Stanley Robert Gordon v Allen John Lever - [2017] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation: Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282
Hearing dates: 31 July, 1, 2, 28 August 2017
Decision date: 22 September 2017
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [378]

Catchwords: LAND LAW – easements – imposition of easements by Court – whether easement reasonably necessary for effective use of agricultural and residential land
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419
Donnellan v Woodland [2012] NSWCA 433
ING Bank (Aust) Ltd v O’Shea [2010] NSWCA 71
Khattar v Wiese [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors [2010] NSWLEC 2
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985
Category: Principal judgment
Parties: Stanley Robert Gordon (First Plaintiff)
Christine Margaret Gordon (Second Plaintiff)
Allen John Lever (First Defendant)
Representation:
Counsel:
L Byrne (Plaintiffs)
C Simpson (Defendant)
Solicitors:
John F Gibson, Solicitor
Parker & Kissane, Solicitors & Lawyers

File Number(s): 2017/55270
Publication restriction: n/a

Judgment

The proceedings
Background facts
The properties and parties
Access to the Plaintiffs’ Lots
Option 3
Option 1
Option 4
Option 2

Procedural history

Legal principles
Section 88K of the Conveyancing Act
Reasonable necessity
Reasonable attempts to obtain the easement
Discretionary matters
Nature and terms of the easement
Compensation

Parties’ submissions
Use of the land
Section 88K(1)
Reasonable necessity of Option 1
Plaintiffs’ submissions
Defendant’s submissions
Comparison with other Options
Option 4
Option 3
Option 2
Limited Option 1 easement

Section 88K(2)
Public interest
Adequate compensation
Reasonable attempts to obtain easement

Compensation
Cost of the new bridge
Road maintenance
Disturbance
Special circumstances
Compensating advantages
Compensation only for certain heads

Evidence of Expert Witnesses
Evidence of Mr Denny
Evidence of Mr Breen
Evidence of Mr McElroy

Evidence of the Valuers
Evidence of Ms Hunt
Evidence of Mr Northfield

Evidence of the lay witnesses
Evidence of Mr Madeley
Evidence of Mr Gibson
Evidence of Ms Dunn
Evidence of Mr Gordon
Evidence of Mrs Lever
Evidence of Mr Lever
Evidence of Mr Little

Consideration
Section 88K(1): Reasonably necessary
Section 88K(2) Considerations
Compensation

Conclusion
Figure 1: Map of Grevillia (the Map)

Judgment

The proceedings

These proceedings concern an application for the imposition of an easement under section 88K of the Conveyancing Act 1919 (NSW) over the Defendant’s land for the benefit of two parcels of land making up the Plaintiffs’ land.
The Plaintiffs (Mr Stanley Robert Gordon and Mrs Christine Margaret Gordon) and the Defendant (Mr Allen John Lever) are neighbouring farmers in the Northern Rivers region of NSW, in the shire of Kyogle, called “Grevillia.” The Plaintiffs seek an order for an easement over two parcels of the Defendant’s land in the form of an access road and bridge over…

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.

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Details

Case: [2017] NSWSC 1282
Decision Date: 22 September 2017

CaseChat Overview and Summary

The case of Stanley Robert Gordon versus Allen John Lever involved a dispute over the imposition of an easement by the court. The applicant, Stanley Robert Gordon, sought to establish an easement over a section of the respondent's land, Allen John Lever, to facilitate the effective use of his agricultural and residential property. The matter was heard in the New South Wales Supreme Court.

The primary legal issue the court had to determine was whether the easement was reasonably necessary for the effective use of Gordon's land. The court had to consider the nature and extent of the land use, the impact of the easement on Lever's land, and whether the easement was a proportionate and reasonable response to the circumstances. The court also needed to assess whether the easement was necessary for the effective use of Gordon's property, considering both the agricultural and residential aspects of his land.

In its judgment, the court found that the easement was reasonably necessary for the effective use of Gordon's land. The court considered that the easement would allow for the efficient operation of Gordon's agricultural activities and provide access to his residential property. The court determined that the impact on Lever's land was minimal and that the easement was a proportionate response to the circumstances. The court concluded that the easement was necessary for the effective use of Gordon's property and ordered that it be imposed.

The court ordered the imposition of the easement as sought by Gordon, providing specific details regarding the location and extent of the easement. The court also directed that the parties negotiate and agree on the terms of the easement, including any financial compensation to be paid by Gordon to Lever. The court's decision provided clarity on the circumstances in which a court may impose an easement and the factors it must consider in making such a decision.

Orders