Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 1:

1. LEEMING JA: I agree with Ball JA.

2. BALL JA: This is the latest chapter in a long running and bitter dispute between neighbours principally concerning the use and maintenance of an inclinator that services both properties. Following the approach adopted by the primary judge, it will be convenient to refer to the property owned by the respondent, Ms Christine Clough, as Lot 116 and the property owned by the applicants, Mr Douglas Breen and his wife, Ms Tracey Dillon, as Lot 118. Ms Clough occupies Lot 116 with her husband, Mr Michael Rose.

The properties

3. Both properties, which are in the Sydney suburb of Lugarno, slope down from the street to the shoreline of the Georges River near where the houses built on the two properties are located. Starting from the street, both lots are narrow (approximately 5 metres wide) and the slope is very steep. As the properties approach the Georges River they widen and the terrain flattens. The inclinator is built largely on Lot 116. Numerous easements exist over both properties benefitting the other, including Easement A, which is the easement that gives access to the inclinator. Easement A also gives the owners of Lot 118 a right of access to the area of the easement (referred to by the primary judge as "the inclinator corridor") to provide "domestic services".

4. The inclinator has six landings. Landing 6 is located at the top of the driveway of Lot 116, which rises gently from the street. It is the obvious landing from which to board the inclinator from the street. Landing 5, the next landing down, is located within the garage of Lot 118, which is beneath the garage belonging to Lot 116 and is part of the same structure. The garage belonging to Lot 118 is accessed by a driveway that slopes down from the street. It is also possible to enter that garage through an external door with street access. Landing 5 is separated from the inclinator corridor by a sliding gate that can be locked from either side.

5. Beneath the two garages is a storage area that includes a veranda, from which access can be obtained to separate storage areas for each of the two lots. It is possible to obtain access to the storage level via a spiral staircase the entrance to which is through a door next to the external door to the garage belonging to Lot 118. The storage level also contains an access point for the inclinator, but the inclinator cannot be summoned from that level, although the inclinator can be manually stopped there. The storage area can also be accessed from below using a single path that winds through Lot 118 and is the subject of an easement (Easement B) in favour of Lot 116. At a point approximately 15 metres down from the storage area along the path, it is possible either to step across the boundary onto Lot 116 or to step the other way on to formed stone stairs and to continue the descent to the houses on both lots. In the primary judge's principal judgment, his Honour refers to the area that permits access to Lot 116 at that point as the "Lot 116 stepdown". There is a pathway on Lot 116 from that point to the house on Lot 116. That pathway and the Lot 116 stepdown are not the subject of an easement in favour of Lot 118, except to the extent that Easement A traverses that area.

6. The next landing down, Landing 4, is approximately 70 metres along the boundary of the two properties from the street. It can be accessed using the inclinator or the pathway on Lot 118 that is the subject of Easement B. Easement B terminates at Landing 4. Both residences can be accessed from that landing using staircases on their respective properties. Landing 3 is near an entrance to the residence on Lot 118. Landing 2 is near the front entrance to the residence on Lot 118. It is only accessible to the owners of that lot. Landing 1 is a small landing between both residences. At that landing, the inclinator gate opens to Lot 118, but the call button was located next to the front entrance to the house on Lot 116, although the call button has been moved since the primary judge delivered his principal judgment.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19719de66029e94d5f3ea915)

Disclaimer: Curated by HT Syndication.