Deering v Attard

Supreme Court of NSW|2024-08-23|Before: Williams J, Mr P

JUDGMENT

The plaintiff in these proceedings, Mr Jack Deering, is the owner of land at 109 Sunshine Parade, Sunshine, New South Wales, being the land in folio identifier 55/XXXXX (No. 109).
The defendant, Mr Luke Attard, is the owner of land at 107 Sunshine Parade, Sunshine, New South Wales, being the land in folio identifier 54/XXXXX (No. 107).
Both No. 107 and No. 109 have street frontage onto Sunshine Parade (referred to by the parties as the "front" of each property) and water frontage onto Lake Macquarie (referred to by the parties as the "rear" or the "back" of each property). The land slopes rather steeply downwards from Sunshine Parade towards the waterfront.
These proceedings concern a dispute between the two neighbours about a strip of land approximately 2.9 metres wide which runs along and on either side of the boundary between their properties and runs from the front of each property on Sunshine Parade for approximately 28 metres towards the rear of each. Of the total width of approximately 2.9 metres, approximately 1.4 metres is located on No. 109 and approximately 1.5 metres is located on No. 107. That strip of land has been used for many years as a driveway by owners and occupants of No. 109 and No. 107. I shall refer to it in these reasons as the shared driveway.

Salient facts

The plaintiff has owned No. 109 since 1993. Since about 1994, the plaintiff has lived in part of the dwelling on No. 109 and leased out the other part to various tenants.
In 2000, during the construction of new dwellings on No. 107 and No. 109, the plaintiff orally agreed with the owners of No. 107 at that time to build and share a driveway on the boundary line of both properties. Each property owner allowed a strip of their land to be used to make up the width of the driveway, and they shared the cost of its construction.
The shared driveway straddles the boundary line of No. 107 and No. 109, running from Sunshine Parade in the direction of Lake Macquarie for approximately 28 metres. One on side of the shared driveway is landscaping on No. 109. On the other side is the dwelling on No. 107, which directly abuts the shared driveway. The length of the share driveway ends just after it passes the dwelling on No. 107. At that point, vehicles that have entered the driveway from Sunshine Parade either continue straight into the rear yard of No. 107 where a carport was constructed until very recently, turn left into the rear yard of No. 107, or turn right onto a concrete area at the front of the dwelling constructed on No. 109, which is set back further from Sunshine Parade than the dwelling on No. 107. That concrete area at the front of the dwelling on No. 109 is used as a parking area capable of accommodating up to four vehicles. It is also the means by which vehicles access the three car garage of No. 109.
The defendant contends that the gradient of the shared driveway poses a safety risk. The evidence adduced in these proceedings does not support that contention. Taken at its highest, the evidence establishes that the gradient of the shared driveway ranges from 8% in parts to up to between 26 and 27% in parts. The current development control plan that applies to No. 107 and No. 109 permits driveways with gradients of up to 20%, but the Lake Macquarie City Council will permit driveways with gradients of up to 25%. Mr Brett White, surveyor, gave evidence that, under the current development control plan, it would be necessary to present a specific design to Lake Macquarie City Council in order to obtain consent for a driveway with a gradient steeper than 25%. There is no evidence of the development control plans or other relevant regulations or standards that applied in 2000 when the shared driveway was constructed. At the request or instigation of the defendant, officers of Lake Macquarie City Council inspected the shared driveway in about March 2024 and found that its grades "do not meet the current standard driveways profile grades", but advised the defendant by email on 26 March 2024 that "[i]t is not Council policy to request the removal of existing driveways that do not meet the current standards unless a significant risk to public safety exists". I infer from the fact that the Council has not required removal of the shared driveway that its officers who conducted the inspection did not consider that it represented a significant risk to public safety.
The shared driveway is presently the only means of vehicular access to the dwelling on No. 109. Pedestrian access between the dwelling and Sunshine Parade is via about 14 or 15 steps through a rocky, landscaped area that has been constructed between the dwelling and Sunshine Parade. There is no evidence of any restrictions on the parking of cars on Sunshine Parade. The plaintiff gave evidence, which I accept, that vehicular access to his residence is important to him because he is 86 years of age and has limited mobility due to osteoarthritis.
The proximity of the shared driveway to the dwelling on No. 107 is a function of the narrow street frontage of No. 107 on Sunshine Parade. It means that cars using the driveway pass extremely close to the wall of the dwelling on No. 107, headlights of vehicles exiting No. 109 onto the shared driveway shine into the bedroom in that part of the dwelling on No. 107, and brake lights of vehicles travelling down the driveway from Sunshine Parade in the direction of Lake Macquarie also shine into that bedroom. This has been demonstrated by video footage played during the hearing of these proceedings. Although it was put to the defendant in cross-examination that he had not adduced evidence of any films or recordings taken from within his home to establish the light intrusion, noise and vibration that he says results from the use of the shared driveway by vehicles travelling to and from No. 109, I infer on the basis of the very close proximity of the driveway to the house that any vehicle passing down the driveway would cause such light intrusion, including into the bedroom in that part of the dwelling that directly abuts the driveway, and also some noise and vibration into the home on No. 107 which would vary according to the nature of the vehicle and the manner in which it was being driven. I accept the evidence given by the defendant, Mr Luke Attard, and by his wife, Ms Luisa Sacchetti-Attard, to that effect.
Neither the plaintiff nor the then owners of No. 107 took any steps to register easements in respect of the shared driveway when it was constructed in 2000, or subsequently. The plaintiff recalls that the ownership of No. 107 has changed hands several times since 2000. The shared driveway has been used as such by the plaintiff and by successive owners of No. 107 from its construction in 2000, including by the defendant who purchased No. 107 in August 2018.
At the time the defendant bought No. 107, it had the benefit of a development consent granted by Lake Macquarie City Council on 25 November 2016, being DA/1327/2016, for the demolition of the existing dwelling and the construction of a new dwelling with a garage at the front of the dwelling facing onto Sunshine Parade. The approved plans for DA/1327/2016 included a demolition plan which provided not only for the demolition of the existing dwelling, but also for the removal of the existing shared driveway and for the removal of two trees - one at the front of the existing dwelling and one at the rear on the waterfront near the boundary between No. 107 and No. 105 Sunshine Parade. The plaintiff gave evidence that he cannot recall being notified of the development application in 2016, but contemporaneous documents tendered in evidence indicate that the Council did notify both the plaintiff, as the owner of No. 109, and notified the owners of No. 105, of the development application in August 2016. The plaintiff also accepted that his memory is not good. It is understandable that he would have difficulty remembering in 2024 being notified of a development application in 2016. I find on the basis of the contemporaneous documents that the plaintiff was in fact notified of the development application. The plaintiff did not raise any objection at the time to the proposed demolition of the shared driveway, or any other aspect of the proposed development. Nothing turns on this because, as I explain immediately below, the development consent has now lapsed.
The development consent issued on 25 November 2016 stated that it would lapse on 25 November 2021. An amendment to s 4.53 of the Environmental Planning and Assessment Act 1979 (NSW) which took effect on 14 May 2020 in the midst of the COVID-19 pandemic extended the lapsing date for a period of two years - that is, until 25 November 2023. The Council notified the defendant of that extension. Section 4.53(4) of that Act provides: "(4) Development consent for - (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section."
There is a dispute between the plaintiff and the defendant about whether or not the development consent lapsed on 25 November 2023.
The defendant and Ms Sacchetti-Attard gave evidence that they had removed trees from No. 107 in December 2019. The defendant contended that this was done "in accordance with the development consent". Ms Sacchetti-Attard's evidence described the location of those trees as being "at the bottom" of the shared driveway "along the back boundary between the Property [No. 107] and Jack's Property [No. 109]." However, the demolition plan which formed part of the plans for the development for which consent was granted did not provide for the removal of any trees in that location. As I have already mentioned, the trees to be removed as identified in the demolition plan were located at the front of No. 107 near Sunshine Parade and at the rear of No. 107 on the boundary with No. 105 at or near the waterfront (not on or near the boundary between No. 107 and No. 109).
In any event, Ms Sacchetti-Attard resiled from her evidence that the removal of the trees was work relating to the development consent after conceding in cross-examination that she and the defendant had decided by early 2019 not to proceed with developing No. 107 in accordance with the development consent. That frank concession is consistent with contemporaneous email correspondence between the defendant and various building companies in early 2019 inquiring about designs for kit homes that he was contemplating building on No. 107. I reject as wholly unconvincing the defendant's evidence in cross-examination, during which he contradicted himself several times about his intentions in 2019 in relation to the potential development of No. 107, ultimately contending that "there was still that iffy chance I may have been able to get the money together" to undertake the development for which consent had been granted, which he had earlier described as "excessive" plans for a four-storey residence which would have been "nearly a million dollar build". I accept Ms Sacchetti-Attard's concession.
On the basis of Ms Sacchetti-Attard's evidence, I find that the removal of trees located on the boundary between No. 107 and No. 109 in December 2019 did not constitute physical commencement of the work relating to the building or work for which development consent had been granted on 25 November 2016. The removal of the trees is the only activity prior to 25 November 2023 on which the defendant relies in support of his contention that the development consent did not lapse on that date. For those reasons, I find that the development consent did lapse on 25 November 2023.
As I have already mentioned, the defendant acquired No. 107 in August 2018. Both the plaintiff and the defendant, and the occupants of and visitors to their respective properties, used the shared driveway as such until late 2023.
The plaintiff's grandson, Mr Mitchell Lambess, stays at No. 109 with his grandfather four days per week. Mr Lambess gave evidence that, since the defendant purchased No. 107, he has seen the defendant regularly use the shared driveway to park his work ute and trailer at the rear of No. 107, and that a yellow hatchback vehicle had been parked in the carport located at the bottom of the shared driveway on No. 107. That carport can only be accessed via the shared driveway. According to Mr Lambess' evidence, it has only been since February 2024 that the defendant has ceased parking his work ute and trailer at the rear of No. 107 using the shared driveway. The plaintiff gave evidence to similar effect. The plaintiff was not challenged on that evidence in cross-examination, and Mr Lambess was not required for cross-examination at all. The defendant reluctantly acknowledged in cross-examination that he had been using the shared driveway.
As the plaintiff conceded in cross-examination, after some prevarication, the users of the shared driveway include tenants residing in part of the plaintiff's home on No. 109, and persons visiting those tenants.
The plaintiff gave evidence that his current tenants, Ms Diane Christoffersen and her daughter, Ms Brittany Johnson, moved into No. 109 in about May 2023.
The defendant gave evidence that, prior to May 2023, he could hear the driveway being used approximately twice a day by the plaintiff's previous tenant. Since May 2023, he has observed a significant increase in the use of the shared driveway by the plaintiff's tenants and visitors of those tenants. The defendant estimated that he has seen or heard cars passing by his home using the shared driveway at least ten times a day. Of even greater concern to the defendant and his family is the noise and vibrations of cars using the shared driveway, including screeching of tyres on concrete, that they have been experiencing after midnight about three or four nights a week since about June 2023.
Ms Sacchetti-Attard gave evidence to similar effect, save that she says that she has heard and felt the vibrations of cars using the shared driveway about 30 times per day on average since June 2023. Ms Sacchetti-Attard gave evidence that this intrusion is especially noticeable at night. She described being woken by the noise and reverberations through the walls of her home almost every night, and described her children also being woken frequently and the adverse effect of this on their wellbeing. Ms Sacchetti-Attard also gave evidence of occasions when cars driven by visitors to No. 109 using the shared driveway had driven or reversed into the rear yard of No. 107. On two occasions mentioned by Ms Sacchetti-Attard, a car had reversed a trailer carrying a boat down the shared driveway, coming very close to colliding with her house. When Ms Sacchetti-Attard endeavoured to speak with the driver and ask them to use the boat ramp at the nearby park instead of risking damaging her house, the driver simply ignored her and carried on reversing the trailer down the shared driveway.
Neither the defendant nor Ms Sacchetti-Attard were challenged about these aspects of their evidence in cross-examination. The defendant was asked, and he confirmed, that the use of the shared driveway by the present tenants of No. 109 had become a safety and privacy issue, and was adversely affecting the wellbeing of his family. The defendant said that even though these tenants might ultimately move out, he can't predict how the next set of tenants to move in after them would behave in relation to the use of the shared driveway. The defendant's concern is well-founded because, as I explain below, the plaintiff has simply ignored the complaints made by the defendant and Ms Sacchetti-Attard since October 2023 about the behaviour of his tenants and their visitors using the shared driveway and the adverse impact of that behaviour on the defendant and his family in their home on No. 107.
It is common ground that Ms Sacchetti-Attard had a conversation with the plaintiff on the morning of 21 October 2023 following a party at No. 109 on the evening of 20 October 2023. Whilst the plaintiff and Ms Sacchetti-Attard give different accounts of precisely what was said, nothing turns on those differences. Ms Sacchetti-Attard complained to the plaintiff about the behaviour of his tenants and their guests at the party, including vehicles using the shared driveway performing U-turns in the rear yard of No. 107. One of them suggested to the other that a fence be put up between their respective properties. According to the plaintiff's evidence, Ms Sacchetti-Attard told him that she was intending to build a fence, and he assumed that this fence would run down the middle of the shared driveway. He said to Ms Sacchetti-Attard something like "you do what you've got to do", realising that this would mean that he would need to build a new driveway on No. 109. The plaintiff went about obtaining quotes for the construction of a new driveway. The quotes were within a range of between $22,740 and $46,827, and the plaintiff considered this to be "cost prohibitive" and he hoped that the fence would not be progressing as he believed "things settled down a little".
In or about late January 2024, the plaintiff became aware that the defendant was proceeding with the proposed fence when he received a handwritten note from the defendant in his letterbox enclosing a surveyor's quote to mark the boundary line for the installation of the fence, and informing him that he was required to pay half. The note stated that a quote for the fence itself would follow.
The plaintiff then sought legal advice from Dawson & Gardiner Solicitors. On the plaintiff's instructions, Dawson & Gardiner wrote to the defendant on 6 February 2024 asserting that the shared driveway was the subject of reciprocal implied easements benefitting and burdening the plaintiff's and the defendant's land to give effect to the common intention of the plaintiff and the owner of No. 107 when the driveway was constructed in 2000. The letter insisted that the defendant immediately cease all plans to make any alteration that would affect the plaintiff's reasonable use and enjoyment of the shared driveway, and stated that the plaintiff would not be paying half of the costs of the surveyor. The letter threatened that the plaintiff would commence proceedings for an injunction "should you not immediately cease all actions and enquiries regarding modification to the driveway". The letter concluded: "While we understand that the driveway was constructed prior to your purchase of the property, and you may not have personally agreed to the easement, the original implied easement was mutually agreed to. Such an agreement binds all successors in title. Mr Deering has enjoyed the easement for more than twenty years, and you have owned the property, and allowed his open use of the driveway, for more than five. Accordingly, Mr Deering is entitled to rely on having continued use of the driveway for so long as he owns the property. We urge you to do all things necessary and sign all documents to have an easement for a right of carriageway formally registered on both titles without the need for an order of the Supreme Court."
The contention that the defendant's registered title to No. 107 was subject to an unregistered easement arising from the common intention of the plaintiff and a previous owner of No. 107 which bound all successors in title to No. 107 is plainly wrong, and was later abandoned by the plaintiff shortly before the commencement of the hearing of these proceedings in August 2024 when the plaintiff filed and served written submissions in advance of the final hearing which foreshadowed an amendment to his summons to seek an order imposing reciprocal easements under s 88K of the Conveyancing Act.
The defendant was plainly angered by the assertion that he was bound to allow the plaintiff to continue using the shared driveway by an agreement to which he had not been a party, and about which he had not previously been notified. That anger is clear in the tone and substance of a barrage of emails that the defendant sent to the plaintiff's solicitors on the evening of 7 February 2024 and throughout the day on 8 February 2024. It is not necessary to set out the detail of all of those emails. Relevantly, the defendant's first email sent on the evening of 7 February 2024 stated that "your client has tenants using my property as a thoroughfare past my child's bedroom at unsafe speeds intoxicated" and referred to the plaintiff's tenant as having said that "she is paying rent and can do what she likes". In that first email, and in subsequent emails sent on 8 February 2024, the defendant informed the plaintiff's solicitors that the fence would be constructed within 60 days, and that preliminary works and drainage would commence on 8 February 2024. The plaintiff's solicitors did not respond to or engage with the defendant's complaint about the use of the shared driveway by the plaintiff's tenants and their visitors. Rather, the plaintiff's solicitors merely sought an undertaking that the defendant would not commence any work on the shared driveway for at least 60 days. The defendant responded that "there is no common driveway" and that the plaintiff's solicitors "harassment with non legitimate statements has forced the process to happen today", and that "I will proceed today for the safety of my family and home". The tone of the defendant's emails is regrettable, although it is understandable that his feelings were running high in circumstances where the plaintiff was failing to take any steps to investigate or address the behaviour of his tenants and their visitors in using the shared driveway about which Ms Sacchetti-Attard had complained, and about which the defendant again complained in his 7 February 2024 email.
The defendant did in fact commence preliminary work on the driveway on the afternoon of 8 February 2024. That resulted in the plaintiff commencing these proceedings on 9 February 2024 and obtaining a short-term interim injunction restraining the defendant from interfering with access to the shared driveway until 6:00pm on 13 February 2024. That interim injunction was subsequently extended by consent of the parties until further order of the Court.
Service of the interim order on the defendant elicited another barrage of emails that he directed to the plaintiff's solicitors, repeatedly stating that "[i]t is not a common driveway never will be".
On 21 February 2024, the defendant's solicitors conveyed to the plaintiff's solicitors a without prejudice offer. The terms of that offer were not in evidence, but it is clear from the evidence of subsequent correspondence that the offer involved the widening of the existing driveway onto the plaintiff's land, following which the defendant would erect the proposed boundary fence down the middle of the existing shared driveway. This would leave the plaintiff with a driveway wholly on his own land. It is clear from subsequent correspondence that, as part of the offer, the defendant offered to undertake the necessary excavation work on the plaintiff's land. There is no dispute that the defendant is a licensed excavator. The plaintiff gave evidence that one of his "biggest concerns" with the defendant's without prejudice offer was that "it would provide Mr Attard with a significant windfall by profiting from the construction". The plaintiff instructed his solicitors to reject the offer, and to put a counter-offer.
The plaintiff's solicitors then wrote to the defendant's solicitors in the following terms on 22 February 2024: "Our client is rightly concerned by the quote providing an inclusion for "10 hours allowance" for Mr Attard to conduct the excavation and that it may be a way for Mr Attard to unfairly profit from this proposal. Any offered proposal must not have Mr Attard receiving financial compensation for any time or labour spent working on the driveway. Even if we are in error regarding this aspect of the proposal, the offer of Mr Attard is rejected. In response, Mr Deering has proposed the following amendments to the proposal: 1. Mr Deering agrees in principle to the widening of the driveway further onto his property and, once completed, for a fence to be constructed on the boundary line. 2. Mr Deering does not object in principle to Mr Attard conducting the excavation work on the condition that adequate safeguards are in place to ensure that the work is done to expected standards and certification. 3. Each party will source no less than two quotes for the work and then agree on which builder should be engaged for the contract. a. Failing agreement, the cheapest quote sourced by Mr Deering will be used. 4. The builders will operate at Mr Attard's expense. 5. Mr Attard will be responsible for the cost of erecting a boundary fence between the two properties once the driveway is complete. This offer is made in line with the principles of Calderbank v Calderbank."
I note that this offer by the plaintiff proposed that the defendant bear the whole of the cost of widening the driveway to give the plaintiff the benefit of an entire driveway on No. 109, and that the defendant also bear the whole of the cost of constructing the boundary fence between the two properties. Notwithstanding that the defendant was to bear the whole of the cost, the plaintiff required that he have control over the choice of builder, apparently preoccupied by his theory that the defendant would somehow profit from the work even if the defendant agreed to bear the costs of the work as the plaintiff's offer proposed.
The defendant's solicitors replied on 28 February 2024 in the following terms: "Our client opposes the grant of the easement on a number of grounds including the following: (1) The grant of the easement will unduly interfere with our client's quiet enjoyment of-his land. The driveway passes within feet of a bedroom in which our client's 12 year old son sleeps. As you will be aware there have been instances where your clients' tenants have made excessively loud noise on the driveway late at night. The disturbances have caused our client to consider selling his land. (2) The grant of an easement will significantly decrease the value of our client's land. The house on our client's land is old and in relatively poor condition. Our client is and has been contemplating making an application to demolish the existing house and rebuild a new house on the land. The house that he has contemplated building will extend to approximately 900 mm of the boundary and accordingly will overlap the proposed easement. The easement that you propose will prevent our client using the land in the way he is contemplating. (3) The width of our client's property is 12 metres. Our client understands that any reduction in the width of the block reduces the potential of building on the land due to Council's zoning and development codes. (3) The grant of an easement is not necessary as there are alternatives open to your client. We also that your client has not made any offer of financial compensation to our client. Our client makes the following offer to settle this matter, which offer is open for acceptance for a period of 28 days: 1. Your client's application be dismissed with no order as to costs. We note that this is a significant concession as ordinarily in applications of this sort the plaintiff pays the defendant's costs (See section 88K(5) of the Conveyancing Act) 2. Our client will bear the entire cost of erecting a boundary fence between the two properties. Our client will delay building the fence for a period of 3 months to allow your client to complete extensions to the existing driveway if he so wishes. 3. In the event that your client wishes to enlarge the current driveway so that it is entirely on his land, our client proposes the following: (a) Our client, Luke Attard, who is a licenced excavator operator, will undertake any excavation work necessary to extend the driveway, and will not charge for carrying out such work. (b) Our client has made enquiries of Thompson Built Construction who have quoted the sum of $28,020.30 for cost of pouring the concrete for a new driveway entirely on your client's land. A copy of this quotation (quotation number QU00016) is attached. Your client is free to engage this company or any other company he chooses to pour the new driveway. The offer if accepted has the advantage of guaranteeing Mr Deering a driveway for his permanent use for the money he is spending. At present your client is at risk of paying a considerable sum of money in Legal Fees and or compensation to Mr Attard without obtaining use of a driveway that is solely his for his use and enjoyment. The cost to your client is likely to be significantly more than the $28,020.30 referred to above. We note that although this letter contains a settlement offer, such offer is intended to be an open offer and the offer is not made without prejudice. We intent to provide a copy of this letter to the Court and will relay on this correspondence in the proceedings should your client refuse the offer and the proceedings not settle prior to trial. Further in the event that this offer is not accepted, and our client obtains a result in the proceeding that is better than the offer set out in this letter, our client intends to rely on this letter to found an application for costs on an indemnity basis relying on the principles set out in Calderbank v Calderbank"
The plaintiff's solicitors replied on 29 February 2024 in the following terms: "Firstly, can you clarify what your client's position is in relation to his property. You have stated in the letter that he has cause 'to consider selling his land', yet we have evidence that it has had a for sale sign, with an agent listed since at least 13 February 2024. This would seem more than a consideration and the progress towards sale is at odds to the claim that he 'has been contemplating making an application to demolish the existing house and rebuild a new house on the land.' This is especially confusing considering your previous intimations about the desire for a speedy resolution due to the impending sale of the property. In addition, your offer has been made in line with the principles of Calderbank v Calderbank. A Calderbank offer will be considered by the Court based on, among other things, 'the extent of compromise' in the letter. We fail to see where your offer provides compromise when considering your previous offer of 22 February 2024 as comparison. Your previous offer provided for a genuine joint effort to complete the driveway, with the construction of the fence to not commence until that had been completed. The offer contained in your letter of 29 February 2024 seems to depart from that approach and asserts that your client is going to build the fence in 3 months regardless of what our client does. Further, your letter emphasises Mr Attard's offer to complete the work on the driveway for free. Read in this light, your original offer would have resulted in Mr Attard profiting from the construction of the driveway at the expense of our client. However, you have assured us on multiple occasions that this was not the case. We are concerned that if your client were to make an offer with a view to profiting from the arrangement, that it would be entirely inconsistent with the requirement in Calderbank and other cases that it be a genuine compromise capable of acceptance. In order to better understand your client's position and attitude to resolving the matter, can you please clarify: 1) What Mr Attard's plans are regarding the sale of, or renovation, of the land. 2) Why the offer contained in your letter of 29 February 2024 represents a genuine offer to compromise proceedings when compare with your offer of 22 February 2024. If we have misunderstood Mr Attard's position and the offer is genuinely moving towards a compromise settlement, then we look forward to your clarification so that we may advise our client who will continue to negotiate in good faith."
The request for clarification appears to have been driven by: (1) a fixation with the question whether the defendant's previous offer, which the plaintiff had already rejected, would have afforded the defendant an opportunity to profit from any work that he undertook in constructing a new driveway or extending the driveway; and (2) a curious notion that the defendant was obliged to offer a better compromise to the plaintiff than his previous offer which the plaintiff had rejected. Any party who rejects a settlement offer in litigation runs the risk that any subsequent offers (if any) might be even less favourable to them than the one which they rejected.
The plaintiff gave evidence that he was confused by the defendant's 28 February 2024 offer, and could not understand it without the clarification sought. The plaintiff nevertheless instructed his solicitors to make a further offer to the defendant on 28 March 2024 in the following terms: "In order to bring an end to this matter and allow your property to be sold, we make the following genuine offer in line with Calderbank v Calderbank: 1. You agree to a consent order application for the registration of a mutual easement on both properties under these terms; 2. Neither party will seek a costs order from the other party; 3. In line with the Conveyancing Act 1919, our client will bear all costs associated with the registration of the easements over both properties; and 4. You will do all things necessary and sign all things necessary to allow for the registration of the easement to occur. We note our strong claim to have the easement registered based on long-standing use, not only by previous owners, but also by you and your family. We also note our strong claim for an order for costs against you if this matter were to proceed to a final hearing given the progress on the matter to date. We make this genuine offer as a way for both parties to bring this matter to a close and move on while maintaining what has effectively been the status-quo for more than two decades."
In substance, that offer proposed that the defendant capitulate to the plaintiff's claimed entitlement to an easement, which at this stage had only ever been expressed as an entitlement said to arise from the alleged common intention and agreement of the plaintiff and a previous owner of No. 107 which the plaintiff wrongly asserted was effective, without more, to bind all successors in title to No. 107. As I have already observed, that claim was abandoned by the plaintiff shortly before the commencement of the hearing of these proceedings in August 2024.
The defendant's immediate response to the 28 March 2024 offer was to send a series of emails written in a tone that varied between cynical and belittling to abusive, and which included threats to report the plaintiff to the Australian Taxation Office for allegedly not declaring the rental income received from tenants at No. 109.
The plaintiff gave evidence complaining that his solicitors pressed the defendant on several occasions during April 2024 for clarification of his 28 February 2024 offer and for a response to the plaintiff's 28 March 2024 offer, but neither was forthcoming.
I do not accept that the plaintiff or his solicitors were unable to understand the defendant's offer made on 28 February 2024 without the clarification sought on 29 February 2024 which, as I have explained, was directed principally to the defendant's earlier offer which the plaintiff had already rejected. Moreover, it is not clear to me why the plaintiff's solicitors continued to press for that clarification during April 2024, in circumstances where the plaintiff had rejected the defendant's 28 February 2024 offer by making the counter-offer on 28 March 2024. It was not until 23 April 2024 that any correspondence emanating from the plaintiff's solicitors hinted that the plaintiff may rely on s 88K of the Conveyancing Act in seeking an easement over the defendant's land. However, the plaintiff did not at that stage withdraw his previous contentions claiming to be entitled to an easement based on his alleged common intention and agreement with a previous owner of No. 107. Nor did the plaintiff apply at that time for leave to amend his summons filed in these proceedings to rely on s 88K of the Conveyancing Act.
The defendant apparently made a further offer on 2 July 2024, the terms of which are not in evidence. On 26 July 2024, the plaintiff's solicitors wrote to new solicitors acting for the defendant advising that the plaintiff rejected that offer, and that the plaintiff's offer made on 28 March 2024 remained open for acceptance.
None of the correspondence emanating from the plaintiff's solicitors addressed the substance of the complaint that had been made by Ms Sacchetti-Attard in October 2023, and reiterated in the defendant's email to the plaintiff's solicitors dated 7 February 2024 and in the letter sent by the defendant's solicitors to the plaintiff's solicitors dated 28 February 2024 about the extent to which the use of the shared driveway by the plaintiff's tenants had interfered with the defendant's use and enjoyment of his own property. The correspondence from the plaintiff's solicitors neither disputed those allegations, nor indicated that the plaintiff had, or was intending to, take steps to investigate those allegations.
When shown about the correspondence containing the defendant's complaints about noise and vibrations in cross-examination, the plaintiff's response was "Good". The plaintiff initially said that he did not think he had been advised about those complaints that were made to his solicitor, but he subsequently acknowledged that he had been so advised. The plaintiff said that he would be concerned about the allegations if they were true, but then gave the following evidence when asked what he did about the allegations: "Q. What did you do about that? A. Nothing. Q. When you got your surveyor and engaged some experts, did you apply your mind to how the concerns being raised by Mr Attard could be addressed? A. I would leave that to the experts. Q. Well what expert did you get? Which expert advised you about how that could be assisted? A. Well what experts are you referring to? The experts I've engaged has been the valuer and the surveyor. Q. Right. But you weren't concerned about the impact that they were complaining about, the Attards? A. Well it was to the solicitor. At that stage it was in the solicitor's hands. Q. So not your problem, is that your evidence? A. Basically, yes. Q. So as long as you get what you want, you don't care about the impact on the Attards, is that your evidence? A. I also would suggest that I, taking into account the last 24 years and the numerous owners of 107 plus the tenants who have never complained about vibrations or damage to the house. Q. But you knew the Attards did, didn't you? A. Well, I took it that's their allegation again. … Q. Do you remember being told about that? [referring to the first paragraph of the letter from the defendant's solicitors to the plaintiff's solicitors dated 28 February 2024 complaining about excessively loud noise resulting from the plaintiff's tenants using the shared driveway late at night] A. No. Well, I remember reading it. Q. So you've read that, have you? A. Yeah. Q. What did you do about that? What did you do about that complaint? A. Well, to my thinking it's another allegation of the many. Q. So, there were many allegations along these lines. That's right, isn't it? A No. No. Many allegations from Mr Attard. Q. So you just ignored them, did you? A. Yes. Q. Because they were allegations? A. Yes. Q. You didn't see them as concerns about amenity impacts on their land, legitimate amenity impacts on their land? You didn't - A. Well, I go back to my previous answer that for 24 years numerous owners and tenants have never mentioned it."
The plaintiff also gave evidence in cross-examination that, from the part of the dwelling on No. 109 within which he resides and in which he spends most of his time, he does not have view of what was happening on the shared driveway. The plaintiff said, "it was up the hall and two or three bedrooms away to look at the driveway, and I - I'm not going to spend my time walking to look at the driveway". As I understand that evidence, it was open to the plaintiff to watch over the shared driveway from his residence to ascertain for himself how the shared driveway was being used, but he did not do so.
On the basis of this evidence of the plaintiff in cross-examination and the correspondence during the period from February to July 2024 between the plaintiff's solicitors, on the one hand, and the defendant or his solicitors on the other hand, I find that the defendant complained from October 2023 that the manner in which the shared driveway was being used by the plaintiff's tenants and/or their visitors was creating late night loud noise, vibrations and light and unreasonably interfering with the use of No. 107 by the defendant and his family who lived there. I find that the plaintiff chose to ignore those allegations without taking any steps to observe and without making any inquiries about the manner in which his tenants and their visitors were using the shared driveway. I find that plaintiff was unconcerned about any such noise and vibrations because it did not impact on his use of his own property, and he therefore continued to instruct his solicitors to press for an easement burdening the defendant's land that would permit the plaintiff, his tenants and their visitors to continue using the shared driveway without restrictions, failing to take any step to engage with and address the defendant's allegations. I have found that those allegations were true. [1]
It was not until the first day of the hearing on 22 August 2024 that the plaintiff applied for leave to amend his summons to seek orders under s 88K of the Conveyancing Act imposing reciprocal easements in respect of the shared driveway burdening and benefitting No. 107 and No. 109, and abandoned his pleaded claim for an equitable easement. Leave to amend was granted without opposition from the defendant on terms that the plaintiff pay the defendant's costs thrown away by reason of the amendment.

Reasonable necessity

Section 88K of the Conveyancing Act provides: "(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be - (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect - (a) if the land burdened is under the Real Property Act 1900, when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court."
The applicant for an order imposing an easement under s 88K bears the onus of demonstrating that the proposed easement is "reasonably necessary" for the effective use of the applicant's land. The requirement of reasonable necessity can still be satisfied even in circumstances where the applicant's land could be effectively used without the grant of the easement sought. This requires the Court to consider the alternative methods by which the use of the applicant's land could be achieved. The use with the proposed easement must be at least substantially preferable to the use without the easement. [2]
As the plaintiff submitted, it is relevant to have regard to "the historical context of use of the land, both of the dominant and servient tenements". [3] The Court must also consider the effect that the proposed easement would have on the proposed servient tenement. [4]
If the imposition of the easement is determined to be reasonably necessary within the meaning of s 88K(1), the Court will ordinarily proceed to make an order imposing the easement if it is satisfied of the matters in s 88K(2). However, even if satisfied of those matters, the Court retains a discretion as to whether to make the order, as counsel for the plaintiff in this case accepted. That discretion is to be exercised "having regard to the purpose of the section, which might be summarised as facilitating the reasonable development of land whilst ensuring that just compensation be paid for any erosion of private property rights". [5]
In the present case, the plaintiff's application under s 88K is not made in the context of any proposed or potential future development of the plaintiff's land. Thus, the question posed by s 88K(1) is whether the proposed easement burdening No. 107 is reasonably necessary for the effective use of No. 109. The plaintiff has failed to discharge his onus of establishing that reasonable necessity, for the following reasons.
I accept that the shared driveway was consistently used as such by the owners and occupants of No. 107 and No. 109 for a period of approximately 23 years from the construction of the driveway in about 2000 until about late 2023 when the defendant and the occupants of No. 107 ceased using it. The plaintiff and the occupants of No. 109 continue to use the shared driveway.
I also accept that the use of the plaintiff's land with the benefit of the proposed easement is preferable to the use of his land without the proposed easement because the shared driveway is presently the only means of vehicular access from Sunshine Parade to the dwelling on No. 109, and pedestrian access to that dwelling is via 14 or 15 stairs through a landscaped area which I infer from the photographic evidence would be relatively simple for some persons to navigate, but difficult or impossible for others, depending on their particular circumstances. I note that counsel for the plaintiff submitted that his osteoarthritis which limits his mobility is not a relevant consideration in determining reasonable necessity, because the test is directed to the effective use of the land rather than the circumstances of the present owners and occupants of the land.
However, the plaintiff's land fronts directly onto Sunshine Parade and the evidence adduced in these proceedings supports a finding on the balance of probabilities that an alternative means of vehicular access to the dwelling on No. 109 is available by constructing a driveway wholly on No. 109 between Sunshine Parade and the front of the dwelling on No. 109. There is no evidence suggesting that such a driveway would be inferior to the existing shared driveway. Counsel for the plaintiff submitted that the feasibility of constructing an alternative driveway was not established because there was no evidence concerning the gradient of such a driveway, whether development consent would be required, and whether that consent would be forthcoming. In circumstances where it was the plaintiff who adduced evidence of the quotes that he had obtained for the construction of an alternative driveway, the plaintiff's onus of proof in relation to reasonable necessity required him to adduce any evidence that an alternative driveway would be of such a gradient as to require development consent, and that such consent would be unlikely to be granted, if the plaintiff wished to rely on such contentions. I reject the plaintiff's submission to the contrary. The plaintiff did not adduce any evidence to that effect.
In truth, the plaintiff's only difficulty with the construction of a new driveway to provide an alternative means of vehicular access from Sunshine Parade to the front of his property concerned the cost. Notwithstanding the plaintiff's evidence that he considered that the quotes which he obtained were "cost prohibitive", [6] counsel for the plaintiff at the hearing expressly abandoned any contention that the plaintiff could not afford to construct a new driveway. I therefore understand the plaintiff's evidence to rise no higher than that the cost of constructing a new driveway on his own property is higher than what he would hope to pay, and he wishes to avoid incurring that cost. However, reasonable necessity in the context of s 88K(1) means something more than desirability or preferability over the alternative means of access. Before the Court will make an order under s 88K imposing an easement, the evidence must demonstrate "considerable advantage" for the plaintiff in obtaining the proposed easement compared to developing the alternative means of access, so that the use of the plaintiff's land with the proposed easement is at least substantially preferable to use without the easement. That is because the proposed orders under s 88K involve an appropriation of the defendant's property for the benefit of the plaintiff's land, albeit with the benefit of a proposed reciprocal easement burdening the plaintiff's land for the benefit of the defendant's land, but which the defendant does not want. [7] I do not consider that avoiding the cost of constructing a new driveway, which on the evidence is a course open to the plaintiff, rises to the level of a "considerable advantage" which renders the use of the plaintiff's land with the benefit of the proposed easement substantially preferable to its use without the benefit of the proposed easement.
Consideration of the effect of the proposed easement on the defendant's land confirms my view that the easement is not a matter of reasonable necessity within the meaning of s 88K(1). Given that the shared driveway directly abuts the defendant's residence, the proposed easement would expose the present and future owner of and occupants of No. 107 to an ongoing risk of interference with their reasonable use and enjoyment of No. 107 due to noise, light and vibration caused by vehicles using the shared driveway, depending on the frequency and times of use of the shared driveway and the manner in which the vehicles in question are driven along the shared driveway. The uncontested evidence of the defendant and Ms Sacchetti-Attard concerning the manner in which the shared driveway has been used since about May 2023 demonstrates that this risk is real. I accept the plaintiff's submission that the considerations in s 88K are directed to the land rather than to its owners or occupants from time to time. It is the proximity of the shared driveway and proposed easement to the dwelling on No. 107, together with ordinary human experience of the range of behaviours of residential neighbours and motor vehicle drivers, that gives rise to the risk. The particular behaviour of the drivers of vehicles using the shared driveway in the period since May 2023 merely serves to illustrate the risk. While there is some prospect of the dwelling on No. 107 being demolished and a new home being built on that land by the defendant or a successor in title, there is no basis to assume that any new home could be set back further from the shared driveway sufficiently as to reduce or eliminate the risk. The evidence of the plaintiff's valuer, Mr Sims, referred to at [70]-[80] below emphasised the narrow width of No. 107. I am not satisfied that the risk could be addressed sufficiently for the proposed easement to satisfy the test of reasonable necessity in s 88K(1) by the application of conditions as to the times or manner of use of the easement. The plaintiff has not formulated any such conditions for the Court's consideration, and counsel for the plaintiff properly conceded in closing submissions that the plaintiff's attitude to the defendant's complaints to date meant that the Court could not be satisfied that such conditions would be likely to be complied with.
I reject the plaintiff's submission that the risk of unreasonable interference with the use and enjoyment of the defendant's land is capable of being addressed on a case by case basis under the law of nuisance, and is not a matter for the Court to consider in determining the question of reasonable necessity. As I have noted above, the established principles require the Court to consider the effect of the proposed easement on the defendant's land. In this case, that impact includes the risk of unreasonable interference with the use and enjoyment of the defendant's land. That risk is a relevant consideration, even if it would be open to the defendant to institute future legal proceedings invoking the law of nuisance.
I also reject the plaintiff's submission that the imposition of the easement would not create any risk of interference with the use and enjoyment of the defendant's land, or loss of amenity, because the shared driveway already exists. The point is that the proposed easement would preclude the defendant and his successors in title from eliminating such interference or loss of amenity by terminating what are currently informal arrangements regarding the use of the shared driveway. If the easement were granted, it could not be varied or terminated without an order of the Court. Without the proposed easement, the defendant and his successors in title are not so constrained.
The plaintiff's proposed reciprocal easement burdening his own land and benefitting No. 107 in respect of the shared driveway does not alter my assessment of reasonable necessity. There is no evidence that the proposed reciprocal easement is reasonably necessary for the effective use or development of the defendant's land. On the contrary, Ms Sacchetti-Attard's unchallenged evidence given in cross-examination is that there is an alternative means of vehicular access to the rear of No. 107 and to the waterfront via No. 105, and that boats can be launched from a publicly accessible boat ramp in a nearby park in order to access the jetty that No. 107 shares with No. 105. Nor is there any evidence that the proposed reciprocal easement is reasonably necessary for the effective development of No. 107. On the contrary, the approved plans for the development consent that has now lapsed were prepared on the basis that the shared driveway would be demolished. As I have mentioned at the outset of these reasons, the defendant does not want the plaintiff's proposed reciprocal easement.
In coming to the conclusion that the proposed easement burdening No. 107 and benefitting No. 109 is not reasonably necessary for the effective use and development of No. 109, I have considered all of the authorities referred to in the parties' submissions. I have not been assisted by the parties' submissions which endeavour to resolve the application of s 88K(1) to the particular circumstances of the present case by drawing various analogies with the facts of other cases which were decided on the basis of their own facts.

Section 88K(2)

Strictly speaking, s 88K(2) does not arise for consideration given the plaintiffs' failure to establish reasonable necessity within the meaning of s 88K(1). However, in case a different view might be taken in relation to s 88K(1) in any future appeal, I will indicate briefly what I would have decided in relation to each element of s 88K(2) had it been necessary to address those elements.

Public interest

The question posed by s 88K(2)(a) is whether the Court is satisfied that the use of No. 109 with the benefit of the proposed easement will not be inconsistent with the public interest.
I reject the defendant's submissions that the use of No. 109 with the benefit of the proposed easement burdening No. 107 in respect of the shared driveway would be inconsistent with the public interest due to: (1) the risk of slipping during wet weather conditions; (2) the absence of any evidence of development consent for the driveway; and (3) the advice from Lake Macquarie City Council that the gradient of the driveway does not meet the current standard driveways profile grades. As I have noted earlier in these reasons, there is no evidence of the development control plans or other relevant standards that applied when the shared driveway was constructed in 2000. There is no evidence that development consent was required for the driveway at that time. I have found that the Council, following an inspection of the driveway, has not assessed the driveway as representing a significant risk to public safety. Ms Sacchetti-Attard's evidence that she fell when walking on the shared driveway on one occasion during wet weather in 2022 does not establish the existence of a safety risk that would render the use of No. 109 with the shared driveway, as it has been used for the past 23 years, contrary to the public interest.
If it had been necessary to address s 88K(2), I would have been satisfied, in the absence of any evidence to the contrary, that the continued use of No. 109 as a residential dwelling but with the benefit of the proposed easement would not be inconsistent with the public interest.

Compensation

The question posed by s 88K(2)(b) is whether the Court is satisfied that the defendant, as the owner of No. 107, can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the proposed easement burdening No. 107 and benefitting No. 109.
The plaintiff relied on the evidence of Mr Darren Sims, a certified practising valuer, who prepared a report dated 1 May 2024 following his inspection of No. 107 on 30 April 2024 expressing the opinion that the market value of No. 107 in its current state with no restrictions on the use of the shared driveway was $1,600,000, whereas the market value of No. 107 if a fence was erected along the shared driveway would be $1,450,000. On that basis, the plaintiff submitted that the imposition of the proposed easement would not result in any loss to the defendant for which compensation is required by s 88K(2)(b) and s 88K(4).
Mr Sims' report stated that the most appropriate method of valuation was to value No. 107 by direct comparison to recent sales of similar properties in order to establish the current market value of No. 107.
Mr Sims' report then listed seven properties which had been sold in the same area. Those sales had occurred during the period between 15 December 2023 and 11 April 2024 for prices ranging between $1,380,000 and $2,260,000. The land area of the seven properties varied within a range of between 626 square metres and 3843 square meters. Mr Sims recorded that the land area of No. 107 is 830 square metres. Mr Sims' report set out some "Brief comments" in relation to the features of each property, and two lines of text comparing some of those features to the features of No. 107 and stating whether each property was "Overall inferior" or "Overall superior" to No. 107.
The reasons set out in Mr Sims' report for his assessment of the comparability between the seven sale properties and No. 107 are very thin, but he did identify two properties with superior dwellings, car accommodation and land size compared to No. 107, but inferior lake reserve frontage compared to No. 107, which he appears to have considered to be the closest comparisons to No. 107. Those properties sold for $1,500,000 and $1,525,000. Although it has taken some effort, I am able to discern from the text of Mr Sims' report, read as a whole, that his valuation of No. 107 with the shared driveway in place at $1,600,000 is based on his view that the superior lake reserve frontage of No. 107, together with the opportunities to improve or develop the property at the rear and to use the shared driveway to transport construction materials and machinery to the rear of the property for that purpose, means that No. 107 would attract a slightly higher price than the two most closely comparable properties. If the shared driveway were unable to be used due to the erection of a fence down the middle of it along the boundary line as proposed by the defendant, Mr Sims opined that a purchaser would see no opportunity to develop the property by extending it or constructing a garage at the rear, and that this would result in a reduced market value of approximately $1,450,000, noting that most of the sales to which he had regard in excess of $1,500,000 had garaging for two cars. In the course of his reasoning, Mr Sims stated that No. 107 was a particularly narrow block in comparison to the sale properties that he had considered for his direct comparison methodology, being approximately 2 metres narrower than any of those sale properties. Mr Sims opined that, if the defendant's proposed fence were to be erected, then the desirability of lake frontage would be "lost" due to the restriction on the development potential for either a rear extension or verandah or the loss of the ability to create landscaping or a pool at the rear of No. 107.
In cross-examination, Mr Sims purported to maintain his opinions to that effect, whilst at the same time giving inconsistent evidence that No. 107 is a smaller property with an older residence and, in the subject area, the average buyer of such a property would "just knock it down" and build a new house of their choosing on the block, rather than extending or renovating at the rear of the existing dwelling. Inconsistently with his report, Mr Sims said that a potential purchaser "wouldn't get into the technicalities of - of whether the driveway is there. They would literally look at it in simplistic terms, you know. Buyers are not complicated analysts at the end of the day. You know, the buyer would look at it and say, okay, yeah, I like this house, I want to buy it, or actually, this is going to, you know, not quite - make it straightforward, I'll just go and buy something else, or, I'll knock the house down". I understood that to be the basis for Mr Sims' evidence in cross-examination that the average buyer of No. 107 would be willing to pay only land value, which he had opined in his report was $1,400,000.
I am unable to discern from Mr Sims' report the reasons for his opinion about the current market value of the land only for No. 107. His report is devoid of any analysis about the extent to which the prices for which the seven comparable properties were sold reflected land value and the extent to which those prices reflected the value of the improvements on each property.
It was put to Mr Sims in cross-examination that, having regard to setbacks and the narrowness of the block of land, the continued existence of the shared driveway on No. 107 would impede the development that a potential purchaser could undertake, or contemplate undertaking at the time of determining the price they would be willing to pay for No. 107. Mr Sims denied this, stating that those constraints would simply be factored into any design of any new house for No. 107 and "so I'll say it won't make that big a difference". Mr Sims backed this up by saying that "[t]he width of the property is not overly relevant, because you're on the waterfront. People work with what they've got". These statements were mere assertions, unsupported by any reasoning whatsoever. There is no evidence that Mr Sims undertook any analysis of the market value of No. 107 as a knock down and rebuild development site with the proposed easement, compared to without the proposed easement. The proposed easement would preclude any development on the 1.5 metre strip of land adjoining the boundary with No. 109 on the already narrow block of No. 107.
In re-examination, Mr Sims reverted to his evidence in chief that potential buyers would factor into price decisions whether or not they could physically get access to the rear of No. 107 in order to renovate or extend the existing dwelling.
I respectfully agree with and adopt Peden J's summary in Mulder v Laura Holdings Pty Ltd of the principles applicable to determining for the purpose of s 88K(2)(b) and s 88K(4) whether the proposed servient owner will suffer any loss or disadvantage arising from the imposition of the proposed easement and, if so, whether the servient owner can be adequately compensated and what is the appropriate amount of compensation. [8]
If it had been necessary to address s 88K(2)(b) and s 88K(4), I would not have been satisfied that the defendant will suffer no loss in terms of diminution in the market value of No. 107 as a result of the imposition of the proposed easement. I would not have been persuaded by Mr Sims' bare assertions that the requirement for potential purchasers to carve the area of the proposed easement out from any prospective development would have no impact on the price that willing but anxious purchasers would be prepared to pay for No. 107. Mr Sims did not even consider any impact on the value of No. 107 if a potential purchaser, working with "what they've got", would have to put up with the shared driveway abutting or very close to any new dwelling that they could construct on No. 107. I would therefore have held that the inconsistent evidence of Mr Sims did not provide a sufficient basis for the Court to be satisfied that the defendant can be adequately compensated for any such loss, much less to determine the appropriate amount of compensation, even if I were to put myself in the position of a juror for that purpose.

Reasonable attempts to obtain the easement

The question posed by s 88K(2)(c) is whether the Court is satisfied that all reasonable attempts have been made by the plaintiff to obtain the proposed easement, or an easement having the same effect.
I reject the plaintiff's submission that he has made reasonable attempts to obtain the proposed easement, in circumstances where the defendant has been particularly combative. The plaintiff made only two attempts to obtain the easement that is the subject of these proceedings, or an easement having the same effect. The first attempt was made on 6 February 2024 shortly before the commencement of these proceedings, when the plaintiff's solicitors wrote to the defendant insisting that he cease all preparations to erect a fence on the boundary line and erroneously asserting that the plaintiff had an implied easement by reason of an agreement made with a former owner of No. 107 by which the plaintiff wrongly contended the defendant was bound. [9] As I have observed earlier in these reasons, the defendant's combative approach to negotiations with the plaintiff was responsive to the plaintiff's own combative and erroneous stance on 6 February 2024. [10] The plaintiff's second attempt to obtain an easement having the same effect as that which was now sought was made on 29 February 2024. That attempt was made in the context of the plaintiff's ongoing erroneous stance as to the basis on which he claimed to be entitled to an easement, and without making any attempt to address the concerns expressed by the defendant about the manner in which the shared driveway was being used by the plaintiff, his tenants, and their visitors. [11]
I do not consider that the plaintiff's two attempts were reasonable attempts because they were based on an erroneous claim and because they failed to engage with the issue raised by the defendant concerning the interference with his use and enjoyment of his own property by reason of the manner in which the shared driveway was being used.
The various negotiations that were directed to the potential construction of a new driveway wholly on the plaintiff's land are not relevant for the purpose of s 88K(2)(c). [12]
For all of those reasons, if it had been necessary to address s 88K(2)(c), I would not have been satisfied that all reasonable attempts had been made by the plaintiff to obtain the proposed easement, or an easement having the same effect.

Residual discretion

In light of my conclusion that the plaintiff has failed to discharge his onus of establishing reasonable necessity within the meaning of s 88K(1), and the conclusions that I would have reached in relation to s 88K(2) had it been necessary to address the three matters in s 88K(2), the residual discretion to refuse to make an order imposing the proposed easement does not arise. [13] However, if I had found that the imposition of the proposed easement was reasonably necessary for the effective use of the plaintiff's land, and if I had been satisfied of each of the matters in s 88K(2), I would have exercised the residual discretion not to make an order imposing the proposed easement because I would not have considered that it was consistent with the policy of s 88K to make orders appropriating the defendant's property by imposing the easement at the suit of the plaintiff whose own evidence demonstrated his complete lack of care or regard for the defendant's entitlement to the reasonable use and enjoyment of his own land without unreasonable interference from persons using the proposed easement for the purpose of vehicular access to the plaintiff's residence.

Discharge of the interim injunction

As the plaintiff has failed in his claim for final relief under s 88K of the Conveyancing Act, the interim injunction must be discharged.

Costs

Pursuant to s 88K(5), the costs of the proceedings are payable by the plaintiff, subject to any order of the Court to the contrary. An order requiring the plaintiff to pay the defendant's costs in the present case is also consistent with the usual rule that costs follow the event. For those reasons, my preliminary view is that the plaintiff should be ordered to pay the defendant's costs of the proceedings on the ordinary basis as agreed or assessed. I will hear the parties in relation to costs in the event that either of them seeks a different costs order.

Conclusion and orders

For all of the foregoing reasons, the plaintiff has failed to establish that the proposed easement burdening No. 107 is reasonably necessary for the effective use or development of the plaintiff's land and his claim for an order under s 88K imposing that easement must therefore be dismissed. Even if the plaintiff had established reasonable necessity within the meaning of s 88K(1), I would not have been satisfied of the matters in s 88K(2)(b) and (c), and the plaintiff's claim would have been dismissed for that reason. Even if I had been satisfied of all of the matters in s 88K(2), I would have exercised the residual discretion to decline to make the order sought by the plaintiff in all the circumstances of this case.
The orders of the Court are as follows: 1. Order that the plaintiff's claim for relief in prayer 4 of the Amended Summons is dismissed. 2. Order that the interim injunction granted on 9 February 2024, as varied by orders made on 13 and 22 February 2024, is discharged with immediate effect.

Endnotes

See [13] above.
Gordon v Lever (No. 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 (Gordon v Lever No. 2) at [35]-[41] (Bell P, Payne JA and Emmett AJA agreeing) and the authorities there referred to; see also Bryant v Crompton [2024] NSWSC 238 at [10] (Peden J) and the authorities there referred to.
Gordon v Lever No. 2 at [42] (Bell P, Payne JA and Emmett AJA agreeing); see also Kent Street Pty Ltd v Sydney City Council (2001) 10 BPR 18,757; [2001] NSWSC 268, especially at [13]-[15] (Barrett J, as his Honour then was); Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221 at [60]-[67] (Rein J) and the authorities there referred to; Mulder v Laura Holdings Pty Ltd (2023) 21 BPR 44,389; [2023] NSWSC 812 (Mulder v Laura Holdings) at [16] and [40] (Peden J).
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257; [2012] NSWCA 445 at [154]-[159] (Bathurst CJ, Beazley and Meagher JJA); Gordon v Lever No. 2 at [42] (Bell P, Payne JA and Emmett AJA agreeing).
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 (Brereton J, as his Honour then was); Mulder v Laura Holdings at [14] (Peden J).
See [28] above.
Gordon v Lever No. 2 at [35]-[41] (Bell P, Payne JA and Emmett AJA agreeing), and the authorities there cited.
Mulder v Laura Holdings at [46]-[52] and [79]-[90].
See [30]-[31] above.
See [32] above.
See [41]-[51] above.
Mulder v Laura Holdings at [129]-[141] (Peden J).
See [55] above. 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: 13 December 2024

(2019) 101 NSWLR 427

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Cases Cited (8)