Whillas v Bradfield

[2015] NSWLEC 91

Land and Environment Court

New South Wales

Medium Neutral Citation:	Whillas v Bradfield [2015] NSWLEC 91
Hearing dates:	2 June 2015
Date of orders:	02 June 2015
Decision date:	02 June 2015
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	By consent, the orders of the Court are as follows: (1) The hearing dates of 9 and 10 June 2015 for these proceedings and proceedings 40708 of 2012 are vacated. (2) Both proceedings are stood over for directions before the list judge on 4 September 2015. (3) The applicant is to write to the neighbouring land owners in relation to the applicant’s proposal to either purchase or seek an easement over a Crown road within seven days. (4) The applicant is to make an application to Crown Lands for either the purchase of the Crown road or an easement over the Crown road within 21 days. (5) The costs of the respondents’ notice of motion filed on 22 May 2015 are reserved.
Catchwords:	PRACTICE AND PROCEDURE – motion to vacate hearing dates.
Legislation Cited:	Conveyancing Act 1919 s 88K
Category:	Procedural and other rulings
Parties:	Andrew John Whillas (Applicant) Elizabeth Rose Bradfield (First Respondent) Alan Greet (Second Respondent)
Representation:	COUNSEL: M Shehadie (Applicant) A Isaacs (Respondent)) SOLICITORS: Michie Shehadie & Co (Applicant) M E McMahon & Associates (Respondent)
File Number(s):	40888/12

Judgment

1. This is a motion by the respondents (Bradfield and Greet) to vacate the hearing dates of 9 and 10 June 2015 in these and related proceedings and for an order that the applicant (Whillas) be given the opportunity to lodge an application to purchase the remainder of a Crown road under the April 2015 Purchasing Crown Roads procedures.

2. Bradfield and Whillas are owners of adjoining rural properties at Rosebank. An unformed Crown road runs along the northern boundaries of their properties. Bradfield and Greet’s property is between Whillas’ property and Rosebank Road. Whillas has purchased part of the Crown road on his northern boundary and on the majority of Bradfield and Greet’s northern boundary. He was unsuccessful in purchasing the balance of the Crown road on the latter boundary so as to give his property access to Rosebank Road along the whole of the Crown road. Consequently, he is reliant for such access on a registered right of carriageway from the part of the Crown road that he now owns over Bradfield and Greet’s property.

3. In these proceedings Whillas seeks declaratory and injunctive relief alleging that Bradfield and Greet have blocked or substantially impeded access to and from his land along the registered right of carriageway. Alternatively, he claims an order pursuant to s 88K of the Conveyancing Act 1919 imposing a right of carriageway over part of Bradfield and Greet’s land. A defect in the amended summons is that it says the proposed right of carriageway is shown on a plan annexed thereto, but no plan is annexed. However I have been shown a plan on which the proposed easement is marked. These proceedings were commenced in the Supreme Court, which transferred them to this Court. The alternative claim under s 88K of the Conveyancing Act was added after the transfer.

4. In the said related proceedings (40708 of 2012), Bradfield claims that Whillas is using Whillas’ property in breach of conditions of a development consent.

5. The notice of motion to vacate the hearing dates is put on two bases. First, that Whillas has not filed evidence to substantiate his claims in accordance with the directions of the Court. Whillas disputes this so far as the existing registered right of carriageway claim is concerned, contending that he has filed evidence of obstruction by the other parties of the registered right of carriageway and that they gave an undertaking to the Supreme Court not to block that right of carriageway (which it is not alleged they have breached). There appears to be force in the other complaint that no, or manifestly inadequate, evidence has been filed by Whillas in relation to the alternative s 88K claim. If Whillas’ evidence is inadequate to maintain his cause of action, then so be it. But it is not a sound reason to vacate the hearing dates.

6. The second ground upon which vacation of the hearing dates is sought has more substance than the first. It is that recently, in April 2015, Crown Lands published a fact sheet “Purchasing Crown Roads” that substantially enhances the potential for Whillas to either purchase or obtain an easement of carriageway over the Crown road. This would give his property access to Rosebank Road without having to resort to crossing Bradfield and Greet’s land in one or other of the two ways proposed in these proceedings. When the motion to vacate the hearing dates was called on for hearing this morning, Whillas opposed it. However, after discussion he decided to consent to the hearing dates being vacated to pursue the new potentiality. The parties agree that if Whillas is successful in purchasing or obtaining an easement of carriageway over the Crown road it will result in termination of these proceedings as well as the related proceedings.

7. The Court will not lightly vacate hearing dates and will not do so merely because the parties consent. In the unusual circumstances to which I have referred, I am persuaded that it is appropriate to do so.

8. By consent, the orders of the Court are as follows:

1. The hearing dates of 9 and 10 June 2015 for these proceedings and proceedings 40708 of 2012 are vacated.

2. Both proceedings are stood over for directions before the list judge on 4 September 2015.

3. The applicant is to write to the neighbouring land owners in relation to the applicant’s proposal to either purchase or seek an easement over a Crown road within seven days.

4. The applicant is to make an application to Crown Lands for either the purchase of the Crown road or an easement over the Crown road within 21 days.

5. The costs of the respondents’ notice of motion filed on 22 May 2015 are reserved.

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Decision last updated: 03 June 2015