Gittany v McDowell

Supreme Court of NSW|2009-06-30|Before: Forster J

6.The application should be approached with caution, having regard to the fact that a compulsory change of registered property rights is sought and that this is not lightly to be undertaken: per Thomas J in Nelson v Kalahara Properties - cited by Carter J in Re Worthston Pty Ltd [1987] 1 Qd R 400 ; cf Hamilton J in Tregod Properties at 8 BPR 15,853; Andrews J in Ex parte Edwards Street Properties Pty Ltd [1977] Qd R 86 at 91.

7."Land" in s 88K(2)(a) refers to the dominant land or tenement: 117 York Street at 8 BPR 15,923-4; per Contra Windeyer J - Goodwin at 8 BPR 15,800". 79 I refer also to the decision of Young J (as his Honour then was) in Grattan v Simpson (1998) 9 BPR 16,649 particularly at page 16,651 and to the decision of Hodgson CJ in Eq (as his Honour then was) in Katakouzinos v Roufir (1998) 9 BPR 17,303 particularly at pages 17,307-8. 80 Applying those principles to the case before me, I am not satisfied that the easement sought to be imposed is "reasonably necessary" in the sense used in those authorities. I have in mind in particular the evidence of Mr Armitage, a civil engineer called by the plaintiff as an expert, who gave evidence of an alternative avenue of draining stormwater from the Gittany Lot by means of an existing stormwater drain situated on the western side of the Gittany Boundary, running all the way from Hope Street in the north to Peel Street in the south ("the western drain"). In his affidavit, Mr Armitage gave evidence that in about early 2003, he was asked by Mr Gittany to design drainage from the Gittany Lot. He was provided with a survey which disclosed the existence of the western drain. Mr Armitage stated in his affidavit that the Gittany Lot was capable of being drained by running a short connecting line into the property directly to the west of the Gittany Lot being the property at 212 Hope Street, and connecting on to the western drain. However he stated that later he was subsequently asked, presumably by Mr Gittany, to redesign the drainage line, which led him to design a drainage plan parallel to the western drain, which he did, and which plan is now the dog-leg plan. 81 In the course of his cross examination, Mr Armitage was asked some questions in relation to two documents, one being referred to as Annexure A (which contained a plan of the western drain) and the other referred to as Annexure B, which contained the dog-leg line. The following exchange then took place: "Q. I am asking you as to the extent of the works necessary to execute drainage on Annexure A and on Annexure B, what is the difference in extent? Does B require more extensive works to be done than A, than connecting the drainage through Hope Street?

A. I don't quite understand the question but I think you're asking is, is it less, is there less work required to create what is shown on annexure B.

A. Annexure B is more work in the initial (sic), as I say the original brief was the drain and engineering is cost effective design, that's our first priority. Cost effective design would be to utilise the existing drainage system as shown on existing Annexure A, but then for whatever reason we were asked to keep it away from the existing system and take it down through lots 11, 2 and 1 as a new line and that is more work than it would have been to upgrade the existing system". 82 In his affidavit of 3 August 2007, Mr Gittany gave the following evidence: "42. …I recall when the 'dog leg' portion of the 2004 plan was being organised in 2004 with the Hohnans, Mr Hohnan said to me at one point 'I'll only let you join in the far bottom corner. I don't want an easement created in the top Section of my property'.

Accordingly, I only pursued the easement on my side of the dividing fence line as I knew the Hohnans would not permit the easement in their side, apart from the small dog-leg in the lower corner which they consented to." 83 However, as the authorities make clear, the question of "reasonable necessity" has to be decided in the light of present circumstances. I am simply in no position to determine whether, given the expiry of the development consent, Mr Gittany is in any position to develop the Gittany Lot in a way that requires such an easement to be imposed. Once again, the evidence is simply insufficient to determine what Mr Gittany's current proposal is for the Gittany Lot, and what, if any, requirements are to be met as a condition of any development consent that has been or might at some stage hereafter be sought. Nor does the evidence reveal whether there are any other avenues reasonably open to Mr Gittany to drain the Gittany Lot. In particular, there is no evidence as to whether the western drain option is now available, and whether any further steps have been taken by Mr Gittany since 2004 to persuade Dr Hohnen to permit him to utilise the western drain. 84 For those reasons alone, I consider that Mr Gittany has not satisfied the requirements of sub-section (1) of section 88K. That would be enough to dispose of his application for an order under that section. 85 However, in my opinion there is a further reason why no such order should be made. Sub-section (2) of section 88K specifically restricts the court's power to make such an order unless it is satisfied in respect of the three matters referred to in that sub-section. I do not consider that any difficulty is raised by the requirements of paragraphs (a) and (b). I do not consider that provided that a valid development consent is on foot, the use of the Gittany Lot would be inconsistent with the public interest, nor am I aware of any reason why Ms McDowell and Mr Burke could not be adequately compensated by the payment of an appropriate amount of compensation for any loss or other disadvantage that may be found to arise from the imposition of the easement. 86 However, I am not satisfied that, as is required by paragraph (c), all reasonable attempts have been made by Mr Gittany to obtain the easement or an easement having the same effect, but which attempts have been unsuccessful. First, I am not satisfied on the evidence before me that Mr Gittany has been made all reasonable attempts to obtain the benefit of the western drain. As I have already noted, there is no evidence of any attempt by Mr Gittany to revisit the possibility of utilising the western drain. The evidence satisfies me that an easement over the western drain, if it were obtained, would have "the same effect" as the easement which Mr Gittany now seeks to have imposed. Second, I am not satisfied that Mr Gittany has made all reasonable attempts to obtain from Ms McDowell the easement which he seeks to have the court impose. It is quite clear from the evidence that Ms McDowell has taken the stance that the 2004 Agreement is at an end and that any fresh easement would have to be the subject of negotiation between herself and Mr Gittany. That is, at the very least, a reasonably arguable stance to have taken. Nevertheless, she has never refused to enter into such negotiations with Mr Gittany, but Mr Gittany has never sought to do so. He has at all times simply insisted that he is entitled to the straight line drainage easement based upon the 2004 Agreement and has not made any attempt, let alone making all reasonable attempts, to negotiate for a further easement. The correspondence of June-July 2006 supports that conclusion in the sense that although at one point, Mr Gittany did make an "offer" to pay $12,500 (admittedly within 7 days), that "offer" was made pursuant to the 2004 Agreement, which, if accepted, would have had the effect of reducing Mr Burke's liability to Ms McDowell by a corresponding amount. 87 Finally, I should add that it is always to be kept in mind that as Young J (as his Honour then was) pointed out in Hanny v Lewis (1999) NSWConv R 55-879, the court should not lightly interfere with the property rights of land owners having regard to the expropriatory nature of section 88K (see also Khattar v Wiese (2005) 12 BPR at page 23,235). In the exercise of my discretion I would in all the circumstances of this case, have declined to make an order under that section. 88 For those reasons, I likewise decline to make an order under section 88K. Final Disposition 89 Accordingly, I order that the Further Amended Statement of Claim be dismissed with costs.

07/07/2009 - Typgraphical error. - Paragraph(s) 47. The word "not" put in before the words "put to Mr Bourke in cross-examination".

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CITATION : Gittany v McDowell [2009] NSWSC 591 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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