Trewin v Felton - [2007] NSWSC 851

No judgment structure available for this case.

CITATION: Trewin v Felton [2007] NSWSC 851

HEARING DATE(S): 14-17 May 2007
Written submissions 20 June 2007

JUDGMENT DATE :
7 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: Defendant is entitled to fence and gate corridor, but not so as to deny plaintiffs suitable access points, to permit reasonable user by them of right of carriageway. In current configuration, 13 metre access point exhausts limits of reasonable access. Plaintiffs are entitled to mandatory injunction requiring demolition of gateposts, but not in respect of other alleged obstructions. Defendant is entitled to injunction restraining plaintiffs from authorising persons to use carriageway without ensuring that they do not park or remain in it. Defendant is not entitled to order modifying or partially extinguishing the easement.

CATCHWORDS: REAL PROPERTY – Torrens title – Easements – Right of carriageway – Construction – where created by s 88B instrument – where easement runs along length of a boundary of dominant land – extent of access points permitted from easement to dominant land – servient owner’s right to gate and fence easement – whether dominant owner entitled to park or remain on easement – Modification and extinguishment – whether obsolete – whether impedes reasonable user of servient land without securing practical benefit to dominant land – whether abandoned – whether can be modified without substantial injury to dominant owner – Obstruction – by gateposts – by gate – by fence – by parking – remedies – mandatory injunction – Trespass – by excessive user – parking by users authorised by dominant owner – remedies – injunction restraining authorising use without ensuring users do not park

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 89(1)

CASES CITED: Anderson v Pender [2002] NSWSC 1005
Bulstrode v Lambert [1953] 1 WLR 1064
Butler v Muddle (1995) 6 BPR 13,984
Carlson v Carpenter (1998) NSW ConvR 55-848
Chatsworth Estates Company v Fewell [1931] 1 Ch 224
Chiu v Healey [2003] NSWSC 857
Clifford v Hoare (1874) LR9CP 362
Deanshaw & Deanshaw v Marshall (1978) 20 SASR 146
Dunell v Phillips (1982) 2 BPR 9517
Elliott v Renner [1923] St R Qd 172
Ewing Phosphate Company v Driver (1903) 23 NZLR 108
Gohl v Hender [1930] SASR 158
Gotobed v Pridmore (1970) 115 Sol Jo 78
Greater Sydney Development Association Ltd v Rivett (1929) 29 SR (NSW) 356
Grill v Hockey (1991) 5 BPR 11,421
Grinskis v Lahood [1971] NZLR 502
Heaton v Loblay (1959) 60 SR (NSW) 332
Hose v Cobden [1921] VLR 617
Jalnarne v Ridewood (1989) 61 P&CR 143
Johnstone v Holdway [1963] 1 QB 601
Jones v Pritchard [1908] 1 Ch 630
London and Suburban Land and Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480
Middleton v Arthur [2002] NSWSC 627
Nirimba Developments Pty Ltd v Sertari Pty Ltd [2007] NSWSC 252
Paterson & Barr Ltd v University of Otago [1925] NZLR 191
Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337
Pettey v Parsons [1914] 2 Ch 653
Powell v Langdon (1944) 45 SR (NSW) 136
Proprietors Strata Plan 9968 v Proprietors Strata Plan 11173 [1979] 2 NSWLR 605
Re Ghey & Galton’s Application [1957] 2 QB 650
Re Mason and the Conveyancing Act (1960) 78 WN(NSW) 925, [1962] NSWR 762
Rodwell v G R Evans & Co Pty Ltd [1978] 1 NSWLR 448
Saggers v Brown (1981) 2 BPR 9329
Sketchley v Berger (1893) 69 LT 754
SS & M Ceramics Pty Ltd v Yau Kin [1996] 2 Qd R 540
Swan v Sinclair [1925] AC 227;
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Williams v Usherwood (1981) 45 P & CR 235
Zenere v Leate (1980) 1 BPR 9300

PARTIES: Audrey Trewin (first plaintiff)
Stephen Albert Trewin (second plaintiff)
Graeme John Felton (defendant)

FILE NUMBER(S): SC 3832/05

COUNSEL: Ms P Lane (plaintiffs)
Mr I Mescher w Ms A Horvath (defendant)

SOLICITORS: Crane Butcher McKinnon Lawyers (plaintiffs)
R I McBroom, Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

7 August 2007

3832/2005 Audrey Trewin and Anor v Graeme John Felton

JUDGMENT

1 On the New South Wales North Coast, about 20 kilometres north west of the city of Coffs Harbour, on the road towards Grafton, lies the picturesque and tranquil rural village of Coramba, the main street of which is Gale Street, which is surrounded by a heritage conservation area. The plaintiffs Audrey and Stephen Trewin are husband and wife and own a property, now used by them as a gift shop, at 45 Gale Street, being the land comprised in folio identifier 1/747139. The defendant Graeme John Felton is the registered proprietor of an adjoining property at 47 Gale Street, which he occupies with his wife and daughter as their home, being the land comprised in folio 2/747139. Lot 2 is a battleaxe block, located at the rear (south west) of Lot 1, with the axe handle being a corridor extending from its northern corner along the northwestern boundary of Lot 1. Lot 1 is benefited by an easement for right of carriageway over that corridor, which has given rise to a conflict between the parties that belies the tranquillity of the setting, and in due course to these proceedings.

2 The relationship of the Lots and the easement is depicted on the annexed plan. The right of carriageway is 4 metres wide and 38 metres in length, and runs from Gale Street in the northeast to Lot 1 in the southwest. Its south-eastern boundary is wholly contiguous with Lot 1, the dominant land. That boundary is unfenced from the Gale Street frontage for a distance of about 2.7 metres; from that point there is a fence which runs along the boundary for a distance of 17.5 metres, and then runs diagonally across Lot 1 to the corner of a carport within Lot 1. The boundary of the right of carriageway is unfenced for a distance of 13 metres, through which access is gained to the carport and double garage on Lot 1. The last 5 metres approximately of the right of carriageway (4.76 metres to be precise) at its southwestern extremity, remotest from Gale Street, widens from 4 metres to 5.3 metres (“the last 5 metres”). The fence the subject of these proceedings fences the boundary between the last 5 metres and Lot 1.

3 The issues are:

· Upon the proper construction of the easement, what is the permissible extent of access between the easement and Lot 1, and to what, if any, extent does the easement permit the owners of Lot 1 (and those authorised by them) to park or remain on the site of the easement, as distinct from merely passing over it? These are questions of construction of the easement;

Conveyancing Act

(a) the easement should be deemed obsolete, by reason of change of user of the dominant land (Lot 1) or the neighbourhood or other circumstances, or

(b) the easement impedes the reasonable use of the servient land (Lot 2) without securing any practical benefit to Lot 1, or

(c) the Trewins should be regarded as having abandoned or waived the last 5 metres of the easement, or

· Has Mr Felton obstructed the easement in a manner that amounts to an actionable nuisance? This requires consideration of whether an actionable obstruction is occasioned by any or a combination of the gate-posts and gate erected by him at the commencement of the last 5 metres of the easement, the fence installed by him along the boundary between Lot 1 and those last 5 metres, and the parking of vehicles by him or his licensees in the easement;

Background

4 Lots 1 and 2 were created on 7 July 1987 by registration of a plan of subdivision of former Lots 31, 32 and part of Lot 33A in Deposited Plan 5512, which were then all in the ownership of Ivan Wall. A house located at the Gale Street front of the property then occupied all but 4.52 metres of that frontage. Once the axe handle connecting Lot 2 with Gale Street was created as part of Lot 2, the house occupied all but 0.52 metres of the residual frontage of Lot 1, so that there was no remaining space on Lot 1 for vehicular access from Gale Street to the back yard of Lot 1. Plainly for the purpose of providing access to the rear of Lot 1, the Deposited Plan created a right of carriageway, benefiting Lot 1 and burdening the axe-handle part of Lot 2.

5 The Deposited Plan records the following:

Pursuant to s 88B of the Conveyancing Act 1919-1964 it is intended to create right of carriageway 4 wide and variable width.

Conveyancing Act

6 Both lots remained in the ownership of Mr Wall until 2003. Mr Wall used the site of the carriageway to move his vehicle to the rear of Lot 1 and wash and park it in a carport there. He did so perhaps once per month, perhaps a little more frequently.

7 Roxayne Felton, who was to become the wife of Mr Felton, commenced to occupy Lot 2 in 1999. Mr Felton took up occupation in October 2002, and purchased Lot 2 by contract dated 16 May 2003, the transfer into his name being registered on 27 June 2003. Meanwhile, the Trewins became registered as proprietors of Lot 1 on 23 May 2003.

8 Thereafter, there has been disputation between the parties, including but not limited to matters pertaining to the right of carriageway: their disputes also include services to Lot 2 which pass through Lot 1, overlooking, privacy and lighting issues. Each party criticised the other as having acted unreasonably. While it is regrettable that there cannot be some give and take and accommodation between neighbours, ultimately the function of the law is to provide rules governing their relations to the extent that they are unable to agree. Each party has sought to rely on what it understands to be its strict legal rights. Ultimately, this dispute must be resolved according to the legal rights of the parties, and not according to whether either or both have acted unreasonably. Although in construing the easement there is a question as to what is reasonable user of the easement, the concept of reasonable user is quite distinct from whether either party has acted reasonably or unreasonably. It is conceivable that the reasonableness of a party’s conduct might bear on credit in some circumstances, but ultimately nothing turns on credit in this case. Accordingly, I propose to determine what are the legal rights of the parties, and not whether either or both have acted unreasonably.

9 It is important also to bear in mind that in a case such as the present, the court is concerned with considerations of legal right, and not of town planning. The fact that the council may have approved the erection of a structure does not mean that the owner of the land on which it is to be constructed has a legal right to do so in the face of a restrictive covenant that would prohibit it. Nor does the council’s approval of a garage necessarily mean that an easement is to be construed as authorising user for the purposes of accessing that garage. Correspondingly, the circumstance that one party may have a legal right to do something does not mean that the council must approve it on town planning grounds: thus the council may quite legitimately decide that, notwithstanding a servient owner’s legal entitlement to fence an easement, permission to do so should be refused on town planning grounds.

10 In June 2003, the Trewins lodged with Coffs Harbour City Council a Development Application for the construction of a double garage plus carport on the rear of Lot 1, the entrances to its three bays facing, and being set back between about 3 and 5 metres from, the boundary between Lot 1 and the access corridor of Lot 2. At about the same time, the Trewins erected a timber paling fence around most of the boundary of Lot 1, including along the last 5 metres of the access corridor (where they also planted trees against the fence), and also along approximately the first half of the access corridor. The Council gave its development consent for the garage on 4 September 2003. After the consent was given, but before the garage was erected, Mr Felton had fencing contractors construct a fence along that part of the access corridor which the Trewins had not fenced, and through which they intended to obtain access between the access corridor and the proposed garage and carport. Mr Felton proposed to allow access through a 3-metre gate at some point in that area. The Trewins demanded that Mr Felton remove his fence, and when he did not do so they removed it themselves, restoring access between the corridor and the site of the proposed garage. They constructed fences from the northern corner post of the garage to the existing fence just over half way down the corridor, and from the western post of the garage to the existing fence at the commencement of the last 5 metres, with the result that their entire property was secured by a paling fence, save for the apron between the corridor and the new garage.

11 On 2 April 2004, Mr Felton commenced proceedings in the Local Court at Coffs Harbour for damages for the destruction of his fence along the corridor. After a contested hearing, his claim was dismissed on 13 July 2004.

12 Mr Felton applied to the Council for consent to fence the right of way, with various proposals involving two and then three adjacent gates totalling some 12 metres length, between the apron and the corridor. The Council refused his development application, to which the Trewins objected.

13 On 28 July 2004, the Trewins lodged a development application for the construction of a retail (gift) shop and pergola at the front of Lot 1; it was ultimately approved on 21 September 2004.

14 On 19 April 2005, Mr Felton commenced preparations for the erection of a gate at the commencement of the last 5 metres. Over the next month:

· The Trewins dismantled the fence they had previously erected between Lot 1 and the last 5 metres;

· The Trewins objected to Mr Felton’s proposed gate;

· Mr Felton filled the last 5 metres with soil;

· Mr Felton had a fence erected between the last 5 metres and Lot 1, where the Trewins’ fence had previously stood.

15 On 29 June 2005, solicitors acting for the Trewins sought particulars from Mr Felton as to his plans for future development along the corridor, and in particular the nature of the gate and whether it would be electronically controlled. During April or May 2005, Mr Felton had a spa and outdoor entertainment area constructed on Lot 2, close to its boundary with Lot 1 and close to the last 5 metres.

16 The Trewins commenced these proceedings by summons filed on 5 July 2005. On 8 July, Mr Felton had substantial brick gate posts installed at the commencement of the five-metre strip. The effect of those gate posts is to reduce the width of the access corridor at that point to 3.02 metres. On 20 July 2005, Mr Felton undertook not to carry out any further obstruction, modification or fencing on the site of the right of way, pending the hearing of the proceedings.

What does the easement, properly construed, permit?

17 In the s 88B instrument, the terms of the easement are said to be “a right of carriageway four wide within the meaning of Schedule IXA Pt 1 of the Conveyancing Act, 1919 as amended”. Schedule IXA Pt 1 of the Conveyancing Act provides as follows:

Full and free right for the body in whose favour this easement is created and every person authorised by it, to go, pass and re-pass at all times and for all purposes with or without animals or vehicles or both over the land indicated herein as the servient tenement.

18 The reference to and incorporation of Schedule IXA, Pt 1, is inapt, because that Schedule is intended to relate to easement in gross. But the s 88B instrument nonetheless indicates that there was an intention to annex the easement to the land, and that the easement was to benefit Lot 1 and burden Lot 2. Moreover, it specified the owner for the time being of Lot 1 as the person who could release the easement. In those circumstances, and despite its inaptness, the easement properly construed is an easement granting to the owner for the time being of Lot 1 (and persons authorised by it) the right to go pass and re-pass at all times and for all purposes with or without animals or vehicles or both over the corridor, for the purpose of access to and egress from Lot 1. It is an easement to “go, pass and re-pass … over … the servient tenement”, which bespeaks a purpose of user for access, rather than of a “ius spatiandi” over the servient tenement.

19 In the case of such an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, questions may arise as to the number and extent of access points to which the dominant owner is entitled on the one hand, and the entitlement of the servient owner to fence the easement on the other. In my view, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner’s reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced. This conclusion flows from the following cases.

20 In Pettey v Parsons [1914] 2 Ch 653, the servient owner’s land was burdened by a private right of way benefiting dominant land on the opposite side of the right of way. The Court of Appeal held that the servient owner was entitled to erect a gate at the entrance of the right of way, provided that it be kept open during business hours and never locked, and that the dominant owner was entitled only to reasonable access to and from the right of way, so that the servient owner was entitled to erect a fence between the right of way and the dominant land, with a gate in it. Cozens-Hardy MR said (at 663):

Cooke v Ingram

There is nothing in the original grant of the way which expressly limits the grant into one line of access, or to access only at the points, if any, where his land adjoins the new way. And the parties certainly acted from the first upon the construction that the grantee was not limited to the shorter line of access, for the track always in fact used was not shortest. In the absence of any such express limitation, and if anything to show that the right as claimed is unreasonable or destructive of the object of the grant, I am unable to see any ground on which any obligation to elect one particular line of access can be implied.

Here in my view the contention of the defendant is wholly and absolutely unreasonable. He has built his own shop right up to the blue. There is no door or gate or any opening into the blue. There is a blank space unfenced at the western end near the yellow private road, and there is this little triangular piece facing Charminster and Alma roads, 17 feet 3 inches towards the road and 16 feet 2 inches back to the gate; and the defendant says it is reasonable in those circumstances that he should say to the plaintiff, ”you shall not put any fence or wall on your own land, because I want the people to admire my goods by coming over the blue land into the triangular piece so that they will get a better view than they can from the street.“ In my opinion an assertion like that is wholly unreasonable and ought not be sanctioned.

The plaintiff has in terms offered to put a small gate in the 16 feet 2 inch fence which he proposes to put up. That seems to me to be giving the defendant on this part of the case all, I am not sure that it is not more than, the defendant is entitled to…”

21 Swinfen Eady LJ said (at 667):

The other question refers to fencing the side of the little triangular piece of land. It is a question of construction in a deed granting a right of way whether the way that is granted is a way so that the grantee may open gates, or means of access to way, at any point of his frontage, or whether it is merely a way between two points, a right to pass over the road, and is limited to any modes of access to the road existing at the date of the grant. In each case it is a question of construction. Assuming in favour of the defendant that he is entitled to open new means of access to this roadway, he is not entitled to have it continuously unfenced along the whole of the line so that at every inch of the way he may pass on to it at any times he pleases. With regard to this part of the case I agree with the view which the Master of the Rolls has already expressed as to what is right and proper to be done with regard to the sixteen feet two inches on the north side.

22 Pickford LJ said (at 669):

I do not think it is necessary to decide, but I shall assume for the purpose of this judgment that the grant of the right of way was such a grant as to then entitle the defendant to go upon that blue land over which the right was granted from any portion of his land, but I cannot accept the contention that such a right of way involves also the right to say to the plaintiff “I can go upon it at any moment from every inch of my land which adjoins the right of way, and therefore you cannot put up any fence of any description along that right of way without my permission”. In the absence of authority I am certainly not disposed to accept the contention that such an obligation as that is laid upon the servient tenement. I think the obligation is that, assuming the right of access from each part of the land from which access is required to any part of the way, such access shall be given as will be reasonable. It is obviously difficult to explain, but it is an inevitable word, I think. It means such access as will give reasonable opportunity for the exercise of the right of way, or, to put it in another way, such access should be given as will not be a derogation from the grant of the right of way.

23 Pettey v Parsons thus establishes that the servient owner is entitled to fence the right of way, but that the dominant owner is entitled to access via gates to permit reasonable exercise of the right of way.

24 In Hose v Cobden [1921] VLR 617, Mann J held that a fence, proposed to be erected along the boundary between a right of way and the dominant land, would not be an obstruction of the right of way so long as it accommodated suitable gateways. The dominant owner’s claim to be entitled to prohibit the erection of any fence of any kind was rejected.

25 In Gohl v Hender [1930] SASR 158, Napier J held that the servient owner might erect a gate across a right of way, provided that it was left unlocked and did not substantially obstruct the right of way. His Honour said (at 161ff) that any other conclusion would be unrealistic, since “a free and unrestricted right of way through grazing country is impracticable. Anything to keep the stock in must necessarily amount to an unlawful obstruction … and every owner of grazing land which is subject to a right of way granted in these terms may be called upon to fence it off and abandon it, or to leave his land unused. The balance of convenience is certainly in favour of a more elastic construction, if that is possible”. His Honour added (at 163), “It is a natural and necessary incident to the use and enjoyment of the plaintiff’s land that it should be fenced in”. But as his Honour said (at 162), “The question is one of fact to be determined upon the circumstances of the particular case, with a due regard to the competing rights and interests of the parties”.

26 In Powell v Langdon (1944) 45 SR (NSW) 136, the defendant servient owner erected - across the street frontage of a right of way that served four dominant properties as well as the servient property - a low brick wall, leaving an opening of approximately eight feet in width between two brick piers on which iron gates were hung closing in the middle, and claimed the right to keep the gates closed; the defendant also threatened to erect a fence which would have restricted the width of the right of way (which was over a strip of land twenty feet wide) throughout its length to fifteen feet. Roper J, as the later Chief Judge then was, held that the wall and gate were, and the threatened fence would be, real and substantial interferences with the easement entitling the plaintiff dominant owners to relief, but that the servient owner was not bound to leave the right of way open to the street to the full extent of its width, provided that he must provide a convenient opening at least ten feet wide, and any gates should be left open during the times that the persons entitled to use the right of way might reasonably be expected to require its use in normal circumstances. His Honour observed that the right of way in question was more akin to a laneway leading to the boundaries of the dominant blocks, than to a private way made for their own convenience within their own boundaries. His Honour contemplated that fencing off five feet on the side of the twenty foot easement for some of its length, so as to afford some privacy to a cottage on the servient land, would not be a substantial interference with enjoyment of the easement, but that continuing such a fence further along the easement than the cottage would be a substantial interference. This was apparently so, notwithstanding that the whole width of the easement was not required for its exercise.

27 Gohl v Hender was followed and applied by Mitchell J in Deanshaw & Deanshaw v Marshall (1978) 20 SASR 146, in which her Honour held that the servient owner was entitled to construct a fence or pathway across a right of way, provided that it did not impede the standing for loading and unloading purposes of vehicles using the way in connection with the business carried out on the dominant land.

28 In Dunell v Phillips (1982) 2 BPR 9517, Waddell J, as the later Chief Judge then was, held that in cases where a right of way was sufficiently wide to permit the purpose for which it was granted, and in the absence of any provision in the grant to the contrary and of its purpose requiring otherwise, the servient owner was entitled to fence the common boundary, and the dominant owner was entitled to access to the right of way by means of gates at such points as reasonably met his requirements - adding that although there was no absolute right of a servient owner to fence a common boundary if the grant was silent, there was nevertheless a natural presumption that he should be able to do so, which was a matter of considerable importance in deciding what inference should be drawn from the circumstances existing at the time of the grant. For that view, his Honour cited, inter alia, Pettey vParsons, Hose v Cobden, Gohl v Hender, Powell v Langdon, and Saggers v Brown (1981) 2 BPR 9329 [97113], concluding on the facts of the case that there was no entitlement to fence because the right of way was insufficiently wide, if fenced, to serve the purpose for which it was granted, which was that it be used in conjunction with part of the dominant land to provide access.

29 That the dominant owner is not entitled to insist on an easement remaining unfenced, nor on access however extensive it may please, and that the manner in which the dominant owner has designed and used its land is not decisive, is illustrated by Butler v Muddle (1995) 6 BPR 13,984, in which Young J (as his Honour the Chief Judge then was) said:

Dunnell v Phillips

The plaintiff says that the true construction is that only one spot should be the spot from which the defendants have access onto the right of way. The defendants say it is whatever spots are reasonable. They have chosen to build their building in accordance with the plans which have been approved by the local authority and which provide for three access points covering five metres, five metres and three metres.

I think that looking at the grant in the circumstances of the case, that the truth is somewhere in between. I think that it is rather artificial in the case where a right of way runs along side the land which benefits from it to say that the parties intended that there should only be access at one spot. After all, land is developed perhaps every 50 or 60 years and dependant on the developments so that the dominant owner for the time being wants access even if there is only a single point of access at various points over the centuries. On the other hand, I cannot see how the common intention was that the dominant owner was to be permitted to build as many car parking spaces along the common boundary as he in his absolute discretion thought appropriate. One must look at the reasonableness of it all when construing the grant and, in my view, the defendants are entitled to access from more than one point, but only such access as is reasonable; see Pettey v Parsons [1914] 2 Ch 653 and Hose v Cobden [1921] VLR 617.

When looking at what is reasonable, the mere fact that the defendants have deliberately designed their building in a certain way to make the best use of their land and so have great problems if they cannot enjoy the access that they now need is not the dominant consideration when working out what is reasonable. Again the matter that the plaintiffs are not currently using the land is, to my mind, of little relevance. I think the test really is, as Mr Ruben hinted so strongly during his submissions for the plaintiffs, that it cannot be reasonable for the defendants to appropriate the plaintiff’s land and really use it without the plaintiff’s consent as if it were there own. It seems to me that thirteen metres out of twenty three being used by the defendants for their own purposes is far more entry points and entry space than is contemplated by the grants.

Saggers v Brown

30 The limits imposed by the requirement that user be reasonable – and in particular that the widest words of grant did confer a right to unlimited access from a right of way to any and all parts of the dominant land - were also adverted to in Carlson v Carpenter (1998) NSW ConvR 55-848, in which Cohen J said (at 56,639):

Pettey v Parsons

Saggers v Brown

Butler v Muddle

31 A different view, more generous to the dominant owner, that the dominant owner was entitled to use the site of such an easement to get to any part whatever of the dominant land, prevailed in Anderson v Pender [2002] NSWSC 1005, in which Campbell J was concerned with a right of carriageway over Lot 26 for the benefit of the adjoining Lot 25, the right of way running along the boundary of Lot 26 immediately adjacent to Lot 25. The proprietor of Lot 26 erected a paling fence along the boundary line for the full length of the boundary between Lots 25 and 26, having the effect of completely cutting off the site of the easement from the dominant tenement. His Honour said (at [11]):

Further, the right of carriageway on its correct construction entitles the dominant owner to use the site of the easement to get to such part as the dominant owner chooses of the dominant tenement. There is nothing in the terms of the grant of the easement to confine the dominant owner to having a destination in the backyard of Lot 25. The dominant owner is entitled to use the site of the easement to get to any part whatever of Lot 25, and to get across the northern boundary of the site of the easement at any point she chooses to get there.

32 Later, his Honour said (at [16]):

In the present case, it is clear that the easement has been interfered with. Given that the owner of the dominant tenement is entitled to have access to Lot 25 along the entirety of the length of the northern boundary of the site of the easement, the only way in which it is practical for those rights of the dominant owner to be enjoyed is by removal of the fence. Thus, it is appropriate to grant a mandatory injunction.

33 However, His Honour does not appear to have been referred to any of the authorities so far mentioned. The decision may be justifiable on the particular facts of the case, but insofar as it suggests that, absent contrary indication, such a right of way gives the dominant owner an entitlement to access along the entirety of the length of the boundary and to preclude the servient owner from fencing the boundary at all, it is inconsistent with a well-established line of authority, to which reference was not made in his Honour’s ex tempore judgment. In my respectful opinion, to that extent it goes further than authority justifies.

34 Young CJ in Eq returned to the extent of access to which the dominant owner was entitled in Chiu v Healey [2003] NSWSC 857, confirming that the dominant owner was not entitled to access at every point along the way so as to forbid the erection of a fence, but was entitled to reasonable access at points for him to determine from time to time. His Honour said (at [53]):

Normally, one would not expect that a person can have access from all points of the right of way. In the case of the standard right of way leading from point A to point B, it is quite clear that access can only be had at A and B. However, where a right of way runs alongside the dominant tenement, then the question of access can become awkward.

35 After reference to Butler v Muddle, and to the conclusion that ordinarily it could not be reasonable to have access points for 13 metres along a 23 metre frontage, his Honour continued:

One has got to look at what is reasonable in all the circumstances. The plaintiff is not entitled to access at every point along the way so as to forbid the construction of a wall. However, he is entitled to reasonable access at points for him to determine from time to time. Apart from having access through the blue door, he is entitled to at least one, I would say at least two, points of access in the backyard. These can change from time to time. …

36 These authorities establish that, ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable user of the right of way; that the dominant owner is not entitled to have the right of way remain unfenced; and that the dominant owner is not limited to a single point of access and does not irrevocably elect to use only one point of access by initially determining to do so, but may from time to time vary the points at which access is exercised to and from the right of way. Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct user of the right of way.

37 There is nothing within the terms of the easement presently under consideration to indicate anything other than that prima facie position. Is there any such indication in the circumstances pertaining at the time of creation of the easement (according to which, as is well-established, an easement is to be construed [Paterson & Barr Ltd v University of Otago [1925] NZLR 191, 194; Rodwell v G.R. Evans & Co Pty Ltd [1978] 1 NSWLR 448; SS & M Ceramics Pty Ltd v Yau Kin [1996] 2 Qd R 540; Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337, [26] – [28]; Nirimba Developments Pty Ltdv Sertari Pty Ltd [2007] NSWSC 252])?

38 For Mr Felton, it was argued that at the time of creation of the easement, Mr Wall used only one access point, and that relatively infrequently. For the Trewins, it is argued that at that time, and for that matter when each of the present parties acquired their respective lots, the easement was not fenced, so that access was possible at any point along it. To my mind, neither of these matters carries significant weight. First, as Ms Lane, for the plaintiffs, points out, this easement was not created by grant, but pursuant to s 88B upon registration of a plan of subdivision of land that for some considerable time (six years) remained in the ownership of Mr Wall. In such circumstances, I do not think any inference can be drawn from the circumstance that, while both lots remained in Mr Wall’s ownership, he did not fence any boundary between them, or that he made only limited use of the site of the right of carriageway. While they remained in his ownership, there was absolutely no reason for him to do so; the easement was created not for his purposes at the time of creation – he did not need an easement while he owned both lots – but in contemplation of the prospect that at some future time the lots would pass into separate ownership. As in almost all subdivisions, it was practically inevitable that once the lots came into separate ownership, the occupier of one or other might want to fence the boundary, and that would have been plainly foreseeable at the time of creation of the easement. In my view, the circumstance that, prior to the lots passing into separate ownership, Mr Wall had not erected a fence, is quite insufficient to justify a departure from what Waddell J called “the natural presumption” that a servient owner should be entitled to fence his land. On the other hand, the circumstance that while he remained the owner of both lots Mr Wall exercised access only at one point and for a limited purpose and infrequently does not support an inference that, following the sale of the subdivided lots, the new owners would be governed by the access regime that Mr Wall had adopted. There is a powerful objective indication of this, in the circumstance that the right of carriageway as created was not limited to so much of the length of the corridor as Mr Wall had used, but extended the full length of the corridor. The plain inference is that that was intended to give the dominant owner the facility of multiple access points into the rear of Lot 1, and the express terms of the grant are inconsistent in that respect with any notion that access was to be limited to the point at which Mr Wall exercised access. Accordingly, the prima facie position applies: Mr Felton is entitled to fence the corridor, but not so as to deny the Trewins suitable access points, via gates, to permit reasonable user by them of the right of carriageway.

39 At this point, it is necessary to refer to the decision of the Local Court, because at the centre of the dispute before that court was whether the Trewins were entitled to demolish, as an obstruction, the fence erected by Mr Felton between the apron and the corridor. By the time the council directed that work by Mr Felton’s fencing contractor on this fence cease, four panels of a Colorbond fence had been erected across the front of the proposed apron. This was erected on or about 12 October 2003, and was removed by the Trewins on 4 November. In the Local Court proceedings, Mr Felton claimed that he was entitled to fence the right of way, and that the Trewins had maliciously damaged his fence. The Trewins claimed that the fence was a nuisance, and that they had a right to remove it to abate the nuisance.

40 The Trewins maintained that they had already fenced their property, leaving a gap where they intended to access the rear of their property from the corridor for the purposes of accessing their proposed garage, and that the fence proposed and ultimately erected by Mr Felton did not permit that access. Mr Felton contended that 21 metres of access was excessive, and that if the Trewins were entitled to open new means of access they were not entitled to have it continuously unfenced so that at every inch of the way they may pass on to it at any time they choose, but were entitled only to reasonable access and not to unlimited access. The magistrate decided:

In relation to the subject matter it is clear that the easement was created to enable the defendant to have access by motor vehicle to the backyard of the property. The access from the easement must be reasonable. In my view the defendants [Trewins] is not restricted to access at the point used by the previous owner. The defendant was entitled to have access to the garage to be, or being erected on his property. Although the plaintiff is entitled to fence the boundary he must in doing so allow reasonable access by the defendant to the garage. By fencing across the front of the garage the plaintiff has obstructed the use of the easement by the defendant and that obstruction amounts to a nuisance. The defendant is entitled to abate the nuisance by removing it.

41 The proceedings in the Local Court were between identical parties as the present proceedings. In those proceedings, the magistrate decided the following issues essential to the outcome:

· That reasonable user of the right of way included access to the proposed garage;

· That any fence must allow reasonable access to the garage;

· That the Trewins were not limited to access at the point previously used by Mr Wall;

42 Because those were determinations necessary to the decision in the Local Court proceedings, and those proceedings were between identical parties as the present suit, issue estoppels arise in respect of them. I therefore reject the submission that the decision of the Local Court is irrelevant to what is reasonable access; it is decisive by way of issue estoppel that the current 13 metre access point is not unreasonable. However, the Local Court decision says nothing as to whether it is reasonable that the Trewins should have access between their property and the last 5 metres of the corridor, in addition to the access they already have for 13 metres in the vicinity of their garage.

43 If the dominant owner’s claim amounts practically to an exercise of rights of ownership over the site of the carriageway, then it will be excessive. To insist that there be no fence is excessive. Short of that, however, the dominant owner has a substantial degree of discretion. As has been seen, however, in Butler v Muddle Young J considered that use of 13 metres out of 23 of the boundary between the right of way and the dominant tenement for entry points and entry space was more than contemplated by the grant. His Honour returned to the topic in a supplementary judgment given on 13 June 1995, when the dominant owner proposed a total width of 9 metres, and the servient owner a total of 6 metres, for driveways. His Honour said:

The real question is, what is a reasonable user of the right of way? To a great extent this is a matter for the judgment initially of the owner of the dominant tenement. It is only when one gets to the situation where the dominant tenement owner is really seeking to establish that he has the same rights of user as a fee simple owner that one can clearly see that there has been an excessive user. Below this point things are more difficult.

I have seen the site and its configuration. I could not say that a total of 9 metres of a frontage of 24 metres is unreasonable and so I am prepared at this stage to say that I will make order 1 as per the defendant’s short minutes of order.

44 In the present case, the total length of the boundary between the right of carriageway and Lot 1, including the last 5 metres, is 38.8 metres. At present, 13.5 metres of that length are unfenced, permitting access from the right of carriageway to the garage. If, as the Trewins propose, the fence on the last 5 metres is demolished, the entry point will be a continuous unfenced length of 18.3 metres, out of a total boundary of 38.8 metres. It is to be observed that although at one stage the Trewins proposed to hinge the fence to the last 5 metres as a gate, this is no longer proposed, so that of the total boundary of 38.8 metres, 18.3 metres would be entirely unfenced.

45 Like Young J in Butler v Muddle, I have concluded that what the Trewins propose in that respect is excessive. In substance, they seek to deny Mr Felton the right to fence any of the last 18.3 metres of the right of carriageway. I accept that they are not to be limited to a single access point, but at present, their “single” access point is some 13.5 metres, which exceeds the accumulation of what would be required for four vehicular access points each 3 metres wide. I also accept that they are entitled to change access points from time to time, and that by foregoing some of their current access, they would become entitled to create a new access point at the last 5 metres. But in my view, so long as they maintain the 13.5 metre access currently in use, it would exceed the bounds of reasonableness also to require the last 5 metres to remain unfenced. In its present configuration, the 13.5 metres exhausts, but does not exceed, the limits of reasonable access.

To what extent does the easement permit the dominant owners to park?

46 The Trewins contend that, as dominant owners, they have implied ancillary rights, necessary for the effective and reasonable enjoyment of the right of way, to park their vehicles (and to authorise others to park vehicles) on the right of way for short periods, for example while delivering goods to the shop.

47 It is plain that in some cases, depending on the surrounding circumstances, a right of carriageway “to pass and repass with or without vehicles … for the purpose of obtaining access” may include an implied ancillary right for vehicles to remain on the right of way for such time as is reasonably necessary for loading and unloading [Bulstrode v Lambert [1953] 1 WLR 1064, 1069-71]. In that case, where the whole object of the right of way was for the purpose of the dominant owner and his workmen obtaining access - with or without vehicles - to an auction mart where the dominant owner’s goods were going to be auctioned and sold, and thus authorised the dominant owner to bring goods in vehicles to his auction mart, it necessarily followed that he or those authorised by him must be entitled to unload those vehicles, which could only be done on the right of way; there was no alternative location from which loading and unloading could take place. Upjohn J held that such a right was “an incident of the right of way expressly granted and may be described as ancillary to that easement, because without that right [the dominant owner] cannot substantially enjoy that which has been reserved to him”.

48 In Elliott v Renner [1923] St R Qd 172, Shand J held that a right of way over a laneway leading to shop premises included the right to bring vehicles to the premises and keep them standing outside the premises while they were being loaded or unloaded or otherwise employed for reasonable business purposes [see also Deanshaw v Marshall]. In Grinskis v Lahood [1971] NZLR 502, Hallam J added the proviso that in exercising any such right to stop to load and unload, the user must not obstruct other persons entitled to use the right of way.

49 However, in London and Suburban Land and Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480, where the dominant owner had the benefit of a right of way to pass and repass “for all purposes”, Millett J held that an express grant of right of way to commercial premises did not necessarily imply a right to load and unload goods from the easement to the dominant land, and that in that case the dominant owner was not entitled to park vehicles on the easement for the purpose of loading and unloading of goods, as there was no necessity to imply a right to do so, other adjoining land being available for that purpose. The availability of alternative means for loading and unloading provides the distinction between London & Suburban and Bulstrode.

50 Similarly, in Zenere v Leate (1980) 1 BPR 9300, McLelland J, as the later Chief Judge then was, acknowledged that a term was to be implied in an easement that the dominant owner had such ancillary rights as were reasonably necessary to give effective and reasonable exercise and employment of the rights expressly granted, but explained that any such implication depended upon necessity, and was negated by the availability of alternative means to achieve the purpose (at 9307):

Bulstrode v Lambert

McIlwraith v Grady

onto

I am therefore of the opinion that the defendants were not entitled to use the right of way site to have vehicles parked for loading or unloading or for any other purpose.

51 Likewise, in Butler v Muddle, Young J said:

In the instant case, the only ostensible right given by the right of carriageway is the right to pass and repass from Hillcrest Road onto lot 8. I cannot see any reason for implying some right to park along a relatively small frontage of 23 metres in order to be able to exercise that right. Accordingly, I cannot see any right to park which should be implied.

52 Accordingly, in the absence of an implied term, a right of carriageway which authorises passing and repassing to and from the dominant property, does not authorise parking on the site of the easement, except to the extent that it is necessarily part of passing and repassing to and from the dominant property – for example, as was conceded in Bulstrode v Lambert (at 1070), to halt for a brief moment to put down or pick up a passenger, as that was de minimis, but no more [Jones v Pritchard [1908] 1 Ch 630, 638; Zenere v Leate, 9306-7; Butler v Muddle].

53 The present case has many similarities with Zenere v Leate in this respect. When the right of way was created, there was no garage on Lot 1, and there was no gift shop business conducted from it. Mr Wall apparently conducted a lawnmower repair business from a smaller shed in the rear of the property. The right of way was created to enable vehicles to enter onto the rear of Lot 1. This was not a case in which the right of way was created to enable vehicles to approach Lot 1 for the purpose of loading and unloading goods. In any event, for that purpose vehicles could and can park in Gale Street outside the front of Lot 1, or could have parked on the rear of Lot 1 (and can still park in the apron area). As at the time of the grant, it seems that vehicles could be driven up the right of way onto Lot 1, and there was no necessity for parking vehicles on the site of the right of way for that purpose. In my opinion, the effective use and enjoyment by the dominant owner of the rights expressly granted by the easement did not at the date of creation (and for that matter does not now) necessitate that the dominant owners be able to park vehicles, for loading unloading or otherwise, on the site of the right of carriageway.

54 It follows that the Trewins are not entitled to use the site of the carriageway to have the vehicles parked, for loading or unloading or for any other purpose.

Should the easement be modified or partially extinguished?

55 Conveyancing Act, s 89, confers on the court a power to modify or extinguish easements (and other incorporeal hereditaments) in various circumstances. Although the summons claimed an order wholly extinguishing the easement, at the hearing Mr Mescher, who appeared for Mr Felton, pressed only for an order extinguishing it in respect of the last 5 metres, invoking the following grounds under s 89:

· That by reason of change in the use of Lot 1, the easement ought to be deemed obsolete [s 89(1)(a)];

· That the continued existence of the easement, unless modified, would impede the reasonable user of Lot 2 without securing practical benefit to the proprietors of Lot 1 [s 89(1)(a)];

· That the proprietors of Lot 1 by their acts or omissions may reasonably be considered to have abandoned the easement in part [s 89(1)(b)];

56 For the purposes of s 89(1)(a), “obsolete” means that the object of the easement is now incapable of fulfilment, or perhaps that the easement serves no present useful purpose [Re Mason and the Conveyancing Act (1960) 78 WN(NSW) 925, [1962] NSWR 762, 746]. It is insufficient that there has been a change in user of the dominant land; in Re Mason itself the court found that there had been a change in user of the dominant land and of the neighbourhood, but that the covenant nonetheless continued to serve a useful, albeit diminished, purpose. The critical question is whether the easement is obsolete, not whether there has been a change in the user of the dominant land.

57 I accept that there has been a change in the use of Lot 1: whereas at the time of creation of the easement it was used at least predominantly for residential purposes (although there may have been a small lawnmower repair business conducted from it), it is now used as a gift shop as well as a residence, and a large double garage plus carport has been erected at the rear. However, this does not render the easement obsolete. The easement continues to serve the useful purpose of providing access to the rear of Lot 1. The circumstance that alternative access may be available over the “public reserve” – now apparently gazetted as a road, though not constructed – along the south-eastern boundary of Lot 1, does not render the easement obsolete: it is an inferior access; it is unconstructed; and it would require passage over septic disposal lines which the Council does not permit.

58 Moreover, the easement provides the dominant owners with the facility from time to time in the future to change the particular points of access that they may wish to use, to maximise exploitation of Lot 1. As Young J said in Butler v Muddle:

I think it is rather artificial in the case where a right of way runs alongside the land which benefits from it to say that the parties intended that there should only be access at one spot. After all, land is developed perhaps every 50 or 60 years and dependent on the development so the dominant owner for the time being wants access even if there is only a single point of access at various points over the centuries.

59 And in Chiu v Healey, his Honour, with reference to that passage, added that the dominant owner was entitled to change the access points from time to time. The easement continues to serve that purpose for Lot 1. It is not obsolete.

60 As to impeding reasonable user of the servient land, it is insufficient that the applicant’s proposal is a reasonable use of the servient land; the applicant must show that no reasonable use of the land is possible unless the easement (or restriction) is extinguished or modified [Heaton v Loblay (1959) 60 SR (NSW) 332, 335 (Myers J)], and that the continuance of the easement unmodified “hinders, to a real, sensible degree, the land being reasonably used, having regard to the situation it occupies, to the surrounding property, and to the purpose of the [easement]” [In Re Ghey & Galton’s Application [1957] 2 QB 650, 663].

61 In my view the easement is no impediment to reasonable user of Lot 2. Its use as a residential home is a reasonable use and that is how it is presently being used. If it be said that it impedes reasonable user of the corridor, then the obvious purpose of the corridor is as an access way, and the easement does not impede its user as such. And the circumstance that the easement means that vehicles using it to its full extremity will approach close to Lot 2 and impinge on the privacy of the outdoor spa and entertainment area is not in my view an impediment to reasonable user of Lot 2, particularly when (as Mrs Felton conceded in cross-examination) the Feltons installed the spa pool at a location that they knew could be overlooked from the Trewins’ land.

62 Moreover, the easement secures practical benefits to the Trewins. First, as I have endeavoured to explain in concluding that the easement is not obsolete, it provides the proprietors of Lot 1 with the facility of obtaining access to their property from such reasonable points along its length as they may from time to time select. That includes the right of practical benefit to open an access point in the vicinity of the last 5 metres, if they choose to close some other access point, in connection with a potential future development of their property. Secondly, the easement – including the last 5 metres – facilitates manoeuvring vehicles into the garage on Lot 1, and the parking of trailers on Lot 1. Even if it is not essential for those purposes, the circumstance that it facilitates them is a practical benefit.

63 Abandonment of an easement occurs when the dominant owner makes it clear that neither it nor its successors will make any use of the easement, and is not lightly to be inferred [Gotobed v Pridmore (1970) 115 Sol Jo 78; Williams v Usherwood (1981) 45 P & CR 235, 256; Grill v Hockey (1991) 5 BPR 11,421; Chiu v Healey [36]]. Generally speaking, to found a conclusion of abandonment, conduct approaching if not equivalent to an implied release is required. Lengthy non-user of an easement is good, but not necessarily sufficient, evidence of abandonment [Swan v Sinclair [1925] AC 227; Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; Proprietors Strata Plan 9968 v Proprietors Strata Plan 11173 [1979] 2 NSWLR 605; Chiu v Healey, [36]].

64 Given that a dominant owner is entitled from time to time to change the access points along the length of a right of way that runs along the boundary of the dominant property, the fact that the dominant owner installs a point of access at one point along the length of the easement does not amount to an abandonment of the right to select another point of access at some time in the future [cf Chiu v Healey, [40]]. Accordingly, something more than mere selection of one point of access is required to found a conclusion of abandonment of so much of the easement as extends beyond the original access point.

65 Mr Felton relies on the combination of the selection of the large access point in the vicinity of the garage, and the fencing off (from June 2003 until May 2005) of the boundary between Lot 1 and the last 5 metres, to which is added the suggestion that, until mid 2005, the Trewins did not enter on the last 5 metres for the purpose of manoeuvring their vehicles, and that their subsequent use of the last 5 metres for that purpose has been artificially constructed for the purposes of this litigation.

66 Even if there had been non-user for a period of two years, that is far from the lengthy non-user which might give rise to an inference of abandonment. In Chiu v Healey, Young CJ in Eq considered a submission that abandonment was to be inferred from the dominant owner having allowed, consented to or otherwise acquiesced in the construction of a brick wall allowing no access or egress to or from his property between 1969 and 1998 (when it was replaced by a wooden fence), together with stone walls on another boundary, which were said to evince a positive intention to abandon or relinquish at least part of the right of way. His Honour rejected this (at [40]):

In my view this comes nowhere near the evidence needed to show abandonment. All it indicates is that for a period of time the plaintiff was prepared not to use his backyard or at least not to use it except by getting access through his own property. There have been continuous improvements of both properties over the years and I would think it would be quite unsafe to infer abandonment.

67 That analysis is apposite here, and because of the much shorter timeframe, and the insistence by the Trewins on their rights, all the more strongly so. It is quite clear, and must have been clear at all material times to Mr Felton, that far from intending to abandon any of their rights, the Trewins were vigilantly asserting them. The circumstance that they placed a fence along the boundary of the last 5 metres while exercising access elsewhere indicates no more than that for a period of time they desired to exercise their access elsewhere, and involves no abandonment forever of the right to determine that at some future time they would have access from the last 5 metres.

68 If there were any ground upon which Mr Felton could succeed, it would be under sub-paragraph (c), that the modification or partial extinguishment of the easement would not substantially injure the proprietors of the dominant land. The purpose of s 89 as a whole is to enable covenants which have no practical utility to the dominant land to be removed, so as to clear the title of the servient land, and in this context a substantial injury is one that has real and present substance, though it need not necessarily be large or considerable [Re Mason]. Mr Felton’s case was that partial extinguishment of the easement, insofar as it extended over the last 5 metres, would not substantially injure the Trewins, because they did not need to use it to gain access to the rear of Lot 1. Although I think Mr Trewin’s protestations of the need for the last 5 metres to negotiate vehicles into his garage were overstated, and the video evidence tends to show that vehicles can usually be manoeuvred into the garage without intruding onto the last 5 metres, I accept that use of parts of the last 5 metres facilitates the process. I also accept that use of the strip is convenient, if not essential, when parking trailers on Lot 1.

69 Jalnarne v Ridewood (1989) 61 P & CR 143 shows that interference with an easement, which makes it less convenient, although it remains passable, is an actionable nuisance. The servient owner erected a compound on part of the site of an easement. The judge said:

The plaintiffs are entitled pursuant to the grant in the conveyance to a right of way over that part of the access road which lies within the compound perimeter. I was satisfied by the evidence that lorry drivers would find it easier to reverse their lorries if they could before reversing enjoy that right of way by drawing forward onto that part of the access way which lies within the compound. The compound prevents them from drawing forward onto that part of the access road and makes reversing lorries more difficult. Irrespective of the fact that the plaintiffs are not particularly concerned that their access to the disused railway line is blocked by the compound, I am therefore satisfied that the compound interferes with the right of way, and does so substantially. For that reason it is a nuisance.

70 Similarly, in the present case, loss of the last 5 metres from the easement would be an inconvenience to the Trewins, and a reduction of the benefits afforded them by the easement in a practical sense. Moreover, it would remove forever their entitlement to change their points of access, so as to gain access from the last 5 metres to the remotest part of Lot 1. Loss of that facility might impose constraints on any future development, thereby impact adversely on exploitation of Lot 1 and on its value. To my mind, loss of that facility is a substantial (and not merely a trivial) injury.

71 It follows that none of the grounds for modification or partial extinguishment of the easement is made out. Even if any had been made out, I would not as a matter of discretion have granted relief under s 89 [Pieper v Edwards [1982] 1 NSWLR 336, affirming Edwards v Pieper [1981] 1 NSWLR 46; Re Cook [1964] VR 808, 810; Re Markim [1966] VR 494, 498; Perth Construction Pty Ltd v Mount Lawley (1955) 57 WALR 41, 48]. Even if any ground were established, the circumstances in which Mr Felton commenced erection of the gateposts despite his knowledge of the easement and despite warnings and despite the dismissal of his claim in the Local Court, create a formidable case for discretionary refusal of relief [Cf Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116, 56,858]. There is no reason why he should be permitted to expand his rights at the expense of those of the Trewins.

72 Mr Felton’s cross-claim, insofar as it seeks such a modification or partial extinguishment under s 89, therefore fails.

Has Mr Felton committed actionable obstruction of the right of way?

73 Whereas in the case of a public highway any appreciable obstruction is an actionable nuisance, in the case of a private right of way the obstruction is not actionable unless there is “a real substantial interference of the enjoyment of the right of way” [Clifford v Hoare (1874) LR9CP 362; Sketchley v Berger (1893) 69 LT 754; Pettey v Parsons, 662; Powell v Langdon, 139 (Roper J)].

74 The Trewins complain that Mr Felton has, by himself or his invitees, obstructed the right of way by:

· Erecting the fence along the last 5 metres;

· Erecting the gate posts at the commencement of the last 5 metres;

75 The Trewins further complain that the proposed installation of a gate at the commencement of the last 5 metres will obstruct the right of carriageway. This gate has now been swung, but has remained open, pursuant to Mr Felton’s undertaking, pending the hearing.

76 My conclusion that, given the extent of the access points which they currently enjoy, the Trewins are not entitled to insist on the last 5 metres remaining unfenced, means that the erection of a fence at that site is not an actionable nuisance. As I have indicated, the Trewins may in the future from time to time change the points at which they exercise access between the rear of Lot 1 and the corridor, and if they close some part of the access currently used, they may then be entitled to open an access point at the last 5 metres. As presently advised, and consistent with the principle that the dominant owner is entitled to construct a right of carriageway at its own expense, but not to have the servient owner construct a way that is not constructed, any such change of access points should be at the Trewins’ own cost, but for present purposes I need not determine that question.

77 So far as the gateposts are concerned, they are substantial brick structures and have the effect of narrowing the right of way at the commencement of the last 5 metres to 3.02 metres. Although 3 metres is sufficient for the passage of vehicles, this point in the right of way is one where maximum manoeuvrability is important to users, since it is the vicinity in which vehicles manoeuvre and turn to enter the garage on Lot 1, and those manoeuvres are restricted – particularly in the case of a vehicle towing a trailer – by the gateposts.

78 Generally there is no obligation on a servient owner to maintain the full width of the easement throughout, so long as there is no substantial interference with reasonable exercise of the right of way. Thus in Powell v Langdon, while Roper J held that a gate and low wall erected by the servient owner on a right of way over a strip of land 20 feet wide, leaving an opening of 8 feet 2 inches, was a real and substantial interference, notwithstanding that it was passable, because it constrained manoeuvrability, his Honour nonetheless thought that a 10 foot opening would have been sufficient. But in my view, the gateposts at the point at which they are located reduce the width of the right of carriageway below that of ordinary convenience for its users. Accordingly, the gateposts are an actionable obstruction.

79 It does not necessarily follow that a gate, swung on narrower posts but in the same vicinity, would be an actionable obstruction. On the most generous view of Mr Trewin’s evidence, the Trewins need to use the last 5 metres in the present configuration only when they have a trailer attached or to be attached. Mr Trewin gave contradictory evidence as to whether it was necessary to enter on the last 5 metres when reversing into the second garage bay, being that closest to the Felton’s property. Mrs Trewin maintained that she needed to enter onto the last 5 metres in order to reverse into that bay, but having viewed the video evidence and inspected the site I am not satisfied that that is so. Nonetheless, I do accept that in order to manoeuvre a trailer, entry onto the last 5 metres is reasonably required. The only contrary proposition advanced amounted to the suggestion that the trailer could be detached and manhandled, and an obstruction that required the dominant owners to do that would be an unreasonable one.

80 However, Mr Trewin’s evidence was that a trailer was used in some weeks not at all and in some weeks two or three times, the intensity being at the higher end of that range at present because renovations were underway to their house. The purpose for which Mr Felton wishes to have a gate is privacy and security of his home. It is not an actionable obstruction for the servient owner to fence off a part of the easement, which is not required for the reasonable exercise of the right of way [Powell v Langdon, in which Roper J was of opinion that a fence erected along part of the right of way so as to effectively excise 5 of its 20 foot width from that available for users for part of its length, in order better to secure the privacy of a cottage on the servient tenement, would not be an actionable obstruction]. Similarly, in the current configuration of the access arrangements, I do not think it would be an actionable obstruction to gate the last 5 metres for the purposes of enhancing the privacy of the home on Lot 2, so long as the Trewins can open the gate, although it may be otherwise if the access points were reconfigured so as to include one from the last 5 metres.

81 As has been seen, generally speaking, a servient owner may erect a gate across a right of way, provided that it is not a substantial obstruction and is left unlocked [Pettey v Parsons; Gohl v Hender; Powell v Langdon, 139; Deanshaw v Marshall]. In Johnstone v Holdway [1963] 1 QB 601, the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public, but offered the dominant owner the combination for the lock. The dominant owner’s suit for a mandatory injunction to remove the spiked chain failed, the Court of Appeal holding that there was no substantial interference with the right of way: the dominant owner had the means of access through the gate.

82 Sometimes it has been stipulated that the gate should be left open during such times as persons entitled to use the right of way might reasonably be expected to do so [Pettey v Parsons; Powell v Langdon], while in other cases, the dominant owner has been obliged to open and shut the gate; to my mind these cases are distinguished by the circumstance referred to by Roper J in Powell v Langdon - although his Honour was using the distinction in the context of the appropriate width of the aperture - that “this right of way is more akin to a laneway leading to the boundaries of the plaintiff and of the occupiers of the rear blocks than to a way made for their own convenience within their own boundaries”. The present right of way is more akin to a private driveway made for the owner’s convenience within its own block, over which a neighbouring owner is also granted a right of use, and I can see no reason why the servient owner should not be entitled to gate it in order to secure his land. As he has not done so at the entrance from Gale Street, I do not think it unreasonable that he do so at some remoter point from Gale Street. Had he gated it at Gale Street, the Trewins would have had to pass through it (and open it if closed) every time they used the right of carriageway. In its proposed location, they will have to do so only on the infrequent occasions that it is necessary for them to enter on the last 5 metres. I do not consider it an unreasonable impediment to use of the right of carriageway that such a gate be closed, so long as it not be locked and the Trewins have the ability to open and operate it. Accordingly, a gate at the commencement of the last 5 metres would not be an actionable obstruction, so long as the Trewins are able to open it.

83 That leaves the question of parking. The evidence of Mrs Trewin establishes that from time to time vehicles of the Feltons’ invitees, if not the Feltons themselves, have been parked on the corridor. No actual inconvenience has been occasioned to the Trewins by this, save perhaps for an occasion in November 2003 when the Feltons “parked in” a truck that was delivering timber to Lot 1 for the construction of the garage, which was itself parked on the site of the right of carriageway while unloading timber, blocking entry and egress by the Feltons’ vehicles to and from Lot 2. On each other occasion, the evidence does not establish that there has been any actual interference with persons or vehicles using the right of carriageway, although there may have been potential obstruction.

84 It is clear that the parking of a car by the servient owners on the right of way may be an actionable obstruction. In Jalnarne, it was found that the servient owners had consistently parked a vehicle on the access road, immediately in front of the compound gates. This was conceded to be a breach of the covenant not to obstruct the roadway or park any vehicles on it, in respect of which his Honour said (at 16):

I have also by their concession found them liable for parking their motor car on the roadway in breach of covenant. That is also an interference with the right of way and is a nuisance. According to the affidavit of Mr Caple, which was in evidence, that state of affairs has continued since about 1985, some four years. I shall grant to the plaintiffs an injunction restraining Mr and Mrs Ridewood from parking the vehicle on the roadway. As for damages there is some evidence in Mr Caple’s affidavits that both plaintiffs have been inconvenienced by the wrongful parking. The appropriate measure of damages is in my judgment £200 to Jarlnarne and £200 to Noah’s Garage.

85 However, while there may be an actionable obstruction even though no one is in fact obstructed, there must be something that would have the effect of hindering passage if anyone wanted to pass [Ewing Phosphate Company v Driver (1903) 23 NZLR 108, 111 (Williams J)]. In this context, it is also important to bear in mind all the circumstances, including the rights of the servient owner and other persons entitled to use the way. It is not to be overlooked that the servient owner is entitled to do as it pleases on the servient land, so long as it does not interfere with reasonable use of the right of carriageway. It is not every act of parking on the right of carriageway that constitutes an actionable obstruction: for example, to park on the right of carriageway in a manner and location that did not obstruct the passage of the dominant owner or his licensees would not be a nuisance. To park there for a short time in circumstances that, in the event of the dominant owner or his invitees requiring access or egress, the vehicle could be promptly moved would, I think, not be an actionable obstruction.

86 Generally speaking, the parking of which the Trewins complain appears to have taken place in the vicinity of the last 5 metres. I accept that, to the extent that vehicles block access into the last 5 metres, this has the potential to obstruct reasonable user on those infrequent occasions when it is necessary or convenient for vehicles entering or leaving the rear of Lot 1 to manoeuvre on the last 5 metres. However, parking in that area has been only very occasional, and does not appear on any of those occasions to have actually prevented access and egress between the rear of Lot 1 and Gale Street. Except for the one occasion, in November 2003, when the Trewins’ invitees were in any event themselves blocking the carriageway, I am unpersuaded that any act of parking on the site of the carriageway by or on behalf of the Feltons constituted a real and substantial obstruction.

87 It follows that the only obstruction that the Trewins have established against Mr Felton is the erection of the gateposts.

88 For Mr Felton, it was submitted that no mandatory injunction requiring the demolition of the gateposts should be granted, essentially by reference to the doctrines of laches and acquiescence. It was also submitted that the Trewins had, by their conduct, created an estoppel precluding them now from unconscionably asserting their rights, for which Greater Sydney Development Association Ltd v Rivett (1929) 29 SR (NSW) 356 was cited. In this behalf, it was contended that the Trewins’ acts and omissions (essentially, previously fencing the last 5 metres), conveyed a representation that the terms of the easement were no longer enforceable in respect of the last 5 metres, so as to disentitle the plaintiffs from a mandatory injunction [Chatsworth Estates Company v Fewell [1931] 1 Ch 224, 231].

89 For the reasons that I have rejected the argument of abandonment, I also reject this argument. The use of only certain access points does not convey a representation that the dominant owner will not in the future choose different access points. Given the Trewins’ continuous insistence on what they perceive to be their rights, it is incomprehensible that Mr Felton would have thought that they were agreeing to make the slightest concession in his favour.

90 It was also argued for Mr Felton that the hardship inflicted on him by a mandatory injunction would be disproportionate to the extent of the plaintiffs’ injury or inconvenience. However, in my view Mr Felton took a calculated risk by constructing the gateposts when he did, well knowing the Trewins’ attitude [cf Middleton v Arthur [2002] NSWSC 627

(Palmer J), [88] – [92]].

91 It follows that in my opinion the Trewins are entitled to a mandatory injunction requiring removal of the gateposts.

Have the Trewins committed trespass by excessive user of the right of way, by allowing vehicles to park on it?

92 The evidence establishes that - for relatively short periods of time, usually measurable in less than five minutes – vehicles of the Trewins or their invitees have been parked on the right of way. The Trewins conceded in cross-examination that, following the opening of their shop in March 2005, their suppliers’ vehicles parked daily on the easement for short periods; that this reduced in frequency, but that it continues, albeit at reduced frequency, until today. As I have already concluded, this is not authorised by the easement, and therefore constitutes a trespass by excessive user.

93 Despite the submissions on behalf of Mr Felton, the evidence does not establish that any actual inconvenience has been occasioned as a result; on each of the three occasions when egress by a Felton vehicle might have been inhibited, the parked vehicle was promptly moved, so that any delay could be measured in seconds. Nonetheless the Trewins, while not vicariously liable for trespass by others, are obliged to take steps to ensure that their invitees do not exceed the terms of the easement, and Mr Felton is entitled to an injunction restraining the Trewins from licensing or inviting or authorising any persons to use the right of carriageway without ensuring that those persons do not park on the carriageway. As Moseley J said in Jalnarne, “How they ensure that is a matter for them”.

Conclusion

94 My conclusions may be summarised as follows.

95 In the case of an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner’s reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced.

96 That prima facie position is not displaced in this case by the express terms of the easement, nor by the circumstances pertaining at the time of creation of the easement, which are of no weight in a case such as the present when the likelihood of the lots passing into separate ownership in the future – with a consequential necessary change in the relationship between the lots and the use of the easement – was the reason for its creation.

97 Accordingly, Mr Felton is entitled to fence the corridor, but not so as to deny the Trewins suitable access points, to permit reasonable user by them of the right of carriageway.

98 While the Trewins are not to be limited to a single access point, and are entitled to change access points from time to time, at present, their “single” access point of some 13.5 metres – which exceeds the accumulation of what would be required for four vehicular access points each 3 metres wide – exhausts, but does not exceed, the limits of reasonable access, although by foregoing some of their current access, they would become entitled to create a new access point at the last 5 metres.

99 The Trewins are not entitled to use the site of the carriageway to have vehicles parked, for loading or unloading or for any other purpose.

100 The last 5 metres of the easement continues to serve a practical purpose, and its loss would be a substantial injury to the dominant owners, in that it facilitates manoeuvring vehicles with trailers, and it provides the facility and flexibility for the Trewins if they wish to change their points of access, so as to gain access from the last 5 metres to the remotest part of Lot 1. None of the grounds for modification or extinguishment under s 89 are satisfied, and in any event I would decline on discretionary grounds to grant relief under s 89.

101 The concrete gateposts, because of their size and the manner in which they narrow the carriageway, are an actionable obstruction. A gate hung at the same point, on much narrower gateposts, would not be an obstruction, so long as the Trewins can open it whenever they wish to use the last 5 metres. The fencing of the last 5 metres is not an obstruction. The parking of vehicles by the Feltons or their invitees on the site of the easement, in circumstances that they have caused no actual inconvenience, has not constituted a real and substantial obstruction so as to be actionable.

102 The Trewins are entitled to a mandatory injunction against Mr Felton requiring demolition of the gateposts, but not in respect of the other alleged obstructions of which they have complained.

103 Mr Felton is entitled to an injunction restraining the Trewins from authorising persons to use the carriageway without ensuring that they do not park or remain in it.

104 Mr Felton is not entitled to an order modifying or partially extinguishing the easement.

105 The parties have asked that I defer the question of costs until they have had an opportunity of considering my reasons.

106 My orders are:

1. Direct that by 10 August 2007 the plaintiffs serve and lodge with my associate short minutes of the orders they propose to give effect to this judgment, and their submission on costs.

2. Direct that by 15 August 2007 the defendant serve and lodge with my associate any alternative short minutes, and his submission on costs.

3. Adjourn the proceedings to a date to be fixed for short minutes and argument as to costs.

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Citations

Trewin v Felton [2007] NSWSC 851

Most Recent Citation

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CITATION:	Trewin v Felton [2007] NSWSC 851
HEARING DATE(S):	14-17 May 2007 Written submissions 20 June 2007
JUDGMENT DATE :	7 August 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	Defendant is entitled to fence and gate corridor, but not so as to deny plaintiffs suitable access points, to permit reasonable user by them of right of carriageway. In current configuration, 13 metre access point exhausts limits of reasonable access. Plaintiffs are entitled to mandatory injunction requiring demolition of gateposts, but not in respect of other alleged obstructions. Defendant is entitled to injunction restraining plaintiffs from authorising persons to use carriageway without ensuring that they do not park or remain in it. Defendant is not entitled to order modifying or partially extinguishing the easement.
CATCHWORDS:	REAL PROPERTY – Torrens title – Easements – Right of carriageway – Construction – where created by s 88B instrument – where easement runs along length of a boundary of dominant land – extent of access points permitted from easement to dominant land – servient owner’s right to gate and fence easement – whether dominant owner entitled to park or remain on easement – Modification and extinguishment – whether obsolete – whether impedes reasonable user of servient land without securing practical benefit to dominant land – whether abandoned – whether can be modified without substantial injury to dominant owner – Obstruction – by gateposts – by gate – by fence – by parking – remedies – mandatory injunction – Trespass – by excessive user – parking by users authorised by dominant owner – remedies – injunction restraining authorising use without ensuring users do not park
LEGISLATION CITED:	(NSW) Conveyancing Act 1919, s 89(1)
CASES CITED:	Anderson v Pender [2002] NSWSC 1005 Bulstrode v Lambert [1953] 1 WLR 1064 Butler v Muddle (1995) 6 BPR 13,984 Carlson v Carpenter (1998) NSW ConvR 55-848 Chatsworth Estates Company v Fewell [1931] 1 Ch 224 Chiu v Healey [2003] NSWSC 857 Clifford v Hoare (1874) LR9CP 362 Deanshaw & Deanshaw v Marshall (1978) 20 SASR 146 Dunell v Phillips (1982) 2 BPR 9517 Elliott v Renner [1923] St R Qd 172 Ewing Phosphate Company v Driver (1903) 23 NZLR 108 Gohl v Hender [1930] SASR 158 Gotobed v Pridmore (1970) 115 Sol Jo 78 Greater Sydney Development Association Ltd v Rivett (1929) 29 SR (NSW) 356 Grill v Hockey (1991) 5 BPR 11,421 Grinskis v Lahood [1971] NZLR 502 Heaton v Loblay (1959) 60 SR (NSW) 332 Hose v Cobden [1921] VLR 617 Jalnarne v Ridewood (1989) 61 P&CR 143 Johnstone v Holdway [1963] 1 QB 601 Jones v Pritchard [1908] 1 Ch 630 London and Suburban Land and Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480 Middleton v Arthur [2002] NSWSC 627 Nirimba Developments Pty Ltd v Sertari Pty Ltd [2007] NSWSC 252 Paterson & Barr Ltd v University of Otago [1925] NZLR 191 Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337 Pettey v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR (NSW) 136 Proprietors Strata Plan 9968 v Proprietors Strata Plan 11173 [1979] 2 NSWLR 605 Re Ghey & Galton’s Application [1957] 2 QB 650 Re Mason and the Conveyancing Act (1960) 78 WN(NSW) 925, [1962] NSWR 762 Rodwell v G R Evans & Co Pty Ltd [1978] 1 NSWLR 448 Saggers v Brown (1981) 2 BPR 9329 Sketchley v Berger (1893) 69 LT 754 SS & M Ceramics Pty Ltd v Yau Kin [1996] 2 Qd R 540 Swan v Sinclair [1925] AC 227; Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Williams v Usherwood (1981) 45 P & CR 235 Zenere v Leate (1980) 1 BPR 9300
PARTIES:	Audrey Trewin (first plaintiff) Stephen Albert Trewin (second plaintiff) Graeme John Felton (defendant)
FILE NUMBER(S):	SC 3832/05
COUNSEL:	Ms P Lane (plaintiffs) Mr I Mescher w Ms A Horvath (defendant)
SOLICITORS:	Crane Butcher McKinnon Lawyers (plaintiffs) R I McBroom, Solicitor (defendant)