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Clough v Breen (No. 4)

Clough v Breen (No. 4)

Case [2023] NSWSC 1155 22 September 2023

Easements & Covenants

Adverse Possession

Unjust Enrichment

Property Law

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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
Moreland Timber…

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 Clough v Breen (No. 4)

Details

AGLC: Clough v Breen (No. 4) [2023] NSWSC 1155
Case: [2023] NSWSC 1155
Decision Date: 22 September 2023

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.

Orders