Brydall v The Owners of Strata Plan 66794 [2009] NSWSC 819 | Case summary

1 HIS HONOUR: The plaintiff (Brydall) is the registered proprietor of land known as 17 Amax Avenue, Girraween, being Lot 1, DP 1035273. The defendant (the Owners Corporation) is the registered proprietor of the common property of a strata title development, SP 66794, at 17A Amax Avenue, Girraween. Number 17A comprises Lot 2 in DP 1035273. 2 Lots 1 and 2 and a third lot, Lot 3, (which is known as 17B Amax Avenue, Girraween) were created by a resubdivision of Lots 6 and 7 in DP 244497. The plan of subdivision, and an accompanying instrument under s 88B of the Conveyancing Act 1919, were registered on 15 February 2002. 3 The s 88B instrument creates a number of easements. Of present relevance is an easement identified as Number 18, being an "easement for parking". That easement burdens Lot 2 and benefits Lot 1. The terms of the easement, excluding surplus verbiage, are "[f]ull and free right for every person who is at any time entitled to an estate or interest in possession in the lot benefited or any part thereof … and every person authorised by such person to park motor cars, motor vehicles, motor carriages and/or trailers on part of the lot burdened, but only within the site of this easement". 4 The "part of the lot burdened" and "site of this easement" is a small parcel of land marked "J" on the deposited plan. That is a relatively small area of land on the northern corner of Lot 2. The balance of Lot 2 comprises buildings described as "concrete factory units" and a number of car parking spaces adjacent to those concrete factory units, and other open space. The land denoted as the site of the easement appears to the unaided eye to comprise a relatively small portion - I would have said less than 15% - of the overall area of Lot 2. It does not encroach on any of the concrete factory units or any of the designated parking spaces appurtenant to those factory units. 5 Brydall has let Lot 1 to a company known as Enviro Global Pty Limited (Enviro Global). The lease includes in effect the right to park cars on the site of the easement for parking. It appears that there is some dispute between Brydall and the Owners Corporation as to the use of that part of Lot 2. Brydall asserts that its right (and the right of those authorised by it, such as Enviro Global) is exclusive. The Owners Corporation has asserted that it is not. 6 Although the Owners Corporation appeared in these proceedings and indeed filed a cross-claim, its solicitor, Mr Parmaxidis, appeared as a matter of courtesy to the Court to indicate that his client would be taking no active part in the proceedings and would not be pressing its cross-claim.

7 Brydall seeks declaratory relief to the effect that the rights granted to it by the easement in question are exclusive of the rights of any person whose asserted right derives under or through the Owners Corporation. 8 It seems to be clear in principle that an easement for parking may be valid as a grant of easement. The relevant principles have been examined in a number of cases. In particular, the Court of Appeal of the Supreme Court of Western Australia looked at the matter in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Limited [2008] WASCA 180. Speaking through Buss JA, the Court concluded that the grant of an easement for parking was capable of being a valid easement: see in particular at [57] and his Honour's review of the authorities in the following paragraphs. 9 The authorities also reveal, and the decision of Buss JA in East Fremantle Shopping Centre indicates, that whether or not a particular purported grant of parking rights is a valid easement depends essentially on questions of fact and degree in each case. In this context, Buss JA cited with approval what Bryson J said in Clos Farming Estates Pty Limited (Receivers and Managers Appointed) v Easton (2001) 10 BPR 18845 at [39]. Bryson J there said, having himself reviewed a number of authorities, that "[t]he validity of easements for storing goods or parking vehicles depends on the nature and circumstances of the servient tenement, the operation in detail of the purported easements and their effect on the servient tenement". 10 To similar effect, Wilson J said in Weigall v Toman [2008] 1 Qd R 192 at [14] that what was important was "proportionality - in the sense of the relative importance or significance of that part of the servient tenement over which an exclusive right is given to the servient tenement as a whole". 11 In this case, it appears, the basic requirements of a valid easement have been met. There is a dominant tenement and a servient tenement: respectively, Lots 1 and 2. Secondly, the easement confers a benefit on Lot 1. Thirdly, the dominant and the servient tenement are not in common ownership or occupation. Fourthly, as is indicated by the authorities to which I have referred and the authorities referred to in those decisions, the right granted is capable in law of forming the subject matter of a grant of easement. 12 I turn to the question of proportionality. As I have said, it appears to the unaided eye at least that the area of land subject to the right of parking in favour of Brydall is less than 15% of the overall area of Lot 2. It does not encroach on any of the defined parking spaces appurtenant to Lot 2. Nor, to the unaided eye or on the evidence, does it impede access to or the efficient use of those parking spaces or indeed of the concrete factory units erected on Lot 2. 13 l have no doubt that it would be a convenience for the occupants of Lot 2 and those invited by them to come upon that lot, to use the site of the easement for parking or other purposes. But the question of proportionality does not seem to me to turn on questions of mere convenience. 14 I do not see that it would be possible to argue that enforcement of Brydall's rights as exclusive rights (and I will turn in a moment to the question of whether they are) would be so onerous as effectively to deprive either the proprietors of lots within Lot 2 in general, or the Owners Corporation in particular, of the effective use of their proprietary and other rights. 15 To the extent that it may be said that the easement, if exclusive, would deprive the Owners Corporation of the whole beneficial use of the parcel of land subjected to the rights, I am not sure that that is a relevant consideration. I say that for two reasons. One is that the test (referred to in Copeland v Greenhalf [1952] Ch 488) may overstate even the position in England. The second is that, as I have indicated, the trend of authority in this country is to look at whether the rights asserted impede the reasonable use of the servient tenement as a whole. As to the first proposition: to the extent that Copeland is authority for the proposition that I have stated, the decision of the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620 appears to cast doubt on it. See in particular the speech of Lord Scott of Foscote at 2642 [59]. As I understand it, the other members of the House shared his Lordship's views. I do not think that it is relevant, at the level of principle, that this was an appeal from the Scottish courts and not from the Court of Appeal of England and Wales. 16 Accordingly, in my view, there is a valid grant of easement. 17 What then is the content of the right? In particular, are the rights given by it exclusive? 18 As I have said, the terms of the right are "full and free". Einstein J noted in Berryman v Sonnenschein [2008] NSWSC 213 at [19], albeit in the context of a grant of right of carriageway, that the words "full and free right" are "words of the widest import". To my mind, a full and free right in Brydall and those authorised by it to park cars on the site of the easement cannot be exercised if the owner for the time being of the servient tenement, or those authorised by it, also use the land in question for the purpose of parking their vehicles. To the extent that the owner of the servient tenement or those authorised by it park vehicles on the area of land in question, the full and free right granted by the easement is cut down. Its wide import is constrained. 19 Further, paragraph (d) of the grant of easement suggests that the rights of the owner of the servient tenement are limited. That paragraph authorises the owner of the servient tenement to use the site of the easement to provide services to and from Lots 1, 2 and 3, to permit services to pass through or upon the easement, to grant easements for services and to do anything else reasonably necessary for those purposes. This specification of reserved rights seems to me to be inconsistent with the proposition that the reserved rights also include the right to park cars. 20 Of course, there may be implied reserved rights that are not specified in the terms of the easement itself. As Lord Scott pointed out in Moncrieff, in the paragraph to which I have referred above, it is easy enough to see other rights that could be exercised without interfering with the right to park: including placing advertising hoardings, or building over or under the area reserved for parking. I do not mean to suggest that paragraph (d) of the grant is inconsistent with the existence of such other rights. What I do mean to suggest is that the combination of the grant of a full and free right to park, and the express reservation of very limited rights, confirms that the full and free right ought to be construed as exclusive of any right on the part of the owner of the servient tenement, or those authorised by it, to park on the site of the easement. 21 For those reasons I conclude that the valid easement that has been granted is an easement to park that excludes the rights of the owner of Lot 2 from time to time, or those authorised by it, to park on the site of the easement. 22 Brydall presses for a declaration. Recognizing that the form of declaration sought in its amended summons is not entirely apt, it has propounded a draft amended declaration. That draft amended declaration to my mind is appropriate to give effect to the conclusions to which I have come. Accordingly, I make a declaration in terms of the document amended and initialled by me and dated today's date. I reserve liberty to apply to the extent that it may be necessary in respect of any future invasion of the rights thereby declared. 23 I order the defendant to pay the plaintiff's costs of the proceedings. 24 I order that the exhibits remain with the file.

Brydall v The Owners of Strata Plan 66794

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