Menassa v Shi

Factual background

1. The following is a summary of the relevant facts based on the evidence.
2. The plaintiff read his affidavit sworn 11 May 2021 and affidavits from his solicitor, Mr Harry Foteades, sworn 6 April 2022 and 3 June 2022, from Mr Simon Azar sworn 5 April 2022 that annexes an expert report on the diminution to the value of 91A Raimonde due to creation of the proposed drainage easement, and from Mr Robert Eltobbagi sworn 6 April 2022 that annexes an expert report in respect of engineering issues.
3. Mr Menassa and Mr Eltobbagi were cross-examined by the defendants. The defendants made submissions about the weight and relevance of Mr Eltobbagi's evidence, which I deal with below.
4. The defendants read affidavits from Mr Shi affirmed 11 August 2021, 1 December 2021 and 16 June 2022. They also rely on a report from Mr Mark Casemore in relation to the value of the easement, and a surveyor report and plan of survey in relation to 91A Raimonde from Mr Mark Morris of CitiSurv Pty Ltd.
5. The defendants had retained their own engineering expert in the course of the proceedings, Ms Nermein Loka of Loka Consulting Engineers Pty Ltd, who had prepared a report dated 5 August 2021. Ms Loka was not made available for cross-examination and the defendants did not rely on her report (T32.42.3).
6. Mr Shi and his experts were not cross-examined.
7. The documents tendered include correspondence with Council and reports by Council's officers. In these reasons, I refer to documents by their page number in the two volume court book (CB) or exhibit number.
8. Most of the factual matters are not in dispute. To the extent there are disputes, the following should be taken to be my findings unless otherwise indicated.

The relevant land

1. 1 Maismonde is 933.2m2 on which is presently erected a brick veneer home constructed on piers. The natural fall and slope of 1 Maismonde is towards the north-east corner of the land, being the corner that is common with 91A Raimonde. 91A Raimonde lies roughly to the east of and shares a 17.1 metre boundary with 1 Maismonde.
2. 91A Raimonde is 368.6m2. Standing on 91A Raimonde is a single story brick house roofed with tile that is the defendants' home.
3. 91A Raimonde has a street frontage of 19.725 metres and shares a 16.765 metre northern boundary with 91B Raimonde. There is a two storey brick residence on 91B Raimonde and a retaining wall that is located close to and runs the length of the shared boundary with 91A Raimonde.
4. An OSD tank is located within the front yard of 91A Raimonde. The outer wall of the OSD tank is located between 0.52m and 0.79m from the northern boundary that 91A Raimonde shares with 91B Raimonde: CitiSurv Survey Plan dated 7 May 2022 (CB288). Within 1 metre of the northern boundary of 91A Raimonde is a garden shed, concrete path, vegetation and trees.
5. 1 Maismonde, 91A Raimonde and 91B Raimonde are zoned R2 Low Density Residential under the Parramatta Local Environment Plan 2021.

Pre-development application communications with the defendants

1. In late 2017, the plaintiff spoke to the defendants about the need for a formal drainage easement through 91A Raimonde due to Council's requirements in relation to the plaintiff's proposed application for a dual occupancy development at 1 Maismonde.
2. Following that discussion, in January 2018, the plaintiff sent a letter to the defendants that attached a package of information about obtaining the easement that included "Parramatta Council's Requirement in regard to stormwater for any new development", an easement plan prepared by Wehbe Consulting showing the location of the proposed 1 metre wide easement along the length of 91A Raimonde's northern boundary fence with 91B Raimonde, and a template letter to be signed outlining the defendants' agreement to the easement. The plaintiff requested the defendants review the proposal and revert within 10 days and indicated that the plaintiff would instruct his solicitor to document the matter at his expense if it was approved.
3. On 27 February 2018, the plaintiff's solicitor at that time, Mr Joe Trimarchi of Joseph Trimarchi & Associates, sent an email to the defendants' then solicitor, Ms Sally Yang of Sky Lawyers, about the proposed easement on 91A Raimonde that attached a report prepared by Access Valuation dated 17 February 2018, which referred to the proposed drainage easement as a "1-metre-wide stormwater line which will run alongside the northern side boundary (17.765m), draining into Raimonde Road". Based on that valuation, the plaintiff offered the defendants compensation in return for the grant of the easement in the amount of $22,000, which included all associated costs (such as legal costs), mortgage consent fees and LPI registration fees.
4. On 9 May 2018, in response to a request from Ms Yang for further information, Mr Trimachi sent a letter that attached Council's Stormwater Disposal Policy, a letter from Wehbe Consulting dated 17 April 2018 outlining the scope of works to be undertaken and the Wehbe Consulting easement plan that shows the proposed easement running along the northern boundary of 91A Raimonde (CB293). The letter noted that the plaintiff had not yet lodged a Development Application (DA) to Council and asked for the defendants' response to the easement proposal.
5. Council's Stormwater Disposal Policy, in the section headed "Fundamental Design Principles of Policy", relevantly provides the following: 1. on-site detention is required for all multi-unit residential development, which is to be in the form of below ground tanks for all dual occupancy development, and must discharge by gravity to Council's stormwater; 2. stormwater is to be discharged in the general direction as determined by the typography of a site and within its natural catchment/sub-catchment; 3. an interallotment drainage easement/s will be required where discharge of an OSD system by gravity to a street frontage of a site is not possible; and 4. where an interallotment drainage easement/s is required, the consent to the easement of the downstream property owner/s must be obtained prior to the lodgement of a Development Application.
6. The letter from Wehbe Consulting refers to Council's requirement for an easement to be agreed upon before a DA can be lodged and describes the plaintiff's easement and drainage proposal in the following terms: the stormwater will be captured in pits with an OSD system designed to minimise the stormwater flow downstream by gravity to Council's network system; the proposed easement width would be 1 metre; the drainage system would require the construction of a 150mm diameter PVC pipe laid along the north-eastern boundary of 91A Raimonde within the easement location; the conditions of 91A Raimonde will return to the existing conditions; the easement will have grated stormwater pits at each boundary end; a mini excavator would dig a 400mm trench and stormwater pits at the corner boundaries and a licenced plumber would install the pipe along the trench to the newly constructed pit to Council's specification (which trench will then be backfilled and the area returned to its original condition); there will be no effect on any existing structures; the scope of works will be carried out within approximately five working days with the work inside 91A Raimonde being carried out in approximately two working days; and there would be no interference, imposition, inconvenience or loss of amenity imposed on the defendants other than in the period of the scope of works.
7. Mr Shi deposes that he and the second defendant could not have any confidence in the Wehbe Consulting letter because it ignored the presence of trees, a flower bed, a metal shed and the OSD tank located along the proposed 1 metre easement.
8. On 14 June 2018, the defendants' solicitor sent a letter to the plaintiff's solicitor requesting further information. In an email sent to the defendants' solicitor the next day, the plaintiff's solicitor stated that the requests were to some extent repetitions of earlier requests, referred to the Wehbe Consulting report and asserted that an easement over 91A Raimonde was the only feasible option available to the plaintiff.
9. On 3 July 2018, the plaintiff's solicitor sent a follow up email which stated that as there had been no response, the plaintiff was left with little choice but to commence litigation in the matter.
10. On 10 July 2018, the defendants' solicitor responded by letter that stated that the defendants could not assess whether the proposed easement was necessary as the plaintiff had not given sufficient information about the proposed redevelopment and the defendants would need to consult relevant experts (such as engineers) to review the documents provided and to assess whether the proposal was feasible. The letter went on to state as follows: "The location of the proposed easement overlaps with the location of the existing on site stormwater detention system ("OSD"). There is a positive consent in respect of the OSD on the title of our clients' properly. There must not be any alterations to the OSD or elements thereof without prior consent in writing of the Council. Your client must consult the Council first in relation to your proposed easement works."
11. On 23 July 2018, Mr Charles Dynasty of Victoria & Hancock Solicitors (who was then acting for the defendants) advised the plaintiff's solicitor that the defendants needed to obtain legal and valuation advice regarding the request for an easement and he would advise further once instructions had been obtained.
12. On 7 August 2018, the plaintiff's solicitor sent an email to Mr Dynasty asserting that all reasonable information sufficient for the defendants to make a decision to grant the easement had been supplied and that the plaintiff has been left with little option but to commence legal proceedings.
13. On 29 August 2018, Mr Dynasty sent an email to the plaintiff's solicitor advising that based on the plaintiff's existing plan/proposal, the defendants would not grant an easement over 91A Raimonde.
14. In February 2019, the plaintiff instructed Mr Paul Kwok of Re-Max Real Estate to act as a translator and seek to negotiate as an intermediary in an attempt to have the defendants agree to the grant of the proposed drainage easement. The plaintiff says that, on 10 February 2019, Mr Kwok informed him that the defendants would not grant an easement over 91A Raimonde.
15. On 16 October 2019, Mr Foteades (who was then the plaintiff's solicitor) sent a letter to Mr Dynasty in which a formal request was made for a drainage easement to be granted over 91A Raimonde in favour of 1 Maismonde on the payment of $22,000 plus reasonable legal expenses and engineering expenses incurred in association with the matter. The letter gave notice that the plaintiff would commence legal proceedings seeking an easement under s 88K of the Conveyancing Act should the defendants not agree to the request. On 29 October 2019, Mr Dynasty advised Mr Foteades that he no longer represented the defendants.
16. Also on 16 October 2019, Mr Foteades sent a letter to the registered proprietors of 91B Raimonde which requested their consent to a 1 metre wide drainage easement that would run alongside their southern-side boundary and offered to pay $22,000 by way of compensation and costs. That offer was based on a report by Access Valuation dated 5 September 2019.
17. On 20 December 2019, in response to a request for further information, Mr Foteades provided the solicitors for the registered proprietors of 91B Raimonde with a copy of the DA, a plan of the proposed easement (noting the pipe diameter that would be laid would be 150mm per the attached plans) and a letter from the hydraulic engineer.

July - December 2020: Plaintiff's DA

1. On or about 16 July 2020, the plaintiff lodged DA/413/2020 with Council seeking a development consent to construct a two storey dual occupancy with basement garages, swimming pool and other features, including onsite detention tanks, at 1 Maismonde.
2. The DA lodged by the plaintiff initially proposed that stormwater from 1 Maismonde would drain through a 150mm diameter pipe to be installed along a 1 metre wide drainage easement located on 91B Raimonde (along its southern boundary with 91A Raimonde), which would then connect with Council's stormwater infrastructure: Site/Ground Floor Plan and Proposed Easement Drainage Plan and H.G.L. Analysis that formed part of Stormwater Management and Driveway Plans issued for DA, Revision A, dated 29 May 2020 (Initial Stormwater Plans) (CB833 and CB837).
3. On 16 September 2020, Council sent a letter to the plaintiff (dated 3 September 2020) advising that a preliminary assessment of the plaintiff's DA had been undertaken and requested additional information (part of Exhibit C). Council's letter noted there was an existing retaining wall that supported 91A Raimonde within the proposed location of the downstream drainage easement on 91B Raimonde and the proposed drainage easement pipe was very close to the retaining wall and may compromise its structural soundness. Council suggested that the plaintiff investigate whether an easement through 91A Raimonde was feasible as it may have less impact on the structural integrity of the retaining wall. Amongst other things, Council's letter noted that the proposed 150mm pipe should be with a "slight angle only and will require an additional boundary pit".
4. On 2 October 2020, the plaintiff's consultants, Quantum Engineering, issued revised Stormwater Management and Driveway Plans for the DA, Revision C, dated 2 October 2020 (Revised Stormwater Plans) that show the location of the proposed 1 metre wide drainage easement along the northern boundary of 91A Raimonde (rather than on 91B Raimonde). The Revised Stormwater Plans identify that a 450mm pressure pit and a 225mm diameter pipe were to be installed within the easement and the pipe would break into a new kerb inlet pipe on Raimonde Road and connect with Council's infrastructure: Site/Ground Floor Plan Drawing D3 (CB867) and Easement Drainage Plan Drawing D7 of the Revised Stormwater Plans (CB871).
5. On or about 11 October 2020, Mr Steven Quinn, Council's Development Assessment Officer, prepared a Section 4.15 Assessment Report in relation to the plaintiff's DA (Council's Assessment Report) which recommended that, pursuant to s 4.17 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), Council grant deferred commencement development consent subject to conditions. Relevantly, Council's Assessment Report: 1. includes in the section headed "The Proposal" a plan, "Figure No. 7 Site Ground Floor Plan", that identifies 91A Raimonde as the site of the downstream drainage easement, and appears to be Drawing D3 of the Revised Stormwater Plans (referred to at [42] above); 2. states in the section headed "Referrals" that the DA requires the plaintiff to provide a drainage solution for the site, the plaintiff is proposing to obtain a private easement for drainage through the privately owned adjoining property known as "91B Raimonde", and that the DA should be issued as a deferred commencement consent requiring the applicant to obtain and register an easement to drain benefitting 1 Maismonde and burdening 91B Raimonde; and 3. and was the subject of peer review by Mr Jonathan Cleary, Team Leader Development Assessment Team, who concurred with the recommendation and authorised Mr Quinn to sign all plans and papers in relation to the determination on 18 November 2020.
6. On 28 October 2020, the plaintiff's solicitor sent an email to Mr Quinn that requested a "DCC Consent" be granted by Council, stated that previous attempts had been made to secure an easement from the owners of 91A Raimonde which had not been forthcoming and attached copies of the communications referred to at [36] above. I read this email as a request by the plaintiff for a deferred commencement conditional consent in relation to the DA at 1 Maismonde with a drainage easement over 91A Raimonde.
7. On or about 2 November 2020, Council reviewed the plaintiff's Revised Stormwater Plans and a Survey Plan dated 17 March 2017 as part of its assessment of the plaintiff's DA and proposal for an easement over 91A Raimonde. An internal Council document, titled "Engineering Deferral Response" dated 2 November 2020 (part of Exhibit C), records the following: a downstream easement is proposed to connect to a new kerb inlet pit, the plaintiff had not received an agreement from the owner of the downstream property, the owner of 91A Raimonde was not home when a site inspection occurred but from what could be seen from the street and backyard there was no obstruction along the proposed easement path (except for a small shed) and that a 1 metre free space was available within 91A Raimonde; and the Development Engineer had no objection to the proposal, concluding that it satisfied the requirements of Council's controls and can be supported subject to standard and/or special conditions of consent, which are referred to in the documents.
8. The plaintiff also gives evidence that, in or about the first week of November 2020, Parramatta Council's Senior Development Engineer attended 1 Maismonde and informed him that having done a walk-through of the relevant properties, 91A Raimonde was the only property that Council would allow the drainage easement to pass through.
9. On 18 November 2020, Council granted deferred commencement development consent under s 4.16(3) of the EPA Act to the plaintiff's DA (Consent) on the conditions set out in the Notice of Determination dated 1 December 2020. The Notice of Determination states that the Consent shall revert to development consent upon compliance with the conditions appearing in Schedule 1 and that the development consent would be inclusive of the conditions appearing in Schedule 2.
10. The Schedule 1 conditions provide, as follows: "Schedule 1 Interallotment Drainage Easement 1. Prior to the easement being registered, a detailed survey shall be undertaken over the proposed easement to: (a) Ensure that the drainage easement location is not encroached by any structures or the root zone of existing trees within the downstream property/properties. If there is any obstruction or any reason that the proposed location is not suitable for a stormwater pipeline, then the easement shall not be registered. The issue shall be discussed with Council before any action undertaken. Otherwise, Council will not accept the registered easement. (b) The easement shall be free of any building encroachments, including eave overhangs and footings. (c) Council's system indicates that there is a Sydney water pipe running within the subject site. The proposed location of downstream easement has a conflict with this pipe. In this regard, a building plan approval must be obtained from Sydney Water to ensure that the approved development will not impact Sydney Water infrastructure. A copy of the approval to be submitted to Council. 2. Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water 1 metre wide over a downstream property benefiting the subject lot known as Lot 67 DP31228 and burdening the downstream property known as Lot 682 DP85360 [91A Raimonde Road] has been registered with the NSW Land and Property Information Service. 3. Full details of the proposed piped system within the easement and public domain to be submitted to Council Development unit and Catchment Management unit for approval prior to the issue of operational consent. Pits shall be located at the downstream end of the drainage system within the development site and at the downstream end of the system within the downstream property. 4. The survey plan over the easement is to be submitted for Council review prior to the issue of an operational consent. The survey plan to include all structures and trees overhanging or within 5m of the proposed easement. 5. The system shall be designed to sufficiently convey all runoff from the development site. The system shall be designed to cater for all storms up to and including the 100 year ARI (1% AEP) design storm event. 6. An emergency overflow path shall be provided over the easement. 7. No work is to be carried out in the easement until it has been registered with NSW Land Registry Services and the downstream property owner's permission and a relevant construction certificate has been obtained. All works in relation to easements are to be at no cost to Council."
11. The conditions in Schedule 2 include condition 19, relating to the "On-Site Detention System", which relevantly requires that full engineering construction details of the stormwater system, including OSD structures, pipe networks and calculations, are to be submitted for approval prior to the release of the Construction Certificate, and for the stormwater drainage detail design to be prepared by a Registered Stormwater Design Engineer generally in accordance with the Stormwater Plans approved by the Consent (referring to the Revised Stormwater Plans), Council's Stormwater Disposal Policy, Design and Development Guidelines and relevant Australian Standards and the National Construction Code.
12. On 14 December 2020, the plaintiff's solicitor sent a letter to the defendants making a formal offer to acquire a drainage easement over 91A Raimonde. The letter refers to the Consent that had been issued since the last correspondence between the parties which mandated, in the form of a "deferred commencement condition", that an easement to drain water 1 metre wide over 91A Raimonde was required to be registered. The offer provided for the payment to the defendants of $16,000 (based on a valuation report from Access Valuation dated 4 December 2020) plus reasonable legal expenses, engineering expenses and valuation costs. The letter asked for a response by 28 December 2020 and agreement by 18 January 2021, failing which the plaintiff would commence proceedings.
13. The defendants did not reply to the 14 December 2020 letter or to the follow up letter sent by Mr Foteades to the defendants on 29 January 2021.

May 2021: Plaintiff commences these proceedings

1. On 11 May 2021, the plaintiff commenced these proceedings by Summons seeking an easement benefitting 1 Maismonde and burdening 91A Raimonde, as shown on the survey plan at Annexure B which depicts an "Easement to drain water 1.0 wide", and on the terms set out at Annexure A which provides for the terms set out in Part 3 of Schedule 8 of the Conveyancing Act and with the defendants having the full and unfettered right to access and use the easement site for whatever purpose provided they do not interfere with or obstruct the plaintiff from draining water through 91A Raimonde.
2. On or about 8 July 2021, the defendants obtained a Detail and Level Survey Plan from CitiSurv Pty Ltd (CitiSurv Detail Survey) (CB289) that depicts the location of the OSD tank on 91A Raimonde and shows that it encroaches on the proposed 1 metre wide easement area.
3. On 13 August 2021, the defendants' solicitor (who was then Ms Wendy Chen of Phoenix Attorneys) served the CitiSurv Detail Survey as part of the exhibit to Mr Shi's 11 August 2021 affidavit.

August - October 2021: DA modification

1. On 19 August 2021, the plaintiff applied to Council for a modification to the Consent under s 4.55 of the EPA Act (s 4.55 Modification). The modification related to Schedule 1 conditions 1 and 2 and requested that the proposed drainage easement of 1 metre wide be varied in width at the location of the existing below ground OSD tank within 91A Raimonde.
2. The plaintiff lodged with Council: 1. a letter dated 19 August 2021 from Mr Eltobbagi on behalf of the plaintiff, which states that the proposed easement of 1 metre wide could not be provided along the whole of the easement length due to "recent confirmation" of the existing OSD tank and the reduced easement width at the OSD tank location can facilitate the proposed easement pipe of 150mm diameter as there remained approximately 600mm between the OSD tank and the northern boundary; 2. a Statement of Environmental Effects prepared by the plaintiff's architects which states that the proposed works is considered to have minimal to no environmental impact, the s 4.55(1A) modification is minor in nature, the small variation is to the width of the easement at the location of the existing OSD tank which is the path of the drainage easement, the proposal provides a positive solution to the drainage easement, and the variation maintains all Planning Instruments of Council and key objectives as outlined in the 2011 DCP/LEP; 3. an easement plan issued for the s 4.55 Modification by Quantum Engineers dated 19 August 2021 (s 4.55 Easement Plan) (CB891) that shows the location of the existing OSD tank on 91A Raimonde, the proposed easement is of variable width to avoid that tank and it is proposed to install a 150mm diameter pipe in the easement area. The s 4.55 Easement Plan is in the same format as the Site/Ground Floor Plan at Drawing 3 of the Revised Stormwater Plans and states that the OSD tank to boundary distance is approximately 600mm which "will satisfactorily cater for 150mm DIA easement pipe" and the location provides for a "controlled" closed system in lieu of the current "uncontrolled" runoff; and 4. a copy of the CitiSurv Detail Survey.
3. Mr Shi gives evidence that the defendants received a notification letter from Council dated 30 August 2021 informing them of the plaintiff's application to modify the DA to reduce the proposed easement width to 600mm at the part of the underground OSD tank and they submitted an objection to the plaintiff's application on 8 September 2021. The defendants' letter of objection is not in evidence.
4. On or about 3 September 2021, Council undertook an initial engineering review of the plaintiff's modification proposal, DA/413/2020/A. The "Engineering Referral Response" and "Engineering Request Information" documents, prepared by Council's staff at that time, record that the modification proposal was not supported because the reduced easement width of 600mm would not be sufficient. Council's engineer recommended the plaintiff explore alternative easement options and ensure that the easement can provide a path to carry emergency overflows from the site to a legal point of discharge.
5. On 30 September 2021, Council sent a letter to the plaintiff requesting further information that stated that a preliminary assessment of the modification application had been carried out, the proposal for the reduced easement width was not accepted and advised the plaintiff to investigate alternative easement options and submit details of a proposed easement of 1 metre wide. The letter also stated that the application may be refused if the requested information was not received within 14 days and no request for an extension of time was made.
6. On or about 7 October 2021, the plaintiff's proposal for the reduced width of the easement was discussed by Council's Senior Engineering Review Panel. The outcome of that discussion was that the reduced easement width for the extent of the OSD tank on 91A Raimonde was acceptable, subject to conditions relating to overland flow measures to ensure that flow does not enter the neighbouring property's OSD system and safety for foot traffic in implementing the measures (Exhibit C).
7. By Notice of Determination dated 27 October 2021, Council advised the plaintiff that pursuant to s 4.55 of the EPA Act, it had approved the plaintiff's application to modify the Consent (DA/413/2020/A) to reduce the width of the proposed easement (Modified Consent). The amendments to the Schedule 1 and Schedule 2 conditions that were approved by the Modified Consent are marked in bold and set out below. "Schedule 1 … Interallotment Drainage Easement 1. Prior to the easement being registered, a detailed survey… 2. Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water variable width over a downstream property benefiting the subject lot known as Lot 67 DP31228 and burdening the downstream property known as Lot 682 DP85360 (91A Raimonde Road) has been registered with the NSW Land and Property Information Service. The following shall be included in the plan accompanying the registration of the easement: (a) The easement shall be 1m in width throughout the whole easement except for the portion of the easement adjacent to the neighbouring sites OSD tank. The easement along this section shall be of a variable width along the edge of the neighbouring sites OSD tank, with the width at any point being no less than 400mm wide. … 6. An emergency overflow path shall be provided over the easement. The emergency overflow path shall be designed such that flows do not enter the neighbouring sites OSD. The applicants engineer shall provide detail of measures to be implemented to ensure that any overflows within the easement are contained within the easement. The applicants measures shall take into consideration safety for any foot traffic entering this area. Schedule 2 On-site Detention System … 25A. The construction certificate application shall include a final detailed stormwater drainage plan and specifications suitable for construction, prepared by a qualified and experienced stormwater drainage consultant. The final plan shall be in accordance with the abovementioned stormwater concept plan and shall comply with City of Parramatta Stormwater Disposal Policy, the BASIX requirements and with AS 3500. The plans shall in particular include the following: (a) An emergency overflow path shall be provided over the easement. The emergency overflow path shall be designed such that flows do not enter the neighbouring sites OSD. The applicants engineer shall provide detail of measures to be implemented to ensure that any overflows within the easement are contained within the easement. The applicants measures shall take into consideration safety for any foot traffic entering this area. Reason: To ensure compliance with policies."
8. On 4 November 2021, a copy of the Modified Consent was served on the defendants (an annexure to the affidavit of Mr Foteades of 4 November 2021).
9. On 1 December 2021, the defendants' solicitors (at that time, Zhang Shijing Lawyers) served Mr Shi's 1 December 2021 affidavit and exhibit WS-1, which included the Initial Stormwater Plans, the Revised Stormwater Plans and the s 4.55 Easement Plan. According to Mr Shi's evidence, he obtained copies of those plans from Council.
10. On 10 February 2022, the parties attended a mediation that was not successful.
11. On 6 April 2022, the plaintiff served on the defendants' solicitors (who were then Diligence Lawyers) an updated survey plan of the easement prepared by Norton Survey Partners (Easement Survey Plan) that shows the easement to be 1 metre wide and of variable width of between 0.735m and 0.46m adjacent to the OSD tank (annexures to Mr Foteades' 6 April 2022 affidavit and to Mr Eltobbagi's report) and the s 4.55 Easement Plan (an annexure to Mr Eltobbagi's report).
12. On 8 April 2022, Darke J made directions for the parties' respective engineering experts to meet in conclave and prepare, by no later than 27 May 2022, a joint report that set out matters agreed, matters not agreed, and the reasons for such disagreement, and set down the matter for hearing before me on 6 July 2022 with an estimate of one day plus. As events transpired, the parties' respective engineering experts did not meet or prepare a joint report by 27 May 2022 as required by those orders, a matter to which I will return.
13. On 23 May 2022, Diligence Lawyers filed a notice of ceasing to act for the defendants.

26 May 2022: further modification of the plaintiff's DA

1. By Notice of Determination dated 26 May 2022, Council notified the plaintiff that it had approved the plaintiff's application to modify DA/413/2020/B (May Modification).
2. The Notice of Determination describes the plaintiff's modification as relating to "wording of the Deferred Commencement Conditions 1(a), 1(b) & 6… Conditions 1, 4 & 6 are to be deleted and replaced with a new Condition stating that the proposed easement (including horizon boring) is to be in accordance with the Updated Easement Plan as prepared by Quantum Engineers for the S4.55 and Registered." The Schedule 1 conditions relating to the interallotment drainage easement and the new Schedule 2 conditions approved by the May Modification are set out below (the amendments marked in bold): "Schedule 1 … Interallotment Drainage Easement 1. Prior to the easement being registered, a detailed survey shall be undertaken over the proposed easement to: a. A survey shall be conducted of the easement path detailing any obstructions (incl. walls, foundations, overhang. eves, fence line, existing OSD tank, trees etc) within a 5m distance of the easement. A revised plan of the easement including the 225mm dia. pipeline, predicated upon the survey plan shall be submitted to Council for assessment. The easement plan shall also show how the proposed pipeline will navigate the reduced easement width at the existing OSD facility. Council advises not to proceed with the registration of the easement until Council advice is received of the acceptance of the revised plan. b. The easement shall be free of any encroachment from permanent structures, including eave overhangs and footings. c. Council's system indicates that there is a Sydney Water pipe running within the subject site. The proposed location of downstream easement has a conflict with this pipe. In this regard, a building plan approval must be obtained from Sydney Water to ensure that the approved development will not impact Sydney Water infrastructure. A copy of the approval to be submitted to Council. 2. Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water variable width over a downstream property benefiting the subject lot known as Lot 67 DP31228 and burdening the downstream property known as Lot 682 DP85360 (91A Raimonde Road) has been registered with the NSW Land and Property Information Service. The following shall be included in the plan accompanying the registration of the easement: a. The easement shall be 1m in width throughout the whole easement except for the portion of the easement adjacent to the neighbouring sites OSD tank. The easement along this section shall be of a variable width along the edge of the neighbouring sites OSD tank, with the width at any point being no less than 400mm wide. 3. Full details of the proposed piped system within the easement and public domain to be submitted to Council Development unit and Catchment Management unit for approval prior to the issue of operational consent. Pits shall be located at the downstream end of the drainage system within the development site and at the downstream end of the system within the downstream property. 4. The survey plan over the easement is to be submitted for Council review prior to the issue of an operational consent. The survey plan to include all structures and trees overhanging or within 5m of the proposed easement.. 5. The system shall be designed to sufficiently convey all runoff from the development site. The system shall be designed to cater for all storms up to and including the 100 year ARI (1% AEPl design storm event. The easement pipeline shall be a minimum of 225mm. 6. Emergency flows from the subject site shall be discharged within the upsized easement pipeline (225mm dia.). Other than the proposed boundary pit (located immediately before the front boundary of the downstream property) the existing site characteristics of the downstream property shall not be altered to ensure no negative impact to that property. 7. No work is to be carried out in the easement until it has been registered with NSW Land Registry Services and the downstream property owner's permission and a relevant construction certificate has been obtained. All works in relation to easements are to be at no cost to Council. … Schedule 2 On-site Detention System … Prior to the issue of a Construction Certificate …. 25A. The construction certificate application shall include a final detailed stormwater drainage plan and specifications suitable for construction, prepared by a qualified and experienced stormwater drainage consultant. The final plan shall be in accordance with the abovementioned stormwater concept plan and shall comply with City of Parramatta Stormwater Disposal Policy, the BASIX requirements and with AS 3500. The plans shall in particular include the following: a. Emergency flows shall be directed within the easement. The easement pipeline shall be a minimum of 225mm in diameter and revised HGL calculations are required to indicate depth of flow at the 1%AEP storm assuming total OSD failure. Reason: To ensure compliance with policies. … During Work … 39A. An AQF Level 5 consulting arborist must be present during any works that may impact the tree protection zones of downstream trees. The arborist shall certify that the works were carried out under the arborist supervision and that no detrimental impact occurred to the trees during the works. The certificate shall be submitted to the certifying authority prior to the issue of an occupation certificate. Reason: Protection of existing trees. (Modified under DA/413/2020/8)"
3. On 3 June 2022, the plaintiff served the May Modification Notice of Determination on the defendants (an annexure to Mr Foteades' affidavit of 3 June 2022).
4. On 16 June 2022, the defendants served a Surveyor Report and a further Survey Plan by CitiSurv dated 7 May 2022 (an annexure to Mr Shi's affidavit filed on 16 June 2022). The 7 May Survey Plan depicts the location of the OSD tank on 91A Raimonde and shows that the distance of the northern outer walls of the OSD tank from the northern boundary of 91A Raimonde is between 0.52m and 0.79m.

Expert evidence: Mr Eltobbagi

1. Mr Eltobbagi is a qualified civil engineer and the sole director and principal of RKE Consulting Pty Ltd, trading as Quantum Engineers, which provides civil and stormwater design consultancy services for projects ranging from new dwellings to high rise subdivisions and others. He has been in practice as a registered Professional Engineer and Design Professional for 25 years, providing building, construction and engineering consultancy services.
2. Mr Eltobbagi was instructed by the plaintiff's solicitors to provide an expert witness report in relation to the imposition of the proposed drainage easement of variable width benefitting 1 Maismonde and burdening 91A Raimonde. He was instructed to review the affidavits of Mr Shi dated 11 August and 1 December 2021 and the defendants' expert report from Loka Consulting Engineers dated 5 August 2021, and to respond to the matters raised based on his knowledge and expertise.
3. In forming his opinions, Mr Eltobbagi had regard to s 4.1 of Council's Development Engineering Design Guidelines (June 2018) (Council's Engineering Design Guidelines), the Modified Consent and the requirements and guiding principles set out in Australian Standard AS3500.3:2021 (which specifies the Australian Standards for materials, design, installation and testing of drainage systems to a point of connection and discharge) and "Part 3.1.3 Drainage" of National Construction Code 2019 Volume Two Amendment 1 (which specifies the design, construction and performance of buildings in relation to plumbing and drainage).
4. Mr Eltobbagi recommends the Court grant the proposed easement to benefit 1 Maismonde over 91A Raimonde for the reasons outlined in his report.
5. In his report, Mr Eltobbagi refers to the requirement in Council's Engineering Design Guidelines that stormwater drainage relating to the approved development drain via a drainage easement located "on the lowest side of the site" and confirms that the natural fall and slope of 1 Maismonde is towards the north-east corner of the property, being the corner that is common with 91A Raimonde.
6. As to the defendants' contention that the proposed drainage easement should be imposed on 91B Raimonde, Mr Eltobbagi states that a proposal for a drainage easement to traverse over 91B Raimonde was considered but such easement was deemed "unacceptable and inappropriate" due to the position and location of existing structures, which included retaining walls and concrete paths, and because the proposal would see a hydraulically inefficient drainage system to be created and installed as a result of the requirement for an acute easement pipe angle exiting 91B Raimonde and across Council verge existing kerb inlet pit, which would necessitate significant ongoing maintenance requirements and increase the likelihood of failures in the system.
7. Mr Eltobbagi states that the installation of the 150mm diameter easement drainage pipe will be untaken utilising a horizontal directional drilling boring process which, in Mr Eltobbagi's opinion, is both simple and highly effective and would not be disruptive to the owners of 91A Raimonde. He opines that the only "on ground" works within the boundary of 91A Raimonde will be the installation of a 450mm square pit at the north-east corner of the site where nothing currently exists. He also opines that the horizontal directional drilling boring process: 1. allows for the provision of detailed data on the depth, location, direction and angle of the bore so as to assure alignment of the easement pipes and avoid any existing subsurface structures, services, improvements, utilities and obstructions, including but not limited to tree roots; 2. will not necessitate construction works to the surface of the easement path, will not require the concrete path to be dug up, any trees or other landscaping to be disturbed, or the existing shed to be relocated, and will avoid tree roots and other subsurface structures, including the OSD tank; 3. involves use of electronic sensors and a drill cord to pull the easement pipe through the newly formed hole; and 4. will ensure compliance with Modified Consent condition 1, as it will not encroach on tree root zones and structures or the landscape.
8. In Mr Eltobbagi's opinion, the variable width component of the proposed easement deals with the defendants' concerns regarding the position of the OSD tank. Based on Mr Eltobbagi's inspection on 1 September 2021 (where he found no direct drainage pipe connection from the existing OSD tank within 91A Raimonde to the street kerb), he considers that the existing discharge pipe from 91A Raimonde is directly connected to the existing kerb inlet pit fronting 91B Raimonde. In Mr Eltobbagi's opinion, if there is any existing OSD discharge pipe from 91A Raimonde that has the potential to conflict with the proposed easement pipe (which he thinks is very unlikely), the horizontal directional drilling boring process will detect the pipe and redirect the boring to ensure no conflict, noting that the 150mm diameter pipe can be installed anywhere within the easement area.
9. Mr Eltobbagi opines that the work methodologies and proposed easement are in line with each of the Modified Consent Schedule 1 conditions 1 and 2, will ensure compliance with those conditions and that an emergency overflow path can be designed over the easement area in a manner that will ensure that the flows do not enter the on-site detention systems of neighbouring sites so as to satisfy condition 6.
10. During cross-examination and re-examination, Mr Eltobbagi gave the following evidence: 1. the original DA plans (the Revised Stormwater Plans) provided for a 225mm diameter stormwater pipe over the easement, which was designed to cater for all storm events up to the 1% AEP, namely one-in-100-year storm events, whereas the plans for the Modified Consent provided for a reduced 150mm diameter pipe as Council had suggested that major storm events be catered for over the path of the easement and to design the pipe for minor storm events (T57.17-T58.9). Mr Eltobbagi did not accept that the reason for the reduction of the width of the pipe from 225mm to 150mm was due to the change to an easement of a variable width, reduced to accommodate the OSD tank (T58.6-9); 2. the only difference between the s 4.55 Easement Plan and what is required for the May Modification is an upgrade to a 225mm diameter pipe to cater for emergency flows to be contained within the pipe and not to occur overland (T96.10-14); 3. Mr Eltobbagi had done easements of less than 1 metre in width many times and had designed an easement purely on the size of the pipe (T107.28-35); 4. there is ample width between the edge of the OSD tank and the northern boundary of 91A Raimonde to place a pipe of 225mm diameter, even accepting the measurement of 460mm as the distance between the boundary and the OSD tank at the narrowest section (T115.12-T116.3); 5. based on the levels referred to in the "Proposed Easement Drainage Plan & H.G.L Analysis Plan" Drawing 7, Issue C, 2/10/2020 (CB871), Mr Eltobbagi calculated the following: the depth of the 225mm drainage pipe would be 150mm along the easement at 91A Raimonde (T108.17-37); the proposed easement pipe at the boundary will be approximately 400mm lower than the OSD tank discharge pipe (T109.45-48, T110.43-46); the calculations untaken would not change if the pipe has a diameter of 150mm other than for the bottom of the pipe relative to the discharge pipe at the OSD tank (T111.7-25); and there is roughly a 150mm gap between the obvert of the proposed easement pipe and the invert of any discharge pipe connected to the OSD tank (T113.47-T114.1); 6. the horizontal directional drilling boring process would be used to install the 225mm pipe and the execution of that process would remain unchanged and the same as for the 150mm pipe as referred to in his report. The horizontal directional drilling boring process is an accepted means of undertaking easement drainage systems, Mr Eltobbagi has never experienced any failures of retaining structures within the proximity as a result of the installation of any pipes using that method and his professional position is that there will not be any impact on the OSD tank at 91A Raimonde (T116.13-19, T132.27-28); 7. 91A Raimonde sits at a higher natural ground level than 91B Raimonde, of approximately 1 metre (T119.45); but, currently, the water runoff from 1 Maismonde is "uncontrolled" draining into downstream properties (T120.13-19). In his professional opinion, due to the retaining wall on 91B Raimonde along the northern boundary (which he identified as being 100mm higher than the levels of 91A Raimonde), the majority of the overland flow from 1 Maismonde would be diverted into 91A Raimonde (T122.13-31); 8. the s 4.55 Easement Plan will need to be updated based on the May Modification to refer to the 225mm pipe and a H.G.L analysis. An updated plan has not yet been submitted to Council but will need to be lodged to satisfy the conditions of the May Modification (T123.38-42, T135.17-31); 9. the opinions expressed in his report regarding an emergency surface overflow path are no longer relevant as they were based on the 150mm diameter pipe with minor storm events (T129.30-35); 10. the reason for seeking the May Modification, which upgraded the pipe to 225mm to cater for the major storm events of 1% AEP (one-in-100-year event), was to not have any surface flows over the easement, which was better for 91A Raimonde (T129.35-40); and 11. based on his experience, Mr Eltobbagi expects that all emergency flows would be contained in the 225mm easement pipe unless there was a storm event that was greater than 1% AEP, in which case he would expect that the OSD tank on 91A Raimonde would be full and surcharging already (T131.1-7).

The plaintiff's easement application

1. The plaintiff seeks an order pursuant to s 88K of the Conveyancing Act imposing a drainage easement benefitting 1 Maismonde and burdening 91A Raimonde. He also seeks an order that the plaintiff pay the defendants compensation under s 88K(4) of the Conveyancing Act and an order for his costs.
2. As noted above, the plaintiff's Summons filed on 11 May 2021 proposed a form of easement to drain water 1 metre wide (which reflected the easement referred to in deferred commencement condition 2 of the Consent) on the terms set out in Part 3 of Schedule 8 of the Conveyancing Act, with the defendants having the full and unfettered right to access and use the easement site for whatever purpose provided they do not interfere with or obstruct the plaintiff from draining water through 91A Raimonde.
3. On the second day of the hearing, the plaintiff was granted leave to file an Amended Summons in relation to an easement to drain water 1 metre wide and of variable width as shown on the survey plan at Annexure D (the Easement Survey Plan referred to at [65] above and the plan at Annexure A to these reasons), and on the terms set out in Annexure C, that provide as follows: "The terms of the Easement to Drain Water 1m wide and variable as shown in Annexure D and marked (X) are: (1) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, from time to time and at all times to: a. lay, place and maintain a pipe of 225mm diameter beneath the surface of the servient tenement and to drain water (whether rain, storm, spring, soakage, or seepage water) in any quantities through such pipe, together with the right for the grantee and every person authorised by the grantee, with any tools, implements, or machinery, necessary for the purpose, to enter upon the servient tenement and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining, or renewing such pipe line or any part thereof provided that the grantee and the persons authorised by the grantee will take all reasonable precautions to ensure no disturbance to the surface of the servient tenement. b. Install a boundary pit of not more than 450 square millimetres immediately before the front boundary of the servient tenement to which the pipe referred to in (a) will connect. (2) Other than the boundary pit referred to in paragraph (1)(b), the existing site characteristics of the servient tenement shall not be altered to ensure no negative impact to that lot. (3) This Easement does not permit the use of the surface of the Easement Area for the purposes of an emergency overflow path. (4) The owner of the Lot Burdened has the full and unfettered right to access and use the Easement Site for whatever purpose provided the owner of the Lot Burdened does not interfere with or obstruct the Lot Benefitted from draining water through the Lot Burdened in accordance with paragraph (1)."
4. I was satisfied that it was in the interests of justice to grant leave to the plaintiff to file the Amended Summons. It reflected the form of the interallotment drainage easement in deferred commencement development condition 2a of the Modified Consent and the May Modification and the proposed easement referred to in the plaintiff's Outline Submissions at [3] and [5]. It was also apparent from the defendants' Written Submissions that they understood the easement sought by the plaintiff was a variable width easement with the reduction in width around the OSD tank, and that the plaintiff proposed to lay a 225mm diameter pipe within the easement as part of its drainage system with the overland flow to be discharged into that pipe (see for example, [47]-[48], [49]-[54], [60]-[61]). This understanding was confirmed by the defendants at the hearing (T69.15-21). They also withdrew their objection to the filing of the Amended Summons (T79.30-32).
5. I should record that on the second day of the hearing, the defendants contended that the hearing should not proceed until they were served with an "engineering plan" of the new easement proposal (T85.1-18). I refused the defendants' request, which was essentially asking the Court to adjourn part heard, and the hearing continued. I did not accept the defendants' submission that an engineering plan was required to facilitate further discussion nor to enable the opportunity to obtain independent expert evidence given the defendants had not raised the need for an engineering plan with the plaintiff in the lead up to the hearing and had chosen not to instruct their expert, Ms Loka, to undertake the joint report process directed by the Court or be available to give evidence at the hearing. The defendants' submission that their expert could not participate in the joint report process without detailed engineering plans in respect of the new easement proposal or because of the timing of the May Modification also lacked force. The defendants had known about the variable width easement for some time and the emails in evidence between Mr Shi, the defendants' lawyers, the defendants' expert, and the plaintiff's solicitors, did not refer to Ms Loka requiring an engineering plan or that the May Modification was an impediment to her participation in the joint report process. While I accept that the timing of the May Modification may have impacted the timing of the joint report, there was sufficient time prior to the hearing for the experts to confer about any engineering issues raised by the May Modification. It would have been a simple matter to request a revised timetable for delivery of the joint report.
6. The power of the Court to make an order for an easement and the matters of which the Court must be satisfied are set out in s 88K of the Conveyancing Act, which relevantly provides: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

Reasonable necessity: s 88K(1)

1. The requirement that an easement be "reasonably necessary" requires something more than mere desirability or preferability over the alternative means available, however it does not mean absolute necessity. Nor does "reasonably necessary" mean that the easement must be reasonably necessary for the best and highest use of the land: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445, at [154]-[155] (Moorebank Recyclers); Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2, at [76] (Rainbowforce).
2. The proposed easement must be reasonably necessary either: for all reasonable uses or developments of the plaintiff's land; or else for one or more proposed uses or developments which are at least reasonable as compared to the possible alternatives. In order for an easement to be reasonably necessary for a use or development, the use or development with the easement must be at least substantially preferable to the use or development without the easement: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 (117 York Street) at 508 (Hodgson CJ in Eq, as his Honour then was), cited with approval in Moorebank Recyclers, at [154].
3. In Moorebank Recyclers, the Court of Appeal stated, at [155]: "In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land."
4. The concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement. The greater the burden on the servient land, the stronger the case required to find that the easement is reasonably necessary. A strong case of reasonable necessity is required if the effect of the imposition of the easement would be to effectively preclude a reasonably available development or use of the servient tenement: Moorebank Recyclers, at [156]-[157]; Weissflog v Community Association DP 270159 (2022) 20 BPR 42,265; [2022] NSWSC 239, at [45] (Weissflog).
5. Whether an easement is reasonably necessary for development of the land also involves consideration of the alternative methods by which such development could be achieved. In this case, that involves contemplation of the availability of a viable alternative to the easement sought, which may require evaluation of the options by reference to their cost, delay or inconvenience. This does not require a precise assessment of the respective advantages and disadvantages of each course, nor does it necessarily require acceptance that the applicant's preferred course is objectively superior to the alternatives, so long as it is reasonable: Moorebank Recyclers, at [158]; Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014, at [32] (Khattar v Wiese).
6. In Khattar v Wiese, Brereton J (as his Honour then was) observed at [27] that the authorities point to the confiscatory nature of s 88K of the Conveyancing Act as requiring firm proof of the reasonable necessity of the easement, and that the Court must bear in mind that property right are valuable rights not lightly to be taken away.
7. In ING Bank (Aust) Ltd v O'Shea (2010) 14 BPR 27,317; [2010] NSWCA 71, Giles JA (with whom Campbell JA agreed) stated: "[48] Reasonably necessary is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity. [49] A qualification which did no more than reduce the necessity to a less absolute level is unlikely, and if that were intended some other word could have been used such as "convenient". Qualification whereby the necessity must be reasonable is apt to, and in my opinion does, permit regard to matters beyond the relatively absolute necessity for the effective use or development of the dominant tenement. It calls for an assessment of that necessity having regard to all relevant matters, according to the criterion of reasonableness. The impact of the easement on the servient tenement, and the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, are matters readily to be taken into account in that assessment. It is difficult to see how reasonable necessity for an easement for the use or development of a dominant tenement, as distinct from necessity, can be arrived at without regard to the effect on the enjoyment of the servient tenement and on the property rights of the owner of the servient tenement."
8. Thus, what is reasonably necessary cannot be assessed in isolation. It must be assessed by reference to the "whole picture", and by an evaluation of all the relevant factors in conjunction with each other: Moorebank Recyclers, at [159]; Weissflog, at [45].
9. Whether an easement sought is "reasonably necessary" for the effective use of the dominant land is a question of fact to be determined objectively at the time of making the order and not just at the time the proceedings were commenced: Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43, at [89]; Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275, at [40].
10. The plaintiff submits that the proposed easement is reasonably necessary for a "particular development or use" of 1 Maismonde. He relies on the grant of the Consent and the deferred commencement development conditions which requires the registration of an interallotment drainage easement over 91A Raimonde. The plaintiff also submits that the proposed easement is reasonably necessary for any development or use of that land, referring to the requirements in Council's Engineering Design Guidelines relating to "Private Easement Drainage", section 4.2.
11. The plaintiff relies on Mr Eltobbagi's evidence to contend that the proposed easement over 91A Raimonde is the most suitable engineering solution to drain water. He also says that the defendants' concerns about the impacts of the easement on their property are dealt with by the Schedule 1 and 2 conditions of the Consent as modified, the proposed easement terms and Mr Eltobbagi's evidence, as the existing site characteristics are not to be altered, the 225mm pipe to be installed within the easement will not conflict with the OSD tank or related discharge pipe and the proposed drainage system will cater for a one-in-100 year storm event and prevent runoff and surface overflow on the defendants' property.
12. The defendants' main contention is that the easement is not reasonably necessary having regard to the existence of a viable alternative on 91B Raimonde and the adverse impacts on their property.
13. The defendants argue that 91B Raimonde has already been assessed and approved by Council as the location for the downstream stormwater drainage easement for the plaintiff's DA, and that an easement over that property is more appropriate because the ground stormwater flows through 91B Raimonde naturally. In support of the submission that 91B Raimonde has been assessed by Council, the defendants point to the references to 91B Raimonde in Council's Assessment Report (as described at [43] above) and a reference to 91B Raimonde Road above the "Proposed Easement Drainage - H.G.L. Analysis (1% AEP)" part of Drawing D7 of the Revised Stormwater Plans (CB871). Aligned with this submission, the defendants also contend that Council did not follow the proper procedures before granting the Consent. I deal with this submission at [160]-[163] below.
14. As to impacts on their property, the defendants refer to impact relating to the OSD tank, trees, metal shed and flower bed located in the proposed easement area and stormwater flow. They also rely on Council's Engineering Design Guidelines, referring to that part of s 4.2 which provides that a proposed private drainage easement must be clear of any structures (e.g. buildings, retaining walls, eaves, gutters) and trees, and that technical construction details must be provided regarding how a pipe can be laid within the easement where encroachment into tree root protection zones may exist. The defendants submit that the three trees cannot be kept if the easement is granted.
15. They argue that the deferred commencement development consent to contain overflow in the easement is re-distributing ground flow to disadvantage their property and is unreasonable and refer to the risk of blockage and system failure leading to flooding on their land.
16. The defendants also submit that the proposed easement of variable width is not reasonably necessary at 91A Raimonde as it does not meet Council's requirements of a 1 metre wide easement, referring to section 4.5 of Council's Engineering Design Guidelines that deals with "Standard Width Easements" and provides that the standard easement width to drain water of 1 metre will be adopted for private systems where the pipe diameter is 150mm or 225mm.
17. The defendants also take issue with the plaintiff's reliance on Mr Eltobbagi's evidence. They submit that Mr Eltobbagi is not an appropriate engineer to give expert evidence as his company, Quantum Engineers, was the designer of the plaintiff's stormwater system and that the content of his report is mostly irrelevant because it discusses a different easement to the easement now proposed. They also submit that Mr Eltobbagi's evidence is not reliable or valuable, referring to his description of the angle of the pipe at 91B Raimonde on the Initial Stormwater Plans (CB837) as "acute" as untruthful because the angle was more than 90 degrees, his evidence about the consideration of 91B Raimonde as misleading as Council had assessed and approved the easement on that property, and his evidence in cross-examination about the design of the OSD tank on 91A Raimonde and the impact of flooding of a one-in-100-year storm event as based on experience and assumptions rather than on material facts.
18. The fact that Mr Eltobbagi is the principal of Quantum Engineers and was retained by the plaintiff to prepare the DA plans does not disqualify Mr Eltobbagi from giving expert evidence, nor does it make his evidence inadmissible or irrelevant, although it may affect the weight that the Court will afford to it: The Uniting Church in Australia Property Trust (NSW) v Woollahra Municipal Council [2019] NSWLEC 1237, at [141], [154] and [158]. Mr Eltobbagi's affidavit states that he read and was bound by the Expert Witness Code of Conduct, he had made all inquiries and the opinions he expressed are independent and impartial. Thus, he understood his duty to the Court to act accordingly.
19. I also do not accept the defendants' submission that Mr Eltobbagi's report is largely irrelevant. While the report refers to the Modified Consent and a 150mm diameter pipe, it also contains Mr Eltobbagi's opinions on a range of matters that remain relevant to the issues for determination. These matters include the need for a drainage easement over 91A Raimonde (2.3.1), why 91B Raimonde is not a suitable alternative (2.3.2), how the variable width easement deals with concerns about the defendants' OSD tank and discharge pipe (2.3.2.4 and 2.3.2.5), and the method and benefits of the horizontal directional drilling boring process for the installation of the easement pipe and how that process will deal with concerns about condition 1 of the Consent and the impact on trees (2.3.2.2, 2.3.2.3, 2.3.2.6). To the extent that some matters were not addressed by his report (such as confirmation that the horizontal directional drilling boring process will be used for installing the 225mm pipe and for the discharge of emergency flows within that pipe), they were the subject of Mr Eltobbagi's evidence during cross-examination (as set out at [81] above). It is also reasonable to expect that these matters would have been dealt with as part of the experts' joint report process if the defendant's expert had participated in such a process prior to the hearing.
20. As to the other criticisms of Mr Eltobbagi's evidence made by the defendants, while Mr Eltobbagi's description of the angle as "acute" may not have been technically correct, the gist of his evidence that the easement proposal at 91B Raimonde would result in a hydraulically inefficient drainage system due to the angle of the easement pipe exiting that property is supported by Council's information request dated 3 September 2020, which refers to the need for the pipeline crossing the footpath reserve as being perpendicular to the boundary or at a "slight angle only". The submission that Mr Eltobbagi's opinion did not take account of the potential conflict between the existing OSD discharge pipe and the pit was based on Mr Shi's interpretation of the Wehbe Consulting easement plan (referred to at [25] above), which was not supported by expert evidence. Nor was that plan put to Mr Eltobbagi in cross-examination. For the reasons set out at [114] below, I reject the submission that Mr Eltobbagi's evidence, that 91B Raimonde was considered but was ultimately deemed inappropriate, is misleading. As for Mr Eltobbagi's opinion that the plaintiff is not required to cater for any event greater than a one-in-100-year storm event, that opinion is supported by Council's Engineering Design Guidelines (at page 11). His evidence regarding the design of the OSD tank and the potential for flooding on 91A Raimonde are also matters in respect of which Mr Eltobbagi could be expected to give evidence, based on his knowledge and experience.
21. Mr Eltobbagi is an experienced hydraulic engineer who is qualified to express his opinions about the suitability of a drainage easement over 91A Raimonde, the proposed drainage system, the method of works to be undertaken and the impacts on the defendants' property. He gave evidence in a direct manner and made some concessions during cross-examination (such as accepting that he had not personally observed overland flow not going onto 91B Raimonde: T122.47-48). Overall, he maintained the opinions he expressed and, in my view, did so persuasively with sound reasoning.
22. Having regard to these matters, and particularly in the absence of any competing expert engineering evidence led by the defendants, I consider that significant weight should be given to Mr Eltobbagi's opinions and evidence.
23. In this case, the plaintiff has the benefit of the Consent to develop 1 Maismonde for dual occupancy, as modified most recently on 26 May 2022, subject to deferred commencement development conditions that require the creation and registration of an interallotment drainage easement of variable width over 91A Raimonde, as fully set out at [69] above.
24. It is not suggested by the defendants that the proposed development at 1 Maismonde is anything other than a reasonable use or development of that land. To the extent that is in dispute, I am satisfied of that matter. The plaintiff's proposed dual occupancy development provides for an economically rational use of the land, albeit a more intensified use, which is appropriate to the area in which the plaintiff's land is situated, having regard to the capacity and zoning of that land, which is also demonstrated by the grant of the Consent: Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 (Shi v ABI-K), at [7], [8], [14]-[15]; Moorebank Recyclers, at [155].
25. Council's Engineering Design Guidelines and Mr Eltobbagi's evidence regarding the natural fall of 1 Maismonde towards 91A Raimonde (described at [77] above) satisfies me that the plaintiff's proposed development, or any substantially similar development, would not be permissible without some form of drainage easement over a downstream property such as 91A Raimonde. The need for a drainage easement is also demonstrated by the conditions of the Consent, as modified.
26. As to whether the particular proposed easement over 91A Raimonde for which the present s 88K Conveyancing Act application is made is reasonably necessary, I am not persuaded by the defendants' submission that 91B Raimonde is the more viable and preferable alternative on the basis that Council had assessed and approved 91B Raimonde as the location of the downstream stormwater easement for the plaintiff's DA, or because it is a more suitable site.
27. I accept that Council's Assessment Report refers to 91B Raimonde as the site for the easement in the "Referrals" section (as described at [43(b)] above). However, in my view, it is unclear on the evidence whether that reference accurately records what had been proposed by the plaintiff and assessed by Council at that time, or whether the reference to 91B Raimonde was in error, noting that the plaintiff had issued the Revised Stormwater Plans for the DA on 2 October 2020 and Council's Assessment Report included the Ground Floor/Site Plan (at Figure 7) from those reissued plans which identifies 91A Raimonde as the location for the drainage easement.
28. In any event, irrespective of whether the reference in Council's Assessment Report to 91B Raimonde is correct or not, the matters set out at [41], [42], [44] and [47] [above make clear that Council raised concerns about the plaintiff's proposal for a drainage easement on 91B Raimonde and the plaintiff issued the Revised Stormwater Plans that provide for a drainage easement over 91A Raimonde that responded to those concerns. They also demonstrate that Council's engineer considered and was satisfied by the plaintiff's proposal for an easement and drainage over 91A Raimonde and Council granted the Consent with the deferred commencement development conditions on that basis, as reflected by the reference to 91A Raimonde in deferred commencement development condition 2 and to the Revised Stormwater Plans in Council's Notice of Determination dated 1 December 2020.
29. As to the reference to "91B Raimonde" above the Proposed Easement Drainage - H.G.L. Analysis (1% AEP) part of Drawing D7 of the Revised Stormwater Plans (CB871), Mr Eltobbagi gave evidence in cross-examination, which I accept, that this was a mistake and should refer to 91A Raimonde (T95.20-25). Accepting that this misdescription might have led to some confusion on the part of the defendants, to my mind, the mistake should not have been difficult to discern (at least to the defendants' expert and solicitors) given the Revised Stormwater Plans, Drawing D3 (CB867) and the Proposed Easement Drainage Plan on Drawing D7 (CB871) show the location of the proposed drainage easement on 91A Raimonde, and the Easement Drainage and H.G.L Analysis part of Drawing D7 (CB871) identifies a 225mm pipe and levels which are different to the 150mm pipe and the levels shown on the Initial Stormwater Easement Drainage and H.G.L Analysis Plan in relation to the easement on 91B Raimonde (CB837).
30. Mr Eltobbagi's evidence, which I accept, is that an easement and drainage over 91B Raimonde was considered but was not pursued as it was inappropriate and less practicable due to the existence of the retaining wall on 91B Raimonde along the shared boundary and the effect of the angle of the discharge pipe from 91B Raimonde. That evidence and his opinion that the proposed variable width easement over 91A Raimonde is the more appropriate hydraulic drainage solution is supported by the contents of the internal Council documents, the plaintiff's evidence (referred to at [46] above), and the terms of the Consent, as modified.
31. As to the impact on 91A Raimonde, in this case, the use of the easement is unlikely to have any significant adverse effect on the defendants' land.
32. Council's deferred commencement development conditions in relation to the interallotment drainage easement are in relatively directive terms. They provide that the drainage system is to cater for all storms up to and including the one-in-100-year ARI design storm event, for the installation of an upsized 225mm pipe into which emergency flows will be discharged, and for the existing site characteristics of 91A Raimonde to not be altered other than in respect of the proposed boundary pit. The Schedule 2 conditions also require that the final drainage construction plans be prepared by a qualified and experienced stormwater drainage consultant and comply with relevant Australian Standards and the National Construction Code, which includes AS3500, and that a consulting arborist be present to certify that works were carried out under their supervision and there was no detrimental impact to downstream trees during the works.
33. Mr Eltobbagi's evidence is that the horizontal directional drilling boring process will not require the concrete path to be dug up, the metal shed to be relocated or any trees, vegetation or landscaping to be disturbed and the only above ground works will be to the new 450mm square pit.
34. As to the defendants' concern about the conflict with their OSD tank, the variable width easement has been specifically designed to deal with that issue. I do not accept the defendants' contention that Council refused the plaintiff's October 2021 modification application to reduce the width of the easement on 91A Raimonde at the part of the OSD tank. Council's preliminary assessment of the modification application may not have supported the variable width easement proposal. However, the confirmation emails from Ms Hillier on 7 and 11 October 2021 (part of Exhibit C) and the terms of the Modified Consent make clear that Council reconsidered the variable width easement and approved it as part of the deferred commencement development condition for the interallotment drainage easement.
35. Nor am I persuaded by the defendants' submission that the easement on 91A Raimonde is not reasonably necessary because the variable width easement does not comply with Council's Engineering Design Guidelines, which refer to a standard drainage easement width of 1 metre for private systems using a 150 or 225mm diameter pipe: at s 4.5. Leaving to one side that the regulatory effect of Council's Engineering Design Guidelines is unknown, the Guidelines are expressed in terms that do not limit Council's right to vary any necessary engineering requirements in accordance with industry best practices. Relevantly, in relation to the standard easement width of 1 metre, the Guidelines provide that: "Consideration may be given to the minor reduction of the required easement widths (for sections where the full width of the easement cannot be achieved) where it is demonstrated that the full easement width cannot be obtained and the proposed pipe can reasonably and economically be installed, maintained and replaced satisfactorily."
36. The defendants' submission that a reduction in width from 1 metre to 0.46 metres is not minor and is in breach of the Guidelines is also not convincing when regard is had to the small proportion of the easement that is comprised by the variable width part of the proposed easement, the fact that the full width could not be obtained due to the presence of the OSD tank, and Mr Eltobbagi's evidence that the method of installing the pipe within the variable width easement is an industry accepted method which has proven to ensure no damage to surrounding structures and his experience with drainage easements of less than 1 metre.
37. Mr Eltobbagi's evidence, which I accept, is that the variable easement width of between 0.46m and 0.735m is sufficient to cater for the 225mm diameter pipe. In his opinion, the horizontal directional drilling boring process for installing the pipe should not have any impact upon the defendants' OSD tank nor the discharge pipe connected to it. The effect of Mr Eltobbagi's evidence is that the proposed drainage system (225mm pipe with capacity to cater for a one-in-100-year storm event) with an easement over 91A Raimonde is a better outcome for all downstream properties (including 91A Raimonde) than what currently exists, and that the risks associated with blockage are mitigated by measures in place on the OSD tanks as part of the plaintiff's development on 1 Maismonde.
38. Based on Mr Eltobbagi's evidence, I do not accept the defendants' submission that conditions 5 and 6 of the Consent, as modified, which provide for the system to sufficiently convey all runoff from the development site and for emergency flows from 1 Maismonde to be discharged within the upsized easement pipe, is redistributing the ground flow to disadvantage the defendants' property and is unreasonable. Nor do I consider that the reference in the defendants' Written Submissions to McGrath v Mestousis [2017] NSWSC 995 (McGrath v Mestousis) at [5(2)] assists them. That paragraph refers to the contents of an expert report in other proceedings and cannot be relied on in this case to counter Mr Eltobbagi's evidence concerning the alignment of the existing overland flow from 1 Maismonde.
39. During oral submissions, the defendants also argued that, as a deferred commencement development consent is not a formal approval but a preconditioned consent, it is not sufficient for reasonable necessity in this case. I do not accept that submission. The requirement of reasonable necessity is to be decided in light of the circumstances that exist at the time of the hearing and may be satisfied even though some future action may be required: Rainbowforce, at [83]. It may also be satisfied where the easement is subject to a deferred commencement development consent condition: see for example, Diro Group Pty Ltd v Leuzinger [2021] NSWLEC 107.
40. There is no evidence to suggest that the plaintiff will be incapable of satisfying the deferred commencement development conditions relating to the interallotment drainage easement, which is the primary basis for the plaintiff's contention that an easement on 91A Raimonde is reasonably necessary. To the contrary, the effect of Mr Eltobbagi's evidence is that the proposed easement and work methodologies are in line, and will ensure compliance, with each of the relevant conditions.
41. In summary, the dual occupancy development of the plaintiff's land is reasonable and has been approved by Council. The development requires a mechanism for disposing of stormwater to the closest downstream Council drain which, in turn, requires an easement over a downhill property, the closest of which is 91A Raimonde. The deferred commencement development conditions, the existence of the retaining wall on 91B Raimonde and Mr Eltobbagi's evidence satisfy me that the risks to the defendants' property will be minimal and that a variable width easement over 91A Raimonde is the most reasonable and efficacious drainage solution and is to be preferred over an easement on 91B Raimonde. It follows that I am satisfied that the plaintiff's proposed easement is reasonably necessary for the effective use or development of his land.

Is the use of the land with the benefit of the easement inconsistent with the public interest: s 88K(2)(a)?

1. The focus of s 88K(2)(a) of the Conveyancing Act is the use of the plaintiff's land, being the land having the benefit of the proposed easement. The Court must be satisfied that the use of 1 Maismonde will not be inconsistent with the public interest: City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251, at [48]; (Canterbury v Saad), cited with approval in Weissflog, at [74].
2. The public interest favours 1 Maismonde being used for a permissible purpose and the plaintiff is entitled to utilise it in accordance with its zoning: Canterbury v Saad, at [56].
3. In this case, the easement forms part of the drainage solution that is required for a dual occupancy residential development, a not uncommon development throughout Sydney that is consistent with the zoning of 1 Maismonde and the surrounding properties.
4. The plaintiff has the benefit of an existing consent from Council. In the absence of any evidence to the contrary from the defendants, it may be assumed that the Consent was given after consideration of the matters set out in s 4.15 of the EPA Act. While not decisive, that is a highly material factor demonstrating that the proposed development at 1 Maismonde is not inconsistent with the public interest: Shi v ABI-K, at [70]; McGrath v Mestousis, at [77].
5. I do not accept the defendants' submission on this issue. Their contention that if the easement is granted they will need to turn on air-conditioning and consume more electricity, which they say is inconsistent with the public interest, is based on the incorrect assumption that "three trees that provide shade will have to be removed" (Written Submissions, at [56]). As plaintiff's counsel submitted at the hearing, Mr Eltobbagi's evidence explains that there is no need to remove any vegetation or trees from the easement area, and the conditions of the Consent and terms of the easement make plain that the existing site characteristics of 91A Raimonde, which includes the trees, shall not be altered in order to ensure there is no negative impact. In addition, the defendants will benefit from condition 39A of the May Modification.
6. In my view, there is nothing to suggest that the use of the plaintiff's land for the development with the easement would be contrary to the public interest. Accordingly, I accept the plaintiff's submission that the use of 1 Maismonde with the easement will not be inconsistent with the public interest and I am satisfied that this requirement has been met.

Can the defendants be adequately compensated: s 88K(2)(b)?

1. The question of whether the defendants can be adequately compensated requires the Court to focus on whether the defendants will suffer any loss or other disadvantage from the imposition of the proposed easement. If they will, and they cannot be compensated, then no easement can be granted: Moorebank Recyclers, at [233].
2. Other than stating in their Written Submissions that "compensation of the trees is not included in the Valuation Report of Mr. Simon Azar" (which is premised on the incorrect assumption that the trees within the easement area will have to be removed), no reason was advanced by the defendants as to why monetary compensation would not be adequate to compensate them for any loss or other disadvantage.
3. Based on the valuation evidence provided by Mr Azar and Mr Casemore, I am satisfied that the defendants can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement. Both valuers identify that monetary compensation could be provided for various heads of loss or disadvantage, including loss of the value of the land, blot on title, disturbance and inconvenience during installation and, in the evidence of Mr Azar, disturbance when maintenance is carried out on the easement in the future. The dispute relates to the level of compensation that should be paid, which I deal with below.

Have all reasonable attempts been made: s 88K(2)(c)?

1. The principles applicable to s 88K(2)(c) of the Conveyancing Act are summarised by Preston CJ of LEC in Rainbowforce as follows (citations omitted): [128] The easement referred to in s 88K(2)(c) is the easement the applicant has applied to the court to impose. An easement having the same effect as that easement can be in respect of the same land but is not limited to that land; it can also be an easement over other land having the same effect as the easement over the land the subject of the application. [129] Reasonableness is a matter of degree and the relative disadvantages, convenience and costs of the alternative easements are relevant considerations. …. [131] In order for an applicant for an order to make all reasonable attempts to obtain an easement: (a) the applicant for the order must make an initial attempt to obtain the easement by negotiation with the person affected and some monetary offer should be made; (b) the applicant for the order should sufficiently inform the person affected of what is being sought and provide for the person affected an opportunity to consider his or her position and requirements in relation thereto; (c) the applicant for the order is not required to continue to negotiate with a person affected by making more and more concessions until consensus is reached to the satisfaction of the person affected; and (d) the whole of the circumstances are to be considered from an objective point of view; once it appears from an objective point of view that it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future, it may be concluded that all reasonable attempts have been made to obtain the easement.
2. The assessment of all reasonable attempts is to be made at the time the Court is considering the application: Studholme v Rawson [2020] NSWCA 76, at [83] (Studholme v Rawson); The Owners - Strata Plan 85044 v Murrell; Murrell v The Owners - Strata Plan 85044 [2020] NSWSC 20, at [478].
3. The correspondence exchanged between the plaintiff and the defendants from 2018 to January 2021 demonstrates that the plaintiff made various attempts to obtain a drainage easement over 91A Raimonde prior to commencing these proceedings. As part of those attempts, the defendants were provided with an easement plan, the terms of the proposed easement, details of the proposed works (the Wehbe Consulting letter), Council's Stormwater Disposal Policy, the Consent Notice of Determination and valuation reports that supported the amounts of compensation that the plaintiff offered to pay to the defendants.
4. It is true that on 10 July 2018, the defendants' solicitor indicated that the proposed easement overlaps with the location of the OSD tank and there must not be any alterations to that tank without the consent of Council. However, the defendants' concerns about the OSD tank were not raised in any other correspondence from the defendants' solicitors. There was no substantive response to the plaintiff's 16 October 2019 offer to acquire the easement and no response at all to the 14 December 2020 offer or the plaintiff's follow up letter sent on 29 January 2021, prior to the commencement of these proceedings.
5. Viewed objectively, the defendants' lack of engagement with the offers made by the plaintiff to acquire an easement prior to these proceedings indicated that it was very unlikely that further negotiations would produce a successful outcome.
6. The parties attended a mediation as part of the proceedings without success. The defendants continued to oppose an easement on their property even though aspects of the easement sought by the plaintiff changed after the proceedings were commenced, with the easement that the plaintiff applies to the Court to impose being of variable width to accommodate the OSD tank and on more specific and beneficial terms than the easement the plaintiff originally offered to acquire without success.
7. I do not accept the defendants' submission that sufficient engineering and construction details and plans of what is now proposed have not been provided to them, and as a result, the plaintiff has not made all reasonable attempts to obtain the easement from the defendants. In my view, the information provided to the defendants was sufficient to enable them to consider their position and obtain any necessary expert advice to assist their understanding of the impacts of the easement on their property and what was required.
8. In addition to the information referred to at [140], as part of these proceedings, the defendants were provided with Council's notices of determination relating to the Modified Consent and May Modification which informed them of the modifications to the Consent that provided for the variable width easement and the additional conditions relating to the stormwater drainage system and easement area. The defendants were also provided with the Easement Survey Plan that shows the width at the point of location of the OSD tank, the s 4.55 Easement Plan that identifies the location of the 450mm square pit to be constructed on the easement, and Mr Eltobbagi's report gave them information about the method of installation of the pipe (namely, the horizontal directional drilling boring process), how that process will navigate any obstructions within the easement and at the reduced width area adjacent to the OSD tank without disruption to the surface, and the reasons why an easement at 91B Raimonde was deemed to be inappropriate. The defendants knew that the 225mm pipe is to cater for all storms up to and including the one-in-100-year storm event (the highest categorised storm event in terms of flood planning) for new developments, and that emergency flows are to be discharged within the upsized 225mm pipe. They have also had access to a sectional diagram depicting levels relevant to the proposed easement location (Revised Stormwater Plans, Drawing 7).
9. The history of the dealings between the parties and the defendants' attitude to the variable width easement, described as "not what we can accept" in their Written Submissions despite it dealing with their concerns about the overlap with the OSD tank, indicate that the defendants are fundamentally opposed to the easement. In my view, receipt of a further engineering plan is not the main concern and would not have facilitated further discussion or resolution of the plaintiff's claim for an easement over their property.
10. In addition to seeking to obtain an easement over the defendants' property, the plaintiff sought an easement to the same effect over 91B Raimonde.
11. I reject the defendants' submission that the plaintiff did not make all reasonable attempts to obtain an easement over 91B Raimonde. The attempts made by the plaintiff to do so were not perfunctory. He provided the registered proprietors of 91B Raimonde with details of the proposed easement, made an offer to acquire the easement with compensation and included 91B Raimonde as the location of the proposed drainage easement in the Initial Stormwater Plans issued for the DA. The matters raised by Council and in Mr Eltobbagi's evidence concerning the difficulties of an easement on 91B Raimonde, and the deferred commencement development condition that requires the easement to be free from permanent structures (such as a retaining wall), satisfy me that the plaintiff was not required to continue to pursue 91B Raimonde as an option as part of his reasonable attempts to obtain an easement to the same effect.
12. In the circumstances of this case, I consider that all reasonable attempts have been made by the plaintiff to obtain the easement the subject of this application, or an easement having the same effect, and these attempts have been unsuccessful.

Should the Court exercise its discretion to grant the easement?

1. Where, as here, the plaintiff has established reasonable necessity and the other factors in s 88K(2) of the Conveyancing Act, the Court retains a discretion as to whether to grant the easement sought: Weissflog, at [49]; Community Association DP270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83, at [147].
2. The discretion is to be exercised having regard to the purpose of s 88K of the Conveyancing Act, which is to facilitate the reasonable and effective use or development of land, provided various conditions are satisfied, including that just compensation is paid for any erosion of private property rights: Khattar v Wiese, at [6]; Rainbowforce, at [134].
3. Like the assessment of reasonable necessity, the discretion to grant an easement needs to be considered having regard to the circumstances which existed at the time of the hearing: Moorebank Recyclers, at [96].
4. The defendants' submissions assert unreasonable conduct on the part of the plaintiff and procedural error by the Council in granting the Consent which I have taken to be relied on as to why they say the Court should decline to exercise its discretion to impose the easement sought.
5. The unreasonable conduct is said to consist of the plaintiff's pursuit of a 1 metre wide easement on their property in the period 2018 to 2021 and his failure to provide information to the defendants during the proceedings.
6. As to the first of these matters, the defendants submit that as the plaintiff was aware of the OSD tank and the other matters referred to in the 10 July 2018 letter from their solicitor (at [31] above), the plaintiff should have disclosed the existence of the OSD tank to the Council in 2020 and it was unreasonable of him to obtain the Consent and commence these proceedings on 11 May 2021 in respect of an easement that did not take account of the OSD tank on their property. As was put by the second defendant in oral submissions, the plaintiff and his team ignored the fact of the OSD tank, have been dishonest and, because "there are facts that haven't been respected", the parties have been unable to resolve the case without going to court.
7. I do not accept the defendants' characterisation of the conduct of the plaintiff or his team as dishonest. Leaving to one side that it was not put to the plaintiff or Mr Eltobbagi that they had been dishonest in any dealings, in my view, the evidence does not support a finding that the plaintiff and his team acted dishonestly in failing to disclose the existence of the OSD tank on 91A Raimonde when seeking Council's approval for the DA in 2020, or that they intended to deceive the Council about that matter. The plaintiff's evidence in cross-examination was that he let his consultants deal with these matters and he first became aware of the underground OSD "within the last year" (T39.37-48). In cross-examination, Mr Eltobbagi gave evidence that he thought he had seen the CitSurv Detail Survey but could not remember when, the OSD tank was not a structure shown on the Deposited Plan or other documents registered with the Land Titles Office and he could not recall when he became aware of the existence of the OSD tank but he knew by 19 August 2021 (T52.1-17, T52.44-47, T53.13-16, T53.40-44).
8. That said, it is correct to say that the plaintiff was on notice of the OSD tank on the defendants' property from sometime in 2018. In addition to the letter from the defendants' solicitor, the Wehbe Consulting easement plan (CB293), which was sent by the plaintiff to the defendants in 2018, identifies the OSD tank and the overlap with the proposed 1 meter easement. The plaintiff's 2018 valuation report also refers to its existence.
9. It also seems fair to say that the existence of the OSD tank was relevant to the plaintiff's DA and the plaintiff should have, if he and his team had acted with more diligence, disclosed that matter to Council and sought a variable width easement as part of the application process in 2020. However, even if the plaintiff had done so, I am not persuaded that the dispute between the plaintiff and the defendants would have been resolved without the need for these proceedings for the reasons set out at [143] and [146]. As the plaintiff submits, the mediation took place at a time when the OSD tank had been identified on the plans and the parties did not settle. An earlier identification may have limited some of the issues in dispute and thus, reduced the costs to the parties. While not unimportant, I do not consider this factor and the plaintiff's conduct in relation to the OSD tank to be of significant weight against the exercise of the discretion to impose the easement that I have found to be reasonably necessary.
10. As to the defendants' contention of unreasonable conduct on the basis that the plaintiff failed to provide sufficient information, I have already dealt with their submission about the engineering plan and the adequacy of the information that was made available to them, at [140] and [144]­-[145] above. I also do not accept the defendants' submission that the plaintiff set up a barrier to them getting truthful information in the absence of evidence that the defendants requested particular documents or plans from the plaintiff during the course of these proceedings or issued notices to produce that were not complied with.
11. The defendants argue that Council did not follow the proper procedures before granting the Consent for an easement over 91A Raimonde as it was the easement on 91B Raimonde that had been displayed on Council's website, objected to by 91B Raimonde's registered proprietor and assessed and approved by Council, which meant that the defendants received no notification during that period of time and had no way to raise objections. They submitted that the Consent obtained by the plaintiff was not through the formal procedure and that the procedural mistake by Council should be rectified by the Court.
12. The difficulty with this submission is that this Court does not have jurisdiction to deal with the defendants' claim that the Consent granted by Council should be rectified or set aside on the basis of procedural mistake. To pursue such a claim, the defendants had to bring judicial review proceedings in the Land and Environment Court (LEC): Land and Environment Court Act 1979 (NSW), ss 20(c), 20(2)(b), 71. Those proceedings also had to be commenced within three months of the date of Council's decision, subject to the LEC exercising its discretion to extend that time: Uniform Civil Procedure Rules 2005 NSW (UCPR), r 59.10.
13. The task of this Court is to assess whether an easement should be imposed by reference to the criteria set out in s 88K of the Conveyancing Act. It is not to assess the validity or reasonableness of Council's procedures or reconsider any conclusion reached as part of that process: Shi v ABI-K at [72].
14. Further, and in circumstances where Mr Shi made reference in oral submissions to matters for which there was an absence of evidence (such as his claim that the defendants received no notification about the proposed development during the relevant period of time and had no way to raise objections), the facts disclose that the defendants had an opportunity to object to the plaintiff's s 4.55 modification application and did so, and the parties did not address what was required by reference to the EPA Act, it is not possible or, in my view, appropriate to express any view on the merits or otherwise of the defendants' claim of procedural mistake.
15. Having considered the above matters and the other matters advanced by the defendants in opposition to the easement, I am not persuaded that the Court should withhold the relief sought by the plaintiff. In all the circumstances, and particularly having regard to the underlying rationale of the power under s 88K of the Conveyancing Act, I am satisfied that it is appropriate to exercise the discretion and make an order imposing the easement sought by the plaintiff.

What amount of compensation should the plaintiff pay to the defendants for the loss or other disadvantage that will arise from the imposition of the easement: s 88(4)?

1. The assessment of the level of compensation to be paid is to be determined by reference to the loss or other disadvantage incurred by the servient owner as a result of the easement, rather than the benefit obtained to the dominant owner: 117 York Street, at 515-517.
2. The amount of compensation will ordinarily be made up of the diminished market value of the servient land (including what is sometimes called the "hope value", being the potential use to which the affected land could have been put), the associated costs caused to the owner of the servient land, and an amount for insecurity and loss of amenities, less any compensating advantages (if any): Moorebank Recyclers, at [234] and [235]; Lonergan v Lewis [2011] NSWSC 1133, at [52]; Khattar v Wiese, at [66].
3. The parties have adduced evidence in the form of reports from registered valuers, Mr Azar for the plaintiff and Mr Casemore for the defendants, who were not cross-examined. I should record that Mr Casemore's report was admitted into evidence without objection from the plaintiff although it was not prepared in accordance with UCPR r 31.23.
4. Mr Azar assesses the loss that will arise from the imposition of the proposed easement to be $18,500.
5. Mr Casemore assesses the market value for the proposed easement to be $40,000.
6. Although the descriptions of their valuation tasks differ slightly, Mr Azar and Mr Casemore adopt a similar "piecemeal" approach to valuation by reference to the same easement of 1 metre and variable width. They each assess an amount for "loss of value" of the affected land, which involves ascribing a value per m2 (based on comparable sales) to the easement area (agreed as 16.765m2) and then applying a percentage to that value that represents the loss of use of the easement land, or "easement impact", as referred to by Mr Casemore. Mr Azar assesses this head of loss as $6,433.87. Mr Casemore assesses it as $31,016.
7. Mr Azar and Mr Casemore also include amounts for "blot on title" (agreed at $5,000), and for loss of access/disturbance caused by works to the easement area. Mr Azar's allowance for this loss of access/disturbance caused by works is $2,000 (based on installation of the proposed easement creating noise and taking 5 days), whereas Mr Casemore allows $3,500 (based on disturbance from contractor works to excavate, install the pipeline and make good over 7 days, at $500 per day). Mr Azar's compensation assessment (but not Mr Casemore's) also includes an amount for future maintenance (of $5,000).
8. Neither valuer includes an amount for injurious affection (being the loss in value to the residue area not burdened by the easement), an amount for costs arising from the easement (such as valuation, legal fees and time factors) or deducts a sum for compensating advantages.
9. It is apparent that the key difference between the valuers is their assessment of the loss of land value of the easement area.
10. Mr Azar's assessment of $6,433.87 is derived from a land value of $58,677.50 for the easement area, adopting a land value rate of $3,500/m2 based on comparable sales. He then applies an allowance of 5% to $58,677.50 for the loss in use over that land to get to $2,933.87, and adds a further allowance of $3,500, being an undiscounted amount for the area of the 450mm square pit (adopting the larger size of 1m2).
11. Mr Casemore applies a similar methodology but arrives at a land value of $62,031 for the easement area, adopting a land value rate of $3,700/m2 based on different comparable sales. (It appears that the reference to $3,500m2 on page 7 of Mr Casemore's report is an error based on his calculation of land value of $62,031 and the reference to $3,700m2 at page 12.) He assesses the impact of the easement on the land as equating to 50% of the land value, to arrive at the loss of land value of $31,016.
12. In his report, Mr Azar takes issue with Mr Casemore's comparable sales evidence (on which Mr Casemore's $3,700/m2 is based), contending that Mr Casemore failed to make appropriate adjustments for location and time market movements. While acknowledging the merit of that contention, based on the reference in Mr Azar's report to market uncertainty caused by the COVID-19 pandemic and the relatively small difference in the land/m2 value rates adopted by Mr Azar and Mr Casemore, I consider that a mid-point of $3,600/m2 should be applied in this case.
13. I am, however, more persuaded by Mr Azar's opinion that Mr Casemore's assessment of an impact of 50% is not supported by the evidence and is overly generous.
14. As Mr Azar's report states, the benefit of the easement is to be placed below ground within the side setback area of 91A Raimonde, which is land already reserved for landscaping and impacted by the placement of an existing OSD system. I also note that 91A Raimonde is the subject of an existing positive covenant registered on title relating to this stormwater system, with dealing number DP853609. In that context, there is force in Mr Azar's opinion that 91A Raimonde cannot currently use the "corridor of land" for any purpose other than drainage and landscaping, and in the "after", the land will have the same use.
15. Mr Casemore's report recognises that the easement is a partial interest in title (i.e. not possession of the land), is for a restricted use only, will be located adjacent a side boundary, does not reduce the land holding by way of land area and does not impact the permissible floor space ratio of a new development. Although Mr Casemore also states that as a check reference, he considered "previous negotiated easements I have been involved, discussions with my colleague valuers active in the valuation of easements and anecdotal comments from local agents as to where many easement negotiations typically settle", he does not give any examples that support his reasoning for arriving at a 50% impact on value.
16. I acknowledge that an assessment of the percentage impact/allowance to be applied is a matter of professional judgement and, as Mr Casemore states, "is in part a qualitative estimate." However, I am unable to accept Mr Casemore's evidence that the imposition of the easement, which is likely to cause only a minimal impact on the amenity and usability of the affected land, would diminish that land value by 50%. I prefer Mr Azar's reasoning and opinion, although I consider that his allowance of 5% should be increased to 15% to account for some legitimate difference in opinion.
17. Adopting an allowance of 15% for the loss of value of land and Mr Azar's undiscounted amount for a 1m2 pit area produces an amount of $12,653.10 (based on a land value of $60,354 (16.765m2 at $3,600/m2), with an allowance of 15% ($9,053.10) and $3,600 for the undiscounted pit area at 1m2), which represents a total allowance of approximately 20% for the loss of value of the affected land. When that head of loss is added to the other losses provided for by Mr Azar ($5,000 for blot on title and $5,000 for future maintenance) and adopting Mr Casemore's estimate for compensation for disturbance (of $3,500), the total comes to $26,153.10.
18. Based on the above, I consider that $26,500 would be an appropriate amount of compensation to be paid to the defendants for the loss or disadvantage that will arise from the imposition of the easement.

Costs: s 88K(5)

1. The defendants submit that the plaintiff should pay their costs and expenses, relying on s 88K(5) of the Conveyancing Act and what the defendants contend has been the plaintiff's unreasonable conduct.
2. The plaintiff seeks an order for costs but has requested that the issue of costs be determined separately after the Court gives judgment. Based on comments from him at the hearing, I anticipate that he may seek to rely on offers that have been made. I have, therefore, deferred determination of that issue and will direct the parties to provide written submissions, with a view to dealing with the issue of costs on the papers if it cannot be agreed.
3. I note, however, that the cases make it clear that, generally speaking, the plaintiff would be ordered to pay the defendants' costs of the application, in accordance with s 88K(5) of the Conveyancing Act. The defendants were not obliged to accept the imposition of an easement and were entitled to reject reasonable offers without necessarily exposing themselves to costs of the proceedings. Merely putting an applicant to proof in respect of the various elements contained in s 88K of the Conveyancing Act could not, of itself, provide any basis for an adverse costs order against them: Shi v ABI-K, at [98]; Studholme v Rawson, at [175] and [176].
4. As to the applicability of offers, UCPR r 42.14 and the Calderbank principles are unlikely to operate without qualification in proceedings under s 88K of the Conveyancing Act. The better view is that rejection of an offer made under UCPR r 20.26 is a relevant factor to be considered in allocating costs contrary to s 88K(5) but carries no particular weight. In relation to Calderbank offers, where the offeror betters a non-statutory offer and the Court is required to decide if the rejection of the offer was unreasonable. However, that is not the approach permitted by s 88K(5) of the Conveyancing Act: Studholme v Rawson, per Basten JA, at [186] and [187].
5. While it is not possible to prescribe the circumstances in which the defendants would be deprived of their costs in resisting the plaintiff's application, departure from the general rule does not require that they be ordered to pay the plaintiff's costs. For example, if the plaintiff were to satisfy the Court that the defendants had acted so unreasonably such as to warrant departure from s 88K(5) of the Conveyancing Act, there may be a number of options available to the Court, ranging from depriving the defendants of part of their costs to ordering them to pay the plaintiff's costs as assessed on an indemnity basis: Studholme v Rawson, per Basten JA, at [188].
6. I also note that if the Court were to order the plaintiff to pay the defendants' costs in accordance with s 88K(5) of the Conveyancing Act, it may be expected that the order would be limited to the costs recoverable by litigants in person for the period they were not represented by solicitors and would not extend to the legal costs incurred prior to the commencement of the proceedings: Shi v ABI-K, at [98].

Conclusion

1. For the above reasons, I will grant the plaintiff's application for an easement over 91A Raimonde under s 88K of the Conveyancing Act.
2. The plaintiff seeks an easement to drain water 1 metre wide and variable width on the terms set out at [84]. Those terms are based on the terms specified in Part 8 of Schedule 8 of the Conveyancing Act and also include aspects of the deferred commencement development conditions in the May Modification that are beneficial to the defendants. I am satisfied that those terms are appropriate and am prepared to make an order to that effect.
3. I direct the plaintiff, within 14 days, to provide to my Associate and serve upon the defendants a form of orders that satisfies the requirements of s 88K(3) of the Conveyancing Act and gives effect to these reasons. The form of orders should include a notation of the plaintiff's undertaking proffered at the hearing to provide seven days prior notice of the works commencing within the easement area to the defendants by letter in the post, and also deal with costs if an agreement is reached on that issue. The Court will then settle the form of orders in chambers.
4. I also direct, if no agreement on costs is reached, that the parties are to file and serve brief written submissions as to costs within 14 days, together with any affidavit evidence relied on in support of those submissions, with that issue to be dealt with on the papers without any further oral hearing.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2023