Pasade Holdings v Sydney City Council [2003] NSWSC 515

Pasade Holdings v Sydney City Council [2003] NSWSC 515

The easement for light and air was reasonably necessary for the plaintiff's effective development because the strata plan could not be registered without compliance with Condition 6 and the alternative covenant would seriously impair value and use; no owner of the passageway could be identified, no defendant opposed the application, the passageway had shown no owner activity for 163 years, alternate development of it was not reasonably practicable, the additional burden would be slight, the public interest favoured facilitating the development, valuation evidence showed no adverse effect on the passageway's value, compensation was not payable in the special circumstances, and there was no...

Jurisdiction
Australia
Judgment Date
12 June 2003
Procedural Posture
Application by Summons for an Order Imposing Easements Under S 88 K of the Conveyancing Act 1919 / Judgment on Plaintiff's Application for an Easement for Light and Air
Outcome
Easement for light and air granted in principle; terms of the order to be settled.
Legal Topics
['easements' 'creation of Easement by Court Order' 'conveyancing Act 1919, S88 K' 'development Consent Conditions' 'compensation for Burdened Land']
['property Law' 'equity'] ['easements' 'creation of Easement by Court Order' 'conveyancing Act 1919, S88 K' 'development Consent Conditions' 'compensation for Burdened Land']

Case Brief

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Procedural Posture

Application by Summons for an Order Imposing Easements Under S 88 K of the Conveyancing Act 1919 / Judgment on Plaintiff's Application for an Easement for Light and Air

Legal Issues

  1. 1 ["Whether the easement for light and air was reasonably necessary for the use of, or effective development of, the plaintiff's land under s 88K(1)." 'Whether the Court should exercise its discretion to impose the easement over the passageway despite the unknown owner of the burdened land.' 'Whether creation of the easement would be consistent with the public interest under s 88K(2)(a).' 'Whether any person interested in the burdened land could be adequately compensated, and whether compensation was payable, under s 88K(2)(b).' 'Whether all reasonable attempts had been made to obtain the easement or an easement having the same effect under s 88K(2)(c).']

Ratio Decidendi

The easement for light and air was reasonably necessary for the plaintiff's effective development because the strata plan could not be registered without compliance with Condition 6 and the alternative covenant would seriously impair value and use; no owner of the passageway could be identified, no defendant opposed the application, the passageway had shown no owner activity for 163 years, alternate development of it was not reasonably practicable, the additional burden would be slight, the public interest favoured facilitating the development, valuation evidence showed no adverse effect on the passageway's value, compensation was not payable in the special circumstances, and there was no...

Court Disposition

Easement for light and air granted in principle; terms of the order to be settled.

Orders

  • ['The Court decided in principle to grant the easement for light and air claimed.' "The plaintiff's counsel and solicitor should attend the judge in Private Chambers for the purpose of settling the terms of the order." 'Subject to further consideration, the order should refer to existing Deposited Plan 639380 when...