Bland v Levi

COUNSEL : N Confos (P) R Brender (D) SOLICITORS : Otto Stichter & Associates (P) Stephen Wawn & Associates (D) CATCHWORDS : Real Property [410]- Easements - Ancillary rights - Driveway - Right to reconstruct - No need to have servient owner approve plans. Abson v Fenton (1823) 1 B & C 195; 107 ER 73 Butler v Muddle (1995) 6 BPR 13,984 Dand v Kingscote (1840) 6 M & W 174; 151 ER 370 Gulf Pipe Line Co v Thomason 299 SW 532 (1927)(Texas Civil Appeals) CASES CITED : Newcomen v Coulson (1877) 5 Ch D 133 Prospect County Council v Cross (1990) 21 NSWLR 601 Spear v Rowlett [1924] NZLR 801 Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488 Zenere v Leate (1980) 1 BPR 9300 DECISION : Interim relief declined.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J MONDAY 6 MARCH 2000

1 HIS HONOUR: This is a dispute between neighbouring owners in Ian Street, Rose Bay, as to their rights in respect of a common driveway. 2 The matter is urgent and it is one where there is insufficient time to look at the precise details. Essentially, the driveway is constructed on two separate but adjoining pieces of land, the southern portion being part of the plaintiffs' land, No 20 Ian Street being lot 3 in DP582268, and the northern strip apparently part of the defendant's land, No 18 Ian Street being lot 2 in DP582268 - or at least the defendant had rights over it. 3 The defendant is erecting units on its land and it is quite clear that the plaintiffs object to this. (Although there are three defendants named, the major player is the corporate defendant and I will merely use the term "the defendant" for ease of reference). 4 As part of the works of erecting the home units the defendant is replacing the driveway. It is replacing it in a different form to that which previously existed. The plaintiffs complain that they were not consulted as to precisely what was going to be put in place of the driveway. They have numerous concerns as to what is going to happen. Their principal concerns are: (1) there may be unauthorised work done on their land which the Woollahra Council may order them to remove; (2) that there are retaining walls which may be affected by the work and not replaced properly; (3) that the level of the reconstructed driveway, as it adjoins the plaintiffs' garages, may make it awkward for the plaintiffs' cars to enter the plaintiffs' garages; (4) that there was no evidence that there had been adequate public risk insurance taken out by the contractor for the work; and (5) that there was concern that the driveway was not being reinstated by commercial standards. 5 The concern about the fourth point was allayed during the hearing. 6 There would appear to be some lack of communication between the parties, but whose fault that was is beyond the call of this case to decide. 7 The plaintiffs' summons seeks the following order:

"That the first second and third defendant and each of them be restrained up to and including such day as may be ordered by the Court, from by themselves herself himself and itself and their hers his and its servants or agents carrying out any building or construction works or otherwise interfering with free and unrestricted use of the right of carriageway and right of footway, in respect of the driveway common to the properties situate at and known as numbers 18 and 20 Ian Street Rose Bay in the state of New South Wales, which gives access to Ian Street." 8 I remarked to Mr Confos, of counsel for the plaintiff, that in his presentation of the evidence it was unclear whether an interlocutory order was being sought or a final order. Counsel skilfully parried my question and made his position clear that he was seeking injunctions until his clients had been given precise details of what works were being done. However, no final relief is claimed in the summons so the order that is being sought must really be of a final nature, with perhaps the right to discharge after the circumstances which made an injunction necessary have been removed. Mr Brender, counsel for the defendant, indicated that his client was quite uncertain as to whether the order it had to meet was interlocutory or final. 9 The second unsatisfactory matter was that the plaintiffs' title was not really convincingly demonstrated by the evidence. It is clear from DP582268 which is in evidence that it was intended to create certain easements, but one would have expected that there would be a s 88B instrument and other documents which would have defined the rights more precisely. 10 However, as the case is urgent I will pass over these "technicalities" and deal with the merits. 11 The plaintiffs' basal proposition appears to be that in respect of any work done on the right of way granted to the defendant over their land in respect of the driveway, the defendant needs to seek the plaintiffs' authority to proceed with works or, at the very least, needs to provide the plaintiffs with full information about what is going to happen so that the plaintiffs can see that their rights are not being prejudiced. 12 No authority was cited for this proposition and I do not believe that there is any that supports it. 13 There is precious little authority on the subject of ancillary rights in connection with easements. What there is makes it clear that one of the rights that the holder of a dominant tenement has is the right without prior permission of the servient owner to enter onto the servient land and take all necessary steps to grade the area of the right of way, to repair it, including replacing any structure on the right of way by way of concrete road to meet altered conditions. The basic law was summed up by McLelland J in Zenere v Leate (1980) 1 BPR 9300; and see also Newcomen v Coulson (1877) 5 Ch D 133 and Gale on Easements, 15th edition pp 45-46. 14 In Zenere v Leate, the plaintiff owned the servient land (No 87) and the defendants owned the dominant land (No 85). McLelland, J said at 9305:

"...a term is to be implied to the effect that the dominant owner has such ancillary rights as are reasonably necessary to the effective and reasonable exercise of the rights expressly granted see Jones v Pritchard [1908] 1 Ch 630 at 638. Such ancillary rights include the right to carry out such work on the right of way site as may from time to time be reasonably necessary to create or maintain reasonable vehicular access along the right of way site and onto No 85, provided that such right be exercised in a manner which (a) is consistent with the reasonable use and enjoyment by the servient owner of the right of way site as the sole means of access between No 87 and a public road, and (b) does not interfere with the use and enjoyment of No 87 by the servient owner to a greater extent than is reasonably necessary..." 15 This passage has been followed on subsequent occasions; see eg Prospect County Council v Cross (1990) 21 NSWLR 601, 608. 16 The cases stress that there is no obligation on the servient owner to make the land suitable for the way, but that the dominant owner, may, without further permission, enter and do work to render the way fit for his or her purpose: Spear v Rowlett [1924] NZLR 801, 803. 17 The dominant owner has the right to pave the way so far as it considers it reasonably necessary to do so in order to enjoy the way: Butler v Muddle (1995) 6 BPR 13,984 at 13,987. The dominant owner may enter onto "the way and do whatever is necessary for the purpose of making it suitable for the exercise of the rights granted": Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488, 494-5. 18 Perhaps the most stark illustration of a right ancillary to a right of way is provided by Gulf Pipe Line Co v Thomason 299 SW 532 (1927) (Texas Civil Appeals). There, the grantee of an easement to lay a pipe line carrying bulk oil was held to have an ancillary right to patrol along the strip granted on horseback to ensure that there were no breaks in the pipe, this being the most expeditious way of ensuring that the line was safe without unreasonably injuring the servient land. 19 In India, the law of easements was codified by the Indian Easements Act, 1882. The codifiers endeavoured to state the English law as applicable to India. Section 24 of that Act, so far as is relevant is as follow:

"The dominant owner is entitled as against the servient owner, to do all acts necessary to secure full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused to the servient heritage." 20 In my view, this section correctly sets out the law in New South Wales. Although there is no authority directly in point, cases such as Abson v Fenton (1823) 1 B & C 195, 201; 107 ER 73, 75 and Dand v Kingscote (1840) 6 M & W 174; 151 ER 370 tend to support it. 21 There is an exhaustive commentary on the Indian Act by Katiyar, Easements and Licences (9th edition, 1979, Law Book Co, Allahabad). The only relevant case under the Act cited by Katiyar is Hayagreeva v Sami 15 Madras 286. I need to rely on the note in Katiyar at page 538 as the report of the case is not available in Sydney. In that case it was held that the dominant owner of the right to drain water was not liable where he had only entered the servient land to repair once a year after giving one month's notice of intention and had done the necessary work between 9am and 5pm. 22 In summary, the dominant owner may do work on the servient tenement which is reasonably necessary for it to enjoy the right of way in such a way that it causes no reasonable interference with the servient tenement or undue inconvenience to the holder of the servient tenement. The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone. 23 Accordingly, it seems to me that it follows that the plaintiffs cannot complain that they have not been given full and precise details of the work that is to be done. 24 At present there is insufficient material to show that, on the balance of probabilities, when the work is completed there will be any problem with the retaining walls or the levels. I am less certain about the levels, but it seems to me that I should not grant any injunction at this stage but stand the suit over for six weeks with liberty to restore at that party's risk as to costs, should something dramatic happen in the meantime. 25 I should note that the thrust of the argument was that the plaintiffs were entitled to have all the information which they needed to make a considered decision as to whether they would consent to the works. I have held that they are not entitled to this. During final addresses, Mr Confos sought to say that the use of the driveway when relaid would constitute an excessive user of the right of way. I put this aside as this was not the case that was being made up to that stage, nor was it reflected in the terms of the order sought in the summons. The plaintiffs may also have other complaints. Of course, any dealing with the land in excess of the defendant's right will be an actionable trespass; see eg Dand v Kingscote (1840) 6 M & W 174; 151 ER 370. I would have thought that before any other matter can be raised the suit would have to be reconstituted by amendment of the summons. 26 If, when the works are finished, there seems to be a problem with either the levels or the retaining walls or otherwise, then the suit may be reconstituted and sent to the District Court for damages to be assessed, or for mandatory injunctions to be made in this Court. 27 Accordingly I decline to give any interim relief. I order the plaintiffs to pay the costs up to today's date. 28 I stand the suit over for mention before the Registrar on 17 April 2000 at 9:30 am with liberty to any party at their own risk as to costs to restore the matter to the list on three days' notice. Further costs are reserved. The exhibits may be returned.

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