Kingborough Council v Ng, Eddie Yeow Chow

[1998] TASSC 152

152/1998

PARTIES:  KINGBOROUGH COUNCIL
  v
  NG, Eddie Yeow Chow & Another

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1481/1998
DELIVERED:  9 December 1998
HEARING DATE/S:  3 December 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:  M E O'Farrell
             Defendants:  R M Hamilton
Solicitors:
             Plaintiff:  Dobson Mitchell & Allport
             Defendants:  Rae & Partners

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  152/1998
Number of pages:  4

Serial No 152/1998
File No 1481/1998

KINGBOROUGH COUNCIL v EDDIE YEOW CHOW NG & ANOTHER

REASONS FOR JUDGMENT  COX CJ

9 December 1998

The plaintiff seeks an interim injunction to restrain the defendants, their servants and agents from entering on Crown land leased by the plaintiff and known as the Esplanade, Bonnet Hill, Taroona ("the Esplanade") for any purpose which is not connected with the public use of that land as a recreation reserve.

The Esplanade, which contains some 78 acres, is adjacent to the west bank of the River Derwent and runs from the Channel Highway down Taronga Road to the foreshore whence it runs south along the River Derwent to Browns River.  It was leased by the Crown to the plaintiff for 99 years by a lease dated 3 January 1945.  Prior to 1944, the Esplanade had been in private ownership and had been surveyed as a separate lot in 1906 when a plan of subdivision had been prepared and the defendants' land (Lot 24) consisting of 21 acres 24 perches had been identified.  This was one of about 13 lots which had no access to any road.  The plan has endorsed upon the lot shown as Esplanade alongside those 13 lots the words "proposed road".  The Esplanade was transferred to the Crown on 5 July 1944 and on 9 October 1944 by Proclamation under the Crown Lands Act 1935, s7, it was excepted from sale and reserved to the King for the purposes of "Camping and Recreation ground".  By the lease it was demised to the plaintiff with a covenant that the plaintiff would not use or suffer it to be used for any purpose other than that of camping and recreation ground.

For some years the defendants have been seeking from the Crown, or from the plaintiff council, approval to gain access to their land by constructing a road along that part of the Esplanade endorsed "proposed road" on the plan already referred to from the end of Taronga Road to the northern end of their property.  They have sought to acquire a right of access through other privately owned land, but consider the price asked for it unreasonable.  The Crown Solicitor, in 1944, wrote to the Director of Public Works in respect of the acquisition of the Esplanade a memorandum which included the following statement:

"As you probably know the land to the North West of the land being acquired was cut up and sold to various purchasers several years ago in about 30 lots.

As the blocks sold were described by reference to a Sale Plan filed in the Lands Titles Office which showed as a feature the land now being acquired marked as 'Esplanade' and portion as 'proposed road' the purchasers of blocks may claim implied rights of way over the land now being acquired.

On this account it is desirable that any future action which the Crown might take after acquisition of the land to construct a road or alter the surface for recreation or other purposes does not interfere with the implied rights which any adjoining owner might have over the land."

The plaintiff does not concede the defendants' claims to any implied right of way or easement of necessity and resists them.  They have now given notice to the plaintiff that they intend imminently to transport a bulldozer over the Esplanade to their property for the purposes of clearing it.  The plaintiff's officer, Mr Stewart, deposes:

"21Annexed and marked 'PI' is a copy of a location plan of the area showing what I believe to be the proposed route to the site from Taronga Road.  Gaining access to Lot 24 over the Crown Reserve will have a major impact on the landscape.  It will involve taking a bulldozer from Taronga Road to Lot 24, the shortest distance to which is approximately 744 metres.  Over the first 232 metres from Taronga Road there are sites ('the Probation Station Sites') of historic interest, which were part of the Brown's River Probation Station.  They are the site of the underground cells as well a convict road.  I am informed by Peter Tucker of the Heritage Council that while some of the Probation Station Sites are located in the road reserve not all of the sites in the area have been identified as yet.  Mr Tucker has provided me with a copy of a letter from the Heritage Council to Rae & Partners dated I December 1998.  A copy of which is annexed and marked 'P2'.  Parts of the Alum Cliffs Walk fall within the Crown Reserve.  In my opinion transporting a bulldozer through this area will result in damage to trees, scrub and vegetation generally.  There isn't a formed road from Taronga Road to Lot 24.  A drainage channel was constructed approximately 3 years ago by Council to discharge storm water from Taronga Road.  The drainage channel runs within the road reserve on the northern side of properties located in Taronga Road.  In my opinion damage is likely to occur to the channel if heavy machinery is transported over it.  I inspected the area on Tuesday I December 1998.  Some areas of the Crown Reserve are steep.  In my opinion in order for the defendants to gain access to Lot 24 with a bulldozer they will have to reduce the cross fall of some areas first.  This will require works and may cause erosion and sedimentation problems.  Further in my opinion the defendant will have to deviate from the alignment of the Alum Cliffs Walk in a general southerly direction up the hill to gain access to Lot 24.  That will require the defendants to disturb thick bushland for some distance.

22The section of road past the 232 metre section referred to in the previous paragraph is in the Open Space Zone within the meaning of the Kingborough Planning Scheme 1998.  …  [He then sets out a number of considerations in respect of the Landscape Protection provisions of the Scheme.]

23The plaintiff has not received any information from the defendants which allow the assessment of any of the issues which it needs to identify under the Landscape Protection provisions of the Scheme.

241 am informed by Mrs Jayne Smyth of the Department of Environment and Land Management and I believe that the use of the Crown reserve for vehicular access is contrary to the State Coastal Policy 1996.  The grounds for my belief are that Mrs Smyth is an officer at the Department of Environment and Land Management who administers the State Coastal Policy.

…

27The Council is concerned that if the defendants are not restrained from transporting a bulldozer to the site, damage will be occasioned to the Crown Reserve.

28The plaintiff considers that, unless restrained, the defendants will carry out their actions to gain access to Lot 24 over the Crown Reserve for the purposes of transporting their bulldozer to clear Lot 24.

29At present, the defendants have not applied for, nor obtained approval to subdivide Lot 24, nor have they sought planning approval for any other use on lot 24.  Accordingly, the plaintiff knows of no reason why it is necessary for the defendants to clear their land at this stage, or any other reason why the defendants might be prejudiced by an order restraining them from transporting a bulldozer over the Crown reserve."

Among the correspondence put before me was a letter from the Department of Environment and Land Management dated 26 June 1998 to the following effect:

"I refer to correspondence regarding the above matter and advise that an opinion has now been received from Solicitor-General.

Given that opinion the Department is prepared to concede that there is an implied easement of necessity over the Crown land in favour of your clients' freehold lot.  However the Solicitor-General's advice is that the Crown, by virtue of the fact that the land is held under lease by the Kingborough Council, does not have the power to entertain your clients' application for licence.

Accordingly notwithstanding the fact that your clients have already approached Council regarding this option, should you wish to pursue the matter you will need to resurrect the application with Council as the lessee.  However, in suggesting this course of action, I must add that the Department is not in favour of the access over the Crown land and would prefer to see settlement over use of the alternative."

In order to justify the granting of the relief sought, two issues arise, as the Full High Court explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1967 - 1968) 118 CLR 618 at 622 - 623:

"The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks.

…

The second inquiry … is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

In relation to the second inquiry, Zeeman J said in Markham v Commonwealth Bank of Australia 51/1991 it:

"… may be divided into two distinct requirements:

(a)that the applicant will suffer irreparable injury for which damages will not provide adequate compensation unless the injunction is granted; and

(b)that the balance of convenience favours the granting of an injunction."

I entertain doubt as to the probability that at the trial of the action the plaintiff would obtain the relief it seeks. Taking the evidence as it stands, although the plaintiff holds the Esplanade as tenant of the Crown for the purpose of camping and recreation ground since the lease was granted in 1944, there is strong evidence suggesting the existence of an easement which would give the defendants a right of access over that part of it which runs from the end of Taronga Road (which is itself a portion of the demised land subject to reservation for the above purpose) along the eastern extremity of those lots between the defendants' land and that road. In Butt's Land Law, 3rd ed, 422 at par 1638, the learned author says:

"On the conveyance (or lease) of land described by words or diagram as abutting or adjoining a road or lane, or a proposed road or lane, owned by the vendor (lessor), there is implied in favour of the land conveyed (leased) a right of way over the road or lane.  More accurately, the vendor (lessor) and the vendor's (lessor's) successors in title are estopped from denying the grant of a right of way.  The principle applies also to Torrens title land, provided that the road or lane itself is under Torrens title."

He cites Roberts v Karr (1809) 1 Taunt 495; Harding v Wilson (1823) 2 B & C 96; Espley v Wilkes (1872) LR 7 Ex 298; Dabbs v Seaman (1925) 36 CLR 538 and Gale on Easements, 5th ed, 96 - 98.  Admittedly in the above cases the width of the "roads" or "paths" was expressed in words or shown on plans from which the width might be deduced, whereas the original survey plan and that on the defendants' Certificate of Title does not have that detail.  But as Taronga Road itself is endorsed on the original plan as being "road 1 chain wide" and the proposed road would appear intended to extend to it, it is at least arguable that the proposed road was intended to be of the same width.

Even without this documentary material, the defendants have, in my view, a case for the implied grant of a right of way by reason of necessity.  Their lot and the other 12 lots now belonging to the successors in title of the original grantees for which no access was expressly provided when the land was subdivided in 1906 could all only be reached by access through the servient land retained by the subdivider and described on the original plan as Esplanade.  The author of Gale on Easements, 15th ed, 131 says:

"A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access.  In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part."

In my opinion, the defendants' right to access over the strip of land 1 chain wide extending from Taronga Road along the western extremities of the Esplanade is sufficiently arguable to prevent it being said that the plaintiff on trial will probably be held entitled to relief.  There is a genuine issue to be tried and at this stage I do not think that the ultimate outcome can be predicted with any degree of probability.

In any event, I am not satisfied that the defendants' intended actions will cause the plaintiff irreparable injury for which compensation by way of damages will be inadequate.  They have not announced any intention of immediately constructing a road and indeed would be foolhardy to incur the expense of doing so before establishing documentary title to the easement they claim.  All they threaten to do is to transport a bulldozer along the general line of the proposed road so as to clear their own lot.  It has not been established to my satisfaction that the process of doing so will cause irreparable damage to the plaintiff or will endanger the heritage sites of which the defendants are aware.  The application is dismissed.