Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580 | Case summary

Medium Neutral Citation: Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580

Hearing dates: 4 to 6 March 2025

Date of orders: 06 June 2025

Decision date: 06 June 2025

Jurisdiction: Equity - Real Property List

Before: Pike J

Decision: (1) The further amended statement of claim be dismissed.
(2) The plaintiff pay the first defendant’s costs of the proceedings.
(3) If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.

Catchwords: ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle
LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility
LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation
LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation
ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument

Legislation Cited: Civil Procedure Act 2005 (NSW), s 149E
Conveyancing Act 1919 (NSW), ss 88B, 88K
Environmental Planning and Assessment Act 1979 (NSW), ss 3.16, 4.15 and 4.16
Land and Environment Court Act 1979 (NSW), s 25B
Local Government Act 1993 (NSW), ss 377 and 378
Real Property Act 1900 (NSW), ss 3 and 42

Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Aldridge v Wright [1929] 2 KB 117
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144
Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86
Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
JEA Holdings (Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255
Kebewar Pty Ltd v Hawkin (1987) 9 NSWLR 738
Ling v Pang [2023] NSWCA 112
Martinus Rail Pty Ltd v Qube Re Services (No 2) Pty Ltd [2025] NSWCA 49
McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Nahata v Robertson [2023] NSWSC 642
Phillips v Low (1892) 1 Ch 47
Pirrottina v Pirrottina [2025] NSWCA 55
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293
Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191
Schroders Australia Property Management Ltd v Shoalhaven Shire Council [2001] NSWCA 74
Sisic v Rockdale City Council (2007) 158 LGERA 170; [2007] NSWLEC 687
Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76
Swansborough v Coventry (1832) 9 Bind 305
Tenant v Goldwin (1704) 2 Ld Raym 1090
Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146
Warkworth Mining Ltd v Bulfa Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485
Wheeldon v Burrows (1879) 12 Ch D 31
Wilcox v Richardson (1997) 43 NSWLR 4
Williams v State Transit Authority (NSW) (2004) 60 NSWLR 286; [2004] NSWCA 179

Texts Cited: Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
F Burns, ‘Implied Easements and the Integrity of the Torrens System’ (2009) 21 Bond LR 1
LB Moses and C Sherry, ‘Unregistered access: Wheeldon v Burrows easements and easements by prescription over Torrens land’ (2007) 81 ALJ 491
M McGuire, ‘A New South Wales perspective of implied and prescriptive easements and the rights in personam exception to indefeasibility of title’ (2006) Australian Property Law Journal 228

Category: Principal judgment

Parties: Vashti Elizabeth Conway (plaintiff)
Leeroy Property Investments Pty Ltd (first defendant)
Tweed Shire Council (second defendant)

Representation: Counsel:
A Fernon SC / T March (plaintiff)
M Seymour SC / L Nurpuri (first defendant)
Solicitors:
Yates Beaggi Lawyers (plaintiff)
Attwood Marshall Lawyers (first defendant)
Hall and Willcox (second defendant)

File Number(s): 2023/00277334

Publication restriction: Nil

JUDGMENT

These proceedings concern certain parcels of valuable beachfront land at Casuarina – a suburb of the far northern New South Wales coast within the Local Government Area of the Tweed Shire Council (Council).
The plaintiff, Vashti Elizabeth Conway (Ms Conway) is the registered proprietor of Lot 52 in DP X, commonly known as X Harper Court, Casuarina (Lot 52/Conway Land).
The first defendant, Leeroy Property Investments Pty Ltd (Leeroy) is the registered proprietor of the two parcels adjoining the Conway Land to the north comprising of:

(a) Lot 50 in DP X (Lot 50) – commonly known as X Beason Court, Casuarina; and (b) Lot 51 in DP X (Lot 51) – commonly known as X Harper Court, Casuarina – together Lots 50 and 51 will be referred to as the Leeroy Land.

Set out below is an aerial photograph of the relevant lots (with the relevant lot numbers superimposed):
On 14 June 2022, Council granted development consent to Development Application DA 20/1021 (the Consent) under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), permitting construction and use of a dwelling on the Leeroy Land.
Ms Conway then commenced proceedings in the Land and Environment Court raising three matters:

(a) a declaration that the Consent was invalid and of no effect; (b) a declaration that on the transfer of Lot 50 and Lot 51 to Leeroy, Lot 51 was burdened by an implied easement in favour of Lot 52 to provide adequate solar access to the principal private open space [1] centrally located in the dwelling constructed on Lot 52 (i****mplied easement); and (c) an order imposing an easement over Lot 51 pursuant to s 88K of the Conveyancing Act 1919 (NSW) in favour of Lot 52 to provide adequate solar access to the principle private open space centrally located in the dwelling constructed on Lot 52 (s 88K easement).

Because there was a doubt about the jurisdiction of the Land and Environment Court to hear and determine the latter two claims, the proceedings were transferred to the New South Wales Supreme Court: see Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86. Pursuant to s 149E of the Civil Procedure Act 2005 (NSW), the Supreme Court has all of the jurisdiction of the Land and Environment Court.
On 4 September 2023, Council filed a submitting appearance, save as to costs.
Ms Conway continued to advance the three claims. The proceedings were heard on 4 to 6 March 2025. Mr A Fernon SC and Mr T March appeared for Ms Conway. Mr M Seymour SC and Ms L Nurpuri appeared for Leeroy. Ms Conway was given leave to rely on a further amended statement of claim by leave granted, by consent, after the conclusion of the hearing.
For the reasons set out below, each of Ms Conway’s claims should be dismissed:

(a) the decision of Council was not vitiated by any jurisdictional error; (b) the claim of an implied easement fails for want of the necessary undertaking by Mr Dunlop on behalf of Leeroy to respect Ms Conway’s solar access and natural ventilation so as to amount to an in personam exception to indefeasibility; and (c) the claim that the Court should impose an easement under s 88K of the Conveyancing Act 1919 (NSW) fails at several levels.

Approach to fact finding, the key witnesses and their credibility

The two principal witnesses were Ms Conway and Mr Sam Dunlop who is the principal of Leeroy (Mr Dunlop). Ms Conway made three affidavits dated 2 February 2024, 23 May 2024 and 3 March 2025 (the day before the hearing). Mr Dunlop made an affidavit dated 3 July 2024. Each was extensively cross-examined. I formed the view that each was doing their best to assist the Court and give their evidence in an honest and forthright manner.
Ms Conway, who is a solicitor who until recently held a practising certificate, was at times combative in the witness box but that was more a product of the nature of the questions being asked of her rather than bearing adversely on her credit. The major area where Ms Conway’s evidence was seriously challenged concerned the evidence contained in an affidavit made the day before the hearing as to what was allegedly said by Mr Dunlop to Ms Conway at a meeting that took place on Lot 52 on 12 June 2020. I deal with this evidence below when I deal with the disputed conversation. The circumstances in which this evidence was given, including delay, and the surrounding objective circumstances and probabilities lead me not to accept this evidence.
Mr Dunlop, on the other hand, was occasionally prone to giving self-serving answers that he would reasonably quickly resile from when pressed. For the most part, I accept his evidence including in relation to what was said on 12 June 2020.
In considering the credibility of Ms Conway and Mr Dunlop and more generally the factual findings I should make, I am conscious that a number of the most relevant events – including the alleged conversations involving Ms Lorna Savage (Ms Savage), Ms Conway and Mr Dunlop – occurred in 2020, almost five years prior to the hearing.
In Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 at [8]-[11], I summarised the well-known principles in the following terms:

[8] … I consider below whether any of the representations were made. In so doing, I bear in mind the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 to the effect that:

(a) it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading or were clear and unequivocal so as to found an equitable estoppel;

(b) human memory of what was said in conversation is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often sub-consciously, constructed;

(c) each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court must feel an actual persuasion of its occurrence or existence; and

(d) considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action in the absence of some reliable contemporaneous record or other satisfactory corroboration.

[9] As a corollary, I proceed on the basis that contemporaneous records (to the extent they exist) are likely to provide the most reliable evidence of what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing). Inherent probabilities in the circumstances are also a strong guide.

[10] Mere mechanical comparison of probabilities, independent of any belief, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references: see Emmett J in Warner v Hung, Re Bellpac Pty Ltd *(*recs and mgrs apptd) *(*in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

[11] As Legatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

The relevant facts

Very few of the relevant facts were in dispute.
I set out below the relevant facts, resolving any disputed facts.

An introduction to the properties

Prior to their sale to Ms Conway and Leeroy in 2020, Lots 50, 51 and 52 were in the common ownership of Lazy Axle Pty Ltd (Lazy Axle). Together, those three titles comprise approximately 2,911 square metres. Only Lot 52 was developed – a substantial dwelling having been constructed on it in about early 2007. The dwelling comprises, inter alia, five bedrooms and two double garages.
The dwelling was designed and built with an aluminium and glass floor to ceiling curved curtain wall to its north eastern elevation. This curtain wall measures approximately 20 metres in length and seven metres in height. This was designed to capture the natural light and natural ventilation from the north-east. The total land area of Lot 52 is 1,355 square metres.
Lot 51 had constructed on it a multicar garage and swimming pool. Lot 50 was largely vacant. The three properties were used as one land holding.
From in about May 2019, the three properties were marketed for sale by LS Properties and other agents at times on behalf of Lazy Axle. The principal of Lazy Axle is Mr Kees Weel (Mr Weel). LS Properties is run by Ms Savage. It was not in dispute that Brent Savage (Ms Savage’s son), who also worked for LS Properties was a friend of Mr Dunlop. Mr Dunlop also admitted that he had a “very friendly relationship” with Ms Savage.
The marketing material for the three properties included statements such as:

Built on a landholding of approx. 2911 sqm, incorporating four beachfront blocks with three titles, “... Harper”, is a timeless beachside residence in north-eastern New South Wales.

…

The two-level home was master built in 2005 … featuring chic yet earthy interiors with bespoke cabinetry, curved walls, 8-metre high ceilings and quartz tiles. Electric blinds and windows maximise natural light and airflow throughout.

Each of the relevant parcels are separated from Casuarina Beach by a public reserve.
Between 20 July 2018 to 10 August 2020, Mr Dunlop owned and lived in the property at X Beason Court, which is immediately to the north of Lot 50 and is known as Lot 49 in DP X (Lot 49). He owned this property through Leeroy. On that property was a house with a gross floor area of about 380 square metres. Leeroy sold that property to Mr Weel at about the same time as Leeroy bought Lot 51 from Mr Weel. The size of the house has some relevance in light of what Ms Conway says was said to her at the time of buying.

Conversations prior to Ms Conway buying

An important aspect of Ms Conway’s claim to an implied easement was conversations that she says she had either with the agent (Ms Savage) or Mr Dunlop prior to purchasing the Conway Land.
It was not in dispute that there were discussions but what was said, or in the case of what Ms Savage said, what could be attributed to Mr Dunlop, was in dispute. I set out the respective versions below and then make findings on the disputed aspects of the conversations.
Ms Conway first inspected Lot 52 and the house built on it in or around early 2020. She inspected Lot 52 with another agent who was marketing it for sale at the time.
She immediately observed, among other things, that because of its layout and curtain wall, it enjoyed substantial solar access to both its indoor and outdoor areas. She also observed that the private outdoor areas enjoyed frequent direct sunlight and frequent coastal breeze, and the indoor areas also benefited from frequent direct sunlight.
None of this evidence was seriously challenged. I accept it.
After inspecting Lot 52 for a second time with her family, Ms Conway made an offer to purchase it but did not receive a response. Ms Conway’s interest in Lot 52 returned in April or May 2020, as I describe below.
According to his affidavit evidence, Mr Dunlop was approached by Ms Savage shortly before 27 March 2020 and asked whether he was interested in purchasing Lots 50, 51 and/or 52. In cross examination he agreed that in January 2020, he exchanged text messages with Ms Savage in relation to him potentially purchasing all three blocks. On 18 January 2020, he sent a text message to Ms Savage which included:

As per our conversation of Thursday, speaking with my accountant, I have in the area of 4.5 – 5 million to spend. Without wasting everyone’s time, I thought I could only ask the question on Harper ct property if a deal could be done in this range. …

At some stage, Mr Dunlop inspected the three lots. He agreed in cross examination that it was obvious to him when he inspected the three lots that the house on Lot 52 had been designed and constructed with a northerly aspect. He was also aware that it had an outdoor living space in front of the house structure itself, facing north and that within the house it had a very large glass curtain wall with light coming into that area. There was no blockage or interference with the flow of sunlight or air. Mr Dunlop agreed that this was a significant feature amongst all the houses in that particular area of Casuarina – north facing design for the purposes of receiving the natural sunlight and natural ventilation. It was an important feature to him and, as he understood it, for any other prospective purchaser.
Mr Dunlop withdrew his “interest” in the three lots at the time (January 2020) because, in his words, his budget “wasn’t going to cut it” and because it was too big of a property.
According to Mr Dunlop, on or around 30 March 2020, he attended at Lot 50 to meet with Ms Savage and Mr Weel at which time a deal was done for Mr Dunlop to buy two of the blocks – Lots 50 and 51. Part of the arrangement was also for Mr Weel to buy Lot 49 from Leeroy. A contract was entered into at the time for Lot 50 for Leeroy to purchase it from Lazy Axle for $1,400,000, but the contract for Lot 51 was not entered into until later. Mr Dunlop was not seriously challenged on his evidence that a deal was struck at this time for him to buy both Lots 50 and 51, although in his affidavit evidence he said it was on 27 March 2020 he agreed to buy Lot 50 after a discussion with Ms Savage, with the offer to buy Lot 51 following on from a meeting with Mr Weel on 30 March 2020. For present purposes, the difference between these pieces of evidence is immaterial – the deal to buy the two lots was done by 30 March 2020.
The contract for the sale of Lot 50 settled on 7 May 2020.
In or around April or May 2020, Ms Conway decided to make a further inquiry about Lot 52 and ascertained it was no longer listed for sale. She expressed interest to Lazy Axle in buying all three lots – Lots 50, 51 and 52. Ms Savage then contacted her. I set out below the conversation which Ms Conway says she had with Ms Savage at or about this time. Before doing so, I set out Mr Dunlop’s evidence as to his contact with Ms Savage at or about this time as it probably occurred prior to the discussion between Ms Conway and Ms Savage.
According to Mr Dunlop, in May 2020 – and after he agreed with Mr Weel to buy Lots 50 and 51 – he had a discussion with Ms Savage in relation to what he was proposing to build on Lots 50 and 51. Mr Dunlop eventually agreed in cross examination that at the time of this discussion with Ms Savage, he was aware that Mr Weel was still trying to sell Lot 52, having first said he was not aware. Mr Dunlop was told by Ms Savage that she had two interested purchasers for Lot 52. Ms Savage spoke to Mr Dunlop about issues associated with prospective buyers inspecting Lot 52. Ms Savage asked Mr Dunlop what his plans were in relation to building on Lots 50 and 51 and said she wanted to know because she needed to tell prospective purchasers of Lot 52, because prospective purchasers would have concerns about the impact of such building work on the flow of light and air to Lot 52, as well as privacy.

Hi Lorna,

No real plans as of yet, but my first impressions of what I can see ya [sic] doing would be mostly built to the front of the block with some lower set living towards the back,

One thing for sure is the pool is most definitely not going to be there as I [Mr Dunlop] have the neighbour, Jordan’s and my interest into being private as possible.

I know Kees was mentioning he was maybe going to replace the louvre fins to the arbour that extends to create more privacy.

Another thing to note to your buyers that I have no interest in having a house any bigger then what we are currently in, so in perspective of land size most of it will be towards the street. There will be no monstrosity being put there Lorna! You have our word! Haha.

Hope this helps.

Thanks,

Ms Savage replied on 22 May 2020:

Sam that’s great thanks so much! I will try to get you good neighbours.

In cross examination, Mr Dunlop:

(a) said that Ms Savage wanted to know what his plans were in relation to building on Lots 50 and 51 because she needed to tell prospective purchasers of Lot 52 what his plans were, because prospective purchasers would have concerns about the impact of such building work on the flow of light and air to Lot 52, and privacy as well; (b) said he knew Ms Savage would pass on what he told her to prospective purchasers; (c) acknowledged the text message extracted above was sent by him after the conversation with Ms Savage; (d) acknowledged one of his concerns at the time was privacy – which is why he said in the text he was getting rid of the pool. He agreed that the issue of privacy was also very relevant to prospective purchasers of Lot 52 at the time; (e) said he would not agree that the part of the text where he referred to having no interest in having a house any bigger than his current house was a statement of what he was definitely going to do as he had started the message with “no real plans as of yet”; (f) said he did not have very firm views of the size and style of house he wanted to build because he had not engaged an architect yet; (g) accepted that what he conveyed to Ms Savage in the text was that “most of the modest house would be towards the street, and that there would be no monstrosity built there”, which he regarded as an eyesore, not a building that blocked out the solar and ventilation into Lot 52; (h) ultimately agreed that based on Ms Savage’s response he was aware that Ms Savage would be trying to get him good neighbours based on the information he provided, but he qualified his answer by reference to the fact that he began his text message with “no real plans of yet, but my first impressions …”; (i) did not agree that Mr Weel told him that he would not exchange in relation to Lot 49 and Lot 51 until he had done a deal for Lot 52.

Ms Conway’s evidence of the discussion she had at the time with Ms Savage (who Ms Conway refers to as Ms Zoe) was to the following effect:

Shortly after my approach to Lazy Axle, I received a telephone call from a female person who identified herself as Lorna Zoe of LS Properties (Agent). The Agent and I had a conversation the gist of which was to the following effect:

Agent: “I am now the agent for ... Harper Court, Casuarina. The Vendor has sold the neighbouring blocks with the garage, pool, and gardens to the neighbour on the opposite side. The house is now being sold on its own.”

Me: “That’s a shame. I’m not interested in the house without those blocks of land being included. I don’t want anyone to build on them and block out the sunlight or the coastal breeze the house receives from its north face. That would destroy the value of the property for me. I also want the privacy from neighbours looking onto my property or into my house.”

Agent *“I’ve been dealing with the buyers of those two blocks. They’ve told me they want to build something modest. The wife’s family has a lot of money. They considered buying the house but said it was too big. They’*ve told me that they will build a second storey on the existing garage. They will build at the front of the two blocks. The blocks are longer than these ones. They travel further forward, closer to the road. So, they won’t be building anything that blocks the sunlight or sea breeze. Their plans won’t affect your privacy. I agree that any building close to the northern boundary would overshadow the house and destroy the value of the property. Why don’t you come and see the property again and see where the dividing fence and their building will go and how much space there still is.”

In response to this evidence, Mr Dunlop gave evidence in his affidavit, relevantly that:

…

(a) At no stage did I have a conversation with Ms Savage and / or say words to Ms Savage to the following effect:

(i) “l want to build something modest”:

(ii) “my wife’s family has a lot of money”;

(iii) “we will not be building something that blocks the sea breeze”;

(iv) “we will build at the front of the two blocks”;

(v) “we will build a second storey on the existing garage”;

(vi) “the plans will not affect the [Ms Conway’s] privacy”.

(b) I do recall having a discussion with Ms Savage in or around May 2020 where l said words to the following effect of the following:

(i) I considered buying the house [Dwelling] but it is too big;

(ii) We are looking to build at the front of the two blocks;

(iii) We might build on the top of the garage;

(iv) We have not yet engaged an architect so we are not entirely sure what we are going to do.

(c) At the time of having this discussion with Ms Savage, Leeroy had not engaged an architect, and as such there was no real idea of how we are going to develop the land other than in building dwellings.

Ms Conway also deposed (at paragraph 39 of her principal affidavit) to a further conversation with Ms Savage (who Ms Conway refers to as Ms Zoe) in the following terms:

I subsequently inspected the Property for a third, and or possibly fourth, time with Ms Zoe. During the subsequent inspection Ms Zoe drew my attention to the proposed location of the first defendant’s dwelling. She described by words and hand gestures that the first floor of the proposed dwelling would be built towards the front/ western boundary of the Neighbouring Land, and that construction of the first floor would not reach nor affect the area of private open space to the Dwelling, the Curtain Wall, nor the light and ventilation the Property and Dwelling enjoyed. She said words to me the gist of which were to the following effect: “From my discussion with buyers, their home will be built here at the front. It will be modest. It will end at a point where it doesn*’t affect the northerly aspect of this house. It will still have privacy, sunlight, and coastal breeze into the courtyard and in through those doors and windows, to the house*”.

There was no contemporaneous text message between Mr Dunlop and Ms Savage that preceded this discussion.
There was an occasion when Mr Dunlop spoke to Ms Conway directly, in relation to his plans. This occurred on or around 12 June 2020 at a meeting on Lot 52 attended by Mr Dunlop, Mr Weel, Ms Savage, Ms Conway and her children.
Mr Dunlop’s affidavit evidence in this regard came in response to Ms Conway’s evidence of her second substantive discussion with Ms Savage (extracted above) from paragraph 39 of her principal affidavit and was to the following effect:

ln relation to paragraph 39 of the Conway Affidavit, l:

(a) disagree that I said words to Ms Savage that would be to the effect stated.

(b) I do recall having a discussion with Ms Savage sometime around 12 June 2020 to the following effect:

(i) Ms Savage said: they [Ms Conway and her partner, Farshad Amirbeaggi (“Mr Amirbeaggl”)] are looking to make an offer but want to have a discussion about what you are going to build, because they are concerned about what you intend to build next door.

(ii) I responded with: We are looking to build a two-storey house towards the front of the blocks, with a single storey wing along the southern side of the block. We still haven’t engaged an architect so we are not entirely sure what we are going to do.

On or around 12 June 2020, I attended at the Property with Kees, Ms Savage, Ms Conway and her children. At that meeting, I recall Ms Conway and I exchanging words to the following effect:

(a) Ms Conway said words to effect of: We want to know what you intend to build?

(b) I said: We are looking to build a two storey towards the front of the blocks, with a single storey wing along the southern side of the block but we still haven’t engaged an architect so we are not entirely sure what we are going to do.

Ms Conway did not refer to this meeting (with Mr Dunlop) in her principal affidavit in which she set out her dealings with Mr Dunlop or in a subsequent affidavit made in May 2024. On 3 March 2025, the day before the commencement of the hearing and after Ms Savage had produced her text messages with Mr Dunlop including the message of 22 May 2020 extracted above – Ms Conway made a further affidavit which was read without objection at the hearing. The first paragraph of the affidavit deposed to the fact that in “preparation for final hearing of this matter it has come to my attention that I have not responded to” Mr Dunlop’s affidavit. There then followed two paragraphs. The first was brief, responding to paragraph 20 of the Dunlop affidavit by making a minor correction to her 2 February 2024 affidavit.
The second paragraph was in response to paragraph 24 of Mr Dunlop’s affidavit (set out above), to which Ms Conway said:

3.1 I do not recall Mr. Dunlop saying words to the effect of: “but we still haven’t engaged an architect so we are not entirely sure what we are going to do” as he alleges. I do not believe he said any such words because if he had and there was any doubt whatsoever about what he proposed to build I would not have proceeded with a purchase of ...Harper.

3.2 during the meeting Sam said words to the following effect of: “We are going to build a house at the front of the blocks. We’ll build a second level at the front and only build a single level along the back. We’ll make sure it doesn’t affect the sun and breeze or privacy of ... Harper. We don’t want anything big. It won’t be bigger than our current house. We want something modest. You have our word on that.”

Both Ms Conway and Mr Dunlop were cross examined about their evidence of this meeting.
Mr Dunlop:

(a) agreed that at least part of the reason for the meeting was to discuss Leeroy’s plans for Lots 50 and 51; (b) denied Ms Conway’s version of the conversation as set out in her 3 March 2025 affidavit both that the conversation was anything specific in terms of solar access or ventilation or that he said “you have our word on that”; (c) denied that he was concerned to assure Ms Conway at the meeting on 12 June 2020 that he wasn’t going to build anything that would interfere with the flow of light and ventilation; (d) agreed that it was obvious to him in June 2020 that a concern to an incoming purchaser was that one of the consequences of his building work on Lot 51 was its impact on the flow of sunlight and air into the main living areas of Lot 52; (e) denied that he understood that Ms Conway would be relying on the information that he was giving her – that was for her to decide – that’s her judgment and he wouldn’t be buying a house just on a general conversation.

Ms Conway’s cross examination on this discussion focussed on two matters. First, why Ms Conway had not included the conversation in her first affidavit. Ms Conway said that “it was just an error on my part that I hadn’t included it. It was just an omission”. She later said:

When I prepared my earlier affidavit, I was reminding myself with emails and written communications, and so it didn’t come to mind at the time. But when it was brought to my attention, I very clearly recalled the event. It was something that I relied on at the time.

Second, Ms Conway was cross examined on whether, at the time she made her 3 March 2025 affidavit, she was aware of the text messages between Mr Dunlop and Ms Savage. Ms Conway said she had not read the text messages but was “generally aware of the evidence that’s been produced”. Ms Conway denied that her recollection could have been altered by what was in the text messages. I observe at this point that this answer is difficult to reconcile with the answer set out above to the effect that matters needed to be brought to her attention before she could recall them.
In cross examination, Ms Conway also gave evidence that at the 12 June 2020 meeting, Mr Weel had said to her words to a similar effect as was said by Mr Dunlop. Ms Conway agreed that the first time she had said this was in cross examination but that “doesn’t mean it’s not true”.
Ms Conway accepted that, at no time in the conversations she had with Ms Savage or Mr Dunlop, was an easement ever mentioned.
I set out below my findings on this disputed conversation. Before doing so, I complete this section of the chronology.
Ms Conway signed a contract for the purchase of Lot 52 on 18 June 2020 for $3,400,000. She said that she did so having inspected Lot 52 on several occasions and having comfort about the preservation of its solar access, natural ventilation and privacy. That contract settled on 1 September 2020.
Prior to entering into the contract, Ms Conway requested a special condition be included in the contract to, she says, deal with her concerns in relation to what might be built next door. The letter dated 5 June 2020 requesting amendments to the draft contract for sale was signed by Ms Conway herself as “Special Counsel - Yates Beaggi Lawyers”. The letter relevantly requested the following amendments:

The Vendor will not consent or make any development application relating to Lot 51 without the prior written consent of the Purchaser.

AND

If the Vendor completes on a Contract for Sale of Lot 51 before completion of this Contract:

(a) It must within 2 business days of notice of any development application in respect of Lot 51 notify the Purchaser (such notification to include provision of all documentation received by it); and

(b) the Vendor must lodge with the consent authority for and on behalf of the Purchaser within 2 business days of provision of it any submission or objection to the development application with respect to Lot 51.

The first amendment was rejected and the second accepted. Special condition 48 was included in the following terms:

48 Sale by Owner of Lot 51

If the vendor completes on a Contract for Sale of Lot 51 before completion of this Contract the vendor will:

a. Within 2 business days of notice of any development application in respect of Lot 51 notify the purchaser (such notice to include provision of all documentation received by it); and

b. The vendor must lodge with the consent authority for and on behalf of the purchaser within 2 business days of receipt (from the purchaser) of any submission or objection to the development application with respect to Lot 51.

Ms Conway said in her second affidavit that the amendment “was sought by me in furtherance of” her communications with Ms Savage and “as a measure by which I could preserve the solar access and natural ventilation enjoyed by [Lot 52] against any proposed development by [Leeroy] upon [Lots 50 and 51]”.
Ms Conway was cross-examined about the request to amend the contract. Ms Conway admitted that she did not make any claim on the vendor for them to create an easement benefitting Lot 52 and burdening Lot 51.
On or around 10 August 2020, Leeroy signed a contract to buy Lot 51 for $1,150,000. That contract settled on 25 September 2020.

Resolution of the disputed conversations and reliance

Having set out the competing evidence in relation to the various conversations, I now set out my findings.
A preliminary issue is whether there is any significance in the fact that Ms Savage was not called to give evidence in the proceedings. It is to be recalled that Ms Conway deposed to two conversations with Ms Savage and Mr Dunlop sent several text messages to Ms Savage.
Each party contended that the other should have called Ms Savage as part of their case and a Jones v Dunkel inference should be drawn against the other by reason of the failure to call.
Ms Conway relied on the fact that Mr Dunlop was a close friend of Ms Savage’s son, who was also a partner or worked in the real estate agency business. The text messages between Mr Dunlop and Ms Savage also suggest a friendly relationship between the two. Mr Dunlop admitted that he has a very friendly relationship with Ms Savage and has not, as at the time of the hearing, had much contact with Ms Savage or her son for a couple of months.
On the other hand, Leeroy contended that to the extent that Ms Savage is a material witness needed to confirm elements of the claim, it was incumbent on Ms Conway to call her. Ling v Pang [2023] NSWCA 112 at [29] was cited in support of this contention.
I do not regard the absence of Ms Savage as overly significant in the ultimate determination of what was said. Whilst it is clear that Ms Savage and Mr Dunlop have a friendly, or even very friendly relationship, there was no real dispute as to what Ms Savage said to Ms Conway – rather the dispute was as to what Mr Dunlop said to Ms Savage and whether everything that Ms Savage said to Ms Conway should be attributed to Mr Dunlop. In my view, there is no proper basis for everything said by Ms Savage to Ms Conway to be attributed to Mr Dunlop.
Ms Savage was communicating with Mr Dunlop in May 2020 – leading to the text message on 22 May 2020 – as agent for Lazy Axle seeking to obtain some information from Mr Dunlop as the incoming purchaser of Lots 50 and 51 as to what he was proposing to build. Ms Savage was not acting as Mr Dunlop’s agent such that everything said by Ms Savage should be attributed to Mr Dunlop. Given that the only reliable evidence of what Mr Dunlop conveyed to Ms Savage in this regard is what is set out in Mr Dunlop’s text message to Ms Savage of 22 May 2020, to the extent to which it is appropriate to attribute to Mr Dunlop anything said by Ms Savage, nothing should be attributed beyond that contained in the 22 May 2020 text. I have real concerns however, about why anything said by Ms Savage to Ms Conway should be attributed to Mr Dunlop and thus Leeroy. As set out below, I also regard what was said directly by Mr Dunlop to Ms Conway on 12 June 2020 as more relevant and overtaking anything previously said by Ms Savage to Ms Conway.

Agent: I’ve been dealing with the buyers of those two blocks. **They’**ve told me they want to build something modest. The wife’s family has a lot of money. They considered buying the house but said it was too big. **They’**ve told me that they will build a second storey on the existing garage. They will build at the front of the two blocks. The blocks are longer than these ones. They travel further forward, closer to the road. So they wont be building anything that blocks the sunlight or the sea breeze. Their plans wont affect your privacy. I agree that any building close to the northern boundary would overshadow the house and destroy the value of the property. (Emphasis added.)

The emphasis in bold is what Leeroy contends is consistent with the text message from Mr Dunlop to Ms Savage. The un-emphasised portions of the conversation has no basis, Leeroy contends, in any authority granted by Mr Dunlop to be passed on to Ms Conway and, in any event, on their face represent Ms Savage’s own views. I accept this submission.
Turning to the second conversation between Ms Conway and Ms Savage, some of the statements made by Ms Savage are consistent with the earlier text message of 22 May 2020 and some are not. There is no suggestion that Mr Dunlop had a further discussion or discussions with Ms Savage providing for further information as to his plans.
I agree with Leeroy’s submission that the phrase “… their home will be built here at the front. It will be modest” could be fairly attributed to the earlier text message from Mr Dunlop to Ms Savage. The remainder is not.
The more relevant exchange is that which occurred at the meeting on Lot 52 on 12 June 2020. This was an exchange directly between Ms Conway and Mr Dunlop, and also Mr Weel. It was requested by Ms Conway. Notwithstanding what had apparently previously been said to her by Ms Savage, she wanted to speak to Mr Dunlop as the incoming owner of Lot 51.
In these circumstances, as a matter of ordinary common sense, it is only this later in time and direct discussion that could be relevant in terms of what assurance, if any, Mr Dunlop gave to Ms Conway.
I am not persuaded that the conversation occurred in the manner contended for by Ms Conway. I prefer Mr Dunlop’s account.
There is no contemporaneous documentation or material to support Ms Conway’s version. Ms Conway’s version of the conversation was not given until the day before the hearing commenced, almost five years after the 12 June 2020 meeting. Although on Ms Conway’s version, the statements made by Mr Dunlop were crucial to Ms Conway’s decision to buy and were of central relevance to the implied easement claim propounded by Ms Conway in these proceedings, Ms Conway obviously had no recollection of the conversation at the time that she made her two earlier affidavits in February and May 2024. Ms Conway’s initial answer in cross examination that the failure to include the conversation in her first affidavit was an error, or omission, is difficult to accept.
It seems that Ms Conway’s “recollection” was prompted by either seeing or being told the contents of Mr Dunlop’s 22 May 2020 text to Ms Savage, yet it is not entirely clear to me why the contents of that text message (which did not involve Ms Conway) would then prompt a recollection that Mr Dunlop made definite statements on a later occasion and directly to Ms Conway well beyond the contents of the text and offered “his word”, i.e. a guarantee on that.
I am also concerned that further important details were then apparently “recalled” by Ms Conway under cross examination – namely that Mr Weel also made similar statements and offered his word as well to Ms Conway.

Lodgement of development application and its assessment

On 8 December 2020, Leeroy lodged a development application (through Zone Planning Group (ZPG)) for the demolition of the existing structure (the garage and pool on Lot 51) and the construction of a new two storey dwelling with attached garage, in-ground swimming pool and front fence. The plans for the proposed dwelling showed a proposed set back of 1,500 mm on both the ground floor and first floor in the area where the southern boundary of Lot 51 meets the open space area on the northern boundary of Lot 52. On the northern side of the proposed dwelling the proposed setback from the boundary was, at its closest, four metres on the ground floor and nearly ten metres on the first floor. The application also included several shadow studies.
Mr Sam Smith (Mr Smith), a Town Planner with Council was primarily responsible for assessing the application.
By email dated 25 January 2021, Mr Dunlop emailed a copy of his plans to Ms Conway. It appears that this followed on from a meeting of sorts on that day when Mr Dunlop showed Ms Conway his plans. Ms Conway says she became immediately concerned that the plans were completely contrary to what had been represented to her. She deposed to a conversation with Mr Dunlop to the following effect:

VC: “I understood that you were building at the front of the property. On top of the existing garage. So that it wouldn’t block out the sunlight and ventilation to my property. That’s what Lorna said to me when I was negotiating to purchase the property.”

SD: “We were but when we sat down and looked at it, we changed our mind. It works better this way. It’s not as bad as you think. It won’t block out all your sunlight or breeze. All the houses along here are built that way, so it’s kinda unavoidable that we will block out some of your light.”

VC: “This is quite concerning for me. Can you please email the plans to me?”

SD: “Yes. I will email them to you.”

Ms Conway admitted that she did not make any mention in this conversation to an easement benefitting Lot 52. (There is also no reference to any direct conversation with Mr Dunlop). She maintained, however, that based on what had been represented to her that there was an obligation held to her, although she admitted she did not assert any obligation at that time. She also accepted that at no time thereafter, during her objections to Council, did she assert any easement.
Mr Dunlop agreed that there was a discussion with Ms Conway on 25 January 2021 but not to the effect deposed by Ms Conway. According to Mr Dunlop, they exchanged words to the following effect:

(a) Ms Conway said: wow it’s [the dwelling] big;

(b) I said: we looked at it with the architects, and it wasn’t going to work to build at the front of the block, so we are building further back. It’s not as bad as you think. All the houses are built that way so it’s kinda unavoidable that we will block out some of your light.

(c) She said: can you email me the plans,

(d) l said: Yes. I will email them to you.

It is not necessary for me to resolve this dispute as the conversation post-dates the relevant purchases. I observe that on Ms Conway’s version there is no reference to any statements having been made directly to her by Mr Dunlop on 12 June 2020. Nothing in Ms Conway’s version causes me to alter my findings above as to what was stated prior to contract.
On 27 January 2021, Ms Conway sent a communication to Council stating that she had not been given formal notice of the development application by Council but had received a copy of the plans from Mr Dunlop. The communication further stated that Ms Conway proposed to object on several grounds and required 14 days to do so.
On 28 January 2021, Mr Smith emailed Ms Conway informing her that neighbour notification was in fact provided on 6 January 2021 but granting her an extension to 9 February 2021. Ms Conway lodged her objection on 3 February 2021, being submissions prepared by CityScape Planning and Projects (CityScape). The key planning issue raised in the submission was the overshadowing of Ms Conway’s external dining area.
On 4 February 2021, Ms Conway sent an email to Mr Smith of Council reserving her right to prosecute an appeal to the Land and Environment Court in certain circumstances. The email also advised that Ms Conway had engaged solicitors and counsel. The solicitors were her husband’s firm, Yates Beaggi Lawyers, where she was, and is, herself employed.
Mr Smith inspected Ms Conway’s property on 19 February 2021.
On 25 March 2021, Council wrote to ZPG raising several matters.
Under the heading Town Planning, the letter from Council stated:

The proposal results in considerable overshadowing to the principle private open space of the adjoining southern allotment and does not achieve compliance with the following control of the Tweed Development Control Plan 2008 - Section A1:

4.3 Solar Access and Natural Ventilation

C4. For neighbouring properties ensure:

i. Sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21

Although the submitted DCP A1 address identifies the eastern side of the southern adjoining dwelling as the ‘principle open space’, the northern side private open space highlighted below has been determined to be more appropriately identified as the ‘principle private open space’. This area extends off the primary internal living areas and is also to feature a recently approved inground pool, which further enhances the area as the principle private open space.

[The letter then contained three images from the shadow studies included in the application with the outdoor area on the northern side of Lot 52 highlighted]

The submitted shadow diagrams indicate that this area will not receive a compliant amount of sunlight on the 21 June between 9am and 3pm.

Please amend the design of the dwelling accordingly to ensure a complaint [sic] amount of solar access to the adjoining southern property.

Under the heading “Sustainability and Environment” the letter requested ZPG to provide:

An amendment to the TPZ Project Arborist Arboricultural Report which includes;

a. A more thorough arboricultural assessment of the potential impacts to Tree 1 and possible management options. The assessment is to take into consideration (at a minimum); the potential impacts of the proposed footpath, potential Atlanta Cell Stormwater System and construction of new 1200H boundary fence wall. TSC’s S&E Unit have provided an overlay of proposed plans with more accurate representations of Tree 1 ‘s TPZ and SRZ and of the potential Atlanta Cell Strom Water System (observed in the Bushfire Assessment Report) for reference sake.

b. Accurate depiction (to sub 0.5 metre accuracy) of Trees 1 & 7’s location of as well as their TPZ and SRZ.

An internal sewer and stormwater drainage plan demonstrating compliance with the following recommendation made on page 6 of the arboricultural report being “In order to eliminate any potential impacts upon the vitality of Tree 7 it is proposed that the new sewer be routed outside of the TPZ of this tree”.

Questions were raised by ZPG and on 1 April 2021, Mr Smith sent an email to ZPG which stated inter alia (emphasis in original):

The objective of the control is to minimise the potential impacts on solar access and natural ventilation to adjoining properties. While I note your diagram identifies 50% of the total outdoor area, with consideration of the existing roof form and the objectives of this Clause, it needs to be adequately demonstrated that Sunlight to 50% of principle area of open space (the area which receives solar access and is not already shadowed by existing roof form) is not limited to less than 2hrs of sunlight on the 21 June between 9am and 3pm. I have highlighted this area below for further clarification.

Additionally the control specifies that sunlight to at least 50% of the principle area of private open space is not reduced to less than 2hrs ... .....

Including the area already shadowed by existing roof form would defeat the intent of the objectives and controls of this clause.

It is recommended that the response to Council’s further info request includes a floor plan of the adjoining property and clearly demonstrates the compliant overshadowing.

The area highlighted on the image is the area containing the concrete areas on the northern boundary of Lot 52. Only the unroofed section appears to be highlighted.
Mr Smith had, earlier that day sent an email to ZPG in which, inter alia, Mr Smith referred to the definition of Principle private open space in SEPP (Exempt and Complying Development Codes) 2008 of:

Principal private open space means an: area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling other than a bedroom.

On 16 April 2021, Damian Overeem, one of the designers of Mr Dunlop’s house, sent an email to Mr Smith in the following terms:

Hi Sam.

My name is Damian one of the designer’s [sic] of Sam house. I wanted to reach out in and unofficial manner to get a feel from you directly “your eyes only” how you would feel about this current sun study?

As Sam Dunlop mentioned to me yesterday, he had a chat with you about our predicament and we all appreciated your time and openness in sheading [sic] light on what our options could be so we can move forward. Thankyou.

In saying this Sam and I have been going back and forth on how much we can push his house to the North to give next door their best outcome without making Sam’s South side unliveable.

The intent of this study was just to show you what the current neighbours [sic] house does to itself, what the original DA house does to the neighbour and what we can do to less impact their area and a compromise to best serve both parties.

It would be a huge benefit for me to understand if I’m heading down the correct path in your eyes so I can go away and finalise this D.A and change all my drawings accordingly.

If you feel like calling I’m available also.

Thanks for your time.

Mr Smith replied later that day as follows (emphasis in original):

Hi Damian,

Thanks for clarifying further, this looks to be on the right path. if you could please send through shadow diagrams which indicate overshadowing from 9am to 3pm and are in accordance with the below control of the Tweed Development Control Plan 2008 – Section A1, we can move forward with the application.

Damian Overeem responded as follows:

Hi Sam,

Thanks for clarity.

I will run the proposed house from 9 to 3pm for your advice.

I picked 11 to 1 pm as you know it’s a 2-hour window and this best serves us at these times however ill [sic] show t=you [sic] the full study from 9-3pm.

C4 (I) Is impacted by 10%, so are you suggesting we cant [sic] move forward unless its 50%. This outcome doesn’t suit our client. This is our teams negotiation we wish to argue and comprise.

C4 (ii) We wil [sic] run this test to the neighbours’ windows.

C4 (ii) N.A

Thanks Sam.

In response, Mr Smith asked Mr Overeem to provide the shadow diagrams with the times specified and sufficient justification for his argument.
On 7 May 2021, ZPG responded to the Information Request in the letter from Council dated 25 March 2021, submitting an amended application.
In relation to Item 1 of the request, which contended that the proposed dwelling did not comply with the overshadowing requirements of the DCP and requesting an amended and compliant design, the following response was provided by ZPG:

... Harper Court, Casuarina was constructed prior to 2011. At this time the property was comprised of three lots, being the current Lot 52 DP ... and the two adjoining Lots 50 and 51 DP ..., which are the subject of the ... Harper Court / ... Beason Court development application (proposed dwelling).

Like many of the beachfront developments in Casuarina, the adjoining dwelling was constructed to orient to the north to take advantage of the space and land area afforded, as well as to harness the favorable [sic] solar access to the north. Subsequently, the two adjoining allotments (the subject of this DA) have been sold and this open area is no longer available to the adjoining dwelling.

The northern open space of ... Harper Court is part covered and part uncovered. DA for a new pool is to be constructed in the uncovered open space area and fenced from the undercover open space area. This land is within 4m of the adjoining property with ... Harper Court and no longer directly accessed from the living/habitable area of ... Harper Court. By definition under the DCP, this undercover section of ... Harper Court is no-longer defined as ‘principle private open space’, while the remaining portion of this northern land area is covered by its own development. Additionally, whilst this northern area may function as ‘private open space’, there is a large rear yard open space to the west of the living area, that is private, uncovered and setback greater than 4m from adjoining residential land. This open space area will maintain the current solar access.

The deep and narrow allotment subdivision pattern along this section of Casuarina aims to maximise the east/west solar access whilst encouraging dwelling designs to maximize the northern solar access where possible. This is evident in the construction pattern along this section of Beason Court just north of the site, as shown in Figure 2. The established pattern is such that many of these dwellings have a pool located to the northern boundary and large open space to the rear (east). The proposed dwelling, as well as the adjoining dwelling follows this pattern of development.

The roofed open space area of the adjoining dwelling is set back from the northern boundary by approximately 5 metres. Whilst this dwelling has historically enjoyed northern solar access whilst the adjoining lot was undeveloped, it is a logical expectation that there will be a similar pattern and level of overshadowing anticipated once the adjoining site is developed.

The proposed dwelling was designed to comply with the required 1.5m side setbacks and 9 meter building height development standards, as shown in the 21 June solar diagrams (noted as “existing”). In order to improve the solar access to the adjoining dwelling the proposed dwelling has been relocated northward away from the southern boundary by an additional 600mm. The proposed dwelling now provides a setback of 2100mm to the ground floor and 2700mm to the first floor.

The increased southern boundary setback provides a balance of:

• maintaining the maximum northern open space for the proposed dwelling as well as the usability and function of the southern side passage areas for the proposed dwelling;

• whilst improving the solar access to the adjoining property.

This revision of the plans results in improvement to the solar access for the adjoining dwelling uncovered open space area as follows:

• As indicated on the architect’s plans, solar access is maintained for between 40 to 43% of the open space to the adjoining property for two hours between 11am and 1 pm on 21 June.

Whilst this is a variation to the required “50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21” (DCP Section Al Part 4.1 Solar Access C4), the variation is supported and sought based on:

• The proposal satisfies all applicable setback provisions to the front, side and rear boundaries for the subject dwelling.

• The proposal exceeds the setback provisions to the southern side boundary.

• The proposal satisfies all applicable over shadowing controls with the exception of Control C4.

• The dwelling siting has been amended to provide a greater setback to the southern boundary (2100mm to the ground level and 2700mm to the first floor) which minimises the potential impact on solar access and natural ventilation to the adjoining property, as required by the Objectives of DP Part Al 4.3 Solar Access and Natural Ventilation.

• This minor non-compliances [sic] stems from the narrow widths of the lots, the east-west orientation and the “open space” focus placed on the pool, positioned on/along the northern boundary, as opposed to the larger rear yard opens space.

• Whilst variation is sought the prescriptive control guideline, the aims of the Solar Access and Natural Ventilation provisions are met and the adjoining dwelling will still enjoy favorable [sic] sunlight to the northern pool area open space and the substantial rear yard open space area.

The amended plans attached to the response now included a set-back of 2,100 mm on the ground floor from Lot 52 (previously 1,500 mm) and 2,700 mm on level one (previously 1,500 mm). The proposed dwelling had thus been moved 600 mm to the north at ground level and 1,200 mm to the north on the first floor.
Further shadow studies were also included, together with detailed shadow studies. The detailed shadow studies suggested the following change from the existing features to the proposed design:
21 June, 9am 41% shaded to 72.7% shaded;
21 June, 12pm 28.9% shaded to 57.3% shaded;
21 June, 3pm 47.5% shaded to 74% shaded.
The response also included an arborist’s report purporting to deal with the issues raised under the heading Sustainable Environment. The report identified seven trees on Lots 50 and 51, two of which were proposed to be retained with the other five to be removed or relocated.
The response to the request was uploaded to the Council’s DA Tracker online portal on 11 May 2021. Mr Smith sent an email to Ms Conway on that day advising her of this and to notify Council by 25 May 2021 if she had any further concerns.
On 24 May 2021, Ms Conway sent to Council her response to Mr Dunlop’s Amended Architectural Drawings and Information Request Response. She also requested Mr Smith let her know the outcome of the application in writing. The response took the form of a further submission from CityScape. The submission maintained that the modified development still does not comply with Control C4 of the DCP, Section 4.3.
On 1 June 2021, Aida Sloman, Project Officer Biodiversity with Council sent a memorandum to Mr Smith which stated, inter alia:

Ecological Impact Assessment

• The proposed development involves the removal and transplanting of a number of mature Pandanus and construction works around a number of other native plants planted as part of the original landscaping.

Conclusion

• Providing the recommendations of the arboricultural report and the below conditions are followed during construction the proposed development is not anticipated to have a significant adverse ecological impact.

On 3 June 2021, Mr Smith sent a further email to ZPG on overshadowing. The email stated:

Hi Hannah,

Council has issued a new request for further information via the NSW Planning Portal.

Essentially the overshadowing is still non-compliant and cannot be accepted. I have provided some further clarification in the letter to help assist your amendments. Although the proposal is taking advantage of the northerly aspect, it allows sufficient space for a redesign.

Council cannot accept a design which maximises its own solar access to the detriment of the adjoining property.

I have attached the additional submission for your consideration also.

(The additional submission was that submitted by Ms Conway.)

The letter dated 3 June 2021 from Council to ZPG relevantly included:

…

The submitted shadow diagrams and overshadowing calculations have included the entire principle area of private open space, both roofed and unroofed, rather than just the area that is afforded sunlight and would be impacted by overshadowing.

The submitted plans still demonstrate a significant non-compliance with the relevant development Controls of the Tweed Development Control Plan Section A1**.**

Solar access calculations need to relate to the area which is afforded sunlight (unroofed portion).

Therefore the submitted plans are required to demonstrate that 50% of the principle area of private open space that is currently afforded sunlight will receive 2hrs of sunlight on the 21 June between 9am and 3pm (as demonstrated in the image below). A substantial redesign of the upper level may be required to achieve this.

The letter included a plan continuing to highlight the unroofed portion of the outdoor area of the Conway Land.
On 2 August 2021, ZPG responded to Council’s additional information request in respect of the overshadowing matters. The response was detailed, running to 14 pages.
The response relevantly included (emphasis in original):

…

We have reviewed the contents of Council’s letter, the contents of the updated neighbours submission and we have liaised with the proponent in respect of same.

We appreciate Council providing the opportunity to satisfy the concerns it has raised in the most recent letter. Indeed, it was immediately evident (based on an initial review of the letter) that if we were to address shadowing in the manner suggested by Council, it would result in design amendments that are unviable to the proponent and very much at odds with the established (over c.19 years) and uniformly acceptable design outcomes evident on all other lots of comparative relevance ie. the large majority of all beachfronts allotments in Casuarina, that accommodate two storey structures (we estimate that 90% of all lots are two storey in form) and that have been built to the zone boundary that forms the interface of the residential and 7(f) zones.

Our review also resulted in noting that we could find no evidence where Council (or indeed the CDC controls where applicable) have previously required a stepping in height and or setback on the southern boundary in order to ensure that ‘all private open space’ on an adjoining property is afforded sunlight access as suggested in Council’s letter.

Most importantly, our review highlighted what we believe to be a clear anomaly in Council’s interpretation of the relevant controls relating to Private Open Space, and indeed, those relating to the somewhat separate area of Principle Area of Private Open Space. This matter is explored further in the text below, however it is our position that:-

A. There are separate controls and intent applicable to both Private Open Space and Principle Area of Private Open Space and that the control of note here strictly only applies to the Principle Area of Private Open Space;

B. That the Principle Area of Private Open Space clearly includes those areas that are roofed or covered; and

C. That there is established precedent and supporting statutory and dcp based controls to support our interpretation.

…

Having regard to what is capable of being categorised as PAOPOS, the proposed plans, when excluding the PAOPOS already covered by the existing roof, still exhibit an ability to provide at least two hours of sunlight to at least 50% of the PAOPOS that is not already covered.

The alternate way to interpret the extent of compliance is by utilising the provisions of Section 4.3(c.4)(iii), in which the DCP requires that where an existing PAOPOS is already covered in shade, that this area is not further reduced by 20%. In this regard, the proposal easily demonstrates that the proposed satisfies the provisions of this clause as the proposal retains substantially maintains the extent of sunlight accessed to the defined PAOPOS area and in any event, maintains it for a period exceeding two hours at mid winter.

Furthermore, it is clear from previous correspondence, that should the entire area of the northern private open space (including that area covered) be the PAOPOS, that the proposal continues to maintain sunlight for at least two hours in the period specified. It is noted that it is only when the covered area is excluded (incorrectly in our opinion) that the proposal is unable to satisfy the base requirements (whilst still complying with the performance provisions mind you, given the extensive alternate private open space areas available etc etc.

On 18 August 2021, Mr Smith emailed Ms Conway notifying her that Mr Dunlop has now submitted additional justification with regards to overshadowing, providing her with a link to the new material. The email asked Ms Conway to make any submission by 1 September 2021.
Ms Conway provided a submission by email dated 31 August 2021. This took the form of a letter from CityScape to Council.
On 27 October 2021, ZPG provided a further submission to Council on behalf of Leeroy. The submission purports to respond to “the further submission from a nearby landowner”. The submission makes a number of further submissions on what area should be regarded as “private open space”.
On 11 December 2021, Ms Conway sent an email to Mr Smith asking if there were any developments with the application. By email dated 13 December 2021, Mr Smith replied that there are currently no further updates to provide.
On 22 December 2021, Council sent a further letter to ZPG raising a number of matters and requiring a “satisfactory response” to each. The first issue raised is “the overshadowing of the adjoining southern allotment”. The letter referred to the definition of “Principle Private Open Space” in the State Environmental Planning Policy (Exempt and Complying Development) 2008 means “an area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling, other than a bedroom”. After referring to C4 of the DCP, the letter stated (emphasis in original):

As per the above definition, the principal area of private open space afforded No ... Harper Court would be defined as the covered and uncovered extended living area, including the not yet constructed pool, along the northern side, given the area adjoins the existing internal living area.

Clause 4.3, Control C4 of the Tweed DCP 2008 Section A1 above identifies that sunlight to this area should not be reduced to less than 2hrs. In this instance the uncovered area is the principal area of private open space afforded sunlight and therefore sunlight to this part of the area is should not be reduced by more than 50% for no less than 2hrs.

As has been noted in Council’s previous request for further information, the latest set of amended plans demonstrate that the uncovered principal area of private open space of No.... Harper Court will not be afforded sunlight to at least 50% of the area for no less than 2hrs the 21st June and therefore is non-compliant with the above control.

…

Although the proposed development exceeds the minimum required side setback distances from the southern boundary, the proposed northern side setback of 8.755m for the upper storey presents ample space to make the necessary amendments to allow for adequate solar access for No.... Harper Court.

The applicant is therefore requested to amend the proposal to demonstrate that the uncovered principle area of private open space to the adjoining southern allotment (identified in red above) receives sunlight to at least 50% for no less than 2hrs on the 21 June.

Should the applicant fail to demonstrate adequate solar access to the principal area of private open space of the adjoining No....Harper Court in accordance with the relevant Control of the Tweed Development Control Plan 2008 Section A1, the application will be assessed in its current form, most likely by way of refusal.

A site meeting was then held on 10 February 2022, following which Mr Jarrod Gillies of ZPG sent an email response to Council in response to the 22 December 2021 letter. The email response contends that Council’s interpretation of the DCP is inconsistent with the meaning of the words on their face. Further “merit considerations” were provided. As part of those merit considerations, it was contended that relocating the “proposed Dwelling further to the north to enable greater solar access for X Harper Court, is not without further issues including tree removal”. The arboricultural report dated 30 April 2021 was again provided to Council in this regard.
The first merit consideration was as follows:

• A solar assessment study for the existing sites has been undertaken that considers the two established trees on site, retaining wall of 1.8m and the cross beams of the neighbouring dwelling (... Harper Court, Casuarina). The findings are shown in the fourth attachment and reveal that the existing site barely achieves 50% of the unshaded portion of the Principal Private Open Space (PPOS) of southern neighbouring site. The least shadow is at 9am and 11am the shadow at 49.3% and 45.6% shadow respectively. This means any new Dwelling House on the subject site is not to exceed 0. 7% and 4.4% additional shadowing at 9am and 11am. This is to achieve the control on face. Based on the permitted building height and floor space ratio for the site, this clearly is not achievable.

• Control 4 of Tweed DCP 2008 simply does not state 50% solar retention for at least 2 hours in mid-winter for only unshaded PPOS. This control is also provided in Apartment Design Guideline (ADG) and notwithstanding the guideline is not applicable for the proposed Dwelling House application, the control in the guideline has the same principle. It does not distinguish between existing shaded or unshaded open space areas for solar access purposes and is routinely implemented in the manner suggested by the applicant, not as the Council is suggesting in the case.

The attached shadow diagrams clearly demarcated between the roofed and unroofed sections.
The email concluded by noting that the email and its attachments would be uploaded to the NSW Planning Portal for registration and actioning.
On 30 March 2022, Mr Smith sent an email to ZPG confirming that he had “now revised the submitted information with Denise and she is also of the opinion that the application is now acceptable to recommend for approval”.
On 25 April 2022, Mr Farshad Amirbeaggi (Mr Amirbeaggi), Ms Conway’s husband and also her solicitor, emailed Mr Smith seeking an update on the application.

The Assessment Report

A Delegated Authority Development Application Report (Report) was then prepared. The Report is prepared by Mr Smith “Assessing Officer” and bears a date of 28 April 2022, although it is apparent that parts of the Report were prepared after that date as parts refer to documents created after 28 April 2022. The “Recommendation” at the end of the Report is that “the application be approved subject to the conditions contained at the end of this document”.
The Report also contains on its last page a box “Recommendation Approved” with the name “Denise Galle”. It was accepted that no Report was ever signed in the traditional sense but this entry recorded that Ms Galle approved Mr Smith’s recommendation.
The following extracts from the Report are relevant for present purposes (emphasis added):

(a) on page 5 of 51:

Additional further information was requested on the 3 June 2021 (response received 2 August 2021) as a satisfactory response was not received in relation to overshadowing and articulation:

• Overshadowing - incorrect calculations and remains non-compliant despite increased setbacks.

• Articulation - further articulation required.

An in-depth response was received from the applicant on the 2 August 2021 which noted that strict compliance on an east-west lot was unviable and detailed the definition of principle area of private open space as per the SEPP (exempt and complying development code) 2008 and previous LEC determinations.

Submission No.3 received 31 August 2021 :

• Overshadowing – not in agreeance of applicants argument that compliance is unviable

The applicant provided further response to submission No.3 on the 28 October 2021detailing historic patterns of approval within Casuarina with east-west allotments and overshadowing.

Additional Further Information was requested on the 22 December as the previous response was not considered satisfactory in relation to overshadowing.

On the 21 February a detail response was provided from the applicant including amended plans and an amended arborist report. The further justification, amended arborist report and amended plans were considered to deliver an acceptable outcome with respect to overshadowing on an east-west allotment and the application was deemed acceptable for approval. No further invitations for submissions were extended to the submitter following this. The objector was advised that Council now considered that application satisfactory and that it would now be recommended for approval.

(b) on page 15 and following, in the section assessing the application against the DCP and under the heading “4.3 Solar Access and Natural Ventilation”:

4.3 Solar Access and Natural Ventilation

The two-storey dwelling will result in overshadowing impacts for the two storey single dwelling to the south at No.... Harper Court as demonstrated by the submitted shadow diagrams. Specifically, the proposal is noncompliant with the following Control of the Tweed DCP Section A1:

C4. For neighbouring properties ensure:

i. Sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21*, and*

ii. Windows to living areas must receive at least 3 hours of sunlight between 9am and 3pm on 21 June*.*

iii. Where existing overshadowing by buildings is greater than this, sunlight is not to be further reduced by more than 20%**.

The original proposal presented a two storey dwelling with a minimum side setback from the southern boundary of 1.5m to both levels. While the side setbacks were compliant with the DCP Section B5, the overshadowing of the adjoining southern allotment No.... Harper Court was considered unsatisfactory and amendments to the proposal were requested to better reduce the overshadowing impact towards No.... Harper Court.

Following a number of amendments to the plans and further calculation and consideration of overshadowing from the proposed development, satisfactory overshadowing plans have been submitted to Council. The southern side setbacks have been increased to 2.1m to the lower storey and 2,7m to the upper storey. Submitted shadow diagrams for the 21 June now present a range of scenarios including:

- Unclouded overshadowing on the 21 June

- Existing overshadowing; and

- Predicted overshadowing from a compliant 900mm side setback resulting from development of each individual lot as opposed to consolidation

…

The above diagrams demonstrate that the north facing private open space at No ... Harper Court is partially impacted by overshadowing both via the current vacant state of the subject site and as a result of the proposed two-storey dwelling.

Internally the northern portion of the dwelling house development at No.... Harper Court comprises of a media/games room (front ground level), kitchen and living (rear ground level) and two bedrooms and void space to the upper level. Externally the northern portion of the dwelling house features a paved and partially roofed external living area which would comprise the principal area of private open space for the dwelling (approximately 10.4m x 21 m and 186m2), although it is noted that significant open space area is also available tin [sic] the rear setback area.

…

Each of the provisions of C4 Solar Access with regard to the overshadowing impacts towards the southern adjacent property at No. ... Harper Court are addressed individually below noting that the proposal does not result in significant overshadowing impact to the property to the north of the site.

i. Sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21,

As can be seen from the figures supplied above regarding the private open space at No.... Harper Court, the portion of the area afforded sunlight and unroofed is partially overshadowed throughout the duration of the day on the 21 June. Calculations submitted by the applicant indicate that throughout the day on the 21st June no less than 45.6% of the area is constantly overshadowed.

With regards to the predicted overshadowing impacts from the proposed development, the submitted shadow diagrams (see above) demonstrate that the private open space at No.... Harper Court which is unroofed and already afforded sunlight will be impacted by overshadowing at 9am on the 21 June and will receive no direct sunlight from 11am onwards. Whilst it is noted that this area is utilised as the principle area of open space for dwelling house, the proposed development exceeds the minimum side setback distance and is well below the 9m height limit. Additionally, the house also has access to additional external areas at the rear (east) of the allotment that will not be impacted by the proposal.

While it is noted that the proposal is situated on two allotments (to be consolidated into one) and features a significant setback from the northern boundary, the option to move the development further to the north is not considered to be an acceptable outcome in this instance. As has been discussed above, the proposal is well below the maximum requirement for the overall height and is setback significantly greater than the side boundary setback requirement

In addition to this argument, Council’s Ecologists and the submitted arborist report prepared by TPZ Project Arborists dated 30 April 2021 do not support moving the proposed development further to the north due to the impact of the development on established vegetation along the northern boundary (see image below).

Therefore with regard to the above control, the proposal, while not numerically compliant is considered to be an acceptable outcome given the site constraints, setbacks afforded and building height, and the orientation of the allotment being east-west. It is considered reasonable, that while the principle area of private open space to No.... Harper Court will be overshadowed, the degree of overshadowing is an acceptable outcome.

…

ii. Windows to living areas must receive at least 3 hours of sunlight between 9am and 3pm on 21 June.

Windows of the internal ground floor living areas of No.... Harper Court are orientated north and east as indicated on the approved plans for DA03/1201 for a two storey dwelling house. The photos below clearly detail the north facing windows including their extent being from the ceiling of the second storey to the ground floor level. This design has enabled maximum capture of the northerly aspect. Windows to these ground floor areas are setback a minimum of 8.13m from the northern side boundary and are currently impacted by shadow from the existing roof over part of the external living area. As such the submitted shadow diagrams demonstrate that these areas will only be further impacted by overshadowing partially from the proposed developments overshadowing around 9am following which the shadow recedes and therefore the solar access to these areas remains largely undisturbed (see shadow diagrams above). Solar access to the east facing windows remains unaffected by the proposal. Minimal overshadowing impacts are predicted during the summer months.

…

iii. Where existing overshadowing by buildings is greater than this, sunlight is not to be further reduced by more than 20%.

The subject site is currently improved by a garage, pool and side boundary fence. The existing overshadowing of No.... Harper Court has been provided via an existing site shadow diagram (see diagram below). The proposal as demonstrated in the submitted overshadowing diagrams, will result in additional overshadowing, however it is not unreasonable to expect that permissible development in this low density zone on an east west orientated allotment with a 9m height limit will result in an increase in overshadowing impacts on adjacent properties.

Whilst it is noted that the proposal will result in the reduction in solar access to the north facing patio area of the ground floor at No.... Harper Court, this is considered to be reasonable noting that:

• The proposal has a maximum height of 8m to the top of the fireplace flue and 6. 7m to the top of the roof which is substantially less than the 9m height limit;

• The proposal is setback a minimum distance of 2.1m to the ground floor and 2.7m to the upper floor from the southern side boundary. This is substantially more than the 900mm minimum required by the controls;

• The allotment is orientated east-west and therefore overshadowing of north facing private open space areas to the adjoining southern allotments is unavoidable;

• Moving the proposed dwelling further north would impact on established vegetation which is not supported by Council’s Ecologist or in the submitted arboriculture report;

• The proposal is well below the maximum requirement for the overall height and is setback significantly greater than the side boundary setback requirement as prescribed by the Tweed LEP 2014 and DCP A 1 respectively, seeking further exceedance of the relevant development Controls would be unreasonable in this instance.

The design is consistent with the aims and objectives of the relevant DCP’s and no significant impacts on the liveability or privacy of the adjoining properties are envisaged. The positioning of the proposed dwelling is both compliant with the relevant DCP provisions and considered acceptable in this instance.

Comment was also sought from Council’s urban designer with regards to the overshadowing outcome of the proposal and the following comment was provided supporting the proposal:

Looking at the drawings quickly though I think the design is reasonable. It has been setback more than the minimum from the southern elevation (2.1m) and is well below the maximum building height. While the overshadowing diagrams demonstrate some overshadowing to the north facing outdoor area of the existing dwelling adjoining to the south it would still get plenty of light during morning and afternoon hours in winter and for most of the day during summer months. In addition there is substantial rear year [sic] area which would remain largely unaffected.

The nature of -east-west lots is that there will always be a degree of overshadowing. The existing dwelling has in fact anticipated this which is why they have also designed in a deep northern side setback.

This last entry extracts from an email sent after 28 April 2022, from Jonathan Lynch (Senior Urban Designer with Council) to Ms Galle and Mr Smith dated 2 May 2022.

Further correspondence prior to formal approval

On 28 April 2022, Mr Smith sent an email to Ms Conway, copied to Mr Amirbeaggi which stated as follows:

Hi Vashti

Apologies in the delay in getting back to you as I have been out of office.

I was meaning to provide an update last week, however time got away from me with all these short weeks lately.

No further amendments have been made since the previous objection dated 2nd August 2021, however extensive justification has been provided by the applicant regarding the perceived overshadowing and positioning of the proposed dwelling.

With consideration of all submissions made by Cityscape Planning on your behalf including those received outside of the 14 day notification period, the further justification provided by Zone Planning (the applicant) and discussions with the Manager of Building and Environmental Health - Denise Galle, the proposal is now deemed acceptable for determination.

Key to this decision are the following points (refer to attachments also):

- The orientation of the allotments being east-west allows for limited avenues to completely avoid overshadowing of a north facing living area.

- Shifting the dwelling further north would result in significant damage to established vegetation which Council’s ecologists would not support. This has been verified by an arborist report.

- The new dwelling exceeds the minimum required setback distances being 900mm. The proposal presents a side setback of 2.7m to the upper storey, which far exceeds the minimum requirement.

- Submitted shadow diagrams including an existing shadow diagram demonstrate that overshadowing of the adjoining allotment already occurs and is only moderately exacerbated by the new dwelling.

- The current title sits over 2 lots. Should the lots be developed individually with single dwellings including minimum side boundary setbacks of 900mm, the unavoidable overshadowing would far exceed that of the current proposal.

The application will now be recommended for approval following completion of my report.

It is advised that should you wish to pursue the matter further, that you engage a minimum of 2 elected Councillors to call the application up for determination via a Council Meeting. Should you wish to pursue this avenue, I will allow for **7 days from today’**s date for this to occur. Should no correspondence be received by then I will proceed with my recommendation for approval under delegated authority.

Mr Amirbeaggi emailed Mr Smith later that day in the following terms:

Dear Sam,

Surprising that the further justifications haven’t been provided to me or my client with opportunity to consider and respond.

I require that you provide my office with a copy of any determination, so that my client can file a resident Appeal from the decision with the Land & Environment of New South Wales.

I’ve copied in the Mayor and Deputy Mayor because I’m experiencing very tardy/ unsatisfactory conduct on the part of this Council.

My client reserves her rights, particularly with respect to claims for her legal costs.

He sent another email shortly thereafter, as follows:

Sam,

On first blush, why can’t they build their pool in the newly rezoned 7(f), and shift their dwelling to the Northern Boundary? Answer?

Our client will prepare and lodge another Objection – you’ll have it within 7 days. And after that we will file the Appeal.

On 29 April 2022, Ms Galle sent an email to Vincent Connell (of Council) and Mr Smith which stated, inter alia:

Hi Vince,

The DA is still under assessment. It is over $1M so Councillors will get a chance to call it up when we send the memo in the coming weeks.

But it appears that the proposed structure will not comply with the overshadowing provisions.

Points to note in this regard include:

- The orientation of the allotments being east-west allows for limited avenues to completely avoid overshadowing of a north facing living area.

- Shifting the dwelling further north would result in significant damage to established vegetation which Council’s ecologists would not support. This has been verified by an arborist report.

- The new dwelling exceeds the minimum required setback distances being 900mm at ground level. The proposal also presents a side setback of 2.7m to the upper storey, which far exceeds the minimum requirement of 1.5m.

- Submitted shadow diagrams including an existing shadow diagram demonstrate that overshadowing of the adjoining allotment already occurs and is only moderately exacerbated by the new dwelling.

- The current title sits over 2 lots. Should the lots be developed individually with single dwellings including minimum side boundary setbacks of 900mm/1500mm, the unavoidable overshadowing would far exceed that of the current proposal.

- The house easily complies with the height limit which limits the length of shadow

On 29 April 2022, Ms Galle also sent an email to Jonathan Lynch (Mr Lynch) and Mr Smith seeking Mr Lynch’s “thoughts on this one regarding shadow given strong neighbour objection”. Mr Lynch responded on 2 May 2022. His response was incorporated in the Report as extracted above.
On 3 May 2022, Mr Amirbeaggi sent an email to Mr Smith, copying a number of people including the Mayor. The email was as follows (replicated from original):

Dear Sam,

I received a call from someone within Council last week who identified herself as the Manager of Planning. I was in transit, and doa€” have a record of her name a€” I think it was Debbie/ Debra?

She mentioned however that further reasons or justification would be published by the Council with respect to the development application. Neither me nor client have received any such publication. Might we have copies of any further publication without delay.

Additionally, I am Instructed by my client that the Applicants said words to her to the following effect: a€œ [ie you â€” Sam Smith] is very pro-development,a**nd the one to get at Coundl to make sure development applications go throughom Because of that asserted representation, and with procedural fairness/ my dlent3C-s foreshadowed Summons In mind, please let us have copies of all communication had between you/ the Council, and the Applicants, with respect to the property the subject of the development application. We look forward to your further advice.

On 5 May 2022, the Governance Officer of Council responded to Mr Amirbeaggi’s 3 May 2022 email in the following terms:

Good morning Farshad,

I refer to your email of 3 May 2022, directed at Sam Smith, Town Planner at Council, which called into question Sam Smith’s integrity.

The accusation relayed from your clients potentially raises serious matters about the integrity of decision-making in relation to the DA. Given the nature of the comments, it was inappropriate to directly address these to the Council officer. Should you wish to pursue a formal complaint, this should be done with Council through the corporate email at, tsc@tweed.nsw.gov.au, where it will be tasked to Council’s Complaints Coordinator for review against Council’s Compliments and Complaints Handling Policy. The provision of evidence supporting any allegations made against Sam Smith would be necessary, to assist an investigation.

In respect to your demand for copies of all communication had between Sam Smith (Council) and the applicants for DA20/1021 it is noted that DA20/1021 is still an active development assessment file. At the conclusion of the assessment process, the appropriate way to obtain this information is to lodge an access to information access request with Council, under the Government Information (Public Access) Act 2009 (NSW), or alternatively they could be accessed via a subpoena obtained through the courts.

After speaking with Council’s Manager Building Environmental Health Denise Galle, on Friday 29 April, I understand from Ms Galle that a summary of some of the key matters discussed included:

• Ms Galle explained her understanding of the Appeal options for DA20/1021 for your client as an objector. This was based on no merit appeal rights and only judicial review options under the Environmental Planning & Assessment Act 1979.

• You explained that you felt there was a judicial review opportunity on DA21/1021 as you and your client felt that the overshadowing implications of the application met a judicial review threshold and you had consulted with many people in the industry who agreed with you.

• Ms Galle indicated Council is always prepared to discuss DA Matters and wants to give your client as the objector every opportunity to review all the DA Material via the DA Tracker and accordingly the additional clarifying letters supplied by the applicant were uploaded to the DA Tracker. Ms Galle indicated she was prepared to allow you and your client a further 7 days to review these documents and make any comments you want considered before the final assessment of DA20/1021 was undertaken.

• You made suggestions that your client would be happy if the pool was relocated into the 7(f) zone at the rear of the site to enable the building to be shifted further to the north to reduce the shadow implications for your client.

• Ms Galle explained that a swimming pool was a prohibited land use in the 7(f) zone under LEP 2000.

• You questioned why a pool had been approved in the rear 7(f) portion of a property in Echo Lane Casuarina and Ms Galle explained that the properties along the rear of Echo Lane do not have a portion of 7(f) zone and any erected pool in the rear yards would be entirely permissible at the subject site.

• Ms Galle concluded the conversation by offering documentation on the DA tracker and explaining that your client could still ask two Councillors to “call up” the DA to a full Council Meeting. Ms Galle explained that given the estimated cost of the development was over $1 million as Officers we would also be asking the Councillors if they want to call up the determination of the DA.

• Ms Galle indicated you seemed satisfied with the conversation and said you were grateful for the conversation.

Since this conversation additional information supplied by the applicant for DA20/1021 has been uploaded to the DA Tracker as discussed with Ms Galle - this can be viewed at DA tracker and property search I Tweed Shire Council (nsw.gov.au) by typing in DA20/1021. Ms Galle has advised that should you have any further comments you or your client wishes to make on the DA such comments should be received no later than Wednesday 11 May at midday.

Given the nature of your comments towards Sam Smith please ensure any and all future communication is sent to tsc@tweed.nsw.gov.au and CC: to dgalle@tweed.nsw.gov.au. Ms Galle will be your point of contact on DA20/1021 going forward. Her direct line is 02 6670 2434.

On 5 May 2022, Mr Amirbeaggi responded to Mr Darcy Cross to the effect that he had approached the Minister for Planning for an inquiry into the conduct of Council and his clients would shortly file their summons for relief.
The Councillors were subsequently asked whether they wished to call up the application for determination or whether they were happy for it to be dealt with under delegation. The matter was dealt with under delegation. Ms Galle emailed Mr Smith on 20 May 2022 notifying him that she would review the report and “sign consent”. Mr Amirbeaggi was notified on 20 May 2022 that Council staff will proceed to determine the application under delegation “as Councillors declined to call up the application to a full Council Meeting”. Mr Amirbeaggi immediately responded requesting advice as to when the determination is issued “so that we are able to file our Summons for Judicial Review”.

Formal approval and commencement of proceedings

On 14 June 2022, around 18 months after the development application was lodged, Council determined it by the grant of the Consent, subject to conditions. Ms Conway was notified of this by letter dated 14 June 2022.
Proceedings were commenced by Ms Conway in the Land and Environment Court on 13 September 2022. On 18 August 2023 the proceedings were transferred to this Court.

The expert evidence

In addition to the lay evidence, some expert evidence was relied on by the parties, principally Ms Conway.

Mr Joshua Andren

First, Ms Conway tendered two reports from Mr Joshua Andren (Mr Andren), a director of Integrated Design Group dated 8 September 2022 and 23 May 2024 respectively. Mr Andren is a Registered Architect and a Registered Building Design Practitioner (Architectural).
His first report dated 8 September 2022 commented on the accuracy of the shadow diagrams submitted by Leeroy as part of the application. The second, and more extensive report, dealt with a number of issues, being:

(a) compliance with Council DCP (not just limited to cl. 4.3); (b) whether there are more reasonable and practical design changes available to Leeroy to bring its proposal into compliance with Council’s DCP; (c) whether the plans and shadow diagrams presented by Leeroy to Council are accurate; (d) the measure of any setback or height restriction required on the Leeroy Land to maintain the quality of natural light and ventilation the Conway Land presently enjoys or that would, at least meet compliance with Council’s DCP.

A number of objections were raised by Leeroy to the opinions expressed by Mr Andren. In light of the objections, a number of paragraphs of the report were not read – paragraphs 11, 12, 20 to 25 and 26 to 35 (dealing with the clauses of the DCP other than cl. 4.3). I admitted paragraphs 13 to 19 and 40 to 44 – concerning compliance with the DCP and the accuracy of the plans and shadow diagrams - subject to relevance. Paragraphs 36 to 39 were admitted without limitation – dealing with the second of the issues set out above. Paragraphs 45 and 46, dealing with issue (d) as set out above was admitted but only as relevant to whether an easement should be imposed.
Mr Andren expressed the opinion that the proposed building on the Leeroy Land can quite easily be redesigned to address the non-compliances with Council’s DCP without losing the amenity and quality of space currently being provided in the design. Mr Andren prepared what he described as one possible solution, which was contained in annexure 7 to his second report. This solution was a potential rework of the master suite on the first floor to step the upper level back from the boundary and twist the building form to open space for improved light and ventilation.
Mr Andren also expressed the view that the bounds and measures of any easement that would ensure compliance with the DCP solar access and ventilation requirements would be as follows:

(a) a setback of any proposed dwelling on the Leeroy Land from its southern boundary at ground level at 2.1 metres and travels through along that boundary to 36.86 metres; (b) a setback of any proposed dwelling on the Leeroy Land from its southern boundary at first floor level at 2.7 metres and travels west to east along that boundary at a depth from the front boundary of 23.57 metres; (c) a setback of any proposed dwelling on the Leeroy Land from its southern boundary at first floor level at 4.78 metres and travels west to east along that boundary beginning at the front boundary of 23.57 metres and continuing to a depth of 36.86 metres from the front boundary; (d) a setback of any proposed dwelling on the Leeroy Land from its southern boundary at all levels starting at 4.78 metres and extending at 45 degrees to the side boundary to provide increasing side setback and that travels west to east along that boundary beginning at a depth at the front boundary of 36.86 metres and continuing towards the rear of the site; (e) a restriction on the height plane of any proposed dwelling on the Leeroy Land limited to a building defined by a 30 degree plane springing from AHD 14.19 along the first floor setback line at the southern boundary.

A diagram, prepared by Mr Andren, depicting the bounds and measures of the proposed easement is set out below:
Ms Conway prepared an instrument setting out the terms of the easement which she says should be imposed – either by way of an implied easement or pursuant to s 88K of the Conveyancing Act – having regard to the opinions expressed by Mr Andren. A copy of the proposed instrument was provided to the Leeroy parties on the morning of the first day of the hearing and was subsequently admitted into evidence as Exhibit H.
Mr Andren also prepared a further supplementary report, dated 27 February 2025 in which he provided a sketch plan for a dwelling located entirely on Lot 51 which, in Mr Andren’s opinion, complies with the relevant requirements of Council’s DCP and LEP, as well as accommodates the easement proposed by Ms Conway for the maintenance of solar access and natural ventilation to the Conway Land.
Mr Andren was cross examined relatively briefly on the morning of day two of the hearing.
When called to give evidence, Mr Andren gave some further brief evidence in chief:

(a) that in his opinion, it may be possible for an amended development application to be submitted, as opposed to a new development application, to seek approval for the design set out in his second report. If an amended development application was possible, the costs would be in the order of $10,000 to $15,000, whereas if a new development application was necessary, the costs would be in the order of double that, between $20,000 to $30,000; (b) a new development application would be required for a dwelling located entirely on Lot 51, as sketched by Mr Andren in his supplementary report. The cost of submitting such a new development application would potentially be $30,000 to $40,000.

The effect of the cross examination of Mr Andren may be summarised as follows:

(a) Mr Andren was first cross examined as to the fee estimates that he gave in his oral evidence in chief. He agreed that other architects may work on a different fee structure to that which he proposes, including that some may work on a percentage of the build cost. He also agreed that there may be costs of additional consultants on top of an architect’s fee, although if separate consultants were engaged, the architect’s fee may be reduced accordingly. He did not agree that the total cost could be double what he had estimated of between $30,000 to $40,000; (b) Mr Andren maintained that although in his pivoted first floor design, the wall orientation is to the north-east and north-west, the first floor still receives full sun from the north; (c) Mr Andren has not taken engineering advice in the construction method of the pivot of the mass of the building over the ground floor below, as this is just a concept design; (d) although he agreed that neighbouring dwellings are much more rigid, following the grid pattern and the sub-division pattern, i.e. that there is a consistent building form, Mr Andren did not agree that his proposed design is out of character; (e) Mr Andren agreed that the general form of neighbouring properties is to build up to the southern boundary and have their living areas and private open space on the northern boundary, and what he is proposing is not seen elsewhere in the street; (f) Mr Andren had not undertaken any BASIX analysis in relation to his concept design; (g) Mr Andren agreed that his recent single dwelling concept sketch does not comply with DCP controls and that in this design he is taking advantage of the flexibility that one gives to a DCP control; (h) Mr Andren calculated the floor space ratio of his proposed design as 0.3 to 1, but he would not agree that if the permitted floor space ratio was 2 to 1, his proposal was a significantly underperforming built envelope. He maintained that the scale and bulk of it is in keeping with the houses in the area. He ultimately agreed that his proposal was a smaller footprint than some of the other houses have adopted, but that footprint is to respond to overshadowing to the neighbouring dwelling – the Conway Land.

Mr Bryce Claassens

Ms Conway tendered an expert report of Mr Bryce Claassens of Urban Abor (Mr Claassens). Mr Claassens is a consulting arborist. Mr Claassens’ report was objected to. Paragraphs 2.9.4 and 2.9.5 were ultimately not read and I admitted the report, over objection, as relevant only to whether an easement should be imposed. Mr Claassens was not cross examined.

Mr Kevin Peddie

Ms Conway tendered a report from Mr Kevin Peddie of RWDI Australia Pty Ltd (Mr Peddie). Mr Peddie is a chartered and registered engineer who was asked to express opinions as to whether the development application meets compliance with clauses 4.3 and 4.5 of the DCP and, if not, what modifications were needed to bring it into compliance with those provisions? Again, Leeroy objected to the report in its entirety. Paragraphs 4.23 to 4.27 and 4.33 to 4.35 were not read. Otherwise I admitted the report.
Mr Peddie was then cross examined, briefly. In cross examination, Mr Peddie admitted that he did not have any study, or training, or hold any experience on the matter of development assessment. Further, he had not previously had any role of project managing a whole development application. His area of expertise was confined to advice or consultation in his role as an engineer.
In light of the answers given in cross examination, I do not propose to place any weight on the opinions expressed by Mr Peddie. No submission was advanced on behalf of Ms Conway to the contrary.

The valuation evidence – Mr Scott Walker and Mr Mark Ellis

Each of the parties qualified an expert valuer to express an opinion on the diminution in value on the Leeroy Land of the grant of an easement of the kind contended for by Ms Conway. Ms Conway tendered a report from Mark Ellis (Mr Ellis), dated 28 May 2024. Leeroy tendered a report from Mr Scott Walker of Herron Todd White (Mr Walker) of 12 July 2024.
There are number of differences of opinion between Mr Ellis and Mr Walker. They gave evidence concurrently which proved to be extremely efficient. I deal with the differences of opinion, and their resolution, later in these reasons when dealing with the compensation payable under s 88K(4) of the Conveyancing Act.

Judicial Review of Council’s Decision

A number of grounds of judicial review were advanced by Ms Conway in the statement of claim. Ultimately, only two bases were principally advanced in closing:

(a) failure to consider the DCP in its terms as prescribed by s 4.15 of the EPA Act; and (b) manifest unreasonableness.

A contention of denial of procedural fairness was also maintained in closing submissions, although lightly pressed.
Senior counsel for Leeroy observed that the grounds ultimately pressed departed from the pleaded case – particularly in relation to the alleged claim of unreasonableness – but accepted that Leeroy was able to deal with the claims as ultimately pressed.
I consider each of these three grounds below. Before doing so, I set out the relevant legislative and planning background.

The statutory process of development assessment and approval

There was no dispute between the parties as to the relevant statutory regime.
Under s 4.16(1) of the EPA Act: a consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.

This power can be exercised by Council at a meeting or by a delegate: see ss 377-378 of the Local Government Act 1993 (NSW).
Section 4.15 of the EPA Act relevantly provides:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

…

(iii) any development control plan, and

…

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

…

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

The predecessor to what is now s 4.15(3A), (s 79C(3A)), was enacted to deal with the then perceived dominance that provisions of DCP’s were achieving in development assessment. As its provisions make clear, the consideration of any DCP control must be a nuanced evaluation of several competing factors. The Second Reading Speech to the Environmental Planning and Assessment Bill (2012) (New South Wales Legislative Assembly (Hansard), 24 October 2012), stated:

Councils have always been able to provide additional guidance—I stress “guidance”—through development control plans. The problem this bill addresses is twofold. First, development control plans have gone from guiding development to being given the same weight, and sometimes seemingly more weight, than the relevant local environmental plans. This follows court decisions that have determined greater weight will be given to plans that are consistently—that is, repeatedly—applied. As a result, councils have become increasingly unwilling to depart from the guidance provided in the development control plan when assessing applications.

Secondly, the controls in development control plans have grown and become ever more complex and prescriptive. This makes it harder for projects to comply with the controls. Taken together, these changes have led to greater complexity, greater prescription and greater inflexibility. The bill will redress the imbalance and ensure that consent authorities will be able to continue assessing development against their existing development control plans, but they must adopt a more flexible performance-based approach. The bill makes it clear that development control plans are guidelines, and have less status than local environmental plans and State environmental planning policies in the assessment process. The bill also makes it clear that development control plans implement planning instruments rather than the other way around. (Emphasis added.)

Tweed Development Control Plan 2008 (DCP) provides controls to guide the planning and design of, inter alia, residential development within Tweed Shire.
Section A1, Part A – Preliminary Information of the DCP, provides at clauses 1.4 and 1.5:

1.4 Objectives of this section

The over arching objectives of this section are:

Provide for a diversity of types and sizes of residential and tourist related development throughout localities;

2. Ensure that development is compatible with the local natural and built character, scale and amenity;

Ensure quality residential and tourist development which responds to the features of the sites and the Tweed’s subtropical climate; and

Encourage development that incorporates the principles of sustainability in design, materials and lifecycle.

1.5. How to use this Section

The Residential and Tourism Development Code (‘the Code’) is divided into a number of Design Themes relating to the site context, the site, the building envelope controls, building design, building performance and ancillary development.

Each Design Theme is structured to include:

• an explanation of the design criteria and why it is important the design criteria is considered and addressed;

• where relevant, over-arching planning and design principles;

• a range of objectives to achieve desired outcomes; and

• the design controls.

The design controls are a development guideline and represent a possible acceptable solution to meet the design theme objectives and planning and design principles. It is acknowledged that there may be other acceptable solutions. Where a development application seeks an alternative solution to a design control this must be documented within the Statement of Environmental Effects (SEE), and include:

• Identification of the design control being varied; and

• Justification, supported by a detailed site analysis:

- detailing why the design control cannot be met; and

- demonstrating how the alternate proposal achieves the design theme objectives and planning and design principles.

It may be observed that the DCP guidance as to its application is consistent with s 4.15(3A)(b) of the EPA Act, in that it provides for the flexible application of the design controls where reasonable alternative solutions are identified that achieve the objects of the standard.
Section A1, Part A, Dwelling Houses, Dual Occupancy, Secondary Dwellings, Alterations and Additions and Ancillary Development of the DCP, addresses at section 4, Building Design, and at cl 4.3, in particular, Solar Access and Natural Ventilation:

4.3. Solar access and natural ventilation

It is important when designing buildings to consider access to sunlight and natural ventilation as well as the impact on the solar access of the adjoining properties. In some instances, overshadowing may be unavoidable however unreasonable overshadowing of neighbours as a result of poor design is not acceptable.

Planning and design principles

P1. Maximises sunlight access and natural ventilation whilst minimising potential sunlight access and overshadowing issues for adjoining properties.

P2. Small lot housing sites that are often constrained by narrow frontage, incorporate north facing courtyards, internal voids and double volume spaces combined with highlight windows to improve solar access and natural ventilation.

Objectives

To ensure the dwelling is sited and designed to maximise sunlight and daylight access and natural ventilation to living spaces and external living areas.

To minimise the potential impacts on solar access and natural ventilation to adjoining properties.

Controls

C1. Two storey or greater development must prepare shadowing diagrams over the subject and adjoining sites for the summer solstice (21st December), winter solstice (21 June) at the times of 9am, 12pm and 3pm. Shadow cast by fences, roof overhangs and changes in level are to be considered and should be indicated on shadow diagrams submitted.

C2. Private open space of the subject dwelling is to receive at least two hours sunlight between 9am and 3pm on June 21.

C3. Windows to north-facing habitable rooms or external living spaces of the subject dwelling are to receive at least 3 hours of sunlight between 9am and 3pm on 21 June over a portion of their surface.

C4. For neighbouring properties ensure:

i. Sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21, and

ii. Windows to living areas must receive at least 3 hours of sunlight between 9am and 3pm on 21 June.

iii. Where existing overshadowing by buildings is greater than this, sunlight is not to be further reduced by more than 20%.

C5. New dwelling design should minimise overshadowing on existing adjacent solar panels where other reasonable design alternatives are possible.

Denial of procedural fairness

It is convenient to deal first with the claim that Ms Conway was denied procedural fairness. The contention can be dealt with quite shortly.
The essence of Ms Conway’s contentions in this regard may be summarised as follows:

(a) in circumstances where Council had prior to 2022 indicated an intention to deny approval of the proposed DA, the dramatic change in Council’s position as at 2022 based on “new material, required a proper opportunity to consider and respond to the submission before it had made up its mind”; (b) Leeroy submitted new material that significantly altered the consideration of Council – this new material was not provided until 20 May 2022; (c) Council was itself engaging in process beyond the statutory limits and notification requirements; (d) at the time the new material was provided, Council had already expressed its concluded view that it would approve the assessment – Mr Smith’s signature on the Assessment recommending the approval is dated 28 April 2022; and (e) no realistic opportunity was given to respond to the new material that significantly changed Council’s view and its obvious adverse impact on Ms Conway should have resulted in her being given a further opportunity to respond.

Leeroy’s contentions may be summarised as follows:

(a) the application was notified in accordance with Council’s Community and Engagement Participation Plan and Ms Conway responded making submissions as was her right; (b) the EPA Act provided for no further right for Ms Conway to be personally consulted with respect to any “new materials” and any further common law obligation was excluded; (c) in any event, Ms Conway was provided further opportunities for participation – see Mr Smith’s email to Ms Conway dated 28 April 2022 providing Ms Conway with an update and advising her that if she wished to pursue the matter further she could engage a minimum of two elected Councillors to call the application up for determination via a Council meeting. Mr Amirbeaggi responded that a further objection would be provided within seven days. No further objection was filed. Instead, in further correspondence, Mr Amirbeaggi foreshadowed legal action.

I accept the contentions of Leeroy.
A Council (or its delegate) must consider “any submissions, made in accordance with” the EPA Act by force of s 4.15(1)(d) and the “public interest” by force of s 4.15(1)(e). The EPA Act provides mandatory community participation requirements in respect of “the exercise of relevant planning functions”: see s 2.22(1) of the EPA Act and Part 1 of Schedule 1.
By reference to clause 7(1) of Part 1 of Schedule 1, the “minimum public exhibition period” for a generic application for development consent is the period prescribed in a “community participation plan”.
Council adopted its Community Engagement and Participation Plan 2019-2024 (CEPP) on 21 November 2019. There is no suggestion that the present application was not advertised in accordance with the CEPP. It is accepted that it was.
In Sisic v Rockdale City Council (2007) 158 LGERA 170; [2007] NSWLEC 687 (Sisic), Pain J stated at [82]:

Consideration of the comprehensive scheme provided for by s 79A(2) of the Act through the DCP and the above cases Muli Muli, Hillpalm and the majority judgment in Vanmeld suggests that Parliament does intend that the provisions made under the Act specify the procedural obligations of the Council in relation to the notification of development applications. I have held that this has been complied with. Accordingly there is no room for a finding that the Applicant has been denied procedural fairness in the circumstances of this case.

Senior counsel for Ms Conway did not contend that Sisic was wrongly decided. Rather, the focus was on the particular engagement between Council and Ms Conway in the present case. I do not accept that the dealings between Ms Conway and Council give rise to any obligations of procedural fairness over and above the requirements of the statutory scheme, which were complied with.
In any event, at a factual level, I accept that Ms Conway was given access to the relevant material and given an opportunity to respond. The relevant chronology is set out above. The email communications from Mr Amirbeaggi from 28 April 2022 and thereafter suggest that Ms Conway did not wish to take up any further opportunity to respond but wished for Council to finalise its determination so that Ms Conway could exercise her appeal rights.
I reject the contention that Ms Conway was denied procedural fairness.

Failure to consider the DCP in its terms?

The essence of the case propounded by Ms Conway was that Council failed to consider cl. 4.3 of the DCP as it improperly adopted what was put by Leeroy’s town planning experts and construed the reference to “principal area of private open space” to be only the unroofed area on Lot 52 and not the entire area of open space, including that which was roofed. So the argument ran, relying on this erroneous construction, Council determined that the unroofed area was already substantially overshadowed such that the numeric requirements in the DCP could never be achieved. Council thereafter set about justifying its determination on a wrong factual basis and did not consider minimising the impact on Lot 52, one of the objectives of the relevant part of the DCP, and thus failed to comply with s 4.15(3A) of the EPA Act.
As put by senior counsel for Ms Conway in oral closing submissions, Council’s consideration effectively became switched around – from a consideration of the requirements of the DCP cannot be satisfied as opposed to a consideration of how can the requirements be satisfied. Council proceeded on the basis that there is no design that can meet the parameters because there is already just about 50 percent of the area overshadowed and therefore, there is nothing that can really be done to meet these parameters.
An essential integer in the complaint is that the reference in cl. 4.3, particularly C4(i), to “principle area of private open space” is a reference to the entirety of the area, including roofed and unroofed, and that Council by confining itself to only the unroofed area, did not give consideration to C4(i) and thus failed to fulfil its statutory function.
So the argument ran, whilst s 4.15(3A) required a flexible approach to be adopted, when an application does not comply with the standards in a DCP, the flexible approach must be applied to achieve the objects of the standard. In the present case, one of the relevant objects is to minimise the potential impacts on solar access and natural ventilation to adjoining properties. The contention is Council failed to apply the flexible approach to meet the objective of minimisation. It was contended that this was manifest on the face of the Report. The expert report of Mr Andren was put forward in support of a contention that minimising the impacts on Lot 52 could be achieved without detrimentally affecting maximising sunlight to the Leeroy Land.
Leeroy’s response may relevantly be summarised as follows:

(a) the Report shows a proper understanding of the relevant control and a correct identification of the issue and that the numerical control was not met; (b) the Report then shows reasoning demonstrating that the objective to minimise or reduce the impact had been met: see page 15 of the Report; (c) the Report shows a rational analysis of a balance being struck as to the reasonable expectations for built form and amenity in respect of the two properties (i.e. to balance the objectives of “maximising” the availability of solar access to the proposed dwelling while trying to “minimise” an impact on a neighbouring property): see in particular page 18 of the Report; (d) the Report noted the degree of additional overshadowing to the Conway Land but found that the degree of overshadowing is an acceptable outcome – this is a factual analysis within the boundaries of rational outcomes open to an assessment on the merits; (e) there was no asking of any wrong question. Even if Ms Galle should be taken as adopting Mr Smith’s analysis in the Report, attention to the unroofed portion of Lot 52’s private open space was an identification that the proposed built form failed to meet the controls of the DCP – there is no evidence to suggest that this conclusion was incorrect or itself unreasonable. Accordingly, even if the area of private open space to be considered to determine if the control was met was under or larger, this would not have made the proposal any more compliant and so any error is entirely immaterial; (f) in any event, Ms Galle did not confine herself to the unroofed area – her email exchange with Mr Lynch was not so limited. Rather, it proceeds on the quite proper identification that the application was not compliant; (g) Ms Conway’s complaint is really with the manner of the assessment, which is a matter of merit for Council and not for the Court on a judicial review challenge.

I do not accept that Council failed to consider the DCP in its terms or failed to comply with s 4.15(3A) of the EPA Act by failing to consider minimising the impact on Lot 52.
As a starting point, I do not accept that Ms Galle simply adopted the analysis of Mr Smith. The statutory discretion was exercised by Ms Galle under s 4.16(1) of the EPA Act. Ms Galle (as Council’s delegate) is presumed to have constructive knowledge of the “file” relating to the relevant application: Schroders Australia Property Management Ltd v Shoalhaven Shire Council [2001] NSWCA 74 at [67] per Ipp AJA (Spigelman CJ and Sheller JA agreeing).
It is appropriate to have regard to all of the available information to which Ms Galle had access: see, for example, Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 at [88] per Pain J.
In any event, it is apparent on the face of the Report that, as I have set out above, it includes material after the purported date of the Report including the response from Mr Lynch to Ms Galle’s email regarding overshadowing.
The email from Ms Galle to Mr Lynch dated 28 April 2022 to which Mr Lynch responded on 2 May 2022 (his response being included in the Report) seeks Mr Lynch’s views generally on overshadowing given Ms Conway’s strong objection. It is apparent from Mr Lynch’s response (which was adopted by Ms Galle) that he then considered the relevant drawings and overshadowing diagrams and assessed the impact on Lot 52.
There is nothing in Mr Lynch’s email to suggest that he approached his review with a preconceived view as to whether the extent of the overshadowing should be assessed by reference to only the unroofed portion of the open space on Lot 52. Again, there is nothing in Ms Galle’s request to suggest she similarly had a preconceived view. Ms Galle clearly adopted Mr Lynch’s view by including it in the Report. Both proceed on the basis of whether the application should be approved given the overshadowing. Mr Lynch’s response demonstrates a balancing between Lots 51 and 52.
I therefore do not accept that Council approached the task of considering Solar Access and Natural Ventilation under cl. 4.3 of the DCP on the basis that only the unroofed portion of the open space area on Lot 52 should be considered, and that Council determined that compliance with the DCP controls was impossible.
I do not discern any error in the approach of Council in considering the provisions of the DCP.
The chronology set out above establishes that it was Council that requested ZPG to submit shadow diagrams by reference to the unroofed portion and ZPG complied with this request, contending also that it was the entire area that should be considered in assessing the controls in the DCP. Whilst perhaps this is a small point, contrary to the contentions of Ms Conway, Council did not simply adopt what was submitted by ZPG.

(a) on page 15, that the original proposal whilst compliant with side setbacks, was considered unsatisfactory in terms of the overshadowing of the Conway Land and amendments were requested to better reduce the overshadowing impact towards the Conway Land clearly seeking to give effect to object 02. Amendments were thereafter made increasing the ground floor setback to 2.1m and the first floor setback to 2.7m; (b) on page 17, consideration was given to what other areas of open space existed on the Conway Land – obviously relevant to the impact of the proposed dwelling on Lot 52 as was observed on page 18 of the Report; (c) on page 18, there is a clear consideration of the impacts on both the Leeroy Land of moving the proposed development to the north (relevant to both objects) and the impact of the revised plans in terms of overshadowing of the Conway Land (object 02). Council’s conclusion at the bottom of page 18 of the Report is:

Therefore with regard to the above control, the proposal, while not numerically compliant is considered to be an acceptable outcome given the site constraints, setbacks afforded and building height, and the orientation of the allotment being east-west. It is considered reasonable, that while the principle area of private open space to No.... Harper Court will be overshadowed, the degree of overshadowing is an acceptable outcome. (Emphasis added.)

(d) on page 28 of the Report, the contents of Mr Lynch’s email are set out. The email clearly considers, in substance, the two objects and concludes that the outcome is a reasonable one.

I accept that the Report does not directly refer to each of the objects in terms. As a matter of substance however, it clearly considers each of the objects and rationally assesses each, concluding that the outcome is a reasonable one.
Ms Conway’s complaint really is to the manner of assessment – this is a matter for Council’s assessing officer, not the Court on this application.

Unreasonableness

It was not in dispute that the power of a consent authority in determining a development application is discretionary – the discretion being conferred by the terms of the EPA Act. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [63] per Hayne, Kiefel and Bell JJ and the cases there cited.
In Martin**us Rail Pty Ltd v Qube Re Services *(*No 2) Pty Ltd [2025] NSWCA 49, Payne JA (with whom, Gleeson JA and Griffiths AJA agreed) recently set out in a comprehensive way the principles regarding the unreasonableness ground of judicial review at [75]-[79] in the following terms:

[75] The unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68] (Hayne, Kiefel and Bell JJ). In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) at [6.450], it is suggested, in my view correctly, that Li “invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge’s subjective sense of reasonableness”.

[76] In Li, French CJ said:

[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence”. As Professor Galligan wrote [DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford University Press, 1986) at 140]:

“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.”

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions. (footnotes omitted)

[77] The plurality in Li, Hayne, Kiefel and Bell JJ, held that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: at [63]; see also Attorney-General for the States of New South Wales v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [126]; Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [15]. Their Honours continued in Li:

[65] In Sharp v Wakefield [[1891] AC 173 at 179], it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by “according to law”. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”. It is pointed out in Wade and Forsyth [Administrative Law (Oxford University Press, 10th ed, 2009) at 293-294] that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke’s Case [(1597) 5 Co Rep 99b at 100a; 77 ER 209 at 210], in which it was stated that the discretion of commissioners of sewers “ought to be limited and bound with the rule of reason and law”.

[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

…

[68] Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area. (footnotes omitted)

[78] Gageler J said (footnotes supplied):

[90] Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty [R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; [1944] HCA 42; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [34]; [2000] HCA 5]. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute [Sharp v Wakefield [1891] AC 173 at 179, cited in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 431; [1944] HCA 42 and in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620; [1945] HCA 4. See generally R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] HCA 27; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18; [1976] HCA 20; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [62]; [2001] HCA 17].

[79] Considerable care is warranted in addressing a complaint of judicial review on the ground of legal unreasonableness, lest the review for jurisdictional error slide impermissibly into merits review. There is usually a high threshold for a conclusion that a power has been unreasonably exercised as a matter of law: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 at [25]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11], [52], [89] and [135].

As Ms Conway argued, a decision will be legally unreasonable if it is lacking an evident or intelligible justification, irrational or illogical, or plainly unjust, arbitrary or capricious, or lacking common sense.
Leeroy placed considerable weight on the fact that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker to accord such weight to those considerations as the decision maker considers appropriate, accepting that a Court may set aside any administrative decision where the decision maker fails to give adequate weight to a relevant fact of great importance: see Warkworth Mining Ltd v Bulfa Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [196] per Bathurst CJ, Beazley P and Tobias AJA.
Leeroy also emphasised that even perverse findings of fact cannot create jurisdictional error: see Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 at [148] per Preston CJ of the Land and Environment Court (LEC).
At a factual level, Ms Conway relied on a number of the same matters relied on in relation to the first ground (failure to consider the DCP in its terms) as also demonstrating unreasonableness in the relevant sense.
In particular, it was contended that:

(a) the power that is provided by s 4.15(3A) of the EPA Act has to be directed to achieving the purpose of that section, being to achieve the objects of the DCP. If Council failed to do that, then Council is not applying the power at all towards the purpose of it; (b) the decision of Council was irrational, illogical or arbitrary in that it purported to rely upon an arborist report and an ecologist report as a justification for not being able to move the footprint to the north, when in reality, neither report provided such justification; (c) Council relied on a misapplication of the guidelines concerning the shadowing of the private open space - focussing on the unroofed section rather than the entire principal area of private open space; (d) the error was material because until the “improper” justification was provided by reference to the unroofed section alone, Council was proposing to deal with the application by likely refusing it. Mr Andren’s evidence of design possibilities show that the dual objects of maximising sunlight to Lot 51 and minimising its loss to Lot 52 can be satisfied.

Leeroy contended that Council’s decision was one well within the discretional freedom afforded the decision maker;

(a) the “decisional freedom” afforded by s 4.15(3A) allows for a significant range of views to be formed in the determination of how a built form might “justify” the maximising of solar access to a proposed dwelling with various reasons given for why this should nevertheless be considered to minimise the impact on neighbouring land; (b) the operation of s 4.15(3A) and the terms of the DCP itself speak against the idea that there is some legal outcome that the only way to comply with the DCP control provision is to move your built form around until it is compliant. Mere non-compliance does not indicate that the objectives are not fulfilled; (c) the reasons provided by Council for making the decision that they did, as set out in the Report, are all rational. The document prepared by Mr Smith and Ms Galle are replete with rational reasons for falling within the range or striking the balance set out in (a) above; (d) Ms Conway’s contentions, properly analysed, disagree with the manner of assessment, which is a matter of merit for the assessing officer.

Conscious of the high threshold for a conclusion of unreasonableness, I am not satisfied that Council’s decision to grant consent was unreasonable in the relevant sense. The decision reached was well within the bounds of the decisional freedom afforded to Ms Galle as the decision maker. It cannot be described as lacking in evident or intelligent justification, as being irrational or illogical or plainly unjust, arbitrary or capricious, or lacking common sense.
The Report demonstrates a rational assessment of the relevant issues. The nature of the exercise is such that on the facts of the present case there were a broad range of legally permissible outcomes – balancing the interests of Leeroy in being able to build within existing controls and the interests of Ms Conway in minimising the potential impacts of the development on Ms Conway’s solar access and natural ventilation.
Ms Conway’s contentions would have the effect that the only legally reasonable decision was one which complied with the relevant DCP controls. I do not agree. The clear terms of s 4.15(3A) and the terms of the DCP itself speak against this.
I have dealt above with the complaint that Council failed to consider the relevant objects of the DCP – minimising the potential impacts on Ms Conway’s solar access and natural ventilation. I reject that complaint.
I have also dealt above with Ms Conway’s contention that Council misapplied the guidelines by focusing on the unroofed open space area. I also reject that contention.
The remainder of Ms Conway’s complaints under this head relate to alleged factual errors – namely whether the arborists report and an ecologist report provided a justification for not being able to move the footprint to the north. It is worth remembering that such factual findings even if perverse, cannot create jurisdictional error.
In any event, I do not accept that Council made the factual errors alleged. The email submission from ZPG dated 21 February 2022, which again attached Leeroy’s Arboricultural advice, contended that moving the proposed dwelling further to the north was not without further issues including tree removal. The submission identified the relevant trees and provided a reference to the attached Arboricultural report. The attached report identifies the trees on the Leeroy Land although it does not express any opinions consistent with the email submission. That was not the purpose of the Report.
That email submission also referred to the potential impact on the northern boundary of the Leeroy Land if the proposed dwelling was moved to the north. It was open to Council to accept this submission.
Council’s ecological impact assessment was directed at the Application and not specifically at any proposal to move the proposed development to the north. It thus does not appear to support the proposition expressed in the Report. The proposition accepted by Council was, however, supported by Leeroy’s submissions.

Impact of Part 3 Div 3 of the Land and Environment Court Act

Counsel for both parties quite properly drew my attention to section 25B of the Land and Environment Court Act 1979 (NSW). That section provides:

25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order -

(a) suspending the operation of the consent in whole or in part, and

(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation) -

(a) terms requiring the carrying out again of steps already carried out, or

(b) terms requiring the carrying out of steps not already commenced or carried out, or

(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

In circumstances where I have rejected the challenges to the Council’s decision, I do not need to consider s 25B.

The implied easement claim

Ms Conway claims that an implied easement to provide adequate solar access and natural ventilation exists to the benefit of Lot 52, burdening the adjoining lots including the Leeroy Land and, in particular, Lot 51. The scope of the easement is identified in the report of Mr Andren dated 23 May 2024.
The principal authority relied on in support of the implied easement is the decision of the Court of Appeal in McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180 (McGrath v Campbell). I set out the necessary elements below.
The origins of the implied easement said to arise in the present case is generally traced back to Wheeldon v Burrows (1879) 12 Ch D 31 (Wheeldon v Burrows).
Whilst Wheeldon v Burrows was decided after Torrens legislation had been introduced in Australia it was not, self-evidently, a decision under the Torrens legislation. The essence of the Torrens legislation is title by registration. Implied easements do not sit comfortably with a system of title by registration.
A number of academic articles have sought to analyse the nature of implied easements and whether they remain valid exceptions to the indefeasibility created by the register: see, for example: M McGuire, ‘A New South Wales perspective of implied and prescriptive easements and the rights in personam exception to indefeasibility of title’ (2006) Australian Property Law Journal 228; LB Moses and C Sherry, ‘Unregistered access: Wheeldon v Burrows easements and easements by prescription over Torrens land’ (2007) 81 ALJ 491; F Burns, ‘Implied Easements and the Integrity of the Torrens System’ (2009) 21 Bond LR 1.
Senior counsel for Leeroy did not dispute that an implied easement could exist over Torrens land. Such a concession was properly made on the current state of the authorities.
In Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 at [37] Brereton J observed that it is doubtful that implied easements can arise in respect of land under the Real Property Act 1900 (NSW) (RPA) because of s 42. At [38] Brereton J stated:

The prevailing view is that easements can be created over Torrens land only in the manner provided by Real Property Act, s 46, and that this does not admit of implied grants of the Wheeldon v Burrows variety. The same considerations apply to easements of necessity. Exceptions in relation to easements created by implied grant before the land is brought under Torrens title are irrelevant for present purposes. However, at least until the decision of the Court of Appeal in McGrath v Campbell, it has generally been accepted that a Wheeldon v Burrows easement, although not noted on the certificate of title of the servient tenement, may be enforced against the registered proprietor of that tenement who created the easement, though not against successors in title.

Brereton J was dealing with a claim against the registered proprietor at the time of the sale to the owner of the putative dominant tenement, rather than against a successor in title, which is the situation in the present case and was the situation in McGrath v Campbell.
There is a real question, in my view, as to whether an implied easement can trump the registered proprietor’s indefeasible title in light of the decision of the Court of Appeal in Williams v State Transit Authority *(*NSW) (2004) 60 NSWLR 286; [2004] NSWCA 179.
In McGrath v Campbell at [118], Tobias JA stated:

In my opinion, there is much force in Professor Butt’s observations about the effect of Williams upon implied easements of the Wheeldon v Burrows type. As he observes, and as I have endeavoured to demonstrate, such an implied easement arises out of the common intention of the relevant parties, which is presumed by operation of law. Prescriptive easements arise in a similar way. If prescriptive easements are trumped by the indefeasibility provisions of the Real Property Act, logic requires that those provisions should apply to implied easements in the same way.

The reference to Professor Butt’s observations were to what was said in Land Law, (Peter Butt, Land Law, (5th ed, 2005, Thomson Reuters)) at 779. The current edition of Butt*’s Land Law (Brendan Edgeworth, Butt’*s Land Law (7th ed, 2017, Thomson Reuters)) maintains the same position – see [12.760] at page 865 and at [12.770] at page 867.
At [119] in McGrath v Campbell, Tobias JA indicated that it was not necessary for him to express a concluded view on the issue. His Honour then turned to consider the particular case before the Court which concerned a claim against a successor in title of the servient tenements. Tobias JA held that the claim failed on the facts. In these circumstances it may be questioned whether what was said by Tobias JA about indefeasibility extended beyond claims against the transferor rather than a successor in title. The observations of Brereton J appear to confine what Tobias JA said to claims against a transferor and not a successor in title.
There are a number of Court of Appeal decisions which have held that implied easements may be enforced in personam against the owner of the burdened land (assuming no change in ownership of that land at the time of the in personam enforcement – a claim against the transferor): see Australian Hi-Fi Publications Pty Ltd v Geh**l [1979] 2 NSWLR 618; Kebewar Pty Ltd v H**awkin (1987) 9 NSWLR 738 at 743; Wilcox v Richardson (1997) 43 NSWLR 4.
As explained by Tobias JA in McGrath v Campbell, the claim against a successor in title of the servient tenement (in a simultaneous or near simultaneous transaction) is based on the Aldridge v Wright exception to the second rule articulated by Thesiger LJ in Wheeldon v Burrows.
Given this basis, and the earlier decisions of the Court of Appeal I have referred to above, I proceed on the basis that a claim of an implied easement of the kind brought in the present case, can stand outside the cloak of indefeasibility.
I turn now to consider the elements of such a claim.
The starting point is what was said by Thesiger LJ in Wheeldon v Burrows (at 49):

… I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case.

Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz, that a grantor shall not derogate from his grant.

In Aldridge v Wright [1929] 2 KB 117, Greer LJ set out (at 130–132) a series of propositions by way of variants to the rules in Wheeldon v Burrows. Propositions one and four are relevant for present purposes. They are as follows:

1. Where the owner of a house and adjoining land expressly sells the house and with it an apparent easement, such as a right to light or a physically defined right of way, and at the same time sells the land, both purchasers being aware of the simultaneous conveyances, there is, in the conveyance of the land, a reservation of the right to the easement. If it were not so the express or implied grant of the apparent easement would be nugatory: Allen v. Taylor.

…

4. Where an owner executes contemporaneous conveyances of adjoining plots with the houses erected on them, and there exists a made road across the land of one plot to an entrance to the house on the other plot, and it is proved that the road was constructed for the use of both houses, there will be implied a grant in the one conveyance of a right to use the road and a corresponding reservation in the other conveyance: Nicholls v. Nicholls. The decision of Russell J. in Hansford v. Jago appears to me to depend upon the same considerations as the decision in Nicholls v. Nicholls.

In McGrath v Campbell, Tobias JA stated at [75]-[77] (emphasis added):

[75] The point I therefore seek to make is that the rule in Wheeldon v Burrows by which a grantor is bound, when he retains the putative servient tenement, to recognise an implied easement over that retained land in favour of the grantee of the land benefited, is based upon the presumed intention of the grantor to transfer to the grantee “all those continuous and apparent easements” which the grantor has himself created when the putative dominant and servient tenements were in the one ownership. The grantor is thus not permitted to derogate from his own grant and, accordingly, the provision of the easement is an implied term of the grant.

[76] But in a case such as the present, to which Aldridge v Wright is said to apply, the purchaser of the putative servient tenement is a grantee and not a grantor. As a consequence, the principle of a grantor not being permitted to derogate from his grant has no direct application. Nevertheless, it seems to me that for that purchaser to take the servient tenement burdened by the implied easement which is the subject of the grant by the common grantor to the purchaser of the putative dominant tenement, it is still necessary for there to be imputed to the former purchaser an intention to take title subject to the burden of that easement.

[77] Or, to consider the matter in the context of implied terms, the party asserting that the purchaser of the putative servient tenement from the common vendor takes title subject to a Wheeldon v Burrows easement must establish that, in accordance with the ordinary rules governing the implication of terms in a contract as established by cases such as Codelfa, there should be implied into the contract of sale from the common vendor to the purchaser of the putative servient tenement a term that the land being sold is subject to an implied easement in favour of the putative dominant tenement. The circumstances must be such that the probability that the implication of such a term was intended must be so strong that a contrary intention cannot be supposed.

As Tobias JA recognised in McGrath v Campbell at [83], the answers to the questions formulated at [82] (which were based on the propositions set out at [75]-[77] that I have extracted above), were relevant to the critical question of whether the implied easement gave rise to an equity or right in personam enforceable against the purchaser of the servient tenement on the basis that they were personally bound to recognise that equity and give effect to it as an exception to the indefeasibility provisions of the RPA. At [108], Tobias JA set out what was not sufficient to create a “personal equity” in the following terms:

As I have already acknowledged, the foregoing proposition may well be the case with respect to land under old system title. But in my opinion, the simultaneous transfers alone could not give rise to a “personal equity” binding upon the McGraths as the registered proprietors of Lot 12 in circumstances where they have not in any way contributed to the creation of the implied easement or conducted themselves in any way which could be regarded as unconscionable. In particular, their reliance upon their strict legal rights - that is, the indefeasibility of their title to Lot 12 effected by s 42**(**1) of the RP Act - was in no way unconscionable. (Emphasis added.)

What was said by Tobias JA at [110]-[114] is also relevant (emphasis added):

[110] I would add this. The Aldridge v Wright extension to a Wheeldon v Burrows easement is, as I have already noted, dependant upon the presumed intention of all three parties that the easement is to benefit the dominant tenement and to burden the servient tenement. This presumed intention is the basis for an implied term in the grant by the common vendor to the transferee/purchaser of each tenement. It arises by operation of law.

[111] But mere knowledge on the part of the transferee of the putative servient tenement that both tenements are to be transferred by the common vendor simultaneously does not involve any relevant conduct on the part of that transferee. He or she has not created the easement and he or she is not a party to the transfer to the purchaser of the putative dominant tenement.

[112] Although aware that such a transfer is to occur, the purchaser of the putative servient tenement is not only unaware of the terms of the contract between the common vendor and the purchaser of the putative dominant tenement but also has no control over those terms or, for that matter, when the transfer is to take place. There was no suggestion in the present case that the simultaneous transfers were due to any request or conduct on the part of the McGraths. As far as one can tell, it came about solely for the benefit and at the insistence of Mrs Chiplin. In these circumstances there was no conduct on the part of the McGraths to which any equity could attach to bind them personally.

[113] One further aspect of the personal equity issue should be mentioned. The relief granted by the primary judge to the Campbells was analogous to rectification of the Register. The equitable basis of the remedy of rectification of a contract is that in its executed form the contract does not represent or embody the actual common intention of the parties: Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350; Codelfa at 346; see [74] above.

[114] The requirement of an actual, as distinct from a presumed, common intention in the context of the equitable remedy of rectification, it seems to me, may be applied by analogy to the present case. In other words, no relevant equity arises to bind the McGraths unless it is established that it was the actual common intention of all three parties that Lot 6 should have the benefit of, and that Lot 12 should be subject to the burden of, a right of way over the driveway. In my view, even if that was the intention of Mrs Chiplin and the Campbells, it was not that of the McGraths.

Hodgson JA at [4] in McGrath v Campbell emphasised that the critical question was whether the new servient tenement owner’s involvement in the relevant transactions was such as to give rise to a personal equity against them.
The modern starting point for consideration of the in personam exception to indefeasibility is the decision of the High Court in Bahr v Nicolay *(*No 2) (1988) 164 CLR 604; [1988] HCA 16.
Recently, in Pirrottina v Pirrottina [2025] NSWCA 55, Gleeson JA (with whom Payne and Adamson JJA agreed) briefly considered the circumstances in which a “personal equity” arises. At [110]-[111] Gleeson JA stated (emphasis added):

[110] In Heggies Bulk Haul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312; [2003] NSWSC 851 at [103]-[104], Austin J contrasted those cases where a personal equity will not be created (those where the registered proprietor merely asserts his registered title after acquiring it with notice of the unregistered interest) with those cases which contain the ”additional ingredient” beyond mere notice of a third party’s rights sufficient to create a personal equity against a registered proprietor. After reviewing the authorities, in particular Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16, Austin J described the **“additional ingredient” at [103(**iii)] as conduct involving some form of acknowledgment of the unregistered interest, or an agreement or undertaking to act in accordance with it, from which the registered proprietor later resiles.

[111] This description of the “additional ingredient” beyond mere knowledge of an unregistered interest in land was accepted by Young CJ in Eq in The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31 at [112], who also observed at [114], that it is necessary to be a little careful with the word “acknowledgement”. His Honour continued at [114]:

Acknowledgement in this type of case means more than the realisation that a right exists. It connotes the case where a person not only recognises the right exists, but also undertakes to respect that right. However, it does not appear necessary that the undertaking need be known to the person whose right is in question at the time when it is made.

Consideration

The case propounded by Ms Conway in this respect shifted somewhat between opening and closing address. In written submissions filed before the commencement of the hearing, it was contended that there was no concurrent sale of Lots 51 and 52 such that the Aldridge v Wright extension to Wheeldon v Burrows is not applicable.
Come the time of closing submissions, it was contended that the sales were sufficiently contemporaneous to pick up Aldridge v Wright. It was contended – and this did not appear to be in dispute – that the sales of Lots 51 and 52 were occurring with the apparent knowledge of each of the parties from at least May or June 2020.
Senior counsel for Ms Conway also drew my attention to a number of early decisions including those referred to in Wheeldon v Burrows itself – Tenant v Goldwin (1704) 2 Ld Raym 1090; Phillips v Low (1892) 1 Ch 47 and Swansborough v Coventry (1832) 9 Bind 305 all of which dealt with implied easements of light and ventilation. The general principle was, obviously enough, not in dispute.
Senior counsel for Ms Conway ultimately put the implied easement case on two bases:

(a) in accordance with Aldridge v Wright, there was a contemporaneous conveyance of Lots 51 and 52 to Leeroy and Ms Conway and that as part of that contemporaneous conveyance, there was an undertaking made on behalf of Leeroy that it acknowledged and undertook to preserve the reasonable air and sunlight flow to Ms Conway, and as such, effectively undertook to acknowledge and preserve and recognise the Wheeldon v Burrows easement; (b) alternatively to (a), if the Court finds it is not an Aldridge v Wright type contemporaneous conveyance, and there are two separate conveyances, the Wheeldon v Burrows implied easement arises by virtue of the facts and a personal equity has arisen as between Leeroy and Ms Conway arising from the provision of the undertaking by, or on behalf of Leeroy to acknowledge and maintain the reasonable areas of flow of sunlight and natural air to Ms Conway’s land, such undertaking being made on the basis of and in circumstances where Ms Conway would and did rely on the undertaking, that it would be unconscionable on the part of Leeroy to forsake that undertaking.

Senior counsel for Leeroy contended that no such undertaking was ever given by Mr Dunlop. The conversations never amounted to more than generic statements by Mr Dunlop of an ambition for a modest dwelling and this was always contingent on him approaching an architect for design guidance.
Senior counsel for Leeroy also contended that even if Leeroy had notice of the circumstances which might indicate the solar access enjoyed by the dwelling on the Conway Land before the purchase of Lot 50 or Lot 51 (as pleaded by Ms Conway at 13.3 of the further amended statement of claim) this is not notice of an interest in the nature of an easement. Further, there was no undertaking to respect any interest.
Critical to the determination of this aspect of the case are my findings in relation to the conversations between Ms Savage and Ms Conway and, more importantly, Mr Dunlop and Ms Conway together with Mr Weel. I have set out my findings in this regard earlier in these reasons.
As there set out, I prefer Mr Dunlop’s version of the conversation with Ms Conway on Lot 52, on or about 12 June 2020. I do not accept that Mr Dunlop gave any assurances or undertook to Ms Conway as to what he would build on Lot 51 and, more importantly, I do not accept that he gave any assurances or undertook that Leeroy would respect Ms Conway’s solar access and natural ventilation.
No such assurances or undertaking could, in my view, be teased out of what Ms Savage told Ms Conway, having previously spoken to Mr Dunlop. In any event, what was said by Ms Savage to Ms Conway was clearly overtaken by the later direct discussion between Mr Dunlop and Ms Conway.
It is obviously not in dispute that Ms Conway had a concern about what Leeroy was going to build on Lots 50 and 51 in terms of the impact on her solar access and natural ventilation, that Mr Dunlop knew this and understood her concern and that they had a discussion about what Leeroy was proposing to build in that context. Without more, however, this is not sufficient to create an implied easement enforceable against Leeroy as an in personam exception to indefeasibility. At the very least, the necessary undertaking by Leeroy is absent.
Accordingly, I do not accept that any implied easement arose.

Section 88K easement

Prayer 5 of the further amended statement of claim seeks, in the alternative to the implied easement:

An order pursuant to section 88K of the Conveyancing Act 1919 (NSW) imposing an easement over Lot 51 in favour of [Lot 52] to provide adequate solar access to the principal private open space centrally located in the dwelling constructed on [Lot 52] or to otherwise prohibit the proprietor(s) of Lot 51 from encroaching upon the Implied Easement, subject to payment of compensation as is appropriate pursuant to s 88K of the Conveyancing Act 1919 (NSW).

A form of instrument was proffered by Ms Conway to Leeroy at or about the commencement of the hearing (Exhibit H), setting out the terms of the proposed easement based on what was produced by Mr Andren. I have set out the relevant sketch above.
Senior counsel for each of Ms Conway and Leeroy acknowledged that they had not been able to locate a case where the Court had considered whether to impose an easement of the kind sought under s 88K.

Relevant principles

Section 88K relevantly provides:

88K Power of Court to create easements

(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

(2) Such an order may be made only if the Court is satisfied that -

(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and

(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and

(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

…

(8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed.

The relevant principles are well settled. The following propositions are relevant in the present case.
First, the power to impose an easement is made conditional upon satisfaction of the requirement in s 88K(1) – it is a precondition of the exercise of the jurisdiction that there must be a finding that the easement sought is reasonably necessary for the effective use or development of the land which will have the benefit of it. This is to be determined objectively and involves the making of a value judgment, but not the exercise of a discretion: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 (Rainbowforce) at [68] per Preston CJ of the LEC.
Second, the requirement of reasonable necessity is to be decided in light of the circumstances existing at the time of hearing: see 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (117 York Street) at 511 per Hodgson CJ in Eq.
Third, the inquiry directed by the requirement in s 88K(1) is whether the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easements: Rainbowforce at [70] per Preston CJ of the LEC.
Fourth, the authorities on “reasonably necessary” establish:

(a) reasonable necessity does not mean absolute necessity but must be something more than mere desirability or preferability over the alternative means: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 (Moorebank) at [154] per Bathurst CJ, Beazley and Meagher JJA; (b) the requirement of reasonable necessity may be satisfied even if the plaintiff’s land could be effectively used or developed without the easement. In order to be reasonably necessary, the use with the easement must be at least substantially preferable to the use without the easement: 117 York Street at 508 per Hodgson CJ in Eq; (c) the effect of the grant of the easement on the servient tenement must be considered. The greater the burden on the servient land, the stronger the case required to find that the easement is reasonably necessary. A strong case of reasonable necessity is required if the effect of the imposition of the easement would be to effectively preclude a reasonably available development or use of the servient tenement: Moorebank at [156]-[157] per Bathurst CJ, Beazley and Meagher JJA; (d) ultimately, what is reasonably necessary cannot be assessed in isolation, but must be assessed by reference to the “whole picture” taking into account all relevant factors in conjunction with each other: Moorebank at [159] per Bathurst CJ, Beazley and Meagher JJA; (e) the plaintiff bears the onus of showing reasonable necessity: Gordon v Lever *(*No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 at [39] per Bell P (Payne JA and Emmett AJA agreeing).

Senior counsel for Leeroy also referred to the fact that under s 88K(2)(a), the Court must be satisfied that the use of the dominant tenement would not be inconsistent with the public interest. In Rainbowforce at [94], Preston CJ of the LEC stated that it is the use of the dominant tenement that is not to be inconsistent with the public interest. At [95] Preston CJ of the LEC continued as follows:

[95] Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest: see Tregoyd Gardens Pty Ltd v Jervis at 15,847 and 15,854 and Second Reading Speech, Legislative Council, 4 December 1995.

I deal separately below with the question of compensation and deal with the relevant principles there.
The requirement of s 88K(2)(c) of all reasonable attempts also assumed some significance in the case in circumstances where a proposed form of easement (Exhibit H) was not proffered until the start of the hearing.
Whether an applicant has established that all reasonable attempts have (unsuccessfully) been made to obtain the easement is a question of degree and will turn on the particular circumstances: see Nahata v Robertson [2023] NSWSC 642 at [59] at [60] per Peden J. It is open to consider facts at the time of hearing, including facts arising after the commencement of proceedings: Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [83] per Basten JA (Bell P and Gleeson JA agreeing).
In Rainbowforce at [131] Preston CJ of the LEC stated:

[131] In order for an applicant for an order to make all reasonable attempts to obtain an easement:

(a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made: Hanny v Lewis at 16,210;

(b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14,654;

(c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14,654; and

(d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement: Coles Myer NSW Ltd v Dymocks Book Arcade at 14,653–14,654 and see also Antipas v Kutcher at [14].

Finally, it is also clear that the power under s 88K(1) to make an order imposing an easement is discretionary, notwithstanding satisfaction of the requirements of ss 88K(1) and (2). The purpose is to be exercised having regard to the purpose of the section which has been summarised as facilitating the reasonable enjoyment of land whilst ensuring that just compensation be paid for any erosion of private property rights: see Rainbowforce at [134]-[135] per Preston CJ of the LEC.

Consideration

A number of issues were agitated by the parties.
First and foremost, whether the imposition of the easement sought is reasonably necessary for the effective use of the Conway Land.
Second, Leeroy contended that the imposition of the easement would be inconsistent with the public interest.
Third, Leeroy contended that the Court would not be satisfied that reasonable attempts have been made to obtain an easement through negotiations with Leeroy.
Fourth, the quantum of compensation was in issue. I address this separately below.
Fifth, and allied to the second point raised above, Leeroy contended that the grant of the easement sought was not worthy of a grant in the discretion of the Court because such an easement would, in terms, contradict the local planning instruments.
Finally, reliance was placed on cl. 1.9A of the Tweed Local Environmental Plan (TLEP). This argument cuts across various of the causes of action alleged and so I deal with it separately at the end of these reasons.

Reasonably necessary?

The essence of the case advanced by Ms Conway in this regard was to focus on the fact that the house on Lot 52 was designed and constructed as a high-end luxury residential home in a particular location so as to accommodate the favourable solar access to the north. The vast curtain wall (referred to earlier in these reasons) is a central focus of the dwelling’s design, providing light, heating and cooling etc to the main living areas of the house including in its private open area, ground floor and first floor. The easement is said to be necessary to maintain these important features.
Ms Conway, relying on Mr Andren’s report, contends that the proposed easement would not have any impact on the Leeroy Land because the proposed dwelling can be moved but still maintain maximum exposure to sunlight and the like.
Leeroy contended that the Court would not be assisted by Mr Andren’s report in this regard in circumstances where Mr Andren’s design is only a “concept”, which has not been prepared mindful of the design and volumetric controls of the DCP. Further, it was contended that Mr Andren’s design, as posited, produces a built form on Lot 51 that is manifestly out of character with the surrounding properties in which it is apparent that built form tends to lay along southern boundaries with pools and living areas oriented to the north.
I am not satisfied that the imposition of the claimed easement is reasonably necessary for the effective use of the Conway Land.
Absent the easement, the Conway Land can continue to be used as a residential dwelling. There are, as the contents of the Report demonstrate, areas of open space on the Conway Land other than that which borders the boundary between Lots 51 and 52.
The fact that the dwelling on Lot 52 was constructed in a way to maximise solar access and natural ventilation from the north does not, in my view, mean that an easement should be imposed so as to maintain that solar access and natural ventilation. Maintenance of the pre-existing solar access and natural ventilation is not reasonably necessary for the effective use of the Conway Land.
Whilst maintenance of solar access and natural ventilation would no doubt be preferable or desirable, something more is required: Moorebank at [154] per Bathurst CJ, Beazley and Meagher JJA. Reasonable necessity cannot be reduced to substantial preference, or something “nice to have”: see ING Bank *(Aust) Ltd v O’*Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 at [52]-[53] per Giles JA (Campbell JA agreeing).
Imposition of the proposed easement would undoubtedly have an impact on the Leeroy Land. So much is apparent from the fact that it would prevent Leeroy from constructing its proposed dwelling where it proposed to, being a dwelling which has otherwise been approved by Council. It would impact on Leeroy’s lawful use and development of its own land.

Public interest

Senior counsel for Leeroy contended that use of the Conway Land with the benefit of the easement, having a consequent limit on the built form on Lot 51 is not in the public interest or worthy of a grant of discretion by the Court. This is because such an easement would, in terms, contradict the local planning instruments which permit a wide range of built form on Lots 50 and 51 and which have been manifest in the type of built form permitted by the Consent.
Given that I am not satisfied that the easement is reasonably necessary, it is not strictly necessary for me to determine this issue. In my view there is, however, some force in Leeroy’s contentions in this regard. It is difficult to see how it is in the public interest to allow use of the Conway Land with the easement in circumstances where local planning instruments and further decisions are best made by those in whom planning and development decisions are reposed.

Reasonable attempts

Leeroy contended that reasonable attempts have not been made to obtain an easement through negotiations with Leeroy.
The evidence established that in December 2022, after proceedings had been commenced, Ms Conway’s solicitor (her husband, Mr Amirbeaggi) made an open offer to Leeroy’s solicitors that a valuation be obtained (at Ms Conway’s expense) valuing the diminution in value of the easement and Leeroy agree to grant an easement, and each party otherwise bear their own costs of the proceedings. No response was received to the offer. The offer was reinstated for 14 days by email dated 29 August 2023, together with an indication that Ms Conway’s lawyers were willing to talk. On 12 September 2023, Leeroy’s lawyers asked for the offer to be kept open for a further seven days, which was agreed to. The offer was again left open for seven days in an email dated 16 October 2023. No response was received.
A form of instrument consistent with the metes and bounds of the easement proposed by Mr Andren was provided to Leeroy for the first time at the start of the hearing. Leeroy thereafter continued to oppose the grant of the easement.
In the circumstances, and particularly the lack of any response on behalf of Leeroy, I am satisfied that reasonable attempts have been made.

Compensation for any easement of necessity

Given that I have already reached the position that I am not satisfied that an easement should be imposed, it is not necessary for me to consider the issue of compensation. Lest I be wrong, I now consider the question of compensation.
Section 88K(2)(b) provides that, in substance, an order imposing an easement can only be made if the Court is satisfied that 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. Further, s 88K(4) provides for the Court to order compensation to be paid.
There was no suggestion that a figure could not be determined. The debate was how much!
In Moorebank at [234], the Court of Appeal referred, with approval, to what was said by Young J (as his Honour then was) in Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 at [26] in relation to the compensation ordinarily payable under a number of heads:

[26] 1. The compensation referred to in subs (4) is the same compensation as is referred to in subs (2)(b), that is adequate compensation for loss or other disadvantage: see Goodwin at 15,801.

The compensation is not a substitute for the price that could have been exacted if the section did not exist: S J C Construction Co Ltd v Sutton London Borough Council (1975) 29 P&CR 322 at 326, a decision of the English Court of Appeal.

The compensation is not just the diminished value of the affected land: Seaforth Land Sales at 334.

Ordinarily the compensation will be:

(a) the diminished market value of the affected land (including what is sometimes called the hope value, that is the potential use to which the subject land could have been put: Re Bowden’s Application (1983) 47 P&CR 455 at 457 );

(b) associated costs that would be caused to the owner of the affected land: Tregoyd at 15,856;

(c) an assessment of the compensation for insecurity, loss of amenities such as loss of peace and quiet: Tregoyd at 15,856; S J C at 326; and see Preston and Newsom, Restrictive Covenants Affecting Freehold Land, 8th ed, Sweet & Maxwell, London, 1991, p 284;

(d) the compensation is to be less compensating advantages, if any.

There may be some exceptional cases which fall outside the net of s 88K(2)(b) yet are cases where it is extremely difficult to assess the compensation, but it is clear that the applicant is to derive a considerable benefit from the application. In such circumstances it may be appropriate to assess the compensation on a percentage of the profits that would be made.

It was not in dispute that Ms Conway bore the onus to establish what relevant losses and disadvantages will be suffered by persons having an interest in the servient tenement, as part of satisfying the Court that the persons affected by the easement can be adequately compensated. Nonetheless, courts have taken a relatively liberal approach to assessing compensation when faced with a paucity of evidence: see Moorebank at [247] per Bathurst CJ, Beazley and Meagher JJA.
As set out above, each of the parties produced expert evidence from a valuer in support of their respective contentions concerning compensation. Ms Conway tendered an expert report of Mr Ellis, and Leeroy an expert report of Mr Walker.
Mr Ellis and Mr Walker conferred prior to giving evidence in the proceedings and then gave evidence in concurrent session. To my observation, the process worked very efficiently and the parties and the experts are to be commended for this course.
As a result of their conferral, Mr Ellis and Mr Walker agreed on the following matters:

(a) the market value of Lot 51 is $3.1 million, with the rate feeding into that market value being approximately $4,000 per square metre; (b) by reference to the draft s 88B plan (Exhibit H) which was provided to each of Mr Ellis and Mr Walker prior to conferring, they agreed that the total area of easement A is 77.406 square metres, easement B had a total area of 49.98 square metres, easement C had a total area of 60.57 square metres and easement D had a total area of 363 square metres; (c) the highest and best use of the land was for construction of a large, two-storey prestige dwelling.

There were two matters that Mr Ellis and Mr Walker were not able to agree on:

(a) whether the inclusion of the easement D actually impacts on the highest and best use of the subject property; and (b) the discount rates that should be applied for each of the components.

Mr Ellis, was of the opinion that for each of the easement components, a discount rate of between 10 and 20 percent would apply, whereas Mr Walker was of the opinion that an 80 percent rate would apply to easements A to C.
The essential dispute between Mr Ellis and Mr Walker in relation to any impact of easement D is whether that easement would have any impact on what in fact can be built on the subject property. Mr Ellis’ assumption, having looked at Mr Andren’s proposed easement, was that the roofline of the proposed development would be accommodated within the terms of easement D such that the easement would have no impact on what could be built. Mr Walker, on the other hand, was not in a position to know one way or the other, whether proposed easement D would have any impact on what could be built.
In my view, the likelihood that easement D will impact in any significant way on what can be built is low, such that I do not consider it appropriate to apply any compensation to it.
The second area of disagreement was more fundamental. Both valuers agreed that the best evidence of the likely diminution would be to look at comparable sales where such easements do apply to the land being sold. There are no such comparable sales in the present case.
Each valuer was, in effect, drawing on their general experience in assessing the percentage figures which they contended for.
Mr Ellis drew some support for his figures from the table published by the New South Wales Valuer General to determine the percentage reduction in land value to reflect the compulsory acquisition of an easement over that land. Mr Walker accepted in cross examination that if these figures were being used by the New South Wales Valuer General then they would be appropriate for use in the present case. I did not understand Mr Walker, however, to therefore just agree with the percentage figures that are put forward by Mr Ellis. The position is, in my view, somewhat more nuanced.
Mr Walker’s position was essentially that because each of the easements had a substantial impact on what could be built, a figure of 80 percent was appropriate. In circumstances where the land is prestige land that would be attracting a prestige buyer. As Mr Walker put it in the concurrent session:

I contend that if you can’t build, or you can’t activate, the highest and best use of the property over a portion of the site, that it’s got a pretty high level of impact, and a pretty high level of compensation should be sort of payable for the impacted area.

In considering this debate between Mr Ellis and Mr Walker, I bear in mind what was said by the Court of Appeal in Moorebank at [248]:

[248] In Swann v Spiropoulos [2006] NSWSC 860; (2006) ANZ ConvR 496 Campbell J, as his Honour then was, faced with a paucity of evidence, stated that the appropriate approach was to put himself in the position of a juror and assess as best as he could what was the compensation payable. In Evans v Cornish Nominees Pty Limited supra, White J agreed that such an approach was appropriate. His Honour made the following remarks at [110]:

[110] The result is that I find neither valuer’s evidence persuasive. Although they reached agreement as to the current value of the defendant’s land, their reasons, so far as they concern the value of the aggregated portions which would form a 40-hectare area for a new building site, are widely different. I am not able to accept either valuer’s approach to assessing the effect on land value of the imposition of an easement. There is no certain answer to that question. I approach the question as did Campbell J (as his Honour then was) in Swann v Spiropoulos [2006] NSWSC 860 where his Honour said (at [108]):

‘It is necessary, it seems to me, to put myself into a position like that of a juror, and simply assess, as best I can, the amount of compensation that would be payable on that head. I recognise that I have criticised the valuers’ evidence because they in effect acted as jurors. There is, however, a critical difference between the way in which expert evidence should proceed, - calling on expertise to produce a reasoned conclusion, where premises of the argument and steps of the reasoning can be evaluated by the court, - and the way in which the tribunal of fact at a court hearing can proceed. In this case I am the tribunal of fact, and so am entitled to proceed in the way a juror would.’

Doing the best I can, I would assess the discount nowhere near as high as the 80 percent figure that has been suggested by Mr Walker but something higher than that put forward by Mr Ellis. In my view, an appropriate discount to apply is 30 percent.
This 30 percent discount would be applied to areas A, B and C, a total area of 187.956 square metres at the agreed rate of $4,000 per square metre. This totals $225,547.20.
In relation to the component sometimes referred to as “disturbance” – being the associated costs that would be caused to the owner of the affected land – the principal area of dispute concerned the additional cost imposed on Leeroy of either submitting an amended development application or an entirely new development application. The battle lines on this dispute were between Mr Andren’s estimate of somewhere between $10,000 to $40,000 depending on whether an amended or new development application is required, and Mr Dunlop’s estimate of up to $300,000.
Not unsurprisingly, there was little science to the position of either party on this issue. The “evidence” in support of the two positions was led orally at the hearing. The figure is necessarily based on an estimate of the cost of future work which is itself, uncertain. Given the broad disparity between each party’s position but accepting that it would be likely that Leeroy would continue to use the same architectural firm, which has some familiarity with the matter, I would allow $110,000 as an estimate.
To these figures I would add the agreed figure of $10,000 for the “blot” on title.
Having regard to each of these components, I would assess compensation at $225,547.20 plus $110,000 plus $10,000 which equals $345,547.20.

Clause 1.9A of the Tweed Local Environmental Plan 2014

In light of my conclusions above, that no implied easement arose and no easement under s 88K should be imposed, it is not strictly necessary for me to consider the application of cl 1.9A of the TLEP. The arguments were only advanced briefly in oral submissions and then in written submissions after judgment was reserved.
In deference to the arguments made, I make the following observations.
Clause 1.9A of the TLEP relevantly provides:

1.9A Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, 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.

Leeroy relied on this provision in several respects.
First, in answer to what was pleaded by Ms Conway, as ground 5 of the ground of judicial review – failure to take into account the implied easement. Nothing was said by senior counsel for Ms Conway in support of ground 5 and thus, as senior counsel made clear in closing submissions, it is taken to be abandoned.
Second, it was contended that clause 1.9A stood in the way of the implied easement claim. It was contended that clause 1.9A would apply to defeat the claimed implied easement and equity follows the law.
Third, in relation to the claimed s 88K easement, it was contended that any such easement would be inherently defeasible given the operation of cl 1.9A.
Ms Conway disputed that cl 1.9A had any application at all.
I summarise Ms Conway’s contentions below.
Before doing so I consider the legislative background and authorities in relation to cl 1.9A.
It was not in dispute that cl 1.9A took as its legislative source s 3.16 of the EPA Act. Section 3.16 provides:

3.16 Suspension of laws etc by environmental planning instruments (cf previous s 28)

(1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.

(4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.

(5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.

(6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

It was also not in dispute between the parties that there were two relevant authorities that considered the scope of clauses such as cl 1.9A of the TLEP. First, the decision of Preston CJ of the LEC in Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 (Wu) and the more recent decision of the Court of Appeal in JEA Holdings *(*Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255 (JEA), which approved the reasoning of Preston CJ of the LEC in Wu.
The terms of the Local Environmental Plan in issue in Wu (the Woollahra Local Environment Plan) is relevantly identical to cl 1.9A of the TLEP.
At [60] in Wu, Preston CJ of the LEC set out a three step inquiry as to the applicability of, relevantly, cl 1.9A:

… first, identifying what interest is created by the instrument that is the Dealing; second, ascertaining whether the Dealing creating that interest is ‘any agreement, covenant or other similar instrument’; and third, determining whether the Dealing ‘restricts the carrying out of that development’, being development in accordance with the consent granted by the Council. The first step is necessary in order to undertake the second step, and the second step is necessary in order to undertake the third step.

That three step test was referred to with apparent approval by Mitchelmore JA (with whom Payne and Stern JJA relevantly agreed) in JEA at [59].
At [80] in Wu, Preston CJ of the LEC stated:

At the outset, it needs to be recognised that the inquiry required by cl 1.9A of WLEP necessitates identifying the instrument that creates the right or interest in or affecting lands, not the right or interest itself. That is clear with the first and third members of the class of instruments specified in cl 1.9A of WLEP, being an “agreement” or “other similar instrument”. But it is also so for the second member of the class of instruments, a “covenant”. The instrument to be disregarded, if cl 1.9A of WLEP were to apply, is a document that creates the restrictive covenant: Coshott v Ludwig (1997) 8 BPR 15,519 at 15,521. In the present case, the focus of the inquiry is the Dealing, which created the easement for light and air and the covenant for prospect. Is the Dealing any one or more of “any agreement, covenant or other similar instrument”?

Against this background, Ms Conway’s contention was that in this case, there is no instrument or document in writing that creates either the asserted implied easement or the s 88K easement if ordered.
Further, in relation to the implied easement, Ms Conway contended that any declaration by the Court as to its existence and the restraint order sought as to its enforcement are not instruments within the meaning of cl 1.9A of the TLEP.
Instrument is defined in the RPA at s 3 as:

Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the deposition, devolution or acquisition of land or evidencing title to land.

If a form of easement is to be registered, as was sought by the amendments introduced in the further amended statement of claim, it was accepted that that document would be an “instrument” but it was contended that such document does not of itself restrict development. Rather, it was contended by Ms Conway that the instrument will simply evidence and give notice of the restriction that previously arose by reason of the implied easement found to exist in accordance with the above principles.
In relation to the s 88K easement, it was further contended by Ms Conway that such an easement arises pursuant to an Act, being the Conveyancing Act, but Acts are not included as a “regulatory instrument” in cl 1.9A of the TLEP, despite the power of their inclusion under s 3.16 of the EPA Act. Whilst an order under s 88K will restrict development, that order is not a relevant instrument.
Similarly to the argument in relation to the implied easement, Ms Conway contended that if an instrument under s 88B is to be registered giving effect to an order with respect to s 88K (as is required by s 88(7)), such an instrument does not restrict development. The instrument simply evidences and gives notice of the effect of the original order.
As a fallback argument, Ms Conway contended that the consequences of cl 1.9A should await determination of what ultimate development occurs. The argument appeared to rest on the fact that Leeroy may sell Lot 51 either on its own or with Lot 50 and it is not for the Court to speculate as to what an ultimate owner of Lot 51 will do.
Leeroy’s response to these contentions can be shortly summarised as follows:

(a) in relation to the alleged implied easement, the source of the claim, as explained by Tobias JA in McGrath v Campbell is one arising from the presumed intention of the parties to an agreement and enforceable for that reason; (b) in any event, Ms Conway’s claim in relation to an implied easement necessarily involves registration of an instrument giving effect to the easement claimed. Reliance was placed on Preston CJ of the LEC’s conclusion in Wu at [81]-[85] to the effect that an instrument may be a product of an agreement or anterior step and that product falls under the terms of the clause but may fall under the clause itself; (c) the same analysis applies in relation to s 88K – an instrument must be registered on title. The registered dealing is an “instrument” which would then fall under the simple language of cl 1.9A; (d) the terms of the proposed easement, whether arising as implied or imposed under s 88K, “restrict” development by preventing built form where built form might otherwise be and fall under the clause – see Wu at [90].

As set out above, having determined that no implied easement arose and no s 88K easement should be imposed, it is not necessary for me to finally decide this point. The present context is also somewhat unusual in that Leeroy is seeking to use cl 1.9A as a reason why the Court should decline to find in favour of Ms Conway’s claim of an implied easement or a s 88K easement.
The previous cases that have considered cl 1.9A, principally Wu and JEA have of course been in the context of an actual instrument and an actual consent with the Court determining whether the registered instrument applies.
In my view, the existence of cl 1.9A does not provide a valid reason for the Court not to recognise an implied easement or impose an easement under s 88K, if the requisite elements are otherwise satisfied for the creation of each. The relevant easement can be registered on the title of the dominant and servient tenements. Whether the relevant easements apply in particular circumstances by reason of the effect of cl 1.9A is a matter to be determined if and when it arises. Whilst not wanting to encourage further litigation, it seems to me that this is the only logical outcome.
Accepting Leeroy’s contentions would have the effect that, notwithstanding that the Court is satisfied that an implied easement was created or a s 88K easement should be imposed, such easements would never be recorded on title. This is in circumstances where cl 1.9A of the TLEP could be amended, including to remove it, or the EPA Act could be amended including to no longer permit clauses of the kind of cl 1.9A. Further, there is no guarantee that Leeroy proposes to build in accordance with the Consent. There may also be further development proposals on the Leeroy Land pursuant to consent granted. Whether any easement would continue to apply by reason of cl 1.9A (assuming it remains) should then be determined at the appropriate time.
In short, I am not satisfied that cl 1.9A provides a reason to reject the implied easement or s 88K claims. Had I been satisfied that an implied easement had been created or a s 88K easement should be imposed, I would have made orders for the necessary instrument to be registered on title.
Finally, and again appreciating that it is not necessary to decide this point, it seems to me that there is much force in Leeroy’s contentions that, in the particular circumstances, the proposed implied easement or s 88K easement would not apply by reason of the effect of cl 1.9A in relation to the Consent.

Conclusion and orders

For the reasons set out above, all of Ms Conway’s claims fail.
There is no reason why costs should not follow the event. If either party wishes to contend for a different costs order they should notify my Associate by email within 14 days of these orders whereupon I will vacate the costs order and set a timetable for the question of costs to be determined on the papers.
The Court orders:
The further amended statement of claim be dismissed.
The plaintiff pay the first defendant’s costs of the proceedings.
If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.

**********

Endnote

There was no consistency in the documents as to whether the correct term was “principal private open space” or “principle private open space”. Throughout these reasons I have sought to maintain the word actually used in each document.

Conway v Leeroy Property Investments Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Approach to fact finding, the key witnesses and their credibility

The relevant facts

An introduction to the properties

Conversations prior to Ms Conway buying

Resolution of the disputed conversations and reliance

Lodgement of development application and its assessment

The Assessment Report

Further correspondence prior to formal approval

Formal approval and commencement of proceedings

The expert evidence

Mr Joshua Andren

Mr Bryce Claassens

Mr Kevin Peddie

The valuation evidence – Mr Scott Walker and Mr Mark Ellis

Judicial Review of Council’s Decision

The statutory process of development assessment and approval

Denial of procedural fairness

Failure to consider the DCP in its terms?

Unreasonableness

Impact of Part 3 Div 3 of the Land and Environment Court Act

The implied easement claim

Consideration

Section 88K easement

Relevant principles

Consideration

Reasonably necessary?

Public interest

Reasonable attempts

Compensation for any easement of necessity

Clause 1.9A of the Tweed Local Environmental Plan 2014

Conclusion and orders

Endnote

Parties

Legislation Cited (14)

Cases Cited (32)

Cited By (1)