Supreme Court
New South Wales
Medium Neutral Citation: Philip & Others v JPM Developments Pty Ltd [2015] NSWSC 145 Hearing dates: 9, 10 and 11 February 2015 Date of orders: 06 March 2015 Decision date: 06 March 2015 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [165]
Catchwords: REAL PROPERTY – easements – right of carriageway – construction of right of carriageway – substantial interference – development consent obtained by owner of servient tenement – whether proposed development a substantial interference – imposition of height restriction on right of carriageway – narrowing of right of carriageway Legislation Cited: Conveyancing Act 1919 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)Cases Cited: Finlayson v Campbell (1997) 8 BPR 15,703
Gallagher v Rainbow (1994) 179 CLR 624
Hare v Van Brugge (2013) 84 NSWLR 41
Jalnarne v Ridewood (1989) 61 P & CR 143
Middleton v Arthur [2002] NSWSC 627
Panfili v Lawless [2010] NSWSC 79
Prospect County Council v Cross (1990) 21 NSWLR 601
Trewin v Felton [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528
Williams v James (1867) LR 2 CP 577
Wood v Saunders (1875) LR 10 Ch App 582Texts Cited: n/a Category: Principal judgment Parties: Ian Huntly Philip– first plaintiff
Siabon Seet – second plainitff
Susan Elizabeth Windybank – third plaintiff
JPM Developments Pty Ltd - defendantRepresentation: Counsel:
R Lancaster SC - plaintiffs
A Casselden - defendant
Solicitors:
Allens Linklaters - plaintiffs
Bradbury Legal - defendant
File Number(s): 2014/312093 Publication restriction: n/a
Judgment
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These proceedings concern a dispute over the development of land over which the plaintiffs have a right of carriageway. The plaintiffs (Mr Philip, Ms Seet and Ms Windybank respectively) are owners and residents of properties on Barcom Avenue in Darlinghurst. The defendant (JPM Developments) is the owner of a vacant lot on Barcom Avenue (Property), which is burdened by a right of carriageway. The lots adjoining the Property, including the three lots owned by the plaintiffs, have the benefit of the right of carriageway. In total, over twenty properties have a right of carriageway over the Property.
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The plaintiffs seek a declaration that the defendant, by carrying out work under a development consent granted on 8 November 2000, will contravene the plaintiffs’ right of carriageway. The plaintiffs also seek an order restraining the defendant from carrying out any work pursuant to this development consent.
Background facts
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The Property (which is Lot 24 in Deposited Plan (DP) 233299) is located in Darlinghurst, in a densely populated area characterised by Victorian and Edwardian terrace houses. It sits between Womerah Avenue and Barcom Avenue, both of which are one-way streets. Traffic along Womerah Avenue runs in a northerly direction and traffic along Barcom Avenue travels in a southerly direction. The Property has a boundary on Barcom Avenue and then continues between 1 and 1A Barcom Avenue before turning at the rear of 1 Barcom Avenue and continuing in a…
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- AGLC
- Philip v JPM Developments Pty Ltd [2015] NSWSC 145
- Case
- [2015] NSWSC 145
- Decision Date
CaseChat Overview and Summary
The court began by examining the nature of the easement, which was established by a registered plan of subdivision. It noted that the easement was intended to provide Philip with a right of carriageway over a defined portion of JPM's property. The court considered whether the proposed development by JPM amounted to a substantial interference with this right. The court held that a substantial interference occurs when the development significantly impacts the use or enjoyment of the easement. In this case, the court found that the proposed development did indeed substantially interfere with Philip's right of carriageway due to the height restrictions and the narrowing of the carriageway. The court also considered the extent to which the development consent obtained by JPM could be challenged on the basis of its impact on the easement.
In determining the appropriate remedy, the court imposed restrictions on the development to preserve the easement. The court ordered that height restrictions be imposed on the development to ensure that Philip's right of carriageway was not substantially interfered with. Additionally, the court directed that the width of the carriageway be maintained to provide adequate access. The court's decision balanced the rights of the easement holder with the property rights of the owner of the servient tenement, ensuring that the easement was preserved while also allowing for reasonable development. The court's ruling provides clarity on the extent to which development consent can be challenged when it impacts an existing easement.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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