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Owners Strata Plan 13635 v Ryan

Owners Strata Plan 13635 v Ryan

Case [2006] NSWSC 221 5 April 2006

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CITATION: Owners Strata Plan 13635 v Ryan [2006] NSWSC 221

HEARING DATE(S): 20-23 March 2006

JUDGMENT DATE :
5 April 2006

JURISDICTION: EQUITY

JUDGMENT OF: Rein AJ

DECISION: See [21].

CATCHWORDS: Real Property - Easements - Rear lane privately owned but in common use for many years - Whether easements to allow rear lane access for access to parking for two properties should be granted under Conveyancing Act 1919, s 88K - whether easement “reasonably necessary” - nature of “use” of land - relevance of past use of lane - whether “not inconsistent with public interest” - discretion of court - adequacy and amount of compensation

LEGISLATION CITED: Conveyancing Act 1919 (NSW), s 7 “land”, s 88K
Interpretation Act 1987 (NSW), s 21
Real Property Act 1901 (NSW), s 178
Strata Titles Act 1973 (NSW), ss 36-40

CASES CITED: 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; 8 BPR 15,917
Beekman v Gray (2002) NSW ConvR 56-016; [2001] NSWSC 531
Blulock Pty Ltd v Majic (2001) 10 BPR 19,143; [2001] NSWSC 1063
Busways Management Pty Ltd v Milner (2002) 11 BPR 20,385; [2002] NSWSC 969
Durack v de Winton (1998) 9 BPR 16,403
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
Gordon v Shaheen [2005] NSWSC 1328
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1998) 9 BPR 16,205
Katakouzinos v Roufir Pty Limited (2000) 9 BPR 17,303; [1999] NSWSC 1045
Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757; [2001] NSWSC 268
Khattar v Wiese [2005] NSWSC 1014
King v Carr-Gregg [2002] NSWSC 379
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423
Marshall v Council of the City of Wollongong (2000) 107 LGERA 73; 10 BPR 18,163; [2000] NSWSC 137
Mitchell v Boutagy (2001) 118 LGERA 249; 10 BPR 19,187; [2001] NSWSC 1045
O'Mara v Gascoigne (1996) 9 BPR 16,349
Pasade Holdings Pty Ltd v Sydney City Council (2003) 11 BPR 21,001; [2003] NSWSC 515
Re Permanent Trustee Australia Ltd (1997) 8 BPR 15,551
Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317
Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485
Williams v State Transit Authority of NSW (2004) 60 NSWLR 286
Wilson v Forrester-Babcock (2000) 10 BPR 18,377; [2000] NSWSC 1208
Woodland v Manly Municipal Council (2003) 127 LGERA 120; [2003] NSWSC 392

PARTIES: Owners Strata Plan 13635 (First Plaintiff)
Patrick James Bryant (Second Plaintiff)
Deborah Ann Bryant (Third Plaintiff)
Jennifer Marie Ryan (Defendant)

FILE NUMBER(S): SC 6146/04

COUNSEL: J O Anderson (Plaintiffs)
J E Armfield (Defendant)

SOLICITORS: Surry Partners (Plaintiffs)
P J Chapman (Defendant)

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IN…

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 Owners Strata Plan 13635 v Ryan

Details

AGLC: Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Case: [2006] NSWSC 221
Decision Date: 5 April 2006

CaseChat Overview and Summary

The case between Owners Strata Plan 13635 and Ryan concerns a dispute over the establishment of easements for access to a rear lane that is privately owned but has been used by the public for many years. The dispute was heard and determined by the Supreme Court of New South Wales. The plaintiffs sought to establish easements to allow access to the rear lane for parking purposes for two properties, under section 88K of the Conveyancing Act 1919. The court was required to consider whether the easements should be granted, whether they were reasonably necessary, the nature of the use of the land, the relevance of the past use of the lane, whether the easements were not inconsistent with the public interest, and the adequacy and amount of compensation.

The court considered the relevant provisions of the Conveyancing Act 1919 and previous cases on the matter of easements. The court found that the plaintiffs had established that the rear lane had been used for many years and that the use of the lane was reasonably necessary for access to the properties. The court also found that the nature of the use of the land and the past use of the lane were relevant factors in determining whether the easements should be granted. The court considered that the easements were not inconsistent with the public interest, and that the adequacy and amount of compensation should be determined by the parties. The court found in favour of the plaintiffs and granted the easements.

The Supreme Court of New South Wales granted the easements sought by the plaintiffs, finding that the use of the rear lane was reasonably necessary for access to the properties, and that the easements were not inconsistent with the public interest. The court ordered that the adequacy and amount of compensation should be determined by the parties. The decision provides guidance for future cases concerning the establishment of easements for access to privately owned land that has been used by the public for many years.

Orders