Clough v Breen (No. 4) [2023] NSWSC 1155

Clough v Breen (No. 4) [2023] NSWSC 1155

The rights conferred under Easement A (and comparable easements) entitle the dominant tenement owner to enter the servient tenement outside the defined easement site, but only where and to the extent that such entry is 'reasonably necessary' for the exercise of the easement right, considering the physical topography and functional requirements; conduct by either party that substantially interferes with the other's access or enjoyment under the easements, or involves excessive use beyond what is reasonably necessary, constitutes actionable nuisance or trespass; several incidents involved such excessive use, while others did not rise to actionable interference.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Equity/principal Judgment / Final Judgment With Further Issues Reserved
Outcome
Declarations made regarding construction of easements; interim regime continued; injunctions and damages issues left for further submissions.
Legal Topics
['easements' 'nuisance' 'trespass' 'easement for Services' 'right of Access' 'construction of Easement Instruments']
['land Law' 'equity' 'real Property'] ['easements' 'nuisance' 'trespass' 'easement for Services' 'right of Access' 'construction of Easement Instruments']

Case Brief

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Procedural Posture

Equity/principal Judgment / Final Judgment With Further Issues Reserved

Legal Issues

  1. 1 ['Whether conduct of parties amounted to substantial interference with rights under easements or trespass upon servient tenement' 'Whether the use of the inclinator by the dominant tenement owners amounted to excessive use and trespass or nuisance' 'Proper construction of Easement A under the s 88B instrument—scope of access for Lot 118 owner to Lot 116' 'Whether Lot 118 owner may enter Lot 116 outside site of easement in certain circumstances' 'Whether court is precluded by estoppel or res judicata in light of earlier judgments']

Ratio Decidendi

The rights conferred under Easement A (and comparable easements) entitle the dominant tenement owner to enter the servient tenement outside the defined easement site, but only where and to the extent that such entry is 'reasonably necessary' for the exercise of the easement right, considering the physical topography and functional requirements; conduct by either party that substantially interferes with the other's access or enjoyment under the easements, or involves excessive use beyond what is reasonably necessary, constitutes actionable nuisance or trespass; several incidents involved such excessive use, while others did not rise to actionable interference.

Court Disposition

Declarations made regarding construction of easements; interim regime continued; injunctions and damages issues left for further submissions.

Orders

  • ['Declarations as to the scope of access rights for Lot 118 owner under Easement A, including permitted entry onto Lot 116 outside the corridor when reasonably necessary for access or repair.' 'Continuation of interim orders restraining certain uses pending further submissions.' 'Declarations and directions made...