Busways Management Pty Ltd v Milner - [2002] NSWSC 969

CITATION: Busways Management Pty Ltd v Milner [2002] NSWSC 969

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4265/02

HEARING DATE(S): 15 & 16 October 2002

JUDGMENT DATE: 16 October 2002

PARTIES :

Busways Management Pty Ltd (P)
Stanley William Milner (D)

JUDGMENT OF: Hamilton J

COUNSEL : V Bedrossian (P)
In person (D)

SOLICITORS: Gells (P)
In person (D)

CATCHWORDS: REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

LEGISLATION CITED: Conveyancing Act 1919 s 88K
Encroachment of Buildings Act 1922 ss 3, 4 & 9
Real Property Act 1900 ss 135B and 135J
Strata Schemes (Freehold Development) Act 1973, s 8(1) & (2) and Schedule 1A item 4

CASES CITED: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 503
Blulock Pty Ltd v Majic (2001) 10 BPR 19,143
Durack v De Winton (1998) 9 BPR 16,403
Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1999) NSW Conv R 55-879
Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757
Milner v Busways Management Pty Ltd [2001] NSWLEC 231
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985

DECISION: Easement granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 16 OCTOBER 2002

4265/02 BUSWAYS MANAGEMENT PTY LTD v STANLEY WILLIAM MILNER

JUDGMENT

1 HIS HONOUR: This is another episode in a long running dispute between owners of adjoining land concerning a very small subject matter. The plaintiff’s land is Lot 1 Deposited Plan 839626 (“Lot 1”) and the defendant’s land is Lot 27 Section 5 Deposited Plan 744 (“Lot 27”). Both lots face Wellington Street, Riverston. On the plaintiff’s land there is erected a large factory complex which is close to the common boundary of Lot 1 and Lot 27. On the defendant’s land there is a brick building which is clear of that boundary. But there is no dispute that the footings of the factory complex encroach to some degree on to the defendant’s land.

2 There was initially some dispute as to the correct location of the boundary and an application for the determination of the position of the boundary was made under s 135B of the Real Property Act 1900 (“the RPA”). That application was determined by the Director of Land Titles in 1999 and a plan showing the determination was forwarded to the parties. That plan indicates, by a star or asterisk, the position at which one footing of the factory complex encroaches by up to 0.12 metres on to the defendant’s land. The surveyor’s report on which the determination is based notes: “Other footing encroachments unknown.” The difficulty in ascertaining…

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 Busways Management Pty Ltd v Milner

Details

AGLC: Busways Management Pty Ltd v Milner [2002] NSWSC 969
Case: [2002] NSWSC 969
Decision Date: 16 October 2002

CaseChat Overview and Summary

Busways Management Pty Ltd sought a declaration that an easement was created over the land of Milner. The dispute was heard by the Supreme Court of Queensland. The primary issue was whether an easement was created over the land of Milner that permitted Busways to lay, maintain, and operate an electrical power line. Busways argued that the easement was created by express agreement and was reasonably necessary for the effective use and development of their land. Milner contended that no easement had been created, and if it had, it was not reasonably necessary for Busways’ land.

The court considered the evidence of the circumstances surrounding the creation of the easement and the necessity of the easement for Busways. It was found that there was an express agreement between the parties that included the creation of an easement. The court further determined that the easement was reasonably necessary for the effective use and development of Busways’ land. The court exercised its discretion to grant the easement, finding it to be reasonably necessary for Busways’ land. The court made a declaration that an easement over Milner’s land was created by express agreement and was reasonably necessary for Busways’ land.

Orders