Tran & Anor v Cowan & Ors

In the case of Tran & Anor v Cowan & Ors, the applicants sought a statutory right of user over part of the respondents’ driveway, which they claimed should have been registered as an easement in their favour. The applicants and respondents owned adjoining land, with the applicants asserting that they had been intended to benefit from a registered easement but this was overlooked by the developer. The applicants argued that vehicular access in the absence of a statutory right of way was difficult and dangerous, and that the level of interference to the respondents would be minor. The court had to decide whether the statutory right of user was reasonably necessary and, if so, whether the applicants should compensate the respondents for the imposition of the easement.

The court found that the statutory right of user was reasonably necessary given the dangerous nature of vehicular access in the absence of a right of way. The court also noted that the respondents had purchased the land knowing of the proposed easement and that the price reflected this intention. The court concluded that the applicants should compensate the respondents for the imposition of the statutory right of user, given the minor interference it would cause.

Consequently, the court ordered that a statutory right of user in the form of an easement of way be imposed over the respondents’ land in favour of the applicants. The terms of the easement were to be agreed upon by the parties, or, if they could not agree, determined by the court. Additionally, the applicants were ordered to pay the respondents $1,000 as compensation for the imposition of the statutory right of user. This decision highlights the importance of clear communication and registration of easements when purchasing property, as well as the need for reasonable compensation when a statutory right of user is imposed.