The Owners - Strata Plan No 61233 v Arcidiacono; The Owners - Strata Plan No 17719 v Arcidiacono

The dispute between the owners of Strata Plan No 61233 and Strata Plan No 17719 against Arcidiacono involved claims for easements over the defendant's property, including rights of way, overhang, encroaching structures, drainage, and light and air. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought to establish easements by prescription, under statute, and by express grant or implication in old system deeds of conveyance.

The court had to determine whether an easement by prescription could be established despite the unknown identity of the owners of the land from the 1880s to 2008, whether the easements for overhang and encroaching structures could be retained, and if the easements for drainage, light and air were reasonably necessary. The court also had to examine the validity of the purported transfer of rights of way to other land.

The court held that an easement by prescription could still arise, even with unknown owners, if the use was sufficiently open that a diligent owner would have been aware of it. Easements for overhang and encroaching structures were retained, with compensation awarded under the Conveyancing Act. Easements for drainage, sewerage, water, and light and air were refused, with the court finding the first plaintiff failed to establish that the easements for light and air were reasonably necessary. The court also held that the general words in the 1871 deed created rights of way to benefit the landlocked plots over a private lane, and that the second plaintiff did not have the benefit of any existing rights of way. Finally, the court held that the purported transfer of rights of way to other land was invalid, as easements are not "extended" upon consolidation of landholdings.

The court ordered that easements for overhang and encroaching structures remain, and that compensation be paid to the defendant for the encroachments. Easements for drainage, sewerage, water, and light and air were refused, and the purported transfer of rights of way was declared invalid.