Archer v Timpar Nominees Pty Ltd - [1999] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
EXPEDITED LIST

CITATION: ARCHER & ANOR -v- TIMPAR NOMINEES PTY LTD [1999] WASC 20

CORAM: WHITE J

HEARD: 20-23 APRIL 1999

DELIVERED : 14 MAY 1999

FILE NO/S: CIV 2240 of 1998

BETWEEN: ERIC ARCHER
JAMELA ARCHER
Plaintiffs
AND
TIMPAR NOMINEES PTY LTD (ACN 008 835 265)
Defendant

Catchwords:

Easement - Right of way - Original subdivision of land into two separate lots included a right of carriageway over one lot in favour of the registered proprietors for the time being of both lots and a statement to that effect was endorsed on the first separate certificates of title issued - Subsequent certificates of title reflected a plan of the lot in question with a representation of the right of way, endorsed "R O W" but without further words - Whether the provisions of the Ninth Schedule of the Transfer of Land Act apply to the right of way in favour of the dominant tenement

Easement of right of way - Excavated by proprietors of the servient tenement - Whether obliged to restore it to former condition

Right of way - Whether a right of way authorising the proprietor of the dominant tenement, his servants or visitors to "pass and repass" over the right of way permits the turning of a vehicle upon the right of way or requires vehicles entering the right of way in a forwards direction to reverse out of it and vice versa

Legislation:

Transfer of Land Act 1893 (WA) (as amended) s63A, s64, s65, s167A Ninth Schedule

Transfer of Land Act 1893 (WA) reprint dated 7 July 1975, s63A, s64, S65, s167A Ninth Schedule
Transfer of Land Amendment Act 1902 (WA) s8

Transfer of Land Amendment Act (WA) s36, s37, s148

Result:
Judgment in favour of the plaintiff

Representation:

Counsel:

Plaintiffs: Mr J A Chaney
Defendant: Mr C P Stevenson

Solicitors:

Plaintiffs: Gibson & Gibson
Defendant: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Celsteel v Alton House Holdings Ltd [1985] 2 All ER 562
Krolczyk v Raffan [1992] ANZ Conv R 228
Lock v Aberchester Ltd [1939] Ch 861
Newcomen v Coulsen [1877] 5 Ch D 133
United Land Company v Great Eastern Railway Company [1873] LR 17 Eq 158

Case(s) also cited:

Bracewell v Appleby [1975] 1 Ch 408
Butler v Muddle (1995) NSW Conv R 55-745
Cannon v Villars (1878) 8 Ch D 415
Carlson v Carpenter (1998) NSW Conv R 55-848
Dunell v Phillips (1982) 2 BPR 9517
Elliott v Renner [1923] St R Qd 172
Finlayson v Campbell, unreported; SCt of NSW; 4 September 1997
Gohl v Hender [1930] SASR 158
Jelbert v Davis [1968] 1 WLR 589
Maurice Toltz Pty Ltd v Macy's Emporium Pty Ltd [1970] 1 NSWR 474
Pettey v Parsons [1914] 2 Ch 653
Rodwell v GR Evans & Co Pty Ltd [1978] 1 NSWLR 448
Saggers v Brown (1982) NSW Conv R 55-054
Sketchley v Berger (1893) 69 LT 754
South Eastern Railway Co v Cooper [1924] 1 Ch 211
SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540
St Edmundsbury & Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572
Todrick v Western National Omnibus Co Ltd [1934] Ch 190
White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113

WHITE J: This is an action between neighbours concerning the extent of the plaintiffs' entitlement to the use of a right of way over portion of the defendant's property for the purpose of gaining access from Bennett Street to the rear portion of the plaintiffs' land, including a garage. The defendant has, in connection with the redevelopment of its land, excavated that land, including the right of way, thereby preventing access to the plaintiffs' land along that right of way.
The plaintiffs claim an order that the defendant restore the right of way to its original height, being the ground level of the plaintiffs' land along its boundary abutting the right of way, and damages.
The defendant pleads that the plaintiffs raised the level of their land when they demolished the old buildings thereon and constructed a new building during the period 1990 to 1993. It says that the plaintiffs raised the height of the right of way thereafter, so as to match the raised level of the plaintiffs' land and that the plaintiffs never sought the permission of the defendant to do so. Nonetheless, the defendant was unwilling to have an argument about the matter and it did not complain at any material time. The plaintiffs continued to use the right of way as a means of access to their garage and, at the same time, the defendant also used the right of way to gain access to its own rear garden.

The findings of fact

The facts which I find to have been established by the evidence in this action are:
(1) The plaintiffs are the registered proprietors of a property situated at 64-66 Bronte Street, East Perth more particularly described as Lot 5 on Diagram 4152 and being the whole of the land contained in Certificate of Title Volume 1835 Folio 641.
(2) The defendant is the registered proprietor of an adjoining property situated at 144 Bennett Street, East Perth, more particularly described as Lot 4 on Diagram 4152 and being the whole of the land contained in Certificate of Title Volume 1142 Folio 107.
(3) The plaintiffs' land adjoins the defendant's land and the latter includes an area comprising a right of way which is designated on Diagram 4152 deposited with the Registrar of Titles.
(4) The plaintiffs' land and the defendant's land formed an L‑shaped lot the subject of Certificate of Title Vol 609 Fol 18, in the names of William York Langdon and William Kelly, issued on 7 January 1915 and there is an endorsement on that Certificate of Title, under the heading "Easements and Encumbrances Referred To", reading:
"A right of carriageway in the proprietor or proprietors for the time being of the several subdivisions on diagram 415 (sic) over the portion coloured brown on said diagram."
(5) The portion coloured brown on diagram 4152 is the right of way with which this present action is concerned.
(6) A similarly-worded endorsement appears on the Certificate of Title Volume 609 Folio 137 relating to Lot 4 and issued on 14 January 1915. Subsequent certificates of title relating to these properties contain a representation of the right of way, without the words quoted in para 4 above, but with the initials "R O W" written on the diagram. It is common cause that those initials represent the words "RIGHT OF WAY".
(7) The right of way is 3.06 metres in width. It abuts the plaintiffs' land on the eastern and southern boundaries of the right of way, extending some 9.54 metres from west to east along the northern boundary of Lot 5. To the east of the right of way, there is a common boundary between the plaintiffs' and the defendant's lands, some 10.08 metres in length.
(8) The plaintiffs demolished the buildings on Lot 5 in late 1990 and completed construction of the existing buildings on that lot in 1993.
(9) The plaintiffs raised the internal floor level of the new building on Lot 5 but the general level of the plaintiffs' land at the northern area was not raised to any significant extent and remained at a level roughly that of the right of way and of the defendant's land towards the eastern end of Lot 4. The plaintiffs' development complied substantially with the levels approved by the local authority. The garage constructed by the plaintiffs was constructed at a slightly higher level than the right of way, so that a low ramp was required to permit ready access to it by vehicles.
I am not persuaded that the plaintiffs raised the level of the right of way to any significant extent. It appears that yellow sand may well have encroached on the right of way and even penetrated to the defendant's land, but I am not persuaded that this had the effect of substantially raising the level of the right of way. It may have done so to some slight extent. Although the defendant's evidence was to the effect that the first‑named plaintiff had been observed carrying rubble in a wheelbarrow to place on the right of way, I did not accept that evidence but preferred the evidence of Mr Archer that he had not done so.
(10) After the construction of the new buildings on Lot 5, the plaintiffs used the right of way to gain access to the rear of their land, including the garage and the paved area which was utilised as a loading area. At that stage, vehicles could readily drive from the right of way on to the plaintiffs' land abutting on the southern and the eastern boundaries of the right of way.
(11) The defendant did not at any material time raise any objection to the use that the plaintiffs were making of the right of way.
(12) Between 20 June 1998 and 15 October 1998, the defendant excavated the land within the right of way. The defendant has lowered the rear portion of Lot 4 so as to be level with the western boundary of that Lot, on Bennett Street. In so doing, the defendant has excavated the right of way, preventing access to the plaintiffs' garage. (Some indication of the extent of the excavation can be seen by a comparison between the photographs, exhibits P51 and P80.) The defendant has erected a new commercial building on Lot 4 which includes a gate or door leading from the right of way into the defendant's building and has created an access from the right of way to the lowered level at the rear or eastern end of the defendant's Lot. (An illustration of that gate appears in the photograph, exhibit 81.)
(13) Prior to the recent excavations carried out by the defendant in the right of way, the level of the rear of the defendant's land was approximately the same as the levels of the right of way and of the northern part of the plaintiffs' land. so that vehicular access to the defendant's land and to the plaintiffs' land was at approximately the same level, for all practical purposes. (This fact is illustrated in the photographs, exhibits P51, P52 and P53.)
(14) The present situation in relation to the right of way is that access to the plaintiffs' garage from Bennett Street is barred by reason of the defendant's excavation of the right of way. In addition to preventing access in a direct line to the plaintiffs' garage, a result of the lowering of the right of way is to prevent access to the plaintiffs' land to the south of the right of way. That fact is illustrated by the photograph exhibit P83.
(15) There was, in the past, some fencing along the boundary between the right of way and Lot 5 which would have had the effect of restricting access to the rear of Lot 5. The fencing was removed, wholly or in part, at various times and since at least 1961 the right of way has been regularly used for vehicular traffic by the proprietors of both Lots 4 and 5. Prior to the plaintiffs' development of Lot 5, a user of the right of way who entered travelling forwards would be obliged to reverse out of Lot 5 as there was no room in which to turn a vehicle. Prior to the excavation of the right of way by the defendant, the plaintiffs could turn a vehicle by using part of their land and part of the right of way for that purpose.
(16) The defendant has not given permission for the use of the right of way for the purpose of turning a vehicle and objects to the plaintiffs using any part of the right of way for such purpose (as opposed to driving a vehicle forward in one direction and reversing it in the other direction).

The issues

The parties have agreed that the issues for determination in this action are the following.

The first issue

Does the Ninth Schedule of the Transfer of Land Act 1893 (WA), as amended, ("the Act") apply to the right of way or is the right of way an "easement appurtenant" to the plaintiffs' land, Lot 5, pursuant to s167A of the Act?
Section 167A of the Act provides;
"167A. Right-of-way on subdivision to be easement appurtenant
(1) Subject to subsection (2), every right-of-way shown and marked as such upon any map or plan deposited with the Registrar, under the provisions of Part VIII of this Act, on the subdivision of any land shall, unless the contrary is stated, be deemed an easement appurtenant to the land comprised in such map or plan and abutting upon such right-of-way, and not a public way or thoroughfare.
(2) Subsection (1) does not apply, and is deemed never to have applied, to or in relation to land ¾
(a) vested in the Crown under section 20A of the Town Planning and Development Act 1928 for the purpose of a pedestrian accessway or right-of-way; or
(b) shown and marked as a footway or right-of-way on a map or plan (being a map or plan deposited with the Registrar of Titles) and transferred to the Crown ¾
(i) at the same time as, or after, the registration of certificates of title in accordance with that map or plan; and
(ii) before the commencement of section 20A of the Town Planning and Development Act 1928."
It is common cause that the right of way with which this action is concerned is an easement appurtenant to Lot 5. The dispute between the parties is as to whether the Ninth Schedule of the Act applies to that right of way. In considering this issue, it is convenient to set out the following further provisions of the Act:
"Section 63A. Certificates may contain statement of easements
(1) Any certificate of title may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement or that the land therein described is subject to any right or right-of-way or other easement.
(2) Every such statement or entry shall set forth a true and accurate description of the easement or, if the instrument, plan or diagram creating the easement is deposited with the Department, shall refer to such instrument, plan or diagram, and the certificate of title shall contain a plan of the land over which the easement extends or, if a plan or diagram showing the extent of such easement is deposited with the Department, the certificate of title shall refer to such plan or diagram."
"Section 64. Certificate conclusive evidence as to title to easements
Whenever any certificate of title or any duplicate thereof either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled."
"Section 65. Effect of short forms etc. for easements
(1) Where a transfer, lease or certificate of title contains the words 'together with a right of carriage way over...' or words to that effect and specifies the road or land over which the easement is created by reference to a map on which the road or land is indicated by a symbol then, unless the contrary intention appears, the words of the Ninth Schedule shall be deemed to have effect in relation to the transfer, lease or certificate of title, as the case requires.
(2) Where a plan or an instrument referred to in Part IVA contains the words 'right of carriage way' in relation to a place indicated on the plan or, in the case of an instrument, on the plan in relation to which the instrument was lodged then, unless the contrary intention appears, the words of the Ninth Schedule applicable to a transfer shall be deemed to have effect in relation to that plan or instrument.
(3) . . . [not relevant]"

The Ninth Schedule

"Western Australia
Creation of Right of Carriage-way in a Transfer of Freehold Land
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map."

The plaintiffs contend that, by reason of the provisions of ss63A, 64 and 65 of the Act, the words of the Ninth Schedule define the rights encompassed in the right of way. The defendant submits to the contrary, contending that the Ninth Schedule cannot apply because the current certificates of title relating to Lots 4 and 5 respectively, do not contain the words "together with a right of carriage way over ..." or words to that effect, as required by s65 of the Act. The defendant also contends that Diagram 4152 is not a plan referred to in Part IVA of the Act and is not therefore governed by s65(2) or the Ninth Schedule to the Act. The easement created by s167A, it is submitted, is not the same as the right of carriageway described in the Ninth Schedule.
It is, I think, plain that Diagram 4152 is indeed such a plan as is referred to in Part IVA of the Act. In that Part, a "plan" means, relevantly to the present action, a plan or diagram referred to in s166 of the Act.
That section provides:
"166. Application for new certificates of title on subdivision of land
(1) A proprietor of land under the operation of this Act who, after section 98 of the Transfer of Land Amendment Act 1996 comes into operation, wishes to subdivide the land shall apply, in an approved form and on payment of the prescribed fee, to the Registrar for the creation and registration of new certificates of title for the land and the application shall be made in relation to a plan or diagram of the land complying with subsection (2).
(2) Such plan or diagram shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers and all permanent drains and also all allotments into which the said land may be divided marked with distinct numbers or symbols and shall also show the areas and shall comply in every respect with the Rules and Regulations for the time being for the guidance of surveyors when practising under this Act.
(3) On an application under this section but subject to subsection (5) and to section 20 (2) of the Town Planning and Development Act 1928, the Registrar may create and register a new certificate or certificates of title for the land the subject of the application.
(4) For the purposes of subsection (3), the Registrar may have regard to a request of the applicant in relation to when the new certificate or certificates of title are to be created and registered.
(5) [Not relevant]
(6) [Not relevant]"
The evidence shows that, upon the subdivision of the land from which the two Lots have been created, Diagram 4152 complied with the requirements of sub-section 166(2) of the Act. I am satisfied that that Diagram is a plan such as is referred to in Part IVA of the Act. Pursuant to the subdivision, a new Certificate of Title Volume 609 Folio 137 was created for Lot 4 and that Certificate of Title bore the words:
"A right of carriageway in the proprietor or proprietors for the time being of the several subdivisions on diagram 415 (sic) over the portion coloured brown on said diagram."
In my opinion, the endorsement on subsequent certificates of title in relation respectively to Lots 4 and 5 of the abbreviation "R O W" upon the depiction of the right of way should be understood as the words "Right of Way." Those words, in my opinion, are to be understood as being words to the effect of words reading "together with a right of carriage way over". It is not in dispute that the certificates of title have at all material times contained a reference to a map on which the right of way is indicated and there is nothing to indicate an intention contrary to the application of the Ninth Schedule.
Accordingly, I am satisfied that, by virtue of the operation of s65(1) of the Act, the words of the Ninth Schedule are to be deemed to have effect in relation to the right of way with which this action is concerned. A contrary finding would involve the proposition that, somehow, the benefit of the right of carriageway endorsed upon the original titles of the Lots became lost or reduced in effect over time and there is nothing to support such a proposition.

The second issue

In any event, is the court entitled to have regard to the relevant circumstances existing at the time of the grant of the right of way or subsequently (e.g. layout, location, dimensions, fencing and use of the right of way ("relevant circumstances") to determine the quality, quantity or purpose of user under the easement?
It is the defendant's submission that there is no document detailing the grant of the right of way and that, accordingly, the rights conferred on the plaintiffs should be construed in light of the circumstances existing at the date of the creation of the right of way. In the case of ambiguity in the terms of the easement consideration is to be given to the surrounding circumstances at the time of the creation of the easement: Krolczyk v Raffan [1992] ANZ Conv R 228 (per Crawford J). In my opinion, no such ambiguity exists and the terms of the easement are set out in the Ninth Schedule to the Act. However, in Krolczyk v Raffan, Crawford J said, at 231:
"In some cases it has been said that the surrounding circumstances should be looked at, without mention of the need for ambiguity in the first place. In Saggers v Brown (1981) 2 BPR 97113 at p 9331, Rath J said:
'The grant of the right of way is to be construed according to its language having regard to the surrounding circumstances at the time of the grant. It is necessary to determine whether the use claimed was within the reasonable contemplation of the parties at the time when the grant was made and all relevant circumstances are to be considered: Todrick v Western National Omnibus Company (1934) 1 Ch 190 at 206-7; on appeal (1934) 1 Ch 561 at 576, 577, 592.'
… The determination of this case depends on the actual words used when creating the easement, so that other cases decided in the past have limited value as precedent. However, the trend of authority is to allow entry and exit to and from the dominant tenement at more than one point along a right of way which abuts that tenement. Examples are, Cooke v Ingram (1893) 68 LT 671; South Metropolitan Cemetery Company v Eden (1855) 16 CB 42 at pp 57, 58; Sketchley v Berger (1893) 69 LT754 and Saggers v Brown, supra."
The plaintiff submitted that the use to which a right of way may be put is not limited to those existing at the time of the grant. He cited Lock v Aberchester Ltd [1939] Ch 861; United Land Company v Great Eastern Railway Company [1873] LR 17 Eq 158 and Newcomen v Coulsen [1877] 5 Ch D 133.
Lock v Aberchester Ltd was concerned with the question whether a right of carriageway which had for many years been utilised by horse‑drawn vehicles permitted the use thereon of motor vehicles. Bennett J concluded:
"The law must keep pace with the times. As a matter of law I propose to decide that, where proof is given of the user of a way by carriages drawn by horses for the required period so as to establish the right to an easement for a carriageway, the right so acquired is one which enables the owner of the dominant tenement to use the way with mechanically propelled vehicles."
United Land Company v Great Eastern Railway Company was concerned with the construction of a statute. It was there held that a right of way over, under or across a railway was prima facie general, and not restricted to purposes to which the land was applicable at the time the right arose.
Newcomen v Coulsen was concerned, not with an easement but with an enclosure, not involving the interrelationship of a dominant and a servient tenement.
Accordingly, those authorities afford but little assistance in the present case.
In my opinion, the Court is entitled to have regard to the relevant circumstances existing at the time of the grant to assist, if necessary, in construing the terms of the grant but I consider that full effect must be given to those terms and, to use the words of Bennett J in Lock v Aberchester Ltd: "The law must keep pace with the times."
The terms of the grant in the present case are to be found in the Ninth Schedule to the Transfer of Land Act and the plaintiff is entitled to the full enjoyment of those rights that are described therein.

The third, fourth and fifth issues

These issues are:
(3)Are the plaintiffs entitled to unrestricted access across the whole of the boundary of Lot 5 where it abuts the right of way, or is such access limited to "reasonable access" for the purpose of passing over the common boundary to use the right of way?
(4)If the plaintiffs are not entitled to unrestricted access to the right of way, what constitutes reasonable access having regard to the relevant circumstances?
(5)Is the plaintiffs' right of access for the reasonable use of the right of way limited to the 3 metre boundary at the end of the right of way?
It is convenient to deal with these three issues together. The express terms of the Ninth Schedule to the Act have been set out above. The portions of that schedule relevant to this issue seem to be the following:
". . . with full and free right and liberty to and for . . . the registered . . . proprietors for the time being of the land hereby transferred . . . to go pass and repass at all times hereafter and for all purposes and either with or without . . . vehicles into and out of and from the said land or any part thereof through over and along the road or way . . . delineated and indicated by a symbol on the said map."
In my opinion, the plaintiffs are entitled to unrestricted access across the whole of the boundary of Lot 5 where it abuts the right of way. All such access must, in my view, be exercised reasonably and with due attention to the rights of the defendant, but I reject the submission that the plaintiffs are limited in their access to the right of way to the eastern boundary of the right of way. The plaintiffs are not, in my opinion, to be limited in relation to the points along the boundary of the common boundary between Lot 5 and the right of way at which access may be had to the right of way from Lot 5 and they are entitled to enter and exit the right of way at any point along that boundary that they may choose.

The sixth, seventh, eighth and ninth issues

These issues are:
(6)Was the level of the plaintiffs' land abutting the right of way raised by the plaintiffs or the plaintiffs' employees, agents or workmen during the period 1990 to 1996 thereby impeding access to the plaintiffs' land from all or part of the right of way?
(7)If the plaintiffs have raised the level of Lot 5 where it abuts the right of way, do the plaintiffs bear the responsibility of ensuring they maintain access to the right of way from Lot 5 or is the defendant required to alter, or suffer the alteration, of the right of way to provide unrestricted or reasonable access to Lot 5 from the right of way?
(8)Are the plaintiffs entitled to "build up" the right of way to raise the level of the right of way at the boundary for the purpose of exercising their rights under the easement?
(9)If no to 8, what was the "original level" of the right of way non the boundary of Lot 5?
These issues may conveniently be dealt with together. As I have already indicated, the evidence does not satisfy me that the level of the plaintiffs' land at the northern end of Lot 5 was significantly raised. The photographic evidence suggests that, after the conclusion of the work on Lot 5, the level of that Lot remained approximately the same as the level of the adjoining part of Lot 4 and of the right of way. Accordingly, issues 7, 8 and 9 fall away and do not call for a decision by me.

The tenth issue

Is the defendant entitled to lower the level of the right of way along the portion of the boundary of the right of way that abuts Lot 5 and, if so, to what extent? What is the relevant test?
In my opinion, the defendant is entitled to lower the level of the right of way provided that in so doing it does not impede the plaintiffs' full and free access to Lot 5 from the right of way.

The eleventh, twelfth and thirteenth issues

These issues are:
(11)If the plaintiffs removed the existing fences to the common boundary between the right of way and Lot 5 without consulting the defendant or its predecessors in title, were they entitled to do so?
(12)If the plaintiffs were not entitled to remove all the fences but only such fences so as to allow reasonable access, are they required to reinstate the fence to this extent?
(13)Is the defendant entitled to fence or put gates in the boundary between the right of way and Lot 5. If so, where?
In my opinion, the plaintiffs were entitled to remove an existing fence if its existence impeded the plaintiffs' free access to and from the right of way into Lot 5. The defendant is not entitled to fence or put gates in the boundary between the right of way and Lot 5 if so doing impedes or interferes with the plaintiffs' right to free access to and from the right of way into Lot 5. The defendant, as proprietor of the servient tenement, is under an obligation not to derogate from the rights of the dominant tenement under the easement and those rights are recorded in the Ninth Schedule to the Act.

The fourteenth issue

Are the plaintiffs entitled to, without the permission of the defendant or the defendant's predecessors in title, use the right of way for the purpose of turning their vehicles or is this an unlawful appropriation of the right of way by the plaintiffs?
In my opinion, the plaintiffs are entitled to use the right of way or part thereof to turn vehicles if this is reasonably associated with the plaintiffs' rights as expressed in the Ninth Schedule to the Act. The plaintiffs are entitled to "pass and repass" upon the right of way and turning their vehicles is a reasonable and natural use of the right of way. No authority has been cited to me in support of the proposition that, while the plaintiffs may traverse the right of way from west to east and from east to west, there is some prohibition upon their turning a vehicle upon the right of way and it seems to me that there is no logical reason for the imposition of such a restriction upon the plaintiffs' "full and free right and liberty to . . . go pass and repass at all times . . ." upon the right of way.

The issue of damages

It is clear that the defendant has interfered with the plaintiffs' rights. Interference with a right of way is actionable if the interference is substantial (it is not substantial if it does not interfere with the reasonable use of the right of way): Celsteel v Alton House Holdings Ltd [1985] 2 All ER 562 at 572.
The defendant submits that the plaintiffs have not proved that they have suffered any pecuniary loss, despite having been deprived of access to the rear of their property, over the right of way. The plaintiffs led evidence as to the cost of leasing garage space but the fact is that they have not done so, but have utilised the front area of their property to park their vehicles. This exposes their vehicles to possible theft or damage but does not incur any cost.
In my opinion, the plaintiffs are entitled to nominal damages for interference with their right of access and the prevention of their enjoyment of the right of way to which they are entitled and I award the plaintiffs the sum of $1,000 as nominal damages.

The proposals for the restitution of the right of way

It is not disputed that the defendant must restore to the plaintiffs their rights of access to the rear of their property. In my opinion, the defendant is obliged to restore to the plaintiffs the full and free use of the right of way to enable the plaintiffs to have access to that part of Lot 5 which abuts the right of way, at all points along the boundary between Lot 5 and the right of way. Certain proposals have been put forward as to how access can be achieved, but these proposals suffer from alleged defects.

The Sinclair Knight Merz proposals

The defendant engaged the services of an engineering firm, Sinclair Knight Merz, to prepare a proposal for the restoration of the right of way, including "expert engineering advice on the access and drainage issues" for the defendant's land. Their report is exhibit 80.
Two proposed options, categorised as "solutions" by the author of the report, were presented by Sinclair Knight Merz to the defendant.
Option 1, the report stated,
" … provides access from the access-way to the carport on lot 5 via the ramp only. The proposal leaves the brick-paving on lot 5 in its current state and allows sufficient space for the erection of a fence separating the two properties along the rear boundary of Lot 5. This option has been designed to ensure that vehicles using the ramp to the carport will have adequate clearance.
The maximum grade of the proposed ramp (16 per cent) is practicable, as vehicles will only be travelling up to speeds of 10 kph. The grades on the access-way and the existing carport ramp that surround the proposed ramp are 6.5% and 8.5% respectively. These adjoining grades provide a smooth transition for a vehicle that wishes to enter the carport. The AUSTROADS standards for acceptable road grades is not applicable in this situation as this is a domestic area . . . The safety of the ramp is ensured through the provision of a bollard at the lowest corner. . . Sinclair Knight Merz believes that this is the best workable option considering the constraints of the site."
Option 1 would preclude access to Lot 5 across the southern boundary of the right of way.
Option 2, the report stated:
" … provides vehicular access to Lot 5 at the carport ramp as well as an adjacent 3m long section of Lot 5's rear boundary. Reshaping a 21-m² area of brick paving and concrete slab within Lot 5 is required to facilitate this extended access area. An additional 7-m² of concrete ramp is required to blend the access‑way to the amended levels of Lot 5 . . . Vehicle access is provided to the entire carport at the rear of Lot 5 by lowering the existing levels of Lot 5 and raising the levels of Lot 4 immediately adjacent to the ramp to blend with the proposed access way. A small retaining wall and fence should be constructed in the vicinity of the rear boundary of Lot 5 . . . to maintain the existing levels of a portion of Lot 5's brick paved area.
The grade of the ramp leading to Lot 5's carport is approximately 16 per cent. This entrance ramp into the Lot 5 carport for Option 2 does not have the gradual transition leading to the carport as detailed in Option 1 and consequently does not provide the same level of comfort. Although this grade is not ideal, it is functional. The steep slope is required to tie‑in with the access way that has a drainage level constraint controlled by the new shop's floor level of RL 10.20. This option has also been designed to ensure that vehicles using the ramp to the carport will have adequate clearance. A bollard has also been installed on the corner of the carport ramp for safety. . .
This option represents a compromise between the function of the service access to the Lot 4 shop storage area and the best access scenario to the Lot 5 carport … "
Option 2 appears to involve the construction of a brick fence along a section of the southern boundary of the right of way and grading of part of the plaintiffs' land in accordance with the diagram SK02, forming part of exhibit 80.
I have extracted only short passages from exhibit 80 in order to describe the proposals put forward by Sinclair Knight Merz.
Those proposals were criticised by the civil engineer, Mr Barry Tonkin in his report, exhibit 65. In part, his comments were:
"ACCESS CONSIDERATIONS
Mr Eric Archer of Lot 5, 64/66 Bronte Street, East Perth and his neighbor of a lot.4, 144 Bennett Street, East Perth share a Right of Way access way that permitted Mr Archer to:
•Have two (2) vehicles being parked at the rear of Lot.5 under the cover of his double width carport and,
-Safely access either of those covered parking spaces while the other space was being occupied.
-Safely access either of those covered parking spaces by either driving a vehicle in forwards or reversing it into either bay even while the other car space was being occupied.
-Safely access either of those covered parking spaces by reversing a vehicle into the lane with a trailer or caravan attached at the rear towing hitch of his vehicle, and manoeuver such that the trailer could be unhitched and left in the covered area in storage.
•The Right of Way access way had previously enabled Mr Archer to safely unload a flat tray vehicle from the paved area adjacent to the rear of his lot 5 property which was positioned there by either;
•driving forward into the space or,
•Reversing the vehicle down the lane way into the paved area.
COMMENT ON ACCESS PROPOSAL
The business access requirements for each of lots 4 & 5 could have been readily determined by the site feature survey and plot of existing / original contours and the design Finished Floor level and Finished ground levels that were required for the building. The design consultant in considering the Finished Floor level needed to consider the pedestrian customer entering the premises at Bennett Street pavement level and also the supplier delivery vehicle to service the future needs of the proprietor. That aspect could have been better served by consideration of the existing right of way access levels of the neighbour's boundary levels at their points of entry and the new building's requirements relative to the existing level of the right of way at the point where service vehicles would be unloading.
By viewing the original plans it can be seen that it was clear from the beginning that the Lot 4's finished floor level of the goods delivery door would be too low relative to the then current right of way levels. The floor of the building remains level while the right of way is sloped upwards from the road in Bennett Street.
It was apparent that if the Lot 4 building continued to progress without amending (by raising) the finished floor level only limited access at the goods delivery door entry and goods area behind it, and when the ROW is unrestrictedly altered to accommodate it, there would be other deleterious effects, particularly for Mr Archer's property and access, but also for Lot 4 as follows:
•the area would be a natural drainage basin relative to the lane way surface levels, or
•The levels of the right of way would need to be amended adjacent to the goods delivery doorway such that the water drained towards the roadway without being gravitated into the doorway.
That later option would exaggerate the current slope of the lane at any point beyond the door and as such was not going to be a satisfactory resolution of the design short fall. That "solution" for resolving the design would have a detrimental effect for the properties using the right of way if their access point relative level was not able to be similarly amended also. It seems that the only other property which uses the shared right of way is Lot 5 owned by Mr Archer, and so only Mr Archer could foreseeably be affected. None-the-less, correction proposals would not have been required, if the design levels of the access had been fully considered.
COMMENT ON PROPOSED ACCESS SOLUTION
The business requirements for access to each of lots 4 & 5 can be solved in favour of either party or can be developed as a compromise arrangement.
As the later Lot 4 building was designed and constructed with all existing access points fixed and known and could be affected by alteration from the works, as a matter of general engineering practice it would be incumbent on the designer and owner of Lot 4 to consider their own finished levels. Ground level changes of the lane could adversely affect access and so in the absence of agreement, it should be incumbent on those who propose to make a change to resolve those changes to levels within their site. The building contractor can easily resolve the matter immediately for Mr Archer by reinstating the right of way levels to exactly what they were at the time of the building approval and by finding a design solution within the new building.
The new building's finished floor level in the delivery area is too low relative to the right of way and the proposal to lower the ground level in the right of way compromises the lot 5 access adversely.
Lot 4 engineers have proposed a steep ramp arrangement to the carport of the lot 5 site. That result would be entirely unsatisfactory and potentially unsafe for the users of both the lot 5 access points and the rear of lot 4. It would prevent current access to the paving and unloading area of the Lot 5 site adjacent to the ROW and restaurant / shop back door and provide no relatively level area to unload vehicles servicing the shop and restaurant. The solution of a level access that is desired by lot 4 prevents lot 5 enjoying a pre existing partly level access and even a compromise arrangement would mean that the access standing area's slope would be increased.
The proposed solutions by Sinclair Knight Merz in their Report dated 25th February, 1999 are not acceptable as any solution that comprises of any ramping at greater than that which was previously provided, i.e. 8 percent (there is one proposal to increase to 16 percent) from the ROW into the carport would provide the following potential problems:
a.A reversing vehicle could not properly and safely see to the rear at all times to enter the carport.
b.A reversing vehicle could not properly and safely see vehicles entering from the lot 4 property, nor be able to properly see a vehicle or people within the carport while on the steep ramp approach.
c.Any vehicle with a tow bar that drives or reverses a trailer into the carport could experience great difficulty during the engagement of the ramped area.
d.Longer low body vehicles (such as commercial vehicles with a low chassis) may contact the middle of the vehicle onto the ground over the ramp and endanger the vehicle or people.
e.It is totally improper to design multiple grade short displacement access ramps for vehicles in tight manoeuvring areas.
f.The proposed ramping access does not permit commercial delivery vehicles to stand near and partly on the existing paved rear area of the shop / restaurant of lot 5 so as to unload as can currently be done.
Sinclair Knight Merz's Option 1 - plan No. DE-01287 - Sk.01 will create the problems listed a to f above.
Sinclair Knight Merz's Option 2 - plan No. DE-01287 - Sk.02 will create the problems listed a to f above plus:
g.The proposal significantly modifies (by increasing) the Lot 5 carport access ramping slopes and
h.The proposal significantly modifies (by increasing) the slope of Lot 5's brick paving area adjacent.
i.Provides insufficient accessibility for two vehicles in the carport area.
Sinclair Knight Merz's Option 3 - plan No. DE-01 287 - Sk.03 and Sk.04. will create the problems listed a to f above plus:
j.Provides a 15 degree cross fall for vehicles exiting the carport area which is unsafe in the tight and slightly angled lane-way, and more over,
k.Provides the 15 degree cross fall for vehicles which will be turning into or out of the brick paved and carport areas as negative camber, which is potentially dangerous to commercial vehicles which carry higher loads.
The resolution to the issue is possible by a compromise arrangement and Mr Archer has indicated a solution that is a compromise he could live with. While Mr Archer's proposal does increase his own pavement slopes marginally, it gives a workable outcome. Mr Archer has acknowledged that there is a difference in level between lot 4 and lot 5 of around 460mm and his compromise suggested that
•his brick paving area could accommodate approximately 100mm by increasing the slope,
•the curbing at the edge of the brick paving adjacent to the ROW drain could accommodate 30mm
•the cross fall of the ROW could accommodate 100mm
•the defendant's property could accommodate the remainder of 230mm within the Lot 4 building by a ramped access.
The compromise deals with levels, costs and drainage and the proposal seems to have been properly considered. It appears to be a solution that would work for both parties. The potential problems from the Sinclair Knight Merz options would be superceded (sic). In my opinion and from practical experience, Mr Archer's compromise proposal should be supported."

I preferred the evidence of Mr Tonkin in this regard.

Conclusion

It is necessary that a reasonable and practical solution be found which will, if possible, enable full access to the plaintiffs' land on the one hand and cause as little disruption as possible to the defendant's land on the other hand. In saying that, I am of course conscious of the fact that the defendant has, in effect, deliberately presented the plaintiff with a fait accompli and may have to suffer the consequences of so doing.
In my opinion, the resolution proposed by Mr Archer to which Mr Tonkin refers in the passage from his report cited above, should be implemented. I mention that this is the sort of situation in which a measure of co-operation between the parties would be beneficial to both.
In the circumstances, I shall invite counsel to make submissions on the appropriate form of the orders to be made pursuant to these reasons.