Eddy Gross v Graham Leslie Greer & Anor

Supreme Court of NSW|2018-10-03|Before: Rein J, Mr P, The DP

Background

These proceedings concern adjoining properties in Coffs Harbour - one known as Lot 21 (also known as 266 Shepherd's Lane) and the other known as Lot 63 (also known as 266A Shepherd's Lane). The Plaintiff, Mr Eddy Gross, owns Lot 21 and Mr and Mrs Greer, the Defendants, own Lot 63. The Plaintiff purchased Lot 21 in 2002 and the Defendants purchased Lot 63 in 2006.
The Plaintiff (for whom Mr P. O'Loughlin of Counsel appears) claims that Lot 63 is burdened, and Lot 21 benefited, by an easement approximately 20 metres wide being a right of carriageway ("ROC"). He contends that, without the easement, he is not able to access Lot 21 other than by dint of favours granted to him by the owners of Lot 20, which adjoins his property to the east. The Defendants (for whom Mr C. Cassimatis of Counsel appears) resist the Plaintiff's claim. I shall detail the issues for determination in more detail below, but first I will set out the history of the two lots.
Originally, the subdivision consisted of six Lots - Lots 1, 2, 3, 4, 5 and 6. The Lots are so described in DP239525. That deposited plan ("DP") shows a ROC bordering Lots 1, 6, 2, 3, 4 and 5 and passing through Lot 2. The DP lodged in 1971 bears the following notation: "Pursuant to Sec 88B of the Conveyancing Act 1919-64, it is intended to create a Right of Carriageway 1 chain wide and a Right of Carriageway 50 wide and a Right of Carriageway 20 wide. Instrument filed as M243988"
Instrument M243988 sets out a table of which Lots are burdened and benefited: 1. Identity of easement or restriction firstly referred to in the abovementioned plan Right of carriageway 100 links wide. SCHEDULE OF LOTS, ETC. AFFECTED Lots burdened Lots, name of roads, or Authority benefited 1 2, 3, 4, 5 & 6. 2 3, 4, & 5. 4 3 & 5. 6 2, 3, 4, & 5.

In 1979 a new DP was lodged, DP605703. It subdivided Lot 6 into Lots 61 and 62. It contained no details in the right-hand panel beneath the words, 'Panel for use only for statements of intention to dedicate public roads or to create public reserves, easements or restrictions as to under.' DP605703 did, however, contain a clearly marked ROC in the same form as the previous DP (DP239525).
In 1983 a new DP was lodged, DP628407. It showed that Lot 62 had become Lots 63 and 64. It also showed the ROC.
In 1991 a new DP was lodged, DP811472. It showed that Lot 61 was subdivided into Lots 21 and 20. It is described by the parties to be a 'Boundary Adjustment', and it showed the ROC in the same form as previously.
The 'Boundary Adjustment' relates to a very small triangle of land at the north-western corner of Lot 20, which was transferred to Lot 21 ("the Triangle Transfer"). The Triangle Transfer has some significance to a secondary argument of the Plaintiff, which I will elucidate later.
It will be seen from the above history that: 1. Lot 21 (the Plaintiff's Lot) was formerly part of Lot 61, which was formerly part of Lot 6; and 2. Lot 63 (the Defendants' lot) was part of Lot 62, which was previously part of Lot 6.
Exhibit E is a bundle consisting of copies of Certificates of Title. I set out the relevant contents of the Second Schedule in the Certificate of Title ("CT") for each Lot: 1. Lot 6 in DP239525 (Vol. 11584 Fol. 246) SECOND SCHEDULE 3. Right of Carriageway affecting the part of the land above described 100 links wide shown in the plan hereon created by the registration of the Deposited Plan 239525. See M243988. 4. Right of Carriageway appurtenant to the land above described created by the registration of Deposited Plan 239525. See M243988. 1. Lot 62 in DP605703 (Vol. 14060 Fol. 24) SECOND SCHEDULE 3. DP239525 Rights of Carriageway appurtenant to the land above described. See M243988. 4. DP239525 Right of Carriageway affecting the part of the land above described shown so burdened in Deposited Plan 605703. See M243988. 1. Lot 61 in DP605703 (Vol. 14060 Fol. 23) SECOND SCHEDULE 3. DP239525 Right of Carriageway appurtenant to the land above described. See M243988. 1. Lot 63 in DP628407 (Vol. 14982 Fol. 182) SECOND SCHEDULE 3. DP239525 Right of Carriageway appurtenant to the land above described. 4. DP239525 Right of Carriageway affecting the part(s) of the land above described shown so burdened in Deposited Plan 628407. 1. Lot 21 in DP811472 (Vol. 811472 Fol.21) SECOND SCHEDULE 2. EASEMENT(S) APPURTENANT TO THE LAND ABOVE DESCRIBED CREATED BY: DP239525 - RIGHT OF CARRIAGEWAY
The Defendants accept that, as at 1977, Lot 1 was burdened by the ROC in favour of Lot 6 and that Lot 6 was burdened by the ROC in favour of Lots 2, 3, 4 and 5. What they assert, however, is that Lot 62 was never burdened by the ROC in favour of Lot 61 and that Lot 63 (created from Lot 62) was never burdened by the ROC in favour of Lot 21 (created from Lot 61). No ROC, it was asserted, was ever created to benefit Lot 61 or Lot 21.
The CT for Lot 21, contained in the Court Book ("CB") at p 41, states that there is an easement in favour of Lot 21, namely the easement described in DP239525.

Legislative Provisions

I set out the presently relevant terms of ss 3, 42 and 51 of the Real Property Act 1900 (NSW) ("Real Property Act") and ss 88, 88B, 89, 181A of the Conveyancing Act 1919 (NSW) ("Conveyancing Act"), which bear upon the questions now before this Court: Real Property Act 3 Definitions (1) In the construction and for the purposes of this Act, and in all instruments purporting to be made or executed thereunder (if not inconsistent with the context and subject matter): (a) the following terms shall bear the respective meanings set against them: … Dealing - Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument: (a) that is registrable or capable of being made registrable under the provisions of this Act, or (b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made. Instrument - Any grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land. Land - Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted Proprietor - Any person seised or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy. Transfer - The passing of any estate or interest in land under this Act whether for valuable consideration or otherwise. 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: [There follow a number of exceptions, none of which are relevant to the present dispute] (2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio. (3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section. 51 Interest and rights of transferor pass to transferee Upon the registration of any transfer, the estate or interest of the transferor as set forth in such instrument, with all rights, powers and privileges thereto belonging or appertaining, shall pass to the transferee, and such transferee shall thereupon become subject to and liable for all and every the same requirements and liabilities to which the transferee would have been subject and liable if named in such instrument originally as mortgagee, chargee or lessee of such land, estate, or interest. Conveyancing Act 88 Requirements for easements and restrictions on use of land (1) Except to the extent that this Division otherwise provides, an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930, and a restriction arising under covenant or otherwise as to the user of any land the benefit of which is intended to be annexed to other land, contained in an instrument coming into operation after such commencement, shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates: (a) the land to which the benefit of the easement or restriction is appurtenant, (b) the land which is subject to the burden of the easement or restriction: Provided that it shall not be necessary to indicate the sites of easements intended to be created in respect of existing tunnels, pipes, conduits, wires, or other similar objects which are underground or which are within or beneath an existing building otherwise than by indicating on a plan of the land traversed by the easement the approximate position of such easement, (c) the persons (if any) having the right to release, vary, or modify the restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary, or modify the restriction, and (d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for. (1A) Land (including the site of an easement) is clearly indicated for the purposes of this section if it is shown: (a) in the manner prescribed by regulations made under this Act or the Real Property Act 1900, or (a1) in the manner required by the lodgment rules under the Real Property Act 1900, or (b) in any other manner satisfactory to the Registrar-General in the particular case or class of cases concerned. This subsection does not limit other ways in which land may be clearly indicated. 88B Creation and release of easements, profits à prendre and restrictions on use of land by plans (2) A plan shall not be lodged with the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900 or in the manner required by the lodgment rules under the Real Property Act 1900: (a) what easements, if any, are intended to be created: (i) burdening land comprised in the plan and appurtenant to any existing roads shown on the plan, and (ii) appurtenant to any roads to be vested upon registration of the plan, (b) what easements, if any, referred to in section 88A are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created, (c) what other easements or profits à prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan, and (c1) what easements or profits à prendre, if any, appurtenant to or burdening land comprised in the plan are intended to be released or partially released, and (d) what restrictions on the use of land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan. … (4) Any restriction on the use of land or positive covenant created by this section shall for the purposes of this Act and the Real Property Act 1900, have effect as if it was contained in a deed. 89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants (1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied: (a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or … 181A Construction of expressions used to create easements (1) In an instrument executed or made after 1 January 1931 (the commencement of the Conveyancing (Amendment) Act 1930) and purporting to create a right-of-way the expressions right of carriage way and right of footway have the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 1 or Part 2 of Schedule 8. …

Easement pursuant to s 88(1) of the Conveyancing Act

Mr O'Loughlin pointed to the fact that the ROC referred to in DP239525 and M243988 has never been released, varied or modified by any subsequent DP or memorandum. He also pointed out that if an easement is registered on the servient title, it is indefeasible: see Chiu v Healey (2003) 11 BPR 21,241 at [24] per Young J (as his Honour then was); see also Parramore v Duggan (1995) 183 CLR 633 at 636 per Brennan J (as his Honour then was).
Reference was made in submissions to two High Court easement cases, Gallagher v Rainbow & Ors (1994) 179 CLR 624 ("Gallagher") and Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 ("Westfield").
In Gallagher, the Appellant was the owner of a lot in a subdivision (Lot 14) which had the benefit of an easement from her property to a public road. The other lots, Lots 15, 16 and 17, had the same benefit and this was achieved by each lot owner owning one quarter of the private road and granting an easement to each of the other owners over that one quarter. The owners of Lots 16 and 17 decided to subdivide their land into three lots, with the intention of the newly created lots using the easement. Ms Gallagher contended that the owners of the newly created lots could not use the easement previously created. The trial judge relevantly held that the respondents were entitled to use the right of way only for the undivided properties comprising of Lots 16 and 17. The Queensland Court of Appeal held that the benefit of the easement would attach to the dominant tenements in their subdivided form. That is, the newly created lots, which were created as a result of the subdivision of Lots 16 and 17, could benefit from the easement. The majority, Brennan, Dawson and Toohey JJ, held that the Court of Appeal was correct. Gaudron and McHugh JJ dissented.
In Gallagher, the form of the easement described the right of way as being "for all purposes ordinarily incidental to or connected with domestic use and enjoyment of the dominant tenement or any part thereof" (emphasis added). The word 'grantee' used in the instrument creating the easement was defined to include "the transferees and assigns and as well as the occupier or occupiers for the time being of the dominant tenement."
The majority in the High Court agreed with the view taken by the Queensland Court of Appeal (per Thomas J, with whom Pincus JA and McPherson J agreed) and noted that the terms of the easement were consistent with the prospect of subdivision. They also noted that the easement contained no prohibition against transfer of a subdivided lot and said (at 632-633): "… Whether the owners of subdivided lots of a dominant tenement are entitled to the benefit of an easement is a question of construction of the grant. Subject to a qualification relating to excessive use, the general principle is that… [there is] a presumption that an easement is appurtenant to the dominant tenement and to each part of it… To the extent that any part of the dominant land may benefit from the easement, the easement will be enforceable for the benefit of that part unless the easement, on its proper construction, benefits the dominant land only in its original form."
The present case is quite different to Gallagher. Here, the easement crossed through the undivided lot (i.e. Lot 6). When Lot 6 was divided into Lots 61 and 62, Lot 6 would, on the authority of Gallagher, still have the benefit of the ROC vis-a-vis Lot 1, and Lot 61 would continue to have the burden of the ROC vis-a-vis Lots 2, 3, 4, and 5. Gallagher is not a case where a new lot was created, which new lot required an easement over another new lot to reach a road or an existing easement. Here, the question is whether Lot 63 will have the burden vis-à-vis Lot 21 and whether Lot 21 will have the benefit vis-à-vis Lot 63 (these being the relevant Lots following subdivision, firstly of Lot 6 and then subsequently of Lots 61 and 62).
In Westfield, Westfield owned a commercial multi-storey property known as 'Skygarden' and Perpetual Trustee owned a similar property known as 'Glasshouse'. Glasshouse fronted King Street and a pedestrian mall in the heart of the Sydney CBD. Skygarden abutted the mall but did not have vehicle access. Skygarden had the benefit of an easement in the form of a vehicular ramp across and beneath Glasshouse to the boundary of the Skygarden land. Westfield purchased two properties next to Skygarden known as 'Centrepoint' and 'Imperial Arcade', and it wanted to be able to use the easement for vehicular access to a new shopping centre to be created using Centrepoint and Imperial Arcade.
The High Court in Westfield (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) held that the easement, properly construed, did not permit Westfield to go beneath Glasshouse and beyond Skygarden in order to reach Centrepoint and Imperial Arcade. This was on the basis that the terms of the instrument did not provide for travel across the dominant tenement to land owned by Westfield beyond Skygarden. That, it was held, would impose a burden greater than that which the servient tenement owner had agreed to accept. The High Court also indicated that recourse to extrinsic material to establish the intention or contemplation of the parties to the instrument creating the easement was not admissible and contrary to the principles of the Torrens System, relevantly stating (at [5], p 531): "Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question." and (at [39], p 539): "…The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee" (footnotes omitted).
It follows from Westfield that what was said by the Coffs Harbour Shire Council ("the Council") (see CB, p 322) and what was within the mind of the surveyor or Mr Lockett, who prepared the DP, are not relevant in determining whether or not an easement burdening Lot 63 was created in favour of Lot 21.
Section 181A of the Conveyancing Act provides for the use of what Butt's Land Law (B. Edgeworth, Thomson Reuters, 7th ed, 2017) at [9.260] refers to as 'short form easements', whereby standard terms of an easement are incorporated by virtue of Schedule 8 of the Conveyancing Act. The imported words for a ROC are: "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof."
Section 88(1) of the Conveyancing Act requires that the instrument creating the easement must clearly indicate: 1. the land benefited; 2. the land burdened; and 3. the persons whose consent is required to release, vary, or modify the easement.
In Papadopoulos v Goodwin [1982] 1 NSWLR 413 ("Papadopoulos") at 416-418, it was held that there would be sufficient indication of these matters if the instrument creating the easement referred to another document containing that information. Wootten J explained that the purpose of the requirements in s 88(1) of the Conveyancing Act was to protect purchasers from notice of easements unless certain conditions were complied with. These conditions were designed to require a clear statement as to where the various rights and obligations arising out of the easement lay so as not to include matters that do not clearly appear from the instrument itself (or some other document by express reference). The Court of Appeal in Goodwin v Papadolpulos (1985) NSW ConvR 55-256 ("Goodwin") reversed the decision at first instance and took the view that the transfer did not satisfy the requirements of s 88(1) (per Samuels JA, Mahoney JA and Priestley JA). Mahoney JA, at 56,417, said he agreed with Wootten J's construction of the meaning of 'clearly', which was put by Wootten J in the following terms (Papadopoulos at 417 para [B]-[C]): "In enacting this section the legislature has imposed a strict standard on draftsmen. The words "clearly indicate" suggest an intention to impose a higher standard than that the dominant tenement is capable of being ascertained by ordinary processes of construction, which processes include the use of extrinsic evidence to identify the dominant tenement when its identity does not clearly appear from the instrument" (footnote omitted). The approach taken to s 88(1) in Papadopoulos is reflected in the approach of the High Court in Westfield.
The Court of Appeal in Goodwin expressly left open the question of whether reference in an instrument to another document which did comply with s 88(1) was sufficient (per Priestley JA at 56,418-56,419, with whom Samuels JA concurred). I shall proceed on the basis that reference to another identified DP or memorandum of dealing which clearly indicates the land benefited and land burdened, in accordance with s 88(1) of the Conveyancing Act, is sufficient.
A third party looking at DP239525, which created the easement, when read with M243988, to which DP239525 refers, would be in no doubt as to which lots referred to therein were benefited and burdened. The problem is that Lots 21 and 63 are not mentioned in either the DP or the memorandum of dealing creating the ROC because, at the time of the lodgement, those Lots had not been created. Neither DP239525 nor any of the other DPs provide that Lot 62 (or Lot 63) is burdened with an easement in favour of Lot 61 (or Lot 21).
The CT for Lot 21, when read with DP239525, to which it refers, makes it clear that Lot 21 has the benefit of an ROC because the Second Schedule refers to an easement appurtenant to Lot 21 and to DP239525 and it is clear that the ROC must be the ROC shown on the DP next to the southern boundary of Lot 21. I think it is clear that Lot 63 is burdened by an ROC and examination of DP239525 will reveal that Lots 2, 3, 4 and 5 benefit from that ROC, but what is not at all clear is that Lot 21 (or previously Lot 62) is to benefit from the ROC. As Gale on Easements (Sweet & Maxwell, 20th ed, 2017) points out at [1-10]: "The dominant tenement must exist and must be identified before there can be a grant, or a contract for the grant, of an easement sufficient to create an interest in land binding successors in title to the servient land." Neither Lot 63 nor Lot 21 had been created at the time of DP239525, and the rights given to their predecessors in title relate to other lots, not their rights and obligations inter se. The fact that the ROC abuts the southern portion of Lot 21 as shown in DP628407 and DP811472 (see Exhibit D) does not, of itself, lead to the conclusion that the ROC benefits Lot 21.
I do not think it would be clear to a third party examining the CT for Lot 63 (even having regard to DP239525 and M243988) that Lot 21 is to benefit from the ROC depicted in DP239525. Therefore, DP239525 does not meet the criteria for validity imposed by s 88(1) of the Conveyancing Act in so far as Lot 63 is concerned. None of the other DPs change that position because they do not by their terms seek to create an easement expressly or by reference to another document. I accept Mr Cassimatis' submission that, in order for that new benefit and burden to be granted and imposed, a new instrument creating an easement between the two new lots was required.

The Triangle Transfer

Essentially, the Plaintiff contends that because Mr Borsato, the owner of Lot 20, in 1991 effected the Triangle Transfer to Mr Ferguson, the predecessor in title to the Plaintiff, this gave to the Plaintiff the right to use the ROC and to do so from any point of his property.
The Plaintiff relies on Gallagher for the principle that the ROC was for the benefit of all points of Lot 20, and when the triangle was transferred to Mr Ferguson that gave the owner of Lot 21 the right to access the ROC.
The ROC, if it was transferred, was the right to pass along the ROC from a point on Lot 20, not from a point to the north of what was Lot 20. As Mr Cassimatis contended, there is a real question about whether the ROC could be viewed as continuing to benefit the transferred portion of Lot 21 (and see Re Maiorana and the Conveyancing Act [1970] 1 NSWR 627 at 634). However, I think the more direct answer to the Plaintiff's contention is that there is no instrument which records the benefiting of Lot 21 by the ROC or the burdening of Lot 63 as a consequence of the Triangle Transfer, with the consequence that the transfer (if it was an instrument creating an easement in favour of Lot 21) did not meet the requirements of s 88(1) of the Conveyancing Act.
Mr O'Loughlin contended that, if there was an easement benefiting the Plaintiff by virtue of the Triangle Transfer, the Court could, by virtue of s 89 of the Conveyancing Act, modify the easement to permit access from the southern boundary of Lot 21, rather than its north-eastern boundary. Given my conclusion that no easement in favour of Lot 21 was granted burdening Lot 63, s 89 cannot assist the Plaintiff.

Section 51 of the Real Property Act

Section 51 of the Real Property Act has the effect that when the previous owner sold Lot 21 to the Plaintiff all of that owner's rights were assigned to the Plaintiff. However, given that the previous owner of Lot 21 did not have the benefit of an easement, the assignment did not create such an interest in the Plaintiff or pass with the land.

Estoppel

The Plaintiff contended that if he did not have the benefit of the ROC by reason of the Register, the Court should find that the Defendants were estopped from asserting that the Plaintiff could not use the ROC because he had been doing so since 2006. In making this submission, the Plaintiff conceded that any such right did not travel with the land but had become a right inter partes: see T35.50-36.04. The estoppel claim was based on the following elements: 1. The Defendants purchased Lot 62 in 2006, and from 2006 until 2017 the Plaintiff continued to use the ROC. 2. In 2017, Mr Greer, angered by a complaint made to the Council by the Plaintiff, sought to prevent the Plaintiff's use of the ROC. 3. The Defendants knew that the Plaintiff was using the ROC between 2006 and 2008 and made no objection to that use in that period, and made no attempt to preclude the Plaintiff from so doing. 4. The Defendants moved away from their property (renting it out) until 2014, when Mrs Greer moved back with Mr Greer resuming full-time occupation of the land in Lot 21 in 2017. 5. The reason for the Defendants' change of attitude towards the Plaintiff, in relation to the ROC, was that they regarded the Plaintiff's complaint against them to the Council as unjustified. 6. The Plaintiff asserts that it was unconscionable for the Defendants, on their return to their property, to assert in October 2017 that the Plaintiff could not use the ROC.
In relation to [35(5)], I should note that even in 2008 there had been unpleasant confrontation between the parties over clearing and earthworks on the ROC, which was said to impact on the Plaintiff's land. A mediation subsequently took place, the rather inconclusive result of which is found at CB, p 61. In 2017, confrontation resumed with the Defendants seeking to prevent the Plaintiff from using the ROC. The Plaintiff gave no evidence that the result of the mediation in 2008 led him to believe that he had the right to use the ROC and the agreement recorded at CB p 61 does not refer to the use (past, present or future) of the ROC by the Plaintiff.
Mr O'Loughlin relies on the enunciation of the elements required for equitable proprietary estoppel in Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 at [57]-[59] per Brereton J (as his Honour then was) (see also Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 423, 428-429 per Brennan J): "First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant or that the plaintiff had or would acquire some interest in the defendant's property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment, and that the expectation could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy. Ordinarily the relevant conduct of the plaintiff (assumption or expectation) and that of the defendant (encouragement or acquiescence) will be factually interrelated and interwoven" (footnotes omitted).
The Defendants do not dispute, or at least do not seek to challenge [35(1)], [35(2)] and [35(4)]. In relation to [35(3)], Mr Greer's evidence was that he did not see the Plaintiff using the ROC - the ROC is not visible from the Defendants' home - but he did accept (contrary to his denial at T71.27-71.32) that he knew the Plaintiff was using the ROC in 2006-2008: see T73.41-74.01. In relation to [35(5)], it does appear that the Plaintiff's complaint to the Council was part of the reason for the Defendants' change of position. However, the Defendants also received legal advice informing them of their rights in relation to the ROC (see [39(3)] below).
The Plaintiff's estoppel claim must, in my view, fail for the following reasons: 1. The Plaintiff has given no evidence that it was the Defendants' representation or silence that led him to believe that he had a right to use the ROC. There is evidence that the Plaintiff's solicitor advised him that he was entitled to use the ROC (see CB, p 213). Thus, the Plaintiff has not established that the Defendants induced him to adopt the assumption or expectation that he did have a right to the ROC. As Austin J observed in Buchholz v Kempsey Shire Council [2005] NSWSC 235 at [31]: "…in cases of acquiescence, the plaintiff's equity does not arise purely by virtue of the acquiescence. It arises by virtue of some circumstances which have encouraged the plaintiff to engage in conduct or organise his or her affairs upon the basis that a certain state of affairs exists. Once that is shown, it is relevant to the plaintiff's equity to demonstrate that the defendant's acquiescence with knowledge of the plaintiff's conduct contributes to the establishment of the equity. As Priestley JA said the Austotel case at 610: "For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable."" and as the High Court observed in Sidhu v Van Dyke (2014) 251 CLR 505 at [58], 522 (per French CJ, Kiefel, Bell and Keane JJ): "In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact." 1. The Plaintiff gave no evidence of having purchased Lot 21 or having expended money on Lot 21 or the ROC because he was led to believe, or encouraged, by the Defendants that Lot 21 had the benefit of the ROC. Indeed, the Plaintiff purchased Lot 21 and commenced using the ROC four years before the Defendants purchased Lot 63. 2. The Plaintiff has failed to establish that, between 2006 and 2017, the Defendants knew that their own rights in relation to the ROC were inconsistent with the rights claimed by the Plaintiff: see Dewhirst v Edwards [1983] 1 NSWLR 34 at 49 per Powell J; Willmott v Barber (1880) 15 Ch D 96 at 105-106 per Fry J. In those circumstances, I do not think that it would be unconscionable for the Defendants, having been informed by their solicitor in 2017 that, in his opinion, the Plaintiff did not have the right to use the ROC (see CB, p 159), to accept that advice and from thereon insist that the Plaintiff not use the ROC.
Whilst it is possible that the conduct of the owner of a servient tenant might give rise to a proprietary estoppel precluding that owner from denying the existence of an easement burdening the servient tenement, cases of that kind involve circumstances of a very different character to those here: see Bradbrook & Neave's Easements and Restrictive Covenants (A. J Bradbrook & S. V MacCallum, LexisNexis Butterworths, 3rd ed, 2011) at [2.4]-[2.12]; Crabb v Arun District Council [1976] Ch 179 (sale of block of land on the express assurance that the remaining block would have access to the easement available to the first block); McDonald v Peddle (1923) 42 NZLR 987 ("Peddle"). In Peddle, the defendant, the owner of the servient tenement, raised no objection to the assignment to the plaintiff of rights in connection with an easement. The defendant was aware that the plaintiff intended to, and did, firstly, expend money on a new mill on his land and, secondly, lay down a tramway on his land that would connect to the tramway on the defendant's land over which his assignor had had an easement benefiting the assignor's land. The defendant was held estopped from asserting three years later that the assignment was not a good and valid transfer to the plaintiff. Indeed, Reed J held (at 1007-1008) that the assignment had created an "equitable interest" in the plaintiff's favour and that on the facts the defendant had acquiesced in the assignment.

Section 88K of the Conveyancing Act and Nuisance

The Plaintiff had originally sought to promote an alternative case for a statutory easement, pursuant to s 88K of the Conveyancing Act. However, Mr O'Loughlin expressly abandoned this claim when opening his case: see T1.49-2.04.
The Plaintiff had also pleaded a claim in nuisance, but this was not pressed at the hearing.

Conclusion

It follows from the above that the Plaintiff has failed to establish a right to use the ROC. There should be judgment for the Defendants and the Plaintiff should pay the Defendants' costs of the proceedings.

Amendments 26 October 2018 - [6] - Notation removed. [7] - The words "It described the subdivision as" amended to "It is described by the parties to be". [19] - Final sentence of paragraph revised. 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: 26 October 2018

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