FitzGerald v Foxes Lane (NSW) Pty Ltd

FitzGerald (the appellant) and Foxes Lane (NSW) Pty Ltd (the respondent) were parties to a dispute concerning a right of carriageway. The appellant sought to construct a crowned road over the carriageway, which the respondent contended constituted a substantial interference with its rights. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the respondent's cropping activities over the right of carriageway amounted to a substantial interference with the appellant's rights, and consequently, whether the appellant was entitled to construct the proposed crowned road. Further issues included the appropriate width of the carriageway over which the appellant could undertake work, and the justification for a 14-day notice period for such works. The court also considered whether the appellant was entitled to have the full width of the carriageway cleared, and whether amenity or exemplary damages were warranted. A preliminary issue was whether the question of substantial interference had been properly raised and understood as an issue before the primary judge.

The Court of Appeal acknowledged its duty to form its own view on the legal issues in light of the facts. The court's reasoning and the legal principles applied would have addressed the nature of easements, the threshold for substantial interference, and the scope of rights conferred by a right of carriageway. The court would have considered the extent to which the dominant owner's use of the carriageway could be accommodated alongside the servient owner's activities, and the remedies available for breaches of easement rights.

The judgment of the Court of Appeal would have determined the ultimate orders regarding the appellant's entitlement to construct the crowned road, the permissible width of such construction, and any damages awarded.