Deering v Attard - [2024] NSWSC 1604

Supreme Court

New South Wales

Medium Neutral Citation: Deering v Attard [2024] NSWSC 1604
Hearing dates: 22 – 23 August 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction: Equity
Before: Williams J
Decision:
See orders at [90].

Catchwords:
LAND LAW – Easements – Creation of easements – Creation under statute – Application under s 88K of the Conveyancing Act 1919 (NSW) – Where the plaintiff and defendant are residential neighbours – Where the plaintiff’s land and the defendant’s land front directly onto a public road – Where a driveway was constructed along and on either side of the boundary between the two properties in 2000 by agreement between the plaintiff and a previous owner of the defendant’s land, but no easement was registered – Where that driveway was used by the owners and occupants of, and visitors to, both properties for about 23 years prior to the commencement of these proceedings – Where that driveway presently provides the only vehicular means of access from the road to the dwelling on the plaintiff’s land – Whether an easement burdening the defendant’s land in relation to the part of the driveway constructed on his land is reasonably necessary for the effective use of the plaintiff’s land within the meaning of s 88K(1) – Where the proposed easement would expose the present and future owners and occupants of the defendant’s land to an ongoing risk of interference with their reasonable use and enjoyment of their land due to noise, light and vibration caused by vehicles using the driveway which abuts the dwelling on the defendant’s land narrow block of land – Where there is an alternative means of vehicular access to the plaintiff’s dwelling available by constructing a driveway wholly on the plaintiff’s land Held: The plaintiff failed to discharge his onus of establishing reasonable necessity within the meaning of s 88K(1).

Legislation Cited:
Conveyancing Act 1919 (NSW) s 88K
Environmental Planning and Assessment Act 1979 (NSW) s 4.53

Cases Cited:
Bryant v Crompton [2024] NSWSC 238
Gordon v Lever (No. 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
Kent Street Pty Ltd v Sydney City Council (2001) 10 BPR 18,757; [2001] NSWSC 268
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257; [2012] NSWCA 445
Mulder v Laura Holdings Pty Ltd (2023) 21 BPR 44,389; [2023] NSWSC 812
Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221

Texts Cited:
N/A

Category: Principal judgment
Parties: Jack Bernard Deering (Plaintiff)
Luke Joseph Attard (Defendant)
Representation:
Counsel:
Mr P Horobin (Plaintiff)
Michael Vassili (solicitor) (Defendant)
Solicitors:
Dawson & Gardiner Solicitors (Plaintiff)
Michael Vassili Lawyers (Defendant)

File Number(s): 2024/51294
Publication restriction: N/A

JUDGMENT

The plaintiff in these proceedings, Mr Jack Deering, is the owner of land at 109 Sunshine Parade, Sunshine, New South Wales, being the land in folio identifier 55/XXXXX (No. 109).
The defendant,…

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 Deering v Attard

Details

AGLC: Deering v Attard [2024] NSWSC 1604
Case: [2024] NSWSC 1604
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the matter of Deering v Attard, the Supreme Court of New South Wales was tasked with determining the existence of an easement over the defendant’s land, which had been used by the plaintiff and his predecessors in title for over two decades. The plaintiff sought a declaration that an easement by necessity and prescription over the defendant’s land was in place, to facilitate continued access to his property. The defendant contested the existence of such an easement, asserting that its creation would result in unreasonable interference with his property rights.

The central legal issue before the court was whether the proposed easement was "reasonably necessary for the effective use" of the plaintiff’s land, as required by section 88K(1) of the Conveyancing Act 1919 (NSW). The court needed to assess the balance between the necessity for the easement to the plaintiff and the potential interference it would cause to the defendant’s property rights. The court considered the nature and extent of the interference, including noise, light, and vibration, against the necessity of vehicular access to the plaintiff’s property.

The court held that the plaintiff had not discharged the onus of proving that the easement was reasonably necessary within the meaning of section 88K(1). The court found that an alternative means of vehicular access was available to the plaintiff by constructing a driveway wholly on his land, thereby mitigating the necessity for the proposed easement over the defendant’s land. Consequently, the plaintiff’s claim for an easement was dismissed.

Orders