Random Primer Pty Ltd v The Owners Corporation Strata Plan 533

Outline of the parties' submissions

The plaintiff submitted that the use of the driveway that will result from the proposed development is not excessive, noting that the easement expressly confers on the plaintiff as the dominant owner a full and free right to go, pass, and repass over the driveway to and from the dominant tenement, at all times and for all purposes. The plaintiff further submitted that the proposed development does not unreasonably interfere with the reasonable use of the servient tenement by the defendant, emphasising that safety issues relating to the exit of vehicles from the Pacific Highway onto the driveway, and the entry of vehicles from the driveway onto the Pacific Highway, are matters for the consent authority and are not relevant to questions of unreasonable interference. The plaintiff submitted that the defendant's refusal to provide its written consent to the making of the development application is therefore substantially interfering with the plaintiff's enjoyment of its rights under the easement. The plaintiff accepted that the defendant's provision of written consent for the making of the development application would not constrain the defendant in any way from opposing the granting of development consent on such grounds as the defendant may choose to mount its opposition to the proposed development.
The defendant submitted that the Court should not grant the mandatory injunction requiring it to provide written consent to the making of the development application for four reasons.
First, the defendant submitted that the development application is materially inconsistent, incorrect, misleading and confusing. In oral submissions, counsel for the defendant went so far as to describe the development application as "incoherent". It was submitted that the development application fails to describe the proposed development sufficiently for the Court to understand what is the substance of the development application that the Court is being asked to order the defendant to consent to.
Somewhat inconsistently with that submission, the defendant also submitted as part of its designated first reason that the proposed development is unworkable because the passing bay proposed to be constructed on the plaintiff's land is of insufficient width to allow two cars to pass one another. It was submitted that the defendant is entitled to refuse to consent to the making of a development application that is "deficient" or "won't work".
The plaintiff submitted that inconsistencies between some of the documents comprising the development application were the result of the revision of certain plans and other documents to address issues that had been raised by the Council during its assessment of the application, that this was a common occurrence in development application processes, and that the inconsistencies identified by the defendant did not entitle it to refuse to consent to the making of the development application. The plaintiff further submitted that the defendant is not entitled to refuse to consent to the making of the development application on the basis that it disagrees with certain contents of the documents comprising the development application, which the defendant characterises as inaccurate or misleading. The plaintiff submitted that the defendant is entitled to raise all of those matters in opposition to the granting of development consent, after it consents to the making of the development application.
The second reason advanced by the defendant was that the development application is for a development that would increase traffic over the driveway to an extent that would constitute excessive user and/or an unreasonable interference with the defendant's rights in respect of the driveway on its land. The defendant submitted that this was demonstrated not by the experts' assessment of the increase in the number of vehicle trips over the driveway that will be generated by the proposed development, but by the very fact that the plaintiff itself has recognised that the increased traffic will require a widening of the driveway where it joins the Pacific Highway, and has therefore incorporated the passing bay into the development application.
The third reason advanced by the defendant was that the proposed development would unreasonably interfere with its own reasonable use of the servient tenement by managing the increased vehicular traffic on the driveway that is the subject of the easement in a way that requires all vehicles travelling along the driveway towards the Pacific Highway (including vehicles driven by occupants of and visitors to No. 184) to leave the driveway on No. 184 (the servient tenement) and pass onto the proposed passing bay on No. 186. It was submitted that the terms of the easement do not contemplate that the occupants of and visitors to the servient tenement would be precluded from using any part of the driveway on the servient tenement. It was submitted that the defendant is therefore not infringing the plaintiff's rights under the easement by declining to consent to the making of the development application in respect of a development that would preclude the defendant from using that part of the driveway on its land for vehicles travelling in the direction of the Pacific Highway.
The defendant also submitted that the proposed development would unreasonably interfere with its own reasonable use of the servient tenement by requiring pedestrians passing between the apartment building on No. 184 and the Pacific Highway to use a pedestrian pathway to be constructed on No. 186, rather than using the existing driveway on No. 184. Moreover, the defendant complained that the development application does not explain how pedestrians using that proposed pathway would access No. 184 from the pathway. The revised landscape plans show landscaping along the edge of the pathway that the defendant submitted would effectively preclude pedestrians from accessing No. 184 from the proposed pathway. It was submitted that the terms of the easement do not contemplate that the occupants of and visitors to the defendant's land would be precluded from using any part of the driveway on the servient tenement. It was submitted that the defendant is therefore not infringing the plaintiff's rights under the easement by declining to consent to the making of the development application in respect of a development that would preclude the pedestrian residents of and visitors to No. 184 from using the existing driveway on the defendant's land to access the Pacific Highway.
The defendant emphasised that both the proposed passing bay and the proposed pedestrian pathway will require new, enduring property rights to be conveyed from the plaintiff by way of easements over those parts of its land for the benefit of the defendant's land. The defendant submitted that no such easements can be created or registered without its consent, and that it cannot be compelled to consent. It was submitted that the question whether the defendant will consent to those proposed easements must be resolved before the defendant could be ordered to consent to the making of the development application. Counsel for the defendant submitted that the development application process would otherwise be "moot" because, ultimately, the defendant would not consent to the transfer of the easements for its benefit that are required to implement the proposed development.
The defendant submitted in opening that, insofar as the proposed easements concern the passing bay, resolution of the question whether the defendant will consent to the proposed easements requires this Court to resolve the issues raised by the defendant about the proposed passing bay design, which it contends presents an obvious and clear safety risk. The defendant further submitted that, as a matter of discretion, this Court should not order the defendant to consent to the making of the development application that raises such safety risks. In closing submissions, however, counsel for the defendant expressly abandoned any suggestion that this Court should adjudicate issues of public safety in these proceedings. In my opinion, that concession was correctly made. [15]
As I have already mentioned, the plaintiff submitted that the proposed development would not give rise to excessive user or unreasonable interference by the plaintiff with the defendant's use of the servient tenement. The plaintiff accepted that the defendant cannot be compelled to accept the transfer of new easements benefitting No. 184 over those parts of No. 186 that are shown in the revised architectural and landscape plans as the passing bay and pedestrian pathway. The plaintiff submitted that uncertainty about whether the defendant will accept those proposed transfers does not entitle the defendant to refuse to consent to the making of the development application, and does not constitute a reason for this Court declining to order the defendant to provide that consent if it is otherwise satisfied that such an order should be made. The plaintiff accepted that the defendant is entitled to raise any objections to the proposed new easements in opposition to the granting of development consent. The plaintiff also accepted that one potential outcome of the development application is that the LEC, exercising the powers of the consent authority in the Class 1 proceedings, might grant development consent conditional upon the defendant consenting to the transfer of the proposed easements and the registration of those easements. If the defendant then refused to consent, it would be incumbent on the plaintiff to apply to modify that condition if it wished to proceed with the development for which consent had been granted.
The fourth reason advanced by the defendant was that the development application is incomplete and ineffective because it was made without the defendant's consent that is required by clause 23(1) of the EPA Regulation. It was submitted that the plaintiff therefore lacks the status of an "applicant", and that there has been no "determination" of any development application, within the meaning of s 8.7 of the EPA Act. It follows, in the defendant's submission, that the Class 1 proceedings were not "lawfully commenced". Whilst the defendant accepted that the plaintiff's development application would become effective if the defendant were now to provide its consent to the making of the application, and that this would confer on the plaintiff the status of an "applicant" within the meaning of s 8.7 of the EPA Act, the defendant submitted that the plaintiff then would need to commence fresh Class 1 proceedings. The defendant submitted that the plaintiff was out of time to do so because more than six months has passed since the date on which the plaintiff was notified of the Council's refusal of development consent. Counsel for the defendant suggested that, if the defendant now provided its consent to the making of the development application, that would "in some way revive" the decision made by the Council to refuse development consent, so that there would be a determination from which the plaintiff could appeal under s 8.7 of the EPA Act. However, it was submitted that this "revival" would occur retrospectively, with the consequence that the six month limitation period under s 8.10 of the EPA Act commenced to run on 22 September 2023 and has already expired. It was submitted that this problem renders the present proceedings futile because, if this Court were to order the defendant to provide written consent to the making of the development application, the plaintiff would be time-barred from commencing fresh Class 1 proceedings appealing against the Council's refusal of consent for the proposed development. It is implicit in these submissions that the defendant contends that the existing Class 1 proceedings must be dismissed by the LEC for want of jurisdiction.
In response to those submissions of the defendant, the plaintiff relied on the judgments of the Court of Appeal in Botany Bay v Remath and Al Maha.
This is a convenient point at which to record that the plaintiff objected to the evidence of Mr Pavlovic, and the expert evidence of Ms Marshall-Evans, on the grounds of relevance. The plaintiff nevertheless adduced Mr Brodie's expert evidence responding to Ms Marshall-Evans' report, and relied on the joint report of the two experts. The evidence to which the plaintiff objected was admitted subject to relevance. As will become apparent below, the evidence of Mr Pavlovic, Ms Marshall-Evans and Mr Brodie has been relevant to delineating between existing public road safety issues on the one hand, and questions of whether the proposed development would result in excessive use of the easement or unreasonable interference with the defendant's rights on the other hand. That distinction has been relevant to the disposition of many of the defendant's grounds of opposition to the relief sought by the plaintiff in these proceedings in accordance with the applicable principles summarised at [42] above.

Consideration and determination

It is convenient to structure my consideration of the issues according to the four reasons advanced by the defendant for opposing the plaintiff's claim for relief, starting with the second and third grounds of opposition which are directly relevant to the issues to be determined as articulated by the Court of Appeal in Lowe. [16]
As to the second ground, [17] I accept the plaintiff's submission that the starting point for considering questions of alleged excessive use by a dominant owner, or unreasonable interference by a dominant owner with the servient owner's use of the servient tenement, is the rights conferred by the easement, properly construed.
The easement is to be construed in accordance with the language of the easement itself, without reference to extrinsic evidence of the kind that might be relevant to the construction of a contract, but having regard to the physical features of the dominant and servient tenements. [18] In the present case, the easement confers "full and free right … to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement of any such part thereof". Those very wide words are not to be read down by reference to the purpose for which the dominant tenement was used at the date of the grant of the easement. [19]
It was submitted on behalf of the defendant that, having regard to the configuration of the dominant and servient parcels of land as at the date of the grant of the easement, which has not changed, the easement should not be construed as excluding the servient owner from using the area of its land over which the easement was granted. The plaintiff did not submit otherwise.
As referred to at [42] above, the requirement to avoid substantial interference applies to both the dominant and servient owners, requiring each of them to exercise some restraint. The question whether or not particular conduct of one constitutes unreasonable interference with the rights of the other requires a common sense judgment in all the circumstances of the case.
I reject the defendant's submission that the incorporation of the proposed passing bay into the plaintiff's development application demonstrates that the proposed development will generate an increased level of traffic using the driveway that will constitute excessive user or unreasonable interference by the plaintiff with the defendant's rights in respect of No. 184. The revised architectural plans included in the development application show that the passing bay does not extend along the whole of the length of the driveway. It is to be constructed on the defendant's land adjacent to the existing driveway for a distance of only nine metres over that part of the driveway closest to its intersection with the Pacific Highway. I infer from this that the object of the passing bay is not to facilitate the use of the whole of the driveway by the existing traffic together with the 3.3 additional vehicles from No. 186 that Ms Marshall-Evans and Mr Brodie estimate will use the driveway in the AM and PM peak periods if the proposed development proceeds. Rather, I infer that the object of the passing bay is to address existing public road safety issues that arise when a vehicle seeking to turn into the driveway from the Pacific Highway needs to wait stationary on the Pacific Highway to give way to a vehicle that is simultaneously seeking to exit from the driveway onto the Pacific Highway, as described in Mr Pavlovic's evidence. Those public road safety issues arise from the existing width of the driveway, rather than the level of use of the driveway. The evidence in these proceedings does not establish that the instances of conflict between vehicles exiting and entering the driveway to and from the Pacific Highway would be likely to increase by the generation of an additional 3.3 vehicle movements from No. 186 in the AM and PM peak periods. That would depend inter alia on whether the estimated additional 3.3 vehicle movements were all trips in the same direction in each of the AM and PM peak periods. For those reasons, and having regard to the very wide terms of the easement granted to the plaintiff, the incorporation of the passing bay into the design of the proposed development application says nothing about whether those additional 3.3 vehicle movements in the AM and PM peak periods will result in excessive user or unreasonable interference with the defendant's rights in respect of No. 184. As the plaintiff submitted, the public road safety issues raised by the defendant are matters for the consent authority in determining the development application, and are not matters for this Court in determining the present proceedings. [20]
Counsel for the defendant expressly disavowed any suggestion that the Court should determine whether or not the increase of 3.3 vehicle movements in the AM peak and in the PM peak, which the parties' experts agree would be generated by the proposed development (resulting in No. 186 generating a total of 4.3 vehicle trips in the AM and PM peak periods), would constitute excessive user or a substantial interference with the defendant's rights as the servient owner.
As to the defendant's third ground of opposition, [21] I do not accept that the proposal that the defendant will have rights to use part of the plaintiff's land for the purpose of vehicular and pedestrian access between No. 184 and the Pacific Highway per se entitles the defendant to refuse to consent to the plaintiff making the development application. The defendant submitted that the present case is analogous to Lowe, in which the Court of Appeal held that the owner of land to which the development application related was entitled to refuse consent to the making of the development application. I do not consider that Lowe is relevantly analogous to the present case. As the plaintiff submitted, the respondent's proposed development in Lowe would have interfered with the appellant's rights as servient owner of parts of the land to which the respondent's development application related, and also with the appellant's rights as the dominant owner under an easement in respect of other parts of the land to which the development application related. The Court of Appeal's decision in Lowe turned on the facts of that particular case. The task of the Court in the present case is to address the questions articulated by the Court of the Appeal to the facts concerning development application 466/22. [22]
The question that arises from the proposed passing bay in the present case is whether it would constitute an unreasonable interference with the defendant's rights as the servient owner for vehicles exiting No. 184 onto the Pacific Highway to be required to use part of No. 186 in order to make way for vehicles entering from the Pacific Highway and travelling to No. 184 or No. 186. My common sense judgment in all the circumstances of this case is that this would not amount to unreasonable interference. Indeed, in the absence of any evidence that the proposed development would increase instances of conflict between entering and exiting vehicles, the proposal may amelioriate the existing public road safety issues discussed at [65] above. Whether the proposal has this effect, and whether it ameliorates those issues sufficiently and in a manner that complies with relevant Australian Standards, are matters for the consent authority. However, the evidence adduced in these proceedings does not establish that a requirement for vehicular traffic emanating from No. 184 to use the passing pay in one direction of travel would unreasonably interfere with the defendant's use of the servient tenement.
The question that arises from the proposed pedestrian pathway is whether it would constitute an unreasonable interference with the defendant's rights by requiring pedestrians travelling to and from No. 184 to use the proposed pathway on No. 186, rather than using the existing driveway on No. 184. My common sense judgment in all the circumstances of this case is that this would not constitute unreasonable interference. The availability of the pathway must improve safety for pedestrians compared to the existing scenario in which pedestrians share the driveway with vehicles. I reject the defendant's submission that the landscape design will effectively preclude pedestrians from No. 184 using the pathway. The revised landscape plans included in the development application show a hedge running along the length of the pathway, which effectively requires pedestrians to enter onto and exit from the pathway via a gravel path that joins the driveway almost immediately opposite one of the entries into the existing residential apartment building on No. 184. Thus, the proposed hedge controls the manner in which pedestrians travelling to and from No. 184 will use the pathway, but does not preclude them from using the pathway.
I accept that the defendant cannot be compelled to accept a transfer and registration of new easements that would grant enduring legal rights for the benefit of No. 184 to use the proposed passing pay and pedestrian pathway. All that is in issue in the present proceedings is whether the defendant should be compelled to consent to the making of the development application. If development consent is granted by the LEC in the Class 1 proceedings on conditions that require the registration of such new easements, and if the defendant maintains its present resistance to accepting the benefit of such easements, then that may have consequences of the kind outlined in the plaintiff's submissions referred to at [56] above. I reject the defendant's submission that the development application process will necessarily be rendered "moot" if it is not prepared to accept a transfer of new easements relating to the passing bay and pathway.
For all of the reasons at [61] to [70] above, the evidence adduced in these proceedings does not establish that the proposed development would result in excessive use of the easement by the plaintiff dominant owner, or would result in unreasonable interference by the dominant owner with the defendant servient owner's use of No. 184.
It is convenient to return to the defendant's first ground of opposition, [23] in support of which counsel for the defendant made lengthy submissions articulating numerous overlapping complaints about alleged inconsistencies, inaccuracies, and misleading or confusing elements of the development application. The substance of those complaints may be summarised as follows: 1. the description of vehicular access in the ARC Transport Report, and the plans depicted in Figures 2 and 3 of that report, do not provide for the passing bay and do not assess compliance of the design incorporating the passing bay with the relevant Australian Standards; 2. the width of the passing bay is inadequate to allow two light vehicles to pass simultaneously over the driveway as expanded by the passing bay, and that gives rise to uncertainty as to whether or not this problem will be solved by "losing further area within the development site" or by "significant changes to … structures within the way and … structures outside of the way but within the defendant's land"; 3. the statement in the Arc Transport Report that the vehicle trips generated by No. 186 would be "essentially unchanged" by the proposed development, which the defendant submitted is inaccurate because it is contrary to the opinion of Ms Marshall-Evans and Mr Brodie that the proposed development will generate an increase of 3.3 vehicle trips in both the AM and PM peak periods; [24] 4. the statement in the Arc Transport Report that the development proposal includes a "new shared path between the main entry foyer and Pacific Highway allowing for safe pedestrian movements" is inconsistent with the revised landscape plans issued on 25 May 2023, which the defendant submitted shows that the pedestrian pathway to be constructed on No. 186 leading from the Pacific Highway to the entry foyer of the proposed new residential apartment building is separated from No. 184 by a hedge running along the length of the pathway; and 5. the development application includes a Statement of Environmental Effects dated October 2022 and a further Statement of Environmental Effects dated May 2023, which creates inconsistency and confusion because it is not clear whether one supersedes the other.
As to (1) and (2) above, it is tolerably clear from reading the development application as a whole that the design of the proposed development has evolved since the ARC Transport Report was issued on 26 August 2022 to include the passing bay shown in the revised architectural plans issued on 19 May 2023 and the revised landscape plans issued on 25 May 2023. I therefore reject the submission that the absence of any reference to the proposed passing bay in the ARC Transport Report is a material inconsistency or inaccuracy, or that the development application is misleading or confusing by reason of the evolution that is apparent from a comparison of the ARC Transport Report and the revised architectural plans. As I have already observed, it is clear from the defendant's submissions concerning the alleged inadequacy of the passing bay that it is in no doubt that the development application is for a proposed development that includes the passing bay. [25]
As the plaintiff submitted, it is for the consent authority to assess the impact of the proposed passing bay on safety issues generated by vehicles entering from and exiting to the Pacific Highway. These issues are generated by the existing driveway, as I have explained at [16] above. It is for the consent authority to assess whether or to what extent they may be exacerbated by any increased vehicular movements on the driveway resulting from the proposed development, the adequacy or inadequacy of the proposed passing bay to address those issues, and any conditions that might be imposed on development consent (if granted) to address any inadequacies found by the consent authority. [26]
As the plaintiff submitted, it is not to the point that the expert witnesses called by both parties in these proceedings have opined that the passing bay is inadequate, or that its design is less than optimum. [27] The LEC, exercising the functions of the consent authority, will be required by s 4.15 of the EPA Act to consider the likely impacts of the proposed development and the suitability of the site for the proposed development, including the issues to which I have referred immediately above. The LEC will do so by reference to such evidence as may be adduced in the Class 1 proceedings. The defendant's complaints about the fact that the development application does not include a revised transport report addressing those issues, and its contentions that the passing bay is inadequate, are matters that it can propound in opposition to the development application in the Class 1 proceedings. The plaintiff accepted that the defendant would be entitled to participate in the Class 1 proceedings in order to ventilate its objections to the proposed development, and the defendant made no submission to the contrary.
Those reasons are sufficient to dispose of the defendant's submission that it is entitled to refuse to consent to the making of a development application that is "deficient" or "won't work". [28] That is merely the defendant's opinion about a public road safety issue which is for the consent authority to consider in the process of determining the development application.
For those reasons, applying the principles that I have summarised at [42] above, the matters raised by the defendant in (1) and (2) above are not matters that entitle the defendant to refuse to consent to the plaintiff making the development application in respect of a proposed development that it has not been established will generate excessive use of the easement burdening the defendant's land or result in substantial interference with the defendant's use of its own land. [29]
As to (3) above, the statement in the Arc Transport Report that the vehicle trips generated by No. 186 would be "essentially unchanged" by the proposed development, is in the nature of an opinion or estimate. As the defendant submitted, that opinion or estimate was informed, in part, by the Arc Transport Report treating the three garages at No. 184 that face directly onto the driveway as the only garages at No. 184 from which vehicles use the driveway. The expert witnesses called by the parties in these proceedings have formed a contrary opinion that the proposed development will generate an increase in the use of the driveway by 3.3 vehicle trips in the AM and PM peak periods. That opinion is informed by the expert witnesses having regard to the five garages at No. 184 that face onto the driveway at the rear of the building, which is connected to the driveway in issue in these proceedings that leads to the Pacific Highway. The experts agreed that the transport analysis should be undertaken on the basis that eight garages at No. 184 (not three) use that driveway. Contrary to the defendant's submissions, I consider that the question whether to include in the analysis the five garages at the rear of No. 184 that have access to the driveways on both sides of the building is a matter about which experts might reasonably differ.
The defendant submitted that the statement in the Arc Transport Report was material, and that it would "count against" the defendant's objections to the proposed development on the ground that it would increase traffic. However, the consent authority is not bound by that statement. Nor will it be bound by any alternative opinion put forward by the plaintiff or by the defendant or any other objector. As I have already said, the LEC, exercising the functions of the consent authority, will be required by s 4.15 of the EPA Act to consider the likely impacts of the proposed development and the suitability of the site for the proposed development, and will do so by reference to such evidence as may be adduced in the Class 1 proceedings. Refusal by the defendant servient owner to consent to the plaintiff making this development application, which will increase the use of the easement to a level that has not been shown to be excessive or to constitute substantial interference with the defendant's rights, on the basis that the defendant disagrees with opinions that have been expressed in reports submitted by the plaintiff as part of the development application, is an infringement of the plaintiff's rights to enjoy the easement according to its very wide terms free of substantial interference by the defendant. If the defendant maintains its opposition to development consent being granted, it will be entitled to put the contrary expert opinions on which it relies before the LEC in opposition to the development proposal during the Class 1 proceedings.
As to (4) above, I do not consider that there is any inconsistency between the Arc Transport Report and the revised landscape plans in relation to the pedestrian pathway. As I have already explained, the revised landscape plans depict a hedge along the length of the pathway that, together with a gravel path that connects the pathway and the existing driveway, will control the route of pedestrians between No. 184 and the pathway. The revised landscape plans are not inconsistent with the pathway being used by residents of No. 184, and the description of the pathway as a shared pathway in the Arc Transport Report is not inconsistent with the revised landscape plans. Any complaints that the defendant may have about the route that pedestrians traveling to and from No. 184 must take via the gravel path in order to use the pathway may be addressed to the consent authority. Such complaints do not entitle the defendant to withhold consent for the plaintiff to make the development application for this proposed development, which has not been established in these proceedings to result in excessive use of the easement burdening the defendant's land, or substantial interference with the defendant's use of the servient tenement.
As to (5) above, I reject the defendant's submission that the inclusion of the October 2022 Statement of Environmental Effects and the May 2023 Statement of Environmental Effects in the development application creates any inconsistency, or that the development application is misleading or confusing by reason of both documents having been included. A cursory review of the two documents confirms that the October 2022 document has been superseded by the May 2023 document, which refers to the most recent iteration of the architectural and landscape plans that were issued in May 2023. By way of example only, section 4 of the October 2022 document states that the existing driveway that is the subject of the easement is to be utilised for vehicular access between the proposed residential apartment building and the Pacific Highway. Section 4 of the May 2023 document states that the existing driveway "with widening located within the development site" is to be utilised for that purpose. The widening is plainly a reference to the passing bay that has been incorporated in the May 2023 architectural and landscape plans, as referred to at [73] above. The principles summarised at [42] above do not entitle the defendant to refuse to consent to the plaintiff making this development application on the basis that the development application includes two Statement of Environmental Effects documents, one of which obviously supersedes the other. [30]
For all of those reasons, the defendant's five complaints about the development application, whether considered individually or as a whole, do not entitle the defendant servient owner to refuse to consent to the plaintiff dominant owner making the development application.
I reject the defendant's submission that it is "reasonable" for the defendant to refuse to consent to the making of the development application on basis that the Arc Transport Report includes superseded plans that do not show the passing bay, has "the wrong number of garages in it" and engages "reasoning about the trip generation [that] is patently wrong". I repeat my observations at [73] to [77] above concerning the Arc Transport Report. For the reasons there explained, I reject the submission that the report is "wrong" in relation to the number of garages referred to, or in its trip generation analysis. Contrary to the defendant's submissions, the development application, considered as a whole, describes the proposed development sufficiently for the defendant and for the Court to understand what is the development application for which the defendant is asked to provide its consent to under clause 23(1) of the EPA Regulation. In circumstances where it has not been established that the proposed development will result in excessive use of the easement or substantial interference by the plaintiff dominant owner with the defendant's use of the servient tenement, the defendant is infringing the plaintiff's rights under the easement by refusing to consent to the plaintiff making the development application. The test is not one of "reasonableness" of the servient owner's adverse reaction to the contents of the development application.
I also reject the defendant's submission that this Court should decline to exercise its discretion to order the defendant to consent to the making of the development application "that it doesn't want to consent to because it's wrong and misleading". For all of the reasons I have explained in relation to the defendant's five complaints, the development application, understood as a whole, is neither "wrong" nor "misleading". Nor is the development application "incoherent", as the defendant had earlier submitted. The development application merely raises issues that are the subject of differing expert opinions that have been expressed in the Arc Transport Report and in the evidence of Ms Marshall-Evans and Mr Brodie in these proceedings. As I have explained earlier in these reasons, there was ultimately a measure of agreement between Ms Marshall-Evans and Mr Brodie about some of those issues, but that does not support the defendant's submissions purporting to characterise the Arc Transport Report as "misleading" or "false".
It remains to address the defendant's fourth ground of opposition, which it raised as a reason why it submitted that this Court should decline to grant the relief sought by the plaintiff as a matter of discretion on the basis that it would be futile to grant that relief, even if the Court were otherwise satisfied that the plaintiff's ancillary rights under the easement entitled it to an order requiring the defendant to consent to the making of the development application. [31]
I was initially attracted to the defendant's submission that the development application, absent the defendant's written consent required by clause 23(1) of the EPA Act, was ineffective to engage the Council's power to make any determination in respect of the development application. Indeed, that submission emerged during oral closing submissions in response to questions that I put to counsel for the defendant. However, on reflection, Hinkler Ave and Al Maha establish that the Council's power to determine the development application was engaged, and the Council did make a "determination" within the meaning of s 8.7 of the EPA Act in refusing consent on 22 September 2023. As referred to at [31] above, Preston CJ of LEC explained in Al Maha that the identification of the land to which the development application relates is part of a consent authority's determination of a development application. Unlike many other requirements for a development application under the EPA Act and EPA Regulation, any non-compliance with the requirement to provide written consent to the making of the development application from the owner of land to which the development application relates is likely to become apparent to the consent authority only after it has commenced its substantive process of determining the development application. It is for that reason that the Court of Appeal held in Al Maha that the owner's consent to the making of the development application is an essential prerequisite to the exercise of the consent authority's power to grant consent to the development application. Al Maha was cited with approval as authority for that proposition by the Court of Appeal in Hinkler Ave. It is necessarily implied in the Court of Appeal's decision in Al Maha that the Council had jurisdiction to refuse development consent on the grounds that the owner of land to which the development application relates had not provided written consent to the making of the development application, that this constituted a "determination" and conferred on the party who had made the development application without the owner's consent the status of an "applicant" within the meaning of s 8.7 of the EPA Act, and that the LEC had jurisdiction to hear and determine a Class 1 appeal from that determination, albeit that jurisdiction for the LEC to grant consent for the development will only be engaged if and when the owner provides consent to the making of the development application. If that consent is not forthcoming prior to the conclusion of the Class 1 proceedings, the LEC will be bound to determine the development application by refusing consent. [32] As the plaintiff submitted, that is consistent with the long line of authority referred to by the Court of Appeal in Botany Bay v Remath. [33]
It therefore seems to me that the LEC has had jurisdiction to determine the development application in the Class 1 proceedings from the time that those proceedings were commenced. I am not persuaded that any limitation issue concerning the Class 1 proceedings will arise if the defendant now provides its written consent to the making of the development application, either voluntarily or pursuant to an order made by this Court. I therefore reject the defendant's submission that such an order would be futile.
Even if I had considered that the defendant's submissions raised doubts about the jurisdiction of the LEC in the existing Class 1 proceedings, I would have held that it was not appropriate for this Court to determine in these proceedings that the LED lacked jurisdiction, for the purpose of considering whether to decline on discretionary grounds to grant relief in these proceedings to which the plaintiff is otherwise entitled for the reasons that I have explained above. The LEC has jurisdiction to determine for itself whether or not it has jurisdiction in respect of any particular proceedings, and I would not have considered it appropriate to effectively usurp that jurisdiction of the LEC in respect of the existing Class 1 proceedings. [34]

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