Berryman v Sonnenschein

[2008] NSWSC 213

CITATION:	Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor [2008] NSWSC 213
HEARING DATE(S):	07/03/08
JUDGMENT DATE :	14 March 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Einstein J
DECISION:	Matters of principle dealt with in reasons. Proceedings to be stood over for further address following the parties being given an opportunity to consider the reasons
CATCHWORDS:	Real Property-Torrens Title - Easements - Right of carriageway - Dominant tenement owners seeking to co-join with the right of carriageway, a part of the land owned by them for the purpose of creating a turning or manoeuvring area, the right-of-way being insufficient in itself to permit the entirety of the manoeuvring area to be constructed - Proceedings for an order that the servient tenement owners sign a consent to the making of a development application to the Council for the making of alterations to the driveway constructed on the right-of-way - Proper construction of the easement - Practice and procedure - Overriding purpose rule
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Conveyancing (Amendment) Act 1930 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning Regulations Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Water Management Act 2000 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	177 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Butler v Muddle (1995) 6 BPR 13,984 Carlson v Carpenter (1998) NSW ConvR 55-848 Cameron North Sydney Investments Pty Ltd v Owners Strata Plan No 50411 [2002] NSWSC 726 Dunell v Phillips (1982) 2 BPR 9517 Jelbert v Davis [1968] 1 WLR 589 Jones v Pritchard [1908] 1 CH 630 Kirkjian v Towers (unreported, Supreme Court of New South Wales, Waddell J, 6 July 1987) Krolczyk v Rafffan [1992] ANZ ConvR 228 Lehane v Jones (1982) NSW ConvR 55-079 Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26; [1999] NSWLEC 212 Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 Pettey v Parsons [1914] 2 Ch 653 Saggers v Brown (1982) NSW ConvR 55-054 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Spear v Rowlett [1924] NZLR 801 Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 Todrick v Western National Omnibus [1934] Ch 190; [1934] 1 Ch 561 Trewin v Felton [2007] NSWSC 851 Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 Williams v James (1867) LR 2 CP 577 Zenere v Leate (1980) 1 BPR 9300
PARTIES:	Richard Frank Horton Berryman (First Plaintiff) Kay Beverley Berryman (Second Plaintiff) Robert Sonnenschein (First Defendant) Susan Rowena Sonnenschein (Second Defendant)
FILE NUMBER(S):	SC 1692/07
COUNSEL:	Mr P Tomasetti SC (Plaintiffs) Mr R Bellamy (Defendants)
SOLICITORS:	Stephen Wawn & Associates (Plaintiffs) Morgan Lewis (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Friday 14 March 2008

1692/07 Richard Frank Horton Berryman v Robert Sonnenschein

JUDGMENT

The proceedings

1 These proceedings concern a right of carriageway affecting two properties in Cranbrook Road, Bellevue Hill:

i. the plaintiffs, Mr and Mrs Berryman are the registered proprietors of the property comprised in lot 4 in deposited plan 28700 known as 7 Cranbrook Rd Bellevue Hill [for convenience referred to as number 7];

ii. the defendants, Mr and Mrs Sonnenschein, are the registered proprietors of the property comprised in lot 3 in deposited plan 28700 known as 7A Cranbrook Road, Bellevue Hill [for convenience referred to as number 7A].

2 The Berryman property has access from Cranbrook Road for vehicles and pedestrians by a bitumen driveway constructed partly on the Berryman property and partly on the Sonnenschein property. The driveway is steep, with a substantial drop down towards the neighbouring property on the northern side (number 5 Cranbrook Road). The driveway crosses from the defendants’ property to the plaintiffs’ at the north-western corner of the defendants’ land. At this point, the driveway turns south and continues to climb up to a turning circle in front of the plaintiffs’ house. The defendants make use of an earlier turn off into a private driveway serving number 7A, and have no right of access to that part of the driveway which extends onto the plaintiffs’ land.

3 Benefiting the title of the Berryman property is a right of carriageway and easement for drainage and gas services created pursuant to dealing number G 974508 which burdens the Sonnenschein property. The right of carriageway was created on 6 June 1958 by the execution and registration of a memorandum of transfer between Property Management Pty. Limited and Mr Clive Cameron Bosler.

4 The plaintiffs are seeking to undertake improvements to the portion of the driveway which lies within the right of way. This work includes the removal of an encroaching brick retaining wall, the installation of timber bollards, the removal of a tree stump, the regrading of the driveway and the bituminising of additional areas of the right of way in order to facilitate the construction of a turning circle.

5 The orientation of the plaintiffs’ and defendants’ properties, the location of the driveway and the area where the proposed improvements are to take place are set out in the diagram reproduced below: admitted as part of exhibit ASL1 and prepared by the architect Bill MacMahon [referred to elsewhere in the judgment as ‘the MacMahon Plan’].

6 Having unsuccessfully endeavoured to obtain the consent of the Sonnenscheins to the lodging of a development application with the Woollahra Municipal Council for the carrying out of the subject work, Mr and Mrs Berryman seek an order in the following terms:

An order that the defendants sign a statement to the effect that they consent to the making of the Development Application dated 21 November 2006 to the Woollahra Council seeking development consent in accordance with the Woollahra Local Environmental Plan 1995 to the making of alterations to the driveway constructed inter alia on the right of way forming part of Lot 3 in Deposited Plan 28700 as required by the Environmental Planning and Assessment Regulation 2000 (NSW).

Further developments on the plaintiffs’ property

7 In addition to the developments discussed above, the plaintiffs also intend to submit a development application for work to be done within their own property. This work, while not the subject of this application, forms an important part of the context in which this dispute arose. The plaintiffs intend to erect a gate on their own property to provide them with additional privacy and security. They also intend to construct a turning circle which will lie predominantly on their own land, but will be accessed from, and protrude into, the right of way. This turning circle will allow vehicles which approach the plaintiffs’ property along the driveway, but are unable to enter the property because the gate is closed, to turn around and exit the property in a forward direction.

8 The plaintiffs’ claim that a turning circle is necessary regardless of whether a gate is installed on their property, as it would allow vehicles to turn around on occasions when the turning circle in front of the Berryman residence is full, or where another car is attempting to emerge and blocking the way. In contrast, the defendants allege that this is an unlikely and easily avoided scenario, and that “(t)he only event that seems to constitute a catalyst for the turning area is the decision to install the gate”.

The cutting down of the native olive tree

9 One issue which arose in cross-examination was the allegation, put to Mr Berryman, that the plaintiffs had cut down a native olive tree, said to be approximately 20 metres in height, which stood within the area in which the proposed works were to take place within the right of way [the tree stump shown on the McMahon Plan as requisite to be removed constitutes the remains of this tree]. Mr Berryman’s evidence was that the tree was dead: however he also gave evidence that he had no real recollection of the existence of the tree, nor of its height or dimensions. His evidence was that he had not consulted the Sonnenscheins before causing the tree to be removed.

10 Ultimately, this matter bears no significance in the principled approach to the determination of these proceedings. However, the court presumes that the cross-examination proceeded on instructions and the defendants presumably took issue with their not having been consulted and with the entire incident.

The encroachment

11 It is common ground that in late February 2008 it came to the attention of Mr and Mrs Berryman that a small area of the existing formed driveway [hereinafter called the encroachment] located outside the boundary of the right of carriageway had been inadvertently shown in support of the development application as part of the proposed work. The area over which the driveway encroaches onto the defendants’ land is less than 0.4m2.

12 The plaintiffs’ solicitor promptly notified the defendant's solicitor of the error in the plan, advising that the error was being corrected and providing an amended plan showing that the proposed work to be carried out was within the right of carriageway.

The bifurcated nature of the issues

13 In the manner in which the proceedings were litigated it is fair to observe that the defendants’ stance addressed two levels which, although from time to time overlapping, are able to be treated with as such:

i. the first concerned questions of principle turning on the identification of what rights the easement conferred upon Mr and Mrs Berryman and whether what they proposed to do was within the ambit of those rights;

ii. the second concerned an attack upon the development application as either uncertain, internally inconsistent or misleading [these contentions inter alia drew attention to a number of matters of detail particularly concerning the proposition that Mr and Mrs Sonnenschein were not obliged to sign a development application contemplating the encroachment].

14 The convenient course is:

i. to commence by identifying matters which are common ground;

ii. to then deal with the questions of principle which arise and to seek to apply the principles;

iii. unless the treatment in ii renders it unnecessary to go further, to finally deal with the matters of detail raised by Mr and Mrs Sonnenschein.

Matters which are common ground

15 The matters representing common ground may be shortly identified. They are as follows:

i. the memorandum of transfer G974508 provides relevantly:

“TOGETHER WITH a right of carriageway over the site of the right of way within Lot 3 in the said Deposited Plan as shown thereon…

ii. the Conveyancing Act 1919 s 181A provides:

181A Construction of expressions used to create easements

(1) In an instrument executed or made after 1 January 1931 (the commencement of the Conveyancing (Amendment) Act 1930) and purporting to create a right of way the expressions right of carriage way and right of footway have the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 1 or Part 2 of Schedule 8.

iii. Schedule 8 – Construction of certain expressions


Part 1 Right of carriage way

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.


iv. the parties’ properties are within the local government area of Woollahra Municipal Council.

v. the work proposed by the plaintiffs is “ development ” within the meaning of that word in the Environmental Planning and Assessment Act 1979. As such it may not be carried out except with the consent of the council obtained beforehand. [Admitted ASC par 6]

vi. the Environmental Planning and Assessment Act 1979 (‘EPA Act’) provides:


78A Application

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

vii. the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation 2000’) relevantly provides:

49 Who can make a development application?

(cf clause 46 of EP&A Regulation 1994)

(1) A development application may be made:


(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.

viii. the Act defines the word “ owner ”. It has the same meaning as in the Local Government Act 1993 (‘LGA 1993’).

ix. the LGA 1993 in the Dictionary thereto defines “ owner ” as:

“owner”:

(b) in relation to land other than Crown land, includes:

(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession…


x. the work to be done is intended to be carried on and within the right of carriageway boundaries on #7A and on #7. Insofar as it is proposed to be carried on within #7 that work is subject to a separate development application.

xi. the Supreme Court Act 1970 provides:

65 Order to fulfil duty

(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.

(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.

(3) The powers of the Court under this section are in addition to any other powers of the Court.

16 There is no issue but that, in appropriate circumstances, the owner of land which is burdened by a right of way can be compelled to consent to a development application by the owner of the dominant tenement, as one aspect of the implied incidental right to do something which as a matter of property law the owner of the dominant tenement is entitled to do on or concerning the site of the right of way: Kirkjian v Towers (Supreme Court of New South Wales, Waddell J, 6 July 1987, unreported); (considered in Cameron North Sydney Investments Pty Ltd v Owners Strata Plan No 50411 [2002] NSWSC 726); 177 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 521; Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26; [1999] NSWLEC 212; at 34, [27] – [32].

Turning to the questions of principle

17 Both parties have taken the Court to the many statements of principle which operate in this area and to past as well as more recent authorities. In very recent times the decision of the High Court of Australia in Westfield ManagementLtd v Perpetual Trustee Co Ltd [2007] HCA 45 was handed down late last year. That decision was applied by the New South Wales Court of Appeal in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. Another very recent decision, Trewinv Felton [2007] NSWSC 851, was handed down by Brereton J in August of last year. During 2008 the decision in Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 was handed down by White J. The parties also referred inter alia to Jones v Pritchard [1908] 1 CH 630 and to the well-known judgment of McClelland J [later Chief Judge in Equity] in Zenere v Leate (1980) 1 BPR 9300 at 9305. The parties drew attention to the decision of the Young J [presently the Chief Judge in Equity] in Butler v Muddle (1995) 6 BPR 13,984. A number of authorities are referred to in the reasons.

18 For obvious reasons it is unnecessary in the circumstances to traverse all of these authorities. A careful reading of many of these authorities throw up the principles. Plainly enough the particular circumstances are always of special significance. To my mind the extremely careful and detailed decision of Brereton J [although handed down before the High Court decision in Westfield], serves to provide useful observations in relation to many of the authorities. Naturally the decision in Westfield must be followed. The approach taken in these reasons is to deal only with matters where the parties seemed to be at issue on the material principles.

The terms of the grant

19 Dealing at commencement with the terms of the grant the following may be seen:

i. The expression right of carriageway contains the following phrases:
a) “Full and free right”

As the plaintiff contends these are words of widest import.

b) “... to go, pass and repass at all times…”

The words “ at all times ” are not words of limitation.
The words “ to go, pass and repass ” admit of some limitation of right. As the plaintiffs contend one cannot stand a vehicle generally nor park it on the way. But one can come and go and can do so in forward or reverse direction and as often as one likes. If one wants to enter onto the way in reverse and use it to turn around so as to go, pass or repass then one is entitled. If one meets a vehicle on it, then one is entitled to stop and reverse if one cannot pass or alternatively use it or part of it for backing into a space where passing can then occur.

c) “… for all purposes…”
I accept as correct the proposition that the purposes, extensive as they may be, must confer what the law regards a benefit on the dominant tenement, by making it a better and more convenient property; this is more than a personal advantage to the owner for the time being. Westfield [21].
The phrase “ all purposes ” contemplates that planning prohibitions can alter with time. The right conferred is not limited to the purpose of use at the time of the grant. Timpar [37][38][39][49][51]. As the plaintiff has observed, where the grant is for all purposes, the way must not be used so as to unreasonably interfere with the lawful use of the land by others. Jelbert v Davis [1968] 1 WLR 589 per Lord Denning at 595. See Timpar [39].
I accept as correct the proposition that that what is an unreasonable interference must always depend upon the express terms of the grant
The broader the right of access to the dominant tenement granted by the easement, the greater the burden upon the proprietary rights in the servient tenement. Westfields [29].
The term “ for all purposes ” encompasses all ends sought to be achieved by those utilising the easement in accordance with its terms. Westfields [30].
d) “both to and from the said dominant tenement or any such part thereof.”

The ambit is arguably as wide as one could draft it. It is permissible to use the way to access not only the dominant tenement but also any such part of it.

Express and ancillary rights

20 Mr Bellamy, counsel for the defendants, emphasised the distinction between the express and the ancillary rights enjoyed by the holder of a dominant tenement: [the latter sometimes called 'rights of necessary implication'].

21 The contention put by Mr Bellamy was that there was no authority to support the proposition that a right to manoeuvre on a right of way was an express right. His proposition was that rights to park, stop and turn have all and always been treated as ancillary rights in respect of easements to pass and repass. He drew attention to the facts that:

i. the right to manoeuvre is not expressly referred to in the easement;

ii. the easement is for the right to ‘pass’ and ‘repass’.

22 Mr Bellamy cited Butler where Young J observed that "the question always is, where there is no express reference to parking, whether such is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted".

23 Mr Bellamy accepted that the grant of an easement carries with it those ancillary rights which are necessary for the enjoyment of the rights expressly granted.

The plaintiffs’ submissions

24 Many of the propositions put by Mr Tomasetti were unexceptional as statements of general principle. Ultimately a central question thrown up by the instant proceedings was: whether or not a right to co-join part of the Berryman property with the right of way constitutes a user of the right of carriageway to go, pass and repass, or to the contrary, constitutes an entirely different form of user to that expressly or by necessary implication seen to have been the subject of the grant. These matters are considered below.

25 The propositions which, when stated in vacuo of the precise circumstances, can be accepted include the following:

i. the maxim that, in the absence of an otherwise intention, a grant of easement must be construed against the grantor must be applied. Timpar Nominees [35] citing, inter alia, Williams v James (1867) LR 2 CP 577 at 581.

ii. where a grantor had sold land, reserving a perpetual right of way for all purposes, it was regarded as a grant for all purposes ‘within the reasonable contemplation of the parties at the time of the grant’: Todrick v Western National Omnibus [1934] Ch 190; [1934] 1 Ch 561 at 576-577 cited in Timpar at 36.

iii. in the present proceedings, the express grant confirms what was in Timpar said to be implied; that is that the grant of right of carriageway is expressed to be to “ any part ” of the plaintiff’s land and “ for all purposes ”.

iv. the right of carriageway way is not limited by words to only one access point. The grant expressly permits access to “ any part ” of #7.

v. this is generally the case with rights of way. Butler v Muddle cited in Timpar at [48][49]. In Carlson v Carpenter (1998) NSW ConvR 55-848 Cohen J held that the grantee may only have reasonable access and not unlimited access to any part of the land having its benefit unless in the circumstances of its grant that was taken to have been intended. Timpar [52].

vi. in the light of Westfield it seems that the words “ any part ” would entitle the grantee to do just that, namely have access to any part of #7 over the entire boundary between the way and #7.

vii. the trend of authority has been said to allow entry and exit to and from the dominant tenement at more than one point along a right of way. Krolczyk v Rafffan [1992] ANZ ConvR 228 at 231. Timpar [53].

viii. Pickford LJ in Pettey v Parsons [1914] 2 Ch 653 @ 663 put the question another way; he asked if the access is denied as asked, will it be in derogation of the grant?. I accept that this can be a helpful way of considering the issue.

ix. there are established limitations on the grant of an easement like the one in this case. For example, in the absence of words to the contrary, there is no obligation on the grantor either to make the easement suitable for use by the grantee nor to repair it. Timpar [41].

x. nor is the grantee entitled to stop on the right of way and park. Lehane v Jones [55-079].

xi. the duty imposed upon the grantor is not to do acts (legal or physical), which will hinder or obstruct the enjoyment. Spear v Rowlett [1924] NZLR 801.

Suggested inconsistency between Westfield and Sertari

26 Mr Bellamy took issue with the proposition that the Sonnenscheins were obliged to sign the development consent in the event that the proposed works are shown to be convenient for the use of the right of way. In Sertari Handley AJA had [at 9] observed that the owner of a dominant tenement was entitled to construct improvements on the servient tenement when this is necessary or convenient for the exercise of the rights conferred by the easement. However the judgment of the High Court in Westfield had referred [at 23] to "the line of cases holding that, on general principles of conveyancing, the grant of an easement carries with it those ancillary rights which are necessary for the enjoyment of the rights expressly granted” [emphasis added].

27 This difference in the wording led to Mr Bellamy's submitting that the Court of Appeal decision was incorrect in adopting the so-called 'convenience' test. In fact, it is not entirely clear whether the Court of Appeal intended to suggest the adoption of a separate test. After referring to those rights which are ‘necessary or convenient’, Handley AJA goes on to cite, with apparent approval, a line of authorities which have held that “the owner of the servient tenement could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement” [emphasis added]. At any rate, this Court is bound by the High Court’s decision, and must apply the test as set out in Westfield [above].

The evidentiary question

28 Sertari followed Westfield in terms of the proposition that extrinsic material, apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900 (NSW). Hence the Court is limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements.

29 The defendants argued that the High Court’s decision should be read as relevant only to the construction of the express rights which attach to the easement, and that extrinsic materials might still be admissible in cases, such as the present, where the court is concerned with ancillary rights [transcript 79 at 8]. The defendants noted that in Neighbourhood Association v Moffat [2008] NSWSC 54, White J expressed some doubt over whether the strong proposition put forward in Westfield should be applied to the construction of bare grants of right of way as, in these cases, there is a greater need to consider the objective matrix of facts bearing on the construction of the instrument [Moffat at 35 and 40]. Ultimately, White J determined that he was obliged to follow the Court’s unequivocal decision in Westfield, which was not confined to the construction of instruments which set out in detail the terms of rights granted. His conclusion [at 41] that “the statement of principle is binding on me, and accordingly… the only matters to which it is legitimate to have regard in construing the instrument are the folio identifiers, the registered instrument, the deposited plans and the physical characteristics of the tenements” applies equally well to the present case.

30 For that reason the evidence [outside of the above-described materials] sought to be adduced from Mr Stux who was the grantor and grantee (as principal of the subdividing company) was inadmissible. He had inter alia sought to give the following evidence

i. When the land purchased it was one lot and I caused it to be purchased with the intention of subdividing to create five lots, two on Cranbrook Lane and three on Cranbrook Road. The lots are shown in deposited plan 28700 .

ii. Lot 3 was always intended to have a Cranbrook Road address, and included a parcel of land for a driveway from Cranbrook Road. Although lot 4 was intended to have a Cranbrook Lane address, it was envisaged that lot 4 would also be able to make use of the driveway to Cranbrook Road servicing lot 3. For that reason, a right of carriageway was created in favour of lot 4, as shown on deposited plan 28700.

iii. The driveway on the right of way that services both lots 3 and 4 was constructed in 1959. At the time I caused the driveway to be built and the right of way to be created, I gave consideration to turning facilities for vehicles accessing lot 4, but I considered it to be unnecessary as part of the right of way as there was ample space to turn even very large vehicles on lot 4 in front of the house, and I never contemplated or intended that space for turning a vehicle, or a reversing bay, would be part of the right of way.

Particular authorities relied upon by the defendants

31 Mr Bellamy took the court to a number of authorities said to support the defendant's case. He relied upon the approaches taken in two particular authorities [Lehane and Natva] and sought to draw parallels between number of the particular facts and circumstances said to be shared between those authorities and the instant circumstances.

32 I accept that there are a number of similarities between the present litigation and that determined by Kearney J in Lehane v Jones (1982) NSW ConvR 55-079. That was a case where the parties were the owners respectively of adjoining house properties fronting a road in Caringbah. A right of way traversed the plaintiffs’ land and was appurtenant to the defendant's land. The right of way ran in part alongside the common boundary between the two properties beside which the plaintiffs had erected a fence. The dimensions of the plaintiffs’ land were approximately 21 m along the frontage and approximately 43 m in depth. The defendant's land was a much larger parcel of irregular dimensions appearing to contain an area approximately double that of the plaintiffs’ land. The route of the right of way was from approximately the centre of the road frontage of the plaintiffs’ land diagonally across the front portion of their property to the common boundary with the defendant's land, and thereafter along the common boundary to the rear boundary of the property, which formed the common boundary between the plaintiffs’ land and lot 4.

33 The terms of the right of carriageway were virtually identical to those of the right of carriageway in the present proceedings, both deriving from the Conveyancing Act.

34 After examining three decisions in particular [Zenere, Saggers v Brown (1982) NSW ConvR 55-054 and Dunell v Phillips (1982) 2 BPR 9517], Kearney J held that in the circumstances, including the terms in which the grant had been expressed, the rights attaching to the right of way did not carry by implication, a right for vehicles to stop or park on the right of way. His Honour did not regard the implication of any such entitlement as falling within the terms mentioned in the decisions to which he made reference as being reasonably necessary to the effective reasonable exercise and enjoyment of the right of passage expressly granted. His Honour contrasted the authorities in which a right to stop or park had been held to be included where what was involved were special circumstances: as with rights of way providing access to business premises or factories and the like where it would be necessary to use the right of way for the vehicle to stop in order to load or unload. As his Honour observed, by contrast, the right of way provided access to and from a private dwelling house surrounded by its own spacious grounds. That last observation is of course particularly pertinent to the circumstances of the current proceedings.

35 His Honour further did not consider that the grant of the right of way carried with it by implication, an entitlement for vehicles to reverse and turn on the right of way itself. As his Honour put it:

"It seems to me that the evident intent of the grant in the circumstances which I have described was to provide a means of access from the defendant's property to the street, and this being provided over the neighbours land of this size I have mentioned. I do not consider it to have been the implicit in the right of way that turning and reversing was to be permissible upon the right of way. Large areas of land surrounding the original home further confirmation, in my view, of the exclusion of such implication.

Therefore, I do not consider the right of reversing and backing and filling upon the right of way to be an ancillary right reasonably necessary to the effective reasonable exercise and enjoyment of the right of passage over and along the subject right of way."

36 His Honour specifically dealt with the defendants claimed right to enter and leave the right of way at any point of the right of way contiguous with their land. In this regard his Honour observed as follows:

"The right claimed by the defendants to enter and leave the right of way at any point of the right of way contiguous with their land is not, in my view, a right in absolute terms to enter and leave the right of way at any part of the common boundary. Their right is to be considered in light of the relevant circumstances one of which, as pointed out in the foregoing judgements, is the interest of the servient owner as the proprietor of a residential allotment; and thus entitled to enclose his property by a fence, subject of course to the rights and obligations created by the right of way affecting his land."

37 As Mr Bellamy submitted, similarities between Lehane [as well as Timpar Nominees Pty Ltd v Archer, a decision of the Western Australian Full Court, [2001] WASCA 430] include the following:

i. The wording of the right of way is identical.

ii. The same issue is in question namely backing and filling (for three point turns).

iii. The right of way is not wide enough to accommodate the manoeuvres proposed by the dominant owner.

iv. The dominant tenement is a much larger parcel of land.

v. The point of access is long established and it is workable.

vi. The evident purpose of the right of way was to allow secondary access to and from the Cranbrook Road, given the Cranbrook Lane access.

vii. The access is to and from a private dwelling surrounded by spacious grounds with two double garages and a turning circle.

ix. There is no commercial imperative.

38 Mr Bellamy also relied upon NatvaDevelopments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777. There, Palmer J dealt with proceedings in which the plaintiff had sought access from a right of way at the point chosen to maximise the plaintiffs profit on a development. His Honour's conclusion was that the proposed access sought did not represent a reasonable use of the right of carriageway. As Mr Bellamy has contended, the similarities in terms of fact as between Natva at [69] - [80] and the present proceedings include the following:

i. The plaintiffs bought the land with the original access and point and have used it for 31 years.

ii. The existing access provides reasonable access.

iii. The decision to install the gate is for private reasons; it is not mandated or otherwise forced upon the plaintiffs.

[ Hence the defendants have proceeded to contend as follows :

· The plaintiffs have proceeded with the chosen position for the gate notwithstanding that they knew that the only place for the manoeuvring area (if it be required) is the right of way.

· The plaintiffs should not be able to change the point of access or appropriate the balance of the right of way to manoeuvring area when reasonable access and reasonable manoeuvring area is available to them, especially given that they come to make their claim now with the knowledge of the access point and turning area on their land as they were there when the plaintiffs bought the said land.

· There is no basis to think that the council would agree that the gate warranted approval and that is the reason why the manoeuvring area is sought – the matter remains theoretical.]

Dealing with the issue

39 I accept entirely that the grant of a right of way is not to be regarded as equivalent to granting ownership to the dominant tenement owner over the land on the servient tenement over which the right is created. Clearly there are cases where the dominant tenement owner was prevented from using the right of way so as to extend the use of his own property completely over the site of the right of way: cf the observations in Saggers [supra] at 56, 469.

40 Plainly one looks to the terms of the grant: for example to establish whether or not the grant gives to the dominant tenement owner the right to gain unlimited access to the dominant tenement from every point along the relevant boundary between the dominant and the servient tenements. The grant may so provide expressly or by implication.

41 The unusual circumstance thrown up by the present proceedings seems to me to be the proposal of the defendants to in effect ‘co-join’ with the right of way, a part of the land held by them. They claim to have a right to use the right of way as one part only of a turning or manoeuvring area: the right of way being insufficient in itself to permit the entirety of the manoeuvring area to be constructed.

[I acknowledge that use of the term ‘co-join' perhaps furnishes an unwarranted gloss on what is proposed. But for present purposes it serves to highlight the case put by the defendants.]

42 As will be seen from what follows, the real and only question which requires to be answered requires the Court to focus upon what were and were not either express or ancillary rights granted by the subject easement. As the authorities have made plain, circumstances change. The ultimate ‘litmus’ test requires an answer to whether or not a particular proposal constitutes either an express or an ancillary right with respect to the right of way over the servient tenement. The right to co-join a portion of the land held by the dominant tenement owners with the right of way in order to allow room for vehicles to manoeuvre will be an ancillary right if, and only if, it is reasonably necessary to the effective reasonable exercise and enjoyment of the rights of passage granted by the particular right of way.

Is the proposed turning circle reasonably necessary?

43 The plaintiffs claim that a turning circle is necessary for the purpose of facilitating safer going, passing and repassing from number 7. They assert that, regardless of whether a gate is installed on their property, the nature of the property means that if the turning circle is not installed, the plaintiffs will be required to undertake the difficult manoeuvre of reversing down the driveway from time to time. It is said that this will be required on occasions when the turning circle in front of the Berryman residence is full, or where another car is attempting to emerge and blocking the way of the approaching vehicle.

44 In support of this contention, the plaintiffs rely on the evidence of Mr Berryman that vehicles frequently encounter each other head to head on the driveway, requiring one party to reverse [transcript at 37 line 18]. They also rely on a report [‘the Cody Report’] prepared for the defendants in response to the plaintiffs’ earlier expressed intention to install a gate without the installation of a turning circle. This Report found:

(A)s a consequence of the relatively narrow carriageway, steep gradient and sharp bend, vehicular access for No 7 Cranbrook Road is difficult and potentially unsafe. It is certainly not a suitable access arrangement for reversing vehicles. … The difficulty in reversing down the steep carriageway is confirmed by anecdotal evidence of vehicles running off the bitumen sealed carriageway when attempting to make that manoeuvre. The traffic safety issue is exacerbated by the sharp drop pf 4-5 metres between the ground levels of No 7A and 5 Cranbrook Rd adjacent to the common boundary (and therefore adjacent to the ROW). If a vehicle attempting to reverse from the proposed gate back to Cranbrook Rd was to lose control and travel across the boundary between Nos7A and 5 Cranbrook Rd, the potential for serious injury to the driver and residents of No 5 Cranbrook Rd is a significant issue. [RFHB-6]

45 In contrast, the defendants dispute that the proposed turning circle is currently necessary for the plaintiffs to safely enjoy their rights of access. They emphasise that Mr Berryman gave no specific evidence to support his allegation that cars ‘frequently’ met on the driveway, and assert that the probability of cars being required to reverse around the curve is small. If it were a real danger, they emphasis that the risk could easily be avoided by simple and inexpensive measures taken by the plaintiff (such as installing a sign to ensure that the turning bay on the Berryman property is kept clear). Instead, the defendants assert that the only event that seems to constitute a catalyst for the turning area is the decision to install the gate. This contention, that it is the gate alone which has brought about the alleged need for the construction of a turning bay is supported by the first plaintiff’s own affidavit, which states that:

If the security gate is constructed as proposed it will be necessary to make provision for a vehicle that arrives at the gate to turn and egress the Berryman property in a forward direction if there is nobody home at the Berryman property. To that end we have proposed a design that enables a driver to reverse a short distance down the driveway and then turn in a turning bay so as to leave the driveway in a forward facing direction.

46 The defendants also emphasise that the Cody Report relied upon by the plaintiffs was prepared in response to a development application for a gate, and that the comments contained within the report are only relevant in circumstances where a gate is ‘required’.

47 The finding is that the subject proposal has as its raison d’être, the intent of the Berrymans to install the subject gate, and to do so on their own property. When one posits that exercise as a given [assuming for the purposes that they obtain any necessary council approvals] the plaintiffs will have successfully shown that the subject works on and off the right of way will be reasonably necessary for the effective and reasonable exercise and enjoyment of the express right to go, pass and repass to and from the dominant tenement.

48 Once this finding is made, the present proceedings can be easily distinguished from the case of Lehane, discussed above. In that case, the Court’s finding that neither the right to park nor the right to reverse and turn were ancillary to the easement was based on the conclusion that neither of these rights were reasonably necessary to the effective reasonable exercise and enjoyment of the right of passage expressly granted [as discussed page 56,469]. The distinction in this case, where the turning circle proposed by the plaintiffs has been held to be reasonably necessary, is apparent.

49 Moreover, notwithstanding that the plaintiffs have elected to install the gate, and thus to some degree to bring upon themselves the difficulties involved in utilising the right of way once the gate has been installed, the finding is that their decision to install the gate [and that which will follow in terms of the need for the turning circle] cannot be characterised as constituting an unreasonable use of the right of way.

50 Notably, as Palmer J observed in Natva [at 78]:

“(T)he desire of the plaintiff to make the best and most profitable use of its land is not the dominant consideration when the Court is assessing what is a reasonable use of a right of way. The Court takes into account all relevant circumstances, which include the impact of the proposed use on the owner of the servient tenement as well as on the owner of the dominant tenement.”

51 In Natva, the Court’s refusal to allow the plaintiff additional access points to their property from the right of way was based, in part, on the fact that the proposed new access point would cause significant detriment to the owners of the servient tenement, by preventing their reasonable use of the right of carriageway area for parking. In the present proceedings, while the installation of a turning bay may have some detrimental impact on the defendants, [as, for example, interfering with their opportunity to grow a tree in the space that is intended to be paved], this detriment is, in the ultimate analysis, outweighed by the benefits to be derived from the turning circle.

52 Ultimately, when weighing up the interests of the parties, including the reasonable desire of the plaintiffs to install a security gate, the finding is that the proposed use of the right of way to incorporate a turning circle is a reasonable use of the right of way.

Conclusion

53 Naturally it may be accepted that that Mr and Mrs Berryman would be entitled to construct a design for works totally upon their own property to include the proposed turning circle and would then be entitled to use the right of carriageway to access that turning circle. But the present proposal goes further. The question then becomes whether the grant of the subject easement did or did not carry with it, either expressly or as ancillary rights, a right to co-join with the right of way, a part of the land held by the dominant tenement owners.

54 After giving close consideration to this issue I have decided that the particular circumstances which now obtain permit a positive answer to the question: in short the grant of the subject easement carries with it, at least as ancillary rights, a right in the present circumstances to co-join with the right of way a portion of the land held by the dominant tenement owners.

55 In a sense one may test the contrary proposition put by the defendants as follows:

i. at the moment of course the defendants are perfectly within their rights to permit a vehicle on their property to move on to the right of way and down to Cranbrook Road;

ii. it would also be within the defendants’ rights to so alter their existing land as to permit a vehicle to gain access to the right of way from below the position where the gate is proposed;

iii. indeed there is nothing to stop the defendants from building a carport on their own land contiguous to the right of way and from obtaining access for that vehicle down the right of way to Cranbrook Road whenever necessary.

56 All of this points up the crucial entitlement "to go, pass and repass at all times and for all purposes … to and from the … dominant tenement or any such parts thereof". Once that portion of the grant with all that it implies receives its necessary focus the plaintiffs’ case becomes a fortiori.

57 Why, one asks, is the mere fact that a series of development approvals are necessary [one of which would include only an approval for works to be carried out on the right of way and another of which would include only an approval for works to be carried out on the Berryman's property] seen to be either or both:

i. something which is antithetic to the Berrymans’ rights;

ii. something which constitutes an unreasonable attempt to appropriate the servient land?

58 On close examination it becomes clear that neither of these alternatives is engaged.

59 The finding is that subject to matters dealt with below being established by the plaintiffs to the satisfaction of the court, the plaintiffs will as a matter of substance have shown a right to the relief sought by bringing these proceedings.

Other matters of detail

60 Earlier in these reasons I referred to the matters of detail raised by Mr and Mrs Sonnenschein. It is now necessary to travel into that arena.

61 Shortly put the defendants’ propositions included the following:

i. that the terms of the development application were either uncertain, internally inconsistent or misleading. Hence they should not be subjected to a court order to sign the development application;

ii. Notably the development application in question is contained in exhibit ASL1, pages 14-37;

iii. The application consists of:


i. Completed Woollahra Council Development Application Form;

ii. Statement of Environmental Effects prepared by Bill MacMahon (chartered architect) including a plan of the proposed development (‘The MacMahon Plan’);

iii. Transport and Traffic Planning Associates report (‘the Traffic Report’) prepared by Mr Andrew James Morse.


iv. The alleged uncertainty concerns the issue of whether the regrading of the driveway which the plaintiffs propose to undertake will take place only on that section of the driveway which is situated within the right of way, or whether it will also involve regrading that portion of the driveway which falls outside of the area of the right of way, and encroaches upon the defendants property (‘the encroachment’).

v. On the MacMahon Plan, attached to the plaintiffs’ development application, the area of the driveway which is proposed to be regraded is confined to the area within the right of way, and does not include the portion of the driveway situated on the encroachment.

[I interpolate to note that this, seen in isolation, seems tolerably clear, and accords with the plaintiffs’ assertion, made known to the defendants, that it has never been their intention to propose developments on the defendants’ land which exceed the boundaries of the right of way [cf letter ASL1 at page 12]].


vi. The defendants also allege, in relation to the MacMahon Plan, that it represents that the driveway as existing could be treated by the Council as the true, lawful and continuing configuration of the driveway.

vii. The alleged ambiguity arises by way of a note on the MacMahon Plan, which advises the reader to “refer to report and drawings by Transport and Traffic Planning Associates for levels”. This suggests that the details of the proposed regrading, in terms of the change to the level of the driveway at various points along its surface, may be seen in the attached Traffic Report.

viii. In fact, as is made clear in both the evidence given by Mr Morse and the diagram at Figure 4, the attached Traffic Report was developed based on an assumption that the existing physical driveway was to be regraded, including the portion of the driveway which extends onto the encroachment. Thus, a small subset of the levels mentioned in the traffic report, being those levels which represent the proposed changes to the area inside the encroachment, no longer correspond to the development which is proposed to be undertaken.

ix. As the defendants emphasise, there is no indication within the development application itself to indicate which of the conflicting documents is to take precedence. It is thus unclear, reading the application alone, whether the proposed development will take place within or encroach outside the right of way.

x. Additionally, the swept path analysis included within the Traffic Report is based upon the assumption that the area of the encroachment is included as part of the driveway and, while the swept path does not show a vehicle crossing onto the encroachment, it would need to be altered if a distance between the vehicle and the edge of the driveway of 300mm (the clearance required by the ‘most robust assessment’) was to be maintained.

xi. Mr Morse gave evidence that all the diagrams included within the Traffic Report (Figures 1 to 5 and SP1 and 2) would have to be replaced by new drawings before the development application was submitted, in order to avoid misleading the council [transcript page 58 at 43].

xii. He produced in court a new draft swept path analysis showing the vehicle entering and exiting the plaintiffs’ property [but not performing the three point turn within the proposed turning circle].

xiii. This new draft analysis, unlike the figure SP1 included within the development application, demonstrated a clearance of 300mm from the edge of the right of way.
xiv. Mr Morse admitted under cross-examination that, until he had prepared a swept path analysis in respect of the three point turn manoeuvre, he would be unable to express an opinion, with any degree of surety, as to whether such a manoeuvre would cut across the encroachment.
xv. The defendants also submitted that, once the inner curve levels are changed to reflect the actual nature of the proposed development, this could affect other data included within the application, such as the central levels.

62 These are all matters which require attention of both parties once they have had an opportunity to read these reasons. It may or may not become appropriate if an application be made by the plaintiffs, to grant leave to vary the precise terms of the relief presently sought in the amended statement of claim.

63 The lodestar by which the practice and procedure of the Court is steered is to be found in the overriding purpose rule set out in section 56 of the Civil Procedure Act 2005 ["the CPA"]:

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

64 Both the Court, the parties to the proceedings and their legal counsel are required to give effect to and promote this overriding purpose. The CPA also goes on, in sections 57 and 58, to set out the objectives of case management, and to detail a range of matters to which the Court may have regard when making an order or direction, in order to ensure that such orders are in accordance with the dictates of justice. These elements include:

i. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

ii. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction;

iii. such other matters as the court considers relevant in the circumstances of the case.

65 Sections 59 and 60 of the CPA also go on to emphasise the need for the Court to take into account the need to minimise delay and ensure that costs to the parties remain proportionate to the issues in dispute.

66 The central strands of the parties' respective positions have been dealt with as a matter of principle. The lateness in the discovery by the plaintiffs of the small encroachment has already been mentioned in the reasons. Issues concerning possible variations to the precise form of the development application in respect of which the plaintiffs seek a court order can be dealt with as part of these proceedings provided both parties be given an opportunity to address on any applications to amend the precise terms of the relief sought and/or to adduce further evidence in that regard. It would plainly fly in the face of the overriding purpose rule for the Court to presently determine the proceedings without permitting the parties to closely examine their respective cases particularly where the principles which govern the particular circumstances litigated has been clarified.

The way forward

67 The parties will be given an opportunity to address the court on the way forward following their having become familiar with the reasons.

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