Castle v Achdjian

[2022] NSWSC 1340

Supreme Court

New South Wales

Medium Neutral Citation:

Castle v Achdjian [2022] NSWSC 1340

Hearing dates:

19-20 September 2022

Date of orders:

4 October 2022

Decision date:

04 October 2022

Jurisdiction:

Equity

Before:

Darke J

Decision:

Application for extinguishment of right of carriageway refused. Orders to be made for removal of obstructions of right of carriageway.

Catchwords:

REAL PROPERTY – easements – extinguishment of easements – Cross-Claim seeking extinguishment of right of carriageway pursuant to Conveyancing Act 1919 (NSW) s 89(1) on the grounds of obsolescence, impediment of reasonable user of servient tenement, or abandonment – where right of carriageway has never been used as a means of vehicular access to the dominant tenement – where several obstructions have been erected on right of carriageway – where evidence suggests that right of carriageway has been used historically only as a footway – whether right of carriageway obsolete in circumstances where Council approval for construction of a driveway is very unlikely to be given – whether it is possible to reasonably enjoy servient tenement while right of carriageway subsists – whether acts or omissions of previous dominant owners evinced an intention to abandon right of carriageway in whole or in part – held that right of carriageway not obsolete, inconsistent with reasonable use of servient tenement, or abandoned in whole or in part – held further that dominant owners would suffer a substantial injury if right of carriageway were extinguished – defendants to be ordered to remove obstructions placed on right of carriageway without dominant owners’ assent

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88B, s 89(1), s 181A(1), sch 8

Cases Cited:

Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525; [2005] NSWCA 80

Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764

Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28

Finlayson v Campbell (1997) 8 BPR 15,703

Guth v Robinson (1977) 1 BPR 9209

Grill v Hockey (1991) 5 BPR 11,421

Heaton v Loblay (1959) 60 SR (NSW) 332

Keefe v Amor [1965] 1 QB 334

Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640

Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116

Pieper v Edwards [1982] 1 NSWLR 336

Powell v Langdon (1944) 45 SR (NSW) 136

Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605

Prospect County Council v Cross (1990) 21 NSWLR 601

Re Mason and the Conveyancing Act [1962] NSWR 762

Re RK Roseblade and VM Roseblade and the Conveyancing Act; Re KS Foenander and the Conveyancing Act [1964-5] NSWR 2044

Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324

Sheppard v Smith [2021] NSWSC 1207

Sheppard v Smith [2022] NSWCA 167

Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274

Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851

Tujilo Pty Ltd v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209

Walker v Bridgewood (2006) 12 BPR 23,537; [2006] NSWSC 149

Texts Cited:

Justinian, Institutes

Category:

Principal judgment

Parties:

Andrew Donald Castle (First Plaintiff/First Cross-Defendant)
Jessica Anne Castle (Second Plaintiff/Second Cross-Defendant)
Vatche Achdjian (First Defendant/First Cross-Claimant)
Lena Achdjian (Second Defendant/Second Cross-Claimant)

Representation:

Counsel:
Ms LA Walsh (Plaintiffs/Cross-Defendants)
Mr B Connell (Defendants/Cross-Claimants)

Solicitors:
Makinson d'Apice Lawyers (Plaintiffs/Cross-Defendants)
Harbourside Legal Services (Defendants/Cross-Claimants)

File Number(s):

2021/335911

Publication restriction:

None

Judgment

Introduction

1. These proceedings concern a right of carriageway that is noted on the titles to two adjoining properties in Hornsby, being the plaintiffs’ property at 20 Vista Close, and the defendants’ property at 8 Marlee Street. The plaintiffs’ property (Lot 30 in DP231983) backs onto the rear of the defendants’ property (Lot 29 in DP231983) which is located to the north.

2. The right of carriageway was created on 20 February 1967 upon the registration of Deposited Plan 231983. The relevant instrument under s 88B of the Conveyancing Act 1919 (NSW) identifies the easement only as “Right of Carriageway 10’0’’ wide”. Accordingly, the terms of the easement are the words contained in Part 1 of Schedule 8 to the Conveyancing Act (see s 181A(1)). The plan depicts the easement as running adjacent to the eastern boundary of the defendants’ land, from the south-eastern corner at the rear to the north-eastern corner at the front near Marlee Street. The defendants’ Lot 29 is identified as the lot burdened and the plaintiffs’ Lot 30 is identified as the lot benefitted.

3. Deposited Plan 231983 is a plan of subdivision that contains 33 lots that variously front onto Vista Close, Marlee Street, Old Berowra Road, Mittabah Road or Moona Street. In addition to the right of carriageway, the plan created an easement to drain water 6’0’’ wide and a number of easements for batter in favour of Hornsby Council, including one that burdens Lot 30 across its frontage to Vista Close. Lot 30 slopes down relatively steeply from the front to the rear.

4. The defendants (Vatche and Lena Achdjian) have owned and lived at the 8 Marlee Street property since early 2000. The plaintiffs (Andrew and Jessica Castle) acquired the 20 Vista Close property in November 2020. After carrying out some renovations, they moved in to live at the property in February 2021. The plaintiffs acquired the property from Desmond and Susan Ryan, who had owned the property and lived there from about 1974 until late-2020.

5. The right of carriageway has for many years been blocked by fences (with no gates) at each end. No driveway or pathway has ever been constructed upon the right of way. It seems that, since at least 2005, the right of carriageway has not been used as such, although there is evidence that, prior to that time, at least one of the Ryan children (Timothy Ryan) occasionally made use of it in connection with his work delivering pamphlets to houses in the local area. Since about 2011, there has also been a fence (which has a gate) that extends across the right of way at a point around halfway along it. A survey dated 28 February 2022 prepared by Mr Gary Skow indicates the presence within the easement area of some timber edging and concrete wall structures, as well as a large pine tree near the southern end, and other vegetation.

6. The 20 Vista Close property was marketed in 2020 as having “rear access via Marlee St”. Mr Castle made enquiries about the right of carriageway, which is noted on the title to the property, and he observed that there were “encroachments” on it. He gave evidence that he regarded the right of carriageway as an “important and necessary feature” of the property. By April 2021, Mr Castle had made it known to Vatche and Lena Achdjian that he was interested in making use of the right of carriageway. On 2 May 2021, a letter from the plaintiffs to the defendants was delivered to the defendants’ property. The letter included the following:

As you know, we purchased our house late last year with the plan to use the right of carriageway as a driveway. After our conversation I spoke again with Hornsby Council and my lawyer about the carriageway and they advised that it is indeed on our land title and as such we’d love to start using it.

It would be great if we could start talking about the best way for this to happen. Hopefully we can find a way that minimises the impact to yourselves and the potential sale that you mentioned of your property for later this year. If you could please let us know when you’d like to talk about this that would be great.

7. On 13 May 2021, solicitors for the plaintiffs sent a letter to the defendants in which a demand was made for the removal of “the fence and other restrictions”. The letter was referred by the defendants to their own solicitors. On 24 June 2021, the plaintiffs’ solicitors sent a letter to the defendants’ solicitors in which consent was sought to enter upon the defendants’ property “to clear the right of carriageway”, failing which proceedings would be commenced. A further letter was sent by the plaintiffs’ solicitors on 20 July 2021. On 26 August 2021, the defendants’ solicitors sent a letter to the plaintiffs’ solicitors. The letter included the following:

Our clients have instructed us that on 20 August 2021, your clients, via text message and based on legal advice given by your firm, advised our clients that they will now be using the ‘easement for carriageway’. Your clients then proceeded to enter upon our clients’ property without consent on 20 August 2021 and indicated that they purport to do so again.

As you are aware, where an easement has not been used for 20 years it is deemed abandoned under Section 89(1A) of the Conveyancing Act (1919) NSW. In such circumstances, we are instructed by our clients that since they moved into their property in December 1999, the alleged easement subject of this dispute has never been used. Furthermore, we are instructed that even prior to our clients purchasing their property, this alleged easement was also never used.

Accordingly, your clients have no basis for exercising any purported right of use and we put your clients on notice that they have trespassed on our clients’ property, specifically in circumstances where your clients are obviously aware that this alleged ‘easement’ is in dispute and may shortly become subject to legal proceedings.

We write to advise that your clients are not permitted to enter onto our clients’ property and if they do so again, action will be taken against your clients for trespass.

8. The proceedings were commenced by Statement of Claim filed on 25 November 2021. The plaintiffs seek a declaration to the effect that the defendants have impeded or restricted the plaintiffs’ rights in respect of the right of carriageway, and an injunction restraining the defendants from continuing to impede or restrict those rights. The plaintiffs also seek orders requiring the defendants to remove, at their own cost, the structures that obstruct the right of carriageway and interfere with the plaintiffs’ reasonable enjoyment thereof. During the course of the hearing, counsel for the plaintiffs clarified that the structures sought to be removed were the three fences that block the right of carriageway, which are situated at each end and at a point approximately halfway along it.

9. The defendants contest the plaintiffs’ claims, in essence, on the grounds that the right of carriageway had been abandoned by the plaintiffs’ predecessors in title, and was liable to be extinguished. The defendants contend, to this end, that the right of carriageway was blocked even before they became the owners and occupiers of the 8 Marlee Street property. By their Cross-Claim, the defendants seek an order under s 89 of the Conveyancing Act that the right of carriageway be extinguished. In that regard, reliance is placed upon both limbs of s 89(1)(a), as well as ss 89(1)(b) and 89(1)(c). In support of the claim of abandonment, the defendants invoke s 89(1A), which provides that, for the purposes of s 89(1)(b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application is made. The defendants further say, in the alternative, that if the right of carriageway has not been wholly abandoned, it has been abandoned save insofar as it includes rights to use it as a footway.

Summary of salient evidence

10. The two properties are located in a residential area of suburban Sydney. The lots were the product of the subdivision effected by the registration of Deposited Plan 231983 in February 1967. Houses have since been built on the two properties. The defendants carried out substantial renovations to their house in about 2011.

11. As already mentioned, Lot 30 slopes down relatively steeply from the front to the rear. Lot 29 continues to slope down towards Marlee Street, although not as steeply. That is apparent from the levels recorded on the survey prepared by Mr Skow.

12. The former owners of Lot 30, Mr and Mrs Ryan, were called as witnesses in the plaintiffs’ case. Both deposed that, at the time of their purchase in about 1974, they were aware that the property had the benefit of the right of carriageway to access Marlee Street. However, there was a wooden fence in place across the whole rear boundary of Lot 30. Mr Ryan deposed that he intended to make use of the right of carriageway and build a driveway in the future to allow vehicular access to the rear lower level of Lot 30. Mr Ryan further deposed:

We raised our children in this property and between 1983-2005 they made use of the right of carriageway to access the swimming pool that existed in the property 8 Marlee Street Hornsby NSW 2077 and as a shortcut to gain access to Marlee Street.

…Our children also had Pamphlet and paper delivery runs and they used the Right of Way to go and carry out their deliveries in Marlee and neighbouring streets.

13. Mrs Ryan deposed:

Our two children used to jump the fence and use the right of way to gain access to Marlee St and also to the swimming pool that was on 8 Marlee St at the time…

Our children had paper runs and pamphlet delivery runs and used the right of way to make their deliveries to Marlee and the neighbouring streets.

…

Our children used the Right of Way at times 3 to 4 times a week and were still using it till 2005 when the last child left home.

14. Mr Ryan also gave evidence about the replacement of the wooden fence with a metal Colorbond fence. He deposed that the then-owner of Lot 29 requested the replacement, and that the request was agreed to, with “partial funding” being provided for that purpose. Mr Ryan deposed that he made no request for a gate to be installed at that time “as we were not in a position to build the driveway”. In cross-examination, Mr Ryan accepted that the Colorbond fence was installed around 1986. Mrs Ryan said she was not sure exactly when the fence went up, but said that 1986 was “a bit too early”.

15. One of the Ryans’ children, Timothy, was also called as a witness. He deposed that he lived on the 20 Vista Close property from when he was born in late-1983 until 2005 when he completed his university studies. Timothy Ryan further deposed:

I recall growing up at the Property as children and as teenagers, my siblings and I used to climb over the fence along the Neighbouring Property [8 Marlee Street] to access the swimming pool, and as a direct thoroughfare to Marlee Street. We would climb over the fence approximately 1-3 times a week and walk along the eastern boundary of the Neighbouring Property to access Marlee Street. There were trees/vegetation in that corner of the property. There was also a small shed but I believe that was to the left of the path which we used to access. We had also used this area to access Marlee Street for our pamphlet runs approximately 1-2 times a week.

16. The defendants became the owners of Lot 29 in early-2000. They gave evidence to the effect that at no time did they see any of the Ryan children jump over the fence into their property, or use the right of carriageway. A number of their neighbours who were called in their case gave evidence to similar effect.

17. It seems that the defendants had little or no direct contact with the Ryans. However, on 7 April 2010, Austates Conveyancers, acting for the defendants, sent a letter to Mr and Mrs Ryan that included the following:

Our clients have advised that you are the owners [of] the property located at 20 Vista Close, Hornsby being Lot 30 in Deposited Plan 231983.

They also advised that they have spoken to you regarding the cancellation of the Right of Carriageway.

The Right of Carriageway was registered in 1967 and it appears that the owners of Lot 30, 20 Vista Close, Hornsby at the time did not go ahead and construct a driveway giving themselves access to the property via Lot 29, 8 Marlee Close [sic], Hornsby.

It appears that the Right of Carriageway has never been used by any owners of Lot 30 as Lot 30 has access via Vista Close, Hornsby. Therefore under the circumstances as the Right of Carriageway has never been used by yourselves or any previous owners and is not required by you to gain access to your property we ask you to please consider signing the attached document to enable the cancellation of the Right of Carriageway. This will allow our clients to extend their home out rather than extend up.

18. Mr Ryan deposed that he telephoned Austates Conveyancers and rejected the request.

19. On 21 May 2010, Austates Conveyancers sent another letter to the Ryans. This letter included the following:

Our client will pay you $5,000.00 plus pay for any legal costs incurred by you in relation to the signing of the cancellation of Right of Carriageway form, any production fees and all registration fees.

20. Mr Ryan deposed that he again telephoned Austates Conveyancers and rejected the offer. He further deposed that at about that time he made a note. The note is in the following terms:

Spoke to Mary Melissari [of Austates Conveyancers] re this offer and advised her I was interested in using it for access in due course so wasn’t interested in offer.

21. For some time, the Achdjians had been planning to renovate their home. An architect, Mr Ranieri, had been engaged on the project. It appears that the original plans involved extensions that would encroach upon the right of carriageway. Mr Ranieri advised the defendants to seek to have the right of carriageway removed, otherwise it would be necessary to modify the plans. As it turned out, the plans were modified so that the proposed additions and alterations to the house extended towards, but did not encroach onto, the area of the right of carriageway.

22. However, some other works carried out in association with the house renovation did impinge upon the right of carriageway. These works included: a new front fence; a gate and fence located about halfway along the right of carriageway; and some gardens held back by retaining structures. These structures are likely to be the timber edging and concrete wall structures that are shown on Mr Skow’s survey. There is evidence that these structures may incorporate drainage functions. There was also some clearing of vegetation on or near to the right of carriageway, and the laying of some concrete surfaces. A shed that was located towards the southern end of the right of carriageway was removed.

23. I referred earlier to Mr Castle making enquiries about the right of carriageway at the time of the purchase in 2020. Those enquiries included the seeking of information from the Ryans. On 3 September 2020, the conveyancers acting for the plaintiffs sent an email to the solicitors acting for the Ryans, requesting that instructions be obtained about various matters. One of the matters was a query as to whether the vendor had ever used the right of carriageway to access the property. The answer given to that query on 8 September 2020 (as recorded in the handwriting of Mrs Ryan) was “No”. Mrs Ryan was asked about this in cross-examination. It seems that she may have interpreted the query as referring only to herself and Mr Ryan personally, as the vendor. In any case, Mr Castle agreed that he had read the answer at the time. I infer that he also read an answer to the effect that the owners of Lot 29 had at some point asked the Ryans to “sign over” the right of carriageway because they wished to build on it, but the Ryans had refused. It appears that when Mr Castle read those answers, the contract for sale had already been exchanged, but it remained subject to a cooling off period in favour of the plaintiffs as purchasers.

24. A file note dated 8 September 2020, made by the plaintiffs’ conveyancers, indicates that Mr Castle was then of the view that he would need to speak to the Council to see whether approval would be needed for a driveway and tree removal. The reference to tree removal is likely to be in respect of the large pine tree located near the southern end of the right of carriageway.

21. Expert evidence was adduced by the defendants from a civil engineer (Mr Branch), a town planner (Mr Fryar) and an arborist (Mr Magus). The engineering evidence was directed towards the nature of works that would be required to achieve vehicular access to the rear of Lot 30 using the right of carriageway, or from Vista Close. The town planning evidence described the nature and development of the locality, the applicable planning controls, and considered the possibilities of achieving vehicular access for Lot 30 from Vista Close, or by using the right of carriageway. The arborist provided an assessment of the large pine tree located on the right of carriageway near its southern end, and concluded that removal of the tree would require permission from the Council. Finally, a report of a valuer was adduced in evidence by the plaintiffs. The valuer expressed opinions concerning the value of Lot 30 with, or without, the right of carriageway.

Summary of submissions

26. The plaintiffs’ case is relatively straightforward. It rests upon the fact, admitted on the pleadings, that the right of carriageway is recorded on the folios of the Register in respect of both the benefitted land (Lot 30) and the burdened land (Lot 29), and that the terms of the right of carriageway (as set forth in Part 1 of Schedule 8 to the Conveyancing Act) are clear, namely:

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

27. The plaintiffs submitted that their intended use of the right of carriageway, as a thoroughfare from their property to Marlee Street is entirely reasonable and not inconsistent with those terms. The plaintiffs further submitted that the right of carriageway is presently obstructed by the three fences that traverse it, and that these obstructions amount to a substantial interference with their rights pursuant to the easement. It was submitted that at least the fence at the front of Lot 29, and the fence halfway along the easement, were constructed by the defendants after they had failed to obtain the agreement of the Ryans to cancel the easement. As noted earlier, the plaintiffs seek declaratory relief and an injunction restraining the defendants from impeding or restricting their rights in respect of the right of carriageway. They also seek orders requiring the defendants to remove, at their own cost, the three fences that block the right of carriageway.

28. The thrust of the defence to the plaintiffs’ case is that the right of carriageway had been abandoned by the plaintiffs’ predecessors in title, or is on various grounds liable to be extinguished, as alleged in the Cross-Claim. In that regard, several arguments were raised based on s 89(1) and s 89(1A) of the Conveyancing Act. Those provisions are in the following terms:

(1)   Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied—

(a)   that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or

(b)   that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part,

(b1)   in the case of an obligation—

(i)   that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation’s being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or

(ii)   that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or

(c)   that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation.

(1A)   For the purposes of subsection (1)(b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.

29. The first argument raised by the defendants is based on the first limb of s 89(1)(a). It was put that there were changes in the use of the benefitted land, or other material circumstances, that should lead the Court to deem the right of carriageway obsolete. No reliance was placed on any change in the character of the neighbourhood. The change in use of Lot 30 was identified as the construction of a house in about 1969 with a driveway and “parking pad” at the front near Vista Close and an informal access way running down to the yard at the rear. Reference was also made to aspects of the layout of the house, including difficult access from the rear due to the number of steps, and the fact that access to the right of carriageway was blocked by the rear fence. The defendants also pointed to evidence of improved construction techniques that would now make it possible to construct a vehicular access driveway from Vista Close. Other circumstances pointed to were the planting of the pine tree (which is now very large and the subject of a tree preservation order) on the right of carriageway, the various works carried out upon the burdened land on or in the vicinity of the right of carriageway, and planning controls and applicable standards that make it unlikely that the Council would approve the construction of a driveway along the right of carriageway. The defendants submitted that, in these circumstances, the easement should be deemed obsolete because its original purpose of facilitating vehicular access between the rear of Lot 30 and Marlee Street can no longer be served or is no longer capable of fulfilment.

30. The next argument is based on the second limb of s 89(1)(a). The defendants submitted that the continued existence of the right of carriageway impedes the reasonable user of Lot 29 without securing practical benefit to the plaintiffs as the persons entitled to the easement. It was put that vehicular access could be readily achieved between Lot 30 and Vista Close, whereas permission to build a driveway (and remove the large pine tree) was unlikely to be given.

31. The next argument is based on s 89(1)(b). The defendants submitted that the plaintiffs’ predecessors in title, being the persons entitled to the easement, by their acts or omissions may reasonably be considered to have abandoned the easement. Issue was taken with the reliability of the evidence given by the Ryans concerning the use of the right of carriageway. It was submitted that the Court should be satisfied that the easement had not been used for at least 20 years before the application for extinguishment was made (see s 89(1A)), and the right of carriageway may thus be treated as abandoned. The acts or omissions relied upon are the construction of the house on Lot 30 (as referred to above); the allowing of, and indeed agreement for, rear fences that blocked access to the right of carriageway; acquiescence in the planting and later growth of the pine tree (and other vegetation) on the right of carriageway; acquiescence in the carrying out of works on Lot 29 (such as retaining walls and fences) that impinge upon the right of carriageway; and the failure to seek to use the right of carriageway for access or suggest any intention to do so, until 2010. The defendants submitted that the right of carriageway had been abandoned by the original owners of Lot 30 by 1974, or by the Ryans by 1983 or by 2010. The defendants submitted that, even if the Court found that the children of the Ryans made use of the easement in the manner claimed, the easement had been abandoned except to the extent of a footway.

32. The next argument raised by the defendants is based on s 89(1)(c). It was submitted that extinguishment of the easement would not substantially injure the plaintiffs as the persons entitled to the easement. It was submitted that the plaintiffs could obtain convenient access (including vehicular access) from Vista Close, whereas it would be impossible to obtain approval for a driveway to be constructed on the right of carriageway. It was put that, even if approval was somehow obtained, it would be disproportionately expensive and difficult to proceed.

33. Lastly, the defendants raised a number of matters in opposition to the relief claimed by the plaintiffs, including that the declaration sought lacked utility and that the injunctive relief claimed was too wide.

Determination

34. In determining the respective claims of the parties, it appears to me logical to deal first with the Cross-Claim. However, before doing so, it is necessary that I express my views and make findings concerning a contentious aspect of the evidence, namely, the evidence about the Ryan children making use of the right of carriageway. That evidence is referred to above at [12]-[15].

35. The defendants submitted that the evidence was of doubtful weight and replete with inconsistencies. It was also put that the Ryan family were anxious to assist the plaintiffs. I do not accept that to be the case. Mr and Mrs Ryan, and Timothy Ryan, are independent witnesses with no apparent interest in the outcome of the case. Each appeared to me to give their recollections of events honestly, and as best they could recall. There was a degree of imprecision in the evidence, but that is understandable given that the witnesses were in this respect endeavouring to recall matters that occurred decades ago.

36. Notwithstanding the evidence given by various witnesses that they never observed the Ryan children using the right of carriageway, I accept, based on the testimony of Mr, Mrs, and Timothy Ryan, that at least some of the Ryan children made occasional use of the easement as a means of access (a “shortcut”) between Lot 30 and Marlee Street from time to time during the period from about 1983 to about 2005. I note that Mrs Ryan’s evidence that such use continued until 2005 was not challenged in cross-examination. Further, it was not suggested to any of the Ryans that they were inventing their evidence or might have been mistaken about it. I would add that it is not particularly surprising that the fairly infrequent use described in the evidence may have escaped the attention of, or may not have been recalled by, neighbours in the area. It is less understandable that such use would have escaped the attention of the defendants – particularly Lena Achdjian, who worked at home and consequently spent a lot of time there. However, that is in my view more likely than the evidence given by the Ryans being incorrect. It may be that from about 2000 the use of the right of carriageway became less frequent as the Ryan children progressively left the family home. Timothy, who appears to be the youngest child, was already 16 years of age when the defendants moved in to Lot 29.

37. I have not overlooked the evidence concerning the negative answer given by Mrs Ryan in 2020 to the question whether the vendor had ever used the right of carriageway. However, as mentioned earlier, Mrs Ryan seems to have read the question as referring only to herself and Mr Ryan personally.

38. Before leaving this matter, I should also note that, insofar as the Ryan children may have used the right of carriageway in order to use the Lot 29 pool (which was not situated within the easement area), that would not constitute an exercise of rights pursuant to the easement. Rather, the children would presumably been acting in accordance with permission given by the then-owners of Lot 29 to come onto the property and use the pool.

39. I turn now to consider the defendants’ claim under the first limb of s 89(1)(a) that the right of carriageway should be extinguished on the basis that it ought to be deemed obsolete.

40. In Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28, Mason P stated (at [3]-[4]):

[3] … In Re Mason and the Conveyancing Act [1962] NSWR 762 at 764, Jacobs J said:

I consider that the word “obsolete” can be taken to mean that the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose.

I respectfully agree with this dictum, bearing in mind the latitude encompassed in a power expressed as one of being satisfied that the easement “ought to be deemed obsolete”.

[4] This said, the Court’s focus must remain the language of the section. Section 89 necessarily qualifies the common law rights of the owner of the easement. The section is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights. The starting point is the easement itself, its terms and its objects derived from construing those terms in context (cf Re Mason at 764) and bearing in mind that the easement was created for an indefinite future and destined to enure in a changing environment (cf Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at 47).

(See also Sheppard v Smith [2022] NSWCA 167 at [87]-[88] per Beech-Jones JA).

41. These principles direct attention to the object(s) or purpose(s) of the easement in question, as derived from the terms of the easement properly construed in its context. Here, that context includes the fact that the right of carriageway was created as part of a residential subdivision.

42. The defendants submitted that the original purpose of the right of carriageway was to facilitate vehicular access between the rear of Lot 30 and Marlee Street. That was undoubtedly one purpose of the right of carriageway, but its terms suggest that it was not the only purpose. The terms of the easement also allow for non-vehicular access between the rear of Lot 30 and Marlee Street. That access can also be regarded as a purpose of the right of carriageway. Viewed another way, vehicular access and non-vehicular access could be seen as parts of a more generally expressed purpose of access between the rear of Lot 30 and Marlee Street.

43. In considering this question it is permissible to take into account the physical characteristics of the land at the time of grant, including that Lot 30 slopes down relatively steeply from the front to the rear, and that Lot 29 continues to slope down towards Marlee Street but not as steeply (see, eg, Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 at [14]-[16] per Handley AJA, with whom Tobias and McColl JJA agreed). Those facts suggest that access between the rear of Lot 30 and Marlee Street is likely to be of benefit to Lot 30 however that access is achieved.

44. I have considered the various circumstances put forward by the defendants in support of the argument that the easement ought to be deemed obsolete. These circumstances are broadly summarised above at [29]. To the extent that those circumstances go beyond changes in the use of the benefitted land, I am prepared to regard them as other circumstances that may be deemed material for the purposes of s 89(1)(a) (see Re RK Roseblade and VM Roseblade and the Conveyancing Act; Re KS Foenander and the Conveyancing Act [1964-5] NSWR 2044 at 2046 per Else-Mitchell J).

45. The house and associated infrastructure that have been constructed on Lot 30 (as depicted on Mr Skow’s survey and as shown in various photographs) do not seem to me to provide support for the obsolescence argument. The construction does not mean that the benefit to Lot 30 of access between its rear and Marlee Street is removed or even reduced in any significant way. The “driveway” referred to in submissions appears to be only a concrete crossing on the footpath between Lot 30 and Vista Close (described on Mr Skow’s survey as “Concrete Accessway”) and the “informal accessway” appears to be unmade and in large part steep. It is true that access into the rear section of the house involves a number of stairs but, as explained by Mr Castle, not as many stairs as are involved in gaining access to the front section of the house.

46. The rear fences of Lot 30 (initially a timber fence, later replaced by the existing Colorbond fence) that have blocked entry onto the right of carriageway could be quite easily and inexpensively removed or modified to allow entry into the right of carriageway.

47. There is some evidence that it would now be possible to construct a driveway from Vista Close to the rear of Lot 30 to enable vehicular access without causing damage to the Council infrastructure (see the report of Mr Fryar at paragraph 5.1.6 and the report of Mr Branch at paragraph 3.7). I note that a driveway has been constructed on the neighbouring Lot 26, for example. However, in the absence of an assessment of a detailed design, and, in light of the easement for batter, a geotechnical assessment, I would not at present regard this as a proven option.

48. There is also evidence that it would not be possible to construct within the right of carriageway a driveway that complies with applicable design and planning standards, and that Council approval for a driveway within the right of carriageway (which would in any case be prohibitively expensive) is most unlikely to be given. There is also doubt about whether approval would be given to remove the large pine tree. This evidence firmly suggests that vehicular access between the rear of Lot 30 and Marlee Street is unlikely to be achievable along the right of carriageway.

49. Nevertheless, it remains the case that if the fences that presently obstruct the right of carriageway are removed or modified to incorporate gates, and some light vegetation is cleared, the easement could be conveniently used for pedestrian access. There is also the potential for the surface of the right of carriageway to be improved to provide an enhanced pathway that might, for example, be suitable for bicycles.

50. The defendants submitted that the facts of the case are comparable to those in Walker v Bridgewood (2006) 12 BPR 23,537; [2006] NSWSC 149, where Gzell J ordered the extinguishment of a right of way in Balmain on the grounds of obsolescence. In that case, it was not only held that the object of vehicular passage was incapable of fulfilment (see at [74]-[86]), it was also held that there was no good reason why a person would want to use the right of way for pedestrian access (see at [93]-[94]). I do not think that is the position in the present case. Mr Castle gave evidence of various reasons for wanting to use the right of carriageway as a pedestrian, including walking his children to the local primary school, and walking to Rofe Park and to the shops on Galston Road. I accept that those reasons are genuine and that such use is realistically capable of achievement.

41. The present case also differs from Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (supra) where, as noted by Mason P (at [8]), there was no suggestion of usage or need for usage of the easement by pedestrians. The easement in that case was in Mascot, in an industrial rather than residential setting. The dominant tenement was at the time of grant virtually landlocked. Further, as noted by Meagher JA (at [20]), “unlike most easements” the easement was expressed to be limited for a particular purpose. That purpose was having access to and from Ricketty Street. At the time of hearing, that use was impossible, “even illegal” (see Meagher JA at [23]), and the dominant tenement had access to Gardeners Road (see also Mason P at [9] and Stein JA at [30]).

42. It is, of course, necessary to focus upon the particular facts and circumstances of the case at hand. Having considered those matters, I am not satisfied that the easement ought to be deemed obsolete. The objects or purposes of the easement, which in my view include non-vehicular access between the rear of Lot 30 and Marlee Street, are not incapable of fulfilment, and the easement cannot be said to serve no present useful purpose. It is not an easement of no practical utility which ought be removed in order to “clear the title”. Accordingly, the defendants’ claim under the first limb of s 89(1)(a) has not been made out.

43. It is next necessary to deal with the defendants’ claim under the second limb of s 89(1)(a). Under that limb, it is necessary to show that the continued existence of the easement would impede the reasonable user of the land subject to it (Lot 29) without securing practical benefit to the persons entitled to the easement.

44. It has been held that if extinguishment is sought on this ground, it must be shown that no reasonable user of the land is possible unless the easement is extinguished (see Heaton v Loblay (1959) 60 SR (NSW) 332 at 335 per Myers J – followed on numerous occasions including, for example, by Brereton J, as his Honour then was, in Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [60]).

45. As I understood the submission made by the defendants, the claimed impediment to the reasonable user of Lot 29 would arise if the right of carriageway were to be developed by the construction of a driveway for vehicular traffic (see written submissions paragraphs 2(a) and 1(b)). Reference is made to various undesirable features of such a construction, including that it would be elevated above, and in close proximity to, living areas at the back of the house on Lot 29, and would render the easement area unavailable for any other use. The construction of a driveway as described might well make it impossible to reasonably use Lot 29 as a domestic residence. However, the evidence before the Court is to the effect that Council approval for such a driveway is most unlikely. In these circumstances, I am unable to conclude that the continued existence of the easement would impede the reasonable user of Lot 29 in the manner suggested (cf Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764 at [53]-[55] per Darke J). Further, given my conclusion that the right of carriageway is capable of use by pedestrians, I do not think that the continued existence of the easement secures no practical benefit to the plaintiffs as the persons entitled to the easement. The defendants’ claim under the second limb of s 89(1)(a) has also not been made out.

46. I turn now to the defendants’ claim under s 89(1)(b) that the right of carriageway has been abandoned.

47. As noted earlier, the defendants invoke s 89(1A) in support of this claim. That provision operates if the Court is satisfied that the easement in question has not been used for at least 20 years before the application under s 89(1) is made. I think it likely that “made” within s 89(1A) refers to the date the application is filed rather than heard (cf Sheppard v Smith (supra) at [40]). In this case, that is the date of filing of the Cross-Claim, being 31 January 2022. At least 20 years before that date would be 30 January 2002. However, the findings I have made concerning the use of the right of carriageway by the Ryan children (see above at [36]) mean that I cannot be satisfied that the easement has not been used for at least 20 years before 31 January 2022. The same result would follow if “made” was taken to refer to the date of hearing. It is thus not necessary to consider s 89(1A) further.

48. It should be noted, however, that the non-user of the right of carriageway in the period from about 2005 until the plaintiffs acquired Lot 30 in November 2020 may, in conjunction with other acts or omissions of the owners of Lot 30 (relevantly the Ryans), be relevant to the question of abandonment.

49. In Sheppard v Smith (supra), Beech-Jones JA (with whom Gleeson JA and Basten AJA agreed), referring to Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, said at [45]-[46]:

[45]   A conclusion that the owner of the dominant tenement has abandoned an easement over the servient tenement is a finding of fact (Treweeke at 282 per McTiernan J; at 302 per Mason J). The ultimate issue is whether an inference of abandonment should be drawn “taking into account all the matters of fact which may tend towards or against a conclusion that the easement may reasonably be considered to have been abandoned” (Treweeke at 287 per Walsh J).

[46]   It has been said that “a firm intention [on the part of the owner of the dominant tenement] that neither he nor any successor in title of his should thereafter make use of the easement” is required and that “[a]bandonment is not … to be lightly inferred” (Gotobed v Pridmore (Court of Appeal (UK), 16 December 1970, unrep); as later cited in Williams v Usherwood (1983) 45 P & CR 235 at 256; “Williams”). Thus, a right of way will not necessarily be extinguished by non-user alone (Treweeke at 284 per McTiernan J; at 302 per Mason J). However, acquiescence in, and failure to object to, the placing by the owner of the servient tenement of obstructions on the right of way which are inconsistent with its exercise may lead to an inference that the owner of the dominant tenement intended to abandon it (Treweeke at 303 per Mason J).

60. The defendants’ abandonment case does not rest upon any agreement on the part of the plaintiffs’ predecessors in title to extinguish or modify the easement. Rather, the case is based upon the acts or omissions of those predecessors in title. The defendants’ submissions in this regard are summarised above at [31].

61. Those submissions fall to be considered in light of the findings I have made concerning the use of the right of carriageway by the Ryan children. However, the defendants contended that the easement should be taken to have been abandoned even before that use commenced from about 1983. It was submitted that the right of carriageway had been abandoned by the original owners of Lot 30 by 1974, or by the Ryans by 1983. The abandonment case is said to be supported by the fact that, along the rear boundary of Lot 30, fences were erected which did not have gates so as to allow access to the right of carriageway. It was submitted that the fences were erected with either the agreement of the Lot 30 owners or with their acquiescence. It was also noted that the fence at the front of Lot 29 extended across the right of carriageway and did not have a gate in it to facilitate access to the easement.

62. The first fence was erected in the period from 1967 to 1974, probably at about the time the house on Lot 30 was constructed. The fence was a wooden structure. Timothy Ryan gave evidence that it was a higher fence than the Colorbond fence that replaced it and not as easy to climb. If that evidence was based on actual recollection, it suggests that the Colorbond fence might not have been erected until some time after 1986, as suggested by Mrs Ryan. In any case, nothing of significance turns upon the precise date the wooden fence was replaced.

63. I accept that the original owners of Lot 30, at about the time their house was built, agreed to the construction, or at least acquiesced in the construction, of the wooden fence. That conduct is consistent with those owners not having an intention to make immediate use of the right of carriageway. However, it was not shown that those owners agreed to the placing of, or acquiesced in the placing of, any trees, vegetation or structures within the right of carriageway that might make use of the easement difficult. I note that the evidence suggests that the large pine tree was not planted until some time in the period from 1981 to 1986.

64. In my opinion, viewing the circumstances as a whole, including the fact that the wooden fence could be readily removed or modified to enable access to the right of carriageway, the inference should not be drawn that those owners had a firm intention that neither they nor any successors in title would make use of the easement in the future (cf Grill v Hockey (1991) 5 BPR 11,421 at 11,424 per McLelland J; Sheppard v Smith [2021] NSWSC 1207 at [176]-[190] per Parker J). It has been said on numerous occasions that abandonment of an easement is not lightly to be inferred (see, eg, Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525; [2005] NSWCA 80 at [29]-[35] and the authorities cited therein).

65. I would also not draw such an inference in respect of the Ryans. The period from about 1974 to 1983 was a period of non-user of the easement, but there is little else in their conduct during that period that might suggest an intention to abandon it, other than perhaps a failure to object to the planting of the pine tree.

66. The Ryans, through their children, in fact commenced to make occasional use of the right of carriageway in about 1983, and such use continued until about 2005. At some time during that period, the wooden fence was replaced by the (perhaps easier to climb) Colorbond fence, with the cost shared between the owners of Lots 29 and 30. From about 2005 there was a further period of non-user, but considering all the circumstances, I do not accept that the Ryans should be taken to have abandoned the easement by 2010 when the defendants raised the prospect of a cancellation of the easement. The Ryans rebuffed that suggestion (including the modest offer of compensation), and I infer from Mr Ryan’s note that he informed the defendants’ conveyancers that he was interested in using the right of carriageway “in due course”. The Ryans raised no objections to the renovation works later carried out on Lot 29, but those works were designed to accommodate the right of carriageway, and the approved plans do not show any works in the right of carriageway area. To the extent that the defendants carried out associated works in the easement area, such as the fence about halfway along, it was not shown that the Ryans had the opportunity to object but failed to do so. No suggestion to that effect was put to either Mr or Mrs Ryan in cross-examination. In any case, those works, which were undertaken in the knowledge that the Ryans were unwilling to have the right of carriageway cancelled, are not major impediments to making the right of carriageway area more suitable for use. To the extent that the defendants submitted that the Ryans should be taken to have abandoned the easement after 2010, I would not accept the submission.

67. For the above reasons, I am not satisfied that by the acts or omissions of the plaintiffs’ predecessors in title to Lot 30 they may reasonably be considered to have abandoned the right of carriageway.

68. I turn then to the defendants’ submission that, even if the children of the Ryans made use of the easement as claimed, it should be concluded that the easement has been abandoned except to the extent of a footway. I take the submission to be that the Ryans should be taken to have partially abandoned the easement.

69. By its terms, s 89(1)(b) of the Conveyancing Act contemplates that the acts or omissions of the persons entitled to an easement might reasonably be considered to have abandoned the easement wholly or in part. In Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605, Needham J considered whether a right of way, so far as it authorised use beyond pedestrian use, had been abandoned. His Honour said, at 612-3:

I consider, first, the question whether the owner of the dominant tenement, by appropriate acts or omissions, may abandon, or be held to have abandoned, part of the rights granted by an easement. I approach the question initially without reference to any complications which might arise from the fact that the easement is noted on the registered title of the dominant tenement.

As a matter of pure theory, there seems to be no reason why the law should not recognize such a partial abandonment. An easement is not unlike a fee simple, in the sense that it comprises a number of rights. In each case, they are rights which enure to the benefit of the dominant tenement, and to the detriment of the servient. It is open to contracting parties to provide that an easement, particularly in the case of a non-continuous easement such as a right of way, shall include certain of such rights and shall exclude others. An obvious example, in relation to a right of way, can be found in Parts I and II of Sch. VIII to the Conveyancing Act, that is, rights of carriageway and rights of footway. If such separation of rights can be achieved expressly, I can see no reason why they cannot be achieved by implication from conduct

…

It seems to me that there is a distinction between not using a single right (e.g. the right to draw water, or to walk along a right of way) to the full extent permitted and the omission to use one of a parcel of rights (e.g. driving a vehicle along the site of a right of carriageway). In the former case the right is exercised, albeit not to the full extent permitted, while in the latter that particular right is not used at all.

(See also the judgment of Powell J, as his Honour then was, in Guth v Robinson (1977) 1 BPR 9209 at 9213-4 and of Young J, as his Honour then was, in Finlayson v Campbell (1997) 8 BPR 15,703 at 15,717).

70. In Finlayson v Campbell (supra) Young J stated, at 15,717-8:

The difficulty in applying the doctrine of abandonment of part is really a result of the fact that the doctrine first grew up in connection with partial abandonment of a right of ancient lights. With such a right, the dominant owner’s alteration of a building to block up some windows and to reposition others can well be an abandonment of part as was said by Pollock CB in Jones v Tapling (1862) 12 CB (NS) 826 at 864; 142 ER 1367 at 1382, a dominant owner may abandon any portion of what he has been granted or used. It is, however, very difficult to apply that principle to a right of carriageway.

71. I agree that it is difficult to apply the principle to a right of carriageway, especially where, as here, some use has been made of the right. Such use necessarily entails an assertion that the easement exists. In the present case, the use made of the right of carriageway was confined to pedestrian use. However, consistent with the principle that non-user on its own is not generally sufficient to establish abandonment, a mere failure to use a right of carriageway in all available ways should not generally lead to a conclusion that there has been an abandonment of the right in respect of the ways not used (see, eg, Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640 at 657 per Viscount Dunedin for the Board).

72. I would add that, whilst a distinction may be drawn between not using a single right to the full extent permitted, and not using one of a parcel of rights, there is much to be said for the view that what has been expressly granted to the owners of Lot 30 by the right of carriageway is a single right of traversal (“to go, pass and repass … to and from the said dominant tenement”) that may be enjoyed in various ways. A right of carriageway ordinarily includes within it a right of footway, such that the latter is not so much an independent right as it is a subset of the right to access the servient tenement granted by easements of that nature. The Roman law promulgated by the Emperor Justinian in 533 CE functioned in much the same way. One who had the benefit of a praedial servitude of uia (the right to treat a tract of the servient tenement as a road) was also seen as possessing the lesser rights of actus (the right to drive beasts through the servient tenement) and iter (the right to traverse the servient tenement by foot) (see Justinian, Institutes 2.3.pr). So viewed, it is difficult to see why a failure to use a particular mode of enjoyment of the right should be regarded as indicative of any abandonment of the right. The question, of course, is one of abandonment of a right, not one of abandonment of a permitted use.

73. It is necessary to consider all of the relevant circumstances. I have already concluded, in relation to the Ryans, that the inference should not be drawn that they had a firm intention that neither they nor any successors in title would make use of the easement in the future. Further, I would not in all the circumstances infer from the limited mode of use of the right of carriageway that the Ryans, at any stage, had a firm intention that neither they nor any successors in title would in the future make any more extensive use of the easement. In addition, the conduct of the Ryans in 2010, after the period of limited use had ceased, and after the circumstances that gave rise to that use had passed, appears contrary to any such intention. Mr Ryan told the defendants’ conveyancers that he was interested in using the right of carriageway for access in due course. That conduct plainly suggests that the Ryans continued to hold an intention to make use of the right of carriageway in the future. I do not accept that the intention so exhibited should be regarded as limited to pedestrian use only.

74. For the above reasons, I am not satisfied that by the acts or omissions of the Ryans they may reasonably be considered to have abandoned the right of carriageway except to the extent of a footway.

75. It follows from the above that the defendants’ claims under s 89(1)(b) have not been made out.

76. I turn now to consider the defendants’ claim under s 89(1)(c) that the proposed extinguishment of the right of carriageway would not substantially injure the plaintiffs as the persons entitled to the easement.

77. It has been held that a substantial injury within the meaning of s 89(1)(c) means an injury that has present substance; that is, not a theoretical injury, but something which is real and which has present substance (see Re Mason and the Conveyancing Act [1962] NSWR 762 at 766 per Jacobs J). The kind of injury contemplated is injury to the persons entitled to the easement in relation to their ownership of the land benefitted (see Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 at 56,856 per McLelland J, cited by Campbell J, as his Honour then was, in Tujilo Pty Ltd v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209 at [87]).

78. I am not satisfied that an extinguishment of the right of carriageway, as sought by the defendants, would not substantially injure the plaintiffs as the persons entitled to the easement. Even accepting that it is unlikely that the right of carriageway will ever be able to be developed so that it is suitable for certain kinds of vehicular access, it can be readily made suitable for pedestrian access. That could be achieved by the removal or modification of the fences that presently obstruct the easement. As I have already said, there is also the potential for the surface of the right of carriageway to be improved to provide an enhanced pathway that might, for example, be suitable for bicycles. If the easement were extinguished, the plaintiffs as the persons entitled to the easement would at least be deprived of the ability to make use of the right of carriageway for pedestrian access between the rear of Lot 30 and Marlee Street. To my mind, that would be a substantial injury within the meaning of s 89(1)(c). Accordingly, the defendants’ claim under s 89(1)(c) has also not been made out.

71. As I am not satisfied of any of the matters set forth in paragraphs (a)-(c) of s 89(1) of the Conveyancing Act, it is not necessary to consider whether to proceed to exercise the discretion conferred by the section to order the extinguishment of the right of carriageway. Matters that might have arisen on that question could include that the plaintiffs acquired Lot 30 at least partly in reliance upon the existence of the right of carriageway recorded on the title to the property, and the related fact that the defendants had not by that time taken steps to have the right of carriageway extinguished (see Pieper v Edwards [1982] 1 NSWLR 336 at 340 per Hutley JA; cf at 342-3 per Samuels JA).

72. It follows from the above that the defendants’ Cross-Claim must be dismissed.

73. Turning then to the plaintiffs’ claim, it is clear in my view that the three fences that traverse the right of carriageway amount to obstructions of the easement. The fence located at the front of Lot 29 and the fence located about halfway along the right of carriageway, both of which were erected by the defendants in about 2011 (see the affidavit of Lena Achdjian, 1 April 2022, at paragraph 23), are obstructions that constitute a real substantial interference with the enjoyment of the right of carriageway, and thus amount to actionable nuisances (see Powell v Langdon (1944) 45 SR (NSW) 136 at 139 per Roper J, and Keefe v Amor [1965] 1 QB 334 at 347 per Russell LJ, each cited by Bryson J, as his Honour then was, in Prospect County Council v Cross (1990) 21 NSWLR 601 at 608-9; see also Treweeke v 36 Wolseley Road Pty Ltd (supra) at 280-1 per McTiernan J). Declaratory relief to that effect should be given. It would also be appropriate for orders in the nature of mandatory injunctions to be made requiring the defendants to take steps to remove those obstructions. I do not think that any other injunctive relief is called for in the circumstances.

74. The Colorbond fence along the rear boundary of Lot 30 stands in a different light. That fence was constructed at some time in the period between 1986 and 2005 as a result of an agreement between the Ryans and the then-owners of Lot 29, with the cost shared between them. The agreement of the owner of the dominant tenement means that the obstruction created by this fence could not be regarded as an actionable nuisance. Accordingly, it would not be appropriate to order the defendants to take steps to remove that obstruction. It would, of course, be open to the plaintiffs to take such steps at their own cost in order to facilitate the exercise of their rights pursuant to the easement. I express no view as to whether the plaintiffs would be entitled to any contribution from the defendants in respect of any such expenditure.

75. As the plaintiffs have been successful in obtaining much of the relief they sought, and as the defendants’ Cross-Claim is to be dismissed, it would be appropriate to order that the defendants pay the plaintiffs’ costs of the proceedings.

76. The parties are directed to confer as to the precise terms of the orders to be made, and to submit to my Associate, within seven days, proposed orders to give effect to these reasons.

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Decision last updated: 04 October 2022