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The recent decision in McWilliam v Hunter serves as a reminder for all developers to carefully consider and investigate encumbrances on land earmarked for development, write Nicholas Sharman and Daniel Weissel.
Facts
The defendant sought to develop Lot A, which would involve the erection of a structure to sit above the Easement and consequently restrict the height to which the Easement could be used. Development consent conditions imposed by the local council included, among other things, that the structure allow a clearance height over the Easement of 2.8 metres.
The plaintiffs sought a declaration that the proposed development, to the extent that was to be erected over the site of the Easement, would constitute a substantial and unreasonable interference with the plaintiff’s current and future reasonable use of the Easement.
The defendants cross-claimed and sought an order to modify the Easement such that it be limited in height to 2.8 metres. It was submitted that the dimensions of the Easement and the improvements positioned on Lot B at the time of creation of the Easement (notably a single garage) should lead to the conclusion that only vehicles that would be accommodated by that small single garage were contemplated for use of the Easement.
The defendants primarily relied upon s89(1)(c) of the act, which permits the modification of an easement where the proposed modification will not substantially injure the persons entitled to the easement. The defendants contended that a modification of the Easement to limit its height to 2.8 metres would not substantially injure the plaintiffs.
Consequently, the court ordered that the defendant be restrained from proceeding to construct the development the subject of the development consent that would allow a clearance height of 2.8 metres above the Easement; and that the defendant’s cross-claim be dismissed.
In assessing those competing interests, developers ought to understand that: