First issue: was the easement reasonably necessary?
24The trial judge, at [30], held that the evidence established beyond argument that the proposed easement was the only realistic solution available for the effective development of the land for the purposes of a dwelling. His Honour also noted that Lot 1 could not be developed for the benefit of the community because it was private land with the consequence that, without the easement, there would be no effective use or development of the land in accordance with its zoning.
25His Honour stated, at [31], that in coming to that conclusion, he had taken into account the burden that the easement would impose upon Lots 7 and 13.
26His Honour, at [32], noted that there was no evidence that the loss of any of the land on Lots 7 and 13 that would be burdened by the easement would have any discernible adverse effect on the public use of the surrounding area. In this regard, his Honour noted the City Development Committee had reported that the general area in which the proposed easement was located was already well supplied with existing open space. In this regard, his Honour expressed the opinion, at [32], that:
"A commonsense and objective evaluation of the likely impact of the driveway over these lots supports the finding that any impediment to the public's use and enjoyment of the community land would be minimal."
27Accordingly, his Honour, applying the principles in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; 171 LGERA 286 at [72], [76]-[78], [82]-[83] found, at [31], that the easement was reasonably necessary for the effective use and development of Lot 1.
28In Rainbowforce Preston CJ of LEC summarised the principles governing the requirement of "reasonable necessity" in s 88K, relevantly, as follows:
"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' ...
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] NSWSC 1045; (1999) 9 BPR 17,303 at [42]; Woodland v Manly Municipal Council at [12], 19; Khattar v Wiese at [27].
78 ... 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:
'... 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.
...
82 ... 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; 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. 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.
83 ... 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 ..."
29The meaning of "reasonably necessary" in s 88K(1) was considered by this Court in ING Bank Australia Ltd v O'Shea [2010] NSWCA 71; 14 BPR 27,317 where Giles JA (Campbell JA agreeing) stated:
"48 'Reasonably necessary' is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity.
49 A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as 'convenient'. Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement." (emphasis added)
30Young JA's separate reasons reached the same conclusion: see at [146].
31The approach of the Court in O'Shea, as well as the remarks of Brereton J in Khattar v Wiese [2005] NSWSC 1014; 12 BPR 23,235 (cited in Rainbowforce at [77]) were approved by this Court in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; 16 BPR 31,257, where the Court concluded, at [117]:
"... the question of whether the easement was reasonably necessary for the effective use and development of the [dominant tenement] needs to be considered having regard to the effect it would have on the enjoyment of the [servient tenement] and on the property rights of the owners of that land."
32The question raised on the appeal was whether the trial judge erred in finding that there was minimal adverse impact on the Council's land by reference to the significant open space available for use by the members of the public adjacent to Lots 7 and 13, rather than confining his consideration to Lots 7 and 13.
33The Council accepted that there was no reasonably available alternative access to the respondent's land. It submitted, however, that in accordance with these authorities, "reasonable necessity" for the purposes of s 88K(1) was to be determined objectively and required that all of the circumstances, including the effect on the servient tenement, be considered. In particular, the Council submitted that s 88K(1) drew attention to the effect of the grant of an easement on the land rather than on the owner, so it was it was appropriate to have regard to the impact on the servient tenement and not by reference to the impact on other land.
34The Council contended that the primary judge, therefore, erred in that he considered the effect of the grant of the easement not only by reference to the impact on Lots 7 and 13, but also by having regard to the effect of the grant of the easement on the surrounding parkland.
35The Council accepted that the easement was over a relatively small portion of Lot 13 and that its impact on that Lot was relatively small. It submitted, however, that the grant of the easement over Lot 7 would cause it to suffer the total loss of that Lot. The Council submitted that in the circumstances, contrary to his Honour's finding, the combined impact on the servient tenements was significant, and certainly proportionately more so than the effect on the larger "surrounding area" taken into account by the primary judge.
36In support of its submission that the grant of the easement would result in the total loss of Lot 7, the Council pointed out that the design of the proposed driveway was such as to secure to the respondent the sole use of Lot 7, because the proposed driveway was to be delineated by bollards along portion of its length. In addition, a small wall along portion of the proposed driveway was a feature of its design. However, the construction of bollards and a fence was not a condition of the grant of the easement. Rather, those features were safety and design measures proposed by the respondent's traffic expert for the construction of the driveway over the easement.
37The Council further submitted that the primary judge erred, at [33], in considering as a relevant matter, that any adverse impact by the grant of the easement would be limited, because the final design of the driveway would have to be approved by the appellant as part of the respondent's development application for its construction. The Council contended that this consideration overlooked the fact that the whole of Lot 7 would be lost to the respondent if the easement was granted.
38The Council rejected any suggestion that it been the author of its own problem in having zoned a landlocked parcel of land as residential. It submitted that the residential zoning had, in effect, been a default zoning, in that the other zoning options available to the Council, viz industrial or commercial, appeared less appropriate in an otherwise residential area with significant open space. The Council argued that although, in the s 69 Report provided to the Minister in support of the residential zoning, attention had been drawn to the need for vehicular access to the land as a condition of consent to the construction of a dwelling on the property, that did not evidence an intention on the part of Council for Lot 1 to be used as a stand-alone dwelling.
39Although the heart of the Council's submission was that the grant of the easement would cause the effective loss of use of the whole of Lot 7, the evidence did not support that submission. The evidence was that Lot 7 was presently used by members of the public to gain access to the greater open space area. In the course of argument on the appeal, the Council accepted that, assuming a driveway was built over Lot 7, members of the public could still, as a matter of law, traverse Lot 7. In other words, Lot 7 could still be used by members of the public in the same way and for the same purposes as it is presently used.
40The only impediment to its use would be the requirement for members of the public to move as and when a motor vehicle was driven along the driveway. However, an easement, by its very nature, involves a shared use, and therefore occasional inconvenience to the owner of the servient tenement and those lawfully entitled to use it. In the end, the Council's submission was no more than that, having regard to the driveway proposed to be built over the easement and, in particular, its incorporated safety design features, members of the public would be discouraged from using Lot 7.
41That is a possibility. However, the design of the driveway is ultimately a matter for the Council. In any event, the evidence revealed very little active use of Lot 7 at present and it is possible that with the easement there could be increased use of Lot 7, with a concreted surface being more amenable to use for small children's bikes, prams and the like, than a grassed area, as is the position at present.
42In my opinion, his Honour did not err, in the particular and unusual circumstances of this case, in taking into account the surrounding community land in determining whether the grant of the easement was reasonably necessary. Lot 7 is a "remnant lot" of approximately 50 m2 in area. It is easy to see that it could appropriately be amalgamated or consolidated with Lot 13. In those circumstances, it is artificial to consider the burden on Lot 7 independently, since what remains of Lot 7 is a very small part, and because Lots 7 and 13 together form part of a larger area of open space, used as parkland. It is not necessary in this appeal to address broader questions which might arise, for example, if a small lot burdened by a proposed statutory easement were in separate ownership, or if a subdivision application had been made prior to the application under s 88K.
43But even if there was error, the outcome would be no different. On the evidence, there was only a low level of use of Lot 7 for the purposes of gaining access to the greater parkland, including to the cycleway/walkway. The grant of the easement over Lot 7 will not seriously impede the level of use as it is as present. Members of the public will still be able to traverse Lot 7 to gain access to the cycleway/walkway and open space areas to the same degree as they do at the moment, save for very short periods, when a vehicle is being driven along the driveway, either to or from any residence constructed on Lot 1. To the extent that any safety features are required to be incorporated into the construction of the driveway, there was no evidence that those features would impede in any way, let alone any significant way, what is, as I have said, low level use of Lot 7.
44In my opinion, his Honour's conclusion that the grant of the easement was reasonably necessary was not only open on the evidence, it was the only conclusion available on the evidence.