B A Trustees Ltd v Druskovich

In B A Trustees Limited v Druskovich, the Court of Appeal considered whether an apartment on the upper floor of a building could be considered a "piece of land" for the purposes of s 129B of the Property Law Act 1952. The Court held that the apartment could be considered a "piece of land" if it was a distinct and separate whole, such as by having a separate certificate of title. In this case, the apartment was a distinct and separate whole, and there was no reason why it should not be regarded as a "piece of land" for the purposes of s 129B. The Court also considered whether the apartment was an authorised use. The Judge found that the apartment was an authorised use, and the Court saw no basis for interfering with that finding. Finally, the Court considered the type of relief granted by the Judge. The Court held that the Judge was entitled to conclude that this was an appropriate case for relief and that the Judge turned his mind to the factors identified in s 129B(6). The Court varied the relief granted by the Judge, limiting the duration and scope of the easement. The Court set aside the order for compensation made in the High Court and remitted the question of compensation to the High Court for redetermination in light of the more qualified easement now granted to the respondents. The Court made no award of costs.