Tout v Johnson [2021] NSWSC 1311

Tout v Johnson [2021] NSWSC 1311

The plaintiff failed to establish, on the evidence, that the proposed easement was reasonably necessary for the effective use or development of her land because viable alternative access existed over her own land albeit with some limitations, and the evidence did not sufficiently demonstrate that the alternatives were prohibitively expensive or inadequate to a degree that rendered the easement substantially preferable. The deficiencies in evidence extended to lack of clarity on construction/repair costs of the access options and necessary approvals. Imposing the easement would substantially impact the defendants' use of their land and their property rights. Thus, s 88K(1) was not...

Jurisdiction
Australia
Judgment Date
14 October 2021
Procedural Posture
Application for Imposition of Easement Under S 88 K Conveyancing Act 1919 (nsw) / Final Judgment
Outcome
Application dismissed; Statement of Claim dismissed.
Legal Topics
['easements' 'statutory Easements' 'right of Carriageway' 'reasonable Necessity' 'access to Land']
['equity' 'land Law'] ['easements' 'statutory Easements' 'right of Carriageway' 'reasonable Necessity' 'access to Land']

Case Brief

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Procedural Posture

Application for Imposition of Easement Under S 88 K Conveyancing Act 1919 (nsw) / Final Judgment

Legal Issues

  1. 1 ["Whether the proposed easement is reasonably necessary for the effective use or development of the plaintiff's land under s 88K(1) of the Conveyancing Act 1919 (NSW)" 'Whether alternatives for access rendered the easement unnecessary' "Whether the burden on defendants' land justified refusal of the easement"]

Ratio Decidendi

The plaintiff failed to establish, on the evidence, that the proposed easement was reasonably necessary for the effective use or development of her land because viable alternative access existed over her own land albeit with some limitations, and the evidence did not sufficiently demonstrate that the alternatives were prohibitively expensive or inadequate to a degree that rendered the easement substantially preferable. The deficiencies in evidence extended to lack of clarity on construction/repair costs of the access options and necessary approvals. Imposing the easement would substantially impact the defendants' use of their land and their property rights. Thus, s 88K(1) was not...

Court Disposition

Application dismissed; Statement of Claim dismissed.

Orders

  • ["The plaintiff's Statement of Claim is dismissed." 'The question of costs is reserved for further submissions.']