Panfili v Lawless [2010] NSWSC 79

Panfili v Lawless [2010] NSWSC 79

The defendants' works and plantings on lot C substantially interfered with the plaintiff's reasonable use of the right of carriageway for vehicular access, particularly for large vehicles, as contemplated by the purposes and terms of the easement instrument. Accordingly, the plaintiff was entitled to the removal of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 February 2010
Procedural Posture
Principal Judgment / Final Orders After Hearing on Merits
Outcome
Orders made in favour of the plaintiff in part; claims otherwise dismissed; cross-claim dismissed; costs to plaintiff.
Legal Topics
['easements' 'rights of Carriageway' 'obstruction of Easements' 'construction of Easement Instruments']
['real Property' 'equity'] ['easements' 'rights of Carriageway' 'obstruction of Easements' 'construction of Easement Instruments']

Source-derived case record

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Procedural Posture

Principal Judgment / Final Orders After Hearing on Merits

Legal Issues

  1. 1 ["Whether the works and improvements constructed by the defendants on the servient tenement (lot C) resulted in substantial interference with the plaintiff's right of carriageway over that land" 'Construction of the terms of an easement created by registered instrument as to the permissible use and scope' "Extent of dominant owner's entitlement to removal of obstructions on the servient tenement"]

Ratio Decidendi

The defendants' works and plantings on lot C substantially interfered with the plaintiff's reasonable use of the right of carriageway for vehicular access, particularly for large vehicles, as contemplated by the purposes and terms of the easement instrument. Accordingly, the plaintiff was entitled to the removal of those parts of the works and plantings constituting an obstruction and to an adjustment of the driveway level to facilitate reasonable access for vehicles, including large trucks.

Court Disposition

Orders made in favour of the plaintiff in part; claims otherwise dismissed; cross-claim dismissed; costs to plaintiff.

Orders

  • ['The defendants at their expense to promptly remove or cause to be removed (i) the three trees at the eastern extremity of the right of carriageway on lot C in DP 416799 and associated garden bed and retaining walls; (ii) the most easterly six trees of the plantings at the eastern end of the Gladstone Avenue...