Couche v Adams and Ors

1 The Plaintiff and his wife are the registered proprietors of residential premises at 1 Quarry Street, Paddington, being the whole of the land in Folio Identifier 1/103060 ("No 1"). The Plaintiff ("Mr Couche") and his mother are the registered proprietors of residential premises at 3 Quarry Street, Paddington, being the whole of the land in Folio Identifier 1/170629 ("No 3"). The First Defendant ("Mr Adams") is the registered proprietor of premises known as 9 Forbes Street, Paddington, being Lot 1 in Strata Plan 35387 ("No 9"). The Second Defendant is the registered proprietor of the common property in that Strata Plan. The majority of the shares in the Second Defendant are held by Mr Adams. 2 Appurtenant to and at the rear of the premises at Nos 1 and 3 is a right of way over Mr Adams' land. The right of way, which is some 13.2m in length and between 1 to 1.5m in width, is the primary means of access to Mr Adams' property. In fact, it leads to his front door. The right of way is contained in a passage created on the northern side by a wall on the southern boundary of Nos 1 and 3, and on the southern side by a wall on Mr Adams' property, No 9. 3 When Mr Couche and his co-proprietors acquired Nos 1 and 3, there was a steel grille door at the western end of the right of way, close to Forbes Street, which prevented access to the right of way from the street. The door could be opened from inside the right of way without a key but could not be opened from Forbes Street without a key. There was a door in the rear wall of No 3 which gave access to the right of way, but no door in the rear wall of No 1. 4 In August 2000 Mr Couche indicated that he wished to exercise a right to use the right of way. Mr Adams objected and a dispute arose between them. In May 2001 Mr Adams changed the lock on the steel grille door so that it could not be opened without a key either from within the right of way or from Forbes Street. Mr Adams has refused to provide a key to the door to Mr Couche and his co-proprietors. 5 Mr Couche seeks a declaration that the right of way is still in existence and that Mr Adams and the Second Defendant be restrained from preventing or interfering with his use of that right of way. 6 Mr Adams and the Second Defendant counter with a Cross Claim seeking a declaration that the right of way has been abandoned and, in the alternative, orders pursuant to s.89(1) Conveyancing Act, 1919 , extinguishing the right of way either wholly or partially. In the alternative to such orders, they seek an order or declaration that they are entitled to lock the gate on Forbes Street "subject to a copy of the key to the lock on the said gate being made available to and to be retained by [Mr Couche] and his wife and children and by no other person except in the presence of [Mr Couche] or his wife or child" . Further, they seek orders that Mr Couche withdraw certain caveats which he has lodged over the Defendants' land purportedly protecting his rights under the right of way. 7 The Defendants, by a Second Cross Claim against the Registrar General, sought review pursuant to s.122 Real Property Act, 1900 ("RPA"), of a decision by the Registrar General refusing to cancel the right of way pursuant to s.49 RPA. At the conclusion of the hearing it was conceded by Counsel for the Defendants that, as no valid application under s.49 RPA had been made to the Registrar General prior to 25 January 2002 and no decision had yet been given by the Registrar General in respect of that application, the Court could not entertain an application for review pursuant to s.122 RPA. Mr Maston, who appeared for the Defendants, sought instead a declaration to the effect that if the Registrar General decided the current application in accordance with his reasons for rejecting previous invalid applications, then the Registrar General's decision would be incorrect and would be corrected upon review by the Court under s.122.

8 The issues for determination are: - whether the right of way has been abandoned at common law or for the purposes of s.89(1)(b) Conveyancing Act ; - whether the right of way ought to be deemed obsolete within the meaning of s.89(1)(a) Conveyancing Act ;

• whether, if so, the Court should exercise its discretion under s.89(1)(a) to extinguish the right of way wholly or partially;

• if the right of way has not been abandoned and is not extinguished by the Court, whether or not the restrictions on access sought to be imposed by Mr Adams on Mr Couche and his co-proprietors amount to an unreasonable restriction upon their use of the right of way so that injunctions as sought by Mr Couche ought to be granted;

• whether the Registrar General's rejection of the Defendants' current application for cancellation of the right of way under s.49 RPA for the reasons given in respect of previous applications would be wrong in law.

9 There is very little, if any, dispute between the parties as to the relevant facts. They may be shortly stated as follows. 10 The right of way was created in Memoranda of Transfer dated 20 May 1921. By a Memorandum of Transfer dated 29 May 1981 a Mr Nankervis purchased the whole of the land which was the servient tenement, now No 9. In about 1986 Mr Nankervis demolished a factory which was erected on the land and built the house which is currently occupied by Mr Adams. 11 On 16 October 1989 No 9 was brought under the provisions of the Strata Titles Act by the registration of Strata Plan 35387. The Strata Plan notes and incorporates the right of way by reference to the Memorandum of Transfer creating it and by showing its position in relation to the structures it erected on the land. 12 On or about 25 June 1990 Mr Nankervis sold No 9 to Mr Adams, the Memorandum of Transfer being registered on 30 August 1990. 13 Mr Nankervis says that when he purchased the land in 1981, there was a doorway in the brick wall at the rear of No 3 which gave access from No 3 to the right of way, but there was no door in the wall at the rear of No 1 giving such access. He says that during the period of his ownership of No 9, i.e. from mid-1981 to mid-1990, he did not see any person use the right of way other than visitors to his own property. 14 Mr Adams says that from the time that he acquired No 9 until mid-May 2001 there was no doorway or opening in the brick wall at the rear of No 1. He says that the doorway in the wall at the rear of No 3 has been used very infrequently. The owner of No 3 during that time was a Mrs Cullen, a friend of the Adams' family. Mr Adams gave this evidence: "Q: Prior to May 2001 did you see anyone other than your family and invited guests using the right of way from the time you have been living there?

A: The previous owner of the following terrace house I think used it a couple of times in the ten years we were there.

Q: On how many occasions did you see the previous owner of No.3 use the right of way?

A: Mrs Cullen would ring the door bell [at the metal gate at the end of the passageway near Forbes Street] from time to time and very infrequently and from time to time I would actually help her with the groceries.

Q: You said she used the right of way prior to May 2001 on a number of occasions. Could you observe for what purpose she used the right of way?

A: She was a family friend. She would ring the gate. I would go down, let her in and help her and on the two occasions I can recall this occurring over a ten year period it was to carry groceries." 15 During the time of which Mr Adams was speaking, the lock on the metal gate could be opened without a key from inside the right of way but not from the Forbes Street side of the gate. Accordingly, Mrs Cullen could use the right of way to go from her property to Forbes Street without Mr Adams' co-operation or knowledge, but if she wished to return to her property using the right of way she could not get access through the metal gate without asking Mr Adams to let her in. 16 Mr and Mrs Couche acquired No 1 in 1996 as their family home. In June 1999 Mr Couche and his mother acquired No 3. Both No 1 and No 3 are three-storied terraces which face Quarry Street. The living quarters are on a level with Quarry Street, the bedrooms are on the upper floor, and the kitchen, dining room and patio area are at basement level. Mr Couche says that he has on frequent occasions found it very inconvenient to remove garbage and other waste from the premises by taking it up a flight of stairs from the kitchen and through the front lounge room to Quarry Street. He says it would be much more convenient if such material could be removed by taking it through the rear of the premises along the right of way to Forbes Street. 17 In August 2000 Mr Couche engaged a contractor to replace the roof to the outhouse of No 3. The work involved removing bricks and tin work on the rear wall of No 3, abutting the right of way. Shortly after this work commenced, Mr Adams instructed his solicitors to write to Mr Couche objecting to damage to the brick wall at the rear of No 3 and threatening legal proceedings unless Mr Couche agreed to restore the wall to its prior condition, at Mr Couche's cost. This letter caused Mr Couche to obtain surveys of Nos 1 and 3 which revealed that the wall at the rear of Nos 1 and 3 in fact stood within the boundaries of those properties, so that Mr Adams had no claim against Mr Couche for damage to property which was, in reality, the property of Mr Couche. The surveys, which are dated 22 and 24 August 2000, made known to Mr Couche for the first time the existence of the right of way at the rear of Nos 1 and 3. 18 Clearly, having become aware of the right of way, Mr Couche and his co-proprietors determined to exercise their right to use it. In October 2000, Mr Couche made an application to the Woollahra Council to open a door in the wall at the rear of No 1. It was obvious that the application to open such door was in furtherance of Mr Couche's right to obtain access to and to use the right of way. 19 Mr Adams was notified of the application and objected. Nevertheless, the Council approved the application and in the second week of May 2001, work commenced on the opening of a door in the wall at the rear of No 1. During the first half of May, workmen contracted by Mr Couche used the right of way to install lights on the brick wall, to make an opening in the wall, and to construct and fit a doorway. At about this time also, Mr Couche used the right of way on a number of occasions to place rubbish bins outside the rear wall of No 3. 20 On or about 14 May 2001, Mr Adams, without prior consultation with Mr Couche or his co-proprietors, caused the locks on the steel grille door at the Forbes Street entrance of the right of way to be changed so that the door could not be opened either from the inside or from the outside without a key. Mr Couche protested, but Mr Adams refuses to provide a key to the door to Mr Couche and his co-proprietors.

21 The law as to whether there has been an abandonment of a right of way is well settled. As the parties do not disagree on the applicable principles, they may be stated shortly. Mere non-user of a right of way, even for a long period of time, does not indicate an intention by the dominant owner to abandon it. Non-user may be referable to the absence of a need to use the right of way and may indicate a preference for some alternative means of access for so long as that alternative access is available or convenient. Whether the Court can infer a fixed intention on the part of the dominant owner to abandon the right of way forever, both for the use of the dominant owner and for the use of his or her successors in title, depends upon the facts of each particular case but the inference is not lightly to be drawn: see generally Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; Ward v Ward (1852) 7 Ex 838 [155 ER 1189]; Gotobed v Pridmore [1970] 115 Sol Jo 78; Tehidy Minerals Ltd v Norman [1971] 2 QB 528; Butler v Muddle (1995) 6 BPR 13,984. The evidence upon which I am asked to draw an inference that the dominant owners, that is Mr Couche and his co-proprietors and their predecessors in title to Nos 1 and 3, have demonstrated a fixed intention to abandon the right of way is as follows. 22 It is said that there has been a non-user of the right of way by the owners of No 1 for eighty years, that is, from the time the right of way was granted in 1921 until May 2001 when Mr Couche constructed a door in the rear wall of No 1. 23 This submission is not supported by evidence because there is no evidence at all as to whether or not there was a door in the rear wall of No 1 prior to 1981, when Mr Nankervis purchased No 9. 24 Mr Maston submits that I should draw the inference that there was no door at the rear of No 1 from 1921 onwards. However, I cannot draw that inference unsupported by any evidence. A 1916 survey shows a brick wall at the rear of Nos 1, 3 and 5 (the adjoining property), but it does not show any door giving access to any of these properties. A plan attached to the Transfers creating the right of way in 1921 does not explicitly indicate a wall at the rear of the properties but one can assume that the wall existed. No doors in the wall are indicated on the plan. However, at some time prior to 1981, a door was created in the wall at the rear of No 3. No plans, surveys or other evidence indicates when the door was created. 25 There is no evidence as to who the occupiers of No 1 were prior to 1996 when the property was purchased by Mr and Mrs Couche. There is no evidence as to the circumstances of those occupiers, for example, whether they were owners or tenants, whether the house was used as a single residence for a single family or rented out by rooms. There is no evidence as to whether a door in the rear wall of No 1 was constructed at the same time as the door at the rear of No 3, whether it was bricked up at some time and, if so, by whom and in what circumstances. If there were evidence throwing light on any of these circumstances, then inferences might be drawn one way or another. But without such evidence, all that remains is utter speculation as to whether or not the right of way was used at any time between 1921 and 1981 by the owners or occupiers of No 1. 26 The evidence establishes no more than that between mid-1981 and May 2001, there was no door in the wall of the rear of No 1 and that, accordingly, there was no user of the right of way by any owner or occupier of No 1 during that time. By the time that Mr Couche acquired No 1 in 1996, there had been an established non-user of the right of way by previous owners of No 1 for at least fifteen years, i.e. from mid-1981. Mr Couche did not seek to use the right of way until, having discovered its existence in August 2000, he applied to the Council in October 2000 to open a door in the wall at the rear of No 1. 27 The circumstances in which previous owners or occupiers of No 1 did not use the right of way for at least fifteen years - probably more, but how much more is speculation - are not known. Previous owners or occupiers during that time might not have known of its existence or might have found it more convenient, for some reason, to use only the front entrance to No 1. In the result, there is an unexplained non-user for at least fifteen years, and a non-user by Mr Couche for a further four years, which is explained by his ignorance of the existence of the right of way. 28 In those circumstances, I find it impossible to infer an intention on the part of the owners of No 1, including Mr Couche, to abandon forever their right to use the right of way. I hold that the right of way appurtenant to No 1 has not been extinguished by abandonment. 29 As to the alleged non-user by owners or occupiers of No 3, as I have said, the evidence shows that prior to mid-1981 a door existed in the wall at the rear of No 3, that there was no user by any owner of No 3 during Mr Nankervis' ownership of No 9, i.e. between mid-1981 and mid-1990, but that Mrs Cullen used the right of way on a number of occasions between 1990 and 1998, when she sold No 3 to Mr Couche and his mother. 30 Mr Adams says, ultimately, that Mrs Cullen used the right of way only twice but I cannot accept this evidence without reservation, for the following reasons. 31 Mr Adams says that he resides at No 9 about four days a week on average. It was possible for Mrs Cullen to use the right of way to gain access to Forbes Street without asking Mr Adams because the gate onto Forbes Street could be opened from the inside without a key. It was only when Mrs Cullen was seeking access to the right of way from Forbes Street that she had to ring the bell to ask Mr Adams to let her in. Bearing in mind that Mr Adams was absent from No 9 for an average of three days per week, it is quite possible that on a number of occasions when he was not there Mrs Cullen used the right of way to gain access to Forbes Street or sought to gain access from Forbes Street but could not, because Mr Adams was not there to let her in. 32 What emerges clearly from Mr Adams' evidence, however, is that Mrs Cullen regarded the right of way as available for her use when convenient to her and that she exercised her right to use it. That she exercised that right infrequently is not to the point; what is critical is that she did not demonstrate any intention to abandon forever her right to use the right of way. I cannot accept Mr Maston's submission that the fact that Mrs Cullen rang the bell at the gate to the right of way on a number of occasions to summon Mr Adams to let her in amounted to a request by her for permission to use the right of way and therefore constituted an implied acknowledgement that she had relinquished her own legal right to use it. One can draw no more from this circumstance than that there was some express or tacit understanding between Mrs Cullen and Mr Adams, as family friends, that Mr Adams would keep the key to the gate and would let her in whenever she wished. Mrs Cullen sold her property to Mr Couche and his mother in 1998 but she was not called to give evidence and her absence was unexplained. In those circumstances, I cannot infer from the extremely scant evidence as to what transpired between Mr Adams and Mrs Cullen that Mrs Cullen demonstrated an intention to relinquish forever her entitlement to the right of way. 33 There is no evidence which would lead to an inference that the right of way appurtenant to No 3 was not used between 1921 and mid-1981 and that the owners of No 3 during that time demonstrated a fixed intention to abandon their right to use the right of way. Further, the existence of the right of way and the right of the owner of No 3 to use it was explicitly acknowledged both by Mrs Cullen and Mr Adams during the period from mid-1990 to 1998. In those circumstances, it is impossible to hold that by 1998 the right of way had been extinguished by abandonment. 34 From 1998 to May 2001 the right of way appurtenant to No 3 was not used by Mr Couche and his co-proprietor, the explanation being that they did not know of its existence until August 2000. Again, in those circumstances, I find it impossible to infer an intention on the part of Mr Couche and his co-proprietor to abandon forever their right to use the right of way. 35 Accordingly, I hold that the right of way appurtenant to No 3 has not been extinguished by abandonment.

36 Mr Adams contends that if the right of way has not been abandoned then it is obsolete and ought to be extinguished, wholly or partially, pursuant to s.89(1)(a) Conveyancing Act . Mr Couche and his co-proprietors do not oppose extinguishment of that part of the right of way which is not required to give access to Nos 1 and 3. 37 It seems clear on the evidence that retention of the right of way beyond a point necessary to give convenient access to No 1, which is the property closest to Mr Adams' front door at No 9, is unnecessary and would impede the reasonable user of No 9 without securing practical benefit to the owners of Nos 1 and 3. Accordingly, I propose to exercise the power conferred by s.89(1)(a) to extinguish the right of way beyond the point of convenient access to No 1. My present view is that the point from which the right of way should be extinguished is a metre from the eastern doorpost of the door which has been constructed in the wall at the rear of No 1, but I will hear further submissions on the matter, if either party wishes to argue to the contrary. 38 I turn now to deal with the real matter in contest between the parties, which is whether the remainder of the right of way ought to be extinguished. As I indicated at the conclusion of submissions yesterday, I do not think that Mr Adams has made out a case for extinguishment, for the following reasons. 39 Mr Maston does not submit that the Court's discretion to extinguish arises because of a change in user of the land having the benefit of the right of way, within the scope of s.89(1)(a). The evidence is clear that Nos 1 and 3 have always been used for residential purposes ever since the right of way was created in 1921. Mr Maston submits, however, that there has been a change "in the character of the neighbourhood" . The only "change" upon which he relies is a change in the use of the servient tenement, No 9. 40 The evidence shows that when Mr Nankervis bought No 9 in 1981 there was a factory on part of the land. Mr Nankervis pulled down the factory and built the house in which Mr Adams now lives. There was also on No 9 a shop, about which there has been virtually no evidence. However, it is apparent from various surveys that the shop existed prior to 1981. 41 In theory, I suppose, a change in the "character of the neighbourhood" could be demonstrated by showing a change in the user only of the servient tenement if the servient tenement completely surrounded the dominant tenement and was of such a size that, in all the relevant circumstances, in itself constituted the "neighbourhood" of the dominant tenement. However, in a suburb of Sydney such as Paddington, I cannot accept that a change in "the character of the neighbourhood" for the purposes of s.89(1)(a) can be demonstrated by reference only to the adjoining servient tenement. I cannot accept the submission that the right of way ought to be deemed obsolete by reason of a change in the character of the neighbourhood. 42 Mr Maston submits that "the other circumstances of the case" which should lead the Court to deem the right of way obsolete are that the right of way has been abandoned by the owners of No 1 for eighty years and by the owners of No 3 for a very long time. As I have earlier held, I am not satisfied that the owners of Nos 1 and 3 prior to Mr Couche and his co-proprietors ever abandoned their rights to use the right of way. As far as Mr Couche and his co-proprietors are concerned, they have sought to exercise their rights within a short time after becoming aware of their existence. 43 I am satisfied that there is a continuing benefit to the owners of Nos 1 and 3 in the existence of that part of the right of way which is necessary to give access to their properties. Mr Couche has given unchallenged evidence of the difficulties which he has in removing garbage and waste material through the front door of his residence. Those difficulties would be ameliorated if he could remove garbage through the right of way to Forbes Street. Further, he has given unchallenged evidence that substantial improvements and renovations to his residence will be considerably facilitated and disturbance to his family much reduced if builders and workmen can gain access to his property through the right of way rather than through the front of his house. 44 These circumstances are not peculiar to Mr Couche and his co-proprietors; they illustrate the continuing convenience of rear access to properties in inner city suburbs. Such access confers a benefit not only upon the present owners of such properties but upon future owners as well. 45 I am of the view that Mr Adams has not made out a case under s.89(1)(a) for the extinguishment of that part of the right of way which is necessary to give access to Nos 1 and 3 on the ground that the right of way is obsolete or will impede the reasonable use of No 9 without securing practical benefit to the owners of Nos 1 and 3.

46 Mr Couche and his co-proprietors do not submit that there should be no gate at the entrance to the right of way at Forbes Street. What they say constitutes an unreasonable interference with their use of the right of way is that the gate is kept locked by Mr Adams and that Mr Adams refuses to give them a key. In reality, they and their invitees and licensees are completely denied use of the right of way. 47 For the reasons which I have given earlier, I hold that the action of Mr Adams in changing the lock on the gate to the right of way and in refusing to give keys to Mr Couche and his co-proprietors constitutes a complete and wrongful denial of their rights as owners of the dominant tenements. 48 By his Cross Claim, Mr Adams seeks an order that a key to the gate be made available to Mr Couche and his family but only upon terms that the key not be used except by them or in their presence. 49 I can see no basis in law for modifying the terms of the right of way in this manner. The fact that Mr Nankervis chose to build a house on No 9 using the right of way as access to its front door without seeking to extinguish the right of way by agreement with the dominant owners cannot give him or his successors in title a basis for modifying the right of way to suit his or their own convenience at the expense of the rights of the dominant owners. I decline to modify the right of way in the terms sought in Mr Adams' Cross Claim. 50 There will be an order in terms of paragraph 5 of the Plaintiff's Amended Summons. If the parties can, by agreement, frame an order which provides for keys to be given to the Plaintiff and his co-proprietors without restriction, I will make such an order. If no agreement can be reached as to the provision of keys, then I will make an order in terms of paragraph 6 of the Amended Summons.

51 As I have noted, no decision has actually been made by the Registrar General on the application lodged by Mr Adams on 25 January 2002 for the cancellation of the right of way under s.49 RPA. Two previous applications have been made, the first of them having been lodged on 6 August 2001. They were both invalid because they did not correctly describe the relevant properties affected. 52 The Registrar General refused each of those applications because he was not satisfied - as he was required to be satisfied by s.49(2) - that the right of way had not been used for at least twenty years before the application was made. If the applications had been validly made, the Registrar General would clearly have been correct in rejecting them for that reason. Mr Adams' own evidence in support of the applications revealed that in May 2001 Mr Couche's workmen had made use of the right of way for the purpose of constructing the door in the rear wall of No 1. Further, the evidence in this case reveals that Mrs Cullen had made use of the right of way on a number of occasions between 1990 and 1998. The applications of Mr Adams under s.49 RPA were bound to fail, as is the present application made on 25 January 2002.

53 I will stand the proceedings over for a short time to enable Short Minutes of Order to be brought in to reflect these reasons for judgment. On that occasion I will hear argument, if any, as to costs. - oOo -

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