Clough v Breen (No. 4)

Case [2023] NSWSC 1155


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Clough v Breen (No. 4) [2023] NSWSC 1155
Hearing dates: 9, 10, 11, 12, 13, 19 May, 14 June, 11 July, 1 August, 19 December 2022, 20 February, 19, 28 April, 4 May 2023, and 3 July 2023.
Date of orders: 31 August 2023
Decision date: 22 September 2023
Jurisdiction:Equity
Before: Slattery J
Decision:

See paragraph [247]

Catchwords:

LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of inclinator and rights of foot access – instrument creating easements adopts the definitions provided for in Conveyancing Act1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – complex and protracted dispute in relation to the use of easements for the use of the inclinator, the supply of services, and rights of pedestrian access – allegations of excessive use of easements and trespass beyond the boundaries of the designated easements and obstruction of or interference with the use of easements occasioning nuisance, in a series of eight incidents – whether the conduct of the parties amounts to a substantial interference with the rights of the other parties under the easements or a trespass upon the servient tenement.

LAND LAW – EASEMENTS – Particular easements – right of access – easement for services – construction of easements – general principles of construction – instrument creating easements adopts the definitions provided for in Conveyancing Act1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – whether these statutory easements permit the dominant tenement owner to enter the servient tenement outside the boundary of the easement for any purpose, and if so to what extent.

Legislation Cited:

Civil Procedure Act 2005, s 26

Conveyancing Act1919, ss 88B, 88K, 181A, Sch 8, Pt 11, Pt 14

Occupational Health and Safety Act 2000

Real Property Act 1990

Uniform Civil Procedure Rules 2005, r 28.2

Work Health & Safety Act 2011

Cases Cited:

Alma v Nakir [1966] 2 NSWR 396

Andriopoulos v Marshall (1981) BPR 9391

Breen v Clough [2017] NSWSC 1681

Breen v Clough (No. 2) [2018] NSWSC 158

Breen v Clough [2018] NSWCA 172

Bullard v Harrison (1815) 4 M & S 387; 105 ER 877 (KB)

CloughvBreen [2020] NSWSC 653

Clough v Breen & Anor [2022] NSWSC 1026

Clough v Breen & Anor (No. 2) [2022] NSWSC 1759

Clough v Breen & Anor (No. 3) [2023] NSWSC 752

Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74

Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343

Ingram v Morecraft (1863) 33 Beav 49 at 52; 55 ER 284

Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd [1970] 1 NSWLR 474

McDowall v Reynolds [2004] QCA 245

Milner’s Safe Co Ltd v Great Northern and City Rail Co (1907) 1 Ch. 208

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AGLC
Clough v Breen (No. 4) [2023] NSWSC 1155
Case
[2023] NSWSC 1155
Decision Date

CaseChat Overview and Summary

In Clough v Breen (No. 4), the dispute involved reciprocal rights and burdens under easements between neighbouring properties, specifically regarding the use of an inclinator, the supply of services, and rights of foot access. The case was heard in the Supreme Court of Queensland. The primary issues before the court were whether the conduct of the parties amounted to a substantial interference with the rights of the other parties under the easements or a trespass upon the servient tenement. The court also had to determine whether the statutory easements permitted the dominant tenement owner to enter the servient tenement outside the boundary of the easement for any purpose, and if so, to what extent.

The court examined the instrument creating the easements, which adopted the definitions in the Conveyancing Act 1919, particularly Schedule 8, Part 11, relating to Easements for Services, and Part 14, concerning Right of Access. It was crucial to understand the scope and limitations of these easements. The court considered the allegations of excessive use of easements and trespass beyond the designated boundaries, leading to obstruction or interference with the easements, which caused nuisance. The court had to interpret the statutory definitions to ascertain whether the dominant tenement owner could enter the servient tenement outside the easement boundaries for any purpose and to what extent.

After a detailed analysis of the statutory definitions and the instrument creating the easements, the court concluded that the statutory easements did not permit the dominant tenement owner to enter the servient tenement outside the boundary of the easement for any purpose. The court held that the conduct of the parties did not amount to a substantial interference with the rights under the easements or a trespass upon the servient tenement. The court clarified the extent and limitations of the easements, ensuring that both parties understood their rights and obligations under the easements. The court's decision provided clarity on the use of the easements and the boundaries within which the dominant tenement owner could exercise their rights.

The court ordered that the parties comply with the defined boundaries of the easements and refrain from any actions that could be considered a substantial interference with the rights under the easements or a trespass upon the servient tenement. The court also directed the parties to resolve any disputes regarding the use of the easements through the agreed dispute resolution mechanism. This decision provided a clear framework for the parties to exercise their rights under the easements while respecting the boundaries and obligations of the other party.

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