Burke v Frasers Lorne Pty Ltd

[2008] NSWSC 988

CITATION:	Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988
HEARING DATE(S):	11 August 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	12 August 2008
DECISION:	Defendant ordered to return right of carriageway to pre-existing asphalt surface.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – right of carriageway servicing residential dwellings – where carriageway over servient land has been asphalt for many years – where servient owner replaces asphalt with reinforced turf – where reinforced turf though inferior to asphalt could provide reasonable access to dominant land – where existing asphalt surface was a reasonable user of the carriageway – rights of dominant and servient owners in respect of rights of carriageway – whether servient owner can unilaterally change surface of right of carriageway – where it was recommended that the reinforced turf not be used for a growing season and could be slippery when wet before that time – whether that amounted to a “psychological obstruction”. - INTERLOCUTORY INJUNCTIONS – mandatory interlocutory injunctions – application for injunction to return turfed carriageway to asphalt surface – strongly arguable case – Courts should attempt to settle questions of law on interlocutory applications when possible – balance of convenience.
CATEGORY:	Principal judgment
CASES CITED:	Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 Chiu v Healey [2003] NSWSC 857 D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317 Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743 Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565 Keefe v Amor [1965] 1 QB 334 Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported) Lawrence v Griffiths (1987) 47 SASR 455 Mills v Silver [1991] Ch 271 Newcomen v Coulson (1877) LR 5 Ch D 133 Pettey v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR (NSW) 136 Prospect County Council v Cross (1990) 21 NSWLR 601 Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Spear v Rowlett [1924] NZLR 801 Trewin v Felton [2007] NSWSC 851 Zenere v Leate (1980) 1 BPR 9300
TEXTS CITED:	Meagher, Heydon & Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies, 4th Ed (2002) Butterworths
PARTIES:	Joyce Goldsworthy Burke (first plaintiff) Kim Huong Dinh (second plaintiff Donald Keith Martin (third plaintiff) Frasers Lorne Pty Ltd (defendant)
FILE NUMBER(S):	SC 4117/08
COUNSEL:	Ms V Culkoff (plaintiffs) Mr T S Hale SC (defendant)
SOLICITORS:	Steven Klinger (plaintiffs) Holding Redlich (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 12 August 2008

4117/08 Burke v Frasers Lorne Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: The first plaintiff Mrs Joyce Goldsworthy Burke is the registered proprietor of Lot 4 in Deposited Plan 547371, on which stands her home at 23 Lorne Avenue, Killara. The second and third plaintiffs Ms Kim Huong Dinh and Mr Donald Keith Martin are the registered proprietors of Lot 3 in the same plan, on which stands their home at 25 Lorne Avenue. The defendant Frasers Lorne Pty Ltd is the registered proprietor of Lot 1 in Deposited Plan 1096159, which is the consolidation of several lots, including former Lots 1 and 2 in Deposited Plan 547371. The geographical relationship between the properties, the right of carriageway over the access handles to Lots 2 and 3 which run between Lots 1 and 4, and the title history, are recorded in my judgment in proceedings 5065/07 [Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743], in which an application by Frasers Lorne for modification of the right of carriageway insofar as it affected Frasers Lorne's property – by extinguishing part of it in order to increase the space available for deep soil landscaping on its property, so as to comply with a planning parameter that requires 50 per cent of the site to be reserved for that purpose – was dismissed. The proposed modification involved the excision of approximately the first half of the easement over Frasers Lorne's land proximate to Lorne Avenue, and the narrowing of the second half.

2 That judgment was given on 18 July 2008. Between 6 August and the interlocutory hearing before me yesterday on 11 August 2008, Frasers Lorne has removed the asphalt from that part of the easement which, in the s 89 application, it sought to have extinguished, and replaced it with a turf reinforcement product called GrassProtecta. There is some evidence that Ku-ring-gai Council will now accept this as sufficient compliance with its requirements for deep soil landscaping. In this way, Frasers Lorne has substantially achieved the end which it unsuccessfully sought in the previous proceedings.

3 On 6 August, the plaintiffs sought an interim injunction. In circumstances where it was possible to appoint 11 August for a contested interlocutory hearing, Austin J, sitting as Duty Judge, concluded that the detriment to the plaintiffs of a couple of days interference with access to their property, falling short of total obstruction of that access, was outweighed by the potential cost to Frasers Lorne of having to suspend the works, when the position could in any event be restored if, on closer examination, the Court were satisfied that that was an appropriate course. On 11 August, the Court was informed that the works would be completed that day, and I assume and proceed on the basis that they have now been completed. Accordingly, for all practical purposes, the present application is one for an interlocutory mandatory injunction, requiring the restoration of the asphalt surface in the area from which it has been removed and replaced with reinforced turf.

4 On an application for an interlocutory injunction, the essential question is whether the plaintiff has established a sufficiently arguable case for a final injunction that the balance of convenience and prejudice favours the grant over the withholding of interlocutory relief. It has been said that an interlocutory mandatory injunction “is a particularly rara avis” [Meagher, Heydon & Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies, 4th Ed (2002) Butterworths, [21-395]], but it is now accepted that the same considerations apply to an interlocutory mandatory injunction as to any other interlocutory injunction, although the mandatory nature of the relief sought, and the potential consequences if it later has to be undone, is often telling on the balance of convenience [Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 503-504 (Gummow J)].

5 Where a question of law arises on an application for an interlocutory injunction the Court will endeavour, if possible, to decide that question, rather than simply considering whether the question is or is not arguable [D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317, 320 (Young J)]. In this case, in accordance with that practice, I will determine the legal question that arises.

6 Even prior to the delivery of my previous judgment, Frasers Lorne had begun to explore the possibility of using reinforced turf in the area in which it had sought extinguishment of the right of way. As early as September 2007, it had obtained an indication from Ku-ring-gai Council that “grass may not be a problem so long as the area is maintained as deep soil”. In May 2008, it was suggested to the construction director of Frasers Lorne, Mr Craig Elgie, that a number of turf reinforcement products of manufacturers known as Boddingtons, Enviro Concrete and Hydro Cave be investigated. Following delivery of my previous judgment on 18 July, Mr Elgie reviewed these products and selected one of those offered by Boddingtons, namely GrassProtecta, as the most suitable. On 25 July, Ku-ring-gai Council indicated to Frasers Lorne that forms of trafficable grass which would require a structure comprising a sub-base and interlocking paving would not be acceptable to the Council. On 31 July, however, the Council indicated that GrassProtecta would be a satisfactory solution in the relevant area. On the same day, Frasers Lorne wrote to the plaintiffs' solicitor, advising of their intention to remove the asphalt and replace it with turf reinforced with GrassProtecta. That letter was received by the plaintiffs' solicitor on Friday, 1 August 2008. He replied, on Monday, 4 August 2008, that the plaintiffs would not agree to that course. On the following day, Tuesday 5 August, Frasers Lorne obtained a modified construction certificate from the Council; and on Wednesday, 6 August, they commenced the works. As I have said, those works have now been completed.

7 In short, the works involved the removal of the asphalt from part of the carriageway located on Frasers Lorne's property, the laying of sand and soil, the placement of turf above that sand and soil, and then the placement and pinning down of the GrassProtecta mesh on top of the turf. While installation was under way, the area of the works was cordoned off with traffic cones and a tape, and to this extent use of the full width of the right of way was inhibited. Those cones and tape were removed in the course of 11 August, once the works were complete.

8 The GrassProtecta works by becoming intermeshed with the grass as it grows through the apertures in the mesh and binds with the mesh to hold it in place. The GrassProtecta is also secured by pegs driven through apertures in the mesh along its length. An amount of information has been put before the Court relating to the properties and uses of GrassProtecta. The civil engineering data describes GrassProtecta as a "grass protection mesh ... thick, tough extruded plastic mesh for the protection and reinforcement of grassed areas prone to rutting, wear and becoming muddy in wet conditions". Its applications are said to include "grassed carparks, overspill carparks, buggy paths on golf courses, light aircraft taxiways, grass paths, police, ambulance and fire service access routes, grass verges, caravan park areas and grass lawns to park a vehicle/car on".

9 The product information does not describe driveways, residential or otherwise, as an application of GrassProtecta. The plaintiffs' solicitor made an inquiry of Boddingtons’s sales manager for Australia who, in response to a question as to whether the product had specifically been used for driveways, said, "It would be the same as carparks but tests are to be carried out at the Northern Melbourne Technical Institute". This sales manager, Mr Wood, himself subsequently swore an affidavit, which was read in the defendant's case, in which he expressed the opinion that GrassProtecta is suitable to be used for a driveway with light vehicular access, and that in his experience the load-bearing qualities of the product would not be compromised where laid on ground which was sloping to a 9 per cent or 11 per cent gradient. He provided a number of case studies of the use of GrassProtecta in the United Kingdom, all involving grassed areas used by motor vehicles, but which appear essentially to have been parking areas; at least, none of them was a driveway.

10 The evidence does not establish that there is any actual experience of use of the product on driveways. It is true that Mr Wood says, in paragraph 15 of his affidavit, "It is not uncommon for the product to be laid on driveways with a similar gradient", but he neither deposes to nor annexes any instance in which that has been so.

11 Mr Martin, the third plaintiff, made a number of observations of the properties of GrassProtecta once it was laid in the carriageway. The effect of the evidence – derived from the product information, the affidavit evidence of Mr Wood and what is attributed to him by Mr Klinger, the engineering detail and the observations of Mr Martin – can, I think, be summarised as follows.

12 First, its applications have never been said in any of the product information to include driveways. I accept that there is some analogy between a grassed carparking area and a driveway, but the analogy is not a perfect one. In particular, the passage of vehicles over a grassed parking area, particularly an overflow area, is likely to be less frequent, and less concentrated on particular tracks, than a residential driveway.

13 Secondly, based on Mr Woods' evidence in particular, the product has not yet been tested for use in a driveway context. It has only been available in Australia for some seven months. It is not apparent that it has ever been used specifically for driveways, and it is not apparent that there is any actual experience of such use.

14 Thirdly, relevant standards do not identify turf – even reinforced turf – as suitable material for driveway construction.

15 Fourthly, GrassProtecta may be slippery when wet. There are recommendations in the product information that a full growing season be allowed for grass to grow through the mesh and embed the mesh in it before it is used, and warnings that use before then may, particularly in wet conditions, result in GrassProtecta being slippery. The engineering detail states:

It is essential that the plastic mesh should be laid down to give enough time for the grass roots to intertwine the plastic mesh filaments, eg, early spring. This takes approximately one growing season.

Elsewhere in the same document, it is said that the product is only effective if the grass is allowed enough time to grow and interlock with the mesh, and that a full growing season should be allowed before using the area. The specification and installation guidance includes:

Best results are obtained by not using the area until the grass has grown through the mesh apertures. This usually takes 4-8 weeks in the growing season. The area could be trafficked immediately, but grass will benefit from traffic restrictions during establishment if practical to do so. If the product is used too early before the grass has had time to grow through, the mesh can become slippery in wet conditions.

A note on the same document records:

GrassProtecta can become slippery when wet (before the grass has had a chance to grow through). Boddingtons Australia strongly recommends that all installed mesh are cordoned off and signage erected to advise of any slip hazards.

16 With the removal of the cordons surrounding the area of the works, the installation will not be allowed the recommended season's growth before use, which may jeopardise its integrity and result, in any event, in it being slippery when wet until the grass has grown through and bonded with the mesh.

17 Next, according to Mr Martin's observations, the GrassProtecta is slippery to walk on in its current condition – that is to say, before the grass has grown through the mesh – in ordinary footwear, and even in rubber soles, and its slipperiness is aggravated when it is wet. Ladies' high heels pass through the mesh into the apertures and may be caught, posing some risk to pedestrians.

18 Moreover, it appears that GrassProtecta has not been installed in this case in accordance with manufacturer's specifications, in that rather than the recommended inverted U-bolts, pegs which have the appearance of tent pegs have been used to secure it. Many of those pegs have already lifted above the surface, thus providing an additional hazard to users.

19 The main points that arise from these observations are: first, that on any view it can be said that grass, reinforced or not, is more slippery than asphalt; secondly, that that is particularly so when the grass is wet; thirdly, that on any view these works will result in there being two quite different surfaces within the carriageway – namely, reinforced turf on one side and asphalt on the other; and fourthly, that throughout the length of the reinforced turf there are pegs, some of which are raised above surface level. Finally, from the point of view of the user of the carriageway, I do not think that there is serious room for doubt that reinforced turf is inferior to the existing asphalt carriageway. That is not to say that it may not be possible to have reasonable access to the dominant properties over a reinforced turf carriageway, but that, for the purpose of use of the carriageway, there is very little room for disputation that asphalt is a superior surface to reinforced turf.

20 Against that background, I turn to the legal position. Some of the relevant principles are clearly established. First, a servient owner has no obligation to construct a right of way granted over its land. Its obligation is limited to the negative one of not obstructing the dominant owner's reasonable use of the right of way [Spear v Rowlett [1924] NZLR 801].

21 Secondly, a dominant owner is entitled to construct a road over the site of a right of carriageway [Newcomen v Coulson (1877) LR 5 Ch D 133, 143-4 (Jessel MR); Mills v Silver [1991] Ch 271, 286-7 (Dillon LJ); Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565; Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251; Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, [9]; Lawrence v Griffiths (1987) 47 SASR 455]. This is an ancillary right of a dominant owner: incidental to a grant of a right of way, the grantee may enter on the easement to do whatever is reasonably necessary to make the grant effective – including, in the case of a right of carriageway, not only repairing it but making a road so that there is a serviceable carriageway over which vehicles can pass in poor conditions as well as in good weather. These cases establish that the right to construct a road includes a right to pave.

22 Thirdly, however, that right is limited to what is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement [Zenere v Leate; Prospect County Council v Cross (1990) 21 NSWLR 601, 607-8 (Bryson J); Butler v Muddle]. This is, in substance, the same concept as that of non-excessive user [cf Sertari Pty Ltd v Nirimba Developments, [11]-[20]].

23 Fourthly, a servient owner retains, in respect of his or her property the subject of a right of carriageway, all those rights of ownership that are not inconsistent with the exercise by the dominant owner of the rights expressly given or implicitly confirmed by the grant [Zenere v Leate; Prospect County Council v Cross]. The corollary is that a servient owner’s rights are diminished to the extent that they are inconsistent with reasonable exercise by the dominant owner of its rights.

24 Fifthly, where an easement permits of the exercise of the rights granted in a number of different ways, generally the dominant owner is entitled to choose the manner of its exercise, and even to change that use from time to time. This may be illustrated in the context of a right of way that runs along the boundary of a property to which it is intended to give access and where there are multiple points from which access might be had from the right of way into the dominant land: in those circumstances, the dominant owner is entitled to select a reasonable number of points for that access, and even to change those points from time to time [Trewin v Felton [2007] NSWSC 851, [19], [36]; Butler v Muddle; Chiu v Healey [2003] NSWSC 857 ].

25 Sixthly, in a case of a private right of way such as the present one, only a substantial obstruction – that is to say a "real substantial interference with the right of way" – is actionable [Pettey v Parsons [1914] 2 Ch 653; Powell v Langdon (1944) 45 SR (NSW) 136, 139 (Roper J); Keefe v Amor [1965] 1 QB 334, 347 (Russell LJ); Prospect County Council v Cross, 608-610]. However, a substantial interference can be occasioned not only by physical impediment, but also by the existence of a state of affairs which creates a danger, or a risk, or a cost associated with user, such as to present an impediment to the dominant owner’s freedom of decision to exercise, or to continue to exercise, the right of way [Prospect County Council v Cross, 610].

26 There is no evidence before me that expressly addresses the condition of the right of carriageway when it was created by registration of the Deposited Plan in 1971, but there is an available inference – from the apparent age and condition of the right of way depicted in the photographic evidence, and observed on the view held in the previous proceedings (to which the parties agreed I could have regard now), and from conventional planning practices, that the carriageway was probably constructed in its present form at the time of and in connection with the subdivision. On any view, the asphalt carriageway has been in place for many years. There is no evidence that there has ever been the slightest suggestion that its existence represented an excessive user, or was unreasonable.

27 Frasers Lorne has substituted for it something which I have found to be inferior, though it may still afford reasonable access to the dominant properties. Mr Hale SC, for Frasers Lorne, submitted that the real question was whether the alternative substituted by Frasers Lorne would meet the requirements of the grant and afford reasonable access in accordance with the terms of the grant; if so, the dominant owners were entitled to no more.

28 Attractive as this submission so stated is, I am, nonetheless, convinced it is wrong for the following reasons. First, it would be inconsistent with the right of the dominant owner to construct a carriageway on the site of the easement, if, the dominant owner having constructed a carriageway which was not excessive, the servient owner could unilaterally disrupt that carriageway and substitute an inferior one, even though it would still afford reasonable access. The right to construct a carriageway must include, for example, the right to select the contractor who will build it, the right to select the particular form of paving which will be used, and so on. It would make nonsense of this right if the servient owner could then decide that he or she did not like the particular form of paving and substitute an inferior one.

29 Secondly, as I have indicated by reference to the example of selection of access points from a right of way running along the side of a dominant property, authority indicates that, where there are multiple potential means of reasonable user, the choice is that of the dominant owner, not of the servient owner.

30 Thirdly, if Mr Hale's proposition were correct, the consequence would be that, from time to time – indeed as often as the servient owner pleased – the servient owner could contend that reasonable access could be gained by some construction other than that currently in place, and substitute that alternative construction. This would introduce into this area of property law instability and uncertainty, where certainty and stability are important.

31 Fourthly, and most importantly, the way the law operates in this area – as indicated by McLelland J in Zenere – is that the rights of the servient owner are diminished to the extent that they are inconsistent with the rights of the dominant owner. If what the dominant owner has done in constructing a carriageway is within the terms of the grant and not an excessive user, then anything the servient owner does inconsistent with what the dominant owner has done must be inconsistent with the dominant owner's valid exercise of his or her rights, and thus to that extent inconsistent with the grant. The servient owner’s rights are extinguished or diminished by the grant to that extent. It is, therefore, not open to a servient owner to deconstruct a road constructed within the terms of the grant by the dominant owner, and to substitute some inferior construction – even if the inferior construction would still afford reasonable access – because to do so would be inconsistent with the dominant owner's valid exercise of its rights under the grant, including the right to construct the carriageway.

32 Finally, it is implicit in the grant of a right of carriageway that the surface of the carriageway, whether natural or constructed, will not be disrupted or degraded by the servient owner. Once a road has been constructed over the site of the right of carriageway, for the servient owner to dig it up in whole or in part and/or replace it with an inferior structure, is a disruption or degrading of the right of carriageway inconsistent with the grant.

33 In my judgment, therefore, and absent any special provision in the grant, a servient owner is not entitled unilaterally to change the surface of the carriageway to an inferior one, or otherwise to disrupt or degrade the surface of the carriageway. To do so would be inconsistent with the rights of the dominant owner to construct a carriageway to the extent reasonably necessary for the proper enjoyment of the grant (so long as the construction is a non-excessive user), and to enjoy access over the carriageway so constructed.

34 Accordingly, I have concluded that Frasers Lorne had no right to disrupt and change the surface of the road constructed on its part of the easement. To do so was inconsistent with the plaintiffs' right to have the constructed road over the easement persist in its current form.

35 The plaintiffs argued, quite apart from these considerations, that the removal of the asphalt and the installation of the reinforced grass was an actionable obstruction. If it were necessary to decide this – and for the reasons I have advanced I do not think it is – I would not accept that, save for the period during which the construction works took place, there is now any physical impediment. One can still drive over the access way, and it is unnecessary for pedestrian access for which the remaining sealed portion is ample.

36 I would also have difficulty in concluding that this was an obstruction in the secondary (psychological) sense referred to by Bryson J in Prospect County Council v Cross. While the product literature indicates that, if used before the grass has grown through it, the GrassProtecta may be slippery when wet, and that best results are obtained by not using it until the grass has grown through, it also indicates that it may be used before the grass has grown through and bonded, and to my mind does not suggest that the danger occasioned by driving over it in that condition is such as would really deter or constrain the exercise of the right of carriageway. Moreover, the fact that the problem is limited to when the GrassProtecta is wet, and for a period of a growing season of perhaps up to a couple of months, suggests that there would be few occasions when there would be any risk.

37 However, for the reasons I have already advanced, I have concluded that Frasers Lorne is simply not entitled to take the course on which it has embarked. Accordingly, there is, in my view, a seriously and indeed, strongly arguable case for a final injunction.

38 That brings me to the balance of convenience. First, I must take into account that what is sought is a mandatory injunction, and that if it turns out that the plaintiffs are not entitled to final relief, what will be involved is not just the costs of complying with the injunction now, but also the cost of restoring in due course the reinforced turf, and also potentially serious commercial detriment to Frasers Lorne by interference with the completion of sales of apartments in its development. (I take this into account for present purposes, even though on this application no evidence of those circumstances has been put before me, but there was ample evidence of it on the expedition application in the earlier proceedings.)

39 Secondly, it is in a sense correct that the status quo – the works having been completed yesterday – is that the reinforced turf is in place; and it is also correct, as Mr Hale points out, that this was done after the Duty Judge, on balance of convenience considerations, refused an interim injunction on 6 August. Nonetheless, the refusal of that interim injunction, in the light of the fixture of the interlocutory hearing for 11 August, could not be regarded as any sanction of the works, and one must regard the situation as one in which, being aware that an interlocutory injunction was being sought and of the risk that it might subsequently be granted, Frasers Lorne took its chances by acting between 6 August and the interlocutory hearing yesterday.

40 On the other side of the balance of convenience is the circumstance that the plaintiffs' use of the part of the carriageway would be affected until the final hearing. However, I have already concluded that I do not think that the plaintiffs’ access would be seriously inhibited, and that they would be able to drive over the reinforced turf, and that so far as pedestrian access is concerned, the position would not be detrimentally affected at all since ample sealed access remains.

41 Accordingly, the resolution of the balance of convenience is not at all straightforward. Ultimately, three matters are determinative. First, the plaintiffs' undertaking as to damages. I was concerned that the undertaking as to damages might involve very large obligations on the part of the plaintiffs indeed, if ultimately it were called upon, since the potential damages might run not just to the costs of complying with the interlocutory injunction and the costs of subsequently reinstating the reinforced turf, but also significant commercial losses arising from delay in the completion of sales in the development. The plaintiffs, being apprised of those risks, nonetheless, offered an undertaking as to damages. There is no suggestion that that undertaking is not a valuable one. That largely removes any such prejudice as would otherwise be occasioned to Frasers Lorne.

42 The second significant determinant is the strength of the plaintiffs' prima facie case. While it is true that this is an interlocutory application, there is really only one relevant issue of fact, and that is whether the reinforced turf is an inferior surface for the purpose of a carriageway to asphalt. As I have said, I am prepared to accept for present purposes that reasonable access could still be enjoyed over reinforced turf. However, it seems to me practically indisputable that reinforced turf is an inferior surface to asphalt for the user of a carriageway. Once that is accepted, the question is a legal one, and so far as that question is concerned, although not directly the subject of authority according to the researches of counsel or my own, once analysed it seems to me clear that the legal position is as I have held it to be. In those circumstances, the plaintiffs' prima facie case is a very strong one.

43 The third consideration is that the works were completed at very short notice, the plaintiffs only having been informed of them on 1 August, with work commencing on 6 August, and completed by the time of an interlocutory hearing of which the defendant was well on notice, by 11 August, when it must be regarded as having assumed the risk that it would have to undo them.

44 Moreover, declining an injunction now, in circumstances where I have found the plaintiffs to have a very strongly arguable case for final relief, would permit the defendant, before final hearing, to complete its development, obtain an occupation certificate and complete sales on a basis which would probably be retrospectively falsified, a most undesirable outcome.

45 For those reasons, in my view, the balance of convenience favours the granting rather than the withholding of interlocutory mandatory relief.

46 My orders are:

(1) Upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages, order that until further order the defendant by 19 August 2008 restore the road in the right of carriageway to a condition not inferior to that in which it was prior to 6 August 2008, including by replacing with an asphalt surface the area from which asphalt has been removed and replaced with reinforced turf.

(2) Order that the costs of the interlocutory application be the plaintiffs' costs in the proceedings.

(3) Note that the plaintiffs have given the undertaking as to damages.

(4) Reserve liberty to apply on such notice as may seem appropriate to me at the time by arrangement with my Associate in connection with any extension of time for compliance with this order, or any stay of it.

(5) Adjourn the proceedings to Friday, 15 August 2008 at 10:00am before the Expedition Judge.

(6) Direct that the defendant by close of business on Wednesday, 13 August 2008 file and serve a motion for expedition and supporting affidavit, returnable before the Expedition Judge on 15 August 2008. Abridge time for service of such motion to close of business Wednesday, 13 August 2008. Service may be effected by facsimile.

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