Trewin v Felton [2007] NSWSC 851

New South Wales Supreme Court

CITATION : Trewin v Felton [2007] NSWSC 851

HEARING DATE(S) : 14-17 May 2007 Written submissions 20 June 2007

JUDGMENT DATE : 7 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Defendant is entitled to fence and gate corridor, but not so as to deny plaintiffs suitable access points, to permit reasonable user by them of right of carriageway. In current configuration, 13 metre access point exhausts limits of reasonable access. Plaintiffs are entitled to mandatory injunction requiring demolition of gateposts, but not in respect of other alleged obstructions. Defendant is entitled to injunction restraining plaintiffs from authorising persons to use carriageway without ensuring that they do not park or remain in it. Defendant is not entitled to order modifying or partially extinguishing the easement.

CATCHWORDS : REAL PROPERTY – Torrens title – Easements – Right of carriageway – Construction – where created by s 88B instrument – where easement runs along length of a boundary of dominant land – extent of access points permitted from easement to dominant land – servient owner's right to gate and fence easement – whether dominant owner entitled to park or remain on easement – Modification and extinguishment – whether obsolete – whether impedes reasonable user of servient land without securing practical benefit to dominant land – whether abandoned – whether can be modified without substantial injury to dominant owner – Obstruction – by gateposts – by gate – by fence – by parking – remedies – mandatory injunction – Trespass – by excessive user – parking by users authorised by dominant owner – remedies – injunction restraining authorising use without ensuring users do not park