Dresdner v Scida

[2003] NSWSC 957

Reported Decision: (2004) NSW ConvR 56-089

Supreme Court

CITATION:	Dresdner v Scida [2003] NSWSC 957
HEARING DATE(S):	9/10/03
JUDGMENT DATE:	31 October 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Burchett AJ at 1
DECISION:	1) The plaintiffs held entitled to a declaration and injunctive relief, with an order for their costs; 2) The cross-claim to be dismissed with costs; 3) The plaintiffs directed to bring in, on a date to be fixed, short minutes of orders appropriate to reflect the reasons of the Court.
CATCHWORDS:	EASEMENT - right of carriage way - creation - Torrens title land - whether words of limitation were required - short form reservation under s 181A of the Conveyancing Act 1919 - whether context negatived use of short form - effect of s 3(b) of the Real Property Act 1900 - meaning of "appurtenant" - indefeasibility of title to easement - effect of s 88 of Conveyancing Act - obstruction by erection of gates and other structures - test for relief.
LEGISLATION CITED:	Conveyancing Act 1919 Fair Trading Act 1987 Real Property Act 1900
CASES CITED:	Carlson v Carpenter (1998) NSW ConvR 56,635 Carroll v Chew (1946) 47 SR (NSW) 229 Chiu v Healey [2003] NSWSC 857 Finlayson v Campbell (1997) NSW ConvR 56,449 Gapes v Fish (1927) VLR 88 Hansford v Jago [1921] 1 Ch 322 Keefe v Amor [1965] 1QB 334 Lister v Pickford (1865) 34 Beav. 576; 55 ER 757 Owners Corporation - Strata Plan No 8450 v Owners Corporation - Strata Plan No 54547 [2002] NSWSC 780 Parramore v Duggan (1995) 183 CLR 633 Pettey v Parsons [1914] 2 Ch. 653 Powell v Langdon (1944) 45 SR(NSW) 136 Sinclair v Jut (1996) 9 BPR 16,219 Vaneris v Kemeny (1977) 1 BPR 9655
PARTIES :	Heinz Dresdner (1st Plaintiff) Lily Dresdner (2nd Plaintiff) Ramond David Dresdner (3rd Plaintiff) Marion Erica Dresdner (4th Plaintiff) Anita Zweig (5th Plaintiff) Ronald William Zweig (6th Plaintiff) Evelyn Irene Krieger (7th Plainitff) Giuseppe Scida (1st Defenant) Rosalba Scida (2nd Defendant) Vincenzo Scida (3rd Defendant) Kitty-Ann Scida (4th Defendant)
FILE NUMBER(S):	SC 4761/03
COUNSEL:	J Kelly S.C and T Duggan (Plaintiffs) J Van Aalst (Defendants)
SOLICITORS:	Abadee, Dresdner & Freeman (Plaintiffs) T S Curran (Defendants)

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

31 OCTOBER 2003

4761/03 DRESDNER v SCIDA

JUDGMENT

1 BURCHETT AJ: The plaintiffs seek relief against the defendants for what they claim is a serious obstruction of a right of carriage way. The defendants deny the validity of the right, and deny, too, the reality of the obstruction, which arises out of the erection of structures including closed but unlocked gates, and the taking of certain actions associated with the installation and maintenance of the gates. A cross-claim has been brought for declaratory relief and for the extinguishment of the easement.

2 The alleged right of carriage way has been exercised for many years. It relates to a strip along a boundary of the defendants’ land, surfaced with concrete so as to constitute a private road, extending from a crossing of the footpath of Buffalo Road, Gladesville to the edge of a parking area at the back of the plaintiffs’ factory complex comprising twenty factory units, at 33/37 College Street, Gladesville, a street that runs parallel to Buffalo Road. In other words, the carriage way enables vehicles which have entered the factory complex from College Street to effect their exit down the side of the defendants’ factory, situated behind the complex, into Buffalo Road; vehicles do not proceed in the opposite direction along the carriage way, and indeed, until their removal by the defendants at the time the gates were hung and closed, one-way traffic signs and an exit sign indicated that drivers should proceed only in the one direction. Within the plaintiffs’ factory complex, the position was somewhat different; there were two driveways, a fairly narrow one, down the side of the complex, leading from College Street to the carriage way, along which traffic proceeded only in the same direction in which traffic on the carriage way was directed to proceed, and a broader central driveway also giving access to College Street, from which traffic debouched into the parking area already mentioned. Although the central driveway, having a variable width, from about 5.9 to about 6.6 metres, might be thought wide enough for traffic to proceed in either direction, the evidence is that it quite frequently becomes congested with large commercial vehicles, including trucks, involved in the operation of the assortment of units in the factory complex, so that in practice the means of exiting the complex along the carriage way is of considerable importance to the plaintiffs and their tenants.

3 Sometime in or about early August 2003, the defendants caused certain construction activities to be carried out. These involved the erection of rectangular frames at each end of the carriage way in question, and the placing within those frames of large metal gates, which were closed and bolted, but not locked. The height of the frame at the gate where the carriage way leaves the parking area on the plaintiffs’ land (“the rear gate”) is 2.2 metres, while the height at the gate opening into Buffalo Road (the “Buffalo Road gate”) is 2.8 metres. There has been for many years some structure with a bar suspended by chains at the location of the rear gate, the structure being at a height of 3.6 metres and the bar at 2.2 metres.

4 As a result of the gates, the evidence shows a truck driver would, in the ordinary course, need to take the following steps if he were to exit the plaintiffs’ factory complex by means of the carriage way: stop his vehicle and alight from it to open the rear gate; re-enter his vehicle, drive through the gate, and stop again; alight from his vehicle in a relatively narrow laneway hemmed in by structures on either side, and go back to close the gate; re-enter the vehicle and drive approximately 30 metres to the Buffalo Road gate, where he would have to stop again in a confined space, alight and open the gate; go back to the vehicle and drive through the gate, stopping this time athwart the footpath in Buffalo Road and (unless the truck were a small one) projecting into a traffic lane of Buffalo Road; alight and close the gate; and finally re-enter the vehicle to drive away along Buffalo Road. Apart from the inconvenience and the threats to safety involved in these procedures, truck drivers using the plaintiffs’ factory complex are also discouraged from taking such a course by prominent signs reading “PRIVATE PROPERTY” placed on each of the gates by the defendants, and the convenient use of the carriage way has been further interfered with by their removal of the one-way signs and the exit sign that were intended to facilitate that use. Those signs were actually erected on the plaintiffs’ own land, and their removal must have constituted a trespass.

5 I accept the evidence of Mr Trevor Bourn, the site manager of the plaintiffs’ complex, who for some two years has been concerned with the monitoring of the traffic flow into and out of it, to the effect that congestion does occur in its central driveway, vehicles being unable to pass each other there from time to time, and that this traffic congestion problem has been noticeably worse since the changes effected by the defendants. I have no doubt that considerable inconvenience has been caused to tenants and others, and that the additional congestion inevitably poses also problems for the safety of persons moving in and about the area. Counsel for the defendants argued that there is nothing to require drivers to close the gates after them, so that concern about the disruption of movement has been exaggerated; but closed gates and “private property” signs send their own message, and I accept that the fact of worsening congestion in the plaintiffs’ complex demonstrates the reality.

6 I have had the benefit of evidence of an expert nature from Mr Neil Matthews, who holds a bachelor’s degree in Science, Operations Research and Statistics from Macquarie University and is in the course of undertaking doctoral studies at Victoria University in Logistics Strategy. He has also had practical experience in relation to light and heavy vehicle transport, warehouse operations and freight operations. Mr Matthews expressed the opinion, and I accept, that the installation of the gates and the limitations on the height of vehicles that may use them at either end of the carriage way seriously interfere with the efficient use of it as a means of egress from the plaintiffs’ complex, preventing the movement of all trucks above 3.5 tonnes gross vehicle mass, a size which would commonly be involved in the servicing of such a complex. I also accept his opinions that the operation of the Buffalo Road gate would introduce a safety hazard in Buffalo Road in respect of a heavy vehicle, and that the discouragement of the effective use of the means of egress from the factory complex which the defendants’ erections have created also involves a danger to pedestrians within the complex.

7 The defendants seek to justify their actions on the footing that the factory building erected on their own land, a wall of which, pierced by windows but no doors, runs immediately along one side of the carriage way, has in recent times sustained several burglaries or attempted burglaries. They claim the gates are a security measure. However, the gates are never locked, and there was no evidence that the police or any insurance company had suggested the measures the defendants have taken. All but one of the windows abutting the carriage way are equipped with bars, and it is proposed to install bars in the remaining window. There was no evidence that access has in fact been gained by burglars through any of these windows. There are, as I have said, no doors in the building on that side. According to the evidence, the defendants have now improved their burglar alarm system, and there is simply no basis for the conclusion that the unlocked gates make any material contribution to the security of the defendants’ building. In any case, the claimed justification could not apply to the removal of the one-way signs and the exit sign, which could have had nothing to do with security.

8 The first shot in the proceedings was a letter demanding the removal of the gates and “private property” signs, to which the solicitors for the defendants responded that their clients were the “owners of the above property [i.e. the Buffalo Road property] which my clients are aware is subject to a right of carriageway 3.6m wide”; however, it was denied that the gates and signs restricted any person’s rights. As to the right of carriage way which was at that stage conceded, it should be pointed out that the reservation of it was expressed in feet (as 12 feet), that is approximately 3.66 metres. The evidence shows that at the Buffalo Road end of the carriage way the hinge of the gate, when it is in the open position, limits the width to 10 feet 5 inches, and the corresponding width at the rear gate is only 10 feet 4 inches. To a slight extent, the rear gate actually obtrudes onto the plaintiffs’ land.

9 Notwithstanding the admission to which I have referred, the principal defence argued before me was the contention (also embraced by the cross-claim) that the right of carriage way had not been validly created.

10 It is necessary to turn to the instruments relevant to the question whether the right of carriage way was validly created and subsists in the plaintiffs. Both the land of the plaintiffs in College Street, claimed to be the dominant tenement, and the land of the defendants facing Buffalo Road claimed to be the servient tenement, along the boundary of which the carriage way has been constructed, are comprised within certificates of title issued under the Real Property Act 1900. By a Memorandum of Transfer under that Act dated 30 July 1951, registered number F 519531, Ryde Brick & Tile Works Pty Limited as transferor transferred to one Sidney Charles Hillis lots 2 and 3 in plan annexed to instrument of transfer number F222151, being part of the land in Certificate of Title Volume 2553 Folio 242, subject to certain reservations. The reservations were set out in an annexure much of which, having regard to the argument, it is necessary to reproduce, as follows:

And the Transferee for himself his successors and assigns with intent to bind all persons in whom the said land hereby transferred shall for the time being be vested HEREBY COVENANTS with the Transferor its successors and assigns:-
(1) That no fence shall be erected on the land hereby transferred to divide it from the adjoining land of the said Transferor without the consent of the said Transferor its successors or assigns but such consent shall not be withheld if such fence is erected without expense to the said Transferor its successors or assigns and in favour of any person dealing with the Transferee or his assigns such consent shall be deemed to have been given in respect of every such fence for the time being erected And for the purposes of the Conveyancing Act 1919-1945 it is hereby agreed and declared:-
(a) That the land which is to be the subject of the burden of the covenant shall be the land hereby transferred.
(b) That the land to which the benefit of the covenant is intended to be appurtenant is the residue of the land comprised in Certificate of Title Volume 2553 Folio 242 and the whole of the land comprised in Certificate of Title Volume 2658 Folio 56.
(c) That the person by whom or with whose consent the covenant may be released varied or modified shall be the Transferor its successors or assigns.
RESERVING nevertheless to the Transferor and its successors in title as registered proprietor or proprietors and occupiers for the time being of an estate or interest in the adjoining lands being the residue of the land comprised in Certificate of Title Volume 2553 Folio 242 and the residue of the land comprised in Certificate of Title Volume 2658 Folio 56 full and free right and liberty to cause to emanate from the said adjoining lands and to pass across onto over and through the land hereby transferred all such blast dust grit stone earth smoke sparks smell vapour gas matter substance noise vibration and energy which shall or may arise in the excavation of clay shale and earth therefrom and in the manufacture of bricks tiles clay products and other materials in the course of the user thereof as brickworks and clay products manufacturing works and in the user of the private railway appurtenant thereto and RESERVING unto the Transferor as appurtenant to the residue of the land comprised in Certificate of Title Volume 2553 Folio 242 a right of carriage way over that piece of land twelve feet wide along the whole length of the south eastern boundary of Lot 3 shown in plan annexed to the said instrument of Transfer No. F 222151.

It is the final reservation “and RESERVING unto the Transferor as appurtenant to the residue of the land comprised in Certificate of Title Volume 2553 Folio 242 a right of carriage way over that piece of land twelve feet wide along the whole length of the south eastern boundary of Lot 3 shown in plan annexed to the said instrument of Transfer No. F 222151” upon which this case must turn; but it has been necessary to set out the whole passage from the Transfer so that the defendants’ attack on it may be understood. I note at once that the reservation is closely similar in form to the reservations of rights of carriage way with which Bergin J was concerned in Owners Corporation – Strata Plan No 8450 v Owners Corporation – Strata Plan No 54547 [2002] NSWSC 780 at [8], [60] and [63], where no problem was seen of the kind alleged by the defendants here.

11 Memorandum of Transfer number F 519531 was duly registered and noted on the folio of certificate of title volume 2553 folio 242 on 7 November 1951. The notation included the words “(subject to covenant) (and reserving easements)”, and also recorded the cancellation of the certificate of title “[a]s to land in this transfer” and the issue of a new certificate of title Volume 6495 Folio 31. By reason of a number of further dealings, the plaintiffs are now registered as proprietors of the land to which the easement was expressed to be appurtenant, and the defendants are now registered as the proprietors of the land shown as burdened by it. The right conferred by it has been notified as a registered easement on each title.

12 The first argument put by counsel for the defendants was that, in their context, the words of the final reservation in Memorandum of Transfer number F 519531 “and RESERVING unto the Transferor”, without the addition of some such words as “its successors and assigns” or “and its successors in title”, conferred no more than a personal licence upon the company named as Transferor, Ryde Brick & Tile Works Pty Limited. No such consequence was perceived by Bergin J or alleged by counsel in Owners Corporation. But in the present case, attention was drawn to the fact that the covenant with which the annexure to the transfer commences was expressed to be made “with the Transferor its successors and assigns” and that the reservation immediately following the covenant (which I shall call “the first reservation”) was expressed to be in favour of “the Transferor and its successors in title”. It was said to be significant that the second reservation, that with which this case is concerned, was not similarly expressed.

13 The first answer to this contention is that neither the covenant nor the first reservation was drafted in reliance on any statutory short form, none being applicable; whereas the second reservation, in using the expression “right of carriage way” utilises the relevant short form language provided for the creation of a right-of-way by section 181A(1) of the Conveyancing Act 1919 read with Part 1 of Schedule 8 to that Act. By section 181A(1) it is provided:

“In an instrument executed or made after 1 January 1931…and purporting to create a right-of-way the expressions right of carriage way and right of footway have the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 1 or Part 2 of Schedule 8.”

Part 1 of Schedule 8 is headed “Right of Carriage way”, and it provides:

“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 re-pass 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.”

Thus it is unnecessary, when the short form is utilised, to expand a reference to the person entitled to an estate or interest in possession in the land being the dominant tenement so as to include successors and assigns; for Schedule 8 itself includes them by the words “every person who is at any time entitled”. Indeed, in 1951 when the relevant transfer was entered into, a careful conveyancer would have been anxious to avoid the use of any language which might have been taken to constitute an alteration made in the expression “right of carriage way”, for at that time section 181A(2) provided:

“The said expressions shall not have the meaning attributed to them respectively by this section if any alteration is made in the expressions otherwise than by means of a proviso thereto.”

I should point out that the restriction imposed upon alteration in this way was subsequently removed, and that the section now contains a subsection (3) in the following terms:

“The meaning given to an expression by this section and Schedule 8 may be varied (whether by way of addition, exception, qualification or omission) and is taken to have always been capable of being varied, by the instrument in which the expression is used.”

But the retrospective legislative approval of an alteration that would formerly have ruptured the operation of the section cannot prevent the previous position being taken into account as an explanation of the approach to the drafting of the instrument taken by the conveyancer who drew it in 1951.

14 Section 181A(4) provided at the relevant time that the section “extend[ed] to instruments under the Real Property Act, 1900”, and subsequent amendment has left it still making the closely similar provision:

“This section extends to dealings under the Real Property Act 1900.”

Accordingly, section 181A answers the defendants’ argument, both by explaining the omission on which the argument turns and by supplying words equivalent to the omitted words of limitation.

15 However, there are also further answers. First of all, section 3 of the Real Property Act, as it stood in 1951, provided:

“In the construction and for the purposes of this Act, and in all instruments purporting to be made or executed thereunder (if not inconsistent with the context and subject matter), -
(a) the following terms shall bear the respective meanings set against them:-
…
‘Instrument’ – Any grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate or exemplification of will, or any other document in writing relating to the transfer or other dealing with land or evidencing title thereto.
…
(b) The describing any person as a proprietor, transferor, transferee, mortgagor, mortgagee, encumbrancer, encumbrancee, lessor, or lessee, or as a trustee, or as seised of having or taking any estate or interest in any land shall be deemed to include the heirs, executors, administrators, and assigns of such persons.”

Thus the use, in the memorandum of transfer, of the words “RESERVING unto the Transferor” is itself sufficient to carry an expanded meaning including the transferor’s assigns. As Roper J said in Carroll v Chew (1946) 47 SR (NSW) 229 at 232: “In the limitation of legal estates under the Real Property Act…words of inheritance are not necessary to create or pass an estate in fee simple.”

16 Where, for the very purpose of simplifying procedure in conveyancing, statutory provisions are made of the kind of which sections 181A of the Conveyancing Act and 3(1)(b) of the Real Property Act are examples, an argument that an instrument should be construed without their assistance simply because, in another part of the instrument, the older and longer form of words is retained, is in my opinion difficult to sustain. An analogous point was taken before Russell J in Hansford v Jago [1921] 1 Ch 322, to be rejected by his Lordship (at 332) in the following terms:

“It is a very strong thing to say that, when a section of an Act of Parliament provides that a conveyance of land…is to be deemed to include a large number of different matters unless a contrary intention is expressed in the conveyance, the mere fact that the draftsman has elected to include one or two of these matters expressly in the conveyance should operate as an indication of an intention that the remainder should not be included. “

17 The words upon the absence of which from the memorandum of transfer the defendants’ argument seizes are technically known as “words of limitation”. In Gale On Easements (17th ed, 2002) at 3-12 the statement is made:-

“It is not necessary to use the word ‘grant’ or, since 1925 at any rate, to use words of limitation.”

Reference is made in support of this proposition to section 60 of the Law of Property Act 1925 (UK) and, in support of the implicit doubt whether words of limitation were ever necessary, to three articles which may be found in (1908) 24 LQR at 199, 259 and 264. In New South Wales, the substance of the provision in section 60 to which Gale refers is to be found enacted in section 47 of the Conveyancing Act. However, this section is not expressed to be applicable to land under the provisions of the Real Property Act, and section 6(1) of the Conveyancing Act goes no further than to provide:-

“Except as hereinafter provided, this Act, so far as inconsistent with the Real Property Act , 1900, shall not apply to lands, whether freehold or leasehold, which are under the provisions of that Act.”

But the provisions of section 3(1)(b) of the Real Property Act seem to me to demonstrate that section 47 of the Conveyancing Act is not relevantly inconsistent with the Real Property Act, and in any case, section 3(1)(b) is itself, as I have already made clear, to the same effect as the provision of section 60 of the Law of Property Act 1925 on which Gale relies. Accordingly, I think the proposition in Gale is applicable.

18 There is yet another ground to reject the defendants’ submissions. The transfer makes it clear that the right in question, which it creates, is to be “appurtenant” to particular land of which the transferor is the registered proprietor. Not only that; the operative words of transfer are “do hereby transfer to the said transferee (subject to [emphasis added] the reservation hereinafter contained)”. The word “appurtenant” is the word normally used to express the relationship between the dominant tenement and an easement, as for example, in Gapes v Fish (1927) VLR 88 at 89-90 where Dixon AJ used the expression “the easement was intended to be enjoyed as appurtenant to that land”, and pointed out that a lack of “appurtenancy in the form of the reservation” indicated that the supposed easement was not a valid easement. The meaning of the word was stated by Sir John Romilly MR in Lister v Pickford (1865) 34 Beav. 576; 55 ER 757 at 580; 759, where he said:

“The word ‘appurtenances’ includes all the incorporeal hereditaments attached to the land granted or demised, such as rights-of-way, of common, of piscary, and the like”.

So a transfer of title to land “subject to” a reservation of a right described as being “appurtenant” to land of the transferor refers, as a matter of legal language, to a right in the nature of an easement, not to a mere personal right.

19 Finally, the plaintiffs are entitled to rely on the indefeasibility provisions of the Real Property Act, because the right of carriage way is noted on the certificate of title relating to the servient tenement, as well as on that relating to the dominant tenement. In this respect, the position may be contrasted with that which arose in the Tasmanian case Parramore v Duggan (1995) 183 CLR 633, where Brennan J said (at 636-637):

“Indefeasibility necessarily relates to the title to land which might otherwise be defeated. It is erroneous to regard indefeasibility as relating to an interest which merely confers rights in or over the land of another registered proprietor whose title is indefeasible. A registered proprietor of a dominant tenement has an indefeasible title to the land to which the easement is appurtenant but the easement is not indefeasible. Similarly, where the servient tenement is land to which a registered proprietor has title under the Act, that title is indefeasible. Unless the easement is registered on the certificate of that title, or unless the easement falls within one of the exceptions contained in s 40(3) [of the relevant Tasmanian Act], the unencumbered title of the registered proprietor of the servient tenement is not subject to the easement: see s 40(1). In other words, the registered proprietor of land to which an easement is appurtenant has an indefeasible title to that land but not to the easement, so that the easement cannot be enforced unless the certificate of title of the registered proprietor of the servient tenement states that that title is subject to the easement or unless the easement falls within s 40(3)(e) of the Act.
In the present case, although the respondent is entitled to claim indefeasibility of title to the dominant tenement and the appellant is entitled to claim indefeasibility of title to the servient tenement, the indefeasibility conferred by s 40 avails only the registered proprietor of the servient tenement. His title is taken free of any easement that is not recorded on the folio of the register evidencing title to his land unless the respondent can bring the case within one of the exceptions contained in s 40(3).”

Parramore v Duggan was applied to the Real Property Act of New South Wales in Chiu v Healey [2003] NSWSC 857 at [24]-[26] and [28], where Young CJ in Eq held an indefeasible title was conferred in respect of an easement by the recording of it on the title of the servient tenement.

20 A quite separate ground of attack on the validity of the easement was pursued through an allegation of a contravention, by the terms of the reservation in Transfer number F519531, of section 88(1)(c) and (d) of the Conveyancing Act. Those provisions declare that an easement or restriction shall not be enforceable unless (inter alia) the instrument creating it clearly indicates:

“(c) the persons (if any) having the right to release, vary or modify the easement or restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary or modify the easement or restriction; and
(d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for.”

But the very point arose and was decided in Vaneris v Kemeny (1977) 1 BPR 9655, where Waddell J said (at 9656):

“There is in the memorandum of transfer by which the right-of-way was granted to Mrs La Macchia no statement as to whether there are or are not any persons of the descriptions mentioned in the two paragraphs [(c) and (d) of s 88(1)]. It is said that the failure to include such a statement, that is specifying who such persons are or negativing that there are any such persons, prevents the enforcement of the right-of-way… In my view there is no substance in this submission. The language of the two paragraphs of s 88(1) makes it perfectly clear that the instrument need contain no indication as to such persons unless there are any.”

Vaneris v Kemeny was followed by Young CJ in Eq. in Chiu v Healey [2003] NSWSC 857 at [22], and I should follow it too.

21 The test for the availability of relief in circumstances of the kind proved here was stated by Lord Cozens-Hardy MR in Pettey v Parsons [1914] 2 Ch. 653 at 662:

“[I]n the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way.”

As Young J emphasised in Finlayson v Campbell (1997) NSW ConvR 56,449 at 56,455, this is to reduce the matter to “a question of fact”, of which the cases are illustrations. Or, in the words of Roper J in Powell v Langdon (1944) 45 SR(NSW) 136 at 139:

“Whether an obstruction in a right of way is actionable or not is a question of degree to be decided in the light of the circumstances of each case in which it arises. The law, I think, is clear. ‘In the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way’: Pettey v Parsons [1914] 2 Ch. 653 at 662, and see Clifford v Hoare (1874) L.R. 9 C.P. 362 and Sketchley v Berger (1893) 69 L.T. 754. Cases decided on the question of whether the erection of a gate constitutes an actionable obstruction, e.g. Flynn v Harte [1913] 2 I.R. 322; Petty v Parsons [1914] 2 Ch. 653; Hender v Gohl [1928] S.A.L.R. 325; 7 Austn Digest 861, are useful only insofar as they go to establish the principles to be applied. The questions here are whether the existing gate does constitute, and whether the threatened fence would have constituted, such an obstruction as to amount to a real and substantial interference with the easement.”

In the particular circumstances, his Honour went on to find (ibid):

“The steepness of the way in the vicinity of the gates gives an added difficulty to opening and shutting them, and I think that it is an unreasonable restriction on the rights created by the easement to require persons lawfully using it to open or shut the gates.”

Circumstances, including safety considerations, that justified a similar conclusion were set out by Santow J in Sinclair v Jut (1996) 9 BPR 16,219 at 16,230. Without multiplying authorities, it is sufficient also to refer to Carlson v Carpenter (1998) NSW ConvR 56,635, where Cohen J said (at 56,640):

“There have been many cases in which there has been decided the question of whether a gate or other obstruction constitutes a substantial interference. Each case will depend upon its own facts. These can include the nature of the obstruction, whether, if it is a gate, it can be readily opened and closed, or whether the effect of a gate, even if it can be easily opened, can cause a substantial interference along the land which is subject to the right of way. Obviously, in some cases the presence of a gate can constitute considerable inconvenience and in other cases, such as on a country property, it will be accepted that it is necessary to have gates installed in order to control stock.”

22 In my opinion, it is plain, from the facts I have already found, that the gates installed by the defendants across the carriage way, including the signs placed on them, together with the frames and bar that limit the height of a vehicle able to use the carriage way, have been shown to be the source of real and substantial interference with the enjoyment of the easement the subject of the action. The plaintiffs are entitled to a declaration and injunctive relief accordingly, with an order for their costs, and the cross-claim must be dismissed with costs. Their previous tolerance of the bar gives no ground to withhold relief from the plaintiffs in respect of that obstruction, especially as the modern use of container transport is likely to make the interference it causes more significant than it was in the past: cf Keefe v Amor [1965] 1QB 334 at 346. I direct that the plaintiffs bring in, on a date to be fixed, short minutes of orders appropriate to reflect these reasons. I note that, although a claim for damages was made in their pleading, the plaintiffs do not now pursue that remedy, and that it is unnecessary to consider the plaintiffs’ pleaded claim for relief under the Fair Trading Act 1987, which arose out of an allegation that, in the circumstances, the signs reading “PRIVATE PROPERTY” were misleading.

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Last Modified: 11/11/2003