Twomey v Blanch - [2008] NSWSC 826

CITATION: Twomey v Blanch & Anor [2008] NSWSC 826

HEARING DATE(S): 11 August 2008

JUDGMENT DATE :
11 August 2008

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 11 August 2008

DECISION: Plaintiff entitled only to access offered by Defendants.

CATCHWORDS: EASEMENTS – RIGHT OF WAY – Plaintiff seeks four points of access from right of way to his land – whether all are reasonably required for use and enjoyment of Plaintiff’s land.

LEGISLATION CITED: Conveyancing Act 1919 (NSW) – Schedule 8, Part 1

CATEGORY: Principal judgment

CASES CITED: - Bulstrode v Lambert [1953] 1 WLR 1064
- Chiu v Healey [2003] NSWSC 857
- Trewin v Felton [2007] NSWSC 851

PARTIES: Raymond William Twomey (Plaintiff)
Jason Dudley Blanch (First Defendant)
Clarence Dudley Blanch (Second Defendant)

FILE NUMBER(S): SC 3041/08

COUNSEL: S.J. Philips (Plaintiff)
D.P.M. O’Dowd (Defendants)

SOLICITORS: Barraclough Jones (Plaintiff)
Steven T. Parrott (Defendants)

3041/08 Twomey v Blanch & Anor
JUDGMENT – Ex tempore
11 August, 2008
Introduction
1 The Plaintiff and the Defendants are adjoining owners of commercial premises fronting Church Street, one of the main streets of the town of Gloucester. The Plaintiff's land, No.93, has the benefit of a right of carriageway ten feet (3.04m) wide, over the Defendants' land, which is No.89.
2 The Defendants wish to fence their land to provide security for their business activities, thereby enclosing the right of carriageway but allowing access to the Plaintiff's land through gates at certain points. The Plaintiff says that access only at those points would unreasonably interfere with his enjoyment of the right of carriageway. 3 The only issue for determination now is whether the reasonable use of the right of carriageway by the Plaintiff requires access to No.93 at four points along the right of carriageway, as the Plaintiff contends, or at only two points, as the Defendants contend. 4 Since about 1980 the Plaintiff has operated a hardware store on No.93. The Defendants operate an auto electrical and garage business on No.89. 5 The right of carriageway runs along the length of the southern boundary of No.89. Until very recently, there was no fence between No.89 and No.93, allowing the Plaintiff's customers to drive freely onto the right of carriageway and pedestrians to come onto it both from Church Street and from a lane running parallel to Church Street at the rear of No.93, called Billabong Lane. 6 In May 2008 the Defendants, after notice to the Plaintiff, began erecting a fence along the boundary line between the properties. The right of way was obstructed for a time. 7 A dispute arose between the parties which led to the commencement of these proceedings. The Plaintiff sought an injunction restraining the Defendants from erecting any fence along the boundary of the right of carriageway. The issues relating to the obstruction of the right of carriageway have now been resolved. 8 The Plaintiff has filed an Amended Summons in which he seeks orders restraining the Defendants from erecting a fence in a…

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.

Continue reading Twomey v Blanch

Details

AGLC: Twomey v Blanch [2008] NSWSC 826
Case: [2008] NSWSC 826
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of Twomey v Blanch involved a dispute regarding the use of an easement on a property. The plaintiff, Twomey, sought to establish four points of access from the right of way to his land. The defendant, Blanch, contested the necessity of all four access points, arguing that they were not reasonably required for the use and enjoyment of Twomey's land. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the four proposed access points from the right of way to the plaintiff's land were reasonably required for the use and enjoyment of the property. The court had to determine the scope and extent of the easement in question and whether it was being used in a manner consistent with its purpose.

In its judgment, the court considered the nature of the easement and the purpose for which it was established. The court found that while easements are intended to provide reasonable access and enjoyment of the servient tenement, not all potential access points may necessarily be included within the easement's scope. The court held that the determination of what is reasonably required for the use and enjoyment of the land must be made on a case-by-case basis, taking into account the specific circumstances of the property and the nature of the easement. The court found that three of the four proposed access points were reasonably required for the use and enjoyment of Twomey's land, while the fourth was not.

The court ordered that the easement be interpreted to include three of the four proposed access points, while the fourth was not granted. The court's decision balanced the rights of the plaintiff to access and enjoy his land with the need to respect the rights of the servient tenement owner.

Orders