Twelve Walker Street Pty Ltd v Lee - [2017] NSWSC 1807

Supreme Court

New South Wales

Case Name:	Twelve Walker Street Pty Ltd v Lee
Medium Neutral Citation:	[2017] NSWSC 1807
Hearing Date(s):	9 November 2017 and 11 December 2017
Date of Orders:	20 December 2017
Decision Date:	20 December 2017
Jurisdiction:	Equity
Before:	Darke J
Decision:	Orders made for imposition of an easement for temporary rock anchors.
Catchwords:	LAND LAW – easements – creation of easements – creation by order of court – temporary easement for underground rock anchors – where plaintiffs propose deep excavation of dominant tenement – where easement will temporarily restrict development of servient tenement – whether easement reasonably necessary for effective use or development of plaintiffs’ land – easement imposed LAND LAW – easements – validity of easements – whether easement capable of forming subject matter of grant – temporary easement for underground rock anchors – whether easement amounts to a grant of exclusive possession – whether easement would deprive servient owners of proprietorship and possession – easement capable of forming subject matter of grant
Legislation Cited:	Conveyancing Act 1919 (NSW), s 88K Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 62
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20,605; [2002] NSWCA 389 Harada v Registrar of Titles [1981] VR 743 In Re Ellenborough Park [1956] Ch 131 Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 Mitchell v Boutagy (2001) 118 LGERA 249; [2001] NSWSC 1045 Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] UKHL 42 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Pennant Hills Golf Club Ltd v Roads and Traffic Authority of New South Wales (1997) 96 LGERA 164 Pennant Hills Golf Club Ltd v Roads and Traffic Authority of New South Wales (1999) 9 BPR 17,011; [1999] NSWCA 110 Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; [1999] NSWSC 485 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243
Category:	Principal judgment
Parties:	Twelve Walker Street Pty Ltd (First Plaintiff) Owners Corporation – Strata Plan No 37320 (Second Plaintiff) John Kwong Lee (First Defendant) Yuen Yee Lai (Second Defendant)
Representation:	Counsel: Mr M Ashhurst SC with Mr G Farland (Plaintiffs) Mr A J McInerney SC with Mr G P Gee (Defendants) Solicitors: Dentons Australia (Plaintiffs) Burrell Solicitors (Defendants)
File Number(s):	2017/186035
Publication Restriction:	None

JUDGMENT

Introduction

The plaintiffs, by a Further Amended Summons filed on 9 November 2017, seek the imposition of an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) over the defendants’ land at 16 Walker Street, Rhodes (being Lot 3 in Deposited Plan 15734). There is at present a single storey dwelling on the land. The first…

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 1807
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the case of Twelve Walker Street Pty Ltd v Lee, the plaintiffs sought the creation of an easement over the defendant's land to allow for the installation of rock anchors necessary for their proposed deep excavation. The matter was heard by the Supreme Court of New South Wales. The court was tasked with determining whether the proposed easement was reasonably necessary for the effective use or development of the plaintiffs' land and if it could be imposed under the relevant statutory provisions.

The primary legal issue before the court was whether the easement, which was sought for the temporary installation of underground rock anchors, could be deemed reasonably necessary for the effective use or development of the plaintiffs' land. The court also had to consider whether the proposed easement was capable of forming the subject matter of a grant and whether it would amount to a grant of exclusive possession or deprive the servient owners of proprietorship and possession.

In reaching its decision, the court found that the proposed easement was reasonably necessary for the effective use or development of the plaintiffs' land. It determined that the easement was not a grant of exclusive possession and did not deprive the servient owners of proprietorship and possession. Consequently, the easement could form the subject matter of a grant. The court imposed the easement over the defendant's land, allowing the plaintiffs to install the rock anchors as part of their proposed deep excavation. The court's decision was based on the need for the easement to ensure the safety and stability of the excavation and the limited duration and scope of the easement.

Orders