Beekman v Gray [2001] NSWSC 531

Reported Decision : (2002) NSW ConvR 56-016

New South Wales Supreme Court

CITATION : Beekman v Gray [2001] NSWSC 531 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3707 of 2000 HEARING DATE(S) : 21 June 2001 JUDGMENT DATE : 21 June 2001

Raymond Hilton Beekman, Judith Anne Beekman, Christopher Gerard O'Brien and Jacqueline Althea O'Brien (Plaintiffs) PARTIES : Robert John Gray and Grace Lillian Gray (First Defendants) Robert Bryan Gossage and Margaret Marion Gossage (Second Defendants) JUDGMENT OF : Windeyer J at 1

Mr P O'Loughlin (Plaintiffs) COUNSEL : N/A (First Defendant) Mr C Harris (Second Defendant) SOLICITORS : Fox O'Brien (Plaintiffs) Willis & Bowring (Defendants) CATCHWORDS : REAL PROPERTY - easements Conveyancing Act 1919 s88K - whether easement should be imposed LEGISLATION CITED : Conveyancing Act 1919 s88K DECISION : See paragraph 32

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 21 JUNE 2001

3707/00 RAYMOND HILTON BEEKMAN & ORS v ROBERT JOHN GRAY & ANOR

JUDGMENT 1 HIS HONOUR: This is an application for the imposition of an easement over the land of the first defendants. I announced before the luncheon adjournment that it was my intention to order that the summons be dismissed and I now give my reasons for that. 2 The plaintiffs are the owners as tenants in common of lot 101 in Deposited Plan No 227294. That property is situated between Woolooware Road and Gunnamatta Bay but it does not have frontage to either road or bay apart from a small frontage which appears to be about ten feet wide to Woolooware Road from which access is gained to the main portion of the land. In other words, it is a battleaxe block. 3 Below that block are two properties, with water frontages, one being lot 2 in Deposited Plan 218151, which property is owned by Mr and Mrs Gossage who are the second defendants in this action. The other property below lot 101 is lot 102 in Deposited Plan 227294. 4 That land was owned by Mr and Mrs Gray, the first defendants in this action, but since these proceedings commenced, and in fact very recently, the property has been transferred to Dior Leonie Mahnken, the transfer, it seems, having taken place in about May 2001. 5 Whatever the position, the action as between the plaintiffs and Mr and Mrs Gray has been settled so far as this action is concerned and so far as separate proceedings No 3706/00 are concerned. 6 As a result of that settlement, Mr and Mrs Gray granted to the plaintiffs and to the owners of the property lot 3 in Deposited Plan 413393; namely, a Mr and Mrs Wunderlich, an easement to drain water which, to put it simply, runs along the southern boundary of lot 102, formerly owned by Mr and Mrs Gray and, in addition, what is described as a short easement which extends across the south western corner of lot 102, the intention of that being if it were of any use to enable waters drawing from lots 1 and 3 in Deposited Plan 413393 and the plaintiffs' land to connect to a stormwater drainage pipe or to new drainage pipes which might carry water along the northern boundary of lot 2 in Deposited Plan 218151, that being the land owned by Mr and Mrs Gossage. 7 What has happened to bring about these proceedings is this. The plaintiffs, Mr and Mrs Beekman and Mr and Mrs O'Brien, own lot 101 as tenants in common in equal shares. Mr and Mrs Beekman live in a house on the northern part of that land and Mr and Mrs O'Brien live in a house on the southern part of that land. It may be the houses have been there for many years. They wish to subdivide that land so that each has separate title to the house in which each married couple lives, together with the land around that house. 8 For that purpose they lodged an application for subdivision with the Sutherland Shire Council. This was apparently lodged many years ago and approval was granted on 8 September 1998, subject to conditions. One of those conditions was as follows: "That easements for drainage have been granted under section 88B of the Conveyancing Act, 1919 both over the subject property in favour of the upstream properties and in favour of the subject property over downstream properties." 9 Condition 6 provided that the easements were to be created prior to release of the linen plan of subdivision. 10 What are described in that condition as the "upstream properties" are properties owned by Mr and Mrs Chitty and Mr and Mrs Wunderlich, being respectively lots 1 and 3 in Deposited Plan 413393. What are described as the "downstream properties" are lot 2 in Deposited Plan 218151, owned by Mr and Mrs Gossage, and lot 102 in Deposited Plan 227294, now owned by Mrs Mahnken, but originally owned by Mr and Mrs Gray. The subdivision consent will shortly expire and that brought about the need for these proceedings to be expedited. 11 By summons filed on 24 August 2000 the plaintiffs claim, firstly, a declaration that there exists over what I will describe as the Gray and Gossage land an easement to drain water over an existing line of pipes which is the line of pipes identified by a survey of Mr Stewart Dixon, which is in evidence, along the northern boundary of lot 2, such easement being said to be in favour of the land of the plaintiffs in this action. 12 I should say that apart from some suggestion that there had been an agreement to grant such an easement, there is no evidence that such an easement exists and no argument has been put in support of that claim which must, therefore, be dismissed. 13 The alternative claim is that the Court impose an easement pursuant to section 88K of the Conveyancing Act 1919, such easement being sought when the summons was filed, partly over the land lot 102 and, for the most part, over the land in lot 2 owned by Mr and Mrs Gossage running along the northern part of their land. 14 One of the strange things about this action is that the easement is sought not only in favour of the plaintiffs but, in essence, also in favour of the owners of lots 1 and 3 in DP 413393, being the upstream properties. Those owners of the upstream properties are not paries to these proceedings. I expressed the view when the proceedings commenced that as matters now stood it would be at least necessary to have the owners of lot 1, being Mr and Mrs Chitty, joined as parties because I did not understand how the Court could grant an easement in favour of their land unless they consented to this being done or, if it were possible, to impose such an easement pursuant to section 88K, the court would do this without their having the opportunity to express their views about it. It was, nevertheless, agreed that I would proceed with the matter in any event and that if I were otherwise of the view that an easement should be imposed, then the matter should be stood over so that the attitude of the owners of the upstream lots could be ascertained. 15 The facts which are relevant to this matter are as follows. It is clear that water from what is now lot 101 drains through pipes which run on the northern part of the Gossage land into Gunnamatta Bay. The evidence also shows that those pipes at the present time are not satisfactory to carry the amount of water which flows from lot 101 and possibly water which flows on to lot 101 from the upstream properties. That is not really disputed. That would appear to be one of the reasons why the council has imposed the condition which it has imposed. Nobody suggests that the requirement for a drainage easement into Gunnamatta Bay from the upstream properties is not a necessary requirement for effective use of lot 101 or the council should not have required that condition. 16 What has happened, however, since these proceedings started is that the plaintiffs have settled their claim with Mr and Mrs Gray who agreed - probably because they wished to sell their property and did not wish to have litigation hanging over their property which might have been detrimental to a sale - to settle the claim and to grant an easement running along the southern boundary of lot 102 in favour of the owners of lot 101, namely, the plaintiffs, and also in favour of Mr and Mrs Wunderlich, the owners of lot 3 in DP 413393. What Mr and Mrs Gray were not willing to do, apparently, was to grant an easement in favour of lot 1 in DP 413393. The easement has been created and is registered on the titles. 17 Once the second defendants, Mr and Mrs Gossage, became aware of the easement granted in favour of the plaintiffs' land over lot 102, they were of the opinion that the plaintiffs no longer needed any easement over their property, which it is fair to say at the start they had been very reluctant to give, but which later, subject to some conditions, it appeared that they would have been willing to give, although no final agreement was reached. 18 It is in those circumstances that the question now before the Court is whether or not the Court would be justified in imposing an easement pursuant to section 88K of the Conveyancing Act. 19 The requirements of that section are not in doubt. It has been held, and it is accepted, that the person seeking the order must establish four things; namely: