The discretion under s 88K(5) of the Conveyancing Act 1919 (NSW) to depart from the default rule that the applicant pays costs may be exercised by analogy with Calderbank principles, such that a respondent who unreasonably refuses a pre-action offer of compensation may be ordered to pay the applicant's costs. Council approval of a development is sufficient to satisfy the public interest requirement in s 88K(2)(a) and, where the Council has made the easement a condition precedent to development consent, this demonstrates reasonable necessity under s 88K(1).
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