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Pullen v Smedley

Pullen v Smedley

Case [2017] NSWSC 1721 13 December 2017

Easements & Covenants

Adverse Possession

Nuisance

Legitimate Expectation

Property Law

Environmental Law

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Supreme Court

New South Wales

Medium Neutral Citation: Pullen v Smedley [2017] NSWSC 1721
Hearing dates: 24, 25, 26, 27 July 2017; 1 August 2017
Date of orders: 13 December 2017
Decision date: 13 December 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
In the easement proceeding (2016/00140145)
(1) Order the defendants to remove the Metal Shipping Containers off the right of way referred to in these reasons as Right of Way “B” (being the right of way on Lot 21 DP 1163020 (Lot 21) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “B”).
(2) Declare that the conduct of the plaintiffs/cross-defendants in leaving open any of the three farm gates erected across Right of Way “B”, after opening and passing through those gates in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.
(3) Declare that the conduct of the plaintiffs/cross-defendants in leaving open the second farm gate erected across the right of way referred to in these reasons as Right of Way “A” (being the right of way on Lot 20 DP 1163017 (Lot 20) indicated on that deposited plan and created by the s 88B instrument registered on 5 April 2011 (Right of Way “A”), (referred to in these reasons as G2), after opening and passing through that gate in the exercise of their rights under the said s 88B instrument, amounts (in the absence of sufficient reason or excuse to do so on any particular occasion, as explained in these reasons) to an unreasonable use of their rights under the said s 88B instrument and is not permitted thereby.
(4) Note that the Court does not accept a fear of cattle to amount to sufficient reason or excuse to leave any of the said farming gates open after having opened them in the exercise of rights under respective s 88B instruments.
(5) Declare that the placement, deposit and spreading by the plaintiffs/cross-defendants of material (the Road Material) in the period August to September 2015 on part of Right of Way “A” and on Right of Way “B”, constitutes a trespass to land by reason of being carried out without the consent of the defendants/cross-claimants and not being within the rights conferred on the plaintiffs/cross-defendants pursuant to either of the respective s 88B instruments creating the respective rights of way.
(6) Order that the plaintiffs/cross-defendants notify the local Council and the Environment Protection Authority (EPA) in writing within 7 days as to the discovery of the fragment of asbestos on Right of Way “A” and provide copies to those authorities of the expert reports obtained from Dr Martens and Mr de Silva and tendered in these proceedings; and that the plaintiffs/cross-defendants comply with…

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 Pullen v Smedley

Details

AGLC: Pullen v Smedley [2017] NSWSC 1721
Case: [2017] NSWSC 1721
Decision Date: 13 December 2017

CaseChat Overview and Summary

In the case of Pullen v Smedley, the dispute centred around the use of a right of way that crossed land owned by the defendants, Smedley. The plaintiffs, Pullen, argued that the defendants had interfered with their rights under the easement and that the defendants were liable to contribute to the costs of works on the right of way. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues for the court to determine were whether the easement implicitly precluded grazing of cattle by the servient tenement owner, the meaning of “all weather” access as a standard, and whether the dominant tenement owner was liable to contribute to the costs of works on the right of way. Additionally, the court needed to decide whether the installation of gates, the permitting of cattle grazing on the right of way, and the presence of a metal shipping container amounted to substantial interference with the rights of the dominant tenement owner. The court also needed to determine if the opening of gates along the right of way constituted an unreasonable use by the dominant tenement owner of the rights conferred by the easement. Finally, the court examined whether the defendants' works on the right of way were unlawful under the Wyong Local Environmental Plan 2013 and sections 76A of the Environmental Planning and Assessment Act 1979 (NSW) and 144 of the Protection of the Environment Operations Act 1997 (NSW).

The court found that the easement did not implicitly preclude grazing of cattle by the servient tenement owner. The term “all weather” access was not a standard that precluded the use of the right of way for any purpose, including grazing. The court held that the installation of gates, the permitting of cattle grazing, and the presence of the metal shipping container did not amount to substantial interference with the rights of the dominant tenement owner. However, the court did find that the opening of gates along the right of way constituted an unreasonable use by the dominant tenement owner. The court also concluded that the defendants' works on the right of way were not unlawful under the relevant planning and environmental legislation.

The court ordered the defendants to contribute to the cost of the works on the right of way, and it determined that the dominant tenement owner was liable for the costs associated with the unreasonable use of the right of way. The court did not find the defendants in breach of the relevant planning and environmental legislation.

Orders