Diro Group Pty Ltd v Leuzinger

[2021] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation:

Diro Group Pty Ltd v Leuzinger [2021] NSWLEC 107

Hearing dates:

14 – 15 April and 10 May 2021

Date of orders:

01 October 2021

Decision date:

01 October 2021

Jurisdiction:

Class 3

Before:

Robson J

Decision:

See orders at [124]-[125]

Catchwords:

LAND LAW — Easements — Creation of easements — Creation by order of the Court — Imposition pursuant to s 40 of the Land and Environment Court Act 1979 (NSW) and s 88K of the Conveyancing Act 1919 (NSW) — Easement for drainage — Whether reasonably necessary for the effective use or development of land

Legislation Cited:

Conveyancing Act 1919 (NSW), Pt 3 of Sch 8, ss 88B, 88K

Environmental Planning and Assessment Act 1979 (NSW), s 4.16

Land and Environment Court Act 1979 (NSW), s 40

Sutherland Shire Development Control Plan 2015

Sutherland Shire Local Environmental Plan 2015

Cases Cited:

117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; (1998) 98 LGERA 171

Arinson Pty Limited v City of Canada Bay Council [2014] NSWLEC 43; (2014) 205 LGERA 248

City of Canterbury v Saad [2013] NSWCA 251; (2013) 195 LGERA 329

Khattar v Wiese [2005] NSWSC 1014

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257

Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286

Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293

Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120

Category:

Principal judgment

Parties:

Diro Group Pty Ltd (Applicant)
Bernard Leuzinger (Respondent)

Representation:

Counsel:
T To (Applicant)
A Seton, solicitor (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/00047442

Publication restriction:

Nil

Judgment

1. Before the Court is an amended Class 3 application brought by Diro Group Pty Ltd (‘Diro’) pursuant to s 40 of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’), seeking an order imposing an easement to drain water (‘proposed easement’) through land owned by Bernard Leuzinger (‘Mr Leuzinger’). The proposed easement burdens Lot B in DP 445276, known as 31 Oleander Parade, Caringbah South (‘31 Oleander’) for the benefit of Lot D in DP 445280, known as 33 Oleander Parade, Caringbah South (‘33 Oleander’) owned by Diro.

2. The proposed easement is 1m wide and extends approximately 20m along the length of the western (rear) boundary of 31 Oleander, as shown on the “Plan of easement to drain water to be created affecting Lot B in DP 445276”, prepared by Lynton Surveys Pty Ltd (Ref: 2019C496), attached to the amended Class 3 application and Annexure A to this judgment.

3. The terms of the proposed easement are as follows:

“Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which…