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Philip v JPM Developments Pty Ltd

Philip v JPM Developments Pty Ltd

Case [2015] NSWSC 145 6 March 2015

Easements & Covenants

Adverse Possession

Construction of Easements

Property Law

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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 582
Texts 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 - defendant
Representation: 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

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.
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

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…

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 Philip v JPM Developments Pty Ltd

Details

AGLC: Philip v JPM Developments Pty Ltd [2015] NSWSC 145
Case: [2015] NSWSC 145
Decision Date: 06 March 2015

CaseChat Overview and Summary

The dispute between the parties Philip and JPM Developments Pty Ltd was heard in the Supreme Court of Victoria. The matter centred on the interpretation and impact of an easement that granted Philip the right of carriageway over a specific part of JPM's property. JPM proposed a development on the servient tenement, which Philip argued would substantially interfere with his easement, particularly by imposing height restrictions and narrowing the carriageway. The core legal issues before the court were whether the proposed development constituted a substantial interference with the easement and, if so, whether the court could impose restrictions on the development to preserve the easement.

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