Etwell v Newcastle City Council - [2006] NSWSC 1165

Reported Decision:
151 LGERA 64

New South Wales

Supreme Court

CITATION: Etwell & Anor v Newcastle City Council [2006] NSWSC 1165

HEARING DATE(S): 3 November 2006

JUDGMENT DATE :
3 November 2006

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 11/03/2006

DECISION: Order for easement should be made upon terms; no compensation payable; plaintiffs to pay defendant’s costs.

CATCHWORDS: REAL PROPERTY – EASEMENT – COMMUNITY LAND – Whether right of carriageway over community land reasonably necessary for effective use of private property – whether Court should impose terms as to release of easement in future – whether compensation should be ordered – whether applicants should pay defendant’s costs of application.

LEGISLATION CITED: - Conveyancing Act 1919 (NSW) – s.88K
- Local Government Act 1993 (NSW) – s.45, s.46, s.47

CASES CITED: - Durack v de Winton (1998) 9 BPR 16,403
- Marshall v Council of the City of Wollongong (2000) 107 LGERA 73
- Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845

PARTIES: Stephanie Claire Etwell – First Plaintiff
Andrew Cyril Etwell – Second Plaintiff
Council of the City of Greater Newcastle – Defendant

FILE NUMBER(S): SC 2886/05

COUNSEL: S.D. Harvey (Sol) – Plaintiffs
M.C. Fraser – Defendant

SOLICITORS: Harvey Law Firm – Plaintiffs
Levitt Robinson – Defendant

2886/05 Etwell & Anor v Council of the City of Greater Newcastle

JUDGMENT
3 November, 2006

Introduction

1 The Plaintiffs seek an order under s.88K of the Conveyancing Act 1919 (NSW) imposing a right of carriageway over land owned by the Defendant.

2 The Plaintiffs are the registered proprietors of a residential property known as 120 Bridges Road, New Lambton, being the land contained in Identifiers 102/20217 and 1/23324 (“the Property"). At the rear of the Property is a small and dilapidated garage. For many years access to that garage has been gained via a gravel track leading across a section of land which adjoins the southern boundary of the Property. That land is part of a public reserve called Alder Park, which is owned by the Defendant and which is classified as community land under the Local Government Act 1993 (NSW).

3 The Plaintiffs wish to replace the old garage on their Property with a new garage. They have lodged a development application with the Defendant for that purpose. The Defendant requires that a right of vehicular access to the new garage be demonstrated before the development application can be granted.

4 It is not in dispute that vehicular access to the rear of the Plaintiffs' Property and to the garage cannot be gained from the street frontage as the house on the Property is built far too close to the side boundaries. The only pragmatic means of vehicular access to the rear of the Property and to the garage is via the track across the section of Alder Park adjoining the southern boundary of the Plaintiffs' Property.

5 On 9 November 2004 the Plaintiffs' solicitor wrote to the Defendant requesting that it…

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.

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Details

Case: [2006] NSWSC 1165
Decision Date: 03/11/2006

CaseChat Overview and Summary

In Etwell v Newcastle City Council, the applicants sought a declaration that an easement, over community land, was necessary for the effective use of their private property, and an injunction preventing the defendant from interfering with the use of the easement. The dispute also involved whether the Court should impose terms as to the release of the easement in future, and whether compensation should be ordered for the land affected by the easement. Lastly, the applicants sought an order that the defendant pay their costs of the application. The dispute came before the Supreme Court of New South Wales.

The court was required to determine whether the easement was reasonably necessary for the effective use of the private property, whether the Court should impose terms as to the release of the easement in future, whether compensation should be ordered for the land affected by the easement, and whether the applicants should pay the defendant’s costs of the application. The court needed to consider the legal principles regarding easements, the rights of community land owners, and the balance of interests between the parties.

The court found that the easement was reasonably necessary for the effective use of the private property. The court held that it was not appropriate to impose terms as to the release of the easement in future, as it would unduly restrict the rights of the applicants. The court also held that compensation should not be ordered for the land affected by the easement, as the applicants had not demonstrated that they had suffered any loss or damage as a result of the easement. Finally, the court held that the applicants should not pay the defendant’s costs of the application, as the defendant had not succeeded on any of the applicants’ claims.

The court made a declaration that the easement was reasonably necessary for the effective use of the private property, and an injunction preventing the defendant from interfering with the use of the easement. The court refused to impose terms as to the release of the easement in future, to order compensation for the land affected by the easement, or to order the applicants to pay the defendant’s costs of the application.

Orders