S S & M Ceramics Pty Ltd v Yeung, Lee
[1995] QSC 18
•1 March 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1533 of 1994
[S S & M Ceramics Pty Ltd v. Yeung, Lee & Ors]
BETWEEN:
S.S. & M CERAMICS PTY LTD
A.C.N. 006 082 908
Plaintiff
AND:
YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE,
FRANK LEE, JAMES LEE & PETER LEE
Defendants
JUDGMENT - DERRINGTON J.
DELIVERED: 1 March 1995
CATCHWORDS: Easement - Right of Way - Right "to pass and repass" - Whether includes right to park vehicles for loading and unloading. Commercial premises in central business district - Area available on dominant tenement at time of grant later built on.
COUNSEL:Mr W. Sofronoff QC for the Plaintiff
Mr J.R. Webb for the Defendants
SOLICITORS: Thynne & McCartney t/a for Vandeleur & Todd for the Plaintiff
Mullins & Mullins t/a for Arnell & Cooper for the Defendants
HEARING DATE: 27 January 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1533 of 1994
[S.S. & M Ceramics Pty Ltd v. Yeung Yau Kin & Ors]
BETWEEN:
S.S. & M CERAMICS PTY LTD
A.C.N. 006 082 908
Plaintiff
AND:
YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE,
FRANK LEE, JAMES LEE & PETER LEE
Defendants
JUDGMENT - DERRINGTON J.
Delivered the 1st day of March 1995
This is an application for a declaration and consequential injunctions by the plaintiff as the owner of servient land against the defendants as owners of the dominant land relating to the extent of the rights of the defendants under an easement of right of way.
It follows a common form in granting to the grantee the right "for it and its tenants agents servants visitors customers and licenses of any tenant of the grantee in common with all others having the like right at all times hereafter on foot or on horseback by day or by night with or without motor-cars trucks horses carts carriages or other vehicles of any description for all purposes connected with the use and enjoyment of the said dominant tenement by the grantee for the purpose of any business being carried on on the said dominant tenement by the grantee or by its tenants agents servants or licensees to pass and repass in or through over or along the said servient tenement for all purposes connected with the use and enjoyment of the said dominant tenement to the end and intent that the said grantee shall observe and perform all the terms covenants and conditions herein contained and on its part to be observed and performed and to hold the said right of way hereby created and granted as appurtenant to the said premises of the grantee."
The simple question here is whether the right "to pass and repass" includes the right to park on the easement area vehicles attending the dominant tenement via the easement for a period reasonably sufficient to load or unload them. There is no complaint that the time taken for this purpose is excessive in that regard. The plaintiff's claim is only that the rights granted under the easement do not permit of any parking of vehicles upon it for that purpose.
The defendants conduct a fruit and vegetable shop. Their land is situated in the business centre of Innisfail, which consists entirely of commercial premises. The easement runs from a side street to the rear of the dominant tenement. When the easement was granted to the original grantee on 24 November 1955, much the same general conditions prevailed, but there was sufficient space for vehicles going there via the easement to park on the dominant tenement for loading purposes. However since that time the defendants have erected structures on that vacant area which prevent or at least impede this. Consequently vehicles now to park on the easement for that purpose.
It is therefore probable that at the time of the grant it was not physically necessary to do that in order to service the premises in this way, and it is this on which the plaintiff exclusively relies. The defendants concede that if for that reason the grant does not extend so far as to accommodate this activity, then they could not now found their claim on present necessity produced by their own act in order to enlarge the rights as originally granted. With respect, this is perfectly correct.
While the reference in the grant merely to "pass and repass" would alone and in its ordinary meaning seem to be limited to the activity of passage, except perhaps for emergency stops or similar features, the thrust of the authorities is firmly towards a larger picture which includes elements such as the situation of the parties, the situation of the land and the purpose of the grant serving the business of the holder of the dominant tenement. The latter mentioned feature is an important and relevant consideration here. The reference in the grant to workmen fortifies this: cf. Bulstrode v. Lambert (supra) at 731. This purpose is only served reasonably if the accommodation of stationary vehicles for the purposes of loading and unloading to service the business is provided for. There is really no dispute by the applicant of the force of this in the present case. As it has been indicated, its only point is the claim that, because at the time of the grant there was ample space for such vehicles to park on the dominant tenement for loading purposes, there should be no implication read into the grant allowing parking for that purpose on the easement.
Surprisingly the authorities, such as there are, do not directly address this point. There are several cases where the factor of practical necessity has been used to justify such an implied extension of the grant, but the discussion has been confined to the general necessity to service the use of the dominant tenement. There has been no reference to any necessity to park on the easement by reason of the absence of any parking area on the dominant tenement. In some of these cases where the absence of such alternative facility made it necessary to park on the easement, the discussion was simply directed to the general necessity to allow goods to be transported to the dominant tenement in order to enable its owner to enjoy the full benefit of the right of way: cf. Elliott v. Renner (supra). In no case was any reliance placed on the absence of parking on the dominant tenement. See Cannon v. Villars (1978) 8 QBD 415; Bulstrode v. Lambert (1953) 2 All E.R 728, 733; Grinskis v. Lahood (1971) NZLR 502; Elliott v. Renner (1928) St.R.Qd 172. In others of these cases, e.g. McIlwraith v. Grady where, as here, the grantee could have parked on the dominant tenement at the time of the grant, there was no such necessity. The discussion was still couched in the same broad terms of necessity, and the existence of parking space on the dominant tenement was not discussed as a relevant feature. This more general approach appears to be deliberate, with good reason, as will be explained shortly.
In one of the earliest cases, Hawkins v. Carbines (1857) 27 LJ Ex 44, Pollock CB said: "The defendants have a right to make use of the way for all purposes for which persons ordinarily avail themselves of such a right, whether to pass and repass, or to load and unload . . .". And in answer to the proposition that they could have unloaded at the front gate of the easement, apart from reference to the position at the time of the grant, he rhetorically asked why they should do so when it may often be inconvenient.
In Deanshaw v. Marshall (1978) 20 SASR 146, Mitchell J adopted the approach of Napier J in Gohl v. Hender (1930) SASR 158 in likening the rights of a grantee of a general right of way such as this to those of the public in the use of the highway; that is, among other things, to park on it for loading purposes providing there is no unreasonable obstruction of others. And in Graham v. Philcox (1984) QB 747, such an implied extension was even conceded in argument before the Court of Appeal, though in that case there was no alternative parking on the dominant tenement and so it is of little value in this discussion, except that the courts mention of the concession speaks in terms consistent with a general broad rule.
All of this shows that the whole tenor of the reasoning in the cases is implicitly that if transport of goods to and from the dominant tenement should be reasonably contemplated from the circumstances then, special features of the grant aside, the proper enjoyment of the right of way predicates an ordinary ancillary right to park on the easement for loading purposes; and that therefore the availability of parking on the dominant tenement is not particularly relevant.
Of course, this approach may be displaced by special features of the grant or of other surrounding circumstances. The grant confers all that is incidental to or necessary for the enjoyment of the right, but only that: Ex parte Purcell (1982) 47 LGRA 433, 441; Cannon v. Villars (1878) 8 Ch.D 415, 420-421, but the factor of necessity has a variable application depending on the scope of the factual context. For example, what is not necessary in the short term may be necessary if the range of enquiry is extended to include a longer time-span. This is clear enough, but the difficulty in its application is central to the present dispute.
In determining this it is necessary to look at the location of the land, the nature of both the dominant and servient tenements, and, among other things, the nature of the use to which the former lends itself within the reasonable contemplation of the parties. Relevant to this last feature is the duration of the grant, and where, as here, it is indefinite, this may be significant.
All of the authorities on the point are clear that the factual situation at the time of the grant controls its construction (Ex parte Purcell supra at 441; Cannon v. Villars (supra) 420; McIlwraith v. Grady (1968) 1 QB 468, 476; St Edmondsbury & Ipswich Diocesan Board v. Clark (No.2) (1975) 1 WLR 468; Todrick v. Western National Omnibus Co (1934) Ch. 190, 207-208; Jelbert v. Davis (1968) 1 All ER 1182, 1185; Bulstrode v. Lambert (1953) 2 All ER 728, 730; Callard v. Beeney (1930) 1 KB 360; Lord Waterpark v. Fennell 7 HL Cas 684); but it would be a mistake to interpret this as saying that the relevant range of circumstances is to be limited to the state of the premises or the activity existing at that time. The factual situation will include the potential for future changes, having regard, among other things to the nature and location of the premises as they might be affected by the duration of the easement.
Bulstrode v. Lambert (supra) is a strong example of this for at the date of the grant, which was found according to its language to admit the later use and parking of pantechnicons on the easement, the physical state of the easement admitted little more than pedestrian traffic. While, as it was observed in the St Edmondsbury case there were special features about this case, in the result the principles applied were standard.
The effect of the circumstances at the time of the grant themselves will vary, depending on their nature, their relevance to the construction of the grant, and the existence of any terms of special influence in the grant itself: See the discussion by Megarry J (as he then was) in the St Edmondsbury case. But this is subject to allowance, in appropriate circumstances, for future change in accordance with what might have been reasonably contemplated by the parties.
The authorities show that in the absence of a specific reason to the contrary the physical state of the dominant tenement at the time of the grant will not restrictively control the uses permitted under it, and a liberal approach will reasonably be adopted to permit of changing circumstances, particularly where the duration of the grant is indefinite: Grinskis v. Lahood (1971) NZLR 502, 508-9. In White v. Grand Hotel Eastbourne Ltd (1913) 1 Ch 113, Robinson v. Bailey (1948) 2 All ER 791 and Jelbert v. Davis (1968) 1 WLR 589, it was held that changes in the user of the dominant tenement was immaterial to the construction of the terms of the grant, which would be construed so as to accommodate them, providing that they were within reasonable contemplation. See also Keefe v. Amor (1965) 1 QB 334, which, however, was another special case.
The prospects of a change so violent in its results upon the servient tenement that it should be said to be beyond anything that should have been contemplated by the parties will not come within the range of this contemplation: Todrick v. Western National Omnibus Ltd (1934) Ch. 561, Jelbert v. Davis (supra); Malden Farms Ltd v. Nicholson (1956) 3 DLR (2d) 236. But the relevant considerations in this case are not of that order. In respect of an indefinite easement for the benefit of commercial premises in a city block, at the time of the grant the parties would have contemplated that building structures on the dominant tenement would not be altered so as to take them to the tenement's boundaries. The prospect of an increasing value of the land as the commercial area developed was realistically foreseeable as an impetus to such a change. Consequently in order to accommodate that potential situation the inference of necessity for parking on the easement would have been drawn at that time; and it would have operated immediately despite the absence of immediate necessity.
It is a reasonable argument, as the plaintiff advances it, that if the right to park is implied as a matter of necessity for the full enjoyment of the grant, then the absence of such necessity removes the foundation of the right. Its unjustified assumption, which is at the centre of the dispute, lies in its reliance on the temporary state of affairs at the time of the grant as controlling the question of necessity.
Accordingly, while factual features such as that might sometimes have the effect of diminishing the usual implication from such a grant, (cf. Cannon v. Villars (supra) per Jessel M.R. at 420) it has no effect here because it is not the complete relevant factual picture.
An example of such restrictive implication might arise where the easement consists of a right of way over a narrow passage, being the sole means of access to a busy common loading area permanently servicing both the holders of the dominant and servient tenements. In such a case the inconvenience caused by the obstruction of the narrow part and the permanent availability of an alternative parking area might together well lead to an implication against any grant of a right to load in the narrow passage. Cf. Cannon v. Villars (supra) esp 422-3.
A similar implication in a different context appears in Ex parte Purcell (supra) at 441, where the grantor's right to build over an easement was held not to be restricted by the need to make allowance for the future passage of very large machinery of the grantee. This was because the permanent narrowness of the easement implied the exclusion of any such use as part of the grant. However, in referring to the need to construe the grant in the light of circumstances existing at the time of the grant, the reasoning in that case did not rely on the existing size of the relevant machinery at the time of the grant. Clearly the possibility that machinery of the future would be much larger was a potential fact at the time of the grant, and it was taken into account. That is why in order to reach the conclusion that the grant should not be interpreted as providing for larger machinery, it was necessary to rely on the narrowness of the passage. By parity of reasoning in the present case, the temporary state of the dominant tenement at the time of the grant is not decisive.
It will therefore be seen that even if the availability of a parking area off the easement at the time of the grant were a relevant consideration, if attention is properly paid to the total position at the time of the grant, this would be no ground for modifying the usual implication that the grant of a right of say, to include vehicles, carries with it a right to load and unload on the easement. But although this usual implication might be displaced by features of the grant or background circumstances to the contrary, the trend of the cases suggests that alternative parking at the time is not one of them. This was the proposition which seems to have been implicitly accepted in McIlwraith v. Grady (supra).
For these reasons, the grant should be construed in the broad fashion which has been described above, notwithstanding the absence, at the time of the grant, of any necessity for vehicles to stand on the easement to take on or discharge cargo.
The application should be dismissed with costs.
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