Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors - [2010] NSWLEC 2 - NSWLEC 2010 case summary — Zoe

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Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors

[2010] NSWLEC 2

Land and Environment Court (NSW)|2010-07-01|Before: Preston CJ, Waddell CJ, Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2010-07-01

Before

Preston CJ, Waddell CJ, Mr P

Source

Original judgment source is linked above.

Judgment (78 paragraphs)

[1]

Background facts 20 These issues need to be considered having regard to the following facts and circumstances. 21 The Rainbowforce land and the Skyton land were both former industrial land which have been targeted as medium to high density residential redevelopment sites. A constraint on the redevelopment of the sites is access. 22 The Rainbowforce land fronts two roads, Windsor Road and James Ruse Drive, but only has access to Windsor Road. At present, access to the Rainbowforce land is gained solely from Windsor Road (left in and left out only in a south bound direction along Windsor Road). However, this is unsafe and unsatisfactory due to the proximity of the access to the major multi-lane intersection of Windsor Road and Cumberland Highway (James Ruse Drive). No vehicular or pedestrian access is available from the Rainbowforce land onto James Ruse Drive because of the elevation of the on-ramp from Windsor Road to James Ruse Drive above the Rainbowforce land.

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23 The Skyton land also fronts two roads, North Rocks Road and James Ruse Drive, but also has access to only one road, North Rocks Road. Vehicular or pedestrian access to James Ruse Drive is prevented by reason of its elevation along its whole frontage with the Skyton land. 24 In order to enable redevelopment of the Rainbowforce land and the Skyton land for medium to high residential development, the Council (and the Roads and Traffic Authority of NSW) have determined that vehicular access to both sites should be from North Rocks Road only. This results in access to the Rainbowforce land being across the Skyton land. Access to Windsor Road would cease once access is able to be provided across the Skyton land from North Rocks Road. 25 In February 1997, the Council finalised its Residential Housing Strategy and forwarded it to the former Department of Urban Affairs and Planning for formal consideration. The Strategy included the identification of target sites appropriate for multi-unit residential development. 26 The purpose of adopting a Residential Housing Strategy was to exempt Baulkham Hills Shire from State Environmental Planning Policy No 53 - Metropolitan Residential Development ("SEPP 53"). SEPP 53 was intended by the State government, amongst other aims, to broaden the range of dwelling types and location in the housing market, to use existing infrastructure and services more efficiently, and to reduce the amount of land take up at the urban fringe for residential development. SEPP 53 sought to achieve these objectives by introducing a range of development controls in areas where the relevant council had not adopted a residential development strategy to achieve the stated objectives. In response to SEPP 53, the Council adopted its Residential Housing Strategy which resulted in the Shire being exempted from SEPP 53. 27 On 7 December 1999, the Council resolved to prepare and exhibit a draft local environmental plan ("LEP") and development control plan ("DCP") for those parts of the Skyton land that are now Lot 2 in DP 247452 and Lot 101 in DP 617754 to rezone them from part Light Industrial 4(b) and Residential (2a) to Residential 2(a1), a high density residential zone. 28 On 8 February 2000, the Council adopted amendments to its Residential Housing Strategy, including the nomination of the Rainbowforce land and the Skyton land as target sites. On 13 June 2000, the Council adopted the formation of a Target Site Panel and a process for the preparation of site specific DCPs for the target sites. 29 On 6 April 2001, Skyton exchanged contracts for the purchase of Lot 2 in DP 2474452 and Lot 101 in DP 617754 of the Skyton land from National Foods Milk Limited (the site was the former Dairy Farmers milk depot). The sale was completed almost two years later. 30 On 7 November 2001, the Council adopted DCP 33, a site specific DCP for the target site of 27-29 North Rocks Road (the Skyton land). DCP 33 came into force on 28 March 2002. 31 The principal objectives of DCP 33 included the objective to "(d) ensure that development occurs within an orderly manner and does not sterilise the use of other sites" (cl 1.3). Section 3 of DCP 33 set out the objectives and development controls for residential developments. Setbacks were required from James Ruse Drive (19 metres) and Darling Mills Creek (20 metres). Development of the setbacks was constrained, in the case of the James Ruse Drive setback, to the provision of landscaping, open space, pedestrian and vehicular access, and parking (cl 3.2(iii)) and, in the case of the Darling Mills Creek setback, to the provision of a vegetated buffer strip (cl 3.2(i)). Buildings were required to be designed so as to ensure that road noise emanating from James Ruse Drive was maintained at an acceptable standard for residential living (cl 3.3). 32 DCP 33 also dealt in s 3.5 with access, including the provision of access over the Skyton land to the adjacent Rainbowforce land. One of the objectives of access was stated to be "(b) Access arrangements must be made in relation to the adjacent site (19-21 Windsor Road)". Development controls provided: "(i) The principal access to the site should be from North Rocks Road, in a location that provides adequate site distances;

[5]

► Nos 19-21 Windsor Road (Lot 4 DP247452) [the Rainbowforce land]." 33 The "submission requirements" in DCP 33 were that "documentation indicating that access arrangements have been approved by the Roads and Traffic Authority and have had regard for the development of other sites in the locality". 34 On 28 March 2002, Baulkham Hills Local Environmental Plan 1991 (Amendment No 89) was gazetted, rezoning the Skyton land from part Light Industry 4(b) and Residential (2a) to Residential (2a1), on the same day DCP 33 came into force. 35 On 28 November 2002, Lot 3 in DP 247452 was transferred from the Roads and Traffic Authority of NSW to Skyton Developments Pty Ltd. This lot is located to the west of Darling Mills Creek and abuts the Rainbowforce land. 36 On 31 March 2003, the land purchased from National Foods Milk Limited (Lot 2 in DP 247452 and Lot 101 in DP 617754) was transferred to Skyton Holdings Pty Limited and George Andrews as tenants in common in equal shares. 37 Between 4 August 2003 to 11 November 2003, three separate community consultation workshops were held regarding the target site of 19-21 Windsor Road (the Rainbowforce land). 38 On 18 September 2003, Skyton lodged development application EA933/2004/HC proposing four residential apartment buildings of five storeys each containing 100 units in total on Lot 2 in DP 247452 and Lot 101 in DP 617754. 39 On 20 April 2004, the Council adopted DCP23, a revised and renumbered site specific DCP for the target site of 27-29 North Rocks Road ("the Skyton land"). DCP23 contained the same objectives and development controls for residential developments as DCP 33, including in relation to setbacks (cl 3.2), noise (cl 3.3) and access (cl 3.5). DCP 23 came into force on 27 April 2004. 40 On 27 October 2004, there was a presentation of a revised draft DCP for the target site of the Rainbowforce land to the Target Site Panel which had been formed in June 2000 for the preparation of site specific DCPs for target sites under the Residential Housing Strategy. 41 On 28 February 2005, a draft DCP for the target site of the Rainbowforce land was submitted to the Council. This required vehicular and pedestrian access to the Rainbowforce land to be obtained over the Skyton land from North Rocks Road.

[8]

43 The plan referred to in condition A4, namely Plan Drawing No. DA-28 Issue 14 dated 2 November 2004 prepared by Design Effect Pty Ltd, had as its title: "Site: Ground floor plan showing provision only of possible future road access to adjoining properties." The possible future road access shown was an access road 6 metres wide, a bicycle path and pedestrian path, beside one another. The access road and paths entered from an entrance off North Rocks Road in common with the entrance to the Skyton development's basement car parking. The access road and paths to the Rainbowforce land then diverged from the common entrance and ran parallel to but separated by a landscaping strip from the retaining and acoustic wall along James Ruse Drive. On nearing Darling Mills Creek, the access road and paths turned northwards so as to cross the creek in the northeastern corner of Lot 3 in DP 247452 and then cross into the Rainbowforce land. The note on the plan at this point stated "access to neighbouring property". Section B-B on the plan showed a section through "possible future road". The section showed a setback of 19 metres between Building Four and the boundary with James Ruse Drive. Within that 19 metre setback were, running from James Ruse Drive to the building, a landscape strip, road, bicycle path, pedestrian path and hardstand parking area adjacent to the building. 44 Condition A4 was specifically imposed by the Council in order to comply with the access development controls in Section 3.5 of DCP 23. In the council officer's report considered by the Council when it resolved to grant development consent for the Skyton development, it was noted in relation to the access development controls that: "Drawing DA-28 shows the opportunity for access to adjoining sites, with the details to be submitted with any development application for the adjacent sites. A site specific DCP has been prepared for the adjacent sites and details of this access road will be required as part of the DA submission for these adjacent sites." 45 Elsewhere in the council officer's report it was stated in relation to the need for a right of carriageway that:

[31]

68 First, the power to impose an easement is made conditional upon satisfaction of the requirement in s 88K(1). Subsection (1) has been described as the "governing subsection", although the criteria in subsection (2) must also be met if an order is to be made: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 at 15,854. It is "a precondition of the exercise of the jurisdiction" that "there must be a finding that the easement sought is reasonably necessary for the effective use or development of the land which will have the benefit of it": Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120; (2004) NSW ConvR 56-071 at 19. A finding that the pre-condition in s 88K(1) is met is to be determined objectively: Tregoyd Gardens Pty Ltd v Jervis at 15,854. That finding "involves the making of a value judgment, but not the exercise of a discretion": Woodland v Manly Municipal Council at 19. 69 Secondly, the requirement in s 88K(1) is to be satisfied with respect to the particular easement that the Court is considering ordering to be imposed. The reference to the "easement" in the beginning of the conditional phrase in s 88K(1) is a reference to the easement the Court orders to be imposed. Section 88K(3) requires the Court to specify in the order, the nature and terms of the easement. The applicant for an order imposing an easement will propose the nature and terms of the easement sought. The proposed easement will accord with the easement which the applicant has made all reasonable attempts to obtain, or have the same effect as that easement, so as to satisfy s 88K(2)(c). The Court's power to impose an easement under s 88K(1) would extend to amending the proposed easement of the applicant, including so as to ensure the easement which the Court orders to be imposed satisfies the requirement in s 88K(1) of being reasonably necessary for the effective use or development of other land that will have the benefit of the easement. 70 Thirdly, the inquiry directed by the requirement in s 88K(1) is whether the easement is reasonably necessary "for the effective use or development of other land that will have the benefit of the easement". This other land will be the land of the applicant for the order. The easement may be reasonably necessary for either the effective use or the effective development or both of the applicant's land. Most of the cases in which an easement has been sought have involved the carrying out of development on land and the subsequent use of the development, but some have involved only use of the land. An example of the latter is Owners Strata Plan 13635 v Ryan [2006] NSWSC 221. 71 The inclusion of "development" as well as "use" means that the Court's power to impose an easement is enlivened not only if the easement is reasonably necessary for a particular development or use proposed by the applicant but also if the easement is reasonably necessary for any development or use of the applicant's land, which is within the law: Tregoyd Gardens Pty Ltd v Jervis at 15,854. 72 Fourthly, the easement is to be reasonably necessary for the "effective" use or development of the land that will have the benefit of the easement. The adjective "effective" bears its ordinary meaning of "serving to effect the purpose; producing the intended or expected result": Macquarie Dictionary and see Woodland v Manly Municipal Council at [7], (5). In context, therefore, the easement is to be reasonably necessary in order for the use or development of the land benefited by the easement to effect the purpose or produce the intended or expected result of the use or development. Thus, if use or development of land for some planning purpose, such as residential, commercial or industrial purposes, cannot be achieved without the creation and use of an easement for, say, access to the land or services to the land or for drainage of the land, the easement is reasonably necessary for such use or development to be effective: see King v Carr-Gregg [2002] NSWSC 379 at [47] and Khattar v Wiese at [30]. 73 Fifthly, the easement is to be reasonably necessary for the effective use or development of the land itself, namely the land that will have the benefit of the easement; it is not sufficient for the easement to be reasonably necessary for the enjoyment of the land by any of the persons who, for the time being, are the proprietors: Hanny v Lewis (1998) 9 BPR 16,205 at 16,209; (1999) NSW ConvR 55-879; Woodland v Manly Municipal Council at 19. Accordingly, evidence as to the particular problems that one of the existing proprietors may have, or the hardship suffered as a result of those problems, would not be relevant: Hanny v Lewis at 16,209; Owners Strata Plan 13635 v Ryan at [28], [33]. 74 Sixthly, the requirement in s 88K(1) is that the easement be "reasonably necessary". This has two components: first, "reasonably" and second, "necessary". The requirement that the easement be "reasonably" necessary for the effective use or development of the applicant's land does not mean that there must be an absolute necessity for the easement: Tregoyd Gardens Pty Ltd v Jervis at 15,854; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508; Woodland v Manly Municipal Council at [7], 19. 75 This reduction in the quality of necessity to what is reasonable means that an easement may be able to be imposed although another means of right of way may exist (Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317 at 320-321; In the matter of an application by Kindervater (1996) ANZ ConvR 331 at 333; Tregoyd Gardens Pty Ltd v Jervis at 15,854 and Grattan v Simpson (1998) 9 BPR 16,649 at 16,651; (1999) NSW ConvR 55-880) or possibly even when the land could be effectively used or developed without the easement (117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508; Durack v de Winton (1998) 9 BPR 16,403 at 16,447; Khattar v Wiese at [24]). 76 The requirement that the easement be reasonably "necessary" for the effective use or development of the applicant's land means that there needs to be "something more than mere desirability or preferability over the alternative means available": In the matter of an application by Kindervater at 333; Tregoyd Gardens Pty Ltd v Jervis at 15,854; Hanny v Lewis at 16,209 and Woodland v Manly Municipal Council at [7], [19]. Indeed, it has been suggested, "the tone of the word 'necessary' is getting close to something which is a vital requirement": Hanny v Lewis at 16,209. 77 Reasonable necessity has to be assessed having regard to the burden which the easement would impose. Hence "[i]n general terms, the greater the burden the stronger the case needed to justify a finding of reasonable necessity": Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; (1999) 9 BPR 17,303 at [42]; Woodland v Manly Municipal Council at [12], 19; Khattar v Wiese at [27]. 78 Seventhly, applying the test of reasonable necessity to the effective use or development of the land that will have the benefit of the easement has the consequence that: "(1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement": 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508-509. 79 This passage has been cited with approval in many subsequent cases, including Durack v de Winton at 16,447-16,448; Hanny v Lewis at 16,209; Khattar v Wiese at [25]; Owners Strata Plan 13635 v Ryan at [50], [57] and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 at [92]. However, Hamilton J in Woodland v Manly Municipal Council at [9] expressed concern as to the use in the second proposition of the words "(at least) substantially" saying: "But what I am most troubled by is that the proposition may be taken to constitute a general and inflexible rule and to provide a criterion or precondition that must be met in every case. No doubt the alternatives will require to be considered and there is unlikely to be a finding of reasonable necessity (or, indeed, an exercise of discretion in favour of a grant) if there is a viable alternative. But to lay down as invariable an additional precondition (if this be what his Honour intended) will in effect create a gloss upon the statute and distract the Court from carrying out its function in accordance with the terms of the statute; and see 19 below". 80 Hamilton J summarised his position in Woodland v Manly Municipal Council at 19 as: "In considering that reasonable necessity, the Court will take into account whether and to what extent use with the easement is preferable to use or development without the easement. That use with the easement is preferable or, a fortiori, substantially preferable to use or development without the easement, will conduce to a finding of reasonable necessity, but is not a necessary precondition to that finding …". 81 Eighthly, the requirement of reasonable necessity does not demand that there be no alternative land over which an easement could be equally efficaciously imposed. Hamilton J noted in Tregoyd Gardens Pty Ltd v Jervis at 15,854 that "[i]t cannot be the intention of the Act that if an easement would be equally efficacious over two pieces of land it cannot be granted over either because it cannot be said that it is necessary for it to be granted over that piece of land as opposed to the other": see also Durack v de Winton at 16,445; Khattar v Wiese at [31], [32]. 82 Ninthly, the requirement of reasonable necessity is to be decided in light of the present circumstances at the time of the hearing of the application for an order: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511; Durack v de Winton at 16,448; Katakouzinos v Roufir Pty Ltd at [39]; and Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd at [92]. Hence, it would not matter for the purposes of deciding whether the easement is reasonably necessary that the present circumstances were due to the applicant for the order taking a gamble: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511. However, if such reasonable necessity for an easement as presently exists arose from previous unreasonable conduct from the applicant, that could be a discretionary factor counting against the granting of relief: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511. 83 Tenthly, the requirement of reasonable necessity can be satisfied notwithstanding that some future action may be required, in addition to obtaining the easement, for the effective use or development of land, such as obtaining some statutory consent. For example, if an easement in the form of a right of carriageway is created, it may be necessary to obtain development consent under the EPA Act to construct the road in the right of carriageway. The requirement in s 88K(1) does not require that all other obstacles to the proposed use or development of the land that will have the benefit of the easement must have been overcome before the Court has power to grant an easement: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 512. Only if use of the proposed easement would be absolutely illegal and there was no chance of obtaining a consent necessary to make it other than illegal, would the Court be precluded from finding that the easement was reasonably necessary: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 511-512.

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(c) an alternative easement allowing vehicular access could be obtained over the Northmead High School land to Campbell Street. 86 As to the first argument, although there were differences in earlier versions of the proposed easement, after amendment by Rainbowforce the only difference remaining between the easement currently proposed and condition A1 of the Rainbowforce development consent is the width of the right of carriageway, the latter requires a minimum of 12 metres while the former proposes 10 metres. The applicant proposed this reduction in the width of the easement so as to lessen the area of Skyton's land burdened by the easement and hence the extent of Skyton's loss or other disadvantage. This reduction in width was achieved by removing the landscaping strip that had previously been proposed within the right of carriageway (see, for example, in the plan approved in the Skyton development consent). The narrower, 10 metre wide right of carriageway without the landscaping was adopted by Skyton in its engineering plans for the access road tendered at the hearing of the appeal of its further development application in September 2009 this year: see para 56 of the Court's judgment. 87 The simple solution to this first argument of Skyton is for the proposed easement to be amended to reinstate the width to be 12 metres and hence comply with condition A1 of the Rainbowforce development consent. Rainbowforce offered to do so at the hearing if this was considered by the Court to be necessary. I consider that this amendment to increase the width of the easement to 12 metres, as required by condition A1 of the Rainbowforce development consent, should be made. Such amendment would also allow space for landscaping to be planted within the easement, with concomitant benefits for the use and enjoyment of the Skyton land. 88 As to Skyton's second argument, it is true that pedestrian access to the Rainbowforce land is currently available from Windsor Road and may be available in the future by Rainbowforce exercising rights it has under an existing right of footway over the Northmead High School land through to Campbell Street. However, these current and future pedestrian access routes do not necessarily result in the proposed easement over the Skyton land not being reasonably necessary for the effective use or development of the Rainbowforce land, for two reasons. 89 First, any use or development of the Rainbowforce land is required by law to provide access to North Rocks Road across the Skyton land. Condition A1 of the Rainbowforce development consent requires the right of carriageway to contain a footpath which is to be in the footpath alignment identified in Figure 4.3 (Access to Site) of the DCP-Target Site 7. This DCP requires pedestrian linkages to include not just the current access to Windsor Road and the future pedestrian access to Campbell Street but also access to North Rocks Road (see sections 3.5 and 4.3.2 and Figure 3.6 Access and Movement and Figure 4.3 Access to Site). All new development of the Rainbowforce land is required to provide these pedestrian linkages. Hence, an easement containing a pedestrian footpath to North Rocks Road is not only necessary for the development and subsequent use approved by the development consent but for all reasonable uses and developments of the Rainbowforce land. 90 Secondly, the different pedestrian routes serve different purposes or desire access lines. There are bus routes along North Rocks Road. A footpath along the proposed easement over the Skyton land will enable pedestrians to gain relatively level access to these bus routes on North Rocks Road. The alternative via Windsor Road to North Rocks Road is considerably longer in distance and on an incline. The potential future pedestrian access to Campbell Street is in the opposite direction and serves a different purpose of providing access to Northmead High School. Accordingly, these current and future pedestrian routes do not cause the proposed easement containing a footpath over the Skyton land not to be reasonably necessary for the effective use or development of the Rainbowforce land. 91 As Skyton's third argument, any use or development of the Rainbowforce land is required to provide vehicular access solely to North Rocks Road. The right of carriageway is required by condition A1 of the Rainbowforce development consent. Condition 121 of that consent also requires the creation and registration of a restriction on vehicular access from the Rainbowforce land to Windsor Road. Furthermore, all reasonable uses or developments of the Rainbowforce land would be required to do the same. DCP-Target Site 7 expressly requires vehicular access to the site only from North Rocks Road. The long planning history concerning the rezoning and redevelopment of the Rainbowforce land and the Skyton land is clear and unchanging in requiring vehicular access only from North Rocks Road. Hence, an easement containing an access road from North Rocks Road is not only necessary for the development and subsequent use approved by the Rainbowforce development consent but also for all reasonable uses and developments of the Rainbowforce land. 92 Next, even if an easement over the Northmead High School land to Campbell Street containing an access road were to be assumed to be equally efficacious as an easement over the Skyton land to North Rocks Road, this would not cause the proposed easement over the Skyton land not to be reasonably necessary for the effective use and development of the Rainbowforce land. As I have noted above, it was not the intention of the legislature if an easement would be equally efficacious over two pieces of land it cannot be granted over either because it cannot be said that it is necessary for it to be granted over that piece of land as opposed to the other. 93 Finally, the requirement is of reasonable necessity. As I have noted earlier, the reduction in the quality of necessity to what is reasonable means that the remedy of ordering that an easement be imposed is available although another means of a right of way may exist. Hence, the potential for an easement to be able to be granted over the Northmead High School land to Campbell Street does not necessarily result in an easement over the Skyton land not being reasonably necessary for the effective use or development of the Rainbowforce land.

[35]

Will use of the dominant tenement be inconsistent with the public interest? 94 Section 88K(2)(a) of the Conveyancing Act requires the Court to be satisfied that "use of the land having the benefit of the easement will not be inconsistent with the public interest". The land having the benefit of the easement is the dominant tenement. It is the use of the dominant tenement that is not to be inconsistent with the public interest: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 513; Durack v de Winton at 16,448; Hanny v Lewis at 16,209; Grattan v Simpson at 16,651; Woodland v Manly Municipal Council at [13], 19. 95 Parliament in enacting s 88K recognised that the private development of land may be beneficial for the public and in the public interest. However, such development, if it requires an easement over neighbouring land, can be unreasonably frustrated or held to ransom by the neighbour not granting an easement. The Act empowers the Court to grant an easement but on condition that the party having the benefit pay reasonable compensation to the party whose land is burdened. In this way, there is a balancing of competing private interests as well as promotion of the public interest: see Tregoyd Gardens Pty Ltd v Jervis at 15,847 and 15,854 and Second Reading Speech, Legislative Council, 4 December 1995. 96 In this case, the development and subsequent use of the Rainbowforce land is for a permitted purpose under the relevant environmental planning instrument, Baulkham Hills Local Environmental Plan 2005, and in accordance with the development consent. It is the culmination and desired outcome of the strategic and site specific planning for the area, from the Residential Housing Strategy, the exemption of the Shire from SEPP 53, the identification of both the Rainbowforce land and the Skyton land as target sites for medium to high density residential development, the rezoning of each target site for this purpose, the preparation of site specific DCPs for each target site, through to the lodgment, consideration and determination of the development applications for these target sites by the grant of development consent. There is nothing in the proposed development or use of the Rainbowforce land that will be inconsistent with the public interest. Similar conclusions were reached in relation to permissible developments of private land in Khattar v Wiese at [47]; Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709 at [46] and Tenacity Investments v Ku-ring-gai Council at [207]. 97 Conversely, if the easement were not be imposed, having regard to the clear and unchanging attitude of the Council that access to the Rainbowforce land is only to be provided over the Skyton land and not otherwise, the Council may not be prepared to approve any other access. In these circumstances, development and use of the Rainbowforce land may not be able to occur and the land would virtually be sterilised: see Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd at [111]. This would not be in the public interest. 98 Skyton submits that the use would be inconsistent with the public interest in three respects: (a) The use of the easement over the Skyton land would cause unreasonable user and amenity effects on the Skyton land and this is not in the public interest.

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(c) It is not in the public interest to grant an easement which may prevent an occupation certificate to be issued for a completed development on the Skyton land in a timely manner, such result being inconsistent with the co-ordination of the orderly and economic use and development of land sought to be encouraged by s 5 of the EPA Act. 99 Skyton's first respect focuses wrongly on the use of the easement on the servient tenement rather than on the use of the dominant tenement. It is the latter use not the former that is the focus of s 88K(2)(a). 100 In any event, if the easement is granted on the terms proposed, I do not consider that there will be unreasonable user or unacceptable amenity impacts on the Skyton land or any future development of it. Rainbowforce adduced evidence from a town planner (Mr Gosling), a traffic engineer (Mr Brodie), an engineer in relation to road and bridge design and construction (Mr Hamilton) and an engineer in relation to flood effects of the bridge (Mr Hodges). The evidence established that the access road, footpath and bridge likely to be constructed in the easement, and the use thereof, would not cause unacceptable planning, environmental, traffic, engineering or flooding effects. Rainbowforce also tendered a joint report of the parties' traffic engineers that had been tendered in Skyton's appeal against the Council's refusal of Skyton's further development application. The traffic experts concluded that the proposed vehicular and pedestrian access arrangements involving both the access road and footpath to the Rainbowforce Road and access to Skyton's proposed development, were acceptable in terms of access, traffic and safety. 101 Skyton's second respect impermissibly canvasses the policy decision of Parliament to empower the Court to impose an easement, and hence impose upon the proprietary rights of the owner of the land burdened by the easement, although on the condition that the party having the benefit of the easement pay reasonable compensation to the owner whose land is burdened. Parliament has determined that the legislation which so permits this result is in the public interest. In any event, Skyton's second respect is not the relevant public interest to which s 88K(2)(a) refers. 102 Skyton's third respect also is wrongly directed to the use of the servient tenement, namely the prevention or delay in occupation of a completed development on the Skyton land, rather than the use of the dominant tenement of the Rainbowforce land, which is the focus of s 88K(2)(a). 103 In any event, as a matter of fact, imposition of an easement in the terms proposed is unlikely to prevent an occupation certificate being issued for a completed development on the Skyton land. Rainbowforce has indicated it is ready, willing and able to undertake construction of the access road, footpath and associated landscaping works in the easement in a reasonable timeframe. It is these works that are required to be completed, and not the development on the Rainbowforce land, before an occupation certificate can be issued for development on the Skyton land: see condition 113 of the Skyton development consent. The timeframe for Skyton to carry out and complete its development in accordance with its development consent is likely to be considerably longer than the timeframe for construction of the access road, footpath and associated landscaping works in the easement. Hence, it is unlikely that occupation of the Skyton development will be delayed or prevented by the imposition of the easement. 104 Finally, even if occupation of a completed development on the Skyton land were to be prevented or delayed by reason of the grant of an easement over the Skyton land, Skyton's assertion that this would necessarily be contrary to the public interest should not be accepted unchallenged. The rezoning and redevelopment of the Skyton land was cognate with the rezoning and redevelopment of the Rainbowforce land and both were done on the basis that the Skyton land would provide access to the Rainbowforce land. The planning history recounted earlier makes this clear. The site specific DCPs for both the Skyton land and the Rainbowforce land require this outcome. Skyton's development consent that permits Skyton to develop its land for residential development not only requires creation of the right of carriageway to enable access to the Rainbowforce land but fixes the timing of occupation of any completed development by reference to completion of the access road, footpath and associated landscaping works. Hence, even if Skyton's development were to be prevented or delayed because of the grant of the easement and a delay in completion of the access road, footpath and associated landscaping works in the easement, such an outcome is the product of the strategic and site specific planning for these target sites and is consistent with the public interest in ensuring the orderly and economic use of both sites.

[38]

Can the servient owner be adequately compensated? 105 Section 88K(2)(b) of the Court Act requires the Court to be satisfied that the owner of the land to be burdened, and each other person having an estate or interest in that land, can be "adequately compensated for any loss or other disadvantage that will arise from imposition of the easement". Nine points can be made about this requirement. 106 First, the adequate compensation referred to in s 88K(2)(b) is the same as the compensation that the Court may order under s 88K(4): Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 at 15,800, 15,801; Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485; (1999) 9 BPR 16,985; (1999) NSW ConvR 55-903 at [26]; Mitchell v Boutagy [2001] NSWSC 1045; (2001) 118 LGERA 249; (2002) NSW ConvR 56-024 at [25]; Khattar v Wiese at [85]; Owners Strata Plan 13635 v Ryan at 85. 107 Secondly, compensation is for "any loss or disadvantage" that will arise from the imposition of the easement. The addition of the words "or other disadvantage" provides for compensation for disturbance beyond the actual value of the proprietary right taken: Re Seaforth Land Sales Pty Ltd's Land (No 2) at 334; Tregoyd Gardens Pty Ltd v Jervis at 15,851 and Wengarin Pty Ltd v Byron Shire Council at [26]. 108 Thirdly, the compensation is not a substitute for the price that could have been exacted if the section did not exist: Goodwin v Yee Holdings Pty Ltd at 15,801; Wengarin Pty Ltd v Byron Shire Council at [26]. Hence, there can be no compensation for the loss of bargaining position of the owner of the land to be burdened: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 515-516; Owners Strata Plan 13635 v Ryan at 85. The owner is "to receive a just sum and for value for what he or she has to give over, rather than being able to demand the earth": Wengarin Pty Ltd v Byron Shire Council at [17]. 109 Fourthly, the compensation is for any loss or disadvantage "that will arise from the imposition of the easement". That language imposes a requirement for a causal relationship between the loss or disadvantage for which compensation is claimed and the imposition of the easement: Mitchell v Boutagy at [26]; Khattar v Wiese at [65]; Owners Strata Plan 13635 v Ryan at 85. The common law of causation should be applied, namely that causation is a question of fact to be determined by applying common sense to the facts of each particular case: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515; Mitchell v Boutagy at [27]; Khattar v Wiese at [65]; Owners Strata Plan 13635 v Ryan at 85.

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110 Fifthly, the Court's task under s 88K is to be satisfied that the persons affected by imposition of the easement are "adequately compensated" and to provide for an order for payment of such adequate compensation. In assessing adequate compensation the Court "is not to err on the side of generosity or miserliness": Mitchell v Boutagy at [31]. The Court should not depart from the task of assessing adequate compensation because the applicant for the order stands to gain from the development or use which leads to their applying for the order. As Austin J stated in Mitchell v Boutagy at [31]: "The fact that the plaintiff is a developer is relevant, because the development provides the jurisdictional basis under subsection (1) for the Court to intervene. But apart from the exceptional cases to which Young J referred, the fact that the plaintiff/developer may generate profit, substantial or moderate, from the development in connection with which the easement is sought, does not justify any departure from what would otherwise be the principles upon which adequate compensation is assessed.": see also Owners Strata Plan 13635 v Ryan at 85. 111 Sixthly, ordinarily, compensation will have three elements: (a) the diminished market value of the affected land; (b) associated costs that would be caused to the owner of the affected land, and (c) an assessment of compensation for insecurity and loss of amenities, such as loss of peace and quiet. Against these losses and disadvantages should be allowed, as an offset, any compensating advantages: Wengarin Pty Ltd v Byron Shire Council at [26]; Owners Strata Plan 13635 v Ryan at 85. 112 There may be an exceptional case where it is extremely difficult to assess compensation but it is clear that the applicant for the order is to derive a considerable benefit from the application. In such circumstances, Young J suggested in Wengarin Pty Ltd v Byron Shire Council at [26], "it may be appropriate to assess the compensation on a percentage of the profits that would be made". There does not yet seem to have been a case where this has been done: Tenacity Investments v Ku-ring-gai Council at [112]. 113 In the case of a grant of a permanent easement, such as a right of carriageway or easement for drainage or services, compensation includes the loss of proprietary rights by the imposition of the easement and compensation for the disturbance effected by the carrying out of the initial work, such as construction of a road or laying of pipes in the easement, and subsequent repair and maintenance from time to time: Tregoyd Gardens Pty Ltd v Jervis at 15,851; Mitchell v Boutagy at [32]; Owners Strata Plan 13635 v Ryan at 85. 114 Seventhly, if the imposition of the easement causes material injury to intangible benefits or the imposition of material intangible detriments, such as reduced amenity, enjoyment of property, and exposure to increased disruption and interference, which are not readily capable of being estimated in monetary terms, the Court may not be able to be satisfied that the servient owner can be adequately compensated: Khattar v Wiese at [50]. However, compensation is often able to be assessed for injury to intangible benefits or the imposition of intangible detriments. Examples of cases where compensation has been able to be assessed for such losses or disadvantages include Tregoyd Gardens Pty Ltd v Jervis at 15,856 (loss of amenity of palm tree); 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 517 (loss of amenity and privacy); Owners Strata Plan 13635 v Ryan at [120] (increased usage of lane and loss of amenity); Antipas v Kutcher at [23]-[25] (additional loss of quiet enjoyment by increased traffic on extension of a right of way). 115 Eighthly, as a general rule, compensation should be assessed once and for all when the order is made. However, liberty can be reserved to the persons affected by imposition of the easement to apply to the Court for further compensation if some unexpected event occurs: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 516; Tregoyd Gardens Pty Ltd v Jervis at 15,856. 116 Ninthly, the applicant for the order has to establish what the relevant losses and disadvantages are as part of satisfying the Court that the persons affected by imposition of the easement can be adequately compensated: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 516-517; Owners Strata Plan 13635 v Ryan at 85. In the course of the hearing, evidentiary onuses may shift to the person affected: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 517. Where facts are peculiarly within the knowledge of the person affected and that person does not adduce relevant evidence, it may be open to the Court to draw unfavourable inferences: Mitchell v Boutagy at [34] and see also Wilson v Forrester-Babcock [2000] NSWSC 1208; (2000) 10 BPR 18,377 at [13], [16], [17] and Owners Strata Plan 13635 v Ryan at 85. 117 Skyton submits that they are not able to be adequately compensated for certain losses or other disadvantages that will arise from imposition of the easement in the following three respects: (a) The construction and subsequent use of the access road in the easement will impair the amenity of the Skyton land, by way of noise, dust, pollution, loss of open space, loss of landscaping opportunity, loss of privacy, loss of security and loss of visual outlook. This involves injury to intangible benefits and imposition of intangible detriments which are not able to be adequately compensated.

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(c) Rainbowforce did not provide a noise assessment report establishing that use of the access road would not cause Skyton to be unable to comply with the noise criteria required by condition 28 of the Skyton development consent. If Skyton is unable to comply, it will suffer loss for which it will not be compensated. 118 As to Skyton's first respect, as a matter of fact, I find that the construction and subsequent use of the access road in the easement will not cause unacceptable amenity impacts on the Skyton land, for four reasons. First, the proposed terms of the easement will ensure that any adverse amenity impacts are minimised, both in construction and subsequent use. Rainbowforce is required to ensure that all works are carried out properly, cause as little inconvenience as is practicable to Skyton, cause as little damage to Skyton and any improvement on Skyton's land, promptly restore any portion of the Skyton land disturbed during the carrying out of works and make good any collateral damage, amongst other requirements. 119 Secondly, even an easement is imposed, Rainbowforce will still be required to lodge with the Council a development application seeking development consent to construct the access road, footpath and associated landscaping works in the easement. Although Skyton would be required to give owners' consent to the lodging of that development application, Skyton still could make a submission on the proposed development to the Council, either objecting totally to the development or recommending that conditions be imposed which would address Skyton's concerns: see Annwrack Pty Ltd v Williams, unreported, NSWSC No 3101 of 1988, Waddell CJ in Eq, pp 11-12; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 523. The Council as consent authority would be required to consider the impacts of the proposed development on the environment, the Skyton land and any development to be carried out on the Skyton land. Any development consent can be granted subject to conditions designed to prevent or mitigate adverse amenity impacts on the Skyton land. 120 Thirdly, the issue of the potential impacts of the construction and use of the easement over the Skyton land has been repeatedly addressed by the Council and the Court, as the planning history recounted earlier in the judgment reveals. The Council has adopted site specific DCPs for the Rainbowforce land and the Skyton land which require the creation, construction and use of the easement over the Skyton land. The Council has granted development consents for the Rainbowforce land and for the Skyton land which require this outcome. The Court modified the Rainbowforce development consent but retained the requirement for an easement over the Skyton land. The Court also heard and determined Skyton's appeal against the Council's refusal of its further development application for increased height and density of residential development on the Skyton land. Skyton's proposed development provided for an easement, and an access road and footpath in the easement, for the benefit of development on the Rainbowforce land. The parties' experts and the Court did not find that construction and use of the access road and footpath would cause unacceptable amenity impacts on Skyton's proposed development or the Skyton land. 121 I also do not find that the amenity impacts raised by Skyton are incapable of being valued and adequately compensated. As was held by Lloyd J in Antipas v Kutcher at [24]-[26], the impacts of use of a right of way are largely physical impacts rather than intangible ones and can be adequately compensated. Similar conclusions were reached in relation to drainage easements in Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 at [50] and Tenacity Investments v Ku-ring-gai Council at [114]-[123]. 122 As to Skyton's second respect, as I found above in dealing with the third respect in which Skyton submitted use would be inconsistent with the public interest, imposition of an easement in the terms proposed is unlikely to prevent an occupation certificate being issued for a completed development on the Skyton land. However, if there is a residual risk, it can be dealt with by reserving liberty to Skyton to apply for further compensation if some unexpected event occurs and further loss arises from imposition of the easement. 123 As to Skyton's third respect, I am not satisfied that use of the completed access road will cause Skyton to be in breach of condition 28 of the Skyton development consent. Condition 28 prescribes internal noise levels for the residential units, with windows and external façade doors both closed and open. However, the condition provides that if the prescribed noise levels with windows and external façade doors open cannot be satisfied, the requirements "may be equally satisfied by the alternative provision of either a mechanical or natural ventilation system or a special acoustical design solution as approved by Council." The Council imposed condition 28 in the full knowledge, and indeed required by another condition of the consent, that a right of carriageway would be created and used for vehicular and pedestrian access to any development on the Rainbowforce land. It is reasonable to infer that the Council was satisfied that the performance standards of either the internal noise levels or alternative systems specified in condition 28 would be able to be met with the right of carriageway being used as intended. 124 Furthermore, there will be another opportunity to address noise generation and amenity impacts by use of the access road in the easement when the Council considers and determines Rainbowforce's development application to construct the access road, footpath and associated landscaping works in the easement imposed by the Court. 125 Finally, any residual risk can be dealt with by reserving liberty to Skyton to apply for further compensation if some unexpected event occurs and further loss arises from imposition of the easement. 126 Accordingly, the losses and other disadvantages that will be suffered by Skyton as a result of imposition of the easement are able to be readily identified and estimated in monetary terms. I am satisfied that each of the owners of the Skyton land can be adequately compensated for any loss or disadvantage that will arise from imposition of the easement in the terms proposed, for the reasons I give in my analysis of the quantum of compensation later in the judgment.

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Valuation approach to be adopted 137 The valuers for the parties approached the assessment of compensation for the losses and other disadvantages suffered by Skyton arising from imposition of the easement using different valuation methods. 138 Mr Kent Wood, the valuer for Rainbowforce, used a piecemeal approach to valuation. This involved assessing compensation for: the loss of proprietary rights by imposition of the easement; disturbance caused by the initial construction works and subsequent maintenance and repair; and injurious affection, being the loss in value to the residue area as a result of imposition of the easement less any benefit or increment in value as a result of imposition of the easement. Mr Wood also noted that Rainbowforce would be responsible for Skyton's costs of the proceedings, as required by s 88K(5) of the Conveyancing Act. 139 Mr Peter Dempsey, the valuer for Skyton, used the before and after approach to valuation. This involved valuing the whole of the Skyton land before and after imposition of the easement and deducting the after value from the before value to derive the quantum of loss or other disadvantage caused by imposition of the easement. The before and after approach encompasses not only the loss of proprietary rights but also injurious affection and some items of disturbance. Mr Dempsey also performed a check on the before and after approach by undertaking a residual land valuation analysis. 140 Both the piecemeal approach and the before and after approach to valuation are accepted valuation methods. It depends on the particular circumstances of a case as to which one is more appropriate to be used. 141 In the circumstances of this case, I consider the piecemeal approach is more appropriate and will yield a more reliable valuation figure than the before and after approach. 142 In the case of the imposition of a permanent easement over land, such as a right of carriageway, the before and after approach assumes that the land is completely unaffected by the easement and any restrictions of the kind than the easement would impose in the before situation but is so affected in the after situation. This was the assumption Mr Dempsey made in undertaking his valuation. 143 In this case, however, although there is no easement in the form of a right of carriageway on the title (there is an easement for pipeline in favour of Caltex and an easement for access and maintenance in favour of the roads authority), the Skyton land is nevertheless burdened by planning restrictions which require the creation of an easement in the form of a right of carriageway over the Skyton land as a condition of any redevelopment of the Skyton land and restrict the use of the land on which the right of carriageway would be located to vehicular and pedestrian access, parking and landscaping. These planning restrictions are embodied in the site specific DCP for the Skyton land and in the Skyton development consent. In a sense, these planning restrictions have the effect of creating a de facto easement burdening the Skyton land. The after situation merely involves giving formal, legal effect to the existing planning requirements to create an easement as a condition of being able to develop the Skyton land. In the after situation there is in law an easement burdening the Skyton land. The loss and other disadvantage arising from imposition of the easement, therefore, flows from this conversion from de facto to legal easement. 144 However, the sales evidence adduced by the parties does not allow this loss and disadvantage arising from conversion from a de facto easement in the before situation to a legal easement in the after situation to be assessed. There are no sales of directly comparable land to the Skyton land in the before and after situation. Mr Dempsey endeavoured to deal with this difficulty by ignoring all of the planning restrictions burdening the land in the before situation. However, this does not involve the valuing of the land as it actually is in the before situation. He offered no valuation of the land as it actually is in the before situation. 145 In these circumstances, the piecemeal approach is to be preferred. I note that the piecemeal approach was also adopted to assess the compensation for imposition of other easements under s 88K, including a right of way in Wengarin Pty Ltd v Byron Shire Council, an easement over land to allow access for parking in Owners Strata Plan 13635 v Ryan and easements to drain water or sewerage in Mitchell v Boutagy; King v Carr-Gregg; Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 and Tenacity Investments v Ku-ring-gai Council.

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Loss of proprietary rights 146 The first head of compensation under the piecemeal approach is loss of proprietary rights by imposition of the easement. Mr Wood assessed the value of the loss of proprietary rights to be $150,425. This figure was arrived at by, first, valuing the site unencumbered by the easement, then applying a percentage representing the diminution in value caused by the imposition of the easement. Mr Wood did separate calculations for Lot 1 in DP 617754 and Lot 2 in DP 247452 (the bulk of the Skyton land to the east of Darling Mills Creek) and for Lot 2 in DP 247452 (the smaller, isolated parcel on the west of Darling Mills Creek). For Lot 101 in DP 617754 and Lot 2 in DP 247452, Mr Wood assessed the unencumbered value using a rate of $500/m² for the 1,826 m² of the area of the easement in those lots, giving an unencumbered value of $913,000. Mr Wood assessed the diminution in value by imposition of the easement on these lots to be 15% of the unencumbered value, namely $136,950. Mr Wood assessed the unencumbered value of Lot 3 in DP 247452 using a rate of $250/m² for the 539 m² of the area of the easement in that lot, giving an unencumbered value of $134,750. Mr Wood assessed the diminution in value by imposition of the easement on this lot to be 10% of the unencumbered value, namely $13,475. The value of the loss of proprietary rights is the sum of these diminutions in value, namely $150,425. 147 The rate of $500/m² that Mr Wood used for part Lot 101 and part Lot 2 was primarily derived from a sale of 8-18 Briens Road, Northmead. Mr Wood considered that sale to be the most comparable to the Skyton land. The sale was on 19 November 2007 for $3,750,000. The site had an area of 5,728 m². The site had the benefit of development consent for 84 units and 550 m² of ground floor retail. The sale shows a rate of $654/m² of site area. Mr Wood considered that a discount should apply from this sale because of two factors. First, the Skyton land is considerably larger. The whole Skyton land has an area of 15,745 m² but Mr Wood referred to the combined area of Lot 101 and Lot 2 of 12,431 m². This compares to the area of 5,728 m² for 8-18 Briens Road. Secondly, Mr Wood referred to the retail component of 8-18 Briens Road. The Skyton land only has potential for residential, not retail uses. By reason of these two factors, Mr Wood discounted the rate to 500/m². 148 The rate of $250/m² that Mr Wood adopted for part Lot 3 was derived from Skyton's purchase of Lot 3 from the RTA in November 2002 for $650,000. This sum reflects a rate of $196/m² of site area (3,314 m²). Mr Wood considered that Lot 3 would be subject to similar constraints as are applicable to Lot 101 and Lot 2, including the 20m setback from Darling Mills Creek and the 19 m setback from James Ruse Drive. Making allowance for these setbacks, however, would leave a developable area on Lot 3 of only 400 m². Mr Wood stated that it is difficult to rationalise the price paid for Lot 3 on a stand alone basis. Mr Wood concluded that the real value of Lot 3 is not its potential to be developed itself but rather its ability to be included within the overall site area of the land owned by Skyton (ie added to Lot 101 in DP 617754 and Lot 2 in DP247452) to determine the development density of the site. Mr Wood considered the highest and best use of Lot 3 is for open space purposes. By reason of these matters, Mr Wood adopted a rate of 250/m² as being the value of the land to Skyton. 149 Mr Wood's percentages for diminution in value by imposition of the easement reflect the fact that the Skyton land is already encumbered by planning restrictions under the site specific DCP for the Skyton land. Mr Wood referred to the facts that: (a) the DCP requires the internal road layout for any development on the Skyton land to be designed to provide the opportunity for access to adjoining sites and to prevent sterilisation of those sites;

[52]

(e) the area within the proposed right of way will be included in the total site area in the determination of an appropriate floor space ratio. 150 Mr Wood concluded, having regard to these planning restrictions encumbering the Skyton land and the benefit accruing because of the transfer of building entitlement to the residue area of the Skyton land, that the imposition of the right of carriageway would result in a minimal diminution in value of the affected land. He estimated the diminution in value to be 15% for Lot 101 and Lot 2 and 10% for Lot 3. 151 Mr Dempsey did not undertake a valuation using the piecemeal approach. Nevertheless, he did use the sale of 8-18 Briens Road in his before and after approach. Mr Dempsey noted that 8-18 Briens Road had a B4 Mixed Use zoning as compared to the Skyton land's 2(a1) Residential zoning. Mr Dempsey considered the site to be sufficiently large as to be comparable to the Skyton land on size. However, he noted that it fronts the busy arterial road of Briens Road (James Ruse Drive becomes Briens Road) and is located beside an off-ramp and, as a consequence, has a concentration of traffic at its frontage. The site is directly exposed to traffic noise, there being no acoustic barrier such as there is along the frontage of the Skyton land with James Ruse Drive. As a consequence of these adverse impacts of traffic and traffic noise, Mr Dempsey considered 8-18 Briens Road to be of inferior amenity to the Skyton land. 152 Mr Dempsey also noted that 8-18 Briens Road adjoins an industrial use, further detracting from residential amenity. In contrast, Mr Dempsey considered the Skyton land has a superior residential amenity arising from open space in close proximity including Lake Parramatta Reserve, Northmead High School and adjoining land around Darling Mills Creek. 153 Unfortunately, Mr Dempsey did not derive a rate per m² from the sale of 8-18 Briens Road for the Skyton land either before of after imposition of the easement. 154 I agree with the parties' valuers that the sale of 8-18 Briens Road is sufficiently comparable so as to be able to be used to derive the value of the Skyton land unencumbered by the easement. In my opinion, the factors identified by both Mr Wood and by Mr Dempsey are material and should be taken into account to adjust the sale to derive a value for the Skyton land. However, the factors point in different directions and when combined, their effect is likely to cancel each other out. Mr Wood's factors of the higher zoning (B4 Mixed Use instead of 2(a1) Residential), development consent including commercial use and smaller land size (5,728 m² instead of 12,431 m²) tend towards 8-18 Briens Road having a higher value per m² than the Skyton land but Mr Dempsey's factors of the increased proximity and impact of traffic and traffic noise and reduced residential amenity by reason of the surrounding industrial use and inferior environment tend towards 8-18 Briens Road having a lower value per m² than the Skyton land. The valuers did not provide evidence as to what adjustment would need to be made to the sale of 8-18 Briens Road if Mr Dempsey's factors were accepted by the Court. Nevertheless, doing the best I can as judicial valuer, I consider that they are likely to offset any discount for Mr Wood's factors. Accordingly, I find the appropriate rate per m² that should be applied is $654/m². 155 This rate of $654/m² would then need to be applied to the area of the easement imposed on the Skyton land. Mr Wood and Mr Dempsey used the area of the easement proposed in Rainbowforce's application. This was based on the right of carriageway having a width of 10 m. For the reasons I have given earlier in the judgment, I consider the width of the easement should be increased to 12 m so as, first, to be consistent with condition A1 of the Rainbowforce development consent, condition A4 of the Skyton development consent and the site specific DCPs for both the Rainbowforce land and the Skyton land and, secondly, to allow space for landscaping to be provided in the easement which will be beneficial for the amenity of the Skyton land and any development on it. The evidence does not allow me to determine what would be the area of the easement over the Skyton land if the width is increased to 12 m. The parties will need to provide this figure when the matter is relisted for finalising the orders. When the figure is available, the unencumbered value can be calculated by multiplication of that area by $654/m². 156 As I have noted above, Mr Wood used the rate per m² derived from the sale of 8-18 Briens Road only to calculate the unencumbered value of part of Lot 1 in DP 617754 and Lot 2 in DP 247452 and used a different rate per m² for Lot 3 in DP 247452 derived from the sale of that Lot from the RTA to Skyton in November 2002 adjusted to take account of the development potential of Lot 3. 157 In my opinion, the same rate per m² should be used for all three lots of the Skyton land. As Mr Wood states, in the hands of Skyton, Lot 3 has value as part of the overall site area. Lot 3 would be included within the site area to determine density of development and for purposes of provision of open space and landscaped area, in the same way that the 19 m setback from James Ruse Drive on Lot 101 and Lot 2 can be used for these purposes. Mr Wood does not use a different rate per m² for the setback area on Lot 101 and Lot 2 compared to the developable areas of those Lots on the basis that they cannot be developed except for the limited purposes of vehicular and pedestrian access, parking and landscaping. For the same reasons, a different rate should not be used for another part of the Skyton land, Lot 3, that is not developable except for limited purposes such as vehicular and pedestrian access, parking, landscaping or open space. Accordingly, the rate of $654/m² should be applied to the whole area of the easement (with a width of 12 m²) over each of Lot 101 in DP 617754 and Lots 2 and 3 in DP247452. 158 I turn now to the appropriate percentage that should be used for the diminution in the unencumbered value arising from the imposition of the easement. As I have noted earlier, Mr Wood allowed only a "minimal diminution in value" of 15% for the effect of imposition of the easement on Lot 101 and Lot 2 because of the existing planning restrictions encumbering the land over which the easement would be imposed and the benefit accruing because of the transfer of building entitlement to the residue area. Mr Wood allowed an even lower percentage of 10% for the effect of imposition of the easement on Lot 3. 159 Mr Dempsey was critical that Mr Wood did not expose his reasoning for selecting the figures of 15% or 10%. However, Mr Dempsey did not provide an alternative figure, although having regard to his evidence as to the potential impacts of the easement one would infer that he would have assessed the diminution to be greater. In his before and after valuation, Mr Dempsey arrived at a before land value of $5,750,000 and an after land value of $4,000,000, reflecting a loss of $1,750,000. This is a 30% diminution in value. However, because this is a product of the before and after method of valuation, this figure includes not only the loss of proprietary rights but also compensation for injurious affection and some items of disturbance. Hence, the loss of proprietary rights would be a smaller percentage than the 30%. 160 In my opinion, there is considerable force in Mr Wood's reasons for stating that the imposition of the easement on Lot 101 and Lot 2 does not greatly diminish the value of the land burdened by the easement. It is true that imposition of the easement makes the restrictions on the use of the land burdened legal; it puts a "blot on the title". However, the planning restrictions, including in the site specific DCP for the Skyton land and in the Skyton development consent, require the creation of an easement over the Skyton land and severely restrict the use of that part of the land that would be burdened by the easement. 161 Nevertheless, I consider that Mr Wood's estimate of 15% for Lot 101 and Lot 2 is too "minimal" and a more appropriate figure is 20%. The imposition of the easement formalises the restrictions and creates the blot on the title. It will result in the construction of the permanent works of the access road, footpath and bridge in the easement, thereby foreclosing Skyton's options for use of the land burdened, such as greater areas of landscaping to benefit any development on the Skyton land. 162 In relation to Lot 3, the proposed location is through the middle of the Lot. This location accords with the requirements of the site specific DCPs for the Rainbowforce land and the Skyton land, in both the text and the plans. The Skyton development consent is more equivocal because the conditions refer to a plan that shows a "possible future road" that crosses in the north-eastern corner of Lot 3. If Lot 3 itself were able to be developed for residential purposes, the developable area would include the middle of the lot through which the proposed easement passes. The easement would, therefore, restrict the potential of Lot 3 to be developed itself for residential purposes. 163 Mr Wood's analysis, however, is that Lot 3 itself would not be able to be developed for residential purposes. If similar setbacks were to be required for Lot 3 as are required for the balance of the Skyton land, and also for the Rainbowforce land, any development for residential purposes on Lot 3 would need to be setback 19 metres from James Ruse Drive and 20 metres from Darling Mills Creek. Mr Wood calculated this would only leave 400 m² of developable area, insufficient for the kind of medium to high density residential development approved on the Skyton land or the Rainbowforce land. In addition, the middle of Lot 3 is burdened by the existing easement for the high pressure pipeline in favour of Caltex. This restricts the development that can be carried out over the easement. The location of the proposed right of carriageway overlaps with this easement for the pipeline. Caltex have indicated they will consent to the easement and the construction of the access road, footpath, bridge and associated landscaping works in the easement. Mr Wood concluded that the highest and best actual use of Lot 3 is for open space purposes (passive recreation). The real value of Lot 3 lies in its ability to be included in the overall site area of the Skyton land to determine the development density of the site. In effect, the building entitlement of Lot 3 is transferred to the balance of the Skyton land, Lot 101 and Lot 2. 164 I accept Mr Wood's analysis that, even without the easement being imposed, Lot 3 would not be able to be developed itself but rather would be used for open space and have its building entitlement transferred to Lot 101 and Lot 2. The imposition of the easement will not alter this position. However, the location of the easement and the construction of the access road may have some adverse effect on the amenity and usability of the open space. Mr Wood provided for a 10% diminution. I consider this to be a fair estimate. 165 In summary, the value of the loss of proprietary rights can be calculated as being the sum of: (a) 20% of the product of the area of the easement over Lot 1 in DP 617754 and Lot 2 in DP 247452, expressed in m ², multiplied by $654/ m ²; and

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Disturbance 166 Skyton is entitled to be compensated for disturbance in the period of construction and any future maintenance and repair of the access road, footpath and associated landscaping works in the easement. Mr Wood noted that the land over which the easement would traverse is vacant. There is a disused building (the former Dairy Farmers Depot building) which would need to be partially demolished and the remainder made good at the expense of Rainbowforce to construct the access road in the easement (this is provided for in the proposed terms of the easement). Mr Wood considered that otherwise disturbance during the period of construction and post construction would be nominal and determined an amount of $5,000 to be fair and reasonable. Mr Dempsey did not assess a separate item of disturbance because of his use of the before and after valuation method. 167 As far as disturbance during construction of the access road, footpath and associated landscaping works in the easement, I agree with Mr Wood that it is likely to be nominal. All of the Skyton land is currently vacant and not being used for any purpose. Rainbowforce has indicated it is ready, willing and able to commence construction in the easement immediately after Rainbowforce obtains all necessary consents. Mr Hamilton, Rainbowforce's engineer, gave evidence that the bridge, access road and footpath can be completed in 6 months. This will be well before occupation of any development that might be carried out by Skyton on the Skyton land. 168 To ensure this outcome, Rainbowforce proferred a provision of the instrument under s 88B of the Conveyancing Act that would entitle Skyton, within 14 days of the date of commencement of building works in respect of Skyton's development consent, to serve on Rainbowforce a construction commencement notice. Rainbowforce would be required, within 6 months of receipt of that notice, to complete the access road, footpath and associated landscaping works required by condition 113 of the Skyton development consent (see also condition A5). Furthermore, Rainbowforce would be required, within 21 months of receipt of that notice, cease the use of the right of way for construction traffic. Such a provision minimises the risk of preventing or delaying occupation of Skyton's completed development (which would take a similar time to complete). 169 As far as future maintenance and repair is concerned, the terms of the easement require, amongst other things, such work to be carried out properly, to cause as little inconvenience as is practicable to Skyton, to cause as little damage as is practicable to Skyton and any improvement on the Skyton land, to restore any portion of the Skyton land disturbed during the carrying out of the works and to make good any collateral damage. The location of the easement is separated from any development likely to occur on the Skyton land except the small part where there is a common entrance off the North Rocks Road. Maintenance and repair of the access road, footpath and associated landscaping works in the easement is therefore unlikely to cause disturbance to any use of the Skyton land. 170 On the current evidence, therefore, initial and future disturbance is likely to be minimal. In the absence of any other evidence, I accept Mr Wood's figure of $5,000 as compensation for such disturbance. However, it is appropriate to reserve liberty to Skyton to apply for further compensation for disturbance if some unexpected event occurs (such as Rainbowforce failing to comply with the covenants to complete the works in the easement in 6 months or to cease use of the easement for construction traffic in 21 months) and further loss or other disadvantage arises from imposition of the easement.

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(e) The added amenity impacts occasioned by the use of the right of way are nominal by comparison to the high volume, high density traffic utilising James Ruse Drive. The prerequisite construction standards for any residential development on the Skyton land undoubtedly will have a positive benefit in respect to any impact arising from the use of the right of way. 173 Mr Dempsey did not assess a separate item for injurious affection because of his use of the before and after method of valuation. 174 I accept Mr Wood's figure of 5% essentially for the reasons he gives. Furthermore, as I have found earlier, I do not consider it likely that the traffic for construction and use of the Rainbowforce development will cause unacceptable amenity impacts on any completed development on the Skyton land. The strategic and site specific planning for the Rainbowforce land and the Skyton land, the Skyton development consent and the Rainbowforce development consent all contemplate the construction and use of a right of carriageway of the nature and extent and in the general location proposed by Rainbowforce. It can be inferred that this would not be so if unacceptable amenity impacts would be likely to be caused to any development on the Skyton land by construction and use of the right of carriageway. Furthermore, there will be another opportunity for the Council to consider and, if necessary, prevent or mitigate any unacceptable amenity impacts when Rainbowforce lodges its development application for construction of the access road, footpath and associated landscaping works in the easement imposed. 175 Although I accept Mr Wood's figure of 5%, I consider that the rate per m² that should be applied should be $654/m² not $500/m², for the reasons I have given earlier. The area of the residue area will also need to be calculated having regard to the width of the easement imposed being increased to 12 m. When the residue area figure is available, the value of injurious affection that I consider is appropriate can be calculated as being 5% of the product of the residue area of Lot 101 in DP 617754 and Lot 2 in DP 247452, expressed in m², multiplied by the rate of $654/m². 176 Mr Wood then offset from his figure for injurious affection an increment in value by reason of Rainbowforce constructing a bridge in the easement and thereby providing access to any development Skyton might carry out on Lot 3 in DP 247452 or access for open space purposes (passive recreation). Mr Wood assessed this increment in value as $165,700. This figure was calculated by multiplying the area of Lot 3 (3,314 m²) by the increase in value of $50/m² (being an increase from the unencumbered value Mr Wood used of $250/m² to $300/m²). 177 I do not consider that the evidence establishes that there will be an increment in value as a result of the imposition of the easement and the construction of the bridge. It is true that construction of the bridge will allow vehicular and pedestrian access from one part of the Skyton site (Lot 2 in DP 247452 and Lot 1 in DP 617754) to another part (Lot 3 in DP 247752) but there is no sales evidence establishing that this will cause an increase in value. As Mr Wood observed, the real value of Lot 3 is not its development potential but rather its ability to be included in the overall site area to determine the development density for development to be carried out on Lot 101 and Lot 2. This value arises whether or not there is a bridge connecting the parts of the Skyton land. The evidence does not establish that, in the hands of Skyton, the value of Lot 3 would increase with the construction of the bridge. Accordingly, I do not allow any increment in value in Lot 3 in DP 247452 by reason of construction of a bridge as an offset against injurious affection to the residue of Lot 101 in DP 617754 and Lot 2 in DP 247452.

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Terms of the easement 185 Section 88K(3) of the Conveyancing Act provides: "The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies." 186 Rainbowforce has provided a draft instrument setting out the terms of the easement and positive covenants intended to be created pursuant to s 88B of the Conveyancing Act and a survey plan. Rainbowforce subsequently proferred an additional provision to be inserted into the instrument allowing Skyton to give notice to Rainbowforce of commencement of construction of its development (a construction commencement notice), which would trigger obligations on Rainbowforce, first, to complete construction of the access road, footpath, bridge over Darling Mills Creek and associated landscaping works in the easement within 6 months of receipt of the construction commencement notice and, secondly, to cease use of the right of way for construction traffic within 21 months of receipt of the construction commencement notice. This additional provision addressed a number of Skyton's concerns and was responsive to the evidence at the hearing, including by Mr Hamilton. The additional provision is appropriate. The s 88B instrument will need to be amended to incorporate this provision. 187 I have determined that the width of the right of carriageway should be increased from 10 metres to 12 metres wide. This does not necessarily involve widening the width of the access road, footpath and bridge, but rather allows for landscaping. The s 88B instrument and the survey plan will need to be amended to reflect the increased width of 12 metres. 188 Skyton objected to a number of the terms of the s 88B instrument drafted by Rainbowforce. Some of these objections were resolved through the course of the hearing. The outstanding objections are as follows. 189 First, Skyton objected to the instrument providing for an "access area" outside the boundaries of the easement and upon which Rainbowforce could enter and carry out the works of the access road, footpath, bridge and landscaping in the easement (see the definition of "Access Area", cl 1.1(b) (second occurring), cl 1.2(g) and cl 2.1(b) (second occurring) of the draft instrument). Skyton submitted that Mr Hamilton, the engineer called by Rainbowforce who gave evidence on the design and construction of the access road, footpath and bridge in the easement, indicated that all works could be carried out entirely within the boundaries of the easement. Hence, Skyton submitted, there is no need to provide for an access area outside the boundaries of the easement. I agree with Skyton. Mr Hamilton's evidence was that all necessary construction works could be undertaken within the easement. If the width of the easement is increased to 12 metres as I have indicated is appropriate, there ought be no need for Rainbowforce to have an access area outside the boundaries of the easement. Accordingly, the provision of an access area should be deleted from the s 88B instrument and survey plan and the terms of the instrument and survey plan revised accordingly. 190 Secondly, Skyton submitted that the definition of "work" in the instrument should be amended to delete reference to pedestrian pathways, cycleways, drainage, landscaping and street lighting. As far as the pedestrian pathways and cycleways are concerned, this submission was a consequence of Skyton's argument that an easement for pedestrian access was not reasonably necessary under s 88K(1) of the Conveyancing Act. I have rejected that argument for reasons that I have given above. Accordingly, pedestrian pathways and cycleways should remain in the definition of "works" in the instrument. 191 Skyton's submission that landscaping should be deleted was responsive to Rainbowforce's proposal to reduce the width of the easement to 10 metres by deleting landscaping. I have determined that this is not appropriate and that the width of the easement should be reinstated to 12 metres as required by the Council and to contain landscaping. Hence, the reference to landscaping should remain in the definition of "works" in the instrument. 192 Skyton's suggestion that drainage should be deleted was responsive to Mr Hamilton's evidence that development on the Rainbowforce land could be constructed in such a way as not to require drainage into the easement on Lot 3. I agree with Skyton that drainage is no longer necessary and it should be deleted from the definition of "works" in the instrument. 193 Finally, as far as street lighting is concerned, I consider that this is a matter for the Council to determine when it considers the development application that Rainbowforce will need to make for consent to carry out the access road, footpath, bridge and associated landscaping works in the easement. The Council can determine whether the provision of street lighting is appropriate and, if so, any conditions to ensure that street lighting will not cause any unacceptable impacts on any development on the Skyton land. Accordingly, the reference to street lighting should remain in the definition of "works" in the instrument. 194 Thirdly, Skyton objected to cl 5.1 and cl 5.2 of the instrument. Clause 5.1 requires Skyton to do certain things, including giving its written consent as owner of the land to any application Rainbowforce might need to make, and cl 5.2 provides that, in the event of Skyton failing to do so, Skyton is to pay indemnity costs for any legal proceedings Rainbowforce might need to bring to enforce its rights against Skyton under cl 5.1. 195 These provisions undoubtedly have been included by Rainbowforce in an endeavour to overcome the problems which dominant owners have encountered in the past in obtaining the co-operation and consent of servient owners to make valid applications for statutory approvals to undertake works in the easement which the dominant owner is entitled by the terms of the easement to undertake. The most common example is the servient owner refusing to give written consent as owner of the land to the dominant owner making a development application under the EPA Act to carry out works for the purpose of which the easement was granted. The written consent of the owner of the land on which development is proposed to be carried out is a statutory requirement of an effective development application: see s 78A(1) of the EPA Act and cl 50(1)(a) and para 1(i) of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. If the servient owner fails voluntarily to give its consent to the making of the development application, the dominant owner is forced to bring proceedings in the Supreme Court to obtain the consent of the servient owner: see Annwrack Pty Ltd v Williams; Patrial Holdings v Short (1994) NSW ConvR 55-711; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 522. 196 The grant of an easement impliedly obliges the servient owner to give its consent to the making of an application for a statutory approval to undertake works within the easement over the servient tenement, being works for the purpose of which the easement was granted. However, it is appropriate to make the obligation express as a term of the easement. This was done in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 522. Accordingly, I consider it is appropriate to impose a provision such as cl 5.1 in the s 88B instrument. 197 However, I do not consider it is appropriate to impose the indemnity costs provision proposed in cl 5.2. The basis on which a court should order a party to pay costs of proceedings is a matter for the court hearing those proceedings to determine in light of all the circumstances, including any unreasonable conduct of each party. I do not consider it appropriate to foreclose that judicial discretion by making it mandatory in all proceedings that Rainbowforce may bring for Skyton to pay Rainbowforce's costs and on an indemnity basis. Clause 5.2 should, therefore, be deleted from the s 88B instrument. 198 Skyton also proposed some additional conditions to be inserted in the s 88B instrument if the Court was minded to impose an easement. Rainbowforce opposed these additional conditions. 199 First, Skyton sought a condition in respect of compensation for any additional noise attenuation measures that Skyton might need to undertake in order to neutralise additional internal noise levels with windows and doors open in the Skyton units so as to comply with condition 28 of the Skyton development consent, caused by traffic on the access road in the easement. As I have noted earlier in the judgment, condition 28 requires Skyton to meet the prescribed internal noise levels or alternatively provide either a mechanical or natural ventilation system or a special acoustic design solution approved by the Council to satisfy the requirements for windows and external façade doors being open. The evidence does not establish whether, even without the easement and the traffic on the access road in the easement, Skyton will be able to comply with the prescribed internal noise levels or will have to resort to the alternative provision of mechanical or natural ventilation system or special acoustic design solution. If noise from the high volume traffic on James Ruse Drive would in any event require Skyton to resort to the alterative provision then, as a matter of causation, the imposition of the easement would not cause Skyton to suffer loss by making this alternative provision. If, however, Skyton establishes that the additional traffic on the access road, beyond the existing traffic on James Ruse Drive, will increase the internal noise levels so as to exceed the prescribed levels and thereby cause Skyton to make alternative provisions, then the cost of doing so can be said to arise by imposition of the easement. 200 I consider the appropriate way to deal with this issue is not by imposition of a term in the s 88B instrument creating the easement, but rather by reserving liberty to Skyton to apply for further compensation if it suffers further loss by making alternative provision to satisfy condition 28 of the Skyton development consent and such further loss arises by imposition of the easement (ie causation is established). 201 Secondly, Skyton sought a condition requiring Rainbowforce to pay the costs of any modification application under s 96 of the EPA Act Skyton might need to make to modify the Skyton development consent to accommodate the works within the easement. In principle, it would be reasonable for Rainbowforce to pay such costs as are established to be caused by imposition of the easement. However, in reality, causation may not be so clear. The Skyton development consent actually requires the creation of the easement and construction of the access road, footpath and associated landscaping in the easement (see conditions A4, A5 and 113 of the Skyton development consent). Hence, the Skyton development consent, on a proper construction, may not require any modification if the easement is imposed and the access road, footpath and associated landscaping works are constructed, as intended. Skyton may also wish to modify the Skyton development consent for its own reasons and include these other modifications with any that are required to accommodate the works within the easement. In this situation, a question of causation arrises: do Skyton's costs of the modification application, in whole or part, arise from imposition of the easement? Skyton may also decide not to take up the Skyton development consent but instead apply for consent for an alternative development, as it already has done so in 2008 and 2009 with its further development application. Issues of causation would again arise. 202 I consider again that the appropriate course to deal with this issue is not to impose a term in the s 88B instrument creating the easement, but rather to reserve liberty to Skyton to apply for further compensation if it suffers further loss by making application to modify its development consent and such loss arises by imposition of the easement (ie causation is established). 203 Thirdly, Skyton sought seven conditions dealing with construction traffic using the easement. The first was a condition terminating the use of the easement for construction traffic two years and seven months after the date the easement is granted. This issue has been addressed by Rainbowforce's proffered provision in the instrument that within 21 months of Skyton serving a construction commencement notice, Rainbowforce will cease using the easement for construction traffic. 204 The second was a condition restricting the use of construction traffic to Monday to Friday. I do not consider that this condition is appropriate for a number of reasons. The period of use by construction vehicles will be limited by use of Rainbowforce's proferred provision restricting use of the easement for construction traffic to a period of 21 months after Skyton serves a construction commencement notice. The Skyton site is currently vacant. Any development on the Skyton site is not likely to be completed before the 21 month period expires. The Rainbowforce development will also be completed in a shorter period of time if construction traffic is not restricted to only Monday to Friday. Finally, the Council can consider this issue when Rainbowforce lodges its development application for consent to construct the access road, footpath, bridge and associated landscaping works and may be able to regulate the times of use if this is considered appropriate. 205 The third is a condition restricting parking by construction vehicles for the access area. I consider this condition also to be inappropriate, for the same reasons I have given above in relation to Skyton's suggested condition restring use of the easement for construction traffic from Monday to Friday. 206 The fourth condition deals with the road and bridge construction. Skyton sought a condition requiring: "(1) road and bridge construction to be completed no later than 7 months from the grant of the easement;

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211 The sixth condition was one requiring the provision of a bank guarantee to protect and rectify landscaping works on the Skyton land that may be damaged during the construction period. I do not consider this condition to be necessary. The proposed terms of the easement already require Rainbowforce to ensure all works are carried out properly; to cause as little inconvenience as is practicable to Skyton; to cause as little damage as is practicable to Skyton and any improvements on the Skyton land; to erect a suitable temporary construction fence along the northern side of the right of carriageway; to promptly restore, as nearly as is practicable to its former condition, any portion of the Skyton land that is disturbed by the carrying out of the works; and to make good any collateral damage. Furthermore, I have accepted Skyton's submission that the access area should be deleted from the instrument and all works should be required to be carried out within the boundaries of the easement. Collectively, these terms are sufficient without also requiring a bank guarantee. 212 The seventh condition was one restricting the use and works on the easement to ensure that there are no letterboxes and that the North Rocks Road street address cannot be used by the residents of the Rainbowforce development. I do not consider that this is appropriate to be imposed as a term of the easement. It was a matter for the Council to consider when it determined to grant the Rainbowforce development consent and will again be a matter for the Council when it considers whether to grant any future development consent for the access road, footpath and associated landscaping works in the easement. 213 I have noted a number of times in the judgment that Rainbowforce will need to lodge a development application with the Council to construct the access road and footpath, including the bridge over Darling Mills Creek, and the associated landscaping works. The Council may impose conditions on the consent to carry out such development, which conditions may prevent or mitigate adverse impacts on the Skyton land or any development of it. In these circumstances, I consider that is appropriate to order that Rainbowforce not commence any development or works in the easement until appropriate consents have been obtained and Rainbowforce is otherwise entitled in law to do so. I note that such an order was made in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 522.

Parties

Applicant/Plaintiff:

Rainbowforce Pty Limited

Respondent/Defendant:

Skyton Holdings Pty Limited and Ors

Cases Cited (31)

(2010) 171 LGERA 286 Reported Decision : [2010] ALMD 3117 [2010] ALMD 3345

CITATION : Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2

117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 A Class Property Pty Ltd v Parker [2004] NSWLEC 398 Antipas v Kutcher [2006] NSWLEC 42; (2006) 144 LGERA 289 Annwrack Pty Ltd v Williams, unreported, NSWSC No 3101 of 1988, Waddell CJ in Eq Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197 Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436; (2004) 136 LGERA 356 Blulock Pty Ltd v Majic [2001] NSWSC 1063; (2002) NSW ConvR 56-012 Castagnet Investments Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 647 Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 Durack v de Winton (1998) 9 BPR 16,403 Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 Gordon v Gioia [2007] NSWLEC 509 Grattan v Simpson (1998) 9 BPR 16,649; (1999) NSW ConvR 55-880 Hanny v Lewis (1998) 9 BPR 16,205; (1999) NSW ConvR 55-879 Huntington & Macgillivray v Hurstville City Council (No 2) [2005] NSWLEC 155; (2005) 139 LGERA 84 CASES CITED: In the matter of an application by Kindervater (1996) ANZ ConvR 331 Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; (1999) 9 BPR 17,303 Khattar v Wiese [2005] NSWSC 1014 King v Carr-Gregg [2002] NSWSC 379 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Mitchell v Boutagy [2001] NSWSC 1045; (2001) 118 LGERA 249; (2002) NSW ConvR 56-024 Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 Patrial Holdings v Short (1994) NSW ConvR 55-711 Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709 Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317 Skyton Developments Pty Ltd v The Hills Shire Council [2009] NSWLEC 1299 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 Tenacity Investments v Ku-ring-gai Council [2008] NSWLEC 27 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485; (1999) 9 BPR 16,985; (1999) NSW ConvR 55-903 Wilson v Forrester-Babcock [2000] NSWSC 1208; (2000) 10 BPR 18,377 Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120; (2004) NSW ConvR 56-071

(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary." 19 As noted in Khattar v Wiese [2005] NSWSC 1014 at [2], on an application under s 88K of the Conveyancing Act, the issues which arise are: (a) Is the proposed easement reasonably necessary for the effective use or development of the applicant's land that will have the benefit of the easement (s 88K(1))?

(2010) 171 LGERA 286

(1998) 43 NSWLR 504

(2006) 144 LGERA 289

(2004) 136 LGERA 356

(2005) 139 LGERA 84

(1991) 171 CLR 506

(2001) 118 LGERA 249

(2003) 127 LGERA 120