Au v Berlach

Supreme Court of NSW|2021-12-15|Before: Kunc J, Adrian J

Summary

Most Australians live in proximity to their neighbours. That proximity will require, from time to time, a degree of give and take, tolerance and common sense to ensure peaceful co-existence. When those qualities are absent, disputes between neighbours can quickly grow out of all proportion. This case is an unfortunate example of that phenomenon.
For most people, to live in a well-appointed home on a large block amid the semi-tropical vegetation of the Central Coast hinterland would be a formula for a tranquil and idyllic lifestyle. Unfortunately, that has not been the case for the plaintiff, Dr Au, and his wife Ms Szypica, and the defendants, Mr and Mrs Berlach (the Berlachs).
As will be apparent from the diagram attached to these reasons (the Diagram), the Au property is on Oak Road at Matcham. The Berlach property is at the rear of the Au property and would be completely landlocked, but for a right of way (the Easement) over part of the Au property which gives the Berlach property vehicular and pedestrian access to Oak Road.

An unsuccessful mediation

The proceedings were originally fixed for three hearing days. Only the evidence was able to be concluded within that time. The only way the matter could be concluded within a reasonable period was for me to hear final argument several weeks later when I was otherwise sitting as Duty Judge.
Given the delay, I asked the parties at the close of the evidence whether there would be any utility in ordering them to mediation. For reasons which it is not necessary for me to record, no mediation had previously taken place. Counsel informed me that the only basis upon which they thought a mediation may be of assistance would be if it could be conducted against the background of at least preliminary indications from the Court as to the Court's likely conclusions on the extent of the Berlachs' rights under the Easement. I did so, giving the parties my preliminary views which in substance were identical to the conclusions now recorded in these reasons.
In doing so, I informed the parties that I was particularly concerned that what Dr Au was asking for were orders of a kind that the Court would never make, because of the specificity and prescriptiveness that he apparently wished to achieve to confine what the Berlachs could and could not do on the Easement. Apart from their form, they also (at least implicitly) invited the constant supervision of the Court. I suggested to the parties that what they really needed were some agreed guidelines dealing with particular concerns, but reflecting the fact that, as a matter of law, the Berlachs had considerably greater rights than Dr Au had thus far been prepared to concede.
I record, without criticism of anyone, that while a mediation was conducted against the background which I have just described, it was unsuccessful.

The relief sought

Without any point being taken about the informality of this approach, Mr Brennan's final written submissions on behalf of Dr Au substantially reduced the relief that had originally been sought to these limited declarations and injunctions.
The declarations are: 1. The boundaries of the Easement cannot lawfully be crossed by the defendants and their associates and agents. Any pruning of foliage on the property is only legal if done precisely within the boundaries and only if reasonably required for use of the Easement as a right of way. 2. The defendants have no right to enter the Easement to perform routine maintenance on the driveway. 3. The defendants (personally) are not entitled under the terms of the Easement to operate leaf blowers on the Easement or to perform pruning on plants except that they may pay a professional gardener to blow leaves, trim vegetation strictly within the Easement only, up to twice per week. 4. Parking or stopping vehicles on the Easement is not a legal use of the easement except at the end near the boundary of the Berlach property when it is not practical for a heavy vehicle to drive across the bridge.
The final form of the injunctions sought by Dr Au is: 1. The defendants must never, for any reason, breach the boundaries of the Easement and must never interfere with the plants, animals or anything else on the Au property. 2. The defendants must not, personally, operate leaf blowers on the Au property.
The relief sought by the Berlachs in their cross-summons included: "1. An injunction restraining the cross-defendant by himself, his tenants, occupants, employees or agents from interfering with: (a) the right of way: i. burdening the cross-defendant's property shown as Lot XX in Deposited Plan XXXXX; ii. benefitting the cross-claimants' property shown as Lot XX in Deposited Plan XXXXX; and iii. described in the instrument setting out the terms of easements and restrictions on the use of land created pursuant to section 88B of the Conveyancing Act 1919 for the land shown in Deposited Plan XXXXX and registered on 18 February 1993 (the Section 88B Instrument); (b) the use and enjoyment of the right of way by the cross-claimants and their children; and (c) the use of the right of way by the cross-claimants' "heirs, executors, administrators and assigns and their servants, aides and workmen, with or without vehicles or animals". 2. An order that the cross-defendant remove the illustrations, letters and numbers spray-painted on the right of way by him, his agents and servants. 3. A declaration that each of: (a) the chain-wire fence; (b) the shade cloths and fabrics; (c) the signage; (d) the bollards; (e) the pickets; (f) the steel reinforcing; (g) the steel fencing; and (h) the CCTV cameras and surveillance devices, and their supporting posts, erected or placed or constructed on the cross-defendant's property shown as Lot XX in Deposits Plan XXXXX, along or adjacent to the right of way, is not a structure "in an Australian Colonial style in natural colours such as brown, green or beige", within the meaning of the "Restriction on the use of land" burdening the cross-defendant's property and described in the Section 88B Instrument. 4. An order that the cross-defendant immediately remove from his property those structures that are not in an Australian Colonial style in natural colours such as brown, green or beige, and referred to in paragraph 3. 5. An injunction restraining the cross-defendant, by himself, his agents or servants or otherwise, from repeating or continuing the nuisance caused by the use of closed circuit television (CCTV) cameras and other surveillance devices to monitor activity on the cross-claimants' property and the use of the right of way benefitting the cross-claimants' property, or any nuisance of a like kind."

The facts

Much of the evidence adduced on behalf of Dr Au consisted of hours of CCTV and iPhone footage said by him to record conduct by or on behalf of the Berlachs which was not authorised by the Easement. The Berlachs also tendered iPhone footage of various encounters between them and Dr Au and his wife. The vast majority of that footage may originally have been relevant because among the relief first sought by Dr Au were various personal orders against the Berlachs seeking to limit interactions with Dr Au and his wife. That relief was ultimately abandoned, with Mr Brennan accepting in his final written submissions that those issues would have to be resolved in forthcoming proceedings in the Local Court in relation to Apprehended Personal Violence Orders between the parties. Because of those impending proceedings, I propose to say nothing more in these reasons about specific conduct of the Berlachs or their agents on the Easement, the personal behaviour of the parties towards each other or who bears responsibility for it. That will be for the Local Court. In any event, because of the view which the Court has taken about the declarations and injunctions sought by Dr Au, it is not necessary for the Court to make findings about any specific incident.
What the totality of the evidence makes clear is that there is a serious controversy between the parties which the Court must quell as best it can, about what the Berlachs can and cannot do in the lawful exercise of their rights as the owners of the dominant tenement. That can be determined by reference to the terms of the Easement and what might be called the objective facts "on the ground" observable to anyone who inspects the Easement.
In that regard, the Court acknowledges that it was greatly assisted by a view of the Easement conducted on the first morning of the hearing in the presence of the parties and their legal advisers. While the evidence included many photographs and films, the physical features of the Easement and its surrounds, and especially the full impact of the various signs, fences, CCTV installations and other structures erected by Dr Au in the proximity of the Easement, can only be properly appreciated by being seen in situ.
In this section of the reasons I will set out the formalities in relation to the Easement and describe the physical features of the Easement and its surrounds, that description being the Court's findings on those matters.
The Au property and the Berlach property were created by a subdivision years before the parties purchased their respective properties. The terms of the Easement are to be found in an instrument under s 88B of the Conveyancing Act 1919 (NSW) which was registered on 15 February 1993. The instrument refers to easements for mains and services, restrictions on the use of the land and the Easement. The terms of the Easement are: "Right of way shown on the plan being 3.575 metres wide so shown on the plan and following the western boundary of [the Au property] as shown on the abovementioned plan being a right of way or use or passage at all times and for all purposes for the benefit of the proprietor for the time being of [the Berlach property], his heirs, executors, administrators and assigns and their servants, aides and workmen with or without vehicles or animals and is hereby declared that the said reserved right of way is appurtenant to the lot described as [the Berlach property]."
The reader of these reasons will be assisted in understanding what follows by referring to the Diagram. I will next describe the Easement and its surrounds by reference to what one would see if the observer started at the point of street access to Oak Road and walked down the Easement in a generally northerly direction to the Berlach property. I will refer to the street number of the Au property as XXX.
Oak Road is a long road which winds in a generally east-west direction through a lush valley filled with large trees and other sub-tropical vegetation. It is in the semi-rural hinterland of the Central Coast. The blocks are all quite large with big homes surrounded by well-kept lawns and large gardens, including what might be described as bush gardens. Many of the trees are many metres high. It is important to appreciate the heavily vegetated semi-rural or hinterland bush nature of the area, because, as was even the case during the Court's view, it is an area where the Court finds that the sound of lawn mowers, whipper snippers, leaf blowers and similar equipment required to maintain the bush land and gardens is a regular feature of living in the area.
Standing on Oak Road, looking north down the Easement, the first thing one sees are two large concrete or stone pillars, one on each side of the entrance to the Easement. One includes a letter box. Each of the pillars is at least two metres high and the numbers XXX in very large metallic numbers are repeated on both concrete pillars.
Immediately upon entering onto the Easement between the two large concrete pillars, there is a driveway off to the right between tall trees which leads to the house on the Au property. The Easement, and the Au property generally, slopes down from Oak Road to the lowest point at the rear (northern end) of the Au property. That northern boundary has a small creek running along some parts of it. This is notable because when the Easement reaches the Berlach property, it stops at a bridge on the Berlach property which crosses the creek.
A visitor standing at the top of the Easement with the driveway to the house on the Au property off to their right would immediately notice another large sign on the right hand side of the Easement, approximately two metres off the ground with XXX painted on it in large numbers and underneath the words "Main Residence" with an arrow pointing to the right (to Dr Au's house) and underneath that the word "Utilities" with an arrow pointing to the left (down the Easement). Next to the sign which I have just described is a smaller sign stating "Private Property. No Trespassing. Trespassers will be prosecuted.".
The visitor would notice straight in front of them the very large numbers XXX spray painted in bright pink on the asphalt of the Easement. As the Diagram shows, these are repeated on the asphalt every two or three metres down the entire length of the roadway which, the parties accepted, generally but not perfectly follows the metes and bounds of the Easement.
Looking on the left hand side (western) of the entrance, there is another large sign approximately two metres off the ground which states "PRIVATE XXX LIGHT VEHICLES ONLY". Affixed to the top of that sign is yet another smaller sign saying "Private Property. No Trespassing. Trespassers will be prosecuted". It appears to me, although the evidence does not permit a conclusive finding, that this double sign is in fact on the property of the western neighbour.
Looking down the length of the Easement, on the left hand side the observer will see a long and tall stand of liquidambar trees which are on the property of the western neighbour but overhang the Easement. Down the length of the Easement on the western side are a series of timber bollards placed at regular intervals on what may or may not be the boundary, or in fact may be just inside the property of the western neighbour. On top of these, strung along the length of the western boundary is a wire with a series of orange triangular flags hanging off it. A similar wire with orange triangular flags hangs off the fencing which is on the eastern side of the Easement on the Au property leading down to a gate on the right as you walk down the Easement. That is an electronic gate which also leads onto the Au property. What I have described in this paragraph is illustrated by Photo One attached to these reasons. Dr Au's house number spray painted on the asphalt has been redacted where it could be read on the photo.
On the uphill side of that gate is the first of four camera posts, in that case with one camera on it. Immediately on the downhill side of that gate is the second camera post, with seven cameras on it. This camera post is visible on Photo One. All of these cameras, and the others to which I will refer on the Au property, are oriented towards the Easement.
Down the length of the Easement on its eastern side (i.e. on the Au property) is also a long stand of liquidambar and other trees. This gives the appearance of what might be described as a one car wide country lane with tall trees overhanging it on either side.
While from the top of the Easement there are the various signs which I have described which repeatedly identify the house number of XXX for the Au property (including the multiple repetitions on the asphalt itself of XXX down the entire length of the Easement), there is nothing among those signs to indicate the street number or existence of the Berlach property. As I will discuss further below, it is obvious that any tradesmen, delivery people or visitors unfamiliar with the existence of the Berlach property are likely to be confused, perhaps even intimidated, by this multiple signage, none of which records the existence of, or the street number for, the Berlach property.
That confusion would, the Court finds, be amplified by the fact the only reference the Berlach's house number is a very substantial sandstone mailbox displaying the Berlach's house number situated on Oak Lane at what appears to be the top of the boundary between the Au property and its western neighbour. However, the casual visitor would be forgiven for thinking that the access to the Berlach property was the adjacent driveway on the western neighbour's property. The cumulative effect of the multiple signage at the top of the Easement with XXX on it would be to suggest strongly to anyone who did not know otherwise that the entrance and Easement related only to the Au property, reinforced by the two "NO TRESPASSING" signs.
If the visitor then walks down the Easement, there are leaf filled verges on either side. Immediately passing the first gate on the right hand side which leads to the Au property (that gate and its surrounds being made of what appears to be cream coloured metal), the eastern side of the Easement has a 1.8 metre high chain mesh fence covered with green shade cloth to make it opaque. On that fence every two or three metres is a series of red and white signs stating "Private Property NO TRESPASSING" or similar warnings. This fence and its signs cuts off the Easement from the rest of the Au property.
Approximately two thirds of the way down the length of the Easement, the Easement moves in a dog-leg to the right, away from the western boundary of the Au property. On the corner that is formed by the dog-leg on the eastern side is the third CCTV post with three cameras on it and two large cream coloured metal gates which lead to a garage on the Au property. Some of the other signage on the mesh fence is "Security surveillance cameras in use" and "PRIVATE! KEEP OUT". The CCTV posts have yellow signs with a smiley emoji and the words "SMILE YOU ARE ON VIDEO CAMERA". Photo Two attached to these reasons shows the view down the dog-leg section just past the entrance on the right of the picture to Dr Au's garage.
Immediately after the dog-leg corner (as the visitor walks down the Easement), the left (north western) side of the Easement is marked by chain mesh fencing of the same kind as I have already described, but without the green mesh. However the lower half of the chain mesh also has plastic orange coloured mesh and there is more cord with orange plastic flags hung off the fence. There are also signs every few metres to the effect of "NO PARKING", a gate in the mesh leading to the north western corner of the Au property and some cabbage palms which is marked "PRIVATE KEEP OUT" and more signs "SECURITY SURVEILLANCE CAMERA IN USE" and some silver hubcaps hanging on the fence. Somewhere along its length the orange plastic mesh on the fence is replaced by yellow plastic mesh. There are also timber bollards in front of that mesh fence. All of this is visible in Picture Two.
As Picture Two also shows, the right hand boundary of the dog-leg past Dr Au's garage is again chain mesh fencing covered in green mesh, together with silver hub cups, orange plastic flags and multiple signage warning of "NO PARKING", "PRIVATE PROPERTY NO TRESPASSING", "SURVEILLANCE CAMERAS IN USE" and the like, leading to the fourth of the CCTV camera posts with six cameras on it. These features appear in more detail in Photos Three and Four.
At this point in the visitor's journey down the Easement, there is another dog-leg to the left so that the final section resumes its northerly orientation. This final section leads to the Berlach property, includes the stump of a fallen tree on the left which was the subject of some controversy (see further [61]-[64] below), heavy vegetation on both sides in lieu of fencing (but posts with the orange flags strung between them), coming to the wooden bridge across the creek bed. This leads to an uphill driveway to the Berlach property. The bridge is entirely on the Berlach property, commencing at the boundary. To the inexpert eye, the bridge is in need of maintenance work, with some of the timbers appearing to need replacement.

The Easement - legal principles

I will next set out various statements of legal principles, some of which were relied upon by the parties, relevant to the proper construction of the Easement. The submissions put on behalf of the Berlachs squarely identified the dispute between the parties as one turning on the proper construction of the Easement and requiring the identification of the express and implied ancillary rights conferred upon the Berlachs as the registered proprietors of the dominant tenement.
On the other hand, much of what was put on behalf of Dr Au seemed to be an appeal to emotional or psychological matters which, while obviously important to him, the Court finds much of that type of evidence to be irrelevant to the legal issues he presented. A significant difficulty in Dr Au's case was an unwilingness to engage directly with the question of construction of the Easement and the extent of the Berlachs' express and ancillary implied rights under the Easement.
Insofar as the authorities to which I next refer are decisions of the High Court and the New South Wales Court of Appeal, I am bound by them. To the extent that the other authorities are those of judges at first instance in this state and elsewhere, I respectfully indicate my agreement with them and adopt them as correct statements of principle.
The Easement uses the expression "for all purposes". Referring to those words in the context of a right of carriageway, the High Court in Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 (Westfield) said (at 29-30): "… [T]he broader the right of access to the dominant tenement granted by the easement, the greater the burden upon the proprietary rights in the servient tenement … The term "for all purposes" encompasses all ends sought be achieved by those utilising the easement in accordance with its terms."
In Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200 (concerning a right of carriageway), the Court of Appeal (per Handley AJA; Tobias and McColl JJA agreeing) held at [15]-[16] that, in accordance with the decision of the High Court in Westfield: "[E]xtrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of the instruments registered under the Real Property Act 1900 … This Court is therefore limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements. These provide no basis for reading down the clear and unqualified words of the grant. The grant was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the dominant tenement with which the right was capable of enjoyment, and persons authorised by them."
In the same case, the Court also said: "[9] The owner of a dominant tenement is entitled to construct improvements on the servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement. In Kirkjian v Towers (6/7/87 u/r) Waddell CJ in Eq held that the owner of the servient tenement could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement. This decision has been followed: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 521-2; Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5 para [23] per Giles JA. [10] The servient owner's refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner's rights as a direct physical obstruction. The appellant did not challenge the decisions referred to. [11] In Kirkjian v Towers Waddell CJ in Eq held that the servient owner was bound to grant consent unless there was a "lawful reason" for refusing to do so. There was no such reason in that case because the proposed user of the right of way was not excessive."
In Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 (Hare) at [6] the Court of Appeal was considering an easement "to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof" which included an inclinator. Because of their pertinence to the present issues, it is necessary to set out at length two parts of reasons of Barrett JA (with whom Macfarlan JA and Tobias AJA agreed).
As to the issues of reasonable user and the respective rights of the servient and dominant tenements, his Honour said (emphasis added): "24 I mention this last point because of a submission by counsel for the appellants to the effect that the right arising from the easement is a right to reasonable use and that, if there are two ways in which the right might be exercised, it is the duty of the persons entitled to the benefit of the easement to adopt the less intrusive way or the way less calculated to conflict with use by the owners of the servient tenement. It was suggested, for example, that the respondents might be confined to walking along the servient tenement (or travelling with such vehicles, if any, and such animals as could negotiate the terrain) or suspending a cable car able to travel above the inclinator; and that for them to use the inclinator would transgress the boundary of reasonable use. 25 It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights. The necessary restraint does not, however, require one party to desist altogether from exercising some part of the totality of the party's rights so as to leave the field entirely clear for the other party. For example, if a right of footway exists over land traversed by a shallow stream and the owner of the servient tenement (or a predecessor) has constructed a bridge, the person entitled to the benefit of the easement may walk across the bridge; and this is so even though it is physically possible to wade through the shallow water. 26 In the same way in the present case, Mrs Hare, as the servient owner, has no legitimate ground of expectation that Mr van Brugge and Mrs van Brugge, as the dominant owners, should use only the part of the servient tenement consisting of the surface of the soil or unoccupied airspace and desist from use of the part of the land consisting of the inclinator structure. All that obligations of reasonable use compel is that there should not be use inconsistent with the reasonable needs of the other party also to use the servient tenement.
On the question of repairs and maintenance, his Honour said (emphases added): "28 In Carter v Cole [2006] EWCA Civ 398; [2006] All ER (D) 139 (Apr) at [8], Longmore LJ stated a number of principles which he described as having been "settled for some centuries" and "not controversial". He gave ancient authority for each of them. One of these principles, applicable where a paved way has already been constructed on the site of an easement which is a right of way, is that the servient owner is under no obligation to maintain or repair the improvements: Pomfret v Ricroft (1669) 1 Saund 321; 85 ER 454; Taylor v Whitehead (1781) 2 Dougl 745; 99 ER 475; Jones v Pritchard [1908] 1 Ch 630. Second and similarly, the dominant owner has no obligation to maintain or repair the improvements: Duncan v Louch (1845) 6 QB 904. Third, the servient owner (who owns the land on which the improvements are situated) can maintain and repair the improvements, if he or she chooses. Fourth, the dominant owner (who has an obvious interest in keeping the improvements in good order) is entitled to maintain and repair but, if that right is exercised, the dominant owner must bear the cost: Taylor v Whitehead. The dominant owner has a right to enter the servient owner's land for this purpose but only to do necessary work in a reasonable manner. Longmore LJ gave as authority for this last proposition Liford's Case (1614) 11 Co Rep 46b at 52a; 77 ER 1206 at 1217 and Jones v Pritchard. 29 The dominant owner's right to repair and maintain improvements at his or her own expense is one of the ancillary rights that an easement confers. That right extends to the provision of any service that is reasonably necessary to make the easement usable. In relation to such a right and the manner of its exercise, McLelland J said in Zenere v Leate (1980) 1 BPR 9300 at 9305: "Such ancillary rights include the right to carry out such work on the right of way site as may from time to time be reasonably necessary to create or maintain reasonable vehicular access along the right of way site and onto No 85, provided that such right be exercised in a manner which (a) is consistent with the reasonable use and enjoyment by the servient owner of the right of way site as the sole means of access between No 87 and a public road, and (b) does not interfere with the use and enjoyment of No 87 by the servient owner to a greater extent than is reasonably necessary ...". 30 In the circumstances of this case where Mr van Brugge and Mrs van Brugge, as the dominant owners, have, in relation to the easement site (including the part of it consisting of fixtures), the right to pass and repass created by the grant, their ancillary rights include the right to keep the fixtures in working order at their own expense. Mrs Hare, as the proprietor of the easement site (including its fixtures), has a corresponding right to keep the fixtures in working order at her expense. Each, therefore, is at liberty to maintain and repair the inclinator. Neither has that right to the exclusion of the other; nor is the right of one in some way superior to the right of the other. Also, however, neither party has any obligation in this respect. Each is quite free to allow the inclinator to be inoperative and to fall into disrepair and decay."
In Bland v Levi [2000] NSWSC 161 (Bland), Young J (as his Honour then was) was determining a dispute between neighbours who had rights in respect of a common driveway. The servient owner complained that he had not been given proper information by the dominant owner about works which the latter proposed to perform on the subject right of way. His Honour said: "11 The plaintiffs' basal proposition appears to be that in respect of any work done on the right of way granted to the defendant over their land in respect of the driveway, the defendant needs to seek the plaintiffs' authority to proceed with works or, at the very least, needs to provide the plaintiffs with full information about what is going to happen so that the plaintiffs can see that their rights are not being prejudiced. 12 No authority was cited for this proposition and I do not believe that there is any that supports it. … 22 In summary, the dominant owner may do work on the servient tenement which is reasonably necessary for it to enjoy the right of way in such a way that it causes no reasonable [sic - I interpret his Honour meant "unreasonable"] interference with the servient tenement or undue inconvenience to the holder of the servient tenement. The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone. 23 Accordingly, it seems to me that it follows that the plaintiffs cannot complain that they have not been given full and precise details of the work that is to be done."
In Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351, Habersberger J noted (at [105]) that in the case before him, concerning a right of way, "[I]t was not disputed that the defendants are entitled to keep the track along the six metres of easement clear of vegetation by slashing the grass or cutting back any overhanging branches from trees or shrubs growing on the drainage reserve". While that was a matter of agreement, his Honour recorded, in support of the proposition, the observation to like effect of McTiernan J in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 280.
In that same case, Habersberger J distinguished the decision in Bland to the effect that in the case before him, the owner of the servient tenement was entitled to consider the dominant tenement owner's plans to improve the right of way because those plans could damage an adjoining dam. There is no such reason in the present case to distinguish Bland, which in my respectful view correctly states the law, including as to the requirements of no unreasonable interference or undue inconvenience when whatever repairs and maintenance to a right of way will have no effect on anything on the dominant tenement.
Finally, the learned authors of "Bradbrook and Neave's Easements and Restrictive Covenants" 3rd Ed, (Lexis Nexis Butterworths Australia 2011) state: "6.1 In the absence of words of restriction, the basic rule is that the uses to which a right of way may be put are as general as are compatible with the physical nature of the servient tenement. Thus, in Elliott v Renner [1923] St R Qd 172 at 176 (FC), it was conceded by counsel that if a right of way granted in general terms passes over ground suitable for vehicular traffic, the grant should be construed as authorising the use of vehicles of any description which were consistent with the purposes for which the easement was granted."

The proper construction of the Easement

Without recourse to any more than the words of the Easement, it is plain beyond doubt that the Easement is drawn in the widest possible terms in favour of the Berlach property. It confers a right of "way", and "use" and "passage", "at all times" and "for all purposes" to the benefit of the proprietor of the Berlach property. It is difficult to conceive of a more widely drawn easement.
The amplitude of the grant upon its proper construction is confirmed when one fundamental physical characteristic of the Easement is brought to account. That is that the Easement represents the only lawful means of terrestrial access (vehicular, pedestrian or otherwise) from the Berlach property to the public road. It is, for all intents and purposes, the driveway to and for the Berlach property, and the Berlachs are entitled to use and maintain it as such under the terms of the Easement.
In so construing the Easement, that is not to say that Dr Au is without rights. He remains the owner of the servient tenement including the land which is subject to the Easement. He enjoys all the rights of such an owner to the extent their exercise is not inconsistent with the express or ancillary rights conferred on the Berlachs by the Easement properly construed. As the High Court observed in Westfield (see [42] above) "the broader the right of access to the dominant tenement granted by the easement, the greater the burden upon the proprietary rights in the servient tenement".
Applicable limitations such as "reasonable use" or not interfering with Dr Au's use and enjoyment of the Au property "to a greater extent than is reasonably necessary" will also be constrained by the fact that what is reasonable must be read in the context of an extremely wide grant of rights in favour of the owners of the Berlach property. This will also be relevant to the content of the mutual obligation of each not to interfere unreasonably with the other's rights, particularly in this case on Dr Au's obligation not to interfere unreasonably with the Berlachs' exercise of their rights under the Easement.
Insofar as Dr Au's rights are concerned, the most obvious example arises from the fact that there are three points of access to the Au property on the eastern side of the Easement: the driveway to the front of Dr Au's house at the top (or southern end) of the Easement, the gate a few metres down the Easement and the entrance to the garage immediately after the first turn in the dog-leg. While the rights of the Berlachs under the Easement are very wide indeed, they would not, for example, extend to doing anything on the Easement that would prevent Dr Au using any of those access points for any period of time greater than was reasonably necessary having regard to the nature of the activity being undertaken by the Berlachs. However, in that respect, Dr Au and the Berlachs would be in common interest because both of them need to use the Easement to access their respective properties. So, for example, if the Berlachs exercised what the authorities to which I have referred to above affirm is their right to maintain and repair the Easement by resurfacing the asphalt, it might be expected that the Berlachs would do everything they could to ensure that process was done as quickly as possible so that they (and, as a matter of fact, Dr Au) could again use the Easement.
It also follows from what I have said in the preceding paragraphs that the calculus of reasonable use would work even more in favour of the Berlachs (while not completely excluding the rights of Dr Au) in that part of the Easement which is to the north of Dr Au's garage. This is because, at least insofar as access is concerned, that part of the Easement is not required at all by Dr Au to gain vehicular access to Oak Road because it is to the north of his garage.
In terms of the breadth of the rights conferred on the Berlachs by the Easement, it is convenient at this point to express a brief conclusion on the question of the Berlachs' children riding their bicycles up and down the Easement without actually entering onto Oak Road. This was one of the many complaints made by Dr Au (notwithstanding his concession in the witness box that generally this was not an activity that he often noticed because he did not hear it and usually could not see it). As I understood it, by the end of the hearing neither party pressed this as an issue. If it remains an issue, then I record the Court's conclusion that such activity falls within the description of a use for any purpose to the benefit of the Berlach property. Alternatively, if that conclusion is wrong, the bicycle riding is an archetypal example of a de minimis breach which would not attract curial relief.

The relief sought by Dr Au

I have already set out in [14]-[15] above the relief that was ultimately sought by Dr Au. I will now record, having regard to the proper construction of the Easement and the legal principles as to ancillary rights referred to in [42]-[51] above, why the Court accepts the submission made on behalf of the Berlachs that all of the relief sought by Dr Au is misconceived and should not be granted. The Court will consider each prayer for relief separately.

The boundaries of the Easement cannot lawfully be crossed by the defendants and their associates and agents. Any pruning of foliage on the property is only legal if done precisely within the boundaries and only if reasonably required for use of the Easement as a right of way.

The first sentence of this purported declaration is contrary to authority. As is set out in the judgment of Barrett JA in Hare (see [47] above) the ancillary right of the dominant owner to maintain and repair the Easement includes a right to enter the servient owner's land for this purpose but only to do the necessary work in a reasonable manner. Examples of this might include: 1. Someone engaged in resurfacing the Easement may have to step off the Easement onto the Au property for the purpose of doing so; or 2. The safe and proper trimming of a high branch of one of the liquidambar trees on the Au property overhanging the Easement may require an arborist retained by the Berlachs to put her or his ladder in part on the Easement and in part on the Au property.
A good example of the Berlachs' right to enter the servient tenement is the dispute between the parties about the fate of a tree on the Au property, the remains of which are marked as a tree stump on the Diagram in the area of the Au property marked as "corner". The tree had fallen and was leaning over the Easement. The Berlachs used a chainsaw to cut it and took the remains away. There was a dispute between the parties, which I do not need to resolve, as to whether Mr Berlach entered the Au property to undertake some of this work.
Dr Au's complaint about the first aspect (cutting the fallen tree, including entering onto the Au property, if that occurred) is not well made: the Berlachs were entitled to do those things in exercise of their ancillary rights as well as their general rights at common law to abate a nuisance. A difference between the two sources of right is that the dominant owner's ancillary right allows the dominant owner to enter onto the servient tenement if that is necessary to undertake the tree cutting as part of the dominant owner's right to maintain the easement, whereas in the ordinary case of neighbours any overhang must be cut from within the encroached upon property in the absence of the consent of the other neighbour to enter the latter's land.
As to the second complaint, Dr Au is correct that at common law whatever timber came from the tree that grew on the Au property after it had been cut (or had just fallen on to the Easement) and collected should have been left on the Au property as belonging to him, but the Berlachs' breach (a conversion of the wood) is plainly de minimis and would not attract curial relief.
In reaching the conclusions expressed in the preceding two paragraphs, I have gratefully adopted and applied the recent analysis of the common law in relation to the question of overhanging branches (as opposed to the ancillary rights of a dominant owner under an easement) by White J sitting at first instance in Donnellan v Cadeddu [2021] NSWSC 1600, a case concerning an overhanging hedge. I respectfully adopt his Honour's summary of the older cases: "[23] The law as to encroaching tree branches was settled in Lemmon v Webb [1894] 3 Ch 1 (Court of Appeal) and [1895] 1 AC 1 (House of Lords), and in Mills v Brooker (1919) 1 KB 555. The same principles apply to encroaching hedges. Lemmon v Webb established that where branches overhang the land of another person he or she is entitled, without notice to his or her neighbour, to remove the encroaching branches from the tree if that is done without entering the land on which the tree stands. It is because the encroachment by itself is an actionable nuisance that the owner or occupier of the property over which branches hang is entitled to abate. Mr Doupe did not dispute this principle. [24] It has been suggested that the right of abatement has been inadvertently abolished by the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Balkin & Davis Law of Torts, 6th Edition, LexisNexis Australia para 14.53, footnote 240; Foster "Trees and Nuisance in New South Wales" (2007), 81 ALJ 291 at 293). I do not agree. That Act abolishes a cause of action in nuisance as a result of damage caused by a tree to which Pt 2 of the Act applies. (A tree is defined to include any woody perennial plant and therefore includes a hedge.)… [28] Lemmon v Webb establishes that where branches of a tree overhang the soil of another person, that person is entitled without notice to remove the branches. It is not necessary to show that the branches cause damage. Lord McNaughten said (at 7): "I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surfaces of his land, however long the space above may have been interfered with by the growth of the tree, nor can it, I think, be doubted that if he can get rid of the interference or encroachment without committing a trespass or entering upon the land of his neighbour, he may do so whenever he pleases and that no notice or previous communication is required by law". … [30] The Trees (Disputes between Neighbours) Act 2006 does not abolish claims for injunctive relief to restrain a nuisance, and hence, does not affect the right of abatement. [31] Mills v Brooker decided that the encroaching branches and any fruit that they bear belong to the owner of the land on which the tree is planted. Moreover, those branches remain in the ownership of the person on whose land the tree is planted after severance. Accordingly, a person who has abated the nuisance by cutting off encroaching branches must not deal with the branches or their fruit without the consent of the owner of the tree, except by returning them to that owner's land. To dispose of the cuttings without consent would be a conversion. To detain them, at least after demand, would be detinue. The right to return the severed branches to the land on which the tree stands is incidental to the right to abate. The owner of the adjoining property overhung by branches is not obliged to go to any additional trouble or expense in order to dispose of the branches he or she is entitled to sever."
Having read and seen the evidence, and observed Dr Au in the witness box, I have no doubt insofar as the declaration seeks "any pruning of foliage on the property is only legal if done precisely within the boundaries" is an incident of Dr Au's hyper-vigilant approach to protect what he perceives to be his rights. The declaration in those terms is also not supported by authority. Even if it were, in the exercise of the Court's discretion, I would decline to make a declaration in those terms because it would lead to impractical results, encourage further argument and not quell the dispute between the parties.
It cannot seriously be questioned that, as part of their right to repair and maintain the Easement, the Berlachs are entitled to prune foliage that intrudes into or over the Easement. However, this does not mean that, for example, in pruning foliage that protrudes into the Easement and might brush against a passing vehicle, the Berlachs or their gardeners must undertake the task of pruning with a laser theodolite or similar equipment to ensure the offending vegetation is not cut back a millimetre further than the vertical boundary of the Easement. Such precision in matters of vegetation is, as a matter of ordinary human experience, highly impractical if not unachievable.
In any event, no expert evidence is required for the Court to conclude, based on the ordinary experience of most people pruning in their gardens, that good pruning practice sometimes requires particular plants to be pruned at particular points. This may also be required as a matter of safety in relation to the boughs of trees. There is also an irony in Dr Au attempting to insist on such precise pruning practice. One of his major complaints is the alleged frequency with which the Berlachs engaged in activities to maintain the Easement. Pruning vegetation a few centimetres (or more if reasonably required) into the Au property may not only result in a better aesthetic outcome (and, in my respectful view, aesthetics are some part of the Berlachs' rights of enjoying such a widely drawn Easement given it is the driveway to their property). It would also ensure that there will be greater intervals between the need to prune the vegetation.
Finally, the position contended for by Dr Au in seeking such a declaration is contrary to his obligations as expressed by Barrett JA in Hare at [25]: "Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights." To insist on laser-like precision in pruning vegetation is an entirely unreasonable interference with the Berlach's enjoyment of their ancillary right to maintain the Easement by pruning vegetation that may intrude into or over it.
The same considerations inform why the Court would not make a declaration confining the pruning of foliage to "if reasonably required for use of the Easement as a right of way". This seems to be directed to submissions that were made to the effect that the Berlachs were not entitled to prune foliage that intruded into the Easement but was not likely to obstruct or damage by scratching vehicles using the Easement. The Berlachs' rights extend, in terms, beyond the Easement as a "right of way" to other use and, in seeking such a limitation on pruning, Dr Au is asserting a right inconsistent with his obligation that I have identified in the preceding paragraph.
In any event, a declaration which includes the very fact specific concept of something being "reasonably required" is of no utility, not least because of the likelihood starkly demonstrated by this litigation that it would be productive of further dispute between the parties. This is a sufficient discretionary reason, without more, for the Court to decline to make a declaration including those terms.

The defendants have no right to enter the Easement to perform routine maintenance on the driveway.

As the passage from Hare at [47] above makes abundantly clear, such a declaration does not represent the law. For that reason, it cannot be made.

The defendants (personally) are not entitled under the terms of the Easement to operate leaf blowers on the Easement or perform any pruning of plants. Except that they may pay a professional gardener to blow leaves, trim vegetation strictly within the Easement only, up to twice per week.

Much of the evidence in these proceedings related to the use, and allegedly excessive use, of leaf blowers by the Berlachs. Most of that evidence falls within the category of the material which I do not propose to address (see [17] above) going to the interpersonal behaviour of the parties, including allegations of leaf blowers as instruments of assault.
While excessive or unreasonable use of an easement can be actionable as a nuisance, Mr Brennan's submissions in support of this declaration exemplify the emphasis in the submissions put on behalf of Dr Au of the alleged impact of the Berlach's conduct on Dr Au and his wife, rather than also engaging with the terms of the Easement and the relevant law. The closing written submissions on behalf of Dr Au put: "118. There is a history of excessive and nuisance creating blowing by the defendants. Their evidence on the topic shows either perfidity or a bizarre lack of judgment as to what constitutes a real injury risk. They cannot be trusted to exercise judgment as to when blowing is reasonable or necessary. 119. Blowing has a serious adverse effect on the plaintiffs and the presence of the defendants while doing it is now coloured by the litigation and other unfortunate episodes. If it is not circumscribed it will cause the plaintiff and his wife further undeserved distress."
Given the view which the Court has taken of the relevant legal principles and the terms of the relief sought by Dr Au, it is not necessary to engage with whether or not the evidence bears out the allegations made in the submissions quoted in the preceding paragraph. It would also be contrary to the cheap, quick and just resolution of this dispute for the Court to examine minutely the large amount of photos and footage in an endeavour to conclude whether or not a particular incident was reasonable or unreasonable use of a leaf blower.
Nor is there any express language in the Easement referring to leaf blowers, the use of a professional gardener or how often maintenance can be conducted. The use of leaf blowers, by whom, for what and how frequently depends upon the terms of the Easement and the rights which are ancillary to those express terms.
Insofar as leaf blowers are concerned, there is one regulatory prohibition which must be noted. Regulation 51 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) provides: "51 USE OF POWER TOOLS ON RESIDENTIAL PREMISES (1) A person is guilty of an offence if-- (a) the person causes or permits a power tool to be used on residential premises in such a manner that it emits noise that can be heard within any room in any other residential premises (that is not a garage, storage area, bathroom, laundry, toilet or pantry) whether or not any door or window to that room is open-- (i) before 8 am or after 8 pm on any Saturday, Sunday or public holiday, or (ii) before 7 am or after 8 pm on any other day, and (b) within 7 days of doing so, the person is warned by an authorised officer or enforcement officer not to cause or permit a power tool to be used on residential premises in that manner, and (c) the person again causes or permits a power tool to be used on residential premises in that manner within 28 days after the warning has been given. : Maximum penalty--100 penalty units in the case of a corporation or 50 penalty units in the case of an individual. (2) In this clause-- "power tool" means any tool actuated by an additional power source and mechanism other than manual power and includes any of the following-- (a) a powered garden tool (that is, a tool powered by a petrol engine or an electric motor), including a lawn mower, a lawn trimmer, a blower or sweeper, a garden mulcher, an edge-cutter or a chipper or shredder, (b) an electric power tool (including battery-operated power tools), (c) a pneumatic power tool, (d) a chainsaw, (e) a circular saw, (f) a gas or air compressor."
The parties accepted that the effect of the regulation was that leaf blowers could not be used, other than between 7am and 8 pm on weekdays and between 8 am and 8pm on weekends and public holidays.
Subject to that regulatory provision, it is clear as a general proposition that the Berlachs are entitled to use leaf blowers on the Easement and to prune plants either by themselves or by their servants or agents such as their gardener as an incident of their ancillary right, which has already been discussed above, to repair and maintain the Easement. That conclusion is sufficient to demonstrate why the declaration sought does not reflect the terms of the Easement and therefore cannot be made. Similarly, there is nothing in the terms of the Easement to warrant specification by the Court of how many times leaves can be blown or vegetation trimmed.
However, given the evidence discloses that the real dispute between the parties was the frequency and timing of leaf blowing, it is necessary for me to say something about that, notwithstanding that the Court cannot either as a matter of law, discretion or practicality make a regulatory declaration of the kind sought by Dr Au. It is for this reason that the Court urged the parties to see if they could agree on some some practical, informal "rules and regulations" at a mediation.
Dr Au's legal protection under the Easement in relation to the use of leaf blowers by the Berlachs on the Easement is, as Barrett JA made clear in the passage set out in [46] above in Hare, that in exercising their rights, the Berlachs should not interfere unreasonably with Dr Au's enjoyment of his rights as proprietor of the servient tenement. At the heart of the dispute was the question of noise and the hours when that noise happened.
The evidence included numerous pictures of the Easement in various states of leaf coverage. There is no doubt that for some months of the year liquidambar and other leaves cover the Easement completely and to some depth. Given that the long, straight section of the Easement is on a slope, common experience as a driver is a sufficient basis to conclude that a heavy coverage of leaves on the Easement, especially in the event of rain, could constitute a safety hazard by affecting the traction of any vehicle on the Easement. On the other hand, there were also pictures of the Easement with very few, if any, leaves on the asphalt surface of the Easement.
Contrary to the submissions put by Mr Brennan, the Berlachs' right to maintain the Easement is not confined to issues of safety. Given the breadth of the Easement, "use" of the Easement for the benefit of the Berlach property must include an entitlement to keep it attractive and well kept, because it is for all intents and purposes the Berlachs' front driveway. This means they are entitled to keep it free of leaves and any other vegetation or fallen matter whether it is only one or two leaves and twigs or one or two thousand, and that they may do so more than once a day if necessary.
While, given the relations between the parties, it might be thought prudent if the Berlachs removed small numbers of leaves with a broom rather than a leaf blower, they are entitled to use a leaf blower if they wish, provided they do so within the operating hours permitted by the regulation set out in [76] above. However, if they choose to use a leaf blower, they must not interfere unreasonably with Dr Au's enjoyment of his rights, in this case the right to quiet enjoyment of the servient tenement. The length of time the leaf blower is used (and hence generating noise) must be proportionate to the number of leaves to be cleared. To take an extreme example, thirty minutes of consistent leaf blowing to clear five leaves would not be reasonable use by the Berlachs and could found actions in trespass and nuisance against them by Dr Au.

Parking or stopping vehicles on the Easement is not a legal use of the Easement except at the end near the boundary of the [Berlach property] when it is not practical for a heavy vehicle to drive across the bridge.

Again, a declaration in these terms does not accurately reflect the Berlachs' rights (or limitations on those rights) under the Easement. The implicit concession in relation to heavy vehicles and the bridge is well made, but the Berlachs' rights extend well beyond that specific example.
Before dealing with this issue further, there is an additional problem with the terms of the purported declaration which must be noted. The meaning of "parking" and "stopping" in the context of vehicles is not sufficiently clear (especially in the absence of any reference to the purpose of the parking or stopping) in a binding declaration of right.
For the purposes of the present discussion, I will assume that in the proposed declaration "parking" is intended to refer to leaving the vehicle stationary and unattended, and "stopping" is intended to refer to the vehicle being stationary with the driver either in the vehicle or in the vicinity of the vehicle.
Given the breadth of the terms of the Easement, the starting point must be whether the parking or the stopping of the vehicle is a use for any purpose to the benefit of the Berlachs. This will include people visiting the Berlach property, making deliveries to the Berlach property or otherwise performing services on the Berlach property or on the Easement for the Berlachs. If that requirement is satisfied, then it will be a reasonable use provided that it does not interfere unreasonably with Dr Au's enjoyment of his rights. The most pertinent of those rights is his entitlement to use the Easement to gain access to the three points of entry to the Au property from the Easement that I have already identified.
At this point of the analysis it is clear that the declaration sought by Dr Au could not be made because it does not accurately state the rights granted and the limitations imposed on the Berlachs by the Easement properly construed. However, having regard to the issues that were debated before me, something more should be said.
The Berlachs' rights under the Easement extend to permitting anyone visiting their property to leave their vehicle unattended for the duration of their visit if it is left on that part of the Easement to the north of Dr Au's garage because to do so would not unreasonably interfere with any right of Dr Au in respect of his property. Conversely, leaving a vehicle unattended on any other part of the Easement would be such an unreasonable interference because the driver would not be present to move the vehicle immediately upon being requested to do so by Dr Au to enable him to use the Easement to gain access to one of the three entry points to his property.
Stopping a vehicle on the Easement (i.e. with the driver in, or in close proximity to, the vehicle) engages different considerations. Assuming the purpose of the vehicle being on the Easement is for the benefit of the Berlachs (the most obvious example being gardeners retained by the Berlachs to keep the Easement clear of vegetation as an instance of the Berlach's right to maintain the Easement) stopping the gardeners' truck on the Easement would be permissible. There was some evidence before me of the gardeners moving their utility down the Easement in stages in order to put rubbish in the tray as they cleared the vegetation. Stopping a vehicle in that way would not be an unreasonable interference with Dr Au's rights provided that the vehicle was moved upon request to enable Dr Au, his wife or anyone else lawfully wishing to enter or leave the Au property to do so.
Finally on this topic, any parking or stopping on the Easement is subject to one further qualification. The Easement is, in effect, a single lane. Any vehicle driven down the Easement would either have to drive onto the Berlach property to turn around, or reverse back up the Easement. It would be a trespass against the Au property for a vehicle to go off the Easement onto the Au property to perform any manoeuvre to turn around. However, this qualification would not apply if going onto the Au property was reasonably necessary for a vehicle that was carrying out repairs or maintenance to the Easement for the Berlachs (see the discussion in 60]-[71] above).

The defendants must never, for any reason, breach the boundaries of the Easement and must never interfere with the plants, animals or anything else on the [Au] property.

The defendants personally, must not, operate leaf blowers on the [Au] property.

The orders proposed by Dr Au are intended to give injunctive effect to the declarations ultimately sought by him. The Court declines to grant those injunctions for the same reasons the Court will not make those declarations.

The Berlachs' cross-summons

I have set out the relevant terms of the cross-summons in [16] above. That relief was sought on three legal bases: the rights conferred by the Easement, the law of nuisance in relation to the CCTV cameras and a building covenant. I will deal with each of these separately.

The Berlachs' cross-summons - rights under the Easement

While it will be apparent from the conclusions expressed above that the Court is well satisfied that the Berlachs have extensive express and implied ancillary rights under the Easement, the Court would not make an injunction in the broad terms of prayer 1 of the cross-summons. This difficulty appears to have been recognised by Mr Lynch SC, whose closing written submissions with Mr Hand submitted that prayer 1 in the cross-summons should be granted but qualified by the insertion of these concluding words: "[B]y erecting or installing (d) on any part of the Easement any structure or thing, such as bollards, that diminish the width of it for use as an easement; or (e) on or off the Easement, any sign or notice that disguises the availability of the Easement as the manner of access to [the Berlach property]."
The proposed amendment identifies what the Court understands to be the real points of complaint which the Berlachs wish to address in this part of the cross- summons and is prepared to grant relief to that effect for the following reasons.
Insofar as the bollards are concerned, this raises an issue which was never satisfactorily resolved during the hearing. The parties conducted the case on the basis of a common understanding that the asphalt generally, but not precisely, occupied the totality of the Easement. The Court raised with the parties the desirability of a survey being conducted so that any argument about the physical location of the Easement could be removed. Such a survey was undertaken on behalf of Dr Au and a plan provided to the Court on the last day of the hearing. However, the Berlachs had not had adequate time to consider it and the plan was not tendered into evidence. I remain of the view, which I expressed during the course of the hearing, that it will be a condition of any relief, that the parties agree, or in default of agreement physically mark out, the metes and bounds of the Easement on the Au property itself to quell at least one aspect of this dispute.
This area of doubt in relation to the evidence complicates the question of what is to be done about the timber bollards running down the western side of the Easement. According to the s 88B instrument in evidence, the western boundary of the long, initial section of the Easement is the western boundary of the Au property itself. The bollards appear to be slightly to the west of that. That is to say, they appear to be on the western neighbour's property.
This will be a matter for further resolution between the parties as part of the working out of the Court's orders. Insofar as the parties can agree, or a survey demonstrates, that the bollards encroach on the Easement, the Court will order them to be removed. The Easement is narrow enough as it is and the breadth of its terms satisfy the Court that the Berlachs are entitled to the benefit of the full width of the Easement. Insofar as the bollards or any other structure are on the neighbouring land then, in the absence of complaint or proceedings by the owner of that land, the Court will not grant any relief.
Turning to the signage, the Court is well satisfied that the Berlachs are entitled to relief, but not in the terms sought by the proposed amendment to prayer 1 of the cross-summons. This is because the language of "disguising" the availability of the Easement is too imprecise for the purposes of an order punishable by contempt. The signage falls into two categories.
First, as I have described in [32] above, there are multiple signs at or visible at the entrance to the Easement where it meets Oak Road referring to XXX. There was ample evidence filed by the Berlachs themselves and from third party witnesses that the presence of that signage, together with the no trespassing and private property signs hung on the fencing, and the multiple iterations of XXX written on the surface of the Easement itself in bright pink paint, have the effect of confusing people about how to get to the Berlach property and dissuading them from entering upon the Easement at all. The Court accepts Mr Lynch SC's submission that the owner of a servient tenement cannot engage in conduct which has the effect of preventing or dissuading people from using an easement for its intended purpose.
The reason for this conclusion may be shortly stated. As I have already noted, referring to the summary by Barrett JA in Hare (see [46] above) the owner of the servient tenement has all the rights of the owner of the fee simple subject only to the extent that they are expressly or impliedly constrained by the terms of the Easement. As the owner of his property, Dr Au is undoubtedly entitled to erect on a pillar box or some other appropriate structure signage which identifies the Au property as number XXX. However, if that identification is done in a way which interferes unreasonably with the enjoyment of the Berlachs' rights under the Easement, it is impermissible.
To erect signage which confuses people about whether or not the Easement leads to the Berlach property or has the effect of dissuading potential visitors from entering upon the Easement is a breach by Dr Au of his obligation not to do anything which unnecessarily interferes with the enjoyment by the Berlachs of their rights under the Easement. The Court finds that to be clearly the case in relation to the collection of various signs at the entrance to the Easement on Oak Road.
In reaching this conclusion, I have not overlooked Dr Au's evidence that his intention in putting up the signs at the entrance was to stop people coming to the front door of his house asking about how to get to the Berlach property, and that painting XXX on the asphalt was intended to stop people visiting the Berlach property parking or stopping on the Easement. Assuming those were his only intentions, they are no answer to the Court's conclusions. It is the effect of the conduct engaged in by the servient owner that matters rather than whatever that owner's intention may be.
There is an irony in the measures adopted by Dr Au. Rather than putting up multiple signs identifying the number of his property, the problem he sought to address (people coming to his house to inquire how to get to the Berlach property) could easily have been solved to the parties' mutual benefit by him erecting, or permitting the Berlachs to erect, an appropriate sign at the top of the Easement with the house number of the Berlach property and an arrow to make clear that if the visitor followed the Easement they would reach the Berlachs' property.
To resolve this aspect of the controversy, the Court will make orders to the effect that Dr Au should: 1. remove, at his expense, all signage referring to XXX and stating no trespassing etc at or in the vicinity of the entrance of the Easement other than the number XXX on the eastern pillar and the black and white sign next to the driveway to the front of his house; and 2. not interfere with any sign placed on a post erected by the Berlachs, at their expense, on the western side of the Easement near the entrance to Oak Road with an arrow pointing down the Easement and their house number (the precise size and type of the post and sign to be agreed between the parties, or in default of agreement, as determined by the Court).
To permit the Berlachs to erect a sign of the kind referred to in [105(2)], if they wish to do so, recognises their ancillary right to erect an improvement on the Easement which facilitates the exercise of their rights under the Easement.
Moving down the Easement away from the signage at its entrance, the same reasoning supports an order requiring Dr Au to remove, at his expense, the multiple iterations of XXX painted onto the Easement over its entire length.
Similarly, the Berlachs are entitled to an order that any sign that has been put up by Dr Au along the length of the Easement referring to "private property" or "trespassing" must be removed. Whatever Dr Au's intention may have been in erecting that signage, it also conveys (particularly in its multiplicity) a message to the uninitiated that they may be or are trespassing upon private property when they use the Easement to gain access to the Berlach property. That is simply wrong as a matter of law and amplifies the effect of the numbers on the asphalt and the multiple warning and XXX signs at the entrance confusing, if not dissuading, people about whether the Easement is the route to the Berlach property.

The Berlachs' cross-summons - the CCTV cameras

As is apparent from the Diagram, there are four posts erected by Dr Au along the eastern edge of the Easement which contain a total of 17 CCTV cameras overlooking the Easement.
Mr Lynch SC submitted that there was ample evidence from which the Court could infer that one of the objectives of this large number of cameras was to deter the Berlachs from doing work necessary or convenient for the exercise of their rights under the Easement, and that the presence of the cameras and the use made of the footage by Dr Au caused distress to the Berlachs, particularly to Mrs Berlach. He also submitted that the extent of Dr Au's surveillance demonstrated his intent was to "snoop" on the activities of the Berlachs on the Easement. He submitted that all of this conduct constituted nuisance, relying on the conclusion of Young J (as his Honour then was) in Raciti v Hughes (1995) 7 BPR 14,837 at 14,840 (Raciti) that "a deliberate attempt to snoop on the privacy of a neighbour and to record that on videotape … is an actionable nuisance".
Mr Brennan submitted that Raciti was distinguishable because it concerned cameras with movement activated lighting that were set up to record activity in another's private backyard. This was not comparable to monitoring activities on the Easement which was part of the Au property. He also submitted that the cameras were not intended to be a nuisance and that they did not interfere with the use of the Easement. He submitted that there was no complaint of any kind from the Berlachs that anyone had been prevented from travelling along the Easement by the presence of the cameras.
Dr Au's own evidence in relation to the CCTV cameras included: 1. "… I have had installed video surveillance and recording equipment to document [the Berlachs'] behaviour on the right of way." (Dr Au's affidavit of 18 June 2021, para 2) 2. Dr Au explained that the cameras were of different types. Some of these are constantly recording, others only record when triggered by motion, some are wireless. From 2019 he was reviewing daily motion activated recordings from an "ILO" system which is a wireless based battery operated camera. Since the installation of the ILO system in 2019, Dr Au has stored hundreds of images and saved those which demonstrate conduct by the Berlachs of which Dr Au complained. 3. When asked about the selection of the images and videos which Dr Au presented to the Court he replied (Tcpt, 21 October 2021, p 23 (11-18)): "Yes. They're typical. There's nothing worse in these other videos that may or may not have been saved. There are - there are so many videos and it's - it's so arduous to actually view them all. Yes. These are selective behaviours. They - they may not be - look, he may have had worse behaviour, but there are so many videos, it takes us hours and hours to view them. And really, you know, it's - it's mind numbing to view all these videos. I mean, each one blowing, blowing, blowing. It's the video after video of this [leafblowing] and they're almost all the same." 1. Images from the surveillance system have been uploaded to Ms Szypica's YouTube account, with some of them being publicly available.
The Court accepts the evidence of the Berlachs as to the personal distress and concern they experience by reason of the presence of the CCTV cameras and the accompanying sign "Smile - you're being recorded". The Berlachs feel personally uncomfortable by reason of the presence of those cameras but also feel discomfort because it reminds them that their school aged children are being recorded.
In Raciti, Young J (as his Honour then was) dealt with a dispute between neighbours. The defendants had installed on their property floodlights and camera surveillance equipment positioned so as to illuminate and record on videotape what occurred in the plaintiffs' backyard. While the decision concerned the granting of an injunction, it is more than an interlocutory decision establishing no more than that there was a serious question to be tried. As his Honour explains at the outset of his reasons (at 14,837), the application was conducted as "virtually a hearing of a demurrer" so that it dealt with full argument on a point of law. That point was whether the plaintiffs had a cause of action if the facts they had proven were accepted. Those facts included the distress which the plaintiffs felt by reason of the lights and cameras that had been installed by their neighbours.
After considering the relevant authorities, his Honour concluded in relation to the camera and recording equipment (at 14,840-14,841): "On the evidence before me at the moment there is a deliberate attempt to snoop on the privacy of a neighbour and to record that on video tape. It seems to me that this is an actionable nuisance. This view fits in with the attitude of the courts to what is now called "telephone nuisance". Thus in Alma v Nakir [1966] 2 NSWR 396, McLelland CJ in Eq held that where a defendant persistently dials the plaintiff's telephone number and then when the telephone is answered deliberately refrains from replacing the receiver at the dialling end, as a result of which distress and serious inconvenience is caused to the plaintiff, there is a nuisance for which injunctive relief will lie. Similar views have been reached in Canada; see Motherwell v Motherwell (1976) 73 DLR 93d) 62, a decision of the Appellate Division of the Alberta Supreme Court, and it is clearly an actionable nuisance to annoy a media personality by continually watching her and telephoning her. Mr Ashurst also referred to other nuisance cases, such as Vincent v Peacock [1973] 1 NSWLR 466, but I think that that sort of case is too far removed from the present situation. I do think, however, that the facts of this case show that the surveillance and accompanying recording by video camera of what occurs in the plaintiffs' back yard gets sufficiently close to watching and besetting, and which, on analogy with cases such as Alma's case, are an actionable nuisance."
Mr Brennan did not suggest that there has been any later judicial disapproval of his Honour's conclusion. Raciti was referred to by her Honour Judge McIntyre in Shahin v Raedel [2017] SADC 92. Her Honour concluded in that case, which concerned recordings made of an adjoining property made by a surveillance camera: "289 His Honour Chief Justice Gleeson in Lenah stated a test for what may constitute a private matter inter alia as follows: An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford ...... The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. 290 Accordingly if activities in the Shahin garden are visible from other buildings or other locations that might mean that the activities are not private. On the other hand there is, to my mind, a difference between someone standing on the Raedel portico or even the footpath and looking into the Shahin garden compared to someone viewing that same area on a console in the Raedel house, in Sydney or on a DVD player. The recording of those areas adds a further level of intrusion. 291 I have no doubt that the Raedel's PTZ camera, as currently deployed, constitutes a gross invasion of the privacy of the Shahin family that would be "highly offensive to a reasonable person of ordinary sensibilities" and that it amounts to "watching and besetting". It represents a substantial interference with the Shahin family's use and enjoyment of their property."
I respectfully agree with the analysis of the law in Raciti and accept Mr Lynch SC's submission that it is applicable to the present case. By his own admission, Dr Au has set up an elaborate surveillance system designed to "snoop" on the activities of the Berlachs on the Easement and he and his wife spend "hours and hours" reviewing the results. By reason of the distress that it causes the Berlachs, the Court finds that the use of the CCTV cameras is a substantial and unreasonable interference of their enjoyment of the Easement so that the cause of action in nuisance is made out.
The Court does not accept Mr Brennan's attempt to distinguish Raciti on the basis that what is being filmed is the Berlachs' activity on the Easement. The fact that what is being recorded is the Berlachs' activity on the Easement does not relevantly make it any less "private" than if they were being filmed on the Berlach property. Furthermore, the Berlachs have substantial proprietary rights in respect of the Easement which, as I have observed, is for all intents and purposes the front driveway to the Berlach property. For the purposes of this cause of action, the Easement is not relevantly different to the Berlach property.
If the conclusion expressed in the previous two paragraphs is wrong, the Court is nevertheless satisfied that there is an alternative basis in law which leads to the same result. Given the distress the surveillance causes the Berlachs, the surveillance also constitutes a breach of Dr Au's obligation as servient owner not to interfere unreasonably with the Berlachs' enjoyment of their rights under the Easement. It makes no difference to this analysis that Dr Au says that the surveillance is being undertaken in order to record conduct by the Berlachs on the Easement which he says is wrongful. As I have already noted, I do not propose to attempt to view all of the footage that has been put into evidence to conduct a minute analysis of each incident. However, it will be apparent from the Court's conclusions in relation to Dr Au's claim that all of the types of conduct about which he has complained are permissible on the part of the Berlachs under the Easement. Assuming that is what Dr Au has recorded by means of his surveillance, then he has "hours and hours" of recordings of the Berlachs' lawful use of the Easement.
However, neither basis I have identified is sufficient to justify an order for the removal of all the CCTV cameras. Dr Au is entitled to be given an opportunity to abate the nuisance which the Court has found. Similarly, he is entitled, for the purposes of security rather than monitoring or intimidating the Berlachs, to have some surveillance equipment monitoring the Easement. This is in fact no different to the Berlachs, as they do, having one security camera (shown on the Diagram) looking onto the bridge and entrance to their property.
While the precise form of any orders will initially be a matter for discussion between the parties, the Court is satisfied that it should make orders the effect of which will be to leave Dr Au (if he wishes) with the minimum number of CCTV cameras necessary to provide coverage along the length of the Easement. If the parties are not able to agree what that entails, then the Court will refer the question out to a suitably qualified expert at the cost of Dr Au.

The Berlachs' cross-summons - the building covenant

The third basis on which the Berlachs sought relief was this covenant imposed by the same s 88B instrument which gave effect to the Easement (the Covenant): "No building or other structure shall be erected, constructed or placed on the land shown as [the Au property] excepting such building or structure as shall be constructed in an Australian Colonial style in natural colours such as brown, green or beige."
The Berlachs tendered an expert report from Mr James Phillips, an experienced heritage consultant. His report was admitted without objection and he was not required for cross-examination. No contrary expert evidence was filed on behalf of Dr Au.
Given its relative brevity, it is convenient to set out the essential part of Mr Phillips' report in full: "3. Report 3.1 The photographs, numbered 1 to 12, attached in the appendix illustrate the following items, none of which represents an Australian Colonial style: • bollards • star pickets • orange bunting • yellow posts (holding up the orange bunting) • orange mesh fencing and as reinforcing to the metal fencing • yellow mesh fencing • chainwire fencing • shade cloth/fabric (on the chainwire fence) • hubcaps (on the chainwire fence) • beige metal fencing and gate • beige wooden fencing • signage (standalone, on the fencing and on the surveillance camera posts) • surveillance cameras • surveillance camera posts • pink fabric • steel fencing and posts • steel reinforcing • orange and white construction barrier • camouflage netting/fabric (behind the beige wooden fencing, and on the chainwire fencing and attached to the trees) These items are laid out adjacent to (or in some cases, on) the right of way benefitting Lot XXX in Deposited Plan XXX, being XXX Oak Road, Matcham NSW 2250 and encumbering Lot XXX in Deposited Plan XXX, being XXX Oak Road, Matcham NSW 2250. 3.2 The Colonial Style generally pertains to the period 1788-1840. Among historians and heritage consultants the definition of the period varies. A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present is often used as a guide. I have referenced this book to supplement the process of determining what constitutes an Australian Colonial style. In addition, as listed in my curriculum vitae below, I have had extensive dealings with buildings that are considered to be in the Australian Colonial style. These buildings range from iconic buildings such as The Mint Building in Macquarie Street, Sydney to a very early slab cottage at Saltash in the Lower Hunter Valley. 3.3 Structures of that period were characterised by being constructed of timber, cast iron and brick; facebrick in the earliest period and later rendered brick. Fencing was typically post and rail with the gradual introduction of wire and later barbed wire. 3.4 Were one to require mounting or installation of modern equipment in circumstances where an Australian Colonial style was required, there are many examples of garden structures of the period that could be interpreted to be in an Australian Colonial style. This would include nesting boxes, pergolas and other garden structures of the period. 3.5 Similarly, fencing in an Australian Colonial style could consist of timber post and rail fences with wire between the post, or with close spaced timber pickets. 3.6 Characteristic colours were limited. They included brown, green and beige in various tones and intensities. Intense and fluorescent colours were not available in that period. Black was seldom used for fencing and structures. 3.7 The structures and fences shown in the photographs are clearly contemporary and make no reference whatsoever to an Australian Colonial style. They consist of timber structures painted black or a dark colour. The post structures carry CCTV cameras. These are clearly modern and are stark white in colour. No attempt has been made to integrate them into the structure or to screen them from direct view. 3.8 The fences are of a type that is clearly modern, both in their tubular steel construction and in their use of heavy wire mesh, which is a product dating from the early twentieth century, and plastic shade cloth, also a phenomenon of the late twentieth century. 3.9 In summary, none of the materials or finishes used on or near the right of way on the cross-defendant's property is in an Australian Colonial style, nor do they attempt in any way to resemble or make reference to that style. The colours of the materials make no reference to a colour palette of subdued tones that would suggest an Australian Colonial style."
The Court finds in terms of paragraph 3.9 of Mr Phillips' report.
Mr Brennan's response to this part of the Berlachs' case was to submit, by reference to the decision of Robson J in Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206 (Glaser), that the Covenant was of no effect by reason of cl 1.20 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP).
In reply, Mr Lynch SC submitted that, if cl 1.20 did apply, on the facts of this case its operation was excluded by cl 1.20(2)(c).
The Covenant creates an enforceable private law right as between the Berlachs and Dr Au. The Berlachs have discharged their legal and evidentiary onus by proving the Covenant and that the fence and other items listed in paragraph 3.1 of Mr Phillips' report are in breach of that Covenant. Without more, they are entitled to orders that the fence and other items be removed.
Dr Au raises the Codes SEPP as a defence, by reference to these provisions (emphasis added): "1.20 Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Policy, or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. (2) This clause does not apply - … (c) to a covenant imposed by an owner or former owner of the land concerned, other than a covenant that has been required by a council to be imposed…".
The Codes SEPP is a statutory instrument forming part of the regime of land use planning in NSW. The difficulty for Dr Au is that he has failed to prove that the fence is exempt development as provided for by the Codes SEPP, that is to say that it is "development on land in any zone to be carried out in accordance with this Policy". In the absence of such proof, the questions of whether the Covenant is suspended by cl 1.20(1) or saved by cl 1.20(2)(c) do not arise.
Contrary to Mr Brennan's submission, Glaser does not assist Dr Au's case. This is because, as Glaser makes clear, the first step in any argument relying on cl 1.20 is to demonstrate that the development in question is exempt development as provided for by the Codes SEPP. As Robson J said (at [17]), the sole question to be resolved in the proceedings before him was "whether the fence is exempt development as provided for by the Codes SEPP". In that case, if the answer was "yes", then it was uncontroversial that "cl 1.20 removes any impediment on development under the Codes SEPP which the restrictive covenant might otherwise have provided" (at [14]). In this case, the application of cl 1.20 is in controversy, but as I will next explain, that stage of the argument is never reached.
I respectfully adopt this helpful summary of the legislative scheme from Glaser (emphasis added): "39. With that in mind, it is convenient to make some preliminary observations about the structure of the Codes SEPP. Its aims are stated in cl 1.3, which provides: 1.3 Aims of Policy This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by: (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy, and (e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments." 40. The rest of Div 1 of the Codes SEPP identifies the land to which the Codes SEPP applies; provides definitions and savings measures; and explains how the Codes SEPP interacts with other State environmental planning policies, local environmental plans, and development control plans. 41. Division 2 of the Codes SEPP relevantly provides information about what exempt development is, general requirements that must be satisfied for exempt development and includes cl 1.20, extracted at [12]. The Codes SEPP then relevantly contains Pt 2 and a series of subdivisions each of which specifies a kind of development which is exempt and development standards which must apply to that development in order to take advantage of the exemption." "
Clauses 1.15 and 1.16 of the Codes SEPP define exempt development and specify general requirements: "Division 2 Exempt and complying development 1.15 What development is exempt development? (1) Development is exempt development for the purposes of this Policy if the development - (a) is specified in an exempt development code, and (b) meets the standards specified for the development, and (c) complies with the requirements of this Division for exempt development. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. 1.16 General requirements for exempt development (1) To be exempt development for the purposes of this Policy, the development - (a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and (b1) must not be carried out on land that is a declared area of outstanding biodiversity value under the Biodiversity Conservations Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994, and (b2) must not be carried out on land that is, or is part of, a wilderness area (within the meaning of Wilderness Act 1987), and (c) must not be carried out on land that is, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977, or that is subject to an interim heritage order under that Act, and (d) must not be carried out on land that is described or otherwise identified on a map specified in Schedule 4. (1A) Despite subclause (1)(c), if development meets the requirements and standards specified by this Policy and that development - (a) has been granted an exemption under section 57(2) of the Heritage Act 1977, or (b) is subject to an exemption under section 57(1A) or (3) of that Act, the development is exempt development under this Policy. (1B) If an item listed on the State Heritage Register is not located on, or does not comprise, the whole of the relevant land, subclause (1)(c) applies only to the part of the land that is described and mapped on that register. (1C) If an item not listed on the State Heritage Register but identified as an item of environmental heritage in an environmental planning instrument does not comprise, or is not located on, the whole of the relevant land, any restriction on carrying out development on the relevant land on which the item is located applies only to the part of the land that is described and mapped on that instrument. (2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2-9 is exempt development for the purposes of this Policy only if - (a) the building has a current fire safety certificate or fire safety statement, or (b) no fire safety measures are currently implemented, required or proposed for the building. (3) To be exempt development for the purposes of this Policy, the development must - (a) be installed in accordance with the manufacturer's specifications, if applicable, and (b) not involve the removal or pruning of a tree or other vegetation that requires a permit, approval or development consent, unless the removal or pruning is carried out in accordance with the permit, approval or development consent. (4) (Repealed)"
Whether those clauses are satisfied such that the development in question is exempt development as provided for by the Codes SEPP is a matter for evidence. In Glaser, for example, his Honour had the benefit of extensive evidence (including town planning evidence) and argument as to whether the fence in question was of a kind which could take advantage of the applicable category of exemption relied upon under Part 2 of the Codes SEPP. As appears in [42]-[43], the respondent relied upon Subdivision 17 "Fences (certain residential zones and Zone RU5)" with the dispute turning on whether the fence in that case satisfied all of the requirements of Subdivision 17, primarily whether it was constructed or installed on land "identified as being in a foreshore area".
Mr Brennan did not suggest that there was any evidence before the Court as to the zoning of the Au property. Such evidence must be the starting point to identify the Subdivision within the Exempt Development Codes in Part 2 which is relied upon to demonstrate that the fence is exempt development of a kind provided for by the Codes SEPP. Nor did Mr Brennan: 1. identify any Subdivision of the Codes SEPP which might apply; 2. point to evidence which proved that the fence was development "specified" in such a code (see cl 1.15(1)(a) set out in [133] above); 3. point to evidence which proved that the fence met the standards specified for that development (see cl 1.15(1)(b) set out in [133] above); and 4. point to evidence which proved that the fence complied with the requirements of Division 2 in Part 1 for exempt development (see cl 1.15(1)(c) set out in [133] above).
A cursory review of the categories of exempt development within Part 2 of the Codes SEPP discloses four different Subdivisions dealing with fences, of which two (17 and 18) on their face could be the applicable Subdivision depending on the zoning of the Au property. Each of these two has different definitions of "specified development" and, importantly, different development standards which must be met for the development to be exempt development for the purposes of the Codes SEPP (see cl 1.15(1)) such that cl 1.20 is potentially engaged.
For example, Subdivision 18 "Fences (certain rural zones, environment protection zones and Zone R5)", if it applied, contains a standard specified for the development that the fence be constructed using post and wire or post and rail (cl 2.36(a)(c)). On the evidence in this case, the development standards in Subdivision 18 (if it applied) would not be met because the fence is obviously not a post and wire or post and rail fence and the fence would not be exempt development. In this example, therefore, the Codes SEPP would not apply to the fence and no question of the application of cl 1.20 would arise.
In the absence of any submission or evidence about how the fence is said to be exempt development under the Codes SEPP, the Court cannot find that the fence is "development…carried out in accordance with this Policy" for the purposes of potentially engaging cl 1.20. The defence raised by Dr Au to the Covenant being enforced there fails. The Berlachs are entitled to an injunction that the fence and other items identified in Mr Phillips' report be removed at Dr Au's expense.
There was agreement between the parties that the fence was hardly in keeping with the bushland setting of the two properties. Dr Au accepted in evidence that he and his wife understood when they purchased their property that there would be some incursion on their privacy by users of the Easement. His desire to have some screening (which to the inexpert eye could be by a hedge or other vegetation, or fencing in an Australian Colonial style as identified in Mr Phillips' report) to achieve that privacy is entirely reasonable and could be done without breaching the Covenant. To quell this aspect of the dispute the Court has in mind orders that the fence and other items be removed after the parties have either reached agreement as to what will replace the fence or, in default of agreement, the Court will refer out to a suitable expert or experts the question of how Dr Au's privacy can be preserved conformably with the Covenant upon removal of the fence.

Conclusion

The parties will be given an opportunity to bring in orders to reflect these reasons. Subject to any further submissions, Dr Au will be ordered to pay the Berlachs' costs of the proceedings. The parties should also not hesitate to raise with the Court any issue for determination in relation to a particular type of conduct on the Easement which they contend may have been overlooked by the Court.

Au v Berlach Diagram final (57427, pdf) Au v Berlach Diagram final (57427, pdf) ; Au v Berlach Photo 1_2022_02_04_10_22_04_581 (665109, pdf) ; Au v Berlach photo 2_2022_02_04_10_22_55_023 (752427, pdf) ; Au v Berlach photo 3_2022_02_04_10_23_27_742 (940984, pdf); AU V BERLACH PHOTO 4_2022_02_07_15_09_03_721 (1109526, pdf)

Amendments 09 February 2022 - Paragraph 100 - [X] in first sentence changed to [32] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2022

Environment Operations (Noise Control Regulation 2017(NSW)

Environment Operations (Noise Control) Regulation 2017(NSW)

At a glance

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Cases Cited (15)

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