Vashti Elizabeth Conway v Leeroy Property Investments Pty Ltd

2025/00234931

LAND & ENVIRONMENT – the appellant, Ms Vashti Elizabeth Conway, is the registered proprietor of Lot 52 within Tweed Shire Council (the Council) – the first respondent, Leeroy Property Investments Pty Ltd (Leeroy), is the registered proprietor of two adjoining parcels, Lot 50 and Lot 51 – on 14 June 2022, the Council granted development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), permitting construction and use of a dwelling on the Leeroy Land – Ms Conway then commenced proceedings alleging that: (1) the consent was invalid and of no effect; (2) upon transfer of Lot 50 and Lot 51 to Leeroy, Lot 51 was burdened by an implied easement in favour of Lot 52 to provide adequate solar access to the principal private open space centrally located in the dwelling constructed on Lot 52 (implied easement); and (3) an order should be made imposing an easement over Lot 51 pursuant to s 88K of the Conveyancing Act 1919 (NSW) in favour of Lot 52 for the same purpose (s 88K easement) – the primary judge dismissed Ms Conway’s claims, finding that: (a) the Council’s decision was not vitiated by jurisdictional error; (b) the claim for an implied easement failed for want of the necessary undertaking by Mr Dunlop on behalf of Leeroy to respect Ms Conway’s solar access and natural ventilation, so as to amount to an in personam exception to indefeasibility; and (c) the claim for an easement under s 88K also failed – whether the primary judge erred in finding that there was no error in how the Council considered the provisions of the Tweed Development Control Plan 2008 - Section A1 – whether the primary judge erred in finding that the Council did not fail to comply with s 4.15(3A) of the EPA Act by failing to consider minimising the impact on Lot 52 – whether the primary judge erred in finding that the decision of the Council was not legally unreasonable – whether the primary judge erred in finding that there was no undertaking made on behalf of Leeroy that it acknowledged and understood to preserve the reasonable flow of air and natural sunlight to Ms Conway – whether the primary judge erred in failing to find that Ms Conway had established an implied easement in respect of the reasonable flow of air and natural sunlight to Lot 52 – whether the primary judge erred in failing to make an order imposing an easement in the terms proposed by Ms Conway.

Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580