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.

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