Kladis v Lowe

[2016] NSWSC 1834

Supreme Court

New South Wales

Medium Neutral Citation:	Kladis v Lowe [2016] NSWSC 1834
Hearing dates:	14 November 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   On or before 20 January 2017 the plaintiff file and serve the proposed orders he contends are necessary to give effect to this judgment; (2)   On or before 3 February 2017 the defendants file and serve any proposed orders they contend are necessary to give effect to this judgment; (3)   The proceedings be listed on 10 February 2017 at 9.30am; and (4)   There be liberty to apply on three days notice.
Catchwords:	EASEMENTS – plaintiff seeks order compelling defendants to approve development application to construct driveway – plaintiff’s property has no vehicle access – plaintiff’s property includes strip of land to street – plaintiff’s property has right of carriageway over abutting strip owned by first defendant – land steep – proposed to construct elevated driveway – whether right of carriageway for vehicles capable of enjoyment – whether plaintiff can require second defendant to agree to permanent ingress to small portion of its land – whether plaintiff’s proposed use unreasonably interferes with defendants’ rights – whether conditional relief can be granted – plaintiff succeeds at least against first defendant – plaintiff to formulate proposed orders
Legislation Cited:	Conveyancing Act 1919 (NSW) Environmental and Planning Assessment Regulations 2000 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Butler v Muddle (1995) BPR 97,532 Gallagher v Rainbow (1993) 179 CLR 624 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 Jelbert v Davis [1968] 1 WLR 589 Kirkjian v Towers (Supreme Court (NSW), 6 July 1987, unreported) Saggers v Brown (1981) 2 BPR 9329 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 Zenere v Leate (1980) BPR 97,029
Category:	Principal judgment
Parties:	Andrew Kladis (Plaintiff) Karen Lowe (First Defendant) Owners Corporation in Strata Plan 30459 (Second Defendant)
Representation:	Counsel: DE Grieve QC; Dr J Smith (Plaintiff) TGR Parker SC (Defendants)   Solicitors: Hones Lawyers (Plaintiff) Mills Oakley Lawyers (Defendants)
File Number(s):	2014/172551

Judgment

1. HIS HONOUR: The plaintiff, Andrew Kladis, is the proprietor of a property known as 26 Musgrave Street, Mosman ("No 26"). The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street (“No 28”). The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street (“No 30”).

2. The plaintiff seeks an order that the first and second defendants execute an approval of a development application (“DA”) that the plaintiff wishes to lodge to construct a driveway over a portion of its land that leads to Musgrave Street, an adjacent strip of land that forms part of No 28 and a small portion of land that forms part of No 30. Failing that occurring, they seek an order that a Registrar of this Court execute the approval on their behalf. These orders are sought because clause 49(1) of the Environmental and Planning Assessment Regulations 2000 (NSW) enables a development application to be made “by the owner of the land to which the development application relates”, or “by any other person, with the consent in writing of the owner of that land”. The first and second defendants are the owners of a portion of the land to which the development application relates.

3. For the reasons that follow I will grant the plaintiff the relief it seeks, at least against the first defendant, on certain conditions. As I will explain, this relief does not mean that either defendant cannot object to the relevant Council granting approval to the DA.

The Properties

4. Musgrave Street Mosman travels in a north‑south direction on the ridge of a peninsula, the southern tip of which is Curraghbeena Point on Sydney Harbour. McLeod Street splits off Musgrave Street in a westerly direction about a third of the way down the peninsula. At its western end McLeod Street curls such that a small portion of it travels north‑south.

5. The property and interests therein the subject of these proceedings are best explained by reference to the following diagram: [1]

1. Strip 1 is strip “A” and strip 2 is strip “B” referred to in the diagram attached to the plaintiff’s submissions. Strip A and strip E in this diagram correspond to strips “A” and “E” in the defendant’s diagram. Strip 1 is strip “F” and “C” in the defendant’s diagram. Strip 2 is strip “D” in the defendant’s diagram.

6. The western boundary of No 26 is the shoreline of Mosman Bay. It faces Cremorne Point. Musgrave Street is three houses to the east on a steep incline. McLeod Street is to the north‑east of No 26. No 26 does not have access to McLeod Street and, at present, does not have vehicular access to Musgrave Street.

7. No 28 is immediately to the east of No 26. It has vehicular and pedestrian access to McLeod Street to the north (and is also known by a McLeod Street address). No 30 is located to the immediate east of No 28. Via a driveway that I will describe, it has vehicular and pedestrian access to Musgrave Street.

8. Two other properties are of significance. The first is 34 Musgrave Street (“No 34”) which is to the immediate east of No 30. No 34 fronts Musgrave Street. The second is 24 Musgrave Street ("No 24"). It is to the immediate south of the properties the subject of these proceedings.

9. Forming part of No 26 is a strip of land 1.549m in width which runs from the south‑eastern corner of the rectangular block up to Musgrave Street (referred to as “strip 1” in the above diagram). The northern boundary of No 24 abuts strip 1.

10. Forming part of No 28 is a strip of land which is also of 1.549m width, running from its south‑eastern corner along the southern boundary to Musgrave Street (referred to as "strip 2" in the diagram). Strip 2 abuts strip 1 immediately to its north.

11. By a number of transfers effected between 1963 and 1964, a series of “rights of carriageways” and “rights of way” were created over these blocks of land as follows.

12. First, No 26 acquired a right of “Carriage Way” over that part of No 28 described as strip 2 in the above diagram. [2] It is by utilising a combination of that right of carriage way and its ownership of strip 1 that the plaintiff now seeks to build the driveway the subject of its DA. Number 26 also acquired a right of “Carriage Way” over a strip of land 5’1” in width immediately within the southern boundary of No 34, depicted as strip E on the attached diagram. [3] Number 26 did not, however, acquire a right of way or “Carriage Way” over that part of No 30 depicted as strip A on the above diagram

    2. Transfer J47795 dated 6 October 1963, CB 255 at 256(c)

    3. Transfer J533820, CB 261 to 262

13. Second, No 28 acquired a right of “Carriage Way” over strip 1, ie part of No 26. [4] In addition, No 28 acquired a right of “Carriage Way” over a strip of land 5’1” in width immediately within the southern boundaries of No 30 and No 34, being strips “A” and “E” on the above diagram. [5]

    4. Transfer J47795 dated 6 October 1963, CB 255 at 256(b)

    5. Transfer J47795 dated 6 October 1963, CB 255 at 256(a) and (d)

14. Third, No 30 acquired a right of “Carriage Way” over that part of No 26 depicted as strip 1 and a right of “Carriage Way” over that part of No 28 depicted as strip 2. [6]

    6. Transfer J47795, CB 255-260; J533820, CB 261–262

15. Fourth, No 24 acquired a right of “Carriage Way” over strip 2 on No 28 [7] and a “Right of Way” over strip 1 on No 26. [8] No 24 also acquired a right of “Carriage Way” over Strip E on No 34. [9] Like No 26, No 24 did not acquire any rights over strip A on No 30.

    7. Transfer J47795, CB 255 at 256(c)

    8. Transfer J655385, CB 263

    9. Transfer J533820, CB 261

16. As noted in the Defendant’s submissions, [10] the relevant properties do not have uniform rights. The most obvious difference is that No 24 does not have any rights over strip A on No 30 whereas No 28 has a right of “Carriage Way” over that land. Equally, No 26 does not have any rights over strip A. The plaintiff’s written submissions noted that at one point a notation to the title to No 30 suggested that No 26 had a right of way over strip A but that was removed by the Registrar General. [11] In the end result, the plaintiff did not contend that it had any such rights over No 30.

    10. Defendant’s Outline of Submissions at [4]

    11. Plaintiff’s Submissions in Outline at [2.2]

17. Section 181A(1) of the Conveyancing Act 1919 (NSW) relevantly provides that:

“In an instrument executed or made after 1 January 1931 (the commencement of the Conveyancing (Amendment) Act 1930) and purporting to create a right-of-way the [expression] "right of carriage way" ... [has] the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 1 or Part 2 of Schedule 8.”

18. Schedule 8 relevantly provides as follows:

“Part 1 - Right of carriage way

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.” (emphasis added)

The Proposed Driveway

19. On the morning of the hearing, I undertook a view of the area the subject of the dispute. I did so in the presence of the legal representatives of the parties and only communicated with Counsel. For the Court’s benefit the parties had marked out the route and dimensions of the proposed driveway. Although it is open to the Court draw inferences based on what was observed during the view (Evidence Act 1995 (NSW); s 54) I have only utilised the view for the more limited purposes of confirming, explaining and clarifying what is otherwise demonstrated by the evidence.

20. The dispute in this case arises out of the topology of the strips of land between Musgrave Street and the plaintiff’s property.

21. It is common ground that there exists, and has existed since at least sometime after the creation of the easements noted above, a pebblecrete driveway running westerly from Musgrave Street over a distance of approximately 30 metres. [12] The western edge of this driveway is marked at point “X” on the above diagram. The plaintiff’s written submissions estimated that the driveway was built over about two thirds of strips 1 and 2, [13] which appears to be correct. This driveway provides No 30 and No 34 with pedestrian and vehicular access to Musgrave Street. As previously noted, No 28 has vehicular access to McLeod Street and No 26 has no vehicular access.

    12. T 14/11/16 at p 9

    13. Plaintiff’s Submissions in Outline at [1.9]

22. From point X to the eastern edge of No 26, the land drops sharply by 15.725m. Immediately to the west of point X are a set of steps made of concrete and the rock face. The steps descend for approximately 8 metres. The stairs wind down the incline and in doing so veer off strips 1 and 2 and onto strip A. [14] The bottom part of the stairs are made up of brick and the path beyond is paved. [15] At the bottom of the stairs the house on No 28 is almost adjacent in a northward direction. The northern wall of No 24 abuts the stairs and the path. [16] It is self‑evident that a vehicle cannot be driven past point X and that would be so even if a driveway was built immediately on top of the existing land. It would be too steep.

    14. CB 16; T 14/11/16 at p 13 and mark ups on Ex 1

    15. CB 680

    16. CB 680

23. Mr Jeffrey Conen is the proprietor of one of the lots in the strata plan that owns No 30 and the proprietor of all of the lots in the strata plan that own No 34. He has used the easement over strip 1 for nearly 70 years. He gave uncontested evidence that in 1963 the pebblecrete driveway was like a “bush path” that had been cut so that a vehicle could drive “up and down … with ease” [17] to the “start of the cliff” where the brick wall is. [18] He said that the concrete steps and the handrail down the slope were present in 1963 having been built sometime around 1956 or 57. [19] Around the same time the wall between strip 1 and No 24 was built. [20] He also said that the brick steps at the bottom of the stair well were built before 1963 at or around the same time as the house on No 26 was built. [21]

    17. T 14/11/16 at p 9.48

    18. T 14/11/16 at p 10.10

    19. T 14/11/16 at p 10.32

    20. T 14/11/16 at p 11.6

    21. T 14/11/6 at p 12

24. There have been a number of iterations of the DA. The relevant form of DA is identified in prayer 1 of the Second Further Amended Summons as being that served upon the defendant’s solicitors on 23 July 2015. [22] The statement of environmental effects that forms part of the DA describes the proposal as “involv[ing] the construction of a new ramped driveway on the existing right of carriageway which will extend approximately 39m in length and 15.5m in height, to allow vehicular access from the existing common driveway to an open parking area within main lot of No. 26 Musgrave St.” [23]

    22. Being CB 7 to 242

    23. CB 43.1

25. The drawings that accompany the DA suggest that the work will involve an extension of the existing driveway westwards by approximately 3m. [24] Part of this extension involves a 2m triangular extension northward onto strip A on No 30. [25] From the western edge of this extension a ramped concrete driveway is to be built down to the edge of No 26. The driveway is to be elevated from the ground of strip 1 and strip 2 and supported by at least four concrete supports. The angle of elevation of the driveway appears to be around 15 degrees. The highest support will be 4.981m above the surface on the southern side [26] and 4.255m above the surface on the northern side. [27] Some excavation work will be undertaken at the western edge of the ramp. On the edge of the driveway will be a 1100mm high reinforced concrete balustrade. [28]

    24. CB 17 and 23

    25. CB 23

    26. CB 24

    27. CB 25

    28. CB 25

26. Subject to [30], at present the proposal does not involve either of No 28 or No 24 having vehicular or pedestrian access to the elevated driveway (although they have vehicular access to the street by other means).

27. It seems inevitable that the construction of the ramp will have a substantial effect on the amenity of No 28 in that an elevated ramp will be in close proximity to the back portion of the house on that property. However, as explained below (at [37]), it is not part of this Court’s function to determine such matters. Instead, it is concerned with the driveway’s effect on property rights, especially the exercise of rights over strips 1, 2 and A.

28. The effect of constructing the driveway will be to obliterate the top part of the stairs and create a cave under the ramp over the land on the western half of strip 1 and strip 2. In that event, the owners of No 28 will be unable to walk on the elevated ramp unless they climb the balustrade. Equally, they will not be able to walk on the area of strip 1 and strip 2 under the ramp up the stairs to Musgrave Street or down to the western end of their property but will instead have to divert and use their easement over No 30 to ascend to the upper part of strip 1 and strip 2.

29. Similarly, the owners and occupiers of No 24 will be unable to walk on the elevated ramp unless they climb the balustrade. Further, they will not be able to access the area of strip 1 and strip 2 under the ramp at all even though they have an easement over both. If they did find themselves in that area they would be unable to exit without No 30’s consent as, unlike No 28, No 24 does not have an easement over strip A on No 30.

30. To address a number of these concerns the plaintiff swore an affidavit stating that, if either of the proprietors of No 24 or No 28 sought vehicular or pedestrian access over the concrete driveway, he would be prepared to build gates as drawn by his architect that would facilitate this. He also stated that he would be prepared to construct a stairway under the ramp and in part over the existing right of way over No 30 in favour of No 28 so as to provide the first defendant and the proprietors of No 24 additional pedestrian access to the street. [29]

    29. CB 612

31. The plaintiff’s architect, Mr Vourtzoumis, swore an affidavit in which he annexed plans giving effect to the plaintiff’s statement. [30] The plans provide for each of No 28 and No 24 to have a turntable to enable their vehicles to enter and leave in a forward direction. [31] They also include an access door from each of No 28 and No 24 onto the ramp for pedestrian access. Mr Vourtzoumis was asked whether these modifications were “architecturally feasible” and stated: [32]

“In my opinion it would be architecturally feasible to do so although:

(a)   In the case of 24, it would only be possible to park a very small vehicle (e.g. a Smart Car or motorcycle) in the space available and may require modification of building structures on that site;

(b)   In order to enter and leave in a forward direction turntables would be necessary; and

(c)   As to the safety of such access I defer to experts in traffic matters (such as Mr Lyle Marshall in these proceedings).”

30. CB 603

31. CB 607

32. CB 604

32. Although it is not clear, the qualification that Mr Marshall’s advice was required relates to so much of the plans that were concerned with vehicular access to the ramp.

Easements

33. Six principles concerning easements are of relevance.

34. First, in the absence of a contrary indication, the grant of an easement is construed against the grantor (Gallagher v Rainbow (1993) 179 CLR 624 at 640 per McHugh J).

35. Second, the owner of a dominant tenement is entitled to construct improvements on the servient tenement where it is necessary or convenient for the exercise of the rights conferred by the easement (SertariPty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; “Sertari” at [9] per Handley AJA with whom Tobias and McColl JJA agreed; Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343; “Hemmes” at 348 to 350 per Kirby P and 354 to 355 per Priestley JA). This right is an “incident” of the easement and as such in a given case “[q]uestions [may] arise as to whether an asserted interest is for the stated purpose or not, is reasonable or not, or involves conduct which is acceptable or excessive” (Hemmes at 350G per Kirby P).

36. Third, another incident of the grant of an easement is that the owner of the servient tenement can be ordered to consent to the lodgement of a development application for the construction of such improvements (Sertari at [9]; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 (“117 York Street”) at 521 to 522 per Hodgson CJ in Eq). However, the making of such an order only removes an impediment to the making of the DA. The owner remains free to object to the DA and exercise such other rights as are afforded to them under the planning laws (117 York Street at 523 per Hodgson CJ in Eq). In considering whether to make the order the Court is not required to consider the effect on amenity or general town planning considerations (Sertari at [23]) although it must consider the effect on the use and enjoyment of competing rights (see [37] and [38]).

37. Fourth, as suggested by the observation of Kirby P in Hemmes, the exercise of the rights of the owner of the dominant tenement must not involve an unreasonable interference with the rights and enjoyment thereof of the owner of the servient tenement (Zenere v Leate (1980) BPR 97,029 at 6 per McLelland J). The conferral of a right of way is not the conferral of right of ownership (Saggers v Brown (1981) 2 BPR 9329 at 9331 per Rath J). The manner in which the owner of the dominant tenement choses to design their building is not the dominant consideration in determining what is reasonable (Butler v Muddle (1995) BPR 97,532 at 13,986 per Young J).

33. Fifth, a related proposition is that the grantee of an easement may not exercise his rights in such a way so as to unreasonably interfere with the rights of others entitled to similar rights in relation to the land in question (Jelbert v Davis [1968] 1 WLR 589 (“Jelbert”). Thus, in Jelbert the plaintiff’s land enjoyed, along with others, the use of a right of way over the servient tenement. The plaintiff obtained planning permission to use part of his farm as a camping site for up to 200 caravans and tents the owners of which used the right of way. The other landowners objected and put up notices warning the campers off. The plaintiff sought declaratory relief and orders for the removal of the notices but failed. Lord Denning MR construed an otherwise unrestricted grant as subject to a condition that it not “interfere unreasonably with the use by” other dominant tenant holders (at 595). Danckwerts LJ expressed the position as follows (at 597):

“On the authorities, it is plain that the easement so granted is in such wide terms that the use by the plaintiff of it for caravans is permissible; but it is an easement which on its terms is a right which is to be used ‘in common with all other persons having the like right.’ That includes the defendants. A use of the right of way which is so excessive that it renders the rights of such other persons practically impossible, therefore, is not justified. The difficulty is to fix the limit in respect of such use. The test must be whether the interference is so substantial as to interfere with the rights of other persons in an unreasonable manner.” (emphasis added)

39. Sixth, the right to compel the servient tenement owner to execute a DA is similarly conditioned. Thus, in Sertari at [11] Handley JA approved a statement by Waddell CJ in Eq in Kirkjian v Towers (Supreme Court (NSW), 6 July 1987, unreported) that the servient owner was bound to grant a consent unless there was a “lawful reason” for refusing to do so and held that includes cases where the “proposed user would be excessive and thus not authorised by the easement” (at [20]).

40. On its face, the grant to No 26 of an easement over strip 2 for vehicles carries with it an ancillary right to compel the owner of No 28 to agree to the lodgement of a DA to build a driveway to give effect to that grant. Nevertheless, Senior Counsel for the defendants, Mr Parker SC, raised three bases for resisting the relief sought. Each will be addressed in turn.

Right of Carriageway Not Capable of Enjoyment

41. In his written submissions, Mr Parker SC pointed to that part of Schedule 8 to the Conveyancing Act set out above (at [18]) which referred to the “dominant tenement or any part thereof with which the right shall be capable of enjoyment”. He contended that the “nature and topography of the land the subject of the July DA is not and never has been capable of enjoyment as a carriage way”. [33]

    33. Defence Outline of Submissions at [20]

42. I suspect (but need not decide) that the words “shall be capable of enjoyment” simply refer to or qualify the words “part thereof” and not the phrase “dominant tenement” in Part 1 of Schedule 8. If that were correct then the relative difficulty in constructing a structure to give effect to so much of the right of carriageway as included vehicles would be no impediment to the plaintiff’s case. If the words of Schedule 8 are clear in conferring a right of passage for vehicles then the “physical characteristics” of the land provide “no basis for reading [it] down” (Sertari at [16]).

43. In Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 (“Shelmerdine”) Brooking J (with whom Marks and Hedigan JJ agreed) rejected an argument that, as certain rights of way were by reason of topography incapable of being “used as a way by vehicles” at the time of the registration of a plan of subdivision, then they “remained incapable of such use up to the time of trial” (at 332). His Honour held that “it could not be said to have been shown that at the time of the transfer of lots … it was impossible, either legally or physically, for a road to be constructed” and that “[f]requently the land over which a right of way is granted will be unfit for use in accordance with the grant unless substantial works are carried out” (Shelmerdine at 333).

44. Mr Parker SC submitted that Shelmerdine did not address the circumstance where a right of way in the form of a footway has been constructed, and the owner of one of the dominant tenements, in this case the plaintiff, wishes to destroy it and replace it with an entirely new structure. [34] That submission is in substance an argument about the unreasonableness of the proposed use rather than the existence of the right of way, a matter I address next.

    34. T14/11/16 at p 46.8

45. Mr Parker SC also submitted that Shelmerdine concerned a different form of wording of the right of way. However, Shelmerdine simply confirms that, even accepting Mr Parker’s construction of Part 1 of Schedule 8, neither as at 1963 or at any time since has the area of land the subject of these proceedings been physically or legally incapable of enjoyment as a right of carriageway for vehicles.

46. I reject this argument.

Encroachments and Trespass

47. Mr Parker SC contended that the use of the two square metre area noted in [25] as a passing bay “would constitute an actionable trespass on the land of the second defendant” ie No 30. [35] I agree but I do not accept that means that the defendants succeed.

    35. Defence Outline of Submissions at [24]

48. Senior Counsel for the Plaintiff, Mr Grieve QC with whom Dr J Smith appeared, referred to a passage from Hemmes at 348E in which Kirby P referred to the right “at a common law of the owner of dominant tenement to enter onto the servient tenement to perform such work as is necessary to make the right of way passable”. It can be accepted that that right extends to authorise temporary entry onto portions of the servient tenement that do not form part of the right of way. However, the utilisation of the two square metres on No 30 is not temporary but is a permanent encroachment. This Court has no power to order its owner to submit to a permanent trespass and the owner of No 28 can not be required to approve a DA that necessarily involves an unlawful trespass onto No 30 (Sertari at [11]).

49. Mr Grieve QC submitted that the encroachment is “de minimis” but that does not advance the matter. Mr Grieve QC also submitted that this area of grading was included in the proposal for the benefit of No 30 (and No 34) so that there was not a gap between the edge of their current turning area and the new ramp. He ultimately contended that, if the Court concluded it was a trespass and not de minimis, then this aspect could be simply deleted from the DA.

50. Mr Parker SC responded by contending that the removal of that portion of the proposal was significant in that it will make it impractical for the vehicles on No 30 and No 34 to manoeuvre [36] and that otherwise the plaintiff can only obtain an order for the signing of the DA or the dismissal of the summons (“all or nothing”). [37]

    36. T 14/11/16 p 28.47

    37. T 14/11/2016 p 30.46

51. If the removal of this area from the DA was to make it impractical for the vehicles on No 30 and No 34 to manoeuvre then that would be a consequence of their refusal to agree to the regrading work on their land. It is not an impediment to conditioning relief so that no permanent entry onto No 30 occurs without its owner’s consent. Otherwise, I do not agree that the Court is presented with a binary choice of either ordering the defendants to sign the DA that was tendered or dismissing the Summons. Instead, it is a matter of fact and degree. The Court can always mould relief although there is a limit to which it can, by conditioning relief, effectively amend a DA.

52. At least so far as the two square metres noted in [25] are concerned I accept that the Court can proceed as suggested by Mr Grieve QC and mould relief so that the second defendant can choose whether or not to allow work to proceed on its land if the DA is ultimately approved.

53. Accordingly, this aspect of the DA will need to be removed and the plaintiff will need to proffer an undertaking that, subject to Council approval, it will perform the proposed regrading work on this area if the second defendant (or its successor) advises them that it is required. This choice is to remain open until a period prior to the date that the second defendant is notified that the work will commence (assuming that the DA is approved).

Interference with Rights of the Defendants

54. Mr Parker SC’s third point was the works proposed under the DA would “derogate from the rights over the land in question enjoyed by the defendants and the proprietor of No. 24”. Consistent with Jelbert and Sertari he submits that the defendants cannot be required to approve a DA for the construction of a driveway that has that effect. Even though the owner of No 24 is not a party to the proceedings, I understand the effect of his submission to be that the owners of No 28 and No 30 cannot be compelled to approve a DA that unreasonably interferes with that owner’s rights as that would be “unlawful” (Sertari at [11]).

55. In his written submissions Mr Parker SC identified three impacts. The first concerns the destruction of the staircase at the eastern end of the land affected by the easements. He submitted that construction of the driveway overpass would prevent access to strips 1 and 2 [38] from the Musgrave Street side and thus “would thus deny to the owners of Nos. 24, 28 and 30 the rights of passage over that land secured to them by the easements” over strips 1 and 2 in the case of No 24 and No 30 and strip 1 in the case of No 28. [39]

    38. Referred to as portions “(D) and (F)” in Mr Parker SC’s submissions at [27]

    39. Defendant’s Outline of Submissions at [26] to [27]

56. The second interference was said to be that, if the work contemplated by the DA was completed, then the “western end of [strips 1 and 2] would be occupied by a concrete ramp” and thus “deny the owners of Nos. 24, 28 and 30 access to that part of the land”. [40]

    40. Defendant’s Outline of Submissions at [28]

57. These effects can be dealt with together. It can be accepted that the effect of the construction of the DA as tendered would preclude the owner of No 28 (and persons authorised by her) from walking continuously over strip 1 and strip 2 to Musgrave Street. They would be unable to access the area at the bottom of the ramp, would have limited access to strips 1 and 2 under the ramp and could no longer ascend the stairs. At best they could only walk from approximately half way under the ramp up the remainder of stairs. To access Musgrave Street they would need to use their right of way over strip A. In that respect Mr Parker SC submitted that the owner of No 28 cannot be compelled to give over its own land and a right of way over strip 1 simply because she has a right of way over No 30. [41] That said, if the owner of No 28 were to take up the proposal to build a gate onto the driveway, then they could access Musgrave Street from that point by walking up the ramp.

    41. T14/11/16 at p 41.8

58. With No 24, however, they have the extra impediment in that they cannot exercise a right of way on strip A on No 30. As stated by Mr Parker SC the owner of No 24 would be at the mercy of the owner of No 30 if they wished to walk from the area under the ramp up to Musgrave Street. [42] The owners of No 24 could not traverse down the stairs as they previously could, however, they could walk down the driveway if access were granted via a gate.

    42. T14//11/16 at p 40.8

59. I accept that these are not insubstantial affectations even if advantage is taken of the offer of a gate from No 24 and No 28 onto the proposed driveway. However, as noted, this aspect of the defendants’ objection falls to be determined by a consideration of whether the plaintiff’s proposal involves an interference with the defendants’ and No 24’s rights that “is so substantial as to interfere with their rights in an unreasonable manner”. [43] To dismiss the Summons on this basis would effectively deny the plaintiffs from ever exercising the right to build a driveway on strip 1 and so much of the right of carriageway that involves a right to pass over strip 2 “with vehicles”. Assuming the proposal includes footway access for No 24 and No 28 to the driveway, there is no realistic possibility of ever building a driveway to No 26 that does not interfere with the defendants’ and No 24’s rights to this extent. To refuse the application would be to effectively deny No 26 the ability to ever exercise this aspect of its right of carriageway. On the other hand, to grant the relief would, in this respect, impair the rights of passageway of the owners No 28 and No 24 although if they were offered gates onto the driveway that impairment would be mitigated.

    43. See [38]

60. There is a significant distinction between not allowing an unreasonable or excessive user because of its effect on the servient tenement or other users of the right of way as in Jelbert and effectively denying the dominant tenement any right of carriageway for vehicles at all. The building work encompassed by the DA may impair the rights of passageway of No 24 and No 30 over strip 1 and strip 2 as well as No 28’s rights, but that does not lead to a conclusion that the form of use proposed by the plaintiff is unreasonable if to deny that use is to deny the plaintiff a right of carriageway for vehicles altogether. To the contrary, I am not satisfied it is relevantly unreasonable.

61. The third affectation identified by Mr Parker SC was that, if the plaintiff's right of carriageway does enable the construction of an overpass driveway to his property, then it would follow that the owners of Nos. 24, 28 and 30 had the same right. He further submitted that the construction of the driveway pursuant to the DA “would [render it] impossible for those owners to undertake equivalent works for the benefit of their own properties” [44] and would “appropriate the right to construct a carriageway … to the owner of no. 26, to the exclusion of the other owners.” [45]

    44. Defendant’s Outline of Submissions at [29]

    45. Defendant’s Outline of Submissions at [29]

62. The reference to No 30 in this submission is somewhat hard to follow in that, leaving aside the area referred to in [25], the proposal does not effect any alteration to its right of vehicular access to Musgrave Street and drivers leaving No 30 could drive down the proposed ramp to the edge of No 26 if they chose. Otherwise, the effect of this submission is that once the driveway is built then there will be no opportunity for No 24 or No 28 to build their own. However, Mr Vourtzoumis’ evidence suggests that the proposed driveway can be built with a limited form of vehicular access proffered to No 24 and No 28. Of course it is extremely unlikely that they would wish to have such access given that each has vehicular access which, in the case of No 28, is to McLeod Street and, in the case of No 24, is to Musgrave Street. In light of that, and Mr Vourtzoumis’ qualification of his opinion about the safety of vehicular access for each, I will not propose any condition of relief that the plaintiff undertake to make vehicular access available to No 28 or No 24.

63. More significantly, Mr Vourtzoumis’ evidence suggests that, if No 24 and No 28 ever wanted to exercise the same rights as the plaintiff does in the present case, then there is nothing to suggest that they cannot prepare a DA for a proposal giving them access to the proposed driveway which substantially modifies it or even replaces it, which the plaintiff can be required to execute. Any dispute between them would be resolved by an analysis of what represents a reasonable or unreasonable user but it would not be resolved by denying either of No 24 or No 28’s rights as the dominant tenement in respect of strip 1 to a carriageway for their vehicles. Every carriageway for vehicles must start somewhere and, subject to Council approval, the plaintiff is laying the first brick.

Conclusion

64. The result is that the plaintiff is entitled to relief against the first defendant in respect of the DA conditioned on the provision by the plaintiff of an undertaking that conforms with [53] and a similar form of undertaking in respect of gateway access to No 28 and No 24 for pedestrians to the driveway as referred to in Mr Vourtzoumis’ affidavit.

65. As far as the second defendant is concerned I note that the plaintiff has not established any right to compel it to execute the DA as sought by the Summons.

66. I will direct the plaintiff to prepare draft short minutes to give effect to these conclusions as well as proposed orders as to costs, and for the defendants to respond. I will list the matter for argument over relief and costs on Friday 10 February 2017 at 9.30am. If the date is inconvenient to the parties or if agreement over the form of orders necessary to give effect to this judgment is reached the parties can advise my Associate accordingly.

67. The Court orders that:

(1)   On or before 20 January 2017 the plaintiff file and serve the proposed orders he contends are necessary to give effect to this judgment;

(2)   On or before 3 February 2017 the defendants file and serve any proposed orders they contend are necessary to give effect to this judgment;

(3)   The proceedings be listed on 10 February 2017 at 9.30am; and

(4)   There be liberty to apply on three days notice.

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Endnotes

Decision last updated: 16 December 2016