Twomey v Blanch & Anor [2008] NSWSC 826

New South Wales Supreme Court

CITATION : Twomey v Blanch & Anor [2008] NSWSC 826

HEARING DATE(S) : 11 August 2008

JUDGMENT DATE : 11 August 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 11 August 2008

DECISION : Plaintiff entitled only to access offered by Defendants.

CATCHWORDS : EASEMENTS – RIGHT OF WAY – Plaintiff seeks four points of access from right of way to his land – whether all are reasonably required for use and enjoyment of Plaintiff's land.

LEGISLATION CITED : Conveyancing Act 1919 (NSW) – Schedule 8, Part 1

CATEGORY : Principal judgment

- Bulstrode v Lambert [1953] 1 WLR 1064 CASES CITED : - Chiu v Healey [2003] NSWSC 857 - Trewin v Felton [2007] NSWSC 851

Raymond William Twomey (Plaintiff) PARTIES : Jason Dudley Blanch (First Defendant) Clarence Dudley Blanch (Second Defendant)

FILE NUMBER(S) : SC 3041/08

COUNSEL : S.J. Philips (Plaintiff) D.P.M. O'Dowd (Defendants)

SOLICITORS : Barraclough Jones (Plaintiff) Steven T. Parrott (Defendants)

3041/08 Twomey v Blanch & Anor

JUDGMENT – Ex tempore 11 August, 2008 Introduction

1 The Plaintiff and the Defendants are adjoining owners of commercial premises fronting Church Street, one of the main streets of the town of Gloucester. The Plaintiff's land, No.93, has the benefit of a right of carriageway ten feet (3.04m) wide, over the Defendants' land, which is No.89. 2 The Defendants wish to fence their land to provide security for their business activities, thereby enclosing the right of carriageway but allowing access to the Plaintiff's land through gates at certain points. The Plaintiff says that access only at those points would unreasonably interfere with his enjoyment of the right of carriageway. 3 The only issue for determination now is whether the reasonable use of the right of carriageway by the Plaintiff requires access to No.93 at four points along the right of carriageway, as the Plaintiff contends, or at only two points, as the Defendants contend. 4 Since about 1980 the Plaintiff has operated a hardware store on No.93. The Defendants operate an auto electrical and garage business on No.89. 5 The right of carriageway runs along the length of the southern boundary of No.89. Until very recently, there was no fence between No.89 and No.93, allowing the Plaintiff's customers to drive freely onto the right of carriageway and pedestrians to come onto it both from Church Street and from a lane running parallel to Church Street at the rear of No.93, called Billabong Lane. 6 In May 2008 the Defendants, after notice to the Plaintiff, began erecting a fence along the boundary line between the properties. The right of way was obstructed for a time. 7 A dispute arose between the parties which led to the commencement of these proceedings. The Plaintiff sought an injunction restraining the Defendants from erecting any fence along the boundary of the right of carriageway. The issues relating to the obstruction of the right of carriageway have now been resolved. 8 The Plaintiff has filed an Amended Summons in which he seeks orders restraining the Defendants from erecting a fence in a location which will prevent access to No.93 at four specified points. When the trial commenced this morning, the Defendants took the position that they would allow access at two of those points. The contest has therefore been confined to whether the Plaintiff's reasonable use and enjoyment of the right of carriageway entitles him to access at the remaining two points.