Frasers Lorne Pty Ltd v Burke

Frasers Lorne Pty Ltd, the plaintiff, sought to modify an easement over its property to facilitate a residential development on its land. The defendant, Burke, owned the dominant land that benefitted from the easement. The dispute came before the court on an application by the plaintiff for a modification of the easement under section 89 of the Conveyancing Act 1919 (NSW). The court had to decide whether the easement, as currently constituted, impeded the reasonable user of the servient land and whether it secured a practical benefit to the dominant land. Furthermore, the court had to determine whether the proposed modification of the easement would not substantially injure the dominant owners, taking into account discretionary considerations such as the timing of the application and the plaintiff's conduct in relation to the dominant owners.

The court examined the nature and purpose of the easement, which was created to provide access to the dominant land. It found that the easement, as it stood, did not impede the reasonable use of the servient land nor did it secure a practical benefit to the dominant land. The court concluded that the proposed modification of the easement would not substantially injure the dominant owners, as the modification was necessary to allow the plaintiff to comply with a Development Approval issued by the local council. The court also noted the discretionary considerations, including the plaintiff's conduct in seeking consent from the dominant owners long after construction commenced and despite warnings from the council, which suggested a lack of good faith. However, the court found that these considerations did not outweigh the benefits of the modification to the servient land.

The court granted the plaintiff's application for the modification of the easement, allowing the plaintiff to proceed with its residential development. The court emphasised the importance of the timing of the application and the plaintiff's conduct in relation to the dominant owners, but ultimately found that the benefits of the modification to the servient land outweighed these considerations. The court ordered that the easement be modified as proposed by the plaintiff, subject to any conditions imposed by the local council in relation to the Development Approval.