Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWLEC 22

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWLEC 22

The proposed Easements would effectively deprive the Council of proprietorship and legal possession of the subject land, amounting to exclusive occupation that fails the fourth test in Ellenborough Park and so cannot be granted as easements at law. Alternatively, the Plaintiffs failed to demonstrate that the grant of the Easements was reasonably necessary for the effective use of Lot 1 as required by s 88K(1) of the Conveyancing Act 1919 (NSW), particularly as there was insufficient evidence on the use of Lot 1 without the Council Land, and the inconvenience or operational preference was not sufficient to justify the significant burden imposed on Council Land.

Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Application for Imposition of Easements (class 3) / Final Judgment After Hearing
Outcome
Plaintiffs' application dismissed; costs ordered against Plaintiffs.
Legal Topics
['easements' 'imposition of Easements by Court' 'section 88 K Conveyancing Act 1919 (nsw)' 'exclusive Occupation' 'reasonable Necessity Test' 'proprietary Rights' 'costs']
['land Law' 'property Law' 'local Government Law'] ['easements' 'imposition of Easements by Court' 'section 88 K Conveyancing Act 1919 (nsw)' 'exclusive Occupation' 'reasonable Necessity Test' 'proprietary Rights' 'costs']

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Procedural Posture

Application for Imposition of Easements (class 3) / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed easements are capable of being granted as easements at law under s 88K of the Conveyancing Act 1919 (NSW)' 'Whether the grant of the easements is reasonably necessary for the effective use of Lot 1' 'Whether the easements amount to exclusive occupation depriving the Council of proprietorship or legal possession' 'Whether the impact on Council Land is so significant as to preclude a grant of easement']

Ratio Decidendi

The proposed Easements would effectively deprive the Council of proprietorship and legal possession of the subject land, amounting to exclusive occupation that fails the fourth test in Ellenborough Park and so cannot be granted as easements at law. Alternatively, the Plaintiffs failed to demonstrate that the grant of the Easements was reasonably necessary for the effective use of Lot 1 as required by s 88K(1) of the Conveyancing Act 1919 (NSW), particularly as there was insufficient evidence on the use of Lot 1 without the Council Land, and the inconvenience or operational preference was not sufficient to justify the significant burden imposed on Council Land.

Court Disposition

Plaintiffs' application dismissed; costs ordered against Plaintiffs.

Orders

  • ['The Amended Summons filed in Court on 25 February 2020 is dismissed.' "The Plaintiffs pay the Defendant's costs." 'The exhibits are returned.']