Trewin v Felton [2007] NSWSC 851

Trewin v Felton [2007] NSWSC 851

The servient owner may fence the easement but must provide access at reasonable points to the dominant owner. The dominant owner is not entitled to unfenced access; the existing 13 metre access is reasonable. Parking on the easement by the dominant owner is not authorised unless strictly necessary for loading/unloading, which was not established. Modification/extinguishment of easement over the last 5 metres was not justified as it still served practical benefit and its loss would cause substantial injury. Only the gateposts constituted actionable obstruction and must be removed; other alleged obstructions were not actionable. The dominant owners committed trespass by parking, and the...

Jurisdiction
Australia
Judgment Date
07 August 2007
Procedural Posture
Civil / Final Judgment
Outcome
Plaintiffs entitled to mandatory injunction requiring demolition of gateposts; defendant entitled to injunction restraining plaintiffs from authorising parking; defendant not entitled to easement modification/extinguishment; other reliefs denied; costs deferred.
Legal Topics
['easements' 'torrens Title' 'right of Carriageway' 'obstruction' 'modification and Extinguishment' 'trespass' 'mandatory Injunction']
['real Property' 'equity'] ['easements' 'torrens Title' 'right of Carriageway' 'obstruction' 'modification and Extinguishment' 'trespass' 'mandatory Injunction']

Case Brief

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Construction of easement for right of carriageway and extent of access points permitted' "Servient owner's right to fence and gate easement" 'Whether the dominant owner entitled to park or remain on easement' 'Modification/extinguishment of easement under Conveyancing Act 1919, s 89(1)' 'Obstruction of easement by fences, gateposts, gates, parking' 'Trespass by excessive user and remedies']

Ratio Decidendi

The servient owner may fence the easement but must provide access at reasonable points to the dominant owner. The dominant owner is not entitled to unfenced access; the existing 13 metre access is reasonable. Parking on the easement by the dominant owner is not authorised unless strictly necessary for loading/unloading, which was not established. Modification/extinguishment of easement over the last 5 metres was not justified as it still served practical benefit and its loss would cause substantial injury. Only the gateposts constituted actionable obstruction and must be removed; other alleged obstructions were not actionable. The dominant owners committed trespass by parking, and the...

Court Disposition

Plaintiffs entitled to mandatory injunction requiring demolition of gateposts; defendant entitled to injunction restraining plaintiffs from authorising parking; defendant not entitled to easement modification/extinguishment; other reliefs denied; costs deferred.

Orders

  • ['Mandatory injunction for removal of gateposts at commencement of last 5 metres of carriageway' 'Injunction restraining plaintiffs from authorising persons to use carriageway without ensuring that they do not park' 'Defendant not entitled to order modifying or extinguishing the easement' 'Direction for parties to...