Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia - [2016] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SHOGUNN INVESTMENTS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2016] WASC 42

CORAM: KENNETH MARTIN J

HEARD: 1 SEPTEMBER 2015 AND BY FURTHER SUBMISSIONS OF 8 SEPTEMBER 2015

DELIVERED : 12 FEBRUARY 2016

FILE NO/S: CIV 1383 of 2015

BETWEEN: SHOGUNN INVESTMENTS PTY LTD
Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Preliminary issue by consent of parties - Private nuisance - Substantial interference with property right alleged - Removal of right-hand turning lane in median strip - Access to commercial car parking location said to be interfered with - Economic loss

Legislation:

East Perth Redevelopment Act 1991 (WA) (Repealed)
Land Administration Act 1997 (WA)
Metropolitan Redevelopment Authority Act 2011 (WA)
Public Transport Authority Act 2003 (WA)

Result:

Preliminary issue answered

Category: A

Representation:

Counsel:

Plaintiff: Mr M D Cuerden SC & Mr D R Chandler
Defendant: Mr P D Quinlan SC & Mr N J Damnjanovic

Solicitors:

Plaintiff: Glen McLeod Pty Ltd
Defendant: State Solicitor's Office

Case(s) referred to in judgment(s):

Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51; (1990) Aust Torts Reports 81-027
Antrim Truck Centre Ltd v Ontario (Minister of Transportation) [2013] SCC 13; (2013) 1 SCR 594
Argyle Motors (Birkenhead) Ltd Appellants v Birkenhead Corporation [1975] AC 99
Arinson Pty Ltd v City of Canada Bay Council [2015] NSWCA 199; (2015) 208 LGERA 418
Attorney-General v Conservators of the Thames (1862) 71 ER 1; (1862) 1 Hem & M 1
Attorney-General v PYA Quarries Ltd [1957] 2 QB 169
Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J‑Corp Pty Ltd (1993) 42 FCR 452
Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Worker's Union [2001] NSWSC 826; (2001) 108 IR 107
Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201
Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138; (1968) 15 LGRA 338
Benjamin v Storr (1874) LR 9 CP 400
Bradford Corporation v Pickles [1895] AC 587
Caledonian Railway Company v Walker's Trustees (1882) 7 App Cas 259
Cerini v Minister for Transport [2001] WASC 309
Cobb v Saxby [1914] 3 KB 822
Cohen v City of Perth [2000] WASC 306; (2000) 112 LGERA 234
Cusack v Harrow London Borough Council [2013] UKSC 40; [2013] 1 WLR 2022
Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466
Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342; (2001) 118 LGERA 117
Eastern Counties Railway Company v Dorling (1859) 5 CBNS 821
Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270
Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
Fritz v Hobson (1880) 14 Ch D 542
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40
Hunter v Canary Wharf Ltd [1977] AC 655
Kine v Jolly [1905] 1 Ch 480
Lyon v Fishmongers Co (1876) 1 App Cas 662
Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Marshall v Blackpool Corporation [1935] AC 16
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243
Moto Hospitality Ltd v Secretary of State for Transport [2008] 1 WLR 2822
Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343
NSW Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256
Oldham v Lawson (No 1) [1976] VR 654
Onus v Telstra Corporation Ltd [2011] NSWSC 33
Original Hartlepool Colliers Company v Gibb (1877) 5 Ch D 713
Re City of Windsor and Larson (1980) 29 OR (2d) 669; 114 DLR (3d) 477
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98
Rose v Groves (1843) 5 Man & G 613; (1843) 134 ER 705
Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104
Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760
Smith v Wilson [1903] 2 IR 45
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
St Pierre v Ontario (Minister of Transportation and Communications) [1987] 1 SCR 906
Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509
The Queen v Loiselle [1962] SCR 624
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106
Trevett v Lee [1955] 1 WLR 113
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479
Walsh v Ervin [1952] VLR 361
WH Chaplin & Co Ltd v Mayor of the City of Westminster [1901] 2 Ch 329
Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1
Wu v Body Corporate 366611 [2014] NZSC 137

TABLE OF CONTENTS

Introduction
The parties and their interests
The consensual preliminary issue
The limits of the preliminary issue exercise
Agreed facts: ASOC paragraphs 1 - 19
Pictures and Diagrams
The nature of the interference complained about
Joint Statement of (More) Agreed Facts (JSAF)
The precise nature of the private nuisance interference complained of by Shogunn
Surrounding legislation and underlying regulatory framework pertinent to the Wellington Street underground bus port development application and approval
Some preliminary observations upon the underlying facts
Plaintiff's 'six facts'
The tort of private nuisance: the elements
A rare, unique and unusual case: two unusual features

Unusual feature one: no emanations from defendant's land
Second unusual feature: no neighbouring land of a defendant

Analysis of private nuisance cases

Picketing cases generally: similarities and differences

Differences

Similarities

Public and private nuisance: a crucial distinction
The private nuisance cases
Private nuisance case law: the Constrained Access cases

(a) PTA: Attorney-General v Conservators of the Thames (1862) 71 ER 1; (1862) 1 Hem & M 1

(b) PTA: WH Chaplin & Co Ltd v Mayor of the City of Westminster [1901] 2 Ch 329

(d) Shogunn: Lyon v Fishmongers Co (1876) 1 App Cas 662

(e) Shogunn: NSW Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256

Private nuisance case law: the Picketing cases

(a) Shogunn: Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106

(b) Shogunn: Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760

(d) Shogunn: Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Worker's Union [2001] NSWSC 826; (2001) 108 IR 107

Private nuisance case law: miscellaneous private nuisance cases

(a) Shogunn: Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466

(b) Shogunn: Onus v Telstra Corporation Ltd [2011] NSWSC 33

(d) PTA: Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342; (2001) 118 LGERA 117

(e) PTA: Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104

(f) PTA: Elston v Dore [1982] HCA 71; (1982) 149 CLR 480

Parties' concluding submissions
Shogunn's arguments

Shogunn's case: interference with access
Shogunn's case: the 'Picketing' cases
Shogunn's case: the characterisation of Shogunn's interest

Opposing submissions: the PTA's case
The determination
Concluding remarks

KENNETH MARTIN J:

Introduction

An action in private nuisance is brought by the plaintiff, Shogunn Investments Pty Ltd (Shogunn), against the defendant, the Public Transport Authority of Western Australia (PTA). There arises for my determination, by consent of the parties, a preliminary issue over the plaintiff's commercial car parking location within the Perth central business district (CBD) and the 'substantial interference' element of the tort of private nuisance.

The parties and their interests

Shogunn operates an underground commercial car parking business from premises that it leases at the bottom of the Raine Square building, in the Perth CBD.
The PTA is a body corporate established under the Public Transport Authority Act 2003 (WA) (PTA Act).
The main function of the PTA, by s 12(1) of the PTA Act, is to: '… provide and operate safe and reliable public passenger transport services, either directly or through persons with whom it contracts'.
Shogunn seeks a permanent injunction within its litigation, on the basis of it holding a valid cause of action in private nuisance, to restrain the PTA from removing an existing vehicular traffic turn scenario, out of the middle of Wellington Street travelling to the lower levels of Raine Square, where the plaintiff's commercial car parking location is based.
There manifests, or has manifested until recently, in Wellington Street, a right-hand turn option available to east‑bound vehicles approaching Raine Square from the west of the CBD. There presents (or presented) within the middle of Wellington Street, at roughly about the front of the north side of the Raine Square Building, a road space 'gap' in the median strip, plus a dedicated right-hand turning lane from the east in the approach to that 'gap' in the median strip. There are, or were, as well, some accompanying road and median strip markings, all facilitating an option for the making by a vehicle of a right-hand turn at that point from the east-bound lanes of Wellington Street, via the median strip, then travelling across the west‑bound lanes of Wellington Street and, ultimately, across the front pavement and into the entrance to Shogunn's bottom floor and basement commercial car parking facility, operative to patrons at the base of Raine Square (the RHTRS).
The RHTRS found in the road and median strip in Wellington Street allowed a direct vehicle access to the entrance to Shogunn's Raine Square commercial car parking location, for traffic approaching the CBD from the west, via the east-bound lanes of Wellington Street.
In addition to the permanent injunction, Shogunn also seeks damages.

The consensual preliminary issue

It is in such litigious circumstances that at a strategic conference for this action, on 26 June 2015, the parties requested a one-day hearing for the Court to determine by consent the following proposed preliminary issue:
Assuming for the purposes of the determination of this question of law and not otherwise:
(i)the facts pleaded in paragraphs 1 to 19 of the amended statement of claim; and
(ii)that as a consequence the permanent removal of the Right Hand Turn will substantially diminish the suitability of the Premises for use as a public car parking facility (as each of those terms are defined in the amended statement of claim),
is the permanent removal of the Right Hand Turn as a consequence of the works to be carried out by the defendant as pleaded in par 8 of the defence capable of interfering with the plaintiff's use and enjoyment of its leasehold interest in the Premises, or its rights over the Premises, sufficient in law to ground a cause of action in private nuisance?
I accepted the parties' proposal and their agreed issue was listed for argument on the basis of facts set out in Shogunn's pleaded statement of claim (ASOC) - they being agreed only for the purpose of the issue determination exercise. I shortly set out below paragraphs 1 to 19 from the ASOC.

The limits of the preliminary issue exercise

The heart of the preliminary issue is, of course, only one of two key elements in a private nuisance cause of action addressing the need for a plaintiff to establish a 'substantial interference' with a defendant's enjoyment of their land. Hence, the agreed issue does not address the other vital element of the tort of private nuisance, namely the unreasonableness of an interference to land, once proven. An essentially factual and evaluative determination upon the second key element would need to be resolved at a trial, if the first element (ie, substantial interference with land) is made out.
Since the PTA as defendant conceptually refutes the existence in law of any interference with Shogunn's land, an early determination upon the satisfaction of the first element, namely, as to the establishment or otherwise of a 'substantial interference' with Shogunn's enjoyment of its land, preceding and possibly avoiding (if the PTA is right) a full scale trial of some likely duration, carries with it a potential to be determinative of the whole action once and for all, for one party at least. Hence, a determination favouring the PTA on this isolated interference issue could help to save some resources that might be otherwise wasted unnecessarily in running a full scale trial, if the PTA's legal arguments as to the absence of any relevant 'interference', in law, for the purpose of Shogunn making good a cause of action in private nuisance, are ultimately accepted.
As framed and argued, I am asked to assume, just for the purpose of resolving the preliminary issue, that the nature of the alleged interference with the defendant's land in question as complained about in this case, would be substantial, if some relevant interference for the purposes of the law of private nuisance can be shown by the plaintiff.
The defendant, of course, still formally asserts, on a plenary basis and longer term if this comes to pass, that the substantiality aspect needs necessarily to be proven as regards interference, within Shogunn's private nuisance cause of action. It maintains substantiality is lacking, in the particular factual matrix applicable to this dispute if the matter goes to trial and that question will be a matter for a trial, if the action proceeds that far.
However, for present purposes, the quantitative level of the interference with Shogunn's land that is complained about, if there is proven to be a relevant 'interference' in law, for the purposes of grounding a private nuisance action in tort, is not in dispute.
It will be seen that paragraphs 1 to 19 of the ASOC seek to establish more than just 'substantial interference'. Together they seek to establish all other elements necessary to fully support a viable action in private nuisance, including addressing the element of the unreasonableness of the interference, in the circumstances. But proving that extra element of unreasonableness carries with it questions requiring a balancing of conflicting interests and evaluative policy considerations that can only be safely conducted by a trial - again, if a trial becomes necessary.
The elements in the action in private nuisance, albeit not up for direct consideration on the preliminary issue are, nevertheless, as will become apparent, contextually relevant in the identification of the interference that will be accepted as sufficient in the eyes of the law to validly ground a cause of action in private nuisance.

Agreed facts: ASOC paragraphs 1 - 19

The commencing facts for the purpose of this preliminary issue exercise are paragraphs 1 to 19 of the ASOC, filed on 26 June 2015. Not all facts as seen in the ASOC are admitted by the defendant under its currently pleaded defence, for the purposes of conducting a trial, if that is ultimately needed (see ts 40 - 41).
Paragraphs 1 to 19 of the ASOC provide:
Introduction
1.The plaintiff is a company duly incorporated under the Corporations Act 2001 (Cth).
2.The defendant ('the PTA') is a body corporate established under the Public Transport Authority Act 2003 (WA).
The Land
3.Since 18 June 2013 The Trust Company (Australia) Ltd has been and is the registered proprietor of the land at 298 - 316, Murray Street, Perth, properly described as Lot 350 on Deposited Plan 54698 and being the whole of the land described in Certificate of Title Volume 2703 Folio 974, and commonly known as 'Raine Square' ('the Land').
4.At all material times prior to 18 June 2013 Westgem Investments Pty Ltd ('Westgem') was the registered proprietor of the Land.
5.The Land is and was at all material times:
a)bounded on the north side by Wellington Street;
b)bounded on the south side by Murray Street;
c)bounded on the east side by William Street; and
d)subject to the City of Perth Planning Scheme No. 2.
6.That portion of Wellington Street located along the northern boundary of the Land is and has at all material times been situated within the district of the City of Perth and subject to the care, control and management of the City of Perth pursuant to s 55(2) of the Land Administration Act 1997 (WA).
7.On or about 30 August 2006, as further modified from time to time including on 9 April 2008, the City of Perth granted planning approval under the City of Perth Planning Scheme No. 2, to Westgem, to develop the Land by way of a mixed use development involving the construction of a 21 level office tower, 3 retail levels and 3 parking levels ('the Raine Square planning approval').
8.On or about 17 December 2011, land in the City of Perth including that portion of Wellington Street located along the northern boundary of the Land (but not including the Land) was declared to be a redevelopment area under s 30 of the Metropolitan Redevelopment Authority Act 2011 (WA).
The Right Hand Turn
9.At all material times until in or about September 2011 as pleaded in paragraph 13 below, there was a median strip constructed on that portion of Wellington Street located along the northern boundary of the Land which separated the westbound traffic from the eastbound traffic.
10.As a consequence of the advice from the City of Perth that a proposal for vehicular access from Murray Street was unsatisfactory, as part of its application for planning approval with respect to the Land Westgem sought, and the Raine Square planning approval provided that:
a)the sole vehicular access to and from the Land be from Wellington Street;
b)there be a right turn entry lane to the car parking facilities on the Land from the Wellington Street eastbound lanes, including a break in the existing median strip on Wellington Street for that purpose so that direct access to the car parking facility on the Land was available for both westbound and eastbound traffic on Wellington Street.
11.There were conditions of the Raine Square planning approval that:
a)The proposed median break and associated road works in Wellington Street be amended to discourage right turns from the public car park exit and to prohibit U-turns for west bound traffic, with the design details for the road works being the subject of a separate approval from the City of Perth ('the Wellington Street road works'). All costs associated with the Wellington Street road works shall be borne in full by Westgem.
b)A maximum of 195 commercial tenant car parking bays being provided on-site and being for the exclusive use of the on-site tenants.
c)A maximum of 184 public car parking bays being provided on-site, with these public car parking bays being for short-stay use only in accordance with the Perth Parking Policy and being made available to the public on a first come first serve basis with no prior reservations.
The plaintiff will refer to the Raine Square planning approval at the trial herein for its full terms and effect.
12.On or about 13 June 2008, the City of Perth approved Westgem's design details for the Wellington Street road works.
13.In or about September 2011, the Wellington Street road works were completed, at Westgem's cost.
14.At all material times thereafter, there has been a right hand turn for eastbound traffic on Wellington Street leading directly into the car parking facility on the Land ('the Right Hand Turn').
The plaintiff's interest in land
15.By a deed of lease dated 13 March 2012, Westgem leased to the plaintiff part of the car park on the Land as more particularly described therein including 205 car parking bays ('the Premises') for an initial term of 10 years commencing on 1 December 2012, with an option to extend the term by 5 years, to use and occupy the Premises for the purpose of conducting the business of the provision of a public car parking facility to be conducted in a manner consistent with the Raine Square planning approval and the provision of vehicle dry wash services ('the Lease'). The plaintiff will refer to the Lease at the trial for its full terms and effect.
16.Since on or about 1 December 2012, the plaintiff has operated, and continues to operate, a public car parking facility from the Premises on the Land in a manner consistent with the Raine Square planning approval and the provision of vehicle dry wash services from the Premises, in accordance with the terms and conditions of the Lease ('the public car parking facility').
The proposed permanent removal of the Right Hand Turn - the nuisance
17.On or about 17 December 2014, the Metropolitan Redevelopment Authority approved a development application by the PTA for an entrance from Wellington Street to the Perth Busport north of Wellington Street, pursuant to the provisions of the Metropolitan Redevelopment Authority Act ('the PTA development approval').
18.Unless restrained by injunction from doing so, the PTA intends to carry out the works the subject of the PTA development approval, and in doing so the PTA intends to permanently remove the Right Hand Turn.
19.The effects of removing the Right Hand Turn will be to:
a)prevent eastbound traffic along Wellington Street from entering the public car parking facility directly from Wellington Street;
b)further and alternatively, impose a substantial impediment to drivers of eastbound vehicles along Wellington Street who would otherwise wish to use the public car parking facility, who will instead be required to take a more circuitous and indirect route in order to enter the plaintiff's public car parking facility from the westbound lanes of Wellington Street;
c)further and alternatively, discourage drivers of eastbound vehicles along Wellington Street, who would otherwise wish to do so, from using the public car parking facility, and thereby divert potential customers away from the public car parking facility;
d)further and alternatively, cause a substantial loss of patronage to the public car parking facility; and
3)further and alternatively, cause the plaintiff to suffer financial loss and damage.

The balance of the ASOC addresses various elements of the alleged tort of private nuisance, as well as articulating the relief sought by Shogunn, which is a permanent injunction, restraining the PTA from removing the RHTRS, plus common law damages, claimed consequent upon removal of the RHTRS.
Specifically, Shogunn seeks a permanent injunction to 'restrain the defendant from removing the RHTRS, and to make good any works already carried out which involve the removal of the RHTRS': see ASOC, prayer for relief 1.
The phrasing of Shogunn's prayer for relief is evidently to account for the fact that the PTA's ongoing construction works, implemented towards completing the Wellington Street underground bus port, have commenced, including road works in Wellington Street in proximity to the RHTRS.

Pictures and Diagrams

The facts central to the action pleaded by the ASOC, are helpfully illuminated by a viewing of some plans tendered by the parties in the form of a small (preliminary issue) trial bundle (which was tendered by consent as exhibit A).
The plans highlight, among other things, a 'before and after' perspective of the Raine Square, Wellington Street car park entrance areas. I will attach the visual representation of the 'before' scenario to the reasons as Schedule A1. Then, as Schedule A2, I attach a diagram of the 'before' scenario, showing the RHTRS.
Towards the 'after' situation, I will attach as Schedule B1 a computer-generated image of the proposed 'after' scenario position, and showing no RHTRS, and then as Schedule B2, what is a diagram for that situation.

The nature of the interference complained about

Essentially, Shogunn complains, as an alleged substantial interference with the enjoyment of its leased land (used as the underground car park business at the bottom of and under the Raine Square building), over a threatened loss of a dedicated right‑hand turn facility, that can be used by the east‑bound traffic from Wellington Street to enter its car park.
The RHTRS will be removed, as a consequence of the public road works now being implemented by the PTA in Wellington Street.
These extensive road works are a part of the overall construction of a new underground public bus port, which will be situated under Wellington Street. The works include an underpass, starting at around the intersection of Wellington Street with William Street, to facilitate buses entering the new bus port.
Shogunn submits the looming RHTRS removal will change the traffic flows in Wellington Street. This, it says, will result in a substantial interference with the access of customers (or potential customers) to Shogunn's car park and, thus, will be harmful to its business. A current opportunity to capitalise on short-term car parkers entering directly from the east-bound lanes of Wellington Street, will be lost or reduced.
This will be, Shogunn says, because drivers approaching the CBD from the west and driving in the east‑bound lanes of Wellington Street will likely choose other parking options than the Raine Square car park. This is because those potential short-term parking customers will not be able to make a direct right‑hand turn into the car park entrance, as they have been able to in the past. Instead, to reach the same parking destination, a longer and more circuitous journey will be needed - around possibly clogged streets of the Perth CBD to access Shogunn's underground car park at Raine Square from out of the west-bound lanes of Wellington Street, which would be their only subsisting alternative approach to reach the same Wellington Street entrance to the car park. This altered and longer route presents as a much less attractive proposition to the same clients, compared to using the present RHTRS to more directly access the entrance to the Raine Square parking facility of Shogunn from the east‑bound lanes of Wellington Street.
Shogunn fears that many short‑term parking clients are likely to be deterred by all these changes, and so choose alternative closer and easier rival business CBD parking options before getting back to the same entrance to its car parking location via the west-bound lanes of Wellington Street.

Joint Statement of (More) Agreed Facts (JSAF)

At the hearing of the preliminary issue on 1 September 2015, counsel for Shogunn explained what is a complicated underlying legislative regime - involving a labyrinth of different government departments and entities, including the City of Perth, and the multiple required planning approvals, which ultimately saw the Metropolitan Redevelopment Authority's (MRA) approval issue for the creation of the Wellington Street underground bus port but, simultaneously, for the correlative elimination of the existing RHTRS in Wellington Street.
Given the complexities, senior counsel suggested a filing of a joint statement of agreed facts (JSAF) addressing this aspect of the case, after conferral with the defendant, for the purpose of clarifying the underlying regime even further (ts 128). So it was that a finalised and helpfully agreed JSAF was duly filed with the court, on 8 September 2015.
It is helpful to reproduce the paragraphs of the JSAF. It provides:
1.As at:
(a)30 August 2006 and 9 April 2008, the relevant dates of 'the Raine Square Planning Approval';
(b)13 June 2008, the date of approval by the City of Perth of 'the Wellington Street road works', including 'the Right Hand Turn';
(c)September 2011, when 'the Wellington Street road works' were completed,
that portion of Wellington Street located along the northern boundary of the 'Land' but not including the Land was:
(d)within the 'Redevelopment Area' identified in schedule 1 of the East Perth Redevelopment Act 1991 (WA); and
(e)subject to the East Perth Redevelopment Scheme, administered by the East Perth Redevelopment Authority.
2.On 31 December 2011, the East Perth Redevelopment Act 1991 (WA) was repealed by section 134(b) of the Metropolitan Redevelopment Authority Act 2011 (WA), and that portion of Wellington Street located along the northern boundary of the 'Land' but not including the Land:
(a)became, pursuant to section 11 of the Metropolitan Redevelopment Authority Regulations 2011 (WA), part of the 'Central Perth Redevelopment Area'; and
(b)pursuant to section 154 of the Metropolitan Redevelopment Authority Act 2011 (WA) continued to be subject to the East Perth Redevelopment Scheme, now administered by the Metropolitan Redevelopment Authority, until the Central Perth Redevelopment Scheme came into operation on 1 August 2012.
The JSAF has been constructed on the basis that defined terms have the meaning given in the ASOC.

The precise nature of the private nuisance interference complained of by Shogunn

Understanding the nature and character of the relevant interference complained about is essential. Determining the nature of the interference at issue includes a consideration of the kind of interference that is involved, who or what is causing the interference and precisely where the interference actually manifests geographically, etc. This enquiry should become apparent from my consideration in due course of the various private nuisance cases to be canvassed shortly.
Before moving to consider the case law in relation to private nuisance, some greater context for the ultimate consideration of the true nature of the alleged interference to the land is needed. I need to expand and explain, briefly, the level of interaction as between the various State and local government bodies and the entities involved with the Raine Square Development, the Wellington Street roadworks, and with the construction of the new underground Wellington Street bus port.

Surrounding legislation and underlying regulatory framework pertinent to the Wellington Street underground bus port development application and approval

I need to briefly explore the statutory operation and status of the PTA (and the PTA Act), the MRA (and the Metropolitan Redevelopment Authority Act 2011 (WA)) and its relation to the City of Perth council. This is in the context of the PTA's ultimately approved development application with respect to the Wellington Street underground bus port.
The Raine Square building and, thereby, Shogunn's car park facility, were subject to the City of Perth City of Planning Scheme No 2 (published in the Gazette on 9 January 2004), at the time of the original development application and approval for the Raine Square development in 2006, as modified from time to time until 2008.
The City of Perth is also the relevant highway authority over that portion of Wellington Street to the north of Shogunn's car park facility, pursuant to s 55(2) of the Land Administration Act 1997 (WA).
However, the relevant portion of Wellington Street subject to the removal of the RHTRS, prior to 2011 and the enactment of the Metropolitan Redevelopment Authority Act, fell under the purview of a now defunct State governmental entity called the East Perth Redevelopment Authority (created by the East Perth Redevelopment Act 1991 (WA)), within a 'Redevelopment Area' provided for in the East Perth Redevelopment Act, by virtue of sch 1 of that Act. It was thereby subject to the East Perth Redevelopment Scheme.
The East Perth Redevelopment Act was repealed on 31 December 2011 by s 134(b) of the Metropolitan Redevelopment Authority Act.
Regulation 11 of the Metropolitan Redevelopment Authority Regulations 2011 (WA) created, pursuant to s 30 of the Metropolitan Redevelopment Authority Act, a 'Central Perth redevelopment area', of which that portion of Wellington Street located along the northern boundary of Shogunn's public car parking facility (but not the facility itself) is a part. That area is also subject to the Central Perth Redevelopment Scheme (formerly the East Perth Redevelopment Scheme).
Part 6 of the Metropolitan Redevelopment Act provides a procedure and the power for applications for development approval within a redevelopment area to be made to and then decided by the MRA (that entity being established pursuant to s 4). Under s 62(2) it is an offence to undertake development on land to which an approved redevelopment scheme applies without the approval of the MRA.
Section 66 provides for factors the MRA must consider when determining a development application. Section 66(2) provides that the MRA may, after considering a development application, refuse to issue a development approval or issue a development approval. There is also power under cl 5.24 of the Central Perth Redevelopment Scheme for the MRA to permit or refuse a development application (that scheme being subsidiary legislation pursuant to s 53 of the Metropolitan Redevelopment Authority Act). This is in contrast to applications for development approval made by the MRA itself, which must be determined by the Planning Minister, pursuant to s 60.
It was pursuant to those provisions of the Metropolitan Redevelopment Authority Act, the creation of a Central Perth redevelopment area and the corresponding Central Perth Redevelopment Scheme, that the PTA was required to lodge a development application with the MRA - with respect to its proposed Wellington Street underground bus port development.
The MRA approved that development application of the PTA on or about 17 December 2014 (ASOC par 17). It is because of the PTA's approved development application, and subsequent intention to carry out the works the subject of its approval by the MRA, that it is the defendant in this action, being the entity alleged to be causing the relevant (substantial) interference for the purposes of a private nuisance action.

Some preliminary observations upon the underlying facts

Before considering some of the private nuisance case law, it is helpful for me to render some initial comments concerning the agreed facts, as they have been exposed thus far:
(1)Prior to August 2006, the RHTRS did not exist. Prior to the Raine Square planning approval, a median strip existed at the portion of Wellington Street where the RHTRS eventually came to be constructed (ASOC par 9). The lack of a RHTRS prior to the Raine Square approvals process is obvious - no Raine Square building existed and, ipso facto, no associated public car park business existed. To that point, no RHTRS was required. There was no commercial car park to which it could provide access to (ts 21 - 22).
(2)The RHTRS has existed since September 2011. Shogunn has operated its car park business from that location since about 1 December 2012 (ASOC pars 13 and 16, ts 31 and 35).
(3)Though the City of Perth holds the care, control and management for the portion of Wellington Street that borders the northern portion of the Land, pursuant to s 55(2) of the Land Administration Act (ASOC par 6), the PTA is the relevant defendant, as the act of relevant 'interference' is pleaded to be under the proposed construction work by the PTA, which will result in a removal of the RHTRS in the process of the construction of the Wellington Street underground bus port (ASOC par 18). The PTA's authority to implement that work, aside from its statutory power, is derived from the approval of the PTA's development application, on or about 17 December 2014 (ASOC par 17). And see also the submissions of senior counsel at ts 26 - 27 and 34.
(4)The Wellington Street roadworks that provided for the RHTRS, though the subject of a separate application process to the overall Raine Square development, were inextricably linked to the Raine Square development application. Indeed, they were paid for by Westgem (ASOC par 11(a)). Shogunn leased a portion of the Raine Square car park from Westgem. This was by a deed of lease dated 13 March 2012 (ASOC par 15). The initial term of that lease was for 10 years, with an option to extend the lease by five years and, importantly, for the stated purpose of 'conducting the business of the provision of a public car parking facility' (ASOC par 15, ts 35). Senior counsel for Shogunn submitted that it was clear to those involved in the process of seeking the planning approvals for both the Raine Square development and for the Wellington Street road works, that a right‑hand turn was imperative to the financial viability of running a car park business at those premises (ts 35).
(5)Shogunn could not and does not contend that it holds any existing contractual rights to enforce a continued existence of the RHTRS. Nor does it say that it holds the benefit of any private easement rights over the RHTRS (ts 33 - 34). Clearly, it does not. Shogunn does not even seek to raise any entitlements arising from arguments based on, say, a proprietary estoppel. Those negatives are pertinent to seeing why it is that Shogunn brings only a tort action, by a claim for private nuisance against the PTA.
(6)Potential parking customers affected by a removal of the RHTRS at Wellington Street represent only a portion of the total number of persons who currently park their vehicles under the Raine Square building. There are 379 total car bays available at the Raine Square building (ASOC par 11). Of those 379 parking bays, 184 are available for the public and, thereby, fall under the operation and care of Shogunn, as a part of their public car parking business (ts 31 - 32). Members of the public wishing to park in any of those 184 bays, who seek to access Shogunn's car park entrance by a direct turn from out of the east-bound lanes of Wellington Street, will be affected by a removal of the RHTRS.
The remaining 195 car bays are permanent commercial tenant car parking bays (ASOC par 11(b)). Of those 195 bays, only 150 tenants are potentially affected by a removal of the RHTRS (assuming, of course, all the permanent tenants would seek to enter the car park via the RHTRS from out of the east‑bound lanes of Wellington Street). Forty-five parking bays are not affected by the RHTRS, as the entrance for those 45 bays is via the distinct loading bay entrance to the Raine Square building. That distinct entrance is not lawfully accessible from out of the east-bound lanes of Wellington Street, via the RHTRS (assuming those drivers were not driving illegally eastward into the west‑bound lanes of Wellington Street (ts 31-33)): see Schedules A1 and A2.
(7)Finally, there is a question as to the actual effect of a removal of the RHTRS upon potential customers of Shogunn's business. I raise the issue at this stage, not to consider any question of damage to Shogunn via reduced revenue for their car parking business - that damages analysis would fall for consideration at a trial, if necessary. But considering at this level likely effects of a removal of the RHTRS upon the parking decisions of Shogunn's potential customers, is relevant to understanding why Shogunn alleges removal of the RHTRS will substantially interfere with its car parking business. This is because the PTA suggests potential patrons of Shogunn's car park can still, effectively, manoeuvre back to the entrance to the Raine Square car park in Wellington Street by, in effect, executing a U‑turn manoeuvre through the streets of Perth, first, by turning right from the east-bound lanes of Wellington Street into Queen Street (across the west‑bound traffic of Wellington Street), to then traverse south along Queen Street to the intersection with Murray Street. The drivers then turn left, now heading east along Murray Street, up to the intersection with William Street, where they would again turn left, then heading north down William Street, to re-join Wellington Street. From there, access to Shogunn's car park is open at the same entrance as before. But by this manoeuvre, the car park entrance is now entered by a left turn made from turning out of the west‑bound southernmost lane of Wellington Street.
(8)The more circuitous route for former and potential short‑term public parking patrons, ultimately to the same entrance and destination, coupled with exposures to potential diversions and allurements of other competitor rival parking options along what will be a longer journey, is the essence of the substantial interference argument that is articulated by Shogunn. Presumably, in a competitive Perth CBD short‑term car parking business market, some former short term car parking patrons, approaching the CBD from the west, will now instead opt to park at other Perth CBD car parking locations, rather than taking a more circuitous, longer and possibly more traffic congested route to reach Shogunn's same Raine Square car park entrance off Wellington Street: see Schedules B1 and B2.

Plaintiff's 'six facts'

In his oral submissions, senior counsel for Shogunn submitted that the preliminary issue falls to be determined with respect to a narrow, but unique, set of facts. I repeat the submission here (ts 42 - 43):
(1)The only approved and lawful purpose for which Shogunn's property (that is, its CBD leasehold premises) can be put is for use as a public car parking facility.
(2)Vehicular access for customers to Shogunn's property is 'essential' to the use of Shogunn's property as a public car parking facility, not merely desirable or profitable. Permitted access to Shogunn's land is, as senior counsel put it, the very essence of the permitted use of the land.
(3)Planning approval for the Raine Square development, which authorised the use of Shogunn's land as a public car parking facility, also authorised the creation of the RHTRS, to facilitate direct access to the car park from the east‑bound lanes of Wellington Street.
(4)Access to the Raine Square car park, provided by the RHTRS, is direct access (although the meaning of 'direct' should be understood by reference to the fact that drivers travelling east along Wellington Street, seeking to use the RHTRS, are still required to negotiate oncoming traffic from the east, that is the traffic in the west‑bound lanes of Wellington Street, whilst actually making and completing their right turn to access the entrance to Shogunn's car park, as well as then traversing the footpath and in that process hopefully avoiding any pedestrians). Given such considerations, access via the RHTRS to the Raine Square parking location is direct, but not direct in any absolute sense: see ts 29 - 30. It is obviously more direct than the longer U-turn via Queen, Murray and William Streets back to the west-bound lanes of Wellington Street scenario.
(5)The persons affected by removal of the RHTRS - or, prior to its removal, the only persons who held a purpose in using the RHTRS - are those car drivers seeking to use the 184 parking bays made available by Shogunn to the public, or those vehicle driver persons who are tenants of the Raine Square building and who are seeking to access their permanent dedicated car parking bays which they have been allocated.
(6)The consequence of pars 1 to 19 of the ASOC, assumed for the purpose of determining the preliminary issue, is that a removal of the RHTRS will, in the formulation of senior counsel for Shogunn, 'substantially diminish the suitability of the premises if used as a car park' (my emphasis in bold).

I have emphasised the manner in which Shogunn has explained the consequences of a removal of the RHTRS, because how those consequences are characterised is important in the determination of the preliminary issue. This presents as regards showing a relevant 'interference' with Shogunn's land, for the purpose of Shogunn making out that ingredient of its private nuisance cause of action.
However, the above characterisation, particularly Shogunn's invocation of its concept of the diminished 'suitability' of its premises as a car parking facility, is conceptually rejected by the PTA. It instead seeks to characterise any diminished 'suitability' to the premises, as addressing only the 'economic suitability' of Shogunn's car park business (ts 89). This is a key clash of characterisation perspectives.
Starting from its alternate economic characterisation perspective, the PTA submits that Shogunn's case properly analysed is not, in truth, about a relevant interference with Shogunn's property rights, which the tort of private nuisance will protect. Rather, the PTA argues that what Shogunn is really seen to be complaining over, as all the dust settles, is an interference not to its land, but only to the carrying on of its business. And that kind of a mere economic disturbance or injury to a business, argues the PTA, is not something the tort of private nuisance does protect, invoking in support of that submission the authority of the High Court of Australia's seminal decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479.
I return to evaluate the challenge of correctly characterising the pleaded interference later in the reasons.
Before that I need to consider some of the case law with respect to private nuisance, and particularly cases bearing upon the kinds of 'interferences' that over time have come to be accepted in this branch of the law of tort as being sufficient to ground an action in private nuisance.

The tort of private nuisance: the elements

The action in private nuisance is founded upon a substantial and unreasonable interference with a private right in relation to, or in connection with, the use and enjoyment of land: see Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880, 896 - 897; Attorney-General v PYA Quarries Ltd [1957] 2 QB 169, 190 - 191 (Denning LJ); Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40, 59.
In Victoria Park Racing Sir Owen Dixon said:
the essence of the wrong is the detraction from the occupier's enjoyment of the natural rights belonging to … the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognised rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself (507).
A plaintiff must be entitled to sue in respect of the relevant nuisance (Hunter v Canary Wharf Ltd [1977] AC 655, 688) and the interference must be both substantial and unreasonable (Kine v Jolly [1905] 1 Ch 480, 489 (Vaughan Williams LJ); Oldham v Lawson (No 1) [1976] VR 654, 655 (Harris J)).
As the facts have now been exposed in this litigation, the basic activity or event by which the relevant interference is said to arise is the permanent removal of the RHTRS (ASOC par 18). How then does the state of affairs arising from the removal of the RHTRS - with the attendant effects identified in ASOC par 19 - present as an actionable interference with Shogunn's use or enjoyment of the land?
With respect to standing, Shogunn submits, by par 7 of the ASOC, that it holds proper standing to sue, as a tenant in possession of land, the land being the Raine Square building (being, properly, the land described as Lot 350 on Deposited Plan 54698 and being the whole of the land described in Certificate of Title vol 2703 folio 974). That submission is not challenged, albeit the PTA argues the precise nature of the proprietary interest remains relevant to resolving whether a sufficient 'interference' exists, on the presenting facts: see par 34 of the PTA's written submissions.
For the purpose of my resolving the preliminary issue, I repeat that it is assumed by the parties for now that if a removal of the RHTRS constitutes an interference with Shogunn's property rights (as tenant of the Raine Square building and operating a car parking business), then such an interference is accepted as being 'substantial' (ts 40 - 41).
As I also noted earlier, owing to the limited focus of the preliminary issue, the other key factual criterion of liability underpinning a private nuisance action, as to the unreasonableness of any interference caused by the PTA, is not and cannot be addressed at this stage. I am only to determine the anterior issue as to whether an actionable 'interference' by the PTA exists.
The majority of reported actions in private nuisance seem to turn on the factual issues of whether the acknowledged interference is both substantial and unreasonable. Thus it is, perhaps, not surprising that there is a relatively limited body of case law addressing the scope of what may possibly constitute the 'interference' that is actionable in private nuisance.
Nevertheless, the parties have directed me to a significant number of decided cases that they respectively submitted, from rival perspectives, serve to provide examples of the limits upon types of interference that may legitimately ground an action under private nuisance.
I will canvass the decisions, and the parties' submissions with respect to them, below in the context of dealing with the precise facts of these cases and their similarities and differences to the underlying facts. For the moment, however, I am concerned with the general principles underlying the law of private nuisance.
In that general sphere, it is important from an orientation perspective at the outset to keep firmly at the front of one's mind that an action in private nuisance involves the balancing of competing interests with respect to land and the use or enjoyment of that land.
I addressed the legal principles surrounding a claim in private nuisance in Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377 at [355] - [365]. The Court of Appeal also discussed the foundational principles: see Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [765] - [774] (Newnes & Murphy JJA). It is also helpful to recall the observations of Lord Wright in Sedleigh-Denfield v O'Callaghan:
A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society (903).
The observations by McLure P with respect to private nuisance in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 at [118], should also be mentioned:
This exercise [of assessing the reasonableness of an interference] involves the weighing of respective rights of the parties in the use of their land to make a value judgement as to whether the interference is unreasonable. (my emphasis in bold)
I mention as well, page 467 of Fleming's The Law of Torts (9th ed), as cited in Marsh v Baxter [2015] WASCA 169 at [246]:
The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other … Reasonableness in this context is a two-sided affair … It is not enough to ask: is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, is he using it reasonably, having regard to the fact that he has a neighbour?
The above general passages showcase the importance, in assessing a claim under private nuisance, of determining the precise nature of the claimed interests which, if necessary, fall to be balanced at a later stage, as well as the precise character of the alleged interference to interests.
The exercise in characterisation as to the true nature of the interference complained about here is, as we will see, ultimately determinative of this preliminary issue.

A rare, unique and unusual case: two unusual features

The present case involves, as is accepted (see ts 42, 59, 84 and 88) a number of unusual features that render it a rare and unique instance of an alleged private nuisance, if that proposition is ultimately accepted as Shogunn advocates. This places the action at the outskirts of this area of tort law. I mention the unusual features, in the context of the elements that are needed to constitute a cause of action in private nuisance.

Unusual feature one: no emanations from defendant's land

Actions in private nuisance have been successfully brought for circumstances where the (substantial) interferences to a plaintiff's land have involved damages brought about by flooding (Sedleigh-Denfield v O'Callaghan); the spread of fire (Hargrave v Goldman); pervasive smells (Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138; (1968) 15 LGRA 338); and the emanations of noise (Cohen v City of Perth [2000] WASC 306; (2000) 112 LGERA 234). All the examples provided above display instances of interferences that 'emanate' from a defendant's land.
So, the first unusual feature to see in this case is that an alleged interference, by the removal of the existing RHTRS in Wellington Street, does not on its face present a scenario of any relevant emanation from the PTA's land.
The highest Shogunn can put its case is that removal of the RHTRS will discourage some potential patrons from entering its car park, because of the increased time or effort potential parking customers would encounter by taking a more circuitous route to Shogunn's car park entrance in Wellington Street.
Shogunn submits that the lack of the usual feature of an emanation from a defendant's land in this case does not matter. It says, and the PTA does not challenge, that the conduct or event constituting an interference, as a basis of an action in private nuisance, need not necessarily emanate from a defendant's own land: par 11 of Shogunn's written submissions, citing Hargrave v Goldman (60) (Windeyer J).
Nevertheless, it is accepted on both sides that cases of private nuisance not involving an emanation from nearby land are somewhat special. They are likely to manifest at the limits of an action in private nuisance: see par 12 of Shogunn's written submissions, citing Hunter v Canary Wharf Ltd (685 - 686) (Goff LJ) and Onus v Telstra Corporation Ltd [2011] NSWSC 33 [140], [148] - [154] (Price J), and par 10 of the PTA's written submissions, citing Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201, 208 (Young J), and Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98 [87] (Preston CJ).
The parties accept, as does this court, that the categories of private nuisance at common law are not closed. So, if some novel 21st century mode of unreasonably interfering with the use and enjoyment of a person's land (or associated proprietary rights) emerges, the potency of the common law action in private nuisance may well extend to counter any new genre of unreasonable interference to land: see, eg, Victoria Park Racing (493) (Sir John Latham).
Nevertheless, the lack of a relevant emanation from a defendant's adjoining or proximate land is one special feature of note here. There is another.

Second unusual feature: no neighbouring land of a defendant

The second unusual feature is tied to the first. This case does not, in a sense, involve any neighbouring land owned by a defendant who is causing the interference with a plaintiff's property or proprietary rights. The PTA does not own or control any portion of Wellington Street in the Perth CBD.
It was accepted in oral submissions that the relevant portions of Wellington Street are vested in the Crown in right of the State, and so fall under the care, control and management of the City of Perth pursuant to s 55 of the Land Administration Act (ts 27).
It was also accepted as an assumed fact, that the City of Perth's authority also extends to the portion of the footpath presenting between the north side of Wellington Street and the Raine Square building itself (ts 27).
Despite the City of Perth having care, control and management over the relevant portion of Wellington Street, including the RHTRS, the MRA holds authority that extends to granting approvals with respect to changes to be made to Wellington Street. For this case, the MRA approved PTA's application to construct the entrance to the underground Wellington Street bus port but thereby, as well, a proposed permanent removal of the RHTRS.
So the present facts fall far from the more typical and straightforward private nuisance cases involving landowners who are acting on their land in some way that is arguably interfering with a neighbour's enjoyment of their property.
The PTA, in this case, is not the owner of any property (except insofar as, technically, Wellington Street is owned by the Crown and the PTA is an emanation of the Crown as a Crown agent). The relevant interference that is complained of by Shogunn by the removal of the RHTRS takes place not upon Shogunn's land, or even on any property that is contiguous with Shogunn's location.
The alleged RHTRS interference by its removal, effectively, manifests at a place which is some metres in distance from Raine Square, by a portion of the Wellington Street median strip and turning lane in the road being closed off. This happens at a place at about the middle of the east and west‑bound lanes of Wellington Street on the road itself.
Given these two unusual features, it is clear why both parties accept that the facts of this case reside in the outer penumbra of an action in private nuisance.
With those two unusual features identified, in what is accepted to be a unique invocation of the tort of private nuisance, I can turn to canvass some of the many cases to which I was referred on each side.

Analysis of private nuisance cases

It is convenient to approach the task by dividing the cases into broad categories. Of particular importance is a genre of case, broadly referred to as the 'Picketing' cases, which Shogunn strongly calls in aid, by analogy. I will also consider what may be called a genre of 'Constrained Access' cases which the PTA says carry weight to support its arguments that there is no relevant interference to land here. I address some general remarks to these two genres before looking at particular instances.

Picketing cases generally: similarities and differences

'Picketing' or 'besetting' cases under the law of private nuisance are not framed factually by emanations complained of from a defendant's land. Rather, they generally display the hampering of persons in their attempted accessing of a plaintiff's property, often by conduct taking place at some distance from the affected land itself.
This line of nuisance case developed in a context of complaints by landowners against collective industrial action or other forms of protest, inhibiting access to a targeted location. Their historical origins are in 19th century cases dealing with the alleged nuisance caused by crowds on public thoroughfares, eg, patrons waiting on a street to enter a premises.
Shogunn characterises the development of the law in this genre of nuisance case as recognising that 'a defendant may commit a private nuisance if it substantially interferes with access to the plaintiff's land': par 17 of Shogunn's written submissions. Shogunn repeats that it is not necessary for an interference to emanate from a defendant's land for it to substantially interfere with the access to a plaintiff's land.
By extending the principles well established by the picketing cases, Shogunn seeks to fashion the alleged acts of interference for this case by the removal of the RHTRS, to what it would submit as being a similar act of interference, sufficient to support a claim in private nuisance.
I will discuss the particular picketing cases, and principles to be derived from those cases, in greater detail below. For now, I only mention some obvious disanalogies between the presenting facts under consideration and the picketing cases in private nuisance.

Differences

First, the present case obviously does not involve any picketing. There is no suggestion that any group is (or would be) acting, intentionally, to obstruct persons from entering Shogunn's property, let alone harassing them for a purpose of discouraging potential parking customers from entering Shogunn's property.
Second, there is and can be seen no suggestion that the PTA is acting in any unlawful way (in the sense of acting in a way that is unauthorised, ultra vires/beyond power or contrary to statute) in implementing these public works in Wellington Street, culminating in an associated removal of the RHTRS. In contrast, issues as to civil or criminal laws being broken are an almost invariable feature of the true picketing cases.
Third, there is no suggestion of the presence of any aspect of what is referred to as 'besetting' on the facts. Yet the phenomenon of besetting does feature strongly in many of the picketing cases, as we will see.
The phenomenon of besetting can be understood, as it is explained in the PTA's written submissions at par 23, as 'the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property': Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J‑Corp Pty Ltd (1993) 42 FCR 452 [30] (Lockhart & Gummow JJ).
Fourth, there is no suggestion presently made that the PTA is intentionally seeking to obstruct potential parking patrons from entering Shogunn's car park. That feature may be contrasted with the direct and deliberate intention of picketers in picketing cases to disrupt persons from entering a targeted property.
It is, of course, true that here the PTA intends by its public works to remove the RHTRS. But that intent cannot be equated to a wholly distinct intention to stop persons from entering Shogunn's car parking location at the bottom of Raine Square. That is so, even if that result is a consequence of the PTA's works in removing the RHTRS.

Similarities

There are, however, similarities between the picketing cases and the present facts. That is precisely why Shogunn seeks to invoke in aid this line of authority by analogy to its situation with the threatened removal of the RHTRS.
First, it is true that a removal of the RHTRS will render it more difficult for some potential parking patrons to access Shogunn's car park. That feature is close to, albeit not precisely identical with, the more typical factual circumstances manifested under the picketing cases, where the access from a plaintiff's property may not necessarily be obstructed entirely, but is attempted to be made more difficult.
Second, the alleged acts or conduct constituting the interference in this case, as in the picketing cases, does not manifest upon the property of Shogunn, but at a point some distance removed to Shogunn's property. Moreover, here, the entrance to Shogunn's property is not in any way obstructed or blocked. Customers seeking to park their vehicles at the Raine Square car parking locations are still able to traverse the southern footpath entrance bordering Wellington Street to enter Shogunn's car park at the same entrance as they always have. But what they cannot do is access that car park entrance directly by making a direct turn from out of a dedicated east‑bound lane and a gap in the median strip of Wellington Street. They will have to take the more circuitous route to the same entrance and enter from Wellington Street by an approach from the east, to reach the same entrance.

This unaffected entrance factor is important. Were it the case that the entrance to Shogunn's property was fully obstructed, there would be little doubt that this case would manifest an interference actionable under private nuisance: see par 16 of Shogunn's written submissions and senior counsel's oral submissions at ts 44 - 46. See also Walsh v Ervin [1952] VLR 361, 364 and 370 (Sholl J).
On Shogunn's arguments, however, the fact the alleged interference manifests at a geographical point exterior to Shogunn's property, is no conceptual inhibitor to showing an interference grounding a solid action under private nuisance.
Third, in some picketing cases the relevant act of interference actually happens on public property and, at least to an extent, thereby hinders public rights of persons to access and take advantage of a public right to travel along a public thoroughfare. In that respect, the same set of facts can give rise to actions in both public nuisance and private nuisance. As such, Shogunn submits that it cannot be fatal to its claim that the present facts might also give rise to a public nuisance action (a potentiality I do not need to finally resolve, albeit a peripheral consideration under the parties' respective arguments).
Actions in private and public nuisance do not represent mutually exclusive dichotomies. It is convenient to divert briefly to address that distinction a little further.

Public and private nuisance: a crucial distinction

The essence of a public nuisance is a substantial and unreasonable interference with rights common to the public at large, and not necessarily related to the use and enjoyment of land (Attorney-General v PYA Quarries Ltd (190 - 191) (Denning LJ). This is to be contrasted, of course, with the interference to wholly private rights to enjoy land which is central under the tort of private nuisance.
The PTA submits that the type of interference Shogunn complains of here, at highest, would be an obstruction to some members of the public who currently travel east by car along Wellington Street to use what is a public thoroughfare (the RHTRS) and not, as it were, any act of interference to Shogunn's private rights, as lessee of a car parking location at the Raine Square building (see pars 19 - 20 of the PTA's written submissions). As the PTA puts it, what is affected 'is not access to the premises but the public route of approaching that access'.

The private nuisance cases

Given what have now been exposed as the somewhat unique facts presenting, there is, rather unsurprisingly, no earlier case authority displaying facts directly on point, from a precedent perspective.
Here then much turns not so much upon a disagreement as to the principles underlying the law of private nuisance, but rather, as to their application case to case, facts to facts.
So, before considering the parties' submissions in any more detail, it is necessary to conduct a brief elaboration of the facts, and key passages, of a number of the cases that the parties each raised in support of their respective cases. I divide and approach the elaboration of the cases under the following broad categories:
(a)so-called 'Constrained Access' cases, where a claimed interference has obstructed, to some extent, the ability of a plaintiff to access their land (or enjoy their proprietary right);
(b)the 'Picketing' cases, where an interference complained of manifests physically at some distance removed from a plaintiff's property and can involve some degree of besetting; and
(c)miscellaneous private nuisance cases that do not otherwise readily find a home under the above two categories, but nevertheless are of importance.
Also, for convenience, I will identify the party that chiefly relies upon each case prior to the case name in each section.

Private nuisance case law: the Constrained Access cases

(a) PTA: Attorney-General v Conservators of the Thames(1862) 71 ER 1; (1862) 1 Hem & M 1

This venerable old House of Lords decision is the first of three United Kingdom access cases the PTA invokes to support its contention that what Shogunn is actually complaining about does not raise a sufficient 'interference' to the access to the Raine Square car parking location and, at best, might amount to an interference with a public thoroughfare, at some distance removed to Shogunn's property.
In this 1862 appeal the plaintiffs had leased a wharf on the river Thames, which they used to load and unload barges. The defendants, pursuant to powers conferred on them by the Thames Conservancy Act 1857, proposed to erect two floating steamboat piers or landing-places on the Thames, near the plaintiffs' wharf, and so as to, at times, depending upon tidal and other conditions, impede the passage of boats or barges up the river to the plaintiffs' wharf.
The law report for the appeal includes a diagram showing the plaintiffs' leased wharf, the proposed piers and the manner in which one would obstruct the other. For convenience, I will attach the diagram below to these reasons, since the facts, albeit unfolding on a famous river, betray some parallels by comparison to the situation complained about in Wellington Street, Perth, 153 years on.
The plaintiffs had brought an action in private nuisance, on the basis that the erection of the piers had interrupted access to their private property, being their wharf.
A few additional facts need to be mentioned regarding this old case. First, it was not said that the erection of the new piers in the Thames completely obstructed access to the plaintiffs' wharf. But the new piers did render the passage over water to the wharf more difficult, such that, in effect, the wharf could only be accessed from one direction travelling along the Thames.
Second, though this case involves the Thames River in London, the river was considered, for all intents and purposes, to be a highway and, thereby, presents as akin to the highway pertinent to this case, Wellington Street.
On the appeal result, the House of Lords ultimately determined that the plaintiffs failed in their action for private nuisance. This was essentially because the interference complained of was no interference with the plaintiffs' private right of access to their wharf. Rather, there was only an interference with public rights regarding thoroughfare over that portion of the Thames.
It is still helpful over a century and a half on, in the context of evaluating the present arguments, to revisit the reasons of the Vice-Chancellor, Lord Wood:
Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using a highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right … The [plaintiffs] say that they have a right to this wharf, coupled with a right of access to the river … But, in truth, access is not blocked up. The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access. Persons who frequent either this or any other wharf will be impeded, to a certain extent, in the navigation of the river; but that is an injury to the general right of navigation. It amounts only to this, that the Plaintiffs' goods will have to take a longer and less convenient course in coming up to their wharf; an inconvenience the same in kind, though not in degree, as that which the rest of the public will be exposed to. The right interfered with is not the right of private access, which still remains, but the right of approaching from a distance, which forms part of the public right of navigation … this is not a disturbance of the private but of the public right (15). (my emphasis in bold)

(b) PTA: WH Chaplin & Co Ltd v Mayor of the City of Westminster [1901] 2 Ch 329

This injunction application decision is the second of the United Kingdom cases the PTA invokes with respect to its challenge to Shogunn's presently asserted conflation of a public and a private nuisance.
The plaintiffs operated a wholesale wine and spirits business out of a cellar on Villiers Street and Craven Passage, in London. The plaintiffs were in the habit of loading and unloading vans from the street to and from their cellars.
The defendants determined to light Villiers Street with electricity and, for that purpose, proposed to erect lamp-posts to support new electric lights. However, the proposed site was precisely where the plaintiffs had loaded and unloaded the barrels for their cellars. The plaintiffs alleged the defendants' actions would interfere with their business and amounted to a private nuisance.
Buckley J dismissed the plaintiffs' action in private nuisance. This was essentially on the same basis that Wood V-C had dismissed the plaintiffs' river obstruction case in Attorney-General v Conservators of the Thames. At 335, Buckley J cites from Wood V-C's reasons and includes a portion of the passage I have now set out above.
Buckley J then observed:
It appears to me that that authority [Wood V-C's reasons in Attorney-General v Conservators of the Thames] is precisely in point upon the question which I have to consider here. The lamp-post which is set up near to the plaintiffs' premises is an obstruction to the highway adjoining these premises, but is no obstruction to their private right of stepping from the highway on to their own premises (335).
Again, the key distinction was made as between a private right of access to a person's property (seen recognised in Walsh v Ervin), in contrast to a public right, common to all members of the public, of a right of passage over, or through, a public thoroughfare.

This relatively more recent House of Lords appeal is the third in the trilogy of United Kingdom access cases relied upon by the defendant. It dealt with an action by the plaintiff under private nuisance, in circumstances where conduct by, effectively, a governmental body, had interrupted the plaintiffs' ability to access their wharves (in this case, jetties) that abutted once again the river Thames in the Port of London.
The plaintiffs had operated a sugar refinery on the north bank of the Thames for some years. They constructed jetties adjacent to their refineries for the purpose of loading and unloading goods necessary for their business. The defendants, many years later, constructed two new jetties in the area. The effect of the new jetties was to cause siltation of the channel between the plaintiffs' jetties and the main channel through to the Thames. The ultimate consequence of that siltation was that the water level of the river dropped to a point that the plaintiffs could no longer access their jetties at all. The problem was only rectified by the additional dredging of that portion of the river, conducted at the plaintiffs' cost.
But as in Attorney-General v Conservators of the Thames and WH Chaplin & Co, the plaintiffs were denied in their claim for relief under private nuisance. Lord Templeman observed:
An action in private nuisance must also fail if Tate & Lyle have no private rights in connection with the depth of the river Thames. The siltation caused by the [Greater London Council] did not interfere with Tate & Lyle's use and occupation of the jetties but did interfere with Tate & Lyle's use of the river Thames (536).
His Lordship continued:
In the present case nothing has happened to disturb the possession by Tate & Lyle of their jetties. Tate & Lyle complain of interference with their use of the bed of the river Thames. They must prove some private right over the bed of the river Thames before they can complain that the siltation of the bed and consequent decrease of the depth of the water constitute an actionable infringement of their private rights whether in negligence or in nuisance (536 - 537).
As noted by senior counsel for the defendant during argument (ts 104), this appeal goes a degree further than in Attorney‑General v Conservators of the Thames, since on its facts the plaintiffs in Tate & Lyle Industries could not access their jetties at all and still failed in private nuisance. However, the plaintiffs did succeed in the alternative claim for charges under public nuisance.

(d) Shogunn: Lyon v Fishmongers Co (1876) 1 App Cas 662

Shogunn invokes this House of Lords decision to show, first, a scenario where access to the river Thames via a plaintiff's wharf was obstructed and where this was sufficient to give rise to a successful action in private nuisance (contrary to the PTA's two river Thames cases discussed as (a) and (c) above). Second, it is raised in support of Shogunn's proposition (and which I would obviously accept) that the same set of facts may well support an action in both public and private nuisance (see ts 51 - 53). As such, establishing that a certain set of facts will give rise to an action in public nuisance is not, as Shogunn puts it, 'the end of the enquiry' (ts 53). It is still necessary to determine whether or not that same set of facts gives rise to an action in private nuisance, by reason of a substantial and unreasonable interference with the use and enjoyment of a person's land (or property rights).
The appellant was owner of certain land and buildings on the north bank of the river Thames, which included a wharf that extended to the river. The respondents were granted approval by the Conservators of the Thames to construct an embankment in front of their wharf further up the main line of the river, having the effect of entirely displacing the water passing the appellant's property and, thereby, rendering passage to the appellant's wharf, via the river, impossible. The appellant (plaintiff) had brought an action in private nuisance, amongst other actions, against the respondent, as defendant.
In upholding that appeal, Lord Cairns had observed:
Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place; and it becomes a form of enjoyment of the land, and of the river in connection with the land … (671 - 672).
See also to the same result Lord Chelmsford (681) and Lord Selborne (684).
The PTA seeks to distinguish this case on the basis that access to the plaintiff's property was entirely obstructed, which involved the obstruction of frontage - a standard example of an interference classically actionable in private nuisance (ts 106).

(e) Shogunn: NSW Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256

Shogunn relies on this case for two propositions. First, that conduct occurring on public land can amount to an actionable private nuisance. Second, that access need not be completely prevented, for an interference to be actionable in private nuisance - it need only to 'substantially' impact upon access to be sufficient for an action in private nuisance (ts 81 - 83)
The decision arose in a context of that plaintiff seeking an injunction against the defendant to restrict the defendant from blocking access to an entrance to the raceway it operated.
The plaintiff owned and operated a pacing club in New South Wales. It obtained development approval for certain alterations to be made to the paceway, conditional upon a construction of a synthetic turf hockey field inside the race course, and subject to adequate funding from the State government. Further, as the development required new means of access, the defendant granted development consent for an access road to be built and for land to be acquired for that purpose.
Some time after some of the plaintiff's development alterations had been made, the promised synthetic hockey field had not yet been constructed by the plaintiff, leading to a dispute with the defendant.
Disputation erupted in the context of an upcoming racing event for the plaintiff, which included running of the 'Miracle Mile', the most important harness race in New South Wales for the year, and an event expected to generate the largest turnover for the plaintiff from any given racing event that calendar year.
The mayor of the defendant made comments published in the Sydney Morning Herald to the effect that the defendant had agreed to 'back the residents' using 'whatever resources we have available'. The comments were made following a public meeting that had resolved to blockade one of the main entrances to the track before the running of the Miracle Mile meeting, presumably as a frustrated response to the plaintiff's failure to construct the promised synthetic hockey field.
The evidence on the injunction application heard by Bryson J suggested that while the proposed blockade would not completely inhibit access to the raceway (patrons could still access the raceway via its other main entrances), the entrance at the end of the access road was the more convenient for potential patrons. Further, certain loads necessary for the pacing event, namely, horse floats, for example, could only access the raceway via the entrance at the end of the access road which was targeted by the blockade.
Senior counsel for Shogunn drew support from the following passages from Bryson J's reasons for judgment issued on the plaintiff's application for an interlocutory injunction to prohibit the blockade:
The plaintiff's counsel also contended that the facts proved raise a reasonable apprehension that a private nuisance would be committed by impeding access, even though the access should be by way of land which is still owned by the Council; it was contended that the conduct threatened could and should be found to be an unreasonable interference with the Club's use of its own land. Counsel referred me to observations of Stamp J on the subject of picketing as a private nuisance: see Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106. In my opinion the plaintiff has reasonable prospects of showing that conduct in which the Council blockaded or participated in the blockade of a strip of land owned by the Council but compulsorily acquired for the purpose of providing access to the plaintiff's land was an unreasonable interference with the plaintiff's use of land, and was tortious (262).

Private nuisance case law: the Picketing cases

(a) Shogunn: Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106

The first of the picketing cases Shogunn relies upon concerned a somewhat complex underlying array of industrial actions. As seen, it is the decision mentioned by Bryson J in the passage just cited above.
The defendant union was integral in the calling of a strike at the Torbay Hotel in Torquay (not the Imperial Torquay Hotel). The strike included the picketing of the Torbay Hotel. This resulted in the cutting off of fuel supplies to that hotel, as most of the oil tanker drivers responsible for supplying fuel were themselves members of the defendant union.
As a result of the industrial action, the manager of the Imperial Torquay Hotel issued public comments about the need to make a stand against the defendant union, his comments ultimately being published in the press. Consequently, the defendant union then began picketing the Imperial Torquay Hotel. This action included cutting off the fuel oil supplies to the Imperial Torquay Hotel, as had happened with the Torbay Hotel.

Shogunn submits that besetting may not be necessary to be shown to establish a claim in private nuisance, following Animal Liberation. I agree. But I would still accept the PTA's submission in response that, on the present facts, not only is there no besetting, there is no real prevention or inhibition of access to Shogunn's land.The effect of the PTA's roadworks (about which there is no suggestion of any unlawfulness or ill‑intent, in the sense of 'unlawful' as referred to at [95] of these reasons) will be to require drivers of vehicles approaching the CBD from the west along Wellington Street, if they do seek to temporarily park their vehicles at Shogunn's car park in Raine Square, to take a more circuitous route to approach the same car park entrance from the direction of the William Street/Wellington Street intersection (ie, to approach the entrance from the east along Wellington Street). That more circuitous route is required because of the roadwork changes to close up the gap in the median strip and modify the east‑bound side of Wellington Street itself as a public thoroughfare, ie, by the removal of the RHTRS.
It is necessary to characterise the right of access, held by Shogunn, that the PTA has supposedly violated by causing a removal of the RHTRS and the installation of an 'obstruction' in the form of a closed up median strip. To that end, it seems to me that the following points can be made:
1.An owner (or occupier) of property adjoining a public road has a common law right, held in common with the rest of the public, to use that road. Interference with that right, such as by the placing an object in the road that obstructs passage, may found an action in public nuisance if, inter alia, the person suffers particular damage or injury other than and beyond the general injury to the public: Benjamin v Storr (1874) LR 9 CP 400; Attorney-General v PYA Quarries Ltd.
2.That owner/occupier also has a common law private right (held subject to any statutory derogations) of free and uninterrupted access to get to the road from any point on their land contiguous with the road, and from the road to any point on their land that is contiguous: Marshall v Blackpool Corporation [1935] AC 16, 22; Walsh v Ervin (364), recently cited with approval in Arinson Pty Ltd v City of Canada Bay Council[2015] NSWCA 199; (2015) 208 LGERA 418 [15].
3.This common law private right of access accrues to a person quâ owner or occupier of land adjoining a road and is a form of the enjoyment of the land, and of the road in connection with the land: Lyon v Fishmongers (671 - 672). As was stated by Rowlatt J in Cobb v Saxby [1914] 3 KB 822, the 'owner of land adjoining a highway has the private right of passing from his premises on to the highway, and if that right is obstructed and he brings an action against the person causing the obstruction, he is not in the position of a member of the public who complains of an obstruction to the highway which specially affects him, but he is a person who has a cause of action by reason of the interference with or obstruction to his private right' (825 - 826).
4.Nuisance protects a claimant's interest in the beneficial use of the land: Southern Properties [118] (McLure P). It is well accepted that the enjoyment of the common law private right of access is such an interest. As was observed by the New Zealand Supreme Court in Wu v Body Corporate 366611 [2014] NZSC 137, in a judgment of the court, the common law right of a property owner to gain access to and from a public highway is a 'natural right' that has been considered to exist automatically (subject to statutory constraints) as a legal incident of their ownership of the adjacent land [127] - [128].
5. The common law private right of access of an owner/occupier is subject to extensive regulation under statute in Western Australia – see, eg, the 'control of access' provisions in pt 9 of the Main Roads Act 1930 (WA) and regs 13 - 15 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA). See also Cerini v Minister for Transport [2001] WASC 309 (Parker J) and Cusack v Harrow London Borough Council [4].
6.Shogunn does not enjoy any proprietary right or interest (as distinct from an economic interest) in the continuance or maintenance of the flow of traffic per se along Wellington Street, such that interference with that 'right' to a particular traffic flow can found an actionable nuisance. Rather, the flow of traffic along a street seems to present as an advantage of the land similar to that of an uninterrupted view from the land or the percolation of water through undefined channels: Bradford Corporation v Pickles [1895] AC 587; Victoria Park Racing; Hunter v Canary Wharf Ltd.
7.Shogunn also does not hold any kind of property right or interest (in the sense of an easement, servitude, or declared right of way) in any particular layout or configuration of Wellington Road, including in the RHTRS. Nor, indeed, is there any subsisting contractual right to maintain a particular layout or configuration in a public road.
8.Shogunn has not asserted that it possesses any 'interest' in 'land' such that it might sustain a claim for compensation (arising from removal of the RHTRS) in the nature of 'injurious affection' pursuant to pt 9 and pt 10 of the Land Administration Act or any other statutory or common law cause of action. Public roads are vested in the Crown (see s 85 Public Works Act 1902 (WA)) and the State is said to have absolute property in a public road (see Land Administration Act s 55(1)).
9.The distinction can be made, as regards physical (ie, inanimate) obstructions located within a roadway, between obstructions that:
(a)occur some distance from an entryway to an adjoining property and which obstruct (but do not prevent) the passage of persons as they navigate along or across a roadway so as to reach a particular entryway for an adjoining property (eg, a wharf, driveway, or doorway): Original Hartlepool Colliers Company v Gibb (1877) 5 Ch D 713; Eastern Counties Railway Company v Dorling (1859) 5 CBNS 821; Lyon v Fishmongers, Tate & Lyle Industries; and those which
(b)touch, or are located near to, an entryway to an adjoining private property and which create either a physical barrier to the entryway or a change in the height or surface of the road such that the use of that particular entryway is prevented or substantially impeded: Rose v Groves (1843) 5 Man & G 613; (1843) 134 ER 705 (logs rolled up against a public-house on a river); Fritz v Hobson(1880) 14 Ch D 542 (blocking of access to door because of construction activities); Lyon v Fishmongers (effective obstruction of river frontage by the river water being displaced due to a wharf).
10. Physical obstructions of the former kind would typically constitute, to paraphrase what was said by Lord Cairns in Lyon v Fishmongers, not a direct interference with the access to the land (by means of a particular entry point) but only an obstruction to the general navigation of the roadway (ie the public right of passage). However, an obstruction in a roadway may nonetheless be said to interfere with a private right of access if the obstruction is reasonably proximate to an entryway to a property and the effect of that obstruction is to prevent or substantially impede the use of that entryway and thus to inhibit direct access to the property: Lyon v Fishmongers, Original Hartlepool Colliers Company v Gibb (723 - 724) and see Caledonian Railway Company v Walker's Trustees (1882) 7 App Cas 259, 276, 285 (Lord Selborne), 299 (Lord Blackburn).
11.The distinction between these two kinds of obstruction may be somewhat 'metaphysical' in character. But the relevant enquiry, as regards an interference with a private right of access, requires an assessment as to whether the putative obstruction is something the law can 'fix upon as being sufficiently substantial to constitute an interference' with that right of access (Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, 353), in a sense of causing a 'substantial diminution of the content' of the right (Walsh v Ervin (364)). The assessment can become somewhat abstract as it is not necessary, for example, for there to be evidence that the plaintiff intended to make use of the obstructed entry point, although only nominal damages might then arise (Walsh v Ervin (364)).
12.The content of a right of access is, at base, a question of allowing access between a property and the road. Enjoyment of that right must, of its very nature, extend to allowing access to persons an owner/occupier might reasonably invite onto their property (eg, employees, customers, suppliers, tradesmen) and to supporting such purposes as are reasonably connected with the exercise of the right, such as the movement of materials onto and off of the land: Fritz v Hobson; Trevett v Lee[1955] 1 WLR 113.
13. Exercise of the right of access will invariably be connected to use of the public right of passage upon the road or highway or thoroughfare – see Lyon v Fishmongers (671 - 672). It is the connectivity in the exercise of these two rights that underlies the frequent factual overlap seen in the picketing cases between a cause of action in private nuisance and a cause of action in public nuisance. Such connectivity arises in instances of picketing because even where a picket line occurs at some distance from an entryway to a property (and therefore could not be said to directly obstruct the entryway itself), the conduct by the picketers may be of such a nature as to deter person from attempting to enter the property at all. Interference of that kind, involving obstruction and besetting, is to be contrasted with a mere change in a road configuration (such as the removal of RHTRS), the effect of which is only to require persons to travel a more circuitous route to reach a destination, but not to deny them use of (or make them apprehensive to make use of) that portion of the road that is necessary for immediate access to the property.
14.The distinction between obstructions which only interfere with public rights of passage and those which interfere with private rights of access can also arise in the context of statutory claims for the injurious affection of land affected (but not resumed) by development activities authorised under statute. For example, in the same period the House of Lords decided Attorney-General v Conservators of the Thames and Lyon v Fishmongers, their Lordships also dealt the issues surrounding statutory compensation for works alleged to interfere with rights of access in Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Caledonian Railway Company v Walker's Trustees. More recent English cases involving rights of access and statutory claims for injurious affection include: Argyle Motors (Birkenhead) Ltd Appellants v Birkenhead Corporation [1975] AC 99; Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1; and Moto Hospitality Ltd v Secretary of State for Transport [2008] 1 WLR 2822. See also Cusack v Harrow London Borough Council.
Shogunn's submission is that a reading of McMurdo P's and Williams J's reasons in Deepcliffe suggests that conduct which requires a person to take a longer or more circuitous route can give rise to an interference actionable in private nuisance (ts 119 - 122). The Irish decision of Smith v Wilson was mentioned in that context. In that early 20th century case, conduct forcing a farmer to take a more circuitous route was sufficient to ground an action in public nuisance. Likewise presented Shogunn's submission that the Canadian Supreme Court's reasons in Antrim Truck Centre at [12] founds the notion of a more circuitous route (though rising no further than that reference) providing a viable basis to contend for interference under private nuisance principles.
But, with great respect, I do not assess these passing remarks found in Deepcliffe or by the Canadian Supreme Court in Antrim Truck Centre to provide fully considered authority to support Shogunn's substantive proposition that it is an accepted principle under private nuisance that conduct requiring a plaintiff (or customers to a plaintiff's business) to follow a more circuitous or longer route to their property is always actionable in private nuisance. As I would assess the state of the law, the House of Lords decision in Attorney‑General v Conservators of the Thames stands in direct opposition to the acceptance of that conclusion - that case involving a situation where access to that plaintiff's wharf from the Thames (as a public highway, in effect) was only rendered more difficult, but not impossible. That 1862 river Thames scenario was not assessed as an interference with a private right protectable under private nuisance, but only as an interference with a public right, potentially actionable, if at all, in public nuisance - similar in result, in that sense, to the Irish decision Smith v Wilson.
Other points may be made regarding Antrim Truck Centre, which was a judgment of the Court for Canada's final court of appeal.
First, the facts of Antrim Truck Centre are somewhat different to those presenting here, at least in the degree of the putative interference. There the owner of the Ontario truck stop lost, in effect, a right of immediate access to a paved highway forming part of the Trans-Canada Highway system, being left with, in effect, land abutting a dirt road and access to the main highway via a circuitous route of at least two kilometres [12].
Second, the cause of action in Antrim Truck Centre was a claim for damages for injurious affection under the Expropriations Act, RSO 1990 (Ontario). The legal framework for the appeal was the 'law of injurious affection' [4], even though that body of law might be said to pick up and apply the law of private nuisance in determining whether an actionable interference arises, in order to determine certain elements of a claim under the Act [16].
Third, the Supreme Court in Antrim Truck Centre cited St Pierre v Ontario (Minister of Transportation and Communications) [1987] 1 SCR 906, 915 as authority for a proposition that 'only interferences that "substantially alte[r] the nature of the claimant's property itself" or interfere "to a significant extent with the actual use being made of the property" are sufficient to ground a claim in nuisance'. The remarks in St Pierre (again a judgment of the Court) arose in the context of the Court distinguishing between the circumstances of that appeal and those that presented in two other injurious affection cases – The Queen v Loiselle [1962] SCR 624 and Re City of Windsor and Larson (1980) 29 OR (2d) 669; 114 DLR (3d) 477. In St Pierre, the Court observed:
For example, in Loiselle, the claimant's service station was left at the dead end of a cul-de-sac as a result of a diversion of a highway in order to accommodate the construction of the St. Lawrence Seaway. Similarly, in Larson, a concrete median was built in the middle of the highway running in front of the claimant's motel, thereby severely restricting access with a resultant loss of value of the property. In both cases, the construction of the public works in close proximity to the lands so changed their situation as to greatly reduce if not eliminate their value for the uses to which they had been put prior to the construction and could, therefore, be classed as nuisances (915).
The decision in Larson was a judgment of the Court for the Ontario High Court of Justice (a branch of the Supreme Court of Ontario). Larson does not appear to have been overruled by a Canadian court as to the proposition that the construction of a median strip could represent an actionable interference in the context of injurious affection. Curiously, the decision does not use the word 'nuisance' at all, though it deals centrally with the issue of an alleged interference with an owner's private right of access to and from their land. The appellant (the City of Windsor) submitted that the damages complained of arose as the result of an interference with a public right and not a private right. Steele J, writing for the Court, identified WH Chaplin & Co and some Canadian authorities as support for the distinction between a private right of access and the public right of passage. However, his Honour went on to observe:
I agree with above principles of law [arising from those authorities] but do not agree that they are applicable to the present case. The facts of the present case indicate that there is a private right interfered with. While there are no reported decisions dealing with the case of a median strip or barrier down the middle of a highway, there are numerous cases relating to cul-de-sacs and other interference with access to a property.
…
In the present case, where the median strip has been referred to as interfering with turning access to the same extent as if it were a 20-foot wall in height, a private right of access has been interfered with. I see no difference in principle between a barrier that allows access for traffic from one direction only and the creation of a cul-de-sac road that has substantially the same effect. The present claim is one in which the city would be liable if the construction were not under the authority of a statute. Needless to say, in each case a claimant must prove damages as a result of the interference with the private right (480 - 481).
Of course I accept, as a matter of concept, that some conduct, in a particular case, might be such that whilst, technically, access to a plaintiff's property from a public thoroughfare is not completely obstructed, that nevertheless in a practical sense, access is rendered so torturous or time‑consuming as to render the access as being, in effect, fully obstructed. Such circumstances could support a finding of interference actionable in private nuisance, given that access to a plaintiff's property is factually evaluated to be effectively prevented, in practical terms. But that hypothesis is far from the present case.
Evaluating the present agreed facts, I would accept the PTA's submission as to a hypothetical alteration to traffic flow in Wellington Street, rendering it a one‑way street, to only allow vehicles to lawfully travel west‑bound, to be a convincing analogy. For such circumstances, I could not countenance Shogunn submitting that the public nature of the alteration to the road traffic flow of Wellington Street in such 'one-way' circumstances could give rise to a relevant 'interference' to Shogunn that would be actionable in private nuisance. In my view, the presenting facts are not, in a legal sense in this context, relevantly that much different from that hypothetical scenario. Shogunn holds no right to maintain the RHTRS in Wellington Street in perpetuity. Absent holding some private right of protection to allow it to personally preserve and perpetuate the ongoing existence of the RHTRS afforded under contract or, say, by the holding of the benefit of an easement in its favour, Shogunn then casts about in what I assess as an ultimately vain endeavour to manufacture a personal right akin thereto, via private nuisance.
Another possible scenario by logical extension to test Shogunn's submission, I could hypothesise, would be if long‑term public roadworks undertaken some way distant to Shogunn's car park, for example, off to the west on Loftus Street in West Perth, delivered the effect of reducing the flow of traffic into the east‑bound lanes of Wellington Street approaching the CBD and reducing the number of Shogunn's potential customers (assuming the RHTRS still existed for potential parking customers to access the car park from the east‑bound lanes of Wellington Street). Could those roadworks also constitute an interference actionable under private nuisance by Shogunn or others? By extension of the one‑way street traffic flow Wellington Street analogy submission of the PTA, which I find convincing, it could not.

Buttressing my end conclusion is the inability to accept a submission by senior counsel for Shogunn that the PTA took it upon itself to alter a 'pre‑existing state of affairs' created by design, not by accident. I see two problems with that submission. The first is that it is conclusionary to assert that a pre-existing state of affairs is the ongoing existence of the RHTRS, in effect, in perpetuity.
Prior to the construction of the RHTRS in 2011 there was only a median strip. There was no RHTRS. There was no Raine Square. At some point in Perth's past, there would have been no median strip at all in Wellington Street (possibly only a tram line). Before 1829 there was no such thing as a Wellington Street in a 'Perth CBD' at all. So to borrow the words of a revered and departed musician: 'All things must pass'. The traffic flow arrangements in Wellington Street should be viewed as a continuing, rather than as merely a static, phenomenon.
Those observations feed to my second problem with the submission: the assertion that a pre-existing RHTRS state of affairs somehow gives rise to a private right, protectable under private nuisance, grounded upon a development approval (not a contract, or an easement, or even some species of proprietary estoppel). We live in an age where statutory authorities alter and amend traffic routes, developments, land zoning, etc, on an almost weekly basis (see, as only one example of the common and complicated nature of development approvals and changes in the Perth metropolitan area, Pritchard J's recent reasons in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226). So the assertion of a property right protectable under private nuisance principles extending to the maintenance of the RHTRS for some undefined point into the future grates, in my view, against that dynamic context.
Arriving at my end conclusion that Shogunn here indeed does, in truth, conflate private nuisance with public nuisance, I am not cavilling over the submission, supported by Lyon v Fishmongers and Animal Liberation, that the same set of facts may give rise to both a public and a private nuisance. I would accept that submission, as a matter of concept, albeit I note that neither of the authorities actually support the conclusion in express terms. Nevertheless, I cannot conclude on the present facts that Shogunn has established an interference with a proprietary right that is sufficient to ground an action in private nuisance. On my assessment, the facts of this case fall too far outside the penumbra of private nuisance, falling beyond even the exceptional picketing line of private nuisance case authorities. There is no besetting here. There is no suggestion that potential car park patrons will not seek out Shogunn's car park facility out of a fear for their safety. As always, the commercial choice of a suitable short‑term CBD parking facility will still remain to be influenced by mercantile considerations such as price, proximity to destination, personal safety, vehicle security, competitive alternatives and overall convenience, as some of the multiple factors in play in a consumer's decision to park their vehicle at a location on a short term basis.
The agreed facts for this preliminary issue simply do not support a finding of there being an 'interference' actionable under private nuisance principles. Having determined Shogunn conflates principles of private nuisance with public nuisance, the case is exposed conceptually. What Shogunn is really seen to be complaining about is the loss of a certain density of traffic flow out of, and from, the east bound lanes of Wellington Street into its car park business, leading directly to an assumed reduction in business turnover with, all else being equal, a corresponding reduction in profits.
Such exposed facts then squarely fall the wrong side of the rule established by Victoria Park Racing. Private nuisance does not extend to protecting a person's 'right' to carry on a business from their land. The interest being sought to be protected, applying Victoria Park Racing, is, in reality, Shogunn's interest in the continuing financial viability of Shogunn's business - not its interest, protectable as a right under private nuisance, in the mere use and enjoyment of its land. The observations of Sir John Latham referred to in the explication of the PTA's submissions are, on my assessment, apposite to this case - Shogunn's car park is as suitable as it ever was for its continued operation as a car park.
Similar to the plaintiff's racecourse in Victoria Park Racing, Shogunn's commercial car premises enjoys certain 'natural' advantages as a result of its location (and other features) in terms of its exposure to volumes of traffic flow, accessibility, etc. To echo Sir Owen Dixon, the feature in which Shogunn alleges the wrong of nuisance is, ultimately, in an impairment or deprivation of the advantages possessed by Shogunn's land as a car park by means of an asserted obstruction of the flow of traffic, due to removal of the RHTRS. But there is no relevant interference with Shogunn's right of access.
The conceptual roadblock to Shogunn posed by Victoria Park Racing explains its ultimate submission, to attempt to define its proprietary interest as one uniquely tied to the operation of a car park business and, thereby, to provide seemingly unfettered access for any and all potential Wellington Street CBD commuters to its Raine Square car park. Without a tangible link between the running of Shogunn's car park business, and its right to the use and enjoyment of its property, it could not even begin to raise an action in private nuisance, as there would be no actionable interference.
But the declaring by Shogunn of the operation of its car parking business as the only interest underlying the use and enjoyment of its (leasehold) property is not sufficient, as though by its own decree, to elevate that interest to a proprietary right actionable under private nuisance.
Unfortunately for Shogunn, its valiant endeavour to, in effect, apply a 'lick of paint', to try to sell its very understandable mercantile interest in a continued profitable running of its Raine Square car parking business, as an interest amounting to a pure proprietary interest actionable under private nuisance, remains too fiscally transparent as a business interest and so is ultimately exposed to be cut down under the Victoria Park Racing principle. It is, at the end, a complaint that goes to interference not with the enjoyment of the land but with the profitable conduct of its business.

Concluding remarks

For the reasons now given, I must answer the preliminary issue in favour of the PTA. That is, a permanent removal of the RHTRS as a consequence of public works to be carried out in Wellington Street by the PTA, as pleaded under par 8 of the amended defence, is not capable of interfering with the plaintiff's use and enjoyment of its leasehold interest in the Premises, or its rights over the Premises, sufficient in law to ground a cause of action in private nuisance.
The PTA, having been successful upon the outcome of the preliminary issue, should, prima facie, receive its taxed costs of the application and the argument, with usual special costs scale allowances, since a complex matter was helpfully and skilfully argued by senior counsel on both sides, as was appropriate.
The parties should now confer over the orders to issue consequent upon publication of these reasons, so as to file a (hopefully agreed) minute of proposed orders within 21 days of the publication of these reasons.

SCHEDULE A1

SCHEDULE A2

SCHEDULE B1

SCHEDULE B2