Weissflog v Community Association DP 270159 - [2022] NSWSC 239

Supreme Court

New South Wales

Medium Neutral Citation: Weissflog v Community Association DP 270159 [2022] NSWSC 239
Hearing dates: 7-9 February 2022
Date of orders: 9 March 2022
Decision date: 09 March 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Order to be made imposing right of carriageway over defendant’s land.

Catchwords:
EASEMENTS – application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway – where no other practical means of vehicular access to plaintiffs’ land presently exists – whether such an easement is reasonably necessary given the existence of an undeveloped Crown road – where effects of proposed easement relatively minor – whether lack of development consent for plaintiffs’ use of their land as a residence and cat-breeding facility entails an absence of reasonable necessity or the existence of inconsistency with the public interest – whether discretion to impose easement should not be exercised due to plaintiffs’ unreasonable conduct – whether the plaintiffs would obtain a windfall gain by imposition of an easement

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
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251
Evans v Cornish Nominees Pty Ltd (2009) 14 BPR 27,257; [2009] NSWSC 1295
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328
Hanny v Lewis (1998) 9 BPR 16,205
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Tout v Johnson [2021] NSWSC 1311

Category: Principal judgment
Parties: Nikolas Weissflog (First Plaintiff)
Tamara Dunlop (Second Plaintiff)
Community Association DP 270159 (Defendant)
Representation:
Counsel:
Ms P Lane (Plaintiffs)
Mr J Lazarus SC with Mr R Sud (Defendant)
Solicitors:
Watkins Tapsell Solicitors (Plaintiffs)
Messenger & Messenger Solicitors (Defendant)

File Number(s): 2020/129550
Publication restriction: None

Judgment

Introduction

The plaintiffs in these proceedings, Mr Nikolas Weissflog and Ms Tamara Dunlop, are the owners of land in Folio Identifier 98/755773 (hereafter referred to as “Lot 98”). Lot 98 is located in a rural and bushland setting near Meadow Flat, south of the Great Western Highway between Lithgow and Bathurst. The land is within the Bathurst Regional Council area. Under the Bathurst Regional Local Environmental Plan 2014 the land is zoned RU1 Primary Production. By their Summons, the plaintiffs seek an order under s 88K of the Conveyancing Act 1919 (NSW) (“the Act”)…

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: [2022] NSWSC 239
Decision Date: 09 March 2022

CaseChat Overview and Summary

In the matter of Weissflog v Community Association DP 270159, the plaintiffs sought an easement under section 88K of the Conveyancing Act 1919 (NSW) for a right of carriageway over a strip of land owned by the defendants. The plaintiffs claimed that there is no other practical means of vehicular access to their land, which they intended to use as a residence and cat-breeding facility. The dispute arose when the defendants opposed the granting of an easement, arguing that it was not reasonably necessary given the existence of an undeveloped Crown road. They further contended that the lack of development consent for the plaintiffs’ intended use of the land and the plaintiffs’ unreasonable conduct should preclude the imposition of an easement.

The court was required to determine whether the proposed easement was reasonably necessary, given the existence of an undeveloped Crown road. It also needed to decide whether the lack of development consent and the plaintiffs’ conduct should prevent the court from exercising its discretion to impose an easement. Additionally, the court had to assess whether the imposition of an easement would result in a windfall gain for the plaintiffs.

The court found that the proposed easement was reasonably necessary for the plaintiffs’ access to their land, as there were no other practical means of vehicular access. The effects of the proposed easement were relatively minor, and the undeveloped Crown road did not provide a viable alternative. The court rejected the argument that the lack of development consent or the plaintiffs’ conduct should prevent the imposition of an easement, holding that these factors did not negate the reasonable necessity for the easement. The court also concluded that the imposition of an easement would not result in a windfall gain for the plaintiffs.

Accordingly, the court granted the application for an easement, finding that it was reasonably necessary and consistent with the public interest. The easement was to be imposed over the strip of land owned by the defendants, allowing the plaintiffs access to their land for residential and cat-breeding purposes.

Orders