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[2025] NSWSC 1429
General information, not legal advice.
Supreme Court of NSW
2025-11-28
Richmond J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McLennan v Ng [2025] NSWSC 1429
Hearing dates: 10 November 2025
Date of orders: 28 November 2025
Decision date: 28 November 2025
Jurisdiction: Equity - Real Property List
Before: Richmond J
Decision: (1) Direct the parties to bring in short minutes of order to give effect to these reasons including as to costs within 14 days.
(2) Grant liberty to apply within 14 days in the event that there is a disagreement as to the form of the orders.
Catchwords: LAND LAW — Conveyancing — rules of construction — Standard form easements — scope of rights conferred by an ‘easement to drain water’ in standard form
LAND LAW — Easements — Substantial interference with easements — Whether obstructions present on easements constitute substantial interference with rights conferred
LAND LAW — Easements — Substantial interference with easements — Remedies for substantial interference — Whether refusal of consent to development application by dominant owner constitute substantial interference with rights conferred — Whether consent could be compelled by way of injunctive relief
WORDS AND PHRASES — ‘easement to drain water’
Legislation Cited: Conveyancing Act 1919 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Local Government Act 1993 (NSW)
Cases Cited: Abingdon Corporation v James [1940] 1 Ch 287
Birmingham, Dudley and District Banking Company v Ross (1888) 38 Ch D 295
Bland v Levi [2000] NSWSC 161
Bockenfield Aerodrome Ltd v Clarehugh [2021] EWHC 848 (Ch)
Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511; [2012] QCA 9
FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312
Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24
GM Amalgamated Investments (Dulwich Hill) Pty Ltd v Mills [2014] NSWCA 202; (2014) 17 BPR 33,133
Goodhart v Hyett (1883) 25 Ch D 182
Jones v Pritchard [1908] 1 Ch 630
Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996
Simmons v Midford [1969] 2 Ch 415
Thomas v Pearson [2025] NSWSC 1127
Westfield Management Pty v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45
Zenere v Leate (1980) 1 BPR 9300
Texts Cited: Nil
Category: Principal judgment
Parties: Garry McLennan (Plaintiff)
Pow Chin Judy Ng (Defendant)
Representation: Counsel:
P Afshar (Plaintiff)
D S Weinberger SC (Defendant)
Solicitors:
Braddon Marx Lawyers (Plaintiff)
Bobb Partners (Defendant)
File Number(s): 2024/131748
Publication restriction: Nil
These proceedings are a dispute as to the entitlement of the plaintiffs to undertake certain works on land in Pennant Hills owned by the defendant which is burdened by an easement to drain water 1.2m wide benefiting the plaintiffs’ land. The proposed works include the installation of a new pipe and associated stormwater pits in the area covered by the easement and the removal of certain ‘obstructions’ on the defendant’s land said to prevent the installation of the pipes and stormwater pits, including the removal of 5 trees. The defendant objects to the proposed works on the basis that they go beyond what is permitted by the easement.
The land owned by the plaintiffs which has the benefit of the easement is Lot 212 in DP 774073 (Lot 212) and the land burdened by the easement owned by the defendant is lot 208 in that deposited plan (Lot 208). The easement was created pursuant to s 88B of the Conveyancing Act 1919 (NSW) on the registration of DP 774073 on 16 February 1988. The plaintiffs acquired Lot 212 in 1998 and the defendant acquired Lot 208 on 22 July 1988.
The plaintiffs’ evidence comprised two affidavits of Mr Garry McLennan, the first plaintiff, and two affidavits of Mr Frank Carnuccio (Mr Carnuccio), a licensed builder engaged by the plaintiffs for the purposes of the project. The defendant’s evidence comprised two affidavits made by her. None of the witnesses were cross-examined.
The location of easement is shown on the extract from the deposited plan set out below:
The easement is located in the area marked by the blue line on the above image. It will be seen that the easement also passes through Lot 214 in DP 774073 but the Court was informed at the hearing that the owner of that lot does not oppose the plaintiffs’ proposed works so long as they are carried out wholly within the easement. Within the easement lies a clay pipe 90mm in diameter which the defendant says was installed prior to 1989.
A survey prepared by Craig and Rhodes Pty Ltd on 28 August 2020 shows that the easement located on Lot 208 has a number of structures on or above the surface of the land which were installed after the existing pipe was installed. First, there is a section approximately 12.6m in length which is covered by stone paving. Secondly, there is an air-conditioning unit of attached to the house which sits over the easement. Thirdly, there is a stone retaining wall of about 8m in length constructed along the easement which is connected to two rendered retaining walls placed at right angles to the stone retaining wall in order to support the garden outside the easement. Fourthly, the retaining wall supports a garden bed with plants and shrubs on the easement. Fifthly, there are five trees which overhang the easement and have roots which pass through the easement although the trunks of the trees are located outside the easement.
On 16 September 2020, the plaintiffs lodged a development application with the Hills Shire Council for approval to subdivide Lot 212 to create two new lots.
On 24 December 2021, the Council granted a development consent for the subdivision (Consent). The Consent was a deferred commencement consent under s 4.16(3) of the Environmental Planning and Assessment Act 1979 (NSW) such that it is not to operate until the applicant satisfies certain conditions relating to the ‘stormwater drainage works’ and ‘tree removal’ (consent conditions).
As to stormwater drainage works, the consent conditions were:
A1. The stormwater drainage works within the inter-allotment drainage easement requires a separate construction approval from Council beforehand, under Section 68 of the Local Government Act 1993.
A2. The design and construction of stormwater drainage works must be provided for in accordance with council’s Design Guidelines Subdivisions/Developments and Works Specifications Subdivisions/Developments.
A3. The detailed design must be amended to incorporate the drainage works within the easement. As the civil concept design drawings did not illustrate any works within the easement, the stormwater upgrade works must reflect the civil works concept engineering plans 278-20C DA-0101, DA-0102 and DA 0701 prepared by Craig and Rhodes Revision C dated 10/09/2020.
A4. The detailed design must include a detailed survey identifying all features existing in the vicinity of the easement.
A5. All proposed stormwater works and associated site improvement works are to be carried out as per any requirements of the property owners of [Lot 208] and [Lot 214]. Written owners consent for the proposed stormwater works and associated improvement works from [Lot 208] and [Lot 214] must be provided with the Section 68 application. Commencement and completion dates must be provided too.
A6. Once the construction works are complete, a works as executed plan must be prepared in accordance with Council’s Design Guidelines Subdivisions/Developments and submitted to Council’s Construction Engineer for written approval. The works as executed plans must be prepared by a civil engineer or registered surveyor.
A7. A letter from a register surveyor must be approved with the works as executed plan certifying that all pipes and drainage structures are located within the proposed easement to drain water.
A8. Any change to the location or alignment of the proposed easement shown on the concept engineering plans prepared by Craig and Rhodes Drawing 278-20C DA-0101, DA-0102 and DA 0701 Revision C dated 10/09/2020 will require a separate modification application.
A9. The work is to be contained in the existing easement created by DP774073. Any amendment to the properties benefitted, width or location requires a separate plan to be registered beforehand. This includes any changes approved by Development Consent 356/2021/ZA over [Lot 211].
Condition A9 refers to a development consent for Lot 211 which is adjacent to Lot 212 issued around the same time as the Consent and permits the subdivision of that lot into 3 separate lots.
As to tree removal, the consent conditions were:
- Development consent being obtained for tree removal on the following adjoining properties:
2. [Lot 208 DP 774073] for the removal of trees 66, 67, 69, 70 and 74.
…
- Development consent be obtained for any additional tree removal; located on adjoining properties not listed above that will be impacted by the works under Part A above.
The five trees located on Lot 208, referred to as ‘66, 67, 69, 70 and 74’ are identified in the arborist’s report lodged with the development application.
The plaintiffs are required to provide to Council written evidence demonstrating that the matters listed in the consent conditions have been satisfactorily addressed no later than four weeks before the expiry date of the Consent (in around December 2026). Once those matters have been complied with, a full development consent will be issued subject to the further conditions set out in the Consent.
On 3 August 2023, the plaintiffs sent an email to the defendant stating that ‘we plan to upgrade the easement through your property in line with the deferred development approval granted by Hills Shire Council on 24 December 2021’.
On 10 August 2023, Mr Carnuccio, sent an email to the defendant providing further information regarding the proposed drainage works on Lot 208. This included a copy of engineering plans for the pipe and associated stormwater pits prepared by Craig & Rhodes Pty Ltd called ‘Revision A’ (Revision A).
The Revision A plans are different from the ‘concept drawings’ referred to in consent conditions A3 and A8, also prepared by Craig & Rhodes Pty Ltd, dated 10 September 2020 and called ‘Revision C’ (Revision C). The main difference is that in Revision A the drainage pipe and associated stormwater pits on Lot 208 are located entirely on the easement whereas in Revision C the drainage pipe and one of the stormwater pits are located outside the easement in a section near the retaining walls on Lot 208. The purpose of this aspect of Revision C appears to be to reduce the impact of the proposed drainage works on those retaining walls. It is apparent from consent conditions A3, A7 and A9 that the Council requires new engineering drawings to be provided which show the drainage works entirely within the area of the easement. Revision A is undated but I infer it was created before Revision C.
The plaintiffs propose to revert to Revision A for the purpose of their future dealings with Council, and rely on it as the plan of the proposed drainage works for the purposes of these proceedings.
Mr Carnuccio deposed that the nature of the stormwater drainage works required to satisfy the consent conditions is as follows:
the replacement of the existing pipe for stormwater drainage presently running within the easement with 225mm PVC pipes across the length of the easement to and discharging out onto Crompton Place;
excavation along the length of the easement in order to access existing pipe for replacement;
the backfilling of the excavated area in order to accomplish (1) above;
The proposed residential subdivision at 46 Glenhope Road, West Pennant Hills connects to an inter-allotment drainage pit and pipe network within an existing easement to drain stormwater benefitting the site. However, the existing pipes have insufficient capacity to wholly convey stormwater runoff from the current approved level of development. Surface overland flows are not permitted within The Hills Shire Council stormwater requirements. The DRAINS model developed to investigate the existing pit and pipe network confirms that there is insufficient capacity to convey stormwater runoff in accordance with Council’s requirements and that the pipe network must be upgraded to comprise 225mm diameter pipes to convey stormwater runoff for the current approved level of development. Future development on the newly created lot will require OSD in order to restrict flows to the pre-developed rate in accordance with Council’s requirements.
SWC plans prepared by Colliers, Ref 278-20C-CC Revision A, detail the works required to upgrade the drainage network in accordance with the DRAINS model results.
The last sentence of this passage is a reference to the Revision A plans.
The defendant has explored the possibility of underground boring as the method of installing the new pipe rather than demolition and excavation, in order to avoid the demolition of the structures currently placed on or over the easement, and obtained a quote from a drilling company to do the upgrade works using underground boring of $170,000 plus GST.
The existing pipe in the easement was installed before 1989and is over 36 years old. It has deteriorated over that period and the defendant’s evidence is that there has been water damage on her property which she attributes to cracks in the pipe. She commissioned a CCTV inspection of the pipe in February 2015 and also in May 2025. The report provided after the first inspection stated that ‘the entire length of the stormwater pipe is in poor condition and had tree root intrusion’, and the more recent inspection also disclosed a number of cracks in the pipe including tree root intrusion.
The plaintiffs seek in the Statement of Claim (SOC) the following injunctive relief:
orders permitting the plaintiffs to ‘inspect the site of the Easement’ (prayers 1 and 2);
an order that the defendant ‘take all steps and do all things necessary at her cost and expense to remove the Easement Obstructions’ (prayer 3);
orders permitting the plaintiffs to ‘remove and dispose of the Designated Trees’ (prayers 4 and 5);
orders permitting the plaintiffs to ‘enter the Land to undertake the works required by paragraph 1 of the Deferred Commencement Conditions in the Development Approval for Application No. 357/2021/ZA dated 24 December 2021 and as recorded in Schedule 2’ (prayers 6);
an order restraining defendant from ‘erecting, constructing, planting or locating any structure or item on or that encroaches that area of the Land subject to the Easement until either the Easement is extinguished or further order of this Court’ (prayer 8).
In relation to (1), it is not in dispute that the defendant has since the commencement of the proceedings given the plaintiffs access to the easement for the purpose of inspecting it.
In relation to (2), the expression ‘Easement Obstructions’ is defined in the SOC to mean ‘any structure, fixed item or movable item located or encroaching on or over the Easement as identified in the Survey prepared by Craig & Rhodes and first issued on 28 August 2020, and then reviewed on 11 September 2020, or such other Survey that may be prepared by reason of orders 1 and 2 above’. The SOC at [9] identifies the following as the relevant obstructions: (a) a brick and stone retaining wall which sits over part of the Easement; (b) stone paving which sits over part of the Easement; (c) an air-conditioning unit which has been installed and sits over part of the Easement; (d) a garden bed with plants and shrubs which sit over part of the Easement; and (e) the five trees identified in the consent conditions (E****asement O****bstructions). These are the same items referred to at [6] above.
In relation to (3), the ‘Designated Trees’ are the five trees identified in the consent conditions.
In relation to (4), the works required by para 1 of the deferred commencement conditions are those set out at [9] and [11] above.
The issues for determination are whether:
the easement permits the plaintiffs to replace the existing pipe and other drainage infrastructure within the servient tenement;
the Easement Obstructions constitute an unreasonable interference with the exercise of the plaintiffs’ rights under the easement;
Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, from time to time and at all times to drain water (whether rain, storm, spring, soakage, or seepage water) in any quantities across and through the land herein indicated as the servient tenement, together with the right to use, for the purposes of the easement, any line of pipes already laid within the servient tenement for the purpose of draining water or any pipe or pipes in replacement or in substitution therefor and where no such line of pipes exists, to lay, place and maintain a line of pipes of sufficient internal diameter beneath or upon the surface of the servient tenement, and together with the right for the grantee and every person authorised by the grantee, with any tools, implements, or machinery, necessary for the purpose, to enter upon the servient tenement and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining, or renewing such pipe line or any part thereof and for any of the aforesaid purposes to open the soil of the servient tenement to such extent as may be necessary provided that the grantee and the persons authorised by the grantee will take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and will restore that surface as nearly as practicable to its original condition.
(1) full and free right … from time to time and at all times to drain water (whether rain, storm, spring, soakage, or seepage water) in any quantities across and through the land herein indicated as the servient tenement,
(2) together with the right
(a) to use, for the purposes of the easement, any line of pipes already laid within the servient tenement for the purpose of draining water or any pipe or pipes in replacement or in substitution therefor and
(b) where no such line of pipes exists, to lay, place and maintain a line of pipes of sufficient internal diameter beneath or upon the surface of the servient tenement,
(3) and together with the right for the grantee and every person authorised by the grantee, with any tools, implements, or machinery, necessary for the purpose,
(a) to enter upon the servient tenement and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining, or renewing such pipe line or any part thereof and
(b) for any of the aforesaid purposes to open the soil of the servient tenement to such extent as may be necessary
provided that the grantee and the persons authorised by the grantee
(A) will take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and
(B) will restore that surface as nearly as practicable to its original condition.
The starting point is that one of the bundle of rights held by an owner of realty is the power to decide what is to be done on that land including what, if any, development is to be undertaken there. The owner may exercise that power in their own self-interest. Exercise of the owner’s power is subject to any applicable legal restrictions or requirements including private law rights of others such as if the land is subject to an easement: see Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 (Random Primer) at [25] per Kirk JA.
Allied to this, the owner of a dominant tenement benefited by an easement enjoys the rights expressed in the easement and any rights ancillary to those express rights. Ancillary rights are those implied by virtue of being reasonably necessary for the owner’s enjoyment of their express rights: Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 at [23] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. An owner may obtain relief from a court to protect its ability to exercise the rights possessed by the owner of the dominant tenement pursuant to an easement, where actions of the owner of the servient tenement constitute a substantial interference with that right: Random Primer at [26] per Kirk JA. Such actions amount to an actionable nuisance.
Each owner has rights that must be accommodated to that of the other. In deciding what is a substantial interference with the dominant owner’s reasonable rights under an easement, all the circumstances must be considered. Neither party may exercise his or her rights (the rights arising from the dominant owner and the rights incidental to ownership of the burdened fee simple in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. What amounts to a substantial interference with the reasonable use of an easement for the purposes of a dominant tenement is essentially and ultimately a common sense judgment founded upon the circumstances of each particular case. The notion of “common sense” is consistent with treating the issue as an evaluative question of fact to be assessed in a practical manner. See Random Primer at [26]-[29] per Kirk JA.
The position was summarised in this regard by Kirk JA at [29] as follows:
Whether or not there has been a substantial interference in the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference.
…
Construction of an easement created by written instrument involves determining the intention of the party or parties to the grant in light of the text, context or purpose of the instrument assessed from the perspective of a reasonable person in the position of the party or parties, and in light of admissible evidence: see Theunissen v Barter [2025] NSWCA 50 (Theunissen) at [27] per Kirk JA, with whom Mitchelmore JA and Griffiths AJA relevantly agreed.
Further, when construing a registered easement it is permissible to take into account relevant physical characteristics of the servient and dominant tenements, and the surrounding land, at the time of the grant that were reasonably ascertainable by a third party at that time. The significance, if any, of those characteristics will depend upon the particular case. The characteristics which may be considered are the broad and reasonably enduring characteristics, not fine details of the land or its fixtures. Relevant sources would relevantly include, for example, what can be observed from outside the properties along with publicly available maps. It would not include material that could have been ascertained by searches under Freedom of Information laws: see Theunissen at [108] per Kirk JA.
The plaintiffs submitted that the proposed stormwater drainage works described at [18] above are permitted by the easement and the ancillary rights connected thereto, relying on Bland v Levi [2000] NSWSC 161. The proposed works are entirely within the servient tenement as indicated by the Revision A plans.
The defendant submitted that the plaintiff is not permitted by the easement to install the new pipe and stormwater drainage pits for a number of reasons: first, the easement did not permit the laying of a new pipe (particularly one larger than the existing pipe) where a line of pipes has already been laid; secondly, it does not permit the installation of stormwater drainage pits; and thirdly, it is necessary for the plaintiffs to provide a detailed design showing the placement of the pipe and the nature of the work to be done to install it, rather than the mere ‘concept drawings’ (being the Revision C plans referred to in the consent conditions), so that the defendant can have some input on the design and placement of the new pipe.
In the present case, the only physical feature of the servient and dominant tenements at the time of the grant of the easement revealed by the evidence which is relevant to the construction of the easement is that the dominant tenement is on a hill which overlooks the servient tenement. It may be inferred that the purpose of the easement is to control the passage of rain and stormwater from the dominant tenement and direct that water to the stormwater drains in Compton Place. Absent the pipe, the discharge of water, and potentially soil, from the dominant tenement to the servient tenement would amount to a trespass for which the owner of the dominant tenement would be liable in damages and hence it can be regarded as installed for the benefit of the owner of the dominant tenement: Jones v Pritchard [1908] 1 Ch 630 at 638; Simmons v Midford [1969] 2 Ch 415 at 422.
The easement confers the right (expressed to be full and free) to drain water in any quantities across and through the servient tenement. It also confers the right to use, for that purpose, any line of pipes already laid or any pipes in replacement or substitution therefor. In my view, giving those words their ordinary and natural meaning, the easement permits the owner of the dominant tenement to install a new pipe within the servient tenement of a kind which it regards as reasonably necessary to drain water to the stormwater drains in Compton Place (which in this case is a pipe 225mm in diameter), and to open the surface of the servient tenement for that purpose, subject to the proviso referred to at [35(3)] above: see GM Amalgamated Investments (Dulwich Hill) Pty Ltd v Mills [2014] NSWCA 202; (2014) 17 BPR 33,133 at [27], [64].
While the express terms of the easement refer only to the laying of pipes, in my view, a term is to be implied into the easement that it is also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment: Jones v Pritchard at 638; Zenere v Leate (1980) 1 BPR 9300 at 9305. The evidence is that only one stormwater drainage pit is to be installed on the servient tenement. The Colliers Report confirms that this is reasonably necessary to the exercise or enjoyment of the right to drain water through the servient tenement.
While the Revision C plans show the new pipe passing outside the servient tenement, the plaintiff now relies on the Revision A plans as the identification of where the new pipe and associated stormwater pits will be located which are wholly within the servient tenement.
In my view, the easement does not preclude the installation of a larger pipe than the existing one. The easement confers the right to drain water ‘in any quantities across and through the land’. That permits the owner of the dominant tenement to determine the size of the new pipe so long as that new pipe is of a kind reasonably necessary to serve the purpose of draining water through the servient tenement (as in my view it is). The Colliers Report indicates that a pipe which is 225mm in diameter is reasonably necessary for the purpose of draining water from the dominant tenement to the stormwater drains in Compton Place and indeed it is a requirement of the Council that a pipe of this diameter be used. While the Council may be under the misapprehension that the new pipe is to discharge stormwater from five lots rather than two, so that the new pipe could be 150mm rather than 225mm in diameter because it will only discharge water from two lots rather than five, that does not mean that the selection of a pipe of that larger size is unreasonable. Further, there is nothing in the terms of the easement to restrict the dominant owner from choosing the size of the pipe.
…the right to lay pipes under the servient strip is not confined to a single pipe or to a pipe or pipes of any particular kind or dimension, or to a pipe along any particular line. I can see no ground for saying that, a pipe having been laid under the grant, the owner of the plaintiff’s land could not later remove that pipe and put in a bigger or better one in its place or a pipe following a different line under the servient strip, of course making good any damage to the surface.
… the dominant owner may do work on the servient tenement which is reasonably necessary for it to enjoy the right-of-way in such a way that it causes no reasonable interference with the servient tenement or undue inconvenience to the holder of the servient tenement. The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone.
It may be noted that it is necessary in any event that the new pipe is greater than the existing pipe as the Council’s requirements make it necessary that it be at least 150mm in diameter as a result of the subdivision of Lot 212 into two lots. The defendant did not contend that the easement would only benefit Lot 212 in its original unsubdivided form. A submission to that effect would have failed because there is nothing in the terms of the easement to suggest that it benefits the dominant tenement only in its original form; rather it is simply expressed to be appurtenant to the dominant tenement and this encompasses each part of it, including the two subdivided lots: Gallagher v Rainbow (1994) 179 CLR 624 at 633-634; [1994] HCA 24; Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996 at 14,002-14,003 per Mahoney JA, 14,003 per Meagher JA and 14,004 per Handley JA.
In so far as the defendant says that she has only been provided to date with ‘concept drawings’, she has known since 10 August 2023 that the proposed work was contained in the Revision A plans which show the new pipe passing wholly within the easement only one storm water pit on the defendant’s land and it (like the pipe) is located wholly within the easement. In my view, those drawings sufficiently describe the nature of the work to be conducted to form the basis of orders to recognise the plaintiffs’ entitlement to install the new pipe and stormwater pit on the servient tenement.
The plaintiffs submitted that the Easement Obstructions constitute a substantial interference with the exercise of their rights granted by the easement, and seek a mandatory injunction for the removal of them and also damages in nuisance. The question of damages is not presently before the Court.
The defendant submitted that the Easement Obstructions do not constitute a substantial interference with the exercise of the plaintiffs’ rights under the easement because there had been no interference for the many years in which the easement had operated without any objection by the plaintiff to the presence of the Easement Obstructions.
It is appropriate to deal under this heading with the Easement Obstructions other than the five trees which are dealt with separately below.
As noted in Thomas v Pearson in the passage quoted earlier, the dominant owner can obtain relief from a court to restrain the servient owner from conduct which amounts to a substantial interference with the dominant owner’s reasonable use of the easement. Whether there has been a substantial interference is to be determined in light of the nature of the rights granted and all the circumstances of the case: Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 at [35].
It is arguable that construction of the brick and stone retaining wall and the stone paving each of which sit over part of the easement, constituted a substantial interference with the plaintiff’s use of the easement because the plaintiffs will be required to remove them at significant expense in order to either repair or maintain the pipe or, as is proposed now, to replace it.
In GM Amalgamated Investments*,* which concerned a drainage easement in similar terms to that in the present case*,* Emmett JA (with whom Gleeson and Sackville JJA agreed) said at [4]:
It may well be that the construction of the concrete pavement over the part of the Servient Tenement that is subject to the Easement (the Easement Land) constituted a wrongful interference with the enjoyment of the Easement by the Dominant Owners. That is to say, the construction of concrete paving over the Easement Land would constitute a significant impediment to the exercise of the rights conferred by the Easement to enter upon the Servient Tenement for the purpose of laying, inspecting, cleansing, repairing, maintaining or renewing the pipeline (see [12] below). The Dominant Owners are entitled to require the Servient Owner not to make the exercise of the rights conferred by the Easement practically impossible or substantially more difficult. If, as a consequence of the actions of the Servient Owner, the Dominant Owners no longer have a reasonable means of access for the purpose of exercising the rights conferred by the Easement, the Servient Owner has done something that interferes with their rights. Accordingly, the Dominant Owners may well have been entitled to an injunction to restrain the laying of the concrete pavement over the Easement Land. They could conceivably have been entitled to a mandatory injunction requiring removal of the concrete paving (see Abingdon Corporation v James [1940] 1 Ch 287 at 293–5 and Goodhart v Hyett (1883) 25 Ch D 182 at 187).
As Emmett JA noted in this passage, Abingdon Corporation v James [1940] 1 Ch 287 and Goodhart v Hyett (1883) 25 Ch D 182 are both cases where injunctions were granted to require removal of obstructions placed over an easement because they impeded access for maintenance and repair (in each case the construction of a house over an easement for pipes on the servient tenement). As in GM Amalgamated Investments, the plaintiffs have not, until now, objected to the construction by the defendant of any of the Easement Obstructions including the brick and stone retaining wall and the stone paving.
In my view, regardless of the position previously adopted by the plaintiffs, as they are entitled to install a new pipe (and associated stormwater pit) on the servient tenement they are also entitled to require the removal of the physical obstructions to that work, or undertake the removal themselves subject to the proviso that they take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and restore that surface as nearly as practicable to its original condition once the work is done. In my view, ‘original condition’ refers to the condition of the servient tenement immediately before the work is done and not its condition at the time of the grant of the easement: see GM Amalgamated Investments at [31]. No submission was made to the contrary. I note that the plaintiff’s proposal set out at [18] above is consistent with that approach.
It follows that the plaintiff is entitled to remove, or require the removal of, the Easement Obstructions if this becomes necessary for the soil to be opened to install the new pipe (and stormwater pit) on the servient tenement, subject to observing the requirements of the proviso.
The plaintiffs submitted that they are entitled to remove the five trees because they were things which constituted a substantial interference with the reasonable enjoyment of the easement.
The defendant submitted that the easement does not permit the plaintiff to enter and remove the five trees because they are located outside the servient tenement albeit that part of the root system of each tree is inside the servient tenement.
Further, the defendant submitted that the requirement to remove the trees is flawed because the arborist report is based on the Revision C plan which assumes a new easement. While it is correct that the arborist report is based on the Revision C plan, it is clear that the five trees are not near the part of the pipe which is shown on the Revision C plan as passing outside the existing easement. Accordingly, I do not accept that the premise of the arborist report is unsound.
Strictly speaking, the consent conditions do not require the removal of the five trees identified in the consent conditions but only development consent being granted for their removal. However, there is no suggestion in the evidence that the removal of the trees will not be necessary in order for the new pipes and stormwater pit to be installed and consequently it is necessary to consider the question whether the plaintiff is entitled to require those trees to be removed, bearing in mind that, unlike the other Easement Obstructions, they are outside the servient tenement except for part of their root system.
There are three matters bearing on this question. First, as noted earlier, the dominant owner is entitled to relief to restrain a substantial interference with his or her use of an easement. This can potentially extend to requiring the servient owner to remove trees on his or her land outside the servient tenement. This is illustrated by Bockenfield Aerodrome Ltd v Clarehugh [2021] EWHC 848 (Ch) which concerned an easement benefiting land used as an airport which conferred ‘the unrestricted right to use at a safe height the airspace above the retained land for the passage of aircraft in circuit arriving or leaving the property’. The burdened land adjoined the airport and included trees which were at a height which impeded the take-off and landing of aircraft at the airport. Kramer J accepted the evidence of the dominant owner’s witnesses that the trees were forcing aircraft into steeper approaches than the pilots would wish and presented a hazard. His Honour said at [96]:
The diagrams produced by the Claimant demonstrate that the current height of some of the trees prevents pilots landing and taking off at angles to which they are entitled under the grant by depriving them of 20 feet of clearance as they cross the defendants' land. Accordingly, I find that the defendants have substantially interfered with the claimant's easement. Under the terms of the grant the claimant is entitled to insist upon adopting a flight path which enables pilots to arrive 10 feet over the numbers with at least 20 feet of clear airspace beneath them on the basis that they are no lower than 20 feet at the point of crossing the boundary between the parties' properties. It would, however, be unreasonable for the claimant to require the clearance of obstacles which did not prevent landing along such a flight path as provided that this is preserved, the way can be as conveniently used as it could in the absence of such obstacles.
His Honour made an order requiring the interference with the easement to stop by the removal or reduction in height of trees on the servient tenement to enable the dominant owner and its visitors to land at an angle which enables them to pass over the servient owner’s land by 20 feet at the boundary between the two properties (at [157]).
Secondly, the grant of an easement carries with it those ancillary rights which are necessary for the enjoyment of the rights expressly granted: see Westfield Management Pty v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 at [23]; FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312 at [37]-[49].
Thirdly, there is an implied term in an easement that the servient owner will not derogate from the grant, i.e. ‘a grantor having given a thing with one hand is not to take away the means of enjoying it with the other’: Birmingham, Dudley and District Banking Company v Ross (1888) 38 Ch D 295 at 312-313 per Buckley LJ, quoted with approval in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511; [2012] QCA 9 at [33].
In my view, it is clear from the arborist’s report that the five trees substantially interfere with the use by the dominant owner of the easement because it is necessary for a significant part of their root system (30-55%) within the servient tenement to be removed in order for the installation of the new pipe and the stormwater pit on the servient tenement as permitted by the easement to take place. That in itself is a substantial interference because the roots risk damage to the existing pipe (as evidenced by the report referred to at [27] above) and impede the installation of the new pipe. Practically speaking, the interference is also significant because there is a real risk that the removal of the root systems of the trees by the installation of the new pipe and stormwater pit will make the trees so unstable that they will fall and potentially injure persons or property on the defendant’s land. That would be a nuisance for which the plaintiff would potentially be responsible. That risk is itself a substantial interference with the enjoyment by the plaintiffs of their rights under the easement. As in Bockenfield Aerodrome, that interference is such as to justify the court making an order for the removal of the trees notwithstanding that the trunk of each tree is located outside the servient tenement.
This makes it unnecessary to determine whether the easement carries with it an ancillary right permitting the dominant owner to remove trees on the defendant’s land or whether the refusal of the defendant to permit the removal of the trees is a derogation from the grant, and as those questions were not argued it is preferable to do so.
The servient owner’s refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner’s rights as a direct physical obstruction.
It is not in dispute that this Court can grant injunctive relief requiring the giving of consent to a development application to be made by the dominant owner if the development application proposes a use which is consistent with the rights conferred on the dominant owner by the easement, on the basis that failure to give the consent will constitute a substantial interference with the rights of the dominant owner: see Sertari at [10]; Random Primer at [30]-[43].
In my view, once it is accepted that the plaintiffs are entitled to install a new pipe and associated stormwater pit within the servient tenement, it follows that they are entitled to an injunction to require the defendant to consent to the making of an application under s 68 for the proposed work. This does not preclude the defendant from exercising her rights under the applicable planning regime to object to the proposed development.
The fact that the Revision A plan is marked as a draft does not preclude the making of an appropriately drafted injunction which specifies the work for which consent is required to be given as the installation of a pipe and associated stormwater drainage pit on the servient tenement in the manner set out in Revision A.
For these reasons, I have concluded that the plaintiffs are entitled to install a new pipe and stormwater pit on the servient tenement and to remove or require the removal of the Easement Obstructions. The question arises as to what is the appropriate relief to recognise that entitlement bearing in mind the delay in implementation of the works due to the need for further approvals. Mr Afshar, who appeared for the plaintiffs, provided at the conclusion of the hearing some proposed orders which Mr Weinberger SC, who appeared for the defendant, quite naturally objected to on the basis that he had not had sufficient time to consider them. It is also relevant that the parties were not in agreement as to the principles relevant to the resolution of the dispute, which this decision has now clarified.
In the circumstances, I consider that the appropriate course is to permit the parties to bring in a form of orders which reflects these reasons, including as to costs, within 14 days.
I will direct the parties to bring in short minutes of order to give effect to these reasons including as to costs within 14 days. I will also grant liberty to apply within 14 days in the event that there is a disagreement as to the form of the orders.
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McLennan
Ng [2025] NSWSC 1429
(1994) 179 CLR 624
(2007) 233 CLR 528
the replacement of the existing stormwater pits detailed in the Revision C plans with a 600mm x 900mm precast junction pit with 2 solid bolt-down limits;
the installation of at least two 450mm x 450mm x600mm precast stormwater pits are various locations detailed in the Revision C plans;
all excavation and backfilling in order to accomplish (4) and (5) above;
the filling, sealing and disuse of the existing drain as detailed in the Revision C plans.
Mr Carnuccio’s description of the works was not contested, although as noted above the plaintiffs are proposing to proceed with the Revision A rather than Revision C plans. By a letter sent on 22 October 2024 after a mediation of the proceedings, the plaintiffs made an offer to the defendant to conduct these works in essentially the same manner as set out the previous paragraph (except that the pipe was proposed to have a diameter of 150mm rather than 225mm and the temporary removal of the air-conditioning unit was a matter for the defendant), but this was rejected.
After Mr Carnuccio’s email of 10 August 2023, there followed a lengthy correspondence between the parties in which the defendant expressed a number of concerns with the proposed works including: (a) the increase in size of the stormwater pipe from 90mm to 225mm and additional and larger stormwater pits which she maintained were unnecessarily large indicating what she said would be an increased output of water and an intensification of use which was not permitted by the easement; (b) the requirement for five trees to be removed goes beyond what is permitted by the easement, and objects to their removal as they are all in good health and condition and provide privacy and shade to her property; and (c) the requirement that certain retaining walls be demolished in order to allow the new pipe to be laid, particularly as that wall carries sentimental value for her and her husband.
In relation to the size of the pipe, both Revision A and Revision C show the pipe size as 225mm where it passes across a Lot 208. The defendant sent an email to the relevant Council officer on 11 September 2024 seeking to clarify a number of matters regarding the Consent, including why the pipe size is shown on Revision C as 225mm. The Council officer responded by email on 17 September 2024 stating that: ‘The 2 DAs create 5 lots, 3 require [On-Site Detention] control; To drain the combined run-off a minimum 225mm diameter pipe is required’. The two DAs being referred to are the plaintiffs’ development application to subdivide Lot 212 into two lots and the development application lodged by the owners of Lot 211 to subdivide it into three lots. The Council’s guidelines, as set out in the email of 17 September 2024, state that the minimum pipe size to service 1 to 4 lots is 150mm and the minimum pipe size to service 5 to 8 lots is 225mm.
Lot 211 does not currently have the benefit of the easement, although there have been unsuccessful negotiations between the owners of that lot and the defendant for such an easement to be conferred.
The plaintiffs accept that the proposed drainage works are solely for the benefit of their Lot 212 and that while the Council’s email of 17 September 2024 may explain the reason for the size of the pipe being 225mm rather than 150mm, they are currently required to comply with the terms of the consent conditions to adopt a pipe size of 225mm.
In September 2024, the plaintiffs obtained a report from Colliers Engineering & Design (which acquired Craig & Rhodes Pty Ltd after the design drawings for this project were prepared) entitled ‘Stormwater Management Report’ (Colliers Report). This analyses the proposed stormwater upgrade with a PVC pipe having a diameter of 225mm for stormwater drainage for the proposed subdivision of Lot 212 into two lots to ensure stormwater flows throughout the site are managed in accordance with the Council’s requirements. The report concludes:
the easement permits the removal of the five trees located outside the servient tenement;
the defendant can be required to give consent to the application by the plaintiffs for consent to construct the proposed drainage works on the servient tenement.
In Simmons v Midford, Buckley J said of an easement in similar terms at 422: