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Bryant v Crompton

Bryant v Crompton

Case [2024] NSWSC 238 12 March 2024

Adverse Possession

Easements & Covenants

Creation of easements

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bryant v Crompton [2024] NSWSC 238
Hearing dates: 4 – 5 March 2024; further submissions 7 March 2024
Decision date: 12 March 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [52]

Catchwords:
LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where plaintiff owns landlocked rural land — Whether proposed easement over neighbouring property reasonably necessary — Where access possible via a paper road and across plaintiff’s other land

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88K
Evidence Act 1995 (NSW), s 53

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
D & D Corak Investments v Yiasemides (2006) 13 BPR 24,103; [2006] NSWSC 1419
Debbula Pty Ltd v The Owners – Strata Plan 6954 (2003) 12 BPR 22,617; [2003] NSWSC 189
Gordon v Lever (No 2) (2019) 101 NSWLR 427
Grant Alfred King v John Francis Cromwell Carr-
Gregg and Anor [2002] NSWSC 379
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257; [2012] NSWCA 445
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Pasade Holdings Pty Ltd v Council of City of Sydney [2006] NSWSC 299
Re Seaforth Land Sales Pty Ltd’s Land [1976] Qd R 190
Swann v Spiropoulos [2006] NSWSC 860; ANZ Conv R 496
Tout v Johnson [2021] NSWSC 1311
Weissflog v Community Association DP 270159 20 BPR 42,265; [2022] NSWSC 239
Woodland v Manly Municipal Council (2003) 11 BPR 20,903; [2003] NSWSC 392

Texts Cited:
Fiona Burns, ‘Court Imposed Easements in the Australian Torrens System: Are the Rights of Servient Owners Adequately Protected?’ in Lyria Bennett Moses, Brendan Edgeworth and Cathy Sherry, Property and Security: Selected Essays (2010, Lawbook Co)

Category: Principal judgment
Parties: Christopher John Bryant (Plaintiff)
Nicholas Anthony Crompton (First Defendant)
Keryn Michelle Denichilo-Harrison (Second Defendant)
Registrar-General (Third Defendant)
Representation:
Counsel:
M Gunning (Plaintiff)
R Thrift (First and Second Defendants)
Solicitors:
Parker & Kissane (Plaintiff)
Somerville Laundry Lomax (First and Second Defendants)

File Number(s): 2023/00315855

JUDGMENT

The plaintiff, Christopher Bryant, is a cattle farmer and the owner of landlocked rural land at Duck Creek, in northern New South Wales (Lot 101). He also owns two lots that adjoin Lot 101, namely Lots 74 and 104.
Mr Bryant has sought an order granting him a right of carriageway for access from a public road, Duck Creek Road, to Lot 101, across an unsealed track (Option A). That track moves upwards to Lot 101, which is at the top of the hill.
Mr Bryant wants to use the track for the limited uses of transporting firewood (but not harvesting timber), farming cattle (including tending to cattle and transporting cattle), repairing and maintaining fences and bushfire management.
The…

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 Bryant v Crompton

Details

AGLC: Bryant v Crompton [2024] NSWSC 238
Case: [2024] NSWSC 238
Decision Date: 12 March 2024

CaseChat Overview and Summary

The case of Bryant v Crompton involved the plaintiff, Bryant, who sought to establish a right of way over the defendant's land. Bryant owned a parcel of landlocked rural property and sought to create an easement over the neighbouring property owned by Crompton to gain access to the public road. Bryant's property was accessible only via a paper road and a traverse across another piece of land owned by Bryant. Bryant applied under section 88K of the Conveyancing Act 1919 (NSW) to establish a right of carriageway over Crompton's land. Crompton opposed the application, arguing that the easement was not reasonably necessary.

The court was required to determine whether the proposed easement was reasonably necessary for the reasonable enjoyment of Bryant's property. The primary consideration was whether the access Bryant sought was indispensable for the use and enjoyment of the landlocked property, given the alternative access options. The court considered the inconvenience and expense of the alternative access, the nature and extent of the proposed easement, and the benefit it would provide to Bryant.

The court concluded that the easement was reasonably necessary. The alternative access via the paper road and Bryant's other land was deemed inadequate, given the difficulty and impracticality of using this route. The court found that the proposed easement would significantly improve access to the property, making it more usable and enjoyable. The court also considered the minimal impact the easement would have on Crompton's property. The application was therefore granted, and Bryant was entitled to establish the easement over Crompton's land.

Orders