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JUDGMENT

1. HIS HONOUR: By its amended summons, filed in Court today, the plaintiff seeks an order pursuant to s 88K(1) of the Conveyancing Act 1919 for the imposition of an easement for airspace access for crane swing benefitting the plaintiff’s land at Frederick Street, Rockdale and burdening the second defendant’s adjacent land. The proceedings when originally commenced named fifteen defendants. The plaintiff has reached a commercial resolution of the proceedings with all but the second defendant and now seeks by agreement to discontinue the proceedings against them.

2. The second defendant has been served with notice of the proceedings when first commenced and with the amended summons as well. He has neither filed an appearance nor otherwise demonstrated any interest in the litigation. That is unsurprising.

3. The evidence before me reveals that the crane that the plaintiff proposes to utilise on its construction site, and for which the easement is sought, will not be used for the transfer or carriage of materials or equipment over the land of any of the defendants, including the second defendant. However, the crane’s radius for oversail and weathervane movements will traverse airspace above the second defendant’s property. The terms of the proposed easement specify this in detail.

4. It is clear upon the material read in support of the application that the proposed easement is reasonably necessary for the effective development of the plaintiff’s land and is not inconsistent with the public interest. Moreover, the second defendant can be adequately compensated for the proposed intrusion. Reasonable attempts have been made to secure agreement with the second defendant but have been unsuccessful, in the sense and to the extent that he has not responded to the proceedings in general nor replied to correspondence directed to him in particular.

5. I am satisfied in these circumstances that the orders proposed by the plaintiff should be made, as follows:

6. Pursuant to s 62 of the Civil Procedure Act 2005, the plaintiff has leave to file, and move on, the amended summons.

7. Leave be granted to file the amended summons in Court.

8. To the extent necessary, dispense with the need to serve the amended summons.

9. Pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005, the plaintiff has leave to file instanter notices of discontinuance against the first and third to fifteenth defendants with no order as to costs.

10. The proceedings are discontinued against the first and third to fifteenth defendants with no order as to costs.

11. Pursuant to s 88K(1) of the Conveyancing Act 1919 an easement for airspace access for crane swing benefiting the plaintiff’s land comprised in Lot XX in DP XX, as identified in the plan for registration annexed to the orders and marked “A” (Plan for Registration), is imposed in the terms in document annexed to these orders and marked “B” over the second defendant’s land comprised in:

(a) Lot XX in DP XX in favour of Lot XX in DP XX (Easement).

7. The Registrar General is to give effect to these orders by registering the Easement upon being presented, in registrable form, with a sealed copy of these orders and the Plan for Registration as annexed to Request Form 11R (or in any other form the Registrar General requires).
8. Pursuant to s 88K of the Conveyancing Act 1919 the plaintiff is to pay the second defendant compensation of $12,067.02.
9. To the extent necessary (if at all), an order that the second defendant in respect of his land, and if so requested by the plaintiff, do all things, execute all documents, take any actions on the PEXA online system, and provide co-operation to do all that is necessary to have the Easement registered so as to burden the defendant’s land and be appurtenant to the plaintiff’s land.
10. If the second defendant fails to comply with order 9 above upon a request being made by the Plaintiff, a Registrar in the Equity Division of the Supreme Court of New South Wales, is authorised to execute a dealing or other document in the form required by the Registrar General to enable the Easement to be registered on behalf of the defendants.
11. Liberty to restore on 3 days’ notice, setting out the relief sought, in respect of any issue regarding the implementation of these orders, including in respect of having the Easement registered.

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