|
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 |
Legislation Cited: | Conveyancing Act 1919 (NSW), s 88K |
Cases Cited: | 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 |
Category: | Principal judgment |
Parties: | Twelve Walker Street Pty Ltd (First Plaintiff) |
Representation: | Counsel: |
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…
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- Case
- [2017] NSWSC 1807
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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