Pasade Holdings v Sydney City Council

[2003] NSWSC 584

CITATION:

Pasade Holdings v Sydney City Council [2003] NSWSC 584

HEARING DATE(S):

27 June 2003

JUDGMENT DATE:

27 June 2003

JURISDICTION:

Equity Division

JUDGMENT OF:

Bryson J at 1

DECISION:

Easement for light and air granted under s.88K of Conveyancing Act

CATCHWORDS:

EASEMENTS - creation - decision supplementing [2003] NSWSC 515 relating to adjoining passageway 12 feet (3.66m) wide.

PARTIES :

Pasade Holdings Pty Ltd
(Plaintiff)

v

Council of the City of Sydney
(First Defendant)

Graham William Byrne
(Second Defendant)

Peter Sidney Emery
(Third Defendant)

Brian Bradley
(Fourth Defendant)

The Owners of Strata Plan 61233
(Fifth Defendant)

John Anthony Arcidiacono
(Sixth Defendant)

Anna Maria Arcidiacono
(Seventh Defendant)

FILE NUMBER(S):

SC 2610/03

COUNSEL:

P: Mr A Leopold
1D: Mr A M Pickles
2,3,4Ds: Mr G J Bevan
5D: N/A
6,7Ds: Mr M Ashhurst

SOLICITORS:

P: Henry Davis York
1D: Abbott Tout
2,3,4Ds: John Carmody & Co
5Ds: Peter Prior & Co
6,7Ds: Dobes & Andrews

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 27 JUNE 2003

2610/03 - PASADE HOLDINGS PTY LTD v COUNCIL OF THE CITY OF SYDNEY & ORS

JUDGMENT

1 BRYSON J: In my judgment of 12 June 2003 I dealt with and granted the plaintiff’s application under s.88K of the Conveyancing Act 1919 for easements over a small strip of land, which can be identified as the passageway 8 feet wide, within the block bounded by York Street, King Street, Clarence Street and Barrack Street in the City of Sydney. At para.2 of my reasons and elsewhere I referred to a second strip of land, the land in DP 619464, which adjoins the plaintiff’s southern boundary and connects the passageway over which the plaintiff then sought easements with York Street. Now the plaintiff has amended the Summons to claim easements over that strip. The land in DP 619464 is referred to in earlier conveyancing documents as 12 feet wide; DP 619464 shows that it is slightly irregular rectangle about 3.66 metres wide and about 26.17 metres long. It has open access to York Street and by way of that strip the passageway 8 feet wide with which I dealt earlier can be reached. When the application was first presented to me on 4 June 2003 those advising the plaintiff were under a misapprehension that the freehold owner of the strip 12 feet wide could be identified as Perpetual Trustee Co. Ltd. However further consideration of the title search information available has shown that title to the 12 feet strip, so far as any registered document show, is in the same position as the title to the 8 feet strip; there is no registered documents dealing with freehold title since the grant in 1819 to Hugh Macdonald, and the last registered document dealing with it in any way is a conveyance dated 30 September 1839, Register Book 8, No. 303, by which the widow and children of Hugh Macdonald granted or purported to grant a right of way over the passage way 12 feet wide in favour of the owner of an adjoining parcel. The parties to the litigation, including the parties which did not appear before me but submitted to my decision, are aware of the amended claim and do not oppose it. The plaintiff’s claim for a grant of an easement for light and air over the 12 foot strip, and the plaintiff’s need for such an easement to satisfy conditions of its development consent, are in exactly the same situation for all material purposes as the claim of the plaintiff for easements over the 8 foot strip. The reasons which I published on 12 June 2003 are applicable to the claim added by amendment, I adopt them and will make the order now claimed.

2 Order: Order in terms of Claim 1A in the Amended Summons of 27 June 2003.

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Last Modified: 07/28/2003