TONY STEPANOSKI v ZHIMIN CHEN [2011] NSWSC 1573

TONY STEPANOSKI v ZHIMIN CHEN [2011] NSWSC 1573

The proposed drainage easement was reasonably necessary for the effective development of the plaintiffs' land because it was required to implement the Council-approved dual occupancy development, provided the shortest and simplest gravity drainage route to Council drainage, and was preferable to uncertain, more expensive and more intrusive alternatives. The proposed use was not inconsistent with the public interest, adequate compensation could be provided to the defendant, and all reasonable attempts to obtain the easement had failed; accordingly the discretion under section 88K was exercised in favour of imposing the easement.

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Application by Summons Under Section 88 K of the Conveyancing Act 1919 for Imposition of a Drainage Easement / Principal Judgment After Hearing
Outcome
Easement ordered; matter referred to an Associate Judge to settle the terms of the order and determine costs.
Legal Topics
['easements' 'drainage Easement' 'conveyancing Act 1919 S88 K' 'development Consent' 'storm Water Drainage' 'compensation for Imposed Easement']
['real Property' 'equity' 'planning and Development'] ['easements' 'drainage Easement' 'conveyancing Act 1919 S88 K' 'development Consent' 'storm Water Drainage' 'compensation for Imposed Easement']

Case Brief

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Procedural Posture

Application by Summons Under Section 88 K of the Conveyancing Act 1919 for Imposition of a Drainage Easement / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the proposed drainage easement was reasonably necessary for the effective use or development of the plaintiffs' land under section 88K(1) of the Conveyancing Act 1919." "Whether use of the plaintiffs' land with the benefit of the easement would be inconsistent with the public interest." 'Whether the defendant and any other interested persons could be adequately compensated for loss or disadvantage arising from imposition of the easement.' 'Whether all reasonable attempts had been made to obtain the easement, or an easement having the same effect, without success.' "Whether alternative drainage solutions meant the easement over the defendant's land should not be imposed."]

Ratio Decidendi

The proposed drainage easement was reasonably necessary for the effective development of the plaintiffs' land because it was required to implement the Council-approved dual occupancy development, provided the shortest and simplest gravity drainage route to Council drainage, and was preferable to uncertain, more expensive and more intrusive alternatives. The proposed use was not inconsistent with the public interest, adequate compensation could be provided to the defendant, and all reasonable attempts to obtain the easement had failed; accordingly the discretion under section 88K was exercised in favour of imposing the easement.

Court Disposition

Easement ordered; matter referred to an Associate Judge to settle the terms of the order and determine costs.

Orders

  • ['Order pursuant to section 88K (1) of the Conveyancing Act 1919 that an easement be imposed over the land of the defendant in favour of the land of the plaintiffs referred to in the summons according to the terms of an order to be made by an Associate Judge under the referral in order (2).' 'Order pursuant to...