Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295

Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295

The plaintiff failed to establish that the right of carriageway is reasonably necessary for the effective use or development of his land because the proposed uses are either not lawful, can be achieved by other means, or the prospect of obtaining necessary consents for development is too remote. Even if these requirements had been satisfied, the defendant’s intangible losses could not be adequately compensated in money. Discretion would also be exercised against granting the easement due to the significant adverse impacts revealed.

Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Application Under S 88 K Conveyancing Act 1919 (nsw) for Easement / Final Judgment After Contested Hearing
Outcome
Application/Amended summons dismissed
Legal Topics
['easements' 'right of Carriageway' 'section 88 K Conveyancing Act 1919' 'compulsory Easements' 'landlocked Land' 'environmental Planning' 'compensation for Easements']
['real Property' 'equity'] ['easements' 'right of Carriageway' 'section 88 K Conveyancing Act 1919' 'compulsory Easements' 'landlocked Land' 'environmental Planning' 'compensation for Easements']

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Procedural Posture

Application Under S 88 K Conveyancing Act 1919 (nsw) for Easement / Final Judgment After Contested Hearing

Legal Issues

  1. 1 ['Whether the proposed right of carriageway is reasonably necessary for the effective use or development of the plaintiff’s land under s 88K(1) Conveyancing Act 1919' 'Whether the defendant can be adequately compensated for any loss or disadvantage arising from imposition of the easement (s 88K(2)(b))' 'Whether all reasonable attempts to obtain an easement have been made (s 88K(2)(c))' 'Whether the court should exercise its discretion to grant the easement']

Ratio Decidendi

The plaintiff failed to establish that the right of carriageway is reasonably necessary for the effective use or development of his land because the proposed uses are either not lawful, can be achieved by other means, or the prospect of obtaining necessary consents for development is too remote. Even if these requirements had been satisfied, the defendant’s intangible losses could not be adequately compensated in money. Discretion would also be exercised against granting the easement due to the significant adverse impacts revealed.

Court Disposition

Application/Amended summons dismissed

Orders

  • ['The amended summons be dismissed' "The plaintiff pay the defendant's costs" 'Exhibits may be returned after 28 days']