Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777

Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777

The Plaintiff's insistence on using the New Access Point for access across the ROC is not reasonable where reasonable access is available at the Original Access Point, especially as the New Access Point affects proprietary rights of Lot 41, specifically the Lot 9 car parking spaces, and would require the Defendants to bear costs or lose spaces. Despite pro tanto operation of development consents on restrictive covenants, the Plaintiff is not entitled to compel use at a point of its choosing where it primarily seeks increased profit and has proceeded with knowledge of the restrictions. The Defendants' use of the car parking spaces is not a substantial interference. On the Cross Claim, the...

Parties
Plaintiff/cross Defendant: Natva Developments Pty Ltd; First Defendant/first Cross Claimant: McDonald Bros Pty Ltd; Second Defendant/second Cross Claimant: Norman Thomas Jennings; Second Defendant/second Cross Claimant: Nadia Gina Jennings; Third Defendant/third Cross Claimant: Winsave Pty Ltd; Fourth Cross Claimant: Owners Corporation Strata Plan 48268
Jurisdiction
Australia
Judgment Date
27 August 2004
Procedural Posture
Equity Proceedings (easements, Cross Claim) / Judgment After Trial
Outcome
Judgment for Defendants on the Statement of Claim; judgment for Plaintiff on Amended Cross Claim.
Legal Topics
Easements, Right of Way, Substantial Interference, Reasonable Use, Nuisance, Development Consents
Property Law Planning and Environment Easements Right of Way Substantial Interference Reasonable Use Nuisance Development Consents

Case Brief

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Parties

Natva Developments Pty Ltd

Plaintiff/cross Defendant

McDonald Bros Pty Ltd

First Defendant/first Cross Claimant

Norman Thomas Jennings

Second Defendant/second Cross Claimant

Nadia Gina Jennings

Second Defendant/second Cross Claimant

Winsave Pty Ltd

Third Defendant/third Cross Claimant

Owners Corporation Strata Plan 48268

Fourth Cross Claimant

Procedural Posture

Equity Proceedings (easements, Cross Claim) / Judgment After Trial

Legal Issues

  1. 1 What usage of the right of carriageway (ROC) is within the terms of the grant?
  2. 2 Whether the title to the Lot 9 car parking spaces is still subject to the ROC given various development consents and relevant legislation.
  3. 3 Whether construction of a barrier to protect the Lot 9 car parking spaces would be substantial interference with the Plaintiff's enjoyment of the ROC.

Ratio Decidendi

The Plaintiff's insistence on using the New Access Point for access across the ROC is not reasonable where reasonable access is available at the Original Access Point, especially as the New Access Point affects proprietary rights of Lot 41, specifically the Lot 9 car parking spaces, and would require the Defendants to bear costs or lose spaces. Despite pro tanto operation of development consents on restrictive covenants, the Plaintiff is not entitled to compel use at a point of its choosing where it primarily seeks increased profit and has proceeded with knowledge of the restrictions. The Defendants' use of the car parking spaces is not a substantial interference. On the Cross Claim, the...

Court Disposition

Judgment for Defendants on the Statement of Claim; judgment for Plaintiff on Amended Cross Claim.

Orders

  • Plaintiff's claim dismissed; Defendants' Cross Claim dismissed; If requested by Defendants, declaration that access to Lot 42 from New Access Point constitutes an unreasonable use of the ROC by the Plaintiff. Proceeding stood over for orders and argument as to costs.