Peulen v Agius

[2015] QSC 137

SUPREME COURT OF QUEENSLAND

CITATION:

Peulen & Anor v Agius & Anor [2015] QSC 137

PARTIES:

DAVID NICOLAAS PEULEN
(first applicant)

SUSAN PATRICIA PEULEN
(second applicant)
v
CHARLES SPIRO AGIUS
(first respondent)

ANNE MARIE AGIUS
(second respondent)

FILE NO/S:

SC No 42 of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

18 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2014

JUDGES:

Chief Justice

ORDERS:

The orders of the Court are that:

A statutory right of user in the form of an easement for right of way be imposed over Lot 6 in favour of Lot 5 in respect of the land currently occupied by the driveway lined with palm trees connecting Lot 5 with Maraju-Yakapari Road, the precise dimensions of which are to be agreed by the parties or, failing agreement, determined by the Court.1.      

The applicants must keep the portion of land subject to the statutory right of user, and any fixtures, structures or plants located thereon, in a reasonable state of repair and maintenance.The repair and maintenance may be carried out by the applicants, or by any employees, agents, independent contractors, or subcontractors engaged directly or indirectly by the applicants.   2.      

The applicants pay $2,500 in compensation to the respondents for the imposition of the statutory right of user. 3.      

CATCHWORDS:

CIVIL LAW – REAL PROPERTY – STATUTORY RIGHT OF USER – EASEMENT FOR RIGHT OF WAY – CREATION – where the applicants and respondents own adjoining land – where the applicants seek a statutory right of user over a portion of the respondents’ land currently occupied by a driveway – where the driveway was utilised by previous owners of the tenement as the dominant form of vehicular access – where the alternative access for the property requires the establishment of a new driveway and the use of an unsealed road – where the utilisation of alternative access is uneconomic and inefficient – where there is minimal interference with the privacy, amenity, use and quiet enjoyment of the respondents’ property is caused by the imposition of the statutory right of user – where there is a possibility that the local government authorities may not approve the registration of the proposed easement – whether the imposition of the statutory right of user is reasonably necessary in the interests of effective use of the land.

CIVIL LAW – REAL PROPERTY – STATUTORY RIGHT OF USER – EASEMENT FOR RIGHT OF WAY – QUANTIFICATION OF COMPENSATION – where the applicants and respondents own adjoining land – where the applicants seek a statutory right of user over a portion of the respondents’ land currently occupied by a driveway – where the driveway was utilised by previous owners of the tenement as the dominant form of vehicular access – where the imposition of the statutory right of user causes minimal diminution in the value of the servient tenement – where the imposition of the statutory right of user causes marginal interference with the…