D & D Corak Investments Pty Ltd v Yiasemides

[2006] NSWSC 1419

CITATION:	D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419
HEARING DATE(S):	11/12/06
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	12/11/2006
DECISION:	Application for grant of easement refused at this stage. Plaintiff to pay defendants' costs of proceedings to date.
CATCHWORDS:	REAL PROPERTY [250]- Grant of easement- Dry cleaners seek right of way from street to back yard- Past use of way by leave and licence- Whether easement is reasonably necessary- Substantial inconvenience to defendants- Application refused at this stage.
LEGISLATION CITED:	Conveyancing Act 1919, s 88K
CASES CITED:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Hanny v Lewis (1998) 9 BPR 16,205 Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 Khattar v Wiese [2005] NSWSC 1014 Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 Woodland v Manly Municipal Council (2003) 127 LGERA 120
PARTIES:	D & D Corak Investments Pty Ltd (P) Andrew Yiasemides (D1) Kalliopi Yiasemides (D2)
FILE NUMBER(S):	SC 2433/06
COUNSEL:	G A Moore (P) P O'Loughlin (D)
SOLICITORS:	FeeneyLawyers (P) D C Chambers & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 11 December 2006

2433/06 – D & D CORAK INVESTMENTS PTY LTD v YIASEMIDES

JUDGMENT

1 HIS HONOUR: This is an application by the proprietor of No 271 Bay Street, Brighton Le Sands for the grant of an easement over land at 273 and 275 Bay Street under section 88K of the Conveyancing Act 1919.

2 The plaintiff's premises consist of a two storey building. The ground floor of the plaintiff's premises is split into three sections. The western section is a stairway for the upstairs portion, the principal section (the middle), is used as a dry cleaners shop currently leased to a Mr Kumar, and the eastern portion is currently vacant. The upstairs portion is leased for offices. The principal problem appears to be with respect to Mr Kumar's dry cleaning business.

3 Bay Street, Brighton Le Sands, is a main road between Rockdale and Botany Bay. It is a heavily trafficked thoroughfare and parking outside number 271 is restricted during business hours to half an hour. Mr Kumar says he needs rear access so that he can get deliveries of white spirit, which he says is necessary to dry clean delicate fabrics and leather clothing, and also needs rear access so that his machinery can be accessed for repair. He also needs it to provide proper fire exits, for taking out garbage and other purposes.

4 The subject premises are close to the intersection of Queens Road. As one goes east along Bay Street from number 271 one passes the front of 273 which is operated as a newsagent by Mr Henry To. The registered proprietors of 273 are the two defendants, Mr Andrew and Mrs Kalliopi Yiasemides. Number 275 is on the corner of Queens Road. The registered proprietor of this block is the first defendant. Number 275 is used as a service station, but at the rear, although facing Queen Roads, is a brick shop, which has been leased since 2003 to Bonanza Pressing and Dry Cleaning Services Pty Ltd, which, as its name suggests, also operates a dry cleaning business.

5 Further along Queens Road at the rear of the Bonanza shop is a right of way, 3.66 metres wide, which burdens number 275 in favour of number 273. The plaintiff seeks that that right of way be extended through number 273 to number 271, that is, seeks a grant of a right of way 3.66 metres wide at the rear of numbers 275 and 273 in favour of number 271.

6 I had a view of the premises this morning. The rear of 271 is a small backyard with grass. On the 269 Bay Street side there is a construction site and I am informed that a large block of home units is being erected there so that, whilst in the past there could have been some access to the rear of 271 from 269, that is no longer possible.

7 At the rear of 271 there is another block of home units fronting Queen Road and that does have a driveway which abuts the rear fences of 271, 273 and 275. I was informed that although the plaintiff had sought permission of the proprietors of that block to use that drive as a rear access, that request had been refused on the ground of safety to the children who were residents in that block of home units. That matter has not been pursued. I mention it, however, in case it needs to be considered whether there are alternative methods of access to number 271's rear yard than via the right of way that I mentioned earlier.

8 The plaintiff says that at all material times since at least 1982 up until November 2005 there was no impediment at all to it using the right of way. The defendants dispute this, but there is no doubt that there was considerable use of the right of way with the consent of the defendants or their predecessors in title for most of that time.

9 The evidence as to the degree of use is not entirely consistent, and this is understandable because people were not directing their mind to that particular matter and it is over a year since it ceased, but it would seem to me that the plaintiff and its predecessors did use the right of way relatively constantly. However, it is also clear that it did so by leave and licence and that there was a proposal by the plaintiff or its predecessor in title to buy a right of way and that was refused probably about 15 years ago and thereafter there has been leave and licence.

10 The case was set down as an expedited hearing for today and I have been greatly assisted by the submissions of Mr G A Moore for the plaintiff and Mr P O'Loughlin for the defendants. Section 88K of the Conveyancing Act provides as follows so far as is relevant:

“(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land ... can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
(3) …
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary."

11 Thus in applications under s 88K the court needs to consider the following:

1. Is the proposed easement reasonably necessary to the effective use or development of the applicant's land?

2. Will the use of the applicant's land be not inconsistent with the public interest?

3. Can the owner of the land to be burdened be adequately compensated for any loss or other disadvantage that would arise?

4. Have all reasonable attempts been made by the applicant to obtain the easement or an easement having the same effect, but been unsuccessful?

5. If each of the foregoing is answered affirmatively should the court exercise its discretion to impose an easement?

6. Unless there are special circumstances, what compensation should be imposed?

7. Is there any reason why the costs should not be paid by the applicant?

12 Because of the thoroughness with which other Judges in this Division have dealt with the concepts, I do not need to perform the same exercise as the concepts and principles have been thoroughly digested in cases such as 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; Khattar v Wiese [2005] NSWSC 1014; Owners Strata Plan 13635 v Ryan [2006] NSWSC 221; Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303; Woodland v Manly Municipal Council (2003) 127 LGERA 120 and, my own decision in Hanny v Lewis (1998) 9 BPR 16,205.

13 1. The cases indicate that the word "necessary" does not mean absolutely necessary, but it does mean more than something that is convenient or nice to have and that one must look for a requirement that is far closer to necessity than it is to convenience.

14 Secondly, that when one is considering whether an easement is reasonably necessary one is not involved in any exercise of a discretionary nature, but rather is evaluating the various factors involved; see Woodland at p 128. Thirdly, that when one is evaluating the factors involved one does not only deal with the question of what is good for the applicant, but one must also bear in mind the effect of the grant of the easement on other parties. As Hodgson J said in Katakouzinos, a statement affirmed by both Hamilton J in Woodland at 129 and by Brereton J in Khattar, "The greater the impact the less likely the conclusion that there is reasonable necessity" and that aphorism fits into the assessment by the court of what is reasonable.

15 Although the court does not look to see whether the proposed use of its land by the plaintiff is the only reasonable course, the court must assess that use in the wider picture of the other surrounding owners as well. Furthermore, when one is dealing with easements one must remember that they are rights over land. Accordingly, when one is assessing whether the grant of an easement is reasonably necessary it means reasonably necessary for the use and enjoyment of the plaintiff's land, not just for the convenience of any particular proprietor or tenant of the land; see Hanny.

16 That last point is of particular note in the instant case because most of the problems arise because of the use of number 271 as a dry cleaner's shop rather than the actual development of the land itself and, in particular, the way in which Mr Kumar uses the shop in 271. I say that because Mr Kumar uses white spirit for the dry cleaning of delicate and leather fabrics whereas there is some suggestion that not all dry cleaners in this day and age do so.

17 Mr Moore has presented almost every possible submission that ingenuity could think of in advocating that in all the circumstances what the plaintiff requires is reasonably necessary. However, as I put to him during argument, it would not take very much more along the line of those submissions to come to the view that almost all business premises should be given a rear access and if they did not have such access then some access should be resumed over adjoining land. That is not the purpose of the Act.

18 The purpose of the Act was probably twofold: (a) to get over what I might call blackmail situations where a temporary easement was needed over land whilst adjoining land was in a construction phase and adjoining owners were making exorbitant demands; and (b) to ensure that proper economic use was made of land which could only occur if there was an easement over adjoining land, such as in the Khattar case where a development could only take place if a drainage easement was available over adjoining land. The Act was not intending that whenever a person thought that they should have a rear access to a block of land in one of the older suburbs where there was only one entrance, that an easement should be given so that that property would be enhanced.

19 In the instant case there are some weighty factors as to why I should hold that such an easement is reasonably necessary. First, for 20, 30 or even 50 years the proprietors of the dry cleaner's shop at number 271 have availed themselves of that access up until November 2005. Secondly, there is evidence that the plaintiff does require white spirit for its business and there are very great inconveniences in not having bulk deliveries of white spirit.

20 Bulk deliveries, I conclude on the evidence, can only realistically be made through the rear. However, as Mr O'Loughlin pointed out in cross-examination, it is not absolutely necessary that there be bulk deliveries. One may be able to obtain, perhaps at an additional cost, a series of smaller containers of white spirit at more frequent intervals. The evidence would tend to show that bulk deliveries are in any event only needed about three or four times a year and that there has been no bulk delivery for over twelve months, though the plaintiff may very well be running out of white spirit before the end of this year.

21 Nextly, I can see that there would be difficulties on occasions when machines have to be repaired and bulky pieces of metal have to be removed that it would be far better if these were moved out of the back street. However, I am not satisfied that they could not be taken through the front of the shop, at least if the front of the shop was just a little rearranged. By just a little, what I mean is that at the moment if one has to get from the front door of the shop through to the backyard one lifts a lid in the counter which is just over the width of a human being and passes through. There is no real reason why the lid of the counter should not be made wider.

22 Then there is the matter of fire. Fire is a problem, especially when one is dealing with flammable liquids, but there is escape into the backyard and I am quite sure that if the emergency was great enough someone would scale a fence, as it would appear the person who does the lawn mowing in the backyard of number 271 does at the moment.

23 So, then, there are weighty matters as to why the easement might be reasonably necessary. One has got to then weigh those in connection with the inconveniences to other persons. At the moment 275 is used for the Bonanza dry cleaning business and that business allows its customers to stop on the right of way for the purpose of taking their garments to the shop or removing garments from the shop. There has been no complaint by Mr To as to that interfering with his right of way because the right to park on the right of way by customers of Bonanza must yield to Mr To or his landlord's proprietary right to use the easement and doubtless that is one reason why Mr To finds little inconvenience in getting out through number 275.

24 The Bonanza tenant says that he has additional problems if 271 is also given access through 275. Mr To, the lessee of 273, says that the way his business works is, he and his wife arrive at different times, they have two cars, they park these cars at the rear of 273 and have many deliveries and pick up of goods.

25 Mr Moore says that one of these could, as happened before November 2005, park in the carport. That may well be so, but it still leaves one car which needs to be parked where the right of way would be, if I were to create it and would also create problems for delivery trucks. It seems to me that in the case of small back yards such as the present it is not at all unreasonable for Mr To to use his backyard as he does at the moment.

26 Thus, in my view when one considers the inconvenience or inconvenience plus to the plaintiff and the inconvenience to Mr To and one takes into account what is apparent from the cases that one should not deprive people of proprietary rights without it being clear that one should do so, the plaintiff has failed to show that the grant of the easement in its present form is reasonably necessary. I say "in its present form" because the case may be different if the easement which was being sought by the plaintiff was one which required an easement to operate, say, only on the last Friday of every odd month of the year. I am not at all sure whether such an easement can exist as an incorporeal hereditament. That point has not been argued and I express no view. It is clear, however, that I do not have power to grant a licence to like effect.

27 Mr Moore, in discussion, also indicated that it may be possible to limit the number of traverses over the right of way in any one month or year.

28 I have not, nor has anybody else, directed my mind fully to whether, if such an easement were sought (and it has not yet been sought), then that would be reasonably necessary and I believe that I should do what Brereton J did in Khattar and that is, deal with the case to date but stand the matter over to the new term in case such an application be made.

29 Accordingly, I do not find the first factor in the plaintiff's favour. This makes it virtually unnecessary to consider the others but in view of the possibility of some other application being made, I will say a few words on each.

30 2. The matter is not whether the grant of the easement would be in the public interest. It is not whether it is always in the public interest to move cars off the street and have them parked on private lands but rather, whether the relevant use of the applicant's land, if the easement were granted, is not inconsistent with the public interest. It would seem to me that, put that way, the answer to the question is, it is not inconsistent with the public interest and that the question would be answered favourably to the plaintiff.

31 3. I believe there can be adequate compensation. The compensation would be the value of the land plus a factor to deal with disturbances. Although I only have a valuation of the land at the moment, I would not feel any problems about assessing compensation in such a way that would be an adequate compensation to the proprietors of numbers 273 and 275.

32 4. This matter is being conceded.

33 5. I have doubts as to whether the court should exercise its discretion, but there is no need to voice these in view of my finding on the first issue.

34 6. Again, as I have said in dealing with 3, compensation could be assessed.

35 7. The best answer is "apparently not".

36 Accordingly, I stand it over to my list for mention at 9.50 am on Monday 5 February 2007, but if either party wishes to change that date they may contact my Associate a few days before. The papers will be marked "no order made at this stage."

37 Order that the plaintiff pay the defendants' costs of the proceedings to date. Further consideration generally and as to costs reserved. Liberty to the defendants to have their costs assessed and paid forthwith.

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