Kyren Pty Ltd v Cinema Place Pty Ltd - [2004] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KYREN PTY LTD v CINEMA PLACE PTY LTD
Judgment of The Honourable Chief Justice Doyle
8 September 2004
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
Plaintiff owner of five allotments of land - two allotments adjoin defendant's land which is subject to the right of way - plaintiff constructing large building extending over all five allotments - whether plaintiff entitled to exercise right of way over defendant's land by having motor vehicles deliver materials to building site - whether plaintiff entitled to bring vehicles onto the defendant's land to carry out work on building's exterior - whether when building is complete shop tenants are able to exercise right of way by having vehicles deliver goods - whether the proposed use of the right of way is excessive - whether the proposed use is within the scope of the right of way.
Real Property Act 1889 (SA) s 89, Schedule 5, referred to.
Gallagher v Rainbow (1994) 179 CLR 624; Robmet Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461 ; Deanshaw and Deanshaw v Marshall (1978) 20 SASR 146; Elliott v Renner [1923] St R Qd 172; Bond and Leitch v Delfab Investments Pty Ltd (1980) 26 SASR 462; Lawrence v Griffiths (1987) 47 SASR 455; Peacock v Custins [2001] 2 All ER 827; Jelbert v Davis [1968] 1 WLR 589; Shean Pty Ltd v Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 (2001) 25 WAR 65, considered.

KYREN PTY LTD v CINEMA PLACE PTY LTD
[2004] SASC 268
Civil

DOYLE CJ Kyren Pty Ltd (“Kyren”) is the registered proprietor of five allotments of land that form a single parcel of land lying between Frome Street and Vaughan Place in Adelaide. Two of these allotments (“the dominant tenements”) abut Vaughan Place, which is a private road.
Kyren has a “free and unrestricted right of way” over part of Vaughan Place in its capacity as registered proprietor of the dominant tenements. Vaughan Place is owned by Cinema Place Pty Ltd (“Cinema”).
Vaughan Place runs approximately 65 metres in a north-south direction off the northern side of Rundle Street. It then makes a right-angled turn and runs approximately 74 metres in an east-west direction to Frome Street.
Cinema is the proprietor of the north-south section only. That is the part of Vaughan Place over which the relevant right of way exists. For present purposes, the east-west section can be ignored. (This summary ignores some of the title details, but they are of no significance to the present case).
Kyren is erecting a substantial building on its land. The building extends over all five allotments. When the building is complete it will provide premises at ground level to be used as shops, facing onto Vaughan Place.
Kyren claims to be entitled to exercise its right of way over Vaughan Place by having motor vehicles deliver building materials to the building site. It also claims that the builder of the building is entitled to bring motor vehicles onto Vaughan Place to enable workers to carry out work on the exterior of the building facing Vaughan Place. These would be vehicles with movable booms. Kyren claims that once the building is complete, the occupiers of the shops (as its tenants) are entitled to exercise its right of way by having motor vehicles deliver goods to the shops or take goods from the shops.
Cinema has obstructed the right of way, and has refused and refuses to allow motor vehicles to pass over Vaughan Place with a view to getting access to Kyren’s building site. Cinema says that the proposed use of the right of way is excessive, and is not within the scope of the right of way.
Kyren claims orders enforcing its rights.
The proceedings
Kyren issued a summons, supported by affidavits, on 30 April 2004. Kyren sought an injunction pending trial. That application came before me, sitting as Chamber judge, on 14 May 2004.
It appeared to me that it would not take more than a day or so to hear the case. I proposed to the parties that rather than hear the application for an injunction pending trial, to be followed by a trial of the action, I would hear the case on its merits as soon as the parties could be ready. The parties agreed, and I heard the action on 16 June and 17 June 2004. The evidence was largely uncontentious, comprising documents and affidavits. In the course of the hearing the parties indicated that they wished to call further evidence about the effect of the proposed use of Vaughan Place on its paving. I adjourned the trial for that purpose. The parties were not ready with this evidence for a good deal longer than I expected. I heard that evidence and further submissions on 6 August 2004.
The land and the right of way
I make the following findings.
The dominant tenements are two rectangular allotments. They adjoin each other. One of them forms the corner where Vaughan Place makes a right angle turn, and the other is immediately south of that allotment. Together they form a rectangular parcel about 38 metres (the frontage to Vaughan Place) by about 27 metres.
Two of Kyren’s allotments adjoin the dominant tenements on their western side. The fifth of Kyren’s allotments is on the western side of those two allotments, with a frontage to Frome Street. Two of the three allotments to which I have just referred have a frontage to the east-west section of Vaughan Place.
All five allotments together form a roughly rectangular piece of land bordered on the north by the east-west section of Vaughan Place (the frontage is about 74 metres long), on the west by Frome Street (the frontage is about 35 metres long), on the south by other land and on the east by Vaughan Place.
The north-south section of Vaughan Place is approximately eight metres wide and approximately 65 metres in length from Rundle Street to the point at which it makes a right-angled turn.
On the western side of Vaughan Place between Rundle Street and the dominant tenements, is the Exeter Hotel, the frontage of which is on Rundle Street.
On the eastern side of Vaughan Place there are two laneways or walkways running in an east-west direction. They provide access to land and premises lying between Vaughan Place and East Terrace. The eastern side of Vaughan Place is also bounded by buildings used for commercial purposes. On the eastern corner of Vaughan Place and Rundle Street is a building with a frontage to Rundle Street. Moving north along Vaughan Place are other commercial premises, a hotel (The Elephant & Wheelbarrow) being at the northern end of Vaughan Place.
A narrow walkway or footpath runs from the northern limit of Vaughan Place, where it makes a right angle turn, through to North Terrace.
The buildings facing onto Vaughan Place are no more than two or three storeys high.
The surface of Vaughan Place is paved with concrete pavers. It is paved from side to side, with a footpath only on the western side adjoining the Exeter Hotel. Three or four small trees are growing along the western side. They appear to have been planted for decorative purposes.
Kyren’s building
Plans of Kyren’s proposed building were tendered as exhibit P21. The building has eight levels above ground level. Ground level, and levels 1 to 4, are mainly for car parking, although there will be two premises designated “retail” with the frontage to Vaughan Place and one with a frontage to Frome Street. Motor vehicles will enter and leave the building at the Frome Street frontage. There are lifts at the eastern and western ends of the building, with pedestrian access to Frome Street and Vaughan Place. Levels 5 to 8 inclusive will provide self-contained accommodation units. As best I can tell from exhibit P21, there will be 18 units at level 5, 14 units at level 6, 8 units at level 7 and 6 units at level 8. The floor space of the building is the same at each level, the units increasing in floor area (and presumably in quality and in price) the higher the level on which they are placed.
Title history
It is not necessary to explore the title history in detail. I make further findings as follows.
In 1921 the dominant tenements and Vaughan Place were owned by the East End Market Company Ltd. In 1921 that company transferred the dominant tenements to Mr Turner and Mr Dunks, described as pastry cooks. The instrument of transfer granted to them “a free and unrestricted right of way” over Vaughan Place.
In 1921 the east-west extension of Vaughan Place to Frome Street did not exist.
The land transferred to Messrs Turner and Dunks is now owned by Kyren. Cinema now owns Vaughan Place.
By s 89 of the Real Property Act 1886 (SA):
“ 89. The words “a free and unrestricted right-of-way” in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out at length in such instrument.”
Schedule 5 to the Act is in the following terms:
“A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.”
The history of the use of the land
The rights conferred on Kyren are to be found in the words of the fifth Schedule of the Real Property Act. However, it is well established that, like any written instrument, the terms in which the right of way are granted are to be construed in the light of the circumstances at the time of the grant: see the summary of the relevant principles in the dissenting judgment of McHugh J Gallagher v Rainbow (1994) 179 CLR 624 at 639-641. The authorities establish that relevant matters to be considered are the nature and circumstances of the parcel of land over which the right of way is granted, the nature and circumstances of the parcel of land in favour of which the right of way is granted (that is, the nature and circumstances of the dominant tenement) and the terms in which and purpose for which the right of way was to be granted.
As I understood the submissions put to me, neither Mr Henry for Kyren nor Mr Wilkinson for Cinema differed as to the applicable principles of law. Accordingly, I will not refer to the authorities that establish the above general propositions. They are conveniently collected in Bradbrook and Neave, Easements and Restrictive Covenants in Australia, (2^nd Edition, Butterworths, 2000) [6.6] – [6.12]. I emphasise, however, that the process involves consideration of the terms in which the right of way is granted, the construction of those terms being considered in the light of the circumstances as at the time of the grant. The terms of the grant are central to the inquiry, but the circumstances at the time of the grant are relevant when one considers the meaning of those terms.
Bearing in mind that the right of way was created in 1921, it is accordingly necessary to make findings as to the relevant circumstances as they were at that time.
The information provided to me in relation to the use of Vaughan Place in about 1921 is not extensive. Nevertheless, I consider that the picture is clear enough, and have no difficulty making findings on the basis of the material tendered before me.
Mr Henry tendered, without objection, portion of a “Conservation Plan” for this part of Adelaide, described in the Plan as the “East End Markets Precinct”. The Plan was prepared by consultants for the State Heritage Branch. Exhibit P25 is Part One of the Plan, and gives the history of the precinct. Exhibit P26 is part of Part Two of the Plan, and is a “building inventory” for the precinct. The part which was tendered relates to Vaughan Place.
On the basis of this material, and drawing to a very limited extent on information in Certificates of Title, I make the following findings.
By 1921 the East End Market Company Limited was conducting a substantial fruit and vegetable market on the land between Vaughan Place and East Terrace, and on the northern side of Rundle Street. In and around this market were a number of buildings and businesses, many of which were linked to the market activity. There were also a number of hotels. When it was operating, producers brought their produce to the market and sold the produce from within the market, and from surrounding streets, from carts or stalls. The market was a busy one, and when it was operating there was a good deal of traffic in the locality. The market provided the character of the precinct.
Most of the buildings in the precinct, and around Vaughan Place, were used for commercial purposes, although there were probably some residential premises still in use in 1921, in particular, residences above shops in Rundle Street.
I find that by 1921 Vaughan Place was used extensively by vehicles and people associated with the East End Market. In particular, it was used by substantial vehicles (for their time) to bring produce to and from the market. The vehicles were horse-drawn and motorised. Although a private road and subject to rights of way, I find that by 1921 Vaughan Place was used as if it was a public road, and in appearance was indistinguishable from a public road. It was a busy thoroughfare, at least when the market was operating.
I find also that when the market operated, Vaughan Place was used as a place for selling fruit and vegetables either from vehicles in Vaughan Place or from temporary stalls.
The Exeter Hotel was established on the western side of the junction with Rundle Street in about 1850. In 1921 it was a busy hotel, and remained one. It is still there. I find that Vaughan Place was used to make deliveries to the Exeter Hotel.
On the eastern corner of Rundle Street there was a substantial two storey building, which in 1921 was being used as a bank, and continued to be so used for many years thereafter.
I find that in Vaughan Place itself there were several “cottages” (single storey buildings originally constructed as dwellings) and, on the eastern side, some buildings connected with the East End Market. In 1921 there were two cottages erected on Kyren’s land, and they continued to be there for some time thereafter.
Exhibit D30 is an extract from “Sands and McDougall’s South Australian Directory” for 1922. This directory lists the names and occupations of the occupiers of premises. In relation to Vaughan Place five occupiers are identified, and the occupations given are cake and pastry bakehouse, fruiterer, hawker, Producers Cold Storage Ltd and electrical engineers. I find that while some of the buildings in Vaughan Place might have been used for residential purposes, the predominant use of the buildings was for commercial purposes, of the kind indicated by the above list.
Until 1965 or thereabouts, when the east-west section of Vaughan Place was created, the north-south section was the only means of access to a public road. I find that the occupiers of the premises in Vaughan Place used it as the means of access to Rundle Street, and used it in connection with their businesses. I have already referred to the fact that Vaughan Place was used by vendors associated with the East End Market. I find also that the occupiers of premises in Vaughan Place used it to bring goods to and from their premises, and on occasions would cause vehicles to stand in Vaughan Place while the vehicles were loaded or unloaded.
Accordingly, I find that in 1921 and thereafter Vaughan Place had the appearance of a public road off Rundle Street, and was much used by vehicles associated with the East End Market and with the premises facing onto Vaughan Place. I find that the grant of the right of way to Mr Turner and Mr Dunks was made in contemplation of them using the dominant tenements in connection with their bakehouse, and that the right of way was used for that purpose. I find that while the width and situation of Vaughan Place limited the size of vehicles that could use it, it was used regularly by substantial vehicles (for their time) and was regularly used as a place to stand vehicles being used in connection with the East End Market and in connection with the premises in Vaughan Place.
Kyren’s entitlements
I defer for the moment consideration of the significance of the fact that Kyren is erecting on the dominant tenements a building that is much bigger than any building previously erected there, and the significance of the fact that the building extends over all five allotments.
The right of way itself is in the standard form provided by the Real Property Act. It is expressed in wide terms.
My findings as to the nature and use of Vaughan Place in 1921, and as to the nature and use of the dominant tenements at that time, provide no basis to support an argument that would limit the scope of the right of way in such a manner as to exclude the use that Kyren proposes to make of Vaughan Place. That conclusion is subject to the matters the consideration of which I have deferred. It is also subject to the limitation that necessarily flows from the fact that because Cinema has denied Kyren access to the right of way, I am dealing with a claim to exercise the right of way in the future, and so a claim that is necessarily expressed in fairly general terms.
I will now identify more closely the entitlements that Kyren has under its right of way, in light of my findings.
The right of way extends to the use of motor vehicles. As far as I am aware it has never been suggested that a right of way in the terms of Schedule 5 does not embrace the use of motor vehicles.
The right of way extends to the use of motor vehicles on Vaughan Place to bring goods to and from the dominant tenements. It includes causing those vehicles to stand on Vaughan Place for a reasonable time while being loaded or unloaded: see Robmet Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461. Deanshaw and Deanshaw v Marshall (1978) 20 SASR 146 at 149-150; Elliott v Renner [1923] St R Qd 172. My findings in relation to Vaughan Place and the dominant tenements satisfy me that such a use of Vaughan Place would have been contemplated by the parties to the grant.
There is no reason to limit the right of way to a right of way in connection with the use of the dominant tenement as a bakehouse. It is granted in unqualified terms. That is not to say that there might not be a use of the dominant tenements that would, in its nature, fall outside the scope of the right of way. However, the proposed use of the dominant tenements is for shops or commercial premises, for the parking of motor cars (as a business in its own right) and for residential purposes. These uses are within the scope of the right of way.
The right of way includes the use of Vaughan Place by motor vehicles in connection with the repair of premises on the dominant tenements, and in connection with the building of new premises on the dominant tenements: see, for example, Bond and Leitch v Delfab Investments Pty Ltd (1980) 26 SASR 462 at 471. The possibility of occasion arising to repair or to rebuild premises on the dominant tenements must have been contemplated by the parties. As Vaughan Place was the only means of access to Rundle Street, the use of Vaughan Place for that purpose must have been contemplated.
It is not possible to be definitive about the type of motor vehicle that can be brought onto Vaughan Place in exercise of the right of way. Mr Samaras, a director of Kyren, has sworn affidavits in which he deposes to the use that Kyren wishes to make of Vaughan Place. They are exhibits P22 and P23. The proposed use will be to deliver building materials for use on the dominant tenements, covering materials such as “bricks, glass, aluminium, plasterboard, mechanical ductwork, fixtures and fittings, tiles, carpets, plumbing …”. He describes the vehicles as “small – medium rigid body trucks (up to 10m long)”. He says that some of the deliveries would be by “small vans”. I consider that a use of this kind is within the scope of the right of way. The use of vehicles of this size and for this sort of purpose was within the contemplation of the parties.

Mr Samaras also says that Kyren wishes to bring “concrete trucks” onto Vaughan Place in connection with the pouring of concrete. Having regard to the time that has passed, I am unsure whether such use is still proposed. Accordingly, at this stage I refrain from deciding whether the use of vehicles of this size is within the scope of the right of way.
Mr Samaras says that on some occasions Kyren will wish to bring onto the right of way “a moving boom lift vehicle” of a kind known as a “cherry picker”. This will allow workmen to work on the eastern façade of the building. I consider that use of this kind is within the scope of the right of way.
It is not possible for me to be definitive about the frequency of use, or the hours of use that is permitted by the right of way. Mr Samaras indicates that delivery vehicles would come to the site up to three or four times a day during the construction phase. Deliveries would take place from Monday to Friday, between about six am and three pm. I consider that the frequency and hours of use proposed are within the scope of the right of way.
On the information available to me, it is not possible to make a firm finding about the use of Vaughan Place for taking goods to and from the two commercial tenancies proposed for the ground floor of the new building. However, I consider that in principle the use of Vaughan Place by occasional delivery vehicles in ordinary business hours would be within the scope of the right of way.
The Certificates of Title show that there are other easements, including rights of way, over Vaughan Place. The parties did not provide me with evidence about the holders of these rights, or of the nature of the rights. I am not satisfied that the proposed use by Kyren will constitute an unreasonable interference with the exercise of those rights. Should a complaint of that kind arise, it will have to be dealt with at the time in the light of the relevant circumstances.
Exhibit D28 is an affidavit by Mr Goldberg, a solicitor acting for Cinema. He deposes to the fact that Cinema operates a market on Vaughan Place on Friday evenings, Saturday and Sunday. I have very limited information about the market. I understand it to be what is often called a “street market” at which people sell craft items, clothing, food and jewellery and the like from stalls erected on the street. Having regard to the times at which Kyren wishes to bring trucks onto Vaughan Place, I am not satisfied that its exercise of its rights will interfere at all with Cinema’s use of the land in this way. This is not to say that I accept that Cinema is entitled to refuse to permit Kyren to exercise its right of way on the suggested basis. Should a problem arise in this respect, it will have to be dealt with at the time.
In his affidavit Mr Goldberg also deposes to the fact that Cinema is concerned it may become liable in damages should a pedestrian using Vaughan Place be injured by a motor vehicle brought there by Kyren. As things stand Vaughan Place is predominantly used by pedestrians. I consider that that is not a matter that entitles Cinema to obstruct the right of way, as it is presently doing.
Cinema also claims that the proposed use of Vaughan Place will result in damage to the paving, and that to avoid that damage it is entitled to refuse access to Kyren.
At the adjourned hearing I heard evidence as to the paving of Vaughan Place, and as to the risk of damage to the paving and to underground pipe work. I received a report prepared by Mr Hill, an engineer called by Kyren, and I heard evidence from him expanding on his report. I also received a report prepared by Mr Vreugdenburg, an engineer retained by Cinema, and I heard evidence from him by way of answer to Mr Hill’s evidence, and expanding on his report. His firm designed the existing paving, and in his report he provides details of the paving and the supporting base on which it is placed. The existing paving was placed on Vaughan Place in 1997.
I accept that each of these witnesses is well qualified by training and experience to express an expert opinion on the risk of damage to the paving and to underground piping as a result of Kyren’s proposed use of Vaughan Place.
For the purposes of their evidence each witness assumed that the paving had been constructed as designed. It is possible that the construction has departed from the design, but as neither party thought it necessary to test for that, I propose to proceed on the basis that the construction is substantially in accordance with the design.
Mr Hill examined the drawings prepared by Mr Vreugdenburg’s firm in connection with the construction of the paving. He accepted that the paving had been designed for pedestrian traffic only. He compared the paving design with standards used by engineers in connection with the construction of pavements for roadways. By reference to those standards the report which he prepared (exhibit P37) concluded as follows:
“… that use by occasional full legal load commercial vehicles plus frequent use by light commercial delivery vans and trucks together with frequent use by passenger cars is very unlikely to cause a rapid or unusual increase in required maintenance of this pavement.”
He explained this conclusion in some detail in his evidence. By “light commercial vehicle” he meant a vehicle of less than 3 tonnes, and by “commercial vehicle” he meant a vehicle of more than 3 tonnes weight. In his evidence he explained in some detail how and why he arrived at that conclusion. I accept his evidence.
In the light of his evidence I conclude that the use of Vaughan Place proposed by Kyren will not result in any significant damage to the paving, nor will it make a significant difference to the amount of maintenance required to keep the paving in good condition.
In arriving at that conclusion I recognise the possibility that Kyren may wish to bring onto Vaughan Place large and heavy vehicles, such as concrete delivery vehicles, that might cause damage to the paving or to underlying pipe work. In these reasons I have not dealt with that possibility, because I have insufficient evidence about it.
Both Mr Hill and Mr Vreugdenburg referred to the fact that quite a number of the pavers are damaged, particularly those near Rundle Street. I am not satisfied, on the evidence before me, that that is attributable to the use of Vaughan Place by vehicles of the kind that Kyren wishes to bring onto Vaughan Place. In the light of an affidavit by Mr Samaras (exhibit P33), it is quite possible that that damage is attributable to the use of a heavy crane for a purpose connected with land to the east of Vaughan Place. Although Mr Vreugdenburg suggested that the existing damage to the paving might be attributable to “substantial commercial traffic” on Vaughan Place, it emerged in cross-examination that he had no information at all as to the actual use of Vaughan Place.
A significant assumption made by Mr Hill was that the subsoil under Vaughan Place was compacted to a degree such that it had a “Californian bearing ratio” of 5 per cent. This is a measure of the stiffness or strength of the underlying soil. Mr Hill based that estimate on his experience in an around Adelaide. Under the circumstances I am prepared to accept it. It was not suggested by Mr Vreugdenburg that it was an unreasonable assumption to make although, as is obvious, it remains an assumption.
In accepting Mr Hill’s evidence I am influenced by the fact that there was no difference of principle as between him and Mr Vreugdenburg. Mr Vreugdenburg agreed in cross-examination that, as designed, the pavement was suitable for unlimited light vehicle use, and suitable for limited commercial vehicle use, his main concern apparently being that if the paving base was not constructed as designed, or of the “Californian bearing ratio” of the soil was not that assumed by Mr Hill, the paving might be damaged by substantial commercial vehicle use of Vaughan Place. That conclusion was apparently influenced by a belief that this was the cause of the existing damage.
My impression is that Mr Vreugdenburg was doing no more than expressing a cautionary qualification to Mr Hill’s evidence, which was appropriately made. However, I am satisfied on the basis of Mr Hill’s evidence that the use of Vaughan Place proposed by Kyren will not cause any significant damage to the paving or to the underlying pipework.
On the evidence, as Mr Vreugdenburg agreed, it is apparent that repairs to the paving are required as things stand.
I should add that I did not accept that the manner in which Vaughan Place has been paved can necessarily limit Kyren in the exercise of its right of way. First, Kyren might be entitled to improve the paving of the right of way: see Lawrence v Griffiths (1987) 47 SASR 455 at 465, 482-3, 488. It is not necessary to decide that. Second, it may be that the cost of repairing paving that is not strong enough to withstand the reasonable exercise of the right of way is a cost that is to be borne by Kyren. These are issues that I need not decide.
I now return to the two matters, consideration of which I deferred.
In the light of the frequency of the use proposed to be made of the land and in light of the kind of vehicles involved, both during the construction of the building and thereafter, I am satisfied that the extent or amount of the proposed use of Vaughan Place is within the scope of the right of way. The proposed use is quite limited, and appears likely to be quite limited in the future. On the basis of my findings it is possible that greater use of the right of way over Vaughan Place has been made in the past.
I have not found any authority on point, but in principle I consider that the fact that the building being erected is much larger than any building previously erected there is not a reason to deny Kyren the exercise of what otherwise would be its rights. The use of the dominant tenements is of a kind that is consistent with what would have been contemplated as within the scope of the right of way. The use is a mixed residential and commercial use, including car parking. I see no reason to conclude that the proposed use is excessive, or falls outside the scope of the right of way, simply because the building itself is of a size unlikely to have been contemplated at the time of the grant of the right of way. More important is the extent of the intended use of the right of way. I am satisfied that the extent of use is within that that would have been contemplated by the parties. This is not a case in which the purpose for which the right of way is to be used has changed in a manner that takes the proposed use outside the scope of the grant: see Peacock v Custins [2001] 2 All ER 827 at 836 and Jelbert v Davis [1968] 1WLR 589 at 595-596; Gallagher v Rainbow at 640-641.
That leaves the question of the significance of the fact that the building extends over all five allotments owned by Kyren. Kyren has conducted its case before me on the basis that it seeks to use Vaughan Place only in connection with the erection and fitting out of that part of the building that is situated on the dominant tenements, and subsequently in connection with the two commercial premises that will be located on the ground floor of that building, and on the dominant tenements.
It is well established as a matter of law that the right of way that attaches to the dominant tenements cannot be used for the benefit of other tenements. The right is a right to bring vehicles on to Vaughan Place in connection with the enjoyment of the dominant tenements only: see Shean Pty Ltd v Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 [2001] WASCA 311; (2001) 25 WAR 65 at [34]-[42]; Bradbrook and Neave at [6.44].
Although Kyren claims only to exercise the right of way for the benefit of the dominant tenements, the evidence before me did not explain how it will ensure that its use is so restricted. On the other hand, it is relevant to bear in mind that the construction of the building is well advanced, and Kyren has access to the site from Frome Street at the west end, and from the east-west portion of Vaughan Place. There is no reason to think that Kyren needs or wishes to use Vaughan Place in connection with the erection of that part of the building that will be erected on land other than the dominant tenements. It has managed so far without access to Vaughan Place. At the same time I recognise that it will be difficult for Cinema to satisfy itself that Kyren is not exceeding its rights.
My conclusion is that, in the circumstances, Kyren remains entitled to exercise its right of way. Kyren denies that it will exercise its rights so as to benefit land other than dominant tenements, and the circumstances do not point to a conclusion that that denial should be rejected. It is possible to distinguish between a use for building work on the dominant tenements and use for building work on the other allotments. Kyren has managed so far without access to Vaughan Place.
It would not be right to refuse to enforce Kyren’s rights on the basis that the use of those rights might be excessive. I accept that if it is impossible to sever the proper use of a right of way from an excessive use, the owner of the servient tenement may stop the use altogether: Gale on Easements (15^th ed, Sweet & Maxwell, 1986) at 311.
In the present case the proposed use is not excessive, merely because it is a use in connection with a building that extends to allotments other than the dominant tenements. There is a risk that the proposed use will be excessive, and it is only fair to Cinema to recognise that proof of excessive use will be difficult. Nevertheless, as I am not satisfied that the use will be excessive, I conclude that the risk of excessive use is not a reason to decline to enforce Kyren’s rights. It remains open to Cinema to object in the light of later events that the use of Vaughan Place, or a proposed use of it, is, or will be, an excessive use of the right of way.
I record that no submissions were put to me on either side relating to the use of the right of way by pedestrians.
I therefore conclude that the fact that the building being erected extends to allotments other than the dominant tenements does not, of itself, entitle Cinema to obstruct Kyren in the exercise of its right of way.
Conclusion
I am satisfied that Kyren is entitled to exercise its right of way, in the manner proposed by it, in connection with the erection of the building that it is erecting on the dominant tenements, and in connection with the occupation of the two proposed commercial premises at the ground floor of that building.
It is appropriate to declare that Kyren is entitled to exercise a free and unrestricted right of way over the relevant part of Vaughan Place. It is also appropriate to grant a declaration that Kyren is entitled to exercise that right of way in connection with the erection of the building now being erected on the dominant tenements and in connection with the occupation of the proposed retail tenancies. It is appropriate to declare further that that exercise of the right of way includes the bringing of motor vehicles on to Vaughan Place and causing those motor vehicles to stand on Vaughan Place for the purpose of loading and unloading those vehicles.
A further declaration should be granted that Cinema has infringed and obstructed the exercise of Kyren’s right of way by refusing it access to Vaughan Place.
In the circumstances, and subject to further submissions, I consider that it is not appropriate to grant a declaration in more prescriptive terms as to the nature and extent of the permissible exercise of the right of way. If disputes arise they will have to be dealt with.
Passing reference was made in evidence and in submissions to metal frames that Cinema has erected on Vaughan Place in connection with the street market. I understand that these are used to support temporary covering or cladding around the stalls. There is an issue as to whether the frames erected adjacent to the dominant tenements constitute an obstruction to the right of way, but I have not heard sufficient evidence to enable me to make findings on that matter.
Nor have I heard any evidence yet on the question of damages.
At this stage it does not seem necessary to enjoin Cinema from interfering with Kyren’s rights. At this stage I assume that Cinema will cease its obstruction to Kyren exercising its right of way, and will accept the consequences of my conclusions.
As I have already indicated, I realise that there is scope for further disputes to arise between the parties, but on the information before me I am not able to deal with the matter in a manner that will avoid that possibility.