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Crawley v Baxter (No 2)

Crawley v Baxter (No 2)

Case [2023] NSWSC 648 16 June 2023

Easements & Covenants

Adverse Possession

Compensatory Damages

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Crawley v Baxter (No 2) [2023] NSWSC 648
Hearing dates: 6 – 8 April, 24 June and 21 July 2022. Further evidence and submissions filed pursuant to leave granted on 2 November 2022.
Date of orders: 16 June 2023
Decision date: 16 June 2023
Jurisdiction: Equity
Before: Henry J
Decision:
Order made pursuant to s 88K of the Conveyancing Act 1919 (NSW) imposing an easement for a right of carriageway over the defendant’s land.

Catchwords:
LAND LAW — easements — application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway over adjacent land — whether easement reasonably necessary for effective use of plaintiff’s rural land — where plaintiff’s land has no direct access to public road system — where vehicle access between public road and plaintiff’s land only presently practically available over defendant’s land — where evidence of long-term past use — where track created in 2016 along path of proposed easement — whether easement substantially preferable to alternative access options through conservation area — whether plaintiff made all reasonable attempts to obtain easement or easement having same effect — whether discretion to impose easement should be exercised — easement imposed — determination of costs deferred

Legislation Cited:
Conveyancing Act 1919 (NSW)
Crown Lands Act 1884 (NSW)
Crown Lands Consolidation Act 1913 (NSW)
Gloucester Local Environment Plan 2010 (NSW)
Government Telecommunications Act 2018 (NSW)
National Park Estate (Reservations) Act 2003 (NSW)
National Parks and Wildlife Act 1974 (NSW)
National Parks and Wildlife Regulations 2019 (NSW)
Real Property Act 1900 (NSW)
Roads Act 1993 (NSW)
State Environmental Planning Policy (Infrastructure) 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan16123 (1998) 43 NSWLR 504
Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 (2020) 104 NSWLR 199; [2020] NSWCA 269
City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251
Community Association DP270447 v ATB Morton Pty Ltd (2019) 19 BPR 39277; [2019] NSWCA 83
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1998) 9 BPR 16,205; [1998] NSWSC 385
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Lonergan v Lewis [2011] NSWSC 1133
Menassa v Shi (No 2) [2023] NSWSC 168
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221
Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010)…

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 Crawley v Baxter (No 2)

Details

AGLC: Crawley v Baxter (No 2) [2023] NSWSC 648
Case: [2023] NSWSC 648
Decision Date: 16 June 2023

CaseChat Overview and Summary

Crawley v Baxter (No 2) was a case involving a dispute over the creation of a right of carriageway over adjacent land. The plaintiff sought to establish an easement under section 88K of the Conveyancing Act 1919 (NSW). The plaintiff’s rural land lacked direct access to the public road system, and the only practical vehicle access to the land was over the defendant’s property. There was evidence of long-term past use, and a track was created in 2016 along the path of the proposed easement. The plaintiff argued that the easement was reasonably necessary for the effective use of their land and was substantially preferable to alternative access options through a conservation area. The court had to determine whether the plaintiff had made all reasonable attempts to obtain an easement or an easement with the same effect, and whether the discretion to impose the easement should be exercised.

The court considered the statutory criteria for imposing an easement under section 88K. It examined whether the easement was reasonably necessary for the effective use of the plaintiff’s land, whether it was substantially preferable to alternative access options, and whether the plaintiff had made all reasonable attempts to obtain the easement or an easement having the same effect. The court found that the easement was reasonably necessary and substantially preferable. The court also accepted that the plaintiff had made all reasonable attempts to obtain the easement. The court concluded that the discretion to impose the easement should be exercised in favour of the plaintiff.

The court imposed the easement and ordered that the costs of the application be deferred. This decision provided the plaintiff with the necessary access to their rural land, ensuring the effective use of their property. The court’s decision was based on the statutory criteria and the specific circumstances of the case. The imposition of the easement addressed the practical difficulties the plaintiff faced in accessing their land and provided a solution that was in the best interests of both parties.

Orders