28 Most of the hearing had already been occupied with Conveyancing Act, s 89 issues by the time the excessive user claim and Conveyancing Act, s 88K claim settled. In the end the only lay and expert evidence read on both sides related to Conveyancing Act, s89 issues. It is this evidence to which I now turn.
29 The plaintiff's claim for modification of the easement was contested in three main areas. The first was a contest in relation to traffic on the easement and the possible need for wider turning circles for cars turning in and out of Lots 18 and 19. The second was a contest about the geotechnical characteristics of the area and the likely geotechnical engineering work that would be physically required within the easement if the easement pavement were to be expanded in the future. The third area of contest related to the situation of the easement in the broader context of the DP145541 subdivision. It is on this latter issue that the history of the subdivision is of relevance. I will deal with each of these areas of contest in turn.
Traffic Issues
30 The defendants' case was that they might need to widen the easement in the future to accommodate the turning of their motor vehicles upon entry to and exit from their garages on Lots 18 and 19. The plaintiff contended that no more turning circle area was necessary under any circumstances and that the easement would never need to be widened beyond 20 feet (6 metres). Both expert and lay evidence was contested on this issue.
31 Mrs Campbell adduced evidence from an experienced traffic engineer and transport planner, Mr Terrence Keith Lawrence. His evidence was that both Lot 18 (the Baigents' property) and Lot 19 (Mr Winch's property) had double garages facing onto the easement. His evidence was that manoeuvrability out of the garage of Lot 18 was significantly higher than that in relation to Lot 19. He used "Autoturn" computer software to verify vehicle manoeuvring in and out of the garages for both lots. The turn paths were based on what he described in evidence as "the 85th percentile vehicle". This is equivalent to a Holden or Ford passenger vehicle 4.91 metres long and 1.87 metres wide with a wheelbase of 2.8 metres. This "85th percentile vehicle" is so called because 85 percent of all vehicles manufactured in Australia and using Australian roads are smaller than it. Other vehicles such as long wheel based sedans and some trucks and vans are larger than the 85th percentile vehicle.
Manoeuvring in and out of Lot 18
32 Mr Lawrence's computer generated "swept paths" for vehicles using the garage for Lot 18 showing the manoeuvrability of vehicles coming south along the easement into the Lot 18 garage and out again. Mr Lawrence used reverse in/drive out manoeuvres for his projections, as they are the safest way of using these garages. His projections showed that vehicles could satisfactorily manoeuvre into and out of the garage for Lot 18 using just one movement. He found that one reverse movement for the entry into the Lot 18 garage was all that was required within the available width of the private right of way. This single movement was sufficient to reverse into the garage upon stopping after travelling down the easement in a southerly direction.
33 According to Mr Lawrence even a car parked on the driveway of Lot 18 can manoeuvre satisfactorily using one movement within the existing width of the easement.
Manoeuvrability in and out of Lot 19
34 Manoeuvrability on and off the easement is generally tighter for Lot 19, according to Mr Lawrence. There are a number of reasons for this. The southernmost car space within the Lot 19 double garage describes quite an acute southeasterly angle with the eastern boundary of the easement. This makes stopping and reversing back into the garage very difficult. The northernmost of the two cars in the Lot 19 garage can manoeuvre in and out with just one turn. The southern vehicle position for Lot 19 is more difficult for manoeuvring because of the acute angle of this car space to the front of the garage. There is also reduced manoeuvring room available for cars on Lot 19 because of a 5-metre garage door opening for two cars. Although the northernmost car space on Lot 19 will permit entry and exit using one movement, the southernmost car parking in the garage on Lot 19 will require a three-point turn movement according to Mr Lawrence. He says that the three point movements are acceptable for low volume traffic movements associated with residential uses and are accepted by planning authorities including Sutherland Shire Council. His overall conclusion is that the existing width of the private road is adequate for manoeuvring into and out of the garages for Lots 18 and 19, as well as for a vehicle parked on the driveway of Lot 18.
35 Mr Winch confirmed Mr Lawrence's evidence about the difficulty of manoeuvring in and out of the southern garage car spot on Lot 19. But Mr Winch's evidence went further. Mr Winch said, and I accept, he drives an XJ Jaguar, which is right at the 85th percentile of motor vehicles. Mr Winch says and I accept he must manoeuvre several times before getting in and out of the southern car position on Lot 19, the position in which he parks his XJ Jaguar. He says more than a three-point turn is required to do this. I entirely accept his evidence on the number of turns he requires in practice to enter and exit the garage of Lot 19. He says he must often do 4 of 5 turns and I accept that evidence despite Mr Lawrence's expert opinion. Entering and exiting the garage with the driveway at the current width with his current vehicle is very inconvenient for Mr Winch. The possibility of future expansion of the easement on its western side therefore is a real benefit to him. No party contended that expansion of the easement pavement on its eastern side was possible. It already stands on the boundary of Lot 4 with Lots 18 and 19.
36 Whilst Mr Lawrence's calculations appeared to be valid as far as they went I prefer Mr Winch's evidence of his direct experience of trying to manoeuvre his XJ Jaguar in and out of the Lot 19 garage space. His evidence was direct and credible. The swept paths of Mr Lawrence's Autoturn computer software were only guides to the real world situation a user of the Lot 19 garage would encounter. Mr Winch's credible evidence is the best account of the actual difficulties on the ground.
37 Future owners of Lot 19 also may wish to have the option of garaging a vehicle in the 99th percentile on Lot 19. That would magnify the existing manoeuvring problems on Lot 19. Manoeuvrability for a 99th percentile vehicle (sometimes referred to as "B99") would be more difficult than for a 85th percentile vehicle (sometimes referred to as "B85").
38 There are limitations in Mr Lawrence's scientific work, which may account for why actual manoeuvring problems are greater than the expert prediction. Mr Lawrence's work assumes the vehicle moves in and out of the garage in "one sweep", which means that no steering wheel adjustments are made as the person turns in or out of the garage. That is not always how people drive cars. It is understandable how the computer-generated models may differ from what Mr Winch says happens in practice. Also there are differences between the manoeuvrability of cars driving into a garage or reversing into one, which are not fully taken into account in his model.
39 Accepting Mr Winch's evidence as I do it is a desirable option for the owner of Lot 19 to be able to expand the trafficable paved area of the easement beyond its current area and in a westerly direction into what is now natural sandstone. This leads to a consideration of what earthworks will need to be done to achieve even a 0.5 of a metre widening of the easement pavement, should either of the owners of Lots 18 and 19 desire it.
40 Widening the easement directly opposite Lot 19 is not the only solution to Mr Winch's manoeuvring problems. Despite Mr Lawrence's computer modelling of reversing into the Lot 19 garage for safety reasons, Mr Winch usually drives nose first into his garage. That is the most convenient way for him to park. I accept that this is what he actually does. That means he exits from his garage in reverse. As a result he has to find a place somewhere further north on either side of the easement where he can convert his rear-first movement with a 180-degree turn, into a forward-first movement. His evidence is that he does that in practice by reversing the back of his motor vehicle into the front of Lot 18 or into one of several niches at the side of the pavement on either the western or eastern side of the easement but north of Lot 4. There are several of these. Some are driveways. Others are niches in the rock. One better option for him in the future, to guarantee flexibility of movement, is to reverse straight out of his garage and then place the back of his vehicle into an expanded car space on the western side of the easement directly opposite Lot 18. This is presently an area of massive sandstone. Thus, although Lot 18 does not immediately seek an expansion in the width of the easement opposite Lot 18 such an expansion would certainly benefit Lot 19. The extra turning area opposite Lot 18 would also undoubtedly assist visitors to Lot 18 with larger vehicles and any future owner of Lot 18 using a larger vehicle.
The Redman- Young Geotechnical Conclusions
41 Can the western face of the easement be excavated to allow a greater area of pavement for traffic on the easement? The geotechnical experts Dr Redman and Mr Young agreed about some of the difficulties in excavating the western face of the easement over Lot 4. They gave joint geotechnical evidence to the effect that even a minor increase in the pavement of the easement may require substantial civil engineering and earthworks within the easement. This evidence raises important considerations in relation to any grant of relief. The geotechnical challenges of the site follow from a close understanding of the features of the western face of the easement along its western boundary in Lot 4.
The Western face of the Easement crossing Lot 4
42 The western face of the easement towers above a pedestrian standing in the easement between Lot 4 and Lots 18/19 and facing west. Within Lot 4 this western face covers a distance of approximately 50 metres. But throughout this distance the western face exhibits a range of obviously different ground conditions. The geotechnical engineers have divided the western face into three sections. Each section exhibits different geotechnical features. Their joint plan, SK1 (Exhibit E), which is set out below in these reasons as Figure 3, shows these three sections between four reference points A, B, C and D. The three sections are sections A-B, B-C, and C-D. The geology of sections A-B and B-C presents particular difficulties in excavating to the western side of the easement pavement. These difficulties arise even when attempting to widen the pavement just a little. But section C-D does not present such problems because of its special geological features. It is convenient to describe section C-D, the northernmost of the three sections first because it presents the least excavation difficulty.
Figure 3
Section C-D- Massive Sandstone
43 Section C-D is at the northern end of Lot 4. It consists predominantly of massive sandstone of sub-horizontal bedding. There is minor colluvium overlaying the sandstone. Colluvium can best be described as loose and incoherent deposits of any organic or inorganic matter usually found at the foot of a slope or cliff and brought there by gravity.
44 The joint geotechnical findings about section C-D are that: it does not display any defects which could restrain how it might be cut; it can be cut largely vertically and wholly support itself after cutting; and, it does not require any form of reinforcement because of the massive sandstone's internal strength and integrity. Because section C-D comprises massive sandstone it can be cut vertically and will still provide a stable support for the material above it in Lot 4, without the need for any supplementary artificial support structures. The principal expense in excavating section C-D is that of cutting into the rock itself but no more. Sections A-B and B-C have more troublesome excavation and support characteristics.
Sections A-B and B-C - Sandstone and Boulders
45 Sections A-B and B-C raise similar excavation hazards. They both consist of lower massive sandstone with overlaying detached boulders and colluvium. In both cases excavation of the lower massive sandstone is straightforward, as it is in section C-D. But difficulties arise in excavating because of the presence of the boulders and colluvium.
46 A special feature of section B-C is a large detached block of stone or a boulder up to 2 metres thick and approximately 10 metres in length and sitting opposite Lot 19. This large boulder is supported within section B-C by lower massive sandstone, which varies in height from 1.2 to 1.5 metres. Detached boulders and colluvium overlie this massive sandstone. Apart from this large boulder, smaller boulders are located in section B-C. A further detached block about 4 metres long and about 1.5 metres in thickness sits slightly to the north of the large boulder and opposite the northern end of Lot 19.
47 Looking west into Lot 4 another feature of section B-C is densely packed colluvium extending west up the slope of the hill of Lot 4 leading towards the Ellesmere Road plateau. Weathered sub-vertical joints of largely soil-strength material are present, trending back into the slope. The colluvium here is about 45-60 degrees to the horizontal and contains material that ranges from soil to boulders of varying size and continues uphill to the west. This sloping area is covered with vegetation consisting of small cover and occasional large trees.
48 Section A-B exhibits similar features to section B-C but without the large boulder. Section A-B consists of lower massive sandstone 1-2 metres in height overlain by colluvium and by boulders. It includes an above ground boulder up to 3-4 metres in size relying upon lower detached boulders for support at about the southern boundary of the right of way. The differing geology of these three sections requires a different approach to excavating them.
Excavation Techniques
49 In section A-B and section B-C two kinds of excavation problems arise that do not exist in section C-D. The first problem is that the loose boulders represent a significant excavation hazard. The second is that special measures must be undertaken to support the ground uphill in Lot 4 during and after any excavation.
50 Four excavation techniques are theoretically available for sections A-B and B-C, battering of the slope, gravity retaining walls, a cantilevered retaining wall and a contiguous piled wall. Both geotechnical experts, Dr Redman and Mr Young agree that of all these options a contiguous piled wall is the best solution for these two sections to prevent disturbance of the soil in Lot 4.
51 But the other options are important. Battering of the slope, gravity retaining walls (such as a crib wall or a gabion wall) all use gravity to provide support to the material being supported uphill. For a mass of material held in place only by its own weight to then support the western face of the easement, that mass of material would have to extend back within the easement itself. This would defeat the purpose of the excavation, which is to create more trafficable pavement space on the easement.
52 Gravity structures. Battering of the slope, crib walls and gabion walls all act as gravity structures which utilise their own weight to hold and keep stable the ground behind and above them. Being structures that support due to their own weight, the horizontal extension of the structure from the retaining point into the easement is a similar distance to the height being retained. If battered slopes, crib walls or gabion walls were to support the westernmost excavated side of the easement they would extend back into the easement by the same distance as their height. This extension of the structures back into the easement neutralises any advantages from excavating into the western side of the easement. The geotechnical experts rejected these gravity-based structures for this reason.
53 Cantilevered walls. The only remaining support solutions are a reinforced cantilevered retaining wall or a contiguous piled wall. Both Dr Redman and Mr Young prefer a contiguous piled wall as the solution. A cantilevered wall is an L-shape concrete retaining structure in which the upright part of the L supports the ground behind the wall and the horizontal and pavement-level part of the L can be incorporated into the pavement. But there are limitations on the efficiency of cantilevered walls, which cannot be raised to too great a height. Both experts agree that the cantilevered retaining wall will not work efficiently here because of the height of the material to be supported.
54 Contiguous piled wall. A contiguous piled wall is constituted by a series of bored piles of particular diameter, which are bored side by side or close to one another. These piles form the vertical wall. They act essentially as a cantilever and need to be bedded deep into the rock below to provide stable restraint. The piles would need to be reasonably large in diameter here because they would support quite a high elevation of ground in Lot 4. Both experts agree that each pile may need to be of the order of 0.75 to 1 metre in diameter to support this ground.
55 A limitation on contiguous piling in this area is that the massive boulder in section B-C might move during drilling and excavation, as might the small boulders in section A-B. Were these boulders to move there is a risk of significant damage to the piling being carried out and even a risk of injury and loss of life, if the slippage were catastrophic. The experts agree this hazard would be dealt in one of two ways. The boulders could be removed before work commenced. Both experts preferred this solution and agreed that in any event piling contractors may insist upon this given the nature of the hazard. Excavation may become quite expensive as a result.
56 The other solution is to use less force and only to excavate the massive sandstone to the most limited extent possible. Both experts agreed that if any of the lower level massive sandstone in this A-B and B-C area were to be cut back, even to a distance of a half metre, that it would still be necessary: to examine the material above the excavation and work out how to support what is above; and, to ensure there is no destabilisation of the large boulder in section B-C. Whilst boulder-anchoring techniques are possible they have their own hazards.
57 The experts identify a construction method, which would expand the pavement area of the easement, and accommodate large boulders removed before piling. One to two metres of the large detached boulders and colluvium could be left in place with more of their width remaining in some places. The large above ground boulder in section A-B would have to be removed. The contiguous piled wall support would then be constructed in front of the Lot 4 slope upon the assumption that there is approximately 3.5 metres of ground available between the present western most edge of the existing pavement and the western boundary of the right of way. The constraints on the extent of excavation are determined by the pile diameter required to support the slope and the practicalities of the excavation work due to the conditions encountered. The pile diameter required for this work would be in the order of 0.75 -1.0 metres. The extent of possible extra pavement space created would therefore vary between 0.5 metres (3.5 metres less 1 metre for piles and less 2 metres for boulder support) and 1.75 metres (being 3.5 metres less 0.75 metres for piles and less 1 metre for boulder support). The precise pile diameter would have to be assessed as part of the design process. This methodology would in the experts' view fully protect the adjacent remaining ground on Lot 4 from slippage.
Turning Circle Issues
58 There is surprisingly little difference between the excavation techniques necessary to attempt a general widening of the pavement of the right of way as distinct from increasing the width of the right of way just to expand the turning circle of vehicles entering and exiting Lots 18 and 19. The same issues arise in relation to sections A-B and B-C. The experts agree that to increase the available turning circle in sections A-B and B-C there will be a maximum increase in pavement space in the range 0.5 metres to 0.75 metres using the contiguous piled wall construction technique. But in relation to section C-D stable excavation for a road or a turning circle right up to the western boundary of the easement is possible.
59 Seeking even a minor increase in the width of the trafficable pavement of the right of way in sections A-B and B-C to increase the available turning circle is difficult; far more difficult than for section C-D. In the experts' opinion the full contiguous piled excavation and support technique already described are needed even just to add a further 0.5m to the pavement and the turning circle for vehicles on the easement. The earthworks for the contiguous piled excavation technique will extend right to the western boundary of the easement.
Other Lots in DP145541
60 The Court's discretion to grant Conveyancing Act, s 89 relief is influenced in this case by the existence of other easements in DP145541, especially the easements over Lot 4 in favour of Lots 5 and 6 and the successor titles to those lots. These successor titles can be seen in the present cadastral plan. This issue represents the third main area of contest between the parties in addition to traffic and geotechnical issues.
61 The Court is entitled to take into account a wide range of circumstances in exercising its discretion to grant Conveyancing Act s 89 relief, including the existence of the other easements.
62 Mrs Campbell's application has not been served on the owner's of the successor lots to Lots 5 and 6. The Court can infer that the interests of those owners are likely to be affected by the application. The easements over Lot 4 in favour of Lots 5 and 6 subsist over exactly the same area on Lot 4 as does the subject easement. If the easement in favour of Lots 18 and 19 are modified in the manner the plaintiff now proposes the plaintiff says that the rights of the owners of Lots 5 and 6 will remain unaffected. That is strictly true but it raises a question as to the utility of the plaintiff's present application as a discretionary matter. Even if the plaintiff succeeds in obtaining Conveyancing Act, s 89 orders to modify the easement in the manner proposed, she could still be required in future proceedings to widen the easement pavement opposite Lots 18 and 19 at the suit of the owners' of Lots 5 and 6. Mrs Campbell says that she can deal with such issues later. But the unresolved nature of these questions raises the question of whether the relief sought should be granted now.
63 It is neither useful nor necessary to speculate what the unserved owners of Lots 5 and 6 might have done had they been served with this application. Their precise needs at this point on the right of way are unknown. All that can be said is that it is possible that they may wish at some stage in the future to make use of their easements over the identical strip of land which Mrs Campbell now seeks to return wholly into Lot 4's ownership as against Lots 18 and 19. The way to cure this problem would have been to join the other lot owners. Mrs Campbell's failure to do so creates one discretionary obstacle against her. But it is far less significant than the major obstacles of the traffic and geotechnical issues.
Applicable Principles of Law
64 The principles that apply to the exercise of the power conferred by Conveyancing Act s 89(1) to modify or extinguish an easement may be clearly stated. The power conferred in Conveyancing Act s 89(1) creates an important statutory qualification to the common law rights of the owner of an easement. Section 89(1) relevantly provides:
"89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants