Background
Three residential lots in Casuarina, New South Wales were historically owned together and treated as one landholding. In 2020, the property was split: Leeroy Property Investments Pty Ltd acquired Lots 50 and 51, while Ms. Vashti Conway purchased Lot 52. Ms. Conway’s house features a large external courtyard with a partially roofed area facing the northern boundary, which receives natural light and ventilation from that direction.
Leeroy submitted a development application to demolish a garage and pool on Lot 51 and construct a new two-storey dwelling on that lot. Ms. Conway objected, citing potential overshadowing of her courtyard under Clause 4.3 (Control C4) of the Tweed Development Control Plan, which requires that “sunlight to at least 50% of the principal area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21.” A central dispute emerged regarding whether the “principal area of private open space” (PAPOS) encompassed the entire courtyard including the roofed portion, or only the unroofed area. The Tweed Shire Council ultimately granted development consent.
Ms. Conway sought judicial review of the decision and alternatively applied under section 88K of the Conveyancing Act 1919 (NSW) for the court to impose an easement restricting development on Lot 51 to preserve solar access to Lot 52. The primary judge dismissed both claims, and Ms. Conway appealed.
The Court’s Holding
The Court of Appeal (Kirk JA, McHugh JA, and Free JA) dismissed the appeal unanimously. On the judicial review ground, the court held that the Council did not breach its obligations in considering the development. While accepting that the PAPOS should logically encompass the entire courtyard, the court found no evidence that the decision-maker failed to consider the overshadowing effect on this entire area. Critically, the court held that Control C4 does not mandate a mathematical comparison of overshadowing “before” and “after” the proposed development. Although such a comparison is sensible and natural, it is not a mandatory relevant consideration under the control. The control requires ensuring adequate sunlight post-development, not comparing the development’s impact to baseline conditions. The decision-maker articulated clear and cogent reasons for approving the proposal despite its overshadowing effect, including site constraints, design setbacks exceeding minimums, the east-west orientation of the lots making some overshadowing inevitable, and ecological considerations preventing alternative designs.
On the easement ground, the court confirmed that section 88K requires “reasonable necessity”—a standard significantly higher than mere convenience or desirability—before a court may impose an easement burdening another’s land. Because the proposed easement would substantially restrict future development on Lot 51, significant justification would be required. The court found that Ms. Conway’s arguments, including claims that alternative designs existed and that the easement would reflect long-standing actual use, fell well short of establishing such necessity.
Key Takeaways
- Planning authorities retain discretion to apply development control plan solar access provisions flexibly, considering site constraints, design merit, and practical alternatives, rather than applying them as rigid mathematical formulas.
- A challenger seeking to overturn an administrative decision on the ground that a decision-maker failed to consider a mandatory relevant consideration bears the burden of proof, and absent a formal statement of reasons, it is often difficult to prove that errors in supporting documents were actually adopted by the decision-maker.
- Before-and-after overshadowing comparison, while sensible practice, is not a mandatory legal requirement when assessing development control compliance, particularly in contexts like east-west oriented lots where some overshadowing is inherent and unavoidable.
- Easements restricting development on neighboring land to preserve solar access are difficult to obtain under section 88K, requiring significant justification beyond the mere fact that the applicant’s property would benefit from the restriction.
Why It Matters
This decision clarifies the scope of statutory development control requirements and the limits of judicial intervention in planning decisions. Planning authorities worldwide face similar challenges in applying prescriptive controls to diverse site conditions. The court’s holding that controls need not be applied as rigid mathematical standards—but rather can account for site-specific factors, design quality, and practical constraints—provides planning decision-makers with important flexibility. For objectors challenging approvals, the decision reinforces that without a formal statement of reasons, establishing that a decision-maker failed to consider relevant material is a high bar, and that sensible planning practice (such as before-and-after analysis) does not necessarily translate into legal obligations.
For property owners seeking to protect solar access, the decision substantially narrows the availability of section 88K easements. Rather than serving as a planning enforcement tool for neighboring residents, the easement power remains limited to situations where genuine necessity—not mere preference—supports restricting a neighboring owner’s development rights. The decision reflects the court’s recognition that mandatory easements are serious encumbrances on property that require weighty justification, a principle that will guide future disputes over solar access and neighboring land use conflicts.