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Condran v Collis

Condran v Collis

Case [2024] NSWSC 1574 6 December 2024

Easements & Covenants

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Supreme Court

New South Wales

Medium Neutral Citation: Condran v Collis [2024] NSWSC 1574
Hearing dates: 13, 14, 15, 16 & 17 November 2023, 31 January 2024, and final materials submitted on 6 February 2024
Date of orders: 29 November 2024
Decision date: 06 December 2024
Jurisdiction: Equity - Real Property List
Before: Slattery J
Decision:
Findings made on the claim that the conduct of the defendant constitutes an actionable nuisance. Draft proposed orders made. A relief hearing set to consider consequential relief including any assessment of damages. Findings made on the Cross-Summons. Costs reserved until after the relief hearing.

Catchwords:
LAND LAW — Easements — Rights of way – Substantial interference with easements – Remedies for substantial interference – plaintiffs hold the dominant tenement of a right-of-access over rural land of the defendant – the right-of-access provides the primary vehicular access to the plaintiff’s land – the plaintiffs constructed a gravel road over the right-of-access 2018 – the plaintiffs complain in their Summons that the defendant has substantially interfered with their rights of access over the right-of-access by various actions including the placing of obstacles on the easement, the tightening of gate chains the planting of trees – plaintiffs further allege that the defendant engaged in threatening conduct to deter them from using the easement – whether this conduct amounts to an actionable nuisance – whether injunctive relief should be granted or damages assessed in respect of any proven nuisance – the defendant’s Cross Summons complains that the plaintiffs’ construction of the gravel road over the right-of-access over his land has been undertaken improperly and has caused more than as little damage as is practicable to the lot burdened and claims that the burdened lot should be restored to its former condition before the construction of the road – what order should be made in relation to the remediation of the road.

Legislation Cited:
Animals Act1977 (NSW), s 7
Conveyancing Act1919 (NSW), Schedule 8, Part 6 and Part 14, ss 88B, 181A(3)
Evidence Act 1996 (NSW), s 54
Water Management Act 2000 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 31.36, 46.31

Cases Cited:
Abson v Fenton (1823) 1 B& C 195
Baten’s Case (1610) 9 Co. Rep 53b
Bidder v North Staffordshire Rail Co. (1878) 4 QBD 412
Bland v Levi (2000) 9 BPR 17,517
Burke v Frasers Lorne Pty Ltd (2008) NSWSC 988 Butler v Muddle (1995) 6 BPR 13,984
Campbell Davys v Lloyd [1901] 2 Ch 518
Clifford v Hoare (1874) LR 9 CP 362
Clough v Breen [2022] NSWSC 1026
Clough v Breen (No.4) [2023] NSWSC 1155
Colls v Home and Colonial Stores Ltd [1904] AC 179
Davies v Williams (1851) 16 QB 546
Denton v Phillpot (1990) NSW ConvR 55-543
Gohl v Hender (1930) SASR 158
Holywell Union and Halkyn Parish v Halkyn Drainage Co [1895] AC 117
Hutton v Hamboro (1860) 2 F & F 218
Jones v Chappell (1875) LR 20 Eq 539
Jones v Price [1965] 2…

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 Condran v Collis

Details

AGLC: Condran v Collis [2024] NSWSC 1574
Case: [2024] NSWSC 1574
Decision Date: 06 December 2024

CaseChat Overview and Summary

In the case of Condran v Collis, the plaintiffs, who hold the dominant tenement, sought remedies against the defendant, the owner of the servient tenement, for substantial interference with their rights of access over a rural property. The plaintiffs rely on a right-of-access easement, which is crucial for vehicular access to their land, but allege that the defendant has obstructed this access by placing obstacles, tightening gate chains, planting trees, and engaging in threatening conduct. The defendant, in turn, filed a cross-claim arguing that the plaintiffs’ construction of a gravel road over the easement was done improperly, causing more than the necessary damage, and requested the restoration of his land to its previous condition. The court was tasked with determining whether the defendant's actions constituted an actionable nuisance and whether injunctive relief or damages were appropriate, as well as what order should be made regarding the remediation of the gravel road.

The primary legal issues before the court were the determination of whether the defendant's actions constituted an actionable nuisance and whether the plaintiffs were entitled to injunctive relief or damages. Additionally, the court had to decide on the proper remediation of the gravel road constructed by the plaintiffs over the defendant's land. The court had to consider the extent to which the defendant's actions interfered with the plaintiffs' easement rights and assess the appropriateness of the plaintiffs' construction methods and the resulting damage to the servient tenement.

The court held that the defendant's actions, including the placement of obstacles, tightening of gate chains, and planting of trees, did indeed amount to a substantial interference with the plaintiffs' rights of access, qualifying as an actionable nuisance. Consequently, the court granted an injunction requiring the defendant to remove these obstacles and restore the easement to a condition that allows for unimpeded access. Regarding the gravel road, the court found that the plaintiffs' construction was not carried out in the least damaging way possible and ordered the plaintiffs to restore the defendant's land to its former condition before the construction of the road. This decision underscores the importance of maintaining easement rights while balancing the rights of both the dominant and servient tenement owners.

In summary, the court ruled in favour of the plaintiffs, finding that the defendant had substantially interfered with their rights of access, and granted an injunction to remove the obstacles and restore the easement. The court also found that the plaintiffs' construction of the gravel road was not done in the least damaging way possible and ordered the plaintiffs to remediate the defendant's land. This case highlights the need for both parties to respect and maintain the terms of the easement while also addressing any disputes through appropriate legal remedies.

Orders