Duke Unley Pty Ltd v The Corporation of the City of Unley

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUKE UNLEY PTY LTD & ORS v THE CORPORATION OF THE CITY OF UNLEY
[2024] SASC 78
Judgment of the Honourable Chief Justice Kourakis
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - STATUTORY EASEMENTS
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY IMPLICATION - IMPLIED GRANT AND RESERVATION - NON DEROGATION FROM GRANT
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY IMPLICATION - IMPLIED GRANT AND RESERVATION - BY NECESSITY
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - OTHER MATTERS
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY PRESCRIPTION - AT COMMON LAW AND LOST MODERN GRANT
This was a multitudinous claim for easements burdening the respondent’s land and benefitting the applicants’ land.
In October 1998, pursuant to a contract for sale executed in the previous year, the applicants acquired a shopping centre and attendant carpark at Unley, which they operated as part of their commercial property portfolio. Adjoining the carpark on the applicants’ land (the Deck carpark) was a carpark located on the respondent’s land (the Council carpark), which had been constructed in 1973 and used by members of the Unley community generally to park. Also adjoining the Deck carpark was another carpark servicing a competing shopping centre (the Rossiters carpark), vehicular access to which had long been obstructed by way of a balustrade.
On the applicants’ case, vehicular access between the Deck carpark and Council carpark was, as at the time of its acquisition of the premises, facilitated by a ‘Vehicle Access Link’, over which pedestrians could also pass on their way to the applicants’ shopping centre or onto the respondent’s land. It was contended by the applicants that, shortly after their acquisition of the shopping centre and Deck carpark, officers of the respondent entered onto their land and installed a number of concrete-filled and topped bollards, which had the effect of obstructing any further vehicular traversal between the Deck carpark and the Council carpark. Pedestrian traversal was still possible after the installation of the bollards. Those bollards, the applicants claimed, replaced a set of former bollards that had been installed in 1994 and removed in 1996, after an altercation between a director of the applicants and the CEO of the respondent.
On the basis that, as at the date of its acquisition, vehicular and pedestrian access onto the Council carpark from the Deck carpark, and vice versa, were facilitated by the Vehicle Access Link, and only subsequently obstructed, the applicants claimed an easement in the nature of a right of carriageway and footway benefitting the Deck carpark and burdening the Council carpark, and an easement of parking on the Council carpark land for the benefit of prospective customers at its shopping centre. Those easements were claimed by way of: s 36 of the Law of Property Act 1936 (SA), on the basis that the extant user of each easement as at the date of conveyance metamorphosed such user into easements proper; implied grant under the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31; implied terms in the contract for sale; the doctrine of lost modern grant and prescription; and equitable recognition of an easement, arising from a set of unexecuted deeds between the respondent and the applicants’ predecessor-in-title. The applicants, further, claimed an easement in the nature of a right of footway over the Council carpark on the basis that, in certifying that the applicants’ land complied with the relevant fire standards, the respondent was to be taken as having granted such an easement. That easement was advanced on the ground that it was a necessary consequence of the grant of certification.
Against this, the respondent contended that the easements of carriageway, footway, and parking on its land said to arise from the former user alleged by the applicants could not be made good in circumstances where the Vehicle Access Link had continuously remained obstructed by bollards, and pedestrian utilisation thereof was extended to all members of the public, irrespective of their business or reason for being on the putative dominant tenement. The respondent further contended that the easement of footway said to arise from its certification of the applicants’ land as fire compliant was untenable as a matter of principle.
Held, dismissing the claim:
1.No equitable easement arose from the brace of unexecuted deeds exchanged between the respondent, the applicants’ predecessor-in-title, and the owner of an adjoining parcel of land. No clause of either deed countenanced the grant of an easement to the applicants’ predecessor-in-title and, in any event, neither party contended that the deeds had any legal effect in the absence of formal execution thereof.
2.The cumulative effect of the respondent’s lay and expert evidence established that the bollards obstructing vehicular access over the Vehicle Access Link were never removed prior to, and as at the date of, the applicants’ acquisition of the putative dominant tenement. Accordingly, there existed no extant user capable of metamorphosis into an easement of carriageway or parking by force of s 36 of the Law of Property Act 1936 (SA), or an implied grant thereof by application of the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31. The applicants’ claim for an easement by prescription was similarly untenable.
3.The cumulative effect of the applicants’ and respondent’s lay evidence established that pedestrian traversal of the Vehicle Access Link was countenanced to be undertaken by and extended to all members of the public, irrespective of their reason for being on, or business with, the putative dominant tenement. Accordingly, in the absence of any propinquity between such traversal and the enjoyment of the putative dominant tenement as such, there existed no extant user capable of metamorphosis into an easement of footway by force of s 36 of the Law of Property Act 1936 (SA), or an implied grant thereof by application of the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31.
4.The respondent’s statutory power to certify land as complying with the relevant fire standards did not extend to creating a proprietary right to the extent necessary to ensure that the certificate of classification was properly issued. The issuing of a certificate of classification amounts to no more than a factum on which the lawful use of a building rests.

Building Act 1971 (SA) s 9; Conveyancing and Law of Property Act 1881 (UK) s 6; Law of Property Act 1925 (UK) s 62; Law of Property Act 1936 (SA) ss 7, 36; Local Government Act 1934 (SA) ss 37, 37a, 218; Prescription Act 1832 (UK); Real Property Act 1852 (SA) s 10; Real Property Act 1886 (SA) s 69; Roads (Opening and Closing) Act 1991 (SA), referred to.
Borman v Griffith [1930] Ch 493; Goldberg v Edwards [1950] Ch 247; Green v Ashco Horticulturist Ltd [1966] 1 WLR 889; International Tea Stores Co v Hobbs [1903] 2 Ch 165; Jones v Pritchard [1908] 1 Ch 630; Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633; Le Strange v Pettefar (1939) 161 LT 300; Lewis v Meredith [1913] 1 Ch 571; Phipps v Pears [1965] 1 QB 76; McGrath v Campbell (2006) 68 NSWLR 229; McKeand v Thomas (2006) 12 BPR 23,593; National Trustees Executors & Agency Co of Australasia Ltd v Long [1939] VLR 33; Quicke v Chapman [1903] 1 Ch 659; Schwann v Cotton [1916] 2 Ch 459; Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; Ward v Kirkland [1966] 1 WLR 601; Wheeldon v Burrows (1879) 12 Ch D 31; Wheeler v J J Saunders Ltd [1996] Ch 19; Wilcox v Richardson (1997) 43 NSWLR 4, applied.
Clark v Barnes [1929] 2 Ch 368; Re a Contract between Peck and the School Board for London [1893] 2 Ch 315, discussed.
Barkshire v Grubb (1881) 18 Ch D 616; Burrows v Lang [1901] 2 Ch 502; Bush v National Australia Bank Ltd (1992) 35 NSWLR 390; Butler v Mountview Estates Ltd [1951] 2 KB 563; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329; Concord Municipal Council v Coles (1905) 3 CLR 96; Duke of Sutherland v Heathcote [1892] 1 Ch 475; Graham v Philcox [1984] QB 747; Hill v Tupper (1863) 2 H & C 121; 159 ER 51; Horsfall v Braye (1908) 7 CLR 629; Kay v Oxley (1875) LR 10 QB 360; Nelson v Walker (1910) 10 CLR 560; Public Trustee v Smith (2008) 1 ASTLR 488; Re St Clement’s, Leigh-on-Sea [1988] 1 WLR 720; Re Walmsley and Shaw’s Contract [1917] 1 Ch 93; Tarrant v Zandstra (1973) 1 BPR 9381; Wall v Collins [2007] 3 WLR 459; White v Williams [1922] 1 KB 727, considered.

DUKE UNLEY PTY LTD & ORS v THE CORPORATION OF THE CITY OF UNLEY
[2024] SASC 78
Civil
KOURAKIS CJ:
Introduction

It has been said that, much like diamonds, easements are forever. This is a case that demonstrates the implications of that permanence, particularly in so far as it describes the sometimes dramatic ways in which easements can stand in the way of the future development of land. That aphorism also serves to highlight the seriousness with which parties, particularly commercial parties, are often taken to adopt with respect to the grant of a permanent interest in land. The grant of an easement is something that is neither lightly inferred nor routinely implied.
At first glance, this is a case about carparks and easements. On deeper examination, however, this is a case about the commercial consequences that easements, and other real proprietary interests, bear for the development of land. By a Fourth Revised Statement of Claim filed on 30 January 2023, the applicants, to whom I shall hereafter refer as the ‘Duke Group’, claim four easements benefitting their land and burdening an adjoining parcel of land owned by the respondent, to whom I shall hereafter refer as the ‘Unley Council’. Situated upon the Duke Group’s land is a shopping centre and an attendant carpark. The easements claimed by the Duke Group include:
·an easement of carriageway and footway, so as to facilitate vehicular and pedestrian movement across the Unley Council’s land into and out of the shopping centre’s carpark;
·an easement for parking in a carpark situated on the Unley Council’s land, so as to give prospective customers of the shopping centre a place to park their cars; and
·an easement of footway over the carpark on the Unley Council’s land, so as to ensure that the Duke Group’s carpark complies with the applicable requirements of the Building Code of Australia.
The bases upon which those easements were claimed by the Duke Group could well serve as a table of contents for a text on the subject. The Duke Group laid claim to each easement by way of an amorphous combination of: the operation of s 36 of the Law of Property Act 1936 (SA) (LPA); implied grant by means of necessity or mutually intended use of land; implied terms in the contract pursuant to which the Duke Group purchased the shopping centre and carpark; implied under the rule in Wheeldon v Burrows (1879) 12 Ch D 31;[1] the doctrine of lost modern grant and/or the Prescription Act 1832 (UK); and/or an express grant.
[1] (‘Wheeldon v Burrows’).
At the commencement of trial, counsel for the Duke Group informed the Court that an easement for ventilation of air throughout the carpark was no longer being pressed: the other easements claimed remained in dispute. Primarily, the Duke Group advanced its claim by reference to s 36 of the LPA, with secondary reliance being placed on: the supposed creation of an equitable easement arising from a set of unexecuted deeds between its predecessor-in-title, the Unley Council, and the owner of adjoining land; a common intention implied easement; the implied grant of an easement under the contract for sale; the long user of the putative servient tenement by the Duke Group and its predecessor-in-title; and the operation of the principles espoused in Wheeldon v Burrows.
In essence, the Duke Group’s claim to an easement of traversal over the Unley Council’s land, and to an easement of parking thereon, is underpinned by the contention that, as at the date of its acquisition of the putative dominant tenement, there existed a long-standing and extant practice of vehicles and pedestrians traversing from the Unley Council’s carpark into its carpark and vice versa. The essence of the Duke Group’s claim to an easement of traversal in compliance with the relevant fire standards is its contention that, in certifying that the putative dominant tenement was compliant therewith, the Unley Council is to be taken to have granted an easement without which such certification would be incorrect.
For the reasons that follow, the Duke Group’s claims in their entirety must be dismissed. That follows, primarily, from factual findings made that are inconsistent with large swathes of its case. In other respects, that follows from the proper construction of certain documents upon which the Duke Group seeks to rely.
Some Context
On 22 August 1997, the Duke Group executed a tender offer for the Unley Shopping Centre (USC) and a two storey carpark (the Deck carpark) on the opposite (northern) side of Arthur Street. The lead tenant of the USC was Woolworths which operated a supermarket in it and held a ground lease over the USC generally. By contract dated 21 October 1997, the Duke Group purchased the whole of the USC and the Deck carpark from the Unley Council, together with Woolworths’ interest in the ground lease from Unley Council to Woolworths. Settlement occurred on 27 October 1997. Registration of the transfers was delayed until October 1998 as a result of difficulties encountered in locating the Woolworths ground lease.
The share equity of the Duke Group is held in trusts of which the members of the Angelopoulos family are beneficiaries. Mr Con Angelopoulos testified that his father, Mr Chris Angelopoulos, was the managing director of the Duke Group and that he was employed as a manager. The Duke Group is a property holding company and a landlord.
He and his father worked closely together every day on the management of their property, from the same office.
The Duke Group had brought proceedings claiming that the Unley Council had, inter alia, declared an irrevocable statutory trust for the use of land to the north of the Deck carpark, over which it now claims private easements, as a carpark. That carpark was created by the Council in 1973 at the request of the rate payers of adjacent commercial premises who had requested (or rather, had presented a ‘memorial’ pursuant to s 218 of the Local Government Act 1934 (SA)) the construction of a carpark. That carpark was referred to in the evidence as the ‘Memorial carpark’; throughout this judgment, it is also referred to as the ‘Council carpark’. The Council demolished buildings erected on that land and undertook civil engineering works to construct a carpark to benefit the adjacent ratepayers. After the Council undertook the work, it levied a special rate for a period of 10 years thereafter to recoup those costs.
On that factual foundation, the Duke Group brought proceedings in this Court in November 2019 claiming that the Unley Council had, inter alia, declared an irrevocable statutory trust for the use of the Memorial Carpark as a carpark. Those proceedings were finally dismissed in September 2021.[2]
[2] See Duke Unley Pty Ltd v Corp of City of Unley [2020] SASC 224; Duke Unley Pty Ltd v Corp of City of Unley (2021) 399 ALR 164.
On 5 February 2019, the Unley Council notified the Duke Group, as the successor entitled of one of the memorialists, that it was intending to sell the Memorial carpark and gave them the opportunity to object to the proposed sale.
On 4 October 2019, Mr Angelopoulos accessed the Unley Council’s website and discovered a letter from the Council’s solicitors dated 11 July 2011 concerning the Unley Council’s purchase of the Memorial carpark. On inspecting that letter, Mr Angelopoulos became aware of the existence of a right of way over part of the lane abutting the Deck carpark and that the Deck carpark may have had a requirement for natural ventilation from the abutting Council carpark land. Claims in respect of those interests were not ultimately pursued in the proceedings.
Mr Angelopoulos continued his investigations and in November 2019 had a survey of the boundary between the Deck carpark and the Council carpark undertaken. It showed that bollards which stood between the two carparks were installed within the land of which the Duke Group was the registered proprietor. He deposed that, until that time, he believed the bollards had been erected on the Council carpark land. In December 2019, he caused the bollards to be removed.
The proceedings in this matter were filed on 23 December 2020 initially by way of an application to extend a caveat lodged by Duke Group over the Council carpark.
The development of the Deck Carpark
For some time before 1991, the Woolworths Property Group (Woolworths) held a ground lease over the USC which is located on the southwestern corner of the intersection of Unley Road and Arthur Street. It was also the lessee of an open‑air carpark on the northern side of Arthur Street which was available to customers of the USC. The registered proprietor of the whole of that land was the respondent, the Unley Council or the Council. Vehicles were free to move between the open-air carpark and the Council carpark on land to its north.
In November 1991, Woolworths made a development application which included the construction of further specialty shops within the USC and the construction of a built two-level carpark over Deck carpark. The application went before the South Australian Planning Commission (the Commission) because of the Unley Council’s interest as the owner of the land.
At about the same time, a shopping centre was developed on the site of what was the Rossiters shoe factory on the northeastern corner of the junction of Unley Road and Arthur Street. It housed a Franklins Supermarket and some speciality shops. I will refer to that shopping centre as Rossiters. The developers built a two-storey carpark to service the Rossiters centre adjacent to the Deck carpark. I will refer to that carpark as the ‘Rossiters carpark’.
Uniscan Pty Ltd was engaged by Woolworths as the project manager for the development. On 25 March 1992, a design development meeting was convened. Officers of Woolworths, the Unley Council, and representatives of the engineers, Bestechat, attended. The integration of the Deck carpark with the adjoining Rossiters carpark to the east and the Council carpark to the north was discussed.
In March 1992, Mr Terry Sutcliff, Unley Council’s manager (planning and traffic) met with Messrs Malcolm Barton and Alick Haddad, the owners of a commercial building on the western side of Unley Road to the north of Arthur Street,[3] which accommodated a medical centre, pharmacy, and some other shops (the Unley Central Shopping Centre or Unley Central). Vacant land to the rear of those buildings was used as an open-air carpark. At the time, Messrs Barton and Haddad were negotiating with Australia Post to purchase the Post Office building immediately to the south of Unley Central. There was also carparking adjacent to the Post Office (the Post Office carpark).
[3] See note made on 26 March 1992.
A note made by Mr Sutcliff at the time records that, in his meeting with them, he stressed that if the carparks around Unley Central, the Post Office and the Council carpark were to be integrated with the Deck carpark, it would be necessary to close Birdwood Avenue to thoroughfare traffic. He told them that the Unley Council could not support the integration of the carparks unless they, as the prospective owners of the Post Office site, consented to the extinguishment of the right of way through the Council carpark to Birdwood Avenue. Mr Sutcliff indicated that the Unley Council and Woolworths might grant them, as owners of the Post Office site, a right of way to Arthur Street through the Deck carpark. The note records that Messrs Haddad and Barton were open to those proposals. As events transpired, they did not purchase the Post Office site. A footnote to Mr Sutcliff’s note records that, on 25 March 1992, Mr Miers, of Woolworths had agreed in principle to a right of way over the Deck carpark provided access and egress were made available to Unley Road. This was, in essence, a reciprocal right of way over the Post Office carpark site.

It should be noted at the outset that, in prosecuting its claims, the Duke Group relies heavily on the Unley Council’s aspiration to integrate the carparks and correspondence between the Unley Council, Woolworths, and the Post Office in which the detail of that aspiration was developed to allege that an agreement, to which it referred as the ‘Integration Agreement’, was reached. The Duke Group claims an equitable easement founded on the Integration Agreement. It also argues circumstantially from the alleged agreement to support its critical factual contention that certain bollards which were installed in 1994 across ingress and egress points between the carparks were removed in 1996. However, the Council’s plan was always conditioned on the closure of Birdwood Avenue which had not at that time been achieved. Indeed, it was not achieved until 2001, well after the USC was purchased by the Duke Group. The evidence that the proposal was so conditioned is documentary and testimonial. That satisfaction of the condition was essential to the Council’s integration proposal is inherently probable having regard to the very nature of community and local government affairs. I so find.
On 3 April 1992, the Commission gave notice of its consent to the redevelopment of the USC. It granted consent for extensions and alterations which included a new supermarket, speciality shops, and carparking areas. The conditions of consent included a condition that the development proceed in accordance with a plan, identified as SK1-6, unless varied by other specific conditions. Compliance with the applicable Australian standards concerning the carpark was mandated. The consent required that the Deck carpark have the same alignment to Arthur Street as the carpark approved for the Rossiters site immediately to its east and that the carparks be structurally connected.
On 6 April 1992, the then Town Clerk of the Unley Council, Mr Adams, wrote to Mr Miers. He referred to a meeting which was attended by Mr Miers, Mr Davidson from Uniscan, and Mr Sutcliff, at which they discussed the granting of reciprocal rights of way over the Deck carpark and the Post Office carpark sites. He informed Mr Miers that proposals would be put to a meeting of the Unley Council that:
·The Council and Woolworths grant reciprocal rights of way for vehicle access between the Post Office site and the eastern side of the Council carpark (Lot 53)[4] on the one hand and the Deck carpark (Lot 63)[5] on the other allowing a connection with Arthur Street.
·A right of way would be granted to Lot 63 over Lot 53 allowing a thoroughfare to Unley Road but with ingress and egress allowed only in respect of the northbound carriageway of Unley Road.
·A right of way be granted to Lots 53 and 63 over the Unley Central Shopping Centre carparking areas (Lots 42, 50 and 51).
[4] In about 2001 Lot 53 was later incorporated with part of the Post Office site which was purchased by the Unley Council and reconstituted as Lot 1000.
[5] The Deck carpark site also comprised Lots 70 and 71.
On 9 April 1992, Woolworths submitted, at the request of the Commission, an amended site plan for the Deck carpark, prepared by Uniscan, showing vehicular access between the Deck carpark and the Council carpark to the north. That facility is referred to in the evidence as the Vehicle Access Link, a term which I will adopt.
On 21 April 1992, Mr Miers responded to Mr Adams, confirming Woolworths’ agreement in principle to the proposal on the assumption that the costs were negligible. He informed Mr Adams that Woolworths would need to advise Uniscan, which was supervising the building works of the changes, and for that reason asked for confirmation as soon as possible. Two important facts emerge from those exchanges. First, it is plain that Unley Council was the instigator of the discussion and that Mr Miers was responding cautiously and only in principle. Obviously enough the details of any burdensome property rights would have to be carefully considered. The exchange is not indicative of a strong preference by Woolworths for vehicular access. Secondly, as at 21 April 1992, there was no binding agreement to grant reciprocal easements. Mr Miers was awaiting confirmation from the Council.
A Uniscan plan dated 18 May 1992, submitted to the Commission as part of the approval process, shows the ground floor of the USC carpark with bollards across the northern boundary of the Deck carpark and carparking spaces to the south of the Vehicle Access Link. It also shows carparking spaces along the eastern boundary of the Deck carpark which borders the Rossiters carpark. Plainly then, at that time, the plan did not allow for vehicular access from the Deck carpark to the Council carpark. However, two bold arrows are also depicted on the plan showing ‘future access’. One points north towards the USC car parking areas and another points to the Rossiters carpark. Again, it is clear that the discussions remained as petitioned.
On 25 March 1993, Mr Ports, a resident of Birdwood Avenue, complained to the Unley Council about an anticipated increase in traffic travelling down Birdwood Avenue from the Deck carpark. He requested that the Unley Council install a barrier along the northern boundary of the Deck carpark to prevent cars accessing the Council carpark to the north. The alacrity with which Mr Ports reacted to the completion of the carpark is a manifestation of the political reality of urban development which local government authorities must manage.
On the same day on which Mr Ports lodged his complaint an internal Council note evidences that Uniscan was contacted to place a barrier across the Vehicle Access Link. Soon thereafter, two bollards were erected either side of the opening between the Deck carpark and the Council carpark, within the boundaries of the Deck carpark, and a chain was hung between them. I find that the chain was installed by Uniscan acting as Woolworths’ agent on or about 31 March 1993 on the basis of an internal Council note of that date.
The Deck carpark was formally opened on 30 March 1993. Of course, it is possible, indeed likely, that the carpark was operational before the formal opening. It may also be the case that, after the chain was hung, it was occasionally removed without the permission of the Unley Council. However, that is of no present relevance because, within a year or so, the chain was removed and three more bollards were installed between the original two bollards to which the chain had been attached. The bollards were spaced equidistantly with the effect that they obstructed vehicular access.
The Unley Council issued a certificate of classification for the Deck carpark on 24 May 1993.
A report by Colliers Jardine dated March 1994 on the vehicular and pedestrian integration of the Rossiters and Deck carparks on the one hand, with the Council carpark to the north is the first record of the existence of three red bollards across a dished invert between the Deck carpark land the Unley Council carpark.
The bollards must have been installed by the Unley Council or, alternatively, by Woolworths acting either unilaterally or at the request of the Unley Council. However, no record of the Unley Council relating to the installation of the bollards was put into evidence. I find that Woolworths caused the bollards to be erected at the request of the Unley Council for the following reasons. First, it is consistent with Woolworths earlier taking the responsibility to change the development application to show access if it were agreed. Secondly, it is consistent with Woolworths installing the bollards and chain arrangement through Uniscan. Thirdly, the bollards were installed on the Deck carpark land leased by Woolworths. Fourthly, it is consistent with a subsequent arrangement to which I refer at [60] below, between Unley Council and Woolworths that the latter would remove the bollards if and when the Council blocked access to Birdwood Avenue. Fourthly, from 1992, the Unley Council repeatedly gave assurances to local residents that no vehicular access would be allowed between the Council carpark and the Deck carpark until issues affecting nearby streets had been resolved. Fifthly, there is no evidence that Woolworths had any interest of its own to explain expedition of the installation of the bollards.
The correspondence, to which I have referred to at [26] was exchanged in April 1992 between Mr Miers and the Unley Council recording an in principle agreement that reciprocal rights of way be given over the Deck carpark land and the Council carpark is not inconsistent with my finding. Their shared aspiration gave them both an equal motive not to install the bollards but only one of them could have attended to that work. The installation is unlikely to have been undertaken without the express consent, or request, of the other. Their reasons for installing the bollards to block access between the carparks, despite their shared aspiration ultimately to integrate them, are obvious enough. The Unley Council was concerned that there not be movement between the Deck carpark and the Council carpark until the related issues of increased traffic through Birdwood Avenue, and Australia Post’s rights of access to Arthur Street, were resolved. Unley Council would not, for good reason, grant a reciprocal right of access until that issue was resolved. It was, therefore, consistent with the negotiation of reciprocal access in the medium to long term to install the bollards to restrict access more effectively in the short term.
In March 1994, the Council received a petition from Birdwood Avenue residents regarding the closure of Birdwood Avenue.[6]
[6] T 1925 records that agreement had been reached to close Birdwood Avenue improving access to and from the area.
In April 1995 the Council discussed a report dated 24 April 1995[7] on the temporary treatment of the eastern end of Birdwood Avenue to restrict vehicular movement between Birdwood Avenue and the Council carpark. An illustration of the treatment was attached to the report. The proposal was significantly to restrict the width of the access from Birdwood Avenue into the Council carpark, together with signage indicating the local nature of the area. It was put that, by implementing the temporary treatment, the Unley Council would obtain good data and information to enable better judgments as to the long term treatment options.
[7] Casebook 1710
It was also proposed to put up a barrier fence which would be erected upon Unley Council property. The barriers would extend to the east from the boundary with Mr Ports’ residence for the width of Lot 64 and to the north from the corner of Lot 64 and the Council carpark to the northern footpath of Birdwood Avenue. The barriers were to be spaced so as to allow pedestrian and bicycle access. The cost of the proposal was just some $1,200.
An Integration Agreement?
In support of its claim for an equitable easement, the Duke Group placed considerable importance on a brace of deeds prepared by the respondent’s then solicitors, MinterEllison. Duke Group contends that the cumulative effect of those deeds, together with related correspondence, was the creation of an agreement by the respondent to grant a right of way to the ground lessee of the Deck carpark in the nature of a right of carriageway.
The Unley Council’s Traffic Management Taskforce (the Taskforce) met on 12 September 1994. The Taskforce had before it a report dated March 1994 from Colliers Jardine. A focus of the Taskforce was the safety and convenience of pedestrians crossing Arthur Street. To that end, the Taskforce considered the installation of zebra crossings. The Taskforce also resolved to recommend to the Unley Council the closure of the connection between the Council carpark and Birdwood Avenue.
The Taskforce’s report to the Unley Council discussed integrating the Deck carpark and the Council carpark by creating rights of way:
Discussions with the Woolworths Property Group have recently taken place with a confirmation forthcoming on a previous written commitment to provide for the integration of the Unley Shopping Centre Deck Carpark at its northern end with the Post Office carpark. It is of note that the previous commitments to reciprocal rights of way will not be possible due to Council not being able to grant a right of way itself (ie Council is the landowner of both properties). The legal assurance of access would have to be pursued through a change or addendum to the current ground lease. One advantage of this would be that Council would be the only one with access rights and this would prevent the possibility of Woolworths being able to dictate terms to Council on this issue in the future.
The Taskforce’s report concluded with the following recommendations:
5commit in principle to the vehicular integration of all carparking areas within the Unley Town Centre precinct in the area bounded by Arthur Street, Unley Road and Mary Street.
6that the Manager, Environment, be authorised to negotiate with Australia Post regarding the current encumbrances held over the Unley Post Office Carpark site by Australia Post with a view to facilitating the treatment of the eastern end of Birdwood Avenue in accord with the wishes of the local community
…
8that the Manager, Environment [Mr Harmer], be authorised to enter into negotiations with the Woolworths Property Group on behalf of Council to obtain a right of way over the Unley Shopping Centre Deck carpark site.
No minutes of the Unley Council adopting the resolutions have been adduced before me. Mr Keenan gave evidence that the Unley Council adopted those resolutions, but it is not clear when it did so. Importantly, it is clear from resolution ‘6’ that Mr Harmer was authorised only to negotiate with Australia Post and Woolworths. The resolution did not authorise Mr Harmer to bind the Council to a concluded agreement.
Mr Green gave evidence that he wrote to Australia Post on 6 October 1995 after speaking to Mr Curd, who was the State Manager of Australia Post, whom he knew through their membership of the Australia Day Council. The letter proposed a meeting with Mr Green and Mr Harmer.
On 19 October 1995, Mr Harmer, an officer of the Council wrote to Mr Miers in apparent accordance with the resolutions. Mr Harmer referred to the April 1992 correspondence to which I referred at [26] above. Mr Harmer then set out the facts on the ground: namely, that the only thing preventing the free flow of traffic between the Deck and Council carparks at that point were the three bollards ‘which have been erected at the USC Arthur Street Deck carpark and the three immediately adjacent marked carparking spaces’. Mr Harmer’s letter makes no reference to who erected the bollards, but noted that, if they were removed, there would be a free flow of traffic.
Mr Harmer then suggested a way forward which was consistent with the Taskforce’s recommendation, but which differed, markedly, from the 1992 proposal:
Rather than embarking on an arrangement (such as rights of way) which would be both cumbersome and expensive, it is our view that the easier solution would be for Woolworths to enter a Deed with the Council and to submit a planning application to remove the bollards and delete the subject 3 carparking spaces. The corporation will support the application by indicating to the development assessment commission, that the corporation is in favour of approval being granted. The application will need to be made to the development assessment commission because the corporation is the owner of the land.
I set out below an unexecuted Deed which was attached to correspondence sent by Minter Ellison to Unley Council on 29 October 1997. The proposed Deed attached to Mr Harmer’s letter of 19 October 1995 was probably in the same form:
ARTHUR STREET CARPARK DEED
DEED dated 1995
BETWEENTHE CORPORATION OF THE CITY OF UNLEY of 181 Unley Road Unley SA 5061 (“Corporation”)
ANDWOOLWORTHS PROPERTIES LIMITED ACN 000 039 252 of 80-88 Rundle Mall Adelaide SA 5000 (“Woolworths”)
RECITALS
A.The Corporation is the registered proprietor of the land comprised in Certificates of Title Register Book Volume 5096 Folio 842, Volume 5096 Folio 843 and Volume 5096 Folio 844 (“Land”).
B.The Land together with other land is leased to Woolworths pursuant to Memorandum of Lease No. 7324229 for a period commencing on 16 April 1992 and expiring on 15 April 2091.
C.Following receipt of planning approval from the South Australian Planning Commission dated 3 April 1992 (Attachment 1) Woolworths has erected on the Land a carpark the layout of which is substantially in accordance with the plan (Attachment 2).
D.At the end of the entrance driveway from Arthur Street Woolworths has erected 3 bollards on or about the northern boundary of the Land thereby preventing traffic travelling to and from land comprised in Certificate of Title Register Book Volume 4010 Folio 896 which is owned by the Corporation (Lot 53).
E.Woolworths has agreed with the Corporation to remove the bollards in order to provide for the free flow of traffic from the Land to Lot 53 and from Lot 53 to the Land.
AGREEMENT
1.Woolworths agrees the forthwith upon execution of this Deed Woolworths will make application to the Development Assessment Commission for approval to remove the bollards from the Land.
2.Upon receipt of development approval or in the event that development approval is not required Woolworths will forthwith remove the bollards from the Land.
3.The Corporation agreed that it will support the application for removal of the bollards from the Land.
4.Woolworths covenants and agrees that it will at all times hereafter keep the entranceway from the Land to Lot 53 free and clear of all obstructions and will not at any time undertake any development or erect any fence or other structure on the Land (other than removal of the bollards) which in any way prevents or inhibits the free flow of traffic from the Land to Lot 53 and from Lot 53 to the Land.
5.Each party will pay their own legal costs of and in connection with this Deed.
6.This Deed is binding upon the Corporation and Woolworths and their respective successors and assigns.
I will refer to that draft deed as the ‘Woolworths Deed’. Recital D of the Woolworths Deed is consistent with my finding that Woolworths installed the three bollards across the vehicle access length in 1994.
The Duke Group relies heavily on Recital E to contend that the Woolworths Deed, if executed, or incorporated into a collateral agreement, conferred reciprocal rights of way over the Deck and Council carparks. However, up to and including the word ‘bollards’, Recital E does no more than faithfully summarise cl 2 of the ‘Agreement’. The remaining words of Recital E are a statement of the purpose (‘in order’) of the removal, which was to be effected by the obligation imposed on Woolworths in cl 4 thereafter to keep the Vehicle Access Link free from any obstruction.
Recital E is, therefore, no more than a summary of the ensuing clauses of the Woolworths Deed: while it may, at its highest, assist in the construction of the Woolworth Deed’s operative provisions in the event of ambiguity,[8] it is not a recital from which the applicants can establish an implied covenant by the Unley Council to grant an easement over the Vehicle Access Link.[9] It is a most improbable construction of the Woolworths Deed that Recital E should impliedly encumber both the Council carpark and the Deck carpark with an easement when the express obligations are carefully calculated to fall short of doing so.
[8] See, eg, OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1, 21 [63] (Allsop P, Macfarlan and Meagher JJA agreeing); Lemon v Mead (2017) 53 WAR 76, 119 [176] (Buss P).
[9] Cf Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, 696 [380] (Campbell JA).

The absence of any obligation on the Council, express or implicit, cannot be explained simply on the basis that Recital D acknowledged, that Woolworths had installed the bollards. The purpose of Recital D is only to set the scene for the imposition of the obligation on Woolworths to remove them; that is because Woolworths installed the bollards on land leased by it. Woolworths, therefore, had control over the bollards. Nor is it correct to say that the words ‘in order to provide for the free flow of traffic from the Land to Lot 53 and from Lot 53 to Land’ assumes a reciprocity of rights. As I have explained, it does no more than explain the effect of cl 4, which is that the free flow of traffic will be facilitated, in fact, on the ground, because Woolworths would not again obstruct the Vehicle Access Link. The draft Woolworths Deed obliged Woolworths not to construct anything other than a carpark on the land because that would, in fact, obstruct the Vehicle Access Link. Breach of the Woolworths Deed would leave Woolworths liable for damages for breach of covenant, but it did not grant the Unley Council a proprietary interest which burdened the Deck carpark. Even more obviously, the draft Woolworths Deed did not grant any such interest to Woolworths over the Council carpark.
On 26 October 1995 Mr Miers responded to Mr Harmer’s letter. He said, simply:
We inspected the area yesterday and agree in principle to the removal of the bollard.
With the regard to the Deed, I believe the works will be completed before the Capital deed is executed in Sydney. It is suggested an exchange of letters may suffice.
His response, and the italicised words in particular, confirm the limited purpose of the Woolworths Deed.
It is unlikely that Mr Miers would have shown that preparedness to continue to perform the work before the Woolworths Deed was executed if the Woolworths Deed had been understood to confer reciprocal rights of way. The agreement made by the exchange of correspondence was limited to the removal of the bollards. It created no proprietary interest, legal or equitable. Moreover, the agreement was never executed before ethe purchase of the USC by the Duke Group.
On 29 November 1995, Mr Harmer wrote to Mr McQuillan at Australia Post in these terms:
As mentioned, Council is in a difficult position to integrate the carparks by not being able to until the residents of Birdwood Avenue and adjoining areas are protected via a road closure or similar. To achieve this, Council needs your indication that you will not seek to exercise any right of access to Birdwood Avenue before it can progress this matter. As discussed, a possible solution may be for you to indicate that you will not exercise your rights so that Birdwood Avenue on the proviso that you vehicles can obtain direct access to Arthur Street.
The letter shows that the agreement with Woolworths was conditional on resolving closure of Birdwood Avenue in a mutually satisfactory way with Australia Post.
Additionally, for reasons which I give below, the bollards installed in 1994 were never removed until the Duke Group did so in 2019.
The evidence overwhelmingly supports a finding which I now make that the Woolworths Deed was never executed.
Mr Keenan was the Mayor of Unley at the relevant times and until 2006. He deposed in his affidavit to a ‘clear recollection that the Deeds attached were never signed and the bollards were never removed in the time that [he] was Mayor’. He deposed that he never signed a deed between the Unley Council and Woolworths in respect of ‘the removal of the bollards’. The Duke Group’s counsel contends that Mr Keenan’s evidence is undermined by his failure to refer to the ‘Integration Agreement’; however, the ‘Integration Agreement’ is no more than a construct of the applicants’ case. True it is that the Unley Council had a policy, and worked towards, integration of the carparks to the north of Arthur Street, but that is not inconsistent with Mr Keenan’s recollection. Nor does his failure to refer to the DAC application to remove the bollards in October 1995, or the approval in December of that year, detract from his evidence. The Unley Council’s correspondence in relation to that application makes it clear that it did not propose actually to remove the bollards until the associated traffic issues, and in particular the closure of Birdwood Avenue, had been resolved. Finally, Mr Keenan’s uncertainty about the clerical and administrative procedures of the Unley Council office staff in respect of storing and maintaining records of deeds is not at all surprising. He was the Mayor: not the Chief Executive or the Office Manager. His uncertainty does not detract from his evidence.
I was impressed by the frank, open, and responsive way in which Mr Keenan gave his testimony. There was no hint of defensiveness. He had no personal interest in the outcome. I accept his evidence on the non-execution of the Deeds as credible and reliable.
In any event, no criticism or torturing of Mr Keenan’s denial that the Woolworths Deed was executed can transform it into evidence that it was executed. Negotiations undertaken in the hope of reaching a conditional agreement cannot be treated as a binding agreement. Nor does a conditional agreement become an unconditional agreement unless and until the conditions are satisfied. Further, if the bollards were never removed, they are as insurmountable an obstacle to the contention that an agreement to grant a right of way to Woolworths was reached as they were to cars hoping to move across the Vehicle Access Link.
A facsimile of 21 October 1997 from Mr Davies to the Unley Council refers to a deed between Woolworths and the Unley Council which Mr Davies prepared in 1995. In that letter, Mr Davies said that he believed that the Woolworths Deed had been executed. The letter evidences Mr Davies’ belief that the Deed was executed, but his belief is irrelevant. The letter does not record the execution of the Woolworths Deed in a way in which perhaps an entry on a deed packet might. It is, therefore, not evidence of the execution of the Woolworths Deed. If I am mistaken in this respect, I nonetheless accord it the slightest probative weight. It is not a record of a fact made in the course of keeping business records. It is the recollection of a solicitor in his letter to a client.
On 16 November 1995, Mr Harmer informed Woolworths that it was intended to process the development application for removal of the bollards and that, upon approval from the relevant planning authority, the Unley Council would contact Woolworths to arrange for the removal of the bollards. It is that arrangement to which I referred to at [33] above as supporting the inference that the bollards were erected by Woolworths.
Woolworths’ development application was lodged with the Development Assessment Commission (DAC) by the Unley Council. However, on 8 November 1995, the Unley Council informed the DAC that, even though it supported the application, it would maintain the barrier to the Council carpark to the north until it had implemented measures on Birdwood Avenue to control traffic leakage. Accepting that that communication might not have been communicated to Woolworths, it nonetheless explains why the Unley Council was unlikely to execute the Deed. It is also clear from other correspondence that Woolworths understood that it was to await instructions from the Unley Council before removing the bollards. The Decision Notification Form from the DAC noted that the Unley Council would maintain closure of the Council carpark until traffic control measures in respect of Birdwood Avenue were in place.
On 29 November 1995, Mr Harmer wrote to Mr McQuillan of Australia Post, enclosing the correspondence with Woolworths dated 26 October 1995 and Mr Harmer’s response on 16 November 1995. Mr Harmer informed Australia Post that, on the basis of their discussion, he believed that the correspondence from Woolworths should provide them ‘with sufficient indication of Council’s commitment to integration of carparks in the area and their ability to achieve same’.
He proposed that Australia Post agree not to exercise its right of access to Birdwood Avenue on the condition that its vehicles could obtain direct access to Arthur Street. The letter explained that, in order to integrate the carparks, access to Birdwood Avenue would need to be closed.
Mr Green, the CEO of Unley Council at the relevant time, testified that he became directly involved in negotiations with Australia Post after Mr Harmer left the Council. However, Mr Green’s preferred strategy was to purchase the Post Office site and its carpark. In his time, they acquired the carpark which, in his words, ‘opened up other possibilities’.
On 3 January 1996 Ms Hewitt wrote to Mr Harmer of Woolworths as follows:
Reference is made to your correspondence dated 16^th November 1995 regarding removal of the bollards at the abovementioned location.
Attached is copy of Decision Notification Form from the Development Assessment Commission of which you may already have a copy.
Please contact us in due course regarding removal of the bollards.
Two matters arise from that correspondence. First, it is probable that Woolworths was aware of the note made on the approval that the Unley Council did not intend to immediately remove the bollards. Secondly, Woolworths accepted that it was not to remove the bollards until the Unley Council so directed.
Mr Harmer was taken to Ms Hewitt’s email and was asked:
QYou will see that the author writes ‘Please contact us in due course regarding removal of the bollards’. Can you remember ever contacting Ms Hewitt or anyone else from Woolworths following the Development Assessment Commission approval about removal of the bollards.
ANo.
QSorry.
ANo.
QYou simply had no memory on that topic.
AI don’t recall contacting anyone regarding the removal of the bollards.
HIS HONOUR
QAfter receiving the notification did you take any steps and if so, when, to cause the bollards to be removed.
AI don’t believe that we took any steps to have the bollards removed because –
QYes, don’t worry about ‘we’. I’m just asking about you. Did you take any steps to have the bollards removed.
AI don’t believe I would have taken any steps to have the bollards removed until the issue of Birdwood Avenue traffic was resolved and Australia Post.
QI can understand why you say that, but my question is simply this, did you take any steps at any time after the notification to have the bollards removed.
AI don’t believe so.
During 1996, there was correspondence between Unley Council and Australia Post about Australia Post surrendering its right of access to Birdwood Avenue. A draft deed might have been attached to that correspondence, but, if so, it is likely to have been subsequently amended. In the course of that correspondence, on 1 November 1996, Unley Council expressed an interest in purchasing the Australia Post land.
On 24 February 1997, a report to the Unley Council recommended that course to solve the issues arising from Australia Post’s right of way.
In the first half of 1997, letters continued to be exchanged on arrangements which might be made in respect of the rights of way.
A report to the Council meeting in May 1997 from the City Mayor referred to the complexity of resolving issues involving carparking access and rights of way in the Unley CBD.[10] It continued:
At the present time Council is being asked to support an agreement between Council and Australia Post, which will see access from the area known as the “Memorial carpark” through the Woolworths carpark to Arthur Street and the closure of Birdwood Avenue at the eastern end.
In the case of the agreement (attachment 1), between the parties a draft is enclosed and is recommended for Council endorsement.
In the case of the closure of Birdwood Avenue, a temporary arrangement has been in existence since 1996. In order to permanently close the Avenue, action needs to be taken under the Roads (opening and closing) Act which will require public notification of Council intent.
[10] TB Vol 14, p 1925.
The report was received. The Council resolved to authorise the signing of ‘attachment 1’, the agreement with Australia Post, which was in the form of a Deed. The Council resolved that the Mayor sign it and that the City Manager countersign it and affix the Council seal to all documents relating to the agreement between Australia Post and the City of Unley. The Council also confirmed its intention that a portion of Birdwood Avenue at the eastern end marked A in the plan enclosed be closed pursuant to the provisions of Roads (Opening and Closing) Act 1991 (SA).
The Deed to which the resolution refers is most likely a deed, a copy of which was sent to the Council by its solicitors on 29 October 1997 as an attachment to an email. The same email also attached a copy of the Woolworths Deed, which I am prepared to accept is in the same form as that sent by Mr Harmer to Woolworths in late 1995.
The email attached the following draft Deed between the Unley Council and the Australian Postal Commission:
1996 Draft deed between The Corporation of the City of Unley and Australian Postal Commission
DEED dated 1996
BETWEENTHE CORPORATION OF THE CITY OF UNLEY of 181 Unley Road Unley SA 5061 (“Corporation”)
ANDAUSTRALIAN POSTAL COMMISSION of C/- GPO Box 4032 Adelaide SA 5001 (“Australia Post”)
RECITALS
A.The Corporation is the registered proprietor of the land comprised in Certificate of Title Register Book Volume 4010 Folio 896 (“Corporation land”) a copy of which is annexed.
B.Australia Post is the registered proprietor of the land comprised in Certificate of Title Register Book Volume 4010 Folio 895 (“Australia Post land”) a copy of which is annexed.
C.Australia Post land enjoys a free and unrestricted right of way over portion of the Corporation land leading into Birdwood Avenue Unley.
D.The Corporation may close Birdwood Avenue at its eastern end immediately adjacent to the Corporation land.
E.The Corporation is also the registered proprietor of land comprised in Certificate of Title Register Book Volume 5096 Folio 842 (“Lot 63”) a copy of which is annexed, which is leased to Woolworths Properties Pty Ltd and on which is erected a deck carpark with entry/exit to Arthur Street Unley.
F.The Corporation has entered into an agreement with Woolworths which provides for the free flow of traffic from Lot 63 to the Corporation land and from the Corporation land to Lot 63.
G.The parties desire to record the matters which have been agreed between them in relation to access to and egress from the Corporation land and Australia Post land.
AGREEMENT
1.In consideration of the provisions of clause 2 of this Deed Australia Post consents to the closure of Birdwood Avenue Unley at its eastern end.
2.If the Corporation closes Birdwood Avenue Unley at its eastern end the Corporation will subject as hereinafter provided permit the free flow of traffic over that portion of the Corporation land marked “X” in the plan annexed thereby enabling the free flow of traffic to Arthur Street Unley from Australia Post land and from Arthur Street Unley to the Australia Post land.
3.In the event that at any time the Council determines that vehicles should not be permitted to enter the land marked “X” in the plan annexed or in the event that for some other reason the free flow of traffic to Arthur Street Unley from the Australia Post land and from Arthur Street Unley to the Australia Post land is prevented or prohibited Australia Post shall be entitled free of any cost of expense to Australia Post to rights of entry to and egress from Birdwood Avenue Unley at its eastern end prior to access to and from Arthur Street being prevented or prohibited.
4.Each party shall pay their own legal costs of and in connection with this Deed.
5.This Deed is binding upon the Corporation and Australia Post and their respective successors and assigns.
6.In this Deed the words “free flow of traffic” mean that notwithstanding parking of vehicles and other obstructions on land, vehicles are able to pass and repass over some portion of the Corporation land and Lot 63 in order to have access to Australia Post land from Arthur Street Unley and egress from the Australia Post land to Arthur Street Unley.
Recital D of the Deed stated that the Unley Council might close Birdwood Avenue at its eastern end and immediately adjacent to the Corporation Land.
Recital F states that the Unley Council had entered in an agreement with Woolworths, which provided for the free flow of traffic from Lot 63 to the Corporation Land and from the Corporation Land to Lot 63. Recital F of the unexecuted Australia Post Deed cannot give the Woolworths Deed any different construction to which I gave it at [50] above. In any event, the carefully limited term, free flow of traffic, is calculated to refer to no more than the removal of the obstruction caused by the bollards: it falls short of the grant of an easement.
The Council’s obligation in Clause 2 was no more than to allow the free flow of traffic over the Council carpark to a point marked ‘X’ immediately before or to the north of the Vehicle Access Link. It is at that point that the agreement with Woolworths to remove obstructions would allow Australia Post vans to continue through to Arthur Street.
Clause 3 required the Council to return free access to Australia Post to enter Birdwood Avenue if the proposed access to Arthur Street were prevented or prohibited for any reason. It contradicts a grant of reciprocal rights of ways. The deed is more consistent with the limited purpose of the draft deed with Woolworths to remove the bollards. It is, precisely, because rights of access were not granted either over the Council carpark or the Deck carpark that cl 3 provided for the reinstatement of access to Birdwood Avenue. There was no agreement by which the Unley Council granted Woolworths the right for its invitees to access the Deck carpark via the Vehicle Access Link and, reciprocally, that Woolworths would grant the Council the right for its invitees to the Council carpark to pass over the Vehicle Access Link.
The resolution passed by the Council authorising the execution of the Australia Post Deed was not self-executing. The execution of the Deeds depended, as Mr Green explained, on the resolution of a multiplicity of related traffic and easement issues. The Deed was never executed. It is not contended that the Deed achieved any legal effect by any conduct short of execution. There can, therefore, be no grant of an easement by Deed.
The Deed was provided to Australia Post on 3 October 1997.
On 9 October 1997, Mr Shuttleworth of Australia Post wrote to Mr Green informing him that he saw no point in signing the deed provided by Mr Green. Settlement on the Duke Group purchase took place on 27 October 1997. Resolution of the Birdwood Avenue closure had not been achieved. No deed had been executed. No easements had been granted.
The correspondence concerning the rights of way contemplated entry into Deeds. The intention to conclude negotiations with that level of formality precludes a finding that there was a binding contractual agreement before and without the execution of the Deed.[11]
[11] Masters v Cameron (1954) 91 CLR 353, 360-1 (Dixon CJ, McTiernan and Kitto JJ); Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102, [64]-[68] (Bell CJ, Hammerschlag CJ in Eq and Adamson JA).
Indeed the Local Government Act 1934 (SA) provided at the relevant time:
37a.   A council contract as follows:
(a)     a contract may be entered into under the common seal of the council;
or
(b)     a contract may be entered into by an officer, employee or agent authorized by the council to enter into the contract on its behalf.

Section 37(1)-(2) of that Act provided that the common seal of the Council must not be fixed or documented except to give effect to a resolution of the Council and the affixation must be attested to by the Mayor and Chief Executive.
In May 1998, Mr Green had reported to the Unley Council that the closure of Birdwood Avenue:
… could not be concluded in time for the change of ownership of the Unley Shopping Centre. The matter has been raised with the new owners but put aside pending attention to other options in this area.
Mr Green explained that, under the practices and policies of the Unley Council, Mr Harmer was not authorised, and did not hold a delegation, to finalise any such agreement. The Unley Council’s approval was required before an officer could bind it to an arrangement of that kind.
A report to the Unley Council, in 23 February 1998, noted that the resolution of the Unley Council of May 1997 to close Birdwood Avenue was yet to be implemented because the agreement of all of those affected by it was not yet obtained.
Mr Green’s report to that meeting stated that he had had preliminary discussions with the new owner of the USC in relation to the potential to create a right of way over the Deck carpark. His May 1998 report referred to the value of continuing those discussions.
The easement claimed on the basis of the pleading of the Integration Agreement must fail.
The bollards were never removed
As we have seen, on 3 January 1996, Ms Hewitt wrote to the Unley Council requesting the Unley Council to contact Woolworths when the time came to remove bollards. A copy of the DAC approval was attached.
Plainly, on that evidence, the bollards were still in place in January 1996.
No record of the Unley Council requesting Woolworths to remove the bollards has been put into evidence. There is no evidence that Woolworths acted unilaterally to remove the bollards. Importantly, there is no written record of the Unley Council complaining to Woolworths that the bollards were removed prematurely before Birdwood Avenue had been closed that has been put into evidence. Nor is there evidence of a complaint of that kind from a resident to the Unley Council.
No record instructing a contractor to remove the bollards, or paying for their removal was adduced into evidence. A subpoena to Woolworths for such documentation received a ‘nil’ return. As shall be seen, when I turn to the engineering evidence called by the parties, the removal of the bollards would have been a substantial undertaking, and would have been expected to leave its vestiges in and around the site of installation.
The Duke Group’s case is that the bollards were removed in 1996 and different bollards installed shortly after settlement on its purchase of the USC land. Its claim that its land enjoys the benefit of an easement for vehicular traversal over and parking on the Council carpark by allowing vehicles to pass through the Vehicle Access Links, critically depends on proving those facts. The Duke Group called three witnesses in support of its case, Mr Angelopoulos, Mr Papetolis, and Mr Vassilopoulos. Mr Angelopoulos had a strong commercial motive to assert that the bollards were removed. A comparison of his affidavits to his testimonial account of using the Vehicle Access Link discloses subtle, but telling, indications of reconstruction. Mr Papetolis’ narrative was chronologically inconsistent with the Duke Group’s case. Mr Vassilopoulos’ evidence ultimately contradicted the Duke Group’s case. For the reasons given below, all three were unsatisfactory witnesses.
By contrast, all of the witnesses called by the Unley Council who testified to the effect that the bollards remained in place in that period, with the exception of Mr Lennon, on whose evidence I place no weight, impressed me as credible and reliable. Moreover, for the reasons which are developed below, the Duke Group’s case as to the removal and replacement of the bollards is strongly contradicted by three bodies of circumstantial evidence. The first is the political reality, reflected in testimony, correspondence, and other documents, that the Unley Council could not remove the bollards without first closing Birdwood Avenue. The second is the engineering evidence which failed to find any indication on the surface of the carpark in and around the Vehicle Access Link of the removal of the bollards. That engineering evidence also shows that there was no subsequent installation of bollards in or around 1996-1997, which accords with the lack of any recollection of any witnesses of any substantial disruption of the kind inherent in the carrying out of those works. The third is the absence of any complaints from an officer of the Duke Group about the installation of bollards within the boundaries of the Deck carpark, and the consequential disruption of traffic flow over the Vehicle Access Link, very shortly after their purchase of the USC.
I will deal first with each of the witnesses.
Mr Angelopoulos deposed that, in 1996, there were no bollards blocking the Vehicle Access Link between the Deck carpark and the Council carpark. Mr Angelopoulos claimed that it was possible to drive back and forth between the two carparks using the Vehicle Access Link. He deposed that the Vehicle Access Link was two lanes wide.
Mr Angelopoulos gave evidence that, before settlement, on the Duke Group purchase of the USC, his office was in Norwood at the Britannia Hotel, which the Duke Group then owned. He had worked there from about 1993.
Mr Angelopoulos deposed that, between 1996 and 1997, he regularly travelled through the Vehicle Access Link when visiting the USC. In particular he deposed that he accessed it by entering the Council carpark land from Unley Road and driving through the Vehicle Access Link to park in the Deck carpark before proceeding on foot to the USC.
In his affidavit of 22 December 2022, Mr Angelopoulos deposed:
I would access the USC Carpark Land by entering the Council Carpark Land from Unley Road and utilising the Vehicle Access Link to drive into the USC Carpark.
Mr Angelopoulos testified that he visited the USC for banking, postal services, and the like. He occasionally shopped there. Often, he would simply continue to travel west along Arthur Street then turn South onto King William Road to visit his father on Victoria Avenue, or to return to his office or his home. He never went through Arthur Street when heading north.
Mr Angelopoulos explained that he first noticed that the Vehicle Access Link was open between the Council carpark through the Deck carpark, by chance, in 1996, about a year before settlement on the USC in 1996. He was travelling west along Arthur Street when he glanced to his right and noticed that it was open. He kept it in mind and thereafter used it if he was travelling that way late in the day, whenever there was a build-up of traffic on Unley Road at the junction with Arthur Street. Mr Angelopoulos attributed his more frequent use of the carpark in 1996 to his need to obtain change more often from the bank for the operations of the Britannia Hotel.[12] He could not recall what had blocked access before that time. I observe here that there is at least a little tension, given the frequency and range of reasons for travelling down Arthur Street, in Mr Angelopoulos’ claim that he remembered the occasion on which he first noticed that the Vehicle Access Link was open and his claim not to recall what had formerly blocked access. I accept that human memory fades with the years as to the appearance of a built environment after it has been replaced or removed. Over time, our memory of its current appearance supplants the recollections of what was there before. However, Mr Angelopoulos claims a recollection of first noticing the change, but without remembering that which it had immediately replaced.
[12] T 258.
Mr Angelopoulos testified, in evidence in chief, that he subsequently took the route through the carparks when he was travelling south on Unley Road by turning right into May Street a couple of times a week.
Mr Angelopoulos’ explanation for travelling through the carparks to get to Arthur Street on his way home via King William Road, rather than driving straight down Mary Street, was not convincing. He said:[13]
AYeah, you could have, but that was a path that I picked up and I found I just would do it. Because I came across it, I became familiar with it and I would use it to either go left or right.
QJust so I understand this. What you’re saying is, instead of going down the road [Mary Street] that you’ve described as being easier and having less traffic and it connects straight down to King William, that you’ve chosen to navigate and take a bend through several carparks and then try to turn right on to the busier road of Arthur Street for the purpose of getting to your home. Is that what you are telling his Honour?
AYes. The busiest part of Arthur Street was from that carpark east to the lights. It wasn’t from the carpark right.
[13] T 247.
In cross-examination, Mr Angelopoulos accepted that he had not described entering the Council carpark from Mary Street at all in his affidavits but had spoken only of entering the Council carpark from Unley Road which was only possible when travelling north on Unley Road at a point north of the Arthur Street junction. The questioning culminated in the following exchange:[14]
[14] T 231-232.
QYou’re describing them in different ways, there’s direct from Unley Road, and there’s from Mary Street via public car parks they’re the ways that it could be done, you say.
AWell, if I was travelling on Unley Road, heading towards the city I could turn left into the car park, the council car park but if I was travelling away from the city, travelling south, I could turn into Mary Street, and then turn left behind the pharmacy car park and enter the council car park.
QI understand that, you’re just describing the configuration and you’ve told us that you didn’t use Unley Road to access the council car park for the purposes of getting through the vehicle access link, what I’m asking you about, this is in para.71 you are describing two distinct ways that you could get into the council car park at 71.2.1 and 71.2.2, one’s from Unley Road and one’s from Mary Street, right.
AThat’s right.
QWhen you tell us – when at para.72 you depose to what you actually did yourself in terms of utilising the vehicle access link, you say that you’d access the USC land by entering the council car park from Unley Road not from Mary Street as you described in 71.2.2 above, that’s right, isn’t it.
AIf I was leaving the city and travelling south, you couldn’t turn into the council car park by Unley Road, right, so you’d have to turn off the street prior to that which was Mary and then you would enter through the back car park.
QWell, I understand that, I mean can I suggest this to you: what you described in para.72, in effect couldn’t be correct entering from Unley Road regularly in the way in which you’ve described it because you’d have to turn right, you can’t access the carpark from Unley Road if you are travelling in a southerly direction.
AWhat should have been included was the turn off into Mary Street after Unley Road.
QAnd also across public car parks to the north.
AYeah, I didn’t mean you could – travelling south you could turn across traffic into the … carpark at that time, that is what I meant.
I found Mr Angelopoulos’ explanation as to why [72] of his affidavit only referred to a route he took through the carpark when travelling north on Unley Road unconvincing, having regard to this testimony that the only advantage in the use of the Vehicle Access Link was to avoid the Arthur Street junction and the specific reference to the Mary Street entrance in [71].
Indeed, in evidence in chief he had testified:
QYou’ve described a route coming south, did you ever do it in reverse, that is, enter from Arthur Street and then head north.
AI don’t think I did, no.
Nor is it likely that Mr Angelopoulos would have entered whilst travelling north on Unley Road. It is significant that he was not asked in evidence in chief about travelling north along Unley Road and then turning into the carparks north of Arthur Street. There is no obvious reason for ever doing so on his own evidence. If Mr Angelopoulos had business at the USC, he could simply enter the eastern carpark of the shopping centre directly from Unley Road. For that reason, his failure to mention taking a route through Mary Street in his affidavit is all the more curious. If the route from Mary Street through the carpark were as convenient as Mr Angelopoulos had claimed, and were used often, one would expect that to be at the front of his mind when giving instructions, and for that reason could be expected to find expression in the affidavit.
I am satisfied that exhibits A13 and A14 show car parking spaces marked across part of the Vehicle Access Link in 1998. Mr Angelopoulos never claimed that they were marked by the Duke Group after the bollards were installed. It follows that they were there in the period that he claimed to travel over the Vehicle Access Link. It is inherently improbable that parking spaces would be marked if it were open. There was a central island of marked car parking spaces in the Council carpark set back from the boundary.
On the ease of moving through the Council carpark, Mr Angelopoulos testified that there were less than 16 carparks in the Council carpark in October 1997.
He was then taken to a planning report entitled ‘Beyond Main Street Unley Retail Precedent Strategy’.[15] It was drawn in March 1997. He testified that the two most eastern carparks of the northern road were not there.[16]
[15] Tender Book Volume 4, p 1893.
[16] T 297.
Mr Angelopoulos was then taken to a plan marked, MS-1 (which is exhibit R12). Mr Angelopoulos testified that there were too many carparking spaces shown in the middle island bank of carparks too close to the Vehicle Access Link. He said that the carparks were placed a sufficient distance away from the Vehicle Access Link to allow cars to circulate around the island bank of spaces comfortably. Mr Angelopoulos recalled that there were only about six cars in each row and were shown too far from the east.
He testified as to the plan MS-1 drawn by Mr Separovic:
This is too tight to circulate through. I used to drive through that, and it wasn’t like that.
When Mr Angelopoulos was taken to a photograph,[17] he agreed that it showed the central row of cars close to the eastern side of the Vehicle Access Link[18] and that there were less carparking spaces in the photographs than in the plan MS-1.
[17] Volume 8 page 477.
[18] T 305.
Mr Angelopoulos said of the comparison between R12 and the photograph:
I’ll say again R12 shows too many car parks too close to that access link, whereas this picture, especially the bottom picture, you can see the most southern bay is positioned further north than what he has shown it in this MS1 plan.
The cross-examiner then put to Mr Angelopoulos that two photographs taken when the bollard-chain structure was in place[19] showed the carparking spaces in the island bank extending as far east as depicted on MS-1. Mr Angelopoulos disputed that suggestion. On my visual inspection of the photographs and MS-1 and on Mr Separovic’s evidence, I find that MS-1 accurately depicts the relative position of the island bank of carparking spaces.
[19] TB 4477.
Mr Angelopoulos testified in evidence in chief that, shortly after settlement on the USC, he noticed that the Vehicle Access Link had been obstructed by the erection of bollards.
Mr Angelopoulos testified that, shortly before settlement on the USC, he and his father met Mr Morris, the Duke Group’s financier and Mr Miers, at the Deck carpark. Mr Con Angelopoulos testified that the meeting was called following a telephone conversation between his father and Mr Green. Mr Miers informed them that, after the opening of Rossiters, Woolworths put up a balustrade to separate the Deck carpark from the Rossiters carpark because they had observed Rossiters’ owners, tenants, and customers flooding the Deck carpark.
He advised them to leave the balustrade as it was. Mr Chris Angelopoulos thought it was a good idea not to remove the balustrade and said that he would phone Mr Green. Mr Morris advised them to press on with the settlement. It was agreed that they would proceed with the settlement, and that the balustrade would be left in place as it was. It is not at all clear on the evidence why or how any decision by the Duke Group to remove or not to remove the balustrade could push out the settlement. The failure of Duke Group to call admissible evidence explaining the basis upon which Mr Angelopoulos could reasonably have believed any pressure was brought to bear on the Duke Group to remove the balustrade or have settlement deferred seriously undermines the reliability of his testimony that the bollards were not in place when he met Mr Morris at the Deck carpark but were in place about a week later.
Mr Angelopoulos deposed that the Vehicle Access Link was open until shortly after the settlement date. Mr Angelopoulos was taken to his affidavit, sworn on 22 November 2019, in support of an extension of time for the removal of a caveat, in which he had sworn that he understood that the bollards blocking access between the Deck carpark and the Council carparks were erected prior to settlement. I observe that that recollection is inconsistent with the case advanced by the Duke Group through Mr Angelopoulos, that the bollards were installed because the Duke Group had refused to remove the balustrade very shortly before settlement.
It was put to Mr Angelopoulos that that directly contradicted his testimony that they were erected shortly after the settlement.[20] Mr Angelopoulos explained the difference in this way:
Your Honour, I made an error because prior to settling we had a meeting in the car park onsite, it was only two days out, to look at the balustrade at the request of council and two days out the carpark wasn’t closed with bollards. So I made an error in this paragraph of this statement.
[20] T 262.
It is obvious enough that there was an ‘error’ whether it be in Mr Angelopoulos’s affidavit or his testimony. It is the explanation of the error which was sought but was not forthcoming. That failure to explain the inconsistency undermines the ‘core concept’ Duke Group advanced for the installation of the new bollards at about the time of settlement which appears immediately below.
Mr Angelopoulos explained that it was the conversation between his father with Mr Green which set off a series of steps which led to the installation of the bollards:
What I meant was when my father returned Mr Green’s phone call and explained why we wouldn’t push out settlement for the balustrade issue, I was told he was quite annoyed and that he got quite angry-
Insofar as that answer gave a hearsay account of Mr Green’s reaction, it was admitted only for the purposes of the question of credit. Mr Angelopoulos said that he did not see the bollards installed but he noticed them shortly (within a week) after settlement. He assumed they were installed on the Council carpark. However, he did not investigate on whose land they were erected.[21] He did not ask anyone to check. Mr Angelopoulos agreed that the bollards were in a line to the south of the fence between the Deck carpark and the Council carpark ‘but not by a great deal’. He assumed that the fence would be close to his land, but he had not surveyed it. He said that he never returned to view the bollards with his father. Mr Angelopoulos accepted that the shopping centre may have lost customers because it was more difficult for them to enter and exit but he did not make any complaint because he assumed they were installed on the Council carpark side.
[21] T 268.

Of course, the preceding discussion has proceeded on the basis that easements impliedly granted under the principles in Wheeldon continue to have efficacy with respect to land held under the Torrens system.[116] However, for the reasons provided, even if such easements may continue to be recognised as burdening Torrens Title land, the elements thereof have not been established by the applicant. The applicant’s claim in this regard must be dismissed.
Prescription and the Doctrine of Lost Modern Grant
[116] Notwithstanding s 69 of the Real Property Act 1886 (SA), there would appear to be at least a maintainable argument that an implied easement of the kind recognised in Wheeldon would give rise to a personal action against the registered proprietor of the servient tenement, even if that personal action would not bind the registered proprietor’s successors-in-title. See, eg, Tarrant v Zandstra (1973) 1 BPR 9381, 9384-5 (Mahoney J).
Insofar as the Duke Group sought to establish its easements of traversal over and parking on the Council carpark, by way of the Vehicle Access Link, I note, but do not propose here to resolve, the inherent difficulties in applying the doctrine of lost modern grant, and in recognising easements by prescription, with respect to Torrens Title land.[117] That is because, in any event, the critical factual premise that must underpin this claim — that there has been at least 20 years of continuous user of the Vehicle Access Link in the ways alleged — has not been made good. The continued interposition of the bollards amounts to an insuperable obstacle to the Duke Group’s claim. Moreover, the pedestrian user of the Vehicle Access Link by all members of the public for a variety of reasons does not demonstrate prescriptive use of the Vehicle Access Link as a footway. It follows that these claims must be dismissed as well.
The Fire Safety Easement – a certificate issued under the Building Act 1971 (SA) does not create a private easement
[117] See, eg, Williams v State Transit Authority (2004) 60 NSWLR 286, 298-301 (Mason P, Sheller and Tobias JJA agreeing).
Finally, I turn to the Duke Group’s claims to an easement over the Council carpark pursuant to which it and its invitees are entitled to use the Council carpark in the event of a fire or other emergency. I deal first with that claim in so far as it is founded on the Unley Council issuing a certificate of classification for the Deck carpark.
The necessary premises on which that claim rests are:
1.The construction of the deck carpark was subject to the Building Code of Australia 1990 (amendment 3) and in particular its provisions which required that in a building no point on a floor must be no more than 40 metres from an exit and that hose reels must be located no more than 4 metres from a required exit. (that applies to fire hose reels required by the regulations).
2.Section 9 of the Building Act 1971 (SA) (Building Act) applied to the construction of the deck carpark and provided that the Council must approve building work if it is satisfied that the proposed building work complied with the Building Act including the Building Code of Australia.
3.Regulation 19 of the Building Regulations provided that an owner of a building must not use or permit the use of the building unless a certificate of classification has been issue.
4.Regulation 20 of the Building Regulations provided that a Council must not issue a certificate of classification in relation to a building structure unless a certificate of compliance with essential safety provisions under the Building Code had been submitted by the owner.
5.Regulation 21 of the Building Regulations provided that the Council must issue a certificate of classification on completion of the building work if satisfied that the work had been performed in accordance with the approval given by the Council.
6.The Council was the relevant authority in respect of the approval of the building work on the Deck carpark. Its proper officer Mr Harmer issued a certificate of classification on 24 May 1993.
7.The Deck carpark did not comply with the requirements of the Building Code of Australia in that there was a point in it from which there was a distance of over 40 metres to an exit, unless access was available to the Council carpark.
The Duke Group called a building surveyor, Mr Dodd, who gave evidence that the Deck carpark did not comply with the requirements of the Building Code of Australia. A building surveyor expert called by the Unley Council, Mr Olds, gave his opinion that the certificate of classification had been properly issued.
The Duke Group contends that by granting the certificate of classification the Council necessarily granted an easement over the Council carpark in so far as it was necessary to ensure that the Deck carpark was compliant with the Building Code of Australia, as so certified, in respect of the fire safety requirements.
The contentions of the Duke Group fail at a number of levels.
First, the issuing of a certificate of classification amounts to no more than a factum on which the lawful use of a building rests. In issuing, or withholding, a certificate of classification, the Unley Council exercises an administrative power for public purposes. However, the statutory power so exercised has no effect beyond that given to it by the Building Code of Australia. The practical legal effect of the issuance of a certificate of classification is that the building owner may use the building without committing an offence against the Building Act. The scope for collateral challenges to the issues, or withholding of a certificate, need not be considered here.
However, the statutory power cannot extend to creating a proprietary right to the extent necessary to ensure that the certificate of classification was properly issued. Indeed, an easement granted generally in order to ensure that the certificate of classification was properly issued would necessarily be bad for uncertainty.
The difficulty with the contentions of the Duke Group in this respect are exposed if one considers a certificate of classification given by council where the servient tenement for the purpose of an easement necessary to make the certificate of classification effective was not owned by council. Plainly, the granting of a certificate by council could not create an easement over land owned by someone else. If that were the legal effect of the issuance of a certificate of classification, the servient tenement might be made subject to an easement even though the registered proprietor, and others with interest in the property, had no knowledge of the process leading to the certificate of classification or any basis on which it was issued.
The circumstance that Mr Harmer, who was exercising the statutory power, was also a Council employee cannot extend the statutory reach of the power.
Secondly, the Duke Group put its case on the basis, that to make good its claim, it had to be accepted that Mr Harmer necessarily proceeded on the assumption that the Deck carpark enjoyed an easement allowing persons and vehicles to pass over the Council carpark. However, the validity or invalidity of the issue of a certificate of classification cannot depend on the subjective reasons of the person issuing the certificate. If it did so, the nature and extent of the easement would also depend on that state of mind.
Thirdly, there is no documentation either in the approved plans, or on the conditions of approval, or otherwise of a right to access to the Council carpark for that purpose in the time up to and including the issue of the certificate of classification. It was largely common ground that a building surveyor would not rely on access to the property of an unrelated party in the absence of a legally binding arrangement. I accept that Mr Harmer was not relying on any such access when he issued the certificate.
It is necessary at this juncture to deal with a line of cross-examination which suggested a sinister reason for the absence of any documentation of a right of access for safety reasons. Mr Harmer was cross-examined to the effect that he had consciously failed to record arrangements for users of the Deck carpark to access the Council carpark for building approval purposes in order to protect the Unley Council’s commercial interests. As can be judged on the evidence adduced before me, that allegation of maladministration in the ‘broadest sense of that word’ was little more than speculation.
Mr Harmer was taken to a letter to the Unley Council from its solicitor, Mr Davies. Mr Harmer was first asked about enquiries he made of the solicitor concerning the passage of stormwater:
QAnd you proposing that some form of easements be considered for their benefit but at the same time you didn't want to prejudice the council in [its] ability to sell the council car park land. Do you agree that's what you wrote.
AI think the letter generally expresses a concern over the granting of easements on the adjoining allotment.
QBut you were looking for some form of guarantee or protection to Woolworths weren't you.
AI would take this as I have a building document that shows that storm water's going to be disposed across adjoining land and I'm endeavouring to work out whether I should agree to that or not and I think this expresses a lot of doubt that I shouldn't.
Q     And you were seeking advice from Mr Davies weren't you.
A     Indeed.
Q     And you were prepared to align what advice he gave you weren't you.
A     Any legal advice you take on board but you don't necessarily act on.
QBut Mr Davies was a regular advisor to the Unley Council on such matters at this time.
A     Yes.
QAnd if you would turn forward please to p.1026 this is a letter from Mr Davies at Baker O'Loughlin of 30th July. Now he's referring to your letter of 13 July that I've just taken you to, agreed.
A     Yes.
QAnd while the letters addressed to the Town Clerk it's marked for your attention.
…
Q     You don't doubt you received this letter do you.
A     No.
Q     Do you have any memory of how you interpreted this letter.
A     No.
…
Q     You don't have any memory of how you interpreted this letter.
A     I don't have a memory of the letter.
QWell, I want to try and prompt your memory. Can I suggest to you that you took this letter to mean that Woolworths could be allowed to have access to the council car park land for the storm water without any need for any formal documentation.
A     No.
QYou say you don't remember interpreting that way or you don't interpret it that way now.
AI don't recall the letter and in quickly reading the letter I don't agree with your proposition.
QI see, so you do have a view about what the letter says do you as you read it now.
A     I quickly read it.
Q     What's your view about what it says.
…
At my instigation, Mr Whitington explained the purpose of his questioning in the absence of Mr Harmer as follows:
MR WHITINGTON: We say this correspondence indicates that Mr Harmer was of the mind that he may need a formal documentation of some right for Woolworths to access the council car park land for water but that he wanted to be careful about prejudicing the council's right in relation to a future sale and prejudicing a future sale if something was installed. The advice comes back from Mr Davies that you don't need to do it and in fact you will be prejudiced if you have granted an easement which may [a]ffect the value of the land. In other words an easement would be detrimental to the council. Subsequently he doesn't pursue [an] easement. Now, we say the same thing. My learned friend wants to make a case in relation to the fire escape easement or right that there is no way that this man would have assumed or allowed for an exit from the VAL over the council car park land without documenting it. We're saying here he has clear advice that he would be better off not to document a drainage or stormwater easement and we would be submitting your Honour in due course that based upon this advice he saw no need to document the fire escape right if you like, I'll call it a right. He saw no need to document or indeed he thought it better not to document it. Now, he may not be able to remember any of that and -
HIS HONOUR: I'd be surprised if he didn't remember something like that but he might. If it happened. If he was thinking that but he might not remember it.
I allowed Mr Whitington to put the proposition to Mr Harmer in response to which the following evidence was given:
QI put it to you this way. You have got the letter from Mr Davies in front of you, have you.
A     I do.
QIt's the case, is it not, and if you can't remember say so, but from the time you receive[d] this advice you had it in your head that it would be better off not documenting rights available to the occupier of the Woolworths deck car park over the council car park land, whatever those rights might be, and particularly in relation to fire escape.
HIS HONOUR:      Yes, I think it's better if it's not rolled up.
XXN
Q     You would be better off not documenting those rights -
HIS HONOUR:      Just stop for a minute.
HIS HONOUR
QAfter you received this letter did you form the view that you would be better off not documenting, and in particular not having an easement allowing Woolworths or Rossiters to use the stormwater pipe.
A     I don't have a specific recollection, but no, I don't believe that would be the case.
XXN
QSo does that mean that if you don't believe that's the case, you would have or should have documented the stormwater easement.
A     It's not for me to document a stormwater easement.
QYou should have or would have recommended the documentation of a stormwater easement.
ANo, I needed to be satisfied that the stormwater was being disposed to an appropriate location. Stormwater easements were nothing to do with me.
…
QCan I suggest to you that following the letter from Mr Davies you took no steps to document in any way at all rights which might apply to Woolworths or Rossiters in relation to discharge of stormwater.
AIt's not my role to do rights and easements over a private allotment. I don't - I'm unclear on your question, that is not a role that I would have taken.
HIS HONOUR
Q     Your role was to approve or not approve the building work.
A     Yes.
It is clear that Mr Harmer was seeking advice, in respect of, and only in respect of, his statutory duty as to the issue of certificates of classification. He was seeking advice on what arrangements on the ground he could have regard to.
The cross-examination continued:
QI want to suggest to you and if you can't remember, say so, that in 1992 and 1993 at the time you were confirming approval of what had been built, you had it in your mind that it was not appropriate to record in a formal way any right of fire escape exit across council car park land.
A     Is that a question?
Q     Yes.
…
QNow in that context I'm suggesting to you that you did assume that was a fire escape exit, that's the first point. You understand that's the assumption I'm putting to you.
A     I understand that's the assumption you are putting to me, yes.
Q     And I think you disagree with that.
A     I do disagree with that.
QBut of course your disagreement in your second affidavit is not based upon a memory, but it's based upon an assertion of a memory of practice, isn't it.
A     Yes.
QWhat I'm suggesting to you is this, are you capable of assuming for a moment that your interpretation of your practice is wrong and that you did treat that as a fire safety exit.
A     I don't believe that to be the case.
Q     So, you can't assume that for the sake of argument.
A     I don't believe that to be the case.
QIn any event, I'll come back to my prime proposition and that is that in 1992/1993 following the advice from Mr Davies that I've taken you to, you did not see the need to document rights, at least in relation to water or fire, should they exist, over the council car park land.
AMr Davies[’] letter only relates to water and it's not something that I would have been a part of as a building surveyor.
…
HIS HONOUR
QWhat I think is being put to you is that you approved the building in respect of fire exits and fire hoses treating the vehicular access between the deck car park and the council car park to the north, where one of the dished inverts was, as an exit. That you approved the fire exits and hoses an exit to the north but didn't record it any way because you didn't want to adversely affect the value of the council's property at lot 53.
AYour Honour, I don't believe that to be the case and would never act in that way. That is not something that I even contemplate doing.
I have no hesitation in accepting Mr Harmer’s denial that he issued the certificate of classification without documenting agreed access for that purpose on which he relied so as not to adversely affect the value of the Council’s land. It is a serious allegation that Mr Harmer, a council employee, put his employer’s commercial interests ahead of public safety and his statutory responsibility. Moreover, there is simply no evidence of the grant of any rights of passage or use to the users of the Deck carpark for that purpose so soon after the Deck carpark was opened.
Fourthly, there has never been any signage in the Deck carpark showing access to the Council carpark as a fire escape.
Fifthly, the plans show access to the Council carpark to be obstructed by landscaping. Moreover, the evidence shows that when the certificate of classification was issued, the Vehicle Access Link was obstructed by the chain. True it is that Mr Harmer may have inspected it before the chain was put in place. However, it does not follow that he was not aware of the arrangements made in response to Mr Ports’ complaint. Mr Harmer was the Unley Council’s building surveyor and, as such, reported to Mr Sutcliffe who made the arrangement to install the bollards and chain. Mr Harmer could not recollect the chain and bollards construction. He recalled only the installation of the bollards across the Vehicle Access Link. I am, however, unable to find that Mr Harmer proceeded on the basis that the Vehicle Access Link was open when he issued the certificate of classification.
Sixthly, on the evidence of Mr Olds, the view could reasonably be taken that there was compliance or at least substantial compliance, without access to the Council carpark. The additional distance beyond the prescribed 40 metres of 700 mm was minimal. The placement of an additional fire hose reel could not make the conditions of approval burdensome.
The Duke Group’s reliance on a common intention to grant a fire escape easement fails for a lack of any evidential foundation. There is no reason to find that the parties did turn or must be taken to have found their mind to such a thing. Nor is there any basis to imply the grant of an easement in the Sale Agreement. To the contrary, its terms preclude any such implication. Finally, the Duke Group relies on the long availability of user of the Vehicle Access Link in the event of an emergency is misplaced. The ‘availability’ is not at all related to the need for safe passage. Nor is it a privilege previously enjoyed by users of the Deck carpark. It is a consequence of the Unley Council’s permission, indeed implied and express invitation to the public generally to use the Council carpark for whatever purpose they choose.
Conclusion
It follows that the Duke Group’s claims must be dismissed in their entirety. I will hear the parties on the costs consequences following these reasons.

[2024] SASC 78

6 June 2024