ABI-K Pty Limited v Frank Shi [2014] NSWSC 551

Supreme Court New South Wales

Medium Neutral Citation: ABI-K Pty Limited v Frank Shi [2014] NSWSC 551 Hearing dates: 2 May 2014 Decision date: 02 May 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Drainage easement imposed Catchwords: EASEMENTS - Creation - Power to order - Drainage easement - Costs where reasonable offer of compensation not accepted before proceedings commenced - Conveyancing Act 1919, s 88K Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Category: Principal judgment Parties: ABI-K Pty Limited (Plaintiff) Frank Shi (Defendant) Representation: Counsel: Mr R.A. Parsons (Plaintiff) Mrs A. Shi (by leave on behalf of the Defendant) Solicitors: Madison Marcus (Plaintiff) File Number(s): 2013/269928 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: By a summons filed on 5 September 2013 the plaintiff ("ABI-K") seeks an order pursuant to s 88K of the Conveyancing Act 1919 (NSW) (the "Act") creating an easement (the "proposed easement") to drain water one metre wide along the western boundary of a property owned by the defendant ("Mr Shi"). ABI-K is entitled to such an order.

The facts 2ABI-K is the registered proprietor of land known as 50 Felton Road, Carlingford. It is a double block. To the south of 50 Felton Road there are two blocks of land which share a common boundary with 50 Felton Road. One is 15 Blenheim Road, of which Mr Shi is the registered proprietor. The other block, consisting of two dwellings known as 17 and 17A Blenheim Road, is immediately to the west of Mr Shi's property. The land on which 50 Felton Road and 15, 17 and 17A Blenheim Road are built falls from north to south. Felton Road is higher than Blenheim Road. 3By a deferred commencement consent dated 12 July 2013, ABI-K received consent from the Hills Shire Council (the "Council") to redevelop 50 Felton Road. The consent was deferred until satisfaction of the following requirement: A1. Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979 deferred commencement consent is granted subject to the following: 1. The creation of a 1m wide drainage easement over the downstream property, ... No: 15 Blenheim Road. 4ABI-K's present application is brought in order to enable it to fulfil the condition which has been imposed by the Council. 5Mr Shi's property has two dwellings on it. There is what is described as a granny flat built at the northern end of the property abutting the rear of 50 Felton Road. To the south of the granny flat there is a separate dwelling which is the main house. Significantly for the present proceedings, Mr Shi has a development application of his own currently before the Council to construct at least garages, a hard stand and some other structures not presently relevant on 15 Blenheim Road. 6The granny flat has been built to within 900 millimetres of the western boundary. That reflects the minimum set back established by Council's Development Control Plan. The proposed additional structures included in Mr Shi's current application before the Council are also intended to be built up to within 900 millimetres of the western boundary. I shall refer to that 900 millimetres as the "set back area". The plan accompanying Mr Shi's application also shows that he intends to run a drainage pipe underground within the set back area for the benefit of his property. The area which is proposed by ABI-K for the proposed easement is a one metre wide area abutting the western boundary of Mr Shi's property. In other words, it includes the whole of the set back area plus an additional 100 millimetres into Mr Shi's property.