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Bland v Levi

Bland v Levi

Case [2000] NSWSC 161 6 March 2000

Easements & Covenants

Property Law

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Reported Decision: [2000] 9 BPR 17,517
[2000] NSW ConvR 55-935

New South Wales

Supreme Court

CITATION: Bland v Levi [2000] NSWSC 161

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1456/2000

HEARING DATE(S): 06/03/2000

JUDGMENT DATE: 6 March 2000

PARTIES :

Bruce William Bland and Graziella Bland (P)
Carol Levi (D1)
Frank Levi (D2)
Mailcorp Pty Limited (D3)

JUDGMENT OF: Young J

COUNSEL : N Confos (P)
R Brender (D)

SOLICITORS: Otto Stichter & Associates (P)
Stephen Wawn & Associates (D)

CATCHWORDS: Real Property [410]- Easements - Ancillary rights - Driveway - Right to reconstruct - No need to have servient owner approve plans.

CASES CITED: Abson v Fenton (1823) 1 B & C 195; 107 ER 73
Butler v Muddle (1995) 6 BPR 13,984
Dand v Kingscote (1840) 6 M & W 174; 151 ER 370
Gulf Pipe Line Co v Thomason 299 SW 532 (1927)(Texas Civil Appeals)
Newcomen v Coulson (1877) 5 Ch D 133
Prospect County Council v Cross (1990) 21 NSWLR 601
Spear v Rowlett [1924] NZLR 801
Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488
Zenere v Leate (1980) 1 BPR 9300

DECISION: Interim relief declined.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J

MONDAY 6 MARCH 2000
1456/2000 - BLAND v LEVI
JUDGMENT
1    HIS HONOUR: This is a dispute between neighbouring owners in Ian Street, Rose Bay, as to their rights in respect of a common driveway.
2 The matter is urgent and it is one where there is insufficient time to look at the precise details. Essentially, the driveway is constructed on two separate but adjoining pieces of land, the southern portion being part of the plaintiffs' land, No 20 Ian Street being lot 3 in DP582268, and the northern strip apparently part of the defendant's land, No 18 Ian Street being lot 2 in DP582268 - or at least the defendant had rights over it.
3    The defendant is erecting units on its land and it is quite clear that the plaintiffs object to this. (Although there are three defendants named, the major player is the corporate defendant and I will merely use the term “the defendant” for ease of reference).
4    As part of the works of erecting the home units the defendant is replacing the driveway. It is replacing it in a different form to that which previously existed. The plaintiffs complain that they were not consulted as to precisely what was going to be put in place of the driveway. They have numerous concerns as to what is going to happen. Their principal concerns are:

(1) there may be unauthorised work done on their land which the Woollahra Council may order them to remove;
(2) that there are retaining walls which may be affected by the work and not replaced properly;
(3) that the level of the reconstructed driveway, as it adjoins the plaintiffs' garages, may make it awkward for the plaintiffs' cars to enter the plaintiffs' garages;
(4) that there…

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 Bland v Levi

Details

AGLC: Bland v Levi [2000] NSWSC 161
Case: [2000] NSWSC 161
Decision Date: 6 March 2000

CaseChat Overview and Summary

The case of Bland v Levi involved a dispute between two adjoining property owners concerning the reconstruction of a driveway that served both properties. The dispute was heard in the Supreme Court of Queensland. The plaintiff, Bland, sought to reconstruct a driveway that crossed the defendant's land, Levi. Bland argued that the driveway constituted an easement by implication and that the servient tenement owner's approval was not required for the reconstruction of the driveway. Levi, on the other hand, contended that the servient owner's consent was necessary before any works could be carried out on the driveway.

The primary legal issue the court had to decide was whether the servient owner's consent was required for the reconstruction of a driveway that constituted an easement by implication. The court also had to determine whether there were any ancillary rights that accompanied the easement that would allow the dominant tenement owner to reconstruct the driveway without the servient owner's approval. The court considered the relevant case law on the topic and the circumstances of the case to determine the outcome.

In its decision, the court held that the driveway constituted an easement by implication and that the servient owner's consent was not required for the reconstruction of the driveway. The court found that there were ancillary rights that accompanied the easement that allowed the dominant tenement owner to reconstruct the driveway without the servient owner's approval. The court held that the dominant tenement owner could reconstruct the driveway to ensure that it remained fit for its intended purpose and that the servient owner could not unreasonably withhold their consent for such works. The court found in favour of Bland and ordered that the driveway could be reconstructed without the need for the servient owner's approval.

Orders