Woodland v Manly Municipal Council

Supreme Court of NSW|2002-11-06|Before: Hamilton J

Reported Decision : (2003) 127 LGERA 120 (2004) NSW ConvR 56-071

CITATION : Woodland v Manly Municipal Council [2003] NSWSC 392 HEARING DATE(S) : 13 - 15 February, 11 March, 20, 23 & 24 May, 23, 24 & 28 October, 6 November 2002 and 31 March 2003 JUDGMENT DATE : 12 May 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Application for easement under s 88K of the Conveyancing Act 1919 dismissed.

CATCHWORDS : REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Reasonably necessary for effective use or development of land. LEGISLATION CITED : Conveyancing Act 1919 s 88K Roads Act 1993 s 138 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1988) 43 NSWLR 504 Beekman v Gray (2002) NSW ConvR 56-016 Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 Durack v De Winton (1998) 9 BPR 16,403 Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 Grattan v Simpson (1998) 9 BPR 16,649 Hanny v Lewis (1999) NSW ConvR 55-879 In the Matter of an Application by Kindervater [1996] ANZ ConvR 331 CASES CITED : Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757 King v Carr-Gregg [2002] NSWSC 379 Marshall v Council of the City of Wollongong (2000) 107 LGERA 73 Re Naylor Benzon Mining Co Ltd [1950] Ch 567 Re Worthston Pty Ltd [1987] 1 Qd R 400 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Macquarie Dictionary (rev 3rd ed, 2001) New South Wales Parliamentary Debates, Legislative Council, 4 December 1995, 4000 Peter Richard Woodland (P1) PARTIES : Barbara Woodland (P2) Manly Municipal Council (D) FILE NUMBER(S) : SC 5212/99 COUNSEL : N A Nicholls (Ps) J J Webster SC (D) SOLICITORS : P J Donnellan & Co (Ps) Abbott Tout (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5212/99 PETER RICHARD WOODLAND and BARBARA WOODLAND v MANLY MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: The plaintiffs own land in Panorama Parade, Seaforth near its intersection with Ross Street. They seek to effect a battle axe subdivision of their land and to drain water from the newly created rear block through the defendant's land to Ross Street below. The alternative, which the defendant says ought be implemented, is for a pump out system to be installed to pump the waters from the rear block to the frontage of the plaintiffs' property in Panorama Parade, where it should not be discharged into the gutter but pumped in a pipe under the road to a drain on the opposite side of Panorama Parade. To effect their preferred scheme the plaintiffs seek the grant of an easement under s 88K of the Conveyancing Act 1919 ("the CA"). 2 The defendant's land through which the plaintiffs seek to drain the water is in two allotments, both fronting Ross Street. A child care centre is currently being developed on one allotment ("the child care centre") which the defendant owns. This is the land over which the easement is sought. The other allotment the defendant holds for the purpose of a public road but is not likely to be used in the foreseeable future for actual roadway ("the road reserve"). The defendant, to its credit, has indicated to the Court, that if the Court sees fit to grant the easement through the child care centre, it will grant the plaintiffs consent under s 138 of the Roads Act 1993 to discharge water through the road reserve. However, it vehemently opposes the grant of the easement through the child care centre. 3 Two principal issues have arisen in the conduct of these proceedings. The first is whether the plaintiffs have established that the easement sought is reasonably necessary for the effective use or development of their land. The second is whether it is established that the use of the land having the benefit of the easement will not be inconsistent with the public interest. There is no issue as to the quantum of compensation which ought be awarded in respect of the actual grant of the easement, if it be granted. This is agreed at $4,000. However, there is an outstanding issue as to the quantum of additional compensation in respect of any extra work necessitated in the development of the child care centre. 4 There is also an issue as to whether all reasonable attempts have been made by the plaintiffs to obtain the easement or an easement having the same effect but have been unsuccessful. THE LAW 5 Section 88K of the CA, so far as material, provides as follows: "(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." The Law: "Reasonably Necessary" 6 Section 88K was inserted in the CA in 1995 and has been the subject of a deal of judicial consideration in this Division of this Court since that time. There has been in force in Queensland from the 1970s a provision generally similar, although with some significant differences, and this has also been dealt with in a number of decisions in the Supreme Court of Queensland. 7 In the Macquarie Dictionary (rev 3rd ed, 2001) "necessary" is defined as "that cannot be dispensed with: a necessary law". The relevant definitions of "effective" appear to me to be, in the Macquarie Dictionary, "serving to effect the purpose; producing the intended or expected result: effective measures, effective steps towards peace" and, in the Oxford English Dictionary (2nd ed, 1989), "Powerful in effect; efficient, efficacious". In Re Naylor Benzon Mining Co Ltd [1950] Ch 567 at 575 Wynn-Parry J said that the expression "reasonably necessary" is a nonsense or self contradictory, in that something is either necessary or not necessary and cannot be reasonably necessary. In one sense, his Lordship is correct. But courts are under an obligation to give effective operation to Acts of Parliament. The purpose of this provision was made plain (insofar as it is not plain ex facie) in the Second Reading Speech by the then Attorney General, extracts from which I set out in Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 at 15,847. In that case, by reference to the decision of Derrington J in the Supreme Court of Queensland in In the Matter of an Application by Kindervater [1996] ANZ ConvR 331, I held that the requirement that the access proposed be reasonably necessary to the effective use or development of the land does not mean that there must be absolute necessity, but that "necessary must mean something more than mere desirability or preferability over the alternative means available". This approach was approved by Windeyer J in Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 at 15,799. 8 The notion of reasonable necessity was analysed by Hodgson CJ in Eq (as his Honour then was) in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1988) 43 NSWLR 504. His Honour said at 508 - 509: " What does 'reasonably necessary' mean?

It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement: Tregoyd Gardens v Jervis (Hamilton J, 25 September 1997, unreported); Goodwin v Yee Holdings Pty Ltd (Windeyer J, 6 November 1997, unreported); Re Seaforth Land Sales Pty Ltd's Land [No 2] [1977] Qd R 317.

In my opinion: (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.

The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court 'is not to judge upon the reasonableness of the particular development'. However, that statement is qualified by the words 'at least in this case'. If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be 'reasonably necessary for the effective use or development' of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular proposed use or development would need also to be preferable to the alternatives; but whether or not that it so, it would in my opinion certainly need to be at least reasonable". 9 I make two comments concerning what his Honour said. The first is that his Honour was correct assuming that, when I said in Tregoyd Gardens at 15,854 that the Court "is not to judge upon the reasonableness of the particular development", I was speaking in the context of that case and not intending to lay down a general proposition. The other thing to be said is that, despite my great respect for his Honour and its subsequent adoption by other Judges, I am troubled by the proposition that for an easement to "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" [my italics]. I am troubled by the use of the words "(at least) substantially". 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. 10 In Durack v De Winton (1998) 9 BPR 16,403 Einstein J at 16,448, 16449 approved both my proposition concerning reasonable necessity in Tregoyd Gardens and Hodgson CJ in Eq's dictum as to substantial preferability in 117 York Street. In Hanny v Lewis (1999) NSW ConvR 55-879, an application for an easement to permit the installation of an inclinator, Young J (as his Honour then was) said at 56,875: "So far as the first of these matters is concerned, the cases show that the Conveyancing Act does not require that there be absolute necessity, as with an easement of necessity, but the need must go beyond merely desirability: Tregoyd Gardens Pty Ltd v Jervis (Hamilton J, 25 September 1997, unreported).

Hodgson CJ in Eq dealt with the question similarly in 117 York Street Pty Ltd v PSP 16123 , 19 March 1998, unreported. See p5 of the judgment. His Honour there said, among other things, that: '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'.

It is to be noted that what is reasonably necessary is use or development of the land itself, not the enjoyment of the land by any of the persons who, for the time being, are the proprietors. Accordingly, evidence as to the particular problems that any one of the existing proprietors may have, or that because of those problems that person has to pay rent for other premises, or that that person has a mortgage, does not to my mind enter into the equation at all.

One must look to see what is reasonably necessary for the effective use of the land. In the instant case, it is certainly desirable for the use of the lower land, and it would affect its value if it had access by an inclinator rather than by a fifty-one step wooden staircase.

However, it does not seem to me that such a matter comes into the category of what is reasonably necessary. Access can be obtained by means of steps. There may, indeed, be other methods of access that might be obtained and the tone of the word 'necessary' is getting close to something which is a vital requirement. I say 'close' because the word 'absolute' must not creep into the vocabulary, but there must be, as Hamilton J says, something more than the easement being merely desirable." 11 Similarly, in Grattan v Simpson (1998) 9 BPR 16,649, a case concerning an application for a right of way to give access to a piece of rural property, Young J said at 16,651: "It is the first of these requirements that is really the main problem in the instant case. The section has been reviewed in judgments of this Court on quite a few occasions over the last two years, although neither counsel nor myself has yet come across a case where rural land is involved. Mostly the cases seem to deal with very closely situated urban land, particularly where someone wants to gain access over someone else's land for the purpose of erecting a building. Reasonableness has been dealt with in several recent cases. In 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; 98 LGERA 171, Hodgson CJ in Eq considered the term 'reasonably necessary' and held that the use or development of the easement must be at least substantially preferable to the use or development without the easement and that although the cases also show that whilst the word 'absolute' must not creep into the vocabulary, there must be a necessity that goes beyond mere desirability. Hamilton J considered the cases and discussed them in Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 especially at 15,855.

The cases show that the mere fact that there is some other means of access to the property does not of itself preclude an order being made under this particular section. However, where there are alternate means of access the evidence must show that in order to appropriate someone else's property there must be a considerable advantage in obtaining the easement rather than developing an alternative access.

In the present case there are, in addition to the old road, two possible paths for the plaintiffs to gain access to their land. One is over the path called the 'old roadway' that leads from the homestead to the Arramagong Road. The other is by a path which would run parallel to the existing road, although on the eastern side of the top paddock and middle paddock. Both of these would cost money to put in, but it would seem to be only money to the extent of $10,000 or so.

In view of these other means of access, and the amount that would need to be spent to develop them, and indeed the considerable frontages that there are for the 310 acres abutting both the Grenfell/Young Road and the Arramagong Road, I do not consider that the plaintiffs have made out a case that it is reasonably necessary that they have the benefit of an easement over someone else's land. As I pointed out in Hanny v Lewis (1999) NSW Conv R 55-879, the court should not interfere with the property rights of land owners especially where, as in the instant case, the land owner says she has an objection to the easement because it would affect some right which she considers to have. (See also judgment of Hulme J in O'Mara v Gascoigne (SC(NSW), Hulme J, 20 December 1996, unreported, BC9607063).)" 12 In Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 Hodgson CJ in Eq cited at [38] the material passage from his own judgment in 117 York Street supra. At [42] his Honour said, "In my opinion, reasonable necessity has to be assessed having regard to the burden which the easement would impose. In general terms the greater the burden the stronger case needed to justify a finding of reasonable necessity." The dicta as to "reasonably necessary" and "substantially preferable" by Hodgson CJ in Eq in 117 York Street were again applied by Barrett J in Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757 at [12]. Windeyer J again approved these principles in Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148. The Law: Public Interest 13 There was prior to 1999 some judicial disagreement concerning the construction of s 88K(2)(a) as to whether the land the use of which is referred to is the servient tenement or the dominant tenement. At that time sub s (2)(a) contained the words "use of the land in accordance with the easement" rather than "use of the land having the benefit of the easement". Windeyer J took the view in Goodwin supra at 15,799 that the servient tenement was referred to. This view was also taken by Bryson J in Marshall v Council of the City of Wollongong (2000) 107 LGERA 73 at 80. His Honour took the view that public interest questions relating to the dominant tenement arose under subs (1). However, Hodgson CJ in Eq took the view in 117 York Street supra at 512 - 513 that it was the dominant land that was referred to in s 88K(2)(a), citing the Second Reading Speech in this regard. Einstein J in Durack supra adopted Hodgson CJ in Eq's view at 16,449. Young J took the same view in Hanny v Lewis supra at 56,874 and Grattan v Simpson supra at 16,651. The passage in the Second Reading Speech referred to by Hodgson CJ in Eq was not among the portions of the speech set out by me in my judgment in Tregoyd Gardens supra. That passage, in New South Wales Parliamentary Debates, Legislative Council, 4 December 1995, 4000 is as follows: "The power, however, can only be used in the following circumstances:- First it must not be inconsistent with the public interest for the land having the benefit of the easement to be used in the manner proposed (in our example, the construction of a multi-storey building). …"

It is plain from an earlier passage in the speech that the multi-storey building that was to be erected was on the land of the putative plaintiff in proceedings. There can in my view be no doubt that Hodgson CJ in Eq and those who have agreed with him are correct in this regard and it was the use of the dominant tenement that was always referred to. There can be no doubt since the 1999 amendment: see per Barrett J in the Kent Street case supra at [17] and per Windeyer J in Beekman v Gray (2002) NSW ConvR 56-016 at [19]. 14 It seems to me that the use referred to of the land having the benefit of the easement which it must be established is not inconsistent with the public interest is its use as a subdivided cottage lot with drainage of waters from it through a pipe in the proposed easement. That is, the use contemplated by the provision is the use with the easement in place. The Law: A Confiscatory Statute 15 In Re Worthston Pty Ltd [1987] 1 Qd R 400 at 402 - 403 Carter J said: "In Re Seaforth Land Sales Pty Ltd v Land [1976] QdR 190 at 193 Douglas J, at first instance, observed that 'one should not interfere readily with the proprietary rights of an owner of land' over which someone else seeks to exercise a statutory right of user. In Nelson v Calahorra Properties Pty Ltd Thomas J, (5 December 1984, unreported; reported on appeal [1985] Q Conv R 54-202), at first instance noted that 'all such cases should be approached with caution, having regard to the fact that a compulsory change of registered property rights is sought, and that this is not lightly to be undertaken". Andrews J (as he then was) in Ex parte Edward Street Properties, Pty Ltd [1977] QdR 86 at 91 observed that the case of a successful application under s 180(1) 'should be clear and persuasive'." 16 In Tregoyd Gardens supra at 15,853 I cited the above quoted passage from the judgment of Carter J and at 15,854 said: "The nature of the statute must be borne in mind, so as to require firm proofs of the reasonable necessity for the easement. The force of the statute should not otherwise be read down by reference to its confiscatory nature." 17 In Durack supra Einstein J said at 16,449: "The application should be approached with caution, having regard to the fact that a compulsory change of registered property rights is sought and that this is not lightly to be undertaken: per Thomas J in Nelson v Kalara [sic] Properties - cited by Carter J in Re Worthston Pty Ltd [1987] 1 Qd R 400, cf Hamilton J in Tregoyd Properties [sic] at 8 BPR 15,853; Andrews J in Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 at 91." 18 In Hanny v Lewis supra Young J said at 56,875: "As a general approach to applications under this section the court must bear in mind that property rights are valuable rights and the court should not lightly interfere with the property rights of the defendants. It is in the public's interest that landlocked land be utilised. However, the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect others to make their land available for access. It is not unreasonable for a defendant to show that he or she has a legitimate economic advantage in the status quo, nor is it at all unreasonable for a defendant to say for privacy or other personal reasons that there would be such an interference with his or her property rights that no compensation in money could make up for it, and no order could be made: cf Re Parimax (SA) Pty Ltd (1956) 56 SR(NSW) 130, 133."

His Honour referred to this passage in Grattan v Simpson supra at 16,651. The Law: A Conspectus 19 The principles relevant to the decision of this case which I derive from a reading of the section and from the discussion in the authorities above are as follows:

(1) As a precondition of the exercise of the jurisdiction, 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.

(2) That finding involves the making of a value judgment, but not the exercise of a discretion.

(3) Once that finding is made, and the preconditions in sub s (2) are fulfilled, there remains a discretion in the Court, conferred by the use in sub s (1) of the word "may", as to whether or not to grant the easement.

(4) By reason of sub s (2)(a) the Court must be satisfied, as a precondition of the exercise of the jurisdiction, that "the use of the land having the benefit of the easement [ie, the dominant tenement] will not be inconsistent with the public interest": see [13] above. The use referred to is the use of the land taking advantage of the benefit of the proposed easement: see [14] above.

(5) In sub s (1), the reasonable necessity in question is necessity for the use or development of the land, not for use by the current or any other owner: Hanny v Lewis supra at 56,875.

(6) "Reasonably necessary" does not mean that there must be absolute necessity, but "necessary must mean something more than mere desirability or preferability over the alternative means available": Tregoyd Gardens supra at 15,847 and cases approving this statement cited in [7], [8] and [10] -[12] above.

(7) 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: see (9) below; and cf 117 York Street supra at 508 - 509 and the cases cited in [10] - [12] above approving Hodgson CJ in Eq's dictum.

(8) In my view, the impact of the use with the easement on the burdened land should also be considered in relation to the assessment of reasonable necessity under sub s (1). The greater the impact the less likely the conclusion that there is reasonable necessity: Katakouzinos v Roufir Pty Ltd supra at [42].

(9) In the end, the Court must make an assessment in terms of the words of sub s (1), namely, whether it is established that "the easement is reasonably necessary for the effective use or development of" the plaintiffs' land. As Foster AJ said in King v Carr-Gregg [2002] NSWSC 379 at [47]: "While judicial translation of statutory words can, quite frequently, be of assistance in understanding and applying them in particular fact situations, such translations can never become a substitute for the words of the statute. Indeed, the using of such translations, which have proved helpful in the decision of other cases, may not always be of assistance in cases involving significantly different facts. It must be remembered that the basic question for decision in the present case is whether the granting of the sought for drainage easement is 'reasonably necessary' for the use or development of the King property."

(10) The Court in acting under the section must bear in mind the confiscatory nature of the section and "require firm proofs of the reasonable necessity for the easement" ( Tregoyd Gardens supra at 15,854) and "bear in mind that property rights are valuable rights and the court should not lightly interfere with the property rights of the defendants" ( Hanny v Lewis supra at 56,875). THE FACTS 20 The plaintiffs have owned their property since before 1991 and have long had an ambition to effect the subdivision described in [1] above. The rear of their property (its eastern boundary) is abutted by No 8 Ross Street which is owned by Mrs Littlejohn, who gave evidence before me. Mrs Littlejohn's property faces Ross Street. When I say it faces Ross Street, in fact its southern boundary abuts the road reserve rather than the street directly. This means that the plaintiffs could drain the rear of their property by an easement through Mrs Littlejohn's property on to the road reserve as well as by an easement through the child care centre on to the road reserve. In 1991 the plaintiffs in fact approached Mrs Littlejohn to grant them such a drainage easement. The evidence shows that at that time they offered her $20,000 for the grant of the easement and this was apparently accepted. On 16 August 1991 Blackshaw, Lindsay & Bugden, solicitors, wrote on behalf of Mrs Littlejohn to John S Fordham as the plaintiffs' solicitor, indicating that they had received the transfer granting easement signed by their client, but required assurance on six matters before the transfer could be acted on, suggesting that it might be appropriate to cover those matters by a deed. There the matter ended. The transaction did not proceed. 21 In about 1997 the plaintiffs were again seeking to proceed with the subdivision. At that time there were negotiations with the defendant Council for a land swap. It would seem that the proposed land swap was to permit vehicular access to as well as drainage from the rear block of the proposed subdivision. Those negotiations also ended in naught. 22 In 1997 the plaintiffs lodged an application with the defendant for development consent for the subdivision. That was satisfied by a grant of development consent on 9 March 1998. Among the conditions on which the development consent was granted was the following: "15 The applicant shall create an easement through the adjoining property/properties for the disposal of storm water runoff, to the requirements of Council or its delegate. The easement shall be registered prior to the release of linen plans."

The development consent was expressed to operate from 12 March 1998 to 12 March 2000. It was on 14 February 2000 extended for a further 12 months so as to lapse on 12 March 2001. No further extension has been granted, so the development consent is in fact at an end. 23 There is on the evidence no reason to think that the defendant will not in due course grant a fresh development consent in generally the same terms, save that it is now apparent that it would impose as a condition that storm water from the rear block be drained by a pump out system to Panorama Parade (probably by a pipe under the road to a drainage pit on the western side of Panorama Parade). During the currency of the development consent the defendant was approached to grant a drainage easement through the child care centre to the road reserve and thence to Ross Street. Despite condition 15 in the development consent it refused to do so. Mrs Littlejohn was again approached to grant a drainage easement through her property to the road reserve. This time she was not offered $20,000 or any consideration for the easement. She refused to grant it. Her refusal was absolute. She did not specify any compensation or remuneration in consideration of which or conditions on which she would grant an easement. 24 Prior to the grant of the development consent in 1998 there was some local opposition to the grant of a development consent requiring a drainage easement to Ross Street on the ground of the water problem in Ross Street to which reference will soon be made and also on the ground that an easement should not be granted through publicly owned land for private advantage. Suggestions were made to Mrs Littlejohn in cross examination that she had not prior to the time of swearing her affidavit objected to the proposal on grounds relating to the water problem in Ross Street, but only on the ground of the so called compromise of public land. However, letters written by her to the defendant in 1997 and put into evidence show that this was not correct and that she was already referring to the water problem at that time. 25 There was a deal of evidence concerning water ponding in times of heavy rain at a sag point in Ross Street outside premises on the southern side owned by a Mrs Smiles. This evidence came principally from Mrs Littlejohn and from Mrs Smiles herself. Mrs Littlejohn was a far from satisfactory witness. She was diffuse in her answers, and found it difficult to bring herself to the point of particular questions asked of her. She was also given to hyperbole in her answers. Asked whether she was a person "who sometimes engages in hyperbole", she replied, "Does any woman not?" The diffuseness of her answers made it difficult to distinguish between what she had seen herself and what she had been told by other people as to the water problem. I do accept, however, that she saw an incident in the 1980s in which a Mini Minor came to grief in the ponded water in Ross Street and that she had seen water flowing down Mrs Smiles' drive in heavy rain, as well as seeing water ponded in Ross Street on numerous occasions. 26 Mrs Smiles was a more satisfactory witness. In general terms I accept her evidence given as follows in her affidavit: "5 In recent years I have had experience where the drainage pipes in Ross Street have been insufficient to drain the stormwater running into Ross Street from the Council's Land, Mr and Mrs Woodland's Land and other places. On those occasions the drainage system in Ross Street has overflown [sic] causing a build up of water on the street surface directly uphill and behind My Land. This water pools in the street, creating a water hazard for drivers of vehicles driving along Ross Street. 6 On may [sic] occasions the water from Ross Street has not been contained within the street, and has overflown [sic]. On these occasions the water runs across the street surface and enters My Land at the driveway referred to above. The water then runs down my driveway and across My Land and the other properties which adjoin My Land."

As I understand her evidence, she does not claim that the water flowing down her drive has ever surmounted the step at her back entrance and flowed into the house; I take it that any water that she has seen in the house near the back door has been driven under the door during heavy rain. 27 There is a drainage easement in favour of the Council through her property to take excess water from Ross Street to the street below, namely, Ponsonby Street. It would seem that the pipe in this easement is inadequate to drain water quickly enough, at least in severe rain events. Unfortunately, the precise terms of the easement were not before me by reason of lack of clarity of the microfiche copy available in Sydney of the transfer in which it is recorded. I gather that the original is held in an archive, but it was not available to the Court. This illegibility of the microfiche should sound a warning against the destruction of archived material which may contain the only record of current rights (quite apart from their historical value). 28 The evidence before me in this case has been something of a moveable feast. The plaintiffs originally put forward a proposal for drainage by a pipe which travelled its whole length from the rear allotment of their property to Ross Street within the child care centre and required an easement through the child care centre for its whole length. That proposal has been changed during the course of the hearing in favour of a scheme where the drainage pipe travels for only a short distance through the child care centre in its north eastern corner and then crosses into the road reserve. The plaintiffs have applied to the defendant under the Roads Act 1993 during the course of the hearing, as noted in [2] above, for permission to discharge water through the road reserve to the street. 29 Another aspect in which the evidence in the case has been a moveable feast is the expert evidence that has been led as to the effect of the discharge of storm water from the plaintiffs' proposed rear allotment to Ross Street on the water problem that undoubtedly exists in that street. Probably already most of that water reaches Ross Street by percolating through the child care centre. However, there is little doubt that the flow would be concentrated and the situation potentially exacerbated by the construction of a dwelling with the consequent creation of hard surfaces on the rear allotment and the concentration of the water in a pipe. There has been great disagreement between the plaintiffs' and the defendant's experts over the effect of this. Their evidence has been given in fits and starts and none of it has in my view been very clear or satisfactory. They have not even been able to agree as to the formula according to which the consequences of the flow should be calculated (the ILSAX method as against the rational method). In the end, it seems clear that the retention tank on the property to delay the discharge of the water to the street below as originally proposed by Mr Staniland, the plaintiffs' expert, was too small. On the other hand, it appears to be conceded by the defendant and the expert on whom it ultimately most heavily relied, Mr Lau, that if a larger retention tank were provided and if the water were discharged not into the gutter, but into an under road drainage pit, then at least in relation to a rain event of up to one in 20 years there would be no addition to the ponding in Ross Street or the overflow into the properties of Smiles or others on the southern side of that street. However, in respect of rain events of less than one in 20 year frequency, there would still be a discharge of water into Ross Street which could cause overflowing into those properties. I do not, on the evidence led, feel any great confidence that this would not occur more frequently. On 31 March 2003, after I had initially reserved judgment, the plaintiffs applied to reopen their case to read yet a further affidavit by Mr Staniland. The evidence sought to be led did not substantially clarify or demystify the expert evidence. It would not have made any difference to the decision of the case. It may have further delayed matters to give the defendant a chance to answer it. I therefore refused the application. 30 The alternative proposed by the Council is for a pump out system westwards to Panorama Parade, probably with a requirement for discharge through an under street pipe into a drainage pit on the western side of that street. The reason for that is that, if the discharge were into the gutter on the eastern side of Panorama Parade, the water would in any event run in the gutter around the corner into Ross Street and join the waters that constitute the problem in that street. The defendant suggests that its proposal would in fact have a beneficial effect on the ponding and overflow in Ross Street, because it would mean that the waters which at present percolate from the rear of the plaintiffs' property to Ross Street would no longer do so, but would be redirected to Panorama Parade and drained away underground in that street. 31 There has been agreement between the parties, at least as to the range within which the costs of these various proposals would fall. I should say at once that I should regard the discharge of the waters to the gutter either in Ross Street or in Panorama Parade as unsatisfactory, so that the two alternatives to be compared are the discharge of gravity drained water to an underground pit in Ross Street or the discharge of pumped water to a drainage pit on the western side of Panorama Parade. The plaintiffs put the estimated costs of these proposals respectively at $27,700 and $54,200 and the defendant respectively at $35,000 and $40,000. The plaintiffs' figure of $27,700 for the Ross Street proposal is probably low, as it does not on the evidence allow for an additional pit for which the Council has allowed for (and on the evidence it seems to me that the Council's is the preferable proposal). The maximum difference between the gravity and the pump out proposals on these figures is some $26,000 on the plaintiffs' figures and some $5,000 on the defendant's figures. As to the true figure for the difference, it would be fair to take it as probably between $10,000 and $20,000. 32 In addition to their complaint about the additional cost, the plaintiffs' objection to a pump out system is the greater risk of malfunction. Obviously complete failure of the pump out system would leave the storm water from the rear allotment of the plaintiffs' property to overflow in that property and to drain to Ross Street through the child care centre which the defendant is developing. However, pump out systems, when allowed, require double pumps to be installed. The pumps are electric. The worst risk of complete failure is through electrical blackout in a heavy storm. However, the witnesses who have had experience, albeit in a comparatively limited way, with pump out systems that have been installed knew of no instance of complete failure. And, on the other hand, there must remain at least the remote possibility of unintended discharge from a gravity system through overflow of the retention tank in extreme conditions or blockage of the pipe. In my view the plaintiffs have not established in this case preferability and certainly not substantial preferability of the development with the easement over the development without the easement. The defendant does allow the use of pump out systems in appropriate circumstances. So far as it matters, that distinguishes this case from the decision of Foster AJ in King v Carr-Gregg supra, where the relevant council had an absolute prohibition against the use of such systems. 33 The plaintiffs have not been speedy in bringing their claim before the Court to trial. The defendant in the meantime has steadily proceeded towards the execution of its project for a child care centre. Development consent for that centre has now been granted. It is apparent from the plans that some awkwardness and difficulty would be created by provision for the plaintiffs' proposed pipe through the north eastern corner of the relevant allotment. I am not suggesting that the difficulties are insurmountable, but they are not without substance. CONCLUSIONS 34 In deciding whether under s 88K(1) of the CA the plaintiffs, on whom the onus rests, have established that the grant of an easement is reasonably necessary for the development of the property, the Court is faced with the following situation. The plaintiffs say that it is reasonably necessary that they have the easement to permit the gravity discharge of water to Ross Street. The defendant says that the grant of the easement is not reasonably necessary for the development of the plaintiffs' land because an alternative exists which is viable and not, in the order of things, inordinately expensive, namely, the installation of a pump out system to Panorama Parade, which it would seek to impose as a condition on renewal of the plaintiffs' application for development consent. In considering the impact on the plaintiffs of the additional expense, I bear in mind that the subdivision is clearly to the plaintiffs' advantage by providing them with a separately saleable suburban block of land, which is obviously of considerable value. I do not think it weighs heavily against the plaintiffs' proposal that the land over which the easement is asked is owned by a public authority, namely, the defendant. It is said that this is an improper compromise of public land. However, in reality, although a function of public utility will be conducted on the land, in my view it is more appropriate in this instance simply to regard the defendant as another landowner whose rights will be interfered with. That interference, however, is not contemptible. 35 Remembering the confiscatory nature of the statute; the fact that there is a degree of real difficulty which would be caused by the easement and the pipe traversing the defendant's land; the existence of some problem arising from ponding of water in Ross Street; the possibility that that would be added to at least in greater than one in 20 year rain events; and, most importantly, the existence of a viable alternative by the pump out of water to Panorama Parade, it is my view that the plaintiffs have not in the requisite way established that it is reasonably necessary that they should have the easement sought. 36 I should say that, if it were material, I should find that it has not been established that the dominant tenement will not be inconsistent with the public interest. That is by reason of the fact that it is not established that the water problem in Ross Street would not be aggravated by the discharge of water from the proposed rear allotment. I should find that all reasonable attempts have been made by the plaintiffs to obtain the easement or an easement having the same effect but have been unsuccessful. If I am wrong in my conclusions that the easement is reasonably required and concerning the public interest, I should exercise my discretion against the grant of the easement on the grounds set out in [35]. 37 The result is that the plaintiffs' summons must be dismissed.

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(2003) 127 LGERA 120

At a glance

Court

Decision date

Before

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Judgment (32 paragraphs)

Parties

Cases Cited (5)