A recent decision of the Land and Environment Court (Court) is a reminder to developers that they cannot assume that an order for an easement of necessity, such as a right of carriageway, will be made by a judge of the Court even where:
- a Commissioner of the Court has granted development consent to development based on the right of carriageway being available1
- a council’s development control plan (DCP) specifies a preferred access arrangement for the development based on access via adjoining land.
In Acorp Developments Pty Ltd v HWR Pty Limited,2 Justice Robson refused to grant an easement of necessity for a 6m wide right of carriageway (ROC) over adjoining land3.
His Honour held that the ROC was not reasonably necessary for the effective use or development of the site because access was available directly from the site’s street frontage4.
His Honour made this finding even though a Commissioner of the Court had granted development consent to the developer’s DA for the construction of a mixed use development, subject to a deferred commencement condition that required the developer to demonstrate that a ROC had been registered over the adjoining property before the consent became operative.
In support of its application for an easement for the ROC, the developer relied significantly:
- on the Court’s decision to grant development consent to its DA
- on the fact that the relevant DCP:
- indicated the carriageway on the adjoining property as a “potential access way” in a Key Site Map
- favoured activation of the site’s street frontage5.
The owner of the adjoining property argued that access over its property to the site was not required because adequate access could be provided from the site’s street frontage, even though it was a classified road. It submitted to the Court an indicative design showing that an access driveway could be provided in a location proposed for “car access” on the Key Site Map in the DCP and argued that the provision of a driveway off the site’s street frontage did not prevent the achievement of an active street frontage6. It also argued that the DCP also contemplated vehicle access points on the site’s main street frontage.
Justice Robson held that:
- The approved development was a reasonable, economically rational use of the site7
- It was necessary to consider whether the approved development with the ROC was “(at least) substantially preferable to [a similar development] without the easement”8
- Once it has been established that the development or use is for a reasonable and economically rational use of the land “[t]he sole value judgment as to the desirability of that specific development against others is in the comparison between the development or use with the easement, and the development or use without it”9
- While a superior planning outcome may be determinative in Class 1 development appeals, in proceedings seeking an order imposing an easement of necessity, the Court must look at the statutory test imposed by section 88K of the Conveyancing Act 191910
- A superior planning outcome, especially when it is not substantially superior, is not sufficient to warrant a finding that the approved development with the ROC is “substantially preferable”, let “alone (at least) substantially preferable” to a development without the ROC.11
In coming to its conclusion, the Court was also influenced by the potential effects of the ROC on the adjoining land owner’s property.12 The owner of the adjoining land had also recently obtained development consent for a mixed-use development on its property, including a basement car park with an access driveway approximately 6m wide.
As to the weight to be given to the preferred access arrangements specified in the DCP, Justice Robson noted that the provision was in a DCP and not in an environmental planning instrument.13 His Honour also noted that the situation was different in the case of Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd where the provisions in the DCP in that case provided that the link to a particular road was a necessary precondition of the subdivision.14
Following this decision, developers need to be careful in the design of their developments, even where a DCP provides for preferred access over an adjoining property. Compliance with a preferred access provision in a DCP provides no guarantee that the Court will impose an easement of necessity if the adjoining land owner does not agree to grant the easement.
1.A condition of consent is usually imposed requiring that evidence that an easement has been obtained be provided to the consent authority before the development consent becomes operative, or before a construction certificate can be issued for the development.
2.  NSWLEC 68. The proceedings were commenced pursuant to section 40 of the Land and Environment Court Act 1979.
3. The applicant also sought an easement of necessity in relation to a 1m drainage easement in the same area as the ROC.
4. At  and .
5. His Honour pointed out that a provision in the DCP stated: “Vehicle access points may be permitted where Active Street Frontage is required if there are no practical alternatives”: at .
6. At  and .
7. At .
8. At  – .
9. At .
10. At .
11. At .
12. At  – .
13. At . The changes to the importance and significance of DCPs made in March 2013 must be remembered. A DCP is now to provide guidance and is to be applied flexibly, not rigidly: sections 3.42 and 4.15 (3A) of the Environmental Planning and Assessment Act 1979; Trinvass Pty Ltd v Council of the City of Sydney  NSWLEC 151.
14.  NSWCA 445 at ; Acorp per Robson J at .
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