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[2025] NSWCA 144
respondent. The summons filed on 18 March 2025 was dismissed with costs.
The Court of Appeal did not decide a full appeal on the merits. It decided that the applicants had not shown a sufficient basis for permission to appeal. The judge rejected the idea that courts can change people's legal rights simply to end a dispute, but explained that courts can grant injunctions against threatened legal wrongs and that both sides must exercise easement-related rights reasonably. In the setting of this long-running neighbour dispute, the Court considered the orders sufficiently connected to the practical coordination of access and services work, and not obviously unjust. The summons was dismissed with costs.
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2,398 words · generated 06/10/2026
Breen v Clough [2025] NSWCA 144 concerns a long-running dispute between neighbours in Lugarno about an inclinator serving two adjoining properties, Lot 116, owned by Christine Clough, and Lot 118, owned by Douglas Breen and Tracey Dillon. The inclinator is largely on Lot 116. A number of easements affect the properties. The appeal application focused on Easement A, which includes rights relating to domestic services and access to the inclinator corridor, and Easement B, which benefits Lot 116 [3]-[7].
6 cited instruments linked from this judgment.
The layout mattered. The properties are steep and narrow near the street. Some access routes to the inclinator corridor involve passing over parts of Lot 116 that are not themselves within an easement benefiting Lot 118. The garden gate and the Lot 116 stepdown were two principal ways for the owners of Lot 118 to reach the corridor for services work [5]-[7], [47].
The Court of Appeal described a history of repeated disputes, confrontations and court proceedings about use and maintenance of the inclinator and the parties' easement rights [9], [24]. In 2022, the primary judge imposed an interlocutory regime governing how the parties were to interact about the disputed subject matter. Following further hearings and a final judgment, the primary judge continued that regime, with modifications [9], [14], [24].
Two final orders were challenged. First, the applicants had to disable the audio reception features of a CCTV camera on Lot 118 near Landing 6 by 14 February 2025 and provide affidavit evidence of compliance [14]. The order did not require disabling video recording. Second, for four years, the applicants were restrained from using the garden gate or Lot 116 stepdown to reach the Easement A corridor unless they first gave 14 days' notice of their intention to do so to the appointed independent expert [16]-[17].
The applicants filed a summons seeking leave to appeal on 18 March 2025. They argued that the recording did not substantially interfere with Ms Clough's Easement B rights, that the four-year order impermissibly curtailed their easement rights, and that the evidence did not support a finding that the order was necessary to prevent trespass or nuisance [18]-[20]. The Court refused leave on both challenged orders and dismissed the summons with costs [36], [50]-[51].
The Court began with the threshold for leave to appeal. Ordinarily, leave is not granted unless the proposed appeal raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond a merely arguable point. The judgment cited McEvoy v Wagglens Pty Ltd, Jaycar Pty Limited v Lombardo, Gibson v Drumm and Carolan v AMF Bowling Pty Ltd for that approach [27].
For the CCTV order, the Court accepted there was “considerable force” in the applicants' submission that the interference with Easement B might not be substantial [31]. But the question was factual and contextual. The primary judge had a much fuller understanding of the parties' history and had seen them over several years [25], [32]. Against that background, recording conversations at a location where Ms Clough and her guests might pause to decide how to access her property could be viewed as provocative and as imposing a greater cost than it would in a less hostile setting [33]. The Court also noted that the order formed part of a broader framework addressing an unusually entrenched dispute, and was not obviously unjust [35]. It therefore refused leave on that ground [36].
The Court did not decide whether the recording was a nuisance. The primary judge had described nuisance as “strongly arguable”, but it was not argued in the relevant way before him or on appeal [15], [34]. Nor did the Court consider whether the recording breached the Surveillance Devices Act 2007 (NSW). The allegation had not been supported with evidence about whether recorded material amounted to a “private conversation” or whether a statutory exclusion applied. The Court held that the argument was not open on appeal in those circumstances [22].
The access order raised a more general question about the limits of judicial power. The Court corrected the suggestion that a judge may simply adjust parties' legal rights in order to quieten a conflict. “The role of any court is to determine the legal rights of the parties, not to make them” [38]. That statement sets a limit: the desirability of peace between neighbours does not itself authorise a court to remake property rights.
But the Court distinguished altering rights from restraining threatened legal wrongs. Section 66(1) of the Supreme Court Act 1970 (NSW) allows the Supreme Court to restrain a threatened or apprehended breach of contract or other injury [39]. The Court also considered that the access order could be understood as regulating the reasonable exercise of existing easement-related rights, rather than extinguishing them. It drew on Hare v van Brugge, which states that both the owner of the burdened land and the person benefiting from an easement must exercise restraint and must not unreasonably interfere with the other's rights [41]-[42].
The practical setting supported that reading. Access for domestic-services work and use of the inclinator needed coordination for safety reasons. The primary judge was not satisfied that the parties could coordinate those activities themselves at that time. The Court considered that reasonable exercise of the rights required notice. The 14-day notice period and four-year duration involved “questions of judgment and degree”, and no relevant appellate error had been demonstrated [47].
The Court did not determine every argument about the proper scope of an injunction for trespass or nuisance. The applicants said an injunction should target the wrongful conduct itself, rather than restrict exercise of their easement-related rights. The Court found it unnecessary to resolve that submission because it considered the order justified on the alternative basis of requiring reasonable exercise and coordination [45]-[47].
The judgment's central clarification is about the difference between changing rights and regulating conduct under existing rights. Before this decision, the primary judge's explanation in the final judgment suggested that a court could “modify a party's strict legal rights” to reduce conflict [17]. The Court of Appeal said that proposition was not correct if it meant that courts may alter legal rights simply to quell a dispute [38].
That clarification did not mean the access order necessarily had to fall. The Court identified two legal ideas that could support relief without treating the court as a source of newly created property rights. First, s 66(1) permits injunctions against threatened or apprehended legal injury [39]. Second, easement rights must be exercised reasonably by both the dominant owner and the servient owner. On the Court's reading, the notice requirement could give practical effect to that obligation in the unusual circumstances of this case [41]-[42], [47].
The judgment also confirmed that limited-duration final injunctions are not categorically unavailable. It referred to English decisions concerning threatened trespass and “car cruising” as examples in which such orders had been made. The Court stressed that those circumstances were “obviously very different” from this neighbour dispute, but considered them illustrative of the possibility of a time-limited final injunction in an appropriate case [40]. It did not adopt the facts or reasoning of those cases as a general rule that every neighbour conflict warrants such relief.
The practical result in this case is that the challenged orders remained in force after leave was refused. That procedural outcome should not be confused with a full appellate determination of every point on the merits. The Court considered whether the proposed appeal met the leave threshold, and concluded that it did not [18], [36], [50]-[51]. Its reasoning nevertheless explains why it regarded the access order as capable of operating within a framework of reasonable easement use, rather than as an impermissible judicial rewriting of the parties' rights.
At [38], Ball JA said: “The role of any court is to determine the legal rights of the parties, not to make them.” In plain English, a court cannot invent or change property rights merely because doing so might make an ongoing dispute easier to manage. The court must identify the rights that law gives the parties.
At [39], the Court pointed to s 66(1) of the Supreme Court Act 1970 (NSW), which authorises an injunction to restrain a threatened or apprehended breach of contract or other injury. In practical terms, this is a distinct power: a court may restrain conduct that threatens a legal wrong, even though that does not give the court a general power to rewrite the parties' underlying rights.
At [41], the Court quoted Hare v van Brugge on the reciprocal character of reasonable use. The dominant owner cannot exercise easement rights unreasonably, and the servient owner cannot use ownership of the burdened land unreasonably to interfere with the easement. The easement does not require either party to abandon their rights altogether. The point is that both sides' use must be accommodated within the legal rights each holds.
At [42], the Court said New Order (7) should be viewed as part of a framework giving content to the applicants' obligations to act reasonably. In plain English, the Court did not read the notice rule in isolation as a four-year removal of access rights. It saw it as a process for organising how particular access rights would be exercised while the parties' activities were difficult to coordinate.
At [47], the Court explained that services work and use of the inclinator needed coordination, and that reasonable notice was required. It treated the choice of four years and 14 days as matters of judgment and degree, not as periods for which it had identified an appellate error. That conclusion was limited to this case and record.
The judgment is most directly relevant to disputes where neighbours hold reciprocal or overlapping rights concerning land, an easement, access route or shared infrastructure, and practical use of those rights produces recurring conflict. Here, the inclinator, steep site, narrow easement corridor and alternative access routes created particular coordination problems [3]-[7], [47]. The Court repeatedly emphasised that the matter arose in “very particular circumstances” [35], [50].
It may also be relevant where a party argues that a court has impermissibly altered a property right by imposing a notice requirement or other process. The analysis to examine is whether the order truly changes the underlying right, or instead restrains threatened legal injury or gives practical content to a duty to exercise an easement reasonably [38]-[42]. That characterisation was central to the Court's treatment of New Order (7).
The case also highlights the importance of evidence and procedural preservation where a party seeks to rely on a statutory prohibition on appeal. Ms Clough's proposed Surveillance Devices Act argument was not considered because the allegation had not been supported by evidence addressing the relevant statutory questions at first instance [22]. The judgment does not determine the Act's application to the camera or resolve what facts would establish a breach.
The decision should not be read as establishing a universal four-year notice rule, or as establishing that sound recording near an easement always constitutes substantial interference or nuisance. The Court's assessment turned on the history, context and orders in this particular case [33]-[35], [47], [50].
The supplied judgment contains no later judicial treatment of Breen v Clough [2025] NSWCA 144. It was decided on 1 July 2025, and the materials provided do not identify any later cases that applied, distinguished, followed or criticised it. No conclusion about subsequent treatment can therefore be drawn from this source.
Within the judgment itself, the Court relied on earlier authorities for distinct propositions. The leave threshold was supported by McEvoy, Jaycar, Gibson and Carolan [27]. Burke v Frasers Lorne Pty Limited was cited for the applicants' submission about substantial interference with an easement, but the Court did not resolve that point as a general question [30]-[35]. Hare v van Brugge was used to explain reciprocal obligations of reasonable use [41]-[42]. House v The King informed the Court's consideration of whether the primary judge had made a reviewable error in selecting the periods [47].
The Court also referred to UK decisions about limited-period final injunctions, including Wolverhampton City Council and others v London Gypsies and Travellers and others, Sharif v Birmingham City Council, and two decisions titled Wolverhampton City Council v Persons Unknown [40]. It presented those cases as illustrations, while expressly acknowledging that their facts were very different. The judgment does not say that those authorities control the result of a dispute like this one.
Several points were left unresolved. First, the Court did not decide whether audio recording at Landing 6 was a nuisance. The issue was not argued on appeal, and the primary judge's observation that nuisance was “strongly arguable” was not a final appellate determination [15], [34]-[35].
Second, the Court did not decide whether the camera's operation breached the Surveillance Devices Act 2007 (NSW). It held that Ms Clough could not advance that argument on appeal without an adequate evidentiary basis before the primary judge, including evidence relevant to the statutory concept of a private conversation and any applicable exclusion [22]. The decision therefore does not resolve the statutory merits.
Third, the Court did not resolve whether an injunction restraining trespass or nuisance should be framed directly against the wrongful conduct, rather than by limiting the exercise of a right where that limitation may prevent the wrong. It found that question unnecessary because it considered the order supportable as a framework for reasonable conduct and coordination [45]-[47].
Fourth, the Court did not establish a general test for when a limited-period final injunction should be made in a neighbour or easement dispute. Its conclusion was closely tied to the factual history, the primary judge's extensive involvement, the practical layout and the need to coordinate activities [24]-[26], [40], [47]. Nor did it decide in advance how the parties' rights would operate if an urgent services issue arose. The Court said that the orders did not cover every possibility and contemplated that unexpected events might require further court involvement if the parties could not resolve them [48]-[49].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Breen v Clough [2025] NSWCA 144
Hearing dates: 3 June 2025
Date of orders: 1 July 2025
Decision date: 01 July 2025
Before: Leeming JA at [1]
Ball JA at [2]
Free JA at [52]
Decision: Summons filed 18 March 2025 be dismissed with costs
Catchwords: LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period
APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused
Legislation Cited: Supreme Court Act 1970 (NSW), ss 66, 101
Surveillance Devices Act 2007 (NSW)
Cases Cited: Breen v Clough [2017] NSWSC 1681
Burke v Frasers Lorne Pty Limited [2008] NSWSC 988
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Clough v Breen & Anor [2022] NSWSC 1026
Clough v Breen (No 4) [2023] NSWSC 1155; (2023) 413 ALR 248
Clough v Breen (No. 6) [2024] NSWSC 1634
Gibson v Drumm [2016] NSWCA 206
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Sharif v Birmingham City Council [2020] EWCA Civ 1488
Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2024] AC 983; [2023] UKSC 47
Wolverhampton City Council v Persons Unknown [2020] EWHC 759 (QB)
Wolverhampton City Council v Persons Unknown [2024] EWHC 2273 (KB)
Texts Cited: W Covell, K Lupton, L Parsons, Covell & Lupton Principles of Remedies (8th ed,2022, LexisNexis)
ICF Spry, The Principles of Equitable Remedies (9th ed, 2014, Thomson Reuters)
Category: Principal judgment
Parties: Douglas Martin Breen (First Applicant)
Tracey Jane Dillon (Second Applicant)
Christine May Clough (Respondent)
Representation: Counsel:
M McGirr (Applicants)
DP O’Connor (Respondent)
Solicitors:
The Legal Costs Consultants (Applicants)
Redman Hale Simpson (Respondent)
File Number(s): 2025/6974
Publication restriction: Nil
LEEMING JA: I agree with Ball JA.
BALL JA: This is the latest chapter in a long running and bitter dispute between neighbours principally concerning the use and maintenance of an inclinator that services both properties. Following the approach adopted by the primary judge, it will be convenient to refer to the property owned by the respondent, Ms Christine Clough, as Lot 116 and the property owned by the applicants, Mr Douglas Breen and his wife, Ms Tracey Dillon, as Lot 118. Ms Clough occupies Lot 116 with her husband, Mr Michael Rose.
Both properties, which are in the Sydney suburb of Lugarno, slope down from the street to the shoreline of the Georges River near where the houses built on the two properties are located. Starting from the street, both lots are narrow (approximately 5 metres wide) and the slope is very steep. As the properties approach the Georges River they widen and the terrain flattens. The inclinator is built largely on Lot 116. Numerous easements exist over both properties benefitting the other, including Easement A, which is the easement that gives access to the inclinator. Easement A also gives the owners of Lot 118 a right of access to the area of the easement (referred to by the primary judge as “the inclinator corridor”) to provide “domestic services”.
The inclinator has six landings. Landing 6 is located at the top of the driveway of Lot 116, which rises gently from the street. It is the obvious landing from which to board the inclinator from the street. Landing 5, the next landing down, is located within the garage of Lot 118, which is beneath the garage belonging to Lot 116 and is part of the same structure. The garage belonging to Lot 118 is accessed by a driveway that slopes down from the street. It is also possible to enter that garage through an external door with street access. Landing 5 is separated from the inclinator corridor by a sliding gate that can be locked from either side.
Beneath the two garages is a storage area that includes a veranda, from which access can be obtained to separate storage areas for each of the two lots. It is possible to obtain access to the storage level via a spiral staircase the entrance to which is through a door next to the external door to the garage belonging to Lot 118. The storage level also contains an access point for the inclinator, but the inclinator cannot be summoned from that level, although the inclinator can be manually stopped there. The storage area can also be accessed from below using a single path that winds through Lot 118 and is the subject of an easement (Easement B) in favour of Lot 116. At a point approximately 15 metres down from the storage area along the path, it is possible either to step across the boundary onto Lot 116 or to step the other way on to formed stone stairs and to continue the descent to the houses on both lots. In the primary judge’s principal judgment, his Honour refers to the area that permits access to Lot 116 at that point as the “Lot 116 stepdown”. There is a pathway on Lot 116 from that point to the house on Lot 116. That pathway and the Lot 116 stepdown are not the subject of an easement in favour of Lot 118, except to the extent that Easement A traverses that area.
The next landing down, Landing 4, is approximately 70 metres along the boundary of the two properties from the street. It can be accessed using the inclinator or the pathway on Lot 118 that is the subject of Easement B. Easement B terminates at Landing 4. Both residences can be accessed from that landing using staircases on their respective properties. Landing 3 is near an entrance to the residence on Lot 118. Landing 2 is near the front entrance to the residence on Lot 118. It is only accessible to the owners of that lot. Landing 1 is a small landing between both residences. At that landing, the inclinator gate opens to Lot 118, but the call button was located next to the front entrance to the house on Lot 116, although the call button has been moved since the primary judge delivered his principal judgment.
It is not necessary to set out the history of the dispute or the numerous issues it has spawned over time. They are summarised in the primary judge’s principal judgment: Clough v Breen *(*No 4) [2023] NSWSC 1155; (2023) 413 ALR 248 (the Principal Judgment or PJ). That judgment dealt with claims advanced by Ms Clough for damages for trespass and nuisance arising out of various incidents that had occurred between 21 May 2018 and 23 December 2021 and for declaratory relief concerning the parties’ respective rights arising from the easements, particularly Easement A. It also dealt with a cross-claim filed by Mr Breen and Ms Dillon seeking orders (1) for the replacement or maintenance of the inclinator, or alternatively for the appointment of an independent expert to assess the inclinator for that purpose; and (2) for access to the inclinator corridor through the garden gate. This last order had been sought primarily because it was a way of obtaining access to the inclinator corridor to install or to maintain services to their property using that corridor, which given the topography and the narrowness of the easement was difficult to do without entering part of Ms Clough’s property that was not the subject of an easement in favour of Lot 118.
The current application before this Court has its genesis in 2022 when the primary judge, following a hearing that occurred over 7 days between 9 May 2022 and 11 July 2022, imposed an interlocutory regime pending determination of the issues then before the Court: see Clough v Breen & Anor [2022] NSWSC 1026 (the Interlocutory Judgment or IJ). The interlocutory regime was imposed following “many personal confrontations between the occupants of Lots 116 and 118 over almost every aspect of the use of the inclinator”, which often resulted in the police being called and, on occasions, applications for apprehended violence orders: IJ[12]. Ignoring the markups, the orders made by the primary judge at that time are set out in Annexure A (95.6 KB, pdf) to this judgment.
The primary judge delivered the Principal Judgment on 22 September 2023 following a hearing that occupied a total of 15 days between 9 May 2022 and 3 July 2023. One of the questions dealt with in that judgment was whether and in what circumstances Mr Breen and Ms Dillon could go onto Lot 118 to obtain access to the inclinator corridor. Part 2 of Easement A (the easement for domestic services) relevantly provides:
“1. The body having the benefit of this easement may:
(a) Provide domestic services supplied by that body through each lot burdened, but only with the site of this easement, and
(b) Do anything reasonably necessary for that purpose, including:
i. Entering the lot burdened, and
ii. Taking anything on to the lot burdened, and
iii. Carrying out work, such as construction, placing, repairing or maintaining pipes, poles, wires, cable, conduits, structures and equipment.
- In exercising those powers, the body having the benefit of this easement must:
(a) Ensure all work is done properly, and
(b) Cause as little inconvenience as is practicable to the owners and any occupier of the lot burdened, and
(c) Cause as little damage as practicable to the lot burdened and any improvement on it, and
(d) Restore the lot burdened as nearly as is practicable to its former condition, and
(e) Make good any collateral damage.”
“The activities described by the words in clause 1(b), construed in their ordinary meaning, are broad enough to encompass a range of activity on Lot 116 outside the site of the easement. But the critical limiting factor is always that the activity in question must be ’reasonably necessary’ for the clause 1(a) purpose. This limiting factor is designed to prevent unreasonable impacts upon the owner of Lot 116 through activity outside the site of the easement.”
“(2) Easement A - Right of Access. Declare that upon the true construction of the s 88B instrument and in the circumstances required by the physical topography of the site of Easement A the rights of access conferred upon the Lot 118 owner by Easement A entitle the owners of Lot 118 to enter the lot burdened, Lot 116, outside the site of Easement A but only to the extent reasonably necessary for the purpose of the owner of Lot 118 passing across Lot 116 to get to or from Lot 118 within the site of easement A”
“(5) Continuation of the Interim Orders. Notwithstanding the making of declarations (2) and (3) in these orders as to the rights of access available to Mr Breen and Ms Dillon under Easement A, by reason of the Court’s findings about the conduct of the parties the interim orders are continued without any variation by these orders until an opportunity has been afforded to each of the parties to put submissions in relation to the matters set out in direction (6) below, and for the avoidance of doubt, until that time Mr Breen and Ms Dillon are restrained until further order from:
(a) using the gate between Landing 3 and Landing 4 to gain access to any part of Lot 116, and
(b) accessing the inclinator call switch situated wholly on Lot 116 at Landing 1,
(6) The legal representatives of the parties are directed upon receipt of the Court’s reasons for decision for these orders to confer with one another and with the Associate to Slattery J to fix a convenient date and time for submissions in relation to the following matters:
(a) the continuation of the whole or part of the interim injunctions,
(b) the costs of the proceedings so far and whether final costs order should wait determination of the remaining issues,
(c) whether based on the Court’s findings and reasons including in the decision providing for the interim orders or in the CCTV decision either party should be permitted to amend their pleadings to claim permanent injunctions including mandatory injunctions against the other party,
(d) any variation to the form of the declarations made in these orders based upon the Court’s findings and reasons,
(e) what consequential orders should be made in relation to the CCTV camera the subject of the Court’s judgement given on 19 December 2022; and
(f) whether any rights to damages arise in either party by reason of the Court’s findings and reasons or whether any further declarations should be made in relation to the historical incidents occurring between the parties as determined by the Court.”
“The Court‑
(1) …
(2) ORDERS that by Friday, 14 February 2025 the defendants shall
(a) disable all audio reception features of the CCTV camera presently located on Lot 118 near Landing 6, and
(b) provide affidavit evidence for the plaintiff and the Court of their compliance with subparagraph (a).”
“12 The CCTV camera in question is on Ms Dillon’s and Mr Breen’s own land outside the easement over the inclinator. Ms Dillon and Mr Breen are generally free to use their own land as they please. It is not necessary for the Court to decide whether sound recording by the owners of Lot 118 at Landing 6 causes Ms Clough a nuisance in trying to enter her own land, although that is strongly arguable under the general law of nuisance. But sound recording by the Landing 6 CCTV camera should be limited for another reason.
13 The area in question at Landing 6 is a place where Ms Clough should be able to pause and decide not just how to access her own Lot 116, but also to exercise her rights of way through easement B over Lot 118. Mr Breen and Ms Dillon are not free to impose a cost upon or intimidate another person from using an easement over their land: Prospect County Council v Cross (1990) 21 NSWLR 601 at 610 per Bryson J. Sound recording in this area imposes a cost on Ms Clough and her guests as it would deter them from pausing and gathering in this area to exercise their options to use easement B.”
In addition, as is apparent from annexure A, by order (4) of the final orders his Honour substituted a new order (New Order ***(***7)) for order (7) of the interlocutory orders. That order restrains Mr Breen and Ms Dillon for a period of four years from using the garden gate or the Lot 116 stepdown to access the area of Easement A without first giving 14 days’ notice of their intention to do so to the independent expert appointed in accordance with the orders.
His Honour at FJ[29] gave the following reasons for making that order:
“In moulding final relief, the Court can modify a party’s strict legal rights to prevent conflict with another party, which might lead to breaches of the peace, a trespass, or nuisance. But the Court should not ordinarily permanently modify parties rights. Here, the Court has reached the view that some medium-term modification to Mr Breen’s and Ms Dillon’s rights is required for the sake of avoiding breaches of the peace or the commission of intentional torts. In the Court’s view, a further “cooling off” period of four years is required to provide for a notice procedure before Mr Breen and Ms Dillon can exercise their rights to go onto the inclinator corridor by either of these usual means of access, through the Landing 4/Landing 5 gate or via the Lot 116 stepdown.”
By a summons filed on 18 March 2025, Mr Breen and Ms Dillon seek leave to appeal against FJ Order (2) and New Order (7). Leave to appeal is required under s 101 of the Supreme Court Act 1970 (NSW) because the amount in issue does not exceed the $100,000 threshold set out in s 101(2)(r). The application for leave to appeal was heard concurrently with the appeal itself.
By their draft notice of appeal, Mr Breen and Ms Dillon advance three grounds of appeal:
“1 The primary judge erred in fact and law at [J13] in finding that the recording of sound by a CCTV Camera mounted by the appellants on the appellants’ private property (being Lot 118) imposes a cost on Ms Clough and her guests when using Easement B over Lot 118, and thereby constituting an interference (or a substantial interference) with the enjoyment of rights created by Easement B.
2 The primary judge erred in law at [J29] and Order 4 of the orders made in Clough v Breen *(*No 6) in restricting or curtailing, for a period of four years commencing from 14 February 2025, the rights of the appellants granted under the terms of Easement A (as construed by Clough v Breen *(*No 4), on the grounds that such an order, granted as final relief, has the impermissible effect of modifying or temporarily extinguishing the capacity of the appellants to enjoy their rights in respect of the easement area established by the easement.
3 Further or in the alternative to [2], the primary judge erred in law at [J29] and Order 4 in determining that Order 4 was necessary to avoid breaches of the peace or the commission of intention [sic] torts, as that finding was not supported by the evidence.”
As is apparent, ground 1 relates to FJ Order (2). Grounds 2 and 3 relate to New Order (7).
By a proposed notice of contention, Ms Clough seeks to support FJ Order (2) either on the basis that the CCTV camera was being used to record conversations in breach of the Surveillance Devices Act 2007 (NSW) or on the basis that its use for that purpose was a nuisance. The second of these issues was not referred to in Ms Clough’s written submissions in relation to the hearing that led to the Final Orders. However, it was raised by the primary judge in the Final Judgment. More will be said about it later in this judgment.
The first issue was not addressed by the primary judge. What Ms Clough said in her written submissions to the primary judge on the issue was that “[t]he plaintiff is concerned that the CCTV camera mounted on her driveway is recording conversations that have nothing to do with the defendants, apparently in breach of section 7(1) of the Surveillance Devices Act (NSW) 2007”. In oral submissions, Mr O’Connor, who appeared for Ms Clough, said that “[i]t seems to be at least prima facie a breach of section 7(1) of the Surveillance Devices Act”. No evidence was advanced in support of the allegation that there had been a breach of the Act, including evidence going to whether anything recorded amounted to a ‘private conversation’ and whether the exclusion in s 7(2)(c) applied. In circumstances where no allegation of actual breach was made in connection with the hearing before the primary judge, it is not open to Ms Clough to raise the issue on appeal. Accordingly, nothing more needs to be said about this aspect of the appeal.
Before addressing the issues raised by the appeal, it is helpful to bear several points in mind.
First, the primary judge was faced with an extraordinary set of circumstances. As his Honour observed, almost every aspect of the use of the inclinator and the exercise of Mr Breen and Ms Dillon’s rights under Easement A has resulted in disputes, which have often involved aggressive behaviour particularly by Mr Breen but also by Mr Rose. Those disputes have consumed a vast amount of resources, not only of the parties but also of the public given the number of occasions the police had been called and the number of occasions the parties have been before the courts. No doubt, the disputes have also taken a significant emotional toll on the parties and have defined their lives in a substantial way. It is in that context that his Honour took the unusual course of conducting an extensive interlocutory hearing that resulted in a detailed regime governing the way in which the parties were to interact in relation to the subject-matter of their dispute. No doubt, that interlocutory regime served an immediate purpose of reducing if not eliminating the disputes between the parties pending a final determination of the case. However, as his Honour recognised, it also set out a detailed framework for the reasonable exercise of the parties’ rights in the unique circumstances that have arisen. It was for that reason that his Honour thought that it was appropriate that the interlocutory regime, with appropriate modifications, continue despite the final determination of the issues in the case. Neither party suggested as a matter of principle that that course was inappropriate.
Second, over a period of several years his Honour has gained an intimate knowledge of the relevant facts. He has had the advantage of seeing each of the protagonists and has been in a position to form views not only on their credit but on the way they are likely to interact with one another. His Honour has also had the benefit of two views, which were no doubt of great assistance in forming opinions on what was practical and necessary given the difficult topography of the lots.
Third, although the orders made by the primary judge have gone a long way in reducing the disputes between the parties, they have not quelled them altogether. The Court was informed that there is currently an application before the primary judge concerning several CCTV cameras installed by Mr Breen and Ms Dillon that it is alleged are being used to record sound as well as video. Ms Clough does not object to the cameras insofar as they are used to record video. Indeed, she has installed a number of her own CCTV cameras that overlook parts of the inclinator corridor and surrounding areas. However, Ms Clough does object to the cameras insofar as they are used to record sound.
Fourth, as I have explained, Mr Breen and Ms Dillon require leave to appeal. Normally, the Court will not grant leave to appeal unless the appeal raises an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: [2021] NSWCA 104 at [35] per Bell P and Payne JA; [2011] NSWCA 284 at [46] per Campbell JA (Young and Meagher JJA agreeing); [2016] NSWCA 206 at [27] per Beazley P and Simpson JA; [1995] NSWCA 69 per Kirby P at 5.
So far as FJ Order (2) is concerned, it is common ground that the camera the subject of that order is not one of the cameras that is the subject of the current application before the primary judge.
Mr Breen and Ms Dillon take issue with the reasoning of the primary judge on the basis that for the court to grant relief in relation to the interference with an easement, the interference must be substantial: see Burke v Frasers Lorne Pty Limited [2008] NSWSC 988 at [25] per Brereton J, and the cases cited there. Here, it could not be said that any interference with Ms Clough’s rights in respect of Easement B using sound recording was substantial. At most, the cost identified by the primary judge was slight.
There is considerable force in the applicants’ submissions. However, I have concluded that they do not justify a grant of leave in this case.
First, the question of what amounts to a substantial interference is a question of fact which, for the reasons already mentioned, the primary judge was in a better position than this Court to determine.
Second, the question whether the recording of conversations of persons while they are deciding whether to use Easement B to access Lot 116 or not imposes a substantial cost on them needs to be considered in context and not in the abstract. The context is one in which over a long period of time the parties have been in a bitter dispute where often minor incidents have led to substantial confrontations. In that context, the recording of conversations which appears to serve no obvious utility is likely fairly to be seen as a provocative act that may be seen as imposing a greater cost than in other circumstances it would.
Third, given the conclusions his Honour reached in relation to Easement B, he did not deal with the question whether the use of the CCTV camera to record sound was a nuisance because it interfered with Ms Clough’s use of her own land and, in particular, her use of the inclinator, although his Honour expressed the view that it was “strongly arguable” that it was (FJ[12]). Indeed, the point was not argued before his Honour and consequently was not a point argued on the appeal. In the normal course of events, if leave to appeal were granted and the appeal succeeded, the order would be set aside and that would be the end of the matter. But in this case, although the orders are final, order (8) of the orders made as a consequence of the Final Judgment “[grants] liberty to apply in relation to the implementation of these orders” and it appears that in exercise of that liberty the primary judge is dealing with other issues concerning the use of CCTV cameras to record sound. In those circumstances, if Mr Breen and Ms Dillon succeeded in relation to ground 1, the appropriate order may be to refer the matter back to the primary judge. That would be an undesirable result, particularly in the circumstances of this case.
Both these grounds relate to New Order (7). It is convenient to deal with them together.
Insofar as FJ[29] suggests that it is open to a court to adjust the legal rights of parties in order to quell a dispute, the passage is not correct, however worthy the objective may be and however slight the adjustment. The role of any court is to determine the legal rights of the parties, not to make them.
However, as the primary judge points out, the court does have power to restrain threatened or apprehended legal wrongs. Section 66(1) of the Supreme Court Act 1970 (NSW) provides: “The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.”. See also W Covell, K Lupton & L Parsons, Covell & Lupton Principles of Remedies (8th ed, 2022, LexisNexis) at [8.18]; ICF Spry, The Principles of Equitable Remedies (9th ed, 2014, Thomson Reuters) at 391. At least one of the things his Honour appears to be saying in FJ[29] is that the relationship between the parties and the past conduct of Mr Breen and Ms Dillon are such that at least for a period of time there is a sufficient risk that, absent some restraint, Mr Breen and Ms Dillon (given the history, most likely Mr Breen) will commit a trespass or nuisance by abusing the implied right that his Honour found they had to go onto Ms Clough’s land for the purposes of exercising the rights they have under cl 1(a) of Part 2 of Easement A.
The order is for a fixed period of time. Final orders of that type are unusual. However, they are not unknown. They have been granted in England in relation to conduct of the Gypsy and Traveller community to restrain threatened trespasses: see Wolverhampton City Council and others v London Gypsies and Traveller**s and others [2024] AC 983; [2023] UKSC 47. They have also been granted to restrain “car cruising” (described by Bean LJ in Sharif v Birmingham City Council [2020] EWCA Civ 1488 at [1], as a congregation of the drivers of two or more motor vehicles to cause excessive noise, danger to other road users, damage or risk of damage to private property, litter, or any nuisance to another person not participating in the street cruise): see Wolverhampton City Council v Persons Unknown [2020] EWHC 759 (QB); Wolverhampton City Council v Persons Unknown [2024] EWHC 2273 (KB). Although the facts of those cases are obviously very different from those of the present case, they nonetheless illustrate that in certain cases it may be appropriate to grant a final injunction for a limited period of time to restrain an apprehended or threatened trespass or nuisance.
Another possible explanation for New Order (7) arises from the fact that, as the primary judge found, Mr Breen and Ms Dillon’s rights to enter Ms Clough’s land are qualified by a requirement of reasonable necessity. Moreover, each party must act reasonably in exercising their rights in relation to the easement. As this Court explained in (2013) 84 NSWLR 41; [2013] NSWCA 74 at [25] per Barrett JA (Macfarlan JA and Tobias AJA agreeing):
“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.”
New Order (7) gives content to those obligations. Although the primary judge does not expressly refer in FJ[29] to that as a basis for making the order, as I have explained, one of the purposes of the interlocutory orders was to provide a reasonable framework for the exercise of the parties’ rights and the discharge of their obligations in relation to the easements, and Easement A in particular. The purpose of continuing those orders was to continue that framework. Looked at in that way, New Order (7) should not be taken in isolation but should be seen as part of a framework that gives content to Mr Breen and Ms Dillon’s obligations to act reasonably. That was the basis on which the interlocutory orders were made and were continued in an amended form as final orders.
Mr Breen and Ms Dillon take issue with New Order (7) to the extent that it is sought to be justified on the basis that it is designed to restrain a threatened trespass or nuisance. They point out that in the Principal Judgment, the primary judge considered various incidents which were alleged to be either a trespass or nuisance on their part. His Honour found that in some cases the allegation was made out. However, none of those concerned use of the garden gate or the Lot 116 stepdown. Ms Clough did allege that Mr Breen committed a trespass on 21 May 2018 when he called electricians who used her property to obtain access to the inclinator corridor to fix what was claimed to be a power outage on Lot 118, without notifying Ms Clough. That led to an acrimonious series of confrontations. In relation to this incident, the primary judge said (at PJ[83]):
“Whatever Mr Breen did on this occasion apart from the initial failure to give notice, he was so goaded by Ms Clough’s aggravating conduct that it is impossible fairly to isolate his conduct as constituting a nuisance or trespass to her, without seeing it as equally her own responsibility.”
“The essential allegation in relation to this incident was that Mr Breen, or various trades people stepped onto Ms Clough’s land outside Easement A and committed a trespass. The Court will not make any findings about whether a trespass was committed on this occasion. Mr Rose’s conduct was so aggressive that day that anything Mr Breen did, or the trades people did, should be characterised as a product of the chaos created in part by Ms Clough and Mr Rose. Once again, these senior adults were behaving in a way that they would rightly condemn in children.”
In addition, Mr Breen and Ms Dillon submit that any injunction to restrain a threatened trespass or nuisance should be directed at restraining the conduct that would amount to a trespass or nuisance. It should not be directed at restraining the exercise of a proprietary right that they have on the basis that restraining the exercise of that right is likely to have the consequence of preventing a trespass or nuisance.
In my opinion, it is unnecessary to resolve these issues, since, even if Mr Breen and Ms Dillon are correct, it does not alter the fact that the order is justified on the second basis that I have referred to.
The garden gate and the Lot 116 stepdown are the two principal means by which Mr Breen and Ms Dillon can obtain access to the inclinator corridor. From a practical point of view, they only need access to the inclinator corridor to install and to maintain domestic services to their house using that corridor. Use of the inclinator and the installation and maintenance of services using the inclinator corridor need to be coordinated because use of the inclinator at a time when the corridor is being used for other purposes raises safety considerations: see PJ[81]. It is plain, therefore, that the obligation to act reasonably in exercising their rights under the easement in relation to domestic services required Mr Breen and Ms Dillon to give reasonable notice to Ms Clough of their intention to exercise those rights. Similarly, Ms Clough must act reasonably in giving that access. His Honour was plainly not satisfied that the parties are currently capable of coordinating the two types of activity (use of the inclinator and installation or maintenance of domestic services) themselves, although it is be inferred that his Honour thought that there was a reasonable possibility that given a reasonable amount of time, which his Honour considered to be four years, the position would change. It was for those reasons that his Honour required notice to be given of an intention to exercise a right of access to the independent expert and chose a period of four years for that requirement to operate. Similarly, accepting that the requirement to act reasonably in exercising their rights required Mr Breen and Ms Dillon to give prior notice of their use of the inclinator corridor for the reason stated, the question arose how much notice was required. His Honour chose a period of 14 days. The choice of four years and of 14 days involved questions of judgment and degree. No error has been demonstrated in the periods of time chosen by the primary judge, let alone error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40.
In oral submissions, Mr Cheshire SC, who appeared for Mr Breen and Ms Dillon, submitted that New Order (7) failed to take account of situations in which urgent access may be required – for example, if the inclinator car broke down and someone was trapped in it. Two points, however, may be made about this submission. First, it seems clear that New Order (7) is not concerned with the use of the inclinator. The final orders contain detailed provisions relating to the use of the inclinator and its maintenance, including what is to happen if it malfunctions (see order (5)). Properly understood, New Order (7) is only concerned with use of the garden gate and the Lot 116 stepdown to gain access to the inclinator corridor for the purpose of installing or maintaining domestic services.
It follows that in my opinion the summons filed on 18 March 2025 should be dismissed with costs.
FREE JA: I agree with Ball JA.
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Annexure A attached
Breen
Clough [2025] NSWCA 144
(2023) 413 ALR 248
(2013) 84 NSWLR 41
(1936) 55 CLR 499
(1990) 21 NSWLR 601
The summons filed on 18 March 2025 was dismissed with costs.
In 2015, Ms Clough, in circumstances described in the judgment of Darke J in Breen v Clough [2017] NSWSC 1681, erected fencing on the boundary between Lot 118 and Lot 116 from a point below the garage complex and Lot 116 stepdown down to the residences near the water’s edge. The fence contains several gates along its length, which are locked. One gate, referred to by the primary judge as “the garden gate”, is located approximately 30 metres down from the storage level and 40 metres up from Landing 4. At that point there is about a metre separating the boundary between the two properties and the inclinator corridor that is the subject of Easement A. Access through that gate and across Lot 116 to the inclinator corridor to install and maintain services to the house on Lot 118 has been one of the many issues between the parties, as has access to the inclinator corridor from the Lot 116 stepdown.
Against that background, it is possible to turn to the issues raised by the draft notice of appeal.
Fourth, FJ Order 2 is part of a framework designed to solve what has become an intractable dispute. Given the unique circumstances, the order does not raise an issue of principle. Nor does it raise a matter of public importance. It is not obviously unjust. At most, it places a trivial limitation on the rights of Mr Breen and Ms Dillon that may in any event be justified on other grounds.
For those reasons, leave to appeal in relation to ground 1 should be refused.
Second, it is possible to envisage circumstances in which Mr Breen and Ms Dillon may require urgent access to the inclinator corridor to restore services to their house. The incident that occurred on 21 May 2018 (see para [43] above) is an example. However, there is no evidence that there have been other occasions on which Mr Breen and Ms Dillon have required urgent access to the inclinator corridor for that purpose. The nature of the services makes it unlikely that urgent access will be required during the four years New Order (7) is in operation. The orders cannot cater for every possibility, and ultimately if unexpected events occur that cannot be resolved between the parties it will be necessary for them to return to Court. But again, none of those is a reason for thinking that the primary judge, in deciding to grant an injunction in terms of New Order (7) committed an error, let alone of a type referred to in House v The King.
Like FJ Order (2), New Order (7) was made in the very particular circumstances of this case. It does not raise any issue of principle or public importance. It is not obviously unjust. For those reasons leave to appeal against that order should also be refused.