Pullen v Smedley [2017] NSWSC 1721

Pullen v Smedley [2017] NSWSC 1721

The Smedleys' acts of maintaining gates and occasional grazing of cattle on or across the rights of way, as well as the requirement that gates be kept closed, did not constitute substantial and unreasonable interference with the Pullens' rights under the easements. The placement of shipping containers partially on the right of way did constitute substantial interference and must be removed. The Pullens' placement of road fill constituted trespass and unlawful use due to lack of development consent and the presence of asbestos, requiring remediation as determined by environmental authorities. The Pullens leaving gates open constituted unreasonable use of the easement (absent sufficient...

Parties
Plaintiff: Robert James Pullen; Defendant: Alan Robert Gilbert Smedley
Jurisdiction
Australia
Judgment Date
13 December 2017
Procedural Posture
Principal Judgment / Final Orders With Damages and Costs Reserved
Outcome
Declarations, mandatory orders for removal/remediation, and damages/costs reserved for further determination.
Legal Topics
Easements, Rights of Way, Trespass, Development Consent, Pollution and Waste, Construction and Interpretation of Easements, Land Pollution
Real Property Environment and Planning Easements Rights of Way Trespass Development Consent Pollution and Waste Construction and Interpretation of Easements +1 more

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Parties

Robert James Pullen

Plaintiff

Alan Robert Gilbert Smedley

Defendant

Procedural Posture

Principal Judgment / Final Orders With Damages and Costs Reserved

Legal Issues

  1. 1 Whether the easement implicitly precludes grazing of cattle by servient tenement owner
  2. 2 Construction of 'all weather access standard' in the easement
  3. 3 Whether gates, cattle grazing, and shipping containers constituted substantial interference

Ratio Decidendi

The Smedleys' acts of maintaining gates and occasional grazing of cattle on or across the rights of way, as well as the requirement that gates be kept closed, did not constitute substantial and unreasonable interference with the Pullens' rights under the easements. The placement of shipping containers partially on the right of way did constitute substantial interference and must be removed. The Pullens' placement of road fill constituted trespass and unlawful use due to lack of development consent and the presence of asbestos, requiring remediation as determined by environmental authorities. The Pullens leaving gates open constituted unreasonable use of the easement (absent sufficient...

Court Disposition

Declarations, mandatory orders for removal/remediation, and damages/costs reserved for further determination.

Orders

  • Order for removal of metal shipping containers from Right of Way 'B' by the Smedleys.
  • Declarations that leaving gates open by the Pullens after exercising rights of way (without excuse) is unreasonable and not permitted.