RVA Australia Pty Ltd v Rosemary Elizabeth Marzouk

Land and Environment Court (NSW)|2017-08-29|Before: Robson J

Solicitors: Mills Oakley (Applicant) Maurice Buckley C T Poole & Son (Respondent) File Number(s): 2017/00190236

Judgment

Before the Court is an application under s 40(2) of the Land and Environment Court Act 1979 (NSW) ('Court Act') seeking an order that an easement be imposed over residue lands in Certificate of Title Volume 3065 Folio 63 for the benefit of Lot 3 of DP 213924.
The application arises from Class 1 appeal proceedings heard by Commissioner O'Neill on 13 to 17 February 2017 (2016/00155813 (relating to DA 14/1238) and 2016/00155592 (relating to DA 14/1239)), being appeals from two related decisions of Sutherland Shire Council ('Council') in relation to the proposed development of a recreation camp/eco-tourist accommodation at Bundeena ('proposal'). Commissioner O'Neill handed down her decision in those proceedings on 30 March 2017 (RVA Australia Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1161) ('Class 1 Decision').

Background

The Class 1 Decision related to Council's refusal of two development applications. DA 14/1238 sought development consent for a recreation camp at Lot 3 DP 213924, also known as 60-70 Bournemouth Street, Bundeena ('benefitted land'). DA 14/1239 sought consent for landscaping and clearing over a strip of adjacent land to the south of the benefitted land which is a paper road known as 'Sussex Street' ('burdened land').
The benefitted land is currently undeveloped and has an area of approximately 5.63ha. It fronts Bournemouth Street to the west, Beachcomber Avenue to the rear (north-east) and the unformed Sussex Street to the south. Access to the benefitted land is across the southern boundary, over an existing bitumen track in the Royal National Park.
The burdened land is located immediately south of the benefitted land, has an area of approximately 3,420m2, and is bounded by Bournemouth Street to the west. The applicant has an existing right of way across the burdened land to access the benefitted land, and has a right in real property law to construct a road on the burdened land for this purpose.
The applicant seeks the right to enter and use part of the burdened land, approximately 314m2, as an asset protection zone ('APZ') for the proposal to fulfil the Easement Direction. Specifically, the terms of the easement attached to the Class 3 Application seek: ... 1 TERMS OF THE EASEMENT OF VARIABLE WIDTH TO PERMIT MANAGEMENT OF VEGETATION WITHIN BUSHFIRE INNER PROTECTION AREA NUMBERED ONE IN THE PLAN Full and free right for every person who is at any time entitled to an estate or interest in the Lot Benefited or any part thereof ("grantee") and every person authorised by the grantee, from time to time, and at all times to enter onto the Lot Burdened within the site of the easement indicated on the plan ("Asset Protection Zone"), together with the right to carry out bushfire hazard reduction work in the Asset Protection Zone to manage or reduce the bushfire hazard to the improvements on the Lot Benefited and to do anything reasonably necessary for that purpose including but not limited to: a) the establishment or maintenance of fire breaks within the Asset Protection Zone; b) the controlled application of appropriate fire regimes or other means for the reduction or modification of available fuels in the Asset Protection Zone to mitigate against the spread of a bushfire; c) entering upon and obtaining access to the Asset Protection Zone at any time with surveyors, workmen, vehicles, materials, machinery or implements or any other necessary things or persons; and d) placing and leaving on while work is being undertaken, or removing from, the Asset Protection Zone all necessary materials, machinery, implements and other things. ...
The APZ will be a buffer zone between bushfire hazards and the proposal, to minimise fuel loads and avoid the creation of a fire path between surrounding bushland and a refuge building to be located on the benefitted land. Relevantly, the use of the burdened land for vegetation management for bushfire hazard reduction is not presently authorised under the applicant's existing right of way over the burdened land.
The registered proprietor of the burdened land is the estate of the late Edith Lucy Wolstenholme. Relevantly, the executors of the estate of the late Marjorie Lucy Maybanke Wolstenholme are the executors by representation of the estate of the late Edith Lucy Wolstenholme. When these proceedings were commenced on 23 June 2017, the executors were the respondent and Peter Merrick Wolstenholme. On 14 July 2017 the Supreme Court granted probate (number 2017/00086839) of the will of Marjorie Lucy Maybanke Wolstenholme to the respondent. Accordingly, from 14 July 2017 onwards the respondent has been the sole executor of the estate. The respondent filed a submitting appearance on 19 July 2017.
By way of background, on 4 May 2016 the respondent signed a deed for the transfer of the burdened land to the applicant. The respondent's solicitor, Mr John Poole, lodged the transmission application by the respondent and Peter Wolstenholme for registration as proprietors of the burdened land. Mr Poole signed the application on behalf of Peter Wolstenholme, who did not have capacity. On 20 January 2017 Land and Property Information issued a 'lodging party requisition', which required a number of matters to be addressed, including the fact that Peter Wolstenholme had not signed the transmission application.
In light of Peter Wolstenholme's incapacity, on 13 April 2017 Mr Poole communicated to the applicant's solicitor that the respondent was making an application to the Supreme Court of New South Wales for revocation of the existing grant of probate, and for a fresh grant to be made to the respondent, which, as noted above, occurred after the commencement of these proceedings. The respondent's intention to make such an application was advertised online, and was seen by the beneficiary of the estate, John Wolsteholme, who then placed a caveat against the application.
Relevantly, the Class 1 Decision required the applicant to comply with the directions of Commissioner O'Neill by 30 July 2017. While the applicant was later granted an extension, at the time the applicant became concerned about its ability to satisfy the conditions by the stipulated date and accordingly commenced an alternative course of action, namely pursuing an easement over the burdened land.
The applicant made an offer to the respondent and Peter Wolsteholme on 24 May 2017 in return for the registration of the easement, with this offer being contingent on the respondent and Peter Wolsteholme providing sufficient proof that the intra-familial issues had been resolved, such that the executors were able to give effect to the transaction.
By 20 June 2017 the executors were still taking steps to remove the caveat, and accordingly on 23 June 2017 the applicant commenced these proceedings. Relevantly, at hearing Ms Duggan confirmed that the caveat lodged by John Wolstenholme had been withdrawn.

Evidence and relevant legislation

The evidence in the proceedings included a bundle of documents compiled by the applicant, which contained documents relating to the history of the estate of the late Marjorie Lucy Maybanke Wolstenholme, Certificate of Title Volume 3065 Folio 63, and the existing right of way. The attachments to the Class 3 Application filed 23 June 2017 also included a number of documents including a Valuation Report of the proposed easement prepared by Independent Valuation Services Pty Limited and correspondence relating to the efforts made by the applicant to obtain the easement. The applicant also relied on an aerial photo of the burdened and benefitted land, a Statement of Facts and Contentions ('SoFAC') filed 6 July 2017 and an affidavit of Ronald Albertus van Ardenne, sole director and company secretary of the applicant, sworn 7 August 2017. Further, the applicant tendered a letter from Land and Property Information to Ms Edith Lucy Wolstenholme, advising that a caveat had been lodged against the burdened land by John Wolstenholme, the beneficiary of the estate. In addition, the applicant tendered a caveat lodged by Leily Marie Da Silva over part of the land in Certificate of Title Volume 3065 Folio 63 marked as 'Bournemouth Street'.
The applicant requests that the Court make an order imposing an easement pursuant to s 40 of the Court Act, which provides: 40 Additional powers of Court - provision of easements (1) This section applies if: (a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners). (2) The appellant may make an application to the Court for an order imposing an easement over land. (3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900. (4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.
Sub-section 40(4) of the Court Act requires consideration of s 88K of the Conveyancing Act 1919 (NSW) ('Conveyancing Act'), which provides: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) 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. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be: (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect: (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.
Both the burdened and benefitted land are subject to the Sutherland Shire Local Environmental Plan 2015 ('Sutherland 2015 LEP'), however, because of the savings provision in cl 1.8A of the Sutherland 2015 LEP, both development applications DA 14/1238 and DA 14/1239 will be determined under the Sutherland Shire Local Environmental Plan 2006 ('Sutherland 2006 LEP').
Both the burdened and benefitted land are zoned Zone 12 - Special Uses under the Sutherland 2006 LEP, and the words on the zoning map in the Sutherland 2006 LEP identify the site as Zone 12 - Recreation Camp. The objectives of the zone are: (a) to provide for a range of community facilities and services to meet the needs of the community, (b) to allow for development by public authorities, (c) to provide for a variety of development in accordance with local educational, religious or similar community demand, (d) to ensure the scale and nature of new development is compatible with the surrounding urban form and natural setting of the zone, (e) to recognise critical requirements, as identified by the Commonwealth, relating to the use of Commonwealth land for defence purposes.

Submissions

The applicant submits that the easement is reasonably necessary for the effective use or development of the benefitted land. The applicant submits that the Court in the Class 1 Decision has indicated its willingness to approve the proposal, and in its consideration, has determined that the easement is reasonably necessary. Relevantly, the applicant relies on Commissioner O'Neill's finding in the Class 1 Decision that if the APZ were to be entirely within the benefitted land, this would require the removal of an "important tree" known as "T881". Commissioner O'Neill found that the size and position of this tree was particularly important to protect neighbours from the visual impact of the proposal, specifically the proposed refuge building. Accordingly, the applicant submits that the easement is reasonably necessary given that Commissioner O'Neill considered it appropriate to retain the tree, and to require the applicant to obtain an entitlement to use Sussex Street for the purposes of the APZ.
Further the applicant contends in the SoFAC that the only substantive alternative uses that are permitted on the benefitted land under the Sutherland 2015 LEP are uses for 'environmental facilities' or 'information and education facilities'. The applicant stated that there is no realistic prospect that these alternative land uses could be commercially viable, and in any case, these uses would raise similar issues in terms of an APZ. Accordingly, the applicant submits that if the benefitted land is not used as an eco-tourist facility, it will remain unused. Additionally, the applicant submits that the extension onto the burdened land has the benefit of reducing the environmental impact that would be consequent upon the orderly and economic development of the benefitted land.
To make an order imposing an easement, the applicant submits that the Court must be satisfied that the use of the land having the benefit of the easement will not be inconsistent with the public interest. The applicant relies on the Class 1 Decision to satisfy this requirement, with Ms Duggan referring to Commissioner O'Neill's finding that in all of the circumstances, including the public interest, the development of the benefitted land in accordance with its relevant zoning and on the basis of the proposal was an appropriate use of the land.
The applicant further submits that the owner of the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the easement. Ms Duggan submitted that the land had been valued by an independent valuer, whose report was included in the annexures to the Class 3 Application (Exhibit F). The independent valuer assessed the land to have a nominal value of approximately $600, and opined that a nominal claim of $5,000 would be reasonable to cover the landowner's administrative costs. The applicant submitted that the valuer's evidence was sent to the respondent, and that a letter of offer was sent to Rosemary Marzouk and Peter Wolstenhome on 24 May 2017. Further, the Class 3 Application nominates the quantum of compensation, and the applicant submits that the filing of a submitting appearance by the respondent indicates that there is no dispute that the quantum of compensation is not adequate for the purposes of s 88K(2)(b).
In the interest of disclosure, Ms Duggan also brought to the Court's attention the fact that a caveat had been lodged by Ms Da Silva asserting a right of way over Bournemouth Street (Exhibit D). While bringing the caveat to the Court's attention, Ms Duggan submits that, relying on s 74H of the Real Property Act 1900 (NSW), the nature of works sought in the easement before the Court is such that there would not be any interference or inconsistency between the two rights. The right of way claimed by Ms Da Silva, the applicant submits, relates to Bournemouth Street, not Sussex Street, and even it did extend to the full length of Bournemouth Street, Ms Duggan submits that the easement she seeks does not intersect with any part of Bournemouth Street, but rather is wholly contained in Sussex Street.
Ms Duggan submitted that the applicant has made numerous and reasonable attempts to obtain the easement, the evidence of which is contained in the documents annexed to the Class 3 Application under the heading 'Reasonable Efforts to Obtain Easement'. The applicant relies on this evidence, which includes correspondence between the applicant's solicitors, the solicitors for John Wolstenholme, and the solicitors for the respondent relating to arrangements for the proposed easement and the offer of compensation. Mr van Ardenne in his affidavit attests to the efforts that he undertook to secure the proposed easement. Ms Duggan further noted that in relation to the ongoing attempts to obtain the easement, these attempts have been to some degree dependent on the proceedings in the Supreme Court's Probate Division.
The applicant submits that pursuant to s 88K(3) of the Conveyancing Act, the Class 3 Application specifically refers to the instrument and its annexures, and the nature of the easement is set out in the instrument attached to the application. Ms Duggan also confirmed that the applicant has agreed to pay the respondent's costs of the proceedings.

Consideration

This Court has power to impose an easement over land pursuant to s 40 of the Court Act and s 88K of the Conveyancing Act. As is well understood, the power under s 40 of the Court Act is invoked when an appeal of the kind referred to in s 40(1) is pending or has been determined and the appellant in such an appeal makes an application to the Court under s 40(2) for an order imposing an easement.
On the evidence before me, s 40(1)(a) is satisfied as the Class 1 Decision determined that the proposal can be granted consent if certain outstanding issues, including access to the burdened land for the purposes of maintaining an APZ, can be satisfactorily addressed. Pending Commissioner O'Neill's satisfaction that those matters have been attended to, and that Council (the respondent in the Class 1 proceedings) has provided appropriate conditions of consent, final orders are able to be made in the Class 1 proceedings.
The Court, in dealing with an application under s 40(2) of the Court Act, pursuant to s 40(4) "may exercise the jurisdiction of the Supreme Court under s 88K of the Conveyancing Act, and, in any event, s 88K of the Conveyancing Act applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court".
An appropriate summary of matters to be considered in determining whether to impose an easement was noted by Preston CJ of LEC in Rainbowforce Pty Limited v Skyton Holdings Pty Limited [2010] NSWLEC 2; (2010) 171 LGERA 286 ('Rainbowforce') at [19], where his Honour stated: 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))? (b) Will the use of the applicant's land having the benefit of the easement not be inconsistent with the public interest (s 88K(2)(a))? (c) Can the owner of the land to be burdened by the easement, and each other person having an estate or interest in that land, be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement (s 88K(2)(b))? (d) Have all reasonable attempts been made by the applicant to obtain the easement or an easement having the same effect, but have been unsuccessful (s 88K(c))? (e) If yes to each of the foregoing questions, should the court exercise its discretion to impose an easement (s 88K(1))? (f) Unless there are special circumstances of the case, what compensation is appropriate to be ordered (s 88K(4))? (g) Is there any reason why the costs of the proceedings should not be paid by the applicant (s 88K(5))?
More recently it was stated in Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 that the "critical element" in s 88K is the requirement that the easement be "reasonably necessary" for the effective use or development of the land sought to be benefitted. As stated by Basten JA at [6]: …Whether or not the condition is satisfied in a particular case is likely to require consideration of the following factors: (a) the capacity of the developer's land for use or development of particular kinds; (b) the nature of the specific proposed development; (c) the manner in which the proposed development is to be effected; (d) the effect of the easement, if granted, on the servient tenement. That is not to suggest that each factor is separate and distinct; clearly they will overlap.
As is clear, notwithstanding satisfaction of all the requirements in s 88K(1) and (2), it still remains in the discretion of the Court to make an order imposing an easement (Rainbowforce at [133]).

Reasonable Necessity

The test of reasonable necessity is not whether an easement is reasonably necessary for a specific development to have effect in accordance with a consent, but rather whether the easement is reasonably necessary for the effective use or development of the land that will have the benefit of the easement (Rainbowforce at [17]).
The requirement that the easement be reasonably necessary for the effective use and development of the applicant's land has been held to mean "something more than mere desirability or preferability over the alternative means available" (Rainbowforce at [76]), Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257 ('Moorebank Recyclers') at [154]). Despite this, reasonable necessity does not mean absolute necessity, as found in Moorebank Recyclers at [154] citing Hodgson J (as his Honour then was) in 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 508-509.
On the present facts and taking into account the careful reasoning in the Class 1 Decision, I find that the proposed development is one that is appropriate to the area in which the land is situated. In particular, I note the findings of Commissioner O'Neill at [118], that the proposal the subject of the Class 1 Decision "…achieves an appropriate balance between the provision of appropriate bushfire protection measures and the conservation of the natural environment and it has been sensitively designed to complement and enhance the natural environment. The scale and nature of the proposal is consistent with the natural setting of the site". This is particularly so, as the applicant submits and Commissioner O'Neill finds, because of the retention of the "important tree" described in the evidence in the Class 1 proceedings as "T881".
I accept the applicant's submission, and find that there is no realistic prospect that the few alternative uses permitted in the zone would be commercially viable on the benefitted land, and in any case, similar issues in relation to the APZ likely would arise.
I also acknowledge the fact that the proposal involves the use of the benefitted land for the specific purpose for which it is zoned. Further, I note the finding in the Class 1 Decision at [107], that the relatively recently made Sutherland 2015 LEP included an enabling clause permitting the site to be used for the specific purpose of eco-tourist accommodation. This demonstrates that Council had recently considered the potential development of the site, and that the use proposed by the applicant would have been known or at least anticipated by Council when it specified that "environmental facilities" were permitted with consent - noting that the proposal is for a recreation camp/eco-tourist accommodation.
The concept of reasonable necessity also requires consideration of the effect of the grant of the easement on the servient tenement (Moorebank Recyclers at [114]). In the circumstances, there is no suggestion that the easement would significantly deleteriously affect the servient tenement.
For the above reasons, I find that the easement is reasonably necessary for the effective use and development of the applicant's land.

Public Interest

The proposed development of the benefitted land is, as noted above, a discretely permitted purpose under the Sutherland 2015 LEP which, as noted by Commissioner O'Neill followed "the rigorous process for the making of a LEP prescribed under the EPA Act [Environmental Planning and Assessment Act 1979 (NSW)], including extensive community consultation". I find that there is nothing in the proposed easement that would be inconsistent with the public interest. I accept the submissions of the applicant, noted at [24]-[25] above, in this regard.

Adequate Compensation

The Court must be satisfied that the owner of the land to be burdened, and other persons having an estate or interest in the land, can be "adequately compensated for any loss or other disadvantage that will arise from imposition of the easement" in accordance with s 88K(2)(b). 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 (Rainbowforce at [111]). Further, the addition of the words "or other disadvantage" provides for compensation for disturbance beyond the actual value of the proprietary right taken.
The evidence before the Court includes a "Valuation Report" prepared on behalf of the applicant (included in Exhibit F). This relatively compendious report by Mr R J McConnell, a certified property practitioner, concludes that, given that the land the subject of the easement has an area of approximately 3,420m2, is presently used as a right of way, and "has no other practical use of any substance", the easement is "not considered to materially impact on the value of the land". Accordingly, Mr McConnell suggests that "adequate compensation" is $5,600, comprised of "diminished market value" in the sum of $600 and "associated costs" in the sum of $5,000. In his consideration, Mr McConnell refers to the removal of 10 to 20 trees (of several hundred trees covering the parcel of land) and notes that it would be difficult to notice any change in the vegetation by such removal. He also notes that it is "highly unlikely that the [burdened] land will ever be re-zoned to a more permissive zone" (noting that the present zoning is E2 - Environmental Conservation). He further opines that the proposed APZ "…is considered to have no adverse material effect on the current or likely future use of the burdened land".
I accept the submission of the applicant and find that the owner of the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the easement. I also note that the evidence of Mr McConnell had been provided (with an accompanying letter of offer) to the respondent on 24 May 2017 and further, that the Class 3 Application specifically nominates the suggested quantum of compensation.
On the evidence before me, noting the fact that subsequent to the service of the Class 3 Application, the respondent filed a submitting appearance, I am of the view that, as submitted by the applicant, there can be no dispute that the quantum of compensation is not adequate for the purposes of s 88K(2)(b).

Reasonable attempts

Before seeking an order from the Court, an applicant is required to take reasonable steps to obtain an easement. This generally requires the applicant to, first, make an initial attempt to obtain the easement by negotiation with the person affected accompanied by some monetary offer, and second, sufficiently inform the person affected of what is being sought and provide the person affected with an opportunity to consider his or her position (Rainbowforce at [131]).
In the present circumstances there is evidence before the Court of the applicant's reasonable attempts to obtain the easement, in particular the correspondence from the applicant's solicitors (notably the letter of 24 May 2017) to the respondent's solicitors setting out in some detail the aspects of the applicant's intended development, the intention to obtain an easement pursuant to s 40 of the Conveyancing Act and the reasons and justifications for each, as well as making an offer for purchase of the property.
I also note that the respondent's submitting appearance was filed on 28 June 2017 and the matter proceeded to hearing on Tuesday, 29 August 2017. The details of the attempts by the applicant to secure an easement over the burdened land are set out in the affidavit of Mr van Ardenne.
I am satisfied that the requirements of s 88K(2)(c) has been met, and that the applicant has made reasonable attempts to obtain the easement.

Caveat of Leily Maree Da Silva

As noted at [27] above, Ms Duggan brought to the Court's attention a Notice of Caveat lodged by Leily Maree Da Silva which asserts a right of way over Bournemouth Street. From the aerial photograph of the site (Exhibit A), and according to submissions of Ms Duggan, the asserted right of way does not intersect with the easement presently sought, which is contained within the area depicted as Sussex Street. In any event, I accept that the nature of works sought in the easement before the Court is such that there would not be any interference with or inconsistency with the alleged interest of Ms Da Silva.

Conclusion

For the reasons above, I am satisfied that the Court should exercise its discretion to impose the proposed easement.

Orders

Subsequent to the hearing the applicant provided draft orders reflecting the evidence before the Court, which contained some minor amendments to the precise terms of the easement sought in the Class 3 Application. Subject to some minor changes, I make the orders accordingly.
The Court orders that: 1. An easement is imposed, under s 40(2) of the Land and Environment Court Act 1979, in the form of Annexures A and B ('the Easement') over residue lands in Certificate of Title Volume 3065 Folio 63 ('burdened land') for the benefit of Lot 3 of DP 213924 ('benefitted land'), being an easement of variable width to permit management of vegetation within bushfire inner protection area. 2. The applicant must, within seven days of the entry of these orders, deliver to the respondent a dealing in registrable form in the same form as Annexure A incorporating the Easement. 3. The respondent must, within seven days of that delivery, execute and deliver to the applicant that dealing. 4. If the respondent does not comply with Order (3) the Registrar is authorised to sign a dealing in registrable form in the same form as Annexure A hereto incorporating the Easement in the name of the respondent. 5. Pursuant to s 88K(4) of the Conveyancing Act 1919 as applied by s 40(4) of the Land and Environment Court Act 1979, the applicant pay the respondent compensation for the Easement in the sum of $5,600. 6. The applicant is to pay the respondent's costs of the proceedings.

Annexure A - 88B Instrument (82.6 KB, pdf) Annexure B - Deposited Plan Administration Sheet & Plans of Easement (164 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2017

Planning and Assessment Act 1979(NSW)

(2010) 171 LGERA 286

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Judgment (14 paragraphs)

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Cases Cited (8)