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.