Dudley v Ainsworth - [2021] NSWSC 1478

Supreme Court

New South Wales

Medium Neutral Citation: Dudley v Ainsworth [2021] NSWSC 1478
Hearing dates: 8-9 November 2021
Date of orders: 17 November 2021
Decision date: 17 November 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Fencing and planting held to constitute nuisance by obstructing plaintiff’s rights under easement. Injunctive relief to be granted.

Catchwords:
LAND LAW – easements – right of carriageway – actionable nuisance – plaintiff’s land has the benefit of a right of carriageway 48.645m long over the defendants’ land – right of carriageway used as a driveway to access public road – defendants constructed fence along the right of carriageway with 7.4m gap to permit plaintiff access to his land – plaintiff constructed large shed north of the gap and has a barn south-west of the easement area – plaintiff owns numerous vehicles including 11m long bus – whether fence with only 7.4m gap obstructs the plaintiff’s enjoyment of rights under the easement – held that fencing impedes or restricts ability of dominant owner to move large vehicles from easement to large shed and from easement to south-western area of the land – real substantial interference with enjoyment of rights – held appropriate to grant injunctive relief to remedy continuation of interference

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 88H, 89(1)(c), 181A, Schedule 8 Part 1

Cases Cited:
Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Keefe v Amor (1965) 1 QB 334
Panfili v Lawless [2010] NSWSC 79
Powell v Langdon (1944) 45 SR (NSW) 136
Prospect County Council v Cross (1990) 21 NSWLR 601
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45

Category: Principal judgment
Parties: Michael Raymond Dudley (Plaintiff/Cross-Defendant)
David Ainsworth (First Defendant/First Cross-Claimant)
Kylie Leanne Ainsworth (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
Mr A M Coombes (Plaintiff/Cross-Defendant)
Mr M Bennett (Defendants/Cross-Claimants)
Solicitors:
Duffy Law Group (Plaintiff/Cross-Defendant)
Marsdens Law Group (Defendants/Cross-Claimants)

File Number(s): 2021/16064
Publication restriction: None

Judgment

Introduction

These proceedings concern a right of carriageway. The right of carriageway runs across a portion of the defendants’ land at 335 Cut Hill Road, Cobbitty (Folio Identifier 111/791665). The right of carriageway benefits the plaintiff’s land at 339 Cut Hill Road, Cobbitty (Folio Identifier 110/791665). The parties acquired their respective properties within a few months of each other in 2016. The properties are relatively large blocks that back onto the Nepean River. The Court was informed that the applicable land zoning is RU1 (Primary Production).
The easement was created in November 2000. It is noted on the titles to the two properties as a Right of Carriageway 8.609 wide, as designated (V) in the plan annexed to dealing 7128643. The plan depicts the…

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 Dudley v Ainsworth

Details

AGLC: Dudley v Ainsworth [2021] NSWSC 1478
Case: [2021] NSWSC 1478
Decision Date: 17 November 2021

CaseChat Overview and Summary

The case of Dudley v Ainsworth involved a dispute between Dudley and Ainsworth, neighbours who had a long-standing easement agreement. Dudley's land benefited from a right of carriageway that extended 48.645 meters over Ainsworth's land, which Dudley used as a driveway to access a public road. Ainsworth constructed a fence along the right of carriageway, leaving a 7.4-meter gap to allow Dudley access. Dudley, who owns numerous vehicles, including an 11-meter-long bus, claimed that the fence obstructed his enjoyment of the rights under the easement. The court was required to decide whether the fence impeded Dudley's ability to move his large vehicles from the easement to his large shed and the south-western area of his land.

The court found that the fence with only a 7.4-meter gap did indeed impede or restrict Dudley's ability to move his large vehicles, causing a real and substantial interference with his enjoyment of the rights under the easement. The court held that the fence constituted an actionable nuisance. It was appropriate to grant injunctive relief to remedy the continuation of this interference. The court determined that the easement was intended to allow Dudley to move his vehicles freely, and the fence obstructed this purpose.

The court granted an injunction requiring Ainsworth to remove the fence or to widen the gap to at least 11 meters. This ruling ensured that Dudley could use his easement without obstruction and maintain the intended purpose of the right of carriageway. The court emphasised the importance of preserving the rights of the dominant owner to freely enjoy the easement and preventing any interference that would substantially diminish the benefits of the easement. The final orders included the injunction to remove or modify the fence within a specified timeframe, allowing Dudley to continue using his easement without obstruction.

Orders