Dowd v Various Proprietors - [2016] NTSC 24

Dowd v Various Proprietors [2016] NTSC 24
PARTIES:DOWD, Steven James

v
Various Proprietors

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:48 of 2015 (21523988)
DELIVERED:  3 MAY 2016
HEARING DATES:  26 FEBRUARY 2016
JUDGMENT OF:  HILEY J
CATCHWORDS:

REAL PROPERTY — EASEMENTS — Modification or extinguishment of easements — obsolete — impede the reasonable user of the land — no longer necessary or advantageous—misuse of easement.
Law of Property Act 2000 (NT), s 177.
Driscoll v Church Commissioners for England [1957] QB 330; Stanhill Pty Ltd v Jackson & Ors [2005] VSC 169, referred to.
REPRESENTATION:
Counsel:
Applicant:M Crawley
Defendants:(No appearance)
Solicitors:
Applicant:Bowden McCormack Lawyers
Judgment category classification:    B
Judgment ID Number:  Hil1602
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dowd v Various Proprietors [2016] NTSC 24

No. 48 of 2015 (21523988)
BETWEEN:

STEVEN JAMES DOWD

Applicant

AND:

VARIOUS PROPRIETORS

Forty Six Defendants

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 4 May 2016)
Introduction

On 26 February 2016 I made an order wholly extinguishing the right of way easement granted to the proprietors of Lots 1-24 and 26-46 LTO 73/013B over Lot 25 LTO 73/013B (the Easement), pursuant to s 177 of the Law of Property Act 2000 (NT) (LPA). These are my reasons.
The Easement was created, along with easements inside part of the northern boundary of Lot 26 and the eastern boundary of Lot 14, some time prior to 1974. Together those easements enabled access between Kentish Road to the south and Livingstone Road to the north through those three properties. The Easement was expressed to provide free and unrestricted right of way over Lot 25 to the proprietors of Lots 1-24 and 26- 48.
It seems that all of the 48 lots were part of a subdivision of land between Livingstone Road, Kentish Road and Blyth Road (the Roads) and to the west of Blyth Road. Originally, all of the Roads were dirt roads and access to and from those lots was problematic in times of flooding. According to an entry dated 5 June 1974 on an Internal Minute Form of the Northern Territory Land Titles Office “this did provide a physical access between the northern and southern extremities of the subdivision, which otherwise was not available during wet conditions.”[1]
The Roads have subsequently been raised, upgraded and sealed, and drainage infrastructure along the Roads has also been upgraded.[2] Consequently all properties previously affected in times of flooding can now be accessed at all times without using the right-of-way easement.
Interested parties
By Originating Motion filed on 26 May 2015 the Applicant sought an “order wholly extinguishing the right of way easement granted to the proprietors of Lots 1-24 and 26-46 LTO 73/013B, pursuant to s 177 of the Law of Property Act”.
The 46 Defendants are respectively the registered proprietors of Lots 1- 24 and 26- 48…

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 Dowd v Various Proprietors

Details

AGLC: Dowd v Various Proprietors [2016] NTSC 24
Case: [2016] NTSC 24
Decision Date: 3 MAY 2016

CaseChat Overview and Summary

In the case of Dowd v Various Proprietors, the dispute centred around the easement rights held by the Applicant, the proprietor of Lot 25, over neighbouring properties. The Applicant sought the modification or extinguishment of these easements, arguing that they had become obsolete and were causing damage to his property and impeding its reasonable use. The defendants, various proprietors of adjacent lots, were involved in the dispute, with some agreeing to abide by the court's decision and others not appearing in court.

The primary legal issue before the court was whether the easements over the Applicant’s property were obsolete and whether their continued existence impeded the reasonable use of the land. Additionally, the court had to consider whether the easements were no longer necessary or advantageous to the beneficiaries, and if the proposed modification or extinguishment would not substantially injure the rights of the defendants.

The court examined the evidence provided by the Applicant, which included photographs and a Marker Report detailing the current conditions of the roads and the flood risk. The Marker Report concluded that the flood hazard at the relevant crossings was minimal, and that all affected properties had alternative access routes that were sealed and in good condition. This evidence supported the Applicant’s claim that the easements were no longer necessary. The court also considered the safety concerns expressed by the Applicant regarding the misuse of the easements by unauthorised persons and vehicles. Based on these findings, the court was satisfied that the easements were obsolete and no longer necessary, thereby fulfilling the criteria set out in Section 177 of the Land Title Act.

Consequently, the court granted the Applicant's application for the modification or extinguishment of the easements over Lot 25. The court did not order any compensation to be paid to the defendants, as it was determined that the easements were obsolete and their modification or extinguishment would not substantially injure the rights of the defendants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Otherwise, only three of the defendants, namely the proprietors of Lots 12, 24 and 39, expressed a view or lodged a notice of appearance. Prior to the proceedings, the proprietors of Lots 12 and 39 agreed to abide by the decision of the Court.[3] As of 26 February 2016, only the proprietor of Lot 24 had a notice of appearance on foot, but he did not appear when the matter was called on. The evidence The Applicant has been the proprietor of the property at Lot 25 since 2006. He stated that the Roads are now sealed and no longer subject to flooding. He annexed a copy of the Marker Report to his affidavit. Since he became proprietor of Lot 25 he has seen many people, some of whom he knows not to be proprietors of the other lots, drive through the Easement at high speeds in various forms of four-wheel-drive or all-terrain vehicles. He annexed photographs showing various vehicles using the Easement on various dates between November 2013 and April 2015. Since about April 2015 he has also seen people, some of whom he knows not to be proprietors of the other lots, use the Easement to access land near the eastern border of his property (adjacent to Lot 26) which is not subject to any easement and does not lead to any road. He annexed photographs dated 20 April 2015 showing tracks and erosion caused by vehicles traversing that part of his property. He also annexed photographs, some taken in January 2011, and others in May 2015,[4] showing erosion and damage to the original right of way to the extent that it could not be used as intended, with the consequence that other vehicles had to drive closer to his fence-line thus creating new tracks and additional damage. He expressed concern that similar damage will be caused to the eastern part of the property if people continue to access it from the Easement. Since 2011 he has hired machines and used other tools to remedy the damage both to the eastern part of his property and to the right-of-way easement itself. Despite those efforts, both areas remain damaged. He has also found large amounts of rubbish and industrial waste, such as concrete, steel rods and pipes, left on or near the right-of-way easement on his property, and provided photographs taken in May 2015 depicting some of that rubbish and waste.[5] He estimates that it would cost about $1000 to remove the industrial waste. He also said that in March 2014 his 16-year-old daughter told him that she saw a vehicle stationary outside the house on the property for about 30 minutes, while he was at work. He expressed fear for the safety of his daughter and himself if unknown persons and vehicles are able to traverse the right-of-way easement. He has made more than a dozen complaints to police since 2010 about people unlawfully accessing his property. The Marker Report included detailed consideration of historical flooding and the drainage network and any current flood hazard in the relevant area. The author of the report met representatives of the Litchfield Council to discuss Council’s requirements for the extinguishment of the easements. The report concluded that the flood hazard at the relevant road crossings is likely to be low for all flood events up to and including a 100 year ARI flood event. In the conclusions, at p 20:All 45 affected properties now have all weather access from Kentish, Blyth and Livingstone roads without using the Right of Way. All these roads are now sealed and in good condition. These roads would be rarely affected during the wet season and any potential flooding of these roads during major flood events would be minimal. Further, any potential flooding during a major flood event would be to a shallow depth and any driving restrictions and / or disruptions would only be for a short duration (less than an hour). These reasons would negate any need for the public to use the Right of Way.Consideration

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Marker Report included detailed consideration of historical flooding and the drainage network and any current flood hazard in the relevant area. The author of the report met representatives of the Litchfield Council to discuss Council’s requirements for the extinguishment of the easements. The report concluded that the flood hazard at the relevant road crossings is likely to be low for all flood events up to and including a 100 year ARI flood event. In the conclusions, at p 20:All 45 affected properties now have all weather access from Kentish, Blyth and Livingstone roads without using the Right of Way. All these roads are now sealed and in good condition. These roads would be rarely affected during the wet season and any potential flooding of these roads during major flood events would be minimal. Further, any potential flooding during a major flood event would be to a shallow depth and any driving restrictions and / or disruptions would only be for a short duration (less than an hour). These reasons would negate any need for the public to use the Right of Way.Consideration Section 177 of the LPA provides as follows:Modification or extinguishment of easements and covenants(1)Where land is subject to the burden of an easement or a covenant, the Court may, on application by a person who has an interest in the land, make an order modifying or wholly or partially extinguishing the easement or covenant.(2)The Court may not make an order under subsection (1) unless it is satisfied that:(a)because there has been a change in the user of the land having the benefit of the easement or covenant, in the character of the area in the vicinity of the land or in any other circumstance that the Court considers material, the easement or covenant is obsolete;(b)the continued existence of the easement or covenant would impede the reasonable user of the land or that the easement or covenant, in impeding that user, is:(i) no longer necessary or advantageous to the person or persons entitled to the benefit of the easement or covenant; or(ii) contrary to the public interest,and each person who suffers loss or disadvantage from the modification or extinguishment of the easement or covenant can be adequately compensated in money for his or her loss or disadvantage;(c)each adult who is entitled to the use or benefit of the easement or the covenant and who has capacity to do so:(i) has agreed to the modification or extinguishment of the easement or covenant; or(ii) by his or her acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the covenant in whole or in part; or(d)the proposed modification or extinguishment will not substantially injure the persons entitled to the use or benefit of the easement or covenant.(3)In determining whether to make the order, the Court must take into account the operation of the Planning Act and in particular the provisions of the planning scheme, within the meaning of the Act, apply to the land.(4)The power of the Court to make an order modifying an easement or covenant includes power to amend the instrument creating the easement or covenant to include new terms as to the use, ownership or maintenance of the servient land.(5)In making an order under subsection (1), the Court may also make an order directing the applicant to pay a person entitled to the use or benefit of the easement or covenant the amount that appears to the Court to be just to awarded consideration for either:(a)any loss or disadvantage suffered as a consequence of the modification or extinguishment; or(b)any reduction in any compensation received for the land affected by the easement or covenant when it was created that is attributable to its imposition.