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Antipas v Kutcher

Antipas v Kutcher

Case [2006] NSWLEC 42

Easements & Covenants

Adequate Compensation

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Reported Decision: (2006) 144 LGERA 289

Land and Environment Court

of New South Wales

CITATION: Antipas v Kutcher & Anor [2006] NSWLEC 42

PARTIES:
APPLICANT:
George Antipas
RESPONDENT:
David Kutcher and Rosaline Kutcher

FILE NUMBER(S): 31006 of 2005

CORAM: Lloyd J

KEY ISSUES: Easements :- development consent conditional upon grant of easement - extension or intensification of easement - whether all reasonable attempts to obtain easement have been made - adequate compensation for loss/other disadvantage - appropriate compensation - method of assessment - discretion to grant easement - whether easement reasonably necessary

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s 88K
Land and Environment Court Act 1979 s 40

CASES CITED: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; 98 LGERA 171;
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14638;
Electricity Commission of New South Wales v Arrow (1994) 85 LGERA 418.;
Hannay v Lewis [1998] NSWSC 385;
Joyce v Northern Electric Authority (Qld) (1974) 1 QLCR 171;
Khattar v Wiese [2005] NSWSC 1014;
Longeranong Pty Ltd v Electricity Trust (SA) (1990) 55 SASR 493; 71 LGRA 316;
Marshall v Wollongong City Council [2000] NSWSC 137;
Mitchell v Boutagy (2001) 118 LGERA 249;
Mobbs v The Minister (1960) 5 LGERA 276;
Treygoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15845;
Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485

DATES OF HEARING: 30/01/2006

DATE OF JUDGMENT:
02/08/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Mr G Newport (barrister)
SOLICITORS:
N/A
RESPONDENT:
Mr M C Fraser (barrister)
SOLICITORS:
Shaw Reynolds Lawyers

JUDGMENT:

- 15 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 8 February 2006

LEC No. 31006 of 2005

GEORGE ANTIPAS v DAVID KUTCHER and ROSALINE KUTCHER [2006] NSWLEC 42

JUDGMENT

1 HIS HONOUR: On 23 June 2003, Commissioner Brown determined merit issues relating to the applicant’s development application for the erection of a mixed residential and commercial development at Nos. 35-41A Penshurst Street, Penshurst. The commissioner determined to grant the application pending the grant of an easement for access required by condition 3 which he intended to impose:

Right of Carriageway

The Right of Carriageway over the corner allotment (known as 33 Penshurst Street) shall be increased to 6m in width to allow for a passing bay. The passing bay will be 6m wide with a 2m transition from the 3.05m wide section of the Right of Way (being that section over the allotment known as 33a Penshurst Street).

The Right of Carriageway shall benefit the whole of the subject site, known as 35-41A Penshurst Street.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antipas v Kutcher

Details

AGLC: Antipas v Kutcher and Anor [2006] NSWLEC 42
Case: [2006] NSWLEC 42
Decision Date: 02/08/2006

CaseChat Overview and Summary

In the matter of Antipas v Kutcher, the applicant, George Antipas, sought an order under s 40 of the Land and Environment Court Act 1979 to impose an easement over the adjoining property of the respondents, David and Rosaline Kutcher, to comply with a condition of a development consent. The condition required the creation of a right of carriageway over the respondents’ property to allow access to and from Victoria Avenue. The applicants sought to extend the benefit of an existing right of way, which already burdened the respondents' land, to include another lot on their property.

The court had to determine whether the easement was reasonably necessary for the development to have effect in accordance with the consent, whether all reasonable attempts had been made to obtain the easement, whether the respondents could be adequately compensated, and whether the court should exercise its discretion to grant the easement. The court held that the easement was reasonably necessary, all reasonable attempts had been made to obtain the easement, the respondents could be adequately compensated, and the court should exercise its discretion to grant the easement. The court granted the application and determined the appropriate amount of compensation to be $114,500. The costs of the proceedings were payable by the applicant.

Orders