v Enterprises Pty Ltd v Spraymore Pty Ltd - [2023] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
V ENTERPRISES PTY LTD v SPRAYMORE PTY LTD & ANOR
[2023] SADC 136
Judgment of his Honour Auxiliary Judge Chivell
18 October 2023
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
Application for review of a decision of a Judicial Registrar in a Minor Civil Action – Application pursuant to Fences Act 1975 (SA), s 12 – Applicant owner of land gave notice of intention to build a fence on land subject to a right of way – whether a substantial interference with the rights of the grantee.
Application to review granted – order of Judicial Registrar varied.
Fences Act 1975 (SA) s 5, s 6, s 12, referred to.
Bulstrode v Lambert [1953] 1 WLR 1064; Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; Dudley v Ainsworth [2021] NSWSC 1478; Gohl v Hender [1930] SASR 158; Hare v van Brugge [2013] NSWCA 74; Kyren Pty Ltd v Cinema Place Pty Ltd [2006] SASC 93; Lowe v Kladis [2008] NSWCA 130; McIlraith v Grady [1968] 1 QB 468; Pettey v Parsons [1914] 2 Ch 653; Sertari Pty Ltd v Nirimba Development Pty Ltd [2007] NSWCA 324; Trewin v Felton [2007] NSWSC 851; Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; Zenere v Leate (1980) 1 BPR 9300, considered.

V ENTERPRISES PTY LTD v SPRAYMORE PTY LTD & ANOR
[2023] SADC 136
Civil

This is a dispute about a right of way. The parties own neighbouring properties in an industrial estate in Hendon, a suburb of Adelaide.
The estate was originally a munitions factory, built during World War II. It was later owned by Philips and used to manufacture electrical appliances and equipment.
In 1989 the land was divided into 28 allotments and developed as an industrial estate. The applicant in this matter, V Enterprises, owns Allotment 15, and the respondents, Spraymore and Mr Elliott, own Allotment 14.
In order to allow ready access to the various allotments, the developer granted rights of way through certain parts of the property, and one such was created between Allotments 14 and 15.
The right of way is 7.8 metres wide and extends from the eastern wall of the building on Allotment 15 to the western boundary of Allotment 15. The right of way is approximately 100 metres long and is aligned in a north-south direction.[1]
[1] See Annexure ‘A’ to the judgment of Judicial Registrar Burke [2023] SAMC 63.
Mr Luke Koumi, the director of the applicant company which owns the land on which the right of way is granted (the “servient tenement”), gave notice to the respondents, the owners of the “dominant tenement”, of its intention to construct a fence along the common boundary of its property and the right of way pursuant to s 5 of the Fences Act1975.
The respondents responded with a cross-notice and letter pursuant to s 6 of the Fences Act objecting to the construction of a fence on the grounds that:
1.the proposed fence would inhibit the respondents’ access from the right of way to their property and thereby;
2.obstruct their use and enjoyment of the right of way; and
3.cause inconvenience, nuisance and disruption to their use and enjoyment of their land (which is facilitated by the laneway).[2]
[2] Letter from Botten Levinson to Mr Luke Koumi dated 24 May 2022 (Exhibit GPE-17 to the affidavit of Glen Paul Elliott).
The parties were unable to resolve their differences, so the applicant initiated proceedings in the Magistrates Court pursuant to s 12 of the Fences Act.
Mr Elliott, the director of the respondent company, argued successfully before the Judicial Registrar, Mr Burke, that it would constitute an unreasonable interference with his rights if a fence was constructed which separated the building at any point from the right of way.
Mr Elliott explained that the large building on Allotment 14 was divided into two tenancies. The building is rectangular, with the longer sides running north-south. The division is also north‑south. The tenancy in the western half of the building can only be accessed in a practicable way from the western side of the allotment, that is, from the right of way.
Issue Estoppel?
There were earlier proceedings between these parties raising the same issues. On 1 October 2019 the matter was resolved when an oral agreement was made between Mr Koumi and Mr Elliott. As is the case with many oral agreements, the parties do not agree about the terms of the agreement.
What is not in dispute is that following the agreement, gates were installed at either end of the area which includes the applicant’s land and the right of way.
It appears that this arrangement did not result in a satisfactory outcome for the applicant so he filed these further proceedings. The respondents say the applicant is precluded from doing so.
The Judicial Registrar held[3] that the respondents had not proven that it was a term of the agreement that there would be no fence along the boundary of the applicant’s property and the right of way area.
[3] [2023] SAMC 63 at [26].
In any event, I am unable to find anything in the Fences Act which precludes successive applications. Section 12(2)(d) specifically empowers a court to “re-open and correct or vary any agreement arrived at under this Act”, which seems to contemplate successive applications. I agree with the Judicial Registrar that the applicant is not precluded from bringing this application.
The Judicial Registrar substantially upheld the contentions of the respondents, and permitted the applicant to install a fence only to the extent of about 25 metres along the 100 metre boundary, concluding that:
… (a) fence along the vast majority of the boundary would be a substantial interference with the respondents’ use of the (right of way), I refuse the applicant’s application for a fence to be installed along the entire length of the (right of way).[4]
[4] [2023] SAMC 63, [67].
The Judicial Registrar had regard to the relevant authorities. Having also reviewed them, I conclude that the following principles should be applied:
1.What constitutes a substantial interference with the reasonable use and enjoyment of a right of way is a question of fact to be determined in the particular circumstances of the case, with due regard to the competing rights and interests of the parties (Pettey v Parsons [1914] 2 Ch 653; Gohl v Hender [1930] SASR 158 at 162 per Napier J).
2.The rights granted in a right of way are to be found either expressly or by necessary implication in the terms of the grant (Zenere v Leate (1980) 1 BPR 9300 at 9304 per McLelland J).
3.The owner of the dominant tenement has such ancillary rights to the right to pass and repass as are reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted (Zenere v Leate (supra)).
4.Included in the rights of the owner of the dominant tenement is the right to stop vehicles in the right of way for the purpose of loading and unloading, or other reasonable activities, so long as that does not unreasonably interfere with the rights of the owner of the servient tenement to the use and enjoyment of his land (Bulstrode v Lambert [1953] 1 WLR 1064; McIlraith v Grady [1968] 1 QB 468 referenced in Zenere v Leate (supra); Kyren Pty Ltd v Cinema Place Pty Ltd [2006] SASC 93).
5.The owner of the servient tenement is entitled to fence the right of way, but not so as to substantially interfere with the reasonable use of the right of way by the owner of the dominant tenement, through gates at such points as meet the dominant user’s reasonable requirements (Gohl v Hender (supra); Zenere v Leate (supra); Dudley v Ainsworth [2021] NSWSC 1478; Trewin v Felton [2007] NSWSC 851; Lowe v Kladis [2008] NSWCA 130).
6.Evidence may be led as to the physical characteristics of the tenement to assist in the interpretation of the terms of the grant (Gohl v Hender (supra); Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45, (2007) 233 CLR 528; Sertari Pty Ltd v Nirimba Development Pty Ltd [2007] NSWCA 324; Hare v van Brugge [2013] NSWCA 74; Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9).
Applying those principles to the case before me, firstly, I agree with the Judicial Registrar that the evidence of Mr Moore as to the reasons why the easement was created, and what the developer intended as to the future use of the right of way, was not admissible and should be disregarded.
Consideration
At the hearing of the review I explained to Mr Koumi and Mr Elliott, neither of whom was legally represented, the legal issues to be considered as best I could. In particular, I indicated that the applicant had the right to fence his land, provided the fence did not unreasonably interfere with the use of the dominant tenement. They both impressed me as intelligent and articulate men, although they had both become somewhat fixed in their attitudes after a lengthy period of disputation.
After an adjournment, Mr Elliott, after consulting with his tenants, accepted that if the applicant was permitted to fence his land, the provision of 25-metre gates which allowed access to large roller doors in the western wall, at the northern and southern ends of the building, would enable his tenants’ business to continue without undue hindrance.
Mr Koumi argued against the proposal, saying that more than one gate would be unreasonable. He pointed out that Mr Elliott had ample room to load and unload on the eastern side of the building. Mr Elliott, he said, had chosen to design the layout of his building so that it was divided longitudinally in a north-south direction. Mr Elliott pointed out that the building was already divided that way when he purchased it in 1990. I accept Mr Elliott’s contention here. His tenants cannot supply materials to the western side of the building from the eastern side. The only practicable way of doing so is via the right of way. I regard his proposal for two gates as reasonable.
Both parties complained about the other blocking the right of way either with trucks or other vehicles. They should both now be fully aware that the owner of the dominant tenement may not regard the right of way as his own, but rather should recognise that he is only entitled to pass and repass and to the ancillary uses which are reasonable. On the other hand, the owner of the servient tenement may not substantially interfere with the dominant owner’s right to pass and repass as outlined above.
Conclusion
It follows from what I have said that the application for review of the Judicial Registrar’s decision in this matter should be allowed. I make the following orders:
That the order of the Judicial Registrar numbered 1 be revoked, and in its place the following order is made:
The applicant is permitted to install a fence on the boundary between its property and the respondents’ property. The fence may extend along the entire length of the right of way. The applicant will provide openings in the fence, 25 metres in length: the first opening commencing at a point west of the northern wall of the building on Allotment 14 and extending south for a distance of 25 metres, and the second opening commencing at a point west of the southern wall of the small outbuilding and extending south for a distance of 25 metres. The openings may be controlled by gates. The gates will allow the respondents access to Allotment 14 from the right of way at all times reasonably required for the purposes of business conducted on the property. The fence is to be 2100 mm high and constructed of a corrugated Colorbond steel, with posts and rails to be situated on the respondents’ side of the fence.
Orders 2 and 3 are unchanged.
Order 4 is varied so that it should read:
The parties have liberty to apply to seek further orders in respect of the colour of the fence, the design and construction and operation of the gates, and the costs of this action. Such liberty is to be exercised within 28 days of 18 October 2023 by emailing the Registry.