Etwell & Anor v Newcastle City Council [2006] NSWSC 1165

Reported Decision : 151 LGERA 64

New South Wales Supreme Court

CITATION : Etwell & Anor v Newcastle City Council [2006] NSWSC 1165

HEARING DATE(S) : 3 November 2006

JUDGMENT DATE : 3 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 11/03/2006

DECISION : Order for easement should be made upon terms; no compensation payable; plaintiffs to pay defendant's costs.

CATCHWORDS : REAL PROPERTY – EASEMENT – COMMUNITY LAND – Whether right of carriageway over community land reasonably necessary for effective use of private property – whether Court should impose terms as to release of easement in future – whether compensation should be ordered – whether applicants should pay defendant's costs of application.

LEGISLATION CITED : - Conveyancing Act 1919 (NSW) – s.88K - Local Government Act 1993 (NSW) – s.45, s.46, s.47

- Durack v de Winton (1998) 9 BPR 16,403 CASES CITED : - Marshall v Council of the City of Wollongong (2000) 107 LGERA 73 - Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845

Stephanie Claire Etwell – First Plaintiff PARTIES : Andrew Cyril Etwell – Second Plaintiff Council of the City of Greater Newcastle – Defendant

FILE NUMBER(S) : SC 2886/05

COUNSEL : S.D. Harvey (Sol) – Plaintiffs M.C. Fraser – Defendant

SOLICITORS : Harvey Law Firm – Plaintiffs Levitt Robinson – Defendant

2886/05 Etwell & Anor v Council of the City of Greater Newcastle

JUDGMENT 3 November, 2006

Introduction

1 The Plaintiffs seek an order under s.88K of the Conveyancing Act 1919 (NSW) imposing a right of carriageway over land owned by the Defendant. 2 The Plaintiffs are the registered proprietors of a residential property known as 120 Bridges Road, New Lambton, being the land contained in Identifiers 102/20217 and 1/23324 ("the Property"). At the rear of the Property is a small and dilapidated garage. For many years access to that garage has been gained via a gravel track leading across a section of land which adjoins the southern boundary of the Property. That land is part of a public reserve called Alder Park, which is owned by the Defendant and which is classified as community land under the Local Government Act 1993 (NSW). 3 The Plaintiffs wish to replace the old garage on their Property with a new garage. They have lodged a development application with the Defendant for that purpose. The Defendant requires that a right of vehicular access to the new garage be demonstrated before the development application can be granted. 4 It is not in dispute that vehicular access to the rear of the Plaintiffs' Property and to the garage cannot be gained from the street frontage as the house on the Property is built far too close to the side boundaries. The only pragmatic means of vehicular access to the rear of the Property and to the garage is via the track across the section of Alder Park adjoining the southern boundary of the Plaintiffs' Property. 5 On 9 November 2004 the Plaintiffs' solicitor wrote to the Defendant requesting that it grant to the Plaintiffs a right of carriageway over the track giving access to the garage under s.88K of the Conveyancing Act and offering to pay compensation. The position and the dimensions of the proposed easement are as shown in a plan prepared by a surveyor which is now Schedule 1 to the Plaintiffs' Summons. The terms upon which it is proposed that the easement be granted are also set out in Schedule 1. 6 On 9 November 2004 the Defendant wrote to the Plaintiffs' solicitor advising that, as Alder Park is classified as community land under the Local Government Act, the Defendant has no power to grant the easement requested. 7 It is not in dispute that the Defendant has no power to grant the easement requested by the Plaintiffs under the Local Government Act. It is prevented from doing so by s.45 of the Local Government Act and none of the exceptions in s.46 and s.47 apply. It is not in dispute that the only way in which the easement required by the Plaintiffs can be created is if this Court, in the exercise of its discretionary power, makes an order under s.88K(1) of the Conveyancing Act. Both parties accept that s.88K applies to community land under the Local Government Act: Marshall v Council of the City of Wollongong (2000) 107 LGERA 73. 8 The parties have generally agreed upon the issues for determination in this application as follows: