Gordon v Lever

In the matter of *Gordon v Lever*, the applicants sought to appeal a decision of the primary Judge concerning the creation of an easement. The dispute centred on the primary Judge's orders relating to the establishment of a right of way over the respondent's land.

The Court of Appeal was required to determine whether the primary Judge had erred in making orders that purported to finally resolve the issue of the easement's creation and its impact on the servient tenement. Specifically, the court considered the requirements for the creation of an easement by court order and whether the primary Judge had adequately had regard to the impact of the proposed easement on the servient tenement as mandated by legislation.

The Court of Appeal found that the primary Judge had not been in a position to make a final declaration regarding the easement. The court reasoned that the statutory framework governing the creation of easements by court order requires a careful consideration of the impact on the servient tenement, which had not been sufficiently undertaken. Consequently, the appeal was allowed, and the primary Judge's orders were set aside and remitted for determination. The cross-appeal was also allowed, leading to further orders setting aside a specific order of the primary Judge. The costs of the appeal and cross-appeal were apportioned between the parties.