[27] The authorities repeatedly point to the confiscatory nature of s 88K as requiring firm proof of the reasonable necessity for the easement, and that the court bear in mind that property rights are valuable rights not lightly to be taken away [ Re Seaforth Land Sales Pty Limited v Land [1976] Qd R 190, 193 (Douglas J); Nelson v Calahorra Properties Pty Limited (QSC, Thomas J, 5 December 1984; affirmed [1985] QConvR ¶54-202); Ex parte Edward Street Properties Pty Limited [1977] Qd R 86, 91 (Andrews J); Re Worthston Pty Limited [1987] 1 QdR 400, 402 - 3 (Carter J); Tregoyd Gardens , 15,853-4; Durack v D E Winton (1998) 9 BPR 16,403, 16,449 (Einstein J); Hanny v Lewis (1999) 9 BPR 16,205; (1999) NSWConvR ¶55-879, 56,875; Woodland v Manly Municipal Council (2003) 127 LGERA 120, [2003] NSWSC 392, [15] - [18] (Hamilton J)]. The extent of the burden of the proposed easement on the servient property is a relevant consideration, to the effect that the greater the burden, the stronger is the case needed to justify a finding of reasonable necessity [ Katakouzinos v Roufir , [42]; Woodland v Manly Municipal Council , [12]].
16 With those statements in his Honour's judgment, I agree with only one reservation. As I have said previously, I have always been troubled by the modification of the word "preferable" by the word "substantially" in the formulation by Hodgson CJ in Eq. However, there is no need to pause to consider that matter further here as, realistically, no question arises in this case as to whether or not that modification is adopted. The facts of the matter in this case are that both the first and second plaintiffs' land and the third plaintiff's land are currently used as single cottage blocks. The Council, subject to the obtaining of the easement sought, has approved the development of their land in an amalgamated lot by the erection of 10 villas. As I have already indicated, that development is possible at the moment within a window of opportunity which may disappear with modification of the Local Environmental Plan. It is certainly preferable, and, if it matter, substantially preferable, from the plaintiffs' point of view that the land be able to be used in conjunction with an easement granted by the Court to carry out that development. That is, in planners' or valuers' terms, a higher and better use of the land. It is one that is obviously economically advantageous to the plaintiffs. I shall apply myself to the words of the statute rather than to those of any proposed gloss. In my view, an easement is reasonably necessary for the effective use or development of the lands of the plaintiffs.
17 Whilst equal suitability of two sites could not be allowed to frustrate the purpose of the statute, in fact it does appear from the evidence that there is a reason of substance for preferring the easement sought over the defendants' land rather than an easement over the Wilkinsons' land. When the drainage pipe reaches Werrington Creek, it is necessary for the discharge to take place down a head wall, which is a device intended to prevent erosion of the creek bank. The relevant portion of the head wall is, in fact, on the defendants' land rather than the Wilkinsons' land, so that, even if the drainage pipe proceeded for most of its length through the Wilkinsons' land, it would have to enter the defendants' land at its western end to permit discharge down that head wall. In those circumstances, it is an easier and more advantageous course that the drainage line follow a straight course through the defendants' land throughout its entire length. For that reason, it is preferable to grant the easement over the defendants' land rather than over the Wilkinsons' land.
(2) Will the proposed land use be not inconsistent with the public interest?
18 I see no reason why the use should not be characterised as not inconsistent with the public interest. On the evidence there is no identified or identifiable public interest which would be affected. It is plain that land in the vicinity is now zoned so as to permit multi dwelling use and the implementation of multi development uses is proceeding. The actual development proposed by the plaintiffs has been approved by the Council as the consent authority. There is no public interest that will be impinged upon.
(3) Can the defendants be adequately compensated for any loss or other disadvantage that would arise?
19 The valuation evidence indicates a minimal disturbance of the use of their land by the defendants. The defendants' block is large, the site of the easement is along the back boundary. Because of its location, it will not diminish the development potential of the defendants' land. The disturbance during the construction phase, in which a pipe is laid in the easement, will be short and not highly intrusive. Thereafter, the pipe, through which the purpose of the easement will be achieved, will be underground. Entry for the purpose of maintenance or repair of the pipe will be infrequent and, again, should not cause any great disturbance. Monetary compensation will be adequate to recompense the defendants for these disadvantages
(4) Have all reasonable attempts been made to obtain the easement or an easement having the same effect but been unsuccessful?
20 I conclude from the evidence that all reasonable attempts have been made to obtain the easement from the defendants. The evidence shows that the plaintiffs also approached the Wilkinsons for an easement on the alternative site mentioned above. At least, on the evidence, the Wilkinsons appear to have given rather more consideration to the request, but, in the end, without any result that was more successful from the plaintiffs' point of view. I am satisfied that all reasonable attempts have been made by the plaintiffs to obtain the easement or an easement having the same effect, but have been unsuccessful.
(5) Should the Court exercise its discretion to impose an easement?
21 It seems to me clear, from the various factual matters set out above, that there are no reasons why the Court should exercise its discretion against the imposition of an easement and considerable reasons why the easement should be imposed. I propose to exercise the Court's discretion in favour of the imposition of an easement.
(6) What compensation should be imposed?
22 The considerations that Mr Lunney took into account in coming to the conclusion that $11,000 was a reasonable consideration were as follows. He concluded that recent sales of medium density residential land reflect values ranging from $333 to $416 per square metre. However, he did not base his assessment on those figures. He based them instead upon an option which was granted by the defendants to two of the plaintiffs to purchase, in 2002, a portion of the defendants' lot 720, being a portion immediately adjacent to, and to the west of, the Gordons' lot 721. The option was not exercised. The price agreed if the option had been exercised was $300,000, which reflected a rate of $213 per square metre. This somewhat deflated value reflected the fact that the block which was being purchased was a landlocked block which was only of value to a neighbour, because it had no street access and, therefore, no development potential. Mr Lunney then increased that 2002 value by 20 per cent to allow for the general rise of land values in the area between 2002 and 2005. It was from a unit value calculated in this way that Mr Lunney extrapolated a land value of $10,000 which, with $1,000 for compensation for disturbance added to it, presented the $11,000 figure that he brought forward.
23 However, I do not think that this was the correct basis on which to proceed, rather than extrapolating from the up-to-date square meterage figures for medium density residential land. The reason for that is that the defendants' land as it stands is not a landlocked block like that the subject of the option, but is a large block with a frontage of more than 20 metres to Irwin Street and does not have its value as a potential development site consequently depressed. In those circumstances, it seems to me, and Mr Drummond does not argue against this, the compensation should be assessed on the basis of current values for medium density residential land. The median figure in the range $333 per square metre to $416 per square metre is $374 per square metre. This does not need to undergo a 20 per cent uplift, as it is not a 2002 land value, but a current value. I agree with Mr Lunney's estimate that the compensation should be only half the land value, since the defendants are not deprived of the fee simple in the relevant land, but merely have it encumbered by an easement which will permit the laying and maintenance of an underground pipe.
24 In those circumstances, in my view, the appropriate allowance for diminution of land value is $15,000. I am prepared to accept Mr Lunney's estimate of $1,000 for the comparatively small amount of disturbance involved, producing, in my view, an appropriate figure of $16,000 compensation to be embodied in the order as required by the section.
25 The conclusion of the Court is, therefore, that an easement will be imposed over a site on the defendants' land generally indicated in the plaintiffs' evidence. Despite the urgency of the plaintiffs' obtaining an order, that order cannot be made today. The reason for this is that the Court's order is, in effect, a conveyancing document, being the document that actually creates the easement, which is then required under the Real Property Act 1900 to be entered by the Registrar General upon the certificate of title. The trouble is that neither the survey plan exhibit A, nor the engineering plan exhibit B, indicates the site of the easement in sufficient detail for that plan to be attached to the order and to form the basis of the entry by the Registrar General of the easement on the title documents.
26 Equally, the section requires the specification in the order of the nature of and terms of the easement and such of the particulars referred to in s 88(1)(a) - (d) of the CA as are appropriate. Indeed, it is that subsection that requires the identification of the site of the easement by reference to a plan that is or is capable of being registered or recorded under Division 3 of Part 23.
27 I propose to stand the matter over before me on 30 January 2006 at 11am for the bringing in of documents which will permit me to make an order in a form which complies with s 88K(3) to give effect to this decision.