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Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd

Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd

Case [2010] NSWLEC 2 13 January 2010

Easements

Equitable Estoppel

Adequate Compensation

Judicial Review

Abuse of Process

Specific Performance

Admissibility of Evidence

Property Law

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Reported Decision: (2010) 171 LGERA 286
[2010] ALMD 3117
[2010] ALMD 3345

Land and Environment Court

of New South Wales

CITATION: Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2

PARTIES:
APPLICANT
Rainbowforce Pty Limited
FIRST RESPONDENT
Skyton Holdings Pty Limited
SECOND RESPONDENT
Skyton Developments Pty Limited
THIRD RESPONDENT
George Andrews

FILE NUMBER(S): 30115 of 2009

CORAM: Preston CJ

KEY ISSUES: EASEMENTS :- imposition of easement by court - right of carriageway - reasonable necessity - whether easement reasonably necessary for effective use or development of dominant tenement - whether use of dominant tenement will be inconsistent with the public interest - whether servient owner can be adequately compensated - whether all reasonable attempts made to obtain easement - whether any discretionary factors justify refusing relief - quantum of compensation - valuation approach to be adopted - loss of proprietary rights - disturbance - injurious affection - costs - whether indemnity or ordinary costs - terms of easement

LEGISLATION CITED: Conveyancing Act 1919 s 88B, 88K
Courts and Crimes Legislation Amendment Act 2008
Courts and Crimes Legislation Further Amendment Act 2008
Environmental Planning and Assessment Act 1979 s 5, 78A, 96, 96AA, 97
Land and Environment Court Act 1979 s 40

CASES CITED: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
A Class Property Pty Ltd v Parker [2004] NSWLEC 398
Antipas v Kutcher [2006] NSWLEC 42; (2006) 144 LGERA 289
Annwrack Pty Ltd v Williams, unreported, NSWSC No 3101 of 1988, Waddell CJ in Eq
Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197
Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436; (2004) 136 LGERA 356
Blulock Pty Ltd v Majic [2001] NSWSC 1063; (2002) NSW ConvR 56-012
Castagnet Investments Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 647
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638
Durack v de Winton (1998) 9 BPR 16,403
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
Gordon v Gioia [2007] NSWLEC 509
Grattan v Simpson (1998) 9 BPR 16,649; (1999) NSW ConvR 55-880
Hanny v Lewis (1998) 9 BPR 16,205; (1999) NSW ConvR 55-879
Huntington & Macgillivray v Hurstville City Council (No 2) [2005] NSWLEC 155; (2005) 139 LGERA 84
In the matter of an application by Kindervater (1996) ANZ ConvR 331
Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; (1999) 9 BPR 17,303
Khattar v Wiese [2005] NSWSC 1014
King v Carr-Gregg [2002] NSWSC 379
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mitchell v Boutagy [2001] NSWSC 1045; (2001) 118 LGERA 249; (2002) NSW ConvR 56-024
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Patrial Holdings v Short (1994) NSW ConvR 55-711
Property Partnerships Pacific Pty Ltd v The Owners of Strata Plan 58482 [2006] NSWLEC 709
Re Seaforth Land Sales…

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 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd

Details

AGLC: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Case: [2010] NSWLEC 2
Decision Date: 13 January 2010

CaseChat Overview and Summary

Rainbowforce Pty Limited (Rainbowforce) applied to the Land and Environment Court for an order imposing an easement over land owned by Skyton Holdings Pty Limited and others (Skyton). Rainbowforce is the owner of land in North Rocks. Skyton owns three lots of land adjoining Rainbowforce's land. Rainbowforce sought to develop its land with a high-density residential development. Access to Rainbowforce's land from North Rocks Road is to be provided across Skyton's land. Baulkham Hills Shire Council (the Council) had required that a right of carriageway be created over Skyton's land as a condition of approving Rainbowforce's development consent. Rainbowforce had been unable to reach an agreement with Skyton about the right of carriageway. Skyton opposed Rainbowforce's application for an easement. The Court found that the easement was reasonably necessary for the effective use or development of Rainbowforce's land. The Court was satisfied that the use of Rainbowforce's land with the benefit of the easement would not be inconsistent with the public interest. The Court was satisfied that Skyton could be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. The Court concluded that all reasonable attempts had been made by Rainbowforce to obtain the easement. The Court exercised its discretion to impose the easement and ordered that Rainbowforce pay Skyton compensation. The Court ordered that Rainbowforce pay Skyton's costs of the proceedings. The Court ordered that Rainbowforce not commence any development or works in the easement until appropriate consents have been obtained and Rainbowforce is otherwise entitled in law to do so. The Court reserved liberty to Skyton to apply for further compensation if some unexpected event occurs and further loss or disadvantage arises from imposition of the easement.

Orders