A.T.B. Morton Pty Ltd v Community Association DP270447 (No 3) [2018] NSWLEC 135

A.T.B. Morton Pty Ltd v Community Association DP270447 (No 3) [2018] NSWLEC 135

It is unnecessary and inappropriate to require, as an express term of the easement, that the servient tenement provide owner’s consent to every development application for works within the roadway, as such obligation already exists at common law where reasonably necessary, and further express terms could...

Source-derived case information.

Parties
Applicant: A.T.B. Morton Pty Ltd; Respondent: Community Association DP270447
Jurisdiction
Australia
Judgment Date
31 August 2018
Procedural Posture
Class 3 Proceeding for Imposition of Easement Under Conveyancing Act 1919 (nsw) S 88 K / Final Orders Following Hearing on Terms of Easement
Outcome
Orders for imposition of easement as per Annexure A (with disputed term 8 removed); compensation and costs awarded to the respondent.
Legal Topics
Easements, Imposition of Easement by Court Order, Terms of Easement, Servient and Dominant Tenements
Property Law Easements Imposition of Easement by Court Order Terms of Easement Servient and Dominant Tenements

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Parties

A.T.B. Morton Pty Ltd

Applicant

Community Association DP270447

Respondent

Procedural Posture

Class 3 Proceeding for Imposition of Easement Under Conveyancing Act 1919 (nsw) S 88 K / Final Orders Following Hearing on Terms of Easement

Legal Issues

  1. 1 What are the appropriate final terms to impose for the s 88K easement?
  2. 2 Should there be an express term requiring servient tenement owner's consent to development applications for works within the roadway?
  3. 3 Are other controlling, monitoring, or procedural terms necessary or appropriate?

Ratio Decidendi

It is unnecessary and inappropriate to require, as an express term of the easement, that the servient tenement provide owner’s consent to every development application for works within the roadway, as such obligation already exists at common law where reasonably necessary, and further express terms could inappropriately infringe servient owner's rights.

Court Disposition

Orders for imposition of easement as per Annexure A (with disputed term 8 removed); compensation and costs awarded to the respondent.

Orders

  • Easement to be imposed over the land, terms as set out in Annexure A.
  • Applicant to pay respondent compensation of $262,000 upon registration of the easement.