Trevlind v BMP Manufacturing [2008] NSWSC 603

New South Wales Supreme Court

CITATION : Trevlind v BMP Manufacturing [2008] NSWSC 603

HEARING DATE(S) : 2 May 2008

JUDGMENT DATE : 19 June 2008

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : See paras 47-48 of judgment.

CATCHWORDS : LOCAL GOVERNMENT – works – ownership of drainage works – whether council installed works – Council did not provide labour, funds or supervision – drainage works not installed by council - REAL PROPERTY – easements – easements in gross – easement in gross can be created pursuant to ss 88B(2)(a) and (3)(a) Conveyancing Act – whether an easement created appurtenant to an existing public road was an easement in gross – easement to be construed in context – instrument setting out the terms of the easement specified lots and a public road to be benefited – Council not named as a body to be benefited – not an easement in gross - REAL PROPERTY – easements – whether easement is 'land' that is 'held' in context of s 51 Local Government Act – land held for drainage purposes may be used for other purposes not inconsistent with its use for drainage purposes – 'Land' refers to physical land in this context – 'To hold' requires more than an entitlement to use land for drainage purposes in this context

Conveyancing Act 1919 (NSW) LEGISLATION CITED : Local Government Act 1993 (NSW) Local Government and Conveyancing (Amendment) Act 1964 (NSW) Interpretation Act 1987 (NSW)

CATEGORY : Principal judgment

Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 Commissioner for Main Roads v BP Australia Ltd (1964) 82 WN (Pt 2) (NSW) 27 CASES CITED : Bonvale Enterprises Pty Ltd v Halpenny Investments Pty Ltd (2005) 62 NSWLR 698 Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 239 ALR 75; 81 ALJR 1887 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470