Q. May we take it from paragraph 6 that you thought at the time you instructed the letter to be sent that there would be a need to remove trees on my client's property if you put your drainage in?
A. Correct, the trees are there.
40 The northernmost tree is located in the northwestern corner of Mrs Wiese's property. The plan of the proposed easement currently relied upon by the plaintiffs [Affidavit of T Khattar, 15 August 2005, annexure C] indicates the drainage line in a position which would interfere with the root system, if not the structure, of that tree. However, in his oral evidence Mr Khattar suggested that he would obtain from the proprietors of 118 Jersey Road a sufficient easement over 118 Jersey Road to enable that tree to be by-passed. I must say that I thought this evidence was a rather spontaneous and convenient response to the problem: it is not consistent with the plan of the easement contained in Mr Khattar's affidavit sworn as recently as 15 August 2005, which suggests that the easement would be not more than about 1.2m by 1.2m in the north-eastern corner of number 118; and the letter from the proprietors of 118 Jersey Road consenting to an easement is entirely non-specific as to its dimensions. However, as this issue could be addressed by the imposition of appropriate conditions on the grant of relief, I am prepared to proceed on the basis that the plaintiffs will obtain a sufficient easement over the rear of 118 Jersey Road to by-pass the first tree.
41 The second and third trees are located in about the centre of the site of the proposed easement. Although Mr Khattar in his oral evidence suggested that they did not exceed eight feet in height - since (so he asserted) they did not rise above the eight foot boundary fence - he was mistaken: the photographic evidence shows them well above the height of the boundary fence and, accepting the boundary fence to be eight feet in height, are clearly more than twelve feet. Mr Khattar's evidence was that these trees would be removed and replaced, perhaps by potting them during the construction process, and then replanting them afterwards:-
Q. Does that allow for the cost of cutting down trees?
A. No, trees would be cut down, the two shrubs would be removed and replaced. Yes, the two shrubs that we were talking about would be replaced.
…
ROBINSON: Q. My friend asked you whether it was easier to replace trees or concrete and I think you have indicated it is easier to replace trees. Can you tell his Honour why that is the case?
A. The trees, you can save them, put them in the pots, maintain them. By the time you finished the work, replant them. Concrete, you have to hire a machine, rip it out, get rid of the concrete, pay to get rid, then relay and supply concrete.
42 I am unable to see how this complies with a requirement that the easement permit installation of stormwater pipe ensuring that any … root zones of existing trees … are not disturbed. To the contrary, it is implicit in this evidence that the root zones would be disturbed.
43 The fourth tree, which has attracted most attention, is located at the southern extremity of the site of the proposed easement. Mr Khattar says that he has stood on the alignment of the existing easement in Jersey Road and by looking along the alignment of the easement has ascertained that this tree is south of the existing drainage line. That corresponds with the way in which it is marked on Mr Wiese's plan. The photographic evidence, though not entirely clear, supports that view. But on any view, this tree - a Silky Oak - is a substantial tree. Given the location and dimensions of the tree and of its foliage, as revealed by the photographic evidence - in particular by the aerial photograph - and given that the onus lies on the plaintiff of proving reasonable necessity, I am quite unable to be satisfied that the construction of a stormwater drain within the proposed easement would not disturb the root zone of that tree.
44 In this respect, the evidence falls well short of firmly proving that the proposed easement will satisfy Council's condition. For the plaintiffs, Mr Robinson submits that it would be premature to decide that the easement could not be constructed in compliance with the condition of the deferred approval, and that account should be taken of the possibility that the Council could be persuaded to accept arrangements for the protection of the trees. But this overlooks that it is for the plaintiffs to establish reasonable necessity, and to do so by firm proofs. Although there is some faint evidence that Council might entertain applications for variation of the conditions in some respects - such as to reduce the minimum width of the easement from 1250mm to 1200mm - there is nothing to suggest that it would entertain an application for variation of the condition relating to the root zones and structures of trees. Accordingly, Mr Potts has made good the submission that the proposed easement is incapable of meeting Condition 1 in Schedule A of each of the development approvals. In other words, the easement sought by the plaintiffs is not the easement which Council requires; it will not satisfy Council's conditions; and its creation will not permit the proposed development to proceed.
45 I accept that s.88K, given its remedial nature, should not be interpreted in such an inflexible way as to require that all other obstacles to the proposed use must have been overcome before an easement is granted, and that some necessary consents may not be available unless and until the Court has granted an easement - especially as projects may require dealings with several adjoining properties and government authorities [117 York Street, 512C-E]. But where the very necessity for the easement is said to arise from the imposition of a condition, it is not possible for an easement which does not satisfy that condition to meet the necessity. It follows that reasonable necessity has not been established by the plaintiffs: as the proposed easement would not satisfy the conditions of approval which are said to make it necessary, it cannot be said to be reasonably necessary for the reasonable use and development of the plaintiffs' land.
46 While this conclusion is dispositive, it is appropriate, that I express my conclusions on the other issues: first, lest I be wrong; and secondly, because it is conceivable that the plaintiffs may be able to formulate some further proposal which will satisfy Council's conditions, in which case the determination of the other issues in the case may facilitate resolution of the matter between the parties without further litigation.
Will the use of the plaintiffs' land not be inconsistent with the public interest?
47 The use and development of the plaintiffs' land in accordance with the development approval is a permitted use under the applicable environmental planning instrument. It is consistent with recent development in the area, including immediately adjacent to Mrs Wiese's land. It is consistent with what Mrs Wiese envisages will happen to her own land. There is nothing in the proposed use and development of the plaintiff's land which would be inconsistent with the public interest, and I did not understand Mr Potts to submit otherwise. The requirement of s.88K(2)(a) is satisfied.
Can Mrs Wiese be adequately compensated?
48 Section 88K(2)(b) requires consideration of the adequacy of monetary compensation for the injury which imposition of the easement will visit on the servient owner.
49 In the law of restrictive covenants, which is closely analogous to that of easements, the significance of injuries of an intangible kind, and the inadequacy of monetary compensation for them, is well-recognised. Thus, a person may be "substantially injured" by modification or extinction of a covenant notwithstanding that the value of his or her land would be unaffected or even increased [Re Parimax SA Pty Ltd [1956] SR (NSW) 130, 133; Heaton v Loblay (1960) 60 SR (NSW) 332, 335-336; Re Cook [1964] VR 808, 810; Re Robinson [1972] VR 278, 283-24; Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR ¶55-116, 56,856], and, particularly in the case of injuries of an intangible kind, subjective tastes, preferences or beliefs of particular individuals may give rise to relevant injury [Mogensen v Portuland Developments, 56,856]. Ordinarily, damages are not a sufficient remedy for a substantial interference with intangible benefits, because the loss is not one which is readily capable of being estimated in money, nor one which can be adequately compensated by a small money payment: that is why generally injunctive relief is granted to restrain breaches of restrictive covenants, rather than damages being considered sufficient, at least in most suits [cf Shelfer v City of London Electrical Lighting Co [1895] 1 Ch 287, 322 (A L Smith LJ, CA); Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334; Owen v O'Connor [1964] NSWR 1312; Wollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483]. Views are the paradigm case of intangible benefits, and in Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 Powell J (as he then was) referred to and applied Wakeham v Wood (1982) 43 P&CR 40, in which Waller LJ said "I find it difficult to say that where one has a view protected by covenant, the denial of that view is capable of being estimated in money terms and therefore it seems to me it cannot be adequately compensated by a small money payment".
50 Thus in many cases, injury to intangible benefits and the imposition of intangible detriments, such as reduced amenity and enjoyment of property, and exposure to increased disruption and interference, may weigh heavily against a conclusion that the servient owner can be adequately compensated for the purposes of s.88K(2)(b). One such case, in which it was found that the servient owner could not be adequately compensated, was Blulock (although that case turned on the constraints which the easement would impose on future use of the servient land, rather than on intangibles). On the other hand, in Tregoyd Gardens, Hamilton J, at least implicitly, rejected a submission that, given the intangible benefits which the defendants in that case obtained from the presence of a palm tree, the viability of which might be jeopardised by the proposed easement, a sum of money in exchange for the tree could not be regarded as adequate, in circumstances where the injury was regarded as unlikely to eventuate, and would be relatively minor in the overall context if it did.
51 In the present case, it is decisive that it is Mrs Wiese's intention to sell her property. If, as in Blulock, the impact of a proposed easement on the future utility or amenity of servient land might sometimes be incapable of adequate compensation, that cannot be said in this case. In circumstances where Mrs Wiese proposes to sell her property, more so when she is not herself in occupation of it, and is not receiving rent for it so far as the evidence goes, Mrs Wiese's loss and other disadvantage can readily be identified and valued as the diminution in the value of her property upon sale. In principle, in those circumstances, her loss is the difference between the price which she would have obtained on sale without the easement, and the price she will attain with the easement imposed, plus an allowance for any disruption or other disadvantage which she might suffer in the meantime.
52 It follows that I am satisfied that Mrs Wiese could be adequately compensated for any loss or other disadvantage that would arise from imposition of the proposed easement.
Have all reasonable attempts been made to obtain an easement?
53 The requirement of s.88K(2)(c) is that 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.
54 In Tregoyd Gardens, Hamilton J rejected a submission that the second easement referred to in s.88K(2)(c) must be an easement over the same land as the first and not another easement, whether or not over the same land as the first, producing in effect the same result. His Honour held that if an easement over the alternative (Barbalace) land would have the same effect as the proposed easement (over the Jervis land), then the applicant was obliged to seek and make all reasonable attempts to obtain the alternative grant. This construction is consistent with the policy that compulsory imposition of an easement and expropriation of proprietary rights should be a last resort, and an applicant should first be required to take all reasonable steps to obtain an alternative solution.
55 I do not doubt that Mr Khattar has made all reasonable attempts to obtain the proposed easement over Mrs Wiese's land. But he is required also to make reasonable attempts to obtain any other easement to the same effect. As Hamilton J said in Tregoyd Gardens, in this context reasonableness is a matter of degree, and the relative advantages, convenience and costs of the various options are relevant. Thus in Tregoyd Gardens, the applicant was held entitled to accept the rebuff of its initial approach of Mr Barbalace, given the advice it had as to the relative superiority of the course over the Jervis land, the firmness of the rebuff, and the refusal of Mr Barbalace even to discuss the matter further.
56 Although there was no evidence of any attempt to acquire an easement over 2 and/or 4 Susan Street, its manifest disadvantages when compared to the proposed easement - including much longer easement which would be required, the additional cost, and the condition of the deferred commencement approval which requires connection to the closest drainage system - which Susan Street is not - I would not conclude that reasonable attempts to acquire an easement having the same effect as the proposed easement required that the Susan Street option be pursued.
57 As to the 118/118A Jersey Road option, Mr Khattar did not refer to it at all in his affidavit evidence (though his draftsman, Mr Cozzupoli, did). While, in cross-examination, Mr Khattar said that he had considered it, he was unable to explain why it was not mentioned in his affidavit. He has obtained agreement from the proprietors of number 118 to an easement, he says at least to the extent necessary to by-pass the first tree on Mrs Wiese's property. Only in re-examination did he say that he had spoken to the proprietor of number 118A, whose response was said to be that he was "not interested" - adding, only in response to a leading question, that he had mentioned the possibility of compensation, still to no avail. But there is no evidence of any particular offer of compensation, nor of any written offer, nor of any formal approach such as was made to Mrs Wiese.
58 Contrary to Mr Robinson's submission, an easement over 118/118A Jersey Road would be an easement having the same effect as the proposed easement, just as in Tregoyd Gardens an easement over the Barbalace property was one having the same effect as one over the Jervis property: it connects the plaintiffs' properties to the existing drainage system. The evidence discloses at best perfunctory attempts to obtain an easement over the rear of 118/118A Jersey Road. While that course may not be entirely as advantageous as the proposed easement over Mrs Wiese's land, its disadvantages relative to the proposed easement are not so great as to entitle the plaintiff to substantially disregard it. I am not satisfied that the plaintiff has made all reasonable attempts to obtain an easement having the same effect as the proposed easement [cf PD Consultants Pty Ltd v Leonard Childs [2004] NSWSC 1076 (Brownie AJ)], because he has made at best only perfunctory attempts to obtain an easement over 118/118A Jersey Road, when efforts of considerably greater substance in that behalf were warranted.
Discretionary Considerations
59 The granting of relief under s.88K is discretionary: s.88(1) is expressed in terms which confer a discretion to make an order imposing an easement when the relevant considerations are satisfied. Thus, notwithstanding satisfaction of all the requirements of s.88K(1) and (2), it still remains in the discretion of the court to grant or withhold relief [cf Tregoyd Gardens; 117 York Street, 517-518; Blulock , [20]].
60 That discretion is to be exercised having regard to the purpose of the section, which might be summarised as facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights [Second Reading Speech, Legislative Council, 4 December 1995]. Consideration of exercise of the discretion will only arise once the court is satisfied that the servient owner can be adequately compensated, but will often be informed, if not determined, by a finding that there can be adequate compensation [Blulock, [20]]. While the confiscatory nature of the section may be relevant, and likewise the extent of the burden which would be imposed on the servient land, the mere reluctance of the servient owner to accept an easement is not relevant [Tregoyd Gardens]. The existence of a superior alternative might well remain at least a relevant discretionary consideration, if it is not determinative of "reasonable necessity".
61 Mr Potts submits that even if the requirements of s.88K(1) and (2) had been satisfied, the court should decline to exercise its discretion to grant an easement for substantially the same reasons as he advances in support of the proposition that "reasonable necessity" has not been established. Although in some cases the extent to which a basal statutory requirement is satisfied might be relevant to the exercise of a discretion which arises upon satisfaction of that requirement, that is not so in the present case, essentially because considerations of reasonableness which might otherwise be germane to the exercise of the discretion would be subsumed in findings that reasonable necessity was established, that the servient owner could be adequately compensated, and that reasonable attempts to acquire an easement or an alternative having the same effect had been made. In my opinion, those concepts leave no further room for discretionary consideration of the same factors.
62 One issue raised by Mr Potts, though not initially on discretion, is that there is in force a tree preservation order which applies to Mrs Wiese's land, having the effect that written consent of the Council is required for any works including pruning and removal which affect a tree, such as the Silky Oak; that to carry out of works on a tree on a neighbouring property, the owner's consent is required; that the circumstances envisaged are not such as would be likely to attract such a consent; and that breaches of the tree preservation order can attract serious penalties.
63 It would be implicit in an easement, if granted, that the dominant owner could do whatever might reasonably be necessary to construct it, and that the servient owner would cooperate, including by giving consent to any requisite development application (including any application under the tree preservation order) to facilitate its construction [cf Bland v Levi (2000) NSWConvR ¶55-935; Annwrack Pty Ltd v Williams (NSWSC, Waddell CJ in Eq, 8 February 1989, BC8902584); Patrial Holdings Pty Ltd v Short (Cohen J, 14 July 1994, unreported); 117 York Street, 521-523]. Were I otherwise of the view that the easement complied with the conditions of the approval, then having regard to the purpose of the section, and having regard to the implied obligation to which I have referred, I would have exercised my discretion in favour of imposing the easement.
Quantum of compensation
64 It has not been suggested that there are any such special circumstances of the case as would warrant the court determining that compensation is not payable. Accordingly, were it otherwise appropriate to impose the proposed easement, it would be necessary to provide for payment of such compensation as the court considers appropriate.
65 The onus of proof in a case for compensation under s.88K is borne by the applicant [117 York Street, 516; Mitchell v Boutagy (2001) 118 LGERA 249; (2001) 10 BPR 19,187; (2002) NSWConvR ¶56-024; [2001] NSWSC 1045 (Austin J), [34]]. This compensation is the same compensation "for any loss or disadvantage that will arise from imposition of the easement" as is referred to in s.88K(2)(b) [Goodwin v Yee Holdings; Mitchell v Boutagy]. The court's task, therefore, is to assess appropriate compensation for the imposition of the easement, measured as adequate compensation "for any loss or other disadvantage that will arise from the imposition of the easement" [Mitchell v Boutagy, [25]]. That test involves a causal relationship between the imposition of the easement and the loss or other disadvantage, in which respect the common law of causation - that it is a question of fact to be determined by applying common sense to the facts of each particular case - is applicable [March v E M H Stramare Pty Limited (1991) 171 CLR 506, 515 (Mason CJ); Mitchell v Boutagy, [26]-[27]].
66 In Wengarin Pty Limited v Byron Shire Council (1999) 9 BPR 16,985, 16,989, Young J (as the Chief Judge then was) said that ordinarily compensation would include the diminished market value of the affected land (including the potential use to which it could have been put), associated costs caused to the owners of the affected land, and provision for insecurity, and loss of amenities such as peace and quiet. In Tregoyd Gardens, Hamilton J identified, in the case of grant of a permanent easement such as one to drain stormwater, that compensation will normally include compensation for loss of the proprietary rights taken by the easement, and compensation for the disturbance effected by carrying out the initial work and subsequent repair and maintenance. In Mitchell v Boutagy, Austin J held that provision was to be made both for initial disturbance (upon installation of the pipes) and future disturbance (least in the future there was a need to service and maintain the pipes). Ultimately, His Honour allowed $2,600 (being the rental value for four weeks during which the initial works would take place), and a further $2,000 (about three weeks) for future disturbance.
67 The plaintiffs made a number of offers of compensation, one supported by a valuation. However, the only evidence of value before me is that tendered by Mrs Wiese.
68 Anthony Bruce Duggan, a real estate agent with eleven years experience in the Holroyd and Parramatta districts, opines that if Mrs Wiese's property were sold, it would attract interest from developers for redevelopment; that the proposed easement would have a detrimental effect on the property, as provision would have to be made for a reduction in possible yields and floor space ratios, and that the reduction in value to an incoming developer would be in the vicinity of $19,000. He adds that, as there is already a substantial drainage easement affecting the property, a further easement would deter some buyers initially from making further enquiries. Mr Duggan valued Mrs Wiese's land en globo to an incoming developer, on the basis of seven sites each utilising 225sqm per site at $120,000 per site, as a total of $840,000, or $508 per sqm. He derived the lost value of the proposed easement by applying that square metre rate to the 38.12 sqm of the proposed easement site, producing $19,364.
69 Mr Leigh Bridges, valuer, concludes that affectation of Mrs Wiese's property by the proposed easement would reduce its value by about $15,000, and that additional provision should be made for initial disturbance for works relating to carrying out the easement ($4,000), and future disturbance associated with maintenance of the pipes (a further $4,000). Mr Bridges' approach was primarily derived from sales of easements within the western Sydney area. He looked at the price which had been extracted for the grant of easements to benefit developments. These ranged between $10,000 and $20,000. As a secondary approach, he adopted a basis said to be authorised by Mitchell v Boutagy, which he said had held that the assessment of compensation payable for the creation of an easement was calculated at a percentage of 2% to 2.5% of land value. Valuing Mrs Wiese's land as a whole at $650,000 (based on $130,000 per development site with Council approval in place), and discounted for 12 months to obtain relevant approvals, he concluded that 2.5% of $600,000 was $15,000. However, while this was an approach adopted by one of the valuers in Mitchell v Boutagy, it cannot be said that it was embraced by Austin J [Mitchell v Boutagy, [42]].
70 Mrs Wiese's chief loss would be the diminution in value which would be occasioned by the proposed easement to Mrs Wiese's land. This is manifested as the reduced price she would receive upon sale of her land if it were affected by the easement. In the context of this case, I consider that Mr Duggan's approach is more likely than that of Mr Bridges to reflect that loss: he has valued the reduction in value to the hypothetical purchaser of Mrs Wiese's land, which is a more relevant measure than the going rate for the negotiated purchase of similar easements, or the arbitrary application of a percentage of the land value.
71 In the present case, the evidence is that the easement can be constructed in one day. The rental value of Mrs Wiese's property is $200 to $220 per week. The disruption element is minimal. That is accentuated by the circumstance that the plaintiff is not in occupation. As Mrs Wiese is not in occupation, I reject Mr Potts submission that there should be a solatium in the order of $1,000 for the damage or destruction of the trees, but having regard to initial and future disruption I would round up Mr Duggan's figure to $20,000.
72 I would, therefore, have fixed compensation at $20,000.
Conditions
73 Mr Potts submits that if the court were minded to order that the proposed easement be imposed, such orders should be subject to conditions that:-
· The plaintiffs prepare an instrument in registrable form for the creation of the easement and furnish it to Mrs Wiese;
· The plaintiffs agree to meet Mrs Wiese's reasonable costs of obtaining advice in relation to the form of the instrument on an indemnity basis;
· The plaintiffs provide not less than seven clear days written notice of their intention to undertake drainage work through the easement;
· The plaintiffs only undertake drainage work through the easement between 8.00 am and 4.30 pm on weekdays;
· The plaintiffs engage a qualified arborist to supervise any works done near any of the four existing trees and abide by any direction or advice of that arborist;
· The plaintiffs reinstate Mrs Wiese's property including the vegetation to its pre-existing state;
· The plaintiffs agree to indemnify Mrs Wiese for any loss or damage including any liability to any third party occasioned by undertaking works necessary to install the drain along the easement;
· The plaintiffs agree to obtain insurance for property damage and third party liability arising out of any drainage works undertaken through the easement.
74 I would in any event require production of an easement in registrable form before making an order imposing it, in compliance with s.88K(3). The costs of advice in respect of it would form part of the costs of the proceedings. This addresses the first two proposed conditions.
75 As to the others, these are in the nature of what are ordinarily seen to be conditions of development approval, rather than terms of an easement for drainage. To my mind, they are issues properly addressed when any approval for construction of the drainage works is sought, rather than attached the grant of the easement. I would therefore not impose those conditions as terms of any easement.
Costs
76 Section 88K(5) provides that the costs of the proceedings are payable by the applicant, subject to any order of the court to the contrary.
77 Section 88K(5) reflects a policy that while the court is empowered to require a defendant to suffer an easement against his or her will, that should generally be on the basis that the cost of obtaining it is borne by the applicant, and only in circumstances of unreasonableness on the defendant's part would the court exercise its discretion to make an order to the contrary [117 York Street, 523-524; Mitchell v Boutagy, [60]]. In several cases, the applicant has been required to pay the defendant's costs on an indemnity basis [see, for example, Tregoyd Gardens], but this is not invariably so [117 York Street, 523-524; Mitchell v Boutagy, [68]], even when the application has failed [Blulock, [23]].
78 Although, in circumstances that the plaintiffs have failed, the costs order in favour of the defendant should not be on any less generous a basis than would have been the case had the plaintiffs succeeded, it does not follow that it should be on an indemnity basis. Mrs Wiese has not succeeded on every issue she raised. There has been no unreasonableness in the conduct of the application on the part of the plaintiffs. The plaintiffs should pay Mrs Wiese's costs on the party/party basis.
Conclusion and Orders
79 The proposed use and development of the plaintiffs' properties is reasonable, and would not be inconsistent with the public interest. It requires that some easement for drainage be obtained. Mrs Wiese could be adequately compensated for any loss or other disadvantage that would arise from the imposition of the proposed easement. Had the proposed easement met the conditions imposed by the Council, then subject to being satisfied that reasonable steps had been taken without success to procure an alternative easement having the same effect over the rear of 118/118A Jersey Road, I would have granted the proposed easement subject to payment of compensation of $20,000.
80 However, I am not satisfied that the location of the easement would permit the construction of a stormwater drain without disturbing the root zones of at least three trees over twelve feet in height. In those circumstances, I cannot be satisfied that it will fulfil Council's condition, that the location of the proposed easement permit the installation of stormwater pipe within the easement, ensuring that any structures or root zones of existing trees within the property/properties are not disturbed. It follows that the particular proposed easement cannot be said to be reasonably necessary, since it will not satisfy the condition of the deferred development approval from which the necessity is said to arise. Further, I am not satisfied that the plaintiffs have taken all reasonable steps to procure an easement over 118/118A Jersey Road having the same effect as the proposed easement. Accordingly, the requirements of s.88K(1) and (2)(c) are not satisfied, and I cannot make the order which the plaintiffs seek.
81 The plaintiffs have nonetheless established that an easement - though not the proposed easement, at least on the evidence so far adduced - is reasonably necessary, and have satisfied many of the pre-requisites for an order imposing an easement. Having regard to Supreme Court Act, s.63, and Civil Procedure Act, ss.58 and 60, I have concluded that rather than simply dismissing the summons, and leaving the plaintiffs, if so advised, to make a fresh application in new proceedings, I should instead reserve leave to them to make a further application in these proceedings if they are able to overcome the difficulties which presently stand in their road, particularly so far as compliance with Council's condition about trees is concerned. In 117 York Street, Hodgson CJ in Eq reserved leave to make a further application, albeit in the context that His Honour granted an easement, and stayed the grant until relevant consents were obtained, reserving leave to apply for a different easement if they were not. In PD Consultants, Brownie AJ declined to grant relief because His Honour was not satisfied that all reasonable attempts had been made to obtain an easement, but, invoking Supreme Court Act, s.63, rather than dismissing the summons, and having regard to the "common sense practicalities" of the case - including that sooner or later someone would make another similar application - stood the proceedings over for further directions, envisaging that the parties might negotiate in the meantime.