King v Carr-Gregg - [2002] NSWSC 379

No judgment structure available for this case.

CITATION: Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor [2002] NSWSC 379

CURRENT JURISDICTION: EQUITY DIVISION

FILE NUMBER(S): SC 3918/2000

HEARING DATE(S): 18/03/02 to 21/03/02, 15/04/02

JUDGMENT DATE: 2 May 2002

PARTIES :

Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor

JUDGMENT OF: Foster AJ at 1-72

COUNSEL : Mr I. Wales, SC - Plaintiff
Mr J. Webster - Defendants

SOLICITORS: Fox & Staniland - Plaintiff
Teece, Hodgson & Ward - Defendants

CATCHWORDS: REAL PROPERTY - Easements - s 88K of Conveyancing Act 1919 - whether an easement should be imposed.

LEGISLATION CITED: Section 88K of Conveyancing Act 1919
Real Property Act 1900

CASES CITED: Beekman v Gray (2001) NSWSC 531
Hanny v Lewis (1998) 9 BPR 16,205 at 16,209.
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BPR 15,917.

DECISION: Refer paragraphs 62, 63 and 65.; Award compensation to the defendants in the sum of $30,000; Plaintiff to pay the defendants' costs of the application; Direct that the parties bring in Short Minutes of Orders giving effect to this decision.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FOSTER AJ

THURSDAY, 2 MAY, 2002

3918/2000 Grant Alfred KING v John Francis Cromwell CARR-GREGG

JUDGMENT

1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919. The plaintiff, Grant Alfred King (“Mr King”) is the registered proprietor of the land in Certificate of Title Folio Identifier 2/593258 being Lot 2 in D.P. 593258. The land and dwelling erected upon it are known as 3A Edward Street, Gordon (“The King property”).

2 The defendants, John Francis Cromwell Carr-Gregg and Susan Joy Carr-Gregg are the registered proprietors of the land in Certificate of Title Folio Identifier 6/3662 being Lot 6 in D.P.3662. The land and the house erected on it are known as 14 Nelson Street, Gordon (“The Carr-Gregg property”).

3 Mr King seeks the imposition of an Easement to Drain Water in favour of the King Property as dominant tenement over the Carr-Gregg Property as servient tenement, in accordance with the provisions of Schedule 4A Pt 3 to the Conveyancing Act 1919, together with such alterations or additions or subject to such conditions or undertakings, as the Court may think appropriate.

4 The King property and the Carr-Gregg property lie within an area of land bounded to the north by Edward Street, Gordon, to the west by Rosedale Road, Gordon and to the south by Nelson Street, Gordon. The King property is a battle-axe block with access to Edward Street by way of a laneway running south from Edward Street and making a right-angle bend to the east before entering at the northern boundary of the property. The laneway is on the title to the King property.

5 Immediately to the west of the King property is No. 17 Rosedale Road, which is also a battle-axe block. Its access is via a laneway, also on title, to Rosedale Road. There is a house erected upon this block.

6 Immediately to the east of the King property is a property, No. 9 Edward Street. This is not a battle-axe block. It has a direct frontage to Edward Street.

7 The southern boundaries of No. 17 Rosedale Road, the King property and No. 9 Edward Street form a continuous line. Portion of the southern boundaries of 17 Rosedale Road and the King property adjoin the northern boundary of the Carr-Gregg property.

8 On the Carr-Gregg property, to the rear of the house, there are a tennis court and swimming pool. The northern boundary of the tennis court is close to the northern boundary of the block, where there is also a retaining wall. The Carr-Gregg property is significantly lower than the properties to its north. As such, in the absence of effective prevention, it would receive water running off the surface of those properties during rain of intensity and duration suffice to exceed the capacity of the soil to absorb it.

9 Indeed, evidence, to which it is unnecessary to refer in detail, establishes that, in general terms, and leaving aside the specific effects of improvements upon the land, the King property is the natural focus of a catchment area which includes part of No. 9 Edward Street, No. 17 Rosedale Road and parts of a number of adjoining properties with frontages to those streets. A survey plan, in evidence, indicates this with sufficient clarity. In the ordinary course of things, the water from this catchment area, not absorbed into the soil of the adjoining properties, would find its way onto the King property, from which, by force of gravity, the unabsorbed water would, for the most part, flow down onto the Carr-Gregg property.

10 The evidence does not indicate what, if any, steps were taken by way of drainage, before 1977, to deal with these water flows. In that year, however, a subdivision plan was approved by Ku-ring-gai Council (“The Council”) which provided for the creation of the battle-axe blocks to which I have made reference and also to the addition of some land to No. 9 Edward Street. The King property was Lot 2 in this subdivision, Lots 1 and 3 being 17 Rosedale Road and 9 Edward Street respectively. The plan of subdivision became D.P. 593258.

11 It was a condition of the approval of the subdivision that certain drainage easements be created. These consisted of easements over Lot 2 in favour of Lots 1 and 3 together with an easement for drainage from Lot 2 to No. 14 Nelson Street, which was Lot 6 in D.P. 3662. The intended drain would convey water thus collected on Lot 2, from that Lot and Lots 1 and 3, onto and across Lot 6, D.P. 3662, to connect with the Council’s street drainage system in Nelson Street, the connection being near the frontage of that Lot to Nelson Street. It may be noted that, in 1977, at the time when the creation of this easement was being contemplated, there was already a house on the Lot, being premises No. 14 Nelson Street. These premises were later purchased by the defendants, in 1986.

12 The evidence makes it plain that the drainage easement over No. 14 Nelson Street, contemplated in the Council subdivision approval of 1977, was to consist of a pipe drain 375mm in diameter leading from a stormwater collection pit at the south-western boundary of Lot 2 and thence along the eastern boundary of 14 Nelson Street and exiting that property at its south-eastern corner. This drain was in fact constructed in 1977, to the Council’s specifications and with its approval. It contained hydraulic pits roofed with concrete man-hole covers, which were also required features. The drain with its associated pits has been in operation since that time and, quite obviously, has conveyed large quantities of water from the catchment area to the north of 14 Nelson Street, which would, otherwise, in large part, have entered and flowed across that property.

13 Regrettably, contrary to the Council’s requirement, as part of its subdivision approval, the drain, although constructed, was never registered as an easement upon the title of 14 Nelson Street. Its existence is noted upon D.P. 3662 as being the site of a “proposed easement”. It is clear that negotiations were commenced between the then owner of the King property and the then owner of the Carr-Gregg property for an appropriate payment for the granting of the easement but that these negotiations were never concluded. Consequently, an appropriate easement was never registered. It appears that, despite this breach of the subdivision approval, no action was taken by the Council, with the result that, although the drain has operated as an essential part of the drainage system required as part of the subdivision, for over twenty years, it has done so in the absence of the indefeasible right of passage over 14 Nelson Street, which had been clearly contemplated.

14 The evidence establishes that when the defendants bought 14 Nelson Street, they were in considerable haste to exchange contracts in order to forestall a sale to another prospective purchaser. Mr Carr-Gregg says that the purchase was similar to a purchase at auction, in that he had no leisure to conduct any thorough inspection of the property but acted in haste, in order to avoid losing it. In the circumstances he was not aware of the existence of the substantial drain along its eastern boundary. The vendor’s solicitor told him that there was a pipe on the property but that there was no easement for it. After purchase, Mr Carr-Gregg became aware of the existence of the pipe and also that it carried a considerable body of water. His Certificate of Title made no mention of any easement in relation to the pipe and, as he was a solicitor, he was aware that no indefeasible right over his property for the drainage of water from other properties had come into existence, despite the construction of the pipe. It may be noted, however, that he does not claim that, had there been an easement for the pipe, he would have refrained from purchasing the property.

15 The defendants, after purchase, noticed that water came on to their property at the rear, after heavy rain. Although Mr Carr-Gregg asserted in correspondence to the Council, in June 1989, that water was coming from “the broken pipe on my property” and that he was concerned by “the erosion (under the concrete) caused by the broken pipe”, his evidence makes it clear that he was not really of the view that the water coming on to his property was the result of any breakage or malfunction of the pipe. In fact, it was the product of seepage through the rear and side retaining walls. I should add that references, in later correspondence, to water “cascading” over his rear boundary from the properties above has not been supported by any evidence given by him in the case. Also, suggestions in correspondence that he might exercise his rights and block the pipe and even remove it would appear to be an exaggerated reaction. Such blockage or removal would, obviously, have resulted in his property receiving the waters which the pipe conveyed away from it.

16 It is plain that, from an early stage, Mr Carr-Gregg adopted the stand that, as the pipe had been constructed over his property without any accompanying easement, he would, in those circumstances, himself, not grant any such easement. In April 1998, he was requested to grant an easement in relation to the pipe in favour of the property 17 Rosedale Road, Gordon, in circumstances where the owner of that property was seeking to sell it. He was asked by the vendor’s solicitor “to formalise the existing arrangement by the grant of an easement for drainage over the existing line of pipes in favour of our client’s property and also Lots 2 and 3 in D.P. 593258.” This request was refused by Mr Carr-Gregg in a letter, which contained the following reasons:

“We do not wish to grant third parties legal rights in relation to our property (we are particularly concerned about the possibility of work on our property based on the existence of such rights);

In our view, the 375mm pipe is inadequate in terms of drainage from 3 properties: we note that it is currently providing drainage from a grass tennis court on lot 2 in D.P. 593258 and a synthetic grass tennis court at lots 3 and 4 in D.P. 593258 as well as your client’s property. Our tennis court is serviced by a 200mm drain.

There is, with respect, no ‘arrangement’ (as you describe it) to ‘formalise’: neither your client nor the owners of lots 2 and 3 have any rights to drain water through the pipe which runs through our property.”

17 In 1999 when the King property was purchased by the plaintiff, there was erected upon it a house, a grass tennis court and certain other improvements. Mr King was not aware of any potential drainage problems. The absence of an easement over the Carr-Gregg property was not brought to his intention by his solicitor. He wished to develop the property by demolishing the existing house, rebuilding it to a different plan and adding a swimming pool. The tennis court was to be improved but the natural grass surface retained. The evidence satisfies me that this intended building program would not have increased the impervious surfaces of the block. If anything, they would have been slightly reduced.

18 Mr King submitted a development and building application to the Council. This attracted an objection from Mr Carr-Gregg, which was not immediately brought to Mr King’s attention. It appears that, although the letter of objection was dated 26 June 1999, Mr King was not aware of it until mid September. The objection resulted in further correspondence and in meetings between Mr King and Mr Carr-Gregg and their respective representatives, the details of which need not be set out. Although Mr Carr-Gregg made various suggestions to the plaintiff as to how he might cope with his property’s drainage problem, he remained adamant that he would not grant any easement in respect of the existing pipe. He primarily advocated the use by the plaintiff of an electrically powered pump system which, supposedly, would remove surface water from the plaintiff’s property in a northerly direction to an outlet in Edward Street, whence it would flow into the Council’s street drainage system.

19 No evidence has been called from Council officers but a file of documents has been tendered which includes correspondence from the defendant to the Council, correspondence from the plaintiff and those acting on his behalf to Mr Carr-Gregg and to the Council, reports to the Council by its appropriate officers, together with notations made by such officers on the Council’s files and the like. It is unnecessary to set out individual items. The file clearly indicates the nature of the efforts that have been made to overcome a problem, which has resulted from the initial failure, twenty-five years ago, to complete the subdivisional requirements by the registration of the already constructed and operating drainage easement, under the provisions of the Real Property Act 1900.

20 It may be noted, at this stage, that Council requirements in relation to drainage associated with private subdivisions, have, to some extent, altered since 1977. An important alteration has been the requirement for the construction, in association with drainage pipes, of on-site detention pits (OSD’s). As the evidence explains, these pits have the function of collecting water accumulating after heavy rain and detaining it in such a way as to reduce the rate of flow of the water, so detained, into the property’s drainage system. This allows the water to be disposed of in a way that prevents, or significantly diminishes, any problem of flooding, through the drainage system becoming overloaded in heavy rainstorms. The provision of such an OSD was to be a requirement imposed upon Mr King as part of the approval of his development and building plans, irrespective of any other questions relating to the drainage of his block. Such an OSD has been constructed in circumstances to which I will make reference later. I am satisfied that its presence has had a significantly beneficial effect upon the efficiency of the drainage of the plaintiff’s property through the existing pipe through the Carr-Gregg property. Indeed, the evidence establishes, to my satisfaction, that the collection and disposal of surface rainwater coming to the King property is now more effectively controlled than before it was purchased and redeveloped by him.

21 It is necessary, now, to refer briefly to the course of events leading to this present Application.

22 As it had been made known to the Council, quite definitely, by Mr Carr-Gregg that he would not countenance the granting of an easement over the existing pipe, the relevant Council officers considered alternative approaches which could allow the development, which was otherwise acceptable, to proceed. Also, because of delays resulting from this question, the development consent was about to lapse. Internal memoranda of the Council, early in the year 2000, indicate that a deed granting “permissive use” of the pipe by Mr Carr-Gregg would be “almost as good as an easement and can be accepted as such for the purpose of allowing development on No. 3A to proceed.” The note proceeded, “If in the future some dispute does arise 588K of the Conveyancing Act could be used to formalise an easement.” By 2 May 2000 it appears that the relevant Council officers recommended that Mr King be granted “a deferred commencement consent” on the basis of his obtaining such a deed.

23 These deliberations resulted in the Environment and Planning Committee making a recommendation to the Council at its meeting of 9 May 2000 that Mr King’s development application be given a “deferred commencement approval” subject, inter alia, to the condition that “a deed of agreement over existing drainage pipes is to be obtained and submitted to Council”. If this condition was not complied with within a period of six months the approval would lapse. Although the minutes of the Council meeting are not before me, it appears, clearly enough, that the Council resolved that consent, subject to this condition, be granted.

24 It also appears that Mr Carr-Gregg was present at the Council meeting and addressed the Council in opposition to the development application. In a letter of 17 May, addressed to the relevant Council officers, he sought to record the comments he had made at the time. These included the following:-

“I confirm that:

I have offered the applicant the use of the pipe across my property gratis on a permissive basis subject to (i) the applicant agreeing to maintain and repair it by way of a binding legal agreement to be registered on his title, (ii) subject to receipt of an independent drainage report indicating what action is required to cure the drainage problem onto my property and my neighbours’ properties and to deal with the changes brought about by the development (does the existing pipe have capacity?) and (iii) subject to the applicant carrying out the recommended work in a manner which does not impact on my property;

despite what was said to Council on behalf of the applicant, I had not received the drainage report that the applicant finally provided me with in Council; I note for the record that the applicant conceded that it had not been provided to me;

given that I have generously offered the use of the pipe on a permissive basis (and at no cost), I reject absolutely any suggestion that the applicant can ‘rectify’ the matter by seeking a Section 88K easement.

I have made it clear to Mr King that in return for my agreement that Mr King may use this pipe on a permissive basis, he is also to waive any and all rights to an easement and to undertake not to seek one.

I do not want an easement over my property as I do not want ti give anyone rights of access, rights to excavate etc.

time but that I will not rule out the possibility that I may wish to use part of the property impacted by the pipe at some time in the future.

I simply do not think it is reasonable for me to be asked to rule out using my property for whatever I may want to do on it in the future. If that happens to inconvenience Mr King, so be it. It is not his property.

reasonable notice

rights

I will not accept a constraint over the use of my own property (other than an obligation to give reasonable notice – other than in an emergency).

free access to a pipe

25 It is clear that Mr Carr-Gregg has maintained this attitude throughout. At the commencement of these proceedings, indeed, an open offer was made on his behalf, somewhat varied in his evidence, to allow Mr King use of the existing pipe for a period of ten years. Mr Carr-Gregg’s position up to this hearing has always been that any agreement between him and Mr King must contain a condition prohibiting Mr King from, at any stage, seeking the imposition of an easement pursuant to s 88K of the Conveyancing Act. This attitude has been maintained in correspondence between Mr Carr-Gregg and Mr King’s solicitors and engineers acting on his behalf.

26 On 14 November 2000 Mr King wrote to Mr Sarich, the Council’s manager for Development Control, referring to the “deferred commencement approval” granted in May and indicating that he had not been able to comply with the condition of obtaining “a deed of agreement over existing drainage pipes” as he had been “unable to obtain an acceptable deed”. He requested “an extension to obtain the required deed”.

27 It had been and still is Mr Carr-Gregg’s contention that the drainage problems of the King property should be solved by the introduction of an appropriate pump-out system. It is equally clear that it was and is Council’s policy not to permit such systems, although, it appears that in some circumstances they have been allowed. There is scant reference to this in the evidence. It appears that a resident in Nelson Street has a permitted pump-out system, but the basis of such permission and the circumstances of its use do not appear. The evidence indicates that such systems have problems in that they may fail if there is an electricity black-out, which may, of course, occur in conditions of storm and rain.

28 On 24 November 2000 Mr King, having been unable to agree with Mr Carr-Gregg on the terms of a deed, sought from the Council a further extension of time to meet the requirements of the deferred commencement approval. He offered a compromise proposal “to provide a pump-out system as an interim measure” whilst undertaking to continue his efforts to obtain satisfactory agreement with the defendants. This application was supported by a letter from consultants, Glendinning Minto & Associates P/L, whom he had engaged to assist him. By their letter to the Council of the same date, the consultants pointed out that the problem originated with the Council’s failure to enforce compliance with the conditions of consent to the original subdivision and that this had “created unreasonable and undue hardship as well as escalating cost due to delay to the owners of 3A Edward Street, Gordon.” They sought permission to erect the building in accordance with the consent with approval, on a temporary basis, of a pump discharge system, the plans for which were, apparently, forwarded at the same time. An undertaking was proffered that Mr King would use his “best efforts to secure a drainage easement or deed with the proprietors of 14 Nelson Street, Gordon.” Urgent consideration of this compromise position was requested.

29 The consultants received a reply from Mr Sarich, on behalf of the Council, on 1 December 2000. This indicated that an extension of time for the deferred commencement would be allowed. Mr Sarich indicated that he accepted the pump-out proposal in principle, subject to “details being checked and approved”. However, he stated that Council would expect that Mr King would “make application to the Supreme Court pursuant to the Conveyancing Act to obtain the required easement.”

30 These present proceedings were commenced by Mr King prior to 11 December 2000, on which date the consultants advised Mr Sarich of their commencement. Mr Glendinning stated :

“My client have been forced to endure lengthy delays in moving ahead with this project and your assistance in confirming an operational consent without further delay is requested.”

31 Steps were taken within the Council to arrive at a solution with some further input from Mr Glendinning. The proposal for a temporary pump-out system was ultimately rejected on 22 December 2000 and the accompanying plans were not approved. Mr Juradowitch who, apparently, held a senior position in the Council staff, stated in a memo of that date:

“It is inappropriate to agree to a pump-out system as this could jeopardise chances of the applicant obtaining an easement through the Court.”

32 In the up-shot, development consent was given to Mr King subject, inter alia, to the following special condition:-

“That an easement of a minimum width of 0.8 metres shall be secured and registered in the Land Titles Office of New South Wales by the proprietor of the subject land over the existing stormwater drainage pipe parallel to the eastern boundary of premises 14 Nelson Street, Gordon over which the subject proprietor has benefit. The easement shall be registered on Title within 2 years from the date of the issue of the Construction Certificate.”

33 This condition was imposed in the context of the plaintiff having made the present application for an easement under s 88K of the Conveyancing Act.

34 It was also a condition of the consent that an appropriate on-site detention system be installed. I have already made reference to the installation of this system. It appears that its design and construction met with the Council’s approval.

35 It is appropriate at this stage to refer to the relevant provisions of s 88K of the Conveyancing Act. They are as follows:-

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

(2) Such an order may be made only if the Court is satisfied that:

(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and

Real Property Act 1900

(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.

(5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary:”

36 The section came into operation in February 1996. It has become the subject of a number of decisions in this Court, in which it has been sought to apply it in a variety of factual situations. The present case appears to be unique, in that a drainage easement is sought in respect of a Council approved drain, which has been in existence in the defendants’ land for twenty-five years. However, as I have been referred to a number of decisions, it is appropriate that I make brief reference to statements in earlier judgments, bearing upon the construction and application of the section. Beekman v Gray(2001) NSWSC 531 is an example. In that case Windeyer J said of the section:

“The requirements of that section are not in doubt. I has been held, and it is accepted, that the person seeking the order must establish four things; namely:

1. That the easement sought is reasonably necessary for the effective use or development of the plaintiffs’ land.

2. That the use of the dominant tenement in accordance with the easement will not be inconsistent with public interest.

3. That the grant of the easement can be adequately compensated for; and

4. That all reasonable attempts have been made by the plaintiffs to obtain the easement but those attempts have been unsuccessful.”

37 The second requirement, quite clearly, is made out in the present case. The easement sought is in relation to the use of the subject drain as part of a Council approved drainage system which has been in operation, as already indicated, for twenty-five years. It has not been contended that its continued use would be against the public interest.

38 Also, having regard to Mr Carr-Gregg’s adamant refusal to countenance the grant of an easement in the various meetings that have been held with him and in correspondence between the parties and their representatives, I am quite satisfied that the plaintiff has made, relevantly, all reasonable attempts to obtain the easement but has been unsuccessful.

39 The main dispute in the case has been whether the easement sought is “reasonably necessary” for the effective use or development of the King property. This question necessarily falls for determination against the background that the King property is required to receive drainage water from both No. 9 Edward Street and No. 17 Rosedale Road, as a result of the easements granted pursuant to the 1977 Council approved subdivision. The terms of those easements are not before me. However, having regard to the 1977 subdivision drainage plan, I am prepared to assume that the King property was required to receive the drainage water from the other properties, by virtue of that water being piped from those properties onto the King property in such a way as to connect with the stormwater drainage pit in its south-west corner, to which reference has already been made, and from which the water collected from the three properties flowed into the pipe in question.

40 Although some rather inconclusive discussion has taken place in the course of the hearing, as to whether the case is concerned only with an easement for the disposal through the pipe of surface water originating solely upon the King property, I am satisfied, in the absence of any significant argument to the contrary, to approach the resolution of the dispute on the basis that what is, in effect, sought is an easement permitting the passage of the waters collected from the three properties and directed, in accordance with the 1977 drainage plan, into and through the subject pipe.

41 Is an easement permitting the disposal of these drainage waters from the King property through the pipe on the Carr-Gregg property “reasonably necessary” within the meaning of the section? These words have been the subject of consideration in earlier cases. I find it sufficient to refer, with respect, to what Young J stated in Hanny v Lewis(1998) 9 BPR 16,205 at 16,209. His Honour said:-

Tregoyd Gardens Pty LTd v Jervis

117 York Street Pty Ltd v Proprietors of Strata Plan No 16123

with

without

It is noted that what is reasonably necessary is use or development of the land itself, not the enjoyment of the land by any of the persons who, for the time being, are the proprietors.”

42 His Honour also said, at the same page:

“As a general approach to applications under this section the court must bear in mind that property rights are valuable rights and the court should not lightly interfere with the property rights of the defendants.”

43 The defendants’ main assertion is that the sought for easement is not reasonably necessary because the installation of an electrical pump-out system by Mr King would cope with the drainage problems of his property, without there being any need for the drainage easement in respect of the subject pipe. The existence of this allegedly viable alternative, it is said, removes any necessity for the easement.

44 The evidence in relation to such a pump-out system is far from clear. Reliance is placed upon Mr Juradowitch’s notation on the file, which is set out above, it being submitted by the defendants that, if the easement be refused, then the Council will accept the pump-out proposal, which it earlier failed to approve. I am quite unpersuaded by this argument. The evidence makes it plain that the pump-out proposal was put to Council on behalf of Mr King, as a fairly desperate measure to obtain approval for his development, in circumstances where it had been considerably delayed through his inability to obtain the required deed. Even in this situation the Council was not prepared to approve the pump-out system. Indeed, the evidence makes it plain that the use of such systems is against Council policy. I am not prepared to find that, should the current application be refused, the Council would accept the previous or any other proposal for a pump system. Indeed, the Council’s “Stormwater Management Manual” states quite unequivocally, in paragraph 2.4.2 that “Council will not approve the use of pump systems for site drainage.”

45 Notwithstanding this, it was argued on behalf of the defendants that a pump-out system would be “substantially preferable” to an easement over the existing pipe. In this regard, use was sought to be made of portion of the formulation of Hodgson CJ in Eq, in the passage referred to above. It is to be noted that the passage, in relation to the formulation in terms of substantial preferability, contrasts situations of use or development with and without the sought for easement. This is not really the position here, where the contrast sought to be made is between alternative methods of site drainage.

46 However, considerable time and effort has been expended in this case on the part of the defendants in seeking to establish that an electrical pump-out system would be of such utility in meeting the drainage problems on the King property, that the granting of an appropriate easement over the existing pipeline through the Carr-Gregg property could not, in the circumstances, be substantially preferable to its not being granted. It is submitted, on the basis of evidence to which I shall refer, that the establishment of a pump-out system in the King property would obviate the use of the pipe and consequently any need for the grant of an easement over it.

47 While judicial translation of statutory words can, quite frequently, be of assistance in understanding and applying them in particular fact situations, such translations can never become a substitute for the words of the statute. Indeed, the using of such translations, which have proved helpful in the decision of other cases, may not always be of assistance in cases involving significantly different facts. It must be remembered that the basic question for decision in the present case is whether the granting of the sought for drainage easement is “reasonably necessary” for the use or development of the King property. The obtaining of this easement has, in fact, been made a condition of approval for its development. It remains so, even though the development has now taken place. In any event, in my view, a drainage easement over an adjacent property may be seen as being clearly related to the use of the property having the benefit of it.

48 Nevertheless, it is the major argument of the respondent that the alternative of a pump-out system renders unnecessary the grant of the drainage easement, insofar as the use of the existing pipe has not been shown to be substantially preferable to the installation of such a system. I have already indicated that I am not persuaded that the Council would, in any event, countenance the installation of such a system. However, the respondent’s argument proceeds on the basis that, should the Court refuse to grant this easement, then the Council would feel constrained to consider a pump-out system as an alternative solution to the drainage problem, created by the failure to obtain the relevant easement in 1977.

49 On that basis, it has been urged upon me that I should accept the evidence of Mr Rowbottom, an expert witness called on behalf of the defendants, as establishing that an electrical pump system was relevantly preferable to the use of the existing pipe, even when the pipe was used in conjunction with the OSD which has been constructed on the King property. The passage from Mr Rowbottom’s evidence which is particularly relied upon in this regard, reads as follows:

50 As I understand counsel’s submissions, this passage is relied upon as indicating that Mr Rowbottom expresses the opinion that a pump-out system as such would be a preferred alternative to the existing drainage system, utilising the OSD and the existing pipe. It appears that counsel founds this submission upon the second question and answer. In my view, however, it is plain that Mr Rowbottom, in answering the second question in the affirmative, had in mind the previous answer that he had given. This did not envisage the use of the pump system to dispose of the totality of the stormwater on the King property but only so much of it as accumulated as flood water during the relevant “hundred year event”, when the pipe was posited as having insufficient capacity to cope with the excessive demands upon it. This passage simply does not establish the proposition contended for.

51 The pump-out system received consideration in another aspect of the expert evidence, to which it is necessary to make short reference. At the Court’s direction Mr Rowbottom conferred with Mr Kenny, the expert witness for the plaintiff in order to ascertain whether the two hydrologists could arrive at points of agreement and points of difference with regard to their views on the drainage problems posed in this case. As a result of their discussions they produced a document, Exhibit “C”, which set out the matters upon which they had agreed. Each gave oral evidence in relation to this document, to the salient features of which I shall now refer.

52 The subject pipe is a 375mm diameter concrete pipe. Besides the pit, which constitutes its entrance on the King property, it has two other pits which are referred to as pits “C1” and “C2” which exist in the Carr-Gregg property. These pits have certain hydraulic functions. The experts agreed that the theoretical capacity of the pipe was 340 litres per second. It could not cope with a flow rate of water in excess of this amount. Were it required to do so, flooding would occur, either as a result of the waters not being accepted at the pit entrance in the King property and, consequently flooding back from the pit, or through the “surcharging” of the pits “C1” and “C2”, which would involve waters being forced out through the concrete lids of the pits. I should observe, that the evidence fails to indicate, with any degree of clarity, that such adverse events have ever, in fact, occurred.

53 In their theorising, the experts considered the capacity of the pipe to provide effective drainage in three particular weather situations. In the first place it was agreed that, in 1977, the Council accepted, as a design parameter, that approved drainage systems should be able to cope with hypothetical rainstorm conditions occurring on the basis of once in twenty years, this being described as a twenty year average recurrence interval (ARI). Since 1977, however, regard has been paid to storm conditions described as fifty year ARI and one hundred year ARI. So far as I could gather from the evidence, which, in some respects, I found difficult to elucidate, the best current engineering practice calls for design consistent with a hundred year ARI but Councils tend to be satisfied with designs that conform to fifty year ARI. As a result, Messrs. Rowbottom and Kenny provided, in Exhibit “C”, evidence relating to each of the latter periods. They did so on the basis that they were considering “two options…to drain OSD on 3A Edward Street”. These options were described in Exhibit “C” as “(a) Pump out to Edward Street (refer to 2.4.2 Council Policy). Feasible option but not as reliable as gravity system. (b) Drain through Carr-Gregg 375mm pipe (ie grant easement to drain). Pipe capacity limited to 340l/s.”

54 These two options were then considered in relation to the fifty year ARI and one hundred year ARI hypothetical storm situations, having regard to the existence of the current OSD on the King property and the theoretical capacity of the pipe at 340 litres/second. By means of computer modelling in relation to the assumed total catchment area for waters coming onto the King property, the experts arrived at hypothetical “flows exceeding pipe capacity”. In relation to the “pump-out option”, for the fifty year ARI storm, there would be an excess flow of 46 litres/second as against the drain option with an excess flow of 62 litres/second. In respect of the one hundred year ARI storm the excess flows would be 107 litres/second for the pump-out as against 123 litres/second for the drain.

55 As the experts considered that it was appropriate to have regard to the one hundred year ARI storm, it is necessary to consider what significance, so far as can be gathered from the evidence, should be attributed to these latter figures. In the first place, it is apparent that, in the posited situations, neither the pipe nor the pump are seen as capable of coping with the water coming to the King property. The difference in flow rate of 16 litres/second is equivalent to one and a half buckets of water per second and, I am satisfied by the evidence of Mr Kenny, has no real significance. In fact it represents the capacity of the pump to discharge water up to the Edward Street level. If, indeed, this is the pump’s capacity I have difficulty in understanding how it can be described as a “feasible option”. When I take into account Mr Rowbottom’s evidence, set out above and relied upon by the defendants, I find myself more than a little confused as to what the defendants’ case in relation to the pump-out system really is. Mr Rowbottom seems to regard it as a back-up to the pipe and dependent upon the continued use of the pipe in conjunction with the pump in order to cope with the one hundred year ARI storm. If this be the case, then the two options cannot be regarded as true alternatives.

56 Moreover, it is difficult to afford great weight to the theoretical flow figures in Exhibit “C”. They involve many imponderables and estimates. Mr Kenny described them as “ropey” and stated that they did not take into account improvements to the current OSD system and the King property drainage pit, which were suggested in Exhibit “C” and to which I will make subsequent reference.

57 In the result, I am completely unpersuaded that a “pump-out system” provides a viable alternative to the use of the existing pipe, such that the sought for easement should be found to be not “reasonably necessary”, or not “substantially preferable”.

58 A secondary argument was put forward by the defendants, to the effect that the easement was not reasonably necessary, because of an offer on the part of Mr Carr-Gregg to enter into a deed granting permission to Mr King to use the pipe for a period of ten years. This offer was made at the commencement of the hearing. It, apparently, took the place of an earlier offer for the same period of use but which had coupled with it a condition that Mr King would never seek an easement over the pipe. The offer carried with it the possibility, if not the probability, that at the end of that period Mr Carr-Gregg would withdraw permission for the use of the pipe. It, clearly enough, did not take into account what might occur, should Mr Carr-Gregg wish to sell his property within the period. This offer was, quite reasonably, rejected by Mr King as offering no satisfactory solution. It was argued that the Council had been prepared to accept such a deed for the purpose of granting the necessary approvals for the development of the King property. The evidence does not bear this out. In my view, the Council documents indicate the reverse.

59 When one also considers that the pipe has been in situ for twenty-five years and has, apparently, in conjunction with the pipes bringing drainage water from 9 Edward Street and 17 Rosedale Road, operated without significant malfunction or the occasioning of identifiable harm to the Carr-Gregg property, then, in my view, “reasonable necessity” for the granting of the easement is amply demonstrated. Although the imposing of an easement lies in the discretion of the Court, in my opinion, not to so regularize this important segment of this long established drainage system would be an absurdity.

60 It was also contended on behalf of the respondents that no easement should be granted because the situation was such that, within the meaning of s. 88K(2)(b), loss or disadvantage arising from its imposition could not be “adequately compensated for”. It was submitted that, in effect, it would not be possible to arrive at an appropriate figure for compensation as there were so many imponderables to be taken into account. There is no substance in this argument. Arriving at a figure for compensation presents, in my view, no more difficulties than were to be found in previous cases in which the Courts have awarded compensation in relation to the grant of an easement under the section. Indeed, both sides have provided expert and lay evidence to assist in the computation of compensation in the present case, which is made easier by the fact that the relevant pipe is already in existence.

61 I am of the view that the real question in this case relates to what, if any, terms, conditions, or undertakings should be imposed or required in relation to the imposition of the easement. It is in this area that the opinions of the experts provide real assistance. Having regard to changes in approach to the reasonable requirements of drainage since 1977, it is appropriate to consider what requirements might properly now be imposed, over and above what would have been seen as sufficient at the time when the easement was proposed but not obtained. In this regard, I am satisfied that compliance with a twenty year ARI standard should not be regarded as sufficient and that, in the circumstances, having regard to the agreed expert evidence, a one hundred year ARI standard is appropriate. The question is, what is reasonably necessary to give effect to this standard. It seems plain that the standard could be met if the present pipe were removed and a wider pipe, say 450mm, was substituted. However, this would be plainly absurd and neither side seeks such a solution, nor does it have any support in the expert evidence. Clearly, what has to be aimed at, is the reduction in the flow rate of waters coming on to the King property so that these waters can be received into and disposed of by the existing pipe, without occasioning significant flooding.

62 The evidence demonstrates that realisation on the part of local Councils that earlier stormwater drainage systems have become increasingly less able to cope with surface waters occasioned by increasing development of land has resulted in their introduction of OSD’s, as a condition of new development approvals. As I have already indicated the current OSD on the King property has Council approval and appears to function quite satisfactorily. The expert evidence, however, demonstrates that it is not adequate to cope with the one hundred year ARI hypothetical storm. Moreover, it was constructed in accordance with a flawed approach to the actual size of the relevant catchment area for the King property. It is capable of coping with the twenty year ARI situation and, probably, the fifty year ARI situation. However, for the one hundred year ARI position, the evidence satisfies me that it should be made more efficient.

63 In the first place the orifice plate which operates to control the outflow of water from the OSD into the drainage pipe system needs to be modified so that a maximum outflow of sixteen litres/second is ensured. This requires only a minor adjustment and should be attended to. The next requirement is that water be retained in the King property in a way which will enable it to be disbursed through the OSD at that rate of flow. The evidence clearly indicates that this can be achieved by supplementing the holding capacity of the OSD by using the area of the tennis court, in which the OSD is situated, as a further retaining device. This can be done by increasing the height of the existing brick wall round the tennis court by the addition of a further two courses of ordinary bricks. This will have the effect of retaining considerably more water than is currently retained by the OSD and which, having been so retained, will disburse through the OSD at the required rate of 16 litres/second. Moreover, the present OSD is connected to a 150mm pipe, part of the drainage system from No. 9 Edward Street through which the water is taken to the pit at the top of the subject pipe. I am satisfied, on the evidence, that this connection should be removed and, in its place, a fresh pipe laid which will take the water from the OSD directly to that pit. This, according to the expert evidence, will enhance the performance of the OSD. This work should also be done.

64 In addition, the evidence indicates that the operation of the exit pit on the King property could be enhanced, if alterations were made to it which would enable it to receive and deal with increased flows of drainage water. The experts agree that such alterations could be easily designed and executed, although no plans for them currently exist. It is obviously desirable that such plans be drawn up expeditiously and the work performed as soon as possible, no doubt in conjunction with the laying of the new pipe between the OSD and this pit. I am satisfied that this work should be done. I am also satisfied that, as the experts agree, a grate should be placed on the top of this pit to prevent the entry into it of materials which might cause blockages in the pipe.

65 Messrs Rowbottom and Kenny also suggest that additional work might advantageously be done in respect of the pipe in the pits “C1” and “C2” in Mr Carr-Gregg’s property. It is suggested that an investigation be conducted by means of a TV closed circuit device to ascertain whether there may be excessive turbulence in those pits and whether consequent alterations should be made. I gained the strong impression from the evidence that this work was regarded as desirable but by no means immediately essential. Indeed, there is no evidence in the case of any malfunction in these pits during the period that Mr Carr-Gregg has owned 14 Nelson Street property or previously. Mr King may, having regard to the experts’ opinions, decide to undertake and pay for this work. However, I am not persuaded by the evidence that I should require that it be done as a condition for the imposition of the easement. Mr Carr-Gregg must have been well aware of the existence of the pipe for many years and of the work that it performs. He has, of his own volition, executed landscaping work which has had the effect of obscuring the covers to these pits. I find it somewhat surprising that he should have done so, without first considering whether this work might lead to future problems. It must have been reasonably apparent to him, as a solicitor, that the absence of a registered easement over this long established drainage pipe was due to some past mistake or oversight, which, at some future time, would be sought to be rectified.

66 I am of the view that the performance of the work, which I have indicated is required, should be made the subject of undertakings to be given to the Court. An easement can then be granted in the ordinary statutory form without amendment or addition. I consider this course preferable to including these matters as terms of the easement itself. It follows that I reject the form of easement proposed by the defendants in their written submissions. I consider that the easement should be of the width of and follow the line of the “proposed” easement depicted in DP 3662.

67 I have given consideration to the question of compensation, notwithstanding Mr Carr-Gregg’s earlier insistence that he did not seek any payment. Both sides have called valuers. The main basis, in my opinion, on which compensation should be awarded in this case is for what is described as “blot on title”. The Carr-Gregg property has had on its title, previously, only a “proposed” easement. It will now have a registered easement. My task in arriving at compensation for this “blot” is made easier by the fact that the respondent’s valuer put a figure of $20,000 on it whilst the plaintiff’s valuer arrived at $25,000. In the circumstances I will award $23,000 in respect of this aspect of the claim for compensation.

68 This is not a case where significant and disruptive work is required to be performed upon the servient tenement in order to lay drainage pipes. Any future disturbance in the area of the easement, of a significant nature, will, in my view, be largely occasioned by the fact that Mr Carr-Gregg has chosen to cover over the openings to the pits “C1’ and “C2” and render them difficult of access. I consider that an award of $3,000 is sufficient to allow for any future disturbance or disruption.

69 As to compensation for the so called “hope” factor, some sketchy evidence has been given as to possible development of the Carr-Gregg property in the future in conjunction with the property of a neighbour. It is said that the existence of the easement might occasion problems in relation to any such development. I am not particularly impressed with this evidence but am prepared to allow a further $4,000 under this head.

70 Accordingly, I award compensation in the total sum of $30,000.

71 Section 88K(5) provides that the costs of the proceedings are payable by the applicant subject to any contrary order by the Court. The cases make it clear that, generally speaking, the plaintiff is ordered to pay the defendants’ costs of the application. I have considered whether I should vary this order in this case as, in some respects, I have found Mr Carr-Gregg’s attitude in relation to the granting of an easement in respect of this obviously important and long established drainage pipe, somewhat unreasonable. However, on balance, I am not persuaded that I should depart from the usual order. Accordingly, I order that the plaintiff pay the defendants’ costs of the application. However, I reject the application that these costs should be on an indemnity basis.

72 I direct that the parties bring in Short Minutes of Orders giving effect to this decision at 9.30am on Tuesday 28 May, 2002. .

**********************

Last Modified: 05/06/2002

Actions

Download as PDF Download as Word Document

Citations

King v Carr-Gregg [2002] NSWSC 379

Most Recent Citation

Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27

Cases Citing This Decision

13

Gordon v Lever (No 2) [2019] NSWCA 275

Bryant v Crompton [2024] NSWSC 238

Jeffrey v Adams [2023] NSWSC 1270

Cases Cited

2

Statutory Material Cited

2

Beekman v Gray [2001] NSWSC 531

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445

CITATION:	Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor [2002] NSWSC 379
CURRENT JURISDICTION:	EQUITY DIVISION
FILE NUMBER(S):	SC 3918/2000
HEARING DATE(S):	18/03/02 to 21/03/02, 15/04/02
JUDGMENT DATE:	2 May 2002
PARTIES :	Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor
JUDGMENT OF:	Foster AJ at 1-72

COUNSEL :	Mr I. Wales, SC - Plaintiff Mr J. Webster - Defendants
SOLICITORS:	Fox & Staniland - Plaintiff Teece, Hodgson & Ward - Defendants
CATCHWORDS:	REAL PROPERTY - Easements - s 88K of Conveyancing Act 1919 - whether an easement should be imposed.
LEGISLATION CITED:	Section 88K of Conveyancing Act 1919 Real Property Act 1900
CASES CITED:	Beekman v Gray (2001) NSWSC 531 Hanny v Lewis (1998) 9 BPR 16,205 at 16,209. Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BPR 15,917.
DECISION:	Refer paragraphs 62, 63 and 65.; Award compensation to the defendants in the sum of $30,000; Plaintiff to pay the defendants' costs of the application; Direct that the parties bring in Short Minutes of Orders giving effect to this decision.