New South Wales v Scharer

The New South Wales Court of Appeal considered an appeal by the State of New South Wales against a decision of Pearlman J in the Supreme Court of New South Wales (later transferred to the Land and Environment Court). The dispute concerned whether the respondent, Mr Scharer, was entitled to a right of way over Crown land.

The primary legal issue before the Court of Appeal was whether the doctrine of proprietary estoppel could be applied to grant Mr Scharer a right of way over Crown land, notwithstanding the provisions of the *Crown Lands Act 1989* (NSW). The court also had to determine whether the elements of proprietary estoppel were made out on the facts.

The Court of Appeal found that the *Crown Lands Act 1989* prevented the creation of a right of way over Crown land by proprietary estoppel. Their Honours reasoned that the Act established a comprehensive scheme for the management and disposal of Crown land, and that to allow proprietary estoppel to override these statutory provisions would undermine the legislative intent. Furthermore, the court held that even if the Act did not present an absolute bar, the elements of proprietary estoppel were not satisfied on the evidence presented.

Consequently, the Court of Appeal allowed the appeal, setting aside the orders made by Pearlman J. The amended summons filed by Mr Scharer was dismissed with costs, and Mr Scharer was ordered to pay the appellant's costs of the appeal, with a certificate for a grant of aid under the Suitor's Fund Act 1951 if otherwise qualified.