(iii) Consideration
153Although as we have indicated it is necessary to take the effect on the servient tenement into account in determining whether or not the proposed easement is reasonably necessary for the effective use or development of the proposed dominant tenement, it is convenient to deal first with the question of whether, absent consideration of such an effect, the easement sought in this case is reasonably necessary.
154The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows:
"It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement.
In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement.
The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court 'is not to judge upon the reasonableness of the particular development'. However, that statement is qualified by the words 'at least in this case'. If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be 'reasonably necessary for the effective use or development' of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable." (at 508-509 citations omitted)
155In 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. That in our opinion is consistent with what was said by Hodgson J in 117 York Street supra in the passage which we have cited above (see also Lonergan v Lewis [2011] NSWSC 1133 at [22]).
156That is not to say that an easement will always be granted in these circumstances. As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Rainbowforce supra at [77]; Khattar v Wiese supra at [27]; Woodland v Manly Municipal Council, supra at [12]; Lonergan v Lewis supra at [22].
157As we indicated earlier (par [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the Court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed.
158The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development.
159None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other.
160In the present case, use and development of the Tanlane land for residential purposes is an effective use and development within the meaning of s 88K(1) of the Act. The land was rezoned for that purpose in 2008. The Development Control Plan approved at the same time (see par [42] above) referred to the Tanlane land in the following terms:
"The sand extraction industry has reached the end of its economic life. Landfill has been placed over some of the site to a level above the one percent flood on the Georges River. It is proposed to be redeveloped for residential and business uses with possibly private recreation along the foreshore."
161The Development Control Plan lists a series of social and environmental benefits which could be derived from a subdivision in accordance with the plan, which provided for development to a maximum of 216 dwellings of various size and subject to various controls.
162There was no direct evidence that the sand extraction industry operated by Tanlane had reached the end of its economic life, or for that matter that the land as developed would be more valuable than without its intended use. However, it seems to us that when a comparison is made between a subdivision of the land in accordance with the Development Control Plan and a non-conforming use pursuant to existing use rights for excavation and recycling, it must follow that the proposed development is at least reasonable compared to the alternative.
163The next question is whether the easement is reasonably necessary for that use and development. As Hodgson J pointed out in 117 York Street supra, the development with the easement must be substantially preferable to development without the easement. This is particularly the case if the grant of the easement would cause significant detriment to the servient tenement.
164This raises the issue of whether access from the Tanlane land to Davy Robinson Drive is a viable alternative to the grant of the easement. In our opinion this question should be answered in the negative. First and most importantly, as we have said, the Development Control Plan makes it clear that the link road to Brickmakers Drive is a necessary precondition of the subdivision, the Development Control Plan stating that the link road was required to be a minimum of 20 metres wide and able to accommodate a bus route. The reason for this, it was stated, is to provide flood free access. As we have pointed out, the Development Control Plan emphasised that Davy Robinson Drive was not to be a shortcut onto Newbridge Road. In this context the evidence of Mr Mitchell to the effect that Davy Robinson Drive was adjacent to the Georges River and highly flood prone is of particular relevance.
165As Tanlane submitted, the importance of the Development Control Plan cannot be underestimated. In Zhang supra, Spigelman CJ described it as a focal point or fundamental element to be taken into account in a decision whether or not to grant a consent (at [75]-[77]). In that context it seems to us that the prospect of Council granting development consent utilising Davy Robinson Drive as the main thoroughfare for public and private transport from the Tanlane land to Newbridge Road is remote. Even if it were a possibility (although, in our opinion, a faint one) development with the easement would be substantially preferable to development without it, the only alternative raised being access to Newbridge Road via Davy Robinson Drive.
166Moorebank also submitted that the easement was not reasonably necessary because if it was granted Tanlane would not be in a position to satisfy the conditions contained in the VPA. We have set out Moorebank's submissions in pars [141]-[144] above. For the reasons set out below, in our opinion, these submissions are incorrect and must be rejected.
167Clauses 3.1 and 3.2 of the VPA provide as follows:
"3.1 Designated Land
(1) The Developer must dedicate and transfer the Designated Land to the Council by the date or time specified for the relevant item in Schedule 3.
(2) The Designated Land must be dedicated to the Council:
(a) free of any trusts, estates, interests, covenants and encumbrances (other than those specified in this agreement); and
(b) at no cost to Council.
3.2 Works Contribution
(1) The Developer must carry out and complete the Works in accordance with this agreement.
(2) The Council may refuse to issue the relevant Subdivision Certificate for the Development if the relevant portion of the Works identified in Schedule 3 has not been carried out in accordance with this agreement."
168Schedule 3 of the VPA sets out the works to be carried out pursuant to the Agreement and makes provision for the periodical release of a bank guarantee required to be provided by Tanlane pursuant to cl 11 of the VPA, the release occurring as individual items of work are completed. Item 7 of Schedule 3 described one item of work in the following terms:
"Construction and dedication of road bridge over drainage channel, embankment and road to Brickmakers Drive as shown on the plan attached as Annexure 1 and marked as 'F'."
169We have attached a copy of the plan referred to in Item 7 of Schedule 3 as "Attachment 2". The legend to the plan identifies the land in dark blue and marked E as a dedicated drainage channel. It is apparent from the drawing that the drainage channel is on Tanlane land running north/south along the western boundary of that land.
170The land hatched in yellow on the plan is identified in the legend as Item F. Both in the legend and in the notation alongside that area appear the words "Construct and dedicate bridge including two vehicle lanes and bike/pedestrian path over drainage channel". That would tend to indicate that what is to be dedicated is that part of the bridge which runs over the drainage channel, which is land owned by Tanlane, although it must be accepted that the blue lines running across the whole of the bridge are described in the legend as "Boundary of Designated Land".
171Designated Land is defined in the VPA as that part of the Land outlined in blue on the plan that is Annexure 1 to the Agreement. Again this seems to be capable of referring either only to the drainage channel or, as Moorebank contended, to the drainage channel together with the bridge.
172However, reliance by Moorebank on the definition of Designated Land fails to take into account that Land itself is a defined term. Land is defined in Schedule 2 as the "Land set out in Schedule 1". Schedule 1 defines the Land as the whole of the Land in Certificate of Title Folio Identifier 7/1065574 and known as 146 Newbridge Road Moorebank. That is the land owned by Tanlane.
173It seems to us that in those circumstances the obligation of Tanlane under the VPA to dedicate land to the Council is limited to that part of the land outlined in blue on the attached plan, namely, the drainage channel including that part of the channel traversed by the bridge and does not include land which it does not own. That construction takes account of the fact that the defined term Land is incorporated into the definition of Designated Land and is consistent with a notation Item F on the plan and in the legend to the plan.
174To the extent there is ambiguity, it is appropriate to take into account the fact that each of the parties to the VPA were aware that the bridge traversed not only land owned by Tanlane but also land owned by Moorebank: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165; Western Exports Services Inc v Jireh International Pty Limited [2011] HCA 45; (2012) 86 ALJR 1. The Council was aware that the bridge traversed land other than that owned by Tanlane from the fact that it had previously granted consent to the development application which showed the bridge was over land owned by Moorebank.
175In these circumstances it would be surprising that the Council and Tanlane had reached an agreement containing obligations which Tanlane was unable to perform. Although for the reasons we have given, a literal construction of the VPA leads to a conclusion contrary to that contended for by Moorebank, the surrounding circumstances to which we have referred fortify that view.
176It follows that Moorebank's contention that the VPA would prevent Tanlane from taking advantage of the easement for the use and development of the land is not made out.
177Thus far we have dealt with the issue of reasonable necessity without having regard to the effect of the imposition of the easement on the land owned by Moorebank. That raises two questions. The first is whether or not the easement should be refused because it would have the effect of preventing the Moorebank land being used as a recycling facility, as permitted by the zoning of the land under the 2008 Liverpool Local Environment Plan (see par [41] above). The second, and what might be described as the subsidiary issue, is whether if the easement is imposed Moorebank's proposed use of the land could be frustrated by the proposed bridge not having the capacity to accommodate the trucks which would be used by Moorebank in carrying out a recycling business. We will deal with the subsidiary issue first.
178The development consent for the construction of the bridge specified by cl 45 that the bridge is to be certified so that it complies with AS5100-Bridge Design Code. Clause 14 of the consent provided that the bridge is to be designed and constructed such that it is able to accommodate the access ramps (Concrete Recyclers Access Option A) as developed in concept by Patterson Britten & Partners Pty Limited.
179The debate on the appeal centred on two issues. The first was whether the standard AS5100 mandated a load bearing capacity SM1600 which the parties accepted would be sufficient to accommodate the trucks to be used by Moorebank for the purpose of its development. Even if it mandated this capacity, the second issue was whether the Council and Tanlane would be able to vary this requirement at the construction stage so that ultimately a bridge of lesser load bearing capacity was constructed.
180AS5100 is the Australian standard bridge design. Clause 6.2 of Part 2 of that standard mandates in effect that to comply with the standard, a bridge must have the capacity to carry loads represented by the abbreviation SM1600. In a joint report prepared by the experts called on this issue, Mr Taylor and Dr French, they agreed that if the bridge and ramps were designed to comply with AS5100 loading SM1600, all currently legal trucks would be able to access the bridge from a design load viewpoint.
181However, a note to cl 1.2 of Pt 2 of AS5100 provides that the authority with power to approve the design of the bridge may vary any of the specified loads.
182In these circumstances it seems to us that notwithstanding cll 45 and 14 of the development consent, there is a possibility that Tanlane and the Council could agree to vary the load bearing capacity, in which case Moorebank could not use the bridge for its intended purpose.
183However, this difficulty could be overcome in our opinion by specifying in the easement that any bridge constructed would have the capacity to accommodate Moorebank's trucks. The Court, in our opinion, has the power to impose such a requirement. Section 88K(3) requires the Court to specify the nature and terms of the easement but imposes no limitation on the terms which can be imposed. Thus, for example, in 117 York Street supra, Hodgson J imposed a condition on the easement requiring the owner of the proposed servient tenement to grant owner's consent to the lodgement of a development application by the plaintiff (at 522).
184In Rainbowforce supra, Preston CJ rejected the application by the defendant to impose suggested conditions on road and bridge construction as a term of the instrument creating the easement. However, he declined to do this not because of an absence of power to impose the terms but because he considered the matters in question were matters for the Council to consider on a development application (see at [206]-[209]). However, in the circumstances of the present case, where a development consent has been given containing the conditions, this problem does not arise.
185Moorebank also submitted that the design of the ramps only accommodated vehicles of lesser capacity than that contemplated by SM1600. Once again this matter can be dealt with by imposing a term that the bridge has the capacity to accommodate on/off ramps which themselves have the capacity to bear loads up to standard SM1600.
186The most significant argument raised by Moorebank against the grant of the easement was the contention that it should not be granted because it would sterilise Moorebank's land.
187It is important to bear in mind what is meant by sterilisation. At the present time, Moorebank only has access from its land to a public road (Newbridge Road) via the panhandle. The proposed easement does not affect that access at all. Moorebank's submission was that the grant of the easement would prevent its proposal to use the land for a recycling facility as it would not be able to obtain access to Newbridge Road over the Council land (the 2A land) and then to Newbridge Road via Brickmakers Drive.
188It is well established that the requirement of reasonable necessity must be considered in light of the circumstances which existed at the time of the hearing of the application: 117 York Street supra at 511; Rainbowforce supra at [82]. To some extent the submissions of each party failed to reflect this principle. Thus, Moorebank, placing reliance on the Council resolution of 15 June 2011 and letter of 14 July 2011 contended that it had no prospect of obtaining consent to the Ramps proposal whereas it would obtain consent to the Marshall plan, presumably on the basis that a different consent authority was involved. By contrast Tanlane contended that the Marshall plan had no prospects of success but that there was a real likelihood that the Ramps proposal would succeed.
189Neither approach, in our opinion, reflected the reality of the situation. So far as the Ramps proposal is concerned, although Council has given consent to the construction of the bridge over the panhandle, it has not consented to the construction of the on/off ramps. The Planning Authority has not approved the Marshall plan and by its letter of 12 October 2011 (see par [51] above) indicated it would not proceed further until it received a consent to the proposed site access works. Council by its letter of 14 July 2011 indicated it did not propose to give such consent.
190In this context, senior counsel for Moorebank correctly did not contend that the consent to the lodgement of the Part 3A development application amounted to an agreement to site access to carry out the works necessary to complete the proposal. This was consistent with the approach of the Department of Planning in its email of 12 October 2011. He acknowledged that in these circumstances Moorebank could only obtain access by way of a successful application under s 88K for an easement over that part of the Council land necessary to implement the Marshall plan. However, he made no submission as to the reason that it would be in the public interest to grant such an easement, particularly having regard to the fact that it would frustrate the Council's Development Control Plan so far as the land to the east of the panhandle was concerned.
191The evidence of the town planners is of little assistance. Mr Kennan, the town planner engaged by Moorebank, stated the land was suitable for use as a materials recycling facility due to the proximity of major roads and the presence of substantial natural buffers around the site to mitigate any potential environmental impacts. He also stated it would assist the State Government in meeting its target for reduction in material going to landfill.
192In his town planning report of 14 June 2011, Mr Kennan repeated a view he expressed in an earlier town planning report of 14 May 2010, that having regard to Council policy for the precinct, the position of the RTA regarding access to Newbridge Road for a materials recycling facility and the improbability of gaining access over land owned by the Sydney Water Board and Boral, it would be impossible for Moorebank to gain access to Brickmakers Drive other than via the Marshall plan.
193In the joint experts' report of 19 November 2010 Mr Kennan expressed the following opinion:
"3.5.4(i) The construction of the approved road bridge would preclude access to the Moorebank Land over the 18 metre wide strip of R3 zoned land as proposed in the Moorebank Part 3A Application.
(ii) A further development consent would be required to allow the construction of access ramps for use by Moorebank Recyclers with no certainty that such a consent would be forthcoming.
(iii) There would likely be significant objection from Tanlane to any Part 3A Application for a materials recycling facility on the Moorebank Land.
(iv) Construction of the approved road bridge would raise uncertainty with regard to the development of the Moorebank Land in that the approved road bridge has not been designed to accommodate the truck traffic and loads proposed as part of the Part 3A Application.
(v) The consent for the approved road bridge does not involve connection of the road bridge to Brickmakers Drive.
...
4.2.3 Mr Kennan is of the opinion the granting of the proposed easement would raise doubts with regard to the gaining of any access to the development of the Moorebank Land as proposed in the Part 3A Application. These include:
(a) From a town planning perspective, there is potential for conflict between the traffic generated by the Moorebank development and the traffic (vehicular, bicycle and pedestrian) generated by the Tanlane development. It would be preferable if there are separate access points to the Tanlane and Moorebank developments. This position is supported by the Boral Moorebank Structure Plan which seeks a separate road connection point to Brickmakers Drive for Concrete Recyclers to avoid land use conflict...
(b) The construction of the approved road bridge would raise uncertainty with regard to the development of the Moorebank Land in that it would make the granting of approval of the Part 3A Application more difficult because, as agreed, the approved road bridge and the proposed access to the Part 3A Application could not co-exist.
(c) Use of the approved road bridge for access to the residential component of the Tanlane Land would most likely result in stricter conditions being imposed on any Part 3A Approval on the Moorebank Land for a materials recycling facility in relation to hours of operation, noise levels and truck movements.
(d) Further development consent would be required to use the approved road bridge and there is no certainty that such a consent would be granted.
(e) The approved road bridge is for part of a private road with no certainty that it would, after construction, be dedicated to the Council as such a dedication would require approval from Moorebank as landowner.
(f) Landowner's consent pursuant to Clause 115 of the Environmental Planning and Assessment Regulation 2000 would be required for the lodgement of any s.96 applications to modify development consent No.1552/06 with no certainty that such consent would be forthcoming."
194Mr Kennan also expressed the view in the joint experts' report that access via the Marshall plan could be achieved. He did not elaborate on this opinion in the joint report.
195Mr Mitchell, in his town planning report of 10 September 2010, expressed the view that development of the Tanlane land would not be permitted to occur without access to Brickmakers Drive. He expressed the opinion that the Minister, in determining the Part 3A Application made by Moorebank, would mandate the use of the bridge. He contended that the construction of the road bridge would advance Moorebank's prospects of being able to use its land for a recycling facility. He repeated these views in the joint experts' report of 19 November 2010.
196One difficulty with those reports is that they were prepared prior to the resolution of Council of 15 June 2011 and letter of 14 July 2011 and thus did not take account of either the resolution or the letter.
197Mr Kennan and Mr Mitchell gave concurrent evidence at the hearing on 8 August 2011 that it would be necessary to obtain Council consent as owner to implement the Ramps proposal.
198The competing views of Mr Kennan and Mr Mitchell were summarised in this exchange which took place during the course of their evidence:
"WITNESS KENNAN: No. My fundamental is concern is that in the initial stages of this whole strategic approach that council took to the so-called Moorebank area, or the Boral Moorebank area, was to provide access to all land owners and the 2A strip of land that was rezoned to allow access in that regard was put there to access all land owners, not simply one landowner. My problem from a fundamental planning point of view, as Mr Mitchell said, is that granting an easement and if a bridge was constructed as so approved gains access to only one of those three landowners, that being Tanlane. If, as I put forward to the council right at the start of the strategic process, that any application that was lodged and therefore determined by the council should take into account access for all landowners and that hasn't occurred where the access is only for one landowner to the detriment to the others, most importantly to Moorebank, to the point where I don't think that is strategically good planning when there are other alternatives to the development of the Tanlane land other than to go across a bridge through the 2A land.
HIS HONOUR: Mr Mitchell, you are nodding. You approved with That or part of that?
WITNESS MITCHELL: If I was nodding, your Honour, I was meaning to shake my heard because I disagree with that proposition of Mr Kennan's. A consequence of the approval of the development consent, the rezoning of the Tanlane land and the development of a development consent of a subsequent subdivision would be dedication of a road system that would enable access to the other properties including the Moorebank Recyclers' land.
HIS HONOUR: Mr Kennan, do you want to comment on that?
WITNESS KENNAN: Well, no. With due respect to Mr Mitchell, that is fundamentally incorrect because if a bridge was constructed over the 2A land there isn't a way that you could also get an access to the Moorebank land without going across land adjacent to the 2A land which is zoned a different zone and is owned by the council and council hasn't given its consent to that. So that is where those other ramps that we were talking about beforehand would have to come into being because you can't physically go from the panhandle of Moorebank's land up to a bridge and then turn right. It just physically can't happen. You have to have a sweeping motion, as you shown in those diagrams at 320. Now, if the bridge was sitting in the middle of that 2A strip of land the only way that Moorebank could get access to that bridge is by the sweeping and curving underneath ramps that you were referring to before and to my mind a development consent is unlikely for those two ramps in the current state of play.
HIS HONOUR: Mr Mitchell?
WITNESS KENNAN: And also, sorry, we also need to bear in mind that the bridge that has been approved by the council doesn't connect to Brickmakers Drive. It stops short of Brickmakers Drive.
HIS HONOUR: Have you finished?
WITNESS KENNAN: Yes.
HIS HONOUR: Mr Mitchell?
WITNESS MITCHELL: The ramps that Mr Kennan is referring to are one design that would be conceptually appropriate, but there would be other designs that would be conceptually appropriate and, in fact, it would be almost certain that the designs that are there now would be redesigned in the light of a greater knowledge of the future land uses within the area. So it is not the design, it is a design. The other thing I would comment on is that Mr Kennan is correct that the road bridge doesn't link directly to -
HIS HONOUR: Brickmakers Drive?
WITNESS MITCHELL: But it links to the proposed and now being constructed street network in that area."
199The thrust of this evidence seemed to be that Mr Kennan, accepting that the initial strategic approach was to provide access to all landholders, expressed the view that the Ramps proposal would not achieve that access so far as Moorebank was concerned, because that proposal would encroach on land other than the 2A land which is zoned differently and in respect of which Council had not consented to use for the purpose of the proposal.
200Subsequently in his evidence, Mr Kennan said he had no idea what Council would do if there was an application to construct the ramps. It is not clear whether he had seen the letter of 14 July 2011 from the Council when he gave this evidence. However, he subsequently gave evidence that the letter reinforced the point he made previously that there was some doubt as to whether the proposed ramps connecting to the bridge which passed over the 7(C) land would be consented to. At a later stage in his evidence he stated that he doubted that Council would even give consent to the making of a development application for the ramps.
201In cross-examination Mr Mitchell acknowledged that the Ramps proposal required that Council give both owner's consent and development consent. He said it was possible that such consent would be given. He acknowledged that the ramps would have to be placed on environmentally sensitive land. He acknowledged that he had not seen the letter of 14 July 2011 before he gave his evidence. He was asked whether, having regard to the letter, it was highly unlikely that Council would give consent to the ramps proposal and responded that it was likely that the consent authority would give consent for the ramps and usage of the bridge in accordance with Condition 14 of the approval for construction of the bridge, but that the Council in its role as landowner may resist it. He stated that he believed Council's letter related to the Part 3A proposal and use as a material recycling facility.
202The position, in our opinion, can be summarised as follows:
(i) At the present time, having regard to the position adopted by the Council as expressed in its letter of 14 July 2011, Moorebank cannot proceed further with the Part 3A Application because it cannot obtain Council's consent to access the 2A land to carry out the work necessary to implement the Marshall plan. This is because the Planning Authority has indicated it will not proceed further until it has that consent.
(ii) Thus, for Moorebank to proceed further it will be necessary for it to obtain an easement under s 88K of the Act to construct a road on the 2A land and to use it for vehicle access, including vehicle access for trucks used in the recycling business. It is only if such an easement is granted that the Marshall plan can be taken any further. Moorebank could seek as a condition of the easement that Council provide to the Planning Authority its consent to the carrying out of the necessary works: 117 York Street supra at 522.
(iii) Having regard to the terms of the resolution of 15 June 2011 and the Council letter of 14 July 2011, Council would oppose the grant of the easement.
(iv) In any application for the grant of an easement significant questions of public interest would undoubtedly arise. Mr Kennan's view as to the suitability of the Moorebank site for a recycling facility may well be disputed in such proceedings. Further, the Court would have to take into account the fact that the grant of the easement would frustrate the Development Control Plan and at least significantly diminish the prospect of the development of the Tanlane land, in circumstances where it has at least obtained consent to a mode of access to and from Brickmakers Drive to enable such development to take place. Aligned to this, as no easement is sought over land owned by Tanlane, the Court in our opinion, would not have power to order any compensation for any loss Tanlane suffered by virtue of the imposition of the easement on its ability to develop the land. Even if this is not relevant to the public interest it will be a matter relevant to the discretion whether or not to grant an easement.
(v) Further, although Mr Kennan may well be correct as to the desirability of separate access points for the Tanlane and Moorebank development (see par 4.2.3(a) of the joint expert report set out in par [193] above), on the material available the only alternative proposal, namely, Davy Robinson Drive is not a realistic proposal.
(vi) Even if the easement over the 2A land was granted, Moorebank would still need to obtain development consent from the Planning Authority to the recycling facility on conditions acceptable to it.
(vii) Contrary to Tanlane's submission, in our opinion the position of Council expressed in the resolution of 15 June 2011 and the 14 July 2011 letter extends to the Ramps proposal. The resolution referred to both Lots 309 and 310 and stated in terms that Moorebank's proposed use was incompatible with the current planned residential and recreational use of the area.
(viii) For the Ramps proposal to be implemented, Moorebank would need to lodge a development application with Council which would require Council's consent as owner of the 7(C) and 2A land. Mr Mitchell acknowledged that Council may decline to give such consent. In our opinion it is extremely likely that Council will decline to grant it.
(ix) If Council decided to reject the development application under cl 51(1)(b) of the Regulations under the EPA Act and refused to review that decision under s 82A of that Act, then Moorebank's only option would be to seek an easement under s 88K over the 7(C) and 2A land. The grant of an easement of this nature would not affect the access to Brickmakers Drive by occupiers of land to the east of the panhandle, but there may be public interest considerations in granting an easement over the environmentally sensitive 7(C) land. If such an easement was granted, a condition that the Council grant owner's consent to the development application could be imposed. Moorebank would then need to lodge a development application. If Council rejected the development application Moorebank could have a right of appeal to the Land and Environment Court under s 97 of the EPA Act.
(x) If Council rejected the development application lodged without consent under s 80(1)(b) of the EPA Act or there was a deemed refusal for lapse of time under s 82(1) of that Act, Moorebank could appeal to the Land and Environment Court under s 97 of the EPA Act. That Court is entitled to exercise the powers and discretions of Council by virtue of s 39(2) of the Land and Environment Court Act 1979, including the power to give owner's consent: Sydney City Council v Claude Neon Pty Limited (1989) 15 NSWLR 724 at 732; Sydney City Council v Ipoh Pty Limited, supra at [9], [10] and [34]. The Land and Environment Court also has power, in a case where it determines to grant development consent under s 97, to provide for an easement necessary to give effect to the development (Land and Environment Court Act s 40).
(xi) As we indicated earlier Mr Kennan's principal concerns about the Ramps proposal seemed to be that it encroached on the environmentally sensitive 7(C) land and the desirability of separate access points for the Moorebank land and the Tanlane land. Mr Kennan's ultimate evidence was he doubted Council would give consent to the lodging of a development application for the ramps. Mr Mitchell by contrast stated that the Ramps proposal was the preferable option to the Marshall plan but acknowledged that Council as landowner may resist it.
203The evidence establishes, in our opinion, that at the present time Moorebank, irrespective of the grant of the easement, does not have any immediate right to access to Brickmakers Drive. The effect of the grant of the easement would put it out of Moorebank's power itself to obtain an easement from Council as a consequence of s 88K proceedings and then proceed with a development application with access to Brickmakers Drive as set out in the Marshall plan. Instead it would be left with the opportunity to take similar steps to implement the Ramps proposal, namely, to seek an easement from Council over the 7(C) and 2A land and proceed with a development proposal. The outcome in either case is uncertain. However, there is nothing to suggest that one of the courses of action has better prospects of success than the other. If anything having regard to the planning history, the Development Control Plan, the requirements in cl 14 of the development consent (see par [33] above) and the position of the RTA as evidenced by its letter of 7 April 2008 (see par [40] above), the Ramps proposal would seem to hold better prospects of success than the alternative.
204In these circumstances we are satisfied that notwithstanding the fact that the grant of the easement will deprive Moorebank of the opportunity to implement the Marshall plan, the easement is reasonably necessary for the use and development of the Tanlane land.
205It follows that the precondition to the exercise of the discretionary power under s 88K(1) to impose an easement is made out.