McCrow v Chaplin [2009] NSWSC 965

McCrow v Chaplin [2009] NSWSC 965

The defendant, while entitled to fence the right of carriageway, was not entitled to deny suitable access points to permit reasonable use by the plaintiff as dominant owner; the existing gate must be altered to permit operation from within the dominant land. The dominant owner may at their own expense relocate or install further gates for additional access points, not exceeding reasonable user of the right. Defendant to pay plaintiff's costs, having obstructed access contrary to the easement.

Parties
Plaintiff: Kenneth Bruce McCrow; Defendant: Leslie Bert Chaplin
Jurisdiction
Australia
Judgment Date
27 August 2009
Procedural Posture
Civil / Judgment After Hearing
Outcome
Orders for declaration and mandatory injunction granted; costs awarded to plaintiff.
Legal Topics
Torrens Title, Easements, Right of Carriageway, Gates and Fencing, Reasonable User, Costs
Real Property Equity Torrens Title Easements Right of Carriageway Gates and Fencing Reasonable User Costs

Case Brief

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Parties

Kenneth Bruce McCrow

Plaintiff

Leslie Bert Chaplin

Defendant

Procedural Posture

Civil / Judgment After Hearing

Legal Issues

  1. 1 Whether the servient owner may fence and gate a right of carriageway subject to the dominant owner's reasonable user
  2. 2 Extent of access points and right to require/relocate gates on an easement
  3. 3 Responsibility for costs of installation and relocation of gates in the context of a right of carriageway

Ratio Decidendi

The defendant, while entitled to fence the right of carriageway, was not entitled to deny suitable access points to permit reasonable use by the plaintiff as dominant owner; the existing gate must be altered to permit operation from within the dominant land. The dominant owner may at their own expense relocate or install further gates for additional access points, not exceeding reasonable user of the right. Defendant to pay plaintiff's costs, having obstructed access contrary to the easement.

Court Disposition

Orders for declaration and mandatory injunction granted; costs awarded to plaintiff.

Orders

  • By 10 September 2009 the defendant must alter the gate in the fence so it can be conveniently opened and closed from within lot 19 as well as the right of way.
  • Declaration made: the plaintiff may, at own expense, relocate the gate and/or install a second gate of appropriate style and standard along the fence as not exceeding reasonable user.