Body Corporate No 413424R v Sheppard

[2008] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 5607 of 2005

BODY CORPORATE NO 413424R

Appellant

v

PETER JAMES SHEPPARD

and

First Respondent

MARGARET JEAN SHEPPARD

Second Respondent

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2008
DATE OF JUDGMENT:	27 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 118

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Easements – Implied easement – Easement of way – Whether easement is necessary for the reasonable use and enjoyment of the lot – Whether easement is consistent with the reasonable use and enjoyment of the other lots and common property – s 12(2) of the Subdivision Act 1988 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Sifris and Mr A Trichardt	Corrs Chambers Westgarth
For the Respondents	Mr S Anderson SC and Mr P Wallis	Holding Redlich

BUCHANAN JA:

1. I would dismiss the appeal for the reasons stated by Dodds-Streeton JA.

DODDS-STREETON JA:

1. This appeal concerns the construction of s 12(2) of the Subdivision Act 1988 (‘the Act’). The appellant, the body corporate of a residential apartment block situated at 51 Spring Street, Melbourne, appeals from the judgment of a judge of the trial division given on 15 June 2007.[1]  His Honour dismissed the appellant’s claim to implied easements (principally, a right of way to the roof of the apartment block) over the penthouse apartment owned by the respondents, Mr and Mrs Sheppard.

   [1]Body Corporate No 413424R v Peter James Sheppard & Anor [2007] VSC 203.

1. Unless an individual owner in the upper levels of the building agrees to provide access through a particular apartment, service personnel must currently walk up sixteen levels of fire stairs from the ground floor to access the building’s roof, which contains the air-conditioning, lift, emergency and similar plant and equipment required to service, repair and maintain the building. The claimed easements would enable service personnel to take the lift to the respondents’ apartment on level 14 and walk as of right through living areas to access the fire stairs in order to reach to the roof, thus obviating the need to climb many flights of stairs. The trial judge held that the conditions of implication of an easement under s 12(2) were not satisfied because –

(a)there were alternative, although more costly and less convenient means of accessing the roof, and an implied easement over the respondents’ apartment was therefore not essential for the reasonable use and enjoyment of the other apartments and the common property in the building;

(b)if service personnel were to access the roof by walking through the respondents’ apartment, it would involve a level of intrusion

inconsistent with the reasonable use and enjoyment of that property.

Facts and Evidence

1. The apartment building was built in the early 1970s.  In 1999, when it was redeveloped and subdivided, three storeys were added.  The building now comprises a total of 16 storeys.  The respondents’ property, Apartment 141, occupies the entire 14^th floor and a part of the 15^th floor.  Storeys 1 to 8 inclusive contain two apartments per storey.  Storeys 9 to 13 inclusive contain only one apartment per storey.

1. The appellant is the registered proprietor of the common property in the apartment building.  It is obliged, pursuant to the relevant regulations of the Subdivision (Body Corporate) Regulations 2001, to provide services related to the common property or its enjoyment, including maintaining and servicing necessary equipment.

1. The 16^th floor contains plant and equipment and a ladder which leads to the roof.  The equipment on the roof includes an air-conditioning cooling tower, water treatment equipment, other air-conditioning equipment, pipe-work, electrical supply and fittings, the lift room (containing motors, gear for monitoring lift security and emergency functions), the boiler, facilities to connect abseiling equipment for cleaning external windows and stainless steel and other external purposes and fire fighting equipment. 

1. Access to the roof is therefore required in order to provide and maintain necessary building services, including the air-conditioning, fire detection and emergency warning systems, the lifts, the boiler, lighting, plumbing and cleaning the windows and steel beams.

1. Access to the roof can be achieved either by using the lifts or by walking up the fire stairs.

1. The lifts commence on the ground floor and terminate on the 14^th floor.  The lifts open into the private living spaces of the full floor apartments.

1. The fire stairs lead from the ground floor to the roof.  The fire stairs themselves can be accessed from the ground floor, from any of the full floor apartments on levels 9 to 14 or from an apartment on level 5.

1. From levels 9, 11 and 13, the stairs can be reached by walking through the living spaces, ensuites and bedrooms of the relevant apartments.  From levels 10 and 12, the fire stairs can be accessed by walking through the living spaces and kitchens.

1. From the fifth storey, the fire stairs can be accessed by walking through the living spaces and toilet area of Apartment 52.

1. To reach the fire stairs via Apartment 141, it is necessary to walk through the dining room, kitchen area and laundry of the apartment. 

1. The respondents purchased Apartment 141 by a contract dated 12 September 2001, which settled on 9 November 2001.

1. The Certificate of Title provided that Apartment 141 was subject to, inter alia, any encumbrance shown or entered on the Plan. The Plan stipulated that s 12(2) of the Act applied to all of the land in the Plan, including Apartment 141.

1. Apartment 141 was unoccupied when the respondents purchased it. They were aware that the roof was, at that time accessed by taking the lift to level 14 and proceeding through a door to the laundry of the vacant apartment in order to access the stairway.  After they took possession, the respondents permitted access to continue as before, until August 2002.  From that date, they permitted such access only intermittently.  Until 2006, they permitted access to their balconies to clean windows (both external building, windows and their internal windows (at the appellant’s cost)).

1. In November or December 2002, the respondents changed the layout of their apartment, so that in consequence service personnel accessing the fire stairs would now need to walk through their dining room, kitchen area and laundry.

1. Before the trial judge, the appellant formulated various versions of the rights of access it claimed over Apartment 141.  As his Honour observed, ‘the easements and rights asserted by [the appellant] changed significantly several times during the hearing.’  Initially, the appellant sought only a right of way through the laundry.  Towards the end of the trial, it proffered a new list, claiming three rights of way.

1. The appellant ultimately sought the following three rights:

(a)a right of way to the roof via the lift foyer on the 14^th storey through the laundry of Apartment 141;

(b)a right of way through the lift foyer, dining room and living room of Apartment 141 to the 14^th level balcony at the eastern end of Apartment 141; and

(c)a right to way through the lift foyer, dining room, internal staircase, and level 15 living room to the 15^th level balcony at the northern end of Apartment 141.

1. The appellant claimed that the rights of way to the balconies on levels 14 and 15 were required to clean the external windows and stainless steel of the building.  Before us, the question of access to the balconies was largely unaddressed.  It remained unclear whether they were currently being used for cleaning purposes and if so, on what basis.  The principal focus of the parties’ submissions was the right of way to the roof through Apartment 141.

The legislation

1. Section 12(2) of the Act provides:

(2)       Subject to subsection (3), there are implied—

(a)   over—

(i)      all the land on a plan of subdivision of a building; and

(ii)that part of a subdivision which subdivides a building; and

(iii)any land affected by an owners corporation; and

(iv)     any land on a plan if the plan specifies that this subsection applies to the land; and

(b)   for the benefit of each lot and any common property—

all easements and rights necessary to provide—

(c)   support, shelter or protection; or

(d)passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or

(e)   rights of way; or

(f)full, free and uninterrupted access to and use of light for windows, doors or other openings; or

(g)   maintenance of overhanging eaves—

if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.

1. In these reasons, I refer to ‘if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property’  as the ‘first condition’ and ‘is consistent with the reasonable use and enjoyment of the other lots and the common property’ as ‘the second condition’.

The judgment below

1. The learned trial judge acknowledged that the appellant had consistently sought various right of access through Apartment 141, despite some difficulty in formulating its precise claim.

1. His Honour considered the two cumulative conditions of s 12(2), both of which must be satisfied in order to imply an easement.

1. In relation to the first condition, it was common ground before the trial judge that ‘the lot’ referred to the property or properties to be benefited by the implied easement.

1. Having considered relevant authorities, his Honour concluded that the requirement of necessity in the first condition required:

something more compelling than convenience and more than a finding of the best or the most desirable means to secure the reasonable use and enjoyment of the property which would benefit from the implied easement or right.[2]

[2]Body Corporate No.413424R v Peter James Sheppard & Anor [2007] VSC 203, [6].

1. He concluded that the implied easement must be ‘essential’ to the reasonable use and enjoyment of the lot to be benefited.  He nevertheless endorsed Osborn J’s statement in Gordon and Anor v Body Corporate Strata Plan 3023 & Anor[3] (‘Gordon’) that the ‘necessity’ in the first condition of s 12(2) was not equivalent to ‘absolutely necessary’, in the sense that the dominant land could not otherwise be used at all.

   [3](2004) 15 VR 557.

1. He observed that s 12(2) operated by its own terms, without requiring intervention. Consistently with that operation, s 12(2) was usually directed to a case where the easement went without saying and at rights that were known with reasonable certainty and without debate, such as those necessary to give effect to infrastructure services or facilities.

1. His Honour considered that the concept of necessity in that context required something ‘more than the convenient, desirable or preferable option of various ones that may be available’.

1. Before the trial judge, the appellant claimed that access through Apartment 141 was required so that services could be provided as follows:

1.to service and maintain the air conditioning cooling tower, the motors for the lift and the fire equipment;

2.to maintain and clean the steel part of the external walls;  to clean the external windows; 

3.for other incidental and related purposes; to render emergency services (this was, his Honour found, adequately addressed by specific common law doctrines and legislation).

1. His Honour found the appellant had not discharged its burden of establishing the satisfaction of the conditions under s 12(2). The evidence did not, in his opinion, establish there the implied easement was necessary for the reasonable use and enjoyment of the land to be benefited. Rather, it established that the maintenance of equipment and services had been, and could be in future, satisfactorily performed without reliance on the alleged implied easements, although the existing methods entailed additional cost and a measure of inconvenience.

1. First, the evidence established that the air conditioning cooling tower had been maintained and serviced satisfactorily since 2002 by gaining access from fire stairs at the ground floor of the building.  There was a current contract and additional reputable firms were willing to undertake the task in that way in future, although it was more inconvenient and involved a payment for walking up the flights of stairs.

1. The lift maintenance services had also been provided satisfactorily by using the fire stairs.  The current provider was willing to continue to provide the service in that way.  Another reputable firm was also willing to perform that task.

1. The fire equipment was serviced from the ground floor by using the fire stairs.  The relevant service company was willing to continue that.  The defendants led evidence that a reputable company was willing to clean the steel parts of the external walls.

1. While the evidence in relation to cleaning the external windows and steel walls was not entirely satisfactory, it established that a reputable company was willing to provide window cleaning services without using Apartment 141.

1. His Honour observed that a hoist might be installed to perform other incidental tasks.  His decision did not, however, depend upon that.

1. His Honour acknowledged that some service technicians would prefer to use the lift, and the need to walk up 14 flights of stairs involved some health risks to the workers.  He considered however, that such risks could be minimised or significantly reduced by other means, including appropriate work practices.  Further, he observed that it was impossible totally to eliminate risk.  Rather, it was necessary to balance the risks entailed by the present system of access against other risks which would arise from workers’ entry into private property pursuant to the easement (including false allegations of impropriety and carrying toxic chemicals through private residences).  His Honour was particularly impressed by the evidence of an experienced technician who testified to the disadvantage of accessing private property.  He concluded that all safety and risks must be considered ‘and in that context, I would not conclude that necessity lies in the implied easement or right claimed by the [appellant]’.[4]

   [4]Body Corporate No 413424R v Peter James Sheppard & Anor [2007] VSC 203, [21].

1. His Honour considered evidence that the architect varied the plans of Apartment 141’s layout to provide access and the developer’s representative’s evidence of an intention to allow access.  He observed that nobody informed the  licensed surveyor, whose task it was to identify all easements, of a right of way to be made available through Apartment 141.  The surveyor gave evidence that when the plan of subdivision was prepared, access to the roof was available from the fire stairs.

1. The evidence of the developer’s representative and architect at best, would establish an intention to provide relevant access though the laundry, but no other asserted path. In any event, the subjective intention of an uncommunicated plan was not probative of necessity for the purposes of s 12(2).

1. His Honour also concluded that the second condition of s 12(2) was not satisfied because the appellant’s claimed right was not consistent with the reasonable use and enjoyment of Apartment 141 and the common property, as it would result in significant intrusions into Apartment 141 by reference to the ‘nature, place and time of the intrusion’.[5]  It would involve a physical presence not comparable to embedded cables or pipes.  Workers would carry chemicals through the apartment, traversing its entertaining and private spaces.  The required access would be through a substantial part of the premises when accessing the respondents’ internal staircase.  The place of intrusion for the internal stairway was large, prominent and internal.  Even the less intrusive pathways claimed for the narrower easements involved ‘too great an intrusion’,[6] constituted by a physical presence through central parts of the living areas, the linking passages and ‘passing over or near domestic and or entertaining areas.’[7]

   [5]Ibid, [28].

   [6]Ibid, [29].

   [7]Ibid.

1. In that context, he accepted the view of Beach J in Burford & Ors v Wichlinksi (‘Burford’)[8] that the detriment caused by the implication of the easement was relevant to whether s 12(2) applied. He rejected the appellant’s argument that Burford was incorrect, and what must be considered was consistency with ‘everybody else getting the same benefit’. That construction was, in his Honour’s view, contrary to the plain words of the second limb. He saw no warrant to constrain the words and the reference to the two parcels of property identified in s 12(2) as the appellant’s contended.

   [8](Unreported, Supreme Court of Victoria, Beach J, 30 April 1996).

1. The learned trial judge set out the following undisputed estimate of services to be provided using the claimed easement.

Provider	Service	Frequency
Select Air	• Routine maintenance • Maintenance on cooling tower, boiler, pumps, the heat exchangers, etc • Servicing of air conditioning equipment • Servicing of pressurisation fan	Monthly Monthly and quarterly 3 monthly Monthly
Tamar	• Water treatment of cooling tower • Servicing of pressurisation fan	3 monthly 3 monthly
AEFS	• Routine servicing and maintenance of the fire detection system, sprinkler system and the emergency occupant warning system • Repairs and servicing of electrical component of the fire sprinkler system	3 monthly 3 monthly
Kone	• Maintenance, service and repairs of the lifts • Emergency call outs	Monthly Varies but could be once or twice a month
Acorn (window cleaning)	• External window cleaning	3 monthly
G + F Heating Service	• Service of the boiler	6 monthly
White Lighting Electrical Services	• Servicing of emergency and common property lighting	3 monthly or when needed
Brett Campbell Plumbing	• Plumbing repairs	Varies but has been required fortnightly to monthly

Notice of Appeal

1. The Notice of Appeal dated 5 September 2007 set out a number of grounds of appeal challenging the trial judge’s construction of s 12(2) and asserting that he gave too much weight to the evidence of the respondents’ witnesses and too little to evidence of the appellant’s witnesses.

1. In particular, the Notice of Appeal stated:

5.The learned Trial Judge erred in holding that necessary in the context of s 12(2) of the Subdivision Act 1988 effectively means essential.

6.The learned Trial Judge should have held that necessary in the context of s 12(2) of the Subdivision Act 1988 does not mean absolutely necessary or essential but means more than inconvenience and less than absolutely necessary.

7.The learned Trial Judge erred in holding that the said access or right of way was not necessary because –

a.such access has not been used “over the last four or five years“ (paragraph 12 Judgment);

b.the risks could be “minimised by other means” (paragraph 21 Judgment);

c.tradesman were prepared to walk up the stairs and not access the roof through apartment 141.

8.The learned Trial Judge should have held that the said access or right of way was necessary and that the matters referred to in paragraph 7 [of the Notice of Appeal] were not relevant given the following circumstances:

a.the admission in paragraphs 8(a)(i), 8(a)(ii) and 10A(a) of the Amended Defence of the [Respondents] dated 14 May 2007, and

b.the fact that the parties were in disputation from August 2002 when the respondents refused access to the roof and culminating in the commencement of this proceeding.

13. The learned Trial Judge erred in holding that s 12(2) of the Subdivision Act 1988 is “a provision to remove the need to state expressly” the easements contemplated by the section (paragraph 8) or contemplates “implications of rights and easements of a kind that will usually be known with reasonable certainty and without debate (paragraph 8).

Contentions on Appeal

1. The appellant advanced different constructions of s 12(2) of the Act below and on appeal. There was also a degree of inconsistency between the appellant’s oral submissions, written submissions and the Notice of Appeal.

1. It was, however, common ground before us that the plaintiff bears the onus of establishing that both the first and second conditions of s 12(2) are satisfied in order to imply an easement or right. Ultimately, it was not disputed that Apartment 141 was land on a Plan to which s 12(2) of the Act applied, or that the implied easement providing a right of way to effect the services and maintain the equipment would be for the benefit of Apartment 141, the other lots in the building and the common property.

1. Before the trial judge, the appellant did not dispute that the first condition of s 12(2) addressed the reasonable use and enjoyment of the lot or lots to benefited by the implied easement or right. Before us, in contrast, the appellant submitted that the first condition was directed at whether the easement or right to be implied was necessary for the reasonable use and enjoyment of the property which was to be subject to it.

1. The appellant also contended that the trial judge erred in equating ‘necessary’ in the context of the first condition with ‘essential’.  It argued that, to the contrary, ‘necessary’ meant ‘substantially preferable’.  The criterion therefore could be satisfied, and an easement implied, even if there were, as in the present case, alternative, but significantly less preferable means for the use and enjoyment of the relevant property.

1. The appellant adhered to the construction of the second condition it advanced below, submitting that it was not directed at the burdened property alone, but at all the properties in a global sense.

1. The appellant submitted that the evidence established that the current method of accessing the roof was onerous and involved health risks for the relevant service personnel and thus, that the implied easements were ‘substantially preferable’ for the reasonable use and enjoyment of the property to be subject to the easement.

1. Further, the appellant argued the second condition was directed at the consistency of the implied easement with the reasonable use and enjoyment of all the property (both benefited and burdened) but in a global sense.

Relevant Authorities

1. Section 12(2) of the Act was construed in Burford and Gordon v Body Corporate Strata Plan 3023[9] (‘Gordon’).   

   [9](2004) 15 VR 557.

1. In Burford, the original owners of two lots sold one lot to a developer and retained the adjoining lot. Beach J rejected the argument of the developer, who sought to imply an easement under s 12(2) of the Act in order to connect the drainage and sewer on his lot to that on the adjoining lot.

1. His Honour found that there were two feasible means of providing sewerage and drainage to the developer’s lot.  Either a direct branch line could be run to the main drain with no inconvenience or detriment to the adjoining lot or a line could be run across the front of the adjoining lot to the existing branch line.  In that case, it would affect the adjoining lot’s garden, and the associated landscaping could not be disguised, would interfere with cement rocks and paving, and would leave scars and colour change.

1. On the other hand, a connection to the adjoining lot’s branch line was easier and cheaper, as it did not require a trench to be excavated over the road, nor as deep a trench.

1. Beach J assumed that the lot the subject of condition 1 was the benefited lot, and the lot the subject of condition 2 was the burdened lot.

1. He defined ‘necessary’ in the context of s 12(2) in accordance with its dictionary definition as follows:

In the short time available to me I have been unable to find any authority dealing with the meaning to be attributed to the word “necessary” where used in the context it is in s12(2) of the Subdivision Act. However, “necessary” is a word in common use throughout the community. The New Shorter Oxford English Dictionary defines it when used as a noun as including the following: “That which is indispensable; an essential, a requisite; a basic requirement of life as food, warmth.” Its adjectival definition includes: “That cannot be dispensed with or done without; requisite; essential, needful, eg a necessary condition.” (See Volume 2 at p. 1895). A fairly similar definition is contained in Webster’s Dictionary.[10]

[10]Burford at page 5.

1. He concluded that it was not necessary for the reasonable use and enjoyment of the developer’s land to connect his sewerage and draining pipe to the branch line of the adjoining lot.  While that connection was probably convenient, it was not essential.

1. In Gordon, the owners of a unit on a strata plan of subdivision claimed, pursuant to s 12(2), implied easements and rights of support and passage or provision of services necessary for proposed extension works to their unit. The proposed works involved construction of services within, and foundations intruding into, the common property.

1. It was not disputed that the property to be considered in relation to the first condition was the property to be benefited by the implied easements, while the property relevant to the second condition was the property other than that to be benefited.  Rather, argument centred on whether the easements were limited to the buildings in existence or contemplation at the time of the subdivision, in accordance with the limitations on an implied grant of an easement in the first rule in Wheeldon v Burrows.[11]

   [11](1879) 12 Ch D 31.

1. Osborn J considered that the claimed easement was necessary in the relevant sense, although it involved a greater intrusion into the common property than an alternative transfer slab system of foundations.  He accepted that the cost of a transfer slab system would be prohibitive and would not, in any event, totally obviate intrusion into the subgrade.  As the foundations were clearly essential for the plaintiff’s extension, and there was no feasible alternative means of achieving them.  Osborn J distinguished Burford, where the evidence established ‘two feasible means’[12] of providing sewerage and drainage to a lot ‘only one of which necessitated the easement claimed’.[13]   He also distinguished Stathoulis v O’Connor,[14] in which the claimed easement was ‘a mere matter of convenience’.[15]

   [12]Gordon, 570 at [59].

   [13]Ibid.

   [14](1984) V Conv R 54-157.

   [15]Osborn J citing Stathoulis v O’Connor at 63,071 in Gordon, 570 at [62].

1. Osborn J considered that the other lots and the common property referred to in the second condition were the property other than the property to be benefited.  He concluded that the implied easement was consistent with the reasonable use and enjoyment of the other lots and the common property.  He found that the strip footings would not impact on any existing use of the common property or the other units.  Further, it would not materially affect any feasible future use.

1. In Stathoulis v O’Connor, Gray J held that the plaintiffs were entitled, pursuant to s 98 of the Transfer of Land Act 1958, to an easement of way over a strip of land at the rear of their shop property.  His Honour found that, as the shop’s only current outlet was to the front and there was no side access, it was ‘necessary for the reasonable enjoyment’[16] of the property to have a rear easement of way.  It was not a mere matter of convenience, as without such an easement, it would be necessary to dispose of rubbish by transporting it through the premises to the front access.

   [16]Stathoulis v O’Connor (1984) V Conv R 54-157 at page 10.

Application

1. In my opinion, as the trial judge held, and as the appellant itself initially contended, the first condition of s 12(2) is directed to the question whether the implied easements and rights are necessary for the reasonable use and enjoyment of the property other than that to be burdened by the implied easements or rights.

1. Such a construction is consistent with the authorities discussed above. It is also consistent with the antecedents, language and logic of s 12(2).

1. First, the phrase ‘necessary for the reasonable use and enjoyment’ in the first condition of s 12(2) is derived from the test in Wheeldon v Burrows, by which an easement which burdens a servient tenement is implied for the benefit of a distinct, dominant tenement. Secondly, s 12(2) refers to easements and rights necessary to provide specified functions over various categories of land ‘for the benefit of each lot and any common property’.

1. The concluding paragraph of s 12(2) imposes two cumulative conditions, both of which must be satisfied to secure the implication. The stipulation in the first condition of an easement or right necessary for the reasonable use and enjoyment of the lot or the common property reflects the reference in s 12(2)(b) to ‘each lot and any common property’ for whose benefit the easement is to be implied over the land described in sub-section 2(a).  The use of the singular term ‘lot’ in the first condition corresponds to ‘each lot’ is, in any event, not determinative.

1. Such a benefited lot or any common property is in contradistinction to the land which is subject to the easement, consonant with the established principles of easements and the rule in Wheeldon v Burrows.

1. An easement is, characteristically, a right existing over one property for the benefit of another.  Further, the dominant and servient tenements must not be both owned and occupied by the same person.  It is not only unnecessary, but a conceptual contradiction, for a particular property held in sole ownership to be simultaneously benefited and burdened by a right necessary for its reasonable use and enjoyment.

1. While the land remained in common ownership and occupation usage  of one part which benefited another part would constitute only a ‘quasi-easement’, comprehended in the rights enjoyed in consequence of ownership.  It could not properly be characterised as a right attached to another property and to which the relevant land was subject.[17]

   [17]The case would be different, of course, if such land were subdivided and the owner sold the benefited part.  An easement might then be implied pursuant to the rule in Wheeldon v Burrows or conveyed by analogous legislation.

1. Thirdly, consonant with the above construction of the first condition, the second condition is directed at the implied easement’s consistency with the reasonable use and enjoyment of the land other than that which it benefits.

1. The express reference to ‘the other lots and the common property’ in the second condition distinguishes its subject matter from the benefited lot or any common property referred to in the first condition. 

1. The property the subject of the second condition is necessarily different from the property the subject of the first condition.  Were it otherwise, the second condition would be redundant, as any easement or right necessary for a property’s reasonable use and enjoyment would also be consistent with such use and enjoyment.

1. The appellant’s contention that ‘necessary’ in the context of the first condition should be construed as ‘substantially preferable’ is, in my opinion, unpersuasive. It is neither mandated by any applicable authority nor likely to reduce any imprecision associated with the word ‘necessary’. On the contrary, ‘substantially preferable’ is derived from cases decided on s 88K of the Conveyancing Act 1919 (NSW), which is in different terms from those of s 12(2) and occurs within a different statutory regime. In my view, the term ‘substantially preferable’ would constitute an unwarranted gloss on the words of the statute which would aggravate indeterminacy and raise new questions of degree, judgement and identification of vantage or perspective, for which the legislation provides no answers.

1. Any imprecision in this context springs not from the word ‘necessary’ which has a well-established meaning.  Rather, it arises from the need to apply it in context to the complex or varied facts of each particular case and from the flexibility of the notion of ‘reasonable use and enjoyment’.

1. The appellant argued that his Honour erred in placing insufficient weight on the evidence that the architect and the developer’s representative intended an easement giving access to the roof through Apartment 141.

1. In my opinion, his Honour did not err as alleged.  He correctly characterised the evidence of uncommunicated intention, its inconsistency with some of the claimed easements and its limited relevance.

1. The implication of an easement under s 12(2) requires, moreover, the satisfaction of the specified statutory conditions. The opinion or intention of the building’s architects or developers, if clearly established, might, in an appropriate case, constitute relevant evidence, but it is for the court to determine whether the statutory test is satisfied.

1. The appellant emphasised that ‘necessary’ was not, in the context of the first condition, an absolute, but was properly qualified by an assessment of reasonableness and located within a continuum between the extremes of mere convenience and what was essential.  Therefore, it was said, the existence of less substantially preferable alternatives did not preclude the satisfaction of the first condition.

1. In my opinion, the word ‘necessary’ bears its ordinary meaning of ‘essential’.  It is not, however, to be construed in isolation, but in the context of the composite phrase, in which it is qualified by the broad concept of reasonable use and enjoyment of the benefited property.  Further, it is the easement, rather than the function it secures, which must be ‘necessary’.  The reasonable use and enjoyment of the property not only clearly exceeds mere use, but also admits consideration of the effect on the reasonable use and enjoyment of property if the function to be achieved by the easement is unavailable and of the costs or detriments of securing the function by means other than the easement.

1. His Honour, in my view, correctly concluded that ‘necessary’ meant that the easement was essential to achieving the specified function, in the sense that no alternative means of achieving the relevant function was feasible or reasonably available.  In determining whether an alternative to the easement was reasonably available, all relevant circumstances, including physical factors, legal restrictions, safety considerations and cost should be considered.

1. While the mere possibility of an alternative to the easement would not preclude the satisfaction of the first condition, his Honour did not hold the contrary, but rather, correctly concluded that if the alternative were reasonable, although involving some inconvenience or additional cost, an implied easement would not be necessary in the relevant sense.

1. His Honour was entitled, on the basis of the evidence, to conclude that the access sought to be achieved pursuant to the implied easement had been, was currently and would in future be readily available by alternative means, albeit at a greater cost and entailing some risks to service personnel, while avoiding other risks.

1. Further, in my opinion, even were the appellant’s construction of the first condition of s 12(2) correct, it could not succeed, because the claimed easements are not, on any view, substantially preferable to the current means of access for the use and enjoyment of the respondents’ property. The easement might well constitute a preferable means of access from the perspective of many service personnel, who must currently climb the fire stairs from the ground floor. The fact that service personnel may prefer an alternative means of providing the services has not, however, affected the availability of the services. Nor is the preference of service providers, even on the appellant’s construction, a relevant consideration.

The second condition

1. The appellant contended that the property the subject of the second condition was all lots (including those burdened by the easement) and the common property, but no special or peculiar consideration was to be accorded any particular lot in assessing the consistency of the easement with its reasonable use or enjoyment.

1. As I understood the appellant’s submission, a balancing exercise was nevertheless required, so that a general benefit to the properties ‘globally’ would outweigh a very considerable burden on the property subject to the easement, provided that it was not drastic or unreasonable.

1. The appellant submitted that, in the present case, his Honour erred in concluding that the claimed easements were inconsistent with the reasonable use and enjoyment of the relevant property, as they were unarguably consistent with the use and enjoyment of all property save that of the respondents, and (although it was not disputed that the respondents’ property would be subject to the frequent service visits set out in the primary judgment), the effect was not so drastic as to be inconsistent with enjoyment, given that overuse or abuse could be regulated or prohibited.

1. For the reasons set out above, in my opinion, the second condition of s 12(2) is directed only at the property subject to the implied easement, rather than all the property globally.

1. If, however, the appellant’s construction were correct, it would still be necessary to establish, as a minimum, that the easement was, although imposing a burden on the respondents’ property, consistent with its reasonable use and enjoyment.

1. The claimed easements are, in my opinion, inconsistent with the reasonable use and enjoyment of the respondents’ property, whether it be merely an element of, or the sole property relevant under the second condition.  The number and frequency of the required service visits, the ambit of the necessary route through the respondents’ key private living areas and the associated conveyance of service equipment and chemicals through those areas would constitute intrusion of a degree and nature wholly incompatible with the reasonable use and enjoyment of a private residence.  Such service access could, moreover, pose an unacceptable risk to the personal security and privacy of the occupants.  The necessity for, and the schedule of, service visits  were acknowledged, and the appellant did not propose any modification of the easements sought.  The distinction between the existence and the use of an easement was, in that context, chimerical, and constituted an implicit acknowledgement of the intolerable level of intrusion the claimed easements would represent.

Conclusion

1. In my opinion, the appeal should be dismissed.

OSBORN AJA:

1. I would also dismiss the appeal for the reasons stated by Dodds-Streeton JA.

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