Condran v Collis [2024] NSWSC 1574

Supreme Court New South Wales

Medium Neutral Citation: Condran v Collis [2024] NSWSC 1574 Hearing dates: 13, 14, 15, 16 & 17 November 2023, 31 January 2024, and final materials submitted on 6 February 2024 Date of orders: 29 November 2024 Decision date: 06 December 2024 Jurisdiction: Equity - Real Property List Before: Slattery J Decision: Findings made on the claim that the conduct of the defendant constitutes an actionable nuisance. Draft proposed orders made. A relief hearing set to consider consequential relief including any assessment of damages. Findings made on the Cross-Summons. Costs reserved until after the relief hearing. Catchwords: LAND LAW — Easements — Rights of way – Substantial interference with easements – Remedies for substantial interference – plaintiffs hold the dominant tenement of a right-of-access over rural land of the defendant – the right-of-access provides the primary vehicular access to the plaintiff's land – the plaintiffs constructed a gravel road over the right-of-access 2018 – the plaintiffs complain in their Summons that the defendant has substantially interfered with their rights of access over the right-of-access by various actions including the placing of obstacles on the easement, the tightening of gate chains the planting of trees – plaintiffs further allege that the defendant engaged in threatening conduct to deter them from using the easement – whether this conduct amounts to an actionable nuisance – whether injunctive relief should be granted or damages assessed in respect of any proven nuisance – the defendant's Cross Summons complains that the plaintiffs' construction of the gravel road over the right-of-access over his land has been undertaken improperly and has caused more than as little damage as is practicable to the lot burdened and claims that the burdened lot should be restored to its former condition before the construction of the road – what order should be made in relation to the remediation of the road. Legislation Cited: Animals Act 1977 (NSW), s 7 Conveyancing Act 1919 (NSW), Schedule 8, Part 6 and Part 14, ss 88B, 181A(3) Evidence Act 1996 (NSW), s 54 Water Management Act 2000 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 31.36, 46.31 Cases Cited: Abson v Fenton (1823) 1 B& C 195 Baten's Case (1610) 9 Co. Rep 53b Bidder v North Staffordshire Rail Co. (1878) 4 QBD 412 Bland v Levi (2000) 9 BPR 17,517 Burke v Frasers Lorne Pty Ltd (2008) NSWSC 988 Butler v Muddle (1995) 6 BPR 13,984 Campbell Davys v Lloyd [1901] 2 Ch 518 Clifford v Hoare (1874) LR 9 CP 362 Clough v Breen [2022] NSWSC 1026 Clough v Breen (No.4) [2023] NSWSC 1155 Colls v Home and Colonial Stores Ltd [1904] AC 179 Davies v Williams (1851) 16 QB 546 Denton v Phillpot (1990) NSW ConvR 55-543 Gohl v Hender (1930) SASR 158 Holywell Union and Halkyn Parish v Halkyn Drainage Co [1895] AC 117 Hutton v Hamboro (1860) 2 F & F 218 Jones v Chappell (1875) LR 20 Eq 539 Jones v Price [1965] 2 QB 618 Jones v Pritchard [1908] 1 Ch 630 Lane v Capsey [1891] 3 Ch 411 McDowall v Reynolds [2004] QCA 245 Milner's Safe Co Ltd v Great Northern and City Rail Co (1907) 1 Ch. 208 Moreland Timber Co v Reid [1946] VLR 237 Owners of Strata Plan 48754 v PD Anderson Holdings Pty Ltd [1999] NSWSC 580 Pettey v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR (NSW) 136 Prospect County Council v Cross (1990) 21 NSWLR 601 Rylands v Fletcher (1866) LR 1 Ex 265 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Siple v Blow (1904) 8 OLR 547 Southport Corporation V Ormskirk Union Assessment Committee [1894] 1 QB 196 Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631 Spear v Rowlett (1924) 43 NZLR 801 Treweeke v 36 Wolseley Road Pty Ltd (1972) 128 CLR 274 Texts Cited: P Jackson, The Law of Easements and Profits (1978, Butterworths) Category: Principal judgment Parties: First Plaintiff/Cross Defendant: Robert John Condran Second Plaintiff/Cross Defendant: Shirley May Condran Defendant/Cross-Claimant: Garry Kenneth Collis Representation: Counsel: Plaintiff/Cross Defendant: C. Ireland