Marian Walker v Brian Bridgewood & Ors [2006] NSWSC 149

New South Wales Supreme Court

CITATION : Marian Walker v Brian Bridgewood & Ors [2006] NSWSC 149

HEARING DATE(S) : 13/02/06, 14/02/06, 15/02/06

JUDGMENT DATE : 29 March 2006

JUDGMENT OF : Gzell J

DECISION : Order extinguishing right of way on basis it ought to be deemed obsolete under the Conveyancing Act 1919, s 89(1)(a). Cross claim dismissed.

CATCHWORDS : CONVEYANCING - Land Titles under the Torrens System - Easements - Right of way created in 1901 from one set of stables to another on lands under single ownership - Right with or without horses, carts, carriages or waggons laden or unladen to go pass and repass - Land rising six metres from street frontage to bottom of retaining wall and ten metres to top of fence on retaining wall between servient tenement and rear of dominant tenement - Ramp to rear of servient tenement dilapidated - Right of way turning 90 degrees at rear of servient tenement - Reasonably even but sloping towards road frontage - No wheel marks - Driveway proposed at 20% to conform with council requirements - Expert evidence motor vehicles could not negotiate 90 degree turn without encroaching on other land of servient or dominant tenement - Likelihood that 40% landscaping requirement could not be met if off street parking provided on either dominant tenement - Driveway requiring fill one metre high at rear of residence on servient tenement continuing down right of way three feet from main entrance to residence - Other dominant tenement requiring driveway to be as low as possible at rear of residence on servient tenement for off street parking hence preventing balance of driveway achieving 20% gradient - Whether right of way should be construed as excluding vehicular traffic - Whether obsolete, impediment to reasonable use of servient tenement, abandoned or no substantial injury to dominant tenements if extinguished