Beekman v Gray

JUDGMENT 1 HIS HONOUR: This is an application for the imposition of an easement over the land of the first defendants. I announced before the luncheon adjournment that it was my intention to order that the summons be dismissed and I now give my reasons for that. 2 The plaintiffs are the owners as tenants in common of lot 101 in Deposited Plan No 227294. That property is situated between Woolooware Road and Gunnamatta Bay but it does not have frontage to either road or bay apart from a small frontage which appears to be about ten feet wide to Woolooware Road from which access is gained to the main portion of the land. In other words, it is a battleaxe block. 3 Below that block are two properties, with water frontages, one being lot 2 in Deposited Plan 218151, which property is owned by Mr and Mrs Gossage who are the second defendants in this action. The other property below lot 101 is lot 102 in Deposited Plan 227294. 4 That land was owned by Mr and Mrs Gray, the first defendants in this action, but since these proceedings commenced, and in fact very recently, the property has been transferred to Dior Leonie Mahnken, the transfer, it seems, having taken place in about May 2001. 5 Whatever the position, the action as between the plaintiffs and Mr and Mrs Gray has been settled so far as this action is concerned and so far as separate proceedings No 3706/00 are concerned. 6 As a result of that settlement, Mr and Mrs Gray granted to the plaintiffs and to the owners of the property lot 3 in Deposited Plan 413393; namely, a Mr and Mrs Wunderlich, an easement to drain water which, to put it simply, runs along the southern boundary of lot 102, formerly owned by Mr and Mrs Gray and, in addition, what is described as a short easement which extends across the south western corner of lot 102, the intention of that being if it were of any use to enable waters drawing from lots 1 and 3 in Deposited Plan 413393 and the plaintiffs' land to connect to a stormwater drainage pipe or to new drainage pipes which might carry water along the northern boundary of lot 2 in Deposited Plan 218151, that being the land owned by Mr and Mrs Gossage. 7 What has happened to bring about these proceedings is this. The plaintiffs, Mr and Mrs Beekman and Mr and Mrs O'Brien, own lot 101 as tenants in common in equal shares. Mr and Mrs Beekman live in a house on the northern part of that land and Mr and Mrs O'Brien live in a house on the southern part of that land. It may be the houses have been there for many years. They wish to subdivide that land so that each has separate title to the house in which each married couple lives, together with the land around that house. 8 For that purpose they lodged an application for subdivision with the Sutherland Shire Council. This was apparently lodged many years ago and approval was granted on 8 September 1998, subject to conditions. One of those conditions was as follows: "That easements for drainage have been granted under section 88B of the Conveyancing Act, 1919 both over the subject property in favour of the upstream properties and in favour of the subject property over downstream properties." 9 Condition 6 provided that the easements were to be created prior to release of the linen plan of subdivision. 10 What are described in that condition as the "upstream properties" are properties owned by Mr and Mrs Chitty and Mr and Mrs Wunderlich, being respectively lots 1 and 3 in Deposited Plan 413393. What are described as the "downstream properties" are lot 2 in Deposited Plan 218151, owned by Mr and Mrs Gossage, and lot 102 in Deposited Plan 227294, now owned by Mrs Mahnken, but originally owned by Mr and Mrs Gray. The subdivision consent will shortly expire and that brought about the need for these proceedings to be expedited. 11 By summons filed on 24 August 2000 the plaintiffs claim, firstly, a declaration that there exists over what I will describe as the Gray and Gossage land an easement to drain water over an existing line of pipes which is the line of pipes identified by a survey of Mr Stewart Dixon, which is in evidence, along the northern boundary of lot 2, such easement being said to be in favour of the land of the plaintiffs in this action. 12 I should say that apart from some suggestion that there had been an agreement to grant such an easement, there is no evidence that such an easement exists and no argument has been put in support of that claim which must, therefore, be dismissed. 13 The alternative claim is that the Court impose an easement pursuant to section 88K of the Conveyancing Act 1919, such easement being sought when the summons was filed, partly over the land lot 102 and, for the most part, over the land in lot 2 owned by Mr and Mrs Gossage running along the northern part of their land. 14 One of the strange things about this action is that the easement is sought not only in favour of the plaintiffs but, in essence, also in favour of the owners of lots 1 and 3 in DP 413393, being the upstream properties. Those owners of the upstream properties are not paries to these proceedings. I expressed the view when the proceedings commenced that as matters now stood it would be at least necessary to have the owners of lot 1, being Mr and Mrs Chitty, joined as parties because I did not understand how the Court could grant an easement in favour of their land unless they consented to this being done or, if it were possible, to impose such an easement pursuant to section 88K, the court would do this without their having the opportunity to express their views about it. It was, nevertheless, agreed that I would proceed with the matter in any event and that if I were otherwise of the view that an easement should be imposed, then the matter should be stood over so that the attitude of the owners of the upstream lots could be ascertained. 15 The facts which are relevant to this matter are as follows. It is clear that water from what is now lot 101 drains through pipes which run on the northern part of the Gossage land into Gunnamatta Bay. The evidence also shows that those pipes at the present time are not satisfactory to carry the amount of water which flows from lot 101 and possibly water which flows on to lot 101 from the upstream properties. That is not really disputed. That would appear to be one of the reasons why the council has imposed the condition which it has imposed. Nobody suggests that the requirement for a drainage easement into Gunnamatta Bay from the upstream properties is not a necessary requirement for effective use of lot 101 or the council should not have required that condition. 16 What has happened, however, since these proceedings started is that the plaintiffs have settled their claim with Mr and Mrs Gray who agreed - probably because they wished to sell their property and did not wish to have litigation hanging over their property which might have been detrimental to a sale - to settle the claim and to grant an easement running along the southern boundary of lot 102 in favour of the owners of lot 101, namely, the plaintiffs, and also in favour of Mr and Mrs Wunderlich, the owners of lot 3 in DP 413393. What Mr and Mrs Gray were not willing to do, apparently, was to grant an easement in favour of lot 1 in DP 413393. The easement has been created and is registered on the titles. 17 Once the second defendants, Mr and Mrs Gossage, became aware of the easement granted in favour of the plaintiffs' land over lot 102, they were of the opinion that the plaintiffs no longer needed any easement over their property, which it is fair to say at the start they had been very reluctant to give, but which later, subject to some conditions, it appeared that they would have been willing to give, although no final agreement was reached. 18 It is in those circumstances that the question now before the Court is whether or not the Court would be justified in imposing an easement pursuant to section 88K of the Conveyancing Act. 19 The requirements of that section are not in doubt. It has been held, and it is accepted, that the person seeking the order must establish four things; namely:

That all reasonable attempts have been made by the plaintiffs to obtain the easement but those attempts have been unsuccessful. 20 So far as the second and third matters are concerned, there is really no contest. There is nothing inconsistent with the public interest in the use proposed of the dominant tenement. All that is proposed is that lot 101 be subdivided into two new lots; namely, lots 43 and 44, so that the existing dual occupancy be converted into separate ownerships. As far as the evidence discloses that would not make the slightest difference to any of the upstream or downstream owners. The real questions for determination are the first and fourth matters which I have just listed. 21 The first matter to consider is whether the easement sought is reasonably necessary for the effective use or development of the plaintiffs' land. Their desire to subdivide it is, in my view, a desire to put that land to its effective use or development. There has not really been any argument to the contrary. The question then is whether or not the easement which they seek over lot 2 is reasonably necessary for the effective use or development of their land. It is on this point that I consider the plaintiffs' claim has failed. 22 At the present moment the plaintiffs have an effective easement over lot 102 enabling them to drain their water through lot 102 down to Gunnamatta Bay. In addition, an easement has been granted for the same purpose in favour of lot 3 in DP 413393. The position at the present time is that no easement has been granted over lot 102 in favour of lot 1 in DP 413393. 23 There is evidence that when the settlement with Mr and Mrs Gray took place that easement could not be obtained. However, the ownership of lot 102 has changed and there is no evidence that the present owner would not be willing to grant such an easement nor, I should say, is there any evidence to establish that having regard to the fact that the easement already exists in favour of the plaintiffs' land, lot 3, it would not be more desirable to impose an easement over the same area in favour of lot 1. 24 The fact is, however, that no such easement has been requested from the present owner and, therefore, the Court could not hold that the easement sought is reasonably necessary for the effective use or development of the land because it may be possible to obtain such an easement in favour of lot 1 by agreement or it may be more appropriate to impose the easement in favour of lot 1 over the land now owned by the successors in title to Mr and Mrs Gray. 25 There is one additional matter which should be considered and that is that there is no evidence before the Court that any application has been made to the Sutherland Shire Council to vary its condition. While the council is no doubt concerned in applications such as this to provide for proper drainage, the fact is that all these houses appear to have been in position for many years and it is not as if some new subdivision bringing a right to build new houses is in question here. It may, therefore, be that the council will consider what has been done would be sufficient and would not require the easement to be obtained in favour of lot 1, bearing in mind that the water from lot 1 is draining, presumably, in the same way as it has always drained. That, however, is a matter between the plaintiffs and the council and the Court cannot take that matter any further. 26 The final question is whether or not all reasonable attempts have been made by the plaintiffs to obtain the easement and that those have been unsuccessful. 27 I have come to the conclusion that the plaintiffs have done all that could be required of them in this way. That is not to say that they did for some time because even at the end they were suggesting part of the work which was required to be done should be done at the expense of the defendants. 28 I do not consider that the Court, in ordinary circumstances, would hold that the owners of the land upon whom it is proposed an easement should be imposed should somehow bear some of the cost of providing that easement, by bearing some of the costs of the work required to put in the new drainage pipe which it is accepted is required. Nevertheless, at the time of the hearing - and bearing in mind the fact that the plaintiffs are willing to bear the cost of putting in the pipe and, as I understand it, to have that done and supervised by the engineers proposed by Mr and Mrs Gossage - it could not be said that reasonable attempts have not been made to obtain the easement. This finding is restricted to attempts to obtain an easement over the land of Mr and Mrs Gossage. 29 The basis upon which the plaintiffs' claim fails is that they have not established, in the light of the easement which has now been obtained, at least in their favour over lot 102, that the easement which they seek over lot 2; namely, the land owned by Mr and Mrs Gossage, is reasonably necessary for the effective development of their land and, in those circumstances, the summons should be dismissed with costs. 30 I omitted to refer to one matter referred to by counsel for the plaintiffs relevant to the question of whether or not the Court should impose the easement. What he said was that as the evidence showed that the area of the land formerly owned by Mr and Mrs Gray subject to the easement recently granted appeared to be land where there were flower beds and other attractive improvements by way of gardens or other areas, this should be taken into account when looking at the position on the property of Mr and Mrs Gossage where what was envisaged was that the easement would be imposed over the area where the pipe was at present where there were no such desirable features. 31 In my view, that is not something which should be considered. If owners of land have the benefit of an easement over other land, they are entitled to the benefit of that easement. In other words, as I have said, if an easement exists, it is available for use and no other easement should, in general, be imposed, irrespective of whether or not one will involve the destruction, at least for a short time, of the garden of the servient tenement. 32 I order the summons be dismissed with costs. The exhibits may be returned.

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Judgment (11 paragraphs)

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