LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Plaintiffs are owners of rural land and defendants are neighbours — Where plaintiffs have the benefit of an existing right of carriageway to access paddock that is otherwise practically inaccessible — Where obstruction caused by construction of a dam — Whether plaintiffs have a right to deviate around obstruction — Whether proposed easement reasonably necessary for effective use and development of plaintiffs’ land
Fiona Burns, ‘Court Imposed Easements in the Australian Torrens System: Are the Rights of Servient Owners Adequately Protected?’ in Lyria Bennett Moses, Brendan Edgeworth and Cathy Sherry, Property and Security: Selected Essays (2010, Lawbook Co)
Category:
Principal judgment
Parties:
Trevor Jeffery (First Plaintiff) Dina Jeffery (Second Plaintiff) Ronald Adams (First Defendant) Kay Adams (Second Defendant) Edward Adams (Third Defendant) Nicole Atkinson (Fourth Defendant)
Representation:
Counsel: T Alexis SC and B…
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.
Continue reading Jeffrey v Adams
Sign in free to access the full text
Details
AGLC
Jeffrey v Adams [2023] NSWSC 1270
Case
[2023] NSWSC 1270
Decision Date
CaseChat Overview and Summary
The case of Jeffrey v Adams involved the plaintiffs, owners of rural land, seeking the establishment of a new easement for a right of carriageway. The defendants, the plaintiffs' neighbours, had constructed a dam that obstructed the existing right of carriageway. The plaintiffs argued that they were entitled to a new easement that would allow them to deviate around the dam to access their paddock, which would otherwise be practically inaccessible. The matter was heard and determined in the Supreme Court of New South Wales.
The central legal issues the court had to address were whether the plaintiffs had a right to deviate around the obstruction and whether the proposed easement was reasonably necessary for the effective use and development of the plaintiffs' land. The court needed to consider the nature of the existing easement, the impact of the dam on the plaintiffs' access, and the requirements under the relevant legislation for establishing a new easement.
The court held that the plaintiffs did have the right to deviate around the obstruction and that the proposed easement was reasonably necessary for the effective use and development of the plaintiffs' land. The court noted that the existing easement was for a right of carriageway, which inherently included the right to deviate around minor obstructions. The obstruction caused by the dam, however, was significant enough to warrant the establishment of a new easement. The court also considered the plaintiffs' need for practical access to their land and the proportionality of the proposed easement in light of these needs. Based on these findings, the court granted the application for the easement.
The court ordered that a new easement be established for the plaintiffs to access their paddock by deviating around the dam. The easement was to be registered on the titles of both the plaintiffs and the defendants, and the terms and conditions of the easement were to be set out in a deed to be signed by both parties.