EASEMENT - Torrens System - Construction - Extrinsic evidence not admissible - EASEMENT - Right of carriageway - Excessive user - EASEMENT - Development application by dominant owner - Reasonably necessary for exercise of rights of dominant owner - Servient owner bound to consent - TORRENS SYSTEM - Easement - Construction - Extrinsic evidence not admissible
Sertari Pty Limited v Nirimba Developments Pty Limited
The appellant, the owner of the servient tenement subject to a registered right of carriageway 7 meters wide, refused to consent to a development application by the dominant owner. This had become necessary because of the proposed development of part of the dominant tenement, with development consent, for the construction of residential buildings comprising 236 units and underground parking for 351 vehicles. The development would greatly increase the traffic on the right of way during the construction phase and afterwards. The trial Judge ordered the servient owner to give its consent to the second development application. The servient owner appealed.
HELD: (1) Evidence of matters extrinsic to the register under the Real Property Act 1900 other than the physical characteristics of the tenements was not admissible: Westfield Management Ltd v Perpetual Trustee Company Ltd[2007] HCA 45 applied;
(2) The proposed user of the right of carriageway was not excessive because the grant was for all purposes and at all times in connection with the dominant tenement which at the date of grant comprised 557 acres although the easement placed the whole burden of…
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 Sertari Pty Ltd v Nirimba Developments Pty Ltd
Sertari Pty Ltd (the appellant) appealed a decision of the primary judge concerning a right of carriageway granted over land owned by the appellant to Nirimba Developments Pty Ltd (the respondent). The dispute centred on the respondent's proposed use of the easement in connection with a development on the dominant tenement and the appellant's refusal to consent to a development application that would affect the servient tenement. The appeal was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether extrinsic evidence was admissible to construe the terms of the easement, whether the respondent's proposed use of the right of carriageway constituted excessive user, and whether the appellant, as the servient owner, could be compelled to consent to a development application by the respondent that impacted the servient tenement. The court also considered whether the appellant had a lawful reason for refusing consent to the development application.
The Court held that, in accordance with the principles established in *Westfield Management Ltd v Perpetual Trustee Company Ltd*, evidence of matters extrinsic to the register under the *Real Property Act 1900*, other than the physical characteristics of the tenements, was inadmissible for the construction of the easement. The court found that the proposed use of the carriageway was not excessive, as the grant was for all purposes and at all times in connection with the dominant tenement, which was a substantial area at the time of the grant. Furthermore, following *Kirkjian v Towers*, the court determined that a servient owner can be required to consent to a development application by the dominant owner where refusal would obstruct the exercise of rights under the easement, and that the management of traffic was a matter for planning authorities. The appellant had no lawful reason to refuse consent.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs (Handley AJA, with Tobias and McColl JJA)