Easements and the ISPT Case: Tell him he’s Dreaming

By |2022-06-29T10:23:00+10:004-5-22|

Everyone knows that a man’s home is his castle. We are fortunate to live under a real property regime that uses terms like “freehold”, “indefeasibility” and “inalienable rights”.

In this context you could easily sympathise with Darryl Kerrigan when he approaches me to develop his property, because he needs a bigger pool room, and I have to advise him that his ability to extend his home depends on whether Power Co (the grantee of the easement to protect the power lines running through his property) will consent to the building of an additional pool room.

Silence… Crickets… Serenity!

“What do you mean?” he eventually says. “My little development isn’t going to affect the rights of Power Co in any way! The power lines are on the other side of the block… and Dale has already started digging holes!”

I explain to Darryl that in the ISPT case in 2017, the Planning and Environment Court has confirmed that section 65 of the Building Act gives PowerCo a right of veto over his proposed works which is collateral or incidental to PowerCo’s express rights under the easement, and that veto cannot be overcome by an order of the Court. Darryl’s response is more silence (but I’m sure I could hear the smell of serenity starting to burn).

“They can’t do that!” he says. “Tell him he’s dreaming! You don’t know what you’re talking about! That’s contrary to the law of bloody common sense!”

As Darryl is a new client, I try to explain possible options in an attempt to create a relationship. I put to him that there is some potential that his case may be able to be distinguished on the facts, because the easement on his land is not affected by his proposed development. Whereas the evidence in the ISPT case was insufficient to persuade his Honour that those circumstances applied to the ISPT easement. Of course, I also have to explain that Darryl firstly has to ask PowerCo for their consent, and get knocked back in order to create a dispute that he could then talk to a Judge about.

Unfortunately, I don’t think I’m helping. In fact, I’m doing the opposite. As Darryl leaves he lets me know his plans. “I’m gonna get Dennis involved. He’ll tell ‘em about the Constitution. He’ll explain the vibe. He’ll make them suffer in their jocks!” He explains that he hasn’t heard such rubbish since the Government tried to resume his land for the airport expansion.

What is a mere lawyer to do?

Paul Morris leads the property team on commercial, industrial and retail conveyancing and leasing matters (including easements). Paul can be contacted at psm@nicholsons.com.au or call (07) 3226 3944.

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