Pattison v Stephens
[2015] VCC 1423
•8 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-01149
| ARTHUR PATTISON | Plaintiff |
| v | |
| ROBYN STEPHENS | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 & 29 September 2015 | |
DATE OF JUDGMENT: | 8 October 2015 | |
CASE MAY BE CITED AS: | Pattison v Stephens | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1423 | |
REASONS FOR JUDGMENT
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Subject: Real Property
Catchwords: Easement of carriageway created on subdivision in favour of plaintiff; whether construction of flowerbeds on either side of the easement and installation of a manual gate by defendant constituted a substantial interference with the plaintiff’s enjoyment of the easement;
Legislation Cited: Subsection 72(3) Transfer of Land Act 1958
Cases Cited:Patel v W H Smith (Eziot) Limited [1987] 2 All ER 569; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988; McCrow v Chaplain [2009] NSWSC 965; Gohl v Hender [1930] SASR 158; Walker v Espi [2003] NSWSC 559; Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; Spear v Rowlett (1924) 43 NZLR 801; Newcomen v Coulson (1877) 5 ChD 133; Zenere v Leate (1980) 1 BPR 9,300; Lawrence v Griffiths (1987) 47 SASR 455; Bland v Levie [2000] NSWSC 161; Bourke v Creece [2014] VCC 970; Staley v Pivot Group (No 6) [2010] WASC 228; Baypeak Pty Ltd v Lim [2005] VSC 77; Davidson v Elkington [2011] WASC 29; Johnstone v Holdway [1963] 1 QB 601
Judgment: 1. Within 14 days the parties must bring in short minutes to give effect to this judgment and deal with the issue of costs. 2. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Gillies | R B Legal Pty Ltd |
| For the Defendant | Mr T Alexander | M & K Lawyers |
HIS HONOUR:
Background
1 Flinders is a picturesque seaside town on the shore of Westernport Bay. Bass Street runs down the hill from the north-west to the south-east towards Flinders Pier. Until the early 1980s, number 12 Bass Street was a single allotment on the north-eastern side of the street.
2 In 1981 the allotment was the subject of a two lot plan of sub-division – one allotment at the Bass Street frontage was designated number 12A, the other allotment consisted of the rear portion together with “the battle axe” driveway following the south-east boundary of the old allotment. The battle axe block was designated number 12.
3 Number 12, that is, the battle axe block, was comprised in Certificate of Title Volume 9391, Folio 676. The other allotment, number 12A, with its frontage to Bass Street was comprised in Certificate of Title Volume 9442, Folio 231. Number 12 was initially owned by Ms Levesque and was then purchased by a Mr Peter Russell in 1992. In December 2000 the defendant, Ms Stephens, became the owner.
4 Over the next couple of years, Ms Stephens had the old weatherboard house demolished and replaced with a new structure where she, her husband (Mr Ian Brett) and other members of their family reside.
5 Number 12A, that is, the allotment fronting Bass Street, was initially purchased in 1981 by Arthur Pattison Nominees Pty Ltd. In May 2000, that company transferred number 12A to the plaintiff in this proceeding, Mr Pattison, it appears as a result of the vesting of a trust.
6 Number 12 enjoys access via the handle of its battle axe configuration to Bass Street and also via a track at the rear of the allotment running parallel to Bass Street down to the Flinders Pier area. I was told that the use of this track or roadway was permissive only and was subject to cancellation at the option of the shire council.
7 Mr Pattison had a house erected on number 12A consisting of two levels where he now resides. He is a retired gentlemen who turns 89 in December this year. In a departure from the more usual pattern of battle axe sub-divisions, number 12A enjoys vehicular access, not directly from its Bass Street frontage, but rather along the handle of the battle axe being part of number 12 – the defendant’s land - over which number 12A holds an easement of carriageway.
8 Mr Pattison has a vehicle garage near the north-eastern (rear) of his allotment which is accessed via a gate off the battle axe handle and via the easement of carriageway.
9 Mr Pattison says that Ms Stephens and her family have obstructed his easement of carriageway on the battle axe handle. He seeks orders from the court abating those obstructions.
10 The registered title depicts the easement of carriageway as affecting the whole of the battle axe handle of number 12, which is approximately 61 metres in length from the Bass Street frontage to the main portion of number 12 and some six metres in width.
11 Following the initial sub-division in 1980/81, the battle axe handle was left in a natural state, albeit somewhat overgrown. Photographs in the court book (at PCB 93 & 94) depict this situation.
12 During Mr Russell’s ownership of number 12 he delineated what are now garden beds with raised redbrick borders on concrete footings. When Ms Stephens purchased number 12 she replaced the redbrick borders with granite rock edging located upon the same concrete footing. She said the red bricks were “too suburban”. The present state of the carriageway is that it is accessed through an unlocked gate at the Bass Street frontage with a gravel roadway or track between the garden beds. Number 12 (at the rear) is in an elevated position with the battle axe handle going down the slope to Bass Street.
13 The evidence, pleadings and submissions left the precise width of the garden beds unclear. According to the defence, the garden beds on each side of a 3.3 metre gravel roadway are 1.35 metres in width on both sides. There were slightly differing indications given as to the width of the driveway in the course of the evidence. In final submissions, Mr Alexander, counsel for Ms Stephens, stated “the garden beds are between 1.4 and 1.6 metres wide…”.
14 In this proceeding, Mr Pattison seeks the removal of the gate and of the garden beds so that an entire six metre strip of the battle axe handle would be available to him for use as an access roadway.
15 Ms Stephens has planted the north-eastern garden bed with pencil pines. The evidence did not disclose their precise height but photographs, and my own observations at a view which was conducted at the outset of the trial, showed that these pines substantially obscured any sea view down the slope towards the pier and looking across to French Island, which might otherwise have been enjoyed from the ground floor of number 12A. Granting the relief which Mr Pattison seeks would entail the removal of those pines.
16 The redbrick garden bed borders erected by Mr Russell were a bone of contention between him and Mr Pattison. This contention continued and intensified once Ms Stephens became the owner of number 12. It will be recalled that she had the brick borders replaced with granite rock edging upon the same alignments.
17 Without, at this stage, making any findings as to where the truth lies in the allegations and counter allegations, I note a lengthy exchange of correspondence between the parties from June 2003 until November 2014 to be found at pages 28-68 of the court book. The opening shot was fired by Mr Pattison in a letter to Ms Stephens and her husband of 16 June 2003 (PCB 28) in which he recited the disputes which he had had with Mr Russell. He raised a variety of concerns, including a concern as to Pittosporums, which he said would “surely lead to a collision”, and a host of other matters.
18 Mr Brett responded in a letter of 23 June, making little in the way of concessions and asserting that “closing the gate between our properties was a condition of you (sic) carriageway rights, a condition you seem to ignore at times. There were six occasions I know of last September when the gate was not closed…”. (PCB 29-30) A follow-up letter from Mr Brett stressed that there was no question of relocating the front gate. (PCB 31)
19 In a letter of 11 July 2003 (PCB 32), Mr Pattison complained of difficulties in manoeuvring on the carriageway caused by encroaching foliage.
20 Mr Brett and Ms Stephens wrote on 29 March 2004 (PCB 33) complaining about bricks being knocked away “opposite your gateway”. Mr Brett and Ms Stephens also complained about Mr Pattison’s “trimming of our plants to extend your swing into your gate [being] totally unacceptable”. They accused Mr Pattison of “a continual taking of liberties on our land”.
21 Mr Pattison responded in a letter of 19 April 2004 (PCB 35-36) with a litany of complaints as to the difficulties of gaining access to his property. Mr Pattison made further complaint on 31 January 2005. (PCB 37)
22 In a letter of 15 February 2005 (PCB 38), Mr Brett and Ms Stephens concluded:
“Arthur, you seem concerned about conflict with your neighbours but you must understand that it is all of your own making. You must give up your dream of combining our properties for your benefit only (this is obvious from our conversations and construction you have done). Your idea of chipping away a bit at a time and objecting to everything we do may have been a successful tactic for you in the past but we have our own plans for our land and are not prepared to compromise them.”
23 Complaints about the gate being left open by Mr Pattison continued. Again, in February 2005, Mr Brett said (PCB 40):
“I would like you to understand that you are not entitled to leave the gate adjourning our properties open unless you are in the act of coming or going through the gate.”
24 In a letter of 7 March 2005, Mr Pattison accused Mr Brett of telling him that he “would be planting a forest of trees down the carriageway [and] that within two years [Mr Pattison] would loose (sic) any view had from [his] house…”.
25 Mr Brett responded in a letter dated 11 March 2005 (PCB 42), dealing with a number of the complaints made by Mr Pattison but, notably, not contradicting the allegation that Mr Brett had threatened to plant “a forest of trees”.
26 Also in 2005, there was a dispute arising out of landscaping work done in Mr Pattison’s backyard. This had the effect of dropping the level of his land as it abutted the battle axe handle. He directed the landscaping contractor to remove soil from the battle axe handle to regrade the entry to his property and avoid the hump which would otherwise exist. Mr Brett and Ms Stephens were incensed and re-established the hump.
27 A solicitor’s letter was sent to the landscaping contractor (PCB 45). Mr Pattison had his solicitors respond in a letter of 28 April 2005. (PCB 47 & 48)
28 In July 2005, Mr Brett complained about the escape of his family dog by reason of Mr Pattison failing to keep the gate from the carriageway onto his property closed.
29 There was then a dispute in the latter part of 2005 relative to the removal of an adjoining fence by Mr Pattison, according to Mr Brett “with no consultation or permission from us”. (PCB 50) Ms Stephens says it was as a result of this fencing removal that she had the pencil pines planted.
30 In a letter of 22 May 2006, Mr Pattison proposed “a solar electric remote controlled gate”. He offered to pay half. (PCB 51) Mr Brett responded, stating that he and his wife “were perfectly happy with our gate the way it is”. He continued, “I would like to remind you that we own the land and that we find your persistence in exploiting your right of carriageway offensive and an invasion of our privacy”.
31 In October 2007, according to Ms Stephens, she noted that the pencil pines seemed to be browning. She investigated and saw a system whereby, upon her observation, Mr Pattison was arranging for saltwater to be introduced across the title boundary so as to poison the trees. She and her husband made a complaint to Victoria Police.
32 Mr Pattison said that he had been using salt, but for the purpose of killing weeds on his own property. Ms Stephens and Mr Brett were, and are, unconvinced by that explanation. Ultimately, the police did not proceed with a prosecution. On one occasion, Mr Pattison was brought to the police station and fingerprinted but no charge was ever laid against him. Ms Stephens produced photographs which she said showed a subsequent attack on the pines by spreading salt on their foliage.
33 An attempt to resolve the dispute between the neighbours by mediation at the Dispute Settlement Centre of Victoria (Department of Justice) failed in the second half of 2008.
34 On another occasion, another resident of Bass Street called the fire brigade to extinguish a fire which had broken out in a brush fencing panel toward the Bass Street end of the battle axe. The fire was caused by hot ashes which Mr Pattison admits he spread in the immediate vicinity on his side of the title boundary. This was with a view, he said, to fertilise and enrich the ground.
35 Further correspondence ensued between the parties, including correspondence from the plaintiff’s present solicitor. This proceeding was commenced in March 2015.
36 Section 72(3) of the Transfer of Land Act 1958 provides that when a right of carriageway is created or reserved “in any folio of the Register” the words set out in the Twelfth Schedule to the Act would be regarded as incorporated. That Schedule provides as follows:
“Together with full and free right and liberty to and for the registered proprietor for the time being of the land herein described [or hereby transferred or as the case may be] or any part thereof and his tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated [and coloured brown] on the said map [or plan of subdivision].”
The plaintiff’s contentions
37 The plaintiff was represented by Mr Gillies of counsel.
38 Mr Gillies turned first to the issue of remedy. He submitted that his client should have injunctive relief. An injunction was necessary because damages might be only nominal. The plaintiff, he said, could not keep returning to court to enforce his rights. It was therefore appropriate that an injunction be granted. He referred to Patel v W H Smith (Eziot) Limited [1987] 2 All ER 569, 573.
39 He submitted that, subject to the terms of the grant, a right of way could be used in the manner authorised by the grant for any purpose and to any extent required for the enjoyment of the dominant tenement. He referred to Timpar Nominees Pty Ltd v Archer [2001] WASCA 430. Next, he referred to some six propositions as to the law of easements laid down by Brereton J in Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988. He submitted that his Honour considered that allegations of substantial interference with an easement based on the installation of a gate had to be determined upon the individual facts of each case. In some cases the installation of a gate could constitute a considerable inconvenience. A consideration in that respect was:
“The steepness of the way in the vicinity of the gate gives an added difficulty to opening and shutting them, and I think that it is an unreasonable restriction on the rights created by the easement to require persons lawfully using it to open or shut the gates”.
40 The last of the six propositions adopted by Brereton J at [20]-[27] was, according to Mr Gillies:
“Sixthly, in a case of a private right of way such as the present one, only a substantial obstruction – that is to say a ‘real substantial interference with the right of way’ – is actionable. [Pette v Parsons [1914] 2 Ch 653; Powell v Langdon (1944) 45 SR (NSW) 136 at 139 (Roper J); Keffe v Amor [1965] 1 QB 334 at 347 (Russell LJ); Prospect County Council v Cross, 608-610. However, substantial interference can be occasioned not only by physical impediment, but also by the resistance of a state of affairs which creates a danger, or a risk, or a cost associated with user, such as to present an impediment to the dominant owner’s freedom of decision to exercise, or to continue to exercise the right of way. [Prospect County Council v Cross, 610].”
41 Mr Gillies submitted that, whilst a servient owner might construct a gate across a right of way, “a dominant owner must be able to open the gate from his or her side”. He referred to McCrow v Chaplain [2009] NSWSC 965 and Gohl v Hender [1930] SASR 158, 162 per Napier J, Walker v Espi [2003] NSWSC 559.
42 He submitted that the plaintiff, as dominant owner, had a right not only to repair the road but to make the road and, therefore, to perform such works that were reasonably necessary for the exercise and enjoyment of the easement. He referred to the decision of Habersberger J in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507, 525 [88] and the passage from the Judgment of Salmond J in Spear v Rowlett (1924) 43 NZLR 801, 803 which was relied upon by Habersberger J in the Mantec case. Newcomen v Coulson (1877) 5 ChD 133, 143 per Jessel MR.
43 Mr Gillies conceded that the right to carry out works was not unlimited but extended only to what was reasonable and necessary for the effective and reasonable exercise and enjoyment of the easement. He referred to Zenere v Leate (1980) 1 BPR 9,300, 9,304 and Lawrence v Griffiths (1987) 47 SASR 455, 488.
44 He said that the dominant owner was entitled to select the contractor who would build the carriageway and the form of paving – Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 at [28]. Therefore, submitted Mr Gillies, it was not incumbent upon the plaintiff to give full particulars to the defendant of work to be conducted in advance. He referred to Bland v Levie [2000] NSWSC 161 per Young J (as he then was). He referred generally to the decision of his Honour Judge Cosgrave in Bourke v Creece [2014] VCC 970.
The defendant’s contentions
45 Mr Alexander appeared on behalf of the defendant. He referred first to the terms of the Twelfth Schedule to the Transfer of Land Act 1958. Next, he referred to a summary of the law as to rights of way by Kenneth Martin J in Staley v Pivot Group (No 6) [2010] WASC 228. The decision of Balmford J in Baypeak Pty Ltd v Lim [2005] VSC 77 at [99] and the decision of Hall J in Davidson v Elkington [2011] WASC 29 at [82].
46 In light of these authorities, Mr Alexander submitted the test for the court to apply was to consider:
(a) is there a “substantial interference with the …..enjoyment of the carriageway”;
(b) a substantial interference is to be determined by reference to:
· the degree of interference, common sense, the ideas of reasonable people, the nature of the land, character, duration and time of interference and its effect.
47 Mr Alexander noted the plaintiff’s contentions that he could not traverse the driveway “without causing damage to his car or the vegetation”. He had not been permitted to install a turning circle or an electric gate at the Bass Street frontage and was not permitted a passing bay. According to Mr Alexander, the plaintiff’s case assumed that he had a right of ownership over the battle axe land rather than merely a right to use it. He said that the defendant was entitled to do as she pleased on the servient tenement as long as that did not interfere with the reasonable right of carriageway. He referred to Davidson v Elkington at [87] per Hall J. The plaintiff, in contrast, did not own the land. He was not entitled to do as he wished on it. Rather, he had only a right of carriageway.
48 He submitted that the defendant herself used the carriageway regularly. Common sense dictated that there can be no obstruction along the length of the driveway where both parties need it for that purpose.
49 According to Mr Alexander, this was a short, private road used as a driveway and there was “no discernible reason why a reasonable person would require [a passing bay or an electrified gate] to use the driveway”. He said that according to Davidson v Elkington, there was no obligation on the defendant to maintain the full width of the easement so long as there was no substantial interference with the reasonable exercise of the right of way.
50 The essential question then is whether the rock edging, the garden beds and the gate substantially interfered with the reasonable use of the right of way. He submitted that a demonstration conducted at the view, which was held prior to the commencement of trial, showed that the driveway was usable. The demonstration also showed that the plaintiff could drive his car into and out of the driveway. The burden of proof was on the plaintiff to show that a turning circle was necessary.
51 The defendant submitted that a turning circle was unnecessary. The plaintiff could drive his car in and out without it. A turning circle would be required only if use was impossible.
“The fact that the plaintiff has used the land for 15 years indicates that a turning circle is unnecessary. It is submitted that expert evidence would also be required to prove the utility of a turning circle.”
52 As to the proposed electric gate, Mr Alexander submitted that the manual gate was quite satisfactory and there was no reasonable requirement for an electric one. He referred to Johnstone v Holdway [1963] 1 QB 601 where the English Court of Appeal found there to be no substantial interference with the enjoyment of a right of way where the owner of the servient tenement directed a gate with a spiked chain and a combination lock, but made the combination available to the dominant tenement owner.
53 Likewise, he submitted, there was no reason to have a passing bay. The evidence showed only two occasions in 15 years where both parties attempted to use the driveway at the same time.
54 He submitted that the application should be dismissed.
Conclusions
55 Implicit in the plaintiff’s case is the view that he is entitled to use every part of the six metre wide strip forming the handle of the battle axe as a driveway. It is only upon this basis that the wholesale removal of all of the garden beds could be regarded as his legal entitlement.
56 Not only was I not taken to any authority which supported such a view of the law of easements, but the defendant referred me to authorities which pointed in the opposite direction. In Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228, the owners of the dominant tenement brought an action in private nuisance seeking declaratory relief entitling the plaintiff inter alia to:
“Construct a half metre wide gravel shoulder to the north of the gravel road in the western area, with the shoulder’s northern-most edge running east/west being no closer to the northern boundary Right of Way in the western area than 1.5 metres…”. [82]
57 The easement of way designated was of 10 metres width. It had a gravel road within its area generally of 5.21 metres width but including what were described as “pinch points” and historic wood area narrowing the road to 4.98 metres in some places and 3.86 metres in others. The narrowest “pinch point” was 3.72 metres. [71]
58 Despite the particular narrowing and the fact that the gravel road occupied scarcely more than half the entire width of the easement, Kenneth Martin J dismissed the plaintiff’s application. Again, in Davidson v Elkington, Hall J dismissed an application relative to a right of way. His Honour rejected a contention that there had been an interference with the right of way even despite the fact that a shed had been constructed on part of the area affected by the easement. In his Honour’s view, the shed did not obstruct the enjoyment of the right of way. At [86] his Honour said:
“There is no obligation on a servient owner to maintain the full width of the easement so long as there is no substantial interference with a reasonable exercise of the right of way.”
59 Mr Gillies submitted that neither Staley’s case nor Davidson v Elkington applied to the facts of the present case. As to Staley’s case, he said:
“Here the Defendants sought to widen a roadway that had been existent for many years. In other words enlarge the status quo. That is compared to circumstances here where the easement has been narrowed against the wishes of the Plaintiff and the status quo narrowed.”
60 I am unable to agree that the reasoning of Kenneth Martin J was dependent upon this point of distinction. As to Davidson v Elkington, Mr Gillies said that there was no contention that the easement should in any way be modified in this case. So much may be accepted; but, again, in my view, the approach of Hall J was inconsistent with there being an entitlement to use every part of the area affected by the easement of carriageway for the purposes of a road or track.
61 In Mantec Thoroughbreds Pty Ltd v Batur 529 [102]-[105], in the course of adjudicating upon a fairly complex fact situation, Habersberger J rejected the suggestion that the owner of a servient tenement was obliged to maintain an easement of way passable for its full width. In particular, he determined that certain fences erected by the owner of the servient tenement on the easement did not constitute substantial obstructions in the particular circumstances of the case.
62 According to Gale on Easements (19th edition) at paragraph 9-116:
“There is a distinction between a private and a public right of way, but the former is not necessarily, as the latter is, over every part of the land along which the right exists. The grant of a private right of way along ‘the passage coloured blue’ on a plan confers, it has been said, a prima facie right to the reasonable use of every part of the passage, but an action for disturbance will not lie unless there is a real substantial interference with the enjoyment. Accordingly, where there was granted to the plaintiff a right to use a 40 foot road, it was held that he could not maintain an action in respect of a portico which projected two feet into the carriageway but left ample space for the convenient enjoyment by the plaintiff of the way. [Clifford v Hoare (1874) LR 9 CP 362; West v Sharp (2000) 79 P&CR 327. See also Miller v TG Dobson & Co Ltd (1971) 220 EG 1595.] On the other hand, where there was a right of way over a driveway nine metres wide the servient owner was not entitled to reduce the width to 4.14 metres. [Celsteel Ltd v Alton Householdings Ltd [1985] 1 WLR 204]…The question is whether practically and substantially the right of way can be exercised as conveniently as before. [Hutton v Hamboro (1860) 2 F&F 218; Robertson v Abrahams [1930] WN 79].”(439-440)
63 What then does the evidence disclose as to the practical operability of the right of carriageway as far as Mr Pattison, as the owner occupier of Lot 12A, is concerned?
64 In the course of the view conducted before the commencement of trial, my Associate, Ms Lawson, took the wheel of the court car and traversed the driveway from Bass Street to the entry point to 12A adjacent to Mr Pattison’s garage without difficulty. She was able to swing the vehicle through the acute angle necessary to enter the rear portion of 12A and park it facing to the south-west in the garage. Exiting via the driveway proved more problematic. She completed a two-point turn in the rear yard of 12A and exited onto the driveway facing forward. She experienced significant difficulty in swinging the right hand front corner of the car, so as not to strike the granite rock border opposite the exit onto the driveway. Having avoided this minor collision with substantial effort, she could not avoid clipping the granite edging on the north-western corner with the rear tyre of the vehicle.
65 I reject the submission made on behalf of the defendant that the defendant’s ability to use the driveway without difficulty demonstrates the lack of any substantial obstruction. The defendant’s course along the driveway simply entails exiting the handle of the battle axe onto the main portion of number 12. There is no necessity for the defendant to negotiate the acute angle into or out of the area immediately in front of Mr Pattison’s garage.
66 In my view, the stone edging in the vicinity of the entrance point to Mr Pattison’s backyard and garage does constitute a substantial interference with his rights as the dominant tenement owner. This problem has been evident for over a decade (see [21]). The existence of the garden beds more generally along the length of the driveway does not.
67 Again, I reject the suggestion that the unlocked gate at the Bass Street frontage to the driveway constitutes a substantial obstruction to Mr Pattison’s right of carriageway as the dominant tenement owner. Opening and closing gates can be tedious. I accept that in the interests of maintaining security, both for children and animals, it is not unreasonable for Ms Stephens and her family to require the gates (both to Bass Street and from 12A onto the battle axe handle) to be maintained closed when the driveway is not actually being used for Mr Pattison or one of his licensees to pass or repass.
68 I accept that an electric gate would be more convenient at the Bass Street frontage, as far as Mr Pattison is concerned, particularly having regard to his advanced years. Nevertheless, manually operated gates are so common in the community, both in rural settings and in suburban ones, that I cannot accept that the present arrangement is an unreasonable obstruction. In certain weather conditions, particularly after rain, gravel can build up under the gate requiring some element of pushing, or a requirement to clear the gravel, before the gate will swing. This is not, however, a situation where a gate in poor repair has sagged and become chronically difficult to open.
69 Again, I reject the suggestion that there is a need for a passing bay. This is a short driveway and there was only one very clear incident of conflict deposed to in the evidence. A couple of other instances were mentioned in passing. It is quite reasonable for these matters to be adjusted by the use of common sense, with the one driver or the other drawing back or refraining from entering the driveway until it is clear.
70 There was an open offer made to resolve this proceeding by the defendant’s solicitors on behalf of their client in a letter of 24 July 2015. Without an admission of liability, it was proposed that a 10 metre section of the garden bed opposite the exit onto the battle axe driveway from 12A should be cleared back to the edge of the easement. In my view, this modification of the present state of affairs is necessary to remove the unreasonable obstruction which the granite stone edging at that point now creates.
71 In addition, the granite stone edging should be moved back and cleared some 600 millimetres from the southern edge of the exit point from 12A to the battle axe driveway to obviate the difficulty which Ms Lawson encountered with the rear tyre of the vehicle she was driving at the view. No other modification to the present state of affairs is required to remove the obstruction of the easement of carriageway.
72 I will direct that, within 14 days of this day, the parties bring in short Minutes to give effect to these orders and to deal with the issue of costs. If these matters cannot be agreed upon, it will be necessary for the parties to arrange a time with my Associate for further argument as to the form and content of the final order. Costs are reserved at this stage.
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