The Owners - Strata Plan 85044 v Murrell; Murrell v The Owners - Strata Plan 85044

In the case of The Owners – Strata Plan 85044 v Murrell, the court considered various legal issues arising from disputes involving restrictive covenants, easements, trespass, private nuisance, and the application to modify or extinguish restrictive covenants. The primary dispute involved a restrictive covenant limiting the height of structures on a property, the registration of a plan of subdivision that altered the ownership of airspace, and subsequent disputes over the right to access that airspace. The court also considered claims of trespass and private nuisance by the owners corporation of a strata scheme against an adjacent property owner, as well as the standing of the owners corporation to bring claims on behalf of individual lot owners.

The key legal issues addressed by the court included the interpretation of a restrictive covenant, whether the restrictive covenant implied a positive covenant or easement, the existence of an implied easement of necessity, the right of the owners corporation to bring claims for trespass and private nuisance, and the application to modify or extinguish a restrictive covenant under the Conveyancing Act 1919 (NSW). Additionally, the court examined the imposition of a court-imposed easement and the entitlement to compensation for such an easement, as well as the procedural aspect of leave to amend pleadings.

The court held that the restrictive covenant did not include a positive covenant or easement allowing the owner of the servient tenement to enter into the airspace on a transitory basis. An implied easement of necessity was found to have arisen at the time of the registration of the plan of subdivision, but it was not enforceable by the current owners of the putative dominant tenement. The owners corporation was held to have standing to bring a claim for trespass to the airspace but not for private nuisance on behalf of individual lot owners. The court also ruled that there was no power to create an easement under section 89 of the Conveyancing Act and that the proposed easement was reasonably necessary for effective use or development. Furthermore, the lot owners were not entitled to compensation for the easement, and the application to amend pleadings was granted despite the delay in making the application.

The final orders included a declaration that the restrictive covenant did not include a positive covenant or easement, an acknowledgment of the implied easement of necessity, a ruling on the standing of the owners corporation, an award of compensatory damages for trespass, and a refusal to grant compensation for the easement. Additionally, the court imposed a court-imposed easement for access to the airspace and granted leave to amend the pleadings.