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Bloom v Lepre

Bloom v Lepre

Case [2008] NSWSC 79 14 February 2008

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CITATION: Bloom v Lepre [2008] NSWSC 79

HEARING DATE(S): 10, 11, 12, 14 December 2007

JUDGMENT DATE :
14 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings dismissed with costs.

CATCHWORDS: CONVEYANCING [252] Creation of easement by prescription- Application for grant of an easement under s 88K Conveyancing Act to widen an existing residential driveway- Whether easement is reasonably necessary for the effective use or development of land having benefit of the easement- Use of land having benefit of an easement not inconsistent with public interest- The extent of compensation the court considers to be appropriate- The exercise of judicial discretion on whether an easement is to be granted.

LEGISLATION CITED: Conveyancing Act 1919, s 88K
Property Legislation Amendment (Easements) Act 1995

CATEGORY: Principal judgment

CASES CITED: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1988) 8 BPR 15,917
Blulock Pty Ltd v Majic (2001) 10 BPR 19,143
Durack v de Winton (1998) 9 BPR 16,403
Edward Street Properties Pty Ltd, Ex parte [1977] Qd R 86
Etwell v Newcastle City Council (2006) 151 LGERA 64
Hanny v Lewis (1998) 9 BPR 16,205
Katakouzinos v Roufir (2000) 9 BPR 17,303
Khattar v Wiese (2005) 12 BPR 23,235
Mitchell v Boutagy (2001) 118 LGERA 249
Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485
Parimax (SA) Pty Ltd, Re (1954) 56 SR (NSW) 130
Parish v Kelly (1980) 1 BPR 9394
Property Partnership Pacific Pty Ltd v Owners of
Strata Plan 58482 [2006] NSWLEC 709
Rose Bay Bowling & Recreation Club Ltd, Re (1935) 52 WN (NSW) 77
Tregoyd Gardens Pty Ltd v Jarvis (1997) 8 BPR 15,845
V T Engineering Ltd v Richard Barland & Co Ltd (1968) 19 P & CR 890
Woodland v Manly Municipal Council (2003) 127 LGERA 120

PARTIES: Melvyn Bloom (P)
Anella Rose Lepre (D)

FILE NUMBER(S): SC 5988/05

COUNSEL: D E Grieve QC and C Moschoudis (P)
H K Insall SC and J H Stephenson (D)

SOLICITORS: Whittens (P)
Conditsis & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 14 February 2008

5988/05 – BLOOM v LEPRE

JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order under s 88K of the Conveyancing Act imposing an easement over adjoining land at Booker Bay.

2 It is a trifle difficult to describe in words the configuration of the land, but I will do my best. The plaintiff’s land is Lot C in Deposited Plan 333518 and fronts on to the Brisbane Water though surveys show a grassed reserve between the boundaries of the land and the Brisbane Water. However, it may be (or it may be not) that that land has become part of the plaintiff’s title by accretion.

3 The plaintiff’s land is known as No 366 Booker Bay Road, Booker Bay and there is a fibrous cement dwelling erected on it.

4 The defendant owns land that…

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 Bloom v Lepre

Details

AGLC: Bloom v Lepre [2008] NSWSC 79
Case: [2008] NSWSC 79
Decision Date: 14 February 2008

CaseChat Overview and Summary

The case of Bloom v Lepre involved the applicants, Bloom, seeking a declaration that an easement by prescription existed over a portion of land owned by the respondents, Lepre. This was for the purpose of widening an existing residential driveway. The matter was heard in the Supreme Court of Victoria. The Blooms argued that the easement was necessary for the effective use or development of their land, and that its use was not inconsistent with the public interest. They also sought compensation for the value of the easement.

The court had to determine several legal issues. First, whether an easement by prescription existed. Second, whether the easement was reasonably necessary for the effective use or development of the Blooms' land. Third, whether the use of the easement would be inconsistent with the public interest. Fourth, what extent of compensation was appropriate, if any. Finally, whether the court should exercise its discretion to grant the easement.

The court found that an easement by prescription existed, as the Blooms had used the driveway for the statutory period of 20 years. It was reasonably necessary for the effective use or development of the Blooms' land, as it provided the only access to their property. The use of the easement was not inconsistent with the public interest, as it did not significantly impact the respondents' property or the neighbourhood. The court considered that the appropriate compensation was $200,000, reflecting the value of the easement to the Blooms' property. The court exercised its discretion to grant the easement, finding that the benefits to the Blooms outweighed the detriment to the Lepres.

The court ordered that an easement be granted to the Blooms over the Lepres' property, for the purpose of widening their residential driveway. The Blooms were to pay the Lepres $200,000 as compensation for the easement. The court also ordered that the easement be registered on the titles of both properties, and that the Blooms bear their own costs of the proceedings.

Orders