Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 [2024] NSWSC 919

Supreme Court New South Wales

Medium Neutral Citation: Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 [2024] NSWSC 919 Hearing dates: 3-5 July 2024 Date of orders: 30 July 2024 Decision date: 30 July 2024 Jurisdiction: Equity - Real Property List Before: Williams J Decision: See Orders at [88]. Catchwords: LAND LAW – Easements – Right of Way – Full and free right for every person entitled to an estate or interest in the dominant tenement, and every person authorised by them, to go, pass and repass at all times and for all purposes, with or without vehicles, to and from the dominant tenement - Whether the defendant (servient owner) is infringing the right of the plaintiff (dominant owner) to enjoy the easement according to its terms and free of substantial interference by the servient owner, by refusing to consent to the plaintiff making a development application in respect of the dominant tenement – Where defendant's consent is required because the proposed development also relates to the right of way – Whether the plaintiff's use of the right of way following the proposed development would be excessive – Whether the plaintiff's proposed development would unreasonably interfere with the defendant's reasonable use of the servient tenement – Held: Defendant, in its capacity as the owner of the servient tenement, ordered to provide written consent to the making of the development application by the plaintiff Legislation Cited: Conveyancing Act 1919 (NSW) s 181A, sch 8 pt 1 Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 8.7, 8.10, 8.14, div 8.3, pt 4 Environmental Planning and Assessment Regulation 2021 (NSW) ss 23, 29 Land and Environment Court Act 1979 (NSW) ss 17, 34, 39 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Berryman v Sonnenschein [2008] NSWSC 213 Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364 Finlayson v Campbell (1997) 8 BPR 15,703 Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 Texts Cited: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press) Category: Principal judgment Parties: Random Primer Pty Ltd (ACN 642 883 707) (Plaintiff) The Owners Corporation Strata Plan 533 (Defendant) Representation: Counsel: Mr P Tomasetti SC with Mr J Y Li (Plaintiff) Mr J Doyle with Mr C Honnery (Defendant)