Antipas v Kutcher & Anor [2006] NSWLEC 42

Antipas v Kutcher & Anor [2006] NSWLEC 42

The extension of the benefit of the existing right of way to lot 31 is reasonably necessary for the development to have effect. All reasonable attempts to obtain the easement have been made. Any loss or disadvantage to the respondents can be adequately compensated, assessed by the 'before and after' method of valuation. The Court's discretion is exercised to grant the easement.

Parties
Applicant: George Antipas; Respondent: David Kutcher; Respondent: Rosaline Kutcher
Jurisdiction
Australia
Judgment Date
08 February 2006
Procedural Posture
Application / Judgment
Outcome
application granted
Legal Topics
Easement, Compensation, Development Consent, Right of Carriageway
Property Law Planning and Environmental Law Easement Compensation Development Consent Right of Carriageway

Case Brief

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Parties

George Antipas

Applicant

David Kutcher

Respondent

Rosaline Kutcher

Respondent

Procedural Posture

Application / Judgment

Legal Issues

  1. 1 whether the easement is reasonably necessary for the development to have effect in accordance with the consent
  2. 2 whether all reasonable attempts have been made by the applicant to obtain the easement
  3. 3 whether the respondents can be adequately compensated for any loss or other disadvantage from imposing the easement

Ratio Decidendi

The extension of the benefit of the existing right of way to lot 31 is reasonably necessary for the development to have effect. All reasonable attempts to obtain the easement have been made. Any loss or disadvantage to the respondents can be adequately compensated, assessed by the 'before and after' method of valuation. The Court's discretion is exercised to grant the easement.

Court Disposition

application granted

Orders

  • Application to extend benefit of existing right of way to include lot 31 is granted.
  • Appropriate compensation determined at $114,500 under s 40(7) of the Court Act.