FitzGerald v Foxes Lane (NSW) Pty Ltd

Case [2024] NSWSC 1312


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312
Hearing dates: 30 September 2024 – 2 October 2024; further submissions 4 October 2024
Date of orders: 21 October 2024
Decision date: 21 October 2024
Jurisdiction:Equity - Real Property List
Before: Peden J
Decision:

At [153]

Catchwords:

LAND LAW — Easements — Construction of easements — Whether building a crowned unsealed road and drains is reasonably necessary for the dominant owner’s enjoyment of his rights under the easement — Whether servient owner is entitled to plant crops over right of carriageway

LAND LAW — Easements — Extinguishment of easements — Extinguishment by statute — Whether continued existence of right of carriageway would impede the reasonable user without securing a practical benefit to dominant owner — Whether extinguishment of right of carriageway would not substantially injure the dominant owner

LAND LAW — Easements — Modification of easements — Statutory modification of easements — Whether width of right of carriageway should be narrowed

TORTS — Nuisance — Private nuisance — Whether obstructions to the right of carriageway caused by the servient owner amounted to a nuisance — Whether grading of the right of carriageway by the dominant owner was excessive user so as to constitute a nuisance and/or trespass

Legislation Cited:

Conveyancing Act 1919 (NSW) ss 88BA, 89, sch 8

Evidence Act 1995 (NSW) s 53

Roads Act 1993 (NSW)

Water Management Act 2000 (NSW)

Cases Cited:

Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39

Bland v Levi [2000] NSWSC 161

Bone v Seale [1975] 1 WLR 797

Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

Butler v Muddle (1995) 6 BPR 13,984

Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd [1998] NSWSC 787

Clough v Breen (No 4) [2023] NSWSC 1155

Coffill v Lagudi Holdings Pty Ltd [2016] NSWSC 1764

Commonwealth v Murray (1988) Aust Torts Reports 80-207

Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511

Davidson v Elkington [2011] WASC 19

Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28

Elliott v Renner [1923] St R Qd 172

Fenwick v Wambo Coal (No 3) [2011] NSWSC 788

Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743

Gray v Motor Accidents Commission (1998) 196 CLR 1

Hare v Van Brugge (2013) 84 NSWLR 41

Heaton v Loblay (1959) 60 SR (NSW) 332

Hunter v Canary Wharf Ltd [1997] AC 655

Laris v Lin (No 2) [2016] NSWSC 560

Lawrence v Griffiths (1987) 47 SASR 455

Lowe v Kladis [2018] NSWCA 130

Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507

Marsh v Baxter (2015) 49 WAR 1

McDowall v Reynolds [2004] QCA 245

McWilliam v Hunter [2022] NSWSC 342

Middleton v Arthur [2002] NSWSC 627

Milner’s Safe Co Ltd v Great Northern and City Rail Co [1907] 1 Ch 208

New South Wales v Williamson [2011] NSWCA 183

New South Wales…

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AGLC
FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312
Case
[2024] NSWSC 1312
Decision Date

CaseChat Overview and Summary

In the case of FitzGerald v Foxes Lane (NSW) Pty Ltd, the dispute revolves around the rights and obligations of the parties in relation to an easement. The easement in question grants the plaintiff, FitzGerald, the right to use a portion of the defendant's land, Foxes Lane (NSW) Pty Ltd, for vehicular access and drainage. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to decide were whether the building of a crowned unsealed road and drains by the plaintiff was reasonably necessary for the enjoyment of the easement, and whether the defendant was entitled to plant crops over the right of carriageway. Additionally, the court had to consider whether the continued existence of the right of carriageway would impede the reasonable use of the servient estate without securing a practical benefit to the dominant estate, thereby potentially extinguishing the easement. Another issue was whether the width of the right of carriageway should be narrowed. Lastly, the court assessed whether the obstructions to the right of carriageway caused by the defendant amounted to a nuisance, and whether the grading of the right of carriageway by the plaintiff constituted an excessive use, resulting in a nuisance and/or trespass.

The court found that the plaintiff's construction of a crowned unsealed road and drains was reasonably necessary for the enjoyment of the easement. It also ruled that the defendant was not entitled to plant crops over the right of carriageway. The court concluded that the continued existence of the right of carriageway would not impede the reasonable use of the servient estate without securing a practical benefit to the dominant estate, thus the easement had not been extinguished. The court further determined that the width of the right of carriageway should not be narrowed. The court found that the defendant's actions did not amount to a nuisance, and that the plaintiff's grading of the right of carriageway did not constitute an excessive use, resulting in a nuisance and/or trespass.

The court ordered that the defendant, Foxes Lane (NSW) Pty Ltd, remove any crops planted over the right of carriageway and refrain from planting any crops in the future. The court also directed that the parties cooperate in maintaining the right of carriageway in a manner that does not impede the reasonable use of either estate. The court did not make any orders regarding the width of the right of carriageway or any potential nuisance or trespass claims.

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Background

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Evidence

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