Heawood v Muswellbrook Shire Council [2001] NSWLEC 8

Reported Decision : (2001) 112 LGERA 315

Land and Environment Court of New South Wales

CITATION : Heawood v Muswellbrook Shire Council [2001] NSWLEC 8 APPLICANT Heawood

PARTIES : RESPONDENT Muswellbrook Shire Council

FILE NUMBER(S) : 40075 of 2000 CORAM: Cowdroy J KEY ISSUES: Question of Law :- Claim for compensation by landowner for alteration to levels of road restricting access - whether loss of access must be total to enable claim pursuant to s 32(2) of the Roads Act 1993 - claim justiciable where variation to levels results in partial interference with access LEGISLATION CITED: Roads Act 1993 s 32 CASES CITED: Henaghan v Rederiet Forangirene [1936] 2 All ER 1426 ; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 DATES OF HEARING: 30/01/01 DATE OF JUDGMENT: 02/12/2001

APPLICANT Mr R Marshall (Barrister)

SOLICITORS Bilbie Dan Hickey LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston (Barrister)

SOLICITOR Sparke Helmore

JUDGMENT:

IN THE LAND AND MATTER No. 40075 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 12-02-2001

David John Heawood and Bonnie Jean Heawood Applicants v

Muswellbrook Shire Council Respondent JUDGMENT

The applicants' claim

1. By application class four dated 15 May 2000 the applicants seek declarations and an order for compensation against the Muswellbrook Shire Council ("the respondent") pursuant to s32 of the Roads Act 1993 (NSW) ("the Act"). Section 32 of the Act relevantly provides:- 32 Rights of adjoining landowners in relation to the fixing of levels (1) If the fixing of the levels of a public road results in loss of access across the boundary between the road and land adjoining the road, the roads authority must restore access between the road and that land. (2) If the varying of the levels so fixed results in a loss of access across the boundary between a public road and land adjoining the road, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access. 2. The applicants are the registered proprietors of land in the Shire of Muswellbrook located adjacent to the public roads of Bridge Street ("Bridge Street") and Turanville Avenue ("Turanville"), Muswellbrook ("the property"). Prior to 1993 vehicular access to the property was provided by a driveway from Bridge Street approximately ten metres wide. The carriageway of Bridge Street was at that time approximately one metre below the level of the property.