Ref. Practice Direction No. 21 (effective 2 February 2004)

(This Practice Direction took effect with the publishing of the ‘Land and Environment Court Rules (Amendment No 9) 2003')

In consequence of the enactment of the substituted s 40 of the Land and Environment Court Act 1979, it is necessary to ensure that the questions—(i) whether an easement over land other than that upon which an approved development is to be sited is reasonably necessary for that development; and (ii) whether the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement; and (iii) whether all reasonable attempts have been made to obtain the easement but have been unsuccessful—be adjudicated upon in proceedings seeking an order pursuant to s 40 of the Act.

An application seeking such an order can only be made “if the Court has determined to grant development consent on an appeal under s 97 of the Environmental Planning and Assessment Act 1979”: s 40(1).

Accordingly, it will be inappropriate for any of the abovementioned questions (requiring adjudication upon an application under s 40 of the Land and Environment Court Act) to be raised at the hearing of the appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979.

It is only if such an appeal is upheld and development consent is granted that an application for an order under s 40 can be made. It is only at this point that those questions become relevant to the exercise of the power conferred by s 40 of the Land and Environment Court Act.