Children’s Playground and Rest Park, 78 Kensington Road, Summer Hill and Underwood Reserve, 9-15 Gower Street, Summer Hill
Proposed Easement for Underground Drainage Pipes
Surfrock Pty Ltd commenced proceedings against Inner West Council in the Land and Environment Court relating to its development application for 17-19 Gower Street, Summer Hill. Surfrock Pty Ltd and Council reached agreement in accordance with section 34(3) of the Land and Environment Court Act, 1979. On 22 February 2017, the Court gave judgement amending the Development Consent for 17-19 Gower Street, Summer Hill.
Surfrock Pty Ltd must obtain a registered easement for drainage benefitting 17-19 Gower Street and burdening the Children’s Playground and Rest Park, 78 Kensington Street, Summer Hill, and Underwood Reserve, 9-15 Gower Street, Summer Hill.
What is an easement?
An easement is a permanent right for the owner of the benefitted land to use the burdened land for the purposes specified in the easement, but for no other purposes. The easement automatically transfers to new owners on sale of the land.
This proposed easement is for underground pipes to take stormwater and other water from 17-19 Gowrie Street to connect to Council’s stormwater pits and stormwater system. There are ancillary rights to install pipes and to do repairs when necessary.
Where will the pipes go?
The underground pipes are shown by red or black lines. Some of the photos show the council stormwater pits and inlets to which the pipes will be connected.
Once work is completed, the pipes will be underground and the use of the parks will be unaffected. Occasionally, repair work may have to be done.
The current owner of the benefited land must pay compensation to Council for the easement. The amount will be determined by a valuer.
What happens if Council doesn't grant the easement?
If Council does not grant the easement, Surfrock Pty Ltd may apply to the Court for the Court to create the easement. Section 88K of the Conveyancing Act, 1919 states 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 property owner must first try to negotiate an easement but if there is no agreement, the Court can order that the easement be created. The Court will also order the owner of the benefitted land to pay compensation to the owner of the burdened land.
If Council does not agree to grant the easement for underground pipes, Surfrock Pty Ltd will apply to the Land and Environment Court for it to order the creation of the easement. In view of the February 2017 agreement between Council and Surfrock Pty Ltd and the consequent judgment, there is little doubt that the Court would grant the easement. It is better for Council to negotiate, rather than leave it to the Court to make the order because, among other things, Council will be better placed to agree the written terms and conditions and to negotiate the amount of compensation to be paid. Council proposes to grant the easement.
Have your say
Submissions on the proposed grant of the easement can be made by completing the form below. Alternatively submissions can be made by:
- mail: PO Box 45 Leichhardt NSW 2040
- delivery: 7-15 Wetherill Street, Leichhardt NSW 2040
The last day to make a submission is Friday 11 August 2017.
All submissions received will be considered before the proposal is confirmed. The decision will be published