Existing Use Rights in New South Wales: What Four Decisions Tell Landowners
Mark Evans • October 15, 2026
A plain-English review of four decisions on existing use rights
This article considers what can be learned from four Court decisions concerning existing use rights.
Introduction
Planning controls in New South Wales change, and land that may have been used lawfully for decades can find itself in a zone where that use is now prohibited.
The law’s answer is "existing use" rights. Division 4.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) allows a use that was lawful immediately before a prohibition took effect to continue despite that prohibition.
Section 4.65 of the EPA Act defines two species of existing use.
Section 4.65(a) covers use for a lawful purpose immediately before the commencement of an instrument that would otherwise prohibit it. Section 4.65(b) covers a use for which consent was granted before the prohibiting provision commenced and which was then carried out in accordance with that consent within a year. Such existing use rights are valuable, because they allow development the current zoning would forbid. They are also fragile.
Existing use rights, what they are and how they arise is examined in more detail in our article here: (https://www.whiteacre.com.au/existing-use-rights-part-one). The following is a review of four Court decisions involving existing use rights and key takeaways from those decisions.
Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147
Background
In 1933 Mosman Council approved alteration works converting a two-storey house into two flats. For the next eighty years the building was used continuously as two separate residences. The written terms of the 1933 approval could not be found; their content had to be inferred from a council building register entry describing "Alt & Adds into 2 flats", a stamped plan of the "conversion of residence into flats", and Valuer General records describing the property as "RES" in 1930 and "FLATS" by 1935.
The land was later zoned R2 Low Density Residential, in which residential flat buildings — buildings of three or more dwellings — are prohibited. Jojeni wished to demolish the building and construct a single building containing three flats. Whether the council had power to approve that depended on how the existing use was described: an enlargement of an existing use (as two flats) could be approved if it is for that use and no other, whereas a change to a prohibited use (from a house to flats) may not. The primary judge declared that the existing use rights were for "two flats in a house" rather than, as Jojeni sought, a "residential flat building". If followed that consent for three flats could not be granted. Jojeni appealed to the NSW Court of Appeal.
What the Court decided and why
The Court of Appeal (Leeming JA, Macfarlan and Gleeson JJA agreeing) allowed the appeal unanimously and declared that the premises benefited from existing use rights as "a building containing flats". At paragraph [11] Leeming JA drew the fundamental distinction within the definition of existing use rights: between a use that was lawful in its own right and later became prohibited, and a use that was lawful only because consent had been obtained. The first never required consent at all; the second exists only by virtue of it.
That mattered because, at paragraph [50], the Court found that in 1933 the owner could have used the property as two residences without any council approval whatsoever. The legislation then in force required approval to erect or alter a building but said nothing about use; approval was needed in 1933 only because structural alterations were proposed. The entitlement to use the building as two flats therefore came not from the 1933 approval, but from the fact that the property had lawfully been used for residential purposes for years beforehand. The existing use right fell within section 4.65(a) – the use of a building or land for a lawful purpose immediately before planning laws were introduced prohibiting that use.
Because the use did not derive from a consent, it had to be characterized by reference to the overarching purpose served rather than the details of the activities carried on, and as liberally as the statutory language allows. Use for three flats is not different in kind from use for two. In 1933 the regime recognized only dwelling-houses and residential flat buildings — the latter being any building of two or more flats — and drew no distinction based on numbers.
Following this reasoning, the Court held that the building was being used as a building containing flats, akin to a residential flat building and the proponent ought to be allowed to apply to enlarge that existing use.
Key takeaways
- Approval to carry out building work is not approval of a use. Where the legislation of the day regulated only construction, a building approval does not confine how the building may be used.
- Existing use rights are described by reference to purpose, at a practical level of generality — not by counting details such as the number of flats.
- Where original approvals are lost, their terms may be reconstructed from secondary evidence such as registers, stamped plans and valuation records.
Davis v Dodevski [2021] NSWLEC 93
Background
Lot 195 is a rural property of 66.18 hectares in the Nambucca Valley, zoned RU2 Rural Landscape. The minimum lot size for a dwelling house in that zone is 100 hectares. Clause 4.2A of the Nambucca Local Environmental Plan 2010 (LEP) prohibited consent for a dwelling on a lot unless one of the following four alternatives could be met:
the lot meets the minimum size; or the lot was created before the LEP commenced and a dwelling was permissible immediately beforehand; or the lot resulted from a subdivision for which development consent was granted before the LEP commenced and a dwelling was permissible immediately beforehand; or the lot is an "existing holding".
The council refused the owners’ application for a dwelling house on the lot in June 2020 but, on review, granted consent in November 2020. The Council relied on the second alternative (above), asserting in three officer reports — without reasoning — that a dwelling had been permissible on the lot before the 2010 LEP commenced, and on a 1995 report recording a dwelling on the land as an "existing legal dwelling". A neighbour challenged the consent as being invalid.
What the Court decided and why
Pain J of the NSW Land and Environment Court declared the consent invalid and of no effect. The correct application of cl 4.2A of the LEP was a condition precedent to Council’s power to grant consent.
None of the four alternatives in clause 4.2A was available. The lot was well under the minimum size and existed since about 1911, so did not result from a subdivision following development consent. It was not an "existing holding": though held with an adjoining lot in common ownership in 1967, it was not so held when the application was lodged. And a dwelling was not permissible immediately before the 2010 LEP commenced, because the 1995 plan imposed the same 100-hectare requirement and the lot was not an "existing parcel" under it.
Existing use rights featured only by their absence. No council report referred to existing use rights, to a dwelling having previously stood on the land, or to the plan’s replacement-dwelling provision, and there was no evidence that any dwelling had been lawfully erected on the lot. Because no such rights were established, the fact that dwellings were once permissible on 40-hectare lots under earlier instruments was irrelevant, those instruments having been replaced.
Key takeaways
- A council’s historical acknowledgement that a dwelling was "legal" does not create a continuing entitlement to build. Existing use rights must be established by evidence.
- Where an instrument imposes a precondition, satisfying it goes to the council’s power, not planning merit. A consent granted without that power is invalid.
- Officer reports stating a conclusion without reasoning offer no protection. Owners relying on a consent should confirm the approval pathway was available and valid.
Save the Robots ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 149
Background
A prominent building at Taylor Square, Darlinghurst, has carried roof signage since the 1920s. Photographs showed signage in 1932, 1934, 1943 and at intervals through to 1984, though the supporting structures had varied over time.
The owner sought consent to rebuild the existing static sign as a digital advertising sign. The site lies within the Oxford Street heritage conservation area, where the applicable State policy prohibits advertisements, so the sign could only proceed if an existing use for the purpose of advertising was established.
A Commissioner granted consent to everything except the digital sign, finding no existing use had been established and, in the alternative, that the sign was unacceptable on road safety, heritage and design grounds. The owner appealed on questions of law only.
What the Court decided and why
Preston CJ dismissed the appeal. At paragraphs [50] to [52] his Honour restated the structure of the definition of existing use rights in section 4.65 of the EPA Act: s 4.65(a) deals with a use that commenced before there was any requirement to obtain consent or other approval, while s 4.65(b) deals with a use that commenced upon the grant of, and in accordance with, a development consent. Common to both is that the use was being carried out for a lawful purpose immediately before the prohibiting instrument commenced. That common requirement distinguishes an existing use from the separate protection given by s 4.68 of the EPA Act to other lawful uses — those that merely become subject to a requirement to obtain consent for the use rather than a prohibition of the use.
Establishing a lawful purpose requires the history of the use to be traced back in time, and has two components: the use itself must have been lawful, and the structure used must have been lawfully erected. The provisions are designed to save rights, not to perpetuate wrongdoing. That required evidence at each date a control commenced — building approvals from 1920, and from 1933 both an approval to erect an advertising structure and a license to display an advertisement. None was in evidence. Photographs of signs in particular years did not identify the structure in use, did not show the use continuing at each critical date, and said nothing about lawfulness.
A further difficulty was a 1999 consent to replace the sign face, limited in duration and conditioned on the sign and its structures being removed on expiry. Taking up that consent changed the use: it became use of the altered structure on the consent’s terms, which brought it to an end in February 2001 — weeks before the prohibition commenced.
Key takeaways
- Long use is not enough. An applicant must show the use was lawful, the structure lawfully erected, and the use continuing at each date a control commenced. Gaps in the record count against it.
- Taking up a time-limited consent can replace and then extinguish earlier rights. Before acting on a consent with expiry or removal conditions, consider what it does to any existing entitlement.
Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156
Background
Station Beach lies on the Pittwater side of the isthmus at Palm Beach. The land above the mean high-water mark (MHWM) has been reserved for public recreation since the 1920s as part of Governor Phillip Park, and the Crown land below it, covered by tidal waters, has been used for recreation alongside the reserve ever since. From 1997, a council order under the Companion Animals Act 1998 (NSW) prohibited dogs on all beaches in the former Pittwater area, including Station Beach.
In 2019 Northern Beaches Council made two decisions: in August, to conduct a 12-month dog off-leash trial on part of the beach; and in December, as an interim measure while it sought a Crown license for that trial, to allow dogs on-leash. The Palm Beach Protection Group (Group), a residents’ action group opposed to dogs on the beach, challenged both decisions.
Under the Pittwater Local Environmental Plan 2014 (PLEP) the beach is zoned RE1 Public Recreation and the waters below MHWM are zoned E2 Environmental Conservation. The Group argued that the decisions authorized a new use of land — exercising dogs — that was either prohibited or required a development consent that had never been obtained. The Council’s alternative answer was that the use was simply a continuation of the beach’s long-standing recreational use, which s 4.68 of the EPA Act allowed to continue without consent.
What the Court decided and why
Preston CJ rejected the Group’s planning challenge, holding that no development consent was required, but quashed both decisions on a separate environmental assessment ground. The Court characterized the use enabled by the Council decisions as use for the purpose of a "recreation area" — a place used for outdoor recreation that is normally open to the public. PLEP permits that use in both zones, but only with consent. None had been granted, and an exemption in State Environmental Planning Policy (Infrastructure) 2007 for council development on public reserves did not apply. The outcome therefore turned on s 4.68 of the EPA Act which protects a lawful use that becomes subject to a requirement to obtain consent for that use.
At paragraphs [156] to [158] his Honour held that the use could continue without consent. Section 4.68(1) provides that nothing in an environmental planning instrument requires consent for the continuance of a use of land "for a lawful purpose" for which the land was being used immediately before the instrument came into force. Following Steedman v Baulkham Hills Shire Council (No 2), those words require that the actual use immediately before the instrument took effect was itself lawful. Establishing that involves tracing the history of the use back in time, to show that it was for a lawful purpose when it began and remained so right up to the moment before the instrument that now controls it commenced.
The Court then traced that history. Public recreation at Station Beach began in the 1920s, before planning law required consent for it, and was carried forward lawfully through each planning regime that followed. Immediately before PLEP commenced in 2014, the public was lawfully using the beach for recreation, albeit without dogs. The dog ban did not make that use unlawful, because lawfulness in this context is judged under planning law, not the general law. Allowing dogs changed the detailed activities on the beach, not the purpose of its use. And because PLEP made recreation areas permissible with consent rather than prohibiting them, the protection engaged was that given to an "other lawful use" under s 4.68 of the EPA Act.
At paragraphs [185] to [187] the Court turned to s 4.68(2), which does not authorize any enlargement, expansion or intensification of the use, or any increase in the area of land actually physically and lawfully used. Three points emerge. First, the date against which any growth is measured is not the commencement of the latest planning instrument, but 3 February 1986, when that limitation (then s 109(2)) commenced. Secondly, whether a use has been intensified depends on its nature and purpose: the use here was outdoor recreation by the public, so it was the public’s use that had to have grown. Thirdly, the evidence fell short. It showed more dogs on the beach, but not more people — people with dogs might simply have displaced people without them — whether measured from 1986, from 2014 or from immediately before the decisions.
The Group nevertheless succeeded in its appeal, but for other reasons. As his Honour explained at paragraphs [249] and [250], because the use could continue without consent it fell outside Part 4 and was an "activity" requiring environmental assessment under Part 5 of the EPA Act. The Council had not obtained an environmental impact statement for either activity, despite their likely significant effect on threatened seagrass and seahorse habitat, and both Council decisions (in 2019) were declared invalid and quashed.
Key takeaways
- A use that becomes permissible only with consent, rather than prohibited, can continue without consent under s 4.68 — but only if it has been lawful throughout. That must be proved by tracing its history from when it began through every planning instrument that has applied since.
- A use is described by its purpose, not its details, and intensification is judged by reference to that purpose. New ways of pursuing the same purpose do not change the use, and growth is measured from 3 February 1986 on evidence that compares like with like.
- Avoiding the need for consent does not avoid assessment. A continuing use outside Part 4 may still require environmental assessment under Part 5 where a public authority’s approval is needed for it to be carried out.
Conclusion
Existing use rights arise in one of two ways: from a use that was lawful before the use was prohibited, or from a use authorised by a development consent. Which pathway applies shapes how the right is described, and the description determines what can be built. Where a later instrument requires consent for a use rather than prohibiting it, s 4.68 of the EPA Act gives a parallel protection to other lawful uses, as Palm Beach shows.
Where the right does not depend on a consent, as in Jojeni, the courts describe it generously and by reference to purpose. Palm Beach applies the same approach to other lawful uses: a new way of pursuing the same purpose does not change the use, and intensification is judged against that purpose. All of this presupposes a lawful use to begin with. Save the Robots shows how demanding that threshold can be; Palm Beach shows how it is met, by tracing the use’s history through every instrument that has applied to the land.
Four practical points emerge. The value of an old use lies in the paper trail — approvals, licenses, plans, valuation records, and continuous evidence of use. Rights can be surrendered inadvertently, by acting on a consent whose terms replace them. An assumption repeated in council files is not a legal entitlement. And a use that can continue without consent may still require environmental assessment before a public authority approves it. Anyone relying on a site’s history should establish the position with professional advice.
Disclaimer
The contents of this article are a general guide and intended for educational purposes only. Determination of the types of issues discussed in this article is complex and often varies from case to case and involves an understanding of matters of fact and degree. Opinions on those matters can vary and be matters on which reasonable minds may differ.
DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
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Introduction An encroachment arises where a building or structure built on one parcel of land extends into an adjoining owner's land — whether above ground, at ground level, or even below the surface. The intrusion may be minor — a fence post, a roof eave, or a retaining wall footing — or it may involve a substantial part of a permanent structure. The principal legislation governing encroachments in New South Wales is the Encroachment of Buildings Act 1922 (NSW) (the Act ). The Act gives the NSW Land and Environment Court (the Court ) a broad discretionary jurisdiction to deal with encroachments in a way that is just and equitable in all the circumstances. This reflects a pragmatic recognition that removal or demolition of an encroachment is not always a proportionate response, particularly where the encroachment has stood unchallenged for many years. Two recent decisions of the Court — Gabriel v Billett [2023] NSWLEC 85 and Johnston v Cutbus h [2025] NSWLEC 1482 — illustrate the way in which these principles are applied in practice and offer valuable guidance for property owners confronted with encroachment issues. The Legal Framework: Encroachment of Buildings Act 1922 (NSW) Who Can Apply? Under section 3(1) of the Act, either the Encroaching Owner or the Adjacent Owner may apply to the Court for relief. The Act defines these terms as: Encroaching Owner — the owner of the land from which the encroaching building or structure originates. Adjacent Owner — the owner of the land into which the encroachment extends. This dual standing is important. An adjacent owner who feels their land is encroached upon may wish to apply to the Court for a remedy to deal with the encroachment. An encroaching owner may wish to apply for an easement or other formal entitlement to recognize an existing encroachment. Remedies Available to the Court Section 3 of the Act provides a number of remedies to deal with an encroachment. The range of orders the Court may make include: compensation to the Adjacent Owner for the encroachment and any loss suffered; the conveyance, transfer, or lease of the encroached-upon land to the Encroaching Owner; the grant of an easement, right, or privilege in favour of the Encroaching Owner; or removal of the encroachment. Crucially, the Court is not limited to a binary choice between removing the encroachment and doing nothing. It may, and frequently does, grant an easement over the affected portion of the neighbouring land — a remedy that allows the encroaching structure to remain, while providing the Adjacent Owner with legally recognized compensation and formal protection. Factors the Court Considers In determining which of the remedies is appropriate, section 3(3) of the Act directs the Court to have regard to several factors, including: whether the applicant is the Encroaching Owner or the Adjacent Owner. the situation and value of the land in question, and the nature and extent of the encroachment. the character and purpose of the encroaching building or structure. the loss and damage that has been or will be caused — both to the Adjacent Owner by the encroachment, and to the Encroaching Owner if removal were ordered. the circumstances in which the encroachment was made, including whether it was intentional, negligent, or the result of an innocent mistake. This multi-factorial assessment means that outcomes are highly specific to each case. The Court must weigh these competing interests and arrive at a solution that is, on balance, just and equitable. Compensation Section 4 of the Act deals with compensation. Where the Encroaching Owner can prove the encroachment was neither intentional nor the result of negligence, the minimum compensation payable is the value of the subject land. In any other case, compensation of up to three times the value of the land can be awarded. In assessing compensation above the minimum, the Court has regard to the improved or unimproved value of the land to the Adjacent Owner, the loss suffered, and the circumstances in which the encroachment was made. Case law Recent cases are illustrative of how the Court deals with encroachments under the Act. Gabriel v Billett [2023] NSWLEC 85 Decision Decided 15 August 2023 before Robson J (Class 3 application). The Court ordered removal of the encroaching portion of a shed within four months at the Adjacent Owner's cost. Facts Gabriel owned a property on which a small timber and metal shed (18m² in total) had been built. 11m² of the shed crossed onto the neighbouring property owned by Billett. The encroachment predated both owners. Gabriel had been aware of the encroachment since purchasing his property in 1996. Gabriel commenced proceedings seeking a transfer of 34.5m² of Billett's land at unimproved land value. Billett opposed this and sought removal of the 11m² encroachment. The cost of removal was quoted at $925. Decision Robson J refused Gabriel's application and ordered removal of the encroaching 11m² of the shed within four months, with Billett bearing the removal costs by way of indemnity. Reasoning Three factors were decisive. First, the Court had no jurisdiction to transfer the 34.5m² sought — the Act limits any transfer to the 'subject land' directly beneath the encroachment (11m²), and no broader buffer zone can be transferred. Second, Gabriel had known about the encroachment since 1996 and continued using his neighbour's land for storage throughout, which weighed heavily against him under section 3(3)(f) (the circumstances in which the encroachment was made). Third, removal of the encroachment would cost only $925 — a trivial sum. The shed was dilapidated with no meaningful heritage value, and the encroachment constrained Billett's plans to develop the rear of her small allotment. With hardship to the Encroaching Owner (Gabriel) minimal and hardship to the Adjacent Owner (Billet) real, removal was the just outcome. Johnston v Cutbush [2025] NSWLEC 1482 Decided 7 July 2025 before Commissioner Gray (Class 3 application). The Court ordered removal of a studio, composting toilet building and grey water tank within 60 days at the Encroaching Owners' expense. Facts Johnston (Adjacent Owner) purchased a 40.68-hectare rural property in 2016. A survey confirmed that three structures built by her neighbours — Cutbush (Encroaching Owner) — encroached onto Johnston’s land: a detached studio (encroaching by up to 5.57 metres), a waterless composting toilet building (wholly on Johnston's land but part of the studio's sewage system), and a grey water tank and pipework. The Encroaching Owner had owned their adjoining 6-hectare property since 1992 and over three separate periods between 1992 and 2008 had progressively enlarged an existing shed into a studio and installed a sewage management system — each time without development consent or building approval, and each time without commissioning any survey to verify the boundary. When the Encroaching Owner later sought to regularise the structures through council applications in 2008, those applications were accompanied by plans that misrepresented the studio as being wholly within their title. The 2008 approvals and building certificate did not authorise works already carried out, and did not authorise any structures on Johnston's land. Decision Commissioner Gray ordered removal of the studio, composting toilet building and grey water tank within 60 days at the Encroaching Owner’s expense. The alternative of a land transfer — which the Encroaching Owner supported — was refused. Reasoning The Commissioner's reasoning centered on the circumstances of the encroachment. The respondents had carried out three rounds of unauthorised works over two decades without taking any steps to verify the boundary — no survey, no pegging, no professional advice. They then misrepresented the location of the structures in council applications. Whether deliberate or careless, this demonstrated sustained disregard for the adjoining owner's property rights. Beyond the $65,900 removal cost, no evidence of concrete hardship to the respondents was led. By contrast, Johnston gave detailed evidence of plans to use an area of her property for ecotourism and glamping — plans directly frustrated by the encroachments. The land transfer was also refused because the area required to be transferred (177m²) was more than three times the subject land as defined by the Act (approximately 50m²); it was inappropriate to compel the Adjacent Owner to surrender significantly more land than that directly beneath the encroachment in circumstances where the Encroaching Owners had acted without authorisation or care. Key Takeaways Removal is a live remedy. Courts do not default to allowing encroachments to remain. Where the Encroaching Owner bears responsibility for creating the encroachment and it is shown that the encroachment arose out of negligence, removal is a likely outcome. The circumstances of the encroachment are decisive. Knowing, long-standing use of a neighbour's land and unauthorised construction without boundary verification both may attract removal orders. Council approvals do not defeat private encroachment claims. A building certificate prevents council enforcement only — it does not legalise works already carried out or bar an Adjacent Owner's claim under the Act. Transfers are limited to the subject land. The Act cannot be used to transfer a buffer zone beyond the encroachment footprint. Landowners should commission a survey before building near a boundary. Both cases arose from failure to verify the boundary location before construction began. Negotiate early and in good faith. Entrenched positions and unreasonable demands were noted adversely by the Court in both cases. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Introduction In New South Wales, section 88K of the Conveyancing Act 1919 is the principal mechanism by which a court can impose an easement on a neighbour's land, even without that neighbour's consent. This article explains how the provision works, the key principles governing its application, and how recent cases have continued to shape the law in this area. What Is an Easement by Necessity? An easement by necessity arises where land is effectively landlocked or otherwise incapable of practical use without the benefit of some right over adjoining land. At common law, such easements are implied into grants of land where, without the easement, the grantee's land would be entirely inaccessible. However, implied easements are limited in scope and often difficult to establish. As an alternative, the broader, statutory mechanism is section 88K of the Conveyancing Act 1919 . Section 88K: The Court's Power to Impose an Easement Inserted into the Conveyancing Act 1919 in 1995, section 88K empowers the Supreme Court — and, in certain development-related circumstances, the Land and Environment Court (under s 40 of the Land and Environment Court Act 1979) — to impose an easement over land without the owner's consent. Section 88K(1) provides that the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. The power is conditional: all four preconditions in subsections (1) and (2) of section 88K must be satisfied before an order can be made. The Four Preconditions 1. Reasonably Necessary for Effective Use or Development This is the governing requirement. As Bryson J explained in Stepanoski v Chen (cited with approval in Samy Saad v City of Canterbury [2012] NSWSC 389), the primary purpose of section 88K relates to the public interest in effective land use — but that is not enough on its own to justify a positive exercise of the discretion; the effect on the servient land is also relevant and important. The leading elaboration of this requirement is found in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 ( Rainbowforce ), decided by Preston CJ in the Land and Environment Court. A useful checklist of principles emerges from that decision: The requirement of reasonable necessity does not mean absolute necessity. The question is whether the easement is reasonably necessary for the effective — not merely convenient — use or development of the dominant land. "Effective" carries its ordinary meaning: serving to produce the intended result. The easement must be reasonably necessary for the effective use or development of the land itself , not merely for the current owner's personal enjoyment. The greater the burden imposed on the servient tenement, the stronger the applicant's case must be to justify a finding of reasonable necessity. The Court may impose an easement even where an alternative route exists; reasonable necessity does not demand there be no alternative. Reasonable necessity is assessed at the time of the hearing, not at the date of the application. These principles were reinforced in Arcidiacono v Owners of Strata Plan No 17719 [2020] NSWCA 269, where the NSW Court of Appeal held that reasonable necessity means the use or development of the land with the easement must be at least substantially preferable to use or development without it. A useful boundary case is Aussie Skips Recycling Pty Ltd v Strathfield Municipal Counci l [2020] NSWCA 292, where the proposed easement was found not to satisfy the requirement because it would enclose an area constituting 68% of the Council's land, making it incompatible with the continued beneficial ownership by the Council of the servient tenement. 2. Not Inconsistent with the Public Interest Section 88K(2)(a) requires the Court to be satisfied that the use of the dominant land — that is, the land having the benefit of the easement — will not be inconsistent with the public interest. Importantly, as Rainbowforce makes clear, it is the use of the dominant tenement, not the use of the easement on the servient tenement, that is the focus of this inquiry. The public interest requirement involves consideration of broader planning and development goals, including the implementation of planning criteria for the area. As observed in Samy Saad v City of Canterbury [2012] NSWSC 389, Parliament recognised that private development may be beneficial to the public, and the Act empowers the Court to facilitate such development while balancing competing private interests. There are, however, limits. Community land attracts heightened scrutiny, and courts have remarked that it would be rare that an easement over actively used community land would be considered to be in the public interest. 3. Adequate Compensation Section 88K(2)(b) requires the Court to be satisfied that the owner of the servient land can be adequately compensated for any loss or other disadvantage arising from the imposition of the easement. Critically, the Court must determine what compensation is payable at the time it makes the order. If it cannot do so, it has no power to grant the easement: Studholme v Rawson [2020] NSWCA 76 at [46]. Compensation is assessed by reference to the loss suffered by the servient tenement, not the benefit derived by the dominant tenement: Rainbowforce . Ordinarily, compensation covers three elements: The diminution in the market value of the affected land; Associated costs caused to the servient owner; and Losses arising from insecurity and loss of amenities — such as loss of peace and quiet, or loss of privacy from strangers using the easement. Any compensating advantages flowing from the easement must be credited against these losses: Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485. In exceptional cases where it is extremely difficult to assess compensation, but the applicant stands to derive a considerable benefit, compensation may be assessed as a percentage of the profits made: Wengarin , as later applied in Lonergan's case. 4. All Reasonable Attempts to Negotiate Have Failed Section 88K(2)(c) requires the Court to be satisfied that all reasonable attempts have been made by the applicant to obtain the easement, but those attempts have been unsuccessful. The precondition is designed to ensure that litigation is a last resort. As Rainbowforce sets out, the following principles apply: The applicant must make an initial genuine attempt to obtain the easement by negotiation, including a monetary offer. The applicant must sufficiently inform the servient owner of what is being sought and give that person an opportunity to consider their position. The applicant is not required to make endless concessions until consensus is reached. Once it is objectively apparent that further negotiations are unlikely to produce consensus within the foreseeable future, the applicant may be taken to have made all reasonable attempts. In Govindan-Lee v Sawkins (2016) 18 BPR 35,883, this element was satisfied even where the applicant made a monetary offer only after proceedings had commenced — though this approach may not be consistent with the provision's evident purpose of encouraging pre-litigation resolution. Who bears the costs? Section 88K(5) creates a default rule that the applicant bears the costs of the proceedings, unless the Court orders otherwise. This reflects the fact that seeking a court-imposed easement is an indulgence — a judicially endorsed interference with property rights — and the servient owner is entitled to have the preconditions tested. An "otherwise order" shifting costs to the servient owner requires something more than a mere refusal of a reasonable compensation offer. As the NSW Court of Appeal confirmed in Shi v ABI-K Pty Ltd [2014] NSWCA 293, a property owner is entitled to refuse consent, thereby putting the applicant to proof on all preconditions including public interest and reasonable necessity. The mere rejection of a reasonable offer does not, without more, justify a costs order against the servient owner. However, the courts have progressively identified conduct that will warrant a departure from the default rule: Making the proceedings unnecessarily expensive: Studholme v Rawson [2020] NSWCA 76; Rainbowforce . Actively pursuing defenses beyond merely putting the plaintiff to proof: Crawley v Baxter (No 3) [2023] NSWSC 955. Presenting patently false or manufactured evidence: Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585. The significance of these principles was brought sharply into focus in Jeffrey v Adams [2023] NSWSC 1270, a recent decision involving a right of carriageway in rural NSW. The Jeffreys sought a deviation around an obstruction (a dam) that had blocked their existing right of way. The defendants not only resisted the claim without rational or legal basis but filed expert evidence on which the co-defendants also relied. The Court granted the easement, finding the alternative road was the most direct route around the dam and had been used historically without opposition. Given the defendants' active and baseless resistance, the Court departed from s88K(5) and ordered the defendants to pay the Jeffreys' costs. As the Court observed, the defendants' conduct prolonged the hearing and went beyond merely putting the plaintiffs to proof. Practical Implications A few practical points emerge from the case law: For applicants: The more generous and patient the applicant is in negotiations, the stronger their eventual application — and the better positioned they are to argue for a departure from the default costs rule if the neighbour acts unreasonably in the proceedings. For servient owners: Mere refusal of compensation does not attract a costs penalty. A servient owner is entitled to put the applicant to proof on all statutory preconditions. However, obstructive conduct, filing excessive evidence, or pursuing defenses with no proper legal foundation risks a significant adverse costs order. For developers: Section 88K applications are increasingly common, particularly in infill development contexts where access, drainage, and service easements are frequently needed across tight urban blocks. The Land and Environment Court may also grant easements as ancillary orders to development consent under section 40 of the Land and Environment Court Act 1979 (NSW), which offers an alternative avenue where the matter is already before that Court. Conclusion Section 88K of the Conveyancing Act 1919 (NSW) represents a carefully calibrated intervention in private property rights. It allows the courts to facilitate development and effective land use while protecting the servient owner through the requirements of reasonable necessity, public interest compatibility, and adequate compensation. The body of case law — from Rainbowforce to Jeffrey v Adams — has progressively refined how each precondition is assessed and, crucially, when a neighbour's conduct in resisting an easement crosses the line from legitimate defense to unreasonable obstruction. In an era of increasing urban density and development pressure, familiarity with this provision has never been more important for landowners, developers, and their advisers alike. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Introduction Long and uninterrupted use of another person’s land can, in some cases, give rise to what is known as an “easement by prescription” in NSW. An easement by prescription is a property right acquired through long and uninterrupted use of another person's land — not by formal grant, agreement or statute. It is one of the older doctrines in Australian property law, rooted in common law principles that predate the Torrens title system, yet it remains very much alive in New South Wales. This article examines the legal foundation of easements by prescription in NSW, the requirements that must be satisfied, the critical distinction between 'permission' and mere 'toleration', the recent Supreme Court decision in Maloney v Putu Pty Ltd [2023] NSWSC 1148, and the process by which a prescriptive easement can be formally registered. The Legal Basis for Prescriptive Easements in NSW Prescriptive easements in NSW are founded on the common law doctrine of the lost modern grant . The doctrine proceeds on a legal fiction: where land has been used openly and continuously as of right for at least 20 years, the law presumes that a formal grant of the easement was once made but has since been lost. The foundation in NSW lies in the High Court's early decision in Delohery v Permanent Trustee Co of NSW (1904), which confirmed the doctrine's application in Australian jurisdictions. It has subsequently been affirmed in numerous NSW decisions, including the Court of Appeal's important judgment in Dobbie v Davidson (1991) 23 NSWLR 625. Key Principle: An easement by prescription arises where enjoyment of the right has been ' as of right ' — meaning without force, without secrecy, and without permission — for an uninterrupted period of at least 20 years. The requirement that the easement was enjoyed “as of right” is an important one and is to be distinguished from use of the neighbouring land with consent of the adjoining owner or in secret. It is important to note some limitations unique to NSW. Easements of light (the right to receive natural light) cannot be created by prescription after a prescribed date, and any such easements that may have previously existed have been retrospectively abolished. Prescriptive easements remain available, however, for positive rights — most notably rights of way and access. Prescriptive Easements and the Torrens System New South Wales uses a system of title by registration called the Torrens system. The Torrens system uses a centralized, government-backed register to provide secure, conclusive, and indefeasible evidence of ownership. It simplifies property transfers by replacing traditional, complex paper deeds with a single Certificate of Title. The interaction between prescriptive easements and the Torrens title system has generated significant legal debate in NSW. The indefeasibility principle at the heart of Torrens — that a registered proprietor takes title free of prior interests not recorded on the register — sits in tension with rights that arise from unregistered use and that do not appear on the register. In NSW, the accepted position is that a prescriptive easement is enforceable against the servient landowner who was registered during the period of use, on the basis of an in personam exception to indefeasibility. The prescriptive right binds the person who allowed the use, through principles of unconscionability or personal obligation. Whether such an easement automatically binds a subsequent purchaser of the servient land is more complex and depends on the circumstances of that purchaser's acquisition. This is one reason why formalising a prescriptive easement through a court order and subsequent registration is highly desirable: once recorded on the title, the easement is enforceable against all parties. The Requirements for Establishing a Prescriptive Easement To successfully claim an easement by prescription in NSW, the claimant must satisfy each of the following elements: 1. Enjoyment 'as of right' The use must have been without force, without secrecy, and without permission. This three-part formula is the cornerstone of any prescriptive easement claim: Without force: The use must not have been gained or maintained by violence, physical compulsion, or in the face of active resistance by the landowner. Persistent objection by the servient owner will defeat the claim. Without secrecy: The use must be open and visible, not concealed or clandestine. The servient owner must have had actual knowledge, constructive knowledge, or at least the means of knowledge of the use. Without permission: This is the element most frequently contested. Use made with the permission of the servient owner cannot ripen into a prescriptive right, regardless of how long it continues. The distinction between permission and mere toleration is critical and is examined in detail below. 2. Continuity for at least 20 years The use must be continuous and uninterrupted for a minimum period of 20 years. There is no fixed requirement as to frequency of use, but the use must be sufficiently regular that a reasonable person would understand that a right is being asserted rather than mere occasional access being enjoyed. The 20-year period need not immediately predate the application to court — under the doctrine of lost modern grant, any 20-year period of qualifying use may suffice. Crucially, interruption by the servient owner — such as the erection of a fence or locked gate — may restart the clock, and any period during which the dominant and servient tenements were in common ownership cannot count toward the 20-year period. 3. Use must be capable of being the subject of an easement The right claimed must be one that is capable of being granted as an easement — it must benefit a dominant tenement, accommodate and serve that tenement, and the dominant and servient tenements must be occupied by different persons. A right that could not have been lawfully granted by deed cannot be acquired by prescription. 4. The servient owner must have had knowledge (or the means of knowledge) The acquiescence of the servient owner is a necessary element. That owner must have known, or had reasonable means of knowing, that the use was occurring. The law will not fix a landowner with the burden of an easement they had no opportunity to detect or resist. The Critical Distinction: Permission vs Toleration The most practically significant and frequently litigated element of a prescriptive easement claim is the question of whether the use was 'by permission' or 'as of right'. This distinction can be deceptively subtle. The controlling principle was articulated by the NSW Court of Appeal in Dobbie v Davidson (1991) 23 NSWLR 625. Kirby P identified a non-exhaustive list of factors the Court considers in assessing whether use has been as of right or by permission: The length of time over which the conduct has been peacefully followed; The persistence of the conduct despite changes of ownership of the dominant and servient tenements; The variety and number of persons who have made use of the claimed right of way; The absence of physical impediments or obstructions to the use; and The knowledge of the use by the owners of the servient tenement and their failure to attempt to forbid, limit or control it. The NSW Court of Appeal's subsequent decision in Arcidiacono v The Owners – Strata Plan No 17719 [2020] NSWCA 269 reinforced the key principle: the Court must determine whether the servient owner consented to the use, or merely tolerated it. Toleration as a matter of 'good neighbourliness' is not inconsistent with a prescriptive easement — and indeed this was central to the outcome in Maloney v Putu Pty Ltd . Critical distinction: A servient landowner who knows of the use, does nothing to stop it, and is generally neighbourly about it has likely tolerated the use — which is consistent with prescription. A landowner who expressly authorises or grants permission for the use has consented, which defeats any prescriptive claim. Express permission must be assessed objectively, not merely by reference to the servient owner's private or subjective intentions. Even use of the word 'permission' in conversation or evidence will not automatically be determinative if, viewed objectively, the conduct was more consistent with toleration or acquiescence than with a consensual grant. Case Law: Maloney v Putu Pty Ltd [2023] NSWSC 1148 Background The 2023 decision of Peden J in the NSW Supreme Court provides an excellent recent illustration of these principles in practice. The plaintiff was the registered proprietor of 'Portland Head Farm' in Ebenezer, NSW. The only vehicular access to his property crossed over land comprising three lots — one owned by Hawkesbury City Council (which raised no objection), one whose proprietors could not be located, and Lot 119 which was owned by the first defendant, Putu Pty Ltd, and subsequently transferred to the third defendant. The plaintiff, his father and their various invitees — including guests, farm managers, tradespeople, suppliers, livestock transporters and emergency services — had used the access road for more than 20 years as the sole vehicular access to the farm. Historical mapping evidence suggested the access road had existed since approximately 1803. The Issues The two central issues before the Court were: Whether express permission had been granted in a conversation in 1978 between the parties; and If not, whether the use, while perhaps initially tolerated as a neighbourly indulgence, had over time taken on the character of a right. The Court's Findings On the question of express permission, Peden J assessed the evidence objectively. She found that the plaintiff's use was more consistent with use as of right, noting several telling factors: The plaintiff had spoken to third parties about his 'right to use the road', reflecting his own understanding that he held a legal entitlement — not a licence dependent on goodwill; The access road had been used extensively by a large number of persons over many years; The plaintiff had instructed farm managers to grade and maintain the road at his expense; When the defendant placed a gate across the access road after purchasing Lot 119, the plaintiff removed it — and the defendant did not replace it after a conversation in which the plaintiff asserted his right to use the road. Peden J drew the inference that the defendant did not intend to prevent access once she had heard the plaintiff assert his entitlement; The defendant's own words to her real estate agent — that 'there's a private road which runs through our property [which] is an access road and has always been used by the owners of Portland Head Farm' — conveyed the flavour of an entitlement as of right rather than a permissive arrangement. On the 'neighbourly toleration' question, the Court acknowledged that the defendant had given evidence that she had 'agreed' to the plaintiff's use because she was 'a firm believer of helping out your neighbour'. However, Peden J found that this could not amount to the grant of permission, because at no point had the defendant asserted any basis to prevent the use, and she had never in fact prevented it. The words of permission were, in substance, the words of good neighbourliness — which the law of prescription treats as consistent with the acquisition of a right, not as a bar to it. The Court granted the easement by prescription over Lot 119. It declined to make the same order in respect of Lot 118 because the registered proprietors of that lot had not been joined as parties to the proceedings — an important practical reminder about joinder requirements. Key Takeaways from Maloney Whether use has been 'by permission' is a question of fact, assessed objectively against all of the evidence — not simply by reference to words used. Statements consistent with good neighbourliness, or failures to actively resist use, do not constitute permission. A servient owner's failure to take action to prevent access — even after becoming aware of it — will weigh strongly in favour of a finding of use as of right. All persons with a registered interest in the burdened land must be joined as defendants in any proceedings. Formalising and Registering a Prescriptive Easement in NSW The acquisition of a prescriptive easement by long user gives rise to an equitable right. To make that right enforceable against successors in title and fully effective under the Torrens system, it must be recognised by a court order and then formally registered on the Torrens Register. Step 1: Obtain a Court Order The dominant landowner must commence proceedings in the NSW Supreme Court seeking a declaration that the prescriptive easement exists. All registered proprietors of the servient land must be joined as defendants. The applicant will need to file evidence — typically statutory declarations and supporting material — demonstrating that each element of the claim (20 years of continuous, open use as of right without force, secrecy or permission) is satisfied. Step 2: Prepare the Deposited Plan Once a court order is made, a Deposited Plan must be prepared by a registered surveyor showing the site of the easement. The plan must comply with the NSW Registrar-General's Guidelines and the technical requirements applicable to easements in deposited plans. The easement must be defined with sufficient precision — its location, width and nature must be identifiable on the plan. Step 3: Lodge with NSW Land Registry Services The court order and the deposited plan are lodged with NSW Land Registry Services for registration. On registration, the easement is noted on the folios of both the dominant and servient tenements. From that point, the right is enforceable against all subsequent owners of the servient land. Conclusion Easements by prescription remain a live and practically significant part of NSW property law. The doctrine of lost modern grant provides a pathway for dominant landowners to formalise access rights that have been exercised openly for 20 years or more — but only where that use has been genuinely 'as of right' rather than permissive. The 2023 decision in Maloney v Putu Pty Ltd is a useful recent illustration of the principles at work. It reinforces that the distinction between permission and toleration will be assessed objectively and in context, and that good-neighbourly attitudes — however sincere — will not automatically defeat a prescriptive claim. For any landowner or practitioner navigating a potential prescriptive easement — whether seeking to establish one or to resist a claim — early legal advice and prompt action are essential. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Local councils are increasingly employing two mechanisms to reduce the number of applications under assessment. The first is outright rejection — returning applications on the stated basis that required documents or information are missing. The second is more passive but equally damaging: not issuing an invoice for assessment fees, leaving the application suspended in a state where it cannot be formally lodged and cannot advance. Both mechanisms carry real consequences for applicants. A development application ( DA ) that is rejected or that has not been formally lodged attracts no assessment obligations from the consent authority, no appeal rights in the Land and Environment Court of NSW ( LEC ), and no protection against planning controls that may change in the interim. This article sets out the legal rules that govern pre-lodgement rejection, explains why invoice delay can be just as harmful as outright rejection, and identifies the avenues available to applicants who find themselves in this position. The legal rules governing pre-lodgement rejection Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EP&A Reg ) outlines the circumstances in which a consent authority can reject a DA at the pre-lodgement stage. The provision is deliberately narrow. A council may only exercise this power: on one of the specific grounds set out in section 39(1)(a) to (f) of the EP&A Reg; and within 14 days of receiving the DA via the NSW Planning Portal. The mirror provisions for modification applications are found at section 114(1)(a) to (d) of the EP&A Reg. Any rejection that falls outside this framework — whether because it is issued after the 14-day period has elapsed, or because it relies on grounds not found in the EP&A Reg — is legally invalid. It is an exercise of power the council simply does not have, and is open to challenge in Class 4 of the LEC's jurisdiction. The grounds on which rejection is permitted Section 39(1) of the EP&A Reg provides: (1) A consent authority may reject a development application within 14 days after receiving the application if — (a) the application is illegible or unclear about the development consent sought, or (b) the application does not contain the information and documents that are required by — (i) the approved form, or (ii) the Act or this Regulation, or (c) for an application for State significant development — the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or (d) for an application for integrated development — the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or (e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 — the application is not accompanied by a report, or (f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW — the application is not accompanied by a statement. The reference in section 39(1)(b)(i) to the 'approved form' relates to the form approved by the Planning Secretary and published on the NSW Planning Portal, as defined in Schedule 7 of the EP&A Reg. The relevant document at the date of this article is the Department of Planning and Environment's Application Requirements (March 2022). Essentially, the permissible grounds for rejecting a standard DA are that it is illegible or unclear, that it omits material required by the approved form, or that it omits material expressly required by the EP&A Act or EP&A Reg. One point warrants emphasis above all others: a council cannot reject a DA at the pre-lodgement stage on matters of merit. Councils occasionally attempt to return applications because their preliminary view is that the application will not be approved, or because the plans appear to involve non-compliances. This is not a lawful basis for rejection. The pre-lodgement gateway exists only to verify that the prescribed documents and information have been provided. Consideration of the merits — under the framework in section 4.15(1) of the EP&A Act — is reserved for the assessment stage, which begins only after lodgement. A merit-based rejection will almost invariably be susceptible to challenge. The 14-day window and the problem of invoice delay A council's power to reject a DA or modification at the pre-lodgement stage expires 14 days after the application is received via the NSW Planning Portal. A rejection notified after that point is legally invalid. We have observed councils purporting to reject applications well outside the 14-day window, sometimes by weeks or months, and in our experience applicants rarely challenge this. A separate but equally serious problem arises where a council does not reject the DA — but also does not issue an invoice for assessment fees. The NSW Court of Appeal and the LEC have now clearly held that a DA is only formally 'lodged' once the invoice has been issued and the fee paid: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 ; Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 . Because a DA is only formally 'lodged' once the invoice has been issued and the fee paid, a council that withholds the invoice can hold an application in permanent limbo without ever technically rejecting it. The same rule applies to modification applications by virtue of section 99(4) of the EP&A Reg. An application that has not been lodged in this sense cannot proceed to assessment, generates no appeal rights, and remains exposed to any change in applicable planning controls that occurs after submission. The stakes could not be higher, as the facts of Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 ( Hinkler ) demonstrate. In Hinkler, the applicant uploaded a DA for a mixed-use development incorporating affordable housing to the NSW Planning Portal on 22 October 2021. No invoice was issued by the council until 2 December 2021 — five weeks after submission. During that window, on 26 November 2021, the SEPP ( Affordable Rental Housing ) 2009 ( SEPP ARH ) was replaced by the SEPP ( Housing ) 2021 ( SEPP Housing ). A savings provision in the SEPP Housing preserved rights for DAs already 'made' before its commencement. Had the invoice been issued and paid before 26 November 2021, the applicant would have been entitled to rely on the former SEPP ARH. Because it was not, the Court of Appeal held the DA was not 'made' in time, and the applicant was required to satisfy the more demanding requirements of the new SEPP Housing. At paragraph [159], Preston CJ (of LEC) noted that a council's failure to issue an invoice within a reasonable time may constitute a breach of statutory duty, and that an applicant in that position may seek an order of mandamus compelling the council to fulfil its obligation. Options available to applicants Applicants faced with an unlawful rejection or an unreasonable invoice delay have genuine legal options. Internal review under section 8.2 of the EP&A Act allows a council to reconsider its own decision. Supported by clear written submissions identifying why the rejection was not authorised by the EP&A Reg, this process can produce a faster and less costly resolution than litigation — particularly where the council's position appears to rest on a misreading of the application rather than a deliberate strategy. Judicial review is available in Class 4 of the LEC where a jurisdictional error can be established. Depending on the circumstances, an applicant may seek: certiorari to quash the rejection decision; mandamus to compel the council to accept the application and issue an invoice; and declaratory relief confirming that the rejection was unlawful. If your DA or modification application has been rejected on questionable grounds, rejected outside the 14-day window, or if an invoice has not been issued within a reasonable period, we recommend seeking legal advice without delay. The consequences of inaction — including exposure to changed planning controls — can be irreversible. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Part 1: The Law of Private Nuisance in NSW What is Private Nuisance? Private nuisance is a common law tort that protects landowners from substantial and unreasonable interference with their use and enjoyment of land. Unlike public nuisance — which affects the broader community — private nuisance is concerned with protecting the rights of individual landowners against interference caused by neighbouring activities. The tort does not require any physical entry onto the plaintiff's land. Interference caused by noise, vibration, dust, fumes, noxious odours, or prolonged obstruction of access can all found a nuisance claim, provided the interference is sufficiently serious. At its core, private nuisance seeks to balance two competing interests: the right of a landowner to enjoy their property without undue disturbance, and the freedom of a neighbouring landowner to use their land for legitimate purposes. Key Elements of a Private Nuisance Claim To succeed in a claim for private nuisance, a plaintiff must establish two key elements. First, there must be a substantial interference with the plaintiff's ordinary use and enjoyment of their land. Trivial or fleeting disruptions will not meet this threshold. The interference must be something that a person of ordinary habits and sensibilities, taking into account the surrounding environment and circumstances would find genuinely disruptive to their normal use of property. Second, that interference must be attributable to the defendant's use of land or activities that affect the plaintiff's land. The concept of 'substantial interference' is assessed objectively, having regard to the locality in which the land is situated and the reasonable expectations of persons using land in that area. Courts will consider the nature, duration, frequency, and intensity of the interference when determining whether it crosses the necessary threshold. A person who operates a business in Sydney's CBD, for example, must tolerate a greater degree of noise and disruption from nearby commercial activities than a homeowner in a quiet suburban street. How Private Nuisance Differs from Negligence Private nuisance is frequently conflated with the tort of negligence, but the two are conceptually and practically distinct. In negligence, the central question is whether the defendant failed to exercise reasonable care — the focus is on the defendant's conduct. In private nuisance, the focus is on the nature of the interference with the plaintiff's land, not the manner in which the defendant behaved. A defendant who has exercised all reasonable care and skill, and who cannot be criticised for the way in which it conducted its activities, may nonetheless be liable in private nuisance if the interference with the plaintiff's land is found to be unreasonable. This distinction has significant practical consequences for plaintiffs. It means that landowners and business operators who suffer interference with their properties are not required to identify and prove a specific act of carelessness on the part of the defendant. The question is whether the interference itself was unreasonable — and whether the defendant can demonstrate a lawful justification for it. The Locality Principle NSW courts apply a locality principle in assessing private nuisance claims. The reasonable expectations of ordinary landowners differ depending on whether property is located in a quiet residential area, a busy commercial precinct, or an established industrial zone. The standard applied is that of a person of ordinary habits and sensibilities living in the relevant locality, not an unusually sensitive plaintiff whose discomfort results from a pre-existing vulnerability. Defences Available to Defendants Several defences may be available to a defendant in a private nuisance claim. The most commonly invoked — particularly in the context of public infrastructure — is the defence of statutory authority. Where legislation authorises a public authority to carry out works that would otherwise constitute a nuisance, the authority may escape liability on the basis that the interference was an inevitable consequence of exercising its statutory powers. A common example is roadworks where a statutory authority, typically a Council is authorized by legislation to carry out roadworks that may impact on private land. However, the defence is not unlimited. To succeed, the defendant must establish both that the statutory power authorised the relevant interference and that the power was exercised in a manner that reasonably minimised the impact on affected landowners. A statutory power to build, without more, does not authorise every form of disruption that results from the way in which construction is carried out. Other recognised defences include prescription — where the nuisance has continued openly for 20 years without objection — and consent. These defences are narrowly applied and will rarely excuse substantial ongoing interference. Remedies for Successful Plaintiffs A successful plaintiff in a private nuisance action may seek two principal forms of relief. Damages may be awarded to compensate for losses suffered as a result of the interference, including loss of use and enjoyment of land, diminution in property value, and losses to a business operated from the affected premises. In some cases, consequential economic losses arising from the interference may also be recoverable. An injunction may be available to restrain the defendant from continuing the nuisance, though courts exercise discretion in granting injunctive relief and will consider whether damages would be an adequate remedy and where the balance of convenience lies. Why Private Nuisance Matters for NSW Landowners Private nuisance remains one of the most valuable legal tools available to NSW landowners and business operators who suffer interference with their properties. It does not require proof that the defendant was careless. It does not require physical entry onto the plaintiff's land. And it is not dependent on any specific statutory compensation scheme. This combination of features makes private nuisance particularly relevant for those affected by large-scale construction projects, infrastructure works, and industrial or commercial activities in proximity to their premises. The High Court's decision in Hunt Leather v Transport for NSW [2025] HCA 53 has confirmed and clarified the legal principles that govern such claims — and in doing so, has strengthened the position of aggrieved landowners considerably. Part 2: Hunt Leather v Transport for NSW [2025] HCA 53 — Case Summary Background and Facts The case arose from the construction of the Sydney Light Rail project — a major infrastructure undertaking in the Sydney CBD, connecting Circular Quay with Randwick and Kensington. Transport for NSW ( TfNSW ) was the statutory authority responsible for the design and delivery of the project. The plaintiffs, including Hunt Leather Pty Ltd, were proprietors of businesses located along the construction route. They brought representative proceedings seeking damages against TfNSW in private nuisance, alleging that TfNSW's construction activities caused substantial interference with their businesses through noise, dust, vibrations, and impediments to access. The central complaint was not merely that construction was disruptive, but that it extended far beyond the timeframes set out in TfNSW's Initial Delivery Program ( IDP ) — the document that notified affected businesses of the anticipated duration of construction in each stage or 'fee zone.' The delays were substantially caused by the unexpected discovery of underground utilities along the construction route, which had not been identified or accounted for when the IDP was prepared. The Trial Decision At first instance in the NSW Supreme Court, the trial judge found TfNSW liable in private nuisance. The judge held that the delays which caused construction to extend beyond the IDP periods amounted to unreasonable interference with the plaintiffs' enjoyment of their properties. Critically, the trial judge rejected TfNSW's submission that it had exercised reasonable care in planning the works and that this was sufficient to defeat the claim. The judge accepted that reasonableness in nuisance is assessed by reference to the nature of the interference — not the conduct of the defendant. The NSW Court of Appeal TfNSW appealed, and the NSW Court of Appeal overturned the trial judge's findings. The Court of Appeal concluded that the plaintiffs had failed to establish that the interference was unreasonable. In the Court's view, the IDP could not be treated as a reliable benchmark for assessing the reasonableness of the interference, because it made no allowance for contingencies such as inclement weather or the discovery of underground utilities. The Court also held that the plaintiffs had failed to establish what pre-construction investigations TfNSW could reasonably have undertaken, whether those investigations would have been feasible, how long they would have taken, and whether they too might have constituted a substantial interference with the plaintiffs' land. In the absence of that evidence, the plaintiffs could not demonstrate that the construction exceeded a reasonable timeframe. The Court of Appeal went further, stating that it could not be the law that construction authorised by statute becomes actionable nuisance simply because it takes longer than scheduled. This observation reflected significant judicial caution about the prospect of imposing nuisance liability on public infrastructure projects that experience ordinary construction delays. The High Court Decision The High Court allowed the plaintiffs' appeal and upheld the trial judge's finding. In doing so, the Court provided the most authoritative and comprehensive statement of the principles governing private nuisance to emerge from an Australian appellate court in many years. The lead judgment was delivered by Justices Gordon and Edelman, with the Chief Justice and other members of the Court providing separate concurring judgments. Substantial Interference — The starting point for any nuisance claim is whether there has been a substantial interference with the plaintiff's ordinary enjoyment of land. This threshold must be established by the plaintiff and is assessed objectively by reference to the locality and the reasonable expectations of persons using land in that area. The High Court confirmed that this element was clearly established on the facts: the prolonged occupation of fee zones, far beyond what was contemplated in the IDP, plainly constituted a substantial interference with the plaintiffs' use and enjoyment of their properties. Common and Ordinary Use — Once substantial interference is established, the onus shifts to the defendant to justify it. The first question is whether the defendant's use of land was 'common and ordinary' for that locality. This is assessed with regard to the objectively reasonable expectations for land use in the relevant area. The Court emphasised that 'common and ordinary' does not mean 'performed with reasonable care.' The inquiry is about the nature of the use itself — whether it is the kind of use that landowners in that locality could reasonably expect from their neighbours — not about the standard of care with which it is carried out. Conveniently Done — Even if a defendant's use of land is found to be common and ordinary, it may still constitute nuisance unless the defendant can establish that the interference was 'conveniently done.' This test requires the defendant to demonstrate that it took reasonable steps to minimise the extent of the interference with the plaintiff's enjoyment of land. As Justices Gordon and Edelman explained, this requires consideration not merely of the convenience of the defendant, but also the convenience of the plaintiff. A defendant cannot point to its own operational preferences, financial constraints, or project management decisions to justify an extended and substantial interference with a neighbouring landowner's use of their property. Burden of Proof — The High Court confirmed the allocation of the burden of proof with clarity. The plaintiff bears the legal onus of establishing substantial interference with the common and ordinary use of their land. Once that is established, the onus shifts to the defendant to prove — by way of defence — that its use of land was common and ordinary and was conveniently done. The plaintiff also has an evidentiary onus to identify the respects in which the defendant's conduct was not conveniently done, but is not required to prove a detailed counterfactual about what the defendant could have done differently and with what result. No Counterfactual Required — One of the most important aspects of the High Court's decision is its rejection of the Court of Appeal's finding that the plaintiffs were required to establish what steps TfNSW could and should have taken prior to and during construction to reduce the interference, and to prove that those steps would have made a material difference. The High Court held that this requirement imposed an unrealistic and disproportionate evidential burden on plaintiffs who are unlikely to have access to the defendant's internal planning records, operational data, and project management decisions. Statutory Authority Defence TfNSW argued that it was immune from liability on the basis that the Sydney Light Rail was authorised by legislation. The High Court upheld the Supreme Courts' rejection of this defence. The Court confirmed that statutory authority requires the defendant to establish that the interference was an inevitable consequence of the exercise of the statutory power — not merely that the project as a whole was authorised by statute. Because the prolonged delays that caused the interference resulted from TfNSW's own planning decisions and choices, rather than from the inherent nature of the authorised works, the interference was not inevitable. The statutory authority defence therefore failed. Section 43A of the Civil Liability Act 2002 (NSW) TfNSW also relied on s 43A of the Civil Liability Act 2002 (NSW), which attenuates the standard of care applicable to public authorities exercising special statutory powers. The High Court unanimously confirmed that s 43A does not operate as a standalone defence, but rather adjusts the applicable standard of care. More importantly, the Court held that s 43A did not apply on the facts because the planning and procurement of the project did not involve the exercise of a 'special statutory power' within the meaning of the provision. Outcome Although the Justices reached different conclusions on the question of whether TfNSW's use of land was 'common and ordinary,' they were unanimous in finding that TfNSW's construction was not 'conveniently done.' TfNSW was accordingly held liable to the plaintiffs in private nuisance, and the trial judge's award of damages was reinstated. Part 3: Implications for Private Nuisance Law in NSW Nuisance and Negligence Are Distinct The High Court's most enduring contribution in Hunt Leather is the unequivocal confirmation that private nuisance and negligence are distinct torts governed by different principles. For plaintiffs, this is of profound practical significance. A landowner or business operator who suffers substantial interference with the use and enjoyment of their property is not required to prove that the interfering party was careless, that a duty of care was owed, or that the defendant breached any applicable standard of reasonable conduct. The question in nuisance is whether the interference itself was unreasonable — not whether the defendant's behaviour was unreasonable. This distinction opens the door to liability even where the defendant has done everything that could reasonably be expected of a careful and diligent operator. A Stronger Position for Affected Landowners For NSW landowners and business operators, Hunt Leather provides a clearer and more accessible legal framework for pursuing private nuisance claims arising from construction and infrastructure works. The rejection of the counterfactual requirement — which would have compelled plaintiffs to mount a detailed expert case about how the defendant's project planning should have been conducted — removes a significant practical obstacle. Affected parties need only identify the respects in which the defendant's use of land was not conveniently done. Once that evidentiary case is made, the burden falls squarely on the defendant to justify the interference. This is a more workable framework for landowners and business operators who will often lack access to the defendant's internal planning documents, programming schedules, and operational decision-making. It recognises that the plaintiff is not in a position to know the full detail of how the defendant managed its project. Obligations for Statutory Authorities and Project Proponents The decision carries important and practical implications for statutory authorities responsible for infrastructure and construction projects, as well as for their contractors and project managers. The mere fact that works are authorised by statute will not protect an authority from liability in private nuisance. To successfully invoke the statutory authority defence, the authority must demonstrate that the interference with neighbouring landowners was an inevitable consequence of exercising its statutory powers — and that those powers were exercised diligently and expediently and with proper consideration for the interests of affected parties. Where delays and disruptions result from the authority's own planning choices — inadequate pre-construction investigations, unrealistic programming or poor risk management — the statutory authority defence will not provide protection. Authorities and contractors must invest seriously in thorough pre-construction investigations, realistic and contingency-aware programming, and active management of construction impacts on neighbouring properties and businesses. Where extended works or delays are unavoidable, authorities should be in a position to demonstrate the specific steps taken to minimise the impact on affected parties. The 'Conveniently Done' Standard The High Court's articulation of the 'conveniently done' standard will be a focal point of future private nuisance litigation. The test is a demanding one. It requires defendants to demonstrate not merely that their chosen approach to construction was operationally convenient or cost-effective for them, but that it gave proper and genuine consideration to the impact on neighbouring landowners. The interests of the plaintiff must be weighed alongside the interests of the defendant in assessing whether the interference was conveniently done. In practice, this means that authorities and project proponents should document their impact mitigation efforts from the earliest stages of a project. Evidence of proactive engagement with affected businesses, meaningful adjustment of construction sequences to reduce impacts, and genuine consideration of alternative approaches will all be relevant to establishing that the interference was conveniently done. Defendants who cannot point to such measures will face significant exposure. Conclusion Hunt Leather v Transport for NSW [2025] HCA 53 is the most significant development in the law of private nuisance in Australia in recent decades. By authoritatively clarifying the framework for establishing and defending nuisance claims, and by firmly distinguishing the tort from negligence, the High Court has provided both plaintiffs and defendants with a clearer understanding of their legal rights and obligations. For landowners and business operators in NSW, the decision confirms that private nuisance is a robust and accessible legal remedy — one that provides genuine protection where the use and enjoyment of land is substantially and unjustifiably disrupted by the activities of others. For statutory authorities, infrastructure proponents, and their contractors, it is a clear signal that thorough planning, realistic programming, and genuine impact mitigation are not merely good practice — they are legal imperatives. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Introduction Until recently, uncertainty existed around whether a council's rejection of a development application, could be appealed to the NSW Land and Environment Court ( LEC ). That uncertainty was resolved by the decision in Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42 (Johnson Property Group) in which the LEC held that there is no right of appeal against a council's decision to reject a development application. There is a very big difference between a refusal to accept a development application and determination of that development application by way of refusal. The decision in Johnson Property Group explore this the critical distinction between procedural "rejection" and substantive "determination." The Legislative Framework The EPA Act appeal structure Section 8.1 of the Environmental Planning and Assessment Act ( EPA Act ) defines "appeal" as referring to appeals to the LEC under Divisions 8.3, 8.4, 8.5, and 8.6. This definition is important because it confines the scope of appellate rights to those expressly provided within these divisions in the EPA Act. Section 8.6: The gateway provision Section 8.6(1) operates as the gateway provision for all appeal rights within Division 8.3, providing that: "A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is ( if this Division so provides ) subject to appeal to the Court under this Division." [our emphasis] For this provision to confer a right of appeal, three essential conditions must be satisfied: There must be a decision of a consent authority under Part 4. That decision must relate to a development consent or an application for development consent. The Division must expressly provide a right to appeal. The critical phrase "if this Division so provides” in s 8.6 (1) makes it clear that for appeal rights to exist, they must be found somewhere in Division 8.3. Section 8.6(2) provides that "a decision subject to appeal includes a decision made after a review under Division 8.2." Johnson Property Group clarified that this subsection does not independently create appeal rights for all decisions subject to internal review. Instead, it operates to extend existing appeal rights to decisions made on review. Power to reject development application Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EPA Reg ) grants councils a discretionary power to reject a development application within 14 days of receiving it. The grounds for rejection are specified in section 39(1) of the EPA Reg and include circumstances where the development application: Is illegible or unclear as to the development being sought. Does not contain required information on documents specified in the Approved Form. Seeks consent for development that is prohibited. Is substantially the same as a development application previously refused and circumstances have not changed. Critically, section 39(2) of the EPA Reg provides that an application "is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review." Internal Review Rights Section 244 of the EPA Reg provides for an internal review of a decision to reject a development application. The application for review must be made within 14 days of receiving written notice of the council's rejection decision. This internal review mechanism allows the council to reconsider its decision administratively, but it does not confer a right of appeal to the LEC. Section 8.2(1)(c) of the EPA Act specifically provides for review of "a decision of a consent authority to reject and not determine an application for development consent." This express reference to “rejection” reinforces the statutory distinction between rejection and determination of a development application. There matters were considered by the LEC in Johnson Property Group. The factual background The Johnson case arose from straightforward but instructive circumstances. The applicant lodged a development application for the construction of cycleways and intersection improvement works. The works were to be located on both privately held land and public road reserves. The applicant provided owner's consent for all privately held land within the site. However, it did not provide owner's consent for the public roads, which were owned by the Council. On 9 October 2019, the Council rejected the development application on the sole basis that owner's consent had not been provided for all land to which the development application related. The applicant sought internal review under section 8.2(1)(c), which the Council refused. The applicant then commenced class 1 appeal proceedings in the LEC, seeking an order that the Council accept, assess and determine the development application. The applicant's arguments The applicant advanced two primary arguments in support of its appeal right: First, the applicant contended that section 8.6(2) created an independent right of appeal. The rejection decision was subject to internal review under section 8.2(1)(c). Section 8.6(2) expressly states that "a decision subject to appeal includes a decision made after a review under Division 8.2"; therefore, any decision made on review must be appellable. Second, the applicant argued that section 8.7(1) applied because the rejection of the development application constituted a "determination” of the application within the meaning of that section. The applicant submitted there was no warrant in the statutory language to draw a meaningful distinction between "decision" and "determination" such that rejections would be excluded from the right to appeal. The applicant also relied heavily on the earlier decision of Parkes v Byron Shire Council (2003) 129 LGERA 156 ( Parkes ), in which Lloyd J held that a rejection decision attracted a right of appeal. The applicant acknowledged that the statutory provisions had changed since Parkes, but submitted that the amendments only reinforced the position arrived at in that case. Additionally, the applicant argued that even if there was no appeal right, the Council had acted beyond its power in rejecting the development application. The argument was that because owner's consent had been provided for some (but not all) of the land, and because the missing consent related to land owned by the Council itself, the development application should have been assessed. The applicant noted that if the development application had been assessed and determined, the Court could have granted the missing owner's consent under section 39(2) of the Land and Environment Court Act 1979 during any subsequent class 1 appeal. The Council's response The Council's primary submission was straightforward: on a proper construction of sections 8.6(1) and 8.7(1) of the EPA Act, appeal rights are limited to "determinations" under section 4.16, not to "decisions" to reject. This distinction is critical because: A determination is made pursuant to section 4.16 to either refuse or approve a development application following assessment on the merits. A rejection is a procedural decision that operates such that the development application is taken never to have been made s 39 (2) EPA Reg. The Council submitted that this legislative intent to limit appeals to determinations is evident from the different language used throughout the EPA Act: Division 4.3 consistently uses the term "determination" with respect to the final substantive decision of the consent authority after considering the merits of an application. Division 8.2 (reviews) makes a clear distinction between determinations that are subject to review and decisions that are subject to review—rejection is referred to as a "decision," while approval or refusal is referred to as a "determination". Division 8.3 (appeals), while using "decisions" in headings, limits substantive appeal rights to determinations as specified in section 8.7(1). Regarding section 8.6(2), the Council argued that this provision does not independently confer appeal rights for all decisions made on review. Rather, it operates to clarify that where an appeal right exists in relation to a particular type of decision, that right continues to apply even if the decision has been subject to internal review. In other words, it extends existing appeal rights to reviewed decisions; it does not create new appeal rights. The Council also contended that the decision in Parkes was wrongly decided and should not be followed, as it failed to properly analyse the statutory scheme and relied primarily on the Court's powers under section 39(2) of the LEC Act without first establishing that an appeal right existed. Does section 8.6 confer an appeal right? Justice Duggan undertook a careful and systematic analysis of the statutory provisions, ultimately concluding that there is no right of appeal against the rejection of a development application. Her Honour began by examining whether the rejection decision satisfied the three requirements of section 8.6(1): Requirement 1: A decision under Part 4 The Court found this requirement was satisfied. The power to reject a development application derives from s 39(1) of the EPA Reg (then cl 51 of the Environmental Planning and Assessment Regulation 2000 ), which is made pursuant to section 4.12 of the EPA Act (which governs applications for development consent). The decision to reject is therefore a decision made under Part 4. This construction was reinforced by section 8.2(1)(c), which expressly provides for review of rejection decisions and describes them as decisions under Part 4. Requirement 2: Relating to an application for development consent This requirement was also satisfied. Section 8.6(1) refers to decisions "in relation to an application for development consent," which is broader than the defined term "development application." The rejection of a development application clearly relates to an application for development consent, even though it prevents that application from being determined. Requirement 3: The Division must provide for the appeal This is where the rejection decision fell outside the scope of section 8.6. The phrase "if this Division so provides" makes clear that section 8.6(1) does not itself create appeal rights; it merely sets the preconditions. The actual appeal rights must be found elsewhere in Division 8.3. Her Honour then considered whether section 8.6(2) could supply the missing appeal right and concluded it could not, for three reasons: The definitional nature of the provision : The use of the word "includes" indicates that section 8.6(2) operates to define or expand the scope of decisions covered by section 8.6(1), rather than to independently confer appeal rights. It clarifies that where an appeal right exists, it extends to decisions made on review. Consistency with the Division's structure : Sections 8.7, 8.8, and 8.9 each expressly confer appeal rights using phrases like "may appeal to the Court against the determination." Section 8.6(2) contains no such express language, indicating it serves a different function. The operation of section 8.6(3) : This subsection excludes certain decisions from appeal, further indicating that section 8.6 as a whole operates to define the scope of appeal rights conferred elsewhere, not to create independent rights. Accordingly, section 8.6 does not provide a right of appeal from rejection decisions. Does section 8.7(1) confer an appeal right? Justice Duggan then turned to section 8.7(1), which provides that an applicant "who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination." The critical question was whether "determination" includes a decision to reject a development application. Her Honour concluded it does not, for several reasons. Consistent statutory usage : The term "determination" is used consistently throughout the EPA Act to refer to a decision made pursuant to section 4.16—that is, a decision to approve (with or without conditions) or refuse consent. While "determination" is not formally defined, statutory interpretation principles require that a word be given a consistent meaning where it is used repeatedly in the same Act. Section 8.7(2)'s expansion : Section 8.7(2) expands the definition of "determination" to include certain post-consent decisions. This expansion reinforces that the core meaning relates to section 4.16 decisions, with extensions only where expressly provided. The language of section 8.2(1)(c) : This provision, which establishes the internal review right for rejections, refers to "a decision of a consent authority to reject and not determine an application for development consent." The express juxtaposition of "reject" with "not determine" strongly suggests that rejection is not considered a determination. Section 39(1) as context : While s 39(2) of the EPA Reg (then cl 51(3)) refers to the "determination to reject," this usage must be understood in context. The Regulation uses "determination" colloquially to mean "decision," not in the technical sense used throughout the EPA Act. This isolated usage in subordinate legislation cannot override the consistent statutory usage in the primary Act. Her Honour therefore concluded that section 8.7(1) is limited to appeals against determinations under section 4.16 (approval or refusal) and does not extend to decisions to reject a development application. The Court's conclusion Justice Duggan concluded that the applicant did not have a right of appeal against the Council's rejection of its development application. Accordingly, the appeal was dismissed. Her Honour noted that the applicant had also raised arguments about whether the Council had power to reject the development application in the particular circumstances of the case (where private landowners' consent was provided but not the Council's consent as road owner). However, as these submissions did not relate to the separate question as formulated, and as they might fall for consideration in any judicial review proceedings, Justice Duggan declined to determine them. This observation is significant: it leaves open the possibility that a council's exercise of the power to reject in certain circumstances might be challengeable through class 4 proceedings (judicial review), even though class 1 appeal rights do not exist. Key Takeaways No appeal right : section 8.7(1) of the EPA Act is limited to appeals against "determinations" under section 4.16 (approval or refusal), and does not extend to "decisions" to reject under s 39(1) of the EPA Reg. Section 8.6(2) does not assist : This provision extends existing appeal rights to decisions on review; it does not create independent appeal rights for all reviewable decisions. Internal review only : The only statutory recourse from rejection is internal review under section 8.2(1)(c), which must be sought within 14 days. Judicial review theoretically available : Class 4 proceedings remain available in cases of jurisdictional error or unreasonableness. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
This article examines the legal framework governing conditions of consent in NSW, explores key case law, and explains how and when conditions may be challenged through Class 1 or Class 4 proceedings. Statutory Basis for Conditions of Consent The power to impose conditions in a development consent arises under section 4.17 of the Environmental Planning and Assessment Act 1979 ( EPA Act ). Section 4.17 prescribes when a condition of consent may be imposed. For example, s.4.17(d) prescribes that a condition may be imposed that limits the period during which development may be carried out. The grant of development consent is the exercise of a statutory power, which means conditions of consent must: be authorised by the EPA Act or another applicable planning instrument; and comply with established common law principles governing validity. Consent authorities must therefore ensure that each condition falls within the scope of the statutory power authorizing the condition. The Newbury Principles and Their Application in NSW In addition, the condition must be reasonable. The reasonableness, and therefore validity of consent conditions is assessed by reference to the principles established in Newbury District Council v Secretary of State for the Environment [1981] AC 578. These principles have been consistently adopted by Australian courts, including the NSW Land and Environment Court. To be considered reasonable, and valid, a condition of consent must: be imposed for a proper planning purpose; fairly and reasonably relate to the development the subject of the consent; and not be so unreasonable that no reasonable planning authority would impose it. These principles are now reflected in section 4.17 of the EPA Act and remain central to the judicial assessment of consent conditions in NSW. Key Takeaways for Developers Consent authorities do not have unlimited discretion to impose conditions of consent. Conditions must remain tethered to legislation and planning controls. Conditions must be reasonable. Authorisation and the Limits of Planning Power A condition will be invalid if it is not authorised by statute, even if it appears reasonable or desirable. The Land and Environment Court has repeatedly emphasised that conditions cannot be used to achieve outcomes that fall outside the planning system. In Kindimindi Investments Pty Ltd v Lane Cove Council [2009] NSWLEC 114, the Court confirmed that councils cannot rely on s 4.17 to impose obligations more properly dealt with through private law mechanisms. Conditions requiring applicants to enter into restrictive covenants or indemnify councils are common examples of overreach. The case illustrates that planning conditions must regulate land use impacts—not private legal relationships. Nexus: The Relationship Between Conditions and Development A critical element of validity is whether the condition sufficiently relates to the development as approved. There must be a clear planning nexus between the impacts of the development and the obligation imposed. In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, the NSW Court of Appeal held that conditions must address planning consequences of the development itself, rather than broader policy objectives or unrelated outcomes. More recently, Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWLEC 121 reinforced that councils cannot impose conditions aimed at regulating hypothetical future development or alternative development scenarios. Key Takeaways for Developers Conditions must respond to impacts of the approved DA. “Futureproofing” conditions are vulnerable. Speculative controls are likely invalid. Reasonableness and Proportionality Even where a condition serves a planning purpose and has a nexus to the development, it may still be invalid if it is unreasonable or disproportionate. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the Court invalidated conditions requiring extensive off-site works that were disproportionate to the development’s impacts. The decision confirms that conditions must be scaled to impact, not used to secure unrelated infrastructure upgrades. The threshold is high, but NSW courts will intervene where the burden imposed is excessive. Certainty and Enforceability of Conditions Conditions must also be drafted with sufficient clarity and precision to be enforceable. Conditions that are vague, uncertain, or defer essential matters to future discretion are vulnerable to challenge. A consent authority is tasked with assessing a development application and determining the application either by (i) granting consent or (ii) refusing the application: s.4.16(1) EPA Act. There is no third option and conditions of consent that introduce ambiguity or have the consequence of deferring the consent authority’s determination to a later date will be invalid. In Gales Holdings Pty Ltd v Tweed Shire Council [2021] NSWLEC 163, the Court held that conditions lacking objective standards or measurable criteria may be invalid for uncertainty. Key Takeaways for Developers Conditions must be clear and enforceable. Open-ended or vague obligations increase risk. Uncertainty may invalidate a condition. Challenging Conditions: Class 1 vs Class 4 Proceedings The appropriate pathway for challenging a condition of consent depends on whether the issue is one of planning merit or legal validity. Class 1 Proceedings – Merits Review Class 1 proceedings in the Land and Environment Court involve a merits-based re-determination of the development application. These proceedings are appropriate where: the condition is excessive but legally permissible; the developer seeks alternative or amended conditions; or the issue concerns planning judgment rather than legality. In Class 1 appeals, the Court has broad discretion to impose new or revised conditions. Class 4 Proceedings – Judicial Review Class 4 proceedings are confined to judicial review and focus on whether the condition is lawful. They are appropriate where a condition: exceeds statutory power; lacks a planning nexus; is unreasonable in the Newbury sense; or is uncertain or unenforceable. The Court does not re-determine the development application in Class 4 proceedings. Severance and Risk to the Entire Consent If a condition is found to be invalid, it may sometimes be severed from the consent, leaving the remainder of the consent intact. However, this is not always possible. In T ransport for NSW v Parramatta City Council [2020] NSWCA 139, the NSW Court of Appeal confirmed that where an invalid condition is integral to the grant of consent, its invalidity may render the entire consent invalid. This risk underscores the importance of careful strategic assessment and competent legal advice before commencing proceedings. Conclusion Conditions of development consent are a powerful planning tool, but they must operate within clearly defined legal limits. NSW courts have consistently reinforced that conditions must be authorised by statute, connected to the approved development, reasonable in scope, and drafted with certainty. Where a condition goes beyond those limits, early legal advice is essential to determine whether the condition should be challenged through Class 1 merits review or Class 4 judicial review, and to manage the risk to the underlying consent.
Local councils in NSW have statutory authority to close public roads, but affected landowners and stakeholders have specific rights under the law. This video provides a clear explanation of: The road closure process Key legislative requirements Appeal pathways through the Land and Environment Court
We explore this topic first by unpacking some fundamental principles and then by reviewing recent cases in which these issues have been examined. Introduction The starting point in understanding the scope of rights granted by an easement must always be the express terms of the easement: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] MCA 45. In the case of a right of carriageway, those terms will typically, but not always, be the standard terms from the Conveyancing Act 1919 which are: The terms are: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. The express terms of the easement extend to the dominant owners and persons authorised by them to pass across the burdened land at all times and for all purposes. However, while the terms of the right of carriageway may be wide in scope, as a general principle an easement should be limited to that which is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement: Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Prospect County Council v Cross (1990) 21 NSWLR 601 per Bryson J at 607-608; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [22]. Right to build must be reasonably necessary. The grant of an easement conveys with it all ancillary rights to the owner of the benefited land that are reasonably necessary for the exercise and enjoyment of that easement. But what is reasonably necessary? Well, it is generally accepted that the owner of the benefited land is entitled to construct a road over the site of a right of carriageway if a road or paving is necessary to use the easement: N ewcomen v Coulson (1877) LR 5 Ch D 133, 143-4 (Jessel MR); Mills v Silver [1991] Ch 271, 286-7 (Dillon LJ); Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565 ; Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251 ; Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 (Handley AJA) at [9] . This is a right of the owner of the benefited land that is ancillary to the right of carriageway. The owner of the benefited land may enter onto the burdened land to do that which is reasonably necessary to make the grant effective – including, in the case of a right of carriageway, not only repairing it but making a road so that there is a serviceable carriageway over which vehicles can pass in poor conditions as well as in good weather. The extent of the rights to do so will turn on what is reasonably necessary in the circumstances for the dominant owner’s enjoyment of its express rights under the easement. Each circumstance is different and merely because what is proposed does not substantially interfere with the servient owner’s rights does not necessarily mean that it is reasonably necessary. In Butler v Muddle (1995) 6 BPR 13,984, at 13,986, Young J noted the “general proposition that a right of way is not the equivalent of ownership”. His Honour then explained (at 13,987, citations omitted): “... it was said that where one had a right of carriageway one could pave so that the wheels of one’s carriage did not sink into the ground. But none of that authority gives any licence to the dominant owner to pave the whole of the right of way. His right is only to pave so much as is reasonably necessary for his enjoyment.” Similarly, Bryson J said in Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 at 16,340: “The [dominant owner’s] right of way does not entitle the [dominant owner] to have the whole of the 6 m strip cleared of any obstruction as if it were a billiard table. The [servient owner] continues to be the owner of [its] land, and may use it in any way and maintain on it any structure if it does not create a real substantial interference with the enjoyment of the right of way. If enough space is left free for passage without any real substantial interference with the right to pass and re-pass, the [dominant owner] cannot insist on more.” From these cases one might conclude that paving so much of the right of way as is reasonably necessary is acceptable, while paving the entire width of the right of way and levelling the land to a billiard table may not. Can the burdened land still be used but it’s owner? Yes, within reason. The owner of the burdened land retains, in respect of the burdened land, all those rights of ownership that are not inconsistent with the exercise by the dominant owner of the rights expressly given or implicitly confirmed by the grant: Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Prospect County Council v Cross (1990) 21 NSWLR 601; Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 per Lord Scott at [54]. This does not mean, however that where the two competing land uses are incompatible, the owner of the benefited land must sacrifice use of the right of carriageway. “… a servient owner’s rights are diminished to the extent that they are inconsistent with reasonable exercise by the dominant owner of its rights.”: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [23]. As Lord Scott said in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 at [54], in terms quoted approvingly by the NSW Court of Appeal in Theunissen v Barter [2025] NSWCA 50 at [132]: “Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice.” Each owner has rights that must be accommodated by the other. This principle was explained by Barrett JA in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [25]: “It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them — the servient owner and the dominant owner — must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. …” What if there are a number of means of enjoying the easement? Where an easement permits the exercise of the rights granted in numerous ways, generally the owner of the benefited land is entitled to choose the manner of its exercise, and even to change that use from time to time. Consider a circumstance where there are multiple points from which access might be had from a right of way into the benefited land. In those circumstances, the owner of the benefited land is entitled to select a reasonable number of points for that access, and even to change those points of access from time to time: Trewin v Felton [2007] NSWSC 851 per Brereton J at [19]; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Chiu v Healey [2003] NSWSC 857; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [24]. Can the owner of the burdened land withhold consent? When building a road over the burdened land, particularly in rural areas, development consent may be required. If the proposed works are being carried out on the burdened land, the consent of the owner of the burdened land to the application for development consent will be required. Without owner’s consent, the development consent cannot be granted: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; 365 ALR 86 . In Kirkjian v Towers (6/7/87 u/r) Waddell CJ in Eq held that the owner of the burdened land could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement. That decision has been followed: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 521-2 ; Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5 para [23] per Giles JA and Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. The owner of the burdened land may withhold its consent to the application for development consent where the proposed works are unlawful or an excessive user of the easement. For commentary on what may constitute excessive user refer below to the case summary of Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. Case law on construction within an easement site The following case summaries help in understanding the principles above. Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 In Burke v Frasers Lorne Mrs Burke and other neighbours enjoyed a right of carriageway over property owned by Frasers Lorne. Frasers Lorne replaced the asphalt on a driveway within the carriageway located on its property with turf. The plaintiffs, including Mrs Burke brought proceedings against Frasers Lorne to reinstate the asphalt driveway. A question arose regarding the right of the owner of the burdened land (Frasers Lorne) to replace the surface material of the driveway on its land. At [27] Brereton J held that, even though the turf driveway still afforded reasonable access to the benefited properties, Frasers Lorne has substituted the asphalt driveway for something which was inferior. Frasers Lorne submitted that the real question was whether the alternative substituted by Frasers Lorne would still afford reasonable access in accordance with the terms of the easement. If it did, then Frasers Lorne had a right to install the alternative, Brereton J held at [28]: “Attractive as this submission so stated is, I am, nonetheless, convinced it is wrong for the following reasons. First, it would be inconsistent with the right of the dominant owner to construct a carriageway on the site of the easement, if, the dominant owner having constructed a carriageway which was not excessive, the servient owner could unilaterally disrupt that carriageway and substitute an inferior one, even though it would still afford reasonable access. The right to construct a carriageway must include, for example, the right to select the contractor who will build it, the right to select the particular form of paving which will be used, and so on. It would make nonsense of this right if the servient owner could then decide that he or she did not like the particular form of paving and substitute an inferior one.” And at [33]: “In my judgment, therefore, and absent any special provision in the grant, a servient owner is not entitled unilaterally to change the surface of the carriageway to an inferior one, or otherwise to disrupt or degrade the surface of the carriageway. To do so would be inconsistent with the rights of the dominant owner to construct a carriageway to the extent reasonably necessary for the proper enjoyment of the grant (so long as the construction is a non-excessive user), and to enjoy access over the carriageway so constructed.” Accordingly, Brereton J concluded that Frasers Lorne had no right to change the surface of the driveway constructed within the carriageway on its land. To do so was inconsistent with the plaintiffs' right to have the constructed driveway over the right of carriageway remain in its current form. Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 In Sertari Pty Ltd v Nirimba , the owner of the burdened land subject to a registered right of carriageway (Sertari), refused to consent to a development application by the owner of the benefited land (Nirimba). Sertari’s consent had become necessary because Nirimba proposed to carry out development on the benefited land to build 236 apartments and underground parking for 351 vehicles. Access to the benefited land was via a driveway and carpark on the burdened land. The proposed development would greatly increase the traffic on the right of carriageway. The terms of the easement placed the whole burden of the maintenance and repair of the driveway on the owner of the burdened land. The trial Judge ordered Sertari to give its consent to the development application. Sertari appealed against that order to the NSW Court of Appeal. The NSW Court of Appeal (Handley AJA with whom Tobias JA and McColl JA agreed) held that the owner of the burdened land can be compelled to consent to a development application by the owner of the benefited land in respect of the burdened land where refusal to provide consent would obstruct the dominant owner in the exercise of its rights under the easement. The servient owner had no lawful reason for refusing its consent. Handley AJA held at [10]: “The servient owner's refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner's rights as a direct physical obstruction.” in Kirkjian v Towers Waddell CJ in Eq held that the owner of the burdened land was bound to grant consent unless there was a "lawful reason" for refusing to do so. There was no such reason in that case because the proposed user of the right of way was not excessive. The right of carriageway was in the following terms: (a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and lessees, employees, customers, patrons, invitees and licensees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to or from the said dominant tenement or any part thereof. (b) The site of the servient tenement shall be maintained and repaired by the registered proprietor thereof, which obligation shall bind his successors in title and assigns." At first instance, Windeyer J held that the words of the grant were clear and since it was a right for all purposes and at all times all persons connected with the proposed residential development were entitled to use the right of carriageway. In these circumstances the question of excessive user, which was essentially one of construction, could not arise. Windeyer J also held (at pghs [5], [37] - [41]) that the physical characteristics of the properties and the activities being conducted on the benefited land at the time of the grant of the easement could not cut down its plain words. Handley AJA at [16] followed the High Court’s decision in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 which required that the Court could only have reference to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the properties but that these provided no basis for reading down the clear and unqualified words of the easement. The easement was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the benefited land with which the right was capable of enjoyment, and persons authorised by them. This meant that the benefit of the easement extended to each and every future owner of the proposed 236 apartment units. The owner of the burdened land submitted that the car park, including the pavement of the burdened land, had not been constructed to carry heavy traffic of this nature and the positive obligation to maintain the easement was likely to prove underly onerous. The traffic once the units were fully occupied would impose a heavy and permanent financial burden on the owner of the burdened land. His Honour Handley AJA held at [18]: “In my judgment this evidence cannot affect the construction of the clear words of the grant. The dominant tenement is very large, the servient tenement is very small, the use is for all purposes, and the whole burden of maintenance and repair is clearly imposed on the servient owner.” And at [20]: “I have already held that the proposed user would not be excessive. The apparently unfair financial burden that the increased use would place on the servient owner would be lawful and in these circumstances the appellant was bound to give its formal consent to the second development application.” The Court of Appeal held that, because the local council was nominated as the party with the power to release, vary or modify the terms of the easement, there was nothing to suggest that the local council could not impose conditions in the development consent that would fairly adjust the financial burdens created by the increased use of the burdened land. Further, it could be appropriate, at some stage, for the local council to modify the registered easement by incorporating the relevant conditions of consent so that those terms appear on the title. FitzGerald v Foxes Lane (NSW) Pty Ltd [2025] NSWCA 212 In FitzGerald v Foxes Lane, the NSW Court of Appeal held that the owner of farmland near Moree in northern New South Wales ( Mr Fitzgerald ) which had the benefit of a registered right of carriageway ( ROC ) over neighbouring farmland, was entitled to undertake work (light grading) on a five metre wide vehicular track along the ROC. The owner of the burdened land ( Foxes Lane ) was restrained from causing crops to be planted or for “tramlines” to be created or maintained within the ROC on the burdened land. The burdened land was previously used for grazing and a track mostly consisting of dirt compacted paths (for vehicle wheels) existed within the ROC. However, from around 2011, Foxes Lane began using the land for cropping. They planted crops across the ROC and employed a system of cultivation involving “tramline” ruts which affected the existing track’s surface. This made it difficult for Mr Fitzgerald to drive over the track and use the ROC. Mr Fitzgerald filed a summons in the NSW Supreme Court seeking injunctive relief concerning Foxes Lane’s farming activities within the ROC and declaratory relief relating to his plan to construct an unsealed crowned road over the existing track. The primary judge substantially rejected Mr Fitzgerald’s claims, holding that Foxes Lane was entitled to use the ROC in any way, including by cropping, provided that there was no substantial interference with Mr Fitgerald’s rights under the ROC. Further, it held that Mr Fitzgerald’s proposed road works were not reasonably necessary in circumstances where he had always been able to pass and repass along the ROC in his farm ute. Some of the issues to be determined on appeal were whether: Foxes Lane’s use of the ROC by cropping constituted a substantial interference with Mr Fitzgerald’s rights; and if so, what relief should issue and, relatedly, whether Mr Fitzgerald was entitled to undertake his proposed roadworks. Substantial interference With respect to interference by the planting of crops within the ROC and the tramlines, Kirk JA (with whom Adamson JA agreed) held at [99] that these amounted to a substantial interference with the use of the ROC. Specifically, the crops obscured the path of the ROC such that it was difficult to see and use and this was found to be a significant interference with the ability of Mr Fitzgerald and his guests to use the ROC. “As noted, whether or not there has been a substantial interference with the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference. There was evidence that the ROC, like other tracks and roads in the area, could become boggy and potentially impassible in wet conditions…That the ROC had such inherent limitations is not an answer to the appellant’s complaints that the respondents’ actions in cropping over the ROC impeded its use by making it more difficult and risky for ordinary nonfarm vehicles, and petrol vehicles (whether used for farming or not), to drive over the ROC… In my view these effects of the respondents’ cropping activities represent a significant interference with the ability of the appellant and his invitees to use the ROC.” And at [115]: “The ROC did not require that the respondents only ever engage in grazing on Lot 10, as though the land use was frozen as at the time the right was created. But in changing use they could not ignore the right held by the dominant owner. As outlined above, the obscuring effect of the respondents’ cropping activities is a significant interference with the ability of the appellant and his invitees to make use of the ROC. The same is true of the increased difficulty and reduced speed of travelling on it, and the impediment placed on using non-farm vehicles or any vehicles using petrol engines. The potential for causing mechanical and physical problems with vehicles is also a factor of some (if lesser) weight. The combination of all such matters involves a substantial interference by the respondents in the rights held by the appellant.” Right to construct within the ROC At [73] Kirk JA restated the long-understood position that the ancillary right to construct a road within a right of carriageway turns on whether doing so was reasonably necessary for the dominant owner’s enjoyment of its express rights under the easement. Kirk JA, held at [69]-[70] that while the context of the ROC might be important, Mr Fitzgerald’s rights to use the ROC ought not to be limited to the use of the track in its current state or limited to the use by an “ordinary farm vehicle”. “There was some suggestion by the respondents that the ROC should be construed to extend to passage only by an “ordinary farm vehicle”, perhaps meaning 4WD vehicles. That issue overlaps with the practical question of the interaction of the parties’ rights in the current circumstances. Insofar as the point is put as a matter of construction it should be rejected. As the High Court said in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [30] , “the term ‘for all purposes’ encompasses all ends sought to be achieved by those using the easement in accordance with its terms” (see also the authorities referred to at [64]). The respondents argued that “the purpose of the grant, assessed from the perspective of a reasonable person in the position of the parties to the grant, would have contemplated passage by ordinary farm vehicles, not a sports car”. However, as the appellant said in reply, the terms of the ROC are not limited to usage by farmers, and even farmers may use vehicles other than “usual farm vehicles”. Accordingly, the submission that the use of the ROC ought to be limited to farm vehicles was rejected. A similar argument was rejected by Habersberger J in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351: [74] One other circumstance that I consider should be taken into account is that the easement in question benefited a rural property. Thus, it must have been contemplated that the easement would be used in the ordinary course of farming activities, should it be needed. This would likely involve the movement of cattle or other stock, the driving of tractors, motorbikes and other machinery and access by car or utility vehicle. I see no reason why this should not also include the occasional large truck or semi-trailer. Trucks are clearly used in farming activities, and occasionally bringing a larger vehicle onto the land is not an unlikely occurrence. In addition, it must have been contemplated at the time that a house might be built on the newly subdivided lot 4. There seems to be no reason, therefore, why the easement of way does not extend to all forms of vehicular traffic and I so find.” With respect to the construction of a road within the ROC, Kirk JA held at [136] that Mr Fitzgerald had not established a sufficiently detailed and clear plan of the road he wished to build and had thus not established the reasonable necessity of building a road over the ROC. However, Kirk JA at [137] held that Mr Fitzgerald was entitled to undertake remediation of the existing track to make it trafficable: “However, the appellant is entitled to undertake remediation to the ROC to even out the tramlines that currently run across it. It is therefore appropriate to declare that the plaintiff may undertake work on a five metre wide vehicular track along the ROC in the nature of light grading or drag bucketing in order to even out the tramlines running across the track. Light grading would encompass the sort of work the appellant has previously undertaken by dragging an implement behind his ute.” Key Takeaways The owner of the benefited land is entitled to construct improvements on the burdened land where this is necessary or convenient for the exercise of the rights conferred by the easement: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 per Handley AJA at [9]. The owner of the benefited land can pave so much of the right of way as is reasonably necessary for its use and enjoyment but not the entirety of the right of way or insist that if be as flat as a billiard table: Butter v Muddle (1995) 6 BPR 13,984; Owners Corp of Stata Plan 42472 v Merala Pty Ltd (1998) 9 BPR 16,377. The right to construct a carriageway must include, for example, the right to select the contractor who will build it, the right to select the particular form of paving which will be used, and so on: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [28]. An owner of burdened land is not entitled to change the surface of the carriageway to an inferior one, or otherwise to disrupt or degrade the surface of the carriageway. To do so would be inconsistent with the rights of the dominant owner to construct a carriageway to the extent reasonably necessary for the proper enjoyment of the grant (so long as the construction is a non-excessive user), and to enjoy access over the carriageway so constructed: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [33]. Where an easement permits the exercise of the rights granted in a number of different ways, generally the owner of the benefited land is entitled to choose the manner of its exercise, and even to change that use from time to time: Trewin v Felton [2007] NSWSC 851 per Brereton J at [19]; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Chiu v Healey [2003] NSWSC 857; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [24]. The owner of burdened land can be required to consent to a development application by the dominant owner in respect of the burdened land where refusal to provide consent would obstruct the dominant owner in the exercise of its rights under the easement: Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. The planting of crops and tramlines across a right of carriageway may constitute a real and substantial interference with the use of the right of carriageway and access across a farm track ought not be limited to 4wd farm vehicles only: Fitzgerald v Foxes Lane (NSW) Pty Ltd [2023] NSWCA 212. Require further assistance? We are often asked to provide advice on complex questions involving easements and ancillary rights. Often resolution of the issues can be a simple matter of engaging in constructive consultation with the parties involved or the local council, or alternatively, bringing the matter before the Court for determination. Disclaimer The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
