Debbula Pty Ltd v The Owners - Strata Plan 6954 - [2003] NSWSC 189

Reported Decision:
(2004) NSW ConvR 56-073

Supreme Court

CITATION: Debbula Pty Ltd v The Owners - Strata Plan 6964 [2003] NSWSC 189

HEARING DATE(S): 16/12/2002, 17/12/2002

JUDGMENT DATE:
24 March 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 52

CATCHWORDS: Real Property - Easements. Application under section 88K of the Conveyancing Act 1919 for a drainage easement. No Council approval for development to be serviced by the proposed easement. Whether easement was necessary. Held it was not. Discussion of the need for particularity in respect of the proposed use or development.

PARTIES :
Debbula Pty Ltd v The Owners - Strata Plan 6964

FILE NUMBER(S): SC 5272/03

COUNSEL: Mr T. Hale SC with Mr P Bolster for plaintiff
Mr J.A. Timbs QC with Miss K. Rees for defendant

SOLICITORS: Writer Ryan Boesen for plaintiff
Phillippa Russell Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Monday 24 March 2003

5272/01 Debbula Pty Limited v The Owners - Strata Plan 6964

JUDGMENT

1 Master: This is an application by the plaintiff under section 88 K of the Conveyancing Act 1919 seeking the grant to it of an easement to drain water through land owned by the defendant. The plaintiff's land is known as 5 Glenview Crescent, Terrigal and is Lot 3 in DP 228166. It is shown on the plan which is annexed to this judgment and it is the block of land on the plan fronting on to Glenview Crescent which has the legend “collect stormwater and pipe to Campbell Crescent”.

2 The land over which is the easement is sought is immediately to the north and shown by the legend "Surf and Sun" on the plan. The defendant Owners Corporation owns the land. The defendant opposes the application.

3 The matter came before me when I was an Acting Judge of the Court and I have continued to deal with the matter pursuant to s 37(3A) of the Supreme Court Act.

Background facts

4 The plaintiff's land has erected on it a single story house the outline of which is shown in the attached plan. The plaintiff has lodged two development applications with the Gosford City Council in respect of proposals to demolish the existing house and erect in its place three units. The proposals occupy a substantial part of the site which has an area of 809 sq m.

5 The plaintiff's land falls away sharply on its northern side and any drainage from any redevelopment taken away by a gravity system must pass down to Campbell Crescent and the Council’s stormwater system in that street. There is no fall from the plaintiff’s land to Glenview Crescent and the Council opposes any mechanical system that relies on pumping of stormwater back to Glenview Crescent.

6 The plaintiff lodged its first application with Gosford City Council in 1998. The application attracted objections from ten owners from nearby properties and they together with their architects, urban planners…

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.

Keep reading for free

Create a free CaseChat account to read Debbula Pty Ltd v The Owners - Strata Plan 6954 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 189
Decision Date: 24 March 2003

CaseChat Overview and Summary

Debbula Pty Ltd initiated proceedings against The Owners – Strata Plan 6954 to establish a drainage easement over a portion of the defendant’s land. The application was lodged under section 88K of the Conveyancing Act 1919. The crux of the dispute lay in the necessity of the easement and the lack of municipal approval for the development that was intended to be serviced by the easement. The Local Court was tasked with determining whether the easement was necessary for the proposed development and if the application was sufficiently particularised.

The legal issues before the court centred on the necessity of the easement and the requirement for particularity in the application. Specifically, the court needed to assess if the easement was essential for the proposed development and whether the application provided sufficient detail regarding the intended use of the easement. The court was also required to consider the implications of the absence of municipal approval for the development.

In its decision, the court found that the easement was not necessary for the proposed development. The court emphasised the importance of particularity in applications for easements, stating that the applicant must provide clear and detailed information about the intended use or development. The court noted that the absence of municipal approval for the development in question was a significant factor in determining the necessity of the easement. Consequently, the court dismissed the application. The court's decision underscored the necessity for clear and detailed applications and the impact of municipal approval on the establishment of easements.

Orders