Brice v Nikolaidis

Judgment 1HIS HONOUR : This dispute between neighbours concerns an easement. 2The plaintiff is the registered proprietor of 41 Ocean View Drive, Wamberal. The second defendant is the registered proprietor of 39 Ocean View Drive, Wamberal. The properties share a common boundary. The eastern boundary of both properties abuts Wamberal beach. The southern boundary of 41 Ocean View Drive is the northern boundary of 39 Ocean View Drive. 3The first defendant is the son of the second defendant. His parents became the joint registered proprietors of 39 Ocean View Drive in about 1960. In 1996 and 1997 he caused the current house on 39 Ocean View Drive to be constructed. In 1997 and 1998 he caused to be constructed a heavy-load-bearing driveway capable of carrying not only private motor vehicles, but heavy vehicles of up to eight tonnes at least. At this time the registered proprietors of 41 Ocean View Drive were a Dr and Mrs Bartlett. An agreement was made with Dr and Mrs Bartlett for the grant of easements. The easements were registered in 2002. 4The easement in question was given by Dr and Mrs Bartlett as registered proprietors of 41 Ocean View Drive in favour of the registered proprietors of 39 Ocean View Drive. It was described as a " right of carriageway 0.55 wide as shown on plan marked 'A' ". The right of carriageway is on the southern boundary of 41 Ocean View Drive commencing at a point 27.85 metres from the street. It extends to the eastern boundary of the property, a distance of approximately 45 metres. It abuts the driveway on 39 Ocean View Drive. That driveway goes up a steep gradient from Ocean View Drive before levelling off at a point adjacent to the main door to 39 Ocean View Drive. At that point there is still a small downward slope to the west towards Ocean View Drive. At a point between the two houses the constructed concrete driveway terminates, but there is a grassed area which serves as a driveway that continues further east on level ground to a point adjacent to a deck at 39 Ocean View Drive which looks over the beach. At this point there is also an outdoor deck at 41 Ocean View Drive. 5The current dispute arises as a result of the plaintiff's having laid down sandstone pavers along the southern boundary of 41 Ocean View Drive for a distance of about 13.8 metres. The sandstone pavers are 72 centimetres wide and thus cover the entirety of the right of carriageway for the 13.8 metres for which they run. The sandstone pavers sit above the level of the soil on the grassed area of 39 Ocean View Drive. The height difference varies according to the level of the grass but reaches a maximum of about eight to ten centimetres. That is, at the eastern extremity of the pavers. Further west the height of the pavers above grass level was about 3.5 centimetres. The pavers start at the point immediately adjacent to the concrete driveway and finish about four metres from the eastern boundary of the properties. 6The plaintiff complains that the first defendant or his invitees has damaged the sandstone pavers by driving over the pavers and parking on them. 739 Ocean View Drive has been used by the first and second defendants and their families as a holiday house. The second defendant is now elderly and rarely visits the property. The property is mostly used by the first defendant and his family. 8Initially the relief sought by the plaintiff was in substance: a) a declaration that by parking a vehicle or allowing a vehicle to be parked on the part of the easement on which sandstone pavers are laid, the defendants were unreasonably using the easement and that this constituted a nuisance; b) an injunction restraining the defendants from parking a vehicle, or allowing a vehicle to be parked or driven over the sandstone pavers; and c) damages. 9Following the exchange of outlines of submissions immediately before the hearing, the issues were narrowed. As the easement contains no express grant of a right to park, the defendants accepted that any right to park on the easement could only arise by implication. The defendants accepted that it is not reasonably necessary in order to give effective and reasonable use and enjoyment of the rights expressly granted by the easement for the defendants, or their servants or agents, to park on the sandstone pavers when using private vehicles for the purpose of loading or unloading food, clothing or other personal effects, or chattels and items associated with their every day and normal use of the house on their property. The practical reason for this is that in the area where the sandstone pavers are laid there is space to park a car on the driveway on the second defendant's land. However, the defendants submitted that there was a range of other possible circumstances in which it might be reasonably necessary for a vehicle to park on the right of carriageway on the sandstone pavers. This might encompass the use of commercial vehicles that might be needed for beach stabilisation or furniture removal, landscaping works, building works, or repairs or alterations to the house on the defendants' property. A commercial vehicle might have a maximum width of 2.5 metres and the width of the grassed driveway (not including the right of carriageway) in this area was said to be only approximately 2.55 metres. It was submitted that it was likely that there would be many circumstances in which a commercial vehicle might have to park in the course of a proper use of the right of carriageway and where it may be necessary to park on the right of carriageway on the sandstone pavers. 10The plaintiff responded to this submission by amending the relief sought so as to confine it to the use of the easement by a " private vehicle ". This was defined as any vehicle not used for or in conjunction with the operation of business or the earning of an income and which is insured for private use only and not for business use. It was defined as including, but not being limited to, any vehicle owned or part-owned by the defendants or their family members, guests or tenants. As amended, the summons sought relevantly declarations that the easement could not be used for the purposes of parking a private vehicle, or allowing a private vehicle to be parked on the sandstone pavers, an order restraining the defendants from using the easement for a means of access to park a private vehicle, or allowing a private vehicle to be parked or driven over the sandstone pavers, and damages. 11Thus, the plaintiff did not seek any relief in relation to a hypothetical case that commercial vehicles might need to use the right of carriageway and might need to park on the right of carriageway over the sandstone pavers. 12In the light of the defendants' concession that there was no implied grant of a right to park a private vehicle on the right of carriageway, the principal question was whether there was a right to drive a private motor vehicle on the right of carriageway for that part of its length over which the sandstone pavers had been laid. 13The full description of the right of carriageway granted to the first defendant is contained in Pt 1 of Sch 8 of the Conveyancing Act 1919 (s 181A) as follows: " Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. " 14The rights given must be exercised reasonably ( Carlson v Carpenter (1998) NSW ConvR 55,848 at 56,639; Butler v Muddle (1995) 6 BPR 13,984). Counsel for the plaintiff submitted that as there was room on the grassed driveway on the defendants' land immediately adjacent to the easement to drive and park a car without going onto the sandstone pavers, Mr Nikolaidis was acting unreasonably if he drove onto the pavers as this was likely to do them damage. 15Counsel for the plaintiff submitted that an unreasonable use of the easement was actionable as a nuisance, and that the defendant should pay the costs of repairing pavers that had been damaged either when a car had been parked on them or driven over them. 16The effect of this submission, if correct, is that by laying down the sandstone pavers, the plaintiff was able to deprive the second defendant and persons authorised by her of the use of that part of the right of carriageway in the usual circumstances in which it might be used, that is to say, when a private vehicle is taken to the eastern end of the defendants' driveway on the grassed area. The length of the right of carriageway affected is substantial. It is about 14 metres of a full length of about 46 metres. As the most easterly four metres cannot be practically used, the sandstone pavers occupy about a third of the total usable length of the right of carriageway. In effect the plaintiff contends that she is entitled to extinguish that part of the right of carriageway for every day use by private vehicles. No application was made by the plaintiff under s 89 of the Conveyancing Act to modify or partially extinguish the easement. 17The defendants did not contend that the plaintiff created an actionable nuisance by laying down the pavers. Mr Nikolaidis did not say that the pavers impeded his use of that part of the right of carriageway. Mr Nikolaidis drives a large four-wheel-drive vehicle that could readily negotiate the pavers. 18There is no room to turn a motor vehicle at the eastern end of the driveway. From time to time the first defendant, Mr Nikolaidis, uses the eastern end of the driveway to unload the car. The land there is level and goods can be taken across the eastern deck of the property through glass doors to a living area. There was a good deal of evidence as to whether Mr Nikolaidis needed to use that end of his driveway to load or unload his car. That is not to the point. He is entitled to do so. Although the plaintiff through her solicitor made an initial demand that Mr Nikolaidis not park on the grassed driveway on the second defendant's own land, that demand was baseless and was not persisted in. 19Because there is no room to turn a vehicle in the area in question, the vehicle, when driven in frontwards, must be reversed out. Whilst there is room to do this without using the right of carriageway in the area where the pavers are laid, the space to do so is tight. At one point there is a tap on the house at 39 Ocean View Drive which obtrudes a few centimetres onto the driveway and narrows the available space. At an inspection Mr Nikolaidis drove his car forwards and backwards along the driveway without crossing onto the pavers. But on one of the manoeuvres the passenger wheels of the vehicle went very close to the pavers; to within a few centimetres. I was satisfied that Mr Nikolaidis was not attempting to drive close to the pavers in that particular manoeuvre. Mr Nikolaidis' car is 216 centimetres wide. The width of the grassed area excluding the sandstone pavers is 273 centimetres. The tap connected to the house at 39 Ocean View Drive obtrudes 10 centimetres and with a coiled hose over it, the available space is narrowed by a further 30 centimetres. This leaves a leeway of only 8.5 centimetres on either side of the car. Mr Nikolaidis deposed: " 36. From my own experience, when reversing the Car down the driveway to the garage level of the Nikolaidis Property, it is necessary to focus and concentrate on the distance between the Car and the wall of the Current House and to align the Car as best you can so that it reverses in as straight a line as possible down the driveway. The steepness of the driveway as it falls away does not allow it to be seen from the grassed area. In those circumstances it is likely that the front passenger side wheel of the Car may from time to time clip or ride over the Sandstone Pavers. The Sandstone Pavers are at approximately the same level as the adjoining grass. I do not easily know if a passenger side wheel has traversed onto the Sandstone Pavers from the grass, particularly when reversing, as there is no obvious feel or sensation of a transition in levels as, for example, if you drive over a gutter or a speed bump. When I drive the Car from the front gate or garage up the Cantilevered Driveway beside the Current House to the north eastern side of the Nikolaidis Property, I cannot see the Sandstone Pavers as I come to the top of the incline until it levels out approximately six metres west of where the Sandstone pavers start. I also cannot obviously feel if I have clipped the Sandstone Pavers as there is no obvious transition in levels. " 20I accept that evidence. 21I do not agree with the plaintiff's submission that any use of the right of carriageway by a private vehicle by driving over the sandstone pavers would be an unreasonable use. It is possible to hypothesise a use of that part of the right of carriageway that would be unreasonable. For example, if Mr Nikolaidis were to deliberately drive over the sandstone pavers in order to damage them, that would be an unreasonable use. The plaintiff submitted that that is exactly what Mr Nikolaidis had done. She pointed to a history of acrimony between the parties following building work on 41 Ocean View Drive to which Mr Nikolaidis had objected. This led to District Court proceedings in which Mr Nikolaidis consented to judgment. 22Mr Nikolaidis denied that he had intentionally driven over the pavers. I accept his denial. 23There is no reason that Mr Nikolaidis or other persons authorised by the second defendant to use the property should be constrained to manoeuvre a motor vehicle carefully so as to avoid touching the pavers. Such constraints bring the vehicle closer to the house at 39 Ocean View Drive and increases the risk of a car scratching the house or the tap adjacent to it. A purpose of the right of carriageway is to give the second defendant and her family and guests greater leeway for manoeuvring a vehicle down the driveway. They should not be at risk of being in breach of a court order if they drive on the sandstone pavers on the carriageway. 24I refuse the injunction sought to restrain the defendants and their servants or agents from allowing a private vehicle to be driven over the sandstone pavers. 25There is no evidence that any vehicle has driven over the sandstone pavers beyond the boundary of the easement. 26The plaintiff sought damages for the cost of repairing sandstone pavers that have been chipped. If such damage has occurred by reason of the use of the easement by vehicles driving over the pavers, such damage is not recoverable as the defendants were entitled to use the easement for that purpose. However, the plaintiff contends that the damage was caused, or contributed to, by vehicles being parked on the pavers. She contends that as this was not a use authorised by the easement, the parking of the vehicles was a nuisance which has caused damage. The plaintiff complains that damage was caused to the sandstone pavers as a result of Mr Nikolaidis' car being parked on them on or around 1 and 2 August 2010. She engaged tradesmen to repair the pavers in November 2010 at a cost of $1,112.95. She deposes that the pavers have been damaged subsequently and further costs will be incurred in their repair. There was no evidence as to the further cost of repair, but it can be assumed that a similar cost would be involved to the extent that similar work is required. The repair done in November 2010 was repair to the edging of the pavers. 27Mrs Brice deposed that since December 2009 she observed Mr Nikolaidis driving and parking his car on the edge of the sandstone pavers on " several occasions ", and sometimes parking there for more than 24 hours. 28Mrs Brice took photographs of Mr Nikolaidis' Toyota Landcruiser parked on the edge of the sandstone pavers on three occasions. The first was on 29 December 2009. Mrs Brice annexed a photograph which she deposed showed Mr Nikolaidis' car parked on the edge of the sandstone pavers that she later identified as having been taken on that day. The photograph shows Mr Nikolaidis' Toyota Landcruiser with some form of aquatic equipment hitched to the back. Mrs Brice took a series of photographs on 1 and 2 August 2010 that show the Toyota Landcruiser parked with its rear passenger wheel on the edge of the sandstone pavers. The third incident related to a trailer with its wheel parked on the edge of the pavers. 29Except in relation to the third incident, there is no evidence that the damage to the edge of the sandstone pavers was caused by Mr Nikolaidis' vehicle being parked on the pavers, as distinct from being damaged by the car being driven on the easement over the pavers. The case of the trailer is different. On 26 December 2010 Mr Nikolaidis drove up the driveway in his 4WD vehicle with a large trailer attached. The trailer was substantially wider than his car. He had a large mattress in the trailer. Mr Nikolaidis proceeded to park the vehicle with the trailer attached on the grass driveway between the sandstone pavers and the rear deck of 39 Ocean View Drive. The car was parked wholly on the second defendant's land. However, a wheel of the trailer was on the sandstone paver. Mr Nikolaidis parked in that position to enable the car to be unloaded through the sliding door that opens from the deck. Shortly after alighting from the car Mr Nikolaidis was approached by Mr Brice who ordered him to remove the trailer from 41 Ocean View Drive. Mr Brice struck Mr Nikolaidis, but was restrained by Mr Nikolaidis. The police were called, but no charges were laid over the incident. 30The reason Mr Nikolaidis parked where he did was to unload his car. He accepted that he could have parked the trailer further down the driveway where its wheels were wholly on the concrete driveway and not on the sandstone pavers, but this would not have allowed him to unload the car at that point. He did not reverse the trailer off the pavers after the car was unloaded because the altercation with Mr Brice had been reported to the police who suggested to him that everything should be left the way it was until they arrived. 31Mr Brice deposed that he had observed that an area of the sandstone pavers that had been driven over with the trailer was damaged, whereas it had not been damaged prior to Mr Nikolaidis' parking his trailer on the pavers. Mr Nikolaidis took issue with this. He said that the damage to the paver to which Mr Brice referred had been observed by him in mid-December 2010 and denied that the damage was caused by a wheel of the trailer. 32I am not satisfied that the damage referred to by Mr Brice was caused by Mr Nikolaidis' parking of the trailer on the right of carriageway on the sandstone pavers whilst the car was unloaded on 26 December 2010. Nor was that an unauthorised use of the carriageway. The eastern extremity of the driveway to which the right of carriageway is adjacent can only be used for parking either temporarily or for longer periods. It leads nowhere. The reason that the defendants are not entitled to park on the right of carriageway adjacent to the driveway with a normal sized vehicle is that it is unnecessary to do so because there is sufficient space on the driveway itself, without resort to the right of carriageway. In the incident of 26 December 2010 Mr Nikolaidis' car was not parked on the right of carriageway. He was nonetheless using the right of carriageway by bringing the trailer onto it because the trailer was substantially wider than the car. He had stopped only for a minute or two and was in the process of unloading the car when he was confronted by Mr Brice. The right of carriageway includes the right to pass and to go. That right impliedly extends to the right to stop for a short period, before going in the reverse direction, if that is reasonable in the circumstances. It was reasonable for Mr Nikolaidis to stop his car to unload it at a convenient point, being the only point where he could unload it from the side and rear door of the car, without first unhitching the trailer and before reversing down the driveway to unload the trailer. He was prevented by Mr Brice from reversing the trailer off the pavers after he had unloaded his car. 33Counsel for the plaintiff submitted that the trailer could have been unhitched from the car before the car reached the grass driveway and before the trailer moved onto the right of carriageway. No doubt it could. However, at that point there was a downhill gradient so that chocks would have to have been placed to prevent the trailer careering down the drive. It was not unreasonable to keep the trailer hitched to the car while the car was unloaded. Even though that involved a temporary stopping on the right of carriageway, such temporary stoppages must be contemplated by the right of carriageway. 34For these reasons I reject the plaintiff's claim to damages and I refuse the injunction sought to restrain the defendant from driving over the sandstone pavers. The plaintiff is entitled to a declaration that the easement created by dealing number 8913156Y does not confer on the owner of the dominant tenement the right to park a vehicle on the right of carriageway where the vehicle can reasonably be parked wholly on the defendants' land. I do not think that the declarations in the form sought in the amended summons are appropriate. 35I do not consider that an injunction to restrain the defendants from parking on the sandstone pavers is warranted. The fact that there is evidence of Mr Nikolaidis' car having been parked on the pavers on 29 December 2009 and 1 and 2 August 2010 does not warrant the inference that he is likely, if not restrained, knowingly to park his car on the pavers. I accept his evidence that on one of the occasions in question his son, and not he, was driving his car. Moreover, I accept his evidence that it is difficult from the driver's seat of the car to know if the passenger wheels have ridden onto the pavers. The driver may well stop with the wheels on the pavers. That would not in itself be an unauthorised use of the easement, although to leave the car in that position would be. I doubt however that it would be an actionable nuisance, unless physical damage was done to the pavers. Merely parking a few millimetres onto the right of carriageway does not substantially interfere with the plaintiff's enjoyment of her land. 36In any event, given that I will make a declaration about parking, I do not consider that there is a threat that Mr Nikolaidis will knowingly exceed the authorised use of the right of carriageway. 37Mr Nikolaidis filed a cross-summons. The sandstone pavers cap a retaining wall. Mr Nikolaidis is concerned that the retaining wall would not support a heavy vehicle which may need to access the driveway, particularly in the event of work being required to shore up the property if threatened by erosion, storm or wave damage. At the same time as the easement over 55 centimetres of 41 Ocean View Drive was created in favour of the owners of 39 Ocean View Drive, an easement was created in favour of the owners of 41 Ocean View Drive over the driveway on 39 Ocean View Drive for a limited purpose. That right of way can be used only for the purpose of stabilisation or re-establishment of 41 Ocean View Drive in the event of such land being threatened with erosion or storm or wave damage, or having been eroded or damaged by a storm, wave or tempest, where it is necessary to carry out emergency repair work or to evacuate household contents as a result of threatened erosion or wave damage. The easement in favour of 41 Ocean View Drive is expressly confined to the use of the driveway by vehicles which do not exceed an eight-tonne wheel load or have a maximum width exceeding 2.6 metres. 38By his cross-summons Mr Nikolaidis seeks the following relief: " 1 A declaration that the easement created by registered dealing number 8913156Y granted by folio identifier 9/11004, the servient tenement (land burdened) known as 41 Ocean View Drive, Wamberal in the State of New South Wales of which the Cross-Defendant ( Mrs Brice ) is the registered proprietor in favour of folio identifier 8/11004, the dominant tenement (land benefited), known as 39 Ocean View Drive, Wamberal in the State of New South Wales of which the Cross-Claimant is the Registered Proprietor ( Nikolaidis Easement ) permits the ingress or egress of vehicles with up to: (a) an eight tonne wheel load; (b) a maximum width of 2.6 metres. 2 A declaration that the excavation upon part of the land contained within, and the construction of a retaining wall upon part of, the Nikolaidis Easement by Mrs Brice ( Brice Retaining Wall ) creates an unreasonable interference with the use and enjoyment of the Nikolaidis Easement. 3 A declaration that the placing of sandstone capping or pavers by Mrs Brice on top of part of the Brice Retaining Wall ( Sandstone ) creates an unreasonable interference with the use and enjoyment of the Nikolaidis Easement. 4 An order that Mrs Brice reconstruct the Brice Retaining Wall to permit the ingress or egress of vehicles with up to: (a) an eight tonne wheel load; (b) a maximum width of 2.6 metres, ( Reconstructed Brice Retaining Wall ). 5 An order that Mrs Brice remove the Sandstone. 6 An order that any capping, paver or other material placed by Mrs Brice on the Reconstructed Brice Retaining Wall be such as to permit the ingress or egress of vehicles with up to: (a) an eight tonne wheel load; (b) a maximum width of 2.6 metres. " 39The cross-summons was filed shortly before the hearing. It was not possible for all of the matters raised by the cross-summons to be heard with the hearing. I ordered that paragraph 1 of the cross-summons, and so much of the cross-summons as was defensive of the claims raised by the plaintiff in the summons, should be tried separately and in advance of the other issues. The primary questions raised by the cross-summons are whether or not the plaintiff has an obligation to support the right of carriageway to allow the passage of vehicles with up to an eight-tonne wheel load, and whether the plaintiff removed lateral support for the second defendant's land. Those questions were not litigated at the hearing. 40The easement in favour of 39 Ocean View Drive contains no description or limitation of the kind of vehicles that can use the easement. The plaintiff did not dispute that the defendants could use the easement with a vehicle of up to an eight-tonne wheel load or a maximum width of 2.6 metres if the use was reasonable in the circumstances. Indeed, if the use was reasonable in the circumstances, there would be no reason that a bigger vehicle could not use the right of carriageway if it could fit. On the other hand, the defendants would not be entitled to use the right of carriageway for the passage of vehicles of the weight and dimensions described in paragraph 1 of the cross-summons if the use was unreasonable. There is no utility in making the declaration sought in paragraph 1 of the cross-summons. No issue has arisen between the parties in relation to a proposed use of the right of carriageway by a vehicle of the weight and dimensions referred to. There is no dispute that whether the easement could be used to permit the ingress or egress of a vehicle of the weight or dimensions referred to would depend upon whether such a use of the easement at the time was reasonable. The question is not susceptible of further definition. 41For this reason I refuse to make order 1 in paragraph 1 of the cross-summons. 42The result is that the plaintiff's claim substantially fails and the defendants' claim for a declaration in paragraph 1 of the cross-summons also fails. 43I declare that the easement created by dealing number 8913156Y does not confer on the owner of the dominant tenement the right to park a vehicle on the right of carriageway where the vehicle can reasonably be parked wholly on the dominant tenement. I order that the amended summons be otherwise dismissed and that paragraph 1 of the cross-summons be dismissed. I will stand the proceedings over to a convenient date to hear argument on questions of costs. It may also be necessary then to give directions in relation to the balance of the cross-summons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2011