Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282

Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282

A court-ordered easement under Option 1 is not reasonably necessary in perpetuity for the effective use of the plaintiffs' land; however, for periods when Option 4 is impassable or unsafe, a limited easement is reasonably necessary for residential and agricultural use. Compensation and disturbance must be tailored to reflect limited use, and attempts to negotiate the easement satisfy statutory requirements.

Jurisdiction
Australia
Judgment Date
22 September 2017
Procedural Posture
Application for Court Imposed Easement / Principal Judgment
Outcome
Limited easement granted subject to conditions: Option 1 easement available only when Option 4 impassable/unsafe; compensation ordered.
Legal Topics
['easements' 'imposition of Easements' 'reasonable Necessity' 'compensation' 'access to Land']
['land Law' 'equity'] ['easements' 'imposition of Easements' 'reasonable Necessity' 'compensation' 'access to Land']

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Procedural Posture

Application for Court Imposed Easement / Principal Judgment

Legal Issues

  1. 1 ['Whether an easement is reasonably necessary for effective use of agricultural and residential land under s 88K of the Conveyancing Act 1919 (NSW)' 'Proper scope and terms of a court-imposed easement' 'Adequacy of compensation' 'Reasonable attempts to obtain the easement']

Ratio Decidendi

A court-ordered easement under Option 1 is not reasonably necessary in perpetuity for the effective use of the plaintiffs' land; however, for periods when Option 4 is impassable or unsafe, a limited easement is reasonably necessary for residential and agricultural use. Compensation and disturbance must be tailored to reflect limited use, and attempts to negotiate the easement satisfy statutory requirements.

Court Disposition

Limited easement granted subject to conditions: Option 1 easement available only when Option 4 impassable/unsafe; compensation ordered.

Orders

  • ['Parties invited to draft easement terms conforming to reasons.' 'Surveyor to identify boundaries and river heights for limited easement use.' 'Short minutes to be prepared regarding easement terms and compensation.' 'Plaintiffs to pay compensation as ordered.']