Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors

1 The Plaintiff is the registered proprietor of a large parcel of land abutting the Great Western Highway at Prospect, being Lot 42 in DP 771973. The adjoining parcel of land, formerly Lot 41 in DP 771973, is now the subject of Strata Plan 48268 and the Defendants are the registered proprietors of all of the twelve lots in that strata plan. For the sake of convenience I will refer, as the parties have done, to the Defendants' land as Lot 41 and to the Plaintiff's land as Lot 42. The general layout of Lots 41 and 42 is shown on sketch plan 1 which is an appendix to this judgment. 2 Although Lot 42 abuts the Great Western Highway its only access is by means of a Right of Carriageway which runs from Stoddart Road across Lot 41 ("the ROC"). The ROC was created before the registration of the strata plan which divided Lot 41 into twelve separate lots. The strata plan as registered shows that the lots within it are subject to the ROC. 3 Since 1988 the buildings on Lot 41 have been used as cold store units. Large trucks, vans and cars have gained access to the cold store units by means of a wide concrete driveway which runs along the ROC leading from Stoddart Road. 4 In late 2003, the Plaintiff began to construct on Lot 42 a development which originally comprised nineteen industrial units. Large trucks, vans and motor vehicles will require access to those units and the only means of access is along the ROC running across Lot 41. 5 The Plaintiff made a Development Application ("First Development Application") to the Blacktown City Council ("the Council") which required access to Lot 42 to be given at a point on the ROC which was clear of any obstruction ("the Original Access Point"). That application was approved ("the First Development Consent"). 6 Not long afterwards the Plaintiff realised that an additional unit could be fitted into its development on Lot 42 if access from the ROC was made at another point on the ROC ("the New Access Point"). At that point, however, were located two car parking spaces which were part of Lot 9 in the strata plan for Lot 41. 7 The Plaintiff lodged another Development Application ("the Second Development Application") with the Council for an additional unit on Lot 42, incorporating provision for access to Lot 42 at the New Access Point. The Council approved that application ("the Second Development Consent"). 8 The Plaintiff has now advanced the construction of its development on Lot 42 to the stage where a substantial building has been erected over the Original Access Point and access to Lot 42 has been constructed at the New Access Point. 9 The Defendants have threatened to fence off the two car parking spaces for Lot 9 to prevent them being encroached upon by vehicles seeking access to Lot 42 from the New Access Point. If vehicles cannot travel over those car parking spaces it will be impossible for them to enter Lot 42 from the ROC at the New Access Point. 10 By Statement of Claim filed on 16 January 2004, the Plaintiff seeks declarations to the effect that the registered proprietor of the car parking spaces for Lot 9 holds title subject to the ROC and that the proprietor of that lot is not entitled to use the car parking spaces in any way that creates a substantial interference with the use of the ROC for the benefit of Lot 42. The Plaintiff seeks an injunction accordingly. 11 The Defendants, by their Defence, say that the use of the ROC by the Plaintiff for access to Lot 42 at the New Access Point is not a reasonable use of the ROC because access to Lot 42 can reasonably be obtained from the ROC at the Original Access Point. Accordingly, they say, use of the Lot 9 car parking spaces is not a substantial interference with the Plaintiff's use of the ROC. 12 Further, by way of Defence, the Defendants say that the ROC does not apply to the Lot 9 car parking spaces, by virtue of the provisions of s.28 of the Environmental Planning and Assessment Act, 1979 (NSW) (" EP&A Act "), and clause 26 of the Blacktown Local Environment Plan ("Blacktown LEP") because the car parking spaces were created pursuant to a Development Consent for the strata plan subdivision of Lot 41 which required those car parking spaces to be located in the ROC. 13 Finally, by way of defence, the Defendants say that the access to Lot 42 from the New Access Point is not a reasonable use of the ROC because of adverse water discharge onto Lot 41 which will be created thereby and which would not occur if access were granted to Lot 42 at the Original Access Point. 14 By their Cross Claim, the Defendants repeat the matters in their Defence. In addition, they say that the development of Lot 42 has significantly changed surface levels on that lot so as to divert storm water surface flow originating on Lot 42 onto Lot 41 whereby Lot 41 has effectively lost the benefit of an easement to drain water which it has. The Defendants seek:

• a declaration that the discharge of additional storm water surface flow from Lot 42 to Lot 41 constitutes a nuisance;

• injunctions, negative and mandatory, for the purpose of abating the apprehended nuisance from excess water flow onto Lot 42.

i) what usage of the ROC is within the terms of the grant;

ii) whether the title to the Lot 9 car parking spaces is still subject to the ROC having regard to the various development consents which have been given both in respect of Lot 41 and Lot 42 and to the provisions of s.28 EP&A Act and cl.26 Blacktown LEP;

iii) whether the construction by the Defendants of a fence or barrier to protect the Lot 9 car parking spaces would be a substantial interference with the Plaintiff's enjoyment of the ROC;

iv) as a corollary to issue (iii) whether the Plaintiff's insistence on access to Lot 42 from the New Access Point is an unreasonable use of the ROC having regard to:

• the possibility of access at the Original Access Point;

• the effects on storm water surface flow onto Lot 41;

v) whether the development constructed on Lot 42 will cause a nuisance to Lot 41 by reason of the effects of storm water surface flow and, if so, whether injunctive relief should be granted.

16 Sketch plan 1 in the appendix to this judgment shows the location of the ROC in relation to Lots 41 and 42. Sketch plan 2 in the appendix shows in more detail that part of the ROC which is particularly affected by the Plaintiff's development. Sketch plan 1 has been adapted from the plan on p.42 of Exhibit P1; sketch plan 2 has been adapted from the plans on Fig.3 of Exhibit P3. 17 Many of the relevant facts are set out in a Statement of Agreed Facts prepared by the parties. What follows will be more intelligible if reference is made to the sketch plans in the appendix. 18 Lot 41 is a battle-axe shaped allotment which abuts and has access to Stoddart Road by way of a concrete paved driveway which runs along the 'handle' part of the allotment ("Concrete Driveway"). Lot 42 lies to the south of Lot 41 with the southern boundary of Lot 42 adjacent to the Great Western Highway. Vehicular access from the Highway to Lots 41 and 42 is prohibited by a restriction as to user created on 8 January 1988 on registration of DP 771973. 19 The Concrete Driveway runs from Stoddart Road to the southern boundary of Lot 41 where it adjoins Lot 42 and then turns to the east at 90º and runs for a distance of approximately 70 to 75 metres along part of the common boundary between Lot 41 and Lot 42 ("the Dog Leg Section"): see sketch plan 1. 20 Until 26 May 1998 both Lots 41 and 42 were owned by a third party, Vajesu Pty Ltd. By Notice of Determination No. 5847 dated 5 June 1987, the Council granted Development Consent for the use of all of the present factory and warehouse buildings on Lot 41 which are together known as Prospective Cold Stores ("the Cold Store Buildings") as cold stores and a wholesale meat distribution centre. The Council's conditions of Development Consent required a minimum of 119 off-street car parking spaces on Lot 41. 21 On 26 May 1988, Lot 41 was transferred by Vajesu Pty Ltd to Cold Store System Pty Ltd and J.A. Daley. 22 On 23 November 1989, DP 648246 was registered and created a right of carriageway over the site of the existing Concrete Driveway appurtenant to Lot 42 and burdening Lot 41. This is the carriageway now referred to as the ROC. 23 In 1991, Development Application SA-91-57 was made to the Council for the subdivision of Lot 41 into eleven strata lots which comprised the eleven cold store units in the Cold Store Buildings. By Notice of Determination No. 9538 dated 30 April 1991, the Council granted development consent to that strata subdivision. The consent required the subdivision to be in accordance with drawing number 16161 (Sheet 1-4) dated 17 January 1991, which, amongst other things, provided for 119 strata car parking spaces shown in locations noted on the drawing. 24 By letter to John Bowen & Co dated 5 March 1993 the Council amended Development Consent 5847 relating to Lot 41 by imposing a condition requiring 130 off-street car parking spaces to be provided on Lot 41. On 22 December 1993 the Council certified the strata plan for Lot 41 and that strata plan was registered as Strata Plan 48268 on 28 June 1995. Approximately sixteen strata car parking spaces provided for in that strata plan lie wholly or partly within the ROC and the Concrete Driveway. 25 On 17 April 2003, the Council, by Notice of Determination 02-4583 dated 17 April 2003, granted development consent for the construction of nineteen industrial units on Lot 42. This consent has been referred to as the First Development Consent. The First Development Consent provided for vehicular access to Lot 42 at a specific point near the western end of the Dog Leg Section of the ROC, i.e. the Original Access Point: see sketch plan 2. 26 A document entitled "Field Access Study" prepared by the Plaintiff's architects prior to the Plaintiff obtaining the First Development Consent shows two-way vehicular traffic having access to Lot 42 by way of the Original Access Point without crossing over or encroaching upon any of the ROC car parking spaces. 27 On 15 August 2003, by Notice of Modification of Notice of Determination No 02-4583, the Council modified the Development Consent for Lot 42 by granting development consent for an additional (twentieth) industrial unit on that lot and by granting consent to the alteration of the vehicular access point to Lot 42 from the Original Access Point to a new access point directly opposite the battle-axe section of the Concrete Driveway from Stoddart Road, i.e. the New Access Point: see sketch plan 2. 28 Vehicular traffic having access to and egress from Lot 42 by means of the New Access Point will travel through and across the two Lot 9 car parking spaces which are two of the ROC car park spaces provided for in the strata plan certified by the Council on 22 December 1993. 29 On the registration of DP 771973 on 8 January 1988 an "easement to drain water 3 wide" (sic) appurtenant to Lot 41 and burdening Lot 42 was created on Lot 42 running along its western boundary ("the Easement to Drain Water"): see sketch plan 1. 30 Prior to May 2003, surface levels on Lot 42 were generally lower than those on the adjoining parts of Lot 41 and the land of Lot 42 generally sloped away from the adjoining parts of Lot 41 to the north and to the east. There is a storm water drainage pipe and culvert under the Great Western Highway road reserve which carries storm water flows from a collection area to the south-west of the Great Western Highway onto, amongst other things, the road reserve adjacent to the southern boundary of Lot 42 ("the Highway Drainage Flows"). The prevailing surface levels on and surface slopes of Lot 42 before May 2003 were such that the Highway Drainage Flows would, in the event of a significant storm event, pass over Lot 42 onto another site to the east of Lots 41 and 42. 31 Since May 2003, the Plaintiff has carried out significant earthworks and building work on Lot 42 which have significantly changed its surface levels and changed its slope. The surface levels on the Concrete Driveway on Lot 42 adjacent to the car parking spaces on the ROC are now generally lower than the adjacent parts of Lot 42. 32 I should record that on the morning of the second day of the trial I had a view of Lots 41 and 42 together with the parties' legal representatives. I found the view to be particularly helpful, especially in understanding how access to Lot 42 could be gained by large vehicles such as semi-trailers, both at the Original Access Point and at the New Access Point. As it happened, at the time of the view, a semi-trailer was in the Dog Leg Section in the ROC, where a number of cars were parked in the car parking spaces. The semi-trailer was backing into a loading bay in one of the cold stores on Lot 41. It was instructive to see what space was available to effect the manoeuvre within the Dog Leg Section and how the manoeuvre was managed.

What usage of the ROC is within the terms of the grant

33 The ROC, as it is presently conformed, was created by the grant of "a right of carriageway variable width" , effected by registration of an instrument under s.88B Conveyancing Act 1919 (NSW) on 23 November 1989. In accordance with Schedule 4A Part 1 Conveyancing Act the terms of the grant are: "Full and free right for the body in whose favour this easement is created, and every person authorised by it, to go, pass and repass at all times and for all purposes with and without animals or vehicles or both over the land indicated herein as the servient tenement." 34 A right of carriageway may not be used for a purpose prohibited by the terms of the grant or beyond the contemplation of the parties to the grant as ascertained from the terms of the grant construed in the light of the circumstances pertinent to the grant as they existed at the time of the grant: see e.g. Gallagher v Rainbow (1994) 179 CLR 624, at 640-641. 35 The pertinent circumstances existing at the time of the grant may be summarised thus:

• the only vehicular access to Lots 41 and 42 was from Stoddart Road, along the Concrete Driveway passing over the ROC;

• since 1987, Lot 41 had been used for an industrial purpose, i.e. cold stores, and heavy trucks, vans and motor cars had been passing over the Concrete Driveway for that purpose;

• Lot 42 was vacant land but was clearly intended to be used for industrial purposes;

• the width of the ROC and its configuration in the Dog Leg Section, with part of the ROC running along the northern boundary of Lot 42, indicates that it was contemplated at the time of the grant that Lot 42 would be used for industrial purposes such that access thereto would be available to heavy vehicles, vans and cars, and could be gained at a convenient point of entry somewhere along the ROC running along the northern boundary of Lot 42. 36 I am satisfied that the use to which the Plaintiff presently intends to put the ROC generally is not outside the terms of the grant. In the end, I do not think that there was much debate between the parties on this point. The real issue focused on precisely where the Plaintiff was entitled to have access to Lot 42 from the ROC: at a point of its own choosing, regardless of the inconvenience caused to the owners of Lot 41, or at a point which had minimal inconvenience to the owners of Lot 41 having regard to their existing use of the ROC.

37 On the morning of the first day of the trial Mr Cotman SC, who appears with Mr Glasson of Counsel for the Defendants, indicated that he intended to rely on a defence founded upon s.28 EP&A Act , clause 26(1) Blacktown LEP and the terms of the development consents given by the Council to the strata plan subdivision of Lot 41. The nature of the defence is summarised in paragraph 12 above. For the sake of brevity, I will refer to this defence as "the s.28 Defence". 38 Mr Officer QC, who appears with Mr Hennessy of Counsel for the Plaintiff, objected on the ground that the s.28 Defence should have been pleaded and that leave to amend the defence at such a late stage should be refused. In the course of argument, however, it emerged that before the Plaintiff commenced these proceedings the Plaintiff's solicitors had been well aware that the s.28 Defence could be raised and they had advised the Plaintiff accordingly, suggesting that the Defendants' solicitors might not become aware of the defence. By a bizarrely ironical mistake, this very advice was sent to the Defendants' solicitors, doubtless prompting Mr Cotman to raise the s.28 Defence at the commencement of the hearing. 39 For reasons set out in a separate judgment given on 24 May 2004, I granted leave to the Defendants to amend in order to raise the s.28 Defence. They did so in the following terms: "14A In further answer to paragraph 27 of the Statement of Claim, the Defendants are entitled to use the strata car spaces for the parking of cars, because the right of way does not apply to the said strata car spaces, by reason of the operation of Sec 28 Environmental Planning and Assessment Act and Cl 26 Blacktown LEP. Particulars The strata spaces were created by an application for development consent and the grant of consent by Blacktown Council of 30 April 1991 to strata sub-divide Lot 41 and the approval of application under sec 102 of the Act to a variation of the said consent by the creation of inter alia car parking spaces in accordance with a plan which located the said spaces within the area of the right of way." 40 Because the arguments of both Counsel on the s.28 Defence changed ground somewhat at several points, at the conclusion of the hearing I asked both sides to prepare written submissions encapsulating their final positions. They did so and it is to these written submissions that I have regard as defining the parties' respective arguments on the point.

41 Section 28 EP&A Act relevantly provides: " Suspension of laws etc by environmental planning instruments

(1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision. …"

"Environmental planning instrument" is defined in s.4 EP&A Act as including a local environmental plan. The parties do not dispute that the Blacktown LEP is an "environmental planning instrument" for the purposes of s.28. 42 Clause 26 of the Blacktown LEP provides: "(1) For the purpose of enabling development to be carried out in accordance with this plan (as in force at the time the development is carried out) or in accordance with a consent granted under the Act, the operation of any covenant, agreement or instrument imposing restrictions on development, to the extent necessary to serve that purpose, shall not apply to the development.

(2) Nothing in the subclause (1) shall affect the rights or interests of the council under any registered instrument.

(3) Pursuant to section 28 of the Act, before the making of this plan, the Governor approved of subclauses (1) and (2)." 43 The parties do not dispute that the ROC in the present case is a "covenant … imposing restrictions on development" within the scope of clause 26(1) since the rights created thereby have their source in an agreement or covenant and those rights, of their nature, must impose restrictions on the way in which Lot 41 can be developed: see Doe v Cogente Pty Ltd (1997) 94 LGERA 305, at 317 per Cowdroy AJ. 44 Likewise, the parties do not dispute that, generally speaking, a development consent under Part 4 EP&A Act - or perhaps more correctly, a notification of a development consent in accordance with s.81(1) EP&A Act - may be an "instrument imposing restrictions on development" within clause 26(1). 45 I think that the latter concession is rightly made. According to ordinary English usage, an instrument is "a formal legal document whereby a right is created or confirmed or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form" : Shorter Oxford English Dictionary, adopted by French J in Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284, at 299-300. A notification under s.81(1) EP&A Act is a formal document required by the Act and it confirms or records a fact, namely, how and upon what terms a council has made a determination of a development application. Further, the notification may "impose restrictions on development" because it may either record a decision to refuse the development entirely or else to consent to the development subject to conditions: s.80(1). Accordingly, the notification may "impose restrictions on development", so as to qualify as an "instrument" under clause 26(1). 46 The consequence of the foregoing concessions by the parties is that, as a matter of legal principle, under clause 26(1) of the Blacktown LEP a development consent granted under the Act may make inoperable to the extent necessary to serve the purpose of that consent not only the ROC, as a "covenant" within the meaning of clause 26(1), but also another earlier development consent, as an "instrument" within the meaning of clause 26(1). 47 In the particular circumstances of the present case, however, Mr Cotman says that the development consents given by the Council in respect of the Plaintiff's development on Lot 42 are not "instruments imposing restrictions on development" within the meaning of clause 26(1) Blacktown LEP. I will come to his submissions in this respect shortly.

48 The Defendants rely upon the following facts and circumstances. 49 By Notice of Determination No.9338 dated 30 April 1991 the Council gave consent to a development application for the strata subdivision of Lot 41 into eleven industrial units. Condition 3 of that notification required "compliance with the requirements of a Notice of Determination No.5847 dated 5 June 1987 for Wholesale Meat Distribution Centre". Notice of Determination No.5847, which was clearly a consent to the use of Lot 41 for a specified purpose required, inter alia, as a condition of the consent that development take place generally in accordance with specified drawings (Condition 3) and that a minimum of 119 street car parking spaces be provided on Lot 41 (Condition 11). 50 By letter dated 5 March 1993, Council granted amendments to the Notice of Determination No.5847: a drawing identified as Drawing Number 16161/11 was added to the drawings specified in Condition 3, and Condition 11 was replaced with a condition requiring 130 off-street car parking spaces to be provided. 51 Drawing 16161/11 shows the two Lot 9 car parking spaces located on the ROC in the positions which they presently occupy, together with other car parking spaces on the Dog Leg Section of the ROC along part of the northern boundary of Lot 42. The location of the car parking spaces on the Dog Leg Section still leaves a considerable portion of the ROC along the northern boundary of Lot 42 free to provide access to Lot 42. 52 The Defendants submit that the amended strata subdivision consent of 5 March 1993, which incorporated the consent to the use of Lot 41, was a "consent granted under the Act" within Clause 26(1) of the Blacktown LEP and that it made inapplicable to the car parking spaces to be located on the ROC the rights of way over those car spaces conferred on the dominant tenement owner. Accordingly, since March 1993 the owner of Lot 42 has had no right to use the ROC in such a way as to pass over the car parking spaces located in accordance with the strata subdivision consent. That position obtains, the Defendants say, so long as the strata subdivision consent remains in force. 53 The Plaintiff points to the fact that the Defendants, in paragraph 14A of their Amended Defence, rely for the s.28 Defence on the effect of the strata subdivision consent granted on 30 April 1991, as subsequently varied by the consent of 5 March 1993. The Plaintiff says that such consent was only for the subdivision of Lot 41 into strata lots; it was not a consent to use any part of the ROC as car parking spaces. The fact that a subdivision consent requires one to comply with the terms of a use consent, says the Plaintiff, does not mean that there is any conflict between the ROC on the one hand and the Defendants' ability to subdivide on the other hand, so that Clause 26 of the Blacktown LEP has no work to do. 54 Further, the Plaintiff says that even if the strata subdivision consent made the ROC inapplicable to the car parking spaces located thereon the Plaintiff's Second Development Consent, by force of Clause 26(1) Blacktown LEP, varied the strata subdivision consent to the extent that it made inapplicable to the development on Lot 42 whatever rights to use the Lot 9 car parking spaces blocking the New Access Point had been granted by the strata subdivision consent. 55 The Defendants' response to the latter submission is that s.28 EP&A Act and Clause 26(1) Blacktown LEP relevantly operate to affect only such restrictions as burden the land the subject of a development consent. In the present case, the land the subject of the Second Development Consent is Lot 42 but the land burdened by the relevant restrictions, i.e. the strata subdivision consent requiring the location of car parking spaces, is Lot 41.

56 The EP&A Act , in so far as it regulates the use of land in New South Wales, takes precedence over the rights of use which may be afforded under the Real Property Act 1900 (NSW), the Conveyancing Act or the general law. This is because the EP&A Act is "concerned with land as a topographical entity, indifferently to its proprietorship" : Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446, at 449. Section 28 "is designed to facilitate development and to overcome impediments placed on development so as to avoid sterilisation of land and it recognises that the ultimate regulatory provisions in relation to the carrying out of development lie in the [EP&A] Act" : Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning & Anor (1996) 90 LGERA 341 at 348 per Pearlman J. 57 Accordingly, a provision in a local environment plan or in a development consent may prevail over restrictive covenants or other private rights so as to render them pro tanto inoperative: see Doe v Cogente (supra) at para.14 and the authorities there cited. 58 In my opinion, the Defendants are correct in their submission that the strata subdivision consent, as amended by the further consent given on 5 March 1993, was a consent which, by virtue of Clause 26(1) Blacktown LEP and s.28 EP&A Act , rendered inapplicable the rights afforded to the owner of Lot 42 over such parts of the ROC as were designated as car parking spaces in Drawing Number 16161/11. 59 The strata subdivision consent was predicated on the continued use of Lot 41 for the purposes approved in the Development Consent dated 5 June 1987, No 5847. The Council required that, if the land were to be subdivided by strata plan so as to create exclusive rights of ownership and occupation in individual parcels within Lot 41, nevertheless, consistently with the permitted use of the whole of Lot 41, there had to be a certain number of permanent car parking spaces located in certain designated places. The right of a strata lot owner to park a car permanently in a designated place on the ROC in Lot 41 is inconsistent with the right of the owner of Lot 42 to have access without obstruction over that part of the ROC. The rights of the owner of Lot 42 in respect of the ROC must, therefore, be regarded as inapplicable pro tanto, for such time as the strata subdivision consent, as amended on 5 March 1993, remains in effect. 60 The question then arises whether the strata subdivision consent and the pro tanto suspension of rights under the ROC remained unaffected by the Second Development Consent. In my opinion, the submission of the Plaintiff in this regard is correct. 61 The Second Development Consent, in so far as it required access to Lot 42 at the New Access Point, was inconsistent with the conditions of the strata subdivision consent which required two car parking spaces for Lot 9 to be located on the ROC at that place. The rights in respect of those car parking spaces created by the strata subdivision consent have, therefore, been made inapplicable for such time as the Second Development Consent remains in force. 62 I am unable to accept the Defendants' submission that s.28 EP&A Act and Clause 26(1) Blacktown LEP operate only upon restrictions burdening the land the subject of the development consent. There is no such express limitation either in s.28 or in Clause 26(1). On the contrary, the section and the clause are expressed in general terms: "a regulatory instrument" and " an y instrument imposing restrictions on development" . There is no warrant for reading into those general words the limitation suggested by the Defendants. 63 Indeed, as the evident intention of the Act and the LEP is "to facilitate development and to overcome impediments placed on development" (see Coles Supermarkets supra) and as the Act is concerned with planning, not proprietorship, there is every reason not to restrict the operation of s.28 and Clause 26 by limiting the restriction to be overcome under those provisions to one which is imposed directly only upon the land to be developed. In my opinion, Clause 26(1) may operate upon any covenant, agreement or instrument as long as the rights arising thereunder have the effect, unless modified, of restricting the development for which the consent is to be given. 64 What has happened in the present case may be summarised thus:

• the ROC, when created, gave to the owner of Lot 42 the rights of access afforded by the grant, in accordance with the general law;

• the strata subdivision consent rendered inapplicable the rights under the ROC to pass and re-pass over the spaces on the ROC designated in the strata plan as car parking spaces;

• the rights under the ROC to pass over those spaces could be revived if the strata subdivision consent terminated, which is why the relevant lots on the strata plan showed that they were still subject to the ROC;

• the strata subdivision consent was itself made inapplicable as far as the car parking rights created thereunder were concerned, by the Second Development Consent. The Second Development Consent was not itself the source of a newly created right in the Plaintiff to have access at the New Access Point; rather by removing the restrictions created by the strata subdivision, the Second Development Consent restored to the Plaintiff, as owner of Lot 42, such rights as it had under the general law to use the ROC to gain access to Lot 42.

65 There is no doubt that the access which is necessary for a nineteen unit development on Lot 42 may be gained from the Original Access Point. The reason that the Plaintiff wishes to gain access from the New Access Point is that the Plaintiff will thereby be able to fit another unit into the development on Lot 42. 66 It is established beyond doubt that the grant of a right of way is not to be regarded as equivalent to granting ownership to the dominant tenement owner of the land on the servient tenement over which the right is created. Accordingly, where a right of way affords access to the dominant tenement along the whole or a substantial part of the boundary between the dominant tenement and the servient tenement the grant does not give the dominant tenement owner the right to gain unlimited access to the dominant tenement from every point along that boundary, unless the terms of the grant so provide expressly or by implication arising from the circumstances at the time it was made. Absent such an unlimited right of access by grant, express or implied, the dominant tenement owner only has such right of access from the right of way along the boundary as is reasonable for the use and enjoyment of the dominant tenement having regard to all relevant circumstances: see Clifford v Hoare (1874) LR 9 CP 362; Pettey v Parsons [1914] 2 Ch 653; Saggers v Brown (1991) 2 BPR 9329; Butler v Muddle (1995) 6 BPR 13,984 . 67 When ascertaining what access is reasonable for the use and enjoyment of the dominant tenement "the mere fact that the [dominant tenement owners] have deliberately designed their building in a certain way to make the best use of their land and so have great problems if they cannot enjoy the access that they now need is not the dominant consideration …. I think the test really is … that it cannot be reasonable for the [dominant tenement owners] to appropriate the [servient tenement owners'] land and really use it without the [servient tenement owners'] consent as if it were their own" : per Young J (as he then was) in Butler v Muddle (supra) at 13,986.

68 The Plaintiff submits that access to Lot 42 at the New Access Point is a reasonable use of the ROC for the following reasons:

• the New Access Point is situated at the top of the 'axe handle' of the ROC and no doubt was in the contemplation of the parties at the time of the grant as being the most obvious entry point to Lot 42;

• the New Access Point does not require, as the Original Access Point did, that vehicles negotiate their way through car parking spaces on either side of the ROC;

• the traffic report accompanying the original development application to the Council indicated that while access to Lot 42 from the Original Access Point was feasible, it was substandard or marginally satisfactory, had difficulties with access and negotiation between car parking spaces, and was recognised as having those difficulties by the Council itself;

• the New Access Point avoids these difficulties and in addition results in a further unit being available on Lot 42, which is a manifestly reasonable basis for changing the Original Access Point;

• it is manifestly reasonable for the Plaintiff to seek access at the New Access Point in order to add another unit to the development;

• the Council has recognised the reasonableness of the New Access Point by granting the Second Development Consent. 69 The Defendants submit that access to Lot 42 from the New Access Point is not a reasonable use of the ROC for the following reasons:

• the Plaintiff chose the Original Access Point as providing reasonable access and made submissions to the Council in favour of the First Development Consent on that basis;

• the Original Access Point does, in fact, provide reasonable access to Lot 42;

• the Plaintiff's decision to seek the Second Development Consent was made in order to improve further the profitability of its development on Lot 42;

• the Plaintiff's choice of the New Access Point was made with knowledge that the two Lot 9 car parking spaces on the ROC would have to be displaced;

• the displaced Lot 9 car parking spaces, which have been located in their present positions for many years, cannot adequately be accommodated elsewhere on the ROC - they will, in effect, be lost and the owners of Lot 9 will have had their proprietary rights unnecessarily diminished;

• the Plaintiff purchased Lot 42 with knowledge of the provisions of the strata plan as they affected the ROC;

• the Plaintiff should not be able to change the rights of others, to which it comes with knowledge, when other reasonable access is available to Lot 42 at the Original Access Point.

70 In my opinion, to insist on access to Lot 42 from the New Access Point is not a reasonable use of the ROC. My reasons are as follows. 71 First, the terms of the ROC, construed in the light of circumstances at the time of grant, give no real assistance in resolving the problem. All that one can derive from the grant, so construed, is that the dominant tenement is to have the use of the ROC to gain such access as is reasonable having regard to the probability that, in time, Lot 42 would be developed for industrial purposes. 72 Second, the essence of the Plaintiff's argument, as Mr Officer agreed (T123.32-.39) is that the Defendants have no right to preclude the choice to the Plaintiff as to where its access will be along the ROC; in other words, the Plaintiff may choose for itself at which point on the ROC it wants to have access to Lot 42. As I have indicated in paragraph 66, this is not the law. The dominant tenement owner is not entitled to such access as he chooses: he is entitled only to such access as is reasonable in the circumstances. 73 Third, it is clear that reasonable access to Lot 42 for the purposes of the Plaintiff's development comprising nineteen units can be afforded at the Original Access Point. An expert traffic report prepared in December 2002 and provided by the Plaintiff to the Council in support of its First Development Application concluded that access from the Original Access Point to Lot 42 was satisfactory. 74 The report then referred to a "constriction point" on the ROC where, because of car parking spaces located on the ROC, the width between the spaces through which vehicles could pass was 5.72m. The Plaintiff has made much of the difficulties caused by this "constriction point" in submitting that the Original Access Point is far less practicable and convenient than the New Access Point, so that the New Access Point constitutes a reasonable use of the ROC by the Plaintiff. 75 I think that the difficulties said to arise from the "constriction point" have been greatly exaggerated. The Plaintiff's traffic report prepared in support of its First Development Application said this about the "constriction point" : "It is noted that in one small section over a distance of some 3.0 metres in total the width available between parking spaces denoted on the strata plan reduces to 5.72 metres (although these spaces are not utilised for parking as denoted on the Strata Plan). The total length of the right-of-way is some 270 metres and the fact that 'legally' the right-of-way is limited to 5.72 metre width for some 1% of the right-of-way length is a totally insignificant issue. If cars were parked in the prescribed bays then another 0.5 metre clearance would be available each side (ie 5.5 metre bay with 4.5 metre long car). The fact is that cars and LRV's can turn concurrently on the bend in the right-of-way and the point of constraint (between the parking bays) is located where adequate sighting is available (given the very limited speed of vehicles in these circumstances). … It is quite apparent that large vehicles use the right-of-way at present and the very limited volume of trucks associated with the proposed development is such that the extremely minor constraint on the right-of-way will not result in any unsatisfactory traffic implications." 76 The Plaintiff procured another traffic report from its expert, Mr Hewitt, for the purpose of these proceedings. Mr Hewitt's report does not say that access to Lot 42 from the Original Access Point is impossible, unreasonable or unsatisfactory: all that he says is that it is "marginally satisfactory" . 77 My view of the site reassures me that I should accept the assessment appearing in the traffic report prepared by the Plaintiff's expert in support of the First Development Application. As I have noted in paragraph 32 above, I was able to see a semi-trailer manoeuvring within the ROC in a position approximately where the "constriction point" is located. I am satisfied that the Plaintiff's traffic report in support of the First Development Application is correct in concluding that "the extremely minor constraint on the right of way will not result in any unsatisfactory traffic implications" . 78 Fourth, it is clear that, while access to Lot 42 from the New Access Point is certainly more direct than through the Original Access Point, the Plaintiff seeks to use the New Access Point primarily because it will allow an additional unit to be fitted into the development on Lot 42. Its submissions made no secret of that fact. However, as Young J said in Butler v Muddle (supra), the desire of the Plaintiff to make the best and most profitable use of its land is not the dominant consideration when the Court is assessing what is a reasonable use of a right of way. The Court takes into account all the relevant circumstances, which include the impact of the proposed use on the owner of the servient tenement as well as on the owner of the dominant tenement. 79 The Defendants were not acting unreasonably in locating the Lot 9 car parking spaces in their present positions on the ROC at the time that the Council's approval to the strata subdivision of Lot 41 was sought. Lot 42 was then vacant, so that there could have been no interference at all with the access rights of the owner of Lot 42 in placing car parking spaces on the ROC in the positions located on the strata plan. There is no evidence that the Lot 9 car parking spaces have not been used regularly or are not required by the occupiers of Lot 9. If the Plaintiff's use of the New Access Point is confirmed, the Defendants will now either have to move the two Lot 9 car parking spaces somewhere else on Lot 41 or lose them. 80 It is said by the Plaintiff that the Lot 9 car parking spaces can be moved so as to be adjacent to the car parking space for Lot 5 on the ROC: see sketch plan 2. A joint report prepared by the experts retained by the Plaintiff and the Defendants on the evening preceding the last day of the trial and tendered on the last day of the trial showed that an articulated truck 16.9m or 19m long cannot turn left from the ROC into the laneway giving access to the southern part of Lot 41 if an y car parking spaces are located adjacent to Lot 5, including the existing Lot 5 car parking space: see sketch plan 2. A 12.5m long rigid truck can make the turn with the existing Lot 5 car parking space in place as well as if the Lot 9 car parking spaces are moved to a position adjacent to the Lot 5 space. In short, the opinion of the two experts is that moving the Lot 9 car parking spaces adjacent to the Lot 5 car parking space would not have any increased impact on the negotiability of the turn from the ROC into the laneway. 81 However, Mr Officer concedes that the Defendants are not able simply to move the Lot 9 car parking spaces themselves: they would have to obtain an amendment to the strata plan for Lot 41 to which the consent of the Council would be required. 82 I must take into account that although the experts of the parties have produced a somewhat rushed report as to the effects of moving the car parking spaces, there is no evidence that the Council would agree with their conclusions or would agree to the amendment of the strata plan in the manner suggested by the Plaintiff. There is force in the Defendants' submission that there is already some difficulty for large trucks to negotiate the turn into the laneway with the Lot 5 car parking space in its present position and there is a risk of increasing that difficulty if additional car parking spaces are placed there. My own observations of the site support this concern. 83 Further, I must bear in mind that the expense of procuring the consent of the Council to the relocation of the car spaces and the amendment to the strata plan would fall on the Defendants: there was no offer by the Plaintiff to indemnify the Defendants in respect of this cost. 84 In all of the circumstances, I do not think that it is reasonable for the Plaintiff to cast upon the Defendants the risk and expense of procuring an amendment to the strata plan so as to locate the Lot 9 car parking spaces or else lose them altogether. 85 Fifth, I take into account that the Plaintiff, as a developer of a large development, must have made the appropriate title searches of Lots 41 and 42 before determining in January 2003 to purchase Lot 42 for the purpose of development. The Plaintiff must have been aware, before deciding to purchase, that the ROC had car parking spaces located on it in accordance with the strata plan for the subdivision of Lot 41. When that assumption was put to Mr Officer, he did not dissent from it. 86 The position is, therefore, that the Plaintiff must have made up its mind that it could purchase Lot 42 and carry out its proposed development using the ROC in such a way as would not disturb the car parking spaces already located upon the ROC. This is confirmed by the fact that the Plaintiff's First Development Application sought an access point which did not interfere with the Lot 9 car parking spaces at all. 87 Sixth, I take into account that the Plaintiff has now carried out substantial work on the development upon the basis that it is entitled to entry to Lot 42 from the New Access Point. It has constructed an entry drive at that point; it has built a unit, Unit 16, over the site of the Original Access Point and, in November 2003, it exchanged contracts for the sale of Unit 16. 88 On the other hand, I must take into account that by letter dated 23 October 2003, before most of the work based on the New Access Point had been carried out, the Defendants' solicitor wrote to the Plaintiff saying that the New Access Point was "not legally permitted by reason of the fact that it will render unusable two of the three strata car parking spaces for Lot 9 on our client's strata plan" . The solicitors advanced in that letter in substance the submissions which the Defendants have made at the trial and they gave clear notice to the Plaintiff that there would be litigation in this Court if the dispute was not resolved. 89 By letter dated 14 November 2003 to the Defendants' solicitors, the Plaintiff's solicitors required an undertaking from the Defendants that they would not seek to interfere with access to Lot 42 over the Lot 9 car parking spaces. Construction work on the basis of the New Access Point was obviously continuing during this time. 90 I am unable to regard these circumstances as lending any support to the Plaintiff's assertion that access at the New Access Point is reasonable. It seems to me that the position in which the Plaintiff now finds itself is the very position referred to by Young J in Butler v Muddle (supra), namely, the Plaintiff has a difficult problem because it has deliberately designed its development based upon access from the ROC at the point of its own choosing, regardless of the Defendants' rights, and has proceeded with construction of that design after warning from the Defendants that they would insist upon their rights. 91 As Young J observed, to allow the Plaintiff to have the benefit of having taken that position would really be to allow it to appropriate the Defendants' land and use it without the Defendants' consent as if the land were its own. 92 For these reasons, I conclude that the Defendants' insistence on maintaining the two Lot 9 car parking spaces in their existing positions on the ROC is not a substantial interference with the Plaintiff's rights to use the ROC because the Plaintiff has reasonable access to Lot 42 from the Original Access Point. It follows that the Plaintiff is not entitled to the substantive relief which it seeks, namely, orders restraining the Defendants from using the Lot 9 car parking spaces on the ROC in such a way as to prevent access to Lot 42 from the New Access Point. The Defendants' Cross Claim does not seek a declaration that access to Lot 42 from the New Access Point constitutes an unreasonable use of the ROC by the Plaintiff, but I would be prepared to make a declaration to that effect to resolve the principal issue which has been fully debated in these proceedings.

93 By their Amended Cross Claim the Defendants allege that the Plaintiff has created a nuisance by altering the levels of Lot 42 as they were prior to the development so that excess storm water, which would previously have flowed over Lot 42 or which would have been collected in a drainage easement running along the western boundary of Lot 42, will now flow onto Lot 41. The Defendants assert that they have thereby lost the benefit of the drainage easement on Lot 42, that the risk of inundation of Lot 41 has been increased, and that they have suffered, or will suffer, loss and damage by reason of diminution in the value of Lot 41. 94 By Order made on 7 May 2004 the Court appointed Dr Ian Joliffe under Supreme Court Rules 1970 (NSW) Part 39 as Court Expert to report on the hydrology issues arising on the Amended Cross Claim. Dr Joliffe prepared two reports, a preliminary report which was made available for consideration by the parties' hydrology experts, and a final report which was tendered to the Court. 95 I should say at once that the appointment of a Court Expert in this case has proved most beneficial. The final report of Dr Joliffe was produced in a very short space of time and it has not seriously been challenged. The Court has been saved a great deal of time, and the parties a great deal of expense thereby, in having these complex technical issues clarified in this way. 96 Because the conclusions of Dr Joliffe have not really been called into question, it is unnecessary to set out at length the reasons which he gives for those conclusions. I may say, however, that I have read his report carefully and, with the benefit of a view of the site, I find it comprehensible and persuasive. I have no hesitation in accepting the conclusions to which Dr Joliffe comes. 97 In summary, Dr Joliffe concludes that:

• the drainage design for the development on Lot 42 meets the basic design requirements to cope with a one-in-one-hundred-year event;

• the design works are such that it is unlikely that any water will flow from Lot 42 to Lot 41;

• in any event, if any water from Lot 42 discharges onto Lot 41 it is likely to be at a point on the ROC near the New Access Point; however, the incremental effect of that discharge of water will not make the ROC impassable and will be unlikely to change the level of ponding of water in that position "by a measurable amount" . 98 In my opinion, the Defendants have failed to show that they have suffered any loss or damage by reason of the change in levels on Lot 42 or otherwise by reason of the Plaintiff's development works. The Defendants have failed to show that they are likely to suffer any damage in the future such as would warrant the granting of mandatory injunctions requiring the Plaintiff to alter the levels on Lot 42. The Amended Cross Claim will be dismissed.

99 For the reasons which I have given, there will be judgment for the Defendants on the Plaintiff's Statement of Claim and judgment for the Plaintiff on the Defendants' Amended Cross Claim. If so requested by the Defendants, I will make a declaration to the effect that access to Lot 42 from the New Access Point constitutes an unreasonable use of the ROC by the Plaintiff. 100 I will stand the proceedings over for a short time to enable the parties to consider these reasons and to bring in Short Minutes of Order. I will then hear argument as to costs. - oOo -

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