Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor [2008] NSWSC 213

Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor [2008] NSWSC 213

Subject to the outstanding matters about the precise form and consistency of the development application materials, the grant of the right of carriageway carried at least an ancillary right, in the present circumstances, to co-join a portion of the dominant tenement with the right of way so as to form part of a turning or manoeuvring area. Once the proposed security gate was treated as a given, the works on and off the right of way were reasonably necessary for the effective and reasonable exercise and enjoyment of the express right to go, pass and repass to and from the dominant tenement, and the proposed use was not an unreasonable appropriation of the servient land.

Jurisdiction
Australia
Judgment Date
14 March 2008
Procedural Posture
Equity Division Proceedings Concerning a Right of Carriageway and an Order Compelling Consent to a Development Application / Principal Judgment; Matters of Principle Determined and Proceedings Stood Over for Further Address
Outcome
Matters of principle were determined in favour of the plaintiffs in substance, subject to further consideration of detailed issues concerning the development application; proceedings were stood over for further address.
Legal Topics
['right of Carriageway' 'dominant and Servient Tenements' 'ancillary Rights Under Easements' 'development Application Owner Consent' 'overriding Purpose Rule']
['real Property' 'torrens Title' 'easements' 'civil Procedure' 'planning and Development'] ['right of Carriageway' 'dominant and Servient Tenements' 'ancillary Rights Under Easements' 'development Application Owner Consent' 'overriding Purpose Rule']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning a Right of Carriageway and an Order Compelling Consent to a Development Application / Principal Judgment; Matters of Principle Determined and Proceedings Stood Over for Further Address

Legal Issues

  1. 1 ["Whether the right of carriageway over the defendants' land permitted the plaintiffs, as dominant tenement owners, to undertake works on the right of way to facilitate a turning or manoeuvring area partly on their own land." "Whether any right to co-join part of the plaintiffs' land with the right of way for manoeuvring was an express or ancillary right, and whether it was reasonably necessary for the effective reasonable exercise and enjoyment of the easement." 'Whether the defendants could be compelled to sign a consent to the making of a development application to Woollahra Municipal Council for alterations to the driveway constructed on the right of way.' 'Whether the development application materials were uncertain, internally inconsistent or misleading because of the small driveway encroachment outside the right of carriageway.']

Ratio Decidendi

Subject to the outstanding matters about the precise form and consistency of the development application materials, the grant of the right of carriageway carried at least an ancillary right, in the present circumstances, to co-join a portion of the dominant tenement with the right of way so as to form part of a turning or manoeuvring area. Once the proposed security gate was treated as a given, the works on and off the right of way were reasonably necessary for the effective and reasonable exercise and enjoyment of the express right to go, pass and repass to and from the dominant tenement, and the proposed use was not an unreasonable appropriation of the servient land.

Court Disposition

Matters of principle were determined in favour of the plaintiffs in substance, subject to further consideration of detailed issues concerning the development application; proceedings were stood over for further address.

Orders

  • ['Proceedings to be stood over for further address following the parties being given an opportunity to consider the reasons.']