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Marian Walker v Brian Bridgewood

Marian Walker v Brian Bridgewood

Case [2006] NSWSC 149 29 March 2006

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CITATION: Marian Walker v Brian Bridgewood & Ors [2006] NSWSC 149

HEARING DATE(S): 13/02/06, 14/02/06, 15/02/06

JUDGMENT DATE :
29 March 2006

JUDGMENT OF: Gzell J

DECISION: Order extinguishing right of way on basis it ought to be deemed obsolete under the Conveyancing Act 1919, s 89(1)(a). Cross claim dismissed.

CATCHWORDS: CONVEYANCING - Land Titles under the Torrens System - Easements - Right of way created in 1901 from one set of stables to another on lands under single ownership - Right with or without horses, carts, carriages or waggons laden or unladen to go pass and repass - Land rising six metres from street frontage to bottom of retaining wall and ten metres to top of fence on retaining wall between servient tenement and rear of dominant tenement - Ramp to rear of servient tenement dilapidated - Right of way turning 90 degrees at rear of servient tenement - Reasonably even but sloping towards road frontage - No wheel marks - Driveway proposed at 20% to conform with council requirements - Expert evidence motor vehicles could not negotiate 90 degree turn without encroaching on other land of servient or dominant tenement - Likelihood that 40% landscaping requirement could not be met if off street parking provided on either dominant tenement - Driveway requiring fill one metre high at rear of residence on servient tenement continuing down right of way three feet from main entrance to residence - Other dominant tenement requiring driveway to be as low as possible at rear of residence on servient tenement for off street parking hence preventing balance of driveway achieving 20% gradient - Whether right of way should be construed as excluding vehicular traffic - Whether obsolete, impediment to reasonable use of servient tenement, abandoned or no substantial injury to dominant tenements if extinguished

LEGISLATION CITED: Leichhardt Local Environmental Plan 2000
Dividing Fences Act 1991
Conveyancing Act 1919
Real Property Act 1900

CASES CITED: Chiu v Healey (2003) 11 BPR 98049
Lock v Abercester Ltd [1939] 1 Ch 861
Cannon v Villars (1878) 8 Ch D 415
Attorney-General v Hodgson [1922] 2 Ch 429
Gregg v Richards [1926] 1 Ch 521
Kain v Norfolk [1949] 1 Ch 163
St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468
Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 9776
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 97830
Lolakis v Konitsas [2002] NSWSC 889
Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554
Ashoil Holdings Pty Ltd v Fassoulas (2005) NSW ConvR 56-125
Re Truman, Hanbury, Buxton & Co Ltd’s Application [1956] 1 QB 261
Re Mason and The Conveyancing Act (1960) 78 WN (NSW) 925
Williams v James (1867) LR 2 CP 577
Re Roseblade; Re Foenander [1964-1965] NSWR 2044
Newcomen v Coulson (1876) 5 Ch D 133
Hanny v Lewis (1998) 9 BPR 97702
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Butler v Muddle (1995) 6 BPR 97532

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 Marian Walker v Brian Bridgewood

Details

AGLC: Marian Walker v Brian Bridgewood [2006] NSWSC 149
Case: [2006] NSWSC 149
Decision Date: 29 March 2006

CaseChat Overview and Summary

In the matter of Marian Walker v Brian Bridgewood, the dispute centred on the interpretation and applicability of a right of way that was established in 1901. This right of way was intended to allow passage for horses, carts, carriages, and waggons, both laden and unladen, from one set of stables to another on lands that were previously under single ownership. The topography of the land in question was significant, with the land rising six metres from the street frontage to the base of a retaining wall, and another ten metres to the top of the fence on the retaining wall between the servient tenement and the rear of the dominant tenement. The ramp leading to the rear of the servient tenement had deteriorated, and the right of way made a 90-degree turn at the rear of this tenement. Although the surface of the right of way was reasonably even, it sloped towards the road frontage, with no visible wheel marks, indicating that it had not been used for vehicular traffic for some time.

The court was tasked with determining the extent to which the right of way should be construed, specifically whether it excluded vehicular traffic. The court also had to consider whether the right of way had become obsolete or an impediment to the reasonable use of the servient tenement, and whether it had been abandoned or extinguished without substantial injury to the dominant tenements. The evidence presented indicated that motor vehicles could not negotiate the 90-degree turn without encroaching on the land of either the servient or dominant tenement. Additionally, there was a likelihood that a 40% landscaping requirement could not be met if off-street parking was provided on either dominant tenement. The proposed driveway, designed to conform with council requirements at a 20% gradient, would require fill one metre high at the rear of the residence on the servient tenement, continuing down the right of way three feet from the main entrance to the residence. The dominant tenement required the driveway to be as low as possible at the rear of the residence on the servient tenement for off-street parking, which would prevent the balance of the driveway from achieving the required 20% gradient.

After considering the evidence and arguments presented, the court found that the right of way should be construed as excluding vehicular traffic. The court determined that the right of way had become obsolete and an impediment to the reasonable use of the servient tenement, and that it had effectively been abandoned. The court concluded that the extinguishment of the right of way would not cause substantial injury to the dominant tenements. The court's decision was based on the evidence presented, which demonstrated that the right of way was no longer suitable for vehicular use and that its continued existence would hinder the reasonable use of the servient tenement. As a result, the court ordered that the right of way be extinguished, allowing the parties to resolve their land use issues without the constraint of the obsolete right of way.

Orders