Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292

The proposed easements were not easements known to the general law because they enclosed 68% of the Council's lot and practically excluded the Council from any use of that land for the appellants' commercial benefit. In any event, the appellants failed to prove that use of Council land was reasonably necessary for...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Appeal From Dismissal of an Application Under S 88 K of the Conveyancing Act 1919 (nsw) for Imposition of Easements Over Council Land / Court of Appeal Judgment on Appeal From the Land and Environment Court
Outcome
Appeal dismissed.
Legal Topics
['easements' 'imposition of Easements by Court' 'reasonable Necessity Under S 88 K' 'community Land' 'public Utilities' 'appellate Review']
['land Law' 'local Government Law' 'property Law'] ['easements' 'imposition of Easements by Court' 'reasonable Necessity Under S 88 K' 'community Land' 'public Utilities' 'appellate Review']

Source-derived case record

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Procedural Posture

Appeal From Dismissal of an Application Under S 88 K of the Conveyancing Act 1919 (nsw) for Imposition of Easements Over Council Land / Court of Appeal Judgment on Appeal From the Land and Environment Court

Legal Issues

  1. 1 ['Whether the proposed rights were capable of being characterised as easements under the general law.' "Whether the proposed easements were reasonably necessary for the effective use or development of the appellants' land under s 88K(1) of the Conveyancing Act 1919 (NSW)." "Whether the appellants' waste recovery and recycling business was a public utility for the purposes of community land under s 46 of the Local Government Act 1993 (NSW)." 'Whether the Court has power under s 88K of the Conveyancing Act 1919 (NSW) to impose an easement over community land where the Council cannot grant such an easement.']

Ratio Decidendi

The proposed easements were not easements known to the general law because they enclosed 68% of the Council's lot and practically excluded the Council from any use of that land for the appellants' commercial benefit. In any event, the appellants failed to prove that use of Council land was reasonably necessary for the effective use or development of their land: the evidence did not establish that reconfiguration of the appellants' own land was not reasonably possible at reasonable expense, and the cost of relocating the acoustic wall arose from unauthorised construction. The appellants' recycling facility was not a public utility. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['Dismiss the appeal from the judgment and orders in the Land and Environment Court of 20 March 2020.' "Order that the appellants pay the respondent's costs in this Court."]