Deering v Attard [2024] NSWSC 1604

Supreme Court New South Wales

Medium Neutral Citation: Deering v Attard [2024] NSWSC 1604 Hearing dates: 22 – 23 August 2024 Date of orders: 13 December 2024 Decision date: 13 December 2024 Jurisdiction: Equity Before: Williams J Decision: See orders at [90]. Catchwords: LAND LAW – Easements – Creation of easements – Creation under statute – Application under s 88K of the Conveyancing Act 1919 (NSW) – Where the plaintiff and defendant are residential neighbours – Where the plaintiff's land and the defendant's land front directly onto a public road – Where a driveway was constructed along and on either side of the boundary between the two properties in 2000 by agreement between the plaintiff and a previous owner of the defendant's land, but no easement was registered – Where that driveway was used by the owners and occupants of, and visitors to, both properties for about 23 years prior to the commencement of these proceedings – Where that driveway presently provides the only vehicular means of access from the road to the dwelling on the plaintiff's land – Whether an easement burdening the defendant's land in relation to the part of the driveway constructed on his land is reasonably necessary for the effective use of the plaintiff's land within the meaning of s 88K(1) – Where the proposed easement would expose the present and future owners and occupants of the defendant's land to an ongoing risk of interference with their reasonable use and enjoyment of their land due to noise, light and vibration caused by vehicles using the driveway which abuts the dwelling on the defendant's land narrow block of land – Where there is an alternative means of vehicular access to the plaintiff's dwelling available by constructing a driveway wholly on the plaintiff's land Held: The plaintiff failed to discharge his onus of establishing reasonable necessity within the meaning of s 88K(1). Legislation Cited: Conveyancing Act 1919 (NSW) s 88K Environmental Planning and Assessment Act 1979 (NSW) s 4.53 Cases Cited: Bryant v Crompton [2024] NSWSC 238 Gordon v Lever (No. 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 Kent Street Pty Ltd v Sydney City Council (2001) 10 BPR 18,757; [2001] NSWSC 268 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 Mulder v Laura Holdings Pty Ltd (2023) 21 BPR 44,389; [2023] NSWSC 812 Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221 Texts Cited: N/A Category: Principal judgment Parties: Jack Bernard Deering (Plaintiff) Luke Joseph Attard (Defendant) Representation: Counsel: Mr P Horobin (Plaintiff) Michael Vassili (solicitor) (Defendant)