LAND LAW – covenants – restrictive covenants – construction – where restrictive covenant states that no matter or thing of any nature whatsoever shall be constructed on erected on placed on or permitted to remain on the servient tenement that exceeds a height of RL 26 AHD – where airspace above the servient tenement became part of the dominant tenement after registration of the restrictive covenant – whether on the proper construction of the restrictive covenant there is an implied positive covenant or easement allowing the owner of the servient tenement to enter into the airspace on a transitory basis – restrictive covenant held not to include a positive covenant or easement LAND LAW – easements – implied easements – easements of necessity – where airspace above the putative dominant tenement is owned by putative servient tenement – where that airspace previously formed part of the property of the putative dominant tenement until the registration of a plan of subdivision under which the airspace became part of the putative
servient tenement – whether easement over airspace is essential for the use of the putative dominant tenement – implied easement of necessity held to have arisen at the time of the registration of the plan of subdivision – easement not enforceable by current owners of putative dominant tenement TORTS – trespass – trespass to land – title to sue – where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where airspace forms part of the common property of the owners corporation – owners corporation held to have standing to bring a claim for trespass to airspace TORTS – trespass – trespass to land – where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where it is not possible for owner of the adjacent property to access roof of that property without encroaching into the airspace – where agents of adjacent property owner enter into airspace on several occasions to effect repairs to and survey the roof for possible future development – defence of necessity established in relation to some but not all of the encroachments into the airspace – trespass held to have occurred on the other occasions – compensatory damages awarded TORTS – private nuisance – title to sue – whether the owners corporation of a strata scheme can bring a claim for private nuisance in respect of damages or loss allegedly suffered by individual lot owners in the strata scheme – owners corporation held not to have standing to bring a claim for private nuisance on behalf of lot owners LAND LAW – covenants – restrictive covenants – application to modify or extinguish restrictive covenant pursuant to s 89 of the Conveyancing Act 1919 (NSW) – power to make orders – where proposed modification
to restrictive covenant seeks in substance to create an easement – no power to create an easement under s 89 of the Conveyancing Act LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – proposed easement to access the airspace owned by putative servient tenement as reasonably necessary and on a temporary basis to repair, maintain and/or improve structures on the putative dominant tenement – whether reasonably necessary for the effective use or development of the putative dominant tenement – proposed easement reasonably necessary for effective use or development insofar as it permits access to the airspace as necessary and on a temporary basis for repairs and maintenance only LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – compensation – whether the lot owners in a strata scheme are entitled to be compensated for any loss or other disadvantage arising from an easement to be imposed over common property of owners corporation – lot owners are not persons having an estate or interest in the common property that is evidenced by an instrument registered in the General Register of Deeds or the register kept under the Real Property Act 1900 (NSW) – lot owners not entitled to compensation – Community Association DP 270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83 applied LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – whether reasonable attempts have been made to obtain the easement or an easement having the same effect – where first attempts to obtain the easement or an easement having the same effect made only after the commencement of proceedings – where attempts made after the commencement of proceedings were sufficient in circumstances where lengthy correspondence between the parties about access, and the owner of the putative servient tenement was not prepared to grant an easement on any terms prior to receiving the first
offer PRACTICE AND PROCEDURE – applications – leave to amend pleadings – application to amend summons and statement of claim – application made on the last day of a four-day hearing – no adequate explanation for the delay in making the application – where the proposed amendment merely clarifies what was already implicit in the existing pleadings – application granted LAND LAW – Torrens title – contents of Register – where restrictive covenant recorded in a previous folio of the dominant land – where that restrictive covenant is not recorded in current folio of dominant land – observations about whether the dominant and servient tenements’ title is subject to the restrictive covenant

The Owners – Strata Plan 85044 v Murrell Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20 (01 October 2020)