Clarence City Council v Howlin (No 2)
[2019] TASSC 16
•18 April 2019
[2019] TASSC 16
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Clarence City Council v Howlin (No 2) [2019] TASSC 16
PARTIES: CLARENCE CITY COUNCIL
v
HOWLIN, Darryl Robert
QIN, Lihua
SHI, Xiaomin
FILE NO: 823/2014
DELIVERED ON: 18 April 2019
DELIVERED AT: Hobart
HEARING DATE: 15 April 2019
JUDGMENT OF: Pearce J
CATCHWORDS:
Real Property – Easements – Particular easements and rights – Rights of way – Obstruction – Injunction to restrain interference with exercise of right.
Aust Dig Real Property [1494]
REPRESENTATION:
Counsel:
Plaintiff: S B McElwaine SC
Defendants: No appearance
Solicitors:
Plaintiff: Shaun McElwaine + Associates
Judgment Number: [2019] TASSC 16
Number of paragraphs: 10
Serial No 16/2019
File No 823/2014
CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN,
LIHUA QIN and XIAOMIN SHI
REASONS FOR JUDGMENT PEARCE J
18 April 2019
On 30 January 2019 the Full Court allowed the plaintiff's appeal and set aside my order dismissing its action against the defendants: Clarence City Council v Howlin [2019] TASFC 1. The Full Court found, contrary to my original determination, that the title of the second and third defendants, Lihua Qin and Xiaomin Shi, as the present registered proprietors of the land comprised in folio of the register volume 219376 folio 6, called Lot A, is not indefeasible because s 40(3)(e)(ii) of the Land Titles Act 1980 applies. That is, the title to Lot A is subject to equitable easements, in the nature of rights of carriageway, appurtenant to the titles of eight adjoining lots. The rights of way give access from the adjoining lots over Lot A to a public road, Spitfarm Road.
The action was remitted to me for further hearing and determination according to law, and in accordance with the findings of fact made upon the determination of the appeal. These reasons should be read in conjunction with the reasons of the Full Court and with my original reasons: Clarence City Council v Howlin [2016] TASSC 61. The principal issue for determination is the terms of the declaratory and injunctive relief to be granted to the plaintiff. The terms of the declaratory relief follow from the result of the appeal. The plaintiff also seeks prohibitory and mandatory injunctions:
· restraining the defendants from interrupting the rights of way now and in the future;
· requiring the defendants to remove a fence constructed over part of the frontage of Lot A to Spitfarm Road, and restraining the defendants from erecting a fence in the future; and
· restraining the defendants from erecting signage to the effect that persons must keep out of Lot A.
Ms Qin is the wife of the first defendant, Darryl Howlin. Ms Shi is Ms Qin's daughter. Ms Qin and Ms Shi, took no part in the appeal or the remittal. The first defendant, Mr Howlin, participated in the directions hearings leading up to the further hearing of the action but did not adduce evidence and, although he was present in court during the hearing, did not appear and declined the invitation to make submissions. He had previously submitted some written material which did not advance any relevant argument.
For the following reasons relief should be granted substantially in the terms sought by the plaintiff. The Council's action was heard with a separate action commenced by the registered proprietors of some of the lots claiming the benefit of the equitable right of way. The circumstances which led to the commencement of the actions are set out in full in my original reasons. Before the action was commenced Mr Howlin sent a series of communications to the Council and to the adjoining owners. He asserted a right to fence and gate Lot A at or near its boundary with Spitfarm Road. When he first threatened to fence and gate Marsh Street in 2012 he was the still the registered proprietor of Lot A. Later, after he had transferred Lot A to his wife and her daughter, he purported to act on their behalf. He threatened to prevent access to the owners, the Council and to garbage and postal services. He demanded $100,000 from each owner in return for creation of a right of way. He threatened to make their life difficult and acted on his threat. On 10 September 2014 he caused a fence and gate to be erected. The plaintiff is the relevant local government authority. The Full Court found that the Council had standing to apply for declaratory and injunctive relief for the purpose of preventing interference with the performance of its public responsibilities by the erection of a fence or otherwise.
Although I came to the conclusion, incorrectly, that an equitable easement was not enforceable by the plaintiff owners, I considered that it was a clear case for the grant to them of a statutory easement over Lot A. I also concluded that Mr Howlin's past actions justified the grant of injunctive relief against the threat of a future breach. I remain firmly of that view. Mr Howlin's subsequent conduct has made the need for an order restraining the possibility of future breach even more clear. At every opportunity Mr Howlin repeatedly asserts his entrenched, but mistaken and irrelevant, view that Marsh Street is a public street. He refuses to accept repeated statements from this Court and the Full Court to the contrary. No amount of patient explanation seems to dissuade him. His perception of an unjust result in litigation over many years informs his attitude that, if he cannot have Marsh Street as a public street, he will make life difficult for the Council and the owners should he be permitted the opportunity to do so. The construction of the fence in 2014 was, I found, the result of the decision of Evans J in Clarence City Council v Howlin [2012] TASSC 26, 192 LGERA 360. He makes repeated and unfounded allegations of misconduct directed to the responsible Council officer and counsel. During his frequent court appearances before me I have observed his belligerent and uncompromising attitude. I have no faith that he will not act contrary to the terms of a declaration unless compelled by injunction.
The only issue which attracts any uncertainty in my mind is whether the terms of the injunction I will order should restrain interruption of the entrance to the right of way across the whole of its width. I am now persuaded that it should. Obstruction of or interference with a private right of way is not actionable unless it is real and substantial: Pettey v Parsons [1914] 2 Ch 653. The question whether there is a substantial interference with the use and enjoyment of the right of way depends upon the facts and circumstances of the case: Stewart v Cooper A3/1986, [1986] TASSC 3, per Neasey J. It also depends on the terms of the easement: Krolczyk v Raffan A62/1991, [1991] TASSC 78. The right of carriageway found by the Full Court to exist grants to the owners of the dominant tenements, by operation of the Conveyancing and Law of Property Act 1884, s 34A and Sch 8:
"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 authorized by him, 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."
Marsh Street, where it meets Spitfarm Road, is about 17 metres wide. The terms of the injunction I granted in favour of the adjoining owners permitted the defendants to retain a fence roughly parallel to Spitfarm Road provided an ungated opening of six metres was left. In making that order I was then considering what was necessary to support the statutory easement. The nature and terms of the grant of the easement now being considered is different. The rights of way found by the Full Court exist, and have existed since the first transfers, over the whole of Lot A. There is, according to the terms of the right, no restriction on where the owners of the dominant tenements may enter and cross Lot A. There are nine houses which rely on Marsh Street for access. It is, and always has been, a residential subdivision. The nature of the residential use of property is that the owners, visitors and invitees come and go from the property frequently. Quite apart from the obvious intention of the parties at the time the lots were first transferred, the objective circumstances of the subdivision development make clear that Marsh Street, including Lot A in its entirety, was to be a private laneway for use as access by multiple owners. It has been put to that use for more than 60 years. Until recently, that use was not interrupted by any fence.
My view about the terms of the injunctive relief is also affected by Mr Howlin's conduct. When my original reasons were published, the fence built by Mr Howlin was in the nature of a cyclone fence with cylindrical metal posts and top and bottom rails and with wire mesh. It appeared from the photographs to be only about 1200mm high. It was not visually obtrusive. Since then, alterations have been made to the fence so that it is now higher, in my estimate almost two metres high, and solid. It is constructed of what appears to be corrugated iron sheets fixed vertically to the frame of the fence. It is now a significant visual barrier which presents a real physical and psychological deterrent to entry. Conversely, whilst it is important to recall that Marsh Street is a private right of way and not a public street, the defendants have presented no evidence that a fence over part of the boundary serves any purpose or is necessary or desirable for any reason. Lot A cannot be developed for any other use. A fence serves no privacy or security function. Mr Howlin owns the property called "Highbury" at the eastern end of Marsh Street. It has other access to Spitfarm Road. Removal of the current fence will involve little cost. I will permit 30 days for its removal. I will also make the order sought prohibiting the defendants from erecting signs. There are no signs presently in place, but Mr Howlin has put up signs in the past obviously designed to deter entry, especially by visitors or service providers unfamiliar with the land and the dispute. The rights of way permit entry by the owners of the dominant tenements, but also every person authorised by them. I am satisfied that there remains the risk that Mr Howlin will erect a sign or signs intended to create unjustified uncertainty in the minds of visitors, officers, employees and contractors of the Council and other service providers about whether entry onto Lot A is permissible, and thus to deter such entry.
The only remaining issue is the costs of the action. It follows from the result of the appeal that the plaintiff's action was wholly successful. Along the way the Council failed in some issues which occupied time at trial. However, the resolution of those issues against the plaintiff does not justify departure from the general rule that the successful party should have its costs. The plaintiff only seeks a costs order against the first defendant.
Orders
The orders of the Court are as follows:
1 Declared that the registered title of the second and third defendants pursuant to the Land Titles Act 1980 as comprised in certificate of tile vol 219376 folio 6 (the servient land) is not indefeasible by operation of s 40(3)(e)(ii) of the Land Titles Act in relation to equitable rights of way in favour of the lands comprised in the following certificates of title and described in each as a benefiting easement being a right of carriage way or a right of way:
avol 62456/1;
bvol 62456/2;
cvol 62456/3;
dvol 62456/4;
evol 199983/1;
fvol 62456/7;
gvol 62456/8;
hvol 62456/9
(collectively the rights of way).
2 The defendants, their servants or agents, are restrained from obstructing access to or use of the servient land by each of the persons entitled to the benefit of the rights of way for the entire width of the servient land.
3 The defendants, their servants or agents, are restrained from obstructing access to or use of the servient land by the plaintiff, its officers, employees and or contractors, for the purpose of providing services and facilities to the owners and occupiers of each of the certificates of title set out in order 1 and for the entire width of the servient land.
4 The defendants must remove, within 30 days, all fencing erected on the servient land at or near the boundary of the servient land with Spitfarm Road, Opossum Bay and which is parallel or substantially parallel to Spitfarm Road.
5 Each of the defendants, their servants or agents, are restrained from erecting, at any time in the future (without further order), any other fence or any other form of physical barrier on the servient land that:
aprevents or hinders the lawful exercise of the rights conferred pursuant to each right of way and for the entire width of the servient land.
bprevents or hinders the plaintiff in its provision of services or facilities to the owners or occupiers of the land set out in order 1.
creduces the physical width of the rights of way.
6 The defendants, their servants or agents, are restrained from erecting signage on the servient land that reads, or is to the effect that, persons must not trespass upon the servient land or must keep out of it.
7 The first defendant is to pay the plaintiff’s costs of the action, to be taxed.
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