Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252

New South Wales Supreme Court

CITATION : Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252

HEARING DATE(S) : 14 and 15 February 2007

JUDGMENT DATE : 22 March 2007

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Order that defendant consent to the lodgement of a development application for the use of a right of way.

CATCHWORDS : EASEMENTS – Right of way – Right of carriageway in favour of whole or any part of dominant tenement for "any purpose" – Subdivision of dominant land – Large residential development proposed on one lot of subdivided dominant tenement – Consent of owner of servient tenement required for lodgement of application in Land and Environment Court for use of right of carriageway for proposed development – Consent refused – Whether mandatory order for consent should be made – Construction of terms of grant of easement – Evidence admissible on construction – Whether question of excessive use special consideration or one going to construction

Conveyancing Act 1919 LEGISLATION CITED : Environment Planning and Assessment Act 1979 EPA Regulation 2000

Jelbert v Davis [1968] 1 WLR 589 Kirkjian v Towers (unreported NSWSC Waddell J 7 March 1975 and Waddell CJ in Eq 6 July 1987) CASES CITED : Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337 South Metropolitan Cemetery Company v Eden (1855) 16 CB 42 Todrick v Western National Omnibus Co [1934] Ch 190

PARTIES : Nirimba Developments Pty Limited (Plaintiff) Sertari Pty Limited (Defendant)

FILE NUMBER(S) : SC 5386/06

COUNSEL : Mr S Kalfas SC with him Mr S Flanigan (Plaintiff) Mr T S Hale SC with him Mr M A Izzo (Defendant)