The plaintiff, Ross Boekeman, is the owner of Lot 1 in Strata Plan 58150. The defendant, Jennifer Aaron, is the owner of Lot 6 in Strata Plan 58150. The strata plan was established on 26 November 1998. The strata scheme consists of eight lots and common property located throughout a 4 level building located in William Street, Leichhardt.
Level 1 of the building may be described as a basement car park. Eight portions of the car park have been allocated to a particular lot in the scheme. That is to say, each lot includes some space in the car park. The balance of the car park is common property.
This case concerns the portion of the car park that forms part of the defendant's Lot 6, and in particular a right of footway over that part of Lot 6. The easement benefits all the other lots in the scheme. The easement was created at the same time the strata scheme was established.
The easement is described on the relevant instrument made for the purposes of s 88B of the Conveyancing Act 1919 (NSW) as "Right of Footway 0.76 wide". By the operation of s 181A(1) of the Conveyancing Act, that description imports the words contained in Part 2 of Schedule 8 to the Act, namely:
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 on foot at all times and for all purposes, without animals or vehicles to and from the said dominant tenement or any such part thereof.
The portion of the car park that forms part of Lot 6 is an area of about 31m2 that extends away from the northern wall. Its dimensions (so far as they can be discerned from the plan) appear to be roughly 6.2m wide and 5m deep. It is large enough to accommodate two motor vehicles of ordinary size. A column located near the middle of the front of the area effectively divides the entrance to the space into two halves. The easement is located along what may be described as the western side of the portion, alongside a wall which is itself part of the common property.
The wall supports four gas meters and four water meters, and associated shut-off valves or taps. These meters are referable to Lots 1, 2, 6 and 7. It may be inferred that those meters were in existence when the easement was created, and likely provide the principal rationale for it. I note that when the strata scheme was established, another right of footway (0.8 wide) was created alongside the wall on the eastern side of the portion of the car park that forms part of Lot 5. Gas meters and water meters referrable to Lots 3, 4, 5 and 8 are supported by the wall in that location.
Mr Boekeman claims that his rights under the right of footway that burdens Lot 6 have been infringed. In essence, he claims that his use of the easement has been, and continues to be, obstructed by a mechanical garage door that has been installed across the western half of the entrance to the Lot 6 parking area. The door, when closed, prevents access to the right of way.
The garage door (together with a similar door across the eastern half of the entrance to the Lot 6 parking area) was installed at some time prior to when Ms Aaron moved into Lot 6 in September 2000. Ms Aaron gave evidence that the garage door can be locked and unlocked by means of a remote control device. When the door is closed it is effectively locked, but can be unlocked and opened using the remote control device.
For a time, Mr Boekeman was in possession of a remote control device for the garage door on the western side. It had been provided to him by Ms Aaron in about 2010 when Mr Boekeman needed access to the water shut-off valve or tap in connection with bathroom renovations being carried out in Lot 1. However, in about early 2016, Mr Boekeman returned the remote control device to Ms Aaron. He left it in an envelope on Ms Aaron's front door mat. Mr Boekeman did not think that the existing arrangement was satisfactory. Mr Boekeman gave evidence that on some occasions he found it impossible to open the garage door using the device. He also stated that whilst the device sometimes enabled him to access the right of footway, it did not afford access to persons who periodically need to read the gas or water meters.
In January 2017, solicitors acting for Mr Boekeman sent a letter to Ms Aaron in which it was stated that unless she removed the garage door within 14 days, Mr Boekeman would seek a Court order to require her to do so. The garage door was not removed. In July 2018, Mr Boekeman's present solicitors sent a letter to Ms Aaron in which the commencement of Supreme Court proceedings was foreshadowed. The Court was informed at the hearing that there were some negotiations between the parties, but the matter was not able to be resolved. Mr Boekeman commenced the proceedings by Summons filed on 6 February 2019.
Mr Boekeman contends that the garage door constitutes an obstruction that amounts to a real substantial interference with the right of footway (see Powell v Langdon (1944) 45 SR (NSW) 136 at 139; Keefe v Amor [1965] 1 QB 334 at 347; both cases cited by Bryson J, as his Honour then was, in Prospect County Council v Cross (1990) 21 NSWLR 601 at 608-9). He seeks injunctive relief to prevent Ms Aaron from having any locked door across the right of footway.
Ms Aaron contends that the garage door does not in the circumstances amount to a real substantial interference with the easement provided that the dominant owners have the means to open the door. She emphasises that reasonable use of the easement in this case is likely to require the door to be opened on infrequent occasions only.
[2]
Determination
Before dealing with the question of whether the garage door constitutes a real substantial interference with the easement, it is necessary to refer in more detail to some other aspects of the evidence adduced at the hearing. Both parties made affidavits that were read, and both were cross-examined.
Mr Boekeman acquired Lot 1 in 2004 and it seems that he has resided there ever since. In cross-examination, he effectively accepted that, prior to 2010 when he carried out the bathroom renovation, he had no occasion to use the easement. Mr Boekeman gave evidence that in 2010 he made requests to Ms Aaron for access to the garage and that on each occasion she opened the garage door for him accordingly. Mr Boekeman agreed that after a while Ms Aaron gave him a remote control device and told him that he could open and close the garage door when he liked. As mentioned earlier, Mr Boekeman retained the device until about early 2016.
Mr Boekeman gave evidence that on occasions he was unable to open the garage door using the device. One such occasion was in about September 2010 when it became necessary to shut-off the cold water to Lot 1. (The hot water can be turned on and off by a valve or tap located "directly outside of the apartment".) Mr Boekeman gave evidence that on that occasion Ms Aaron let him and a plumber into the garage. This may have been through the garage door on the eastern side of the Lot 6 parking area. It is not clear why Mr Boekeman had been unable to open the door on that occasion, or on any other occasion when he experienced difficulty. Based on Ms Aaron's evidence, it seems that any problems were not due to the electricity being switched off, as was suggested by Mr Boekeman.
Mr Boekeman conceded in cross-examination that at no other time did he tell Ms Aaron that he was having trouble with the remote control device, that it did not work, or that it had something wrong with it. He did not ask for it to be replaced. Mr Boekeman also conceded that he did not suggest to Ms Aaron that the garage door itself needed to be serviced. Mr Boekeman seemed to accept that since returning the device to Ms Aaron, he has not asked her for access to the garage. He has of course asked Ms Aaron, via his solicitors, to remove the garage door itself.
A deal of evidence was directed to the need for the gas and water meters to be periodically read for billing purposes. It was common ground that persons attending to read meters need to be let into the building. The front door of the building is a security door that can be opened with a key. There is evidence that the security door can also be released by a resident answering the call of a person who activates the intercom buzzer at the front door. Once inside the building, access to the basement car park can only be gained by opening another door that is kept locked. There is evidence that the same key opens both doors. Only owners or persons authorised by them have (or should have) such a key.
There is a large garage door at the entrance to the basement car park itself. That door is operated by means of a remote control device. Again, only owners or persons authorised by them have (or should have) such a device.
Mr Boekeman produced some documents that showed that on occasions his water or gas meter was not able to be read. This seems to have been the position in relation to Sydney Water for part of 2013, AGL in May 2014, September 2015 and February 2017, and Sydney Water again in late 2018/early 2019. Some of the correspondence from Sydney Water and AGL suggests that the customer is given the option to read the meter and report the information. It appears that in about November 2013 Mr Boekeman availed himself of that option in relation to Sydney Water. It further appears that if a periodic meter reading is missed for some reason, the next bill is based on an estimate, and the account is later adjusted once an actual reading is recorded.
Ms Aaron gave evidence that employees of or contractors to Sydney Water and AGL who come to the building to read the meters either ring the bell (that is, the intercom buzzer) or telephone her on arrival to seek access to the building. She says that if she is available she lets the person into the basement and into her garage where the meters are located. (The car parking space for Lot 5, where the other meters are located, does not have garage doors in front of it.) Ms Aaron says that if she is not available, the person will leave reading cards for each unit in her mailbox, and she will later read the meters herself and send the information to the relevant utility company. I note in passing that Ms Aaron has for some years been the Chairperson and Secretary of the Owners Corporation for the strata scheme. Ms Aaron says that the functions of these roles have largely fallen away since the appointment of a strata managing agent in late 2014.
The evidence is not clear as to how long the system or practice described by Ms Aaron has been in place. However, the evidence concerning Sydney Water in late 2018/early 2019 suggests that it does not always result in the meters being read as intended. Moreover, Ms Aaron herself stated in cross-examination that "if no-one is home the meter readers can't get in…and everybody gets an estimated bill and it gets adjusted the next time they have access to the building". This suggests that the system or practice is not always followed.
Ms Aaron gave evidence that she uses the Lot 6 parking area for the parking of one car (only on the eastern side, due to difficulties she has in manoeuvring a car into and out of the western side). Ms Aaron also uses the parking area to store items for which she has no storage space in her apartment. These items include records she must retain relating to her real estate agent's business, including records containing confidential information concerning her clients. Ms Aaron says that she needs to keep these records in a secure place, and she has no other space available. The combination of the garage doors and a wire fence along the boundary between the Lot 6 and the Lot 4 parking areas creates a secure area.
Ms Aaron denied the suggestion made by Mr Boekeman in his first affidavit that she has sometimes stored boxes against the western wall of the parking area, and within the easement. This matter was not touched upon in cross-examination, and I note that Mr Boekeman did not return to the topic in his affidavit in reply. I accept Ms Aaron's denial.
The resolution of the case depends, of course, upon a consideration of its particular facts. It is nonetheless of some relevance to note what has been said in other cases of alleged infringements of easements by the placing of gates, including lockable gates. In Denton v Phillpot (1990) NSW Conv R 55-453 Young J (as his Honour then was) stated (at 59,030):
Jackson on The Law of Easements and Profits at p 155, makes the observation that, "Even the locking of a gate is not necessarily a substantial interference……However, the courts will easily find that locked gates and similar objects do amount to actionable disturbance of rights of way." This proposition is correct, but it must be made clear that the cases show that ordinarily if there is a good reason for having a gate, such as the reasonable interests of security, and the dominant owner is given a key to the gate, then courts have not been over-anxious to find that there has been a substantial interference.
That part of the judgment in Denton v Phillpot (supra) was referred to by Slattery J in Buckley v Timbury [2013] NSWSC 1009 at [103].
In Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 Brereton J (as his Honour then was), after reviewing the authorities in this area, stated at [81]:
As has been seen, generally speaking, a servient owner may erect a gate across a right of way, provided that it is not a substantial obstruction and is left unlocked [Pettey v Parsons; Gohl v Hender; Powell v Langdon, 139; Deanshaw v Marshall]. In Johnstone v Holdway [1963] 1 QB 601, the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public, but offered the dominant owner the combination for the lock. The dominant owner's suit for a mandatory injunction to remove the spiked chain failed, the Court of Appeal holding that there was no substantial interference with the right of way: the dominant owner had the means of access through the gate.
The easement in the present case permits the owners of the other lots (and persons authorised by them) to pass and re-pass between the relevant lot and the easement area. The location of the easement area, which extends alongside the wall on the western side of the Lot 6 parking area, commencing at the front of the area and extending about 5m until the northern wall is reached, coupled with the presence of the gas and water meters (and associated valves or taps), suggests that the essential purpose of the easement is access to those meters and associated valves or taps rather than a "ius spatiandi" (see Trewin v Felton (supra) at [18]).
Viewed in isolation, the existence of a locked door across the entrance to the easement area can be seen to prevent such access. The evidence discloses, however, that Ms Aaron, the owner of the servient tenement, has always been ready to facilitate access for Mr Boekeman as and when required, either by personally opening the locked garage door for him or by the provision of a remote control device to enable him to open the door himself. (Ms Aaron gave evidence, which I accept, that no other lot owner has ever asked her for access to the easement area.)
I am not satisfied on the evidence that Mr Boekeman, or any person authorised by him, has been prevented from exercising, or significantly delayed or hindered in the exercise of, the right of access conferred by the easement. I accept that there was one occasion, in about September 2010, when Mr Boekeman had trouble getting the remote control device to operate the garage door. Some inconvenience was caused as a result, although the situation that then arose seems to have been quickly remedied by Ms Aaron. There was really no evidence of any substantial inconvenience arising on any other occasion where this type of problem may have arisen. Certainly, Mr Boekeman did not raise with Ms Aaron any issues about the functioning of the device or the garage door more generally, or, I would infer, about any inconvenience suffered by him as a result.
As mentioned already, there have been a few occasions when Mr Boekeman's water or gas meter has not been able to be read. However, it has not been established that these occasions were the result of an inability to access the easement area itself. It may have been because of an inability of the meter reader to gain access to the building in the first place. Furthermore, it seems that at least prior to early 2016 Mr Boekeman could have used the remote control device to read the meters himself and report the readings to the supplier. Once Mr Boekeman returned the device to Ms Aaron he would have needed her assistance to be able to read the meters (or to gain access to the easement area for any other reason permitted under the terms of the easement), but he has not since made any request of Ms Aaron for access to the garage. Again, any inconvenience suffered (even if it was the result of an inability to access the easement area itself) seems to me to be minimal. I do not accept the submission that such inconvenience as was occasioned to Mr Boekeman, whilst he was in possession of the device, itself amounts to a real substantial interference.
Mr Boekeman's position seems to be that his rights under the easement ought not be dependent upon either Ms Aaron "or her mechanical or electronic devices". His return of the remote control device is apparently a reflection of this. It must not be overlooked, however, that the servient owner retains all the rights of an owner save that those rights cannot be exercised in a manner inconsistent with the rights conferred upon the dominant owner by the terms of the grant (see Keefe v Amor (supra) at 347; Zenere v Leate (1980) 1 BPR 97,029 at 9,304). Here, Ms Aaron did not install the garage door but she has for many years retained it. The fact that the garage door is locked when closed serves the legitimate purpose of providing additional security or protection for the chattels, including confidential documents, kept within the parking area.
As noted earlier, the garage door was installed at some time prior to September 2000. I should state that I am not prepared to infer, as urged by counsel for Mr Boekeman, that the garage door was likely not in place at the time the easement was created. It was submitted that the inference was supported by the facts: that the gas and water meters would have been in place at the time of the grant; that the existence of garage doors (and duties in relation to their maintenance) is nowhere reflected in the terms of the easement; and that not all parking areas in the basement have garage doors. The argument is weakened by the fact that neither do the terms of the easement mention the gas or water meters. Further, the lack of uniformity concerning the installation of garage doors seems to me to be equivocal. It is conceivable that some of the initial purchasers (possibly purchasing "off the plan") could have made arrangements for garage doors to be constructed prior to the registration of the strata plan. The evidence is lacking in relation to this matter, and the Court is left to speculate.
In any event, whether the garage door was or was not in place at the time of grant is not in my view decisive. On either view, the terms of the easement permit the dominant owners to pass and repass along the easement at all times, including for the purpose of gaining access to the relevant gas and water meters.
As submitted by Ms Aaron, it is relevant to consider the likely extent of reasonable user of the easement. In the present case, that is likely to require access to the easement on relatively infrequent occasions. The meters need to be read quarterly, it seems, and on occasions the shut-off valves or taps may need to be operated. The evidence suggests that those occasions are likely to be very rare.
In all the circumstances, I am not prepared to conclude that the garage door constitutes a real substantial interference with Mr Boekeman's rights under the easement. The door, when closed, is locked, but it is able to be opened, and the means of achieving that have been readily available to Mr Boekeman. In my opinion, he has failed to establish an actionable infringement of his rights under the easement.
A different conclusion might have been reached had it been shown that Ms Aaron was not willing or able to facilitate convenient access to the easement. On the contrary, the evidence showed that in her dealings with Mr Boekeman (the only lot owner so far to request Ms Aaron to give access to the easement area) Ms Aaron displayed a willingness to enable him to access the area at any time he pleased. Mr Boekeman has chosen not to retain the remote control device she provided to him, and has not since requested access to the area. Whilst there is no direct evidence on the point, I have little doubt that if Mr Boekeman requested access, or the return of the device, Ms Aaron would oblige. It was not suggested to Ms Aaron that the garage door is no longer able to be operated by means of such a device.
For the above reasons, Mr Boekeman's claim for injunctive relief must be rejected. Mr Boekeman also sought a declaration as to the existence of the easement to which he is entitled. However, in circumstances where neither the existence nor the terms of the easement appears to have ever been in dispute, the Court declines to make the declaration sought.
Accordingly, the Court will order that the Summons be dismissed with costs.
[3]
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Decision last updated: 07 August 2019