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[2026] NSWCA 123
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent’s costs of the appeal. If the parties did not agree on costs, the first respondent could file a gross sum costs application...
The Court of Appeal dismissed Conway’s challenge to development consent for a new dwelling on the neighbouring lot and rejected her request for an easement protecting sunlight. The Council’s file contained information about the effects on the whole courtyard, and Conway did not prove that the Council’s delegate ignored it. The DCP did not require the specific before-and-after calculation Conway said was compulsory, and its standards had to be applied flexibly. The proposed easement would substantially restrict development on Lot 51, while Lot 52 would remain usable as a residence, so the evidence did not establish reasonable necessity.
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2,334 words · generated 05/10/2026
This appeal concerned neighbouring properties in Casuarina, New South Wales, and a dispute about the effect of a new dwelling on sunlight reaching an existing house and courtyard.
10 cited instruments linked from this judgment.
Until mid-2020, Lots 50, 51 and 52 were owned by Lazy Axle Pty Ltd and treated as one landholding. The house stood on Lot 52, a multicar garage and swimming pool occupied Lot 51, and Lot 50 was largely garden ([7]). The lots were then sold separately. Leeroy Property Investments Pty Ltd acquired Lots 50 and 51, while Vashti Conway acquired Lot 52 ([8]–[9]).
Leeroy applied to demolish the garage and pool on Lot 51 and build a two-storey dwelling there ([10]). Conway objected, focusing on potential overshadowing of an external courtyard at Lot 52. She relied on control C4(i) of the Tweed Development Control Plan 2008, which called for sunlight to at least 50% of the “principal area of private open space” of neighbouring properties not to be reduced below two hours between 9am and 3pm on 21 June ([11]).
The dispute included what counted as the principal area of private open space, or PAPOS. The courtyard was partly covered by an extended roof. The alternatives were to assess the unroofed part alone, the “Unroofed Space”, or the whole external courtyard, including under the roof, the “Entire Space” ([12]). Council officer Sam Smith’s correspondence indicated that he thought the unroofed part was the relevant focus, although the planning file also contained shadow diagrams showing effects on the Entire Space ([16]–[19], [24]–[28]).
The Council’s delegate, Denise Galle, approved an amended proposal. In a letter to Conway, she explained that the allotments’ east-west orientation made some overshadowing difficult to avoid; the proposed setbacks exceeded minimum requirements; moving the dwelling further north would affect established vegetation; the site was already affected by shadow; and other areas of private open space would remain unaffected. She also referred to the DCP objective of minimising impacts on neighbours ([30]).
Conway brought proceedings seeking to invalidate the consent and obtain a solar-access easement. The primary judge dismissed the claims. On appeal, Conway challenged the judicial-review decision and the refusal to impose an easement under s 88K of the Conveyancing Act 1919 (NSW). She did not appeal the ruling on her separate implied-easement claim ([4]–[6]). Kirk JA gave the principal judgment, with McHugh JA and Free JA agreeing ([104]–[105]).
The appeal was dismissed. Conway was ordered to pay Leeroy’s appeal costs, subject to a process for a possible gross sum costs order if the parties did not agree on the amount ([101]–[103]).
The judicial-review ground failed first because Conway did not establish the relevant facts. Her case was that Council had not assessed the before-and-after effects using a consistent view of the Entire Space, and had instead made an “apples to oranges” comparison ([35]–[37]). The Court emphasised that it was Conway’s burden to prove that the decision-maker failed to consider the relevant material. The material in a consent authority’s file will generally be treated as having been in the decision-maker’s possession, but the existence of a potentially mistaken analysis in a file document does not, without more, establish that the delegate adopted it ([47]–[50]).
The Court considered that neither Smith’s report nor Galle’s letter was an exhaustive statement of Galle’s reasons. The record included diagrams of the Entire Space before and after the development. It also contained other material relevant to the proposal and its impacts ([51]–[53]). The evidence did not provide a sound basis to infer that Galle ignored the Entire Space diagrams or relied on the alleged incorrect calculation ([59]–[61]). The Court also discussed an email to councillors containing the comparison Conway said was required. It considered that the email suggested the correct comparison was available within Council, while noting that the conclusion did not depend on that email ([62]–[66]).
The Court also rejected Conway’s legal interpretation of C4(i). It read the control as addressing the effect of the development on solar access, not as prescribing a mandatory calculation comparing the existing situation with the post-development situation. A before-and-after comparison could be a “natural and sensible” way to assess the proposal, but that did not make it a mandatory relevant consideration ([67]–[68]).
That conclusion was reinforced by the statutory and planning context. Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (NSW) required Council to consider applicable DCP provisions. But s 4.15(3A)(b) required flexibility where an application did not comply with a DCP standard, including allowance for reasonable alternative solutions achieving the standard’s objects ([39]–[40], [45]). The DCP itself described its controls as guidelines and possible acceptable solutions, and acknowledged that alternatives could exist ([41]). Its relevant objective was to minimise impacts on neighbouring solar access, not to apply a rigid mathematical formula ([42], [46], [69]).
The easement ground failed because the proposed restrictions would significantly limit future development on Lot 51, while the benefit to Lot 52 was principally the preservation of some amenity and solar access. The Court said a significant justification was required given the burden on the neighbouring owner’s property rights ([90]). It accepted that the dwelling on Lot 52 had been designed to take advantage of northern light, and that the new development would increase overshadowing. But that design reflected the earlier common ownership of the lots, and the change in ownership did not justify sterilising or substantially restricting development on Lot 51 ([93]).
The Court also rejected reliance on DCP non-compliance and competing shadow diagrams as a basis for the easement. Those matters could not convert the s 88K application into a merits review of Council’s approval ([94]). Nor did the possibility of compensation establish reasonable necessity. Compensation is a separate statutory condition, not a substitute for proving that the easement itself is reasonably necessary ([96]).
The judgment describes the planning scheme as the usual modern framework for resolving disputes about sunlight. It recounts that the High Court recognised the English doctrine of “ancient lights” in Delohery v Permanent Trustee Co. of New South Wales (1904), after which Parliament enacted the Ancient Lights Declaratory Act 1904 (NSW), later replaced by s 179 of the Conveyancing Act 1919 (NSW) ([1]). The appeal did not decide a claim under the ancient-lights doctrine, and the Court’s introductory discussion is historical context rather than a new ruling on that doctrine.
For administrative-law purposes, the judgment applies the established distinction between a matter that must be considered and a particular method of assessing it. An applicable DCP provision is a relevant consideration under s 4.15(1)(a)(iii), but the provision’s legal effect depends on its terms and statutory context. Here, C4(i) did not make the specific before-and-after calculation a mandatory step. The Court’s holding is therefore tied to the wording and context of this control, including the DCP’s flexible, guideline-based character and s 4.15(3A) ([39]–[46], [67]–[71]).
The judgment also emphasises the evidential character of judicial review where the decision-maker has not supplied an exhaustive statement of reasons. A claimant alleging non-consideration must prove the omission; the court will not simply attribute every error in an officer’s report to the delegate ([47]–[51]). Kirk JA noted that mechanisms such as r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) enable affected people who have commenced judicial-review proceedings to seek a statement of reasons ([49]). The judgment does not decide a separate question about the legal consequences of seeking or not seeking reasons; Conway had not sought them, and the Court assessed the available evidence.
For s 88K, the judgment consolidates a contextual approach to “reasonable necessity”. It is neither absolute necessity nor mere convenience. The Court lists considerations that may matter, including the proposed use’s significance, the benefit of the easement, historical circumstances, alternatives, and the burden on the servient land ([79]–[81]). “Substantially preferable” use with an easement may be relevant, but cannot replace the statutory test ([87]). The decision applies that framework to a solar-access restriction and finds the evidence insufficient.
At [48], Kirk JA says that a person alleging failure to consider a mandatory matter “bear[s] the onus” of establishing that it was not considered. In plain English, the existence of a relevant document or an arguable error in the file does not itself prove that the final decision-maker overlooked the issue.
At [49], the Court adds that it cannot generally be assumed that mistakes in file documents were adopted by the decision-maker. This matters where an officer prepared a report but someone else made the formal decision. The report may be evidence of the process, but it does not automatically establish the delegate’s reasoning.
At [68], the Court says that comparing existing and proposed solar access may be “natural and sensible”, but is not thereby a mandatory relevant consideration. The distinction is between a useful planning method and a legally required step. Whether a method is compulsory depends on the relevant legal text, not simply on whether it would assist assessment.
At [69], the Court reads the DCP in its own terms: its controls were guidelines representing possible acceptable solutions, with alternative solutions recognised. Plainly, the control was not treated as an inflexible formula that displaced the statutory requirement for flexible assessment of a non-compliant proposal.
At [80], the Court explains that reasonable necessity under s 88K calls for an evaluative judgment. Relevant matters can include the use’s importance to the benefited land, the improvement from the easement, the properties’ history, available alternatives, and the impact on the burdened land. The list is contextual, not a fixed checklist that dictates an outcome.
At [90], the Court applies the burden side of that balance: because the easement would significantly restrict future development on Lot 51, a significant justification was required. The passage illustrates why a useful amenity benefit is not necessarily enough to satisfy the statutory threshold.
The administrative-law reasoning is relevant where a challenger alleges that a planning authority failed to consider a DCP provision or a particular aspect of its application. The judgment directs attention to the provision’s wording, the statutory setting, what material was available to the decision-maker, what evidence shows about the actual process, and whether the asserted assessment method is truly mandatory ([39]–[53], [67]–[71]).
The reasoning is particularly pertinent where an officer’s report may contain an error or appear to focus on one aspect of a proposal, but the final decision-maker is a different person. The Court cautions against assuming that the delegate adopted the officer’s analysis without evidence establishing that connection ([48]–[51]).
The easement reasoning concerns applications under s 88K seeking a court-imposed easement that materially restricts another owner’s development. It indicates that a claim based on improved amenity, sunlight, or a preferred design must be considered against the importance of that benefit, the land’s remaining use, the burden imposed, the history of the properties and any realistic alternatives ([79]–[81], [90], [93]–[100]). The judgment contrasts the circumstances with examples involving drainage or carriageway access where the absence of an easement could severely preclude effective residential use ([97]).
These are explanations of the judgment’s reasoning, not a conclusion that another dispute with similar features will necessarily be decided the same way. The Court expressly made its assessment on the evidence and circumstances before it.
The judgment itself does not discuss later cases applying Conway. It is therefore not possible, from the supplied judgment, to describe how courts after 2 July 2026 have treated its holdings.
It does discuss earlier authorities and explains how they inform the principles it applies. On administrative decision-making, the Court relies on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Notaras v Waverley Council for the burden of proving that a mandatory consideration was not considered ([47]–[49]).
For easements, the Court discusses the relationship between 117 York St and ING Bank. It explains that “substantially preferable” use with an easement is relevant but not enough by itself: the statutory question remains reasonable necessity ([82]–[87]). It also refers to ATB Morton and the Court of Appeal’s treatment of that case, noting that the guidelines from 117 York St should not be mistaken for the statutory test ([85]–[87]).
Those discussions show the authorities the Court considered and how it understood them. They do not establish any post-Conway treatment.
The Court did not decide how the PAPOS must be identified in a contested case. It noted that “principal area of private open space” involves evaluative judgments and that it was arguable that Council’s identification need only be reasonably open. Because the parties did not contest the point, the Court assumed that the Entire Space was the PAPOS ([44]). That issue remains open on this judgment’s reasoning.
The Court also did not determine how cl 1.9A(1) of the Tweed Local Environmental Plan 2014 would affect an easement imposed under s 88K. It noted a possible question about whether the provision could affect the burden on the servient owner or the practical utility of a court order, but Conway did not rely on the point and the Court assumed the easement would have practical effect ([91]–[92]).
The judgment does not set a numerical threshold for when an easement’s burden requires “significant” justification. Nor does it define how much loss of sunlight or amenity would, in another factual setting, make an easement reasonably necessary. Its approach is evaluative and depends on the circumstances and evidence ([79]–[81], [90], [97]–[100]).
Finally, the judgment does not decide whether the planning consent itself was substantively correct on its merits. The judicial-review question was whether the asserted legal error was established, not whether the Court would have reached the same planning decision. Kirk JA expressly rejected an invitation to use the easement ground as merits review of Council’s assessment ([94]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123
Hearing dates: 2 March 2026
Date of orders: 2 July 2026
Decision date: 02 July 2026
Before: Kirk JA at [1];
McHugh JA at [104];
Free JA at [105]
Decision: (1) Appeal dismissed.
(2) Appellant to pay the first respondent’s costs of the appeal.
(3) If the parties do not agree on the amount of costs to be paid:
(a) The first respondent has leave to file and serve an application for a gross sum costs order, any evidence in support of that application, and written submissions of up to 3 pages, by 16 July 2026.
(b) The appellant has leave to file and serve responsive evidence, and written submissions of up to 3 pages, by 23 July 2026.
(c) The first respondent has leave to file and serve any written submissions in reply of up to 2 pages by 27 July 2026.
Catchwords: ENVIRONMENT AND PLANNING – Consent – Appeal – three lots used historically as single residential landholding – lots sold to different purchasers – development application submitted for new dwelling on one lot – purchaser of other lot objected on basis of overshadowing impact – development consent granted – judicial review sought by objector – whether Council failed to consider DCP overshadowing control in its terms – statement of Council’s reasons not sought – burden of proof not discharged – DCP controls to be applied flexibly – comparison of overshadowing before and after proposed development not a mandatory consideration – error not established
LAND LAW – Easements – Creation of easements – Creation by order of court – s 88K easement sought to prevent overshadowing following development consent – sought as alternative to judicial review of development consent – notion of reasonable necessity – significant justification required to establish reasonable necessity of easement restraining development on neighbouring lot – easement not reasonably necessary
Legislation Cited: Ancient Lights Declaratory Act 1904 (NSW)
Civil Procedure Act 2005 (NSW) s 98(4)(c)
Conveyancing Act 1919 (NSW) ss 88K, 179
Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 4.15
Tweed Development Control Plan 2008
Tweed Local Environmental Plan 2014 cl 1.9A(1)
Uniform Civil Procedure Rules 2005 (NSW) r 59.9
Cases Cited: 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
ATB Morton Pty Ltd v Community Association DP270447 (No 2) [2018] NSWLEC 87
Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2002) 103 NSWLR 834; [2020] NSWCA 292
Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83; (2019) 240 LGERA 32
Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580
Conway v Leeroy Property Investments Pty Ltd (No 2) [2025] NSWSC 1516
Delohery v Permanent Trustee Co. of New South Wales (1904) 1 CLR 283; [1904] HCA 10
Farshchi v The King [2025] HCA 46; (2025) 100 ALJR 6
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27,317
Khattar v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257
Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812; (2023) 21 BPR 44,389
Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41
Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Stepanoski v Chen [2011] NSWSC 1573
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120
Category: Principal judgment
Parties: Vashti Elizabeth Conway (Appellant)
Leeroy Property Investments Pty Ltd (First Respondent)
Tweed Shire Council (Second Respondent)
Representation: Counsel:
R A Dick SC / M Hall (Appellant)
M Seymour SC / L Nurpuri (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
YPOL Lawyers (Appellant)
Attwood Marshall Lawyers (First Respondent)
Hall & Wilcox (Second Respondent)
File Number(s): 2025/234931
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Lots 50, 51 and 52 in a development plan in the town of Casuarina on the North Coast of New South Wales had been in common ownership and treated as a single landholding. Lot 52 was developed by a dwelling, Lot 51 with a multicar garage and swimming pool and Lot 50 was largely garden. In 2020 the land was sold with ownership being split. The first respondent, Leeroy Property Investments Pty Ltd, purchased Lots 50 and 51, and the appellant, Ms Conway, purchased Lot 52.
Leeroy lodged a development application (DA) with the Tweed Shire Council, proposing the demolition of the garage and pool on Lot 51 and the construction of a new two-storey dwelling on that lot. Ms Conway lodged an objection to the DA. A key planning issue she raised was the overshadowing of an external courtyard area on Lot 52. She relied on the following control contained in cl 4.3 in section A1 in the Tweed Development Control Plan 2008 (DCP):
C4. For neighbouring properties ensure:
i. Sunlight to at least 50% of the principle [sic] area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21 …
An external courtyard area on Lot 52 was partially covered by the roof of the house, acting as an extended eave. A question arose as to whether, in considering the DCP control, the principal area of private open space (PAPOS) should be considered by reference to just the area of the courtyard not covered by the roof (the Unroofed Space) or the entire outside courtyard area including under the roof (the Entire Space). There were a series of exchanges on this point between Leeroy (who maintained that PAPOS impacts should be assessed with regard to the Entire Space) and a Council officer, Mr Smith (whose position appeared to be that PAPOS impacts should be assessed with a focus upon the Unroofed Space). Included in the exchanges were shadow diagrams provided by Leeroy depicting overshadowing on both the Unroofed Space and Entire Space as well as diagrams showing predicted impacts of the proposed development upon the Entire Space.
Mr Smith prepared a report which recommended the DA be approved with conditions. It contained extensive discussion of the solar access issue. Shadow diagrams provided by Leeroy were referred to and reproduced. The way in which the diagrams were referred to in the report tended to suggest that Mr Smith continued to think that the appropriate focus was on the effect on the Unroofed Space.
The ultimate decision-maker with respect to the DA was Ms Galle, as delegate of the Council. She granted development consent. On 14 June 2022 Ms Galle sent Ms Conway a letter notifying her of the outcome and identifying certain matters to which she had had regard.
Ms Conway brought proceedings seeking, amongst other things, judicial review of the decision to grant the development consent, and the creation by the Court of an easement preserving solar access pursuant to s 88K of the Conveyancing Act 1919 (NSW). The primary judge, Pike J, dismissed the proceedings. Ms Conway appealed on two grounds, relating to those two claims.
The judicial review ground was brought on the basis that the Council failed to consider questions of compliance with control C4 by reference to both before-development and after-development solar impacts on the Entire Space. It instead compared, on the before scenario, solar access for the Unroofed Space, as against, on the after scenario, solar access for the Entire Space. It was submitted that this “apples to oranges” comparison obscured the true extent of the overshadowing impacts, as, in the “before” scenario, there was materially more existing overshadowing on the Unroofed Space than there was on the Entire Space. Relevantly, Leeroy accepted that the PAPOS should have been understood as the Entire Space.
The easement ground was brought on the basis that Ms Conway’s dwelling was designed to capture the natural light and ventilation from the north-east; the degree of overshadowing would be severely non-compliant with control C4 in the DCP; Leeroy’s shadow diagrams understated the amount of overshadowing; Leeroy’s proposed development could be achieved by an alternative design suggested by Ms Conway’s expert, Mr Andren; the easement would conform with long-standing actual use of Lot 51; and the impact to Leeroy would not be so great as to counteract these considerations including because it would be compensated.
The Court held (Kirk JA, McHugh and Free JJA agreeing), dismissing the appeal:
Judicial review ground
1. The parties proceeded on the basis that that there was only one right answer in identifying the PAPOS on which the Court should reach its own view. On the face of it there is much to be said for the view that so long as the Council’s conclusion as to what constituted the PAPOS for any particular dwelling was reasonably open then that suffices. However, given the absence of dispute, the Court proceeded on the basis that the PAPOS was and was only the Entire Space: [44].
2. The material in the consent authority’s “file” generally will be treated as having been in the possession of the decision-maker. When a challenger alleges a failure to consider a mandatory relevant consideration, they bear the onus to establish that such material in the possession of the decision-maker was not considered in reaching the decision. That does not mean, conversely, that any errors in documents in the file should necessarily be attributed to the decision-maker. It cannot be assumed, generally, that any such errors will have been adopted in the decision-maker’s reasoning process. In practice, depending upon all the circumstances, it is often difficult for a challenger to establish that some error in a document in a file has been adopted by the decision-maker in the absence of a statement of reasons by the decision-maker. That is one of the reasons why mechanisms such as r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) have been developed to enable persons affected by administrative decisions to seek a statement of reasons. Here, neither Mr Smith’s report nor Ms Galle’s letter to Ms Conway of 14 June 2026 could be taken to represent an exhaustive statement of Ms Galle’s reasons, and Ms Conway had not sought a statement of reasons: [47]-[51].
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230, cited.
3. The evidence disclosed no reason to infer that Ms Galle did not consider the overshadowing effect of the proposed development on the Entire Space, amongst other things. The materials in the Council file made clear that the proposal was going to exacerbate overshadowing to the courtyard at Lot 52. There was material in the Council file enabling a comparison of the “before” and “after” overshadowing on the Entire Space, as Ms Conway asserted should have occurred. Ms Galle articulated clear and cogent reasons why approval of the development was justified despite its overshadowing effect in her email to Ms Conway on 14 June 2022. Ms Conway’s argument seemed to come down to asserting that the degree of overshadowing was not appreciated by Ms Galle and, if it had been, a different decision might have been reached. This argument assumed that having regard to the Unroofed Space diagrams would necessarily mean that the Entire Space diagrams were either misunderstood or not properly considered. That conclusion does not follow and was not made out: [50]-[61].
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62; Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, referred to.
Easement ground
ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27,317; Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257; Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275; 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120; Rainbowforce Pt**y Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286, referred to.
7. The matters relied upon by Ms Conway fall well short of establishing that imposition of the easement sought is reasonably necessary for the effective use or development of Lot 52. The primary judge was correct to so conclude: [91]-[100].
KIRK JA: Legal disputes between neighbours about access to sunlight have occurred for centuries. In Delohery v Permanent Trustee Co. of New South Wales (1904) 1 CLR 283; [1904] HCA 10, shortly after Federation, the appellant sought to injunct his neighbours from erecting buildings which would have interfered with his access to light. The appellant relied upon the old English law of prescription as to “ancient lights”, namely that “the right to the uninterrupted access of light over the land of another may be acquired by a ‘long’ and continual possession, without any formal instrument” (at 307). The High Court found that the principle of ancient lights was part of the law of this State. The State Parliament immediately enacted the Ancient Lights Declaratory Act 1904 (NSW) to suspend the operation of that legal doctrine, which was later replaced by s 179 of the Conveyancing Act 1919 (NSW). The usual mechanism for the resolution of such disputes in modern times is founded in the statutory planning scheme.
This appeal concerns a dispute about access to light. The appellant, Ms Vashti Conway, owns Lot 52 in a development plan in the town of Casuarina on the North Coast of New South Wales. The block is on an East-West axis, adjacent to a strip of bushland next to Casuarina Beach, with a large luxurious house extending relatively close to the northern boundary. Immediately to the north is Lot 51. That block, along with the next block along (Lot 50), is owned by the first respondent, Leeroy Property Investments Pty Ltd.
Leeroy submitted a development application (DA) in December 2020 to erect a two storey house on Lot 51, not far from the southern boundary of that lot. Ms Conway objected, in particular because of a concern that the house would reduce sunlight to her property. Ultimately the second respondent, the Tweed Shire Council, granted development consent to an amended version of the proposal (Development Consent). The Council filed a submitting appearance.
Ms Conway commenced proceedings in the Land and Environment Court, which were transferred to the Supreme Court for jurisdictional reasons. She sought a declaration that the Development Consent was invalid, a declaration that Lot 51 was burdened by an implied easement for solar access, and alternatively an order pursuant to s 88K of the Conveyancing Act imposing an easement restricting development on Lot 51 in favour of Lot 52 so as to protect solar access on Lot 52.
The proceedings were dismissed by the primary judge, Pike J, in a judgment dealing with numerous disputes of fact and law: Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580 (J). This appeal concerns the primary judge’s decision as to the validity of the Council’s determination to grant the Development Consent () and the primary judge’s decision not to impose an easement pursuant to s 88K (). Ms Conway did not challenge the primary judge’s decision in relation to the claimed implied easement.
Until mid-2020 Lots 50-52 were all in the ownership of Lazy Axle Pty Ltd and treated as a single landholding. The dwelling was located on the southern block, Lot 52. On Lot 51 was a multicar garage and swimming pool. Lot 50 was largely garden.
In 2019 Lazy Axle caused the three lots to be marketed for sale. In March 2020 Mr Sam Dunlop, the principal of Leeroy, agreed to purchase Lots 50 and 51 from Lazy Axle, with the sales of the two lots completing later that year.
In June 2020 Ms Conway contracted to purchase Lot 52 from Lazy Axle. During the negotiations for that purchase Ms Conway expressed concerns about impacts to solar access, natural ventilation and privacy from potential development on Lot 51. However, she did not seek an easement over that lot favouring Lot 52, even though the formal contract for sale of Lot 51 had not yet been entered by Leeroy and Lazy Axle at that stage.
In December 2020 Leeroy, through Zone Planning Group (ZPG), lodged the DA with Council. The DA involved the demolition of the garage and pool on Lot 51 and the construction of a new two-storey dwelling on that lot.
Ms Conway lodged an objection to the DA in February 2021. The key planning issue raised in the submission was the overshadowing of an external courtyard area on Lot 52. She relied in particular upon cl 4.3 in section A1 of the Tweed Development Control Plan 2008 (DCP), which included the following control relating to solar access (relevant provisions are set out more fully below at [41]-[42]):
C4. For neighbouring properties ensure:
i. Sunlight to at least 50% of the principle [sic] area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21 …
An issue then arose – which is central to the Judicial Review Ground – as to what should be taken into account as the relevant principal area of private open space (PAPOS) in Ms Conway’s land on Lot 52 for the purposes of the development control. The house on that land features a significant outdoor courtyard area, extending close to the boundary with Lot 51, along the eastern two-thirds of its northern side (on the western third the house itself reached close to the boundary). The roof of the house continues over part of the courtyard as an extended eave. Five beams also extend out over the unroofed part of the courtyard. The large glass wall separating the courtyard and the living area is curved, such that the courtyard is deeper at the eastern end than at the western end. An issue that arose was whether the overshadowing effect of the proposed development should be considered by reference to just the area of the courtyard not covered by the roof (the Unroofed Space) or the entire outside courtyard area including under the roof (the Entire Space). To make an obvious point, given that the sun shines down at an angle the sun can reach into an area under a roof or eave.
Mr Sam Smith, a town planner employed by the Council, was primarily responsible for assessing the DA, although he was not the final decision-maker. On 25 March 2021 Mr Smith wrote to ZPG saying, amongst other things, that the shadow diagrams submitted with the DA indicated that the courtyard area – which he treated as the PAPOS – would “not receive a compliant amount of sunlight on the 21 June between 9am and 3pm”. It is not entirely clear whether he was referring to the Unroofed Space or Entire Space. In a subsequent email of 1 April 2021 he appeared to suggest the correct focus was on the Unroofed Space, but again it is not clear.
ZPG submitted an amended DA on 7 May 2021. The amended plans had the proposed dwelling set back a further 600mm to the north at ground level and 1200mm to the north on the first floor. Shadow studies were included relating to the Entire Space, which are discussed further below.
On 24 May 2021 Ms Conway submitted a response to the amended DA. The response maintained that the amended DA still did not comply with the overshadowing control.
On 3 June 2021 Mr Smith corresponded with ZPG in relation to overshadowing, including by way of an information request. He stated that the overshadowing remained non-compliant and could not be accepted. He (now) made clear that in his view it was the effect on the Unroofed Space which was relevant to considering the development control:
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).
On 2 August 2021 ZPG provided a response. In effect it said Leeroy did not intend to further amend the DA on the basis that addressing shadowing in the manner suggested by the Council would be unviable, would be at odds with the uniformly accepted design outcomes evident on all other lots of comparative relevance, and was premised on an erroneous interpretation of the relevant DCP standard. ZPG gave extensive reasons as to why the relevant PAPOS should be the Entire Space and not just the Unroofed Space. It said that its design would only exceed the base requirements if the roofed area was excluded from the PAPOS.
On 22 December 2021 Mr Smith sent a letter to ZPG, responding to ZPG’s 2 August 2021 letter (amongst other things). He referred to the definition of “principal private open space” from the State Environmental Planning Policy (Exempt and Complying Development) 2008 (NSW) (Exempt and Complying SEPP), which was “an area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling, other than a bedroom”. Mr Smith accepted that, consistently with that definition, the PAPOS was the Entire Space (as ZPG had argued). However he went on to indicate that in his view the relevant focus was nevertheless on the Unroofed Space, saying:
Clause 4.3, Control C4 of the Tweed DCP 2008 Section A 1 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.
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.
On 10 February 2022 there was a site meeting, following which, on 21 February 2022, ZPG sent an email response to the Council’s letter. Relevantly, it “firmly maintain[ed]” that Mr Smith’s interpretation of the DCP was inconsistent with the meaning of the words on their face, and argued (by reference to evidence) that “the Council has consistently not interpreted this control … in the manner now suggested”. Amongst other things, the email attached shadow diagrams, including some that had been sent with the amended DA in May 2021 (the effect of these diagrams is summarised below at [36]).
On 30 March 2022 Mr Smith sent an email to ZPG confirming that he had “now revised the submitted information with Denise [Galle] and she is also of the opinion that the application is now acceptable to recommend for approval”.
On 29 April 2022 Ms Denise Galle, who was the Manager of Building and Environmental Health in the Council’s Planning and Regulation section, sent an email to Vincent Connell (of Council) and Mr Smith in which she said:
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
Looking at the drawings quickly … 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 - yard] 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.
The councillors did not call the DA up for determination by them so it fell to Ms Galle to determine the application by delegation.
Mr Smith prepared a Delegated Authority Development Application Report (DA Report) which bears the date 28 April 2022, although it must have been finalised after that as it refers to Mr Lynch’s email of 2 May 2022. The DA Report recommended that the DA be approved on conditions. It contained extensive discussion of the solar access issue. Shadow diagrams sent by ZPG were referred to:
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 [Lot 52] 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. …
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… although it is noted that significant open space area is also available tin [sic] the rear setback area.
As can be seen from the figures supplied above regarding the private open space at [Lot 52], 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 [Lot 52] 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 [Lot 52] will be overshadowed, the degree of overshadowing is an acceptable outcome.
Ms Conway submitted that the reference in the first quoted paragraph to “no less than 45.6% of the area [being] constantly overshadowed” must be a reference to the Unroofed Space (as it correlates to the 11am entry for the Unroofed Space in row B of the table at [36] below). That may be so, and is consistent with the following paragraph in the DA Report, which also refers to the Unroofed Space. These facts tend to suggest that Mr Smith continued to think that the appropriate focus was on the effect on the Unroofed Space.
A few pages on, the DA Report also included shadow diagrams supplied by ZPG which were described as depicting “Existing overshadowing of the southern adjoining allotment”. They again illustrated shadowing effects as at 9am, 11am, 12pm, 1pm and 3pm. However, they had been done by reference only to the Unroofed Space, not the Entire Space. The text before these diagrams stated the following:
The existing overshadowing of [Lot 52] 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 oriented 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 [Lot 52], 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 to 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 A1 respectively, seeking further exceedance of the relevant development Controls would be unreasonable in this instance.
The DA Report contained a “Recommendation Approved” box to be signed by Ms Galle, but no signed version was in evidence. Ms Galle emailed Mr Smith on 20 May 2022 notifying him that she would review the report and “sign consent” (see J[148]). It was not disputed that Ms Galle did approve Mr Smith’s recommendation. Formal development consent was granted by Ms Galle, under delegated authority of the Council, on 10 June 2022, with effect from 14 June 2022.
On 14 June 2022 Ms Galle sent a letter to Ms Conway notifying her of the outcome. The letter included the following (emphasis in the original):
One issue that you raised related to the extent of shadow cast by the proposed building on your property. This matter was thoroughly reviewed on merit having regard to the following factors:
a) The orientation of the allotments being east-west allows for limited avenues to completely avoid overshadowing of a north facing living area.
b) The amended proposal now presents southern side setbacks of 2.1m to the lower storey and 2.7m to the upper storey which presents greater setbacks than that anticipated in Tweed DCP Section A1 Part A (900mm ground level and 1.5m at the upper level).
c) 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.
d) The north facing private open space at [Lot 52] on the neighbours land is already affected by overshadowing.
e) The proposed dwelling height of 6.8m to the roof and 8.2m to the chimney flue is lower than the 9m statutory height limit in the TLEP 2014.
f) The adjoining site at [Lot 52] features significant areas of private open space to the east which is not affected by overshadowing from the proposal.
g) Objective O2 of the DCP A1 4.3 Solar access and ventilation also states the following:
O2. To minimise the potential impacts on solar access and natural ventilation to adjoining properties.
With respect to this objective, given that some overshadowing is unavoidable on these allotments, it is considered that the proposal has appropriately minimised the potential impacts from overshadowing to [Lot 52] through large side setbacks and a building height less than the maximum allowed.
Having regard to the whole DA and the matters raised in your various submissions a thorough merit assessment was undertake as required under s 4.15 of the EP&A Act 1979. Following that assessment the application was granted consent with conditions.
[195] 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.
[207] Council appreciated that the proposed design did not comply with the DCP controls. The fact that Mr Smith considered compliance with the DCP controls by reference to the unroofed area of the open space on Lot 52, as opposed to the entire area of open space, is of absolutely no moment. Whether assessed by reference to the unroofed area or the entire area, the design would not comply with the controls.
Ms Conway submitted that there were three errors in the judge’s analysis. First, she argued that contrary to J[195] it was not the case that an essential integer of the complaint put at trial was that the Council had only considered the unroofed portion of the PAPOS when assessing non-compliance with DCP control C4(i). Second, it was said that on a proper characterisation of her complaint, the Council’s assessment of the non-compliance of the development with the development control amounted to a failure “to properly consider a mandatory relevant consideration”. Third, Ms Conway argued that contrary to J[207] the error complained of was material.
The materiality complaint is understandable enough. However, the nature of Ms Conway’s administrative law challenge, as raised by the first two complaints, is more elusive. As Leeroy submitted, “[d]iscerning the true content of the complaint or complaints made [on this ground] is a difficult task”.
As I understand it, Ms Conway’s challenge was along the following lines. She said she did not assert “that the only thing ever considered by Council was the Unroofed Space”, and she did not deny that the Entire Space “was also considered by Council when assessing non-compliance with cl 4.3(i)”. Rather, her complaint was that the Council erred because it failed to consider questions of compliance or non-compliance with control C4 by reference to both before-development and after-development solar impacts on the Entire Space. It instead compared, on the before scenario, solar access for the Unroofed Space, as against, on the after scenario, solar access for the Entire Space. It was submitted that this “apples to oranges” comparison obscured the true extent of the overshadowing impacts, as, in the “before” scenario, there was materially more existing overshadowing on the Unroofed Space than there was on the Entire Space. As the position was summarised in her reply submissions (footnotes omitted; emphasis in the original):
The [appellant’s submissions] do not use “the language of irrelevant considerations” at all. Regard to the Unroofed Space was submitted to be impermissible in so far as the standard in cl 4.3(i) only refers to the Entire Space. It follows that proper, genuine and realistic consideration of whether the standard in cl 4.3(i) was being satisfied or not, and if there was non-compliance, the extent of non-compliance with that standard (as required under s 4.15(3A)(a) and (b) of the EPA Act respectively) can only permissibly have regard to the Entire Space.
| Row | Description | 9am | 11am | 12pm | 1pm | 3pm | | A | Entire Space (Existing) | 59% | | 71.1% | | 52.5% | | B | Unroofed Space (Existing) | 50.7% | 54.4% | 49.6% | 41.6% | 7.8% | | C | Entire Space (after DA) | 27.3% | 40% | 42.7% | 40.9% | 26% | | D | Correct Calculation of increased overshadowing from the DA (Row A – Row C) | 31.7% | | 28.4% | | 26.5% | | E | Incorrect Calculation of increased overshadowing from the DA (Row B – Row C) | 23.4% | 14.4% | 6.9% | 0.7% | +18.2% |
Ms Conway was effectively complaining that the Council (per Ms Galle) took account of the Incorrect Calculation and not the Correct Calculation. By failing to take account of the Correct Calculation the Council failed to consider the DCP in its terms, which amounted to a failure to take into account a mandatory relevant consideration.
The complaint is without merit. Ms Conway failed to establish that Ms Galle had applied the Incorrect Calculation and had not taken account of the Correct Calculation. Further, the argument misunderstood the statutory context. It is necessary to start by outlining that context.
(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— …
(iii) any development control plan …
that apply to the land to which the development application relates …
(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 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.
1.1 Purpose of this Section
The purpose of this Section is to guide the planning and design of residential and tourist development and development ancillary to residential and tourist development within Tweed Shire. …
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. …
4. Building Design …
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.
…
Objectives
O1. To ensure the dwelling is sited and designed to maximise sunlight and daylight access and natural ventilation to living spaces and external living areas.
O2. 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 [sic – principal] 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
The DCP did not contain a definition of the concept of the PAPOS. As noted above at [18], in the DA Report Mr Smith referred to a definition in the Exempt and Complying SEPP.
Ms Conway emphasised in her submissions that there had been no dispute in the litigation that the Entire Space constituted the PAPOS in this matter. Her case proceeded on the assumption that there was only one right answer on that issue and it was an answer on which the Court below, and this Court, could and should reach its own view in determining the judicial review challenge. That assumption is open to question, although it was not challenged by Leeroy. The notion of there being a principal area of private open space involves assessments which are evaluative and contestable. And the DCP was formulated by Council itself. On the face of it there is much to be said for the view that so long as the Council’s conclusion as to what constituted the PAPOS for any particular dwelling was reasonably open then that suffices. However, I will proceed on the basis that the relevant PAPOS was and was only the Entire Space given that the issue was not disputed.
Control C4 in cl 4.3 of the DCP set standards with respect to overshadowing impacts of development on neighbouring properties. It was not in dispute that the DA did not comply with those standards. Section 4.15(3A)(b) of the EPA Act therefore required the Council, as the consent authority, to be flexible in applying the standard and to allow reasonable alternative solutions that achieved the object of that standard. That, in turn, required regard to be had to the objects of cl 4.3 of the DCP. The point was further reinforced in this case by the fact that cl 1.5 in section A of the DCP stated that the design controls “are a development guideline and represent a possible acceptable solution to meet the design theme objectives and planning and design principles”, and said that it “is acknowledged that there may be other acceptable solutions”. These points make clear that the relevant development controls were not rigid rules or formulas but guidelines outlining acceptable but non-mandatory solutions to meet relevant design objectives and planning principles.
The relevant objective was O2, being to “minimise the potential impacts on solar access and natural ventilation to adjoining properties”. That objective almost precisely reflected the relevant planning principle, P1.
Ms Conway bore the onus of establishing, on the balance of probabilities, the facts supporting her claim: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [10]; Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [132]. To make out her claim it was necessary for her to establish that Ms Galle, as delegated decision-maker for the Council, did not engage in a consideration of what Ms Conway said was required to be considered, namely the Correct Calculation as outlined in the table at [36] above.
The focus of Ms Conway’s challenge was on correspondence sent by Mr Smith and the DA Report that he prepared. The material in the consent authority’s “file” generally will be treated as having been in the possession of the decision-maker: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67]; Notaras at [132]. What points a decision-maker has or has not considered, and what reasons they have adopted for reaching their decision, are issues of fact. When a challenger alleges a failure to consider a mandatory relevant consideration, they bear the onus to establish that such material in the possession of the decision-maker was not considered in reaching the decision: Notaras at [132].
That does not mean, conversely, that any errors in documents in the file should necessarily be attributed to the decision-maker. It cannot be assumed, generally, that any such errors will have been adopted in the decision-maker’s reasoning process. In practice, depending upon all the circumstances, it is often difficult for a challenger to establish that some error in a document in a file has been adopted by the decision-maker in the absence of a statement of reasons by the decision-maker. That is one of the reasons why mechanisms have been developed to enable persons affected by administrative decisions to seek a statement of reasons: note eg LPDT at [11]. One such mechanism is provided by r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW), available to those who have commenced a judicial review case.
The DA Report set out the reasons of Mr Smith for making the recommendation that he did. There is nothing in the materials before the Court to indicate that the reasons in the DA Report were adopted in whole by Ms Galle. The primary judge’s conclusion to that effect at J[199] was correct.
It can be accepted that Ms Galle’s email to Mr Connell of 29 April 2022 did manifest at least some of her views on the overshadowing issue (see [21] above). The same is certainly true of Ms Galle’s email to Ms Conway dated 14 June 2022, notifying her of the decision (see [30] above). Nothing in either email indicated that what was said represented an exhaustive statement of Ms Galle’s analysis or views on the overshadowing issue. Ms Galle did not provide a statement of reasons for her subsequent decision. Ms Conway did not seek such a statement, whether pursuant to r 59.9 or otherwise.
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.
Ms Conway submitted that an inference should be drawn from these communications, along with the DA Report, that a comparison had been made between the Unroofed Space shadow diagrams (for the before scenario) and the Entire Space shadow diagrams (for the after scenario). The foundation of the argument is that the exacerbation of the overshadowing was described as moderate. Ms Conway argued that would not be a possible description of the exacerbation if a comparison was drawn on the “before” and “after” scenarios with respect to the Entire Space.
The argument is weak. The increased overshadowing effect at 12pm was 28.4% on what Ms Conway says was the Correct Calculation, and 6.9% on what she says was the Incorrect Calculation. It is far from clear that only the latter could sensibly have been described by Ms Galle as moderate. Further, insofar as any numerical comparison was made, it would be surprising if a senior Council planning official would compare “apples with oranges” by comparing “before” diagrams showing an effect on one area with “after” diagrams showing an effect on a larger area. There is no evidence Mr Smith himself had performed the Incorrect Calculation. I am not prepared to infer that Ms Galle was proceeding on an incorrect basis as at 29 April 2022, noting that that was in any event prior to when she came to make her decision.
Ms Conway also referred to the email from Mr Lynch to Ms Galle on 2 May 2022 (see [22] above). It was submitted that it was not clear which overshadowing diagrams Mr Lynch had regard to, however if he had applied the Correct Calculation she argued it would not support his conclusion that:
While the overshado[w]ing 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.
Again, there is no safe basis to infer that Mr Lynch can only have been proceeding on the basis of the Incorrect Calculation, and the suggestion that a senior urban designer would have done so is counter-intuitive.
There is thus no reason to infer that Ms Galle did not consider the overshadowing effect of the proposed development on the Entire Space, amongst other things. The materials in the Council file make clear that the proposal was going to exacerbate overshadowing to the courtyard at Lot 52. The shadow diagrams illustrated that effect on the Entire Space. Ms Galle articulated clear and cogent reasons why approval of the development was justified despite its overshadowing effect in her email to Ms Conway on 14 June 2022 (see above at [30]).
Ms Conway’s argument seemed to come down to asserting that the degree of overshadowing was not appreciated by Ms Galle and, if it had been, a different decision might have been reached. Ms Conway asserted, in the context of arguing that any error made was material, that “regard to the Unroofed Space diagrams lessened the perceived degree of non-compliance compared to if regard was only had to the Entire Space shadow diagrams”. This argument assumed that having regard to the Unroofed Space diagrams would necessarily mean that the Entire Space diagrams were either misunderstood or not properly considered. That conclusion does not follow and was not made out. The practical effects and significance of the overshadowing caused by the proposed development could be understood and considered in different ways. That it may have been considered in one way does not establish that it was not considered in other ways.
In this context, Ms Conway has failed to establish on the balance of probabilities that the reasoning of Ms Galle involved, let alone depended upon, the Incorrect Calculation in the manner alleged, or failed to take account of the Correct Calculation. For that reason her Judicial Review Ground is not made out.
For completeness, one further piece of evidence should be mentioned, although neither side referred to it. Mr Connell sent a lengthy email to the Council’s councillors on 11 May 2022. He provided details of the DA in order to enable them to decide whether to exercise their power to call-up the DA for determination by them. The email began by noting that Ms Conway’s solicitor had said he had approached the Minister for Planning for an inquiry into the conduct of the Council and that he proposed to file judicial review proceedings. The email addressed control C4. Critically, it included a table showing the Correct Calculation, that is, comparing the “before” and “after” figures for overshadowing by reference to the Entire Space. The email did not include the Incorrect Calculation.
Immediately after the table, the email said (emphasis in the original, other than where indicated):
As demonstrated in the table above, numerically the proposal does not comply with the 50% requirement of the DCP A1 overshadowing provisions. There are a number of factors, however, that when considered contribute the proposed variation being acceptable in this instance. They include:
- The orientation of the allotments being east-west allows for limited avenues to completely avoid overshadowing of a north facing living area.
- As noted above, the proposal now presents southern side setbacks of 2.1m to the lower storey and 2.7m to the lower storey in lieu of the 900mm requirement of the DCP Section B5. Greatly exceeding the side boundary setback helps to reduce the area affected by overshadowing on the adjourning allotment.
- 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.
- Existing overshadowing (see attached EQ003 4-11) – as noted in the table above, the north facing private open space is already affected by overshadowing and is only moderately exacerbated by the proposal as amended. [Emphasis added]
- The current title pf the subject site 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 (see attachment Two dwellings on allotments)
- The proposed dwelling height of 6.8m to the roof and 8.2m to the chimney flue easily complies with the TLEP 2014 height limit of 9m, which in-turn limits the length of shadow cast.
- The adjoining site at [Lot 52] features significant area of private open space to the east which is not affected by overshadowing from the proposal.
Objective O2 of the DCP A1 4.3 Solar access and ventilation also states the following:
O2. To minimise the potential impacts on solar access and natural ventilation to adjoining properties.
With respect to this objective, given that some overshadowing is unavoidable on these allotments, it is considered that the proposal has appropriately minimised the potential impacts from overshadowing to [Lot 52] through large side setbacks and a building height less than the maximum allowed.
Council’s Senior Urban Designer John Lynch has also endorsed the proposal as amended by stating:
[Mr Lynch’s statement set out at [22] was then extracted]
With consideration of the above points, the proposed variation is considered acceptable in this instance given the existing site characteristics/constraints, the adjoining site characteristics and orientation and the proposal exceeding other built form controls of the DCP A1 i.e. height and setbacks.
This email indicates that Mr Connell not only considered the Correct Calculation but that he considered that it indicated the overshadowing was only “moderately exacerbated”.
The version of the email in evidence does not indicate that it was prepared with the assistance of, or sent to, Ms Galle. However, Mr Connell appears to have had a limited role in the process of considering the DA. Ms Galle obviously felt it appropriate to inform him about it, as shown by her email to him of 29 April 2022. The email to the Councillors was lengthy and appears to have been carefully prepared. The email was obviously important to enable the Councillors to make an informed choice, in the context of a contentious DA which had led to a supposed complaint to the Minister and a threat of litigation. It would be surprising if Mr Connell had not involved Ms Galle in its preparation. Further, the seven dot points in Mr Connell’s email substantially overlap with the six dot points in Ms Galle’s email to him of 29 April 2022, including use of the words “moderately exacerbated”. In this context the natural inference is that Ms Galle was involved in the preparation of the email. There is even more reason to infer that at the very least she was made aware of its contents, as it would be surprising if Mr Connell had not made the ultimate decision-maker aware of what he had told the Councillors about the issue.
This email suggests that Ms Galle had before her material setting out what Ms Conway says was the required Correct Calculation. However, it is not necessary to rely on this email to conclude, as I have done, that Ms Conway has not discharged her onus of proof to make out her complaint.
Even if it was assumed that Mr Smith’s views and analysis were to represent Ms Galle’s views, Ms Conway’s Judicial Review Ground would still not be made good. Her complaint involves the assumption that control C4(i) required the Council to perform the Correct Calculation, that is, to engage in a mathematical comparison of the percentages of overshadowing before and after the proposed development by reference to one understanding of the PAPOS. As it was put in oral submissions, “there must be an assessment by reference to the existing state of affairs and the proposed state of affairs as to what the state of the compliance [is]”. That is not so.
The relevant control is expressed in terms suggesting that the Council should “ensure” that sunlight to at least 50% of the PAPOS “is not reduced to less than 2 hours between 9am and 3pm on June 21”. That addresses the effect on solar access of the development. It is not expressed to require a comparison of that effect with how much solar access there is without the proposed development. Of course, examining that comparison is a natural and sensible thing to do in order to consider what difference a proposed development makes. That is different from it being a mandatory relevant consideration. There are innumerable factors that the Council could legitimately have taken into account in reaching a decision on whether to approve the DA and, if so, on what conditions. That understanding reflects basic legal principle that beyond any expressed or implied mandatory relevant or impermissible considerations, the discretion of an administrative decision-maker is confined only by the subject matter, scope and purpose of the statute in question: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50; [1979] HCA 62; Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41; [1986] HCA 40
Not only did Ms Conway’s argument approach control C4 as though it created a strict and rigid mathematical formula, it failed to acknowledge that the control itself, in the context of the DCP, represented “a possible acceptable solution to meet the design theme objectives and planning and design principles”, where alternative solutions could be adopted if justified (see DCP section A1 cl 1.5, quoted above at [41]). That understanding was consistent with the terms of s 4.15(3A) of the EPA Act. This context militates against construing control C4 in the monofocal manner adopted by Ms Conway.
As Leeroy noted, at times the submissions of Ms Conway seemed to suggest that for Council to have considered the “before” and “after” scenarios by reference to the Unroofed Space would have been to consider an impermissible consideration. That suggestion was disavowed by Ms Conway. Yet her submissions made clear that she accepted that “the Council assessed cl 4.3(i) both in terms of the Entire Space and the Unroofed Space”. The apparent suggestion that it was impermissible for Ms Galle to have considered the effect of the proposed development on the Unroofed Space was incorrect. That control C4 presumptively required the Council to consider the effect of the development on the Entire Space (cf [44] above) did not mean that the effects of the development on solar access could not also have been expressed or considered in other ways.
[155] Mr Andren expressed the opinion that the proposed building on [Lot 51] 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.
[156] 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.
The proposed easement was framed accordingly. Leeroy did not argue that such restrictions could not be imposed under s 88K.
The pre-conditions for making an order under s 88K are as follows:
(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.
The primary judge declined to make the order sought because he was not satisfied that imposition of the claimed easement was reasonably necessary for the effective use of Lot 52 (J[293]-[302]). His Honour explained that Lot 52 could still be used as a residential dwelling without the proposed easement; that whilst maintenance of solar access and natural ventilation would no doubt be preferable or desirable, something more is required, where “[r]easonable necessity cannot be reduced to substantial preference, or something ‘nice to have’” (J[299], citing ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27,317 at [52]-[53] per Giles JA (Campbell JA agreeing)); and that imposition of the easement would have an impact on Lot 51, including by preventing Leeroy proceeding with its approved and preferred development, where it was by no means certain that Mr Andren’s proposal would be approved.
The primary judge also said, without expressing a concluded view, that there was some force in Leeroy’s submissions that imposing the limit sought was inconsistent with the public interest and should not be imposed as a matter of the Court’s discretion (J[303]-[304]). His Honour did find that reasonable attempts had been made by Ms Conway to obtain such an easement (J[308]) and usefully identified appropriate compensation of $345,547.20 if an easement were to be ordered (J[331]). The latter two conclusions were not challenged by Leeroy.
On appeal Ms Conway asserted that the primary judge erred in concluding that imposition of the easement sought was not reasonably necessary, and erred in failing to exercise the discretion to impose such an easement. In my view the claimed error relating to reasonable necessity is not established, and it is not necessary to address exercise of the discretion.
It has long been recognised that “the word ‘necessary’ has different shades of meaning”, depending on the context in which it is employed: Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39]. When that is understood, there is nothing nonsensical or contradictory about qualifying the notion of necessity with the adverb “reasonably”: contra Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120 at [7]. Indeed, the phrase “reasonably necessary” is familiar to the law, again with varying connotations: Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [20]–[27]. It is natural that where such a phrase is used in legislation, case law develops explaining the relevant shade or shades of meaning the Parliament should be taken to have intended in a particular context. Of course, judicial exposition can help explain what is conveyed by the statutory text but should not distract from it: note further Farshchi v The King [2025] HCA 46; (2025) 100 ALJR 6 at [59]-[60].
It has been held that reasonable necessity in the context of s 88K of the Conveyancing Act involves something more than mere convenience or mere desirability or preferability over alternative means available, but does not require absolute necessity: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257 at [154]; 117 York St Pty Ltd v Proprietors of Strat**a Plan No 16123 (1998) 43 NSWLR 504 at 508; Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2002) 103 NSWLR 834; [2020] NSWCA 292 at [34]. That significant standard reflects the fact that mandatory imposition of an easement is an infringement on the property rights of the owner of the servient tenement: note eg Khattar v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235 at [27].
The concept of whether a proposed easement is reasonably necessary for the effective use or development of other land requires an evaluative judgement which may involve a range of potentially relevant considerations, depending on the circumstances of the particular case: ING Bank at [49] and [155]. Those considerations may include:
the significance to the other land of the effective use or development in question, including whether or not that proposed use or development is reasonable, although it is not necessary to show that it is the highest and best use of the land: note 117 York St at 507-508; Moorebank at [155]; Shi v (2014) 87 NSWLR 568; [2014] NSWCA 293 at [7];
It is clear that reasonably necessary in s 88K(1) does not mean “absolutely necessary”, and thus that the requirement may possibly be satisfied even when the plaintiff’s land could be effectively used or developed without the easement.
In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement.
That understanding has been cited with approval in a number of subsequent cases: see eg Moorebank at [154] and [163]; Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 at [38]; Rainbowforce at [74] and [78]. Ms Conway submitted that this passage was inconsistent with the primary judge’s statement at J[299] that “[r]easonable necessity cannot be reduced to substantial preference, or something ‘nice to have’”. Justice Pike’s statement was supported by reference to ING Bank at [52]-[53]. Nevertheless, Ms Conway argued that the primary judge incorrectly elided “substantial preference” with something “nice to have”, with the former being a consideration that would support the granting of an easement under s 88K.
In ING Bank, Giles JA said (with the agreement of Campbell JA):
[52] The judge referred to other cases standing against the submission, in particular the decision of Young J … in D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419 where it was said at [13] that the cases —
“ … indicate that the word ‘necessary’ does not mean absolutely necessary, but it does mean more than something that is convenient or nice to have and that one must look for a requirement that is far closer to necessity than it is to convenience.”
...
[53] In my opinion, in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 Hodgson CJ in Eq was not saying that it was sufficient that use or development with the easement was substantially preferable to use or development without the easement. That appears in particular from the parenthetic “at least”. The words of s 88K(1) must be applied, rather than some substituted words. Although qualified by “reasonable”, the requirement is necessity, and I respectfully agree with Young J’s emphasis on (reasonable) necessity. In my opinion, reasonable necessity can not be reduced to substantial preference.
[93] It is clear that reasonable necessity is not a low bar, but it is also clear from subsequent consideration by the Court of Appeal that the effect of O'Shea was not to move away from the approach of Hodgson J in 117 York Street, but rather to emphasise that his Honour provides guidelines which should not be mistaken for the statutory test.
[150] I do not accept that his Honour applied any of the principles or guidelines inflexibly, as if they mandated a particular outcome of the discretion his Honour was called upon to exercise. His Honour was conscious of what Giles JA had said in O'Shea (at [53]) that “reasonable necessity can not be reduced to substantial preference”, and added that the Court of Appeal had there emphasised that the guidelines proposed in 117 York St should not be mistaken for the statutory test. His Honour went on to apply, expressly, the statutory test.
The appellant correctly identified the correctness standard as the appropriate standard of review on appeal with respect to the reasonable necessity issue (as opposed to review of any ultimate discretionary judgment made under s 88K(1)): Gordon at [41]; Aussie Skips at [30]-[33].
Ms Conway submitted that the primary judge should have found that the proposed easement was reasonably necessary for the following reasons:
Ms Conway’s dwelling was constructed with a central focus on the north face of the block, with the sun and ventilation that the north affords. It was designed to capture the natural light and ventilation from the north-east. That is significant not just for the outdoor spaces but the effective liveability of the internal spaces on the ground floor.
The degree of overshadowing of Leeroy’s proposed development is “severely non-compliant” with control C4 in the DCP.
The shadow diagrams submitted by Leeroy in fact understate the amount of overshadowing. Visual depictions of the true degree of overshadowing prepared by Mr Andren reveal an oppressive situation.
Leeroy’s proposed development could be achieved by Mr Andren’s design that moves the development northward, further set-back from the boundary with Lot 52. There was unchallenged evidence this would not significantly increase the impact to vegetation to the north of the block.
Although not in and of itself sufficient, the proposed easement conforms with the long-standing actual use of the servient land and the historical context of Lot 52.
The impact to Leeroy was not so great as to counteract these considerations, including because it will be compensated; it also owns Lot 50, thus the impact is less than it otherwise would be; and Mr Andren’s design or some alternative “may well be accepted by Council”.
The proposed easement would impose a significant restriction on the future development of a dwelling on Lot 51. That being so, a significant justification is required to establish reasonable necessity in the relevant sense.
In that regard, one matter can be set aside. Clause 1.9A(1) of the Tweed Local Environmental Plan 2014 provides:
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.
The provision was enacted in reliance upon s 3.16 of the EPA Act. The primary judge discussed the significance of cl 1.9A(1) at J[332]-[361]. When considering reasonable necessity it might have been argued by Ms Conway that cl 1.9A would or could decrease the burden imposed on the property rights of the servient owner. However, a question would then arise to the same extent about the utility of the Court, in its discretion, making an order which would or might not be efficacious. Ms Conway did not seek to rely on the point, and indeed asserted that cl 1.9A would not apply if an easement was ordered under s 88K. It is not necessary to resolve that issue. It is appropriate for the purposes of the reasonable necessity analysis in this case simply to assume that any easement ordered would have practical effect, as asserted by Ms Conway.
As to Ms Conway’s first and fifth reasons, no doubt the house on Lot 52 was constructed to take advantage of the unobstructed northern light. No doubt the development contemplated by the DA will cause a greater level of overshadowing to the dwelling erected on Lot 52 than is currently experienced and has historically been experienced. No doubt such overshadowing will somewhat reduce the amenity of that dwelling. However, the design choices relating to the dwelling on Lot 52 reflected the fact that Lots 50 and 51 were previously in the same ownership. The loss of amenity to Lot 52 because of a house being built on Lot 51 is a manifestation of that change of ownership. There is little force in the suggestion that these facts should sterilise or restrict development on a significant portion of Lot 51 in the manner proposed.
As to the second and third proffered reasons, relying on control C4 in the DCP and Mr Andren’s shadow diagrams, these submissions ignore the broader context of that development control, which includes the portions from section A1 quoted above at [41], along with s 4.15(3A) of the EPA Act. This submission also appears to be an implicit invitation to engage in merits review of the Council’s decision to approve the DA taking account of all relevant factors, including the significant overshadowing and non-compliance with control C4. That invitation is rejected.
Similar issues arise in relation to the fourth and sixth reasons relating to the possibility of adopting Mr Andren’s design and/or the possibility of Leeroy making use (or more use) of Lot 50. No doubt there are myriad other designs, potentially including designs akin to Mr Andren’s, for which Leeroy could have sought development consent. However, Leeroy sought and obtained development consent for the dwelling proposed in the DA. Doing so was an exercise of its rights as freehold owner of Lot 51. To restrict its freedom of choice in this regard would be to infringe its property rights in a significant respect.
As for the fact that Leeroy could be compensated for the restriction of its property rights, that goes to another precondition to the exercise of power under s 88K but says little as to whether the proposed easement is reasonably necessary in the relevant sense.
Neither ground of appeal has been established. The appeal should be dismissed. There is no reason why costs should not follow the event.
Leeroy sought a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The primary judge had made such an order, noting that there was “little doubt that a costs assessment would be heavily contested”: Conway v Leeroy Property Investments Pty Ltd (No 2) [2025] NSWSC 1516 at [47]. Ms Conway accepted the “pragmatism” of a gross sum costs order with respect to the costs of the appeal. Orders should be made to facilitate Leeroy applying for such an order. That does not mean that such an order necessarily will be made. It may be that the parties can agree on the costs payable. If not, the Court will determine any such application on the papers, subject to either party providing some good reason why an oral hearing should occur.
I would make the following orders:
Appeal dismissed.
Appellant to pay the first respondent’s costs of the appeal.
If the parties do not agree on the amount of costs to be paid:
(a) The first respondent has leave to file and serve an application for a gross sum costs order, any evidence in support of that application, and written submissions of up to 3 pages, by 16 July 2026. (b) The appellant has leave to file and serve responsive evidence, and written submissions of up to 3 pages, by 23 July 2026. (c) The first respondent has leave to file and serve any written submissions in reply of up to 2 pages by 27 July 2026.
McHUGH JA: I agree with Kirk JA.
FREE JA: I agree with Kirk JA.
**********
Conway
Leeroy Property Investments Pty Ltd
(1998) 43 NSWLR 504
(2002) 103 NSWLR 834
(2019) 240 LGERA 32
(1904) 1 CLR 283
(2025) 100 ALJR 6
(2018) 97 NSWLR 90
(2019) 101 NSWLR 427
(2024) 280 CLR 321
(1986) 162 CLR 24
(2004) 220 CLR 181
(2007) 161 LGERA 230
(1979) 144 CLR 45
(2010) 171 LGERA 286
(2014) 87 NSWLR 568
(2007) 233 CLR 307
(2003) 127 LGERA 120
Appeal dismissed. The appellant was ordered to pay the first respondent’s costs of the appeal. If the parties did not agree on costs, the first respondent could file a gross sum costs application and supporting evidence and submissions by 16 July 2026; the appellant could respond by 23 July 2026; and the first respondent could reply by 27 July 2026 ([101]–[103]).
Neither ground is made out. The appeal should be dismissed. In what follows I first set out the relevant factual context (at [7]-[30]) before addressing the Judicial Review Ground (at [31]-[71]) then the Easement Ground (at [72]-[100]).
As discussed above at [27], Mr Smith’s analysis in the DA Report did seem to suggest that even at that stage he continued to think that even though the PAPOS was the Entire Space, the appropriate focus was on the effect on the Unroofed Space rather than the Entire Space. Whatever his views, the DA Report itself did contain shade diagrams sent by ZPG showing the effect on the Entire Space. Moreover, neither in the DA Report nor anywhere else in the materials did he or anyone else articulate in terms the Incorrect Calculation, that is, directly comparing the Unroofed Space before the proposed development and the Entire Space after the development.
The Council’s file for the DA included the ZPG diagrams depicting overshadowing impacts on the Entire Space both before and after the construction of the development proposed in the DA, albeit that the “before” diagrams depicted shadowing at 9am, 12pm and 3pm (consistently with control C1 in the DCP) and did not include 11am and 1pm (see row A in the table at [36] above). Ms Conway did not complain about the absence of “before” figures for 11am and 1pm. There was therefore material in the Council file enabling a comparison of the “before” and “after” overshadowing on the Entire Space, as Ms Conway asserted should have occurred on the Correct Calculation. There is no basis to infer that Ms Galle did not consider that comparative effect.
Ms Conway referred to the email sent from Ms Galle to Mr Connell on 29 April 2022 (see [21] above), setting out six points relating to the overshadowing issue. Five of those points had been included in an email Mr Smith sent to Ms Conway on 28 April 2022. The following point appeared in both communications:
Ms Conway’s argument proceeded on a legal misunderstanding of the nature of the control. For that reason, along with the factual reasons outlined above, Ms Conway has not established that the conclusion reached by the primary judge with respect to the Judicial Review Ground was erroneous. Ground 1 of the appeal is not established.
the degree to which that use or development would benefit from the proposed easement, as compared to if the easement were not granted: note eg Woodland at [19(7)];
the historical context of the use of both the dominant and servient tenements: Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 at [42];
the availability of reasonable alternative means to achieve such use or development, although it is not necessary that the proposed easement is the only way to facilitate the effective use or development of the land: note Shi at [91]-[95]; Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286 at [75] and [81];
the effect of the grant of the easement on the servient tenement and the extent to which it detracts from the property rights of the servient owner, where the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: ING Bank at [49] and [149]-[151]; Moorebank at [156]-[157]; Gordon at [42].
Whether or not an easement is reasonably necessary is to be assessed by reference to the circumstances as they exist at the time of the hearing: 117 York St at 511; Moorebank at [96]; Gordon at [40]. The plaintiff bears the onus of factual proof and the persuasive burden in making out a claim under s 88K: Gordon at [39].
In criticising the analysis of the primary judge, Ms Conway sought to emphasise what Hodgson CJ in Eq said in 117 York St (at 508-509; citations omitted):
It is useful to address the issue in terms of the factors identified above at [80]. The significance of the use in question, and the extent to which that use would be advanced, is limited. It is simply a matter of preventing a partial loss of amenity for the house on Lot 52. As the primary judge indicated, the solar access is something nice to have. The dwelling will remain entirely capable of being used for residential purposes and will retain a level of solar access conducive to that end. Such circumstances may be contrasted with cases which found there existed reasonable necessity of an easement for drainage or rights of carriageway, the absence of which would severely preclude the effective use of land for residential purposes: see eg Stepanoski v Chen [2011] NSWSC 1573 (drainage) or Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812; (2023) 21 BPR 44,389 (carriageway).
As to the historical context, as noted it is obvious that the house on Lot 52 was built to take advantage of the previous owner also owing Lots 50 and 51. That fact has limited significance when ownership of the lots has been split.
There are no obvious reasonably available alternative means to protect the amenity of the house on Lot 52 beyond what is proposed, leaving aside the possibility of tinkering with the details of what is proposed. However, the price of the proposed restrictions is to benefit the amenity of Lot 52 at the cost of the freedom of choice as to development, including as to best use of the amenity, of Lot 51.
The matters relied upon by Ms Conway fall well short of establishing that imposition of the easement sought is reasonably necessary for the effective use or development of Lot 52. The primary judge was correct to so conclude. Ground 2 of the appeal is not made out.