Owners Corporation Strata Plan 533 v Random Primer Pty Ltd

Court of Appeal (NSW)|2024-11-07|Before: Gleeson JA, Mitchelmore JA, Kirk JA, Williams J, Waddell CJ

Background

The following background is taken substantially from the primary judgment at [2]-[38]. The appellant is the registered proprietor of the land at 184 Pacific Highway, Roseville, in northern Sydney. On that land is a residential apartment building with 14 dwellings on strata title. The respondent is the registered proprietor of 186 Pacific Highway, Roseville, on which is located a two-storey building containing two residences, along with a separate carport and garage at the rear of the building. These lots were created by registration of a deposited plan in 1963 giving effect to a subdivision of a larger property into two lots. The appellant's land is Lot 2 and the respondent's is Lot 1 in the deposited plan.
After the subdivision the then owner transferred ownership of Lot 2 by a transfer also registered in 1963, which provided for the following right of way (ROW): RESERVING nevertheless to the transferors as appurtenant to the residue of the land in Certificate of Title Volume 5071 Folio 26 (being now Lot 1 in the said Deposited Plan 501158) a right of carriageway over that part of Lot 2 in the said Deposited Plan delineated "Right-of-way" (15ft wide).
Fifteen feet equates to 4.572 metres. By operation of s 181A and Part 1 of Schedule 8 to the Conveyancing Act 1919 (NSW) the ROW confers on the owner of Lot 1 (the dominant tenement): 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, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

Leave to appeal

The appellant took the position that leave to appeal was not required as it said that, consistently with s 101(2)(r) of the Supreme Court Act 1970 (NSW), the appeal involves (directly or indirectly) a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. The respondent's solicitor was initially of the same mind, indicating candidly in an affidavit that when he reviewed the notice of appeal he considered "having regard to the obvious market value of the property at 184 and 186 Pacific Highway, Roseville and the cost of the proposed development that the provisions of s 101(2)(r) were probably satisfied". It appears counsel for the respondent took a different view. The respondent filed a motion objecting to competency, doing so after the 28 days specified in r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW). That led the appellant to file its own protective notice of motion seeking to file an amended notice of appeal seeking leave to appeal.
In the circumstances of this case there is good reason to think that the assessment of the respondent's solicitor was correct and leave is not required. It is not necessary to resolve the issue. This Court has stated on numerous cases that it is generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]. The case raises issues of principle and the issues raised by the appellant are reasonably arguable. To the extent necessary leave to appeal should thus be granted. Consistently with that view, the appellant should be given leave to amend its notice of appeal so as to seek leave to appeal, and the respondent's competency motion should be dismissed.
As regards costs on this issue, on the one hand a party is entitled to raise an argument that leave to appeal is required and should not be unduly deterred from doing so. On the other hand in the circumstances of this case leave to appeal was always likely to be granted and the competency objection was in any event filed out of time. A somewhat similar situation arose in Chief Commissioner of State Revenue v Elanor Operations Pty Ltd [2022] NSWCA 222. This Court dismissed the respondent's notice of motion objecting to competency with costs, whilst also dismissing the appeal with costs. The Court held that leave was not required but in any event considered it was a case where leave would have been granted (see at [39]-[41] and [64]). The same result should follow here. The respondent should pay the appellant's costs of the competency motion.

Legal principles

One of the bundle of rights held by an owner of realty is the power to decide what is to be done on that land, including what, if any, development is to be undertaken there. The owner may exercise that power in their own self-interest. Section 23(1) of the EPA Regulation assumes the existence of that power and provides statutory consequences for its exercise. Exercise of the owner's power is subject to any applicable legal restrictions or requirements. Thus commonly any decision the owner makes to develop the land may be subject to preconditions or limitations imposed by a statutory planning regime, enacted in this State by the EPA Act and associated instruments. Exercise of the power may also be subject to private law rights of others, including if the land is subject to an easement such as a right of way.
The owner of a dominant tenement benefited by an easement may obtain relief from a court to protect its ability to exercise a right of way where actions of the owner of the servient tenement constitute a substantial interference with that right. So much has long been recognised: Clifford v Hoare (1874) LR 9 CP 362 at 371; Powell v Langdon (1944) 45 SR (NSW) 136 at 139; Finlayson v Campbell (1997) 8 BPR 15,703 at 15,709-15,711; Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599 at [92] and [96]. The test has also been expressed, somewhat awkwardly, in terms of "a real substantial interference". It is not apparent that the adjective "real" adds anything to "substantial". Indeed, in the case where that phrase was first employed the test was also just expressed in terms of "substantial interference": Pettey v Parsons [1914] 2 Ch 653 at 662 per Lord Cozens-Hardy MR, see also Swinfen Eady LJ at 665-666, Pickford LJ at 667.
Each owner has rights which must be accommodated to that of the other. In "deciding what is a substantial interference with the dominant owner's reasonable use of a right of way, all the circumstances must be considered, including the rights of other persons entitled to use the way": Saint v Jenner [1973] Ch 275 at 279. The principle was explained in pellucid terms by Barrett JA in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74: [25] It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights. …
In Powell Roper J said that whether or not an interference was substantial and thus actionable was a "question of degree to be decided in the light of the circumstances of each case" (at 139). In Middleton v Arthur [2002] NSWSC 627; (2002) 11 BPR 20,263, Palmer J similarly said as follows, in a statement quoted approvingly in Lowe at [93]: [48] What amounts to a substantial interference with the reasonable use of a right of way for the purposes of a dominant tenement is essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case. An obstruction may be small in size and short in duration but, in the light of the particular use for which the right of way is reasonably required, it may nevertheless be a substantial interference. On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the right of way is reasonably required, it may not be a substantial interference. [Citations omitted.]
The notion of "common sense" has been subject to some criticism in another legal context, relating to causation: see the discussion in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [103]-[113]. Invocation of that notion can tend to be question-begging. However, the point being made in Middleton still has force. It is consistent with "treating the issue as an evaluative question of fact to be assessed in a practical manner": Fisher at [113]. Easements involve a legal abstraction applying in very practical terms on the ground. They are not fixed in aspic: eg Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 at [36]-[37]. As explained by Barrett JA in Hare, they involve taking account of the reasonable interests of the respective owners. Whether or not there has been a substantial interference in the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference.
It has been held that for the servient owner to decline to give consent as owner to the making of a development application - where that is required by a provision such as s 23(1) of the EPA Regulation - can itself constitute a substantial interference in the rights of the dominant owner. In Kirkjian v Towers (Supreme Court (NSW), 6 July 1987, unrep) Waddell CJ in Eq explained why that was so in the following terms (at 4): It is said that by refusing their consent without any lawful reason the defendants are, in fact, obstructing the rights of the plaintiffs to use the right-of-way. This seems to me to be correct. The defendants, being the proprietors of their land subject to the plaintiffs' right-of-way, cannot, in law, be entitled to refuse to permit the plaintiffs either directly or indirectly to exercise their right to adapt the right-of-way for the purpose for which it was originally granted.
In Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, at [37], Giles JA said that an order requiring consent is "by way of enforcement of the plaintiffs' rights over the defendants' land, in effect restraining the defendants from denying the plaintiffs their rights" (his Honour was in dissent but the other two members of the Court did not express views on this point).
The issue arose in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200. Handley AJA, speaking for the Court, explained the position in these terms: [10] The servient owner's refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner's rights as a direct physical obstruction. …
The issue came up most recently in this Court in Lowe. Sackville AJA, relevantly speaking for the Court, said that "[t]he ancillary rights of a dominant owner include, where appropriate, the right to obtain the written consent of the owner of the servient tenement to the lodgement of a development application by the dominant owner" (at [97]).
It is not apparent that describing the issue in terms of a specific ancillary right to obtain written consent adds anything of utility to the legal analysis. The judgments in Kirkjian, Cameron and Sertari explain the point more directly in terms of the refusal of the owner of the servient tenement to give the requisite consent potentially itself constituting a form of interference in the rights held by the owner of the dominant tenement. To the extent that ancillary rights may be relevant in this context it is that such rights include "the right to carry out such work on the right of way site as may from time to time be reasonably necessary to create or maintain reasonable vehicular access along the right of way site": Zenere v Leate (1980) 1 BPR 9300 at 9305. The refusal of the servient owner to provide owner's consent to the making of a development application might substantially interfere with that type of ancillary development right held by the dominant owner.
Implicit in these cases is an understanding that the manner in which the dominant owner may exercise their right of way is not necessarily limited to the particular way in which it is currently being exercised. If the dominant owner's development application proposes a use which is consistent with the right of way, then for the servient owner to exercise their rights of ownership to prevent that use by declining to give owner's consent may be to interfere with the dominant owner's rights. Of course, the issue must always be considered in light of the nature of the particular rights granted and all the circumstances of the case.
In Sertari, for example, the dominant owner proposed to build 236 units on its 2 ha block of land. Access to the block was by a right of way across the defendant's land. The increased proposed use of the right of way was such an intensification of use that development consent was required for that activity on the defendant's land, thus requiring the defendant's consent to the making of the development application (see at [7]-[8]). Handley AJA said that the dominant owner "is entitled to construct improvements on the servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement" (at [9]). His Honour held that the increased usage was not excessive (at [18]). The order requiring the servient owner to give its consent was upheld.
In Lowe, after some discussion of the decision in Sertari, Sackville AJA said this: [100] … the ancillary right of the dominant owner to require the servient owner to consent to the lodgement of a development application raises two separate but perhaps related questions: (i) Is the proposed use of the carriageway by the dominant owner excessive, such that it is not authorised by the terms of the easement and is therefore unlawful? (ii) Does the proposed development by the dominant owner unreasonably interfere with the reasonable use of the servient tenement by the servient owner (or by persons entitled to a right of carriageway over the same land)?
In the present case the primary judge, unsurprisingly, referred to this statement and approached the issue accordingly (J [41(6)] and [43]). However, Sackville AJA's explanation must be understood in context and in light of the broader principle being applied.
The ultimate issue is whether the refusal of the owner of the servient tenement to give consent constitutes a substantial interference in the rights held by the owner of the dominant tenement. The issue can also be expressed in converse terms of whether the servient owner's refusal of consent was a reasonable exercise of its property rights. If it was then there would be no substantial interference in the rights of the dominant owner.
A number of considerations may throw light on the answer to the question of whether the failure to give consent is a substantial interference in the dominant owner's rights. Those considerations may include, but are not necessarily limited to, the two matters identified by Sackville AJA at [100]. It is of course relevant to identify what rights are held by the dominant owner and whether those rights encompass what is involved in the proposed development. If the use proposed in the development application is outside the scope of the right of way then to decline to consent to the making of that application cannot be a substantial interference in the dominant owner's rights.
Similarly, if the use proposed would unreasonably interfere with the reasonable use of the servient tenement by the servient owner then, again, there cannot be any such substantial interference in the dominant owner's rights by failing to consent. Such unreasonable use includes excessive use because such use "goes beyond what is authorised": Annwrack Pty Ltd v Williams (Supreme Court (NSW), Waddell CJ in Eq, 8 February 1989, unrep), BC8902584 at 12; see also Sertari at [20]; Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 at [26]-[27]. In general, unreasonable interference by the dominant owner with the reasonable use of a right of way by the servient owner will itself be outside of the scope of the rights held by the dominant owner. So much was recognised in Lowe at [101] (see also [107]). This reflects the principle that each owner has rights which must be accommodated.
Thus the two issues raised by Sackville AJA in Lowe at [100] are considerations which may, in particular cases, inform consideration of the ultimate question of substantial interference. They are not a generic test.
The issue at hand involves private law rights. Such rights are distinct from the rights and obligations which arise under statutory planning schemes: note Kirkjian at 4-5; North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 475-476; [1996] HCA 20. The EPA Act is not concerned with "the regulation of private rights of ownership but with the physical use made of, or affecting, the topographical entity of land": ibid at 481. The areas of law intersect insofar as to decline to give consent as owner, where that is required by the statutory planning scheme, is itself an exercise of the rights of ownership of the servient owner and has consequences for the rights of the dominant owner. Thus it has been recognised that courts enforcing private law rights, such as this Court, can grant injunctive relief requiring the giving of consent. However, that the property rights of the dominant owner may require the servient owner to give such consent to the making of a development application does not remove the rights of the servient owner to exercise such rights as they have under the planning regime to object to the proposed development: Annwrack, BC8902584 at 11; note also Sertari at [21]-[23]. Nor does the giving of such consent exhaust the ongoing significance of the property rights of the servient owner - a point discussed further below when addressing grounds 3-4.

Grounds 1-2: being required to drive on the respondent's property

The appellant argued that the question of whether it is obliged to provide consent "turns on both the correct identification of the work and the proper construction" of the ROW. It said that the work relevantly proposed in the DA should be characterised as a "6m wide driveway extending outside the easement onto the respondent's Lot 1, with occupants of the appellant's Lot 2 required to cross the boundary onto neighbouring land". Senior counsel for the appellant submitted that "it's almost an oxymoron to suggest that the reasonable exercise of the rights under the 15 foot right of carriageway is an obligation to agree to something which is wider".
The appellant's ultimate argument was that to require occupants of its land to drive over part of the respondent's land when exiting was outside the scope of the ROW, and thus it was not substantially interfering with the respondent's rights in declining to consent to that proposal. The point was also expressed in converse terms, saying that to require it to consent would be to interfere in its rights as servient owner because occupants on Lot 2 would no longer be able to exit driving only on the appellant's own land. A similar point was made, faintly, in terms of a proposed pedestrian pathway proposed to be built on Lot 1.
It is obviously true that the proposed building of the passing bay on Lot 1 is physically outside the ROW on Lot 2. Yet to a significant extent the appellant is seeking to have it both ways: arguing that the works proposed in the DA do involve the current driveway built on the ROW yet then saying that the proposed works go outside the scope of it. Thus on the one hand the appellant seeks to reinforce that its consent for the making of the DA for the proposed development is required whilst on the other hand it asserts that it cannot be required to give its consent because what is proposed goes outside its property and the scope of the ROW. Whilst the points might be reconciled in theoretical terms, in practice they are in substantial tension.
It is appropriate and sufficient for current purposes to accept the appellant's characterisation of the works as involving the extension of the driveway and not merely a separate development of the passing bay on Lot 1. The whole premise of this case is that the Council was correct to conclude that the proposed driveway extension did relate to Lot 2, in the sense referred to in s 23(1) of the EPA Regulation, such that the appellant's consent was required. It is necessary thus to proceed on the basis that the proposed work has implications for Lot 2 on the basis that the work is understood to be the development of a widened driveway with potential implications for how traffic enters and exits the two properties.
As explained above, the issues at hand must be assessed in a practical manner. The Council has taken the view that widening the driveway is necessary if the respondent is to build the proposed apartment building on Lot 1. The appellant in the below proceeding disavowed any suggestion that increased usage of the driveway under the proposal would be excessive so as to fall outside the ROW. What is proposed is an extension of the driveway which is practically necessary - in terms of what the Council requires - for occupants of Lot 1 to be able to exercise the ROW if the development is to proceed.
What are the practical implications for occupants of Lot 2? The appellant gave much emphasis to this passage in the primary judgment (emphasis added): [13] … The Development Assessment Report prepared by Ku-ring-gai Council in respect of the development application states that the passing bay will need to be the subject of a "reciprocal" right of way to be created burdening No. 186 for the benefit of No. 184. I infer that the Council assessed a "reciprocal" right of way as necessary because, as the defendant submitted, it is implicit in the inclusion of the passing bay in the most recent iterations of the plans that traffic on the driveway will be managed in a way that requires drivers of vehicles exiting No. 184 or No. 186 to the Pacific Highway to cross over the boundary onto No. 186 into the passing bay, from which position they will turn onto the Pacific Highway.
Her Honour was not making a finding that drivers wishing to exit the properties would only be able to do so by making use of the passing bay, thus driving in part over Lot 1. Rather, she was describing the practical effect of what is proposed. As the respondent submitted, where "vehicles are presently entering and exiting using the driveway without crossing onto No 186 then it must follow that a wider driveway would not force vehicles onto No 186". There is no apparent reason why a resident of Lot 2 could not lawfully drive down the middle of the proposed extended driveway, staying only on Lot 2. Nor is there any reason why they could not adopt the current practice, described by Mr Pavlovic, of stopping and reversing if they see a car entering the driveway from the highway. Of course, to drive down the middle would not be as convenient or safe as driving sensibly on the left, lest a vehicle wish to enter the driveway from the Pacific Highway. And it is possible that were a collision to occur then such a driver might be held to have breached a duty of care in not having chosen the safer path. Nevertheless, it was not established that such a driver would breach any law by taking such a course, nor that the proposed DA would prevent it.
Even if it were the case that there was some obligation on drivers from the servient tenement to cross slightly over onto Lot 1 when exiting, that must be viewed in perspective. Senior counsel for the appellant accepted that "what is proposed would be facilitative of people being able to come out and in [of] both sides of the land more easily and more safely". The proposal provides a benefit to occupants of the appellant's land in terms of utility and safety. The only detriment identified is an essentially theoretical one of having to drive in part over the respondent's land when exiting the premises. Like the primary judge (see J [67]), I do not accept that in practical terms the proposed use would unreasonably interfere with the appellant's rights as owner of the servient tenement. Here, even on the assumption that drivers will be required to cross slightly over into Lot 1 when exiting, the extent to which the proposal interferes with the servient owner's rights is very minor, if any.
What, then, of the appellant's argument that it cannot be required to consent to work which is necessarily outside the scope of the ROW? The attempt by the appellant to have it both ways should be seen for what it is. Approaching the issue in a practical manner, a proposed use which extends the width of the driveway slightly beyond the boundary of the ROW onto the dominant tenement cannot reasonably be characterised as a use which is outside the scope of the ROW. The proposed use conforms, in practical terms, with the terms of the grant. The Council took the position, which was not disputed in this proceeding, that the appellant's consent to the making of the DA was required. Therefore unless the appellant provides consent as owner to the making of the DA then the DA must be rejected pursuant to s 23(1) of the EPA Regulation. Thus the appellant has a right of ownership which impacts on the ability of the respondent to exercise their rights granted by the ROW. As the primary judge held, that exercise of ownership rights by the appellant in refusing to consent to the making of the DA substantially interferes with the ability of the respondent to exercise the rights granted by the easement. Because that is so the appellant can be required to provide its consent.
As regards the pedestrian pathway, this was not expressly raised in grounds 1-2 and little was said about it in submissions. It does nothing to aid the appellant's arguments. The DA, as amended in June 2023, proposes that there be a pedestrian pathway built on Lot 1 leading to the new apartment building. Landscape plans suggest there is to be a hedge planted between the pathway and the driveway, which would impede pedestrians exiting the pathway across the driveway towards the building on Lot 2. In practice, this proposed pathway would appear to be of limited use to residents of Lot 2. But there is no current separate pedestrian pathway for the benefit of residents of Lot 2. They are no worse off because a new pathway will be built on Lot 1 which is primarily for the benefit of residents of Lot 1. Residents of Lot 2 will still be able to walk up and down the driveway, just as they currently do, at their own risk with respect to cars entering and exiting the properties - save only that the widening of the driveway may be expected to reduce the safety risks of them doing so.
Grounds 1-2 of the appeal are not made out.

Grounds 3-4: the claimed ambiguity in the DA

In relation to grounds 3-4, the appellant submitted that the shortfalls and deficiencies of the DA meant that it cannot be compelled to consent to the making of the DA in its current form. The essence of the argument was that the appellant did not know to what exactly it was being asked to consent. The appellant emphasised some evidence given by the two traffic experts in the proceedings below that even the widened driveway proposed in the DA was not sufficient to comply with relevant planning requirements, and that it would be necessary in due course for the respondent to propose yet a further widening of the driveway, especially at the point of entry onto the Pacific Highway. Moreover, the appellant argued that this postulated further widening could be achieved either by extending the driveway further westwards into Lot 1 or, alternatively, by requiring the removal of certain encroachments currently placed on the ROW on Lot 2. It argued that it is "entitled to know with a degree of clarity what structures on its land will be demolished to implement the development proposal before it is asked for its consent as owner". As regards the current encroachments, it referred to authority that a dominant owner's right of way does not entitle it necessarily to have the whole strip "cleared of any obstruction as if it were a billiard table": Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 at 16,340.
The appellant also argued that once its consent to the making of the DA is given, the respondent could seek to amend the DA without the need for the appellant's consent. The respondent accepted that that was so: note EPA Regulation, s 37. The appellant also made the point that there is no obligation for the determining authority to give any weight to any subsequent objections the appellant might make.
When addressing such arguments in the Court below, the primary judge referred at [73] to the following statement by Handley AJA in Sertari (which the respondent also invoked in its submissions in this Court): [23] The management of vehicle and pedestrian traffic over the servient tenement and in the car park may well create problems, including problems of public safety, especially at peak times, but these are matters for the planning authorities. They do not affect the construction of the grant, or the question of excessive user. While the servient owner, and persons authorised by it, are also entitled to use the servient tenement, the evidence does not establish that the increased use by the dominant owner would unreasonably interfere with the reasonable use of the servient tenement by the servient owner. Accordingly the principles in Jelbert v Davis [1968] 1 WLR 589 (CA) do not assist the appellant at this stage.
It appears that his Honour's reference to "the principles in Jelbert v Davis" was to the principle that the dominant owner is not entitled to use the right of way excessively, that is, to a degree which would interfere unreasonably with its use by other persons entitled to use it: see Jelbert v Davis [1968] 1 WLR 589 at 595.
The primary judge in this case then went on to say the following in rejecting the appellant's argument, which reasoning was impugned on appeal: [74] As the plaintiff submitted, it is not to the point that the expert witnesses called by both parties in these proceedings have opined that the passing bay is inadequate, or that its design is less than optimum. The LEC [Land and Environment Court], exercising the functions of the consent authority, will be required by s 4.15 of the EPA Act to consider the likely impacts of the proposed development and the suitability of the site for the proposed development, including the issues to which I have referred immediately above. The LEC will do so by reference to such evidence as may be adduced in the Class 1 proceedings. The defendant's complaints about the fact that the development application does not include a revised transport report addressing those issues, and its contentions that the passing bay is inadequate, are matters that it can propound in opposition to the development application in the Class 1 proceedings. The plaintiff accepted that the defendant would be entitled to participate in the Class 1 proceedings in order to ventilate its objections to the proposed development, and the defendant made no submission to the contrary.
As explained above (at [39]-[42]), the ultimate issue for the Court below was whether the refusal of the owner of the servient tenement to give consent as owner constituted a substantial interference in the rights held by the owner of the dominant tenement, to which issue other considerations may be relevant. The ability to refuse consent as an owner is an aspect of the property rights held by the servient owner. There would be no substantial interference warranting a mandatory injunction if what was proposed was not a reasonable use by the dominant owner of the right of way, taking account of the rights of the servient owner to its own reasonable use of its own property (including its power to determine what development occurs there). It is thus potentially relevant to take account of the nature of the proposed development.
In that context, it is not the case that simply because issues such as the degree of use, safety or such like may be taken into account as part of the planning assessment they can have no potential relevance to the respective private law rights of the two owners. That relevance must be kept in perspective, however, and issues of timing arise. Handley AJA was not suggesting otherwise in Sertari. On the contrary, his Honour's statement at [23] that "the principles in Jelbert v Davis … do not assist the [servient owner] at this stage" implicitly indicated that issues could still arise as to the parties' exercise of their respective rights. The point he had made earlier in [23] was that issues as to the management of vehicle and pedestrian traffic were matters for the planning authorities and "do not affect the construction of the grant, or the question of excessive user", being the issues that had been raised in the proceedings before him.
As already explained (at [43]), the private law property rights of the dominant and servient owners are distinct from the public statutory planning regime, although those areas of law intersect with respect to the giving of owner's consent. Were the Council or the Land and Environment Court to grant development consent to, for example, demolition of encroachments on the ROW situated on Lot 2, that would authorise that development taking place for planning purposes. It would not authorise the respondent to come onto the appellant's land to carry out that demolition. Whether or not it was entitled to do so, absent the appellant's consent, would depend upon whether the demolition was a reasonable exercise of its rights under the ROW.
What is at issue in this case is one step in the development process: the making of a development application. The case does not involve a comprehensive determination of what the respondent may do in exercise of its rights under the ROW. The Court is required only to determine whether the servient owner's refusal to provide owner's consent is, in the circumstances before it, a substantial interference in the rights of the dominant owner.
That understanding is consistent with Handley AJA's discussion in Sertari at [23]. Moreover, Waddell CJ in Eq had earlier made similar points in Annwrack (BC8902584 at 9-13). His Honour reasoned as follows: many of the defendants' objections to the proposed development assumed that the application would be granted and without any further conditions being imposed; that would not necessarily be so; it was thus "unsafe to conclude that any of the detriments which this Court can take into account in relation to a claim of excessive user will in fact occur"; in that context "it cannot be said that the fears about the future which the defendants have provide any justification for refusing to give their consent to the application"; "it should be pointed out that the consent sought is only to the making of the application"; and whilst the evidence did establish there had already been some infringements of the defendants' rights, that could yet be addressed by injunctive relief if not resolved.
Thus when considering the consent issue the Court is not concerned to box at shadows, many of which may disappear. And to require the servient owner to provide consent to the making of the development application does not mean that the servient owner cannot later complain about unreasonable use by the dominant owner of the rights of way.
In this context, insofar as the appellant implicitly suggested that it is bereft of rights once owner's consent has been given it is incorrect. Moreover, if a servient owner could not be expected to provide consent unless it was certain that the development proposal would not change then such consent would never be required. As the respondent rightly noted, it is commonplace for development applications to be amended.
That does not mean that uncertainty about the nature of the proposed development is irrelevant. If there was real doubt about what was proposed, in respects which could have a material impact on the rights and interests of the servient owner, then it may not be unreasonable for that owner to exercise its ownership right to refuse consent. And if that was so there would be no substantial interference in the rights of the dominant owner. Again, these are practical judgments to be made on the facts of the case.
Here, the evidence of the two experts indicates that it is at the least arguable that the driveway will need to be further widened beyond what is currently proposed in order for the development on Lot 1 to obtain development consent. If that is so, then it is conceivable that the respondent may come to suggest that the issue should be addressed by removal of the encroachments on the ROW situated on Lot 2. These are issues which may be addressed in the Class 1 proceedings. But even if the removal of the encroachments is sought and authorised by the Land and Environment Court, that would not extinguish the appellant's property rights with respect to those encroachments. As discussed above at [62], the respondent in these circumstances would not necessarily be authorised to carry out the demolition.
To a significant extent the appellant's arguments are an exercise in shadow-boxing. At the heart of this case are the following simple facts: the respondent accepts it needs to widen the driveway in order to obtain development consent for its new building; it proposes to do so by widening the driveway into its own property; it has not proposed removal of encroachments; and a widening will be to the benefit of all concerned. In the circumstances, it was unreasonable for the appellant to refuse its consent, and doing so was a substantial interference in the rights of the respondent.
Grounds 3-4 of the appeal are not made out.

Orders

The appeal should be dismissed. There is no reason costs of the appeal should not follow the event, subject to what has already been said about the costs of the competency motion. The primary judge granted a stay of the mandatory injunction requiring the appellant to provide written consent to the making of the DA. That stay should now be lifted. The respondent did not seek orders from the Court below requiring that the consent be provided within a particular time, failing which the Registrar was authorised to provide the consent on the appellant's behalf. If the injunction is not complied with promptly then the respondent may apply to the Supreme Court for appropriate orders.
The orders of the Court should be as follows: 1. The respondent's notice of motion objecting to competency filed on 1 November 2024 is dismissed. 2. The appellant has leave to file its amended notice of appeal in the form attached to its notice of motion filed on 4 November 2024, which amended notice must be filed within 7 days. 3. Leave to appeal is granted to the extent necessary. 4. Appeal dismissed. 5. The appellant is to pay the respondent's costs of the appeal, save that the respondent is to pay the appellant's costs of the competency motion. 6. The order made by Williams J on 10 September 2024 staying the order of 30 July 2024 is discharged.

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: 12 February 2025

Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 Zenere v Leate (1980) 1 BPR 9300 Category: Principal judgment Parties: Owners Corporation Strata Plan 533 (Appellant) Random Primer Pty Ltd (Respondent) Representation: Counsel: T Hale SC and J Doyle (Appellant) P Tomasetti SC and J Li (Respondent)

Solicitors: Connor & Co Lawyers (Appellant) CKSD Lawyers (Respondent) File Number(s): 2024/316471 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Real Property List Citation: [2024] NSWSC 919 Date of Decision: 30 July 2024 Before: Williams J File Number(s): 2023/423449

Legal principles relating to the respective rights of the parties 2. The owner of the dominant tenement benefited by an easement may obtain relief from a court to protect its ability to exercise a right of way where actions of the owner of the servient tenement constitute a substantial interference with that right: at [26]. Whether or not there has been a substantial interference involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights: at [28]-[29]. Clifford v Hoare (1874) LR 9 CP 362; Powell v Langdon (1944) 45 SR (NSW) 136; Finlayson v Campbell (1997) 8 BPR 15,703; Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599; Petty v Parsons [1914] 2 Ch 653; Saint v Jenner [1973] Ch 275; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74; Middleton v Arthur [2002] NSWSC 627; (2002) 11 BPR 20,263; Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430, referred to. 3. The ultimate issue in a case such as this is whether the refusal of the owner of the servient tenement to give consent to the making of a development application constitutes a substantial interference in the rights held by the owner of the dominant tenement. The issue can also be expressed in converse terms of whether the servient owner's refusal of consent was a reasonable exercise of its property rights. A number of considerations may throw light on the answer to the question, including the terms of the easement, and whether or not the use proposed would unreasonably interfere with the reasonable use of the servient tenement by the servient owner: at [39]-[42]. Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599, considered. Annwrack Pty Ltd v Williams (Supreme Court (NSW), Waddell CJ in Eq, 8 February 1989, unrep); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200; Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45; Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599, referred to. 4. The issue involves private law rights, which are distinct from the rights and obligations arising under statutory planning schemes. The areas of law intersect insofar as to decline to give consent, where that is required, is an exercise of the rights of ownership of the servient owner. However, the giving of owner's consent to the making of a development application does not exhaust the ongoing significance of the property rights of the servient owner: at [43]. Kirkjian v Towers (Supreme Court (NSW), Waddell CJ in Eq 6 July 1987, unrep); North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 475-476; [1996] HCA 20; Annwrack Pty Ltd v Williams (Supreme Court (NSW), Waddell CJ in Eq, 8 February 1989, unrep); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200, referred to.

Claimed ambiguity in the DA 7. It is not the case that simply because issues such as the degree of use, safety or such like may be taken into account as part of the planning assessment they can have no potential relevance to the owners' private law rights. That relevance must be kept in perspective, however, and issues of timing arise: at [61]. What is at issue in this case is one step in the development process, being the making of a development application. The case does not involve a comprehensive determination of what the respondent may do in exercise of its rights under the ROW: at [63]-[66]. Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200; Annwrack Pty Ltd v Williams (Supreme Court (NSW), Waddell CJ in Eq, 8 February 1989, unrep), referred to. 8. If there was real doubt about a proposal, in respects which could have a material impact on the rights and interests of the servient owner, then it may not be unreasonable for it to refuse consent. These are practical judgments to be made on the facts of the case. Here, the appellant's refusal of consent was a substantial interference in the respondent's rights: at [67]-[69].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (18)