Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93

Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93

The easements are reasonably necessary for the effective use and development of the Moorebank land, as access is needed for any reasonable development, including but not limited to the MRF proposal. There is no viable alternative access; both Part 3A and Part 4 approval pathways may be available, but imposing only a Part 4 owner's consent term would be futile as Part 4 approval is effectively ousted by the amended Part 3A application. Council's objections to an MRF do not render the proposal inappropriate or ineffective use; the area is zoned accordingly and there is a substantial prospect of approval. Appropriate compensation is agreed and public interest is satisfied. Thus, easements...

Jurisdiction
Australia
Judgment Date
27 June 2013
Procedural Posture
Application Under S 88 K Conveyancing Act 1919 (nsw) / Principal Judgment Following Hearing of Easement Application
Outcome
Easements granted subject to attached draft orders and specified terms.
Legal Topics
['easements' 'implied Ancillary Rights' 'section 88 K Easements' 'planning Approval Pathways' "owner's Consent for Development Applications"]
['real Property' 'planning and Environment'] ['easements' 'implied Ancillary Rights' 'section 88 K Easements' 'planning Approval Pathways' "owner's Consent for Development Applications"]

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Procedural Posture

Application Under S 88 K Conveyancing Act 1919 (nsw) / Principal Judgment Following Hearing of Easement Application

Legal Issues

  1. 1 ["Whether easements under s 88K Conveyancing Act 1919 are reasonably necessary for the effective use or development of the applicant's land" "Whether a term should be imposed requiring Council to give owner's consent to applications for approval/consent to construct and use access ramps" 'Which planning approval pathway applies (Part 3A or Part 4 of EPA Act) for construction and use of ramps']

Ratio Decidendi

The easements are reasonably necessary for the effective use and development of the Moorebank land, as access is needed for any reasonable development, including but not limited to the MRF proposal. There is no viable alternative access; both Part 3A and Part 4 approval pathways may be available, but imposing only a Part 4 owner's consent term would be futile as Part 4 approval is effectively ousted by the amended Part 3A application. Council's objections to an MRF do not render the proposal inappropriate or ineffective use; the area is zoned accordingly and there is a substantial prospect of approval. Appropriate compensation is agreed and public interest is satisfied. Thus, easements...

Court Disposition

Easements granted subject to attached draft orders and specified terms.

Orders

  • ["Easements for carriageway and construction, maintenance, use to be granted over the specified lots for the benefit of the Moorebank land, including an owner's consent term for application under Part 3A or Part 4 for ramps;" 'Ramps design term to require load bearing capacity per SM1600 and AS 5100 Bridge Design...