Brown v Jackson

Case [2015] QSC 355

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Jackson [2015] QSC 355

PARTIES:

MORTON DOUGLAS BROWN

(Applicant)

v
FIONA JACKSON

(Respondent)

FILE NO/S:

Brisbane No 10002 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2015

JUDGE:

Boddice J

ORDER:

The parties are to prepare minutes of orders in accordance with these Reasons.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – where the respondent owned both the property on which her house was located, and the property on which the applicant’s driveway was located – where a grant of easement entitled the applicant to a right of way over the property on which his driveway was located – where the respondent had constructed new gate at the entrance to the easement, on the basis of security concerns – where the applicant complained about the construction of that gate – whether such a construction was permitted by the terms of the grant of easement – whether the new gate constituted a real, serious and substantial interference by the respondent with the applicant’s right of way

Stewart v Cooper [1986] Tas R (NC) N1

Trewin v Felton [2007] NSWSC 851

COUNSEL:

S McNeil for the applicant

D J Campbell QC, with B A Hall, for the respondent

SOLICITORS:

Short Punch & Greatorix for the applicant

Minter Ellison Gold Coast for the respondent

  1. Morton Douglas Brown lives in a large residential property at Southport in the State of Queensland.  He has been the registered owner of the property for 25 years.  Fiona Jackson is the registered owner of an even larger residential property located adjacent to Mr Brown’s property.  She purchased that property in 2013, for use as her family home.  At present, however, she and her family spend a considerable period of each year out of the country, due to her husband’s work commitments. 

  2. Although Mr Brown and Ms Jackson are neighbours, relations between them are far from neighbourly.  A dispute has arisen over Mr Brown’s driveway, which is situated on Ms Jackson’s property but subject to an easement granting Mr Brown use of it to access his property.  Mr Brown’s property is otherwise landlocked.  In July 2015, Ms Jackson arranged for the installation of an electronically-operated aluminium gate across the entry to Mr Brown’s driveway.  Prior to its construction, pedestrian and vehicular access down Mr Brown’s driveway was unimpeded.

  3. Mr Brown seeks an order for the removal of the gate installed by Ms Jackson and an injunction restraining Ms Jackson from installing any further obstruction across the driveway to his property.  At issue is whether Ms Jackson has any legal entitlement to install the gate and, if so, whether that gate so constructed constitutes a substantial interference with Mr Brown’s use of the easement.  A subsidiary issue is whether proposed repaving of Mr Brown’s driveway by Ms Jackson, in pavers consistent with her own driveway, would constitute a substantial…

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AGLC
Brown v Jackson [2015] QSC 355
Case
[2015] QSC 355
Decision Date

CaseChat Overview and Summary

In the case of Brown v Jackson, Mr Brown sought an order for the removal of a gate installed by Ms Jackson on his driveway and an injunction to prevent further obstructions. The crux of the dispute was whether Ms Jackson had the legal right to install the gate and whether its construction substantially interfered with Mr Brown's easement rights. Additionally, the court had to consider whether Ms Jackson's proposed repaving of the driveway, using materials that match her own driveway, would constitute a substantial interference with Mr Brown's use of the easement.

The legal issues before the court included determining the extent of Ms Jackson's rights in relation to the installation of the gate on Mr Brown's driveway, whether the gate constituted a substantial interference with Mr Brown's easement, and if the proposed repaving by Ms Jackson would similarly interfere with Mr Brown's rights. The court examined the terms of the grant of easement, the nature of the interference, and the necessity and proportionality of Ms Jackson's actions in light of her security concerns.

The court found that Mr Brown had an unambiguous right of access to the land covered by the easement and that the gate installed by Ms Jackson constituted an obstruction. The court ruled that the gate must be removed immediately and that Ms Jackson was prohibited from installing any further obstructions. The court also determined that there was insufficient evidence to justify Ms Jackson's proposed repaving of the driveway, which would have interfered with Mr Brown's use of the easement. Consequently, Mr Brown was granted the relief he sought, and Ms Jackson's application was dismissed.

The court ordered that Ms Jackson pay Mr Brown's costs of both applications, including any reserved costs, and directed the parties to prepare minutes of orders in accordance with the reasons provided.

Orders

Orders of the court

The parties are to prepare minutes of orders in accordance with these Reasons.

Background

Background to the litigation

Mr Brown seeks an order for the removal of the gate installed by Ms Jackson and an injunction restraining Ms Jackson from installing any further obstruction across the driveway to his property. At issue is whether Ms Jackson has any legal entitlement to install the gate and, if so, whether that gate so constructed constitutes a substantial interference with Mr Brown’s use of the easement. A subsidiary issue is whether proposed repaving of Mr Brown’s driveway by Ms Jackson, in pavers consistent with her own driveway, would constitute a substantial interference with Mr Brown’s use of the easement.Background The properties in question are located in a quiet residential area of Southport, close to the Nerang River. Both properties have large grounds. Each has its own tennis court and swimming pool. Electronically-controlled gates at the entrances to each property prevent vehicular or pedestrian access without the prior consent of the owner. The Jackson property is surrounded by a substantial fence. On the boundary adjacent to Mr Brown’s driveway, this fence is 2.1 metres high. It is constructed of masonry pillars with spiked metal railing inserts. The Jackson property and Mr Brown’s driveway are separated both by this boundary fence, and by shrubbery adjacent to the fence. At Mr Brown’s end of the driveway, which is paved and over 40 metres in length, there was a set of large iron gates. Although Ms Jackson has owned her property since 2013, she did not take any steps to limit vehicular and pedestrian access along Mr Brown’s driveway until July 2015. The impetus for taking such steps is said to have been a burglary at Mr Brown’s property. The description of that incident suggests the burglars were at the property for some considerable period of time, having previously made visual observations utilising Mr Brown’s driveway. The property was ransacked, and one of Mr Brown’s vehicles was used to transport a large quantity of property stolen by the perpetrators. Evidence Ms Jackson and her husband each swore affidavits. Mr Jackson also gave evidence at the hearing. Each said the burglary, together with other events on and around the Gold Coast, caused them to have significant concerns for the safety of their family. As a result, they have undertaken substantial upgrades to the security of their property. A significant number of cameras have been installed to provide CCTV surveillance for all of the boundary fences. They also installed security lighting and a sophisticated alarm system. Despite these security arrangements, Ms Jackson and her husband remain concerned about the risk criminal offenders may use Mr Brown’s driveway to access their property via its adjoining boundary. The substantial length of the driveway means offenders could access Ms Jackson’s property from the driveway without being observed from the street itself. The gate that has been constructed addresses this security concern. It will prevent uninvited visitors accessing Mr Brown’s driveway, either on foot or by car.

Evidence

Evidence Before The Court

Although Ms Jackson has owned her property since 2013, she did not take any steps to limit vehicular and pedestrian access along Mr Brown’s driveway until July 2015. The impetus for taking such steps is said to have been a burglary at Mr Brown’s property. The description of that incident suggests the burglars were at the property for some considerable period of time, having previously made visual observations utilising Mr Brown’s driveway. The property was ransacked, and one of Mr Brown’s vehicles was used to transport a large quantity of property stolen by the perpetrators. Evidence Ms Jackson and her husband each swore affidavits. Mr Jackson also gave evidence at the hearing. Each said the burglary, together with other events on and around the Gold Coast, caused them to have significant concerns for the safety of their family. As a result, they have undertaken substantial upgrades to the security of their property. A significant number of cameras have been installed to provide CCTV surveillance for all of the boundary fences. They also installed security lighting and a sophisticated alarm system. Despite these security arrangements, Ms Jackson and her husband remain concerned about the risk criminal offenders may use Mr Brown’s driveway to access their property via its adjoining boundary. The substantial length of the driveway means offenders could access Ms Jackson’s property from the driveway without being observed from the street itself. The gate that has been constructed addresses this security concern. It will prevent uninvited visitors accessing Mr Brown’s driveway, either on foot or by car. Mr and Mrs Jackson’s contention that limiting access to the driveway will assist in the security of their adjoining boundary fence is supported by a security expert, Francis Populin. He gave evidence that installation of a gate at the start of Mr Brown’s driveway would further enhance security of the perimeter of the Jackson property. Ms Jackson says the driveway also presents a safety hazard in its present form. The existing paving is over 20 years old and is uneven. Mr Brown and visitors to his property may fall and injure themselves whilst using the driveway. Ms Jackson is concerned about her legal liability in those circumstances. She wishes to minimise the hazard by repaving the driveway at her own expense. Mr Brown also swore affidavits and gave evidence at the hearing. He did not accept the validity of the concerns expressed by Mr and Mrs Jackson. Whilst his property was the subject of a significant burglary, the installation of the gate does not materially enhance the security of the Jackson property. The Jackson property and Mr Brown’s driveway are already separated by a high perimeter fence, which itself deters potential offenders from using the driveway to access the Jackson property. Mr Brown also contends the gate installed by Ms Jackson substantially interferes with access to his property. Mr Brown cannot see the end of the driveway from any part of his property. He therefore cannot see who is at that gate. In contrast, Mr Brown can see any person standing at his gate at the end of the driveway adjacent to his property. That allows him to readily determine if he wishes to permit access to his property. He can also leave his gates open for expected visitors. Further, if he is not home when parcels are delivered, they can be left safely at those gates, without being obvious from the street.

Decision

Reasons for decision

The remaining matter in dispute is the repaving of the driveway. There is scant evidence that the present driveway presents a genuine safety risk. Photographs tendered at the hearing do not support Ms Jackson’s contention that the driveway paving is so uneven that it constitutes a risk to Mr Brown and his visitors. The proposed repaving would prevent Mr Brown from accessing his driveway whilst that work was being undertaken. That would be a real and substantial interference in circumstances where, on the present evidence, there is no justification for that work to be undertaken. Conclusion Mr Brown has an unambiguous right to not only access the land the subject of the Grant of Easement, but also to have any obstruction created by Ms Jackson removed forthwith. The gate installed in July 2015 constitutes such an obstruction. Mr Brown is entitled to orders requiring its immediate removal and preventing the construction of any further obstructions. He is entitled to the relief sought in his application. There is no sufficient basis to make the declaration sought in Ms Jackson’s application. Her application is dismissed. There is no reason why Ms Jackson should not pay Mr Brown’s costs of both applications, including any reserved costs. The parties are to prepare minutes of orders in accordance with these Reasons.

Ratio Decidendi

Legal Principle Established

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