Natva Developments Pty Ltd v McDonald Bros Pty Ltd - [2004] NSWSC 777

CITATION: Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777

HEARING DATE(S): 24 to 27 May 2004; later written submissions

JUDGMENT DATE:
27 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Judgment for Defendants on Statement of Claim; judgment for Plaintiff on Amended Cross Claim.

CATCHWORDS: EASEMENTS - RIGHT OF WAY - SUBSTANTIAL INTERFERENCE - Plaintiff seeks access from right of way at a point chosen to maximise Plaintiff's profit on development - other access reasonably available - Plaintiff's proposed access has adverse consequences to servient tenement - whether Plaintiff's proposed access reasonable.

LEGISLATION CITED: Blacktown Local Environment Plan - Clause 26
Conveyancing Act 1919 (NSW) - Schedule 4A Part 1, s.88B
Environmental Planning and Assessment Act, 1979 (NSW) - s.4, s.28, s.80, s.81
Real Property Act 1900 (NSW)
Supreme Court Rules 1970 (NSW) - Part 39

CASES CITED: - Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284
- Butler v Muddle (1995) 6 BPR 13,984
- Clifford v Hoare (1874) LR 9 CP 362
- Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning & Anor (1996) 90 LGERA 341
- Doe v Cogente Pty Ltd (1997) 94 LGERA 305
- Gallagher v Rainbow (1994) 179 CLR 624
- Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446
- Pettey v Parsons [1914] 2 Ch 653
- Saggers v Brown (1991) 2 BPR 9329

PARTIES :
Natva Developments Pty Ltd - Plaintiff/Cross Defendant
McDonald Bros Pty Ltd - First Defendant/First Cross Claimant
Norman Thomas Jennings and Nadia Gina Jennings - Second Defendants/Second Cross Claimants
Winsave Pty Ltd - Third Defendant/Third Cross Claimant
Owners Corporation Strata Plan 48268 - Fourth Cross Claimant

FILE NUMBER(S): SC 6205/03

COUNSEL: D.P.F. Officer QC, J.M. Hennessy - Plaintiff/Cross Defendant
N.A. Cotman SC, R. Glasson - Defendants/Cross Claimants

SOLICITORS: Wilshire Webb - Plaintiff/Cross Defendants
Terrett Lawyers - Defendants/Cross Claimants

Introduction
1 The Plaintiff is the registered proprietor of a large parcel of land abutting the Great Western Highway at Prospect, being Lot 42 in DP 771973. The adjoining parcel of land, formerly Lot 41 in DP 771973, is now the subject of Strata Plan 48268 and the Defendants are the registered proprietors of all of the twelve lots in that strata plan. For the sake of convenience I will refer, as the parties have done, to the Defendants’ land as Lot 41 and to the Plaintiff’s land as Lot 42. The general layout of Lots 41 and 42 is shown on sketch plan 1 which is an appendix to this judgment. 2 Although Lot 42 abuts the Great Western Highway its only access is by means of a Right of Carriageway which runs from Stoddart Road across Lot 41 (“the ROC”). The ROC was created before the registration of the strata plan which divided Lot 41 into twelve separate lots. The strata plan as registered shows that the lots within it are subject to the ROC.…

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.

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Details

Case: [2004] NSWSC 777
Decision Date: 27 August 2004

CaseChat Overview and Summary

Natva Developments Pty Ltd brought a proceeding against McDonald Bros Pty Ltd concerning an easement of right of way. The plaintiff sought to access the easement at a point that would maximise their profit from a proposed development. The defendant opposed the plaintiff's proposed access, arguing it would have adverse consequences for the servient tenement. The case was heard by the Supreme Court of New South Wales.

The court was required to determine whether the plaintiff's proposed access was reasonable, considering the adverse consequences for the servient tenement. The court considered the nature and purpose of the easement, the extent of the interference caused by the proposed access, and the availability of other reasonable access points. The court also examined the impact of the proposed access on the servient tenement's use and enjoyment of the land.

The court held that the plaintiff's proposed access was not reasonable, as it would substantially interfere with the defendant's use and enjoyment of the servient tenement. The court found that there were other reasonable access points available to the plaintiff, which would not cause the same level of interference to the defendant. The court emphasised the importance of balancing the rights of both the dominant and servient tenements in easement disputes.

The court ordered that the plaintiff's proposed access was not reasonable and that the plaintiff must access the easement at a point that did not substantially interfere with the defendant's use and enjoyment of the servient tenement. The court also ordered that the plaintiff bear its own costs of the proceeding.

Orders