Conway v Leeroy Property Investments Pty Ltd

1. [1]

   These proceedings concern certain parcels of valuable beachfront land at Casuarina – a suburb of the far northern New South Wales coast within the Local Government Area of the Tweed Shire Council (Council).

2. [2]

   The plaintiff, Vashti Elizabeth Conway (Ms Conway) is the registered proprietor of Lot 52 in DP X, commonly known as X Harper Court, Casuarina (Lot 52/Conway Land).

3. [3]

   The first defendant, Leeroy Property Investments Pty Ltd (Leeroy) is the registered proprietor of the two parcels adjoining the Conway Land to the north comprising of:

4. [4]

   Set out below is an aerial photograph of the relevant lots (with the relevant lot numbers superimposed):

5. [5]

   On 14 June 2022, Council granted development consent to Development Application DA 20/1021 (the Consent) under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), permitting construction and use of a dwelling on the Leeroy Land.

6. [6]

   Ms Conway then commenced proceedings in the Land and Environment Court raising three matters:

7. [7]

   Because there was a doubt about the jurisdiction of the Land and Environment Court to hear and determine the latter two claims, the proceedings were transferred to the New South Wales Supreme Court: see Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86. Pursuant to s 149E of the Civil Procedure Act 2005 (NSW), the Supreme Court has all of the jurisdiction of the Land and Environment Court.

8. [8]

   On 4 September 2023, Council filed a submitting appearance, save as to costs.

9. [9]

   Ms Conway continued to advance the three claims. The proceedings were heard on 4 to 6 March 2025. Mr A Fernon SC and Mr T March appeared for Ms Conway. Mr M Seymour SC and Ms L Nurpuri appeared for Leeroy. Ms Conway was given leave to rely on a further amended statement of claim by leave granted, by consent, after the conclusion of the hearing.

10. [10]

    For the reasons set out below, each of Ms Conway’s claims should be dismissed:

Approach to fact finding, the key witnesses and their credibility

1. [11]

   The two principal witnesses were Ms Conway and Mr Sam Dunlop who is the principal of Leeroy (Mr Dunlop). Ms Conway made three affidavits dated 2 February 2024, 23 May 2024 and 3 March 2025 (the day before the hearing). Mr Dunlop made an affidavit dated 3 July 2024. Each was extensively cross-examined. I formed the view that each was doing their best to assist the Court and give their evidence in an honest and forthright manner.

2. [12]

   Ms Conway, who is a solicitor who until recently held a practising certificate, was at times combative in the witness box but that was more a product of the nature of the questions being asked of her rather than bearing adversely on her credit. The major area where Ms Conway’s evidence was seriously challenged concerned the evidence contained in an affidavit made the day before the hearing as to what was allegedly said by Mr Dunlop to Ms Conway at a meeting that took place on Lot 52 on 12 June 2020. I deal with this evidence below when I deal with the disputed conversation. The circumstances in which this evidence was given, including delay, and the surrounding objective circumstances and probabilities lead me not to accept this evidence.

3. [13]

   Mr Dunlop, on the other hand, was occasionally prone to giving self-serving answers that he would reasonably quickly resile from when pressed. For the most part, I accept his evidence including in relation to what was said on 12 June 2020.

4. [14]

   In considering the credibility of Ms Conway and Mr Dunlop and more generally the factual findings I should make, I am conscious that a number of the most relevant events – including the alleged conversations involving Ms Lorna Savage (Ms Savage), Ms Conway and Mr Dunlop – occurred in 2020, almost five years prior to the hearing.

5. [15]

   In Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 at [8]-[11], I summarised the well-known principles in the following terms:

The relevant facts

1. [16]

   Very few of the relevant facts were in dispute.

2. [17]

   I set out below the relevant facts, resolving any disputed facts.

3. [18]

   Prior to their sale to Ms Conway and Leeroy in 2020, Lots 50, 51 and 52 were in the common ownership of Lazy Axle Pty Ltd (Lazy Axle). Together, those three titles comprise approximately 2,911 square metres. Only Lot 52 was developed – a substantial dwelling having been constructed on it in about early 2007. The dwelling comprises, inter alia, five bedrooms and two double garages.

4. [19]

   The dwelling was designed and built with an aluminium and glass floor to ceiling curved curtain wall to its north eastern elevation. This curtain wall measures approximately 20 metres in length and seven metres in height. This was designed to capture the natural light and natural ventilation from the north-east. The total land area of Lot 52 is 1,355 square metres.

5. [20]

   Lot 51 had constructed on it a multicar garage and swimming pool. Lot 50 was largely vacant. The three properties were used as one land holding.

6. [21]

   From in about May 2019, the three properties were marketed for sale by LS Properties and other agents at times on behalf of Lazy Axle. The principal of Lazy Axle is Mr Kees Weel (Mr Weel). LS Properties is run by Ms Savage. It was not in dispute that Brent Savage (Ms Savage’s son), who also worked for LS Properties was a friend of Mr Dunlop. Mr Dunlop also admitted that he had a “very friendly relationship” with Ms Savage.

7. [22]

   The marketing material for the three properties included statements such as:

8. [23]

   Each of the relevant parcels are separated from Casuarina Beach by a public reserve.

9. [24]

   Between 20 July 2018 to 10 August 2020, Mr Dunlop owned and lived in the property at X Beason Court, which is immediately to the north of Lot 50 and is known as Lot 49 in DP X (Lot 49). He owned this property through Leeroy. On that property was a house with a gross floor area of about 380 square metres. Leeroy sold that property to Mr Weel at about the same time as Leeroy bought Lot 51 from Mr Weel. The size of the house has some relevance in light of what Ms Conway says was said to her at the time of buying.

10. [25]

    An important aspect of Ms Conway’s claim to an implied easement was conversations that she says she had either with the agent (Ms Savage) or Mr Dunlop prior to purchasing the Conway Land.

11. [26]

    It was not in dispute that there were discussions but what was said, or in the case of what Ms Savage said, what could be attributed to Mr Dunlop, was in dispute. I set out the respective versions below and then make findings on the disputed aspects of the conversations.

12. [27]

    Ms Conway first inspected Lot 52 and the house built on it in or around early 2020. She inspected Lot 52 with another agent who was marketing it for sale at the time.

13. [28]

    She immediately observed, among other things, that because of its layout and curtain wall, it enjoyed substantial solar access to both its indoor and outdoor areas. She also observed that the private outdoor areas enjoyed frequent direct sunlight and frequent coastal breeze, and the indoor areas also benefited from frequent direct sunlight.

14. [29]

    None of this evidence was seriously challenged. I accept it.

15. [30]

    After inspecting Lot 52 for a second time with her family, Ms Conway made an offer to purchase it but did not receive a response. Ms Conway’s interest in Lot 52 returned in April or May 2020, as I describe below.

16. [31]

    According to his affidavit evidence, Mr Dunlop was approached by Ms Savage shortly before 27 March 2020 and asked whether he was interested in purchasing Lots 50, 51 and/or 52. In cross examination he agreed that in January 2020, he exchanged text messages with Ms Savage in relation to him potentially purchasing all three blocks. On 18 January 2020, he sent a text message to Ms Savage which included:

17. [32]

    At some stage, Mr Dunlop inspected the three lots. He agreed in cross examination that it was obvious to him when he inspected the three lots that the house on Lot 52 had been designed and constructed with a northerly aspect. He was also aware that it had an outdoor living space in front of the house structure itself, facing north and that within the house it had a very large glass curtain wall with light coming into that area. There was no blockage or interference with the flow of sunlight or air. Mr Dunlop agreed that this was a significant feature amongst all the houses in that particular area of Casuarina – north facing design for the purposes of receiving the natural sunlight and natural ventilation. It was an important feature to him and, as he understood it, for any other prospective purchaser.

18. [33]

    Mr Dunlop withdrew his “interest” in the three lots at the time (January 2020) because, in his words, his budget “wasn’t going to cut it” and because it was too big of a property.

19. [34]

    According to Mr Dunlop, on or around 30 March 2020, he attended at Lot 50 to meet with Ms Savage and Mr Weel at which time a deal was done for Mr Dunlop to buy two of the blocks – Lots 50 and 51. Part of the arrangement was also for Mr Weel to buy Lot 49 from Leeroy. A contract was entered into at the time for Lot 50 for Leeroy to purchase it from Lazy Axle for $1,400,000, but the contract for Lot 51 was not entered into until later. Mr Dunlop was not seriously challenged on his evidence that a deal was struck at this time for him to buy both Lots 50 and 51, although in his affidavit evidence he said it was on 27 March 2020 he agreed to buy Lot 50 after a discussion with Ms Savage, with the offer to buy Lot 51 following on from a meeting with Mr Weel on 30 March 2020. For present purposes, the difference between these pieces of evidence is immaterial – the deal to buy the two lots was done by 30 March 2020.

20. [35]

    The contract for the sale of Lot 50 settled on 7 May 2020.

21. [36]

    In or around April or May 2020, Ms Conway decided to make a further inquiry about Lot 52 and ascertained it was no longer listed for sale. She expressed interest to Lazy Axle in buying all three lots – Lots 50, 51 and 52. Ms Savage then contacted her. I set out below the conversation which Ms Conway says she had with Ms Savage at or about this time. Before doing so, I set out Mr Dunlop’s evidence as to his contact with Ms Savage at or about this time as it probably occurred prior to the discussion between Ms Conway and Ms Savage.

22. [37]

    According to Mr Dunlop, in May 2020 – and after he agreed with Mr Weel to buy Lots 50 and 51 – he had a discussion with Ms Savage in relation to what he was proposing to build on Lots 50 and 51. Mr Dunlop eventually agreed in cross examination that at the time of this discussion with Ms Savage, he was aware that Mr Weel was still trying to sell Lot 52, having first said he was not aware. Mr Dunlop was told by Ms Savage that she had two interested purchasers for Lot 52. Ms Savage spoke to Mr Dunlop about issues associated with prospective buyers inspecting Lot 52. Ms Savage asked Mr Dunlop what his plans were in relation to building on Lots 50 and 51 and said she wanted to know because she needed to tell prospective purchasers of Lot 52, because prospective purchasers would have concerns about the impact of such building work on the flow of light and air to Lot 52, as well as privacy.

23. [38]

    On 22 May 2020, after the conversation with Ms Savage, Mr Dunlop sent a text message to Ms Savage in the following terms:

24. [39]

    Ms Savage replied on 22 May 2020:

25. [40]

    In cross examination, Mr Dunlop:

26. [41]

    Ms Conway’s evidence of the discussion she had at the time with Ms Savage (who Ms Conway refers to as Ms Zoe) was to the following effect:

27. [42]

    In response to this evidence, Mr Dunlop gave evidence in his affidavit, relevantly that:

28. [43]

    Ms Conway also deposed (at paragraph 39 of her principal affidavit) to a further conversation with Ms Savage (who Ms Conway refers to as Ms Zoe) in the following terms:

29. [44]

    There was no contemporaneous text message between Mr Dunlop and Ms Savage that preceded this discussion.

30. [45]

    There was an occasion when Mr Dunlop spoke to Ms Conway directly, in relation to his plans. This occurred on or around 12 June 2020 at a meeting on Lot 52 attended by Mr Dunlop, Mr Weel, Ms Savage, Ms Conway and her children.

31. [46]

    Mr Dunlop’s affidavit evidence in this regard came in response to Ms Conway’s evidence of her second substantive discussion with Ms Savage (extracted above) from paragraph 39 of her principal affidavit and was to the following effect:

32. [47]

    Ms Conway did not refer to this meeting (with Mr Dunlop) in her principal affidavit in which she set out her dealings with Mr Dunlop or in a subsequent affidavit made in May 2024. On 3 March 2025, the day before the commencement of the hearing and after Ms Savage had produced her text messages with Mr Dunlop including the message of 22 May 2020 extracted above – Ms Conway made a further affidavit which was read without objection at the hearing. The first paragraph of the affidavit deposed to the fact that in “preparation for final hearing of this matter it has come to my attention that I have not responded to” Mr Dunlop’s affidavit. There then followed two paragraphs. The first was brief, responding to paragraph 20 of the Dunlop affidavit by making a minor correction to her 2 February 2024 affidavit.

33. [48]

    The second paragraph was in response to paragraph 24 of Mr Dunlop’s affidavit (set out above), to which Ms Conway said:

34. [49]

    Both Ms Conway and Mr Dunlop were cross examined about their evidence of this meeting.

35. [50]

    Mr Dunlop:

36. [51]

    Ms Conway’s cross examination on this discussion focussed on two matters. First, why Ms Conway had not included the conversation in her first affidavit. Ms Conway said that “it was just an error on my part that I hadn’t included it. It was just an omission”. She later said:

37. [52]

    Second, Ms Conway was cross examined on whether, at the time she made her 3 March 2025 affidavit, she was aware of the text messages between Mr Dunlop and Ms Savage. Ms Conway said she had not read the text messages but was “generally aware of the evidence that’s been produced”. Ms Conway denied that her recollection could have been altered by what was in the text messages. I observe at this point that this answer is difficult to reconcile with the answer set out above to the effect that matters needed to be brought to her attention before she could recall them.

38. [53]

    In cross examination, Ms Conway also gave evidence that at the 12 June 2020 meeting, Mr Weel had said to her words to a similar effect as was said by Mr Dunlop. Ms Conway agreed that the first time she had said this was in cross examination but that “doesn’t mean it’s not true”.

39. [54]

    Ms Conway accepted that, at no time in the conversations she had with Ms Savage or Mr Dunlop, was an easement ever mentioned.

40. [55]

    I set out below my findings on this disputed conversation. Before doing so, I complete this section of the chronology.

41. [56]

    Ms Conway signed a contract for the purchase of Lot 52 on 18 June 2020 for $3,400,000. She said that she did so having inspected Lot 52 on several occasions and having comfort about the preservation of its solar access, natural ventilation and privacy. That contract settled on 1 September 2020.

42. [57]

    Prior to entering into the contract, Ms Conway requested a special condition be included in the contract to, she says, deal with her concerns in relation to what might be built next door. The letter dated 5 June 2020 requesting amendments to the draft contract for sale was signed by Ms Conway herself as “Special Counsel - Yates Beaggi Lawyers”. The letter relevantly requested the following amendments:

43. [58]

    The first amendment was rejected and the second accepted. Special condition 48 was included in the following terms:

44. [59]

    Ms Conway said in her second affidavit that the amendment “was sought by me in furtherance of” her communications with Ms Savage and “as a measure by which I could preserve the solar access and natural ventilation enjoyed by [Lot 52] against any proposed development by [Leeroy] upon [Lots 50 and 51]”.

45. [60]

    Ms Conway was cross-examined about the request to amend the contract. Ms Conway admitted that she did not make any claim on the vendor for them to create an easement benefitting Lot 52 and burdening Lot 51.

46. [61]

    On or around 10 August 2020, Leeroy signed a contract to buy Lot 51 for $1,150,000. That contract settled on 25 September 2020.

47. [62]

    Having set out the competing evidence in relation to the various conversations, I now set out my findings.

48. [63]

    A preliminary issue is whether there is any significance in the fact that Ms Savage was not called to give evidence in the proceedings. It is to be recalled that Ms Conway deposed to two conversations with Ms Savage and Mr Dunlop sent several text messages to Ms Savage.

49. [64]

    Each party contended that the other should have called Ms Savage as part of their case and a Jones v Dunkel inference should be drawn against the other by reason of the failure to call.

50. [65]

    Ms Conway relied on the fact that Mr Dunlop was a close friend of Ms Savage’s son, who was also a partner or worked in the real estate agency business. The text messages between Mr Dunlop and Ms Savage also suggest a friendly relationship between the two. Mr Dunlop admitted that he has a very friendly relationship with Ms Savage and has not, as at the time of the hearing, had much contact with Ms Savage or her son for a couple of months.

51. [66]

    On the other hand, Leeroy contended that to the extent that Ms Savage is a material witness needed to confirm elements of the claim, it was incumbent on Ms Conway to call her. Ling v Pang [2023] NSWCA 112 at [29] was cited in support of this contention.

52. [67]

    I do not regard the absence of Ms Savage as overly significant in the ultimate determination of what was said. Whilst it is clear that Ms Savage and Mr Dunlop have a friendly, or even very friendly relationship, there was no real dispute as to what Ms Savage said to Ms Conway – rather the dispute was as to what Mr Dunlop said to Ms Savage and whether everything that Ms Savage said to Ms Conway should be attributed to Mr Dunlop. In my view, there is no proper basis for everything said by Ms Savage to Ms Conway to be attributed to Mr Dunlop.

53. [68]

    Ms Savage was communicating with Mr Dunlop in May 2020 – leading to the text message on 22 May 2020 – as agent for Lazy Axle seeking to obtain some information from Mr Dunlop as the incoming purchaser of Lots 50 and 51 as to what he was proposing to build. Ms Savage was not acting as Mr Dunlop’s agent such that everything said by Ms Savage should be attributed to Mr Dunlop. Given that the only reliable evidence of what Mr Dunlop conveyed to Ms Savage in this regard is what is set out in Mr Dunlop’s text message to Ms Savage of 22 May 2020, to the extent to which it is appropriate to attribute to Mr Dunlop anything said by Ms Savage, nothing should be attributed beyond that contained in the 22 May 2020 text. I have real concerns however, about why anything said by Ms Savage to Ms Conway should be attributed to Mr Dunlop and thus Leeroy. As set out below, I also regard what was said directly by Mr Dunlop to Ms Conway on 12 June 2020 as more relevant and overtaking anything previously said by Ms Savage to Ms Conway.

54. [69]

    Relatedly, the approach taken by Leeroy was not to cross examine Ms Conway on the basis that she did not have the conversation which she says she had with Ms Savage. Rather, the approach taken – in final submissions – was to identify – from what Ms Conway says Ms Savage told her to what could be attributed Mr Dunlop based on his text message to Ms Savage on 22 May 2020.

55. [70]

    Properly understood, there was thus no real issue as to what Ms Savage said to Ms Conway. Ms Savage’s absence as a witness in the proceedings thus does not bear against either party.

56. [71]

    Turning to the first two conversations between Ms Conway and Ms Savage – which I have set out above – Leeroy sought to identify from that which Ms Conway deposed to what could be sourced back to Mr Dunlop’s text of 22 May 2020.

57. [72]

    The following mark-up of the first conversation was provided:

58. [73]

    The emphasis in bold is what Leeroy contends is consistent with the text message from Mr Dunlop to Ms Savage. The un-emphasised portions of the conversation has no basis, Leeroy contends, in any authority granted by Mr Dunlop to be passed on to Ms Conway and, in any event, on their face represent Ms Savage’s own views. I accept this submission.

59. [74]

    Turning to the second conversation between Ms Conway and Ms Savage, some of the statements made by Ms Savage are consistent with the earlier text message of 22 May 2020 and some are not. There is no suggestion that Mr Dunlop had a further discussion or discussions with Ms Savage providing for further information as to his plans.

60. [75]

    I agree with Leeroy’s submission that the phrase “… their home will be built here at the front. It will be modest” could be fairly attributed to the earlier text message from Mr Dunlop to Ms Savage. The remainder is not.

61. [76]

    The more relevant exchange is that which occurred at the meeting on Lot 52 on 12 June 2020. This was an exchange directly between Ms Conway and Mr Dunlop, and also Mr Weel. It was requested by Ms Conway. Notwithstanding what had apparently previously been said to her by Ms Savage, she wanted to speak to Mr Dunlop as the incoming owner of Lot 51.

62. [77]

    In these circumstances, as a matter of ordinary common sense, it is only this later in time and direct discussion that could be relevant in terms of what assurance, if any, Mr Dunlop gave to Ms Conway.

63. [78]

    I am not persuaded that the conversation occurred in the manner contended for by Ms Conway. I prefer Mr Dunlop’s account.

64. [79]

    There is no contemporaneous documentation or material to support Ms Conway’s version. Ms Conway’s version of the conversation was not given until the day before the hearing commenced, almost five years after the 12 June 2020 meeting. Although on Ms Conway’s version, the statements made by Mr Dunlop were crucial to Ms Conway’s decision to buy and were of central relevance to the implied easement claim propounded by Ms Conway in these proceedings, Ms Conway obviously had no recollection of the conversation at the time that she made her two earlier affidavits in February and May 2024. Ms Conway’s initial answer in cross examination that the failure to include the conversation in her first affidavit was an error, or omission, is difficult to accept.

65. [80]

    It seems that Ms Conway’s “recollection” was prompted by either seeing or being told the contents of Mr Dunlop’s 22 May 2020 text to Ms Savage, yet it is not entirely clear to me why the contents of that text message (which did not involve Ms Conway) would then prompt a recollection that Mr Dunlop made definite statements on a later occasion and directly to Ms Conway well beyond the contents of the text and offered “his word”, i.e. a guarantee on that.

66. [81]

    I am also concerned that further important details were then apparently “recalled” by Ms Conway under cross examination – namely that Mr Weel also made similar statements and offered his word as well to Ms Conway.

67. [82]

    These matters cause me to have serious reservations about Ms Conway’s account.

68. [83]

    What occurred after the assurances were allegedly given is, in my view, inconsistent with any such assurances. As set out above, Ms Conway sought amendments to the draft contract. The amendments sought only related to whether Mr Weel could submit a development application on Lot 51, or an objection being lodged by Mr Weel on her behalf if a development application is submitted with respect to Lot 51.

69. [84]

    The request is inconsistent with Ms Conway’s version of the conversation on, at least, several levels.

70. [85]

    First, if assurances had been given by Mr Dunlop that he would only build in certain locations and would make sure that it did not affect the sun and breeze or privacy of her home, there is no reason why an agreement to this effect could not be documented if it was crucial to Ms Conway’s decision to buy. Alternatively, clauses could have been inserted into Ms Conway’s contract with Mr Weel requiring covenants to be included in the contract between Mr Weel and Mr Dunlop. It is of some significance in this regard, in my view, that Ms Conway is a solicitor and ought to have been, and obviously was, given the requested alterations to the contract, alert to seeking to legally protect her position.

71. [86]

    Second, including a right to object to any development application is inconsistent with any assurances having been given. Ms Conway was obviously aware, given Lot 51 had no house constructed on it, that a house was going to be constructed on it and had no certainty at all as to what was proposed to be built and how it would likely impact her property. That is why she sought the amendments that she did.

72. [87]

    Ms Conway’s failure to subsequently refer to the assurances she says were given directly to her by Mr Dunlop, and Mr Weel, is also telling.

73. [88]

    Mr Dunlop’s version is, in my view, more consistent with the objective circumstances and inherent probabilities. There is no suggestion that Mr Dunlop had engaged any architect at the time or had any great clarity as to what it was that he was proposing to build. There is also no powerful reason as to why Mr Dunlop would be giving to a potential purchaser of the block next door, what is sought to be characterised as a virtual guarantee as to what he would build and where. I am conscious that the context for the discussion was Mr Weel wanting to sell Lot 52 and the intending purchaser (Ms Conway) wanting some idea as to what was proposed to be built on Lot 51. This, in my view, is not sufficient to conclude that Mr Dunlop effectively undertook not to interfere with Ms Conway’s light and ventilation, particularly having regard to the matters set out above.

74. [89]

    That context lends itself more to the general statements of the kind which Mr Dunlop deposed to – namely what he was looking to do.

75. [90]

    I am thus not persuaded that anything said by Mr Dunlop to Ms Conway on 12 June 2020 could be construed as any sort of undertaking by him to respect Ms Conway’s access to light and ventilation.

76. [91]

    Relatedly, I do not accept Ms Conway’s evidence, no doubt intended in her March 2025 affidavit to buttress her recollection of the assurances that were allegedly given to her by Mr Dunlop, that if she was in any doubt as to what Mr Dunlop proposed to build, she would not have purchased Lot 52. Such evidence is, again in my view, inconsistent with Ms Conway’s conduct in only seeking the amendments she did. It is inherently unlikely, in my view, that in the circumstances a solicitor purchasing a property would apparently rely on an undocumented conversation with the incoming purchaser on an apparently crucial matter – an assurance she would not built out.

77. [92]

    Having regard to all the evidence I find that Ms Conway was obviously concerned about what Mr Dunlop would build, she spoke to him about it, he made general statements – nothing more – and she then sought to protect her position as best she could. No assurance or undertaking was given by Mr Dunlop.

78. [93]

    On 8 December 2020, Leeroy lodged a development application (through Zone Planning Group (ZPG)) for the demolition of the existing structure (the garage and pool on Lot 51) and the construction of a new two storey dwelling with attached garage, in-ground swimming pool and front fence. The plans for the proposed dwelling showed a proposed set back of 1,500 mm on both the ground floor and first floor in the area where the southern boundary of Lot 51 meets the open space area on the northern boundary of Lot 52. On the northern side of the proposed dwelling the proposed setback from the boundary was, at its closest, four metres on the ground floor and nearly ten metres on the first floor. The application also included several shadow studies.

79. [94]

    Mr Sam Smith (Mr Smith), a Town Planner with Council was primarily responsible for assessing the application.

80. [95]

    By email dated 25 January 2021, Mr Dunlop emailed a copy of his plans to Ms Conway. It appears that this followed on from a meeting of sorts on that day when Mr Dunlop showed Ms Conway his plans. Ms Conway says she became immediately concerned that the plans were completely contrary to what had been represented to her. She deposed to a conversation with Mr Dunlop to the following effect:

81. [96]

    Ms Conway admitted that she did not make any mention in this conversation to an easement benefitting Lot 52. (There is also no reference to any direct conversation with Mr Dunlop). She maintained, however, that based on what had been represented to her that there was an obligation held to her, although she admitted she did not assert any obligation at that time. She also accepted that at no time thereafter, during her objections to Council, did she assert any easement.

82. [97]

    Mr Dunlop agreed that there was a discussion with Ms Conway on 25 January 2021 but not to the effect deposed by Ms Conway. According to Mr Dunlop, they exchanged words to the following effect:

83. [98]

    It is not necessary for me to resolve this dispute as the conversation post-dates the relevant purchases. I observe that on Ms Conway’s version there is no reference to any statements having been made directly to her by Mr Dunlop on 12 June 2020. Nothing in Ms Conway’s version causes me to alter my findings above as to what was stated prior to contract.

84. [99]

    On 27 January 2021, Ms Conway sent a communication to Council stating that she had not been given formal notice of the development application by Council but had received a copy of the plans from Mr Dunlop. The communication further stated that Ms Conway proposed to object on several grounds and required 14 days to do so.

85. [100]

    On 28 January 2021, Mr Smith emailed Ms Conway informing her that neighbour notification was in fact provided on 6 January 2021 but granting her an extension to 9 February 2021. Ms Conway lodged her objection on 3 February 2021, being submissions prepared by CityScape Planning and Projects (CityScape). The key planning issue raised in the submission was the overshadowing of Ms Conway’s external dining area.

86. [101]

    On 4 February 2021, Ms Conway sent an email to Mr Smith of Council reserving her right to prosecute an appeal to the Land and Environment Court in certain circumstances. The email also advised that Ms Conway had engaged solicitors and counsel. The solicitors were her husband’s firm, Yates Beaggi Lawyers, where she was, and is, herself employed.

87. [102]

    Mr Smith inspected Ms Conway’s property on 19 February 2021.

88. [103]

    On 25 March 2021, Council wrote to ZPG raising several matters.

89. [104]

    Under the heading Town Planning, the letter from Council stated:

90. [105]

    Under the heading “Sustainability and Environment” the letter requested ZPG to provide:

91. [106]

    Questions were raised by ZPG and on 1 April 2021, Mr Smith sent an email to ZPG which stated inter alia (emphasis in original):

92. [107]

    The area highlighted on the image is the area containing the concrete areas on the northern boundary of Lot 52. Only the unroofed section appears to be highlighted.

93. [108]

    Mr Smith had, earlier that day sent an email to ZPG in which, inter alia, Mr Smith referred to the definition of Principle private open space in SEPP (Exempt and Complying Development Codes) 2008 of:

94. [109]

    On 16 April 2021, Damian Overeem, one of the designers of Mr Dunlop’s house, sent an email to Mr Smith in the following terms:

95. [110]

    Mr Smith replied later that day as follows (emphasis in original):

96. [111]

    Damian Overeem responded as follows:

97. [112]

    In response, Mr Smith asked Mr Overeem to provide the shadow diagrams with the times specified and sufficient justification for his argument.

98. [113]

    On 7 May 2021, ZPG responded to the Information Request in the letter from Council dated 25 March 2021, submitting an amended application.

99. [114]

    In relation to Item 1 of the request, which contended that the proposed dwelling did not comply with the overshadowing requirements of the DCP and requesting an amended and compliant design, the following response was provided by ZPG:

100. [115]

     The amended plans attached to the response now included a set-back of 2,100 mm on the ground floor from Lot 52 (previously 1,500 mm) and 2,700 mm on level one (previously 1,500 mm). The proposed dwelling had thus been moved 600 mm to the north at ground level and 1,200 mm to the north on the first floor.

101. [116]

     Further shadow studies were also included, together with detailed shadow studies. The detailed shadow studies suggested the following change from the existing features to the proposed design:

102. [117]

     The response also included an arborist’s report purporting to deal with the issues raised under the heading Sustainable Environment. The report identified seven trees on Lots 50 and 51, two of which were proposed to be retained with the other five to be removed or relocated.

103. [118]

     The response to the request was uploaded to the Council’s DA Tracker online portal on 11 May 2021. Mr Smith sent an email to Ms Conway on that day advising her of this and to notify Council by 25 May 2021 if she had any further concerns.

104. [119]

     On 24 May 2021, Ms Conway sent to Council her response to Mr Dunlop’s Amended Architectural Drawings and Information Request Response. She also requested Mr Smith let her know the outcome of the application in writing. The response took the form of a further submission from CityScape. The submission maintained that the modified development still does not comply with Control C4 of the DCP, Section 4.3.

105. [120]

     On 1 June 2021, Aida Sloman, Project Officer Biodiversity with Council sent a memorandum to Mr Smith which stated, inter alia:

106. [121]

     On 3 June 2021, Mr Smith sent a further email to ZPG on overshadowing. The email stated:

107. [122]

     The letter dated 3 June 2021 from Council to ZPG relevantly included:

108. [123]

     The letter included a plan continuing to highlight the unroofed portion of the outdoor area of the Conway Land.

109. [124]

     On 2 August 2021, ZPG responded to Council’s additional information request in respect of the overshadowing matters. The response was detailed, running to 14 pages.

110. [125]

     The response relevantly included (emphasis in original):

111. [126]

     On 18 August 2021, Mr Smith emailed Ms Conway notifying her that Mr Dunlop has now submitted additional justification with regards to overshadowing, providing her with a link to the new material. The email asked Ms Conway to make any submission by 1 September 2021.

112. [127]

     Ms Conway provided a submission by email dated 31 August 2021. This took the form of a letter from CityScape to Council.

113. [128]

     On 27 October 2021, ZPG provided a further submission to Council on behalf of Leeroy. The submission purports to respond to “the further submission from a nearby landowner”. The submission makes a number of further submissions on what area should be regarded as “private open space”.

114. [129]

     On 11 December 2021, Ms Conway sent an email to Mr Smith asking if there were any developments with the application. By email dated 13 December 2021, Mr Smith replied that there are currently no further updates to provide.

115. [130]

     On 22 December 2021, Council sent a further letter to ZPG raising a number of matters and requiring a “satisfactory response” to each. The first issue raised is “the overshadowing of the adjoining southern allotment”. The letter referred to the definition of “Principle Private Open Space” in the State Environmental Planning Policy (Exempt and Complying Development) 2008 means “an area outside a dwelling that is directly accessible from, and adjacent to, a habitable room in the dwelling, other than a bedroom”. After referring to C4 of the DCP, the letter stated (emphasis in original):

116. [131]

     A site meeting was then held on 10 February 2022, following which Mr Jarrod Gillies of ZPG sent an email response to Council in response to the 22 December 2021 letter. The email response contends that Council’s interpretation of the DCP is inconsistent with the meaning of the words on their face. Further “merit considerations” were provided. As part of those merit considerations, it was contended that relocating the “proposed Dwelling further to the north to enable greater solar access for X Harper Court, is not without further issues including tree removal”. The arboricultural report dated 30 April 2021 was again provided to Council in this regard.

117. [132]

     The first merit consideration was as follows:

118. [133]

     The attached shadow diagrams clearly demarcated between the roofed and unroofed sections.

119. [134]

     The email concluded by noting that the email and its attachments would be uploaded to the NSW Planning Portal for registration and actioning.

120. [135]

     On 30 March 2022, Mr Smith sent an email to ZPG confirming that he had “now revised the submitted information with Denise and she is also of the opinion that the application is now acceptable to recommend for approval”.

121. [136]

     On 25 April 2022, Mr Farshad Amirbeaggi (Mr Amirbeaggi), Ms Conway’s husband and also her solicitor, emailed Mr Smith seeking an update on the application.

122. [137]

     A Delegated Authority Development Application Report (Report) was then prepared. The Report is prepared by Mr Smith “Assessing Officer” and bears a date of 28 April 2022, although it is apparent that parts of the Report were prepared after that date as parts refer to documents created after 28 April 2022. The “Recommendation” at the end of the Report is that “the application be approved subject to the conditions contained at the end of this document”.

123. [138]

     The Report also contains on its last page a box “Recommendation Approved” with the name “Denise Galle”. It was accepted that no Report was ever signed in the traditional sense but this entry recorded that Ms Galle approved Mr Smith’s recommendation.

124. [139]

     The following extracts from the Report are relevant for present purposes (emphasis added):

125. [140]

     On 28 April 2022, Mr Smith sent an email to Ms Conway, copied to Mr Amirbeaggi which stated as follows:

126. [141]

     Mr Amirbeaggi emailed Mr Smith later that day in the following terms:

127. [142]

     He sent another email shortly thereafter, as follows:

128. [143]

     On 29 April 2022, Ms Galle sent an email to Vincent Connell (of Council) and Mr Smith which stated, inter alia:

129. [144]

     On 29 April 2022, Ms Galle also sent an email to Jonathan Lynch (Mr Lynch) and Mr Smith seeking Mr Lynch’s “thoughts on this one regarding shadow given strong neighbour objection”. Mr Lynch responded on 2 May 2022. His response was incorporated in the Report as extracted above.

130. [145]

     On 3 May 2022, Mr Amirbeaggi sent an email to Mr Smith, copying a number of people including the Mayor. The email was as follows (replicated from original):

131. [146]

     On 5 May 2022, the Governance Officer of Council responded to Mr Amirbeaggi’s 3 May 2022 email in the following terms:

132. [147]

     On 5 May 2022, Mr Amirbeaggi responded to Mr Darcy Cross to the effect that he had approached the Minister for Planning for an inquiry into the conduct of Council and his clients would shortly file their summons for relief.

133. [148]

     The Councillors were subsequently asked whether they wished to call up the application for determination or whether they were happy for it to be dealt with under delegation. The matter was dealt with under delegation. Ms Galle emailed Mr Smith on 20 May 2022 notifying him that she would review the report and “sign consent”. Mr Amirbeaggi was notified on 20 May 2022 that Council staff will proceed to determine the application under delegation “as Councillors declined to call up the application to a full Council Meeting”. Mr Amirbeaggi immediately responded requesting advice as to when the determination is issued “so that we are able to file our Summons for Judicial Review”.

134. [149]

     On 14 June 2022, around 18 months after the development application was lodged, Council determined it by the grant of the Consent, subject to conditions. Ms Conway was notified of this by letter dated 14 June 2022.

135. [150]

     Proceedings were commenced by Ms Conway in the Land and Environment Court on 13 September 2022. On 18 August 2023 the proceedings were transferred to this Court.

The expert evidence

1. [151]

   In addition to the lay evidence, some expert evidence was relied on by the parties, principally Ms Conway.

2. [152]

   First, Ms Conway tendered two reports from Mr Joshua Andren (Mr Andren), a director of Integrated Design Group dated 8 September 2022 and 23 May 2024 respectively. Mr Andren is a Registered Architect and a Registered Building Design Practitioner (Architectural).

3. [153]

   His first report dated 8 September 2022 commented on the accuracy of the shadow diagrams submitted by Leeroy as part of the application. The second, and more extensive report, dealt with a number of issues, being:

4. [154]

   A number of objections were raised by Leeroy to the opinions expressed by Mr Andren. In light of the objections, a number of paragraphs of the report were not read – paragraphs 11, 12, 20 to 25 and 26 to 35 (dealing with the clauses of the DCP other than cl. 4.3). I admitted paragraphs 13 to 19 and 40 to 44 – concerning compliance with the DCP and the accuracy of the plans and shadow diagrams - subject to relevance. Paragraphs 36 to 39 were admitted without limitation – dealing with the second of the issues set out above. Paragraphs 45 and 46, dealing with issue (d) as set out above was admitted but only as relevant to whether an easement should be imposed.

5. [155]

   Mr Andren expressed the opinion that the proposed building on the Leeroy Land can quite easily be redesigned to address the non-compliances with Council’s DCP without losing the amenity and quality of space currently being provided in the design. Mr Andren prepared what he described as one possible solution, which was contained in annexure 7 to his second report. This solution was a potential rework of the master suite on the first floor to step the upper level back from the boundary and twist the building form to open space for improved light and ventilation.

6. [156]

   Mr Andren also expressed the view that the bounds and measures of any easement that would ensure compliance with the DCP solar access and ventilation requirements would be as follows:

7. [157]

   A diagram, prepared by Mr Andren, depicting the bounds and measures of the proposed easement is set out below:

8. [158]

   Ms Conway prepared an instrument setting out the terms of the easement which she says should be imposed – either by way of an implied easement or pursuant to s 88K of the Conveyancing Act – having regard to the opinions expressed by Mr Andren. A copy of the proposed instrument was provided to the Leeroy parties on the morning of the first day of the hearing and was subsequently admitted into evidence as Exhibit H.

9. [159]

   Mr Andren also prepared a further supplementary report, dated 27 February 2025 in which he provided a sketch plan for a dwelling located entirely on Lot 51 which, in Mr Andren’s opinion, complies with the relevant requirements of Council’s DCP and LEP, as well as accommodates the easement proposed by Ms Conway for the maintenance of solar access and natural ventilation to the Conway Land.

10. [160]

    Mr Andren was cross examined relatively briefly on the morning of day two of the hearing.

11. [161]

    When called to give evidence, Mr Andren gave some further brief evidence in chief:

12. [162]

    The effect of the cross examination of Mr Andren may be summarised as follows:

13. [163]

    Ms Conway tendered an expert report of Mr Bryce Claassens of Urban Abor (Mr Claassens). Mr Claassens is a consulting arborist. Mr Claassens’ report was objected to. Paragraphs 2.9.4 and 2.9.5 were ultimately not read and I admitted the report, over objection, as relevant only to whether an easement should be imposed. Mr Claassens was not cross examined.

14. [164]

    Ms Conway tendered a report from Mr Kevin Peddie of RWDI Australia Pty Ltd (Mr Peddie). Mr Peddie is a chartered and registered engineer who was asked to express opinions as to whether the development application meets compliance with clauses 4.3 and 4.5 of the DCP and, if not, what modifications were needed to bring it into compliance with those provisions? Again, Leeroy objected to the report in its entirety. Paragraphs 4.23 to 4.27 and 4.33 to 4.35 were not read. Otherwise I admitted the report.

15. [165]

    Mr Peddie was then cross examined, briefly. In cross examination, Mr Peddie admitted that he did not have any study, or training, or hold any experience on the matter of development assessment. Further, he had not previously had any role of project managing a whole development application. His area of expertise was confined to advice or consultation in his role as an engineer.

16. [166]

    In light of the answers given in cross examination, I do not propose to place any weight on the opinions expressed by Mr Peddie. No submission was advanced on behalf of Ms Conway to the contrary.

17. [167]

    Each of the parties qualified an expert valuer to express an opinion on the diminution in value on the Leeroy Land of the grant of an easement of the kind contended for by Ms Conway. Ms Conway tendered a report from Mark Ellis (Mr Ellis), dated 28 May 2024. Leeroy tendered a report from Mr Scott Walker of Herron Todd White (Mr Walker) of 12 July 2024.

18. [168]

    There are number of differences of opinion between Mr Ellis and Mr Walker. They gave evidence concurrently which proved to be extremely efficient. I deal with the differences of opinion, and their resolution, later in these reasons when dealing with the compensation payable under s 88K(4) of the Conveyancing Act.

Judicial Review of Council’s Decision

1. [169]

   A number of grounds of judicial review were advanced by Ms Conway in the statement of claim. Ultimately, only two bases were principally advanced in closing:

2. [170]

   A contention of denial of procedural fairness was also maintained in closing submissions, although lightly pressed.

3. [171]

   Senior counsel for Leeroy observed that the grounds ultimately pressed departed from the pleaded case – particularly in relation to the alleged claim of unreasonableness – but accepted that Leeroy was able to deal with the claims as ultimately pressed.

4. [172]

   I consider each of these three grounds below. Before doing so, I set out the relevant legislative and planning background.

The statutory process of development assessment and approval

1. [173]

   There was no dispute between the parties as to the relevant statutory regime.

2. [174]

   Under s 4.16(1) of the EPA Act: a consent authority is to determine a development application by:

3. [175]

   This power can be exercised by Council at a meeting or by a delegate: see ss 377-378 of the Local Government Act 1993 (NSW).

4. [176]

   Section 4.15 of the EPA Act relevantly provides:

5. [177]

   The predecessor to what is now s 4.15(3A), (s 79C(3A)), was enacted to deal with the then perceived dominance that provisions of DCP’s were achieving in development assessment. As its provisions make clear, the consideration of any DCP control must be a nuanced evaluation of several competing factors. The Second Reading Speech to the Environmental Planning and Assessment Bill (2012) (New South Wales Legislative Assembly (Hansard), 24 October 2012), stated:

6. [178]

   Tweed Development Control Plan 2008 (DCP) provides controls to guide the planning and design of, inter alia, residential development within Tweed Shire.

7. [179]

   Section A1, Part A – Preliminary Information of the DCP, provides at clauses 1.4 and 1.5:

8. [180]

   It may be observed that the DCP guidance as to its application is consistent with s 4.15(3A)(b) of the EPA Act, in that it provides for the flexible application of the design controls where reasonable alternative solutions are identified that achieve the objects of the standard.

9. [181]

   Section A1, Part A, Dwelling Houses, Dual Occupancy, Secondary Dwellings, Alterations and Additions and Ancillary Development of the DCP, addresses at section 4, Building Design, and at cl 4.3, in particular, Solar Access and Natural Ventilation:

10. [182]

    It is convenient to deal first with the claim that Ms Conway was denied procedural fairness. The contention can be dealt with quite shortly.

11. [183]

    The essence of Ms Conway’s contentions in this regard may be summarised as follows:

12. [184]

    Leeroy’s contentions may be summarised as follows:

13. [185]

    I accept the contentions of Leeroy.

14. [186]

    A Council (or its delegate) must consider “any submissions, made in accordance with” the EPA Act by force of s 4.15(1)(d) and the “public interest” by force of s 4.15(1)(e). The EPA Act provides mandatory community participation requirements in respect of “the exercise of relevant planning functions”: see s 2.22(1) of the EPA Act and Part 1 of Schedule 1.

15. [187]

    By reference to clause 7(1) of Part 1 of Schedule 1, the “minimum public exhibition period” for a generic application for development consent is the period prescribed in a “community participation plan”.

16. [188]

    Council adopted its Community Engagement and Participation Plan 2019-2024 (CEPP) on 21 November 2019. There is no suggestion that the present application was not advertised in accordance with the CEPP. It is accepted that it was.

17. [189]

    In Sisic v Rockdale City Council (2007) 158 LGERA 170; [2007] NSWLEC 687 (Sisic), Pain J stated at [82]:

18. [190]

    Senior counsel for Ms Conway did not contend that Sisic was wrongly decided. Rather, the focus was on the particular engagement between Council and Ms Conway in the present case. I do not accept that the dealings between Ms Conway and Council give rise to any obligations of procedural fairness over and above the requirements of the statutory scheme, which were complied with.

19. [191]

    In any event, at a factual level, I accept that Ms Conway was given access to the relevant material and given an opportunity to respond. The relevant chronology is set out above. The email communications from Mr Amirbeaggi from 28 April 2022 and thereafter suggest that Ms Conway did not wish to take up any further opportunity to respond but wished for Council to finalise its determination so that Ms Conway could exercise her appeal rights.

20. [192]

    I reject the contention that Ms Conway was denied procedural fairness.

21. [193]

    The essence of the case propounded by Ms Conway was that Council failed to consider cl. 4.3 of the DCP as it improperly adopted what was put by Leeroy’s town planning experts and construed the reference to “principal area of private open space” to be only the unroofed area on Lot 52 and not the entire area of open space, including that which was roofed. So the argument ran, relying on this erroneous construction, Council determined that the unroofed area was already substantially overshadowed such that the numeric requirements in the DCP could never be achieved. Council thereafter set about justifying its determination on a wrong factual basis and did not consider minimising the impact on Lot 52, one of the objectives of the relevant part of the DCP, and thus failed to comply with s 4.15(3A) of the EPA Act.

22. [194]

    As put by senior counsel for Ms Conway in oral closing submissions, Council’s consideration effectively became switched around – from a consideration of the requirements of the DCP cannot be satisfied as opposed to a consideration of how can the requirements be satisfied. Council proceeded on the basis that there is no design that can meet the parameters because there is already just about 50 percent of the area overshadowed and therefore, there is nothing that can really be done to meet these parameters.

23. [195]

    An essential integer in the complaint is that the reference in cl. 4.3, particularly C4(i), to “principle area of private open space” is a reference to the entirety of the area, including roofed and unroofed, and that Council by confining itself to only the unroofed area, did not give consideration to C4(i) and thus failed to fulfil its statutory function.

24. [196]

    So the argument ran, whilst s 4.15(3A) required a flexible approach to be adopted, when an application does not comply with the standards in a DCP, the flexible approach must be applied to achieve the objects of the standard. In the present case, one of the relevant objects is to minimise the potential impacts on solar access and natural ventilation to adjoining properties. The contention is Council failed to apply the flexible approach to meet the objective of minimisation. It was contended that this was manifest on the face of the Report. The expert report of Mr Andren was put forward in support of a contention that minimising the impacts on Lot 52 could be achieved without detrimentally affecting maximising sunlight to the Leeroy Land.

25. [197]

    Leeroy’s response may relevantly be summarised as follows:

26. [198]

    I do not accept that Council failed to consider the DCP in its terms or failed to comply with s 4.15(3A) of the EPA Act by failing to consider minimising the impact on Lot 52.

27. [199]

    As a starting point, I do not accept that Ms Galle simply adopted the analysis of Mr Smith. The statutory discretion was exercised by Ms Galle under s 4.16(1) of the EPA Act. Ms Galle (as Council’s delegate) is presumed to have constructive knowledge of the “file” relating to the relevant application: Schroders Australia Property Management Ltd v Shoalhaven Shire Council [2001] NSWCA 74 at [67] per Ipp AJA (Spigelman CJ and Sheller JA agreeing).

28. [200]

    It is appropriate to have regard to all of the available information to which Ms Galle had access: see, for example, Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 at [88] per Pain J.

29. [201]

    In any event, it is apparent on the face of the Report that, as I have set out above, it includes material after the purported date of the Report including the response from Mr Lynch to Ms Galle’s email regarding overshadowing.

30. [202]

    The email from Ms Galle to Mr Lynch dated 28 April 2022 to which Mr Lynch responded on 2 May 2022 (his response being included in the Report) seeks Mr Lynch’s views generally on overshadowing given Ms Conway’s strong objection. It is apparent from Mr Lynch’s response (which was adopted by Ms Galle) that he then considered the relevant drawings and overshadowing diagrams and assessed the impact on Lot 52.

31. [203]

    There is nothing in Mr Lynch’s email to suggest that he approached his review with a preconceived view as to whether the extent of the overshadowing should be assessed by reference to only the unroofed portion of the open space on Lot 52. Again, there is nothing in Ms Galle’s request to suggest she similarly had a preconceived view. Ms Galle clearly adopted Mr Lynch’s view by including it in the Report. Both proceed on the basis of whether the application should be approved given the overshadowing. Mr Lynch’s response demonstrates a balancing between Lots 51 and 52.

32. [204]

    I therefore do not accept that Council approached the task of considering Solar Access and Natural Ventilation under cl. 4.3 of the DCP on the basis that only the unroofed portion of the open space area on Lot 52 should be considered, and that Council determined that compliance with the DCP controls was impossible.

33. [205]

    I do not discern any error in the approach of Council in considering the provisions of the DCP.

34. [206]

    The chronology set out above establishes that it was Council that requested ZPG to submit shadow diagrams by reference to the unroofed portion and ZPG complied with this request, contending also that it was the entire area that should be considered in assessing the controls in the DCP. Whilst perhaps this is a small point, contrary to the contentions of Ms Conway, Council did not simply adopt what was submitted by ZPG.

35. [207]

    Council appreciated that the proposed design did not comply with the DCP controls. The fact that Mr Smith considered compliance with the DCP controls by reference to the unroofed area of the open space on Lot 52, as opposed to the entire area of open space, is of absolutely no moment. Whether assessed by reference to the unroofed area or the entire area, the design would not comply with the controls.

36. [208]

    The issue for Council was whether, consistent with s 4.15(3A) of the EPA Act and cl. 1.4 of the DCP, to approve the application. This required Council to be flexible and allow reasonable alternative solutions that achieve the objects of cl. 4.3.

37. [209]

    Two objects are obviously set out in clauses 4.3 – 01 and 02. It was a matter for Council to consider whether the design was a solution to achieve those objects. Considered as a whole, the Report demonstrates that this is what Council did.

38. [210]

    It is immediately obvious that there is the potential for conflict in giving effect to the objects. The task of Council is to have regard to both objects. This is what Council clearly did. Council’s task was not to search for an outcome which could be said to comply with both objects, which is the effect of the arguments put forward by Ms Conway.

39. [211]

    At page 15 it is noted that the Application is non-compliant with control C4.

40. [212]

    The report thereafter contains a rational assessment of the two objects of cl 4.3 of the DCP. I have underlined the relevant parts of the Report in the extracts earlier in these reasons. By way of example:

41. [213]

    I accept that the Report does not directly refer to each of the objects in terms. As a matter of substance however, it clearly considers each of the objects and rationally assesses each, concluding that the outcome is a reasonable one.

42. [214]

    Ms Conway’s complaint really is to the manner of assessment – this is a matter for Council’s assessing officer, not the Court on this application.

Unreasonableness

1. [215]

   It was not in dispute that the power of a consent authority in determining a development application is discretionary – the discretion being conferred by the terms of the EPA Act. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [63] per Hayne, Kiefel and Bell JJ and the cases there cited.

2. [216]

   In Martinus Rail Pty Ltd v Qube Re Services (No 2) Pty Ltd [2025] NSWCA 49, Payne JA (with whom, Gleeson JA and Griffiths AJA agreed) recently set out in a comprehensive way the principles regarding the unreasonableness ground of judicial review at [75]-[79] in the following terms:

3. [217]

   As Ms Conway argued, a decision will be legally unreasonable if it is lacking an evident or intelligible justification, irrational or illogical, or plainly unjust, arbitrary or capricious, or lacking common sense.

4. [218]

   Leeroy placed considerable weight on the fact that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker to accord such weight to those considerations as the decision maker considers appropriate, accepting that a Court may set aside any administrative decision where the decision maker fails to give adequate weight to a relevant fact of great importance: see Warkworth Mining Ltd v Bulfa Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [196] per Bathurst CJ, Beazley P and Tobias AJA.

5. [219]

   Leeroy also emphasised that even perverse findings of fact cannot create jurisdictional error: see Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 at [148] per Preston CJ of the Land and Environment Court (LEC).

6. [220]

   At a factual level, Ms Conway relied on a number of the same matters relied on in relation to the first ground (failure to consider the DCP in its terms) as also demonstrating unreasonableness in the relevant sense.

7. [221]

   In particular, it was contended that:

8. [222]

   Leeroy contended that Council’s decision was one well within the discretional freedom afforded the decision maker;

9. [223]

   Conscious of the high threshold for a conclusion of unreasonableness, I am not satisfied that Council’s decision to grant consent was unreasonable in the relevant sense. The decision reached was well within the bounds of the decisional freedom afforded to Ms Galle as the decision maker. It cannot be described as lacking in evident or intelligent justification, as being irrational or illogical or plainly unjust, arbitrary or capricious, or lacking common sense.

10. [224]

    The Report demonstrates a rational assessment of the relevant issues. The nature of the exercise is such that on the facts of the present case there were a broad range of legally permissible outcomes – balancing the interests of Leeroy in being able to build within existing controls and the interests of Ms Conway in minimising the potential impacts of the development on Ms Conway’s solar access and natural ventilation.

11. [225]

    Ms Conway’s contentions would have the effect that the only legally reasonable decision was one which complied with the relevant DCP controls. I do not agree. The clear terms of s 4.15(3A) and the terms of the DCP itself speak against this.

12. [226]

    I have dealt above with the complaint that Council failed to consider the relevant objects of the DCP – minimising the potential impacts on Ms Conway’s solar access and natural ventilation. I reject that complaint.

13. [227]

    I have also dealt above with Ms Conway’s contention that Council misapplied the guidelines by focusing on the unroofed open space area. I also reject that contention.

14. [228]

    The remainder of Ms Conway’s complaints under this head relate to alleged factual errors – namely whether the arborists report and an ecologist report provided a justification for not being able to move the footprint to the north. It is worth remembering that such factual findings even if perverse, cannot create jurisdictional error.

15. [229]

    In any event, I do not accept that Council made the factual errors alleged. The email submission from ZPG dated 21 February 2022, which again attached Leeroy’s Arboricultural advice, contended that moving the proposed dwelling further to the north was not without further issues including tree removal. The submission identified the relevant trees and provided a reference to the attached Arboricultural report. The attached report identifies the trees on the Leeroy Land although it does not express any opinions consistent with the email submission. That was not the purpose of the Report.

16. [230]

    That email submission also referred to the potential impact on the northern boundary of the Leeroy Land if the proposed dwelling was moved to the north. It was open to Council to accept this submission.

17. [231]

    Council’s ecological impact assessment was directed at the Application and not specifically at any proposal to move the proposed development to the north. It thus does not appear to support the proposition expressed in the Report. The proposition accepted by Council was, however, supported by Leeroy’s submissions.

18. [232]

    The point however, was only a small aspect of Council’s consideration and does not go to the heart of the rationality of Council’s decision.

19. [233]

    I therefore reject the contention that the decision of Council was unreasonable in the relevant sense.

Impact of Part 3 Div 3 of the Land and Environment Court Act

1. [234]

   Counsel for both parties quite properly drew my attention to section 25B of the Land and Environment Court Act 1979 (NSW). That section provides:

2. [235]

   In circumstances where I have rejected the challenges to the Council’s decision, I do not need to consider s 25B.

The implied easement claim

1. [236]

   Ms Conway claims that an implied easement to provide adequate solar access and natural ventilation exists to the benefit of Lot 52, burdening the adjoining lots including the Leeroy Land and, in particular, Lot 51. The scope of the easement is identified in the report of Mr Andren dated 23 May 2024.

2. [237]

   The principal authority relied on in support of the implied easement is the decision of the Court of Appeal in McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180 (McGrath v Campbell). I set out the necessary elements below.

3. [238]

   The origins of the implied easement said to arise in the present case is generally traced back to Wheeldon v Burrows (1879) 12 Ch D 31 (Wheeldon v Burrows).

4. [239]

   Whilst Wheeldon v Burrows was decided after Torrens legislation had been introduced in Australia it was not, self-evidently, a decision under the Torrens legislation. The essence of the Torrens legislation is title by registration. Implied easements do not sit comfortably with a system of title by registration.

5. [240]

   A number of academic articles have sought to analyse the nature of implied easements and whether they remain valid exceptions to the indefeasibility created by the register: see, for example: M McGuire, ‘A New South Wales perspective of implied and prescriptive easements and the rights in personam exception to indefeasibility of title’ (2006) Australian Property Law Journal 228; LB Moses and C Sherry, ‘Unregistered access: Wheeldon v Burrows easements and easements by prescription over Torrens land’ (2007) 81 ALJ 491; F Burns, ‘Implied Easements and the Integrity of the Torrens System’ (2009) 21 Bond LR 1.

6. [241]

   Senior counsel for Leeroy did not dispute that an implied easement could exist over Torrens land. Such a concession was properly made on the current state of the authorities.

7. [242]

   In Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 at [37] Brereton J observed that it is doubtful that implied easements can arise in respect of land under the Real Property Act 1900 (NSW) (RPA) because of s 42. At [38] Brereton J stated:

8. [243]

   Brereton J was dealing with a claim against the registered proprietor at the time of the sale to the owner of the putative dominant tenement, rather than against a successor in title, which is the situation in the present case and was the situation in McGrath v Campbell.

9. [244]

   There is a real question, in my view, as to whether an implied easement can trump the registered proprietor’s indefeasible title in light of the decision of the Court of Appeal in Williams v State Transit Authority (NSW) (2004) 60 NSWLR 286; [2004] NSWCA 179.

10. [245]

    In McGrath v Campbell at [118], Tobias JA stated:

11. [246]

    The reference to Professor Butt’s observations were to what was said in Land Law, (Peter Butt, Land Law, (5th ed, 2005, Thomson Reuters)) at 779. The current edition of Butt’s Land Law (Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)) maintains the same position – see [12.760] at page 865 and at [12.770] at page 867.

12. [247]

    At [119] in McGrath v Campbell, Tobias JA indicated that it was not necessary for him to express a concluded view on the issue. His Honour then turned to consider the particular case before the Court which concerned a claim against a successor in title of the servient tenements. Tobias JA held that the claim failed on the facts. In these circumstances it may be questioned whether what was said by Tobias JA about indefeasibility extended beyond claims against the transferor rather than a successor in title. The observations of Brereton J appear to confine what Tobias JA said to claims against a transferor and not a successor in title.

13. [248]

    There are a number of Court of Appeal decisions which have held that implied easements may be enforced in personam against the owner of the burdened land (assuming no change in ownership of that land at the time of the in personam enforcement – a claim against the transferor): see Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618; Kebewar Pty Ltd v Hawkin (1987) 9 NSWLR 738 at 743; Wilcox v Richardson (1997) 43 NSWLR 4.

14. [249]

    As explained by Tobias JA in McGrath v Campbell, the claim against a successor in title of the servient tenement (in a simultaneous or near simultaneous transaction) is based on the Aldridge v Wright exception to the second rule articulated by Thesiger LJ in Wheeldon v Burrows.

15. [250]

    Given this basis, and the earlier decisions of the Court of Appeal I have referred to above, I proceed on the basis that a claim of an implied easement of the kind brought in the present case, can stand outside the cloak of indefeasibility.

16. [251]

    I turn now to consider the elements of such a claim.

17. [252]

    The starting point is what was said by Thesiger LJ in Wheeldon v Burrows (at 49):

18. [253]

    In Aldridge v Wright [1929] 2 KB 117, Greer LJ set out (at 130–132) a series of propositions by way of variants to the rules in Wheeldon v Burrows. Propositions one and four are relevant for present purposes. They are as follows:

19. [254]

    In McGrath v Campbell, Tobias JA stated at [75]-[77] (emphasis added):

20. [255]

    As Tobias JA recognised in McGrath v Campbell at [83], the answers to the questions formulated at [82] (which were based on the propositions set out at [75]-[77] that I have extracted above), were relevant to the critical question of whether the implied easement gave rise to an equity or right in personam enforceable against the purchaser of the servient tenement on the basis that they were personally bound to recognise that equity and give effect to it as an exception to the indefeasibility provisions of the RPA. At [108], Tobias JA set out what was not sufficient to create a “personal equity” in the following terms:

21. [256]

    What was said by Tobias JA at [110]-[114] is also relevant (emphasis added):

22. [257]

    Hodgson JA at [4] in McGrath v Campbell emphasised that the critical question was whether the new servient tenement owner’s involvement in the relevant transactions was such as to give rise to a personal equity against them.

23. [258]

    The modern starting point for consideration of the in personam exception to indefeasibility is the decision of the High Court in Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16.

24. [259]

    Recently, in Pirrottina v Pirrottina [2025] NSWCA 55, Gleeson JA (with whom Payne and Adamson JJA agreed) briefly considered the circumstances in which a “personal equity” arises. At [110]-[111] Gleeson JA stated (emphasis added):

25. [260]

    The case propounded by Ms Conway in this respect shifted somewhat between opening and closing address. In written submissions filed before the commencement of the hearing, it was contended that there was no concurrent sale of Lots 51 and 52 such that the Aldridge v Wright extension to Wheeldon v Burrows is not applicable.

26. [261]

    Come the time of closing submissions, it was contended that the sales were sufficiently contemporaneous to pick up Aldridge v Wright. It was contended – and this did not appear to be in dispute – that the sales of Lots 51 and 52 were occurring with the apparent knowledge of each of the parties from at least May or June 2020.

27. [262]

    Senior counsel for Ms Conway also drew my attention to a number of early decisions including those referred to in Wheeldon v Burrows itself – Tenant v Goldwin (1704) 2 Ld Raym 1090; Phillips v Low (1892) 1 Ch 47 and Swansborough v Coventry (1832) 9 Bind 305 all of which dealt with implied easements of light and ventilation. The general principle was, obviously enough, not in dispute.

28. [263]

    Senior counsel for Ms Conway ultimately put the implied easement case on two bases:

29. [264]

    Senior counsel for Leeroy contended that no such undertaking was ever given by Mr Dunlop. The conversations never amounted to more than generic statements by Mr Dunlop of an ambition for a modest dwelling and this was always contingent on him approaching an architect for design guidance.

30. [265]

    Senior counsel for Leeroy also contended that even if Leeroy had notice of the circumstances which might indicate the solar access enjoyed by the dwelling on the Conway Land before the purchase of Lot 50 or Lot 51 (as pleaded by Ms Conway at 13.3 of the further amended statement of claim) this is not notice of an interest in the nature of an easement. Further, there was no undertaking to respect any interest.

31. [266]

    Critical to the determination of this aspect of the case are my findings in relation to the conversations between Ms Savage and Ms Conway and, more importantly, Mr Dunlop and Ms Conway together with Mr Weel. I have set out my findings in this regard earlier in these reasons.

32. [267]

    As there set out, I prefer Mr Dunlop’s version of the conversation with Ms Conway on Lot 52, on or about 12 June 2020. I do not accept that Mr Dunlop gave any assurances or undertook to Ms Conway as to what he would build on Lot 51 and, more importantly, I do not accept that he gave any assurances or undertook that Leeroy would respect Ms Conway’s solar access and natural ventilation.

33. [268]

    No such assurances or undertaking could, in my view, be teased out of what Ms Savage told Ms Conway, having previously spoken to Mr Dunlop. In any event, what was said by Ms Savage to Ms Conway was clearly overtaken by the later direct discussion between Mr Dunlop and Ms Conway.

34. [269]

    It is obviously not in dispute that Ms Conway had a concern about what Leeroy was going to build on Lots 50 and 51 in terms of the impact on her solar access and natural ventilation, that Mr Dunlop knew this and understood her concern and that they had a discussion about what Leeroy was proposing to build in that context. Without more, however, this is not sufficient to create an implied easement enforceable against Leeroy as an in personam exception to indefeasibility. At the very least, the necessary undertaking by Leeroy is absent.

35. [270]

    Accordingly, I do not accept that any implied easement arose.

Section 88K easement

1. [271]

   Prayer 5 of the further amended statement of claim seeks, in the alternative to the implied easement:

2. [272]

   A form of instrument was proffered by Ms Conway to Leeroy at or about the commencement of the hearing (Exhibit H), setting out the terms of the proposed easement based on what was produced by Mr Andren. I have set out the relevant sketch above.

3. [273]

   Senior counsel for each of Ms Conway and Leeroy acknowledged that they had not been able to locate a case where the Court had considered whether to impose an easement of the kind sought under s 88K.

4. [274]

   Section 88K relevantly provides:

5. [275]

   The relevant principles are well settled. The following propositions are relevant in the present case.

6. [276]

   First, the power to impose an easement is made conditional upon satisfaction of the requirement in s 88K(1) – it is a precondition of the exercise of the jurisdiction that there must be a finding that the easement sought is reasonably necessary for the effective use or development of the land which will have the benefit of it. This is to be determined objectively and involves the making of a value judgment, but not the exercise of a discretion: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 (Rainbowforce) at [68] per Preston CJ of the LEC.

7. [277]

   Second, the requirement of reasonable necessity is to be decided in light of the circumstances existing at the time of hearing: see 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (117 York Street) at 511 per Hodgson CJ in Eq.

8. [278]

   Third, the inquiry directed by the requirement in s 88K(1) is whether the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easements: Rainbowforce at [70] per Preston CJ of the LEC.

9. [279]

   Fourth, the authorities on “reasonably necessary” establish:

10. [280]

    Senior counsel for Leeroy also referred to the fact that under s 88K(2)(a), the Court must be satisfied that the use of the dominant tenement would not be inconsistent with the public interest. In Rainbowforce at [94], Preston CJ of the LEC stated that it is the use of the dominant tenement that is not to be inconsistent with the public interest. At [95] Preston CJ of the LEC continued as follows:

11. [281]

    I deal separately below with the question of compensation and deal with the relevant principles there.

12. [282]

    The requirement of s 88K(2)(c) of all reasonable attempts also assumed some significance in the case in circumstances where a proposed form of easement (Exhibit H) was not proffered until the start of the hearing.

13. [283]

    Whether an applicant has established that all reasonable attempts have (unsuccessfully) been made to obtain the easement is a question of degree and will turn on the particular circumstances: see Nahata v Robertson [2023] NSWSC 642 at [59] at [60] per Peden J. It is open to consider facts at the time of hearing, including facts arising after the commencement of proceedings: Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [83] per Basten JA (Bell P and Gleeson JA agreeing).

14. [284]

    In Rainbowforce at [131] Preston CJ of the LEC stated:

15. [285]

    Finally, it is also clear that the power under s 88K(1) to make an order imposing an easement is discretionary, notwithstanding satisfaction of the requirements of ss 88K(1) and (2). The purpose is to be exercised having regard to the purpose of the section which has been summarised as facilitating the reasonable enjoyment of land whilst ensuring that just compensation be paid for any erosion of private property rights: see Rainbowforce at [134]-[135] per Preston CJ of the LEC.

16. [286]

    A number of issues were agitated by the parties.

17. [287]

    First and foremost, whether the imposition of the easement sought is reasonably necessary for the effective use of the Conway Land.

18. [288]

    Second, Leeroy contended that the imposition of the easement would be inconsistent with the public interest.

19. [289]

    Third, Leeroy contended that the Court would not be satisfied that reasonable attempts have been made to obtain an easement through negotiations with Leeroy.

20. [290]

    Fourth, the quantum of compensation was in issue. I address this separately below.

21. [291]

    Fifth, and allied to the second point raised above, Leeroy contended that the grant of the easement sought was not worthy of a grant in the discretion of the Court because such an easement would, in terms, contradict the local planning instruments.

22. [292]

    Finally, reliance was placed on cl. 1.9A of the Tweed Local Environmental Plan (TLEP). This argument cuts across various of the causes of action alleged and so I deal with it separately at the end of these reasons.

23. [293]

    The essence of the case advanced by Ms Conway in this regard was to focus on the fact that the house on Lot 52 was designed and constructed as a high-end luxury residential home in a particular location so as to accommodate the favourable solar access to the north. The vast curtain wall (referred to earlier in these reasons) is a central focus of the dwelling’s design, providing light, heating and cooling etc to the main living areas of the house including in its private open area, ground floor and first floor. The easement is said to be necessary to maintain these important features.

24. [294]

    Ms Conway, relying on Mr Andren’s report, contends that the proposed easement would not have any impact on the Leeroy Land because the proposed dwelling can be moved but still maintain maximum exposure to sunlight and the like.

25. [295]

    Leeroy contended that the Court would not be assisted by Mr Andren’s report in this regard in circumstances where Mr Andren’s design is only a “concept”, which has not been prepared mindful of the design and volumetric controls of the DCP. Further, it was contended that Mr Andren’s design, as posited, produces a built form on Lot 51 that is manifestly out of character with the surrounding properties in which it is apparent that built form tends to lay along southern boundaries with pools and living areas oriented to the north.

26. [296]

    I am not satisfied that the imposition of the claimed easement is reasonably necessary for the effective use of the Conway Land.

27. [297]

    Absent the easement, the Conway Land can continue to be used as a residential dwelling. There are, as the contents of the Report demonstrate, areas of open space on the Conway Land other than that which borders the boundary between Lots 51 and 52.

28. [298]

    The fact that the dwelling on Lot 52 was constructed in a way to maximise solar access and natural ventilation from the north does not, in my view, mean that an easement should be imposed so as to maintain that solar access and natural ventilation. Maintenance of the pre-existing solar access and natural ventilation is not reasonably necessary for the effective use of the Conway Land.

29. [299]

    Whilst maintenance of solar access and natural ventilation would no doubt be preferable or desirable, something more is required: Moorebank at [154] per Bathurst CJ, Beazley and Meagher JJA. Reasonable necessity cannot be reduced to substantial preference, or something “nice to have”: see ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 at [52]-[53] per Giles JA (Campbell JA agreeing).

30. [300]

    Imposition of the proposed easement would undoubtedly have an impact on the Leeroy Land. So much is apparent from the fact that it would prevent Leeroy from constructing its proposed dwelling where it proposed to, being a dwelling which has otherwise been approved by Council. It would impact on Leeroy’s lawful use and development of its own land.

31. [301]

    Whether Leeroy’s proposed development can be amended in the manner proposed by Mr Andren is by no means certain. It is clear that it does not comply with the relevant controls, and approval would be reliant on the flexibility that Council possesses under s 4.15(3A).

32. [302]

    Even if Mr Andren’s concept was approved by Council, the fact remains that Leeroy would be required to build something different to that which Leeroy wanted to build which had been approved by Council. There is also the fact that Mr Andren’s concept is out of character with surrounding homes.

33. [303]

    Senior counsel for Leeroy contended that use of the Conway Land with the benefit of the easement, having a consequent limit on the built form on Lot 51 is not in the public interest or worthy of a grant of discretion by the Court. This is because such an easement would, in terms, contradict the local planning instruments which permit a wide range of built form on Lots 50 and 51 and which have been manifest in the type of built form permitted by the Consent.

34. [304]

    Given that I am not satisfied that the easement is reasonably necessary, it is not strictly necessary for me to determine this issue. In my view there is, however, some force in Leeroy’s contentions in this regard. It is difficult to see how it is in the public interest to allow use of the Conway Land with the easement in circumstances where local planning instruments and further decisions are best made by those in whom planning and development decisions are reposed.

35. [305]

    Leeroy contended that reasonable attempts have not been made to obtain an easement through negotiations with Leeroy.

36. [306]

    The evidence established that in December 2022, after proceedings had been commenced, Ms Conway’s solicitor (her husband, Mr Amirbeaggi) made an open offer to Leeroy’s solicitors that a valuation be obtained (at Ms Conway’s expense) valuing the diminution in value of the easement and Leeroy agree to grant an easement, and each party otherwise bear their own costs of the proceedings. No response was received to the offer. The offer was reinstated for 14 days by email dated 29 August 2023, together with an indication that Ms Conway’s lawyers were willing to talk. On 12 September 2023, Leeroy’s lawyers asked for the offer to be kept open for a further seven days, which was agreed to. The offer was again left open for seven days in an email dated 16 October 2023. No response was received.

37. [307]

    A form of instrument consistent with the metes and bounds of the easement proposed by Mr Andren was provided to Leeroy for the first time at the start of the hearing. Leeroy thereafter continued to oppose the grant of the easement.

38. [308]

    In the circumstances, and particularly the lack of any response on behalf of Leeroy, I am satisfied that reasonable attempts have been made.

Compensation for any easement of necessity

1. [309]

   Given that I have already reached the position that I am not satisfied that an easement should be imposed, it is not necessary for me to consider the issue of compensation. Lest I be wrong, I now consider the question of compensation.

2. [310]

   Section 88K(2)(b) provides that, in substance, an order imposing an easement can only be made if the Court is satisfied that the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. Further, s 88K(4) provides for the Court to order compensation to be paid.

3. [311]

   There was no suggestion that a figure could not be determined. The debate was how much!

4. [312]

   In Moorebank at [234], the Court of Appeal referred, with approval, to what was said by Young J (as his Honour then was) in Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 at [26] in relation to the compensation ordinarily payable under a number of heads:

5. [313]

   It was not in dispute that Ms Conway bore the onus to establish what relevant losses and disadvantages will be suffered by persons having an interest in the servient tenement, as part of satisfying the Court that the persons affected by the easement can be adequately compensated. Nonetheless, courts have taken a relatively liberal approach to assessing compensation when faced with a paucity of evidence: see Moorebank at [247] per Bathurst CJ, Beazley and Meagher JJA.

6. [314]

   As set out above, each of the parties produced expert evidence from a valuer in support of their respective contentions concerning compensation. Ms Conway tendered an expert report of Mr Ellis, and Leeroy an expert report of Mr Walker.

7. [315]

   Mr Ellis and Mr Walker conferred prior to giving evidence in the proceedings and then gave evidence in concurrent session. To my observation, the process worked very efficiently and the parties and the experts are to be commended for this course.

8. [316]

   As a result of their conferral, Mr Ellis and Mr Walker agreed on the following matters:

9. [317]

   There were two matters that Mr Ellis and Mr Walker were not able to agree on:

10. [318]

    Mr Ellis, was of the opinion that for each of the easement components, a discount rate of between 10 and 20 percent would apply, whereas Mr Walker was of the opinion that an 80 percent rate would apply to easements A to C.

11. [319]

    The essential dispute between Mr Ellis and Mr Walker in relation to any impact of easement D is whether that easement would have any impact on what in fact can be built on the subject property. Mr Ellis’ assumption, having looked at Mr Andren’s proposed easement, was that the roofline of the proposed development would be accommodated within the terms of easement D such that the easement would have no impact on what could be built. Mr Walker, on the other hand, was not in a position to know one way or the other, whether proposed easement D would have any impact on what could be built.

12. [320]

    In my view, the likelihood that easement D will impact in any significant way on what can be built is low, such that I do not consider it appropriate to apply any compensation to it.

13. [321]

    The second area of disagreement was more fundamental. Both valuers agreed that the best evidence of the likely diminution would be to look at comparable sales where such easements do apply to the land being sold. There are no such comparable sales in the present case.

14. [322]

    Each valuer was, in effect, drawing on their general experience in assessing the percentage figures which they contended for.

15. [323]

    Mr Ellis drew some support for his figures from the table published by the New South Wales Valuer General to determine the percentage reduction in land value to reflect the compulsory acquisition of an easement over that land. Mr Walker accepted in cross examination that if these figures were being used by the New South Wales Valuer General then they would be appropriate for use in the present case. I did not understand Mr Walker, however, to therefore just agree with the percentage figures that are put forward by Mr Ellis. The position is, in my view, somewhat more nuanced.

16. [324]

    Mr Walker’s position was essentially that because each of the easements had a substantial impact on what could be built, a figure of 80 percent was appropriate. In circumstances where the land is prestige land that would be attracting a prestige buyer. As Mr Walker put it in the concurrent session:

17. [325]

    In considering this debate between Mr Ellis and Mr Walker, I bear in mind what was said by the Court of Appeal in Moorebank at [248]:

18. [326]

    Doing the best I can, I would assess the discount nowhere near as high as the 80 percent figure that has been suggested by Mr Walker but something higher than that put forward by Mr Ellis. In my view, an appropriate discount to apply is 30 percent.

19. [327]

    This 30 percent discount would be applied to areas A, B and C, a total area of 187.956 square metres at the agreed rate of $4,000 per square metre. This totals $225,547.20.

20. [328]

    In relation to the component sometimes referred to as “disturbance” – being the associated costs that would be caused to the owner of the affected land – the principal area of dispute concerned the additional cost imposed on Leeroy of either submitting an amended development application or an entirely new development application. The battle lines on this dispute were between Mr Andren’s estimate of somewhere between $10,000 to $40,000 depending on whether an amended or new development application is required, and Mr Dunlop’s estimate of up to $300,000.

21. [329]

    Not unsurprisingly, there was little science to the position of either party on this issue. The “evidence” in support of the two positions was led orally at the hearing. The figure is necessarily based on an estimate of the cost of future work which is itself, uncertain. Given the broad disparity between each party’s position but accepting that it would be likely that Leeroy would continue to use the same architectural firm, which has some familiarity with the matter, I would allow $110,000 as an estimate.

22. [330]

    To these figures I would add the agreed figure of $10,000 for the “blot” on title.

23. [331]

    Having regard to each of these components, I would assess compensation at $225,547.20 plus $110,000 plus $10,000 which equals $345,547.20.

Clause 1.9A of the Tweed Local Environmental Plan 2014

1. [332]

   In light of my conclusions above, that no implied easement arose and no easement under s 88K should be imposed, it is not strictly necessary for me to consider the application of cl 1.9A of the TLEP. The arguments were only advanced briefly in oral submissions and then in written submissions after judgment was reserved.

2. [333]

   In deference to the arguments made, I make the following observations.

3. [334]

   Clause 1.9A of the TLEP relevantly provides:

4. [335]

   Leeroy relied on this provision in several respects.

5. [336]

   First, in answer to what was pleaded by Ms Conway, as ground 5 of the ground of judicial review – failure to take into account the implied easement. Nothing was said by senior counsel for Ms Conway in support of ground 5 and thus, as senior counsel made clear in closing submissions, it is taken to be abandoned.

6. [337]

   Second, it was contended that clause 1.9A stood in the way of the implied easement claim. It was contended that clause 1.9A would apply to defeat the claimed implied easement and equity follows the law.

7. [338]

   Third, in relation to the claimed s 88K easement, it was contended that any such easement would be inherently defeasible given the operation of cl 1.9A.

8. [339]

   Ms Conway disputed that cl 1.9A had any application at all.

9. [340]

   I summarise Ms Conway’s contentions below.

10. [341]

    Before doing so I consider the legislative background and authorities in relation to cl 1.9A.

11. [342]

    It was not in dispute that cl 1.9A took as its legislative source s 3.16 of the EPA Act. Section 3.16 provides:

12. [343]

    It was also not in dispute between the parties that there were two relevant authorities that considered the scope of clauses such as cl 1.9A of the TLEP. First, the decision of Preston CJ of the LEC in Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 (Wu) and the more recent decision of the Court of Appeal in JEA Holdings (Aust) Pty Ltd v Registrar General of New South Wales (2024) 261 LGERA 372; [2024] NSWCA 255 (JEA), which approved the reasoning of Preston CJ of the LEC in Wu.

13. [344]

    The terms of the Local Environmental Plan in issue in Wu (the Woollahra Local Environment Plan) is relevantly identical to cl 1.9A of the TLEP.

14. [345]

    At [60] in Wu, Preston CJ of the LEC set out a three step inquiry as to the applicability of, relevantly, cl 1.9A:

15. [346]

    That three step test was referred to with apparent approval by Mitchelmore JA (with whom Payne and Stern JJA relevantly agreed) in JEA at [59].

16. [347]

    At [80] in Wu, Preston CJ of the LEC stated:

17. [348]

    Against this background, Ms Conway’s contention was that in this case, there is no instrument or document in writing that creates either the asserted implied easement or the s 88K easement if ordered.

18. [349]

    Further, in relation to the implied easement, Ms Conway contended that any declaration by the Court as to its existence and the restraint order sought as to its enforcement are not instruments within the meaning of cl 1.9A of the TLEP.

19. [350]

    Instrument is defined in the RPA at s 3 as:

20. [351]

    If a form of easement is to be registered, as was sought by the amendments introduced in the further amended statement of claim, it was accepted that that document would be an “instrument” but it was contended that such document does not of itself restrict development. Rather, it was contended by Ms Conway that the instrument will simply evidence and give notice of the restriction that previously arose by reason of the implied easement found to exist in accordance with the above principles.

21. [352]

    In relation to the s 88K easement, it was further contended by Ms Conway that such an easement arises pursuant to an Act, being the Conveyancing Act, but Acts are not included as a “regulatory instrument” in cl 1.9A of the TLEP, despite the power of their inclusion under s 3.16 of the EPA Act. Whilst an order under s 88K will restrict development, that order is not a relevant instrument.

22. [353]

    Similarly to the argument in relation to the implied easement, Ms Conway contended that if an instrument under s 88B is to be registered giving effect to an order with respect to s 88K (as is required by s 88(7)), such an instrument does not restrict development. The instrument simply evidences and gives notice of the effect of the original order.

23. [354]

    As a fallback argument, Ms Conway contended that the consequences of cl 1.9A should await determination of what ultimate development occurs. The argument appeared to rest on the fact that Leeroy may sell Lot 51 either on its own or with Lot 50 and it is not for the Court to speculate as to what an ultimate owner of Lot 51 will do.

24. [355]

    Leeroy’s response to these contentions can be shortly summarised as follows:

25. [356]

    As set out above, having determined that no implied easement arose and no s 88K easement should be imposed, it is not necessary for me to finally decide this point. The present context is also somewhat unusual in that Leeroy is seeking to use cl 1.9A as a reason why the Court should decline to find in favour of Ms Conway’s claim of an implied easement or a s 88K easement.

26. [357]

    The previous cases that have considered cl 1.9A, principally Wu and JEA have of course been in the context of an actual instrument and an actual consent with the Court determining whether the registered instrument applies.

27. [358]

    In my view, the existence of cl 1.9A does not provide a valid reason for the Court not to recognise an implied easement or impose an easement under s 88K, if the requisite elements are otherwise satisfied for the creation of each. The relevant easement can be registered on the title of the dominant and servient tenements. Whether the relevant easements apply in particular circumstances by reason of the effect of cl 1.9A is a matter to be determined if and when it arises. Whilst not wanting to encourage further litigation, it seems to me that this is the only logical outcome.

28. [359]

    Accepting Leeroy’s contentions would have the effect that, notwithstanding that the Court is satisfied that an implied easement was created or a s 88K easement should be imposed, such easements would never be recorded on title. This is in circumstances where cl 1.9A of the TLEP could be amended, including to remove it, or the EPA Act could be amended including to no longer permit clauses of the kind of cl 1.9A. Further, there is no guarantee that Leeroy proposes to build in accordance with the Consent. There may also be further development proposals on the Leeroy Land pursuant to consent granted. Whether any easement would continue to apply by reason of cl 1.9A (assuming it remains) should then be determined at the appropriate time.

29. [360]

    In short, I am not satisfied that cl 1.9A provides a reason to reject the implied easement or s 88K claims. Had I been satisfied that an implied easement had been created or a s 88K easement should be imposed, I would have made orders for the necessary instrument to be registered on title.

30. [361]

    Finally, and again appreciating that it is not necessary to decide this point, it seems to me that there is much force in Leeroy’s contentions that, in the particular circumstances, the proposed implied easement or s 88K easement would not apply by reason of the effect of cl 1.9A in relation to the Consent.

Conclusion and orders

1. [362]

   For the reasons set out above, all of Ms Conway’s claims fail.

2. [363]

   There is no reason why costs should not follow the event. If either party wishes to contend for a different costs order they should notify my Associate by email within 14 days of these orders whereupon I will vacate the costs order and set a timetable for the question of costs to be determined on the papers.

3. [364]

   The Court orders:

   1. (1)

      The further amended statement of claim be dismissed.

   2. (2)

      The plaintiff pay the first defendant’s costs of the proceedings.

   3. (3)

      If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.