Flockhart v Parramatta City Council [2010] NSWSC 1380

New South Wales Supreme Court

CITATION : Flockhart v Parramatta City Council [2010] NSWSC 1380

HEARING DATE(S) : 23 November 2010 JUDGMENT OF : Ball J

EX TEMPORE JUDGMENT DATE : 23 November 2010

1. Motion filed by Oatlands Golf Club Pty Ltd dismissed with costs. DECISION : 2. Order pursuant to s 89 of the Conveyancing Act 1919 extinguishing the easement for drainage benefiting the defendant. 3. Stay the order referred to in paragraph 2 for a period of 21 days. 4. Liberty to apply after 21 days in relation to the question of costs.

CATCHWORDS : PROCEDURE – civil – parties – joinder – whether applicant has sufficient interest – where party with no interest in land sought to resist application for extinguishment of easement

LEGISLATION CITED : Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY : Procedural and other rulings

CASES CITED : Oldfield v Gold Coast City Council [2009] QCA 124

PARTIES : Alan Peter Flockhart (Plaintiff) Parramatta City Council (Defendant)

FILE NUMBER(S) : SC 2010/296536

COUNSEL : Mr K Ginges (Plaintiff) Mr M Seymour (Defendant)

SOLICITORS : Robilliard Lawyers (Plaintiff) Storey & Gough (Defendant)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BALL J

23 NOVEMBER 2010

2010/296536 ALAN PETER FLOCKHART v PARRAMATTA CITY COUNCIL EX TEMPORE JUDGMENT 1 This case concerns an easement granted by the plaintiff which the plaintiff now seeks to have extinguished under s 89 of the Conveyancing Act 1919. The easement, which is for drainage, runs along the eastern boundary of the plaintiff's land. At the northern end of the easement is a golf course owned by Oatlands Golf Club Ltd. At the southern end of the easement is Niblick Crescent, which is several metres lower than the land on which the golf club is situated. The easement is described in the relevant deposited plan as an easement for "drainage 6 feet wide over part of Lot 11 [which is the plaintiff's land] in favour of the Council of the City of Parramatta appurtenant to new road, Niblick Crescent." 2 The plaintiff submits that the easement is of no use to the council since Niblick Crescent is lower than the land north of it. The council apparently agrees, since it has filed a submitting appearance. The easement has also benefited the golf club since it permits water to drain from its land to Niblick Crescent. For that reason the golf club seeks to be joined as a defendant in the proceedings. 3 The plaintiff resists that application. It does so on two bases. First, the plaintiff says that the golf club does not have standing under s 89 of the Conveyancing Act, since it is not a person interested in the land. Second, it submits that it is not an entity which ought to have been joined in the proceedings, nor a necessary party to the proceedings as required by UCPR r 6.24. I accept the plaintiff's submissions. 4 The golf club sought to argue that the easement in this case was an easement in gross that benefited the public. However, it does not seem to me that that submission is reasonably arguable. The easement in this case was not granted by statute but by agreement with the council as part of the subdivision of the relevant land. It must have been intended to benefit the council's land as the dominant tenant. I can envisage a situation in which that benefit has substantial benefits for others and that, in circumstances where the council is not prepared to contest an application under s 89, it would be appropriate for the court to permit someone else, in effect, to stand in the council's shoes. The case of Oldfield v Gold Coast City Council [2009] QCA 124 which Mr Seymour (who appeared for the golf club) referred me to seems to fall into that category, although in that case, of course, the council remained involved in the proceedings. Here, however, the benefit the golf club seeks to obtain has nothing to do with the council land. The golf club seeks to preserve the easement so that water can drain directly from its land. That benefit is unconnected to the council's land. 5 I accept the plaintiff's submission that in those circumstances the appropriate relief for the golf club is to seek an order for the granting of an easement under s 88K. I do not think it is an entity which has standing to resist an application under s 89. For that reason it cannot be a necessary party or one that ought to have been joined under UCPR r 6.24. 6 In those circumstances the motion should be dismissed with costs. 7 The question, then, is whether I should make the orders sought by the plaintiff under s 89. 8 In my opinion those orders should be made. It seems clear that the land the easement was intended to benefit was the council's roadway and, in particular, Niblick Crescent. It seems equally clear that the easement is of no benefit at all since the roadway is lower than the land to which drainage was intended to occur. Consequently, the easement serves no purpose. 9 In circumstances where the council has filed a submitting appearance I can see no reason not to make the orders. 10 I make orders in terms of paragraph 1 of the summons. However, I stay these orders for a period of 21 days and I give liberty to either party to relist the matter before me after the 21 days by contacting my associate in order to deal with the question of costs.