Chatterton v City of Parramatta Council

Factual background and summary of evidence

1. The following is a summary of the relevant facts based on the evidence.
2. The plaintiffs read affidavits from Mr Chatterton (the first plaintiff) sworn 14 May 2021 and 31 January 2022, Ms Old (the second plaintiff) sworn 13 May 2021, and Hayden Dyer, a solicitor, affirmed 9 July 2021 and 7 September 2021.
3. The Council relies on affidavits from the following: Maurice Higgins, the Council's Property Plan and Program Manager, affirmed 26 October 2021; Hamish Murray, the Council's Project Officer Universal Access, affirmed 5 April 2022; Leo Dorizas, an owner of a Subdivided Lot, sworn 26 October 2021; David Bligh, an owner of a Subdivided Lot, sworn 26 October 2021; Mark Gosbell, the Principal of the Hills School, sworn 26 October 2021; Jay Lawrence, a resident of Mary Street, affirmed 26 October 29021; Philip Black, a resident of Mary Street, sworn 26 October 2021; and Susan Colmar, a resident of Mary Street, sworn 26 October 2021.
4. The Council also relies on an expert report from Deborah Eastment dated October 2021 and affidavits from Ms Eastment in relation to her report, sworn 4 and 6 April 2022.
5. Mr Chatterton, Mr Dorizas, Mr Gosbell and Ms Eastment were each cross-examined. No issues of credit were raised, although submissions were made by the plaintiffs about the weight that should be given to evidence from local residents and Mr Gosbell and to Ms Eastment's opinions, which I deal with below.
6. The evidence includes various documents, such as title searches, transfers, council records and photographs, some of which are duplicated. In these reasons, I refer to documents by their Court Book page number or Exhibit number.
7. Most of the factual matters are not in dispute. To the extent there are disputes, the following should be taken to be my findings in respect of those matters.

History of the relevant land and creation of the easements

1. Lot 56 was part of 100 acres of land (Portion 153 of Parish) that had originally been granted to Adam Abel Alderson and Henry Alderson by Crown Grant dated 19 January 1841 (CB82).
2. In 1922, Lot 56 was owned by William Dick Moxham (as to one half share) and Stanley Thomas Moxham and Mary Agnes Moxham (as to the other half share) (Moxham family) and was contained in Certificates of Title Volume 3340, Folios 22 and 23. At that time, the Moxham family also owned approximately 43 acres of land to the south of Lot 56, which ran west to east between Windsor Road and Darling Mills Creek, as contained in Certificates of Title Volume 3148, Folios 178 and 179.
3. By Transfer A899702 dated 19 December 1922, the Moxham family transferred 16 of their 43 acres (that lay to the south-east of Lot 56) to Harry Alexander Cameron, a farmer from Northmead (CB90). The 16 acres of land did not have direct access to Windsor Road or any other public road and was transferred to Mr Cameron together with: "… full right and liberty for the transferee, his heirs, executors, administrators and assigns as owner or owners for the time being of and appurtenant to the land hereby transferred and his and their tenants and servants and all other persons authorised by him or them for all purposes from time to time and at all times hereafter as his and their will and pleasure to pass and re-pass with or without horses, cattle and other animals, carriages, carts, motors (sic) and other vehicles of all descriptions over and along the parcel of land coloured yellow on the said plan hereto annexed being part of the land in Certificates of Title Volume 3148 Folios 178 and 179 and Volume 3340 folios 22 and 23".
4. By Transfer A937168 dated 3 April 1923, the Moxham family transferred 11 acres of the 43 acres (that lay to the immediate south of Lot 56) to William Sutherland Bowes, an orchardist from Northmead (CB99). Like the Cameron Land, the land sold to Mr Bowes did not have direct access to any public road. It was transferred to Mr Bowes together with: "… full right and liberty for the transferee, his heirs, executors, administrators and assigns as owner or owners for the time being of and appurtenant to the land hereby transferred and his and their tenants and servants and all other persons authorised by him or them for all purposes from time to time and at all times hereafter as his and their will and pleasure to pass and re-pass with or without horses, cattle and other animals, carriages, carts, motors (sic) and other vehicles of all descriptions over and along the parcel of land coloured yellow on the said plan hereto annexed being part of the land in certificates of title volume 3340 folios 22 and 23".
5. The digitised copies of Transfers A899702 and A937168 do not include yellow colouring on the plans that identify the location of the rights of way created by the transfers. However, the location (and dimensions) of the rights of way created by the transfers are not in dispute and are illustrated in the plans below. Transfers A899702 and A937168 each created a right of way that is located on the eastern boundary of Lot 56 (the part of the land in certificates of title volume 3340 folios 22 and 23) to the benefit of the lands transferred to Messrs Cameron and Bowes (Lot 56 ROW). Transfer A899702 also created a right of way along the northern boundary of the land subsequently transferred to Mr Bowes (the part of the land in certificates of title volume 3148 folios 178 and 179) to the benefit of the land transferred to Mr Cameron (Cameron ROW) As noted above, the Lot 56 ROW is 20 feet (6.096 metres) wide and 65.84 metres long.
6. The plan below is taken from the "Plan of the Subdivision of [the Moxham family] Land in Certificate of Title Volume 3148 Folio 178" (CB103 and CB104) and depicts the 16 acres transferred to Mr Cameron (coloured blue), the 11 acres transferred to Mr Bowes (coloured green), Lot 56 (coloured red), the location of the Lot 56 ROW (identified by the black dashes in Lot 56), the Cameron ROW (coloured brown along the northern boundary of the Bowes land), Darling Mills Creek (coloured dark blue), Mary Street, William Street and Windsor Road:
7. The plan below is taken from Certificate of Title Volume 3491 Folio 67 (Exhibit 5) and depicts the 11 acres of land transferred to Mr Bowes, Lot 56, the Lot 56 ROW and the Cameron ROW (referred on the plan as marked in 'BLUE' and 'BROWN' respectively):
8. An aerial photograph from 1943 (page 1 of Exhibit 2) shows Lot 56 as a vacant block containing only bush, what appears to be an orchard on the land to the west of Lot 56 (and which borders Mary Street) and what appear to be orchards and/or bush on the lands transferred to Messrs Cameron and Bowes.

Bowes land becomes the Council Land/Northmead Reserve

1. The 11 acres of land sold to Mr Bowes remained in private ownership until 4 December 1967 when it was transferred, by registered dealing K887752 (Exhibit 4), by the then registered proprietor, Norma Martello, to the Council of the Shire of Baulkham Hills (Baulkham Hills Council). The transfer was subject to an encumbrance: "A899702 - Grant of a right of way over the piece of land 20 feet wide coloured brown in plan", being the Cameron ROW.
2. On 22 March 1996, the land was named "Northmead Reserve" by publication in the New South Wales Gazette. A plan of Northmead Reserve and its surrounds as gazetted on that day (CB450) follows:
3. As a result of the Local Government (City of Parramatta and Cumberland) Proclamation 2016 (NSW), which was published in the New South Wales Gazette on 12 May 2016, the boundaries between the Baulkham Hills Council and the Council were altered (under cl 4(1)) and the Baulkham Hills Council transferred Northmead Reserve to the Council, as recorded in Transfer AN115043N (CB456).
4. Northmead Reserve is classified as community land under Part 2 Division 1 of the Local Government Act 1993 (NSW) (LG Act) and is currently managed under the Hills Shire Council Sportsgrounds - Generic Plan of Management dated November 2014, made under the LG Act. According to cl 2.2 of the Plan of Management, one of the core objectives is to "encourage, promote and facilitate recreational pursuits in the community involving organised and informal sporting activities and games" on the Council land.
5. The Council Land has two adjoining sports fields constructed on it (used primarily as baseball fields by the Baulkham Hills Baseball Club), together with associated infrastructure, that includes two amenities buildings, floodlighting on the main sports field, protective metal screens and other fences located at various places, a neighbourhood playground on the eastern boundary adjoining Watson Place, and a roadway constructed along the northern boundary to the middle of the Council Land and connecting to Elizabeth Crescent, with a marked, carparking area for visitors to park their vehicles on the Council Land. The photographs in evidence (see, for example, pages 7-24 of Exhibit 2) suggest that most of the building works to the sports fields, amenities blocks and roadway/carpark connecting to Elizabeth Street were undertaken after 1989. The photographs and maps of the local area also demonstrate that there are currently multiple public road access points to Northmead Reserve, including from Watson Place in the east and Elizabeth Crescent and Margaret Street to the west, which lead onto Windsor Road.
6. The aerial photograph below (CB153) marks the locations of the main sports (baseball) fields and infrastructure constructed on Northmead Reserve, including buildings, fences, the playground and the roadway and carpark which are accessible from Elizabeth Crescent.
7. Since at least 1994, structures have been built on the Council Land that traverse the Cameron ROW. The photographs in evidence indicate that, as at the date of the hearing, the structures have the effect of reducing the 20 foot (approximately 6 metre) width of this right of way to what appears to be a standard footpath width in some areas and a lesser width in other places, and that it is not passable by standard motor vehicles (see, for example, CB228, CB229 and CB359-CB375).
8. Along the southern boundary fence between the Hills School and the Council Land (to the north of the "eastern diamond" sports field) is a gate that provides access between the school and Northmead Reserve (see, for example, CB230 and CB231).
9. A Title Search of the Council Land, as at 27 November 2020, records that title is subject to a "Right of Way affecting…part of the land" by reference to Transfer A899702 (the Cameron ROW) and a "Right of Way appurtenant to the land", by reference to Transfer A937168 (the Lot 56 ROW).

Cameron land becomes the Subdivided Lots

1. In 1968, the land transferred to Mr Cameron was the subject of a subdivision in Deposited Plan 236669. The subdivision provided for residential housing and the construction of an internal road network that enabled access from the individual lots to other public roads and Windsor Road and included a cul-de-sac, Watson Place (which connects to the Council Land), Grasmere Avenue, Caprera Road and Pye Avenue. By 1970, houses had been constructed on the subdivided lots (see, for example, page 4 of Exhibit 2).
2. As a consequence, the land sold to Mr Cameron now comprises multiple individual lots owned by different land holders. The plaintiffs accept that each of the lot holders is ostensibly entitled to exercise the rights of the dominant tenement in respect of the Lot 56 ROW created by A937168: Gallagher v Rainbow (1994) 179 CLR 624 at 632.
3. Mr Chatterton estimates that about 68 houses have been built on what was originally part of the land transferred to Mr Cameron. Mr Dyer estimates that the residential land that benefits from the Lot 56 Right of Way is now contained in Lots 28 to 119 in Deposited Plan 236669.

Lot 56

1. Lot 56 was acquired by the plaintiffs' father in September 1970. After the purchase, he and his wife and their children (the first and second plaintiffs), who were young children at the time, moved into and lived in the house that had been constructed on Lot 56. Ms Old lived at Lot 56 until she moved out in 1985. Mr Chatterton moved out in 1988 and then visited on average once a month while his parents were alive.
2. The plaintiffs became the registered proprietors of Lot 56 in September 2019, after the death of their parents. Prior to being incorporated in Auto Folio Identifier 56/8884, title to Lot 56 was in Certificate of Title Volume 5432 Folio 246, which was issued in 1944 and records that title to Lot 56 is subject to the Lot 56 ROW created by transfers A899702 and A937168 (CB82).
3. The location of the house on Lot 56 and a double garage located behind (but not adjoining) the house have not relevantly changed since 1970. They are located on the western side of Lot 56 and do not traverse the ROW (see pages 4-24 of Exhibit 2). Along the eastern boundary of Lot 56 is a 2-metre metal picket-style fence that separates the lot from the Hills School (see the photograph at [41]).
4. The evidence from Mr Chatterton, Mr Dorizas and documents, including photographs and survey plans, establishes the following: 1. in the 1970's, a wooden fence may have run down the length of the Lot 56 marking the width of the Lot 56 ROWs, but it was in disrepair and was no longer in existence by 1985 (T37.20-25, pages 4-6 of Exhibit 2); 2. a large metal bin (like a skip) and two wooden bollards were placed on the Lot 56 ROWs during the early 1980s and remain there today, with the metal bin sitting on a concrete slab (CB80). Mr Chatterton gives evidence that his father installed the timber bollards for the safety of his family as the only vehicles that would use the Lot 56 ROW were cars that used to travel down at excessive speed to access the Council Land (and perform burnouts), noting that, at the time, the Council Land was vacant as the baseball fields were not erected until the early 1980s; 3. from at least 1989, cars and other vehicles (such as vans) were driven and stored on Lot 56 by the plaintiffs' father (who worked as a mechanic), sometimes across the Right of Way (T39.8-11); 4. at some time prior to or around 1994, an area between the skip bin and the garage was concreted by the plaintiffs' father (T40.13-14), and sometime in 2009, a paved driveway was installed from Mary Street to the garage (T44.33-44) and some sheds at the rear of Lot 56 were installed. The remainder of the Lot 56 ROW was and remains unsealed and is covered by grass; 5. the northern boundary of Lot 56 (on Mary Street) is unfenced and has no gate; 6. in early 1995, the plaintiffs' father installed a high, green metal sheeted fence (which appears to be approximately two-metres high) along the southern boundary of Lot 56, with a double gate (each one opening up approximately three metres wide) that was closed shut. On 20 February 1995, Mr Dorizas wrote to the Baulkham Hills Council and notified that the erection of the gates was blocking the right of way that had been used for pedestrian access to and from Mary Street, that motor vehicle access to Northmead Reserve was prevented by timber bollards and requested the Council to remove the metal gates "so that pedestrian access to the [Lot 56 ROW] can be maintained". Sometime after May 1995, the eastern side of the gate was propped open and remained open, (although occasionally closed according to Mr Dorizas); and 7. in early 2008, the Hills School erected a builder's fence that ran down the length of and within the Lot 56 ROW. On 19 February 2008, Mr Dorizas wrote to Baulkham Hills Council about the obstruction of the "pedestrian right of way" that ran alongside the Hills School boundary which he asserted was resulting in people being forced to enter onto private property to travel between Mary Street and Northmead Reserve and asked whether Council would clarify that this was a temporary measure and requested the construction of a concrete pathway by the builders on the completion of the works. There is no response from Baulkham Hills Council in evidence. The safety fence was subsequentially removed but the concrete pathway was not constructed on the Lot 56 ROW.
5. The survey plan of Lot 56 (CB105) below shows the location of the Lot 56 ROW along the boundary of Lot 56, the paved driveway (shaded grey), the wooden bollards and metal bin on the Lot 56 ROW and the single storey house:
6. The photographs below (taken facing south towards Northmead Reserve and north towards Mary Street, CB242 and CB406) show the paved driveway, the two wooden bollards and the metal bin (on a concrete slab), the house, the garage and sheds, the black metal fence on the eastern boundary with the Hills School and the green metal fence at the southern boundary of Lot 56 (which has one of the gates open):
7. It is common ground that the distance between the black metal fence (that forms the eastern boundary with the Hills School) to the closest wooden bollard is 1.85 metres; the distance from the fence to the second bollard is 3 metres; the distance from the fence to the start of the concrete slab is 3.2 metres; the distance from the fence to the end of the concrete slab on which the bin sits is 5.5 metres; and the width of the open green gate is approximately 3 metres (T86.9-49, T105.45-46). As is apparent, there is a clearly worn path along the Lot 56 ROW that extends from the end of the concrete driveway between the wooden bollards to just beyond the open green gate, on the Council Land.
8. The aerial photograph below (page 24 of Exhibit 2) was taken in 2021. It shows the position of the infrastructure on Lot 56, including the paved driveway running from Mary Street past the house, the metal bin (on the Lot 56 ROW), the garage and sheds, the open gate and the worn path, as well as the two sports (baseball) fields, buildings and roadway/carpark on the Council Land and the Hills School:

Mr Chatterton and Ms Old

1. Ms Old gives evidence that she has not seen a vehicle attempt to use the Lot 56 ROW since at least 1970. Mr Chatterton says that other than vehicles using the Lot 56 ROW until the early 1980s, when the bollards and bin were installed (as described at [39(b)] above), he has only ever observed the Lot 56 ROW being used by pedestrians. He recalls seeing approximately 15 pedestrians on an average day using the Lot 56 ROW either to access the Hills School or traverse over Northmead Reserve to access the playground.
2. Mr Chatterton and Ms Old both give evidence to the effect that, to their knowledge, no one has ever complained that they wished to take a vehicle along the Lot 56 ROW but were unable to do so because of the existence of the bollards and the metal bin.
3. Mr Chatterton gave evidence in cross-examination that after his parents passed away, he and Ms Old took steps to sell Lot 56 at auction in October 2020 but it did not sell as the plaintiffs did not receive the price they wanted. Mr Chatterton also gave evidence that the plaintiffs had no plans to develop the property themselves and accepted that he is asking the Court to modify the easement so the plaintiffs could get a better price (T46.50-T47.13, T47.15-37).

Subdivided Lot owners and community members

1. Mr Dyer deposes that, in accordance with the orders made by Darke J on 16 July 2021, a notice concerning the plaintiffs' application (Notice) was sent by post on 26 July 2021 to the current registered owners of Lots 28 to 119 in Deposited Plan 236669, was published in the Parramatta Advertiser via the Daily Telegraph on 10 August 2021 and, on 4 August 2021, was published on the Northmead Community Group Facebook group and the Northmead, Winston Hills and North Rocks Social Community Facebook groups.
2. Between 8 August and 27 August 2021, the plaintiffs' lawyers received responses to the Notice from two Subdivided Lot owners (Mr and Mrs Dorizas and Mr and Mrs Bligh) and from six members of the community (Professor Colmar, Mr Black, Mr Lawrence, Mr Gosbell, Kaixin Yao and Len Rogerson).
3. Mr Dorizas and his wife have been the registered proprietors (as joint tenants) of Lot 37 in DP 236669 in Watson Place for 37 years. Mr Dorizas gives evidence that he and his family have used the Lot 56 ROW during that time, and that he uses it at least three times per week for convenience, when he walks to his doctor or the chemist (who are located on Windsor Road, Winston Hills), the closest post box (which is located in Windermere Avenue, Northmead) or to the Hills School (he attends concerts and an election voting centre there), and when walking for exercise. He also gives evidence that he has seen other people on the Lot 56 ROW walking, jogging, riding bikes, pushing prams, riding scooters and walking dogs in both directions, he estimates that there has been an increase in the use of Lot 56 ROW since 1984 to present in the order of at least 30% and that he observed 17 people using the Lot 56 ROW between 3:15 pm to 4:15 pm on Friday, 18 October 2021, most of whom were walking but one person had a pram, one was with two children and their bikes, and one person was on a scooter.
4. During cross-examination, Mr Dorizas accepted that he could walk to his doctor's surgery without using the Lot 56 ROW and there were other routes that he could use to get to Windsor Road (T53.17-23).
5. Mr Dorizas does not oppose modification by a reduction in the width of the Lot 56 ROW. In cross-examination, he said he would be comfortable with a reduction to 3 metres but did not accept a reduction to 1.5 metres (T54.42-45). In his affidavit, he explained that he considers that if the width of the Lot 56 ROW were reduced to 1.5 metres, it would make it difficult and unsafe for pedestrians to pass, especially those using prams and wheelchairs.
6. Mr Bligh and his wife have been the owners, as joint tenants, of Lot 50 in DP236669, in Grasmere Avenue, for 35 years. He gives evidence that he used the Lot 56 ROW regularly on route to and from work between 1986 until he retired in 2011 and witnessed many local residents also using it during this period. He says that he and his wife continue to use the Lot 56 ROW when walking in the neighbourhood and that he has observed some of his neighbours doing so. According to the email sent in response to the Notice, Mr Bligh opposes the orders extinguishing the Lot 56 ROW but says nothing about modification.
7. Professor Colmar has lived in Mary Street since December 1995. She gives evidence that she uses the Lot 56 ROW almost every day to access Northmead Reserve for exercise and leisure and that a number of people who live in her complex also use it for that purpose. Professor Colmar's letter sent in response to the Notice states that she supports a reduction in the width of the Lot 56 ROW (but does not say to what width) and opposes its extinguishment.
8. Mr Black has resided in Mary Street since November 2019. He uses the Lot 56 ROW regularly to access Northmead Reserve to go for a run and for leisure time with his family and has observed other residents using it. According to the letter sent in response to the Notice, Mr Black objects to the extinguishment of the Lot 56 ROW, considers the proposal to modify to a width of 1.5 metres to be too small, as it does not allow the safe passage of prams, bikes or wheelchairs to pass each other along the pathway or a COVID safe distance, and suggests a 3 to 4 metre width with a concrete base.
9. Mr Lawrence has lived at Mary Street, Northmead since 1992. He gives evidence that he uses the Lot 56 ROW two to three times per week to access Northmead Reserve for exercise and also regularly sees other people using it, including children and adults riding bikes, adults pushing prams and people walking dogs or exercising. It is not clear from the letter sent in response to the Notice or his affidavit, whether Mr Lawrence objects to a reduction of the width of the Lot 56 ROW.
10. Mr Gosbell has been employed by the Hills School since March 2019, as acting or permanent Principal. The Hills School was founded in about 1977 and caters for students with moderate to severe intellectual disabilities from Kindergarten to Year 12. Mr Gosbell gives evidence that students of the Hills School use the Lot 56 ROW on a daily basis to get to the main entrance gate to the Hills School, which is located off William Street, close to the corner with Mary Street, and that parents of the Hills School and community members also utilise the Lot 56 ROW throughout the year when they travel from the Northmead Reserve parking area to the school.
11. Mr Gosbell's evidence on affidavit and in cross-examination is that the Lot 56 ROW is also used by teachers and students as part of regular walking trips around the local community from the school grounds. He describes the Lot 56 ROW as part of a regular walking route or "loop", that is used to assist in teaching students with disabilities to engage in community access and follow appropriate safety processes (T61.13-28, T61.46-T62.38). He says that students who use the Lot 56 ROW on such walks are often accompanied by staff who need to provide direct physical support for movement and that some students require risk management plans that provide for one or two adults in attendance, with an allowance for an appropriate distance between the staff and student in case a student "strikes out". Mr Gosbell says that a reduction in the width of the Lot 56 ROW might potentially render such support unsafe and it would be more difficult and limit the ability for some students to engage in regular walking activities with their class. Mr Gosbell considers the Lot 56 ROW to be a significant amenity for the Hills School and its community and would like to see it remain unchanged.
12. In cross-examination, Mr Gosbell accepted that students could access the Northmead Reserve via a gate on the southern boundary between the Hills School and the Reserve (described at [31] above) and did not need to use the Lot 56 ROW to access the sports fields (T58.22-24).
13. Kaixin Yao and Len Rogerson both live on Mary Street. According to communications sent in response to the Notice (CB61 and CB72), they both oppose the extinguishment of the Lot 56 ROW. Kaixin Yao's email states that they use the Lot 56 ROW to walk to the park and playground. Len Rogerson says he has seen many people using the Lot 56 ROW, including students from the Hills School to access the sporting grounds or as a short cut from the back streets to get to Windsor Road. Kaixin Yao considers that a reduction in width would be acceptable. Len Rogerson believes that 1.5 metres is a bit narrow, that 2 metres should be the minimum width, and noted that one neighbour thought that 3 metres would be better.

Expert evidence

1. Ms Eastment is a landscape architect and urban designer and is employed by the Council as the Public Domain Team Leader.
2. By letters dated 8 and 25 October 2021, Ms Eastment was asked to prepare an expert report setting out her opinion, having regard to existing planning and other requirements and guidelines, as to the minimum width(s) for the safe and effective use of the Lot 56 ROW for the following three scenarios: first, use by pedestrians, mobility scooters, prams, wheelchairs, bicycles and scooters; second, use by vehicles; and third, use by pedestrians, motor scooters, prams, wheelchairs, bicycles and scooters in the event of the simultaneous use of the Lot 56 ROW by vehicles associated with Lot 56.
3. In forming her opinions, Ms Eastment had regard to advice she received from Mr Murray in relation to Australian Standard 1428 Design for Access and Mobility (AS1428), which specifies the minimum design requirements for new building work to enable access for people with mobility impairments, especially for people who use wheelchairs. Mr Murray deposes that he advised Ms Eastment that: 1. clause 6 of AS1428 provides that a minimum width of 1.8 metres is required to allow two wheelchairs to pass comfortably and a minimum width of 2.25 metre (2.45 metre preferred) is required to allow a wheelchair to perform a 360 degree turn; 2. the dimensions referred to in (a) usually apply to determine the width of footpath pavement, not the width of confined access ways, and that a 1.8 metre wide footpath pavement in a standard public street setting, typically set in a 3.5 metre verge or in an open park setting, allows people in wheelchairs using the path to pass easily and with dignity at a comfortable outdoor walking speed or faster; and 3. in the context of the Lot 56 ROWs, he would recommend that the paved concrete pathway be a minimum 1.8 metres wide, paved concrete pathway unencumbered by physical barriers.
4. Ms Eastment also had regard to the following documents and standards in forming her opinions: Parramatta Public Domain Guidelines, July 2017 (PPDG); draft Parramatta CBD Development Control Plan (currently on exhibition) (PCBD DCP); Parramatta Bike Plan, May 2017 (Bike Plan); Recreation and Open Space Guidelines for Local Government, NSW Department of Planning, December 2010; Draft Greener Places Design Guide, Government Architect NSW; The Hills Shire Council Sportsgrounds - Generic Plan of Management, November 2014; and to what she described as "Precedents", which involved a review of "Local Pedestrian Links" (existing pedestrian laneways that provide links between residential areas and public open spaces in the Northmead area), "Local Service Lanes" (existing service lanes that provide for vehicle connections between residential and major streets in the Northmead and Parramatta areas) and "Shared Ways" (existing laneways that provide a shared path for pedestrians and vehicles in the Parramatta CBD).
5. In Ms Eastment's opinion in relation to the first scenario, based on her review of controls and local precedents for anticipated future local access needs, excluding vehicles, the minimum required dimension for the width of the Lot 56 ROWs is 3.5 metres, and a wider 4 metre ROW is preferred to maximise comfort, convenience, safety and amenity for all users. This opinion is based on the advice that she received from Mr Murray (as set out at [62]) that shared off-road cycleways must be between 2.5 and 4 metres wide (PPDG, cl 3.2.3, although Bike Plan figures 14 and 15 provide that they must be between 3 and 4 metres wide), the expectation that the Lot 56 ROW, although not a dedicated cycleway, could be expected to be used by cyclists, motor scooters and children on bikes, potentially at speed, and the minimum permissible pedestrian lane width in the CBD is 3 metres (PPDG, cl 3.3.8) and a review of Local Pedestrian Link Precedents which revealed that pedestrian laneways typically have a width of 3.5 to 4 metres.
6. In responding to the second scenario involving the use of vehicles, Ms Eastment assumed that the intention is that the Lot 56 ROW can be used as a service lane, such that it can be used safely by vehicles as well as other users at the same time. Ms Eastment does not identify the minimum width she considers is required for the safe and effective use of the Lot 56 ROW by vehicles but refers to the existing minimum permissible service lane width for CBD pedestrian lanes as 6.1 metres (PPDG, cl 3.3.8), the proposed update to 6.5 metres for CBD settings (PCBD DCP, cl 4.4, Control C04) and a review of Local Service Lane Precedents which revealed service lanes with widths as narrow as 4.5 metres and as wide as 9.5 metres.
7. As to the third question, namely the minimum width for the safe and effective use of the right of way by pedestrians, motor scooters, prams, wheelchairs, bicycles and scooters together with use by vehicles associated with Lot 56, in Ms Eastment's opinion, additional space beyond the 3 metre private driveway width is required to provide comfortable passing of vehicles by cyclists at speed, the minimum possible dimension of the Lot 56 ROW is 5 metres (which is 3 metres for a driveway plus 2 metres for a cyclist) subject to a detailed design, it may be necessary for a widened driveway entry for the first 6 metres from the property boundary and passing bays, and it is reasonable to maintain the existing 6.096 metre wide Lot 56 ROW to safely accommodate vehicular and non-vehicular access, noting that the share way should reflect the dimensions typically requited in a service lane setting to ensure maximum safety for everyone.
8. In forming this opinion, Ms Eastment assumed that the full width of the Lot 56 ROW would be shared by vehicles and pedestrians, there would be no safe zones for pedestrians or other users when a vehicle is passing, the space would be designed in a way that is not clearly identifiable as a roadway, the future use of Lot 56 will be according to the "current LEP R2 zoning" and there may be multiple cars accessing the site. She noted that she was not aware of any guidelines or any other planning documents that specifically address the shared use of private land for driveway access and local public access by pedestrians, motor scooters, prams, wheelchairs, bicycles and scooters.
9. Ms Eastment's opinion takes account of the following: the minimum permissible driveway in a low-density residential context is 3 metres (AS2890.1, cl 3.2.2), although that does not anticipate shared use of a driveway for the public accessing local open space, as will apply to Lot 56; sufficient width must be provided to ensure safety, which she believes means that a safe and comfortable space for all vehicles using the driveway at a speed of up to 10 kilometres per hour, with the key users being cyclists; the minimum recommended desirable clearance for a moving cyclist is 2 metres (Austroads Part 14, 1999, and NSW Bicycle Guidelines 2005); the minimum recommended clearance based on AS1428.2 for pedestrians and wheelchairs (as set out at [62(a)] above); and a review of Shared Way Precedents, that revealed widths of between 4.1 and 6.1 metres.
10. During cross-examination, Ms Eastment: 1. accepted that many of the "Precedents" that she relied on and referred to in her report were apposite to the Parramatta CBD, rather than a residential right of way on private land (T73.18-34, T78.48-T79.3). She explained that she used them as context and gave evidence that there was no exact design or number of people or exact uses for the Lot 56 ROW (T73.22-34); 2. agreed that Mary Street did not have a dedicated cycleway, she would not recommend a dedicated cycleway being installed over the Lot 56 ROW, and that it was reasonable to allow the Lot 56 ROW to be used as a pathway for children on bicycles rather than a commuter cycleway (T70.30-44); 3. did not accept that the standards she referred to have no relevance, or only marginal relevance, to the Lot 56 ROW and gave evidence that they were the type of documents she would consider in her work in response to cases of this nature (T75.17-23); 4. accepted that no attempt was made to identify how many people used the Lot 56 ROW and explained that she would look what was needed to provide local residents a path to access the park asset without having to walk a long distance (T73.36-44); 5. the standard metreage for footpaths on the side of a road or in the CBD is not determined by how many people use them and are designed to accommodate use by people over time and to provide a safe, useable and functional connection in the future (T75.25-38); and 6. accepted that the Shared Laneway Precedents are rare outside the Parramatta CBD, although maintained that the documentation referred to was relevant to understanding the physical requirements of particular scenarios (T79.1-13).

The plaintiffs' modification application

1. Section 89 of the Conveyancing Act relevantly provides: 89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants (1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied - (a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or (b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part, … (c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation. (1A) For the purposes of subsection (1)(b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made. …
2. At the start of the hearing, the plaintiffs submitted that the Lot 56 ROW should be modified so as to read as follows: "…full right and liberty for the transferee, his heirs, executors, administrators and assigns as owner or owners for the time being of and appurtenant to the land hereby transferred and his and their tenants and servants and all other persons authorised by him or them for all purposes from time to time and at all times hereafter at his and their will and pleasure to pass and re-pass with or without horses cattle and other animals carriages carts motors (sic) and other vehicles of all descriptions over and along the strip of land 1.5m wide immediately adjacent to the eastern boundary of the land in folio identifier 56/8884 and being part of the eastern boundary of the land in folio identifier56/8884 and being part of the parcel of land coloured yellow on the said plan hereto annexed being part of the land in Certificates of Title Volume 3340 Folios 22 and 23."
3. In final closing submissions, the plaintiffs withdrew the application to modify the Lot 56 ROW by deleting the reference to "with or without horses, cattle and other animals, carriages, carts, motors [sic] and other vehicles of all descriptions" and limited their application for modification to the reduction in width in accordance with the Summons, so as to extend only 1.5 metres in width from the eastern boundary of Lot 56 or such other width as the Court considers appropriate (T153.42-47).
4. The plaintiffs rely on all three limbs of s 89(1) of the Conveyancing Act to seek modification of the easements. They emphasise the changes in the use of the land and character of the neighbourhood since the easements were created and contend that the object and purpose of the easements to provide access has largely been realised. They submit that the use of the Lot 56 ROW by the public at large is different from the use allowed by the Lot 56 ROW. They also submit that the Court should be satisfied that the Lot 56 ROW has not been used for more than 20 years by "horses, cattle … carriages, carts, motors [sic], (or) other vehicles of (any) description" and has been abandoned for those purposes, relying on s 89(1A) and acts and omissions of the Council in relation to the placement of the bollards and metal bin that impinge on the Lot 56 ROW.
5. The plaintiffs also contend that pedestrian access can be accommodated by a reduction in width to 1.5 metres and that continuation of the Lot 56 ROW at 20 feet (6.096 metres) provides no practical benefit that a Lot 56 ROW of 1.5 metres would not provide. They say that modification in that way would not substantially injure the Council or the Subdivided Lot owners nor the persons entitled to use the easements. They refer to the lack of objection by most Subdivided Lot owners and the acceptance of some modification by Mr Dorizas and Mr Bligh. The plaintiffs contend that little weight should be given to Ms Eastment's report and the conclusions drawn from it as she is employed by the Council and cannot bring an independent view to the advice that she provides, her expertise is in landscape architecture and horticulture rather than traffic or pedestrian movements or pedestrian access and, other than AS1428, the standards (in particular, the PPDG, the PCBD DCP and Bike Plan) and the comparison areas to which she has regard are of no relevance to the present situation (T96.28-T97.5).
6. The Council contests the modification application. It argues that its Lot 56 ROW is not obsolete and has not been abandoned, as it has been in constant use by pedestrians for decades. It contends that the Lot 56 ROW provides practical benefits to users and its width, at just over 6 metres, has continuing utility for safety and convenience reasons, relying on the opinions by Ms Eastment, and would cause substantial injury if reduced to the Council and members of the public who are authorised by the Council to use the Lot 56 ROW. However, the Council candidly accepted during oral submissions that modification of the easement to remove "horses, cattle and other animals" (excluding dogs and other 'companion' animals) would not cause substantial injury. The Council also submits that the Court should exercise its discretion not to make the order sought by the plaintiffs even if any of the sub-sections of s 89(1) of the Conveyancing Act are engaged.
7. It is common ground that there has been a significant change in the use of the land, from use of the Lot 56 ROW as the only access route to and from Mary Street for private landowners to regular pedestrian use by a large cohort of the community, and there has been a dramatic transformation in character of the neighbourhood, from agricultural rural land to subdivided suburbia. It is also common ground that there is no evidence of anyone other than the owners of Lot 56 or their invitees driving motor vehicles on the Lot 56 ROW for at least 20 years, or any evidence of use by horses or cattle for that period (T146.3-7 and T126.40-47).
8. The issues for determination are: 1. Whether the Lot 56 ROW, as to width, is obsolete or impedes the reasonable user of Lot 56 without securing practical benefit to the persons entitled to the Lot 56 ROW? 2. Whether the Lot 56 ROW has been abandoned in part? 3. Whether the proposed modification as to width will cause substantial injury to the persons entitled to the Lot 56 ROW? 4. Should the Court exercise its discretion to refuse to modify the Lot 56 ROW (assuming that any one or more of the conditions as section 89(1) of the Conveyancing Act is satisfied)?

Construction of the easements

1. In considering the plaintiffs' modification application, it is appropriate to start by construing the easements to identify the nature and extent of the rights conferred. The constructional task requires focus upon the terms of each easement as they appear in the instruments when they were each created: Westfield Management Limited v Perpetual Trustee Co Limited (2007) 233 CLR 528; [2007] HCA 45 (Westfield v Perpetual Trustee) at [15], [37] and [44].
2. The need to construe the terms of the Lot 56 ROW arises in the context where the plaintiffs submit that it is only the persons coming from or going to the dominant tenements whose interests must be considered, since the use of the Lot 56 ROW is limited to access to and from, but not across, the dominant tenements, relying on Harris v Flower & Sons (1904) 74 LJ Ch 127 (Harris v Flower) and Westfield v Perpetual Trustee at [24]-[27]. Thus, they say that the views or interests of persons other than the Council or the 68 owners of the Subdivided Lots can be ignored.
3. In that regard, the plaintiffs note that the evidence relied on by the Council refers to the use of the Lot 56 ROW as a means for pupils, staff and others to get from the Hills School to the sport fields on the Council Land or as part of a walking loop in the local community that traverses the Northmead Reserve. The plaintiffs submit that such uses by the public are a manifestation of the fact that the Council Land has changed from privately owned to publicly owned land and, from a practical point of view, they are unauthorised uses but ones that cannot be prevented (T151.10-16).
4. The Council submits that the words of the grant of the easements in this case differ substantially from the terms of the right of carriageway set out in Schedule 8 of the Conveyancing Act, and so cases that consider the Schedule 8 easement, or variations of it, such as the Westfield v Perpetual Trustee case, need to be treated with caution.
5. The Council also contends that the terms of the easements are of wide import and broad enough to embrace use of the Lot 56 ROW by the Council, as the owner of the dominant tenement, and other persons authorised by the Council to access the Council Land at all times and by any means and any type of vehicle, with and without any type of animal, and to pass across the Council Land to reach land beyond it.
6. I agree with Council's contention that the terms of the easements are broad. The rights granted (as set out at [18] and [19] above) "to pass and re-pass….over and along" the 20 foot strip of land on Lot 56 are expressed to be for "the transferee… and …all other persons authorised by him or them for all purposes" and "at all times" and do not qualify how the owners of the dominant tenements and persons authorised by them may exercise the rights of passage: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [18]. The references to "animals" and "vehicles of all descriptions" are generic descriptions that capture wide classes, notwithstanding that specific examples are given of "horses, cattle … carriages, carts...".
7. The words of the grants do not include specific reference to the rights of passage as being "to or from" the dominant tenements, unlike the easement in Westfield v Perpetual Trustee, the Right of carriage way in Schedule 8 of the Conveyancing Act and easements in other cases to which I was referred, see for example, Effeney v Millar Investments Pty Ltd & Ors [2011] NSWSC 708 (Effeney v Millar).
8. I am not persuaded by Council's submission that the absence of the words "to and from" suggest that the grants should be construed as permitting the Council and persons authorised by the Council (or the owners of the Subdivided Lots) to use the Lot 56 ROW to pass through or go across the dominant tenement(s) to get to other land, such as to access Windsor Road or as part of a neighbourhood walking loop.
9. In Westfield v Perpetual Trustee, the High Court noted at [25] the statement set out in Gale on Easements (from the 17th ed (2002) at 334, also contained in the most recent edition, 21st ed, (2020) Sweet & Maxwell at [9-45]) that: "The general rule is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant". It was expressed thus by Romer LJ in Harris v Flower & Sons (1904) 74 L.J. Ch. 127 at 132: "If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B."
10. The High Court noted that care must be taken not to elevate this to the status of a rule of construction or substantive law, but that it provides a starting point for construction and may yield to the terms of the grant and circumstances of the case: Westfield v Perpetual Trustee at [29].
11. The grants are to be construed as what the law regards as the benefits to the dominant tenements: Westfield v Perpetual Trustee at [21].
12. As the authors of Gale on Easements (Jonathan Gaunt and the Honourable Mr. Justice Morgan, 21st ed, (2020) Sweet & Maxwell) observe at [9-53], whether a grantee will be able to access another parcel of land from the dominant tenement will depend on whether they are using the right of way bona fide for the purposes of access to the dominant tenement, citing Harris v Flower among other cases: It does not, of course, follow that the mere fact that the grantee uses the way to enter close A makes close B incapable of access from close A. The question must always be whether the ostensible use of the way for the purposes of the dominant tenement is genuine or colourable: "the true point to be considered … should seem to be, quo animo the party went to the close; whether really or bona fide to do business there, or merely in his way to some more distant place".
13. The Lot 56 ROWs were created by the Transfers to the benefit of the dominant tenements and are expressed as rights to pass and re-pass over and along the strip of land that runs the length of Lot 56 between Mary Street and the land that is now the Council Land. In the circumstances of the grant relating to the land transferred to Mr Bowes, the benefit granted at the time of creation (and currently) was the provision of a right of way as an access route via Mary Street to and from the transferred land, as the dominant tenement: Thorpe v Brumfitt (1873) L.R 650 at 656-658. In the case of the grant created when the 16 acres of land was transferred to Mr Cameron, the benefit granted was the provision of two rights of way (one being the Lot 56 ROW, the other being the Cameron ROW), which together provided an access route via Mary Street to and from the dominant tenement.
14. Members of the public may be authorised by the Council to use the Lot 56 ROW to access the Council Land, as the dominant tenement owner. They may obtain a practical "factual" benefit by using the Lot 56 ROW as a short cut through Northmead Reserve to other land. However, it does not seem to be necessary for the enjoyment of the right granted to the benefit of the dominant tenement (which was to enable the Council Land to be accessible from Mary Street) that those using the Lot 56 ROW should be at liberty to pass through and beyond the dominant tenement or to bypass them entirely: Effeney v Millar at [78] - [79]. Based on the terms of the grant and the plans on the register, it could not be said that the Lot 56 ROW was granted as an access way from Mary Street for the purpose of travel across and beyond the 11 acres transferred to Mr Bowes, or that there is a current need to do so now that the dominant tenement is the Council Land.
15. I am also not persuaded that the references in the grants to "appurtenant to the land" and for "all purposes" assist the construction advanced by the Council.
16. I do not accept the Council's contention that the easement contemplates that the rights of the dominant tenement owner may be exercised in respect of land "adjacent" to the dominant land, such as the carpark, the playground or adjoining roads, as the Council is the owner of that adjacent land "appurtenant" to the land benefited, as well as the owner of the benefited land (Council's written submissions at [24(a)]). In my view, the word "appurtenant" in the grant signifies that the right and liberty to pass and re-pass belongs to the land "hereby transferred", namely to the dominant tenement only. In any event, the playground and the carpark form part of the dominant land as they are part of the Council Land, rather than land owned by the Council that is separate to and adjacent to the dominant land. As for the words "for all purposes", that expression encompasses all ends sought to be achieved by those utilising the Lot 56 ROW in accordance with its terms.
17. In this case, the purpose of the grants of the Lot 56 ROW was not to access further land reached only by going across and beyond the dominant tenements but for access to and from the dominant tenements in order for the dominant tenements owners to access public roads via Mary Street. There is nothing in the terms of the grants, on the registered instruments (such as the plans included in the Deposited Plans and Certificates of Title, see for example, at [18], [19], [32] and [37] above) or about the physical attributes of the site of the easements that warrants a construction that departs from the "general rule" referred to at [86].
18. It follows that I do not construe the easements as extending to a right to pass over and along the Lot 56 ROW and across the Council Land to access further parcels of land and I accept the plaintiffs' submission that the Lot 56 ROW does not benefit the public at large in that way.
19. That said, I do not accept that the only persons whose evidence is relevant to consider is the Council or the 68 owners of the Subdivided Lots and that the evidence of others (such as Mr Gosbell, Professor Colmar, Mr Black and Mr Lawrence) should be ignored. As persons who would be authorised by the Council to use the Lot 56 ROW to go to and from Northmead Reserve, evidence of their use of the Lot 56 ROW for that purpose and their views on the modification application are matters to which the Court should have regard. The fact that the Hills School has an alternate route to the sports field via the southern boundary gate does not negate that students, parents and teachers connected to the Hills School would be authorised by the Council to use the Lot 56 ROW to travel to and from Northmead Reserve, including for sporting activities.
20. On the other hand, Mr Gosbell's evidence of use of the Lot 56 ROW as part of the students' walking route through the neighbourhood, although desirable as a useful teaching aid, is of little weight in relation to the issues in this case, given use of the Lot 56 ROW for that purpose is not, in my view, justified by the terms of the grant.

Section 89(1)(a) - obsolete or impedes reasonable use

1. Under s 89(1)(a), the Court has the power to modify an easement on two bases each connected with changed circumstances. The first is that by reason of the change in the use of the land having the benefit of the easement or in the character of the neighbourhood, the easement ought to be deemed obsolete. The second is that the continued existence of the easement would impede the reasonable use of the land without securing practical benefit to the persons entitled to the easement: Effeney v Millar at [199]; Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321 at [60] and [61] (Re Rosedale Farm).
2. At the hearing, Senior Counsel for the plaintiffs did not argue for modification on the basis of obsolescence, accepting that obsolete as that term has been applied by the authorities, has been construed to mean incapable of further use (T100.11-17). In my view, that was an appropriate concession.
3. As noted at [76], it is common ground that use of the land and the character of the neighbourhood has changed dramatically since the time of the original grants to the current day, from rural land to subdivided suburbia. However, that there has been a change in user or character of the dominant land is not sufficient to establish obsolescence. It must also be shown that the Lot 56 ROW is obsolete in the sense that it is no longer possible to achieve the purpose for which the Lot 56 ROW was initially granted, which relevantly included pedestrian access between Mary Street and the Council Land, or that the Lot 56 ROW is currently incapable of being fulfilled and serves no presently useful purpose: Sheppard v Smith [2022] NSWCA 167 at [86] - [88] (Beech-Jones JA); Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 at [3] - [4]; Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80 at [40] (Ashoil Holdings v Fassoulas).
4. As to the second basis under s 89(1)(a), the plaintiffs submit that the continued existence of the Lot 56 ROW with a width of 20 feet (6.096 metres) impedes the reasonable use of their land as it affects a part of their land which could otherwise be developed. They also submit that the Lot 56 ROW at the current width does not secure any practical benefit to the persons entitled to its benefit, noting that the only Subdivided Lot owners who have objected wish to be able to continue to walk along the Lot 56 ROW which the plaintiffs say could easily be accommodated by a 1.5 metre path.
5. The plaintiffs also rely on three other circumstances which they say are most relevant to the consideration of their application in relation to the Council Land. The first is the change of use of the land from when the Lot 56 ROW was created in 1922 to now. The plaintiffs contend that the Lot 56 ROW was created to enable access to a small, 11 acre rural/agricultural property owned by a single individual at a time when there would have likely been no more than 9 visitors a week to the Bowes land, whereas now sports fields and infrastructure have been constructed on the land, with persons actively encouraged to use it. The second is that the Council has erected "no parking" signs in Mary Street at the northern end of the Lot 56 ROW, has made no attempt to render the Lot 56 ROW available for use by vehicles and has, instead, developed parking areas and paved roadways within the Council Land itself, which the plaintiff says thereby eschews any action which might be consistent with the use of the Lot 56 ROW by vehicles (or horses or cattle). The third is that the Baulkham Hills Baseball Club (which, according to its website, is a major user of the sports fields) has not lodged any objection to the application.
6. The Council submits that the plaintiffs have not met the standard required to establish that the easement in its present form impedes the reasonable user of Lot 56. I agree.
7. The plaintiffs' evidence does not address how it is said that the Lot 56 ROW impedes the reasonable user of Lot 56. From oral submissions, I understand that the plaintiffs rely on the fact that the Lot 56 ROW extends across almost one third of the width of Lot 56. In that context, they submit that significant evidence is not needed to be able to appreciate the extent to which the Lot 56 ROW creates an embargo on building on Lot 56. As was put, as the area subject to an easement is almost one third of the totality of the land and cannot be built on, then in this day and age, the Court should infer that the Lot 56 ROW amounts to an impediment to reasonable use of the land, particularly having regard to change in use and character of the land since the Lot 56 ROW was created (T101.17-37). I am not persuaded by that submission.
8. The concept of reasonable impediment is a narrow one. An applicant must show that no reasonable use is possible unless the easement is extinguished or modified. It is insufficient that an applicant's own proposal is a reasonable use of the servient land. An applicant must demonstrate that the unmodified easement hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property and the purposes of the easement: Sheppard v Smith [2021] NSWSC 1207 at [214]; Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743 at [14] and [15] (Frasers Lorne v Burke); Re Rosedale Farm at [64].
9. The existence of the Lot 56 ROW may well make it impossible to build across the width Lot 56 but the evidence does not establish, and I do not consider it open to infer, that the continuing Lot 56 ROW is necessarily an impediment to undertaking other building works on the land, such as the addition of another level to the existing house, an extension to the house or the redevelopment of a new house or even multi-unit housing (of a type similar to other developments in the area [1] ), albeit extending only down the western side of the Lot. Nor is there evidence of the extent of any financial reduction in the value of the land that might arise as a result of the inability to build across approximately 30% of the width of the land, even assuming that a decrease in financial value is sufficient to amount to an impediment to reasonable user for the purposes of the section.
10. The compression of the land available for building works may make it harder and less convenient to build on the land and may reduce its value, but the plaintiffs have no future (or past) plans for redevelopment and the evidence indicates that Lot 56 has been, and continues to be, reasonably used as residential land, consistent with the surrounding neighbourhood. It follows that the plaintiffs have not satisfied me that the continued existence of the easements would impede the reasonable user of Lot 56, and their claims under s 89(1)(a) are not made out irrespective of whether the Lot 56 ROW secures practical benefit to those entitled the benefit of it.
11. As to practical benefit, based on the evidence that the Lot 56 ROW continue to be utilised by those entitled to its benefit, such as Mr Dorizas and Mr Bligh, and by members of the local community are encouraged to use the Council Land and authorised by the Council to use the Lot 56 ROW to go to and from the Council Land for exercise (such as Professor Colmar, Mr Black, Mr Lawrence and Kaixin Yao), I am not satisfied that the plaintiffs have established that the Lot 56 ROW in its current form secures no practical benefit to the Council or the owners of the Subdivided Lots. That said, the evidence of use as a pedestrian walkway, together with the existence of alternative access pathways for motor vehicles to use to gain access to and from the dominant tenements, the change in the use and character of the neighbourhood and the other matters relied on by the plaintiffs (referred to at [102] above), would have led me to conclude that the continued existence of the Lot 56 ROW for use with horses, cattle, carts and motor vehicles does not secure any practical benefit to the Council and the Subdivided Lot owners.

Abandonment under s 89(1)(b)

1. At common law and under s 89(1)(b) of the Conveyancing Act, whether an easement has been abandoned is a question of fact to be determined having regard to all of the circumstances. The authorities refer to a requirement for a firm intention on the part of the dominant owner that neither they nor their successors in title will make any use of the easement and that abandonment is not to be inferred lightly: Sheppard v Smith [2022] NSWCA 167 at [45]-[46] citing Treweeke v 36 Wolseley Road Pty Ltd [1973] 128 CLR 274 at 282 and 302 (Treweeke v 36 Wolseley Road) and Proprietors Strata Plan No.9,968 & Ors v Proprietors Strata Plan No.11,173 [1979] 2 NSWLR 605 (Proprietors of Strata Plan No 9,968) at 617.
2. A right of way will not be abandoned by non-user alone although long-term non-use is a relevant circumstance. The longer the period of time that an easement is not used, the more readily a conclusion may be reached that a right of way may be deemed to have been abandoned, although where there exists a satisfactory alternative access, non-use may not be proof of abandonment as it may simply indicate no present need for the right of way, rather than an intention to give it up forever. In addition to non-use, there will generally need to be other factors that demonstrate an intention to abandon an easement. Acquiescence in, and failure to object to, the placing of obstructions on a right of way by the owner of a servient tenement which are inconsistent with the use of a right of way may lead to an inference that the owners of the dominant tenement intended to abandon it, although simply erecting structures across the site of a right of way that can be easily removed may not be sufficient: Sheppard v Smith [2022] NSWCA 167 at [67]; Treweeke v 36 Wolseley Road at 284, 288 and 303; Effeney v Millar at [86]; Proprietors Strata Plan No.9,968 at 617; Ashoil Holdings v Fassoulas at [54].
3. Under s 89(1A) of the Conveyancing Act, the Court may treat an easement as abandoned if satisfied that it has not been used for at least 20 years before the application under s 89(1) is made. Section 89(1A) is permissive only, operating as a deeming provision, to allow the Court to take passage of 20 years into account but does not require the Court to make findings or reach any conclusion in respect of abandonment and modification as a result: Effeney v Millar at [106].
4. In Sheppard v Smith [2021] NSWSC 1207 at [129] - [145], Parker J explained that s 89(1A) was introduced to import the procedure available to the Register-General under s 49 of the Conveyancing Act. In Parker J's view, the effect of its introduction is that in a case where there is no user of an easement for 20 years, and no evidence to negate the intention of the person benefiting the easement to abandon it, the condition for extinguishment is established, but the section does not otherwise affect the application of the traditional common law approach to abandonment: at [145] (not disturbed on appeal, Sheppard v Smith [2022] NSWCA 167 at [44]).
5. The plaintiffs' case under s 89(1)(b) is one of partial abandonment, namely the alleged abandonment by the owners of the dominant tenements, including the Council's predecessor in title (Baulkham Hills Council), of the use of the ROWs with horses, cattle, other animals, and motor vehicles. This abandonment is said to warrant the modification of the ROWs by the reduction in width to 1.5 metres, or some other width of less than 6 metres.
6. The Council accepts that where the grant of an easement creates a parcel of rights, one or more of those rights may be abandoned, in the sense that not using one of a parcel of rights (such as driving a motor vehicle along the site of a right of carriageway), may result in the loss of that right by implication from conduct: Proprietors Strata Plan No.9,968 at 613-614; see also Long v Michie [2003] NSWSC 233 at [12].
7. It seems reasonable in all the circumstances of this case to conclude from the use to which the land has been put and the change in the character of the neighbourhood from rural land to suburbia that the long-term failure to use the ROW with horses, cattle and other large non-domesticated animals could be regarded as indicative of an abandonment of those rights by the Council (and its predecessor in title) and the Subdivided Lot owners.
8. I would also be prepared to infer from the evidence that the firm intention exhibited by the owners of the Subdivided Lots might be regarded as limited to use of the Lot 56 ROW by pedestrians only (including those on bicycles, scooters, wheelchairs or with prams and domesticated animals). The evidence of use described by Mr Dorizas and Mr Bligh, the absence of any other communications in response to the Notice from owners of the Subdivided Lots, the existence of the structures over the Cameron ROW that prevents access over that right of way and onto the Lot 56 ROW by motor vehicles (and the absence of evidence of any objection having been taken to those structures), the contents of Mr Dorizas' communications with Baulkham Hills Council (as described at [39(f)] and [39(g)] above), together with the failure to use the ROW with motor vehicles over a long period of time, satisfy me that it might be said that the owners of the Subdivided Lots have abandoned the Lot 56 ROW other than as an access way for pedestrians on foot, bicycles or mobility aids to and from the dominant tenements.
9. The position of the Council is, in my view, different. The existence of the carpark and roads within and surrounding Northmead Reserve and the fact that no steps were taken by Baulkham Hills Council in 1995 or 2008 or by the Council since to have the wooden bollards and metal bin removed and the green gates fully opened to enable passage by motor vehicles are relevant considerations on the issue of abandonment. However, I do not accept that Council's conduct amounts to acquiescence in the placement of the bollards, metal bin and gates or that an inference should be drawn of an intention to abandon the Lot 56 ROW for use with motor vehicles or as to any particular width. Relevantly, the obstructions could be removed relatively easily and the historical non-use by motor vehicles is also explicable by the construction of the carpark and associated roadway on the Council Land and other roads that provide alternative means of access to Northmead Reserve by motor vehicle: Treweeke v 36 Wolseley Road at 294 and 303. The contents of the communications between Mr Dorizas and Baulkham Hills Council in 1995 and 2008 (outlined at [39(f)] and [39(g)] above) and the evidence that the "green gate" was propped open and remained open (although occasionally closed) after Mr Dorizas made his complaint and the temporary builders' obstructions to the ROW were removed also persuade me that I should infer that Baulkham Hills Council asserted its rights in respect of the Lot 56 ROW in 1995 and 2008 and did not abandon them entirely. There is certainly no direct evidence to support a finding of any such intention.
10. In any event, the plaintiffs' case is for modification as to width, not the removal of the use of rights with horses, cattle and motor vehicles, and findings of long-term non-use in these ways does not necessarily lead to the conclusion of abandonment, including in respect of part of the ROW.
11. The 3 metre wide opening of the green gate on Lot 56 (at the southern end), the placement of the wooden bollards and the location of metal bin may have had the practical effect of reducing the width of the Lot 56 ROW in some places, by causing pedestrians to adopt a narrower path over the grassed area of the Lot 56 ROW (to the south of the bollards and bin) and deterring passage with a motor vehicle, albeit not making it impossible, noting that the owners of the dominant tenements may have rights to deviate onto the servient tenement to go around the obstructions: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 355. Notwithstanding the obstructions, and the non-use by motor vehicles, I do not consider that the Court should infer and make a finding that pedestrians have not used the full width of the ROW since at least 1995, nor a firm intention on the part of the Council (or its predecessor in title) not to use (or authorise use of) the full width of the ROW for pedestrian purposes or by motor vehicles, such as to conclude there has been abandonment in those respects.
12. Overall, the evidence establishes long-term non-use of the Lot 56 with motor vehicles (and horses, cattle and other farm animals). It also leaves me with the impression that the full width of the Lot 56 ROW is unlikely to have been used on a regular basis by those entitled to the benefit of the ROW since at least 1995 (when the green gate was installed and propped open) and the Council, its predecessor in title and the Subdivided Lot owners have not sought to exercise their rights to their full extent, as to the mode of access. However, the evidence of the assertion of rights in 1995 and 2008 and the continued use of the Lot 56 ROW by pedestrians makes it clear that the Council and some of the owners of the Subdivided Lots have a firm intention that they, and their successors in title, will make use of the Lot 56 ROW in the future.
13. In Proprietors Strata Plan No.9,968, Needham J stated at 613E that "it may well be more difficult to establish abandonment [of one of the rights included in a parcel of rights created by a grant] where there is user of other rights over the locus".
14. More recently, in Castle v Achdian [2022] NSWSC 1340, Darke J observed at [71], by reference to Finlayson v Campbell (1997) 8 BPR 15,703, per Young J at 15,717-8, that it is difficult to apply the principle of partial abandonment to a right of carriageway especially where there has been some use of the right, noting that such use entails an assertion that the easement exists. His Honour also observed (at [72]) that it is difficult to see why a failure to use a particular mode of enjoyment of a right of way should be regarded as indicative of any abandonment of the right of carriageway, noting that such a right is a single right of traversal (to and from the dominant tenement) that may be enjoyed in various ways, such as by foot or with animals or vehicles, and the question under s 89(1)(b) of the Conveyancing Act is about abandonment of a right, not one of abandonment of a permitted use.
15. In that context, I am not convinced that I should infer that the long-term non-use of certain methods of enjoyment of the ROW and the acts or omissions of the Council and its predecessor in title are consistent with the firm intention not to make use of the full width of the ROW in the future or by motor vehicles, such as to conclude that it has been abandoned by them.
16. As to s 89(1A), as there has been continuing use of the ROW over the 20 years prior to the plaintiffs' application being filed on 14 May 2021 (by pedestrians and cyclists), I am not satisfied that there is the requisite evidence of long-term non-use nor that the statutory condition for modification by abandonment of the Lot 56 ROW has been established.
17. It follows that the plaintiffs have not made out their claim for modification on the basis of abandonment under s 89(1)(b).
18. I should record that if I am wrong to conclude that s 89(1A) cannot operate on the basis of 20 years of non-use of the right of way with horses, cattle and motor vehicles, the fact that the Lot 56 ROW has been obstructed in a manner that is inconsistent with the rights granted (by the erection of the bollards and the metal bin and the installation of the green gate) would have been a relevant factor that led me to exercise the discretion under s 89 of the Conveyancing Act against the partial modification of the Lot 56 ROW on the ground of deemed abandonment.

Section 89(1)(c) - No substantial injury

1. The legal principles applicable to consideration of this limb were not in dispute. They are set out in Re Rosedale Farm at [68], as cited in Effeney v Millar at [209], as follows: (a) a "substantial injury" is one that has real and present substance but need not be large or considerable: Re Mason and the Conveyancing Act (1961) 78 WN (NSW) 925 & (1962) NSWR 762 and Tujilo v Watts [2005] NSWSC 209; 12 BPR 23257 especially at [37]; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743; 14 BPR 26131 at [24]; (b) a wide variety of tangible and intangible potential injuries are encompassed by the expression "substantial injury" in s89(1)(c). Webster v Bradac (1993) 5 BPR 12,032; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743; 14 BPR 26131 at [27]; and (c) there must be an injury of "real and present substance" and examples of how this the statutory language has been applied with this concept in mind are usefully summarised by Young CJ in Eq, (as His Honour then was) in Castagna v Great Wall Resources Pty Ltd [2005] NSWSC 942; 12 BPR 23363 at [42]-[43].
2. The kind of injury contemplated is injury to the relevant persons in relation to their ownership of, or interest in, the land benefitted: Denshire v Newcastle City Council [2017] NSWSC 577 at [17] (Darke J) citing Tujilo v Watts [2005] NSWSC 209 at [87] (Tujilo v Watts).
3. The onus lies on the plaintiffs to satisfy the Court that the proposed modification will not substantially injure the Council and the owners of the Subdivided Lots: Tujilo v Watts at [36].
4. In some cases, that may mean that the applicant must demonstrate that the probability of use in the future is so remote, and the financial value of the easement is so small, as to be of no substance (Sheppard v Smith [2022] NSWCA 167 at [97]-[99]; Tujilo v Watts at [37]) although, substantial injury may also be of an intangible, non-economic kind that takes account of the preferences and subjective tastes of particular individuals, within limits of reasonableness: Frasers Lorne v Burke at [27] referring to Webster v Bradac (1993) 5 BPR 12,032 at 12,035 (Webster v Bradac).
5. The issues of "practical benefits" and "substantial injury" have been described as "quite similar questions" (Double Bay Bowling Club v Council of the Municipality of Woollahra trading as Woollahra Municipal Council [2020] NSWSC 1861 at [81]), although they are directed at conceptually different matters.
6. The concept of "substantial injury" under s 89(1)(c) of the Conveyancing Act directs attention to the effect of the proposed modification having regard to the nature and extent of the modification sought, as distinct from "practical benefit" under s 89(1)(a) of the Conveyancing Act, where the focus of the inquiry concerns the effect of the easement if not extinguished or modified: Castagna v Great Wall Resources Pty Ltd [2005] NSWSC 942 at [44]. A loss of a practical benefit may, depending upon the particular circumstances, constitute a "substantial injury" but the mere fact that the loss of some "practical benefit" may occur does not necessarily require the Court to hold that the proposed modification will substantially injure the persons entitled to the benefit of the easement: Durack v de Winton (1998) 9 BPR 16,403 at 16,1439 (Einstein J); Re RK Roseblade & VM Roseblade and the Conveyancing Act [1964-5] NSWR 2044 at 2046; Heaton v Loblay (1960) SR (NSW) 332 at 335.
7. The plaintiffs submit that the proposed modification to the Lot 56 ROW by the reduction of width to 1.5 metres, will not substantially injure the interests of the Council and the registered proprietors of the Subdivided Lots (as owners of the dominant tenements) or those entitled to use the ROWs (as authorised by the Council and the Subdivided Lot owners) as there is no evidence that anybody wishes to use the Lot 56 ROW other than for pedestrian purposes, perhaps with bicycles, scooters and prams. Reliance is placed on the fact that only 2 of the 68 Subdivided Lot owners have indicated any objection to the application, with only one, Mr Dorizas, specifically opposing a reduction of the Lot 56 ROW to less than 3 metres in width.
8. The plaintiffs acknowledge the possibility that the Lot 56 ROW could be used by persons in wheelchairs or motorised scooters but say that there is no evidence of such use and contend that there is no reason to believe that it ever occurs when regard is had to the rough nature of the surface of the Lot 56 ROW, the well-worn single track and the existence of the bollards and metal bin.
9. Although pressing for modification to 1.5 metres in width, the plaintiffs also contend, as alternatives, that: 1. a width of 1.8 metres is appropriate, should the Court conclude that the Lot 56 ROW should be sufficiently wide to allow persons in wheelchairs to pass one another; 2. a width of 3.5 metres is adequate, should the Court conclude that the Lot 56 ROW should be capable of accommodating cyclists passing one another at speed or the movement of vehicles; and 3. on any basis, there ought to be some reduction in width as the Lot 56 ROW in its current form at 20 feet wide is wider than necessary.
10. The Council submits that it and those authorised by the Council will suffer a substantial injury if the Lot 56 ROW is modified to a width of 1.5 metres. It argues that limiting the Lot 56 ROW to 1.5 metres is inconsistent with its safe and effective use and will cause difficulties in passing and separation of pedestrians and their chattels. Emphasis is placed on the evidence of Mr Gosbell, to the effect that students use mobility aids and other assistance devices and walk with teachers, evidence from local residents to the effect that they encounter other people coming in the opposite direction with bicycles or prams, strollers and scooters and the evidence of Ms Eastment.
11. Council submits that the existing width of 6 metres is necessary for the safe and effective colocation of motor cars and pedestrians, in the context where part of the driveway providing access to the servient tenement is located on the Lot 56 ROW (T138.4-15). Council submits that it has a responsibility to ensure that the ROW may be used safely and effectively, as the entity authorising use by others, and that a reduction in width would make the Lot 56 ROW substantially less easy to access as it would not allow for sufficient space within the easement for people to avoid cars driven by the servient tenement owners. The loss of convenience, amenity and safety for users by a reduction of the current width are said to be relevant detriments that are substantial for the purposes of s 89(1)(c), as real and not fanciful.
12. The Court considers the effect of the proposed modification, in terms of the "injury" to the persons entitled to the easements, who are the Council and the owners of the Subdivided Lots, as the owners of the land(s) that benefit from the Lot 56 ROW. In my view, the Court may also consider the effect of the modification on members of the public who are authorised by the Council to use the Lot 56 ROW, as persons who are entitled to the benefit of the ROW: Oldfield v Gold Coast City Council [2009] QCA 124 at [49]-[53].
13. In this case, the ROWs were created almost 100 years ago to enable direct access from the dominant tenements to a public road, Mary Street, and the roads beyond, including Windsor Road. The subdivisions of the surrounding land, including the Cameron land, and the construction of more roads means there is now better direct access to and from the dominant tenements for motor vehicles and pedestrians than through Lot 56, even assuming that the obstructions on the Lot 56 ROW (and Cameron ROW) were to be removed. In that context, and as there is no evidence that the Lot 56 ROW has been used with motor vehicles for over 20 years (other than by the owners of Lot 56 and their licensees), it seems to me that a modification of the Lot 56 ROW to remove the ability of motor vehicles to traverse it would not cause substantial injury, in the sense that there would be no loss of any convenience, amenity or practical benefit to the persons entitled to the easements if they continued to be unable to use the Lot 56 ROW with motor vehicles in the future.
14. This is particularly so for the Subdivided Lot owners who have not been able to access their dominant tenements from Mary Street using the Lot 56 and Cameron ROWs with motor vehicles due to the presence of structures (including the baseball dugout) built by the Baulkham Hills Council on the Cameron ROW between 1989 and 1994, and the inferences that can be drawn that there is no injury of that kind from the failure to assert any claim of injury to them on those grounds (or at all) and the limited assertion of rights to use the Lot 56 as a pedestrian right of way made by Mr Dorizas and Mr Bligh: Webster v Bradac at 12,035.
15. As to the Council, it submits that taking away the ability to drive cars on the Lot 56 ROW completely could cause it an injury of substance, as it is a potentially valuable right that may be needed in the future (T133.37-42). It also submits that Lot 56 is unlikely to remain undeveloped forever and it is of substantial importance that it is able to maintain the width of the ROW for motor vehicles in the event of an application for development (T132.12-22). While accepting that the Lot 56 ROW provides the Council with the benefit of a proprietary right and modification of an easement may cause substantive injury even if it is not currently being used (Sheppard v Smith [2021] NSWSC 1207 at [223], not disturbed on appeal in Sheppard v Smith [2022] NSWCA 167), I do not regard the matters raised by the Council as giving rise to a real or appreciable injury.
16. The existence of the surrounding roadways that provide multiple access points to the Council Land and its own internal roadway and carpark, and the situation and condition of the Lot 56 ROW (which, according to Ms Eastment's evidence, may not be of sufficient width to meet the planning requirements for a shared motor vehicle pathway: CB315 at [3.1.53]) make it highly unlikely and unreasonable to expect that the Lot 56 ROW will ever be used again by Council for motor vehicle access to and from the Council Land. It is also difficult to see how the deprivation of the right to drive motor vehicles on a roughly 65 metre length of the Lot 56 ROW to obtain access to or from Northmead Reserve in the future could result in the loss of any real or practical benefit, convenience, or value of a physical or economic kind when direct access is available via a number of sealed public roads close by, and the walk down the Lot 56 ROW would take a minute or so. To my mind, the limitations on Council's right to do so could only give rise to mere theoretical injury, rather than injury of substance.
17. Thus, I would be satisfied that a modification to remove the right to use the easements with motor vehicles would not substantially injure the persons entitled to the easements. However, the question that remains is whether, a modification of the Lot 56 ROW by a reduction in width will substantially injure the persons entitled to the easements, assuming that the Lot 56 ROW continues not to be used by motor vehicles, other than by owners of Lot 56 and their invitees.
18. Having considered the submissions and the evidence, I am not satisfied that modification of the Lot 56 ROW by the reduction of width to 1.5 metres or, alternatively to 1.8 metres, as the plaintiffs seek, would not substantially injure the persons entitled to the easements.
19. Modification to either of those widths would have the effect of significantly reducing the size of the parcel of land over which the ROW could be exercised, by 70 - 75%. In practical terms, the proposed modification would limit users to an area that is less than the width between the black metal fence (on the eastern boundary with the Hills School) and the first wooden bollard, and across an area on the ROW that is different to that which many appear to have used for some time, as depicted by the worn path between and to the south of the wooden bollards (see the photograph at [41] above). There may not be direct evidence of use of the ROW by people in wheelchairs, but it seems reasonable to expect that people who travel with mobility aids use the ROW, especially given the nature of the Hills School. A width of 1.8 metres might be the minimum necessary to allow two wheelchairs to pass comfortably on a concrete pathway unencumbered by physical barriers (according to AS1428.2), but the Lot 56 ROW is bordered by a 2-metre metal fence, consists in large part of an uneven grass surface, and is partially obstructed by wooden bollards, the metal bin and part of the green gate. In my view, regard should be had to the amenity and convenience granted by the ROW and the effect of modification on all likely authorised users, which should include pedestrians with disabilities, bike riders, and children and adults with or without domestic animals. I also consider that the Court should have regard to Ms Eastment's evidence and opinions and do not accept the Council's contention that the standards to which she refers (other than AS1428) have no relevance to the question of injury, as the plaintiffs' submissions contend.
20. Ms Eastment's experience as a Leader of the Council's Public Domain Team and Member of the Council's Urban Design Team includes involvement in the application of standards, controls and guidelines and the preparation of strategic documents relating to the design and development of the public domain that refer to recommended widths of a range of lanes, carriageways and paths that have regard to, and seek to achieve, amongst other things, pedestrian amenity and safety, and functional passage, matters which are raised by a consideration of the plaintiffs' modification proposal. Her report makes clear what standards and precedents she has relied on in coming to her opinions and she candidly acknowledged that many of the precedents relied on were apt for the Parramatta CBD. That said, there is force to the plaintiffs' submission that her qualifications, as a landscape architect rather than a traffic expert, raise questions as to the weight that can be given to her opinions, and that the standards and scenarios to which she has regard (such as the PPDG, the PCBD DCP, the Bike Plan and service lanes between busy roads in the Parramatta CBD) are of no direct application to this case, which involves a right of way on residential and privately owned land and leading to a public reserve where the connecting street does not include a dedicated cycleway. I accept that Ms Eastment's evidence is to be treated with caution. Her status as an employee of the Council raises a question of her independence as an expert (Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [213]-[219]), although there was no suggestion that she had been involved in any proposal relating to the land in question or the dispute more generally.
21. The conclusion that I have come to is that, in the absence of any other evidence about these matters, the "recommended widths" referred to in the standards, the Local Pedestrian Link Precedents and the Shared Way Precedents, to which Ms Eastment makes reference in addressing the first and third scenarios in her report, provide some objective guidance that assists the Court in assessing the question of the potential injury from a modification of the ROW by the reduction in width, in terms of amenity, safety and functional passage. While not at all determinative, the views of Ms Eastment should be taken into account, including as indicative of the views of the Council, in its capacity as the owner of the dominant tenement.
22. It may be inferred from the lack of objection raised to the plaintiffs' application by the majority of the Subdivided Lot owners that they are unconcerned about the impact on or injury to the rights under the Lot 56 ROW that are to their benefit. But I accept that Mr Dorizas and Mr Black genuinely hold the belief that the modification to 1.5 metres would make the Lot 56 ROW too small as it will interfere in a real sense with their enjoyment and benefit of the ROW and impede the safe passage of prams, bikes or wheelchairs to pass each other, which views are clearly not unreasonable having regard to the evidence of continued and increasing use of the Lot 56 ROW by pedestrians: Re Callanan and the Conveyancing Act [1970] 2 NSWR 127 at 132; Re Robinson [1972] VR 278 at 284.
23. The evidence from users together with the evidence from Ms Eastment (outlined at [64] above), which I find persuasive, leads me to accept that the proposed width of 1.5 and 1.8 metres limit would have the effect of constraining the ability of pedestrians and bike riders (even assuming they are not travelling at speed) to pass each other comfortably and safely when traversing the ROW, particularly where pedestrians may be walking in groups in opposite directions, accompanied by children or companion animals, riding on or walking with bikes or scooters or other chattels, or using a wheelchair, a motorised scooter or other mobility aid. In reaching this conclusion, I have had regard to the condition and situation of the ROW, as described at [41]-[43] and [142] above (and depicted in the photographs at [41] and [43]).
24. To my mind, a modification to 1.5 or 1.8 metres would also likely impinge on the amenity of, and safe and functional pedestrian passage over, the Lot 56 ROW in the context where it will be shared by pedestrians, bike riders and motor vehicles driven along the driveway by the owners of Lot 56 and their invitees, the recommended service lane width for motor vehicles is 2.5 - 3.2 metres (PPDG Service Lanes cl 3.3.8), the minimum residential driveway width is 3 metres (AS2890.1, cl 3.2.2) and the maximum width of standard registered motor vehicles has recently been described as 2.5 meters (McWilliam v Hunter [2022] NSWSC 342 at [22]).
25. In my view, the loss of amenity and practical benefit of the Lot 56 ROW for those entitled to the easements, including persons authorised by the Council constitutes an injury of substance, notwithstanding that practical pedestrian-only access to and from the Council Land can be provided by a right of way of the proposed reduced widths and there is no evidence of any adverse impact on the financial value of the dominant tenements: Frasers Lorne v Burke at [26] and [27]; Trewin v Felton [2007] NSWSC 851 at [70].
26. The next question is whether modification to 3.5 metres in width, or some other width, will substantially injure the persons entitled to the easements.
27. On this issue, during oral submissions, the Council contended that the plaintiffs' application should be limited to seeking modification of the width to 1.5 metres, and nothing else (T135.7-40). It was submitted that it was difficult to come to grips with the alternatives proposed by the plaintiffs and the Court should not be asked to "pick a number" for the width for the Lot 56 ROW (T113.3-6). Whether or not it is difficult to deal with, the Council was on notice that an order of that type was sought in the Summons and in my view, it is open to the Court to grant a modification on that basis.
28. Having considered the submissions and the evidence, I am also not satisfied that the plaintiffs have established that a modification by reduction to 3.5 metres or some other width will not substantially injure the Council and the persons authorised by it to use the Lot 56 ROW. While initially attracted to the plaintiffs' contention that the narrower the area on which pedestrians and others are entitled to pass, the lower the likelihood of collisions between a motor vehicle driven by the owner of Lot 56 and pedestrians, bike riders and the like, I am not persuaded that the material before the Court supports such a finding. This is particularly as the evidence indicates that a 3.5 or 4 metres wide right of way would cover a substantial part of the driveway on Lot 56 and there is no proposal by the plaintiffs to fence in or clearly delineate the width of the modified ROW so that colocation of motor vehicles associated with Lot 56 and pedestrians (and the like) using the Lot 56 ROW would be avoided.
29. Nor do I accept that a 3.5 or 4 metre wide ROW would provide sufficient room to accommodate pedestrians moving away from a vehicle in the event of a potential collision, noting that Senior Counsel for the plaintiffs accepted during oral submissions, that pedestrians would need to move off the Lot 56 ROW if that happens and they would be trespassing in such circumstances (T148.6-14). The plaintiffs' answer to the effect that there is no evidence of such a collision having arisen to date does not seem to me to answer the concern raised by the Council's submissions of the loss of amenity and space to allow for the safe and effective colocation of motor cars and pedestrians in the case of modification, particularly given that Ms Eastment concluded that the existing Lot 56 ROW is of a sufficient width to safely accommodate future vehicular and non-vehicular use of the Lot 56 ROW.
30. The words "substantial injury" have a wide meaning: Effeney v Millar at [210] citing Tujilo v Watts at [37]. They do not mean large or considerable, but rather mean non-theoretical or having present substance: Effeney v Millar at [209].
31. The Council, as a public authority, has a legitimate interest in ensuring the Lot 56 ROW is used safely and effectively. Against the background of a right of way that has been in continual and increasing use by pedestrians (including school children), the effect of a modification by reduction in width would require greater caution by pedestrians and others using the ROW and reduce the margin for error in the event of some conflict with a motor vehicle driven by the Lot 56 owner or their invitees. Seen in that way, I do not consider that it can be said that a modification that results in the loss of amenity and the prospect of a less safe passage by pedestrians is not an injury of substance to the Council or those pedestrians authorised to use the Lot 56 ROW by the Council, even if it is an injury of a more intangible kind based, in part, on the opinion expressed by Ms Eastment that the existing 6 metre width of the ROW should be maintained to safely accommodate the simultaneous use of Lot 56 ROW by pedestrians (and the like) and vehicles associated with Lot 56. The fact that a modification in width to 3.5 or 4 metres might comply with some standards and precedents (see for example, at 3.1.21-3.1.27 and 3.1.31 and 3.1.35 of Ms Eastment's report) or is adequate to accommodate a cyclist at speed or the movement of vehicle does not, in my view, negate that a reduction in existing width would provide less convenient access and amount to a real and appreciable injury: Frasers Lorne v Burke at [28].
32. Accordingly, the application for modification under s 89(1)(c) is not made out.

Discretion

1. As I have concluded that the plaintiffs' application fails under s 89(1), the question whether the Court should exercise its discretion and make an order for the modification of the ROWs does not arise.
2. Matters that may have been relevant to consider on that question include the history of Lot 56, the conduct of the owners of the dominant and servient tenements, the act and omissions of the plaintiffs' father and of Baulkham Hills Council as prior registered proprietors and the state of the register, with no one factor being decisive: Re Rosedale Farm at [69]; Pieper v Edwards at [340].
3. In addition, in considering whether to exercise the discretion, I note that the cases refer to the following: caution being required in acceding to an application for the extinguishment or modification of an easement, having regard to the nature of an easement as a proprietary right: Frasers Lorne v Burke at [29], and the cases there cited; the purpose of s 89 of the Conveyancing Act as a whole is to enable covenants which have no practical utility to the dominant land to be removed, so as to clear the title of the servient land: Frasers Lorne v Burke at [13] citing Re Mason and the Conveyancing Act [1962] NSWR 762; and section 89 of the Conveyancing Act should not be viewed as being designed to enable a person to expropriate the private rights of another purely for his own profit: Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 195 at [20] referring to Re Henderson's Conveyance [1940] Ch 835 at 846.
4. As to the matters that should be taken into account on the exercise of discretion, the Council referred to the fact that it only took over the Council Land from Baulkham Hills Council in 2014 and has not engaged in any relevant conduct evidencing abandonment or acquiescence in the obstruction of the right of way, it exercises private rights for the public benefit and the use of the right of way for pedestrian access to the Council Land provides safer and more convenient access for pedestrians as they are not required to navigate the shared vehicle and pedestrian space of the carpark adjacent to the servient land or to take longer alternate routes to reach Windsor Roads for any reason. I do not see that the Council taking over as owner in 2014 would be a matter that would weigh in favour of not exercising the discretion given that the whole period of long-term non-use (including when Baulkham Hills Council was owner) would be relevant and the Council's entitlement as registered proprietor arose from the alteration of boundaries between councils and did not change the nature of the persons entitled to the Lot 56 ROW. Given that I would need to have been satisfied that a modification in width would not cause substantial injury, it is also difficult to see how the last point would assist the Council on the issue of discretion.
5. The plaintiffs emphasise the significant change of the Council Land from private individual to public authority in the Northmead Reserve has meant that the right of way, which is not a public right of way, is being used as one, a right of way of 6 metres provides no practical benefit that a smaller right of way would not provide in circumstances where no one has objected nor asked to take horses, cattle or motor vehicles along it, there have been very few objections to the application, noting that the Baulkham Hills Baseball Club, a major user of the Northmead Reserve, has not lodged any objection, and that only a few residents of the Subdivided Lots responded to the Notice. The lack of objections from other members of the public is, I accept, a relevant factor on the exercise of discretion.

Conclusion, costs and orders

1. In summary, I am not satisfied that the plaintiffs have established that the easements on title to the benefit of the Council Land and the Subdivided Lots, should be modified by the reduction in width to 1.5 metres or some other width that the Court thinks appropriate. It follows that I will order that the plaintiffs' Summons be dismissed.
2. As to costs, having regard to the outcome, I propose an order that the plaintiffs pay the Council's costs on an ordinary basis. However, as the Council's submissions referred to a period for submissions in respect of any special costs order, I have deferred the entry of that order so that if either party wishes to seek a special costs order, they can apply to do so within 14 days. In that event, the party seeking a different costs order should confer with the other parties and, within 14 days, notify my Associate by email of such together with their written submissions on that issue (of no more than three pages) and an agreed date for submissions in response, with a view to the issue of costs being determined on the papers.
3. For these reasons, the Court makes the following orders: 1. Dismiss the plaintiff's summons filed on 14 May 2021. 2. Unless a party makes an application for a different costs order within 14 days, the plaintiffs to pay the defendant's costs of the proceedings on an ordinary basis as agreed or assessed.

Endnote

1. See, for example, the development at Lot 58 that can be seen from the aerial photograph at [43] (page 24 of Exhibit 2). 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: 24 November 2022