual impacts of dwelling houses and secondary dwellings when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building, (c) to protect and preserve native vegetation in general, and in particular, native vegetation that occurs in a riverfront area or on riparian land, (d) to ensure that the size and scale of dwelling houses and secondary dwellings are compatible with the existing character of their surrounding locality, (e) to minimise the discharge of stormwater from any site, whether by drainage or by overland flow. (2) The landscaped area of any site on which development for the purpose of a dwelling house or a secondary dwelling is carried out must not be less than - (a) for each site with a direct frontage to the Parramatta River or the Lane Cove River - 60% of the site area, or (b) for all other sites - 50% of the site area. (3) For the purposes of subclause (2), the site area is to be calculated under clause 4.5 (3) and any area that has a length or a width of less than 2 metres is not to be included in calculating the proportion of landscaped area. (4) Despite subclause (2), the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40 square metres), but only if the proposed development would be consistent with the objectives of this clause.
Landscaped area is defined in the Dictionary to HHLEP 2012: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
In short, because the site has a frontage to the Parramatta River it should provide 60% of the site as landscaped area. There is a dispensation in respect of the exceptions in sub-cl 6.9(4), such that the landscaped area could be 40% of the site in this case, but only if the development is consistent with the objectives of cl 6.9.
Hunters Hill Consolidated Development Control Plan 2013 (HHDCP 2013) applies to the site.
Clause 2.2.4 of HHDCP 2013 provides that certain controls apply to all development proposals. One such control is 2.2.4(c)(ii) which provides: "Existing rock outcrops and slopes should be maintained to avoid the need for tall retaining walls that would be visually prominent."
A similar control is in clause 3.3.4 which contain the Landscaped Area controls and provides relevantly: "(b) Location of the minimum landscaped area that is required by the Hunters Hill LEP 2012 should accommodate natural features such as existing trees, native understorey and rock outcrops."

Consideration

It is convenient to deal with the evidence and submissions in the consideration of the issues. The three principal issues are largely self-contained although the landscaping issue is somewhat overarching. It was the Council case that the additional ridge heights in breach of the Consent should only be permitted if the landscaping outcome was acceptable and met the objectives of cl 6.9 of HHLEP 2012.

The area north of the driveway

It is appropriate to deal with this issue first because my findings have consequences for the other landscaping issue. For convenience I shall refer to the area north of the driveway as the northern area.
It was the northern area which was the subject of orders 1(f) and 1(g) of the Robson J orders. I should restate that his Honour found that the excavation of the sandstone outcrop or formation was not in accordance with the Consent which required the sandstone formation and overlaying vegetation to be retained. It was this area which was flattened and concreted to provide an area for carparking.
It should also be noted that his Honour also found as recorded in order (1)(h) that: "Before it was excavated the sandstone formation consisted of a natural rock-like structure rising to approximately 2.75m in height."
The Applicant now proposes, as the Respondents have pressed from the outset, that the northern area be landscaped. It is common ground that in order to landscape the northern area soil will need to be introduced and there will be relatively low retaining walls to retain the introduced soil. There is agreement as to the fill required, the height of the retaining walls and the landscaping species to be provided.
The principal issue between the parties is whether the concrete itself, which effectively covers the whole of the northern area, needs to be removed. The Applicant does not propose to demolish the concrete and the Respondents require that it be removed. Subsidiary issues are whether the retaining structures should be of timber sleepers, or sandstone boulders, and what drainage is proposed for the northern area if the concrete slab remains.
Landscape evidence was given by Ms S Read retained by the Applicant and Ms C Mackenzie retained by the Council, in two joint reports (prepared jointly with the town planners). Ms Read and Ms Mackenzie also gave oral evidence. The Applicant retained Mr I Stewart and the Council retained Ms D Laidlaw as their planning experts. The planners were not required to give oral evidence.
Ms Read said in the supplementary joint report: "17. The owner prefers to be able to form the above-mentioned soil depth with timber sleepers for several reasons: - Ease of construction and installation - planters can be built off site and put into place without heavy machinery - More cost effective - Ease of replacement from a maintenance perspective - Timber sleepers will not be visible, plants proposed will grow over all wall types 18. The use of timber planters is acceptable in my opinion. 19. In my opinion there is no increased stormwater as all stormwater will continue to drain to the existing stormwater system. The stormwater is currently controlled and discharged from the site and no changes are considered necessary."
In her oral evidence Ms Read said that beneath the slab there was rock and that there was no evidence that beneath the slab there were any pockets of soil or fissures in the rock, each of which would assist in growth of vegetation and drainage. When shown photos of the vegetation which existed prior to the construction of the concrete slab Ms Read was asked whether she accepted that given the vegetation which had existed there may well be soil and rock fissures beneath the slab. Mr Read responded: "There may well be but there's no evidence."
Ms Read was unable to identify the proposed drainage system for the northern area but was confident the stormwater drainage could be dealt with appropriately.
Mr Stewart in the supplementary joint report supported Ms Read's opinion, and made two additional points: "[23] …The retention of the paved concrete surface will avoid disposal of this material to landfill. [24] It is not uncommon in contemporary garden design to have a mix of timber sleeper and sandstone retaining walls and the use of these complementary materials is an acceptable outcome."
Ms Mackenzie said in the supplementary joint report that the retention of the concrete surfaces will discourage the connection of plant root growth with underlying soil and the benefits to healthy plant growth this connection provides, and prevent infiltration of rainfall to recharge the water table and increases stormwater runoff into the drainage system. She was of the view that there were more than likely to be soil pockets and rock fissures beneath the concrete slab. Ms Mackenzie pointed to Objective (e) and Control (g) of clause 3.3.4 of HHDCP 2013 which relevantly provide: "Objectives … (e) Protect existing drainage systems from increased stormwater runoff Controls … (g) The extent of hard paving and outdoor structures should be minimised to avoid concentration of surface water into drainage systems …"
Ms Mackenzie also opined that the proposed timber treatment of the raised planting is not consistent with the original sandstone removed from the site. The timber planter will be out of character with the original topography and sandstone outcroppings that were to be retained, she said. Ms Mackenzie's preferred form of retaining wall is comprised of "un-dimensioned sandstone boulders". This less formal landscape treatment she said would also be not as prominent and visually intrusive as the timber sleepers proposed.
Ms Laidlaw agreed with Ms Mackenzie and reiterated her concern about the lack of information about the location of proposed drainage infrastructure.
The Applicant submitted that Ms Read's opinion should be accepted. It was submitted in relation to the retaining wall construction that it was largely a matter of taste and that the use of timber for retaining walls was evident to the north of the site. The drainage detail could be a matter of condition it was submitted.
The Council submitted that the northern area was not "landscaped area" as defined if the concrete slab was retained because it was a structure. In terms of the objectives of cl 6.9 of the HHLEP 2012, the Council submitted that the slab should be removed to minimise discharge of stormwater from the site, and that the sandstone boulders more properly reflected the appropriate character of the area, especially the immediate area to the north of the site, in attempting to retain natural features as promoted by HHDCP 2013.
Mrs Diab adopted the submissions of the Council.
I agree with the evidence of Ms Mackenzie and reject the evidence of Ms Read and Mr Stewart.
The previous existence of vegetation in an area now covered in concrete is an indication that below the recently constructed concrete slab there are pockets of soil and rock fissures. Whilst Ms Read described the vegetation shown in the photo prior to the construction of the slab as weeds it was nevertheless vegetation which required some soil and space below ground in which to grow its roots. Further, it is well accepted that even where there is substantial sandstone below the surface it is not uniform in presentation. There are variations in height and width, there are likely cracks, and sandstone does not appear naturally as if it is a perfectly formed block.
It is not correct that "there is no evidence" about what is beneath the concrete slab. There is photographic evidence that there was vegetation which existed prior to the construction of the concrete slab from which I readily draw the inference that there are likely to be both soil pockets and rock fissures beneath the slab.
That being the case there are two significant advantages in the removal of the concrete slab. First, as Ms Mackenzie says, there is the opportunity for improved root growth and healthier vegetation. Second, the hard surface and stormwater runoff is minimised allowing the subsurface to recharge the water table, an objective and control in HHDCP 2013.
The concrete slab interferes with the natural processes which would otherwise occur and for no good reason. Its existence is no reason for its retention. The appropriate environmental outcome is that the slab be removed. The vegetation is better served, the subsurface is able to be recharged and there is no adding to the collection of stormwater. Whilst the provisions of HHDCP 2013 are not of themselves determinative, the retention of the concrete slab does not achieve the objectives of the provisions of HHDCP 2013 and so its terms should be adhered to in this respect.
It is not relevant, nor do I accept, Mr Stewart's opinion that it is better to avoid disposal of the concrete slab. First, it is well known that concrete can be, and is regularly, recycled after crushing, rather than used as land fill. Second, the Applicant should obtain no benefit from having carried out the unlawful work of constructing the concrete slab; to retain it for the reason advanced by Mr Stewart is tantamount to taking advantage of its (unlawful) existence.
The failure to identify the arrangements for drainage are also troubling. There is no doubt that the northern area needs to have drainage infrastructure if the slab remained, and the disposal point would need to be above the slab. This is not a matter, in my opinion, that could be dealt with by condition. Whilst drainage detail is frequently left to conditions, that is only when a concept plan identifies the drainage infrastructure, including its location. Here, in my opinion at the very least the location of the disposal point(s) have been identified and an indication of how the drainage connects to the existing stormwater system.
In any event the point is moot because the slab is not to be retained.
The personal preference of an applicant for approval can play a role in the assessment process when the environmental impacts of an aspect of a proposal are the same. But where those impacts are not the same then in my opinion personal preference plays no role. Whether the Applicant prefers timber sleepers, or whether they are easier and cheaper to install is not to the point in this case.
There is no doubt in my mind that the informal sandstone boulder arrangement suggested by Ms Mackenzie much better reflects the natural character and is a better attempt to reflect what existed prior to the unlawful work. The location of this landscaped area is far better served by a natural sandstone presentation and the more formal timber sleeper retaining structure proposed by the Applicant would be out of character adjacent to the rock wall adjacent.
Although there are one or more timber retaining walls to the north, they are not characteristic and not reflective of the natural features of the land. Their existence does not justify the timber sleeper proposal by the Applicant.
The use of sandstone is also consistent with the objectives of the landscape provisions of HHLEP 2012 in cl 6.9 and the provisions of HHDCP 2013 referred to in [74] and [87] above.
My conclusion in respect of the northern area then is that the concrete slab should be removed, and the retaining structures be of sandstone boulder construction.
One consequence of the removal of the concrete slab in the northern area is that the area is properly to be counted as landscaped area for the purposes of HHLEP 2012. The landscaped area is approximately 51% of the site area, which is less than the minimum of 60% in cl 6.9(2)(a) of HHLEP 2012 but more than the minimum 40% if the exceptions in cl 6.9(4) apply. As I understand the parties' positions it is accepted that the exceptions apply (allow pathways, patios, terraces and pool) and the issue is whether the objectives of cl 6.9 are met in order to obtain the benefit of the reduced requirement in cl 6.9(4) of HHLEP 2012.

Western boundary landscaping

At the western boundary of the site the dwelling house is set back from about 1.3m to 2.5m and the garage to the north of the house has a consistent setback of about 1.3m. Adjacent to the dwelling house is landscaping proposed generally consistent with the orders made in the Council's Class 4 proceedings (the 2017 orders), but further extended to the north. There is no objection by the Respondents to that aspect of the proposal on the western boundary.
The point at which the parties depart is in the location of the unlawfully constructed stairs and landing which is generally in the area between the western end of the garage and the western boundary. The Applicant proposes to retain the landing and stairs whereas the Respondents say that the stairs and landing should be demolished, and the area landscaped.
The Consent provided for external stairs at the eastern end of the site enabling access to the lower parts of the site. Those stairs have not been constructed. The Consent provided for landscaping between the dwelling house/garage and the western boundary.
The Applicant proposes native Lilly Pilly and a Wonga Wonga vine in planter beds along the boundary adjacent to the garage. It is accepted that, with some clarification of the dimensions of the planters that the vegetation can be supported in that area.
Mr Stewart says that the western stair is a service corridor for gardening and maintenance purposes and is not prominently visible from any public place or neighbouring property. He says that the landscaping proposed will be sufficient to satisfy the objectives of subcll 6.9(a) and (b) of HHLEP 2012, the dwelling house being surrounded by gardens and its appearance is sufficiently softened. The proposed timber retaining structure was appropriate for the same reasons as the western area according to Mr Stewart.
Ms Laidlaw says the access is narrow and therefore impractical in any event. Even without the unbuilt stairs, access can be gained to the lower area through the garage and use of the car lift in the garage. She says that the proposed landscaping, particularly where there is only the Wonga Wonga vine, does not contribute in any meaningful way as a landscape element providing a garden setting for the dwelling house or garage. The increased height should be offset by more landscaping not less than originally intended in the Consent.
The Applicant submitted that the landscaping proposed by the Council would be barely visible in any event and that the Applicant's outcome is preferred to the steps being constructed at the eastern end of the site nearer to the public domain as provided in the Consent.
The Respondents submitted that the evidence of Ms Laidlaw is to be preferred.
The practicality of the access for workers is to my mind of little moment. Access will be narrow in parts, but it is simply a form of access to the lower parts of the site without the need to enter the garage or the dwelling house. Whether there is another form of access is not so important, nor a point of comparison. The Respondents were simply pointing out that if the upper area was landscaped as they submit then there remains access for workers to the lower parts of the site by entering the garage but not the dwelling house.
And I do not regard my task to ask whether the proposed outcome is better or worse than the development approved by the Consent. There is no obligation on an applicant to establish that the development as proposed to be modified is a superior outcome to that which has been approved. The question is having regard to relevant considerations what is proposed is acceptable.
It may be finely balanced, but I am of the view that the Applicant's proposed treatment in the western setback is acceptable, subject to one matter to which I will return. The area in the western setback is barely visible, if at all, from the public domain. Little is visible from the neighbouring property to the west, Number 29. The viewer in any event, if able to see the area, will perceive landscaping of various widths down the side of the house and garage, with the backdrop of Parramatta River beyond. The landscaping runs down the entirety of the western boundary and provides a landscaped setting in conjunction with the other landscaping of the site.
Whilst the objective in cl 6.9(1)(a) is to ensure that dwelling houses are surrounded and separated by individual gardens, the objective must be read in the context of the whole of the clause. The objective in cl 6.9(1)(b) includes to provide sufficient space for trees and plantings around every building. This does not mean that there must be a "garden" on each side of a building, but rather there should be landscaping around the building, which necessarily will be of various widths and types supporting differing vegetation. It would never be suggested that major trees should be planted down the side boundary of every dwelling house where the setback is only 1m-2m in accordance with HHDCP 2013. Overall, the dwelling house should be in a garden setting, especially where visible from the public domain and, though perhaps to a lesser extent, from the private domain.
To the south of the dwelling house fronting Parramatta River is an area of some 600 sqm of landscaped area. To the north, admittedly across the driveway access to Number 29 is about 90 sqm of landscaped area. The side boundary to the east has boundary planting and there is additional planting in planter boxes on two levels immediately to the south of the driveway to Number 29 along the Right of Carriageway, but north of the driveway to the site, and again more landscaping in planter boxes further to the south at the lower level.
The landscaping proposed on the west is sufficient to complete what is a fairly typical approach to landscaping dwelling houses - larger areas of vegetation to the front and rear and narrow landscaping to the sides. In my view it meets the objectives of cl 6.9 HHLEP 2012.
The consequence of that finding is that the western landscaping is acceptable, and the stairs and landing do not have to be demolished to make way for additional landscaping. However, some demolition may be required having regard to my finding about the building over the easement for services, but that is a question for the Applicant (see [149] below) and potentially others at another time.
This conclusion is based upon the heights of the dwelling and garage as built, with the increased height and so I accept that the increased height is acceptable.

Encroachment into easement for services and right of carriageway

The proprietor for the time being of Number 29 has the benefit of an Easement for Support, and Easement for Services and a Right of Carriageway over part of the site. It shown at [12] above. Of relevance are the two easements which co-exist over the same land. For convenience I shall refer to them collectively as the Easements for Services.
In the Diab proceedings his Honour Robson J found that the Consent did not authorise any work or construction over the land the subject of the Easements for Services. Orders (1)(c) and (1)(d) of the Robson orders set out the extent of the incursion of construction into the Easements for Services. To repeat for convenience, in summary:

The floors and walls of the garage and storage room intrude into the Easements by between 0.72m and 0.89m.
The roof and eaves of the garage intrude by about 100mm into the Right of Carriageway.

To those findings should be added that the upper landing and steps at the western end of the site have been constructed in the Easement for Services.
Each of the Easements and Right of Carriageway were created by the registration of Deposited Plan 840284 and accompanying instrument pursuant to s 88B of the Conveyancing Act 1919. The real concern of the Respondents related to the Easement for Services, the terms of which are: "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof which the right shall be capable of enjoyment, and every person authorised by him, from time to time and at all times to lay out, construct, erect, install, carry, maintain and use through, above, on and under that part of the lot herein indicated as the servient tenement all pipes, conduits, cables, poles, wires or other equipment and materials (hereinafter referred to as the "equipment") necessary to provide and carry all or any sewerage, gas, electricity, Telecom or other domestic services to and from the dominant tenement provided that the equipment shall be laid in such position so as to cause as little interference as possible with access, [sic] to enter upon the servient tenement and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining or renewing such pipe line or any part thereof and for any of the aforesaid purposes to open the soil of the servient tenement to such extent as may be necessary provided that the grantee and the persons authorised by him will take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and will restore the surface as nearly as practicable to its original condition."
The dominant tenement is the property with the benefit of the Easement - Number 29. The servient tenement is the property burdened by the Easement - the site.
The Applicant does not propose to take any measures to reduce the incursion but proposes as a condition of consent that the easement be widened by 1.5m (in addition to its present width of 1.5m) so that any new services can be comfortably accommodated away from the garage and storage room.
The Council articulated the issue about the incursions in the following way in its Revised Summary of Contentions in Dispute tendered on the final day of hearing: "14. The Council says that it would be inappropriate to approve structures over the easement for services and that it is contrary to the terms of the easement. 15. The applicant proposes to widen the easement for services/support 1500mm into the right of carriageway. That offer does not resolve the issue at hand. 16. The applicant has not provided details of all services presently in the easement including landline/telephone/NBN and the conduit for electricity, the depth of those services and whether there are any requirements of the service providers as to clearances from structures. 17. The offer to extend the easement apparently does not include an offer to relocate the services or any certainty that in the event of a failure of services (including gas, electricity and sewer) that the structures on the land would not need to be demolished and/or damaged. 18. The offer to widen the easement does not protect the rights to use the carriageway. Any works requiring excavation of the extended easement would interfere with vehicular access to 29 Nelson Parade. Repair/patching of the concrete driveway surface would be unsightly."
The Applicant's planner, Mr Stewart, in the first joint report said that the additional 1.5m wide easement will provide ample space for any future requirements within an easily accessible area. He said it was a practical arrangement that will resolve the Respondents' concerns about the current encroachment.
The Respondents' planner Ms Laidlaw said that the additional easement was not a reasonable proposition because the services were not to be relocated and there were practical difficulties if the Easement for Services were within the driveway area. She agreed that the effective duplication of the existing easement could as a matter of fact facilitate the provision of services to Number 29.
The Applicant submitted that the question for the Court was having regard to s 4.15 of the EP&A Act was whether there was adequate provision for services to Number 29. There is adequate provision, it was submitted, if there is no substantial interference with the use of the Easement. That is, if there is no actionable breach of the terms of the Easement then the incursions into the Easement can be approved.
The Applicant said that as a matter of fact services have not been interrupted, there is an empty conduit available within the land the subject of the Easements for Services and the easement is to be widened by 1.5m. The services themselves, it was submitted, are not beneath any construction and there is no substantial interference with the use of the Easement.
The Applicant does not rely upon cl 1.9A of HHLEP 2012 which provides that "any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose". It was accepted by all parties that neither the Easements for Services nor the Right of Carriageway falls within the description of an agreement, covenant or other similar instrument which restricts the carrying out of development.
Cases such as Finlayson v Campbell (1997) 8 BPR 97675 and Middleton and Others v Arthur (2002) 11 BPR 97972; [2002] NSWSC 627 were cited by the Applicant as examples of the application of the principle that a breach of the terms of an easement is only actionable if the breach amounts to a nuisance, being a substantial interference with the easement. Enforcement of an easement is a matter of private property law.
The Council submitted that the terms of the Easement are broad and that the Easement is a relevant consideration both in terms of assessing the likely impacts of the development (s 4.15(10(b) of the EP&A Act) and in considering the public interest (s 4.15(1)(e) of the EP&A Act). To that can be added taking into account any submissions made in accordance with this Act or the regulations (s 4.15(1)(d) of the EP&A Act), given that Mrs Diab made submissions to the Council. The Council reminded the Court that the Easements and Right of Carriageway were not property rights which could be affected by the operation of cl 1.9A of HHLEP 2012 and therefore no assumption about a reluctance to inhibit development should be made.
The Council further submitted that the debate involved a "battle of conveniences". It was inconvenient for the Applicant to remove the works which are the incursion. Mrs Diab has a broad right and not all potential uses of the Easement are presently foreseeable, there was an additional burden on Mrs Diab to potentially excavate through or demolish some of the Applicant's works to access the services for purposes such as repair or replacement and then Mrs Diab would have to restore the Applicant's land by rebuilding those works. There should be no impingement on the neighbouring property rights the Council submitted.
Mrs Diab adopted the Council submissions but made some additional submissions. Mrs Diab submitted that the test is not whether there is a substantial interference with the Easement, but that if the interference is arguably tortious then that is enough to deny the Applicant its application. That is, it must be arguable that the interference amounts to the tort of nuisance because it is arguable that there is a substantial interference with the Easement.
Mrs Diab reminded the Court that Robson J said that no works over the easement were authorised and that nothing should be built over the Easement. It was submitted that there was a serious permanent structure which blocked at least half of the width of the Easement where the stairs and landing had been constructed.
Mrs Diab referred to Hare v Van Brugge [2013] NSWCA 74 in which Barrett JA said, with the agreement of Macfarlan JA and Tobias AJA at [25]: It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights … in a way that interferes unreasonably with the other's rights.
Mrs Diab emphasised the reciprocity of obligations created by the Easements for Services.
In the consideration of this issue it is worthwhile revisiting some observations of Robson J in Diab No.3. at [88] his Honour said: "88. Although the approved plans are not clear, possibly due to their age and the quality of the reproduction now before the Court, from my perusal of the plans and, in particular, the location of the easements, I am of the view that no part of the floor and the walls of the storage room is authorised to be constructed in the Easements for Services. Further, I find, as the applicant submits, that it would be expected that a substantial building structure would not be constructed within Easements for Services, which may be of importance to the applicant's property. Despite this finding, whether the fact that construction that has encroached into the Easements for Services has any practical or deleterious effect upon the proper use of any of the Easements for Services is not a matter for present consideration." (Emphasis added)
His Honour, correctly I most respectfully say, distinguished between a matter of planning law and the enforcement of a property right. Robson J was not dealing with the present question at all, but observed that ordinarily, in the exercise of a planning discretion, one would not expect a consent authority to approve the construction of substantial building structure within an Easement.
I do not intend to suggest that what fell from his Honour is a statement of principle to be applied in all cases. I simply observe that his Honour , in considering the task he was undertaking, recognised two different questions - one of planning and the other of the exercise of or interference with property rights.
The distinction between planning law and property law is important. The task for the Court is to consider in relation to this aspect whether having regard to:

the impacts of the development,
the submissions from Mrs Diab, and
the public interest the modification application should be approved, specifically building within the Easement.

It is necessary also to bear in mind that the modification application must be considered as if the unlawful work has not been carried out. That is, there is a counterfactual situation at the foundation of the assessment. The question can be posed in the way referred to by Robson J in Diab No. 3 - would I approve a modification which provides for a substantial building structure to be built within the Easement.
I do not accept that the test for the impact of the development is whether or not there is a substantial interference with the Easement. That is the question to determine whether the breach of an easement is actionable. Such a test cannot simply be applied from property law to planning law. The question before the Court is more complex.
Similarly, I do not accept Mrs Diab's submission that an impact is unreasonable if is arguable that there is an actionable breach of the Easement, largely for the same reason. One cannot simply apply a test from one body of law to a planning assessment pursuant to the EP&A Act.
In short, to adopt a test, or a principle, runs the risk of failing to apply the relevant provisions of the EP&A Act. The question is stated simply - having regard to the relevant considerations commanded by the EP&A Act, should a development which is an incursion to an easement be approved.
In respect of the garage floor and walls and the landing and steps as presently constructed I do not consider that the modification application should be approved insofar as it would approve those incursions for the following reasons:

The provisions of cl 1.9A of HHLEP 2012 do not apply and so there is no question of ignoring the provisions of the Easement so as to enable development. This does not mean there is an inference or starting point that there should be no building over an easement but that HHLEP 2012 is neutral rather than favouring development over the property rights of an easement.
The garage is a substantial building, not of lightweight construction.
There is no certainty as to the precise location and depth of all the services presently within the Easement.
There is a potential for requiring access to the services, which is not a fanciful potential, and which may be impeded by the incursion.
There is the potential, again which is not fanciful, that access could be required at a location requiring some demolition and "making good" by the dominant tenement. It is an unreasonable obligation to have to rebuild a structure of substance built within the Easement for Services.
The notion of "services" which are permitted is unconstrained and future needs are unknown, so that approval of an incursion may limit the exercise of property rights in the future.
The additional easement proposed ought not be forced on a landowner by the application of planning law, requiring the landowner to potentially move services or install new services causing the incurring of cost and the potential disruption to the use of the driveway.

The impacts of the development are such that there is an interference with the property rights of Number 29, because of the real potential for substantial interference with the Easement. Mrs Diab's submissions make it plain that she has a legitimate concern about her property rights, and I give her submissions considerable weight.
Planning is, amongst other things, concerned with the orderly and economic use of land. That is also an element of the public interest. It is hardly orderly planning to approve a substantial building which infringes upon a valuable property right and has the potential, which is not fanciful, to cause a substantial interference in the future. I agree with the observation made by Robson J in Diab No. 3: it would not be expected that a substantial building structure be constructed within the Easement. It would not be in the public interest so to do.
This means that I will not approve the infringing elements of the garage, storeroom and stairs as part of this modification application. The qualification to which I referred at [117] above is this. I have determined that the proposed landscaping on the western side of the dwelling house is acceptable on the assumption that the stairs and landing constructed otherwise than in accordance with the Consent remain. The stairs and landing are not to be approved as part of this Modification Application, because of their construction across the Easement, not because of the impact on the landscape context of the site. Accordingly, I observe, and this is a matter for the Applicant, that it may propose a lightweight construction of stairs and landing in that location which do not provide the imposition on the Easement which the present stairs and landing do. I regard it as within my power to impose a condition which would enable the construction of lightweight stairs and landing in the location of the present stairs and landing.

Conclusion

It was agreed between the parties and accepted by the Court that the final form of conditions (and plans if necessary) would await this judgment and final orders would only be made after any amended plans and conditions were provided.
Accordingly, it is necessary, in order to give effect to this judgment that the Applicant prepare amended plans and conditions which should be the subject of agreement between the parties. It is obviously not within my power to order demolition of any unlawful work. I encourage the parties to discuss the consequences of my reasons and attempt to agree on the final form of development rather than incur further costs in needing to resume the Diab proceedings.
The amended plans and conditions will need to address at the very least the following matters: 1. The landscaping in the northern area. 2. The western treatment of the stairs and landing. 3. The garage and storeroom. 4. The privacy treatment of the windows to the western boundary.
Given the potential for disagreement about conditions I will grant the parties liberty to apply on 2 days' notice.
I make the following directions: 1. Direct the Applicant to file agreed amended plans and conditions within 21 days; 2. Grant the parties liberty to apply on two days' notice.

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: 06 July 2021

(2000) 111 LGERA 299

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