New South Wales Supreme Court CITATION : Foster v Hidden Valley Owners' Co-Operative Society Limited [2002] NSWSC 1120 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3774/02 HEARING DATE(S) : 12 November 2002 JUDGMENT DATE : 12 November 2002 Keay Margaret Foster (First Plaintiff) PARTIES : Campbell Tiley & Nicola Tayler (Second Plaintiffs) Hidden Valley Owners' Co-Operative Society Limited (First Defendant) Hans Adzersen & Birgitta Adzersen & Ors (Second Defendants) JUDGMENT OF : Campbell J B Connell (Plaintiffs) COUNSEL : D Kemp, solicitor (First Defendant) Unrepresented (Second Defendant) David Roe (Plaintiffs) SOLICITORS : Dibbs Barker Gosling (First Defendant) Mr Adzersen, in person (Second Defendant) CATCHWORDS : REAL PROPERTY - easements - grant of easement under section 88K Conveyancing Act 1919 when easement is "reasonably necessary for the effective use or development of land" - other requirements for grant of easement LEGISLATION CITED : Conveyancing Act 1919 DECISION : Easement granted IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J TUESDAY 12 NOVEMBER 2002 3774/02 KEAY MARGARET FOSTER & ORS v HIDDEN VALLEY OWNERS' CO-OPERATIVE SOCIETY LIMITED & ORS JUDGMENT 1 HIS HONOUR: This is an application made under s 88K of the Conveyancing Act for the grant of an easement. There are two plaintiffs. The first plaintiff is the proprietor of Lot 211 and the second plaintiff is the proprietor of Lot 212. Both Lot 211 and Lot 212 are located to the north of Ourimbah Creek. Ourimbah Creek runs roughly in an east-west direction. 2 At one time, on the south bank of Ourimbah Creek, there was a public road. That public road was closed in 1930. Subsequently, a new road was gazetted on the southern side of Ourimbah Creek which, in the area in question, ran roughly parallel to the creek but some distance back from its bank. 3 From the old road, it had been possible to get access to the land now contained in Lots 211 and 212 by turning and crossing a bridge which ran in a roughly north-south direction over Ourimbah Creek. The relocation of the road had the effect that it was no longer possible to get directly from the site of the new road to that bridge. Instead, it was necessary to traverse a small portion of land, which had been part of the site of the closed road, to be able to get to the bridge. The present application is an application made by the proprietors of Lots 211 and 212 for an easement over an area of approximately 0.3 hectares of land, contained in the site of the closed road, to enable them to use the bridge lawfully once more. 4 The site over which the easement is sought (which I will refer to as "the proposed easement land") has, for a period prior to this application being brought, been the subject of a sublease to the first plaintiff. That sublease was granted at a time when the first plaintiff owned the whole of the land, which is now contained in Lots 211 and 212. 5 The first plaintiff has subsequently subdivided that land and, in consequence, the owners of Lot 212 have no right which enables them to traverse the proposed easement land. The sublease of the first plaintiff will expire in January 2005. The first plaintiff has a right to a further sublease until January 2010. 6 The present application is brought to provide a more permanent solution to the problem of access for the first plaintiff and her successors in title, and to give the second plaintiffs and their successors in title a right, which they presently completely lack, to be able to get from the site of the present road to the bridge, to have access to their land. 7 The land in which the proposed easement land is located is part of an area of about 300 hectares, which is held in one title. The ownership of that parcel of land is divided into 500 shares, which are held as tenants in common. The present owners of those 500 shares are the second defendants in the action. There are not 500 separate owners, however; 250 of the shares are held by Country Retreats Pty Limited, and 35 shares are held by the first defendant. Mr and Mrs Adzersen, who are the first of the named second defendants to the action, appear first on an alphabetical list of owners of the land in the proposed servient tenement. 8 The owners of the 500 shares in that land have leased it, for a term expiring in March 2076, to the first defendant. The first defendant has rules and by-laws under which an owner of a share in the land, other than the first defendant, has no right of access to the land unless he or she is also a member of the first defendant. All of the second defendants, except approximately 80, are members of the first defendant. It follows from this that the 80 or so second defendants who are not members of the first defendant will have no right of access to the land, until expiration of the lease in 2076. 9 Because of the very large numbers of owners of the land of which the servient tenement is part, orders were made by the Court for substituted service on the second defendants of the summons in this matter. There has been an appearance by the first defendant; Country Retreats Pty Limited has filed an appearance but taken no part in the action; Mr Adzersen has appeared in person. 10 Orders are sought appointing Mr Adzersen to represent all of the registered proprietors from time to time of the land contained in the certificates of title for the 500 shares. 11 I mentioned earlier that there was an order for substituted service of the second defendants. Following that substituted service, no opposition to the orders which the plaintiffs seek was made known by any of them to the solicitors for the plaintiffs. 12 In these circumstances, and notwithstanding that the order may well be unnecessary because the second defendants have already been served, it seems to me it is appropriate to make a representative order of the type which has been sought. 13 Section 88K confers upon the Court power to impose an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. I am satisfied that that requirement is met in the case of the present proposed easement. 14 The evidence establishes that there are two alternative ways of being able to get to Lots 211 and 212, apart from going across the bridge which I have earlier mentioned. One of them is along the route of an existing track, which runs approximately 500 metres to the west from the house which is located on Lot 211. It is not clear that the plaintiffs have any right to use the site of that track. If that track were improved it would enable access to be obtained to a side dirt road. Two hundred metres of the access road would have to be concrete because of its proximity to the northern bank of the creek. The other 300 metres of the road would consist of stabilised road base. An environmental impact report suggests that significant drainage and slope stabilisation work would be required if this option were to be performed, to both retain a steep slope above the track and prevent undermining of the access track during flooding of Ourimbah Creek. 15 The second alternative access route is even less attractive. It is possible to follow a road easement which already exists. That road easement is a little over 1.2 kilometres long. However, that road easement traverses land with slopes of over 26 degrees. It also crosses a deeply incised gully. It would be necessary to construct a 30-metre long bridge across Ourimbah Creek to the east of the property if this alternative were to be used. It would be necessary for there to be clearing above the creek banks to construct the bridge, and over half a kilometre of the road easement would need to be concreted. 16 By comparison, a granting of the easement, which is now sought, is one which would enable the property in Lots 211 and 212 to be accessed at comparatively little expense and with comparatively little environment damage. 17 In these circumstances, it seems to me that the jurisdictional requirement that the easement is reasonably necessary for the effective use or development of land that will have the benefit of the easement has been satisfied. While the test of "reasonably necessary" is one which can be construed with varying degrees of stringency, and one possible construction is that if some alternative means of access is available at vast cost and difficulty then the easement in question is not "reasonably necessary", it seems to me that such a restrictive interpretation of the jurisdiction to make an order under s 88K is unlikely to have been intended by Parliament. 18 There are further requirements for the granting of an easement contained in s 88K. The first is that the Court must be satisfied that the use of the land having the benefit of the easement will not be inconsistent with the public interest. Here all the parties who have made their views known to the Court consent to the easement. There is no reason to believe that any of the owners of the proposed easement site have any objections. The public interest is, to some extent, served by granting this easement rather than requiring the adoption of either of the other alternative access routes, because there is considerably less environment impact from the granting of this easement. 19 There is nothing in the circumstances which are outlined in the evidence which suggests that the granting of the easement is, in any other way, inconsistent with the public interest. I am satisfied that this requirement is made out. 20 The next requirement is that the owner of the land who is burdened by the easement must be adequately compensated for any other loss or disadvantage which will arise from the granting of the easement. The parties to the proceedings have agreed that a sum slightly in excess of $25,000 will be paid by the plaintiffs for the grant of the easement. There is in evidence a valuation which values the easement at $20,000. In light of this evidence of value, and of the consent of those who have appeared before me, I am satisfied that this requirement is made out. 21 The final requirement is that all reasonable attempts have been made by the applicants for an order to obtain the easement or an easement having the same effect but have been unsuccessful. In the unusual circumstances of the title to the proposed servient tenement being divided into 500 shares, held by something in excess of 200 people, it seems to me that the applicants have done all that can reasonably be expected of them. Precisely the same circumstances which led to it being appropriate for the Court to make an order for substituted service of the summons in the matter justify a conclusion that all reasonable attempts have been made by the applicants for an order to obtain the easement or an easement having the same effect but have been unsuccessful. 22 I make orders in accordance with consent orders signed by the solicitor for the plaintiffs, the solicitor for the first defendant, the director of Country Retreats Pty Limited and Mr Adzersen. 23 The exhibits may be returned. ********** Last Modified: 12/03/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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