Durian (Holdings) Pty Limited v Cavacourt Pty Limited

Durian (Holdings) Pty Limited v Cavacourt Pty Limited - [2000] NSWCA 28 - NSWCA 1999 case summary — Zoe

[17]

6 This carefully qualified language makes the obvious point that the power is not available for the purpose of expropriating private rights for profit. The converse is equally true. It is no defence to a claim otherwise falling within the four corners of the section for the defendant to show that its ability to defend the statutory claim might be a possible source of money coming from a dominant tenant anxious to develop its own property. The section confers a power to abrogate existing rights (cf Australian Securities and Investments Commission v D B Management Pty Ltd [2000] HCA 7 at [44]. 7 In my view Young J should have been satisfied from the primary facts that the appellant had made out its case. 8 When the easement was created in 1964, and for many years prior to that, the easement was represented by a road known as Canal Banks Road or Crown Road. The expressed and only purpose of the easement was to provide reasonable access to and from Ricketty Street. The easement has not been used for this or any other purpose for practically 30 years. This is a simple fact of history, which is both proved and made explicable by the fact that access between the servient and dominant tenants has been blocked by fencing since at least 1981. Furthermore, the way that the surface of the boundary of the dominant tenement has been raised since at least 1981 has made vehicular access impossible. The site of the easement has been used exclusively by the servient tenant as a carpark since 1981. There is no suggestion of usage or need for usage of the easement by pedestrians. 9 The object of the easement was to ensure vehicular access from an otherwise land-locked site onto Ricketty Street. Such egress is no longer used, no longer necessary (in view of alternative access via Gardeners Road) and no longer permissible in view of enforceable planning restrictions which reflect the long-term attitudes of the police and road traffic authorities. The development consent currently held by the respondent contemplates a development that makes the easement unnecessary and irrelevant. The details are set out in the judgment of Meagher JA. 10 The matters just summarised establish to my satisfaction that there have been the requisite changes and other circumstances which ought to deem the easement obsolete and which mean that its continued existence, unmodified, would impede the reasonable user of the servient tenement without securing practical benefit to the dominant tenant. 11 Young J did not think that the easement ought to be deemed obsolete because "the object of access is still capable of performance and is of value [as] shown by the fact that the [respondent] thought that such access was a selling point when it acquired the land and the value it has for more flexible use of the land". This subjective consideration attributed to the respondent does not, in my respectful view, provide a basis for rejecting the case otherwise established. The easement is no longer capable of useful fulfilment in any practical sense other than as a mere bargaining tool in the hand of the dominant tenant (cf par 6 above). 12 The learned judge also addressed the alternative submission that the continued use of the easement unreasonably impeded the use of the appellant's land without securing practical benefit to the respondent. He referred to the fact that the servient tenement had been used exclusively by the appellant as a parking lot since 1981. And he acknowledged that the continued existence of the easement would impede the appellant in the use of its land as approved by Botany Council in 1988. In reliance upon that approval, the appellant carried out certain works, such as constructing dwarf retaining walls, carpark kerbing and landscaping. Despite these findings, this alternative submission was rejected by Young J because he held that it was difficult to see on the evidence how it could be suggested that the right of way did not secure practical benefits to the respondent as the owner of the dominant tenement. The ability to utilise additional access space through the servient tenement was held to be self evidently a "practical benefit". His Honour cited the evidence of Mr Dobinson and Mr Rowlands. 13 Mr Dobinson is a transport consultant with engineering qualifications and experience in the Department of Main Roads. He expressed the opinion that the use of the easement clearly provides substantial benefits to the respondent's land. He gave several examples of these benefits, each of which assume that it is permissible for vehicles to use the easement as a means of access into Ricketty Street. Mr Rowlands is a valuer. He expressed the opinion that the availability of the right of way provides increased flexibility to any developer of the dominant tenement and that access directly onto Ricketty Street is a factor which contributes significantly to the value of the site. In my view, this evidence carries very little weight. Each expert drew conclusions which are quite obvious if one treats the easement as a given, as a right capable of present enjoyment, according to its terms. However, this is the very matter in issue. The evidence shows that the easement has not been used, cannot be presently used and is not proposed to be used for its expressed purpose. If the proper application of the section to the proven facts means that the easement ought to be extinguished then the entire basis upon which the experts proceeded is destroyed. For reasons already given, that is the situation as I see it. 14 I agree with the orders proposed by Meagher JA.

[18]

15 MEAGHER JA: This is an appeal by the owner of a servient tenement, Durian (Holdings) Pty Limited (Durian), over certain land at Mascot, which is a suburb of Sydney. It had sought extinguishment of the easement. Young J declined to make such an order. Moreover, the owner of the dominant tenement, Cavacourt Pty Limited (Cavacourt), successfully sought declaration as to the validity of the easement and an injunction restraining Durian from trespassing on the easement. Durian appeals. 16 Durian's land is now known as 1-3 Ricketty Street. It is part of land obtained from the Minister of Public Works, who originally used the land for flood prevention works, (Cavacourt's land, 5-9 Ricketty Street, was also once vested in the Minister, and for the same reason). 17 The fee simple in the servient tenement remained vested in the Minister until 1972, when it was transferred by him to a company called Whittle, which transferred it to Durian Pty Limited in 1981. 18 The fee simple in the dominant tenement was at some stage conveyed by the Minister to Ansett Transport Pty Limited, which ceased using the premises at all and in March 1981 when it leased it to a company called TNT Seafast Pty Limited. In 1988 Cavacourt Pty Limited became registered proprietor of the land. 19 The easement was granted by the Minister to Ansett Transport Limited by deed of 25 September 1964. Its operative words are: "the Grantor DOTH HEREBY GRANT AND CONVEY unto the Company as appurtenant to the land described in the Second Schedule hereto (hereinafter called "the dominant tenement") full and free right and liberty (but subject to the limitations and provisions hereinafter contained) for the Company and all persons authorised by the Company in common nevertheless with the Grantor his successors and Assigns and all persons bodies or corporations who heretofore have been or hereafter may be authorised by the Grantor his successors or assigns or who have or shall hereafter have a like right whether by grant or licence heretofore or hereafter and by whomsoever made at all times after the said Grant by the Grantor to the Company of these rights by day or by night with or without horses carts carriages motors and other vehicles of any description to enter upon go return paesand repass along over and upon the servient tenement for the purposes of gaining or having reasonable access to and from the dominant tenement from and to the public highways adjoining the servient tenement." 20 It should be noted that, unlike most easements, the right of ingress and egress is limited to obtaining "reasonable access to the public highways adjoining the servient tenement". I respectfully accept the submission of Mr Campbell QC, learned Senior Counsel for Durian, that "the public highways" must mean Ricketty Street and whatever other public roads are connected with Ricketty Street 21 Section 89 of the Conveyancing Act 1919 (as amended), insofar as it is relevant to this case, says: "(1) Where land is subject to an easement…, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement,… upon being satisfied:

[20]

22 In my view the appeal should be allowed and the easement wholly extinguished. I have come to this conclusion with great hesitation, particularly as the trial judge has great experience in, and knowledge of, this branch of the law. 23 The reasons which have led me to this conclusion are as follows: 1. The easement has not been used for the purpose for which it was created since at least November 1971, and was substantially unused even in 1964. 2. At the time the easement was granted, the dominant tenement was virtually landlocked. In particular, it had no access to Gardener's Road. Nowdays it has access to Gardeners Road, and has had it for some time. All traffic entering and leaving the dominant tenement does so from and to Gardener's Road. 3. The consolidation of the multiple blocks of land now forming Cavacourt's land have made it impossible to use only the land comprising the dominant tenement for the intended purpose of the easement, the present configuration of buildings on the land being entirely different from that which existed at the date of the creation of the easement. 4. Since at least 1981, there have been significant physical obstructions to the use of the easement by the owner of the dominant tenement. Along the boundary between the dominant tenement and the site of the easement there has been constructed (and maintained at least since 1981) either a brick wall half a metre high or a wire fence, in neither of which there is a gate. Moreover, the elevation of the dominant tenement has been, since at least 1981, about 70cm higher than the servient tenement, a drop which makes the use of ordinary vehicles impossible. Further, the site of the easement has for long been used by the owner of the servient tenement as a carpark. 5. What is perhaps the greatest factor tending towards obsolescence is the growth of town planning restrictions which make the original use of the tenement impossible, and now even illegal. His Honour referred, quite correctly, to "the traffic authorities' restrictions on access to Ricketty Street". The traffic authorities did refuse any application by Cavacourt to exit from the dominant tenement onto Ricketty Street. But the restrictions were more onerous than that. The use by the owner of the dominant tenement of the easement by vehicular traffic were restricted by the development consent relating to the dominant tenement by Botany Council dated 14 December 1973. Clauses 20, 21 and 22 of that consent were as follows: " 20. The observance of the requirements of the State Planning Authority of New South Wales, viz:- (i)All vehicular access to and from the site being confined to Gardeners Road; and (ii)the car wash operation being ancillary to existing use.

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