Breen v Clough - [2017] NSWSC 1681

Supreme Court

New South Wales

Medium Neutral Citation: Breen v Clough [2017] NSWSC 1681
Hearing dates: 9-12, 16 October 2017
Date of orders: 05 December 2017
Decision date: 05 December 2017
Jurisdiction: Equity
Before: Darke J
Decision:
See paragraphs [259] and [273].

Catchwords:
LAND LAW – easements – substantial interference with rights under easements – where neighbouring properties have reciprocal benefits and burdens under easement to enable shared use of inclinator – where inclinator registered in defendant’s name with regulator – regulator issued notices requiring works to be done to inclinator – whether defendant’s conduct in response to notices constituted a substantial interference with the plaintiffs’ rights under the easement

LAND LAW – easements – substantial interference with rights under easements – remedies for interference – damages – damages awarded due to inability to use storeroom landing of inclinator – damage for expenses and inconvenience – exemplary damages claimed – exemplary damages not warranted

LAND LAW – easements – construction of easements – general principles of construction – where easement incorporates statutory terms of right of access – where easement imposes obligation to “ensure proper maintenance, repair and replacement” – consideration of parties’ rights and obligations under easement
EQUITY – equitable remedies – injunctions – plaintiffs seek a range of injunctions against defendant in relation to easement for inclinator – appropriate to order mandatory injunctions requiring replacement of fence with gate, provision of keys, and relocation of control buttons for inclinator
Legislation Cited: Conveyancing Act 1919 (NSW), s 181A, Sch 8
Occupational Health and Safety Act 2000 (NSW), ss 91, 135, Pt 6
Occupational Health and Safety Regulation 2001 (NSW), cll 83, 113
Work Health and Safety Act 2011 (NSW), Sch 1, cll 3-6, Sch 4, cll 4, 8
Work Health and Safety Regulation 2011 (NSW), Sch 18B, cl 31
Work Health and Safety Regulation 2017 (NSW), cll 10(1B), 246, Sch 5, Pt 2
Cases Cited: Butler v Muddle (1995) 6 BPR 97,532
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580
Powell v Langdon (1944) 45 SR (NSW) 136
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Zenere v Leate (1980) 1 BPR 97,029
Category: Principal judgment
Parties: Douglas Martin Breen (First Plaintiff)
Tracey Jane Dillon (Second Plaintiff)
Christine Mae Clough (Defendant)
Representation:
Counsel:
Mr C Ireland with Ms T Davy (Plaintiffs)
Mr D O’Connor with Ms F McNeil (Defendant)
Solicitors:
Koutzoumis Lawyers (Plaintiffs)
Redmond Hale Simpson (Defendant)

File Number(s): 2014/343553
Publication restriction: None

Judgment

Introduction

These proceedings principally concern an easement for access. An inclinator, a type of inclined lift which runs along a rail, has been constructed within the easement area. The inclinator services both the plaintiffs’ property at 118 Moons Avenue, Lugarno, and the defendant’s property at 116 Moons Avenue, Lugarno. Both properties slope steeply down from Moons Avenue to the shoreline of the Georges River. The two lots are each in the order of about 100m in depth. The fall from Moons Avenue to the Georges River is in excess of 40m. The inclinator provides a means of travelling between Moons Avenue and the houses situated not far from the shoreline.
The easement and the inclinator have been the focus of tension and conflict between the parties since 2010.
The plaintiffs, Mr Breen and his wife Ms Dillon, claim that in various respects the defendant, Ms Clough, has wrongfully interfered with their rights under the easement. There are also related claims of interference in relation to an easement for storage. The plaintiffs commenced the proceedings by Summons filed on 21 November 2014. Their claims are now advanced by their Statement of Claim filed on 19 November 2015. The defendant filed a Defence on 18 March 2016. The defendant also filed a Cross-Claim against the plaintiffs seeking to recover amounts by way of contribution to the costs of repair and maintenance of the inclinator. The Cross-Claim was settled in August 2017 following the acceptance by the plaintiffs of an Offer of Compromise.
The easements (along with numerous other easements) were created on 18 January 2002 upon the registration of Deposited Plan 1036625. The inclinator easement is the first easement referred to in the plan; the storage easement is the sixth.
The inclinator easement benefits both the plaintiffs’ land (Lot 15 in Deposited Plan 11270) and the defendant’s land (Lot 14 in Deposited Plan 11270), and burdens both the plaintiffs’ land and the defendant’s land. The easement is described as:

Right of Access (inclinator) and Easement for Services 0.75, 0.9 wide, 1 wide and variable.

The terms of the easement, insofar as the inclinator is concerned are as follows:

Right of Access (inclinator)
(a)   The right of access is subject to overhang of eaves and guttering.
(b)   In this clause works refers to the inclinator, supports, structures, carriage and items ancillary thereto.
(c)   The persons having the benefit of this easement must:
(i)   take all reasonable and timely steps to ensure proper maintenance, repair and replacement of all improvements from time to time in or on the easement site and promptly repair any damage to those; and
(ii)   keep current all reasonable insurance policies in connection with the works; and
(iii)   punctually pay for the cost of all the works and where more than one proprietor is liable for the cost of the works, the cost of the works must be paid in equal shares by all proprietors having the burden of this covenant; and
(iv)   comply with all laws and legal requirements in relation to the works; and
(v)   make good any collateral damage; and
(vi)   share equally the cost of any services supplied for the benefit of each lot having the burden of this right and where that cost has been billed by the supplier of that service to one or more proprietors having the burden of this positive covenant, each other proprietor must reimburse that proprietor for one half of the cost of that service within 14 days of a written demand for reimbursement by that proprietor who must with the demand provide a copy of the invoice for the service.

The easement area depicted on the plan is largely located upon the 116 Moons Avenue property (“No 116”), near to the boundary with the 118 Moons Avenue property (“No 118”). The easement area extends into No 118 towards its lower end (the end closest to the Georges River).
The inclinator itself had been installed by April 2000. It is located almost entirely upon No 116. Some of its supports rest upon No 118. The inclinator was the subject of a Building Approval issued by Hurstville City Council on 14 September 1998. It appears that the previous owners of the two properties (the Sakos and the Newmans) arranged for the inclinator to be supplied and installed by PR King and Sons Pty Ltd (“PR King”).
On 5 April 2000 WorkCover NSW certified (pursuant to the Construction Safety Act 1912 (NSW)) that the inclinator had been installed in a satisfactory manner. The Construction Safety Act was repealed by the Occupational Health and Safety Act 2000 (NSW) with effect from 1 September 2001. The Occupational Health and Safety Act was itself repealed with effect from 1 January 2012, and replaced by the Work Health and Safety Act 2011 (NSW).
It appears that the inclinator was registered as an item of plant under the provisions of the Occupational Health and Safety Act and the Occupational Health and Safety Regulation 2001 (NSW). By s 135 of the Act, certain provisions of the Act were extended to “plant affecting public safety”. That concept includes lifts as defined in AS 1735.1-1999 Lifts, escalators and moving walks Part 1: General requirements (see cl 83 of the Occupational Health and Safety Regulation 2001). That Australian Standard applies to certain lifts, including inclined lifts which are defined as:

a power operated device consisting of a car for raising or lowering passengers or goods on a rigid guide or guides fixed on an inclined plane.

The inclinator in the present case seems to fall within that definition. Amongst the provisions of the Occupational Health and Safety Act that were thus extended to the inclinator are those within Part 6 of the Act concerning investigation, improvement notices and prohibition notices.
Ms Clough became the owner of No 116 in about March 2002. Shortly thereafter she was noted by WorkCover as the “controller” of the registered inclinator. Save for a brief period in 2016 when Mr Breen managed to have himself noted as the “controller”, Ms Clough has maintained that status. One of the underlying issues in the case concerns the effect that status has upon the respective rights of the parties under the inclinator easement. As will be seen, much of the dispute centres upon the respective rights of the parties to undertake inspections of the inclinator and carry out works to repair and maintain the inclinator so that it conforms with required standards.
Questions of that nature arose in 2010 after the plaintiffs acquired No 118 in about November 2009. Mr Breen wanted to become involved in matters to do with the maintenance, and upgrading, of the inclinator. He made contact with the manufacturer of the inclinator, and also WorkCover. After WorkCover became involved, it issued a number of Improvement Notices in December 2010 pursuant to s 91 of the Occupational Health and Safety Act. The parties fell into serious conflict in relation to those notices, in particular as to what was required in order for the notices to be satisfied.
The inclinator was largely out of service, and not made available to the plaintiffs, from about May 2011 until April 2015. Whilst the inclinator has been back in service since that time, the plaintiffs allege that the manner in which the inclinator has been brought back into service is contrary to the requirements of the WorkCover notices and amounts to a continuing infringement of their rights under the easements.

The inclinator

Before turning to the evidence concerning the dealings between the parties in respect of the inclinator, it is desirable to say something about the inclinator itself and its operation.
The inclinator easement (together with other easements, including the storage easement) is depicted upon a plan prepared by a surveyor, Mr David Tremain, dated 2 March 2017 (Exhibit C). The plan includes details of the various landings, gates and fences which are associated with the inclinator, and other features of the properties.
Landing No 1 is located towards the lower end of the easement, on the plaintiffs’ side of the track. Landing No 2 is the next landing on the way up the slope. It is also located on the plaintiffs’ side. Landings 3 and 4, further up the incline, are on both sides of the track. Landing No 5 is at the level of the garage for No 118. Landing No 6 is at the street (Moons Avenue) level. The plaintiffs complain that the defendant keeps the gate at this landing locked, thereby preventing them from using the inclinator in conjunction with this landing.
There is also a storeroom landing depicted on the plan. This is at the lowest level of the three level garage and storage building which is located at the top of the properties adjacent to Moons Avenue. There is no programmed inclinator stop at the storeroom landing. That is, the inclinator car controls do not provide for a stop at that point. However, it is possible for the inclinator to be stopped at that point to obtain access to and from the storeroom landing. As will be seen, that access is not currently available because a fence has been erected across the landing. This is another matter the subject of contention between the parties.
The electricity supply for the inclinator is controlled from the defendant’s electricity box, which is located outside the garage for No 116. This garage is at the highest level of the garage/storage building. The garage for No 118 is on the middle level of that building. The plaintiffs complain that they do not have access to the electricity box, which the defendant keeps locked.
The inclinator car can be called using call buttons located at or near to the landings. Once inside, passengers can operate the inclinator car using the buttons on the control panel. The control panel can be locked with a key.
The plan shows the location of the various fences and gates that are currently in place in the vicinity of the inclinator track. The location of the fence on the plaintiffs’ side between landings 1 and 2 is a particular focus of contention. The plaintiffs complain that it unduly narrows the width of the steps that lead down towards landing No 1. The defendant asserts that the fence had to be located in its present position in order to comply with one of the notices issued by WorkCover.
It should also be noted that the plan depicts various other easements which permit the owners of each property to exercise pedestrian access through the levels of the garage and storage building and along a stepped pathway which runs along the side of No 118 not far from the boundary with No 116.

Summary of evidence as to dealings concerning the inclinator

Mr Breen and Ms Dillon did not move into No 118 immediately after their purchase. Instead, in February 2010 they rented the property to Andrew and Maria Cameron. The Camerons remained in occupation until about early June 2011. Mr Breen and Ms Dillon moved in to No 118 in about early July 2011.
However, it appears that in December 2009, shortly after their purchase, Mr Breen and Ms Dillon had a discussion with Ms Clough and her partner, Mr Michael Rose, which included discussion about the inclinator. The terms of the conversation are, as is the case with almost all of the conversations referred to in the evidence, disputed. Nevertheless, it seems likely that the discussion included Ms Clough or Mr Rose speaking about how the inclinator operated, and Mr Breen raising queries about the state of the inclinator and whether it complied with relevant requirements.
On 1 August 2010 Mr Rose sent an email to the plaintiffs which included the following:

Hope all is well with you guys. No problems here with our neighbours – all going very well.
As we discussed during our new year chat, I have arranged for the inclinator to be inspected by Pat Miller of Inclinator and Lift Service Pty Ltd on Tuesday 3rd August. This man comes to us highly recommended.
…
I have asked Pat to report on the inclinators compliance with Australian Standards, required repairs and costs to do so.
…
The inclinator over the past months has deteriorated and now stops intermittently. The rolling of the carriage has also increased dramatically.
The report requested will identify the cause of the problems, whether or not using the inclinator with its current problems is dangerous and a schedule for repairs.
I will forward you a copy of Pat’s invoice and report for our discussion once received.

Mr Breen responded by email later that day. He expressed gratitude to Mr Rose for dealing with the issue and stated that the plaintiffs would of course meet their share of the expenses.
On 20 August 2010 Mr Rose entered into a service and maintenance agreement in respect of the inclinator with Inclinator & Lift Service Pty Ltd. On 31 August 2010 Mr Rose sent an email to Mr Breen which included the following:

In order to get a reduced hourly rate from Pat, we have signed a Service Agreement for his company to maintain the inclinator twice a year. 6 monthly services will cost $300.00 plus GST. At present we pay Sam $130 plus GST per quarter. However Sam knowledge of the inclinator is nothing compared to Pats. Sam really only greases the track and any other works in the past that have been required were undertaken by PR Kings whom as you know, we won’t have on the property again. Should we find it necessary to grease the track more frequently than every 6 months (and this will depend upon our usage), we can consider bringing Sam back for this as necessary.

The email attached an invoice from Inclinator and Lift Services Pty Ltd. Mr Rose requested that Mr Breen pay half of the amount.
On 10 September 2010 Mr Breen sent an email to Mr Rose and Mr Pat Miller, the technician from Inclinator & Lift Service Pty Ltd. The email included the following:

I have attached the installation manual for an automation drive unit it is the most advanced that I could locate and is comprehensively programmable with a 24V control and drive.
…
I have also attached comprehensive draft logic configuration matrix that utilises the design of the above motor unit for semi auto on entry and full automation of the door on exit; it does not however cover the interlock device required by law to be fitted to the landing gate.
…
If this is acceptable at least as a start I will go ahead and purchase a drive unit prior to Thursday, please let me know.

On 14 September 2010 Mr Breen sent an email to Pat Miller, which was copied to Mr Rose. Later that day Mr Rose sent an email to Mr Breen which included the following:

I am surprised that you have contacted Pat without first discussing this in detail with us. We do not want Pat carrying out work on our premises without our authority. This has been an issue in the past with Kings. The maintenance of the inclinator is legally the owners responsibility. Instructing contractors to carry out works on our premises or to even attend to discussion [sic] works to be carried out on our premises is at the end of the day, our responsibility or at the very least, with our agreement. It is also our responsibility to keep you informed of all maintenance works required and their associated costs. Of course as a courtesy, this is done after consultation with you.
Whilst we were aware that you were looking at installing a closing device to the white gate, we have previously stated we will not agree to it being connected in any way to the operation of the inclinator.
We agree that the white gate needs a locking mechanism, we don’t agree with its incorporation to the inclinator’s mechanisms. I may be misinterpreting your email however, it would appear it has impact on the movement of the inclinator and as previously discussed with you, neither Christine or I will agree to this.

The reference to the “white gate” is to the gate that is situated at the landing between the garage for No 118 and the inclinator.
On 15 September 2010 Mr Breen sent an email to Mr Rose which included the following:

I can appreciate your thoughts; Tracey and I are in full commitment of maintaining the lift to the highest possible safety standard that can be reasonably expected.
I do appreciate that the lift is registered with WorkCover with Christine accepting liability as well as the requirement for the work to be done by a competent person (Licensed Lift Mechanic)...
As we have stated in the past we believe that access gate at the upper landing for the lift should be interlocked to the device to prevent an unsafe condition occurring as a result of the lift being called while the gate is open. The auto close device would hopefully satisfy concerns you have voiced previously that the door may be left ajar causing a nuisance to other uses. Without an interlock device I fear we would possibly be introducing a risk that may be greater than the one we are trying to minimise. At this stage I have no immediate intention of continuing a review of fitting an auto drive unit without your agreement nor without an interlock.

On 16 September 2010 Mr Rose responded by email which included the following:

We have looked at all these issues you have raised and the bottom line is, we will not agree to any device connected that will impact on the inclinator and its movement for any reason. I would suggest you simply do not open the white gate until the inclinator has arrived. It is a person [sic] responsibility just like closing your front door. Put an auto closing device on the white gate so that it auto closes if you forget to shut it. But we WILL NOT AGREE to you installing ANY DEVICE, that impacts the inclinator and its movement. I cannot be clearer than this.

At about this time Mr Breen made contact with WorkCover. On 17 September 2010 he sent an email to Mr Terry Fouques, a Senior Inspector. The email included the following:

I understand that 116 Moons Avenue is registered as the owner/controller, currently Christine Clough #9344K1 and is required to approve and direct all works in accordance with the regulations through a licensed lift mechanic.
…
We have requested that the access gate at the landing for the lift be interlocked to the inclinator device to prevent an unsafe condition occurring as a result of the lift being called by another station while the gate is open.
The owner of 116 Moons has made it clear that they will not agree to fit an interlock device as it would create a nuisance to other users of the lift if the gate was left ajar, and would also prevent operators from opening the gate and checking that the runway is clear of any obstruction prior to the lift being called.
I have offered to pay for an automatic drive unit to ensure the door is not left ajar and cause a nuisance to other operators; both parties agree that the drive unit alone triggered by a timing device or external carriage position switch to close the door could still result in the carriage starting to move from the landing prior to the gate being closed. I am reluctant to agree to an auto close unit being fitted without an interlock device as detailed in the standards.
I also feel that opening the landing gate and extending your head to check if the runway is clear would subject a person to the possibility of a serious fall and/or the possibility of being struck by a moving lift, this may very well be introducing a greater hazard than the one you are trying to avoid.
…
Currently I believe that there is an increased risk of an incident as the house is tenanted by a larger family with a younger demographic than has previously been resident, I understand this may include a toddler.

Mr Breen deposed that at about that time he had a conversation with Mr Rose during which he informed him that he had spoken to WorkCover and that they would be happy to give advice. On 20 September 2010 Mr Fouques sent an email to Mr Breen in which he informed him that he would be happy to assist.
On 28 October 2010 Mr Breen sent an email to Mr Rose which included the following:

Within the next week I hope to organise a suitable time for a work cover inspector to visit and carry out an inspection of the inclinator; this has been requested by that body and is a process that I would welcome your involvement in. I would happily make suitable arrangements around your schedule.
Both Tracey and I would still like to meet and discuss any issues as well as the impending inspection process, if suitable for you that meeting would best be this weekend.

On 29 October 2010 Ms Clough sent an email to Mr Breen in the following terms:

I am at a loss to know why WorkCover have contacted you to request an inspection of the inclinator. Would you kindly refer them to me.

It seems that Ms Clough then contacted WorkCover herself and spoke to Mr Dave Shoobert. Mr Shoobert was a Principal Inspector. Mr Shoobert carried out an inspection of the inclinator on 4 November 2010.
By that time, Mr Breen had himself made contact with Mr Shoobert. Mr Breen also retained a solicitor, Mr Graham Kinsey.
On 15 November 2010 Mr Breen sent an email to Mr Shoobert which included the following:

Christine, Michael, my wife and I are planning to meet to discuss your report and the repairs that need to be carried out.
…
We would also like to ask you to hold off sending out notices, as we would like to consult with our solicitor in relation to ownership and the process of registration, this should happen this week.

It seems that Mr Kinsey may have advised Mr Breen to obtain his own report concerning the inclinator. On 18 November 2010 Mr Breen sent another email to Mr Shoobert in which he stated that he had asked the manufacturer, PR King, to provide a report. Mr Breen once again requested Mr Shoobert to hold off sending out notices. On 22 November 2010 Mr Breen requested a further delay in the sending out of notices so that he could obtain further advice from his solicitor and obtain a report “on any essential maintenance or repairs which may be required so that the lift complies with the applicable legislation as advised by the manufacturer”.
On 19 November 2010 PR King had sent a letter to Mr Breen in which it was stated that the inclinator had been installed as a private lift. However, the letter went on to state:

If the “inclinator” is to be shared between two or more properties it should be installed as a public “inclinator”. Please refer to the attached set-out diagram in regards to these requirements.
If you would like quotations on providing the building work required to ensure compliance with a public “inclinator” installation we would be happy to provide you with the details of some builders that are familiar with the work required.

On 26 November 2010 Mr Breen sent an email to Mr Rose which included the following:

It has been the opinion of our solicitor that the 88B does not define any single lot as the owner of the lift and as such advised us to seek professional opinion to its correct status of registration either public or private.
As discussed PR Kings opinion and documents supporting their opinion, we are seeking a second opinion from an independent lift inspector.
This by no means is a suggestion of advice from either Tracey or me.
We would be happy to get together and discuss this!

Mr Rose responded later that day, indicating that they were still waiting on WorkCover’s report before doing anything.
On 1 December 2010 Mr Breen informed Mr Rose that he had arranged for Mr Noel Smith of Pitfield & Associates Pty Ltd to give an opinion on the registration of the inclinator. Mr Breen stated that Mr Smith would carry out an inspection on the afternoon of 3 December 2010.
On 2 December 2010 Mr Rose responded by email in the following terms:

Then I’d suggest you cancel him immediately.
As the owners of the inclinator, we have previously outlined to you, any work carried out on the inclinator be it manual labour or inspections will be arranged by us ONLY. We await WorkCover’s report from the last inspection before progressing any further.
We will not pay for this company’s inspection nor will we waste any more of our time and money in attending yet another inspection at this point.
I am surprised you are taking this path yet again Doug having already apologised for the last episode.

On 3 December 2010 Mr Breen sent an email to Mr Shoobert which included the following:

Unfortunately Noel Smith from Pitfield & Associates is currently unable to carry out an inspection of the lift and give us his opinion.
However, arising from discussions with Noel and Stephen King from PR King’s (lift manufacturer) I am of the opinion that the lift should have been installed as a public lift as it was always intended to be shared and owned by both the properties.
The details of that agreement which includes “cost of works” are found in the 88B document which, was signed by both property owners and registered in 18-01-2002. I will attach that document for your reference as well as a letter from our solicitor detailing our actions.
Would you kindly register both my wife Tracey Jane Dillon and myself Douglas M Breen also as owners of the lift, so we can pursue the necessary advice and improvements to bring the lift to the required standard. I would hope that parties would be given sufficient time to make any necessary arrangements.

On 8 December 2010 WorkCover issued six Improvement Notices pursuant to s 91 of the Occupational Health and Safety Act. The notices were issued by Mr Shoobert. The notices were served upon Ms Clough, who was named in each of the notices as the party in breach. Each of the notices called for certain remedial measures to be taken. These measures were required to be undertaken by 8 March 2011.
In brief, the notices were to the following effect:

Notice 7-217602 concerned a dangerous shear point brought about by the proximity to the track of a gumtree;

Notice 7-217608 concerned a dangerous shear point brought about by the proximity to the track of framework upon the garage located on the property at 114 Moons Avenue;

Notice 7-217610 concerned the need to eliminate unauthorised persons from accessing the inclinator through the gate at landing No 5;

Notice 7-217613 concerned the lack of entry and exit gates at landings 2, 3 and 4;

Notice 7-217615 concerned the need to provide a secure runway enclosure around the accessible sections of the track; and

Notice 7-217617 concerned the lack of a programmed stop and stop/start control switches at the storeroom landing.

The notices were received by Ms Clough on 10 December 2010. Ms Clough sent an email to Mr Shoobert later on 10 December 2010 which included the following:

I refer to your Improvement Notices issued 8/12/2010 and confirm our intention to comply as a matter of urgency. However would you please clarify that on Notice No 7-217613 you mean Levels 2, 118 and 4 and not 2, US and 4.
We have concerns regarding two of the Improvement Notices No 7-217615 and 7-217617.
Notice No 7-217615 – Unguarded inclinator runway within reach
Recommendation:
On the southern side of the track (boundary side with the neighbours), extend the existing handrails with privacy screening and fencing down the boundary line where the track is reachable. This would stop access from the neighbouring property and eliminate the possibility of illegal access to the northern side of the track.
On the northern side of the track (our private property with no access easements), plant screening to restrict access to the reachable track.
Notice No 7-217617 – No programmed control switches on storeroom landing
Recommendation:
Install a 1.8m high screen with locked gate preventing anyone standing on the landing from stopping the inclinator as it passed by, by throwing open the inclinator door. Keys to the gate would be retained for the gate by Michael and I only. In the past we have kept the gate on this landing securely locked because of misuse of the landing and the inclinator by the previous neighbours. We unlocked the gate when the Breen family settle on the property. However, we have now reinstated the lock as an interim measure.
Stopping the inclinator on this landing for access to the storerooms would be carried out by Michael or I only from inside the carriage.
Access to this landing would be provided to the neighbours with Michael or my consent, under Michael or my supervision.
I ask that you look favourably on our recommendations so that we can comply as quickly as practicable as I am concerned that as WorkCover has raised these issues, this may have an impact [on] our present insurance cover.

On 13 December 2010 Mr Shoobert sent an email to Ms Clough in the following terms:

Levels 2, 118 and 4 are correct.
Your request has been considered and in this instance I recommend your alternate measures be implemented.

On 14 December 2010 Ms Clough sent an email to Mr Shoobert. The email attached a “summary of the amendments”. Ms Clough stated that a copy of the summary would be annexed to the Improvement Notices. This document was in the following terms:

AGREED ALTERNATIVE MEASURES FOR IMPROVEMENT NOTICES NO. 7-217615 AND 7-217617 TO BE IMPLEMENTED
Notice No 7-217615 – Unguarded inclinator within reach
On the southern side of the track (boundary side with the neighbours), extend the existing handrails with privacy screening and fencing down the boundary line where the track is reachable.
On the northern side of the track, plant screening to restrict access.
Notice No 7-217617 – No programmed control switches on storeroom landing
Install a 1.8m high screen with locked gate preventing the inclinator from being stopped as it passed by the landing by throwing open the inclinator door
The inclinator only to be stopped on this landing by Michael or I only from inside the carriage.
Keys to the gate to be retained by Michael and I only.

Ms Clough sent an email to Mr Breen on the afternoon of 15 December 2010 which attached the notices (presumably with the document summarising the agreed alternative measures).
It appears that by that time Ms Clough had contacted her property insurer (which provided public liability cover) to disclose the existence of the notices. It further appears that Ms Clough was informed by the insurer that until the notices were complied with she would not be covered for public liability. I take it that this restriction upon cover was confined to claims resulting from the use of the inclinator.
Ms Clough’s email to Mr Breen of 15 December 2010 included the following:

Please find attached WorkCover’s Improvement Notices for your perusal.
I have been in touch with my insurer and am advised by them that until the Improvement Notices have been complied with and the work recommended has been completed, they will not cover us for Public Liability insurance.
To this end, we will be turning off the inclinator effective immediately.
On another note, I believe the sandstone steps on both properties to be dangerous. If you agree to rectify the steps on your property we will agree to rectify those on ours.
…
Should you wish to comply with WorkCover’s notices and pay your share, we can continue with the tree removal scheduled for Tuesday next week. If not, I will cancel Outdoor Tree Services on Friday of this week if I do not hear from you favourably.

The first notice (7-217602) was concerned with a shear point between the inclinator car and a gumtree located on the southern side of the track within 50mm of the car. Even before the issue of the notice, some discussion had taken place between Mr Rose and Mr Breen concerning the removal of the tree. At one point (10 December 2010) it appeared that Mr Breen agreed that the tree should be removed; later (13 December 2010) he suggested that the tree be merely trimmed, not removed. Mr Rose pressed for the removal of the tree. On 17 December 2010 he asked Mr Breen to confirm by 4pm on that day whether he wanted the removal of the tree and whether he was agreeable to paying half of the cost of its removal. Ms Dillon responded to Mr Rose later that day. Ms Dillon’s email included the following:

Michael, Doug not home till after your deadline.
…
Our thoughts on the tree removal are that it has been trimmed back by you guys over the last many years and this provided enough clearance etc for the inclinator and will probably continue to do so. The total removal of your tree is perhaps not entirely necessary however if you feel it needs removal it is your tree and you may pay for its removal.
We will continue as always and as contracted to pay half of all repairs, electricity, insurance and maintenance to the inclinator.

Mr Rose responded by email in the following terms:

The tree is on your property as well as ours and forms part of the Works to be carried out as instructed by the WorkCover Notices. The tree currently does not comply to Australian Standards in relation to clearances.
As per the Easement for Right of Access, as the “persons having benefit of this easement” you must comply with all laws and legal requirements in relation to the works. The tree also sits within the easement.
However, under the circumstances, we will now cancel the tree contractor.

The debate between the parties on this issue continued for some time but the gumtree was eventually removed on about 22 January 2011.
The power to the inclinator was indeed turned off on 15 December 2010. This inflamed matters as between the Camerons on one side and Ms Clough and Mr Rose on the other. Issues had arisen between those parties in about early November 2010 due to the Camerons apparently leaving open the white gate and the door to the garage to No 118. Mr Rose complained about this on the basis that it effectively allowed public access to the inclinator, and created a safety risk.
Ms Clough made enquiries about obtaining public liability cover from a different insurer. The subject of insurance was discussed at a meeting between the parties held on 18 December 2010. The possibility of obtaining a joint policy was raised at that meeting. On 20 December 2010 Ms Clough sent an email to Mr Breen in the following terms:

It was good to clear the air last Saturday and hope that we can resolve all our issues come January once you guys have returned from holiday.
I have been back and forth with the Broker today re our joint policy for Public Liability. By his advice, it is better for us to retain our individual Home & Contents polices including public liability on the inclinator as each policy gives us $20m cover. The joint policy would give us $20m in total and cost us more.
To this end, I have moved insurers and taken out a new Home & Contents policy which includes public liability on the inclinator. That cover is now in place and Michael will activate the inclinator when we return home this evening.
I will advise WorkCover of this which means that the Improvement Notices are once again in play.

Ms Clough also sent an email to Mr Shoobert on 20 December 2010. She advised Mr Shoobert that the inclinator was to be turned back on. She further requested that he “put back into play the Enforcement Notices you have issued”.
The inclinator was put back into operation on 20 December 2010.
On 22 December 2010 Mr Shoobert sent an email to Ms Clough in which he stated that the Improvement Notices “are applicable”.
As noted earlier, the notices were required to be complied with by 8 March 2011. On 24 February 2011 Ms Clough sent an email to Mr Shoobert which provided an update concerning progress. The email noted that in relation to the first notice (7-217602) the gumtree had been cut down, and in relation to the third notice (7-217610) an auto-lock had been installed on the door of the garage to No 118 thereby stopping unauthorised persons from accessing the inclinator entry gate at landing No 5. The email further noted that the second notice (7-217608) was in the process of being complied with, as works were being undertaken on the garage to the property at 114 Moons Avenue to remove the shear point that existed there. As for the fourth, fifth and sixth notices (7-217613; 7-217615; and 7-217617) the email stated:

So that you are aware of recent events, please see below an email I have today forwarded to Doug & Tracey Breen, the owners of 118 Moons Avenue which is self-explanatory. It refers to Notices No. 7-217617, 7-217613 and 7-217615 and as you can appreciate, an agreement on how and what is to be installed needs to be established before any extension is sought.

On 8 March 2011 the defendant sent an email to Mr Shoobert attaching a letter (dated 7 March 2011) which concerned progress towards compliance with the notices. The letter stated that the first and third notices had been complied with, and that the second notice had been partially complied with. The letter continued:

The remaining 3 Notices Nos. 7-217613, 7-217615 and 7-217617 refer to unguarded inclinator track, entry/exit gates and landings. All of this work will be carried out by the one tradesman. We have obtained 3 quotes for the works and are currently in discussion with the neighbours of 118 Moons Ave to nut out the final details ie colour, material, style. Would you be kind enough to allow us 2 weeks to finalise this matter?

Once the agreement has been reached, we will immediately book in one of the three tradesman that quoted on the works. However, please be advised that installation will not be a simple task. The site is rocky, steep and undulating and the length of barrier/fencing/gates, etc. is some 100 metres plus. All materials will need to be brought in by barge and because of the site difficulties, installation will be arduous.
However, once we have agreed with the neighbours on the style of works, we can then establish, with the tradesmen, the date for install and completion.
We look forward to your consideration in this matter.

The email said to have been sent by Ms Clough to the plaintiffs on 24 February 2011 does not seem to be in evidence. However, on 13 March 2011 Ms Clough and Mr Rose sent a lengthy email to Mr Breen concerning the WorkCover notices and boundary fences. This email included the following:

I spoke with Dave Shoobert last week re extending the time on our Improvement Notices. I have yet to receive his formal confirmation however, I believe he will allow us 2 weeks to provide him with the contractor’s completion date for the works that are outstanding. I have notified him of the works that we have already completed to date.
I discussed with Dave your concerns re the storeroom landing and your request to be provided with your own key to this landing gate. He agreed to amend the Annexure to the Notices to allow for this but with strict conditions. The conditions being that the gate on this landing be kept locked at all times and that access to the storeroom landing from within the inclinator is carried out by one of the four of us only. Stopping the inclinator and use of the key to access this landing is not to be permitted by anyone else. Dave recommends that you contact him to confirm the above but hopefully this will resolve the problem.
Michael and I have looked long and hard at the colour of the screens and fencing. I have been to Peak Fencing and can really see no alternative but to stick with the current colour scheme on both properties rather than bring in another colour. The Mist Green seems to us to be the obvious choice. This is reflected throughout both houses as well as the garage and storeroom building. I believe we agreed Doug when you were here last that slats, rather than louvers is the better option for the privacy screens and boundary fence from the river to your boatshed. We did discuss a timber slat fence in this area however after looking at the pros and cons – timber is a lot of work and we would prefer maintenance free fencing.
…
I also spoke to Dave Shoobert re your rumpus room landing. He does not agree with a gate where you suggested Doug ie between the stair handrail and the corner of your boatshed. He wants this landing gated like the other landings allowing the Australian Standard shear point clearance. He also wants the handrail to extend down the stairs past your timber boatshed entrance door. In doing this though we narrow the stairs to 600mm which according to Dave Shoobert is the acceptable width of stairs however, he has given us room to come up with a solution that will not compromise the stairs. Not sure how this is going to be achieved but Michael will have a look at it and maybe the contractors will be able to come up with something or maybe you guys have a suggestion.
…
The following is the suggested extent of works as per the drawing given to you at last meeting and include recommended cost splits:
…
We need to notify Dave Shoobert of our plan and schedule by the 22 March and have booked our contractor to carry out the works by that date. We will need to get the contractor back in for a final measure before then but firstly need to agree on the extent of works and the costs agreement.
Once we have your OK on this, we’ll give St George Fencing and your guy a call to do a final quote.
(emphasis added)

Mr Breen responded to the email on 20 March 2011. His response took the form of coloured mark-ups inserted into the text of the email. It is important to note that Mr Breen indicated that the suggested solution in relation to the storeroom landing was reasonable. As for the other matters, Mr Breen maintained a preference for a “timber look fence” and suggested some alternative colours, and in response to the suggestions concerning the rumpus room landing, he suggested that the gap on the stairs not be narrowed “but fence and gate all the landings including the lower one to avoid creating shear hazards”. In relation to the “suggested extent of works” Mr Breen indicated agreement with some aspects of the works, but indicated opposition to the suggested 1.8m high screening in certain areas.
On 21 March 2011 Ms Clough and Mr Rose sent an email to the plaintiffs which included the following:

We have had an email from Dave Shoobert requesting our schedule for works which is due for submission to him by tomorrow.
After reading your email, it appears we are no closer to a resolution. In fact, we are going backwards and covering again the same subject matter that we resolved and agreed upon verbally at our first meeting a month ago.
Without a mutual agreement to move forward on, we must inform Dave Shoobert that we cannot comply.
…
The simple agreement as we understood it from our initial meeting, was that you would pay for the works to be carried out on your side of the track and we would pay for the works on ours. This included privacy screens on both sides of the track because the screens will benefit both properties equally.
…
Any suggestions you have to bring this to a close would be welcomed. We need a final meeting to bring this to a close. Email just doesn’t cut it.

It seems that on 27 March 2011 there was a meeting between the parties to further discuss the issues. There was discussion concerning runway enclosures and the height of screening. No agreement appears to have been reached concerning the fencing works to take place on the plaintiffs’ side of the inclinator.
On 30 March 2011 Mr Breen sent an email to Mr Rose concerning the fencing issues. Later that day Mr Rose provided his comments on the various matters, including the alignment and heights of fences and handrails. It is clear that many points remained contentious. Mr Rose’s comments included the following:

We are going again in circles here. Compliance, is to erect handrails and a gate as you required on your rumpus landing 225mm in from the inclinator. That is all we have been asked to do. The suggestion to raise the height of the handrail so that the inclinator was “out of reach” I though[t] may resolve the problem. However, going back to 1200 means we need to allow for the appropriate clearance on the landing and stairs. Gating the landing below, does not resolve any of these issues nor does it give us a resolution to the specified clearance allowance. This is a show stopper for WorkCover. If we can’t agree to erect as they have requested regardless of what our opinions are, we are failing to comply with their Orders and as such they will take action.

On 4 April 2011 Ms Clough sent an email to Mr Breen which included the following:

Michael and I have had no response from our email below.
Time is ticking and we have not progressed since our meeting over a week ago.
I suggest we show our willingness to comply to WorkCover’s requirements by carrying out those works that we can and have already agree upon ie the fence from the rock to the taps and the fencing/gate on the storeroom landing. Please confirm your agreement so that I can have the fencer finalise price and time frame.
As you advised Michael and I at our last meeting, all you need to do to comply with WorkCover’s Orders is to erect to existing handrails, gates and extension handrails. Under the circumstances, please arrange for this work to be carried out ASAP. Similarly, we will arrange to carry out the work required on our side of the inclinator track.
This of course will be a more expensive option than if we had been able to agree on all the works to be carried out simultaneously. However, as this is not possible and you have requested mediation for the remaining fencing let’s at least get what we can done now. At least we will have something to offer up to WorkCover until we have come to a final agreement on the rest of the work.
…
Please respond urgently as I will be updating Dave Shoobert this week.

Mr Breen responded by email on 7 April 2011. This email is in the following terms:

I have scheduled a surveyor; hopefully that inspection will occur this week. I am also seeking advice from a conveyance specialist regarding fencing and easements etc. I will notify Community Justice on the 13th if we still have no agreement. You previously had said that workcover would permit no handrail at the rumpus room landing if we could not do? Our concern amongst others is that we are introducing a hazard.

Mr Rose sent an email in response later on 7 April 2011. The email included the following:

I have spoken to Dave Shoobert this morning who is requesting an update as to our compliance. He advises that if we do not comply immediately, he will issue fines at $1,500 per Notice and then re-issue the same 6 Notices. Then the process starts again until compliance is reached.
We need to work quickly to avoid the fines, we can only put WorkCover off for so long before they take matters into their own hands.
As for the rumpus room landing, it is what it is, handrails need to go up or the hazard remains. If you have a question in this regard, Dave Shoobert would welcome your call.
We need at the very least, to schedule in the work we have agreed upon, as I need to advise Dave Shoobert of our circumstance by Monday of next week.

Ms Clough and Mr Rose sent a further email to Mr Breen on 10 April 2011. The email is in the following terms:

We note you have not responded to our email of 7 April, below. We note also that you have not responded to our email of 4 April requesting your formal agreement to carrying out the works that we have mutually agreed upon.
Under the circumstances, tomorrow we must advise WorkCover of our non-compliance to their Notices (which expired on 8 March 2011) or our ability to give a completion date for the work required. This will result in immediate Fines at $1,500 per Notice. We certainly won’t be heading down that path.
We are advised by Dave Shoobert that the only way to halt the immediate issuing of the Fines is to advise him that we are putting the inclinator out of commission until the work required to comply with the Notices has been completed. We are certain you do not want that outcome any more than we do, but with no formal confirmation from you to comply immediately, it seems inevitable.

Mr Breen responded by email later that day. He stated that he certainly did not want any fines and neither did he want the inclinator turned off. Mr Breen stated that he wanted to speak to Mr Shoobert, was chasing up the surveyors, and that his solicitor would need to review any of the proposals. His email concluded with the following:

These items need to be addressed before we agree to any works. I will endeavour to keep you informed as we move through the process, if you decide to turn off the inclinator please ensure the agent is notified.

Ms Clough sent a further email to Mr Breen later on 10 April 2011. The email included the following:

Understand the process you are going through with this however, these matters should have been finalised well before the expiration of the Notices in March of this year.
…
Should it become necessary to decommission the inclinator, we will advise you prior to doing so. The Real Estate Agent and tenants are your responsibility.
We will keep you informed.

The plaintiffs sent a further email to Mr Rose later on 10 April 2011. This email included the following:

Tracey and I have looked at your requests and the process you are managing with an open mind and patience. We have done this with the hope we could continue to build a trusting and communicative relationship. We have noticed some positive developments and appreciate that your efforts may have been motivated similarly.
But, you are fully aware we objected to screening and still have the workcover notices addressed to reflect only your desires. In addition to this you prevented workcover sending notices to us to which prevented our objections, this has unfairly disadvantaging [sic] us. You also obstructed us from inspections which would have clarified some of the issues we are having now. It is only in the last week that you have put forward a proposal that we could possibly even look into taking further. You also now wish us to engage tradespeople to conduct the work for which you had previously organised to do.
I am of the belief that this should not be a process focused on blame, because we simply won’t be able to move forward, which is what we need to do.

Ms Clough and Mr Rose responded by email on 11 April 2011. This email included the following:

The WorkCover Notices do not mention screening. There have been no unfair disadvantages to you or obstructions from us. You initiated the inspection from WorkCover and were in contact with WorkCover prior to their issuing of Notices. Furthermore, we have had no influence in WorkCover’s decision.
No we did not prevent WorkCover sending Notices to you. Notices were sent to us, the Registered Owner of the inclinator. It is not WorkCover’s practice to send elsewhere. Copies of these Notices were forwarded to you upon our receipt.
…
We met here on 27th March for 3 hours to nut out our differences. We came away with more questioning emails achieving nothing.
…
These are not our proposals, these are WorkCover’s instructions that we needed to comply with by 8 March 2011. Today, we are no closer to a resolution or agreement.

Later on 11 April 2011 Ms Clough sent an email to Mr Shoobert, informing him that they had still not resolved all issues with the plaintiffs and thus could not come up with a date for completion, but trusted that he would “look favourably on our circumstances”.
It appears that at about this time the plaintiffs made efforts to have the issues referred to a Community Justice Centre. Ms Clough and Mr Breen appear to have initially agreed with that course. However, it did not proceed after Ms Clough and Mr Rose advised that they did not wish to participate in a mediation.
On 25 April 2011 Mr Kinsey, solicitor, sent a letter to Ms Clough. The letter included the following:

We have been instructed that Workcover has issued an improvement notice which requires certain works to be undertaken to upgrade the inclinator and its surrounds. To comply with the notice, our clients propose that a dividing fence is erected along the common boundary between 116 and 118 Moons Avenue with the cost to be shared between the parties. Further, gates would be installed which will permit the owners of each property to have unrestricted access to the inclinator.
Whilst it is desirable that the Section 88B Instrument be amended to reflect any agreement between the parties, our clients are mindful of the costs involved in amending the document. As a cheaper alternative, we have suggested that the parties sign a Deed whereby they agree to erect a dividing fence along the common boundary with unrestricted access for the inclinator via gates installed in the fence at appropriate points.
…

On 2 May 2011 Ms Clough and Mr Rose responded to Mr Kinsey’s letter. The response included the following:

We have been advised that WorkCover will issue fines in the sum of $1,500 for each Notice that has not been complied with. We have been advised that disengaging the inclinator will be the only way of preventing those fines from being issued and this will be the path we take should WorkCover decide that issuing fines is their intention.
We note your mention of Section 88B Instrument which covers repairs, maintenance and insurance. As improvements are not highlighted on the Section 88B any change to what currently exists would be by mutual agreement and an overall share cost.
We note your clients’ suggestion to erect a dividing fence on the common boundary between 116 and 118 Moons Ave to comply with WorkCover’s Notices with gates on the existing landings permitting access to the inclinator where access currently exists. We have no objection to this where erecting a dividing fence is possible. However, in certain areas along the track, the common boundary cuts into the inclinator easement and in these areas installing a dividing fence would stop or impede the movement of the inclinator. These issues have been highlighted with your clients’ before but not answered.
…
Erecting a boundary fence will only partially resolve the issues surrounding the WorkCover Improvement Notices. We hope to resolve all issues relating to access, boundaries and the upkeep of the inclinator at the same time to avoid both parties incurring too much expense.

It is apparent that by this time Ms Clough had retained her own solicitor, Mr Simpson of Redman Hale Simpson.
On 17 May 2011 the trailing cable of the inclinator broke. The evidence is unclear as to the circumstances in which that occurred, or as to the reason or reasons why that occurred.
By 19 May 2011 Ms Clough had obtained a quote (of about $7,000) for the replacement of the trailing cable. She asked Mr Breen to pay half of the cost. She also told Mr Breen that Mr Shoobert had confirmed that the notices stood, and had to be complied with.
It appears that the plaintiffs made a payment to cover half of the cost of the trailing cable. However, disputes arose between the parties concerning other items of expense, including expenses associated with the repair of damage which Ms Clough claimed was caused by the Camerons.
On 7 July 2011 Mr Kinsey sent a letter to Mr Simpson. A complaint was made that Ms Clough was refusing to proceed to fix the trailing cable until the plaintiffs made payments in respect of those other expenses. The letter included the following:

Our clients are concerned about the Occupational Health and Safety issues. The situation has unfortunately deteriorated to such an extent that they will be left with no alternative but to seek redress through the Courts. Your client has cut off the power to the inclinator and will not restore it until the repairs are done. The failure to authorise the repairs is causing our clients inconvenience and created a dangerous situation.

Ms Clough gave evidence that on about 9 July 2011, shortly after the plaintiffs moved into No 118, she spoke to Mr Breen and told him that until he agreed to carry out the scope of works required under the WorkCover notices, the inclinator would remain out of action.
Ms Clough also gave evidence about a meeting held on the site on 17 July 2011. It seems that various issues were discussed including the heights of the runway enclosures and screening, the colour to be used, and the location or alignment of the fencing. Ms Clough gave evidence that the meeting ended without a resolution or agreement, although the plaintiffs were to come back with a proposal. On 22 August 2011 Ms Clough sent an email to Mr Simpson in which she asked about the plaintiffs’ proposal for the works. On the following day, Mr Simpson sent an email to Ms Clough in which it was stated that Mr Kinsey was still waiting to hear from the plaintiffs but would chase them up.
On 15 October 2011 Ms Clough delivered a letter to the plaintiffs. The letter confirmed that Mr Miller had found the appropriate cable for the inclinator, and would install it soon. The letter also chased up payment of three small amounts (totalling less than $100) claimed to be still outstanding. The letter concluded with the following:

We are currently carrying out the work required on our property to comply with the WorkCover Notices. Do you or do you not intend to comply on your side of the inclinator track? We have had no formal response to this question either from yourselves or from your legal representative. Your formal response is required and essential.

Please also confirm whether or not Mr Kinsey is still acting on your behalf.

On 27 October 2011 Mr Miller installed a new trailing cable, and carried out a service of the inclinator.
On 28 October 2011 Ms Clough sent an email to Mr Shoobert which included the following:

I refer to our telephone conversation today and confirm my advice that the severed black trailing cable to the inclinator was replaced on Wednesday 26 October by Pat Miller of Inclinator & Lift Service Pty Ltd. At the same time, Pat carried out the quarterly service and greased the track so that the inclinator is in good and safe working order although we have not put the inclinator back into service due to the outstanding WorkCover Notices.
Pat has recommended that we run the inclinator at least once a week to keep it in good working order and to protect the track from rust. I note your verbal agreement on this and will keep a diary record of the times and dates this is carried out.
We have commenced work to enclose the inclinator runway as per the WorkCover Notices and note your agreement that we can use the inclinator to carry building materials to and from the street.
…
I confirm your verbal agreement in this regard and will ensure that a diary note is made of these occasions.

I note that on 31 October 2011 Mr Shoobert sent an email to Ms Clough stating that the content of the above email was consistent with their conversation.

On 28 October 2011 Ms Clough delivered a letter to the plaintiffs which included the following:

I have today advised Dave Shoobert that the inclinator’s trailing cable has been replaced and that the inclinator is now in good working order but that it has not been put back into service due to our non-compliance to the WorkCover Improvement Notices.
Pat Miller has advised that we run the inclinator regularly to protect the track and to ensure the inclinator’s mechanisms are not damaged due to non-use. I sought WorkCover’s permission for this and it was granted.
WorkCover has also approved the use of the inclinator to bring down building materials for the retaining wall we are currently working on.

On 23 November 2011 Mr Simpson sent a letter to Mr Kinsey. The letter included the following:

Our clients are extremely concerned that the work, which is the subject of a Workcover Order has now been outstanding for some 12 months.
They propose, at the expiration of 14 days, to undertake the work necessary to comply with those Orders themselves and to recover your client’s share of those expenses from them.
Our clients are becoming anxious to resolve the matter amicably and we would like to hear from you as to your client’s intentions within the 14 days specified.

On 5 December 2011 Mr Kinsey replied to Mr Simpson’s letter. Mr Kinsey’s letter included the following:

…At all times, our clients have been prepared to comply with their obligations under the Section 88B Instrument. They have always been prepared to meet the reasonable costs of upgrading the inclinator to satisfy WorkCover requirements.
An important issue which must be resolved is whether the inclinator is to be used for private or public purposes. WorkCover has different requirements for inclinators depending on whether they are used for private or public purposes. Your clients claim ownership of the inclinator and argue it is used for private purposes. Experts engaged by our clients have advised them that the inclinator will be deemed used for public purposes as it services 2 households. Our clients do not wish to contribute to the upgrading only to have your clients deny them access by shutting off the inclinator.
Our clients strongly believe that it is in the interests of both parties to have the inclinator upgraded to meet WorkCover requirements. However, before proceeding, they request a firm proposal and quote for the upgrading work. Subject to our clients being satisfied that the work undertaken will satisfy WorkCover and the reasonableness of the quote, they would contribute one half of the cost of the upgrade.

The stalemate continued. Ms Clough did not provide any further proposals or quotes.
On 27 November 2012 Mr Kinsey sent another letter to Mr Simpson. The letter included the following:

It is unfortunate that the parties have been unable to resolve the matter. We are instructed that your client is presently using the inclinator for the movement of passengers and building materials and when she is finished the power is switched off.
There is no doubt that the inability of both parties to fully utilise the inclinator is causing considerable inconvenience and hardship. Our clients have been without the use of the inclinator for some 18 months now. Our clients have instructed us to forward three proposals in a “last ditch” effort to settle the dispute.

The proposals which were set out provided for various things to occur; none of them simply provided for works to be done in order to comply with the WorkCover notices. The letter continued:

Your client has cut off the power to the inclinator, except when she chooses to use it herself. Our clients have not had the use of the inclinator for over 18 months. Your client’s failure to authorise the work required by WorkCover to upgrade the inclinator has left our clients without the benefit of the inclinator access which they are entitled to. The pedestrian access they must use is difficult and inconvenient, particularly at night, in the rain, when anybody is unwell or when they must carry items up or down, including shopping.

On 19 December 2012 Mr Simpson sent a letter in reply to Mr Kinsey. The letter included the following:

In summary, our clients are not interested in entering into any arrangement which involves changing the respective legal rights of the parties in relation to the inclinator.
Having said that our clients are anxious to ensure that both parties have access to the inclinator and that it is working safely and in accordance with Workcover requirements.
We enclose herewith an up-to-date Scope of Works which will need to be signed off by your clients so that work necessary to meet Workcover requirements can be undertaken.
Once this is done fresh quotes of the works can be obtained.

Mr Kinsey was in contact with Mr Shoobert in February 2013. It appears that Mr Kinsey sent a facsimile to Mr Shoobert on 1 February 2013. That facsimile does not seem to be in evidence. In any event, Mr Shoobert sent a response to Mr Kinsey in the following terms:

The position is as follows:
The notices were considered complied when the device was taken out of service.
The legislation has changed since the notices were issued.
…
In my opinion due to the time elapsed and the fact that the legislation has changed the lift would require an assessment by a competent person to determine condition and compliance.
The inclinator was installed as a private lift. The intended use would be required before a deciding [sic] if the lift is private or a public lift.

The new legislation referred to by Mr Shoobert is the Work Health and Safety Act2011 (NSW). That Act commenced on 1 January 2012. The Work Health and Safety Act 2011 contained Savings and Transitional Provisions in Schedule 4. Clause 4(2) of the Schedule provides that an improvement notice issued under the Occupational Health and Safety Act 2000 and in force on the commencement of the Work Health and Safety Act (that is, on 1 January 2012) is taken to be an improvement notice issued under the Work Health and Safety Act (see also cl 8 of the Schedule).
On 14 February 2013 Mr Simpson sent a letter to Mr Kinsey, noting that he had not had a reply to his letter of 19 December 2012. Mr Simpson stated that his clients were anxious to resolve the matter and would soon be obtaining quotations for fencing.
Mr Kinsey responded by letter on 8 March 2013. The letter included the following:

Following receipt of your letter, we contacted Dave Shoobert of WorkCover regarding the notices and what works were necessary to comply with the relevant legislation. Mr Shoobert informs us that the notices were considered complied with when the inclinator was taken out of service. Since the notices were issued, the legislation has changed and the inclinator now needs to be assessed by a suitably qualified and competent person to determine its condition and compliance with the relevant statutory requirements.
We note that the inclinator was installed as a private inclinator but in fact, its intended use indicates that it should be registered as a public inclinator.
Before making any decision about contributing to the upgrading works, our clients will require the inspector’s report with the Scope of Works and the approximate costs of the works. Further, the inspector’s report should address the question of whether the inclinator is to be categorised as a public or private inclinator.
Our clients have arranged for Noel Smith of Pitfield and Associates to undertake the inspection of the inclinator. We are instructed that Mr Smith is fully qualified to make an assessment of the inclinator for compliance with the relevant statutory requirements and prepare a report.
The inclinator is currently registered in the name of Christine Clough and Mr Smith will require her consent to enable him to carry out the inspection. He has advised Doug Breen that a letter from your firm would be sufficient authorisation. If your client agrees to this proposal, Mr Smith can carry out the inspection on 26 March 2013.
…
Inspection of the inclinator to allow preparation of a report on its condition, a scope of works and a quote for those works is fundamental. Your client currently controls the initial process by reason of her registration as the owner of the inclinator.

On 12 March 2013 Ms Clough sent an email to Mr Shoobert in which she referred to the matters stated in Mr Kinsey’s letter concerning compliance with the notices. It seems that Ms Clough and Mr Shoobert subsequently had a telephone conversation in which, amongst other things, Mr Shoobert informed Ms Clough that he could not withdraw the notices and that it was still necessary to comply with the Australian Standard. Ms Clough gave evidence that Mr Shoobert told her that if the inclinator was to be put back into service it would be necessary to comply with the notices, and suggested that the required work be completed, and then assessed, before putting the inclinator back into service.
At about that time, Ms Clough served upon the plaintiffs a Fencing Notice pursuant to the Dividing Fences Act 1991 (NSW) in relation to the fencing work at least part of which was considered by her necessary in order to comply with the WorkCover notices.
On 22 March 2013 Mr Kinsey sent two letters to Mr Simpson in relation to the proposed inspection to be carried out by Mr Smith. Requests were made for Ms Clough’s consent to the undertaking of the inspection, and payment of half of the cost. On 26 March 2013 Mr Simpson sent a letter to Mr Kinsey stating that his clients were not prepared to allow Mr Smith access to the inclinator, at least until they had the chance to discuss the matter with Mr Shoobert.
It appears that at about this time proceedings were commenced in the Local Court at Sutherland by Ms Clough against the plaintiffs in relation to their fencing dispute. The parties attended a mediation on 12 July 2013, but the mediation did not result in any resolution. On 8 August 2013 the Local Court granted Ms Clough’s application and ordered that the parties each contribute 50% of the cost for the installation of a 1.8 metre high misty green colour colourbond fence to be installed between 116 & 118 Moons Avenue Lugarno. Ms Clough subsequently obtained an order against the plaintiffs for costs.
On 8 August 2013, after the Local Court decision was handed down, Mr Breen sent an email to Mr Shoobert. The email included the following:

Today we received judgement against us in the Sutherland Local Court to the effect we are required to erect a dividing fence down the boundary between the stairs on our property and the inclinator.
The stairs as you may recall provide ladder access to all parts of the track in case emergency egress is required, the erection of a dividing fence will obstruct the use of a ladder from our side of the inclinator and there are not stairs on the 116 side that can access all parts of the inclinator track. In our experience to date 116 are inclined to lock gates as they do not wish us to be on their property. This situation poses a serious risk particularly taking in account maintenance history and user reports to the frequency of the lift stopping.
…
The lift has been out of service for our family however occupants of 116 have continued to use the lift on a regular basis for moving goods (rubbish, gardening and landscaping supplies as well as groceries and other household items) they are also on occasion transporting Christine’s father. Most of this activity occurs when we are not around it is only by chance that we have been at home on an unplanned unnoticed occasion. Activity is obviously greater than what we have witnessed; we still receive itemised electricity bills that show the usage.
To date the above has not been a great concern as we do not wish to see injury to any of the occupants of 116 as a result of having to transport goods or elderly on what is a considerable number of steep bush stairs.
I think that the situation has gone on long enough and the risk of an injury on either the stairs or the lift is only increases [sic] under the continuing circumstances.
From our discussion I understand that WorkCover needs the lift to meet the public standard before being put back into service.
To which I suggest the following:
(1) A notice to place the lift back into service on the grounds that works begin to convert current private lift into a public, before any dividing fence is installed. I would estimate this could take between 3 and 6 months.
(2) A notice to provide myself with a key to the electrical supply to the lift in case of emergency.

On 11 August 2013 Mr Breen sent a further email to Mr Shoobert in the following terms:

A quick update discussions are ongoing with our neighbour in a collaborative and cooperative way.
We hope to propose a joint plan to have the inclinator running in the short term with a view to implement a longer term solution.
Thank you very much for your help.

Ms Clough gave evidence that there were discussions between herself and Mr Breen on 9 August 2013 and 11 August 2013. She deposed that on 9 August 2013 there was a discussion which included the following:

Mr Breen:   OK Christine you’ve won. We’ll carry out the work on our side of the inclinator with metal slats at 1.8 metres. Let’s get the inclinator back into service. My family is at me to get it done. Can you turn the inclinator on tomorrow?
Ms Clough:   No, not until we comply with the Notices.
…
Mr Breen:   I’ve called Dave (Shoobert) and told him I’ve agreed to complete the work as per original WorkCover Notices issued 2 years ago and I’ve withdrawn my complaint. Dave said he would pass it compliant as a Private Lift.
Ms Clough:   Great, let’s get it done immediately. The sooner we complete the work Doug, the sooner the inclinator can go back into service for us all.

Ms Clough deposed that on 11 August 2013 she had a further conversation with Mr Breen to the following effect:

Mr Breen:   I am going to get you a cheque for the money we owe you for the inclinator service and electricity. We’ve been thinking about putting in our own inclinator. Would you consider giving up your right on the easement stairs on our property so that we can run the new track down the boundary line.
Ms Clough:   Yes, we could look at that possibility Doug but let’s get the inclinator we have into operation first. We all need that access. Its been too long coming.
Mr Breen:   OK.

On 19 August 2013 Mr Shoobert sent an email to Mr Breen in the following terms:

In this instance the court has decided that a dividing fence be erected between the two properties. If this decision is not acceptable to either party I suggest a meeting between both parties to discuss a mutual outcome.

Ms Clough deposed that on that day she had a telephone conversation with Mr Shoobert. She deposed that in the course of that conversation Mr Shoobert said words to the following effect:

I told him [Mr Breen], what I say to you, just get the work done and mend bridges with your neighbour. No need to invite me back. Just do the work and put the inclinator back into service.

It appears that between 19 and 23 August 2013 a contractor engaged by Ms Clough constructed a fence along part of the boundary between the two properties.
Mr Breen deposed that on 24 August 2013 there was a meeting at the plaintiffs’ house attended by Ms Clough and Mr Rose. Mr Breen deposed that the conversation included a conversation to the following effect:

Mr Breen:   I tell you what, why don’t we settle the issue? We will pay the disputed maintenance amounts and any electricity outstanding, even though we haven’t had access to the lift just to settle matters. We do any outstanding works on our side in those notices, you do them on yours. But we get access, as you have, to the lift.
Mr Rose:   Thanks Doug, OK.
Mr Breen:   We can get Noel Smith to inspect the works after instead of WorkCover.

Ms Clough deposed, in relation to the meeting held on 24 August 2013, that there was a discussion which included words to the following effect:

Mr Breen:   Yes, we’re going to get the works done as agreed.
Ms Dillon:   You’re doing aluminium slats?
Mr Rose:   Yes, 1.8mm [sic] high in Mist Green.
Ms Dillon:   What size?
Mr Rose:   65mm with 10mm gaps.
Ms Dillon:   OK, we’ll do the same on our side.
Ms Clough:   Great. Let’s get on with it.
Mr Breen:   Will you turn the inclinator back on now?
Ms Clough:   No, not until we have complied with the notices and had it passed.
Mr Breen:   Who will we get to pass it then?
Ms Clough:   I’m sure Pat Miller can do it. I can ask him. Certainly, we know Dave Shoobert wants no more to do with us.
Mr Breen:   I can ask Noel Smith to inspect it and tell us what we need to do so that we can both use it. We can carry out the work he says and then he’ll pass it.
Ms Clough:   We are NOT having the inclinator inspected by anyone Doug. It was inspected by WorkCover and we simply need to comply with the notices they issued.
Mr Breen:   But wouldn’t you like Noel Smith to pass it?
Ms Clough:   Sure, but that is different to having it reinspected and reassessed again if he’ll assess it as compliant to the WorkCover notices that we have, fine. But that’s it, we’re not having it reassessed.
Mr Breen and Ms Dillon:   OK.

On 7 September 2013 Mr Breen arranged for Mr Sam Matar of Local Fences to attend the site to provide quotations for fencing work.
On 9 October 2013 Mr Breen asked Ms Clough whether he could have access to the inclinator on 11 October 2013 so that Mr Smith could check clearances with Mr Matar. Ms Clough declined that request.
On 21 October 2013 a contractor engaged by Ms Clough erected the inclinator runway enclosure on her side of the track, and gating to the landings at levels 3 and 4. It seems that at about this time a new gate was installed at the landing on the storeroom level.
On 22 November 2013 the plaintiffs sent a letter to Ms Clough which attached drawings of fences and gates to be installed at landings to meet the requirements of the fourth notice (7-217613). Ms Clough was requested to review the drawings and indicate her agreement by signing them.
On 2 December 2013 Mr Rose sent a letter to the plaintiffs in relation to the drawings. The letter included the following:

However the drawings are incomplete in as much as they do not include all works required to be carried out in order for the inclinator to be put back into operation.
Would you kindly provide us with your solution and suggestion with regard to the handrail needed from Level 2 down the stairs which lead to 116 landing together with your proposal for cutting back the edge of 118 landing so that the landing finishes parallel with the inclinator track. These works too are essential and have been discussed on many occasion.

As to (b), I have found that there was no obstruction of Mr Smith in December 2010, and that it was not unreasonable of the defendant to decline the requests made in March 2013 that Mr Smith carry out an inspection, with the cost to be shared by the parties. I am also not satisfied that it was unreasonable in all the circumstances for the defendant to decline to make the inclinator available to Mr Smith in October 2013. Whilst her attitude was rigid, and she was plainly unwilling to countenance any favours to the plaintiffs, it was not demonstrated that Mr Smith, who was to attend the site with Mr Matar and advise on clearances for fences and gates, needed to operate the inclinator for that purpose. I do think, however, that the defendant acted unreasonably in refusing permission in May 2014 for the plaintiffs’ surveyor to use the inclinator to transport his equipment.
As to (c), a considerable amount of evidence was adduced by both sides concerning various incidents involving conflict between them since 2010. These events shed light on the lamentable state of the relationship between the neighbours, but almost all of them do not directly concern the exercise by the plaintiffs of their rights under the two easements. They were not the subject of submissions, save to the extent that the credit of the witnesses was concerned. It is not necessary to make particular findings about these matters. Indeed, it is desirable not to do so, as any prospect that the parties may be able to peacefully co-exist in the future is only likely to be diminished by a public adjudication upon them.
It also follows from the above that the plaintiffs’ claim for unjust enrichment must fail. That claim is for the contributions made by the plaintiffs towards electricity and maintenance costs (totalling about $5,500) in the period from about May 2011 to April 2015. The basis of the claim was that the plaintiffs were unable to use the inclinator in that period. However, that situation was not brought about by conduct on the part of the defendant which amounted to a substantial interference with the plaintiffs’ rights.
I turn now to consider the plaintiffs’ claims that primarily arise from the defendant’s construction of gates and fences in February and March 2015.
These claims involve consideration of the effect of those works upon the plaintiffs’ use and enjoyment of their rights under the inclinator and storage easements. They also involve consideration of whether the works in fact comply with the requirements of the WorkCover notices.
There is little factual dispute concerning the works constructed by the defendant in 2015. There are three principal matters about which complaint is made. These are:

the location (or alignment) of the fence and gates in the area on the plaintiffs’ side particularly between landings 1 and 2;

the erection of the fence across the landing at the storeroom level; and

the location of certain control buttons on the inside of the inclinator enclosure.

The plaintiffs also complain that they have not been provided with keys to the electricity box, the control panel in the inclinator car, and the locks on various gates, including the gate at landing No 6.
There is no doubt that the fence on the plaintiffs’ side between landings 1 and 2 is awkwardly positioned. It runs on the right of the steps that lead down to landing No 1, but does not do so on the edge of the stairs. Rather, it is positioned in some distance (in the order of 20cm) from the edge. It is well shown on the photograph at page 378 of the Court Book (Exhibit G). The fence thus narrows the usable width of the stairs. This causes inconvenience, particularly at the top of the stairs near the corner of the adjacent building (as seen in the photograph at page 379 of exhibit G).
The defendant asserts that the fence is located in that fashion because of the requirements of AS1735.8, in particular cl 5.6(e) which provides:

(e) The runway enclosure adjacent to the car entrance shall be not less than 450mm nor more than 900mm from the car, and the opposite side shall be not less than 225mm nor more than 900mm from the car, and affording a flush even surface without projections; however, for private installations, this clearance shall be not less than 225mm nor more than 900mm on each side of the car.
NOTE: Where structural difficulties obtain, reduced clearances under (e) above may be permitted by the Statutory Authority.

The defendant asserts that as the inclinator is a private installation, a minimum distance of 225mm is required between the inclinator car and the runway enclosure adjacent to the car entrance at landing No 1.
Ms Clough gave evidence in cross-examination that she discussed the issue with Mr Shoobert, who insisted that there be compliance with the Australian Standard. She said that the only concession he was prepared to make was to measure the 225mm from the “car itself” (presumably the surface of the door) rather than from the handle to the door, to try to get a wider staircase. I accept that evidence. I note that the email sent by the defendant on 13 March 2011 refers to discussions with Mr Shoobert about the matter, as does the email sent by Mr Rose on 30 March 2011. I note further that Mr Breen himself (in an email he sent to the Council on 26 March 2015) spoke of seeking permission from WorkCover for reduced clearances in the area between landings 1 and 2.
In these circumstances, I am unable to conclude that the construction of the fence and gates in that area, and in particular at the landings themselves, amounts to a substantial interference with the plaintiffs’ rights under the inclinator easement. The terms of the easement require the parties to comply with all laws and legal requirements, and in my opinion the location of the fence and gates can be seen as a necessary product of the requirement to comply with the unsatisfied WorkCover notices, and thereby bring the inclinator back into service. Both WorkCover notice 7-217613 and WorkCover notice 7-217615, which concern gates and runway enclosures, specifically refer to AS1735.8.
It was suggested that the location of the fence itself gave rise to dangers. That may be so. However, as recognised by Mr Breen, that would be a matter to take up with the regulator (now SafeWork NSW). The plaintiffs are free to do so. After all, they have proprietary rights under the easement in relation to the inclinator. It might be possible to obtain permission from SafeWork NSW for the installation of a different set of fences and gates, or perhaps handrails. There is no reason why the plaintiffs could not seek to formulate such a proposal, and advance it. If the approval of the regulator was obtained, there would be no reason why the plaintiffs (acting consistently with their obligations to exercise their rights reasonably so as not to unduly interfere with the enjoyment by the defendant of her rights) could not install a new set of fences and gates, at their own cost.
I have come to a different conclusion in relation to the fence that was erected in March 2015 across the landing at the storeroom level. This fence can be seen in the photograph at page 346 of exhibit G. In my opinion, this does amount to a substantial interference with the plaintiffs’ rights under the inclinator and storage easements. It effectively precludes any use of the landing at the storeroom level in order to gain access to the inclinator.
It cannot be said that the construction of this fence was necessary in order to comply with the unsatisfied WorkCover notices. The relevant notice (7-217617) called for the provision of a programmed stop at the storeroom landing, and provision of stop/start control switches at that landing. These measures were called for to ameliorate risks arising from the lack of those features in respect of the landing. Even the alternative measures agreed with Mr Shoobert in December 2010, and further amended in March 2011, involved a lockable gate that would enable access between the inclinator and the storeroom landing.
The defendant accepted in cross-examination that it was possible to stop the inclinator adjacent to the storeroom level, and that it would be possible to board or disembark from the inclinator at that level if there was a gateway. A gateway had in fact been in place there for many years. Ms Clough said she kept the gate locked. Further, as part of the fencing and other works carried out by the defendant in 2013, a new gate was installed there. Ms Clough accepted that the only purpose of the gate would be to allow access to or from the inclinator.
Nonetheless, Ms Clough steadfastly maintained in cross-examination that there was no landing for the inclinator at the storeroom level. I found that evidence unbelievable. There plainly is a landing for the inclinator at the storeroom level, even if it is inadequate. WorkCover notice 7-217617 refers in terms to the “storeroom landing”, and called for measures to be taken to make it safer. The email sent by the defendant and Mr Rose on 13 March 2011 also refers in terms to “the storeroom landing”. So, too, does Mr Simpson’s letter of 14 April 2014.
Ms Clough did accept that the fence that has been erected is “precisely the opposite” of the measures referred to in the WorkCover notice. That was also the view of Mr Tibbitts, an expert called by the defendant. In my opinion the requirements of that notice (even as amended) have not been satisfied. It is no answer to the failures to provide a programmed stop and stop/start controls to say that removing the area as a landing obviates the need for the stop and the controls. The regulator might be content to take no further action in that situation, but I do not think it can be said that the requirements of the notice have been met. Neither can it be said that the agreed alternative measures have been implemented. The defendant has plainly failed to comply with her obligation to comply with all laws and legal requirements in relation to the inclinator as far as notice 7-217617 is concerned.
The defendant sought to explain that the fence was erected because it was not possible to install an additional controlled stop on the inclinator’s computer, and further that an upgrade of the inclinator to allow an additional stop could only be done at a “massive cost”. Ms Clough did not specify what that cost was likely to be. Mr Hoare (an expert called by the plaintiffs) agreed that it would be “an expensive option”. Ms Clough described the erection of the fence as a “work-around”.
Ms Clough seemed to suggest that WorkCover would only permit a stop at the storeroom level to be used if only the defendant (and Mr Rose) had the key and were able to control the use of the landing, but Mr Breen would not agree to that. However, that evidence overlooks the fact that in March 2011 there were discussions with Mr Shoobert in which he expressed agreement to Mr Breen being provided with his own key to the gate at the landing. This is referred to in the defendant’s email sent to Mr Breen on 13 March 2011. Further, Mr Breen signified his agreement to that suggested solution in his email in response sent on 20 March 2011.
In the light of this evidence, I conclude that the defendant’s “work-around” solution was one designed to suit herself and deprive the plaintiffs of the ability to make use of the inclinator in conjunction with the storeroom. In my opinion, the defendant acted unreasonably in this regard and, as I have said, her conduct amounts to a substantial interference with the plaintiffs’ rights under the inclinator and storage easements. I should add here that insofar as the defendant was proceeding on the basis (as she said in cross-examination) that the inclinator easement does not provide the plaintiffs with a right of access to the storeroom, she was in error.
There is evidence that on some of the landings on the plaintiffs’ side of the track (landings 2, 3 and 4), the lift controls have been placed inside rather than outside the runway enclosure. This means that it is necessary to reach in towards the path of the inclinator car to operate the controls, which include an emergency stop button. I accept that this situation raises an issue of safety, as stated by Mr Hoare, even though, according to Mr Tibbitts, it was compliant. The reason for that location of the lift controls is not explained in the evidence. In the absence of any explanation, and having regard to the evidence that landing No 3 is the landing most frequently used by the plaintiffs, I am prepared to find that the location of the lift controls does amount to a substantial interference with the plaintiffs’ rights under the inclinator easement.
The remaining aspects of the nuisance case are based on allegations of obstruction of the plaintiffs’ construction of a fence in May 2014, the placing in November and December 2014 of barriers at landings 2, 3 and 4 on the plaintiffs’ side of the track, and unreasonable opposition to the plaintiffs’ development application.
I do not think that these allegations take the matter any further.
There was clearly considerable conflict on the site on 26 May 2014 when Mr Breen and Mr Matar attempted to install various posts for fencing. I have already rejected the broader allegation made by the plaintiffs that the defendant obstructed them in carrying out the works required by the WorkCover notices, and concluded that it was not unreasonable for the defendant to herself take steps to have the work performed. Moreover, the evidence suggests that the fencing proposed by the plaintiffs, notably that proposed to be installed at and between landings 1 and 2, would not have satisfied the clearances required by the Australian Standard.
As for the installation of the barriers (or, as the defendant would have it, the safety barricading) in November and December 2014, these actions seem to me to fall within the category of conduct that, in the circumstances that prevailed until 4 April 2015, does not amount to a substantial interference with the plaintiffs’ rights, even if such conduct would otherwise do so.
I do not think there is any substance in the complaint about unreasonable opposition to the plaintiffs’ development application. The application was ultimately refused by the Council. It was not explained why the defendants’ opposition was unreasonable. The defendant took the view, correctly I think, that the works proposed by the plaintiffs would not comply fully with the requirements of the WorkCover notices.
I turn then to the trespass claim. It is alleged that the fence constructed by the defendant, insofar as it is on No 118, constitutes a trespass because the plaintiffs did not consent to the construction. The fence, where it extends down from landing No 3 does appear from the survey evidence to be upon the plaintiffs’ land. However, as submitted by the defendant, the erection of the fence was something required by the WorkCover notices, and thus by the terms of the easement which the plaintiffs seek to enforce. The trespass claim is not made out.
The next matter to consider is the plaintiffs’ claim that the defendant failed to carry out the works required by the WorkCover notices in a way that complies with the rights and obligations under an agreement made in 1996 between the predecessor owners of No 118 and No 116. This claim, which was not addressed at all in submissions, seems to me to lack any foundation. The defendant was not a party to the agreement, and is not put in that position merely by becoming the owner of No 116.
I referred earlier to the fact that some aspects of the defendant’s conduct, which would ordinarily amount to a substantial interference with the plaintiffs’ rights under the inclinator easement, have continued after 4 April 2015. Since that time the inclinator has been back in service, and it appears that the defendant has not turned the inclinator off. The inclinator continues to be regularly serviced by Inclinator & Lift Service Pty Ltd, and I am not satisfied that this is inadequate. However, some of the defendant’s conduct which has continued since April 2015 amounts in my view to a substantial interference with the plaintiffs’ rights. In particular, the defendant remains unwilling to make certain keys available to the plaintiffs.
Notwithstanding the fact that the defendant (at least at present) remains the only “controller” noted on the registration of the inclinator, I do not consider it reasonable for the defendant not to provide the plaintiffs with keys to the electricity box, and any locks on the gates at landings. If those keys are not provided, the plaintiffs’ ability to use the inclinator can be removed or restricted by the defendant’s locking of gates. It was not suggested that the defendant, as the controller, was under any legal constraint that would preclude the provision of those keys. (I assume that the plaintiffs retain the key to the control panel of the inclinator car, which was obtained in September 2014.) There is evidence that at least one lock (being the lock on the gate of landing No 6) is generally kept locked by the defendant.
The statutory regime does not create any position of controller as such. Rather, a person who has control of an item of plant of a specified type may apply to register the plant (see cl 113 of the Occupational Health and Safety Regulation 2001, which continues to apply). It may be that the regulator has so far maintained a policy of noting only one person as the controller of an item of plant, but that “status” does not itself authorise the taking of actions which would amount to an infringement of the plaintiffs’ rights under the inclinator easement.
The terms of the easement do not confer rights upon the defendant that are superior to those of the plaintiffs in respect of the use and maintenance of the inclinator. I do not see it as consistent with the terms of the easement that only one party possess keys if that possession confers an ability to restrict the other party in relation to the use and maintenance of the inclinator.
The easement contemplates a degree of co-operation between the owners of the benefitted lots and, as mentioned earlier, use of the easement is qualified by the concept of reasonable use. It is regrettable that the conflict and bitterness which has arisen between the owners suggests that a state of co-operation is unlikely to emerge, but it needs to be recognised that the parties’ respective rights under the easement cannot be properly enjoyed otherwise.
It was submitted that only one person should have access to the electricity box, for safety reasons. Some evidence was adduced, notably from Mr Tibbitts, on that subject. I agree that in some circumstances more than one person holding keys to the electricity box could produce hazards, for example when it is necessary for the inclinator to be disconnected from the electricity supply whilst work takes place on the track. However, in other circumstances possession of the key by only one person could conceivably produce its own hazards, for example if there is a pressing need to disconnect the power but the holder of the key is not available. It seems to me, in the absence of an alternative regime agreed by the parties, that a key to the electricity box should be supplied to the plaintiffs. Overall, I do not consider that it is reasonable for the plaintiffs to be denied access to the electricity box. No reasons were advanced as to why keys to the locks at gates on the landings should not be provided to the plaintiffs.

e) Relief

It remains to consider the question of what relief should be given to the plaintiffs in light of the conclusions I have reached.
I have found that the defendant has acted unreasonably, and substantially interfered with the plaintiffs’ rights under the inclinator and storage easements, by:

failing to comply with the requirements of WorkCover in relation to notice 7-217617 concerning the storeroom landing, and instead erecting a fence across the landing at that level;

locating the lift controls in respect of landings 2, 3 and 4 on the plaintiffs’ side, inside the runway enclosure;

failing to provide the plaintiffs with a key to the electricity box which houses the switch for the inclinator; and

failing to provide the plaintiffs with keys to the locks on gates at landings.

As to (1), the plaintiffs seek orders requiring the defendant to remove the fence, install a 1.8m gate, and otherwise restore the storeroom landing to its former condition, at the defendant’s expense (see proposed Short Minutes of Order paragraph 13). The plaintiffs also seek an order that the defendant do certain works in relation to the storeroom landing, including the installation of a “programmable stop”, with the costs to be shared by the parties (see proposed Short Minutes of Order paragraph 14). The defendant submits that the suggested orders should not be made because they invite the Court to “step into the shoes of the regulator” without evidence that the proposed works would be safe and approved by SafeWork NSW. It is also said that the orders are “contrary to the previous directions of WorkCover”.
I do not agree that the Court would be assuming the role of the regulator. On the contrary, the purpose of such orders would be to remove work done that infringes the plaintiffs’ rights under the easements, and to have works done as required both by WorkCover and the terms of the inclinator easement. However, the terms of any orders should go no further than require the defendant to implement the agreed alternative measures, as further amended in March 2011 (i.e. the installation of a gate at the storeroom landing and the provision of a key to the plaintiffs). Mr Breen said at the time that he regarded that suggested solution to be reasonable. Such orders would not impinge upon the functions of SafeWork NSW, which will be able to take whatever action it deems appropriate within the scope of its powers in relation to the works. I do think, however, that it would be appropriate to order that SafeWork NSW be informed of the works and invited to carry out an inspection.
As to (2), the plaintiffs seek an order to the effect that the defendant at her own expense install lift controls (or call stations) on the outside of the runway enclosure at landings 2, 3 and 4 on the plaintiffs’ side of the track (see proposed Short Minutes of Order paragraph 7). I think an order to that effect should be made. I do not accept the defendant’s submission that this order should not be made because it invites the Court to step into the shoes of the regulator without evidence that the proposed measure would be safe. There is no evidence to suggest that the regulator wanted the controls located inside the runway enclosure. Moreover, the evidence suggests that safety would be enhanced by the measure. Again, however, it would be appropriate to order that SafeWork NSW be informed of the works and invited to carry out an inspection.
As to (3), I consider that, in the absence of an agreed alternative, an order should be made that the defendant provide to the plaintiffs a key to the electricity box (cf proposed Short Minutes of Order paragraph 9). I have already dealt with the concern raised by the defendant as to safety. I note that no suggestion has been made that the plaintiffs would use the key in other than a proper and responsible manner.
As to (4), I consider that an order should be made to the effect that the defendant provide keys to the gates at landings (cf proposed Short Minutes of Order paragraph 5). The defendant submitted that she had previously offered the key to the gate at landing No 6, but this offer had been declined by the plaintiffs. In my view, whether that be so or not, the order should be made. The fact remains that the plaintiffs do not presently have the key, and the defendant ordinarily keeps the gate at landing No 6 locked. Even though the other gates are not generally locked, the defendant should not retain the ability to lock them and thereby restrict the plaintiffs’ ability to use the inclinator.
I do not think that any more extensive relief is called for in the circumstances. In particular, the general restraints sought by the plaintiffs concerning obstruction of use and switching off the electrical power do not seem appropriate given that the inclinator has been in consistent operation for more than two years.
That then leaves the question of damages for the infringements I have found.
Since April 2015 the plaintiffs have suffered the inconvenience of not being able to access the inclinator at the storeroom landing. Access to the storeroom is otherwise only available from the stairs that lead up from the houses below, or down from the spiral staircase located within the garage/storage building. Mr Breen’s evidence about this inconvenience was not challenged. It appears that the inability to use the storeroom via the inclinator caused the plaintiffs to purchase a shed in April 2016 for $1,248.00. The shed takes up some of the space in the plaintiffs’ yard.
The plaintiffs have also had to put up with the inconveniently located lift controls, although I regard this as a relatively minor matter in terms of the assessment of damages.
There was little evidence about any particular inconvenience suffered by the plaintiffs due to not having a key to the gate at landing No 6. I accept that it would on occasion be more convenient for the plaintiffs (or their guests) to access the inclinator at the street level rather than at the garage for No 118. The lack of a key to the electricity box does not seem to have caused in significant problems for the plaintiffs since April 2015. Ms Dillon accepted that as far as she knew, the inclinator has not been switched off at any time since then.
Taking all of these matters into account (and also the defendant’s unreasonable refusal in 2014 to allow the plaintiffs’ surveyor to use the inclinator to transport his equipment), I consider that an award of damages in the total sum of $6,000 would be appropriate.
I have considered the plaintiffs’ submission that an award of exemplary damages should be made. I accept that the defendant’s conduct in replacing the recently installed gate at the storeroom landing with a fence might, if viewed in isolation, be seen as high handed or cavalier. However, I think that the defendant’s conduct in this regard should be seen in the broader context of the on-going impasse concerning the doing of works to satisfy the WorkCover notices. The plaintiffs were, as I have found, largely responsible for that situation, and were not acting in accordance with their obligations under the inclinator easement. Whilst that conduct does not justify Ms Clough’s actions concerning the storeroom landing, it leads me to conclude, on reflection, that those actions ought not be regarded as of such a character as to warrant an award of exemplary damages.
The Court will order:

That within 60 days of the making of this order the defendant, at her own expense, remove the fence that is currently in place across the landing referred to in WorkCover notice 7-217617 as the storeroom landing, and install a lockable gate across the landing;

That upon completion of the works in accordance with order 1, the defendant forthwith provide to the plaintiffs a key to the lockable gate;

That within 60 days of the making of this order the defendant, at her own expense, install lift controls (also known as call stations) on the outside of the inclinator runway enclosure on the side of the track closest to the 118 Moons Avenue, Lugarno property, at landings 2, 3 and 4 as shown on the plan prepared by Mr David Tremain dated 2 March 2017 (which became Exhibit C in the proceedings);

That within 14 days of completion of the works in accordance with orders 1 and 3, the defendant notify SafeWork NSW of the nature of the works, and invite SafeWork NSW to undertake an inspection of the inclinator;

That within 7 days of the making of this order, the defendant provide the plaintiffs with a key to the electricity box, located near the garage for the 116 Moons Avenue, Lugarno property, which contains the power switch for the inclinator that services the properties at 116 and 118 Moons Avenue, Lugarno;

That within 7 days of the making of this order, the defendant provide to the plaintiffs keys to any locks on any of the gates at the landings for the said inclinator;

That the parties have liberty to apply in respect of the execution of orders 1 to 6 above;

That judgment be entered for the plaintiffs against the defendant in the sum of $6,000.

If agreement cannot be reached as to the appropriate order for costs, the parties may serve and provide to the Court brief written submissions concerning costs. A direction will be made for any submissions to be provided to my Associate by 2 February 2018. The Court will proceed to deal with costs on the papers unless either party indicates that a further oral hearing is necessary.

**********

Decision last updated: 05 December 2017

Medium Neutral Citation:	Breen v Clough [2017] NSWSC 1681
Hearing dates:	9-12, 16 October 2017
Date of orders:	05 December 2017
Decision date:	05 December 2017
Jurisdiction:	Equity
Before:	Darke J
Decision:	See paragraphs [259] and [273].
Catchwords:	LAND LAW – easements – substantial interference with rights under easements – where neighbouring properties have reciprocal benefits and burdens under easement to enable shared use of inclinator – where inclinator registered in defendant’s name with regulator – regulator issued notices requiring works to be done to inclinator – whether defendant’s conduct in response to notices constituted a substantial interference with the plaintiffs’ rights under the easement LAND LAW – easements – substantial interference with rights under easements – remedies for interference – damages – damages awarded due to inability to use storeroom landing of inclinator – damage for expenses and inconvenience – exemplary damages claimed – exemplary damages not warranted LAND LAW – easements – construction of easements – general principles of construction – where easement incorporates statutory terms of right of access – where easement imposes obligation to “ensure proper maintenance, repair and replacement” – consideration of parties’ rights and obligations under easement EQUITY – equitable remedies – injunctions – plaintiffs seek a range of injunctions against defendant in relation to easement for inclinator – appropriate to order mandatory injunctions requiring replacement of fence with gate, provision of keys, and relocation of control buttons for inclinator
Legislation Cited:	Conveyancing Act 1919 (NSW), s 181A, Sch 8 Occupational Health and Safety Act 2000 (NSW), ss 91, 135, Pt 6 Occupational Health and Safety Regulation 2001 (NSW), cll 83, 113 Work Health and Safety Act 2011 (NSW), Sch 1, cll 3-6, Sch 4, cll 4, 8 Work Health and Safety Regulation 2011 (NSW), Sch 18B, cl 31 Work Health and Safety Regulation 2017 (NSW), cll 10(1B), 246, Sch 5, Pt 2
Cases Cited:	Butler v Muddle (1995) 6 BPR 97,532 Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580 Powell v Langdon (1944) 45 SR (NSW) 136 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Zenere v Leate (1980) 1 BPR 97,029
Category:	Principal judgment
Parties:	Douglas Martin Breen (First Plaintiff) Tracey Jane Dillon (Second Plaintiff) Christine Mae Clough (Defendant)
Representation:	Counsel: Mr C Ireland with Ms T Davy (Plaintiffs) Mr D O’Connor with Ms F McNeil (Defendant) Solicitors: Koutzoumis Lawyers (Plaintiffs) Redmond Hale Simpson (Defendant)
File Number(s):	2014/343553
Publication restriction:	None