104-118 CLARENCE STREET SYDNEY

LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

COSTS – where plaintiff sought easements on various bases including by prescription, express grant and s 88K Conveyancing Act 1919 (NSW) – where orders under s 88K not required because plaintiff succeeded on prescriptive easement claim – where plaintiff failed on express grant claim – where successful prescriptive easements claim based on late amendment - whether plaintiff should pay defendants’ costs pursuant to s 88K(5) – whether departure from the usual order warranted – costs apportioned

LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880’s and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for overhang and encroaching structures to remain and for repair and services considered reasonably necessary – where elements of first plaintiff’s heritage building intrude on to defendants’ land – compensation awarded under s 88K Conveyancing Act 1919 (NSW) – easements for drainage of sewerage and water and for light and air refused –– first plaintiff failed to establish easements for light and air were reasonably necessary LAND LAW – easements – creation of easements – creation by express grant or implication in old system deeds of conveyance – held that general words in 1871 deed created rights of way to benefit of landlocked plots over private lane where only access to public road via that lane – where rights of way no longer accommodate the second plaintiff’s land – held that second plaintiff does not have the benefit of any existing rights of way LAND LAW – easements — where owner of dominant tenement purported to transfer benefit of rights of way to other land – held that purported transfer invalid – held that easements are not ‘extended’ upon consolidation of landholdings