Dudley v Ainsworth

Salient evidence

1. The easement was registered on about 14 November 2020. There is little evidence concerning the physical characteristics of the dominant and servient tenements at that time, although some of the photographs in evidence show aspects of the topography. As far as built structures are concerned, a sketch accompanying a Construction Certificate dated 13 September 2000 appears to depict a residential dwelling and a garage on the dominant tenement (now owned by the plaintiff). Although not entirely clear, the sketch appears to also depict another structure near the house, likely to be the water tank that is visible in a number of photographs. The Construction Certificate was issued in respect of a steel barn for which development consent had been given on 13 July 2000. It is not known whether the barn had been constructed, in whole or in part, at the time the easement was created, but it has been constructed.
2. At the present time, the barn, a residential dwelling and garage (presumably the dwelling and garage that were present in 2000) are upon the plaintiff's land together with a carport in front of the garage (constructed by the plaintiff at some time prior to October 2019) and a large 12m x 12m shed (constructed by the plaintiff in about December 2019). Apart from the barn, these structures stand opposite the 48.645m boundary between the plaintiff's land and the easement area. Looking into the plaintiff's property from the easement area, the house is on the left and the large shed is on the right (closest to Cut Hill Road). The garage and carport structures are between the house and the large shed. The barn is located near the boundary between the plaintiff's land and the defendants' land further away from Cut Hill Road and beyond that part of the boundary adjacent to the easement area.
3. The defendants acquired their property and moved into the house on the property in early-2016. The plaintiff acquired his property shortly thereafter. He moved into the house on the property in July 2016. There is a dispute between the parties about whether there was at that time a fence running along the boundary between the plaintiff's land and the easement area, which fence had a gate about 3.2m wide. Mr Ainsworth gave evidence that there was such a fence, and that Mr Dudley removed it not long after he moved in, or perhaps in 2017. Mr Dudley denies that there was any fence there when he acquired his property. Mr Dudley's version of events is supported by a sketch by a surveyor, Mr Anthony Phibbs of John McDonald Surveyor, dated 14 July 2016. It seems that Mr Dudley retained the surveyor to undertake a survey of the boundaries of his newly acquired property. Mr Phibbs' sketch contains a notation "NO FCE" adjacent to the line marked "48.645", which line depicts that part of the boundary between the plaintiff's land and the easement area. The sketch contains notations as to the existence of fences in various other locations around the boundary. Having regard to this evidence, I think it is likely that Mr Ainsworth is mistaken about the existence of a fence adjacent to the easement area. Of course, on either version of events, there was no fence in that area for about 3 years before the defendants' commenced the fencing and other associated works in about October 2019.
4. In about late-September or early-October 2016, Mr Dudley undertook some works on a driveway on the defendants' property that runs near the boundary. This driveway seems to have been an extension of the driveway on the easement area, but it is not itself within the easement. Mr Dudley used an excavator on the driveway, and placed gravel upon it, to a point approximately opposite the barn on his land. Mr Dudley deposed that he believed he was digging up a driveway which formed part of his property or the right of carriageway. He was clearly wrong in that regard. Mr Dudley further deposed that he used (or perhaps intended to use) that driveway to give his vehicles "all weather access" to his property. Mr Ainsworth deposed that in about December 2017 he removed, at his own cost, the driveway works undertaken by Mr Dudley.
5. At some time, not clear on the evidence, the defendants erected a brick and metal gateway to their property just south of the easement area, and installed some colourbond fencing along the boundary, including in the area near the plaintiff's barn.
6. It should be noted at this point that the relationship between the parties, in particular between Mr Dudley and Mr Ainsworth, is fraught. It seems to be common ground that there is a considerable degree of ill feeling between them. It is not necessary, for the resolution of the issues in the proceedings, to determine the cause or causes of this regrettable situation, or make any assessment of the degree to which either party is responsible for it. Neither is it necessary to deal with a number of complaints and counter-complaints made in the evidence about matters that do not concern the fence and associated works that are the subject of the claims for relief.
7. As I have said, for a considerable period prior to October-November 2019 there was no fence along the boundary between the plaintiff's property and the easement area. Mr Dudley deposed that prior to the erection of the fence in late-2019 he regularly used the full extent of the right of carriageway. He deposed that he routinely used the right of carriageway, both on weekends and during the week, to move his vehicles around, out of and onto his property.
8. Mr Dudley deposed that he owns a number of vehicles, including a bobcat, an excavator, a tractor, a ride-on lawnmower, several motor vehicles and a bus (which is 11m long and 2.5m wide and said to weigh 15 tonnes). In the witness box, Mr Dudley said that his motor vehicles included a Hyundai van, a Holden Rodeo, a Land Cruiser table top vehicle, a Honda motorbike, and three vintage hot rods. Some but not all of the motor vehicles are registered. The bus is not registered. It has been kept for some time in the open near the barn. Mr Dudley has plans to convert the bus into a part motorhome and part conveyance for his hot rods, which could be loaded into the rear section, to take them to shows or race meetings. Mr Dudley plans to put the bus in the large shed whilst the conversion works are done, and then revert to keeping the bus near the barn after the conversion works are complete.
9. Mr Dudley gave evidence that due to the fencing work undertaken by the defendants he currently cannot move the bus out of the area it is currently located. He said that he would be unable to get the bus up across the grassy area in front of the house because it would not be possible to get sufficient traction there. Mr Dudley conceded that he had not actually attempted to drive the bus across that area. He estimated that the distance between the fence and the house was approximately 8m to 10m. Mr Dudley referred to that area as his front lawn. He said it is on a big angle and is not a driveway.
10. Mr Dudley gave evidence that he used to be able to turn the bus into the easement area near the power pole which is approximately at its southern end point. Mr Dudley said that the easement area provided a "stable base". He said that he could then go along the right of carriageway and turn in "to where the big shed is built".
11. Mr Dudley conceded that, apart from the bus, he is able to turn his smaller vehicles into that shed. I take that to mean that those vehicles can be driven from the easement area through the 7.4m gap in the fence and into the large shed.
12. Mr Ainsworth gave evidence that in or around June or July 2019 he and his wife (the second defendant, Kylie Ainsworth) decided to widen the driveway in the easement, install a fence upon its perimeter, and improve the drainage and landscape in the area.
13. By that time, Mr Dudley had lodged a development application for the construction of the large shed. Mr Ainsworth agreed in cross-examination that he became aware of Mr Dudley's intention to build the shed when he received a letter from the Camden Council in May 2019. However, he also gave evidence that he always had intentions of reinstating the fence. Mr Ainsworth lodged an objection to the proposed development, but a development consent was issued on 25 June 2019.
14. The construction of the fence commenced in about October 2019. As already mentioned, the fence is a type of metal post and chainwire fence. According to Mr Ainsworth, it is situated slightly (about 200mm) on the defendants' side of the boundary, within the easement area. The survey evidence suggests that, north of the gap in the fence, it might be 300mm on the defendants' side, and south of the gap about 370mm to 390mm on the defendants' side. The gap, which is about 7.425m wide, is located almost directly opposite the carport on the plaintiff's land.
15. In cross-examination, Mr Ainsworth said the gap was situated at the entry and exit point Mr Dudley had always had. Mr Ainsworth referred to some of the photographic evidence which shows the existence of a gravelled area "that lines up with the carport". Mr Ainsworth gave evidence that the fence complied with Council guidelines as he understood them.
16. In cross-examination he agreed that he did not consult with Mr Dudley about the proposed works. Mr Ainsworth said this was because he had obtained an apprehended violence order against Mr Dudley.
17. Mr Ainsworth did not agree that he recognised that fencing along the boundary of the easement would impact Mr Dudley's access to and from his property. Mr Ainsworth said that it would not have that impact because there was to be a 7.4m gap that was "quite wide". Mr Ainsworth did not agree that by installing the fence with that one gap he was changing Mr Dudley's ability to access the right of carriageway.
18. There are no detailed plans in evidence of the associated drainage works. Some of those works can be seen in the photographic evidence, as can some or perhaps most of the associated landscaping. The landscaping essentially consists of a number of small shrubs or trees, planted in beds located within the easement adjacent to the fence.
19. It is not clear when the fencing and other (including driveway widening) works were completed, but it seems that they were not completed until some time in 2020.
20. Mr Dudley gave evidence that prior to the erection of the fence, he had intended to construct driveways from the right of carriageway to the shed he planned to construct, and also to the carport and to the barn. He said that if the fence was removed he would proceed with those improvements subject to any necessary planning approval. Construction of the large shed commenced in about December 2019. Presumably, it was also completed at some time in 2020.

Applicable principles

1. The central issue in the case is whether the fence and associated works undertaken by the defendants amount to an actionable nuisance by obstructing the plaintiff's enjoyment of his rights under the easement. An obstruction of a private right of way such as is present here is actionable if it amounts to a real substantial interference with the enjoyment of the right of way (see Powell v Langdon (1944) 45 SR (NSW) 136 at 139 and Keefe v Amor (1965) 1 QB 334 at 347, cited by Bryson J as his Honour then was in Prospect County Council v Cross (1990) 21 NSWLR 601 at 608-9; see also Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 280-1).
2. In the context of rights of carriageway, disputes often arise in relation to the erection of fences and gates, including where the easement runs alongside a boundary of the dominant tenement. Brereton J (as his Honour then was) analysed the decided cases in that area in Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [19] to [36]. His Honour summarised the principles that emerge from the cases at [19] and [36] as follows: [19] In the case of such an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, questions may arise as to the number and extent of access points to which the dominant owner is entitled on the one hand, and the entitlement of the servient owner to fence the easement on the other. In my view, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner's reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced. This conclusion flows from the following cases. … [36] These authorities establish that, ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable user of the right of way; that the dominant owner is not entitled to have the right of way remain unfenced; and that the dominant owner is not limited to a single point of access and does not irrevocably elect to use only one point of access by initially determining to do so, but may from time to time vary the points at which access is exercised to and from the right of way. Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct user of the right of way.
3. Both parties cited Trewin v Felton (supra) and sought to rely upon the principles stated therein. Those principles were cited with approval by Sackville AJA (with whom Meagher and White JJA agreed) in Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 at [95]).
4. In considering these questions it is of course necessary to ascertain the nature and extent of the rights conferred by the relevant easement, by construing the terms of the easement. The easement in the present case is embodied in the terms of dealing 7128643 and the plan annexed to it. That dealing is recorded in the Register maintained for the purposes of the Real Property Act 1900 (NSW). The easement must therefore be construed in accordance with the principles enunciated in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45. Accordingly, the task of construction must be undertaken by reference to the terms of the instrument itself, and evidence of the physical characteristics of the land concerned (see Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 at [14]-[16]; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15]-[18]; Lowe v Kladis (supra) at [86]-[89]).

Summary of principal submissions

1. The plaintiff submitted that the right of carriageway is the only means of vehicular or pedestrian entry to and exit from his land. It was submitted that the practical impact of the unilaterally imposed fencing and associated works was to limit the plaintiff's capacity to enter and exit to a single 7.4m wide opening in the fence, whereas he had previously made reasonable use of the full length of the right of carriageway (approximately 48m) for access purposes. It was noted that the land is rural land. The plaintiff submitted that access has been significantly limited. In particular, it was submitted that the plaintiff's ability to move his motor vehicles and machinery around the property has been impacted. Particular reference was made to the impediment imposed upon moving the bus off and on the property, and more generally the difficulty in getting large vehicles in and out of the area near the barn.
2. The plaintiff submitted that injunctive relief should be granted to return to the position that existed before the works were undertaken, although it was accepted that the defendants might ultimately be entitled to erect a replacement fence provided it contained gates or openings of a sufficient size and number and in suitable positions to enable the plaintiff to reasonably exercise his rights under the easement. The plaintiff further submitted that it would be open to the Court to grant relief to require only the removal of particular parts of the fence.
3. The defendants submitted that at the time of the grant of the easement, neither the carport nor the large shed was on the plaintiff's land, and indeed the large shed was not constructed until after the fencing works had been undertaken. The defendants noted that the plaintiff's bus is not registered and has not been registered for many years, and any difficulties in manoeuvring the bus exist independently of the right of carriageway and the fence. It was further noted that the right of carriageway does not extend down as far as the point near where the bus is presently parked. The defendants submitted that the gap in the fence allowed the plaintiff to have reasonable access to and from his land. The defendants further submitted that they were entitled to fence the boundaries of their property, including along the boundary between the easement and the plaintiff's land, so long as the fence did not interfere with the reasonable use of the right of carriageway. The defendants emphasised that the plaintiff had the onus of proof in this regard. The defendants submitted that the evidence showed that the gap in the fence was adequate to allow the plaintiff's vehicles (except the bus) to go to and from both the carport and the large shed on the plaintiff's property, and the plaintiff failed to establish that the reasonable use of his land had been interfered with in any particular manner. It was submitted that it was not shown that the bus could not be driven from its present location and out through the gap in the fence.
4. The defendants submitted that there was no basis to order the removal of the entire fence, and it was put that the evidence did not justify some form of less extensive relief such as an order requiring a larger gap in the fence or additional access points.

Determination

1. The terms of the easement are set out above at [2]. The rights that are conferred upon the proprietors of the dominant tenement (presently the plaintiff) encompass full and free right to go, pass and repass at all times and for all purposes to and from the dominant tenement. The right may be exercised with or without vehicles.
2. The easement area is evidently intended to provide a means of access to Cut Hill Road. In that regard, I note that the photographic evidence showing the topography towards the northern end of the plaintiff's land suggests that the property does not have frontage access to Cut Hill Road (see Exhibit A at pages 37 and 51-3). The relatively large size and rural nature of the tenements and the 8.609m width of the right of carriageway suggests that the easement was intended to facilitate access to and from the dominant tenement using vehicles of various types, including large vehicles and items of machinery. There is certainly nothing in the language of the easement which limits the nature of the vehicles permitted to make use of it (see Panfili v Lawless [2010] NSWSC 79 at [43]-[44] per White J as his Honour then was).
3. It seems that at the time the easement was created in November 2000 there was a house and garage located on the land, not far from the boundary between the land and the easement area. The 48.645m length of that boundary seems excessive compared with what might be required for access to and from only the house and garage, but in any case the easement is not in terms so limited; it confers rights to go to and from the dominant tenement described as a whole.
4. That of course includes the large area located generally to the south-west of the house that extends to the Nepean River. The photographic evidence indicates that the land where the house and nearby water tank are located is somewhat higher than the land to the south-west (see the photographs in Exhibit A at pages 29, 34, 36, 79, 80, 82, 85 and 126). The land appears to slope down from there in the general direction of the area to the south-west. A barn has been constructed in that area but, as I have said, it is not clear whether the barn had been constructed, in whole or in part, at the time the easement was created.
5. This is a case where the length of the easement contiguous with the dominant tenement is greater than necessary for a single point of access. Accordingly, the principles discussed by Brereton J in Trewin v Felton (supra) are apposite. In my view, there is nothing in the terms of the easement, considered in the light of the physical characteristics of the land at the time the easement was created, that would suggest a departure is warranted from the prima facie position described by Brereton J for such cases, namely, that the servient owner is entitled to fence the right of way but not so as to interfere with the reasonable user of the right of way through gates at such points as meet the dominant owner's reasonable requirements. That is to say, the servient owner is entitled to fence provided sufficient points of access through gates are allowed to permit reasonable user of the right of way (see Trewin v Felton (supra) at [19] and [36]). In these circumstances, the central question may be posed as whether the fencing and associated works undertaken by the defendants from about October 2019 interfered with the plaintiff's reasonable user of the easement by denying sufficient points of access through gates.
6. I have concluded, having considered the totality of the evidence, that the defendants' works do interfere with the plaintiff's reasonable user of the right of way by denying sufficient points of access through gates. In my opinion, the interference arises in two respects. These are: 1. the denial of a point of access at the southern end of the easement, to facilitate vehicular access to and from the area to the south-west of the house; and 2. the denial of a point of access (or points of access) opposite the roller door entrances to the large shed, to facilitate vehicular access to and from the large shed.
7. As to (1), I consider that the absence of a gate or gates at that point impedes or restricts the ability of the dominant owner to move large vehicles between the easement area and the area to the south-west of the house. It may be possible to bring large vehicles from that area across the somewhat elevated grassy area in front of the house, to a point where they can be driven out through the gap in the fence, and for such vehicles to be returned to that area using the same route. However, the evidence given by the plaintiff about the apprehended difficulties involved in attempting to drive the bus along that route, which I accept as plausible, suggests that it may at least be difficult for large and heavy vehicles to take that course, particularly in damp conditions. I think that following that route in front of the house would in any event be less convenient, and generally less desirable, than being able to turn into the easement at its southern end. The southern end of the easement is, at various times, shown in the photographs in Exhibit A at pages 38, 58 and 127. It seems to me that moving large and heavy vehicles such as trucks (or a bus) or large items of machinery between the easement area and the area to the south-west of the house (which area now includes the barn) is a reasonable user of the right of carriageway. The preclusion of a point of access at the southern end of the easement is in my opinion a real substantial interference with the plaintiff's enjoyment of the right of carriageway. That is so even if the use of the right of carriageway in that fashion might be infrequent compared to its use involving the gap in the fence.
8. As to (2), I consider that the absence of a gate or gates directly opposite the roller door entrances to the large shed in some circumstances impedes or restricts the ability of the dominant owner to move large vehicles between the easement area and the large shed. The plaintiff accepted that, apart from the bus, he was able to turn his smaller vehicles into the large shed. That is, he accepted that those smaller vehicles could be driven between the large shed and the easement area using the 7.4m gap in the fence. I accept, based on that evidence and the photographic evidence concerning that area (including at Exhibit A pages 26, 27, 36 and 52), that it would at least be difficult and inconvenient to manoeuvre a rigid vehicle of a length about that of the bus (approximately 11m) between the large shed and the easement area using the gap in the fence. I note that the plaintiff gave evidence that he has plans to put his bus into the large shed whilst he carries out works to convert the bus into a part motorhome part conveyance for his hot rods. The moving of large vehicles of that size between the easement area and the large shed seems to me to be a reasonable user of the right of carriageway. The existing fence renders such movement more difficult and substantially less convenient than it would be if such vehicles could be moved in a straight line. Again, the preclusion of a point or points of access directly opposite the roller doors amounts in my view to a real substantial interference with the plaintiff's enjoyment of the right of way, even if the use of such access points might be infrequent compared to use of the right of carriageway involving the gap in the fence.
9. I appreciate that the construction of the fence commenced before the construction of the large shed. However, the first defendant was aware at the time the fence was constructed that the plaintiff proposed to build the large shed. The first defendant knew of, and unsuccessfully objected to, the plaintiff's development application in that regard. Even if the fence erected in front of the large shed did not amount to a substantial inference with the easement initially, I think that it became one once the large shed was built. From that time, the plaintiff was in my view entitled to have a point or points of access directly opposite the roller doors (see Trewin v Felton (supra) at [34]-[36]). Despite that, the defendants have thereafter maintained that they are entitled to keep the fence directly in front of the roller doors to the large shed without gates that would allow access at those points.
10. In summary, the defendants are entitled to fence their property along the boundary in the easement area, but not so as to deny points of access at the southern end of the easement and opposite the roller doors to the large shed. Had the defendants installed functioning gates and traversable gateways at those points, there would have been no actionable nuisance by obstructing the plaintiff's enjoyment of the easement. There would have been sufficient points of access. However, the placing of fencing across those points, and the planting of small shrubs or trees there, amounts to a real substantial interference with the enjoyment of the easement so as to constitute an actionable nuisance.
11. In my view, it is appropriate to grant injunctive relief against the defendants in order to remedy the continuation of that interference. It was not suggested that damages (which are not claimed by the plaintiff) would be an adequate remedy.
12. The injunctive relief claimed by the plaintiff (erroneously claimed pursuant to s 88H of the Act, which is concerned with covenants), exceeds that which would be required to remedy the interference. The order sought is for the removal of the existing fence, landscaping and drainage works to the extent that they "encroach on the right of carriageway", and remediation of the land to the condition it was in prior to the installation of the fence, landscaping and drainage works. It would not in my view be appropriate to require the defendants to remove the entirety of the fence or the associated works. The defendants should be required to do no more than take steps to ensure that points of access are created at the southern end of the easement and opposite the roller doors to the large shed.
13. That could be done by modifying the existing fence to either leave those points open or have gates installed at those points. The shrubs or trees that have been planted in those locations would also need to be removed.
14. The defendants submitted that the evidence did not justify some form of relief less extensive than the removal of the entire fence. It was suggested, for example, that there was no basis to conclude that a larger gap in the fence be provided. I agree that no order of that nature would be justified, but I think there is an adequate evidentiary basis to frame injunctive relief around the concepts of creating additional points of access at the locations I have described. As far as the widths of those access points are concerned, the access point at the southern end of the easement should be no less than 5m in width, and the access points opposite the roller doors should be no less than the width of the corresponding roller door to the large shed. The 5m figure is based upon the evidence that the plaintiff's bus is 2.5m wide and that some additional width should be available so that vehicles of that magnitude can be comfortably driven to and from the easement through the available space.
15. My conclusion that the existing fence amounts to a real substantial interference with the plaintiff's enjoyment of the easement means that I do not accept that the modification of the easement proposed by the defendants will not substantially injure the persons entitled to the easement within the meaning of s 89(1)(c) of the Act. That was the only basis upon which the modification was sought. The proposed modification would expressly permit the existing fence with a gap of only about 7.4m in width. It follows from the conclusions I have reached that such a fence causes the plaintiff an injury that is real and has present substance (see Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764 at [48]-[49]). The Cross-Summons will be dismissed.
16. Ultimately, it will be up to the defendants to decide whether to maintain gates at the additional access points, or leave those points open. Despite the ill will that exists between the parties, it would be desirable if there was dialogue between them, facilitated by their legal advisors, aimed at achieving agreement as to what modifications to the existing fence should be made. In order to provide an adequate opportunity for that to occur, I will direct that the parties confer and within 21 days submit to my Associate either an agreed form of orders or, failing agreement, preferred forms of orders to give effect to these reasons. There seems to be no reason why costs should not follow the event.

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: 17 November 2021