Anderson & Anor v City of Stonnington [2014] VSC 519

2 Until 29 August 2014, pedestrians could access Lovers Walk from William Street via the laneway. On that day, the plaintiffs erected a fence in the laneway. Access from Lovers Walk into the laneway is now blocked. Although there is a locked gate incorporated into the fence and a key has been provided to the defendant, the gate opens on to one of the pre-existing bollards. In practical terms, the fence blocks all access from Lovers Walk into the laneway, and from William Street, via the laneway, into Lovers Walk. This is the third fence in the history of this dispute that has been erected in pursuit of this objective.

3 On 28 August 2014, the plaintiffs' solicitors informed VicTrack that the fence's purpose was to address nuisance activity. On 5 September 2014, the defendant's solicitors demanded that the fence be removed. On 12 September 2014, the plaintiffs sought an undertaking that the defendant would not remove, demolish or otherwise damage the gate and the fence. The defendant declined to so undertake and re-stated its intention to remove the fence without further notice.

4 The plaintiffs issued an originating motion on 18 September 2014.

5 This is not a proceeding that falls within Rule 4.05 or Rule 4.06 that optionally permits commencement of a proceeding by an originating motion rather than a writ. An inappropriate originating process has been used. However, the defendant took no objection to the form of the proceeding on this application. The relief sought by the plaintiffs is:

An injunction, including an interlocutory injunction, to restrain the defendant, whether by itself, its servants or agents or otherwise howsoever, from interfering with, removing or relocating the fence from the fence line marked fence on the plan in the schedule annexed to the originating motion in this proceeding.

The plaintiffs' present application is for an interlocutory injunction so restraining the defendant until the trial of the proceeding.

6 The defendant concedes that there are serious questions for trial in the proceeding but contends that the balance of convenience does not favour any injunction and I ought to refuse the application.

7 The applicable principles on this application are identified by the High Court in Australian Broadcasting Corporation v O'Neill.[1] Those principles may be summarised as follows:

(a) The plaintiffs must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiffs' entitlement to relief not whether it is more probable than not that the plaintiffs will succeed at trial. The sense in which the test is understood is that the plaintiffs must prove, prima facie, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial.

(b) In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraint sought. The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

(c) The injury which the plaintiffs are likely to suffer must be such that damages will not provide an adequate remedy;

(d) The balance of convenience must favour the granting of an injunction. The balance of convenience requires consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve consideration of the strength of the plaintiff's claim assuming that a serious issue has been identified. In Victoria, this consideration is further clarified by the decision of the Court of Appeal in Bradto Pty Ltd v Victoria.[2] The court must, in determining whether to grant an interlocutory injunction:

... take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense of granting an injunction to a party who fails to establish his rights at the trial, or in failing to grant an injunction to a party who succeeds at trial.[3]

(e) While there may be other discretionary considerations which militate against the grant of an injunction, none arise in this particular case.

8 The laneway is bluestone cobbled, running from William Street to the rear of the properties at 19 and 21 William Street. Each of those properties uses the easement for vehicular access to garages. The laneway is land now owned by VicTrack as the successor to the Victorian Railways Board and originally owned, for present purposes, by the Victorian Railways Commissioners. In 1920, the Victorian Railways Commissioners created a carriageway easement over the laneway in favour of the plaintiffs' land in lieu of the right of carriageway that could no longer be exercised because of duplication of the rail line. In 1982, the Victorian Railways Board created a carriageway easement over the laneway for the benefit of the proprietors of the land at 19 William Street.

9 The disputed fence is wholly on land owned by VicTrack. That land is managed by the defendant because, it contends, it is obliged to do so by the Road Management Act 2004. The fence was erected without a building permit and without the consent of VicTrack.

10 The affidavits read on the application reveal a long history of concern about access from Lovers Walk to the laneway permitting nuisance activities in the laneway at night. In her affidavit, the first plaintiff, refers to the erection of a fence in 2007, roughly in the position of the existing fence. That fence was a chain link fence supported by two posts cemented into the ground. That fence had not been erected with the consent of the defendant or VicTrack and it stood for approximately two to three weeks. The defendant wrote to the proprietors of 19 William Street threatening legal action and the fence was removed.

11 The first plaintiff and her husband acquired their property after that time and since they have lived at 21 William St, they have, as the first plaintiff puts it, '... experienced a continual and increasing number of distressing and threatening situations occurring in the laneway', which she compendiously describes as the nuisance activity.

12 The first plaintiff says the area generally, and the laneway in particular, is poorly lit and becomes host to a number of unsavoury characters including but not limited to drug dealers and the like. In addition, graffiti writers constantly vandalise the fence that abuts the laneway. Other antisocial behaviour includes youth drinking, urination, abusive and threatening language and there have also been a number of break-ins and attempted burglaries in the apartments at 19 William Street.

13 The first plaintiff suggests the privacy offered by the unfettered access to the laneway makes it a host for this sort of continuing antisocial, disruptive and threatening behaviour. There is exhibited to her affidavit a log that she has maintained of the vandalism activities.

14 There is a history of dealings with the council in relation to these complaints that is set out in full in the first plaintiff's affidavit and which I need not fully recite. Other incidents that raised concern involved the safety of pedestrians in the laneway when vehicles are manoeuvring through the laneway. The first plaintiff refers to an incident on 18 October 2012 when a pedestrian was almost injured as she reversed her car into her property.

15 In late 2012, petitions were presented to councillors of the defendant supporting the closure of the laneway at its western end and the matter came before council in December 2012. I will not set out in full what occurred during 2012 and 2013 save to note that there was considerable interaction between the plaintiffs and council over the ongoing issues that were created by the open access between Lovers Walk and the laneway.

16 By late 2013, the nuisance activity had been occurring frequently and without abatement or intervention by the council. The first plaintiff describes that she was personally threatened by an unknown person in the laneway and that her neighbours were burgled. As a result, the plaintiffs decided to, and did, on 26 November 2013, erect a fence at the western end of the laneway. This fence was constructed of a timber frame and corrugated iron panels secured to the two posts that had been initially installed for the fence in 2007. This fence was removed very early in the morning of 18 December 2013 by persons unknown.

17 The first plaintiff deposes that during that period, from 26 November until 18 December 2013, her property was protected and the nuisance activity that had previously occurred, ceased. There was correspondence between solicitors about the maintenance of this fence during the period it was erected. In the period since 18 December 2013, the nuisance activities have resumed and as I have already stated, in late August 2014, the plaintiffs arranged for the fence to be reinstated.

18 The plaintiffs' concerns about the nuisance activities were supported by affidavits from two residents and a former resident of the units at 19 William Street but I do not propose to recite the detail of what has been deposed to in those affidavits.

19 An affidavit by Ian Charles McLachlan was also read on this application. He is employed by the defendant as Manager of transport and parking. Mr McLachlan has long familiarity with the laneway. He stated that it has always been open to pedestrian traffic as far back as he can recall and his recollection is that it has been open to pedestrian traffic for at least 30 years. He notes that in July 2004, the laneway was added to the council's register of public roads, a document that was produced to me during the course of the hearing. It appears that the council's road management plan was gazetted and thereafter the laneway was added to the council's road register.

20 Mr McLachlan has also stated that the defendant has a sustainable transport policy, which it published in September 2008. Broadly, it promotes walking and cycling over less sustainable forms of transport under that policy. Council has committed to improved pedestrian and cyclist connections, accessibility, and permeability within the municipality.

21 He also deposed that South Yarra has many historic laneways which can be navigated by the public and that the laneway in question falls into this category. Closing the laneway from public access would deny the community a convenient and functional pedestrian access to and from Lovers Walk. Further, from a traffic perspective, the laneways also preserve options for the future.

22 As I noted earlier, the plaintiffs contend and the defendants do not dispute that there are serious issues for trial in this proceeding. Briefly, the plaintiffs contend that there are two substantive issues to be tried in the proceeding. First, is the driveway a road for the purposes of the Local Government Act 1989 and, second, if it is, does the defendant have the power to remove the fence and gate pursuant to clause 5 of schedule 11 of the Act. The plaintiffs will contend at trial that the driveway is not a road, on a number of different bases. The driveway is private land owned by VicTrack and subject to easements created in favour of the proprietors of the adjoining properties. The plaintiffs point to the content of the documents by which those easements were created.

23 The plaintiffs note that the land has not been dedicated to the public and the plaintiffs suggest that the creation of a private easement between parties is inconsistent with an intention to dedicate the land to the public. The plaintiffs contend that the authorities on the creation of public highways and roads in Victoria do not finally settle the question of what is a road for the purposes of the Local Government Act 1989. I note this controversy, suggested by the plaintiffs, but it is not a matter that I need resolve on this application.

24 On the second issue, the plaintiffs contend that if the driveway is a road, then there arises the question of whether the defendant has power to remove the fence. Clause 5 of schedule 11 of the Local Government Act reads:

The council may -

(a) move anything that encroaches on or obstructs the free use of a road or that reduces the breadth or confines the limits of a road (including anything placed on the road under clauses 9, 10 or 11);

(b) require any person responsible for or in control of the thing to move it.

25 The plaintiffs also contend that an issue arises as to whether council's power, under clause 5, includes a power to remove or demolish or destroy or damage a fence as distinct from moving an object from its current location to a location where it does not obstruct use of the road. The plaintiffs contend that if the road is not a road within the meaning of the Local Government Act, the defendant has no powers over it. But if it is a road as defined, the defendant's powers are limited to those conferred by the legislation. They will contend at trial that the council has no power to carry out the work of removing the fence pursuant to s 225 of the Act and that the correspondence between solicitors does not constitute a valid notice for the purpose of clause 5 of schedule 11.

26 The defendant, while accepting that there is a serious issue for trial, contends that the plaintiffs' arguments are weak and that on its proper construction, the laneway and/or Lovers Walk, is a road either as defined in s 3 of the Local Government Act or s 3 of the Road Management Act or at common law by reason of it being a public highway. Essentially the defendant contends that the laneway is a road at common law and a road by statutory definition.

27 I will not today, on this application, evaluate the relevant strength of each party's position on these arguments. These are matters for trial.

28 The real questions in the proceeding appear to me to be somewhat wider than the plaintiffs contend. I find the plaintiffs' originating process unhelpful in identifying the real issues to be determined in this proceeding. The plaintiffs' submissions assume that the existence of the fence today is the status quo to be maintained, but I do not accept this assumption. It is by reason of the plaintiffs' assumption that the first issue to determine is identified as whether the plaintiffs' contentions that the laneway is not a road have a sufficient likelihood of success to justify restraining the defendant from removing the fence.

29 However, the plaintiffs have not alleged and cannot point to material facts supporting a putative legal or equitable right to have erected the fence in the first place. The fence was erected to abate the perceived nuisance caused by graffiti artists, drug users and other persons engaging in undesirable activities, a nuisance that the defendant has failed to abate to the plaintiffs' satisfaction. But the plaintiffs' desire to ameliorate that nuisance is not a legal basis for contending for a right to erect a fence on land owned by VicTrack. The plaintiffs do not presently contend for a right to erect or maintain the fence in the proceeding. No claim is made in the proceeding, in nuisance, against any party as a basis to enforce a right to erect and maintain the fence. Rather, the plaintiffs submit in effect that, having engaged in self-help, the defendant is powerless to intervene. This narrow confinement of the issues between the parties appears to lend strength to the plaintiffs' contentions but in my view it must be rejected.

30 The plaintiffs submit from the Bar table that the putative legal right to erect and maintain the fence for which the plaintiffs must ultimately contend is either, (a) for abatement of the nuisance of which they complain or, (b), for the quiet and full enjoyment of the carriageway easement that was granted to them by the predecessors of VicTrack.

31 Presently neither of these rights is in issue in the proceeding and VicTrack is not a party to the proceeding. Absent these deficiencies, the plaintiffs might have contended that maintaining the fence was indeed conserving the status quo pending trial in the sense that the fence preserved rights that would be established when final relief was granted in the proceeding. In such circumstances, restraint might be seen to be justified.

32 The status quo, properly understood, is seen from a wider perspective. Two prior fences erected to abate the nuisance, rather than to better enjoy the easement, were quickly removed. On neither occasion, were rights to be freed of a nuisance or to enjoy the easement raised. The status quo to be preserved is the absence of the fence not its preservation.

33 The costs of removal or later replacement of the fence is a matter that readily sounds in damages. The prospect of other possible injury, such as pedestrians being hurt by cars using the laneway, are overstated. Practically every private driveway involves crossing an area used by pedestrians. It is not open to the driver or the property owner to fence pedestrians off a footpath in order to eliminate the risk. It is plainly the law that drivers of vehicles are expected to exercise reasonable care in all circumstances to avoid injuring pedestrians.

34 I am not persuaded that the plaintiffs' right to erect and maintain the fence, such as it might be, justifies any restraint on the defendant's rights to remove it, albeit that there are issues about the extent of the defendant's rights. That may well raise questions at trial and the defendant does not dispute that such questions arise. Any want of power in the defendant to remove the fence, if that be found to be the case, will adequately sound in damages.

35 There are two other considerations that are matters for trial. The first, which I have briefly mentioned, is whether the fence was constructed without a building permit. The second consideration is whether the defendant is authorised by VicTrack to remove the fence.

36 The plaintiffs contend that VicTrack has previously supported the construction of a fence. While that may be so, its present opposition to the fence appears unequivocal. In correspondence between VicTrack and the plaintiffs' solicitors on 12 September 2014, VicTrack noted that the defendant had asked the plaintiffs to remove the fence by 19 September 2014. VicTrack stated:

Mr and Ms Anderson should be made aware that their rights under the carriageway easement benefitting their adjoining property do not entitle them to construct a fence on the access way. VicTrack appreciates that the access way is not the only means of access to the railway reserve to the west. However, VicTrack is concerned that the erection of the fence has compromised emergency access to the adjoining railway reserve. In view of this, VicTrack supports Stonnington City Council's requirement for the fence to be removed and requests that you arrange for Mr and Ms Anderson to promptly remove the fence they have erected without VicTrack's approval.

In discussions with council, we have made it clear that VicTrack supports any responsible measures considered appropriate and necessary by local authorities to address legitimate public safety and security concerns in relation to land in which VicTrack has an interest. While we understand the reasons behind Mr and Ms Anderson's actions in this particular situation, the erection of the fence was not an appropriate, reasonable or lawful measure for them to take, especially when balanced against the broader community interests involved. VicTrack therefore requests that the fence be removed as a matter of priority.

37 Bearing in mind these various considerations, I am not persuaded that the plaintiffs have established a sufficient likelihood of success that warrants restraining the defendant from removing the fence. If the defendant does so and acts without power or authority and the plaintiffs can establish a right to have erected the fence, then damages may flow and would be adequate.

38 The plaintiffs contended that the balance of convenience favoured the maintenance of the fence. Activities such as drug dealing, graffiti, alcohol consumption, urination, abuse and threatening language occurred on the laneway except on those occasions when a fence was in place, suggesting that the fence was clearly effective in controlling the nuisance activities. These activities, the plaintiffs suggest, are extensive and serious and that if the defendant demolishes the existing fence, those incidents of antisocial behaviour will reoccur to the plaintiffs' detriment.

39 The plaintiffs suggest that the inconvenience to the public from the presence of the fence is minimal, that the laneway is not regularly used as a thoroughfare, as its use is basically for undesirable activities late at night.

40 The defendant contended that its statutory obligations pursuant to the Road Management Act 2004 cannot be ignored and that the rights of the public in using the laneway would be interfered with if the fence was maintained.

41 The defendant contends that the plaintiffs knew or ought to have known of the existence of the laneway and the way in which it provided access to Lovers Walk at the time of acquisition of their property. The defendant points to the use of the laneway as access over a very long period of time and points to a general concern that ratepayers and the general public at large ought to be discouraged from taking matters into their own hands by activities such as closing off laneways.

42 The defendant also suggests that there is a general reluctance on the part of the court to grant an interlocutory injunction when one of the issues for consideration is whether an arm of government or a municipal authority has the power to act under legislation, even delegated legislation, relying as authority for that proposition, upon Optus Networks Pty Ltd v Stonnington City Council.[4]

43 I am required to take whichever course appears to carry the lower risk of injustice should it turn out to have been wrong. I have not referred to every matter that is raised on the material and in the submissions that I carefully considered after I stood the matter down. But balancing all relevant considerations, I am satisfied that the lower risk of injustice, should it turn out that I am wrong, is achieved by refusing the application.

44 I would add a final observation. The history of this dispute shows that the layout of the intersection of the laneway and Lovers Walk is problematic. That would seem to be well-established by a number of inquiries over preceding years. While I do not approve of the plaintiffs' self-help approach, the sense of frustration from which it is borne is understandable and recognised by VicTrack.

45 Both the defendant and VicTrack ought to be alive to the prospect that a structural change to that intersection will be cost-effective in comparison with litigation in this court. A path to sensible compromise does not appear to me to be obscure.

1. The application by summons filed 18 September 2014 is dismissed.

2. The plaintiffs pay the defendant's costs of the application.

3. The originating motion filed 18 September 2014 stand as a writ.

4. The plaintiffs file and serve a statement of claim by 29 October 2014.

[1] [2006] HCA 46; (2006) 227 CLR 57 (Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65]-[83]). See also Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [8]-[13].

[2] [2006] VSCA 89; (2006) 15 VR 65.

[3] Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65, Tymbrook Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65, [35]. See also Magna Alloys & Research Pty Ltd v Coffey [1981] VicRp 3; [1981] VR 23.

[4] [1996] VICSC 12; (1996) 2 VR 209.