Donskoi v Whitaker-Mead

Case [2025] QSC 166

SUPREME COURT OF QUEENSLAND

CITATION:

Donskoi & Anor v Whitaker-Mead [2025] QSC 166

PARTIES:

LUCIA DONSKOI

(first applicant)

and

SAMIR BALMER

(second applicant)

v
ANDREW WHITAKER-MEAD

(respondent)

FILE NO/S:

BS 16390/24

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

22 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 26 May 2025

JUDGE:

Copley J

ORDER:

Application dismissed

CATCHWORDS:

REAL PROPERTY – EASEMENTS – CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE – STATUTORY EASEMENTS – where the applicants and respondent own adjoining land – where the applicants’ driveway encroached onto the respondent’s land – where the applicants seek a statutory right of user over a portion of the respondent’s land currently used as part of the respondent’s driveway – where the applicants contend a statutory right of user is necessary to access the garage and rear of their property – whether a statutory right of user is reasonably necessary

Planning Act 2016 (Qld), s 260

Property Law Act 1974 (Qld), s 180

2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40
Bradshaw v Griffiths [2016] QCA 20
Lynch v White (1987) Q Conv R 57-767
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257
M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257
Nelson v Calahorra Properties Pty Ltd and Ors (1985) Q Conv R 54-202
Peulen & Anor v Agius & Anor [2015] QSC 137

Re Hodgskin (1999) Q Conv R 54-535

COUNSEL:

D Williams for the applicants

M Pope, solicitor for the respondent

SOLICITORS:

Quinn Law Group for the applicants

Derek Legal for the respondent

The application

  1. Pursuant to s 180 of the Property Law Act 1974 (Qld) (the Act) the applicants seek orders that:

    (a)A statutory right of user in the form of an easement for right of way be imposed over part of the respondent’s land so as to provide vehicular access to the rear of the applicants’ land and to a garage situated there;

    (b)The respondent be directed to remove at his own cost the concrete fence and any other structures that presently prevent vehicular access to the garage and rear of the applicants’ land;

    (c)The applicants pay the respondent $10,800 as compensation for the imposition of the statutory right of user or such other amount as the Court deems fair and reasonable;

    (d)The respondent pay the applicants’ costs pursuant to s 180 of the Act.

  2. The applicants seek to obtain a right of user over a part of one side of the respondent’s land. The right of user is sought so that the first applicant, one of two registered owners, can use a part of the respondent’s new driveway, with their own driveway, as the means of vehicular access to the rear of the applicants’ property and in particular to a garage at the rear.  It seems that vehicles have been able to access this area for the last three decades.  That is not…

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Details
AGLC
Donskoi v Whitaker-Mead [2025] QSC 166
Case
[2025] QSC 166
Decision Date

CaseChat Overview and Summary

The case of Donskoi v Whitaker-Mead involved the applicants, the current owners of Lot 362 on RP 96898, and the respondent, the owner of the adjoining Lot 363 on RP 96898, both situated on Dilgara Street, Tugun. The applicants sought a statutory right of user over a portion of the respondent's land where their driveway encroached. They argued that this right was necessary for accessing the garage and the rear of their property. The dispute centred on whether such a statutory right of user was reasonably necessary.

The legal issues before the court included determining whether the applicants' driveway, which encroached onto the respondent's land, warranted a statutory right of user under the relevant legislation. The court had to consider whether the applicants satisfied the statutory criteria for imposing such a right and whether the alternative methods of access were sufficient.

The court concluded that the applicants had not demonstrated that a statutory right of user was reasonably necessary. The applicants' evidence showed that they had alternative means of accessing their property, including a concrete slab in the front yard and a carparking area at the top of their land, albeit limited. The court found that the inconvenience caused by the loss of access to the garage and the driveway did not meet the threshold for imposing a statutory right of user. Consequently, the application was dismissed, and no statutory right of user was imposed.

The final orders of the court were that the application by the applicants for a statutory right of user over the respondent’s land was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

For the reasons which follow, the applicants have not satisfied me that it is reasonably necessary to impose a statutory right of user over the respondent’s land in terms of either option 1 or option 2.Non contentious facts In September 2020 the applicants became the registered owners as joint tenants of Lot 362 on RP 96898, known as 44 Dilgara Street, Tugun. The land adjoining is Lot 363 on RP 96898, known as 46 Dilgara Street, Tugun. Dilgara Street ends in a cul-de-sac and 44 and 46 Dilgara Street are situated just before the “bulb” area of the cul-de-sac. The applicants’ property is approximately 546m2. It has an angled western boundary with 46 Dilgara Street. The property slopes in a downwards direction from the front at a gradient of around 15%. The property has a street frontage of about 13 metres. It currently has two crossovers giving access from Dilgara Street to the property. The eastern crossover provides access to a concrete slab situated in the front yard of the property. A motor vehicle can be parked on that slab. The western crossover is what remains of a shared crossover which gives access to the driveway to 44 Dilgara Street. That driveway formerly gave access to the garage at the rear of the property. The remnant shared crossover was probably constructed in 1993 or 1994 and the driveway and garage were probably constructed at about the same time. The remnant shared crossover had been part of a wider shared crossover which once gave access from the street to 46 Dilgara Street too. The eastern crossover and the remnant shared crossover are situated on council land. No council records can be found concerning the construction of or authorisation for the remnant shared crossover. In January 2021 the respondent became the registered owner of 46 Dilgara Street, which has an area of 615m². From sometime in May 2021 the respondent became aware that a part of the applicants’ concrete driveway encroached onto his land. The encroachment was approximately 1.08 metres. During 2021 the respondent demolished the house at 46 Dilgara Street and began to construct a new house. The respondent took no steps to restrict vehicles using the applicants’ driveway from travelling over his land until July 2023. Although the second applicant has moved away from 44 Dilgara Street, he remains a registered owner of the property with the first applicant. On 6 May 2023 the respondent provided the first applicant with a copy of a survey plan he had commissioned. This plan showed the encroachment. On 28 June 2023 the applicants had a discussion with the respondent and his wife about the boundary. The applicants’ evidence about this discussion differs in some respects from the evidence of the respondent and his wife. The applicants submit that the agreement they say was arrived at in that discussion bears upon whether the respondent’s refusal to accept the imposition of an obligation of user is unreasonable. Whether his refusal is unreasonable is a matter dealt with in s 180(3)(c) of the Act. Whether or not his refusal is in all circumstances unreasonable need only be considered if the applicants satisfy the test imposed by s 180(1) of the Act.

Evidence

Evidence Before The Court

In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd the Court of Appeal of NSW in considering a provision analogous to s 180 said:[7]“The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development.”[7](2012) 16 BPR 31, 257 at [158].Summary of evidence relevant to reasonable necessity The first applicant’s evidence was that the respondent’s construction of the fence has deprived her of vehicular access to the double garage at the rear of her property for any vehicle larger than a motorcycle. This means she is unable to store objects there which require towing such as a trailer or a jet ski. The garage has been used “primarily” for storage of objects during a period of family separation, though it has been used for “occasional vehicle use”, for gardening equipment and for trailers. She said she has not used the garage to store a vehicle since she and the second applicant separated. Separation occurred in September 2021. Her evidence was that once the second applicant removes his property from the garage her intention is to “resume” vehicle storage there, in particular to use the garage to store a motor vehicle she intends to restore. The first applicant said the area adjacent to the garage has been used as a place to park to load and unload objects into or from vehicles. When she moved into the property almost all of her furniture was brought into the house via the back stairs due to restricted space at the front of the house. Should she ever decide to move away, refrigerators and couches would have to be carried up the steep driveway and this would be both unsafe and impracticable, as well as increasing the costs to her of hiring removalists. Also, her insurance premiums have increased due to the loss of access to the garage. The construction of the fence has also deprived her of the ability to park her car on the driveway adjacent to her front door. This has caused her to park her vehicle at the top of her driveway but her small SUV vehicle protrudes onto the footpath area when parked there. This resulted in a Council infringement notice issued to her on 13 November 2023 for parking in a restricted area. She says there have been visits by Council officers to investigate complaints about her parking on the 2 May 2024, 7 May 2024, 17 May 2024 and 9 June 2024. She also says that she was issued with a warning to move the vehicle on 26 June 2024. The first applicant said that there is also a carparking area at the top of her land but it is only sufficient for a small car. It is a significant distance from the house. The cul-de-sac her house is adjacent to is marked with yellow lines prohibiting parking. The situation of her having to park on the street has increased congestion in an area of street where there are 25 dwellings over about 125 metres of street frontage.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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