Petrie v Dickson [2024] NSWSC 972
Case Overview
More recently, Hones Lawyers assisted Janet Petrie, owner of land at 1A Waratah Rd, Palm Beach (the Petrie Land) in obtaining relief from the Supreme Court of NSW in the form of a declaration of invalidity of an ‘easement for garden use’ (Easement) burdening the rear of the Petrie Land and benefitting the adjoining semi-detached dwelling house at 1 Waratah Rd owned by the Defendants (the Dickson Land).
The Easement was improved by a garden shed (Shed) within which the Defendants stored various goods and chattels, including laundry and gardening equipment but extending to all manner of personal equipment completely unrelated to any ‘gardening’ or ‘laundry’ use, which the terms of the Easement purported to allow.
The relationship between the Easement and Shed to each of the Petrie Land and Dickson Land is best shown on the following extract from the deposited plan in which the Easement was created.
The Defendants were using the Easement area for a range of non-gardening purposes, including full body showering in full view of the house on the Petrie Land (and its occupants) and storing rubbish around the outside of the Shed. Further, the Defendants were filling the entirety of the Shed with goods and chattels to the point that the Plaintiff was unable to utilise any part of the Shed for her own domestic purposes.
The Defendants asserted that their right to use the Shed was an exclusive right to store any equipment, and that they were not limited to storing gardening or laundry equipment within the Shed. Similarly, they asserted that their rights to carry out gardening activities within the Easement area was not limited in any way and essentially equated to exclusive possession of the whole of the Easement area.
Parker J held that no right, express or ancillary, was granted by the terms of the Easement to use the Easement area and Shed in the manner complained about by the Defendants. The established pattern of use was equivalent to the exclusive possession of part of the Petrie Land by the Defendants, which fell outside a valid grant of an easement. The effective exclusion of the Plaintiff from a large part of her own rear yard (including the airspace above the Shed and the ground beneath it) was “virtually total”.
In Parker J’s view, “…the easement amounts to the effective appropriation of a substantial piece of land belonging to the servient owners, and this is sufficient to invalidate it under the ouster principle…” (at paragraph [315]). The Easement was thus held not to be a valid easement.
This is an important decision in that the Court does not frequently or lightly decide that an easement is invalid, and highlights the importance of obtaining proper legal advice in drafting the terms of any easement.
The question of the Defendants’ costs liability to the Plaintiff is yet to be determined.
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