Barter v Theunissen

Solicitors: Hones Lawyers (Plaintiff/Cross-Defendant) Speiser Lawyers (Defendants/Cross-Claimants) File Number(s): 2022/00358499 Publication restriction: Nil

JUDGMENT

1. This case involves an unfortunate dispute between neighbours over the scope of three easements which burden the property owned by the plaintiff and benefit the adjoining land owned by the defendants. The plaintiff, Ms Marie Barter (Ms Barter), lives in the house located on Lot 2 in Deposited Plan 841127 (Lot 2), known as 17A Euryalus Street, Mosman, and is the registered proprietor of that lot. The defendants and cross-claimants, Mr Joshua Theunissen (Mr Theunissen) and Ms Michelle Theunissen (Ms Theunissen) (together, the Theunissens), live in the house located on Lot 1 in Deposited Plan 841127 (Lot 1), known as 17 Euryalus Street, Mosman, and are the registered proprietors of that lot. Lot 2 is adjacent to Euryalus Street. Lot 1 is immediately behind Lot 2 and has access to Euryalus Street along a shared driveway located on Lot 2.
2. The three easements which burden Lot 2 are: 1. A right of carriageway, located on a strip of the driveway on Lot 2 (Right of Carriageway); 2. An easement for parking, located within the garage on Lot 2 (Parking Easement); and 3. An easement for recreation, located on the rooftop terrace of Ms Barter's house on Lot 2 (Recreation Easement).
3. By way of Summons, Ms Barter seeks declarations and orders to clarify the extent of the Theunissens' rights and seeking various restraints. The Theunissens have filed a Cross-Summons that seeks competing injunctive relief.
4. Ms Barter, Mr Theunissen and Mrs Theunissen all gave evidence by affidavit and were cross-examined.
5. In the afternoon of the first day of the hearing, to assist with an understanding of the evidence, the Court conducted a view of the relevant properties pursuant to s 53 of the Evidence Act 1995 (NSW). The view commenced at the front of the property through the driveway and up the 48 stairs leading up to the Theunissens' house. Those in attendance proceeded through the front door of the Theunissens' house and out of the glass sliding doors leading onto the rooftop terrace. After viewing the rooftop terrace, those in attendance walked back through the Theunissens' house and down the stairs and into the garage to which the Parking Easement relates. The garage was viewed, including the storage area and wine cellar at the back of the garage. Those in attendance then walked through the other garage on Lot 2 (Ms Barter's garage) which has a door at the back to access the passageway which runs along the rear of both garages. The passageway could not be accessed from the garage on the left (containing the Parking Easement) used by the Theunissens, due to the wine cellar located at the rear of that garage.

Relevant history of Lots 1 and 2

1. On 27 October 1993, the then owners of 17 Euryalus St obtained Council consent to a proposal for a detached dual occupancy and Torrens title subdivision of their land.
2. On 15 July 1994, Deposited Plan 841127 (the Plan) showing the subdivision into Lot 1 and Lot 2, and its accompanying s 88B instrument (1994 Instrument) were registered. Two of the easements in issue in these proceedings, the Right of Carriageway and the Parking Easement, date from and are sourced in the 1994 Instrument. The 1994 Instrument also contains a precursor of the Recreation Easement. However, that particular interest was released in February 1996, and the Recreation Easement was registered shortly thereafter.
3. On 30 August 2001, the Theunissens became the registered proprietors of Lot 1 as joint tenants.
4. On 25 July 2008, Ms Barter became the registered proprietor of Lot 2.

Layout of Lots 1 and 2

1. Lot 1 is a battle-axe block that is located at the rear of Lot 2 together with a thin strip of land on the northern side of Lot 2 which contains steps which lead up to the house on Lot 1. Behind the house on Lot 1 is a relatively large garden area.
2. The houses erected upon Lots 1 and 2 are connected to each other at the boundary between the two lots, at the point where the roof of Ms Barter's house connects with steps at the front of the Theunissens' house. The house on Lot 1 sits behind.
3. A paved driveway approximately 15.5 metres in length runs between Euryalus Street and Ms Barter's house, leading to two garages located side by side which have separate doors next to each other and sit immediately below Ms Barter's house. Each garage can hold two cars, parked one behind the other. The driveway and the two garages are located on Lot 2. Immediately to the left as one faces Ms Barter's house, there is a set of stairs, located on Lot 1, that leads to the Theunissens' house. The Parking Easement burdens the land in the garage on the left-hand side adjacent to the steps, and the Right of Carriageway extends over a strip of the paved driveway leading to that garage. At the front of Lot 2, there is a relatively small garden next to the driveway and the street frontage.
4. The roof of Ms Barter's house which is burdened by the Recreation Easement is flat and approximately 78 square metres in size. It overlooks the driveway and Euryalus Street, and has views over Middle Harbour. A wall topped with a metal railing surrounds the perimeter of the roof to the north, west and south elevations. Lot 1, and the Theunissens' house, is at the eastern edge of the roof. On the southern side of that edge, the paving on the roof leads to several steps, which go up to a small entryway outside glass sliding doors (at the front of the Theunissens' house). That entryway and the glass sliding doors form part of Lot 1.
5. There is an openable skylight on the roof, which opens to the hallway on the top floor of Ms Barter's house. The skylight is surrounded by protective metal railings, one side of which can be opened. Ms Barter can use the skylight to access the rooftop by attaching a foldable metal ladder to the inside of the skylight, opening the skylight from the inside and then ascending the ladder onto the roof. There is no direct evidence as to what form the skylight took at the time of grant of the Recreation Easement, but it is likely that, as originally constructed, the skylight was not trafficable and the protective railings were a different design and material and I so find. Apart from the skylight, there is presently no permanent means by which Ms Barter can access her rooftop terrace from Lot 2. The Plan does not identify a skylight, but the instrument creating the Recreation Easement refers to it in para (iii) of the proviso (see [26] below). Each of the other features of Lots 1 and 2 described above have been unchanged since the grant of the easements.

Security cameras

1. Ms Barter has four CCTV cameras installed on Lot 2, each showing a view of access points to her property: the driveway and garage doors, and the roof terrace (noting the terrace is accessible through the skylight). Ms Barter's security cameras retain 7 days of footage, after which it is automatically deleted. They record audio as well as visual footage.
2. Ms Barter installed the cameras to provide security for her property, and to record any unlawful incidents occurring on her property. In respect of the rooftop camera, she installed this after experiencing incidents in which the Theunissens had (on her understanding) called the Police and informed them that Ms Barter or her partner were unlawfully intruding on the roof terrace, or (on one occasion) that Ms Barter's partner had assaulted Ms Theunissen.
3. The Theunissens have also installed a CCTV camera which overlooks a large part of the roof terrace. Ms Theunissen's evidence is that she feels a need to "monitor Ms Barter's access to the terrace".
4. The relevant facts and dispute in relation to each easement can be summarised as follows.

Right of Carriageway

1. The Right of Carriageway extends over a strip of the driveway of Lot 2 3.21 metres wide and its terms are set out in cl 1 of the 1994 Instrument as follows: Right of Carriageway as set out in PART 1 of SCHEDULE of the Conveyancing Act, 1919 with the following addition: Full and free right for every person who is at any time entitled to an estate or interest in possession in the lot hereby benefited or any part thereof with which the right shall be capable of enjoyment, and every person authorised by him to make, layout, construct, erect, install, carry, maintain and use through, above, on and under that part of the lot hereby burdened all drains, pipes, poles, wires or other equipment and materials necessary to provide and carry all or any of water, sewage, gas, electric light, telephone and/or other domestic services to and from the lot hereby benefited together with the right for the grantee and every person authorised by him, with any tools, implements or machinery necessary for the purpose to enter upon that part of the lot hereby burdened and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining or renewing such equipment or any part thereof and for any of the aforesaid purposes to open the soil of that part of the lot hereby burdened to such extent as may be necessary provided that the grantee and the persons authorised by him will take all reasonable precautions to ensure as little disturbance as possible to the surface of the lot hereby burdened and/or free access to the lot hereby benefited and will restore without delay that surface as nearly as practicable to its original condition and this easement shall not be released, varied or modified without the consent of the Water Board.
2. The Right of Carriageway incorporates Part 1 of Schedule 8 of the Conveyancing Act 1919 (NSW) which reads as follows: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, 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.
3. The driveway is a 'bottleneck' which is only wide enough for one car to enter and exit and then widens towards the two garage doors. Therefore, if a car was parked too close to the entrance to the driveway (on Euryalus Street), it would block other cars from exiting or entering. Ms Barter has installed two planter boxes which sit between the garage door used by the Theunissens and the stairs leading up to the Theunissens' house, and the Theunissens object to this on the basis that it interferes with their use and enjoyment of the driveway.
4. The dispute over the Right of Carriageway concerns whether, and to what extent, the Theunissens are entitled to stop their car on the driveway for any period of time. Ms Barter gave evidence that on various occasions Ms Barter has observed vehicles which she believes are owned by the Theunissens or their visitors parked on the driveway burdened by the Right of Carriageway, including overnight. The Theunissens have accepted that this has occurred. Ms Barter gave evidence that, at times, the vehicles she believes are owned by the Theunissens or their visitors have prevented her from exiting or entering her garage on Lot 2 (over which Lot 1 does not have an easement).
5. Mr Theunissen gave evidence that there is 0.5 metres on each side of either of his family's cars when they are parked in the garage, which made it difficult to open the car doors sufficiently wide for a passenger or the driver to get out of the car. The defendants therefore submitted that, because the garage is narrow, it is difficult for passengers to exit the vehicle or to load or unload items into or out of the car, for example, groceries. Given there are 48 stairs leading up to the Theunissens property, Mr Theunissen gave evidence that it took some time to unload and load items between his house and the car, but that he generally ensures he parks close to the garage door so as to not prevent Ms Barter from being able to use the driveway.

Parking Easement

1. The Parking Easement applies to the area of one of the two garages on Lot 2, being the one adjacent to the steps leading to the house on Lot 1. Its terms are set out in cl 2 of the 1994 Instrument as follows: Right of Carriageway as set out in PART 1 of SCHEDULE VIII of the Conveyancing Act, 1919 with the following addition: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him to go, pass and repass at all times for all purposes with or without vehicles and to park such vehicles on that part of the servient tenement shown as Easement for Parking in the plan abovementioned provided that the registered proprietor for the time being of the dominant tenement shall be responsible for maintenance, cleaning and repair of such car parking area and any structure erected upon this car parking area shall not be demolished without the consent of the dominant tenement. The Right of Carriageway and Easement for Parking is limited to a height of 59.7 Australian Height Datum.
2. The Theunissens have placed a lock on the garage door and have refused to give Ms Barter a key or remote, and they have also constructed a wall so that the back part of the garage is used as a wine cellar rather than for parking. Ms Barter submitted that the wall and wine cellar are not permitted under the Parking Easement and that she should be able to access the garage to "make sure it is appropriately maintained and free from mould and to use the area for parking herself when that does not interfere with the Theunissens' rights". She submitted that the back area should not be walled off such that it is unavailable for parking and should not be used as a general storage facility. Ms Barter also wishes to be able to access the back part of the garage so that she can check the area for mould.

Recreation Easement

1. The Recreation Easement applies to the rooftop area of Ms Barter's house on Lot 2. Its terms are set out in a registered Transfer Granting Easement as follows: Full and free right for every person who is at any time entitled to an estate or interest in possession of the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by him, to go, pass and repass on foot at all times and for all purposes with or without animals to and from the dominant tenement, and also the use and enjoyment of the servient tenement for the purposes of recreation and enjoyment and as a balcony, terrace or garden, together with the rights for the owner of the dominant tenement and every person authorised by him with any tools implements or machinery necessary for the purpose to enter upon the servient tenement and remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining or reviewing the surface of the servient tenement to such extent as may be necessary having regard to the nature of this easement, PROVIDED THAT:- (i) The proprietor of the dominant tenement and the persons authorised by him will in doing any such work take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and will restore that surface as nearly as possible to its original condition; (ii) nothing in this easement shall bind the owner of the dominant tenement to effect any repairs or maintenance to the servient tenement except insofar as damage is caused by or as a consequence of any act by the owner of the dominant tenement or any person authorised on his behalf; (iii) the owner of the dominant tenement shall not use or enjoy the servient tenement or permit anything to happen thereon in any manner that shall be capable of causing damage to the servient tenement (including, without limiting the generality of the foregoing, the placing of excessively heavy objects upon the surface of the servient tenement or other acts or omissions such as permitting the blocking of the drains which may damage the structural integrity or waterproofing integrity of the surface of the servient tenement or covering, or interfering with in any way, the structure of the skylight on the servient tenement), nor in any fashion which causes unreasonable disturbance in all the circumstances to the owners of the servient tenement; and the owner of the dominant tenement shall forthwith repair or remedy any damage or disturbance which is caused in breach of this clause; (iv) in all other respects the owners of the servient tenement shall be responsible for the maintenance and repair of the roof of the servient tenement, in as good and substantial state of repair as the same is in at the date of this instrument (fair wear and tear excepted), and for the purpose of such repair the owner of the dominant tenement will permit the owner of the servient tenement to enter into and upon such roof in order to inspect the state of repair and to attend by himself and those authorised by him to the repair of such buildings and improvements as form the roof; (v) the owner of the servient tenement shall not erect or cause to be erected any structure or improvement. either on or in the vicinity of the dominant tenement which would have the effect of interfering with the use, enjoyment or views of the dominant tenement; (vi) no fencing shall be erected between the points marked "X" and "Y" on the plan; (vii) the covenants and conditions contained herein shall bind and be enforceable by the owners of the dominant and servient tenements and their respective heirs, successors and assigns; (viii) in the event of any dispute between the owners of the dominant and servient tenements it is agreed that such dispute shall be referred to arbitration by an arbitrator appointed by the President for the time being of the Australian Institute of Arbitrators or any corresponding body replacing it; (ix) The owners in fee simple for the time being of the dominant tenement have the rights to release the easement; and (x) The consent of the owners of the servient tenement, which shall not be unreasonably withheld, is required for any variation or modification of this easement.
2. Ms Barter objects to the manner in which the Theunissens have used the rooftop, including by preventing Ms Barter from accessing it, placing netting over Ms Barter's skylight and preventing her from opening the gate forming part of the protective railings around the skylight. Ms Barter also objects to the Theunissens placing various items on the rooftop, including a basketball hoop, an 8-seater octagonal table, two decorative blue ceramic vases, other pot plants and two gas heaters.
3. Ms Barter gave evidence, including by way of video recorded from CCTV cameras which she has installed on her property to record the rooftop, that the Theunissens' son plays basketball on her rooftop regularly which causes loud repetitive banging noises that Ms Barter hears throughout her house. During the proceedings, the Theunissens proffered an undertaking that the basketball hoop would be removed within four weeks. Ms Barter also gave evidence that the Theunissens had frequently played loud music from the rooftop which prevented her from working in her office in her home and has generally disturbed her in her home.
4. The main dispute between the parties is whether the Theunissens effectively have sole use of the rooftop for recreation purposes. They contend that they are entitled in effect to the sole use of the rooftop, though they do not contend that they are entitled to exclusive possession. They contend that, were the rooftop to be shared, this would impermissibly interfere with their own right to use and enjoy the terrace for recreation purposes. The defendants made various submissions regarding the design of Ms Barter's house which, before the skylight was changed to be an openable skylight with an attachable ladder, did not have any means of accessing the rooftop.

CCTV cameras

1. In addition to the disputes regarding the three easements, there is a further dispute between the parties regarding CCTV cameras installed on Ms Barter's property, which the Theunissens claim cause nuisance by recording their activity on their own property.
2. Ms Barter submitted that she uses the CCTV for a legitimate security purpose and that, in the context of various disputes between the plaintiff and defendants, it was legitimate for Ms Barter to use CCTV cameras to keep a "temporary record of what occurs at the access points to her property". Ms Barter gave an undertaking that she would turn off the audio facilities on the CCTV cameras, so that they only recorded video.

Relief claimed

1. By her summons the plaintiff seeks the following relief: 1. a declaration that the Right of Carriageway does not authorise or permit the owners of the dominant tenement or their invitees to leave a motor vehicle stationary and unattended or to park a motor vehicle on the servient tenement within the area of the Right of Carriageway. 2. a declaration that the Right of Carriageway and Parking Easement do not authorise or permit the owners of the dominant tenement to use the area of the Parking Easement for any purpose other than the parking of motor vehicles. 3. a declaration that the Parking Easement does not provide the owners of the dominant tenement with exclusive possession, occupation, or control of the area of the Parking Easement or permit the owners of the dominant tenement to obstruct or prevent the owner of the servient tenement from accessing or using that area. 4. a declaration that the Parking Easement does not authorise or permit the owners of the dominant tenement to use the area of the Parking Easement: 1. to erect walls in the area for storage, including shelving; 2. to store their goods, equipment, and chattels in the area, including the use of the area as a wine cellar; or 3. to enclose the area with a garage door, without providing the owners of the servient tenement with a key or otherwise reasonable access to that area. 1. a declaration that the Recreation Easement does not provide the owners of the dominant tenement with exclusive possession, occupation or control of the area of the Recreation Easement or permit the owners of the dominant tenement to obstruct or prevent the owner of the servient tenement from accessing or using that area. 2. a declaration that the Recreation Easement does not authorise or permit the owners of the dominant tenement to use the area of the Recreation Easement: 1. to place or store a BBQ, outdoor furniture such as a table and chairs, a basketball ring/stand, or other permanent items, including household items on the area; 2. to interfere with or restrict the skylight on the roof of the dwelling on the servient tenement (the skylight) or otherwise prevent the skylight from opening; 3. to erect netting around the perimeter of the area; or 4. to cause unreasonable disturbance in all the circumstances to the owner of the servient tenement. 1. in the alternative, a declaration that the Recreation Easement is invalid to the extent that it is inconsistent with proprietorship and possession of the servient tenement.
2. In addition, the plaintiff seeks the following orders in relation to the Parking Easement: 1. an order that the defendants and their servants and agents be restrained from leaving a motor vehicle stationary and unattended or parking a motor vehicle or causing, allowing or permitting a motor vehicle to be stationary and unattended or parked on or within the area of the Right of Carriageway; 2. an order that the defendants and their servants and agents be restrained from using the area of the Parking Easement for any purpose other than the parking of motor vehicles; 3. an order that the defendants and their servants and agents be restrained from obstructing or preventing the plaintiff from accessing or using the area of the Parking Easement; 4. an order that the defendants forthwith remove all obstructions and/or encroachments in the Parking Easement referred to in paragraph 4(a) and (b) above.
3. In addition, the plaintiff seeks the following orders in relation to the Recreation Easement: 1. an order that the defendants and their servants and agents be restrained from obstructing or preventing the plaintiff from accessing or using the area of the Recreation Easement; 2. an order that the defendants forthwith remove all permanent items on the area of the Recreation Easement referred to in paragraph 7(a) and (c) above; 3. an order that the defendants and their servants and agents be restrained from restricting or preventing the plaintiff from opening the skylight.
4. By their cross-claim, the defendants/cross-claimants seek the following relief: 1. an injunction restraining the plaintiff/cross-defendant from interfering with the Recreation Easement, and the cross-claimants' enjoyment of the easement, by the use of the opening skylight structure and/or the gate installed adjacent to it on the Recreation Easement; 2. an injunction restraining the plaintiff/cross-defendant from interfering with the Right of Carriageway and/or the Parking Easement, and the cross-claimants' enjoyment of the easement, by erecting, or installing, or parking, or placing, on any part of the Right of Carriageway and/or the Parking Easement any structure or thing, such as pot plants or motor vehicles, that diminishes the width of it for use as an easement, or that interferes with the cross-claimants' use and enjoyment of the easement; and 3. an injunction restraining the cross-defendant, by herself, her agents or servants or otherwise, from repeating or continuing the nuisance caused by the use of a closed circuit television (CCTV) camera and voice recording to monitor activity on the cross-claimants' property, or to monitor the cross-claimants' activity on the ease burdening Lot 2 and benefitting Lot 1, or any nuisance of a like kind.

Plaintiff's submissions

1. In relation to the Right of Carriageway, the plaintiff submits that the grant of the right to go, pass and repass does not extend to an entitlement to leave stationary vehicles for any length of time on her driveway. To interpret the easement in this way would be to unreasonably interfere with her ability to enter and exit her property, which ultimately undermines her ability to enjoy her proprietary interest in the property. By contradistinction, the plaintiff's installation of two planter boxes adjacent to the steps used by the Theunissens does not unreasonably interfere with their enjoyment and use of the Right of Carriageway. The plaintiff submits that the Court should not be satisfied that the defendants have made out their claims that the planter boxes interfere with their ability to open car doors or access the stairway to their property, as there is insufficient evidence of any of the claimed interference.
2. In relation to the Parking Easement, the plaintiff submits that its terms, properly construed, do not permit the defendants to store items on the land burdened by the easement, or to construct a new wall and floor-to-ceiling wine rack. The plaintiff accepts that the terms of the easement provide that the servient easement may not 'demolish' any 'structure erected upon this car parking area' without consent of the owner of the dominant tenement. However, the plaintiff submits that this proviso only prevents Ms Barter from unilaterally destroying the structure existing on the burdened land at the time of the grant (ie. the garage). There is nothing in that proviso that would impliedly provide for the dominant tenement owner to construct new features on the land almost ten years subsequent to the grant. Furthermore, the use of the phrase 'this car parking area' lends support to a construction that the sole use of the burdened land is for car parking.
3. In relation to the Recreation Easement, the plaintiff submits that: 1. The word 'recreation' used in the grant should be construed by reference to the physical characteristics of the rooftop at the time of the grant. In the present context, the use of the language 'balcony' and 'terrace' indicates that the recreation envisioned by the grant was in the sense of resting and enjoying the space and does not extend to the playing of basketball. 2. The terms of the grant do not entitle the defendant to exclusive or sole use of the area of the rooftop terrace. A 'full and free right' to enjoy the terrace is in similar terms to the Right of Carriageway, and should be construed consistently with the terms of the easement in Re Ellenborough Park at 168 (where the dominant owner was granted 'full enjoyment of the pleasure ground'). In this case, as in Re Ellenborough Park those words should be interpreted merely as permitting the Theunissens use of the whole space of the rooftop, but not exclusive use. 3. While para (iv) of the proviso provides that the dominant owner must 'permit' the servient owner to 'enter into and… repair' the burdened area, that does not mean that the instrument confers on the dominant owner a right to exclusive possession or sole use of this space. Rather, the plaintiff submits that this merely indicates that the rights granted by the easement must yield whenever the servient owner needs to repair the roof or inspect it for damage.
4. If the easement is construed in this manner, then the Recreation Easement only permits the Theunissens to enjoy the rooftop for relaxation and as a balcony, terrace, and garden in common with the plaintiff. By blocking Ms Barter's access, and their current usage of the rooftop, the Theunissens have exceeded the terms of the grant. If the Theunissens' position on exclusive use is correct, then the easement ought to be held invalid as it would be incompatible with Ms Barter's continued beneficial ownership of the servient tenement.

Defendants' submissions

1. In relation to the Right of Carriageway, the defendants submit that the only way to give effect to the 'full and free right' conferred through the easement is to construe it as carrying with it an ancillary right to leave cars stationary and unattended for the purposes of loading and unloading the vehicles. Further, the defendants have a right to stop momentarily to pick up or set down passengers on the driveway, such a right having been recognised as a matter which is de minimis: A Bradbrook and S MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (LexisNexis, 3rd ed, 2010) at [6.40]. The placing of planter boxes by the plaintiff on the driveway would substantially interfere with the Right of Carriageway, and therefore should be prevented.
2. In relation to the Parking Easement, the defendants submit that there would be no utility in granting any of the declarations sought by the plaintiff in circumstances where there is no dispute between the parties that would be resolved by those declarations. In respect of the wine racks constructed in the garage, the Theunissens submits that the plaintiff has known about that structure for approximately 20 years, and that ought to weigh heavily in the Court's discretion as to whether to grant Ms Barter the declarations sought.
3. The defendants submit that the Recreation Easement confers on them the sole ('full and free') right to use the rooftop area for 'recreation and enjoyment and as a balcony, terrace or garden' and construed in this way it is valid, as it does not impermissibly infringe Ms Barter's continued beneficial ownership of the servient tenement. Further, the defendants' existing and proposed use of the burdened area is not unreasonable. Ms Barter's modification of the skylight (and fencing around it) in order to enable access to the rooftop amounts to real and substantial interference with the defendants' rights to sole use under the easement.

Principles

1. The construction of the three easements at issue in the present case must be by reference to the terms of the instrument creating each easement and its purpose or object. The only matters to which it is legitimate to have regard in construing the easements are the material in the folio identifiers, the registered instrument, the Plan and the physical characteristics of the tenements: Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45 at [37]-[41]; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [15]-[16]; Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15]-[18]; Neighbourhood Association DP 285220 v Moffat [2008] NSWSC 54 at [41].
2. As to the last of these matters, it is the physical characteristics of the tenements at the time of the grant of the easement to which regard is had: Weigall v Toman [2008] 1 Qd R 192 at [4]; SS&M Ceramics Pty Ltd v Kid [1996] 2 Qd R 540 at 545, 547. Whether it is also relevant to consider the position at the date of the hearing was doubted but left open by Gleeson JA in Stolyar v Towers (2018) BPR 38,287; [2018] NSWCA 6 at [74]-[76]. In the present case, the physical features of the tenements have not changed since the date of grant, except for the skylight on the roof of Lot 2, which is relevant to the Recreation Easement. I will deal with the significance of that change at [115] below.
3. The essential characteristics of an easement are: (1) there must be a dominant and a servient tenement; (2) the servient tenement must accommodate and serve the dominant tenement and be reasonably necessary for the better enjoyment of that tenement; (3) the dominant and servient owners must be different persons; and (4) the right over the land said to amount to an easement must be capable of forming the subject matter of a grant: Re Ellenborough Park [1956] Ch 131 at 163; Stolyar at [39].
4. The owner of the servient tenement has all the rights of an owner of the land and can use it as he or she likes subject to such limitations as are imposed by the easement: Gale on Easements: (Thomson Reuters, 21ST Edition, 2020), [1-01]. As Lord Scott noted in Moncrieth v Jamieson (2007) 1 WLR 2620; [2007] UKHL 42 at [54] every easement prevents any use of the servient tenement by the servient owner that would interfere with the reasonable exercise of the rights conferred by the easement. Hence, the dominant owner having the benefit of a right of way is entitled to the reasonable use and enjoyment of the way: Clifford v Hoare (1874) LR 9 CP 362 at 370, 371 and 372; Carlson v Carpenter (1998) 8 BPR 15,909 at 15,914; Brice v Nikolaidis [2011] NSWSC 682 at [14]. Put another way, the servient owner is not entitled to do anything on the land which substantially interferes with the reasonable exercise by the dominant owner of the rights conferred by the easement: Zenere v Leate (1980) 1 BPR 9300 at 9305. If there is a substantial interference with the rights conferred by the easement on the dominant owner, it will have an action in nuisance against the servient owner: Finlayson v Campbell (1997) 8 BPR 15,703.
5. Conversely, the dominant owner is not entitled to use the servient tenement in a manner which unreasonably interferes with the use by the servient owner of the servient land: Lowe v Kladis [2018] NSWCA 130 at [101]-[106]. In that case, Sackville AJA (Meagher and White JJA agreeing) approved the following observations of Barrett JA in Hare v van Brugge: [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.
6. It is clear that the natural consequence of an easement is usually that when the dominant owner exercises the right conferred, the servient owner will be excluded, but this is to a greater or lesser degree a common feature of many easements: Miller v Emcer Products Ltd [1956] Ch 304 at 316 per Romer LJ. Examples are the right to use a lavatory in common with the servient owner (as in Miller itself), the right to use a neighbour's kitchen (Heywood v Mallalieu (1883) 25 Ch D 357), and the right to store goods including parking vehicles (Wilcox v Richardson (1997) 43 NSWLR 4 at 15). In this sense, there are many easements which, to a greater or lesser degree, prevent the simultaneous enjoyment of the servient tenement by the dominant owner and the servient owner. But given that a dominant owner can only complain where there is a substantial interference with its right to use the servient tenement, there will be many cases where shared rights to the use of the servient land will be possible, including simultaneously. An easement for recreation falls into that category, at least where the dominant owner's right to use the servient tenement for that purpose is not sole or exclusive.
7. The leading case on easements for recreation is the Court of Appeal's decision in Re Ellenborough Park which explained in that context the scope of the second and fourth characteristics of easements referred to at [45] above. The decision in that case has been affirmed by the UK Supreme Court in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553; [2018] UKSC 57. It has been followed in Australia in cases concerning easements for recreation although they were not in the same form as that involved in the present case.
8. The facts in Re Ellenborough Park were that the owners of a park and the surrounding land sold plots surrounding the park for building purposes. The conveyances of the plots were in similar form and granted to each purchaser "the full enjoyment … at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground set out and made in front of the said plot of land intended to be hereby granted in the centre of the square called Ellenborough Park … but subject to the payment of a fair and just proportion of the costs, charges and expenses of keeping in good order and condition the said pleasure ground".
9. The Court of Appeal (in a judgment delivered by Evershed MR) held that this grant created a valid easement.
10. In relation to the scope of the rights conferred, Evershed MR said at pages 168-169 that the word "full" in the expression "full enjoyment … of the pleasure ground" meant that the enjoyment of the park as a whole was contemplated and that the use contemplated and granted was the use of the park as a garden, the proprietorship of which remained vested in the vendors and their successors, Evershed MR described the enjoyment contemplated by the grant as follows (at p 168): The enjoyment of the vendors' ornamental garden in its physical state as such - the right, that is to say, of walking on over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon the seats or other places provided; and, certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulations; but not to trample at will all over the park, to cut or pluck the flowers or shrubs or to interfere in the laying out or upkeep of the park. Such use or enjoyment is, we think, a common and clearly understood conception, analogous to the use and enjoyment conferred upon members of the public, when they are open to the public, of parks or gardens such as St James Park, Kew Gardens or the Gardens of Lincoln's Inn Fields.
11. At issue in Re Ellenborough Park was whether the easement satisfied the second and fourth characteristics. In relation to the second characteristic (that the right conferred accommodates and serves the dominant tenement), Evershed MR said that this turned on whether the right was connected with the normal enjoyment of the property (at p 179). In concluding that it was, Evershed MR draw an analogy with a situation close to that in the present case (at p 174 italics added): A much closer analogy, as it seems to us, is the case of a man selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right, appurtenant to such part, to use the garden in common with the vendor and his assigns. In such a case, the test of connexion, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold. Such, we think, is in substance the position in the present case. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. Its flower beds, lawns and walks were calculated to afford all the amenities which it is the purpose of the garden of a house to provide; and, apart from the fact that these amenities extended to a number of householders, instead of being confined to one (which on this aspect of the case is immaterial), we can see no difference in principle between Ellenborough Park and a garden in the ordinary signification of that word. It is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate and as such amply satisfied, in our judgment, the requirement of connexion with the dominant tenements to which it is appurtenant.
12. This is a clear recognition that there is no reason in principle why an easement granted by the owner of a garden to use the garden for recreation in common with the owner of the garden would not be valid.
13. In relation to the fourth characteristic (that the right is capable of forming the subject matter of grant), Evershed MR said (at p 164) that this involves three cognate questions: (1) whether the rights purported to be given are expressed in terms too wide and vague in character; (2) whether such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession; (3) that such rights are mere rights of recreation possessing no quality of utility or benefit.
14. As to the first question, the right to enjoy the park as a garden was not too wide and vague in character. As to the second question, the rights conferred did not amount to joint occupation or exclude the proprietorship or possession of the owner. In relation to that matter, he said (at p 176): We see nothing repugnant to a man's proprietorship or possession of a piece of land that he should decide to make and maintain it as an ornamental garden, and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.
15. This passage, as does the one quoted at [53] above suggests that Evershed MR accepted that the grant of the easement in that case did not preclude the servient owner from also enjoying the servient tenement as a garden.
16. As to the third question, Evershed MR doubted that the rights in question were mere rights of recreation and enjoyment, but even if so regarded, they were rights of a kind which had previously been recognised as a valid easement (referring to Duncan v Louch (1845) 6 QB 904). There is now no question that the right to enjoy land as a garden, if the second characteristic is satisfied, is not a mere right of recreation possessing no quality of utility or benefit.
17. Re Ellenborough Park was followed by the English Court of Appeal in Jackson v Mulvaney [2003] 1 WLR 360. In that case a row of cottages had been built adjacent to an area forming a small backyard to the cottages. The claimant had acquired one of the cottages in 1970 with the benefit of a right of way over the backyard. However, for many years, the claimant and other occupiers of the cottages had used the backyard land as a communal garden. In 1996, the owner of the backyard land commenced work to pave the land to create a road to neighbouring land. Latham LJ (Mance and Simon Brown LJJ agreeing) held, applying Re Ellenborough Park that the claimant (and the other owners of the cottages) had established an entitlement to an easement by prescription for use of the backyard land as a communal garden with the other owners of the cottages adjacent to it. He said at [25] that this did not preclude the servient owner from also using the land, including remodelling the garden to allow for a road to be constructed, because its use of the servient land was restricted only to the extent necessary to ensure that the servient land as a whole could still be enjoyed by the dominant owners, and in particular the claimant, as a communal garden for recreational and amenity purposes.
18. Re Elllenborough Park was affirmed and by the UK Supreme Court in Regency Villas. That case concerned the grant to the purchasers of time share apartments of the right to use a swimming pool, golf course and other recreational and sporting facilities within the leisure complex located on adjacent land, without any requirement for the time share owners to pay for use of the facilities. The leisure complex was sold to the defendants who sought to charge the servient owners for use of the facilities. It was held that a valid easement for recreational purposes had been created. The leading judgment was given by Lord Briggs JSC who said in relation to the second characteristic that what is required is that the easement is both appurtenant or annexed to the dominant tenement and the enjoyment of it must be connected with the normal use of the dominant tenement: at [40]-[41].
19. In relation to the fourth characteristic, Lord Briggs said at [58]: … it has come to be a repository for a series of miscellaneous requirements which have been held to be essential characteristics of an easement. They include the requirements that the right is defined in sufficiently clear terms, that it is not purely precarious, so as liable to be taken away at the whim of the servient owner, that the right is not so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement, and that the right should not impose upon the servient owner obligations to expend money or do anything beyond mere passivity.
20. Lord Briggs said at [59] that the fourth characteristic does not preclude an easement which confers a mere right of recreation and amusement, provided that the second characteristic is present.
21. One of the key issues in Regency Villas was whether the easement was invalid because it required the servient owner to do anything beyond mere passivity. It was held that the mere passivity requirement was satisfied because the servient owners did not have an obligation to the dominant owners to meet the substantial cost of management, maintenance, repair and renewal of the facilities. Relevantly, for present purposes, it was recognised that the fourth characteristic was satisfied notwithstanding that the servient owner may wish to use the land the subject of the easement for the same purposes as the dominant owner. Lord Briggs said at [67]: This does not mean that easements cannot be granted if they involve the use of structures, fixtures or chattels on the servient tenement, which, in the ordinary course, the parties to the grant expect that the servient owner will manage and maintain. All it means is that the grant of the easement does not impose upon the servient owner an obligation to the dominant owner to carry out any such management or maintenance. The servient owner may do so because he wishes to use the structures, fixtures or chattels for the same purpose as the dominant owner, and has both the possession and control of the servient tenement and more resources than the dominant owner with which to do so. The grantor may or may not choose to make enjoyment of the easement conditional upon the dominant owner making a contribution towards the cost of management and maintenance, but no such contribution obligation will lightly be implied. There may, as in the present case, be a commercial expectation that the servient owner will undertake the cost and other burdens of management and maintenance, but the fact that the shared commercial expectation may have been (as in the present case) built upon sand rather than rock, so that those burdens prove uneconomic for the servient owner, will not affect the question whether the grant of the relevant rights constitutes an easement.
22. A number of Australian cases have applied Re Ellenborough Park to easements for recreation. In Riley v Penttila [1974] VR 547 the grant of the right to "use and enjoy" a reserve "for the purpose of recreation or a garden or a park" was held to be a valid easement. In City Developments Pty Ltd v Registrar-General (NT) [2001] NTCA 7, the grant of the right to use land adjoining a lake for "private recreational purposes" was held to create a valid easement.
23. In Laming v Jennings [2018] VSCA 335, the Victorian Court of Appeal accepted the correctness of Re Ellenborough Park but distinguished it on the facts. The respondent claimed an easement by prescription over an area of land on 1,400sq metres in size, forming part of a larger parcel of land owned by the appellant. The appellant (and his predecessors in title) had used the disputed land for a number of years (during most of which the land was owned by Telstra) as a "backyard" to his property, including by mowing and maintaining the grass to create a lawn, removing and planting trees, playing games, using garden furniture and erecting a clothesline. The primary judge found an easement by prescription "for the purposes of recreation, storage of firewood and burning green waste". In a joint judgment, Kyrou, McLeish and Niall JJA allowed the appeal on the basis that no easement by prescription had been established on the facts. However, their Honours went on to conclude, by way of obiter dictum, that the easement by prescription asserted by the respondent was too wide and uncertain to be recognised at law.
24. While their Honours accepted that, on the authorities referred to above, an easement for recreation is a recognised and permissible form of easement, it was noted that Re Ellenborough Park, Mulvaney, Riley and City Developments all involved easements over land which had a common or communal character whereas that was not so in the present case and the easement could not be sustained on that basis: at [143]-[145]. Further, the unilateral rights of recreation conferred by the claimed easement were too vague and uncertain to be recognised at law (and consequently the fourth characteristic of an easement was not present): [153] But even if 'recreation' identifies sufficiently what it is that the holder of the present easement is entitled to do, falling short of use as a backyard, it is not at all clear how that entitlement relates to the rights of the applicant as owner. As the matter proceeded before us, counsel dealt with hypothetical questions about potential areas of doubt and dispute in the enjoyment of the granted easement. The scope for debate about the respective rights of the parties in various circumstances was starkly illustrated. For example, who would have priority if both owners wished to hold a party on the disputed land? Who may decide what is planted or stored on, or removed from, the land? Can either party camp on the land? [154] It is true that there may also be scope for disagreements and uncertainty between an owner of land and the holders of easements for communal recreation on that land. However, the potential for such issues to arise is significantly limited by the circumstance that the communal nature of the space as one for recreation is intrinsic to its essential character. That provides an important starting point for deciding any dispute between the owner and common holders of the right, and identifies the essential restriction on the owner. It therefore helps to define the easement itself, and the extent to which it limits the rights of the registered proprietor of the land. In the case of a unilateral easement for recreation, that is not the case. There, the owner is not required to ensure that the land remains imprinted with the character of a communal recreational space, but is entitled to use it for myriad non-recreational purposes. That entitlement may give rise to all manner of issues about the scope of the easement. [155] On this aspect of the case, the easement does not fail because it confers rights of possession on the dominant owner (which we examine under ground 3) but because the rights of unilateral recreation over private land that otherwise lacks any communal aspect are too uncertain and productive of disputation. In the present case, there was no context that could render the easement sufficiently concrete, especially given that the primary claim was an assertion of possessory title. [156] It might be, in another case, that evidence would reveal a practice or understanding as to the manner in which rights of recreation could accommodate the rights of the owner of the servient tenement. There were, for example, 'ground rules' in Mulvaney. Such evidence could potentially enable the easement to be expressed, or construed, with greater particularity than is possible in the present case. It is not necessary for us to express a final view on these matters. That is because, as we have mentioned, in the present case, nothing in the evidence or the way the case was run at trial offers any clue as to how such issues, which did not arise given the state of Telstra's knowledge, might be addressed in the future.
25. Two observations may be made regarding this conclusion. First, at issue was an easement by prescription and not, as here, an easement by express grant. While the content of the fourth characteristic should not differ between an easement by prescription and one by grant, there is a greater risk of uncertainty as to the scope of an easement where it is created by prescription. In the present case the terms of the grant are detailed and extensive. Where the parties have intended to create an easement as a proprietary right, the Court will seek to give effect to the parties' intention where it can: Regency Villas at [25].
26. Second, Laming did not concern an easement for use of a garden to be shared by the servient owner and the dominant owner. There is no reason in principle, in my respectful view, why such an easement should be treated any differently from one where it is the dominant owners who share the garden. Indeed, this appears to have been recognised in Re Ellenborough Park in the passage quoted at [53] above. I will return to this point later in these reasons.
27. The Court of Appeal in Laming went on to consider, again as obiter dictum, whether had there been an easement as found by the primary judge and it was sufficiently certain to be recognised at law, it would have been invalid as amounting to exclusive or joint possession or control. Their Honours concluded that it would not have been invalid on this basis because "the enjoyment that is conferred on the dominant owner would not be to the exclusion of the servient owner and would not be inconsistent with the servient owner's possessory rights" (at [170]).

Right not to amount to joint or exclusive occupation

1. As noted by Lord Briggs JSC in Regency Villas at [58], the fourth characteristic requires that the right claimed as an easement be not so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement.
2. As Basten JA observed in Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292 at [23], "the rights conferred on the dominant tenement may be extensive and provide for exclusive occupation of the land, but must be compatible with the continued beneficial ownership of the servient tenement" (citing Moncrieff v Jamieson). Recognising that this will often be a question of degree, he concluded that that the proposed easement in that case which involved enclosed an area comprising 68 per cent of the servient tenement, practically excluding the servient owner from any use of the enclosed land, was incapable of comprising an easement at law: see [25].
3. It is clear that if an instrument creates an exclusive and unrestricted right to use land, it will not be an easement: Reilly v Booth (1890) 44 Ch D 12 at 26; Lolakis v Konitsas [2002] NSWSC 889 at [20]. Thus in Copeland v Greenhalf [1952] 1 Ch 488, Upjohn J rejected a claim for an easement by prescription to use a strip of land by the side of a private road for depositing vehicles and for other purposes connected with a wheelwright's business on the basis that it was virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner or at least, a joint user.
4. Copeland was applied in Harada v Registrar of Titles [1981] VR 743 where a right claimed by the State Electricity Commission to use land for overhead power lines on terms that the servient owner could not build on the servient tenement or erect any structure thereon was held to fail the fourth characteristic because the servient owner would be left with very few rights over her property and could do little more with it than move over it and park cars on it. Copeland was also applied in Hanina v Morland (2000) 97(47) LSG 41; [2000] 11 WLUK 654, where the English Court of Appeal held that the claim by a tenant of a flat on the first and second floors of a building to use a flat roof above the ground floor was not the proper subject of an easement because the right was to the exclusive and unrestricted possession of the flat roof.
5. The decisions in Copeland, Harada and Hanina may be contrasted with Wright v Macadam [1949] 2 KB 744 where the English Court of Appeal held that the right of a tenant of an upper flat in a house to use a shed in the garden of the house for storage of coal (thereby effectively excluding the servient owner from using it) was a valid easement. These decisions may be reconciled on the basis that the question whether claimed rights are incompatible with the servient owner's possession and control of the servient tenement will be one of degree: Aussie Skips at [23]-[24].
6. In Clos Farming Estates Pty Ltd (Receivers & Managers appointed) v Easton [2002] NSWCA 389 an instrument purporting to confer the right to cultivate land as a vineyard was held not to be a valid easement because it failed the fourth characteristic, Santow JA (Mason P and Beazley JA agreeing) said at [45]-[46]: [45] In relation to the fourth condition, it is necessary to assess the degree to which the rights conferred interfere with the servient owners' exclusive possession of the site. In Australia, Harada v Registrar of Titles [1981] VR 743 expressly followed Copeland v Greenhalf [1952] Ch 488 (and not the earlier inconsistent Wright v Macadam [1949] 2 KB 744 (CA)), in rejecting the easement claimed by the SEC in favour of an overhead power line transmitting electricity over the plaintiff's land. No pylon was located on the plaintiff's land and the Commission owned no land in the vicinity. Though these are distinguishing features, what is relevant here is the statement of principle by King J (at 753), applicable here, which emphasised that the rights sought to be acquired went much further than what were needed for SEC to enjoy its rights of power transmission: "the restriction on the owner not to build on the easement area and not to erect any structure thereon goes much further than a prohibition of interference with the enjoyment by the SEC of its rights. I think that if the rights the subject of the [alleged easement] were acquired the plaintiff would be left with very few rights over her property and could do little more with it than move over it and park cars on it. I think that the rights sought to be acquired by the SEC do not fall within the category of a common law easement. They would really amount to rights to joint user by the SEC of the plaintiff's land." [46] I would conclude that Bryson J's determination in regard to this requirement was clearly correct. The fact that the rights only touch part of the lot is insufficient to preclude the finding that the rights so vastly interfere with the servient owners' rights, were they exercised, as to preclude them constituting an easement. The Fourteenth Restriction, independent of any further restrictions comprising the system, applies to a very significant portion of the lot. It leaves the owner with merely his rights of residual recreational activities that are totally subordinated to the over-arching rights of Clos Farming. When the Fourteenth Restriction is placed in its context of those further restrictions that apply to the lot in total, the servient owner's rights are so attenuated as no longer to meet the description of exclusive possession.
7. In Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 Bathurst CJ and Beazley P said (at [63]) that the decision in Clos Farming Estates stands for the principle that a restriction on use of the servient tenement may mean that no easement is created, and went on at [64] to observe that it is relevant to consider whether the servient owner has reasonable use of the servient tenement in its entirety and also the extent of the interference of the rights of ownership on that part of the servient tenement actually affected by the easement.
8. In JEA Holdings the Court of Appeal held that a right for parking which extended over the entire surface of the servient tenement was a valid easement. Despite the fact that the dominant owner could park on the entirety of the surface of the land, the servient owner enjoyed very substantial use of the land, including the right to use the servient tenement for parking itself, and for other purposes such as advertising, and had the valuable right to use both the airspace above and the subterranean land below (at [64]).
9. In Moncrieff v Jamieson (2007) 1 WLR 2620; [2007] UKHL 42, Lord Scott explained the different results in Copeland v Greenhalt and Wright v Macadam on the basis of the distinction between sole user (which is permitted) and exclusive possession (which is not). He said at [55]: It has been suggested that [Wright v Macadam] may have turned on whether the claimant had sole use of the coal shed, but it is difficult to see any difference in principle between a case in which the dominant owner has sole use of a patch of ground for storage purposes, eg a coal shed, and a case in which the dominant owner is the only user of a strip of road for access purposes or of a viaduct for the passage of water. Sole user, as a concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any purposes of his own that do not interfere with the dominant owner's reasonable use for the storage of coal. The dominant owner entitled to a servitude of way or for the passage of water along a viaduct does not have possession of the land over which the road or the viaduct passes. If the coal shed door had been locked with only the dominant owner possessing a key and entry by the servient owner barred, so that the dominant owner would have been in possession and control of the shed, I would have regarded it as arguable that the right granted was inconsistent with the servient owner's ownership and inconsistent with the nature of a servitude or an easement. But sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner's retention of possession and control or inconsistent with the nature of an easement.
10. Lord Scott said at [47] that for a right to be a valid easement it must be such that a reasonable use thereof by the owner of the dominant tenement would not be inconsistent with the beneficial ownership of the servient land by the servient owner, and at [59] that the correct test is whether "the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land". Lord Neuberger said at [143] that he could see considerable force in the approach taken by Lord Scott, but left open the precise scope of the test.

Passivity

1. As mentioned by Lord Briggs in Regency Villas at [58], it is necessary for a valid easement that the right conferred does not impose any positive obligations on the servient owner: see also Moncrieff at [47]. Hence at general law, a covenant by the servient owner to repair and maintain the servient tenement is personal in nature so that it is binding only as between the original grantor and grantee and does not run with the land. This position may be qualified by statute and in the case of an obligation to repair s 88BA of the Conveyancing Act permits the imposition of a covenant to repair on the servient owner where the easement is created by a registered instrument. Consequently, the obligation to repair contained in the Recreation Easement is effective and binds the plaintiff.

Right of Carriageway

1. Two issues arise in relation to the Right of Carriageway. The first is whether the owners of the dominant tenement or their invitees are authorised to leave a motor vehicle stationery and unattended or to park a vehicle within the area of the Right of Carriageway. The second is whether the two planter boxes installed on the area of the Right of Carriageway adjacent to the steps next to the garage used by the Theunissens unreasonably interferes with their use of the Right of Carriageway because it affects their ability to open the doors of vehicles which are stationery on the area or restrict their ability to pass items from the driveway to the stairs or to obtain access to the stairs for painting, repairs and maintenance.
2. The scope of the rights conferred by the Right of Carriageway turns on the proper construction of the grant. It will also include such ancillary rights as are reasonably necessary to the exercise or enjoyment of the rights expressly granted: Owners of Strata Plan 48754 v Anderson Holdings Pty Ltd (1999) 9 BPR 17,119; [1999] NSWSC 580 at [27]-[30]. However, as the Right of Carriageway is a shared driveway, there cannot be an implied right to use the Right of Carriageway in a manner which would substantially interfere with the plaintiff's right to use it: O'Donnell v Furci (2006) 12 BPR 23,945; [2006] NSWSC 753 at [22].
3. The Right of Carriageway expressly permits the owners of the dominant tenement (and their invitees) to go, pass and re-pass at all times and for all purposes, with or without animals or vehicles, to and from the dominant tenement (or any part thereof).
4. In Middleton v Arthur [2002] NSWSC 627, Palmer J said at [34]: It is not correct to say that a right to 'pass and re-pass' over a Right of Way always excludes a right to stop on it for any reason or for any period of time. As Windeyer J said in Robnet Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461 at 15,464: "a right to pass and re-pass does not necessarily require constant movement". The question depends entirely on whether a right to stop on the Right of Way is "reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted: Jones v Pritchard [1908] 1 Ch 630 at 638; Butler v Muddle (1995) 6 BPR 13,984 at 13,987."
5. At the time the Right of Carriageway was granted, the dominant tenement was used as a residence and the Right of Carriageway provided access to that residence from the street via stairs adjacent to the garage the subject of the Parking Easement, which is at the end of the Right of Carriageway. The Right of Carriageway is approximately 15.5 metres in length and is on an incline (from the street to the garage). In my view, it is reasonably necessary for the effective and reasonable exercise of the enjoyment of the right to "go, pass and re-pass" along the area of the Right of Carriageway that the owners of the dominant tenement and their invitees (including tradesmen) be able to leave a vehicle unattended on the Right of Carriageway for a short period in order to load or unload a vehicle or to set down or pick up passengers.
6. In my view, the ancillary right would not extend to parking for other purposes for three reasons, each of which relates to the matter apparent at the time of the grant. First, the Right of Carriageway leads to the garage, which is the subject of the Parking Easement, and the Theunissens can move their vehicle into the garage once they have unloaded the vehicle. That garage is a two-car garage.
7. Second, the Right of Carriageway is proximate to Euryalus Street, which provides ample public parking.
8. Third, the Right of Carriageway is a shared driveway and its use by the Theunissens (and their invitees) must not unreasonably interfere with the plaintiff's use of it, both for parking and access to their garage. Parking by the Theunissens for longer periods is likely to impede the plaintiff's access to and from the property.
9. Insofar as the two planter boxes are concerned, the defendants say that the placing of the planter boxes adjacent to the stairs leading to the dominant tenement and the garage the subject of the Parking Easement substantially interferes with their use of both the Parking Easement and the services easement because they restrict the ability to open car doors when a car is stopped on the driveway and restricts their access to the stairs both to pass items to a person on the stairs and to obtain access to the stairs for painting, repairs and maintenance.
10. As to the first matter, I am not satisfied on the evidence that there is any real restriction on the ability of the Theunissens to open their car doors when the car is stopped on the driveway. As to the second matter, the evidence is that the planter boxes are affixed to the ground by two screws, which can be removed to enable painting, repairs or maintenance. I am not satisfied that the planter boxes unreasonably interfere with the access to the stairs or prevent the Theunissens from conducting repairs or maintenance of the stairs, given their position and the ease with which they can be moved.

Parking Easement

1. The issues in relation to the Parking Easement are whether it only authorises the defendants to use the area burdened by the easement for parking and, in particular, whether it authorises the defendants to (a) erect walls in the area for storage, including shelving; (b) to store their goods, equipment and chattels in the area, including as a wine cellar; and (c) to enclose the area with a garage door without providing the owners of the servient tenement with a key or otherwise reasonable access to that area.
2. A right to park is capable of being a valid easement: Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 at [36]-[64]. However, it is necessary that the owner of the servient tenement retains possession servient tenement and, subject to reasonable exercise of the rights in question, control of the servient tenement: Moncrieff v Jamieson [2007] UKHL 42; 1 WLR 2620 at [59]; JEA Holdings at [52].
3. Relevantly, the Parking Easement confers the full and free right to the owner of the dominant tenement (and persons authorised by them) to go, pass and re-pass at all times for all purposes with or without vehicles and to park such vehicles on that part of the servient tenement shown as easement for parking in the plan.
4. By its terms, the Parking Easement confers only a right to park vehicles on the parking area which, at the time of the grant, was contained within a garage.
5. The proviso to the Parking Easement requires the owner of the dominant tenement to maintain, clean and repair the parking area. It also precludes the owner of the servient tenement from demolishing the garage without the consent of the dominant tenement.
6. The Parking Easement is limited to conferring the right to park vehicles on the parking area within the garage, it will include such ancillary rights as are reasonably necessary for the exercise or enjoyment of the right to park. This will include the right to construct improvements where this is necessary or convenient for the exercise of the right to park: Sertari at [9]. I do not accept that erecting a wall in the garage or shelving for a wine cellar is ancillary to the use or enjoyment of the parking area for parking vehicles: the former limits the use for parking vehicles, and the latter has nothing to do with parking vehicles.
7. Similarly, I do not accept that the Parking Easement authorises the owner of the dominant tenement to deny access to the parking area to the owner of the servient tenement. The reasonable exercise of the right to park vehicles on the parking area does not extend to excluding the owner of the servient tenement from accessing that area. Further, to deny the owner of the servient tenement the ability to enter the parking area would be to deny possession and control of that area of the servient tenement which would be inconsistent with the character of the Parking Easement as an easement.

Recreation Easement

1. It is necessary when construing the Recreation Easement to read the language of the instrument as a whole. Where the instrument is reasonably open to more than one construction, the Court will prefer a construction which will preserve the validity of the instrument to one that does not (the ut res magis valeat quam pereat principle): Regency Villas at [25].
2. The structure of the instrument creating the Recreation Easement is that it contains a grant of rights to the dominant owner in what may be called the operative clause, followed by a proviso which contains provisions which in broad terms regulate how those rights may be exercised. The servient tenement is identified in the Plan as the area of the roof of the house constructed on Lot 2.
3. The operative clause, which is set out at [26] above, is divided by the words "together with the rights for" into two parts. The first part comprises the words "full and free right" to and including "as a balcony, terrace or garden". That first part has two sub-parts, the first starting with "full and free" and ending with "to and from the dominant tenement" and the second starts with "and also" and ends with "as a balcony, terrace or garden".
4. The first of those sub-parts is almost identical to the standard words of a Right of Carriageway set out in Schedule 8, Part 1 of the Conveyancing Act. Given that the words "and also" preface the second sub-part, it appears to be intended that the words "full and free right" also apply to the second sub-part.
5. Consequently, the better view (which is consistent with the approach adopted by both parties) is that the operative clause is to be construed as conferring on the dominant owners (and those authorised by them) rights under two limbs: 1. the full and free right to (i) go, pass and re-pass on foot at all times and for all purposes with or without animals to and from the dominant tenement and also (ii) the use and enjoyment of the servient tenement for the purposes of recreation and enjoyment and as a balcony, terrace or garden, and 2. the right to enter upon the servient tenement and remain there for any reasonable time for the purpose of laying, inspecting, cleaning, repairing, maintaining or reviewing the surface of the servient tenement to such an extent as may be necessary having regard to the nature of the rights conferred by the first limb.
6. The first limb is in essence a full and free right to go on to the servient tenement from the dominant tenement and while on the servient tenement, to use and enjoy it for the purposes of recreation and as a balcony, terrace or garden.
7. The second limb is a separate right (without any obligation) to enter and remain on the servient tenement to facilitate its use for repair and maintenance to facilitate its use for the purposes stated in the first limb.
8. The proviso contains restrictions on the use of the servient tenement by the dominant owner: paras (i) and (iii) impose obligations on the dominant owners not to damage or disturb the surface of the servient tenement and also require the dominant owners not to use the servient tenement in a manner that causes unreasonable disturbance in all the circumstances to the servient owner.
9. The proviso also places responsibility for maintenance and repair of the servient tenement on the servient owner, except in the case of damage caused by the dominant owner: paras (ii), (iii) and (iv). There is also a prohibition on the servient owner from erecting any structure which would interfere with the use, enjoyment or views of the dominant tenement or the construction of a fence on the part of the roof which adjoins the dominant tenement: paras (v) and (vi).
10. I draw the following conclusions about the scope of the rights conferred by the operative clause.
11. The first limb has two sub-parts, (i) and (ii). Sub-part (i) does not confer a right to use the servient tenement for all purposes. Rather, it confers a right to access the servient tenement to and from the dominant tenement. If "for all purposes" in sub-part (i) was a statement of what the dominant owner is permitted to do on the servient tenement, it would make sub-part (ii) otiose. Sub-part (ii) permits the servient tenement to be used and enjoyed "for the purposes of recreation and enjoyment and as a balcony, terrace or garden". The second "and" is used conjunctively to describe the nature of the recreation and enjoyment permitted, which is as a balcony, terrace or garden. The recreation and enjoyment so permitted is circumscribed by the physical characteristics of the servient tenement which is that it is a flat roof of a house owned by the servient owner. Enjoyment of a rooftop of this kind as a balcony, terrace or garden would include walking or standing on it, resting on it upon seats brought onto it by either the dominant owner or the servient owner, in each case while enjoying food or beverages. Enjoyment as a balcony, terrace or garden would allow the dominant owner to bring onto the servient tenement furniture, a BBQ and potted plants or enjoy potted plants brought onto the servient tenement by the servient owner. Taking chattels of this kind on to the servient tenement would be necessary or convenient to the exercise of the rights conferred by the easement.
12. The effect of the words "full and free" in the operative clause is that the right of the dominant owners to access the servient tenement is unrestricted, in the sense that the right can be exercised over the entire surface of the servient tenement ("full") and without charge or other restriction on entry ("free"). However, the rights of use granted to the dominant owner are not expressed to be exclusive or sole and the words "full and free" to not import a right to exclusive or sole use for the purposes specified.
13. This construction is confirmed by several matters. The first is the fact that "full and free" are included in the standard form of a right of way in Schedule 8 to the Conveyancing Act where they do not import exclusivity of use. Second, as Ms Barter submitted, it accords with the meaning given to "full" by Re Ellenborough Park (see [52] above).
14. Third, the second limb of the operative clause (which gives the dominant owners a right of access for the purposes of repair and maintenance) would not be necessary if it was intended to grant to the dominant owners sole or exclusive use of the servient tenement as a balcony, terrace or garden. Use as a balcony, terrace or garden would allow most if not all of the things permitted by the second limb. While it is true that para (iv) of the proviso requires the dominant owners to permit the servient owner to enter the servient tenement to inspect the state of repair and conduct repairs, this serves the purpose of making clear that the dominant owners' rights under the Easement must give way where that is necessary for the purposes of repairing the surface (which is the obligation of the servient owner).
15. Fourth, there are a number of aspects of the physical characteristics of the land which are relevant to the construction of the operative clause. The servient tenement forms the roof of the house built on Lot 2. This will necessarily restrict the nature of the activities which are contemplated by the expression "recreation and enjoyment" as recognised para (v) of the proviso, which precludes activities which cause unreasonable disturbance to the servient owner. Recreation and enjoyment, therefore, would not include activities of a nature such as basketball.
16. In my view, it is also relevant that the rooftop area comprising the servient tenement is relatively large (being approximately 78 square metres in size) so that it can be enjoyed by both the dominant owners and the servient owner at the same time, and that without it the servient owner would not have a significant area for a garden.
17. All of these matters point to the conclusion that the servient tenement was intended to serve the purpose of a "balcony, terrace or garden" for both Lot 1 and Lot 2. This is consistent with the decisions in Re Ellenborough Park, Jackson v Mulvaney and Regency Villas which recognise that the dominant owner may have an easement for recreation over land which is also used by the servient owner for the purposes of recreation. In such circumstances, the dominant owner's enjoyment of the right must be reasonable, but subject to that reasonable use the servient owner is also entitled to use and enjoy the servient tenement as owner and each must exercise restraint in doing so: see the authorities referred to at [46]-[47] above.
18. The defendants submitted that properly construed the first limb confers on the defendants the sole right to use the rooftop area "for recreation and enjoyment, and as a balcony, terrace or garden" for the following reasons: 1. The wording "full and free" imports sole use: I have addressed this submission above and rejected it. 2. The physical character of the dominant and servient tenements at the time of the grant of the easement did not enable the servient owner to access the rooftop area except through the dominant tenement because the skylight was fixed: This does not, without more, lead to the conclusion that the rights granted to the dominant owners by the easement are for the sole use of the rooftop for the specified purposes. This is because nothing in the terms of the easement precludes the servient owner (as an aspect of her rights as owner of Lot 2) adding a point of access to the rooftop area, either by installing stairs on Lot 2 which access the roof or changing the skylight from a fixed to a trafficable one (as in fact occurred). In this respect the physical characteristics of the site cannot properly be regarded as affecting the scope of the rights granted: Keefe v Amor [1965] 1 QB 334 at 346-347; Gale on Easements at [9-25]. 3. The requirement in para (iii) of the proviso indicates that the purpose of the skylight was to provide light to the house underneath the rooftop area and not to enable access to the roof: While the skylight at the time of grant served that purpose, there is nothing in the terms of the easement to restrict it to that purpose. 4. The terms of para (iv) of the proviso which permits the servient owner to access the servient tenement through the dominant tenement would be otiose if the servient owner was permitted to enter through the skylight: It is not the case that para (iv) will be otiose if the servient owner had access through the skylight, or otherwise. Clearly, the most convenient point of access to the rooftop area where significant work is required to be done to the rooftop area, including taking up materials for the work, would be through the dominant tenement. 5. The presence of the express prohibition in para (v) of the proviso against the servient owner constructing any structure of improvement which interferes with the use, enjoyment or use of dominant tenement: In my view, para (v) is clearly not directed to preventing the servient owner from using the rooftop area for recreation and has no bearing on whether the easement confers the sole right to use the rooftop for recreational purposes on the dominant owners.
19. The conclusion that the dominant owners do not have sole use of the rooftop area for recreation means that the dominant owners can prevent the servient owner from using the rooftop area in a manner which interferes with the dominant owners' reasonable use of the rooftop area for the purposes of recreation and as a balcony, terrace or garden. The servient owner can also use that area for recreation or other purposes, but she must exercise restraint in her use to permit the reasonable use by the dominant owners for the purposes permitted by the easement. Indeed, both must exercise restraint in their use of the rooftop area: see [47] above
20. In the course of argument, three alternative scenarios were raised with the parties to explore the nature of the shared use of the rooftop area. The first, at one end of the spectrum, is where the defendants are away for the weekend or on holiday. In that situation, Ms Barter would not need to exercise any restraint with respect to her use of the rooftop area as that use would not impinge on use by the dominant owners. At the other end of the spectrum is the situation where the dominant owners are using the rooftop area for a party, with many guests. In that situation Ms Barter would need to exercise restraint so as not to interfere unreasonably with the enjoyment by the defendants of their rights under the easement and it is likely that for her to seek to use the rooftop area in that circumstance would be an unreasonable interference with the dominant owners' use. The third situation, between these two extremes, is where each of the dominant and servient owners wish to enjoy the roof terrace at the same time, perhaps to have a drink on a summer's evening. There is no reason in principle why each of them could not use the rooftop area for that purpose as it is sufficiently large for each to be able to enjoy it without unreasonably interfering with the use by the other. There seems no real difference in principle between that shared use and the simultaneous use by the dominant owners (and, potentially the servient owner and its invitees) of the park which was the subject of the easement for recreation in Re Ellenborough Park.
21. It is true that the use by Ms Barter of the rooftop area might impact the privacy of the defendants on the dominant tenement. However, that is not a matter relevant to whether, on its proper construction, the easement prevents Ms Barter from exercising her rights as owner to use the rooftop area. The easement operates to confer rights on the dominant owners to use the servient tenement and not (as in the case of a restrictive covenant) to restrict the servient owner's use of the servient tenement to preserve the privacy of the dominant tenement.

Cross-Claim

1. For the reasons given above, I do not accept that the installation of the planter boxes on the driveway or installation or use of the skylight substantially interferes with the reasonable exercise of the defendants' rights under the easements.
2. In relation to the CCTV cameras installed by the plaintiff, the defendants by their cross-claim seek an injunction to restrain the plaintiff from using CCTV cameras and voice recording to monitor activities on Lot 1 or the area of the easements.
3. It was not in dispute that the surveillance of another person's property with CCTV cameras is an actionable nuisance. In Raciti v Hughes (1995) 7 BPR 14,834 at 14,840, Young J (as his Honour then was) said: 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 (3d) 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.
4. In Au v Berlach [2020] NSWSC 81, Kunc J held that use of CCTV cameras by the servient owner to "snoop" on the activity of the dominant owner on the servient tenement would be an actionable nuisance either on the basis of Raciti, or, alternatively, as a substantial interference with the reasonable exercise by the dominant owner of its rights under the easement: at [117]-[119].
5. In the present case, I do not regard the use of CCTV cameras by Ms Barter to record activities on the driveway of Lot 2 as an actionable nuisance on either basis referred to above, in light of her undertaking referred to at [31] above. However, given the purpose for which the parties are entitled to use the rooftop area (in each case for recreational purposes), it seems to me that for either of them to use CCTV cameras to record what occurs in that area would be an actionable nuisance. In the case of Ms Barter, the use of the camera is a substantial interference with the reasonable exercise by the Theunissens of their right to use the rooftop area for recreational purposes. In the case of the Theunissens' camera, it is a deliberate attempt to snoop on her privacy in using her property, the rooftop area.

Conclusion

1. I will give the parties the opportunity to bring in orders to reflect these reasons and also to make submissions on costs.

Amendments 11 April 2024 - Correction to typographical errors in [43] and [114]. 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: 11 April 2024