What has happened?
In Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123, the Court of Appeal dismissed a neighbour's attempt to stop a new two-storey house in Casuarina that would overshadow her courtyard. The neighbour tried two routes: judicial review of the development consent, and a court-ordered easement to protect her sunlight. Both failed.
Context
Three lots had been used together as a single residential property and were later sold to different owners. The new owner of two of the lots applied to Tweed Shire Council to replace a garage and pool with a new house. The neighbour objected, relying on a development control plan (DCP) control requiring sunlight to at least 50% of the principal area of private open space for at least two hours in midwinter.
There was confusion in the Council's assessment about whether the "principal area" was just the unroofed part of her courtyard or the whole courtyard. The neighbour argued the Council had compared "apples with oranges" and understated the impact.
The decision
Judicial review. The Court of Appeal held that the neighbour had not proved that the Council failed to consider the DCP control:
A person alleging a failure to consider a mandatory matter bears the burden of proving it.
Errors in an assessment report are not automatically attributed to the final decision-maker. That is particularly so where, as here, no statement of reasons was requested from the Council.
DCP controls are applied flexibly, and a before-and-after comparison of overshadowing was not a mandatory consideration.
Easement. The neighbour also sought an easement under s 88K of the Conveyancing Act 1919 to restrict the development. The Court held that "significant justification" is needed to show that an easement restraining development on a neighbour's land is reasonably necessary, and that test was not met.
How will this affect you?
Neighbours considering a challenge should ask the council for a statement of reasons early. Without one, it is hard to prove what the decision-maker did or did not consider.
DCP controls are guidelines, not rigid rules. Non-compliance alone will not make a consent invalid.
Section 88K easements are not a substitute for a planning challenge, and will rarely be granted to stop a neighbour's approved development.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.