Land and Environment Court New South Wales

• Medium Neutral Citation: Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163
• Hearing dates: 1 October 2014
• Decision date: 09 October 2014
• Jurisdiction: Class 3
• Before: Biscoe J

Decision

(1) Pursuant to s 10(3) of the Access to Neighbouring Land Act 2000 the requirement to give notice under s 10(1) of that Act is waived.; (2) Pursuant to s 11(1) of the Access to Neighbouring Land Act 2000 the applicant is authorised, for a period of two years from the date of these orders, to access the portion of the land vested in the respondent known as Regimental Square situated at 339A George St, Sydney being Lot 1 in DP 254818 as marked in red on the plan at Annexure "A", for the purpose of carrying out the "Works" defined in, and subject to the terms set out in, the conditions of access agreed between the parties on 23 September 2014 as amended at the hearing, a copy of which is at Annexure "B".; (3) The applicant is to pay the respondent's costs of and incidental to these proceedings.; (4) Note that the respondent reserves the right to apply, in accordance with s 26 of the Access to Neighbouring Land Act 2000, for compensation arising from the access granted under Order 2.; (5) The exhibits may be returned.

• Catchwords: NEIGHBOUR APPLICATION - application for neighbouring land access order under s 11 Neighbouring Lands Act 2000 - whether s 5(1)(b) and (2) bar the application or the court's jurisdiction to make the order because the proposed works or access therefor are prohibited by s 44, or alternatively s 46(1)(b) and 47D(1), of Local Government Act 1993.
• Legislation Cited: Access to Neighbouring Land Act 2000 ss 5, 7, 10, 11, 15, 26, 27, 29; Conveyancing Act 1919 s 88K; Land and Environment Court Act 1979 ss 20, 71; Local Government Act 1993 ss 35-36, 37-40A, 44, 46(1)(b), 47D(1), 674, 676, Dictionary; Roads Act 1993 s 125, Dictionary; Sydney Local Environmental Plan 2012
• Cases Cited: F & D Bonaccorso Pty Ltd v Canada Bay Council [2007] NSWLEC 159; Friends of Pryor Park Inc v Ryde City Council and Sydney Montessori Society (1996) 91 LGERA 302; Marshall v Wollongong City Council [2000] NSWSC 137, (2000) 107 LGERA 73; Noake v North Sydney Council (unreported, Land and Environment Court of NSW, Murrell AJ, 23 December 1996); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355; Seaton v Mosman Municipal Council (1996) 93 LGERA 1
• Category: Principal judgment
• Parties: Watpac Construction (NSW) Pty Ltd (Applicant); Council of the City of Sydney (Respondent)
• Representation: COUNSEL: L Livingstone (Applicant); M Astill (Respondent); SOLICITORS: King & Wood Mallesons (Applicant); Mary Snell (Respondent)
• File Number(s): 30668/14

 

JUDGMENT

1. This is a contested application by Watpac Construction (NSW) Pty Ltd for a neighbouring land access order (access order) under s 11 of the Access to Neighbouring Land Act 2000 (Access Act) over part of land known as Regimental Square located at 339A George St, Sydney, owned by the respondent, The Council of the City of Sydney. That part (Access Land) is marked in red on the plan at Annexure "A" hereto. Regimental Square has an area of 416m2. The Access Land has an area of 109m2.

2. Access is sought for a period of two years for the purpose of carrying out works in connection with the demolition of an existing building and construction of a new, 19-storey commercial building on land adjoining Regimental Square to its north (Development Site).

3. The parties have agreed upon the proposed terms of access (Agreed Terms) in the event the Court is prepared to make the access order. The Agreed Terms include a definition of the works to be carried out (Works), as follows (cl 2)

"Works" means any or all of the following activities:

(a) the placement of Class A hoarding or other hoarding as required by any relevant authority (e.g. WorkCover or Code of Practice);

(b) the erection of scaffolding;

(c) the handling or storage of demolition and construction materials;

(d) the passage of conveyance vehicles, such as trucks; and

(e) the hoisting of material and equipment over the Premises using an on-site crane complying with the relevant legislative requirements and permits.

4. The agreed "purpose or use" is identified in cl 7 of the Agreed Terms as follows:

... the Applicant is authorised to permit workers, materials, vehicles and plant and equipment on the Premises for the purposes of carrying out the Works on its adjacent development Site in accordance with:

(a) the Development Consent;

(b) the conditions of these Orders;

(c) the plans approved in relation to traffic control and waste management pursuant to the Development Consent;

(d) the Access to Neighbouring Land Act 2000 and the Environmental Planning and Assessment Act 1979;

(e) the obligations and responsibilities under the Work, Health and Safety Act 2011; and

(f) the Respondent's policies and procedures.

5. Regimental Square is classified as "community land" under the Local Government Act 1993. It is zoned "REI (Public Recreation)" under the Sydney Local Environmental Plan 2012.

6. The current use of Regimental Square is for public use as a pedestrian thoroughfare. Between 2010 and 2014 part of the Access Land adjacent to a restaurant was, with Council's approval, used for tables and chairs in connection with the restaurant.

The issue

7. The proceedings have been fixed for hearing on all issues other than compensation. The Access Act enables a neighbouring land access order to be made, thereby providing immediate access to the neighbouring land, while the question of compensation is determined at a later date: s 26.

8. The sole issue is whether, as Council contends, the application or the Court's jurisdiction to make an access order is barred by s 5(1)(b) and (2) of the Access Act because the Works, or access for the purpose of the Works, is prohibited under s 44, or ss 46(1)(b) and 47D(1) of the Local Government Act. As regards s 44, Council contends that is because the Generic Plan of Management (the Plan) adopted by Council under s 40 of the Local Government Act does not apply to Regimental Square. To reflect the precise language of s 44, the question may be reframed in this way: has there been "adoption" by Council of the Plan "for" Regimental Square?

The statutory regime

9. A person who, for the purpose of carrying out work on land owned by another person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order with the consent of the person on whose behalf the work is to be carried out: s 7(2) Access Act. The types of works for which neighbouring land access orders may be made are listed in s 12. Compensation to the owner of land to which access is granted may be ordered for loss, damage or injury, including damage to personal property, financial loss and personal injury arising from the access: s 26(1). The Local Court must transfer the whole or any part of the proceedings to the Land and Environment Court if the amount of any compensation or damages involved is likely to exceed the amount of the Local Court's jurisdiction: s 29(1). In the present case, the proceedings were transferred to the Land and Environment Court under s 29(1).

10. Section 5 of the Access Act appears in a statute which, as described by the Minister in the Second Reading Speech, is intended to be "wide ranging in its operation"; "may be utilised to solve commercial disputes as well as neighbourhood problems"; and "provides a practical and speedy resolution to problems which have up until now been insoluble". In the absence of intractable language, beneficial legislation of this character should not be given a construction which would defeat its practical objectives.

11. Section 5(1)(b) and (2) of the Access Act provides:

5 Act does not authorise work or activity regulated by or under other Act and does not authorise access prohibited by or under other Act

(1) Nothing in this Act:

...

(b) enables a person to carry out any work or engage in any activity that is prohibited by or under any other Act.

(2) A person may not apply for an access order under this Act if access to the land concerned, for the purposes for which access is required, is prohibited by or under another Act.

12. Sections 35 and 36 of the Local Government Act provide for a plan of management for land classified as community land:

35 What governs the use and management of community land?

Community land is required to be used and managed in accordance with the following:

· the plan of management applying to the land

...

36 Preparation of draft plans of management for community land

(1) A council must prepare a draft plan of management for community land.

...

(3) A plan of management for community land must identify the following:

(a) the category of the land,

(b) the objectives and performance targets of the plan with respect to the land,

(c) the means by which the council proposes to achieve the plan's objectives and performance targets,

(d) the manner in which the council proposes to assess its performance with respect to the plan's objectives and performance targets,

and may require the prior approval of the council to the carrying out of any specified activity on the land.

...

(4) For the purposes of this section, land is to be categorised as one or more of the following:

(a) a natural area,

(b) a sportsground,

(c) a park,

(d) an area of cultural significance,

(e) general community use.

...

13. Sections 37 and 39 of the Local Government Act make clear that a plan of management may apply to community land not owned by a council:

37 Requirements of plans of management for community land that is not owned by the council

A plan of management for community land that is not owned by the council:

(a) must identify the owner of the land, and

(b) must state whether the land is subject to any trust, estate, interest, dedication, condition, restriction or covenant, and

(c) must state whether the use or management of the land is subject to any condition or restriction imposed by the owner, and

(d) must not contain any provisions inconsistent with anything required to be stated by paragraph (a), (b) or (c).

39 Notice to owner of draft plan of management

(1) Before giving public notice of a draft plan of management in accordance with section 38, the council must forward a copy of the draft plan to the person who owns or controls the land if the land is not owned by the council.

(2) The council must include in the draft plan any provisions that may properly be required by the person who owns or controls the land.

14. Section 44 of the Local Government Act provides:

44 Use of community land pending adoption of plan of management

Pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.

Facts

15. On 25 June 2012, following completion of the drafting, public exhibition and consultation process provided for in ss 36, 38 and 40A of the Local Government Act, Council adopted the "Generic Plan of Management: Parks, Sportsgrounds, General Community Use Land" (Plan) pursuant to s 40. Appendices A and D to the Plan include Regimental Square.

16. On 6 December 2012, Council granted deferred commencement development consent for the demolition of the existing buildings on the Development Site, excavation of basement levels and the construction of a 19-storey commercial building. The deferred commencement conditions were satisfied and approval was issued by Council on 24 April 2014.

17. The applicant and Council commenced negotiations regarding access to the Access Land by February 2014. They agreed upon the terms of access in a consent proposal signed on behalf of the Council on 25 March 2014.

18. By correspondence dated 11 June 2014 and 1 July 2014 respectively, Council advised the applicant that the Council considered that the Plan did not grant Council power to permit access to Regimental Square for construction purposes, including construction vehicle thoroughfare.

19. In July 2014, Council gave consideration to amending the Plan to confer the power that it considered was lacking. On 4 August 2014, Council informed the applicant that the process of amendment would take at least nine months. On 18 August 2014, the applicant commenced these proceedings in the Local Court seeking the present order. By consent, those proceedings were transferred to this Court under s 29 of the Access Act on 25 August 2014 because the amount of compensation is likely to exceed the jurisdiction of the Local Court. On 4 September 2014, the Court ordered that the proceedings be expedited.

20. By its notice of facts and contentions filed on 16 September 2014, Council contended, for the first time, that the Plan does not apply to Regimental Square, with the consequence that under s 44 of the Local Government Act the nature and use of Regimental Square must not change.

21. Regimental Square contains a war memorial. The Royal Australian Regiment Association Inc has advised that, over the next two years, the only commemorative services that it will conduct at Regimental Square will be on Anzac Day.

Section 44: the Plan was adopted for Regimental Square

22. The question under s 44 of the Local Government Act is whether the Plan is a plan of management that Council has adopted for Regimental Square. Council submits that the Plan does not apply to Regimental Square because the Plan erroneously describes Regimental Square as Crown land and fails to categorise it as required by s 36(4); and that, consequently, the Plan neither intends nor purports to apply to nor contains any operative provisions for the management of Regimental Square. The root of the submission is Council's own errors in the Plan in misdescribing Regimental Square as Crown land and, consequently, in failing to categorise Regimental Square in accordance with s 36(4). Except for those errors, there would be no basis for Council to invoke the prohibition in s 44.

23. Council further submits that the Plan does not apply to any of the numerous Crown lands listed in therein. On Council's construction, there is no purpose in listing Crown lands in the Plan because the Plan does not apply to them.

24. Section 1 of the Plan is titled "Introduction". Clause 1.5 describes the Plan's contents. It states that Appendix A contains a schedule of community land covered by the Plan; and that Appendix B contains more detailed property sheets for each properly listed in Appendix A and for the Crown land managed by Council not covered by a specific plan of management.

25. Section 2 of the Plan is titled "Land Description and Planning". It provides in cll 2.1, 2.2 and 2.3:

2.1 Land covered by this Plan of Management

This generic PoM includes many of the City's open spaces and parks which are categorised as Park, Sportsground, or General Community Use. Including these parks in a generic PoM ensures consistent management which supports a cohesive approach to meeting the diverse needs of the community.

The community land covered by this Generic Plan of Management is identified in the schedule in Appendix A. Property information sheets for each area of community land are in Appendix B.

2.2 Why Are Some Parks Missing?

Land that is not covered by this Generic PoM includes:

- community land covered by specific PoMs (refer to

the City's website);

- public open spaces and recreation facility assets

within the City's local government area (LGA) which

are owned or managed by other entities (refer to

Table 2.1);

- privately owned land which is made available

for public use;

- road that has been physically closed.

2.3 Crown Land within the City

A number of parks within the City are Crown land owned by the State of New South Wales, and are managed by the City on behalf of the state. The City manages Crown land assets in a similar

manner to managing its community land. For alignment with operational management plans, Appendix A includes a selection of land owned by the Crown. This inclusion reflects the consistent approach taken by the City to managing public land.

This Generic PoM has not been prepared for formal endorsement in accordance with the Crown Lands Act 1989. It does not affect any plans of management prepared and adopted by the Minister under the Crown Lands Act 1989.

26. Clause 2.1 refers to Table 2.1, which lists the land "owned or managed by other entities". Table 2.1 does not refer to Regimental Square.

27. Section 3 of the Plan is titled "Legislative Framework". It "describes the legislative and policy framework applying to the land covered under this PoM". It includes cl 3.2 titled "Crown Lands Act 1989", which states (inter alia) that Council has been appointed as trust manager for many of the Crown reserves in its local government area, and has the care, control and management of these areas.

28. Section 4 of the Plan sets out the basis of management for community land. It states that the s 36(4) categories relevant to community-classified land in Appendix A are: park, sportsgrounds and general community use. It states that Appendix B lists the properties under each of the categories; and that "Appendix D provides detailed information for each land parcel, the Land Information Details for each community land covered by this [Plan], including the relevant categorisation details".

29. Section 5 is titled "Land Uses" and sets out permissible uses of developments of community land categorised in those three ways. Clause 5.3 states that uses on Crown land must be compatible with or ancillary to the public purpose for which the Crown land is reserved. Section 6 is titled "Leases, Licences and other Estates" and sets out the type of leases, licences and other estates authorised for community land categorised in the said three ways. Section 7 is titled "Strategy and Action Plan" and includes coverage of the requirements of s 36(3)(b), (c) and (d) of the Local Government Act.

30. Appendix A to the Plan is titled "Community Classified Land (including Crown land)". One of the hundreds of properties listed in Appendix A is Regimental Square. Under the heading "Crown Land", at the top of right hand side of each page of Appendix A, is a checkbox located next to each listed property. A good number of those checkboxes are ticked. The checkbox located next to Regimental Square is ticked, indicating that it is Crown land. This was a Council error. As Council conceded at the hearing, that error is insufficient of itself to establish that the Plan does not apply to Regimental Square. Regimental Square does not appear in Appendix B, which is inconsistent with the statement in Section 1 noted above at [24]. That was a further Council error.

31. Appendix D to the Plan contains, on separate pages, the details of individual properties, including the property's categorisation. There are five categorisation boxes on each page, reflecting the five categories in s 36(4) of the Local Government Act. On the page devoted to Regimental Square in Appendix D, it is again described as Crown land, Council's interest in it is described as "Reserve Trust Manager", and none of the five s 36(4) categorisation boxes is marked. These were further Council errors. They perpetuated Council's error in Appendix A in describing Regimental Square as Crown land. Given that ss 37 and 39 contemplate a plan of management for community land not owned by a council, a council's error of misstating in a plan of management the owner of listed community land, as occurred in Appendix D in relation to Regimental Square where it was indicated that the owner was the Crown, is not of itself significant for present purposes.

32. Council's error in failing to categorise Regimental Square as required by s 36(4) is critical to Council's case that the Plan does not apply to Regimental Square.

33. Categorisation of land in accordance with s 36(4) is a mandatory requirement of the legislative scheme governing a local council's control of community land, its purpose being to facilitate a council's proper planning and management of community land: Seaton v Mosman Municipal Council (1996) 93 LGERA 1 at 13-14 (CA). However, s 44 of the Local Government Act does not expressly stipulate that the plan of management to which it refers must categorise the land in question under s 36(4).

34. There is no contention that the Plan or any part of it, or Council's adoption of the Plan, is invalid because of the failure to categorise. The case therefore contrasts with Seaton where the Court of Appeal declared that a council resolution adopting a plan of management which failed to comply with s 36(3)(c) of the Local Government Act in substantial respects, was invalid: at 13, 22. That Act prescribes exhaustively the civil remedies available in respect of a breach and proceedings for a breach can only be brought in this Court: ss 674, 676 Local Government Act; ss 20, 71 Land and Environment Court Act 1979; F & D Bonaccorso Pty Ltd v Canada Bay Council [2007] NSWLEC 159 at [78]-[79]. Here there is a valid plan of management, which lists and details Regimental Square.

35. Regimental Square is community land. Clause 2.1 of the Plan states that community land covered by the Plan is identified in Schedule A. Schedule A identifies Regimental Square, albeit Council mistakenly marked the "Crown Land" checkbox next to it. Clause 2.2 lists by description land not covered by the Plan. According to cl 2.2, the only community land not covered by the Plan is community land covered by specific plans of management. Regimental Square does not come within any of the land not covered by the plan described in cl 2.2. Therefore, cl 2.2 suggests that Regimental Square, as community land, is covered by the Plan. Clause 2.3 explains that Council "manages Crown land assets in a similar manner to managing its community land. For alignment with operational Plans, Appendix A includes a selection of land owned by the Crown. This inclusion reflects a consistent approach taken by the [council] to managing public land". This suggests that Crown land assets answering to a s 36(4) category to which the Plan addresses itself, are to be managed in a similar manner to community land in that category and that, in this sense, the Plan covers Crown land. This is reinforced by cl 3.2 and the location of cl 3.2 within Section 3, which states that it describes the legislative and policy framework "applying to the land covered under" the Plan: see above at [27]. For example, if a Crown land asset listed in Appendix A answers to the description of a "park", or "general community use", then the provisions of the Plan relating to community land categorised as a "park", or "general community use", similarly apply to that Crown land. This construction gives purpose to the listing in the Plan of numerous Crown lands managed by Council. No other purpose is suggested by Council.

36. In my opinion, the Plan manifests an intention to cover all community land (not covered by another specific plan of management), to categorise all community land appropriately in accordance with s 36(4), and to manage all Crown land similarly according to whichever of those categories it falls into. Regimental Square is listed and described in Appendices A and D to the Plan, is in fact community land, and the only s 36(4) category into which it is capable of falling is "general community use".

37. Council's misdescription in the Plan of Regimental Square as Crown land and consequential failure to categorise it as community land under s 36(4), were clerical errors or slips by the draftsperson. For Council in fact knew that it was community land owned by Council and that the only s 36(4) category into which it was capable of falling was "general community use". Except for these errors, that is how it would have been explicitly categorised in the Plan. Formal rectification of the Plan to correct the errors is achievable through Council voluntarily following the formal amendment process. Or, in my view, through the principles of judicial review by way of an order commanding Council to so rectify it: cf Friends of Pryor Park Inc v Ryde City Council and Sydney Montessori Society (1996) 91 LGERA 302 at 316 (CA). The Local Government Act does not spell out the consequence of not categorising or inappropriately categorising community land (Seaton at 14, Friends of Pryor Park at 315); the consequence is not necessarily invalidity: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at 389.

38. In my judgment, if Regimental Square were in fact Crown land, then the Plan would apply to it in the same was as if it were community land categorised as general community use. Since it is in fact community land, and the Plan's description of it as "Crown land" is an error, the Plan should be construed as applying to it in the same way. In my opinion, the words in s 44 "adoption of a plan of management for the land" are of such generality as to apply to the peculiar circumstances of this case. Consequently, the s 44 prohibition against a change in nature or use is inapplicable.

Applicant's other s 44 arguments

39. As I have concluded that Council adopted the Plan for Regimental Square within the meaning of s 44, it is unnecessary to deal with the applicant's alternative submissions relating to s 44 predicated on no adoption of the Plan for Regimental Square. Nevertheless, I will deal with them shortly for the purpose of rejecting them.

40. First, the applicant submits that the prohibition in s 44 only applies to a council and is not directed to anyone else, including the applicant. In my opinion, the general terms of s 44 indicate that its prohibition is not merely directed to a council but is directed to everyone. That construction is fortified by references in other sections such as ss 45, 46(3), and 47 that expressly prohibit a "council" from doing various things. It is true that s 47D(1) is expressly directed to "any person" (as distinct from just a council) in its prohibition, but that consideration is insufficient to lead to the conclusion that s 44 is not directed to any person.

41. Secondly, the applicant submits that the proposal does not represent a change in the nature and use of Regimental Square such as to come within s 44. In Noake v North Sydney Council (unreported, Land and Environment Court of NSW, Murrell AJ, 23 December 1996), Murrell AJ held that increased traffic use of a council reserve which a development proposal contemplated would not constitute a "change" in use within the meaning of s 44 of the Local Government Act, and therefore did not result in a breach of that section. The proposal in that case was to convert a duplex into five residential units. This entailed an intensification of use by residential traffic by a mere 12-15 vehicles per day, but also 190-200 truck movements for about 17 days for the purpose of removing almost 2,000 tonnes of excavated material.

42. In Seaton the proposed substantial increase in seating capacity of an existing restaurant combined with the provision of function room facilities was held to offend the requirement of s 44 not to change the use of the land: at 22. The restaurant under consideration occupied a relatively small part of the relevant land that comprised some 17.05 hectares. The change in use in Seaton was permanent. In the present case it is not permanent, although it is for two years.

43. The applicant submits that Regimental Square is a "road" because the Dictionary to the Local Government Act defines "road" as including a "footpath" or "thoroughfare", and the Dictionary to the Roads Act 1993 defines "footway" as meaning part of a road set aside or formed as a path or way for pedestrian traffic; therefore the proposed use for vehicles is not a change in its nature or use within s 44. The applicant points out that Regimental Square is zoned "RE1 (Public Recreation)" under the Sydney Local Environmental Plan 2012; that s 125 of the Roads Act empowers a council to grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road vested in the council to use part of the footway for the restaurant; and that Council gave such approvals in relation to a restaurant adjoining Regimental Square between 2010 and 2014. I do not accept the submission.

44. In my view, whether there is a change of use within the meaning of s 44 is a question of degree, measured quantitatively and qualitatively: Seaton at 22. Regimental Square is used by the public as a pedestrian thoroughfare. The proposal is to bar pedestrians from continuing to access for two years a very substantial part of Regimental Square running along its entire northern side and to convert that part into a vehicular accessway for trucks in connection with the construction of a 19-storey commercial building. In my opinion, the nature and intensity of that new use constitute a change in the use of Regimental Square within the meaning of s 44.

Access is not prohibited by ss 46(1)(b) or 47D(1)

45. Council alternatively submits that even if the Plan has been adopted for Regimental Square (as I have held), access for the purpose of the Works is prohibited by ss 46(1)(b) and 47D(1) of the Local Government Act; and therefore s 5(1)(b) of the Access Act is enlivened such that the applicant cannot apply for an access order and the Court has no jurisdiction to make an access order. I do not accept the submission. Section 46(1)(b) and 47D(1) of the Local Government Act provide:

46 Leases, licences and other estates in respect of community land-generally

(1) A lease, licence or other estate in respect of community land:

...

(b) may be granted, in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate:

(i) for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or

(ii) for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or

(iii) for a short-term, casual purpose prescribed by the regulations, or

(iv) for a residential purpose in relation to housing owned by the council, or

...

47D Occupation of community land otherwise than by lease or licence

(1) The exclusive occupation or exclusive use by any person of community land otherwise than in accordance with:

(a) a lease, licence or estate to which section 47 or 47A applies, or

(b) a sublease or other title directly or indirectly derived from the holder of such a lease, licence or estate, is prohibited.

...

46. In my opinion, s 46 is only concerned with the lease, licence or other estate in respect of community land, and does not limit the statutory power of the court: Marshall v Wollongong City Council [2000] NSWSC 137, (2000) 107 LGERA 73 at [24]. In that case Bryson J said in the context of the analogous power of the court to grant an easement under s 88K of the Conveyancing Act 1919:

Sections 45 and 46 operate by prescribing and limiting the powers of Councils in dealing with Community land; they do not limit or deal with other means by which easements may come into existence, and they do not limit or affect the Court's powers under s88K by implication. The powers of the Court are not usually limited or altered by legislative implication, and in any event, there is no basis in the scheme of these provisions for that implication.

47. In my opinion, s 47D(1) is inapplicable because it is only concerned with "exclusive" occupational use. The parties have agreed terms of access if an access order is made. Under cl 22, the applicant's occupation or use will not be exclusive.

Waiver: s 10(3) Access Act

48. There is an uncontested application by the applicant for a waiver order under s 10(3) of the Access Act. Section 10 provides:

10 Notice of application for access order to be given to owners of affected land or services

(1) An applicant for an access order must give at least 21 days notice of the lodging of the application and the terms of any order sought:

(a) to the owner of the land to which access is sought under the application, and

(b) to any other person entitled to the use of any utility service on which work is proposed to be carried out, and

(c) to any other person the applicant has reason to believe will be affected by the order.

....

(3) The Local Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

For "Local Court" read "Land and Environment Court" in this case because of the transfer of the proceedings by the Local Court to the Land and Environment Court under s 29.

49. The Council no longer presses contentions that the applicant has not demonstrated compliance with s 10(1)(b) and (c).

50. Nevertheless, the applicant seeks a waiver order, acknowledging that the evidence shows that circumstances of urgency prevented notification in accordance with the terms of s 10, 21 days before the lodging of the application. The demolition of the existing building is projected to reach ground level by October 2014. Once that occurs, trucks will no longer be able to access the development site from George Street. A delay in obtaining access to Regimental Square from the commencement of October 2014 would give rise to holding costs in the order of $180,000 per week, together with associated inconvenience to neighbouring properties, nearby businesses and the general public. In the event of substantial delay, it would be necessary for the applicant to redesign the construction works to incorporate a temporary bridge structure and lift mechanisms, at a cost of approximately $1 million.

51. In the circumstances, this is an appropriate case for the Court to exercise its power under s 10(3) of the Access Act to waive the requirement to give notice under s 10(1).

Other prerequisites for making an access order and discretion

52. The other prerequisites specified in the Access Act for the making of an access order have been satisfied and there is no discretionary reason to withhold relief. The evidence establishes each of the prerequisites:

1. The owner of the Development Site, on whose behalf the work is to be carried out, has consented to the application: s 7(2) of the Access Act.

2. Access to Regimental Square is required for the purpose of carrying out work on the Development Site, which cannot be carried out or would be substantially more difficult or expensive to carry out without access to the Access Land: ss 11(1) and 15(a) of the Access Act.

3. The applicant has made a reasonable effort to reach agreement with the Council, whose consent is required as land owner of Regimental Square, and indeed reached such agreement subject to judicial determination of the effect of s 5: s 11(2)(a) of the Access Act.

4. Access would not cause unreasonable hardship to any person affected by the order: s 15(b) of the Access Act.

Conclusion as to access order

53. For these reasons, I propose to make an access order.

Costs

54. Section 27 of the Access Act provides:

27 Costs

(1) The costs of an application for an access order are payable by the applicant for the order, subject to any order of the Local Court to the contrary.

(2) In determining whether the whole or part of the costs of an application for an access order are payable by a party, the Local Court may consider the following matters:

(a) the conduct of the parties, including any attempts by the parties to reach agreement before the proceedings and whether the refusal to consent to access was unreasonable in the circumstances,

(b) (Repealed)

(c) any other matter it thinks fit.

Again, for "Local Court" in s 27 read "Land and Environment Court" in this case because of the transfer of the proceedings by the former to the latter under s 29.

55. The applicant applies for a contrary order under s 27(1) that Council pay the applicant's costs, for the following reasons:

1. Council actively opposed the making of an access order.

2. The conduct of the Council, viewed as a whole, has been unreasonable because Council agreed to grant access and the terms of access in March 2014 only to depart from the agreement on a ground later abandoned such that the present application became urgent.

3. After commencement of the proceedings, Council changed its position as to whether s 44 applies.

4. Council could have agreed to an access order irrespective of the outcome of the proceedings or it could have consented or not oppose the making of an access order.

56. I reject the applicant's submission. The matters raised and pressed by Council in response to the application were appropriate in its capacity as a public authority managing public lands and in the absence of any direct authority in point. Council succeeded on some arguments. It was of assistance to the Court to receive argument from a contradictor. If Council abandoned some contentions prior to the hearing as a result of mature reflection, that was not necessarily inappropriate. I do not think it appropriate, nor necessarily dispositive of the costs issue, to determine the question of whether it was within Council's power to voluntarily agree to access. Council has a prima facie entitlement to costs under s 27 and in my view there is insufficient reason to make a contrary order.

Orders

57. The orders of the Court are as follows;

1. Pursuant to s 10(3) of the Access to Neighbouring Land Act 2000 the requirement to give notice under s 10(1) of that Act is waived.

2. Pursuant to s 11(1) of the Access to Neighbouring Land Act 2000 the applicant is authorised, for a period of two years from the date of these orders, to access the portion of the land vested in the respondent known as Regimental Square situated at 339A George St, Sydney being Lot 1 in DP 254818 as marked in red on the plan at Annexure "A", for the purpose of carrying out the "Works" defined in, and subject to the terms set out in, the conditions of access agreed between the parties on 23 September 2014 as amended at the hearing, a copy of which is at Annexure "B".

3. The applicant is to pay the respondent's costs of and incidental to these proceedings.

4. Note that the respondent reserves the right to apply, in accordance with s 26 of the Access to Neighbouring Land Act 2000, for compensation arising from the access granted under Order 2.

5. The exhibits may be returned.

 

Annexure A (578 KB, pdf)

Annexure B (11.7 MB, pdf)

 

 

 

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Amendments

20 September 2017 - published Annexure B

Decision last updated: 20 September 2017