The Owners – Strata Plan No 61233 v Arcidiacono; The Owners – Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 61233 v Arcidiacono; The Owners – Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307 Hearing dates: 18, 19, 20, 21, 22, 28, 29 March and 18 April 2019; last written submissions received 3 May 2019. Decision date: 30 September 2019 Jurisdiction: Equity Before: Henry J Decision: See [43]-[44], [621]-[625] Catchwords: LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880's and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it

LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for overhang and encroaching structures to remain and for repair and services considered reasonably necessary – where elements of first plaintiff's heritage building intrude on to defendants' land – compensation awarded under s 88K Conveyancing Act 1919 (NSW) – easements for drainage of sewerage and water and for light and air refused –– first plaintiff failed to establish easements for light and air were reasonably necessary

LAND LAW – easements – creation of easements – creation by express grant or implication in old system deeds of conveyance – held that general words in 1871 deed created rights of way to benefit of landlocked plots over private lane where only access to public road via that lane – where rights of way no longer accommodate the second plaintiff's land – held that second plaintiff does not have the benefit of any existing rights of way