School of Surveying and Spatial Information Systems

The University of New South Wales


Summaries of 10 Recent Supreme Court Cases

by John Walton

Supervised by Mr M. B. Green

Co-ordinated by Chris Rizos

October 2004


Introduction

One of the key roles of a Registered Surveyor is the delineation of Cadastral Boundaries. When a surveyor prepares a Deposited Plan for Registration they not only have to consider the physical characteristics of the plan but also what if any legal restrictions (i.e. Easements or Covenants) will need be applied to the land within or around the subject site as to allow for the effective development of the land not only at the time of survey but also in the future by any successive proprietor of the land.

"The true nature of the boundary surveyor s role lies not in theories of exact measurement but in the proposition that the basic determinant of the limits of any region in respect of which some person or body holds exclusive legal rights is not a matter of surveying but a matter of law" (Hallmann, 2000).


In my thesis I summarised legal proceedings that have recently been pursued through the Supreme Court that deal with Easements and Restrictions, specifically in three areas. 

The creation of Easements pursued under Section 88k of the Conveyancing Act 1919.

Section 88k of the Conveyancing Act 1919 empowers the court to impose an easement over a proprietors land if it deems that the easement is „reasonably necessaryš for the effective use or development of the land and is in the best interest of the public. Three Cases where Summarised for this issue;                      

(i)    King v Cromwell [2002] 

In this case the plaintiff sought to have an easement imposed over the Defendants land over an existing drainage pipe, however despite the defendant not being against the continued use of the pipe he did not wish to have any Easement registered on his title. Judgement was for the Plaintiff (Easement Granted).

 

 (ii)    Woodland v Manly Municipal Council [2003]

In this case the plaintiff sought to have an easement for drainage over the defendants land, however due to the existence of a viable alternative the defendant claimed the easement was not reasonably necessary. Judgement was for the Defendant (Dismissed).

 

(iii)    Mitchell v Boutagy [2001]

In this case the easement was once again over an existing drainage line, however the defendant did not dispute it necessity, rather it was the amount of compensation that the parties could not agree on. (Judgment was for an amount between those proposed)    

 

Extinguishing Easements under Section 89 of the Conveyancing Act 1919.

Section 89 of the Conveyancing Act empowers the courts to modify or extinguish easements where by reason of change in the use of any land having the benefit or when it may be considered to have abandoned the easement wholly or in part. Three Cases where Summarised for this issue;

(iv)    Cavacourt Pty Limited v Durian (Holdings) Pty Limited [1998] &

         Durian (Holdings) Pty Limited v Cavacourt Pty Limited [2000] (Appeal)

In this case the Plaintiff sought to have a Right of Way extinguished due to the long term non-use of the easement and the existence of an alternative egress to the site (since the Right was created). Judgement was initially for the defendant, however appeal the judgement was for the Plaintiff.

 

 (v)    Lolakis v Konitsas [2002]

In this case the Plaintiff sought to enforce his Rights to a Right of Way after a period of non-use (but not abandonment), to the objection of the servient tenement who by cross claim sought the extinguishment of the easement. Judgement was for the Plaintiff.

 

 (vi)    Dresdner v Scida [2003] 

In this case the plaintiff sought relief from what they claim was a serious obstruction to their enjoyment of a Right of Carriageway Right to which they have the benefit. The defendants by cross claim sought the extinguishment of the easement. Judgement was for the Plaintiff (The defendants must Remove the obstruction)

 

Cases involving Easements, Covenants and Restrictions, which have come under scrutiny in the court for their intention, their wording or the interpretation of the terms and conditions.               

Despite the fact there are few limitations to the types of easements that can be created, they must however, not be either too broad, of a vague character or  completely exclude the servient tenant. Two Cases where Summarised for this issue;

(vii)    Clos Farming Estates P/L v Easton & Anor [2001]

In this case the plaintiff sought financial relief for the servicing of farming land (a vineyard) from the profits of future crops. The defendants however claimed that an easement for vineyard and the conditions attached to it where not consistent with that which easements are intended and therefore the easement is invalid along with any right to compensation.

 

(viii)    Paul Lederer v John Bowie-Wilson [2001] 

In this case the plaintiff sought a court order affirming that a jacuzzi falls within the reach of covenant which prohibits the construction of a swimming pool. Judgement was for the defendant (jacuzzi was permitted)

 

In addition to the above topics I also investigated recent cases where there has been a claim made for land by Adverse Possession.

Where a person is in possession of part or of a whole parcel of land, and is the registered proprietor of land which adjoins that lot, may apply to be recorded as the registered proprietor of the land consisting of a consolidation of all the land. When a claim is made it must be proved that the possession is open, not secret; peaceful, not by force; and adverse (not by consent of the true owner) for a minimum of 12 years to be eligible to be claimed. Two Cases where Summarised for this issue;

(ix)    Phillips v Marrickville Municipal Council [2002] 

In this case the plaintiff made a claim over a whole Lot to the rear of her property which she had her garage on and had been using as a driveway since 1977. Judgement was for the Plaintiff (Title Transferred)

 

(x)    Townsend v Waverley Council [2001]  

In this case the plaintiff made a claim over part of a lot which they had occupied since the 1920's. However since the land had been dedicated to the public as a reserve it was beyond any application for adverse possession. Judgement was for the defendant (dismissed)


Further Information
For more information, please contact:

Mr John Walton
Email: johnwalton@optusnet.com.au

Mr M. B. Green
Email: michael.green@unsw.edu.au

Mail:
School of Surveying and Spatial Information Systems
University of New South Wales
UNSW SYDNEY NSW 2052
Australia

Phone: +61-2-9385-4193
Fax:      +61-2-9313-7493
WWW: http://www.gmat.unsw.edu.au/