Castle v Achdjian [2022] NSWSC 1340 | Case summary

Determination

In determining the respective claims of the parties, it appears to me logical to deal first with the Cross-Claim. However, before doing so, it is necessary that I express my views and make findings concerning a contentious aspect of the evidence, namely, the evidence about the Ryan children making use of the right of carriageway. That evidence is referred to above at [12]-[15].
The defendants submitted that the evidence was of doubtful weight and replete with inconsistencies. It was also put that the Ryan family were anxious to assist the plaintiffs. I do not accept that to be the case. Mr and Mrs Ryan, and Timothy Ryan, are independent witnesses with no apparent interest in the outcome of the case. Each appeared to me to give their recollections of events honestly, and as best they could recall. There was a degree of imprecision in the evidence, but that is understandable given that the witnesses were in this respect endeavouring to recall matters that occurred decades ago.
Notwithstanding the evidence given by various witnesses that they never observed the Ryan children using the right of carriageway, I accept, based on the testimony of Mr, Mrs, and Timothy Ryan, that at least some of the Ryan children made occasional use of the easement as a means of access (a "shortcut") between Lot 30 and Marlee Street from time to time during the period from about 1983 to about 2005. I note that Mrs Ryan's evidence that such use continued until 2005 was not challenged in cross-examination. Further, it was not suggested to any of the Ryans that they were inventing their evidence or might have been mistaken about it. I would add that it is not particularly surprising that the fairly infrequent use described in the evidence may have escaped the attention of, or may not have been recalled by, neighbours in the area. It is less understandable that such use would have escaped the attention of the defendants - particularly Lena Achdjian, who worked at home and consequently spent a lot of time there. However, that is in my view more likely than the evidence given by the Ryans being incorrect. It may be that from about 2000 the use of the right of carriageway became less frequent as the Ryan children progressively left the family home. Timothy, who appears to be the youngest child, was already 16 years of age when the defendants moved in to Lot 29.
I have not overlooked the evidence concerning the negative answer given by Mrs Ryan in 2020 to the question whether the vendor had ever used the right of carriageway. However, as mentioned earlier, Mrs Ryan seems to have read the question as referring only to herself and Mr Ryan personally.
Before leaving this matter, I should also note that, insofar as the Ryan children may have used the right of carriageway in order to use the Lot 29 pool (which was not situated within the easement area), that would not constitute an exercise of rights pursuant to the easement. Rather, the children would presumably been acting in accordance with permission given by the then-owners of Lot 29 to come onto the property and use the pool.
I turn now to consider the defendants' claim under the first limb of s 89(1)(a) that the right of carriageway should be extinguished on the basis that it ought to be deemed obsolete.
In Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28, Mason P stated (at [3]-[4]): [3] … In Re Mason and the Conveyancing Act [1962] NSWR 762 at 764, Jacobs J said: I consider that the word "obsolete" can be taken to mean that the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose. I respectfully agree with this dictum, bearing in mind the latitude encompassed in a power expressed as one of being satisfied that the easement "ought to be deemed obsolete". [4] This said, the Court's focus must remain the language of the section. Section 89 necessarily qualifies the common law rights of the owner of the easement. The section is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights. The starting point is the easement itself, its terms and its objects derived from construing those terms in context (cf Re Mason at 764) and bearing in mind that the easement was created for an indefinite future and destined to enure in a changing environment (cf Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at 47). (See also Sheppard v Smith [2022] NSWCA 167 at [87]-[88] per Beech-Jones JA).
These principles direct attention to the object(s) or purpose(s) of the easement in question, as derived from the terms of the easement properly construed in its context. Here, that context includes the fact that the right of carriageway was created as part of a residential subdivision.
The defendants submitted that the original purpose of the right of carriageway was to facilitate vehicular access between the rear of Lot 30 and Marlee Street. That was undoubtedly one purpose of the right of carriageway, but its terms suggest that it was not the only purpose. The terms of the easement also allow for non-vehicular access between the rear of Lot 30 and Marlee Street. That access can also be regarded as a purpose of the right of carriageway. Viewed another way, vehicular access and non-vehicular access could be seen as parts of a more generally expressed purpose of access between the rear of Lot 30 and Marlee Street.
In considering this question it is permissible to take into account the physical characteristics of the land at the time of grant, including that Lot 30 slopes down relatively steeply from the front to the rear, and that Lot 29 continues to slope down towards Marlee Street but not as steeply (see, eg, Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 at [14]-[16] per Handley AJA, with whom Tobias and McColl JJA agreed). Those facts suggest that access between the rear of Lot 30 and Marlee Street is likely to be of benefit to Lot 30 however that access is achieved.
I have considered the various circumstances put forward by the defendants in support of the argument that the easement ought to be deemed obsolete. These circumstances are broadly summarised above at [29]. To the extent that those circumstances go beyond changes in the use of the benefitted land, I am prepared to regard them as other circumstances that may be deemed material for the purposes of s 89(1)(a) (see Re RK Roseblade and VM Roseblade and the Conveyancing Act; Re KS Foenander and the Conveyancing Act [1964-5] NSWR 2044 at 2046 per Else-Mitchell J).
The house and associated infrastructure that have been constructed on Lot 30 (as depicted on Mr Skow's survey and as shown in various photographs) do not seem to me to provide support for the obsolescence argument. The construction does not mean that the benefit to Lot 30 of access between its rear and Marlee Street is removed or even reduced in any significant way. The "driveway" referred to in submissions appears to be only a concrete crossing on the footpath between Lot 30 and Vista Close (described on Mr Skow's survey as "Concrete Accessway") and the "informal accessway" appears to be unmade and in large part steep. It is true that access into the rear section of the house involves a number of stairs but, as explained by Mr Castle, not as many stairs as are involved in gaining access to the front section of the house.
The rear fences of Lot 30 (initially a timber fence, later replaced by the existing Colorbond fence) that have blocked entry onto the right of carriageway could be quite easily and inexpensively removed or modified to allow entry into the right of carriageway.
There is some evidence that it would now be possible to construct a driveway from Vista Close to the rear of Lot 30 to enable vehicular access without causing damage to the Council infrastructure (see the report of Mr Fryar at paragraph 5.1.6 and the report of Mr Branch at paragraph 3.7). I note that a driveway has been constructed on the neighbouring Lot 26, for example. However, in the absence of an assessment of a detailed design, and, in light of the easement for batter, a geotechnical assessment, I would not at present regard this as a proven option.
There is also evidence that it would not be possible to construct within the right of carriageway a driveway that complies with applicable design and planning standards, and that Council approval for a driveway within the right of carriageway (which would in any case be prohibitively expensive) is most unlikely to be given. There is also doubt about whether approval would be given to remove the large pine tree. This evidence firmly suggests that vehicular access between the rear of Lot 30 and Marlee Street is unlikely to be achievable along the right of carriageway.
Nevertheless, it remains the case that if the fences that presently obstruct the right of carriageway are removed or modified to incorporate gates, and some light vegetation is cleared, the easement could be conveniently used for pedestrian access. There is also the potential for the surface of the right of carriageway to be improved to provide an enhanced pathway that might, for example, be suitable for bicycles.
The defendants submitted that the facts of the case are comparable to those in Walker v Bridgewood (2006) 12 BPR 23,537; [2006] NSWSC 149, where Gzell J ordered the extinguishment of a right of way in Balmain on the grounds of obsolescence. In that case, it was not only held that the object of vehicular passage was incapable of fulfilment (see at [74]-[86]), it was also held that there was no good reason why a person would want to use the right of way for pedestrian access (see at [93]-[94]). I do not think that is the position in the present case. Mr Castle gave evidence of various reasons for wanting to use the right of carriageway as a pedestrian, including walking his children to the local primary school, and walking to Rofe Park and to the shops on Galston Road. I accept that those reasons are genuine and that such use is realistically capable of achievement.
The present case also differs from Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (supra) where, as noted by Mason P (at [8]), there was no suggestion of usage or need for usage of the easement by pedestrians. The easement in that case was in Mascot, in an industrial rather than residential setting. The dominant tenement was at the time of grant virtually landlocked. Further, as noted by Meagher JA (at [20]), "unlike most easements" the easement was expressed to be limited for a particular purpose. That purpose was having access to and from Ricketty Street. At the time of hearing, that use was impossible, "even illegal" (see Meagher JA at [23]), and the dominant tenement had access to Gardeners Road (see also Mason P at [9] and Stein JA at [30]).
It is, of course, necessary to focus upon the particular facts and circumstances of the case at hand. Having considered those matters, I am not satisfied that the easement ought to be deemed obsolete. The objects or purposes of the easement, which in my view include non-vehicular access between the rear of Lot 30 and Marlee Street, are not incapable of fulfilment, and the easement cannot be said to serve no present useful purpose. It is not an easement of no practical utility which ought be removed in order to "clear the title". Accordingly, the defendants' claim under the first limb of s 89(1)(a) has not been made out.
It is next necessary to deal with the defendants' claim under the second limb of s 89(1)(a). Under that limb, it is necessary to show that the continued existence of the easement would impede the reasonable user of the land subject to it (Lot 29) without securing practical benefit to the persons entitled to the easement.
It has been held that if extinguishment is sought on this ground, it must be shown that no reasonable user of the land is possible unless the easement is extinguished (see Heaton v Loblay (1959) 60 SR (NSW) 332 at 335 per Myers J - followed on numerous occasions including, for example, by Brereton J, as his Honour then was, in Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [60]).
As I understood the submission made by the defendants, the claimed impediment to the reasonable user of Lot 29 would arise if the right of carriageway were to be developed by the construction of a driveway for vehicular traffic (see written submissions paragraphs 2(a) and 1(b)). Reference is made to various undesirable features of such a construction, including that it would be elevated above, and in close proximity to, living areas at the back of the house on Lot 29, and would render the easement area unavailable for any other use. The construction of a driveway as described might well make it impossible to reasonably use Lot 29 as a domestic residence. However, the evidence before the Court is to the effect that Council approval for such a driveway is most unlikely. In these circumstances, I am unable to conclude that the continued existence of the easement would impede the reasonable user of Lot 29 in the manner suggested (cf Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764 at [53]-[55] per Darke J). Further, given my conclusion that the right of carriageway is capable of use by pedestrians, I do not think that the continued existence of the easement secures no practical benefit to the plaintiffs as the persons entitled to the easement. The defendants' claim under the second limb of s 89(1)(a) has also not been made out.
I turn now to the defendants' claim under s 89(1)(b) that the right of carriageway has been abandoned.
As noted earlier, the defendants invoke s 89(1A) in support of this claim. That provision operates if the Court is satisfied that the easement in question has not been used for at least 20 years before the application under s 89(1) is made. I think it likely that "made" within s 89(1A) refers to the date the application is filed rather than heard (cf Sheppard v Smith (supra) at [40]). In this case, that is the date of filing of the Cross-Claim, being 31 January 2022. At least 20 years before that date would be 30 January 2002. However, the findings I have made concerning the use of the right of carriageway by the Ryan children (see above at [36]) mean that I cannot be satisfied that the easement has not been used for at least 20 years before 31 January 2022. The same result would follow if "made" was taken to refer to the date of hearing. It is thus not necessary to consider s 89(1A) further.
It should be noted, however, that the non-user of the right of carriageway in the period from about 2005 until the plaintiffs acquired Lot 30 in November 2020 may, in conjunction with other acts or omissions of the owners of Lot 30 (relevantly the Ryans), be relevant to the question of abandonment.
In Sheppard v Smith (supra), Beech-Jones JA (with whom Gleeson JA and Basten AJA agreed), referring to Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, said at [45]-[46]: [45] A conclusion that the owner of the dominant tenement has abandoned an easement over the servient tenement is a finding of fact (Treweeke at 282 per McTiernan J; at 302 per Mason J). The ultimate issue is whether an inference of abandonment should be drawn "taking into account all the matters of fact which may tend towards or against a conclusion that the easement may reasonably be considered to have been abandoned" (Treweeke at 287 per Walsh J). [46] It has been said that "a firm intention [on the part of the owner of the dominant tenement] that neither he nor any successor in title of his should thereafter make use of the easement" is required and that "[a]bandonment is not … to be lightly inferred" (Gotobed v Pridmore (Court of Appeal (UK), 16 December 1970, unrep); as later cited in Williams v Usherwood (1983) 45 P & CR 235 at 256; "Williams"). Thus, a right of way will not necessarily be extinguished by non-user alone (Treweeke at 284 per McTiernan J; at 302 per Mason J). However, acquiescence in, and failure to object to, the placing by the owner of the servient tenement of obstructions on the right of way which are inconsistent with its exercise may lead to an inference that the owner of the dominant tenement intended to abandon it (Treweeke at 303 per Mason J).
The defendants' abandonment case does not rest upon any agreement on the part of the plaintiffs' predecessors in title to extinguish or modify the easement. Rather, the case is based upon the acts or omissions of those predecessors in title. The defendants' submissions in this regard are summarised above at [31].
Those submissions fall to be considered in light of the findings I have made concerning the use of the right of carriageway by the Ryan children. However, the defendants contended that the easement should be taken to have been abandoned even before that use commenced from about 1983. It was submitted that the right of carriageway had been abandoned by the original owners of Lot 30 by 1974, or by the Ryans by 1983. The abandonment case is said to be supported by the fact that, along the rear boundary of Lot 30, fences were erected which did not have gates so as to allow access to the right of carriageway. It was submitted that the fences were erected with either the agreement of the Lot 30 owners or with their acquiescence. It was also noted that the fence at the front of Lot 29 extended across the right of carriageway and did not have a gate in it to facilitate access to the easement.
The first fence was erected in the period from 1967 to 1974, probably at about the time the house on Lot 30 was constructed. The fence was a wooden structure. Timothy Ryan gave evidence that it was a higher fence than the Colorbond fence that replaced it and not as easy to climb. If that evidence was based on actual recollection, it suggests that the Colorbond fence might not have been erected until some time after 1986, as suggested by Mrs Ryan. In any case, nothing of significance turns upon the precise date the wooden fence was replaced.
I accept that the original owners of Lot 30, at about the time their house was built, agreed to the construction, or at least acquiesced in the construction, of the wooden fence. That conduct is consistent with those owners not having an intention to make immediate use of the right of carriageway. However, it was not shown that those owners agreed to the placing of, or acquiesced in the placing of, any trees, vegetation or structures within the right of carriageway that might make use of the easement difficult. I note that the evidence suggests that the large pine tree was not planted until some time in the period from 1981 to 1986.
In my opinion, viewing the circumstances as a whole, including the fact that the wooden fence could be readily removed or modified to enable access to the right of carriageway, the inference should not be drawn that those owners had a firm intention that neither they nor any successors in title would make use of the easement in the future (cf Grill v Hockey (1991) 5 BPR 11,421 at 11,424 per McLelland J; Sheppard v Smith [2021] NSWSC 1207 at [176]-[190] per Parker J). It has been said on numerous occasions that abandonment of an easement is not lightly to be inferred (see, eg, Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525; [2005] NSWCA 80 at [29]-[35] and the authorities cited therein).
I would also not draw such an inference in respect of the Ryans. The period from about 1974 to 1983 was a period of non-user of the easement, but there is little else in their conduct during that period that might suggest an intention to abandon it, other than perhaps a failure to object to the planting of the pine tree.
The Ryans, through their children, in fact commenced to make occasional use of the right of carriageway in about 1983, and such use continued until about 2005. At some time during that period, the wooden fence was replaced by the (perhaps easier to climb) Colorbond fence, with the cost shared between the owners of Lots 29 and 30. From about 2005 there was a further period of non-user, but considering all the circumstances, I do not accept that the Ryans should be taken to have abandoned the easement by 2010 when the defendants raised the prospect of a cancellation of the easement. The Ryans rebuffed that suggestion (including the modest offer of compensation), and I infer from Mr Ryan's note that he informed the defendants' conveyancers that he was interested in using the right of carriageway "in due course". The Ryans raised no objections to the renovation works later carried out on Lot 29, but those works were designed to accommodate the right of carriageway, and the approved plans do not show any works in the right of carriageway area. To the extent that the defendants carried out associated works in the easement area, such as the fence about halfway along, it was not shown that the Ryans had the opportunity to object but failed to do so. No suggestion to that effect was put to either Mr or Mrs Ryan in cross-examination. In any case, those works, which were undertaken in the knowledge that the Ryans were unwilling to have the right of carriageway cancelled, are not major impediments to making the right of carriageway area more suitable for use. To the extent that the defendants submitted that the Ryans should be taken to have abandoned the easement after 2010, I would not accept the submission.
For the above reasons, I am not satisfied that by the acts or omissions of the plaintiffs' predecessors in title to Lot 30 they may reasonably be considered to have abandoned the right of carriageway.
I turn then to the defendants' submission that, even if the children of the Ryans made use of the easement as claimed, it should be concluded that the easement has been abandoned except to the extent of a footway. I take the submission to be that the Ryans should be taken to have partially abandoned the easement.
By its terms, s 89(1)(b) of the Conveyancing Act contemplates that the acts or omissions of the persons entitled to an easement might reasonably be considered to have abandoned the easement wholly or in part. In Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605, Needham J considered whether a right of way, so far as it authorised use beyond pedestrian use, had been abandoned. His Honour said, at 612-3: I consider, first, the question whether the owner of the dominant tenement, by appropriate acts or omissions, may abandon, or be held to have abandoned, part of the rights granted by an easement. I approach the question initially without reference to any complications which might arise from the fact that the easement is noted on the registered title of the dominant tenement. As a matter of pure theory, there seems to be no reason why the law should not recognize such a partial abandonment. An easement is not unlike a fee simple, in the sense that it comprises a number of rights. In each case, they are rights which enure to the benefit of the dominant tenement, and to the detriment of the servient. It is open to contracting parties to provide that an easement, particularly in the case of a non-continuous easement such as a right of way, shall include certain of such rights and shall exclude others. An obvious example, in relation to a right of way, can be found in Parts I and II of Sch. VIII to the Conveyancing Act, that is, rights of carriageway and rights of footway. If such separation of rights can be achieved expressly, I can see no reason why they cannot be achieved by implication from conduct … It seems to me that there is a distinction between not using a single right (e.g. the right to draw water, or to walk along a right of way) to the full extent permitted and the omission to use one of a parcel of rights (e.g. driving a vehicle along the site of a right of carriageway). In the former case the right is exercised, albeit not to the full extent permitted, while in the latter that particular right is not used at all. (See also the judgment of Powell J, as his Honour then was, in Guth v Robinson (1977) 1 BPR 9209 at 9213-4 and of Young J, as his Honour then was, in Finlayson v Campbell (1997) 8 BPR 15,703 at 15,717).
In Finlayson v Campbell (supra) Young J stated, at 15,717-8: The difficulty in applying the doctrine of abandonment of part is really a result of the fact that the doctrine first grew up in connection with partial abandonment of a right of ancient lights. With such a right, the dominant owner's alteration of a building to block up some windows and to reposition others can well be an abandonment of part as was said by Pollock CB in Jones v Tapling (1862) 12 CB (NS) 826 at 864; 142 ER 1367 at 1382, a dominant owner may abandon any portion of what he has been granted or used. It is, however, very difficult to apply that principle to a right of carriageway.
I agree that it is difficult to apply the principle to a right of carriageway, especially where, as here, some use has been made of the right. Such use necessarily entails an assertion that the easement exists. In the present case, the use made of the right of carriageway was confined to pedestrian use. However, consistent with the principle that non-user on its own is not generally sufficient to establish abandonment, a mere failure to use a right of carriageway in all available ways should not generally lead to a conclusion that there has been an abandonment of the right in respect of the ways not used (see, eg, Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640 at 657 per Viscount Dunedin for the Board).
I would add that, whilst a distinction may be drawn between not using a single right to the full extent permitted, and not using one of a parcel of rights, there is much to be said for the view that what has been expressly granted to the owners of Lot 30 by the right of carriageway is a single right of traversal ("to go, pass and repass … to and from the said dominant tenement") that may be enjoyed in various ways. A right of carriageway ordinarily includes within it a right of footway, such that the latter is not so much an independent right as it is a subset of the right to access the servient tenement granted by easements of that nature. The Roman law promulgated by the Emperor Justinian in 533 CE functioned in much the same way. One who had the benefit of a praedial servitude of uia (the right to treat a tract of the servient tenement as a road) was also seen as possessing the lesser rights of actus (the right to drive beasts through the servient tenement) and iter (the right to traverse the servient tenement by foot) (see Justinian, Institutes 2.3.pr). So viewed, it is difficult to see why a failure to use a particular mode of enjoyment of the right should be regarded as indicative of any abandonment of the right. The question, of course, is one of abandonment of a right, not one of abandonment of a permitted use.
It is necessary to consider all of the relevant circumstances. I have already concluded, in relation to the Ryans, that the inference should not be drawn that they had a firm intention that neither they nor any successors in title would make use of the easement in the future. Further, I would not in all the circumstances infer from the limited mode of use of the right of carriageway that the Ryans, at any stage, had a firm intention that neither they nor any successors in title would in the future make any more extensive use of the easement. In addition, the conduct of the Ryans in 2010, after the period of limited use had ceased, and after the circumstances that gave rise to that use had passed, appears contrary to any such intention. Mr Ryan told the defendants' conveyancers that he was interested in using the right of carriageway for access in due course. That conduct plainly suggests that the Ryans continued to hold an intention to make use of the right of carriageway in the future. I do not accept that the intention so exhibited should be regarded as limited to pedestrian use only.
For the above reasons, I am not satisfied that by the acts or omissions of the Ryans they may reasonably be considered to have abandoned the right of carriageway except to the extent of a footway.
It follows from the above that the defendants' claims under s 89(1)(b) have not been made out.
I turn now to consider the defendants' claim under s 89(1)(c) that the proposed extinguishment of the right of carriageway would not substantially injure the plaintiffs as the persons entitled to the easement.
It has been held that a substantial injury within the meaning of s 89(1)(c) means an injury that has present substance; that is, not a theoretical injury, but something which is real and which has present substance (see Re Mason and the Conveyancing Act [1962] NSWR 762 at 766 per Jacobs J). The kind of injury contemplated is injury to the persons entitled to the easement in relation to their ownership of the land benefitted (see Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 at 56,856 per McLelland J, cited by Campbell J, as his Honour then was, in Tujilo Pty Ltd v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209 at [87]).
I am not satisfied that an extinguishment of the right of carriageway, as sought by the defendants, would not substantially injure the plaintiffs as the persons entitled to the easement. Even accepting that it is unlikely that the right of carriageway will ever be able to be developed so that it is suitable for certain kinds of vehicular access, it can be readily made suitable for pedestrian access. That could be achieved by the removal or modification of the fences that presently obstruct the easement. As I have already said, there is also the potential for the surface of the right of carriageway to be improved to provide an enhanced pathway that might, for example, be suitable for bicycles. If the easement were extinguished, the plaintiffs as the persons entitled to the easement would at least be deprived of the ability to make use of the right of carriageway for pedestrian access between the rear of Lot 30 and Marlee Street. To my mind, that would be a substantial injury within the meaning of s 89(1)(c). Accordingly, the defendants' claim under s 89(1)(c) has also not been made out.
As I am not satisfied of any of the matters set forth in paragraphs (a)-(c) of s 89(1) of the Conveyancing Act, it is not necessary to consider whether to proceed to exercise the discretion conferred by the section to order the extinguishment of the right of carriageway. Matters that might have arisen on that question could include that the plaintiffs acquired Lot 30 at least partly in reliance upon the existence of the right of carriageway recorded on the title to the property, and the related fact that the defendants had not by that time taken steps to have the right of carriageway extinguished (see Pieper v Edwards [1982] 1 NSWLR 336 at 340 per Hutley JA; cf at 342-3 per Samuels JA).
It follows from the above that the defendants' Cross-Claim must be dismissed.
Turning then to the plaintiffs' claim, it is clear in my view that the three fences that traverse the right of carriageway amount to obstructions of the easement. The fence located at the front of Lot 29 and the fence located about halfway along the right of carriageway, both of which were erected by the defendants in about 2011 (see the affidavit of Lena Achdjian, 1 April 2022, at paragraph 23), are obstructions that constitute a real substantial interference with the enjoyment of the right of carriageway, and thus amount to actionable nuisances (see Powell v Langdon (1944) 45 SR (NSW) 136 at 139 per Roper J, and Keefe v Amor [1965] 1 QB 334 at 347 per Russell LJ, each cited by Bryson J, as his Honour then was, in Prospect County Council v Cross (1990) 21 NSWLR 601 at 608-9; see also Treweeke v 36 Wolseley Road Pty Ltd (supra) at 280-1 per McTiernan J). Declaratory relief to that effect should be given. It would also be appropriate for orders in the nature of mandatory injunctions to be made requiring the defendants to take steps to remove those obstructions. I do not think that any other injunctive relief is called for in the circumstances.
The Colorbond fence along the rear boundary of Lot 30 stands in a different light. That fence was constructed at some time in the period between 1986 and 2005 as a result of an agreement between the Ryans and the then-owners of Lot 29, with the cost shared between them. The agreement of the owner of the dominant tenement means that the obstruction created by this fence could not be regarded as an actionable nuisance. Accordingly, it would not be appropriate to order the defendants to take steps to remove that obstruction. It would, of course, be open to the plaintiffs to take such steps at their own cost in order to facilitate the exercise of their rights pursuant to the easement. I express no view as to whether the plaintiffs would be entitled to any contribution from the defendants in respect of any such expenditure.
As the plaintiffs have been successful in obtaining much of the relief they sought, and as the defendants' Cross-Claim is to be dismissed, it would be appropriate to order that the defendants pay the plaintiffs' costs of the proceedings.
The parties are directed to confer as to the precise terms of the orders to be made, and to submit to my Associate, within seven days, proposed orders to give effect to these reasons.

Castle v Achdjian

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