Foster v Hidden Valley Owners' Co-Operative Society Limited [2002] NSWSC 1120

Foster v Hidden Valley Owners' Co-Operative Society Limited [2002] NSWSC 1120

The requirements of s 88K Conveyancing Act 1919 are satisfied: the easement is reasonably necessary for effective use of the applicant land, public interest is not inconsistent, the servient owners will be adequately compensated, and reasonable attempts have been made to obtain the easement by agreement; therefore, the easement is granted.

Parties
First Plaintiff: Keay Margaret Foster; Second Plaintiffs: Campbell Tiley & Nicola Tayler; First Defendant: Hidden Valley Owners' Co-Operative Society Limited; Second Defendants: Hans Adzersen & Birgitta Adzersen & Ors
Jurisdiction
Australia
Judgment Date
12 November 2002
Procedural Posture
Application Under S 88 K Conveyancing Act 1919 for Grant of Easement / Judgment
Outcome
Easement granted
Legal Topics
Easements, Grant of Easement, Conveyancing Act S 88 K, Access to Land
Real Property Easements Grant of Easement Conveyancing Act S 88 K Access to Land

Case Brief

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Parties

Keay Margaret Foster

First Plaintiff

Campbell Tiley & Nicola Tayler

Second Plaintiffs

Hidden Valley Owners' Co-Operative Society Limited

First Defendant

Hans Adzersen & Birgitta Adzersen & Ors

Second Defendants

Procedural Posture

Application Under S 88 K Conveyancing Act 1919 for Grant of Easement / Judgment

Legal Issues

  1. 1 Whether s 88K Conveyancing Act 1919 requirements are satisfied for grant of easement
  2. 2 Whether easement is reasonably necessary for effective use or development of land
  3. 3 Public interest consideration in granting easement

Ratio Decidendi

The requirements of s 88K Conveyancing Act 1919 are satisfied: the easement is reasonably necessary for effective use of the applicant land, public interest is not inconsistent, the servient owners will be adequately compensated, and reasonable attempts have been made to obtain the easement by agreement; therefore, the easement is granted.

Court Disposition

Easement granted

Orders

  • Orders made in accordance with consent orders signed by parties' solicitors and representatives.
  • Representative order appointing Mr Adzersen to represent all registered proprietors of the 500 shares.