Stepanoski v Chen - [2011] NSWSC 1573

Supreme Court

New South Wales

Medium Neutral Citation: TONY STEPANOSKI v ZHIMIN CHEN [2011] NSWSC 1573
Hearing dates: 8/12/2011 - 9/12/2011
Decision date: 16 December 2011
Jurisdiction: Equity Division
Before: Bryson AJ
Decision:
Easement ordered. Refer to Associate Justice to settle order

Catchwords: REAL PROPERTY - easements - order under Conveyancing Act 1919 s88K - plaintiffs applied for order for drainage easement over 1 metre wide strip 21m long along rear boundary of adjacent land to connect drainage to Council drainage in lane - easement required to comply with Condition of Development Consent for redevelopment of plaintiffs' suburban house property for dual occupancy - consideration of evidence of advantages and disadvantages of proposal and possible alternatives - order for easement.
Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Real Property Act 1900
Supreme Court Rules 1970
Cases Cited: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Category: Principal judgment
Parties: Tony Stepanoski (First Plaintiff)
Sonja Stepanoski (Second Plaintiff)
Zhimin Chen (Defendant)
Representation: Counsel:
Mr S Jacobs (Plaintiffs)
Mr F Corsaro SC (Defendant)
Solicitors:
Marando Solicitors (Plaintiffs)
Proctor Phair Lawyers (Defendant)

File Number(s): 2011/00060849

Judgment

The plaintiffs own the house at 144 XXXXX XXXXX XXXX XXXXX XX on Lot XXXX DP XXXXX XXX and apply by summons of 24 February 2011 under section 88K of the Conveyancing Act 1919 for an easement to convey storm water over the land of their neighbour, the defendant who owns 146 XXXXX XXXXX XXXXX , Lot XXXXX XXX DP XXXX. On the plaintiffs' land is a house which appears from photographs to be four or more decades old. They bought the property at auction on 23 October 2010 for $1,048,000 and settled the purchase in January 2011. The circumstances which led them to buy it included reference in advertising to a Development Consent which was granted by Willoughby City Council on 23 August 2010. That consent was to lapse on 23 August 2011 but has been extended for twelve months. There are many conditions in the Development Consent.

The Development Consent was given on a Development Application by Mr Orsatti, who sold the property to the plaintiffs. It is a deferred commencement consent pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 . Conditions in Schedule 1 relate to deferred commencement. Condition 1 is entitled "Documentary evidence of drainage easement":

"1. The applicant shall submit documentary evidence to Council by way of title documents and relevant instruments demonstrating that the subject property (Lot XXX of DP XXXXX X) benefits from a drainage easement of 1 metre minimum over the downstream property (XXXXX XXXXX X

XXXXX X)"

The second deferred commencement condition requires an inter-allotment drainage design; full hydraulic design for the drainage system to the point of discharge to the public drainage system. A great deal of information and many plans were prepared in support of Mr Orsatti's development application. In the course of design work, a storm water concept plan was prepared by Mr Lowry…

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 Stepanoski v Chen

Details

AGLC: Tony Stepanoski v Zhimin Chen [2011] NSWSC 1573
Case: [2011] NSWSC 1573
Decision Date: 16 December 2011

CaseChat Overview and Summary

The case of Stepanoski v Chen involved a dispute over the establishment of a drainage easement on a strip of land adjacent to the plaintiffs' property. The plaintiffs sought an order under section 88K of the Conveyancing Act 1919, requesting a drainage easement over a 1-metre wide strip of land, 21 metres long, along the rear boundary of the adjacent land. The purpose of this easement was to connect the plaintiffs' drainage system to the Council drainage system in the lane, ensuring compliance with the Condition of Development Consent for the redevelopment of their suburban house property for dual occupancy.

The central legal issues before the court were whether the proposed easement was necessary and whether it would provide significant benefits to the plaintiffs while imposing minimal disadvantages on the adjacent landowner. The court considered evidence presented by both parties regarding the advantages and disadvantages of the easement and explored possible alternative solutions. The plaintiffs argued that the easement was essential for the proper functioning of their drainage system and the overall redevelopment of their property. Conversely, the defendant contended that the proposed easement would cause substantial inconvenience and potential damage to their property.

The court carefully weighed the evidence and concluded that the easement was necessary to comply with the Condition of Development Consent. The court found that the benefits of the easement to the plaintiffs significantly outweighed any potential disadvantages to the adjacent landowner. The court also noted that no viable alternative solutions had been presented that could achieve the same outcome. Therefore, the court granted the plaintiffs' application for the drainage easement over the specified strip of land.

The final orders of the court mandated that the adjacent landowner allow the plaintiffs to establish and maintain the drainage easement as described in the application. The court's decision provided the plaintiffs with the necessary legal framework to proceed with their property redevelopment project while ensuring compliance with the relevant development consent conditions.

Orders