Averono & Anor v Mbuzi & Anor

[1] By originating application filed on 13 December 2004 the applicants sought, amongst other relief, an injunction restraining the respondents from interfering with the rights of the applicant pursuant to registered Easements 702880330 and 702880356. They also sought injunctions restraining the respondents from removing bitumen from the land the subject of Easement No 702880330 and from erecting a fence on that land. On 21 December 2004 the respondents filed their own application in which they sought an order that Easement No 702880341 be cancelled pursuant to s 181 of the Property Law Act 1974 ("the Act"). The application was amended subsequently to refer to Easement No 702880356.

General description of Easement E and associated real property boundaries and interests

[2] The applicants and the respondents are neighbours. The applicants are the registered proprietors of Lot 31 on Registered Plan SP112285. It is 6000 square metres in area as is Lot 32, the respondents' land. Both lots are what is commonly referred to as "battleaxe" blocks. That part of Lot 31 which connects it with its nearest street, Eucalypt Court, is a narrow strip of land subject to easement No 702880330, otherwise described as Easement D, in favour of Lot 32. Easement D is 5.011 metres wide at its boundary with Eucalypt Court, 5.234 metres wide where it runs into the larger part of Lot 31, and its boundary with the corresponding part of Lot 32 is 77.643 metres long. That part of Lot 32, which is subject to Easement No 702880356 ("Easement E"), has substantially the same dimensions as Easement D.

[3] Each easement is for the purposes of right of way under which the grantor grants to the grantee and its successors in title:

"... and Owners and Occupiers for the time being of the dominant tenement and the tenants, servants, workmen, customers, invitees and licensees and all other persons authorized by the owner of the dominant tenement but in common with the Grantor and any successor and (sic) title from time to time by day or night to pass or repass with or without vehicles of any description and with or without animals for all purposes ordinarily incidental to the Grantee's business or connected with the use and enjoyment of the dominant tenement but not for any purpose whatsoever over, along or across the easement."

[4] Each easement was created by an instrument of grant executed in June 1998 by the then registered proprietor, which imposes the obligation that the registered proprietor of the dominant tenement is responsible for the maintenance of the easement.

The physical condition of the driveway at relevant times

[5] In early December 2004 and at relevant times prior thereto, there was a bitumen driveway located roughly down the middle of the land within Easements D and E. On 17 December 2004 the respondents' side of the bitumen driveway was torn up by workmen employed by the respondents. Mr Mbuzi swears that prior to the works commenced by him, the driveway was a gravel track with numerous potholes which had been washed away in parts and that he is replacing "the bitumen/gravel" with a concrete surface which will be long-lasting and easily maintained. Moreover, he asserts that the bitumen is being removed from land within the respondents' title and not from land within the applicants' title. It will be apparent that the evidence as to the composition of the driveway's surface is inconsistent with other parts of Mr Mbuzi's evidence.

[6] Mr Averono disputes these assertions about the state of the driveway. When inadmissible opinion evidence is disregarded, he swears to the driveway's having a bitumen surface and to its not being washed away in parts. Photographs in evidence support Mr Averono's evidence. I find that the driveway had a bitumen surface of sorts and that, prior to the respondents' work in December, it was in reasonable condition and not washed out except to a minor degree in one low lying area.

[7] Photographs in evidence show the land within the easement areas falling away fairly gently from the street boundary to the low lying area. The land then rises again for a distance which it is impossible to estimate from the photographs. The lane also slopes fairly steeply from the sides of the driveway in the location of the low lying area and in a place in which the respondents have fenced off a "deep gully pit" on their side of the driveway which collects stormwater.

The dealings between the parties relating to the commencement of these proceedings

[8] In about September 2004 Mr Mbuzi informed Mr Averono that he wished to place a fence down the middle of the driveway, that is, along the boundary line of Lots 31 and 32. Mr Averono did not agree to the proposal and suggested that Mr Mbuzi speak to the applicants' solicitor as well as their local Member of Parliament. In a letter to Mr Mbuzi dated 12 October 2004, the applicants drew attention to the existence of an easement over the driveway land and expressed concern about their ability to provide bus access to their property should the driveway be fenced down the middle.

[9] Many months before these exchanges, Mr Mbuzi had raised with Mr Averono his desire to construct the fence and Mr Averono had made no objection. At the time, according to Mr Averono, he was unaware of the existence of the easements and understood that the respondents had a legal right to construct the fence. His change in attitude to the fence, once he became acquainted with the true title position, was seen by Mr Mbuzi as capricious.

[10] On 9 November 2004 the applicants' solicitors wrote to the respondents enclosing a copy of Easement E and drawing attention to its terms. The letter stated that if the respondents attempted to construct a boundary fence or to alter the existing driveway so as to hinder or obstruct the applicants' access to their land, legal proceedings would be instituted.

[11] Mr Mbuzi replied to that letter by a letter dated 11 November 2004 in which he stated inter alia -

"Your clients ... have not honoured the reciprocal rights that you say they may have on the side of their land. They have taken unilateral decisions on their side and therefore, there no longer exists any reciprocity or reciprocates. I do not believe you will have any difficulties in understanding this principle. ...

I find your threat of legal action to be utter nonsense and I dismiss it with the contempt it roundly deserves. You may proceed as you wish."

[12] In his letter Mr Mbuzi also asserted that he and Mr Averono had "mutually and jointly marked with paint boundaries of our respective lands, guided by surveyors' pegs". The applicants' solicitors wrote again to the respondents on 12 November 2004. In that letter they referred to the allegation about marking the boundary and said:

"Whilst our clients were aware that you have marked the boundary with paint, it does not mean that our clients have agreed to your proposed action to build a driveway on your side of the boundary and erecting a fence down the middle."

They again threatened legal proceedings unless the respondents notified their agreement not to carry out proposed works on the easement land.

[13] Mr Mbuzi swears that on 21 September 2004 the respondents entered into a contract for work to "maintain, improve and complete construction of the driveway on our land". He swears that on that date he notified Mr Averono of his intention to fence and that Mr Averono raised no objection. It is apparent from correspondence, however, that if Mr Averono raised no objection on that day, as appears to be the case, he did so prior to 12 October.

The basis on which the respondents seek an order under s 181 of the Property Law Act 1974

[14] The grounds relied on by the respondents to justify the order they seek are as follows:

1. There is no need for the easements. Each driveway is approximately 5 metres in width, whereas the standard width of a driveway is approximately 2.5 metres. Two cars can fit easily side by side on the respondents' side of the driveway;

2. The applicants have restricted the width of their own driveway by placing a mail box in the centre of it at one point and, at another, erecting some fencing. That conduct has denied both applicants and respondents the use of the entire width of Easements E and D.

3. The respondents wish to fence off their property boundary as the applicants' dogs come on to the respondents' property, frightening their children and posing a risk of accident when the children are riding bikes on the driveway.

4. Although Mr Averono was notified on 21 September 2004 that the respondents intended fencing the boundary, the respondents made no objection until after the respondents entered into contracts for "work to maintain, improve and complete construction of the driveway on our land."

5. Mr Averono has been inconsistent in his approach in relation to fencing. Initially he requested time to work on the fence, he then asked for time to raise money to pay for work relating to the fence. Subsequently he asked to sight the Pine Rivers' Shire Council Permit and then said that the respondents could proceed if they helped him pay for work to his driveway. On 4 November 2004, after Mr Mbuzi marked the centre line of the properties by painting a line on the driveway, the applicant painted another such line and said, in effect, that if the fence encroached by three inches into either parcel of land there should be no problem.

This ground appears to be that the applicants acquiesced in work consistent with the extinguishment of the easement or engaged in conduct to the respondents' financial detriment.

6. The continued existence of the easements will provide a source of friction and animosity between the applicants and the respondents.

The applicants' reasons for objecting to extinguishment

(a) If Easement E is extinguished the respondents will be faced with the expense of widening and sealing their side of the existing driveway. They will have also, the expense of making provision for stormwater drainage. A driveway in its present location leaves ample room for drainage at the sides to disperse rainwater.

(b) Any new driveway which the applicants were obliged to construct would extend to the boundaries of the applicants' land and thus cover existing provisions for drainage. The new driveway would also cover other underground water pipes, electricity and telecommunications lines. Should access need to be gained to them, considerable expense will need to be incurred.

(c) A driveway in its present position is more practical than a driveway within the boundaries of Lots 31 and 32 as there is more room to enable vehicles to pass. A semi-trailer carrying protruding machinery, building materials or some other large object would have difficulty traversing a driveway confined within the boundaries of one lot. Further a breakdown of a vehicle on such a driveway would prevent vehicular access to the property serviced by the driveway. There would also be less room for driver error on a more restricted driveway.

(d) Easement D is the dominant tenement under Easement registered No 702880307 in favour of Lots 30, 32 and 33 on SP112285. That easement permits the grantee to "drain sewerage, sullage and other forms of waste in pipes through the easement and drain water from any natural source through the easement in pipes ...". If Easement D is extinguished, this drainage easement will, in effect, be extinguished, depriving the applicants and other land owners of their rights under it.

Observations on the applicants' grounds of objection

[15] There is scant evidence as to the actual location of water pipes, electricity lines and telephone lines. It may be inferred, on the balance of probabilities, having regard also to the photographs in evidence, that these services are underground. Whether they are under the existing roadway or are close to the boundaries of each property is a matter of conjecture, but Mr Mbuzi is of the understanding that some of the applicants' services are under the surface of Lot 32.

[16] What is said about drainage and room for large vehicles to move and manoeuvre is more a matter of assertion, rather than something which may be inferred from proven fact. It does appear, however, that some drainage is provided by a spoon drain along the side of Easement D furtherest from its long shared boundary with Easement E.

[17] No evidence is provided as to the cost of the works, which the applicants will need to implement if the easement is extinguished. But it is plain that the cost would be far from insignificant for normal suburban householders. I infer, admittedly on the basis of scant evidence, that the applicants meet this description. The applicants, however, are not required to prove that the extinguishment will substantially injure them as the persons entitled to the easement. It is the respondents who have the onus of satisfying the requirements of s 181(1) on which they seek to rely. The works to which I refer are the construction of a new driveway. That will involve substantial earthworks in at least two locations where the land within easement D slopes steeply away from the existing driveway. It is probable also that some new drainage works will be required. Also, the new work may cover existing services and make access to them more difficult.

[18] The drainage easement point was not raised until Mr Favell, who appeared for the applicants, distributed written submissions at the commencement of the hearing, but it is able to be made by reference to copies of instruments of grant of easements exhibited to affidavits filed and served in December 2004. That easement could not be extinguished without affecting the rights of others and before their rights could be detracted from, they would need to be given an opportunity to be heard. Also, to extinguish Easement E would be to extinguish the drainage easement. That, in itself, creates an obstacle to the respondents' application. Even if the drainage easement could be varied in some way to permit the extinguishment of Easement E without detracting from the rights of the non-parties, the existence and terms of the drainage easement suggest the need for further investigation of the potential impact of the extinguishment of Easement E and the works necessitated thereby on drainage from the applicants' land.

Consideration of the respondents' case on extinguishment

[19] The easements were created comparatively recently in connection with the subdivision of the land contained within Registered Plan SP112285. Presumably, the developers had a practical purpose in mind in going to this additional inconvenience and expense. It may be that they were obliged to create the easements to comply with the local authority's subdivisional requirements. Perhaps it was considered that one large access strip had advantages not offered by two narrow strips. I do not know. There is no admissible evidence before me on the point. Nor is there any expert evidence as to what is reasonable or desirable for a driveway's width having regard to considerations such as length and topography. The absence of such evidence though would not, of itself, be fatal to the respondents' claims. A body of expert knowledge acquired during a course of learning or through practical experience is hardly necessary to enable one to reach the conclusion that generally five metres would be an adequate width for a straight and fairly flat driveway 75 or so metres long. Nor is expert evidence needed to accommodate the conclusion that five metres is wide enough to permit provision for a passing bay or passing bays. It may be inferred from these observations that I do not regard the applicants' arguments based solely on width limitations as having much substance. But I would not readily conclude that reduction of the width of such a long driveway by half did not deprive the applicants of a property right of appreciable value.

[20] Section 181(2) of the Act provides:

"(2) In determining whether a case is one falling within subsection (1)(a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the Court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance."

[21] There does not appear to be anything in the relevant local authority's Development Control Plan which, relevantly, controls driveway widths. And the evidence did not address the question of whether there was any relevant "pattern of the local government" in relation to driveways when giving or withhold consents.

[22] The evidence which has been provided, however, does not enable me to conclude that extinguishment of Easement No 702880341 will not substantially injure the applicants. That is because of the matters discussed under the preceding heading.

[23] I note that the respondents do not offer to pay compensation or even costs. They appear to be opposed to that course. There is no evidence before me which would permit the assessment of compensation should an order be made in the respondents' favour. These considerations are sufficient to dispose of the respondent's application but I think it desirable to deal specifically with the parts of s 181 of the Act relied on by the respondents.

[24] Because of the dearth of evidence about the reasons underlying the original grants of easement there is difficulty in applying s 181(1)(a). The respondents argue that there has been a "change in the user of (the) land having the benefit of the easement ... [and] in the character of the neighbourhood". The change in user is said to arise from the fact that the subject easements were created by the developer of the subject residential subdivision, whereas the land has been sold and Lots 31 and 32 are occupied by the applicants and respondents as suburban householders. Mr Mbuzi did not specifically address the question of whether the character of the neighbourhood had changed.

[25] I would not readily accept that a change in "user" of land for the purposes of s 181(1)(a) has come about in these circumstances. The user of the land is that contemplated by the grants of easement and the easements are being put to the use for which they were intended at the date of creation of the easement. Nor, in such circumstances, would I accept that there has been a change in the character of the neighbourhood. It is not necessary, however, for me to express a concluded view on these points. For s 181(1)(a) to apply, a court must conclude that the easement ought to be deemed obsolete. The circumstances are not such that for either of these reasons or for any "other circumstances of the case", Easement E "ought to be deemed obsolete".

[26] Obsolescence is not established merely by demonstrating that removal of an easement of right of way will not prevent alternative, practical access and egress to and from the dominant tenement. The concept of obsolescence, in its present context, involves a change from usefulness at the time of creation of the easement to lack thereof at the time of the application for extinguishment or, perhaps, from use to disuse. A relevant enquiry is whether "the original object of the covenant can be achieved,[1] or, possibly, whether the covenant is "no longer relevant to the circumstances presently obtaining...".[2] Here the easement land is being used for the purpose of the easement in accordance with and subject to its terms.

[27] Section 181(1)(b) would not appear to be applicable. The evidence does not suggest that the continued existence of the easement impedes reasonable user of the Easement E land. The respondents' argument in this regard appears to be that unless the driveway can be fenced off, their children will be prevented from using it as a play area. The most significant concern in this regard appears to be that the children, when riding their bikes, may have an accident through avoiding or running into the applicants' spaniel. I am unable to accept that such a concern, even if it were to be accepted as real, should be recognised as impeding the reasonable use of the Easement E land.

[28] The provision under consideration is looking to the consequences flowing from the existence of the easement and the rights and obligations created thereby. It is not addressing specific acts or omissions in breach or exercise of such rights or obligations. In any event, I regard the occasional appearance of a neighbour's dog on a shared driveway as a normal and predictable occurrence in a rural residential environment.

[29] The sole remaining basis then for removal of the easement is that its extinguishment will not substantially injure the applicants.[3] The concept of substantial injury has been discussed in a number of cases in other States in respect of comparable legislative provisions. For example, in Webster v Bradac,[4] McClelland CJ referred to his observation in a previous case that "'substantially' connotes injury which has substance in the sense of being real or appreciable". That formulation is similar to that of Jacobs J in Re Mason and the Conveyancing Act:[5]

"I consider in its context it does not mean large or considerable but it means an injury which has present substance; that is to say, not a theoretical injury but something which is real and which has a present substance."

[30] This approach is similar to that taken A-G ex rel Whitten v Shire of Gisborne,[6] in which was held that "substantial"[7] had its natural meaning of "detriment of a real and not trivial or imaginary kind".

[31] Determination of whether an injury arising from the extinguishment of an easement is substantial will normally involve a comparison of the rights and benefits flowing from the easement to the proprietor of the dominant tenement with the proprietor's corresponding rights and entitlements after extinguishment. The cost burden, if any, imposed on the proprietor of the dominant tenement by the extinguishment is another obvious enough consideration. For the reasons given earlier, I cannot be satisfied that he extinguishment would not injure the applicants substantially.

[32] A major concern of the respondents, articulated in oral argument, was that the existence of Easement E and, in particular, the lack of a dividing fence between Easements D and E created the opportunity for continuing friction between neighbours. In this regard, complaints made of the applicants included their permitting another neighbour to use the laneway and the running of some of their service wires and pipes under Easement E rather than under Easement D. Even if these complaints were justified, they would not be relevant to the question of whether or not the extinguishment of the easement would substantially injure the applicants. If the applicants have, as alleged, caused services to be laid under the respondents' land without lawful justification, the respondents have a remedy at law of which they can avail themselves. The same considerations apply to the neighbours' use of the driveway.

[33] For the above reasons, I order that the application for extinguishment of the easement be dismissed.

[34] The application for injunctive relief is not without its problems. In the first paragraph of the application, the applicants seek to restrain the respondents from interfering with the applicants' use of rights granted pursuant to Easement D and Easement E. Easement D, of course, is the easement granted over the applicants' own land in favour of the proprietors of Lot 32. Easement E is within Lot 32. Mr Mbuzi swears that the work being done on Easement E is "work relating to maintenance and upkeep". He further swears that the respondents understand that whilst Easement E remains in effect the respondents "cannot prevent the applicants from accessing the easement".

[35] It is unclear what the consequences of the respondents' work will be if it proceeds to completion without the erection of a fence on the dividing line. In particular, it has not been shown that a motor vehicle will not be able to use the new work or part of it and part of the driveway within Easement D to gain access to Lot 31.

[36] The second injunction sought is one restraining the respondents from removing bitumen on that portion of Easement D located on Lot 32. Easement D is within Lot 31. Mr Mbuzi swears that the respondents have no intention of removing the bitumen located on Lot 31 and that the bitumen has already been removed from Lot 32.

[37] The remaining injunction sought is one restraining the respondents from erecting a fence on Easement D "at the boundary of Lots 31 and 32". Charitably construed, that could refer to the erection of a fence on the boundary line but what is sought is plainly ambiguous. Mr Mbuzi, it would seem from what has been said already, does not intend erecting any such fence whilst Easement E remains in force.

[38] It is a pity that Mr Mbuzi did not make that intention plain upon receipt of the letter dated 9 November 2004 from the applicants' solicitors. Instead, he invited the solicitors to proceed as they wished. He continued to maintain his non-conciliatory stance after receipt of the letter of 15 November and until after proceedings had been served on him. He thus invited the application which was necessary to protect the applicants' rights. The merits, however, are not entirely one-sided. The application was deficient in terms and the material filed in support of it, until after 22 December 2004, the day on which the matter first came on for hearing, was incapable of supporting an order for final relief.

[39] Mr Mbuzi attempted, unsuccessfully, to persuade the applicants' solicitors to adjourn the matter on 21 December so that the respondents could prepare for the hearing properly. The request was denied even though affidavit material of substance was served on the respondents on the evening before the hearing. There is no evidence that the respondents' solicitors offered to agree to an adjournment in return for appropriate undertakings.

[40] The respondents claim $13,231 on account of costs thrown away by the adjournment. They cannot succeed in that application as what they are seeking is damages rather than costs and self-represented non-solicitor litigants are unable to recover costs on account of time spent by them in preparing and conducting a case.[8]

[41] Taking the above matters into consideration, it will be ordered that the respondents pay the applicants' costs of and incidental to the applications for injunction and extinguishment of Easement E to be assessed on the standard basis excluding the applicants' costs of the hearing on 22 December 2004. I do not intend granting injunctive relief. The evidence does not disclose that the respondents are likely to act unlawfully.

[1] Re Truman, Hanbury, Buxton and Co Ltd's Application [1956] 1 QB 261 and Re Eddowes v Proprietors 'Maricopa' [1991] 2 Qd R 381.

[2] C. Hunton Ltd v Swire [1969] NZLR 232.

[3] See Property Law Act 1974 s 181(1)(d).

[4] [1994] ANZ ConvR 260, referred to with approval in Hoy v Atherton [2001] QSC 440; (2002) Q ConvR 54-559..

[5] (1960) 78 WN (NSW) 925 at 928.

[6] (1983) 45 LGRA 1 at 9.

[7] In s 18B(1) of the Town and Country Planning Act 1961-1986 (Vic) which enabled the responsible authority to refuse to grant a permit to use or develop land where the grant of a permit may cause a "substantial detriment to a person other than the applicant".

[8] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403.