Dick v Launceston Greyhound Racing Club Incorporated
[2001] TASSC 142
•17 December 2001
[2001] TASSC 142
CITATION:Dick v Launceston Greyhound Racing Club Incorporated [2001] TASSC 142
PARTIES: DICK, Leslie Walker
v
LAUNCESTON GREYHOUND RACING CLUB INCORPORATED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 66/1998
DELIVERED ON: 17 December 2001
DELIVERED AT: Hobart
HEARING DATES: 20, 21 and 22 November 2001
JUDGMENT OF: Slicer J
CATCHWORDS:
Real Property - Easements generally - Creation - By prescription - Length of time - Right of entry to rear of plaintiff's property over defendant's land - Sufficient change in usage.
Cargill v Gotts [1980] 2 All ER 49; Johns v Delaney (1890) 16 VLR 729; RPC Holdings Ltd v Rogers [1953] 1 All ER 1029; British Railways Board v Glass [1965] 1 Ch 538, followed.
Prescription Act 1934 (Tas).
Land Titles Amendment (Law Reform) Act 2001 (Tas).
Conveyancing and Law of Property Act 1884 (Tas), s8.
Aust Dig Real Property [413].
REPRESENTATION:
Counsel:
Plaintiff: R A Hart
Respondent: R W Pearce
Solicitors:
Appellant: Rae & Partners
Defendant: Douglas & Collins
Judgment Number: [2001] TASSC 142
Number of Paragraphs: 32
Serial No 142/2001
File No 66/1998
LESLIE WALKER DICK v
LAUNCESTON GREYHOUND RACING CLUB INCORPORATED
REASONS FOR JUDGMENT SLICER J
17 December 2001
The plaintiff is the owner of land adjoining a racing complex owned and operated by the defendant. He claims the existence of a right of way over portion of that land alongside the car park of the complex and seeks a declaration to that effect.
The plaintiff's property is commercial and is leased to a business which requires access by vehicles. The property has access onto Invermay Road, but its size and use make it preferable, if not necessary, for vehicles to travel through a rear entrance opening onto the car park.
In March 1998, the defendant, through its agents, obstructed the rear entrance to the plaintiff's property and these proceedings commenced on 15 May 1998. The claim is pleaded in the following terms:
"4The Plaintiff and the predecessors in title of the Plaintiff's land and the several occupiers thereof have for the full period of forty years before the commencing of this action enjoyed as of right and without interruption the rights of way referred to in paragraph 3 above and the Plaintiff claims the right to do so as a legal right pursuant to the Prescription Act 1932 [sic].
5The Plaintiff and the predecessors in title of the Plaintiff's land and the several occupiers thereof have for the full period of twenty years before the commencing of this action enjoyed as of right and without interruption the rights of way referred to in paragraph 3 above and the Plaintiff claims the right to do so as a legal right pursuant to the Prescription Act 1932 [sic]."
Particulars of use were provided in the following terms:
(1) use of the land commenced at a time well prior to 1968;
(2) that it was used for the benefit of the plaintiff's land;
(3)that a double gate existed at the rear of the plaintiff's property and its replacement was installed at the same point and with similar dimensions;
(4)that vehicles had entered and departed from the plaintiff's land through an identified portion of the car park and the gate;
(5)that there was daily use of the land;
(6)that the use has been made "openly and hostilely and without permission on a daily basis for the benefit of the Plaintiff's land for access".
The defendant denies regular historic use and pleads relevantly:
"10The defendant says that any use of its land by the occupiers of 138 Invermay Road, Arnold and Dawkins, between about December 1996 and May 1997 was pursuant to an agreement made between them and the defendant which provided for the access to and use of the defendant's car park in return for the payment of $25.00 per week."
The defendant counterclaimed, seeking an injunction restraining continued use. In reply, the plaintiff stated:
"2The Plaintiff says that any use of the Defendant's land by the occupiers of 138 Invermay Road, Arnold and Dawkins, between about December 1996 and May 1997, if pursuant to an agreement as pleaded, or otherwise licensed by the Defendant, relates to a different right or privilege to that claimed as an easement by the Plaintiff and further relates to land other than the servient tenement in these proceedings.
…
5The Plaintiff says that use of the Defendant's land for access is use pursuant to the Easement pleaded in the Statement of Claim and is lawful as a consequence."
The evidence adduced by the plaintiff in no way supports the terms of the statement of claim, par4, and no consideration of that issue is required.
Prescriptive right
The Prescription Act 1934 (now repealed by Land Titles Amendment (Law Reform) Act 2001) relevantly provides:
"3 No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of the Crown, or being the property of any person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of 40 years, the right thereto shall be deemed absolute and indefeasable [sic], unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."
The provision is a reflection of a doctrine of limitation. The right is not one of ownership, but a recognition that a person is required to bring a particular issue or grievance before the courts within a reasonable (usually prescribed by statute) time. Knowledge and acquiescence are essential ingredients of this bar of limitation (Dalton v Henry Angus & Co (1881) 6 App Cas 740; Sunshine Retail Investments Pty Ltd v Wulfff & Ors [1999] VSC 415).
In Tasmania, the Prescription Act provides for limitation which affords a prescriptive right against an action. The right acquired, in the circumstances of this case, is that defined in Sch 8 of the Conveyancing and Law of Property Act 1884, which states:
"Section 34A
Short form Full Form
Right of carriage way 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.
Right of foot way 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 on foot at all times and for all purposes without riding, draught, or pack animals, oxen, sheep, pigs, geese, or other livestock, or vehicles (other than bicycles, wheelbarrows, and baby-carriages) to and from the said dominant tenement or any such part thereof."
For the plaintiff to establish a prescriptive right he must prove, not casual or intermittent use overlooked, but a history of passage at all times and for all purposes with acquiescence.
History of 138 Invermay Road
The plaintiff's property formed part of a series of houses adjoining Invermay Road. In 1969, Mrs Beverley Cashion purchased the property jointly with the wife of her husband's partner as a commercial investment. It was later transferred to her husband and herself. The property was rented to persons, including Mr and Mrs Grace, who remained there until sale and redevelopment in 1982. Mrs Cashion would go to the property to collect rent and deposed that on many occasions she would drive through the car park to the rear of the premises in order to collect the rent. Her choice of access was that of convenience and random in that she would also park her vehicle and enter through the front entrance on Invermay Road. Her choice was based on convenience. Her use was open and never challenged by the defendant. She recalls entry to the property through a rear gate although, in evidence, she gave no evidence as to whether it existed at the time of purchase or had later been constructed. Mrs Grace, now aged 74, a tenant with her husband, moved into the property in 1974, remaining there until sale in 1982 to the plaintiff. She recalls that her son, now aged 51, had an interest in stock car racing since the age of 19 and housed his vehicle at the rear of the property. She is certain that when the vehicle was used for racing less than ten times per year, it would be transported by trailer through the rear entrance. Her evidence is corroborated by an exhibit and the testimony of Mrs Cashion.
Some argument was advanced on behalf of the defendant that since Mrs Grace was unable to recall the date of her son's use, the date of commencement of use or the existence of the gate, the minimum time required by the Prescription Act, s3, could not be established. The contention is rejected. The age of the son, the evidence as to when he became involved in stock car racing and the evidence of Mrs Cashion as to rent collection, permit the finding that there was use of the defendant's land as a means of thoroughfare before 1978.
The evidence of Mrs Cashion and Mrs Grace is, subject to the vagaries of age, accepted in its entirety.
In 1984, the plaintiff purchased the property, which together with adjoining land (No 136) previously purchased in 1982, was used commercially as a car yard. He later replaced the fence and gates, matters which do not impact on this determination. The property and the claimed right of access to No 138 was convenient for the movement of sales vehicles and customer visit, through the defendant's car park. In addition, the plaintiff, who lived nearby, regularly visited the premises through the rear entrance, for security purposes. The plaintiff then leased the premises to another business engaged in the sale of motor vehicles. It significantly increased the usage of the premises and the car park including that of storage and day maintenance (using the car park for the cleaning of vehicles). The current tenant uses the premises for commercial purposes and requires access for commercial vehicles for its operation.
In 1996, the defendant required the then tenant to enter into a separate agreement regarding the use of its land for storage and day maintenance. The finding is that since 1984 the land of the defendant has been used for commercial purposes and that although usage has altered in character (trucks rather than cars), and frequency (less rather than more) since that time and its nature differs from that previously experienced. The finding is that the defendant was aware of such usage as and from 1984, but that its regularisation of the capacity to store and wash vehicles did not impact on any right of passage.
Defendant's premises
The defendant operates a sporting complex used for greyhound racing and training. Some years previous, its administrative officers worked away from the site, and would have had little opportunity to observe the occasional vehicle usage to and from the rear of No 138 Invermay Road. Access to the arena has been altered over time, but at all relevant times there has been a parking area north of the racing ground and adjoining the plaintiff's land, used by the patrons and staff.
In 1983, redevelopment included alterations to the buildings, points of access and the sealing of the car park. The committee became concerned about theft and vandalism and caused gates to be installed at the existing point of entry from Goodman Court. An adjoining property owner had a right to gain access to his workshop and he was given a key to permit unhindered entry.
The plaintiff gave evidence that he was never obstructed by locked gates. He maintained that he always had access during the day and, when he inspected his premises at night, they always remained unlocked. The Court accepts his evidence as to the former, but not the latter. At the entrance there was a workshop and the owner Michael Baker, stated in evidence that he moved vehicles back and forward through the gates as required and until 1988, was in the habit of leaving the gates open. However, if there were no officials or staff of the defendant remaining at its premises, he would lock the gates before leaving work. In the morning he or his brother would invariably unlock them. The Court accepts Mr Baker as an independent, honest and accurate witness.
In the period 1983 - 1988, the defendant conducted training sessions or trials each Monday evening (7pm until finish), and Wednesday afternoons (4pm - 6pm), and regular race meetings on Saturday evenings. Brian Hudson has been the electrician and "lure driver" for the defendant since 1973. His presence was required on each trial session and race night. Quite often, if he had repairs to effect, he would stay on the premises until they were completed and would be the last to leave. He recalls locking the gates regularly during the period 1983 - 1988. He had been provided with a key for that purpose. Mr Hudson would often arrive and leave the premises at the same time as Carl Shepherd, who had been an official of the defendant for over 30 years, and inherited the position of race starter from his father in 1987. He recalls that it was the responsibility of himself and his father to unlock the gates before trials and ensure their closure at the end of each trial or meeting. The three witnesses corroborated each other in every respect. Mr Baker was aware that on some evenings he need not lock up (most likely Wednesday), and on some he was the last to leave. Evidence that the gates required unlocking before a trial or meeting (Monday and Saturday), confirms Mr Baker's account.
Their evidence was confirmed by that given by Richard Stamford, the defendant's manager, who has been associated with the defendant for many years. The contrary evidence given by the plaintiff on this point was internally inconsistent and depends on acceptance of an extremely high rate of coincidence.
The Court is satisfied to the requisite degree that during the period 1983 - 1988, the defendant maintained its right as against the world, except in respect of one property, to exclusive possession of its premises.
Entrance and use
In 1988, the Corporation of the City of Launceston, upgraded Goodman Court and in the process constructed kerbing and guttering which encompassed part of the old entrance to the car park and provided a new entrance some little distance south of the previous gateway. Since then most traffic, including vehicles going to and from the defendant's land, has used the new entrance. Mr Baker continued to use the old gateway for his own purpose, and for much of the time the gateway was obstructed. There was no purpose in continuing to lock the gates since the new entrance was open to the road.
The plaintiff used the car park during the time he operated a car yard. In the mid-1990's he leased the premises to another business also engaged in the car retail trade. The operators of that business were permitted to use the car park for access and storage, although certain restrictions were imposed. That use was permitted by the defendant and recognised in a proffered licence agreement which was never signed.
The nature of the use of the land by the plaintiff differed significantly from that previous. Prior to 1984, the use had been intermittent and, on the evidence, involved few acts of passage, probably unknown to the defendant. The change of zoning from residential to commercial and the operation of a car yard amounted to a significant change in the volume of traffic. Any prescriptive right, as claimed by the plaintiff, would only commence as and from that commercial use (Cargill v Gotts [1980] 2 All ER 49; Johns v Delaney (1890) 16 VLR 729; RPC Holdings Ltd v Rogers [1953] 1 All ER 1029; British Railways Board v Glass [1965] 1 Ch 538).
Legal relations
In December 1988, the defendant granted a licence, evidenced in writing for a period of five years, permitting the plaintiff limited use of the car park. Although the plaintiff claims that the right of way adjoins and forms no part of the car park, the issuing of the licence itself evidences licence or agreement, rather than conduct giving rise to prescription. The licence was renewed until 16 December 1998, and on 25 September 1996, solicitors for the defendant advised the plaintiff that it would not be extended beyond that date. On 2 October 1996, the same solicitors wrote to the tenants of the defendant's land advising that:
"As you are not prepared to enter into any formal leasing arrangements with our client, the Club has instructed us to inform you that you must now cease and desist using its land all together.
Should you continue to trespass upon our client's land, our client will have no option but to take injunctive proceedings against you in the Supreme Court. Naturally our client will be entitled to recover its legal costs as a result of having to make that application, it being abundantly clear that you have no right to use the Club's land."
The fact that the letter was written directly to the tenants is consistent with the evidence of Mr Stamford that whenever the defendant had concerns about the use of the car park, the plaintiff immediately became involved. The letter to the tenants related to use of the land and represented an assertion of the defendant's right to exclusive occupancy, subject only to licence or permission. The tenants failed to sign the proffered licence agreement and the offer was withdrawn on 21 May 1997.
Following a change of occupancy a new letter was sent, on the same day, to the new tenants offering an agreement, but maintaining the claim of exclusive right. Geoffrey Arnott, the defendant's solicitor, gave evidence as to the basis on which these letters were written. He confirmed that the defendant, through its manager, had maintained that there was no right of way over its land, but that the plaintiff had asserted to him the existence of such a right. There is no doubt that Mr Arnott in 1997 advised the plaintiff in clear terms, that there was no acquiescence on the part of the defendant to the claimed right of use to the land.
Ancillary matters
There was conflicting evidence as to the placement of white lines, the use of the land in winter and the capacity of the defendant to discern the existence of the original gate. The disputation, more a reflection of the assiduousness of counsel, is interesting, but does not affect this determination.
Findings
(1)That at a time prior to 1978 persons used the defendant's land intermittently for the purpose of gaining access to the plaintiff's land.
(2) Usage was by way of vehicles.
(3) That the defendant was not aware of such use, but if made aware, did not object to the use.
(4)That the nature of the use increased significantly in 1984, by the movement of car yard stock and attendances by customers.
(5)That the defendant was aware of the increased use and permitted the same.
(6)That subsequently the defendant regularised the permitted use by restricting it to passage, rather than storage and ancillary usage.
(7)That in 1983 the defendant caused gates to be erected and maintained its asserted right to determine access to its premises. The gates remained in effective use until 1988.
(8)That its officers, agents and tenants complied with its policy and closed such gates at the appropriate times.
(9)That in 1988, the path of access was altered by the road works effected by the Corporation of the City of Launceston.
(10)That it permitted continued access through the altered entrance without abandoning its claim of exclusive use.
(11)That the plaintiff did not have unrestricted access to his property at the relevant times, as claimed by him in his evidence.
Conclusion
No prescriptive right has been acquired by the plaintiff. The earliest date on which such a right might have been acquired would have been 2004, 20 years after the significant alterations of usage, coinciding with the commencement of vehicle retail premises (Cargill v Gotts (supra)). Given my findings in relation to the gates, the earliest date would have been 2008. The difference is academic since the action taken by the defendant through its solicitors provided notice that the defendant claimed exclusive possession and had previously provided only access by licence.
The claim of the plaintiff ought fail.
There remain the issues raised by the counterclaim in which the defendant seeks injunctive relief. It may be that the dismissal of the plaintiff's action will resolve the matter and that the defendant no longer seeks relief. Counsel are invited to consider the question and advise the Court further.
0
0
3