Eucalypt Group P/L v Robin & Anor [2003] QSC 63

Judgment (162 paragraphs)

[1]

[1] AMBROSE J: The applicant for extinguishment of the respondents' easement is a real estate development company which purchased two residential allotments with frontages to the Esplanade at Palm Beach from another developer in about April 2001. The allotments with areas of 405 m2 and 412 m2 respectively at the time of purchase, had erected on them a building initially comprising five separate apartments. The previous developer however had converted this apartment building into two residential units each of which was occupied by persons associated with it. The titles to the two allotments have never been amalgamated. The photograph Fig. 6 in, and the covering sheet on Ex LJ2 to the affidavit of Mr Jackson filed 6 December 2002 show the nature of this building in front of a six or seven level apartment block to its rear. That photograph also shows the location of the commencement of the easement on the applicant's corner allotment of 405 m2 from 27th Avenue.

[2]

[2] The developer-vendor of the two allotments to the applicant, which although never amalgamated had erected on them the apartment building to which I have referred, had approached the respondents as owners of the adjoining 412 m2 allotment of residential land with a frontage to the Esplanade and sought to have extinguished the easement over those allotments giving access to their allotment of land from 27th Avenue. The respondents indicated that they were not interested in relinquishing their easement, for reasons to which I will later refer.

[3]

[3] When the applicant developer acquired from its predecessor in title the two improved allotments it did so with knowledge of the existence of the easement and the unwillingness of the respondents to relinquish it.

[4]

[4] Within a week of acquiring its two allotments for redevelopment the applicant sought to persuade the respondents to surrender their easement and in the course of negotiations offered to fund the extension of their house to within six metres of the front boundary of their allotment and to give them an easement adjacent to the rear boundary of the applicant's allotments and to fund the necessary costs to be incurred in doing so. The respondents however declined to surrender the easement which they held over the two adjacent allotments of land as they had previously done during the twenty years or so of their ownership of their allotment.

[5]

[5] Three allotments of land were considered on this application. Two are owned by the applicant developer together having an area of 817 m2, one an allotment on the corner of the Esplanade and 27th Avenue and the other an adjacent allotment having a frontage only to the Esplanade. The third allotment owned by the respondents adjacent to applicant's land has an area of 412 m2, also with a frontage only to the Esplanade.

[6]

[6] All three allotments have a width and frontage to the Esplanade of about ten metres and a depth of about 40 metres.

[7]

[7] The allotments to the rear of those with frontages to the Esplanade have a frontage to the Gold Coast Highway and seem initially to have been of approximately the same dimensions and area. The residential development of many of the allotments facing the Esplanade seems to have commenced in the early 1950s (although some much earlier) and well before the commencement of intense residential development in the Gold Coast area generally. When the subdivision was effected on 11 June 1924, the Esplanade and 27th Avenue each had a width of one chain or approximately 20 metres. The Esplanade extended from the frontage of the allotments to which it gave access for a distance of about 20 metres to High Water mark. This subdivision was in effect a subdivision de novo of land previously subdivided, however no purpose would seem to be served in considering that earlier subdivision.

[8]

[8] The small allotments facing the Esplanade with trafficable access from it of which the applicant's and respondents' allotments comprised only three in the 1950s, were initially developed with small houses which enjoyed a beach frontage. The Esplanade which had been dedicated for the purpose inter alia of giving access to those allotments did not then even have a constructed road although vehicles were able to obtain access from 27th Avenue along a relatively flat sandy track within its confines.

[9]

[9] The allotments owned by the applicant and respondents are north of 27th Avenue and are part of about ten of the same size before larger allotments, presumably resulting from the amalgamation of some of the smaller allotments resulting from the 1924 subdivision, continue on towards Tallebudgera Creek. Some of the allotments have access from the Gold Coast Highway and probably have an area of about 824 m2- having a frontage to each of the Esplanade and the Gold Coast Highway of about ten metres and a length of about 80 metres.

[10]

[10] In the early days as one proceeded north from 27th Avenue along the Esplanade some of the allotments had access only from the Esplanade which was a dedicated but unmade road while others had access from both Gold Coast Highway (in 1924 called Pacific Highway) and the Esplanade.

[11]

[11] Prior to and during the early 1950s residential development along the Esplanade involved the construction of relatively small, basic, and inexpensive beachside houses, attractive to people raising families who built modest holiday houses with a beach frontage between Currumbin to the south and Burleigh Heads to the north well removed from whatever tourist facilities then existed. The modest style of beach house development that occurred initially still exists on a few of the 412 m2 allotments on the Esplanade to the north and to the south of 27th Avenue.

[12]

[12] Mrs Garski whose parents built a beach house towards the northern end of Palm Beach subsequent to April 1956 when she was nine years old enjoyed school holidays and other holidays with her family at Palm Beach for a period of about four years when the house was sold. She said vehicular access to the beach house was obtained from the Gold Coast highway from which the allotment extended to the Esplanade. Her recollection of matters relevant to this application is that of a child and to the extent of any inconsistency between her evidence and that of Mr Farrell and Molly Hart, I prefer their evidence because they were adults working on and around the Esplanade in the 1950s.

[13]

[13] I accept the evidence of Mr Farrell that in 1954 car tracks extended north along the Esplanade (then known as Pacific Parade) "behind the front sand dunes" as shown in the 1955-56 Refidex Street directory (Ex KJF 1 to his affidavit filed 14 November 2002). I accept that allotments with a frontage to the Esplanade had usable vehicular access which was in fact used throughout the 1950's.

[14]

[14] I accept his evidence that in the late 1960s he was asked by Mr Schluter to grade and lay gravel on part of the Esplanade to make more readily trafficable vehicular access to his allotment with its eastern boundary on the Esplanade. He said he did not place boulders on or near the Esplanade. Whether the work he did at Mr Schluter's request was done before or after February 1974 probably does not matter very much although I find persuasive his evidence that about twenty feet of the length of the gravel surface he had paid Mr Farrell to lay to improve the Esplanade access to his allotment was itself washed away in the 1974 erosion. Neither in my view does it matter whether he laid gravel where the bitumen surface is currently laid. It is clear that that bitumen surface was laid after February 1974 because some of the boulders then placed by the Council to inhibit further erosion are to the east of the narrow bituminized remnant of the dedicated Esplanade shown in Ex 6.

[15]

[15] I accept also the evidence of Molly Hart that during the mid 1950s in the course of her employment letting holiday homes on the Esplanade at Palm Beach she regularly walked along car tracks on its sand surface to get access to them.

[16]

[16] It is clear however that over the last ten years or so beachfront allotments on Palm Beach have increased dramatically in value. Town planning constraints involving site coverage etc (to date at least) have hindered the development of high rise apartment blocks along the Esplanade. However there have been some high rise apartment buildings constructed along the Gold Coast Highway immediately to the west of allotments with Esplanade frontages. Indeed there is a quite large apartment block of six or seven floors on the western boundary of the applicant's two allotments with a frontage to that Highway and motor vehicle access from 27th Avenue (I refer to the photograph on the covering sheet in Ex LJ2 to which I referred in para 1 hereof).

[17]

[17] Many of the 412 m2 allotments however have been sold over the last few years for sums ranging between $1m and $2m for residential redevelopment of single unit dwellings.

[18]

[18] An inspection of the area containing the allotments owned by the applicant and the respondents indicated that very expensive single unit residential development has occurred. Some houses with a frontage to the Esplanade constructed over the last few years have cost between $1 million and $2 million to build.

[19]

[19] Mr Stoddart, the director of the applicant said that it was the applicant's intention to demolish the existing building converted from five apartments to, in effect, a duplex and to then reconstruct on each of the two allotments having respectively 405 m2 and 412 m2 a single unit dwelling house. While conceding that within the current town planning constraints it would be possible to amalgamate the two allotments and erect upon them a large apartment block perhaps containing seven floors, and perhaps like the apartments to its immediate west having vehicular access from 27th Avenue as does the existing building to be demolished, for reasons which were not explained the current development proposal is to erect only two single unit dwelling houses, one on the corner allotment of 405 m2 and the other on the adjacent allotment of 412 m2. The suggestion is that they will be very expensive single unit dwelling houses - involving a construction cost perhaps of between $1 million and $2 million each - or perhaps a greater cost for that matter - which would be of a standard comparable with the sort of residential development that has taken place on some Esplanade allotments over the last few years. Figure 5 in Ex LJ2 to the affidavit of Mr Jackson filed 6 December 2002 depicts some of the recent development on the Esplanade immediately to the north of the respondents' allotment, in front of which a utility truck is parked.

[20]

[20] There is a Council building line or set back for residential buildings six metres to the west of the front of the Esplanade allotments.

[21]

[21] It is convenient now to turn to the history of the grant of the easement and of its use by occupiers of the respondents' allotment which is the dominant tenement over the applicant's lands which are the servient tenements.

[22]

[22] The easement was granted in about May 1957 shortly after significant erosion had occurred blocking Tallebudgera Creek. In February 1974 significant erosion again occurred on Palm Beach particularly from the junction of the Esplanade and 27th Avenue to a point 50 to 80 metres to the north. A photograph of the extent of that erosion at the junction published in a newspaper on 7 February 1974 was identified by Mr Schluter who is shown assisting to contain the erosion and is Ex PDR1 (G13) to the affidavit of the first respondent filed 14 November 2002. It is clear that the erosion would have prevented or at least significantly inhibited access from 27th Avenue along what remained of the dedicated Esplanade to the north for at least a short time. The evidence however indicates that the Council placed truck loads of rocks - some of which are still apparent in other photographs and have been shown on the plan which is Ex PDR9 referred to in para 25 hereof - and volunteers placed bags of sand along the eroded part of the beach and filled up behind the rocks with sand.

[23]

[23] I am satisfied that whatever constraint upon vehicular and pedestrian access along the trafficable portion of the Esplanade north of 27th Avenue resulted from the erosion in February 1974, it did not last for long because it seems that rocks were placed by the Council and sand bags were promptly placed by residents and others to resist further erosion and sand eventually was tipped behind them until the level of the trafficable part of the Esplanade which was simply part of a sand dune upon which Mr Farrell had laid some gravel to improve Mr Schulter's vehicular access to his allotment, had restored.

[24]

[24] Obviously however this experience must have weighed heavily on the minds of the owners of some allotments to which access could be obtained only from the Esplanade. I infer that it weighs heavily on the minds of the respondents now. Some Allotments further north from 27th Avenue perhaps were not so badly affected because they could obtain access from the Gold Coast Highway. In any event in May 1957 common easements had been granted about 3.67 metres in width from 27th Avenue running through and parallel to the frontage of the applicant's allotments and the respondents' allotment to provide alternative access at least to the allotment north of the respondents' allotment and as well to their allotment. The easement or right of way was to "go return pass and repass along over and upon the" applicant's allotments as a means of access to the respondents' allotment to and from 27th Avenue, Palm Beach.

[25]

[25] Upon inspection it was clear that only a very narrow and modest trafficable roadway is currently constructed within the 20 metre wide dedicated roadway much of which has in fact been eroded away. The trafficable roadway including the partly grassed sandy verges on both sides I would estimate to be no wider than approximately six metres and is fenced about a metre from the eastern edge of the narrow bitumen carriageway to prevent vehicular access to the balance of the dedicated roadway - vide photograph 7 in Ex LJ2 to the affidavit of Jackson filed 6 December 2002. It is apparent that in front of the respondents' allotment more than two thirds of the 20 metre width of the originally dedicated roadway has been lost to erosion. This is illustrated in the aerial photograph which is Ex 6 which permits comparison of the trafficable widths of 27th Avenue and the Esplanade (each having a dedicated width of 20 metres). The tree shown opposite the respondents' allotment (identified with a pale coloured star) is illustrated in Ex 6 which also shows some of the rocks tipped onto the eroded Esplanade in February 1974 in an effort to halt erosion then occurring. The location of those rocks is depicted in the plan Ex PDR9 to the affidavit of the first respondent filed 11 January 2003.

[26]

[26] There is no evidence really as to the period of time during which that 1957 easement was used, or the frequency of such use, by the owners of allotments to the north of the applicant's allotments. I infer from the evidence however that it has not been used since the respondents purchased their allotment in about 1983. At that time all houses built on those allotments were built on the western side of the easement. Not long ago however the residential allotment to the north of the respondents' land which had the benefit of the easement, across the front of the respondents' and the applicant's land was redeveloped with a very large and expensive dwelling house, constructed in such a way as to render obsolete its easement, as far as its owner was concerned. When that occurred the respondents managed to have the owner of that allotment extinguish the easement across the front of their allotment. Although the matter was not investigated in depth I infer that not merely did the respondents' land cease to be a servient tenement to the land to its north but so also did the applicant's allotments cease to be servient tenements to that allotment.

[27]

[27] Although the respondents have not used their easement access over the applicant's lands for the purpose of passing and repassing, they have walked across it once a year for the purpose merely of avoiding a contention that they have never used it. Obviously they have never regarded it as being of no value or benefit to them. I infer that they have always regarded its value principally as an alternative means of access in the event of cyclonic erosion of the Esplanade. The applicant's corner allotment however has a fence across the easement access although for exactly how long this fence has been in that position was not canvassed (vide Fig. 6 in Ex LJ2 referred to in para 1 hereof). That obstruction to the easement could easily be removed in the event of imminent erosion of the Esplanade and/or the allotments with a frontage to it.

[28]

[28] After the bad erosion and loss of sand from Palm Beach in the 1950s and subsequently, steps have been taken to establish rock groynes some distance to the south of 27th Avenue and also a training wall on the southern side of the mouth of Tallebudgera Creek to the north of that Avenue. These significant rock walls have had the effect of harvesting sand as it moves under wave influence in a northerly direction past Palm Beach and has replenished to some extent at least the enormous amount of sand that must have been eroded previously in times of bad weather and cyclonic storms.

[29]

[29] In 2001 GO Science Australia in conjunction with the Bureau of Metrology published an overview of cyclonic damage done to the Gold Coast area (and other parts of Queensland) in a document entitled "Natural Hazards and the risks they pose to South East Queensland". This document is found at page 76 of Ex PDR 1 to which I have already referred. On the back of page 80 it is recorded -

[30]

"SEVERE WAVES: One of the principal impacts of severe waves is significant beach erosion, especially when combined with storm tide effects. Between late January and early April 1967, a sequence of cyclones - tropical cyclones Dinah, Barbara, Elaine and Glenda - attacked the beaches of southern Queensland causing extensive erosion and economic loss to the tourist industry. This was followed in June by three east coast low (`winter cyclone') events which, together with the earlier cyclones, were estimated to have removed more than eight million cubic metres of sand from beaches between Point Danger and the Nerang River mouth. Extensive property damage occurred along the Gold Coast strip - houses fell into the sea at Mermaid Beach, Nobby's and Palm Beach. Large sections of the esplanade collapsed at Surfers Paradise, Main Beach and Palm Beach. A volunteer army of 5 000 people placed around 100 000 sandbags along the foreshore helping to prevent many other houses being lost to the sea. It then took two years for natural accretion to rebuild much of the region's beaches."

[31]

[30] On the back of page 81 there is a graphic illustration of the effect of severe beach erosion on Palm Beach during the severe storms in 1967.

[32]

[31] At page 84 it is recorded that a very large intense cyclone "Pam" severely eroded parts of Palm Beach forcing residents to abandon their houses.

[33]

[32] In volume 1 of the Palm Beach beach protection strategy prepared for Gold Coast City Council special attention is paid to erosion problems at Palm Beach. In clause 12.1 (at page 96 of Ex PDR) 1 it is observed -

[34]

"Experience and historical data show that the main hazard to Palm Beach is cyclone erosion. Over the decades Palm Beach has experienced some of the worst erosion and structural damage to properties caused by cyclones and major storm events."

[35]

[33] At page 60 of that strategy (on the back of page 96) of Ex PDR 1 it is observed that the last serious cyclone on the Gold Coast was in 1974, or 26 years before the preparation of the strategy in 2000. It is observed that the "design cycle cyclone of 1 in 30 year return period holds a reasonable factor of safety. However the chances of a cyclone of that magnitude arriving within the next four years, [ie by 2004] in terms of the existing gap since 1974, could be quite high". I infer that the risk of a 1974 type cyclonic impact on the Palm Beach is much greater than it was 20 years ago and will increase as time passes.

[36]

[34] I will not attempt to analyse in detail the expert evaluations of the erosion problems on Palm Beach over the last thirty years or so nor the recommended steps to overcome those problems in the future. Such steps will obviously be very expensive. In my view upon the evidence adduced upon this application no such steps have yet been undertaken in the vicinity of 27th Avenue.

[37]

"As Palm Beach was developed in times of relatively calm weather and wide beach conditions, the buffer area and esplanades provided were not adequate. As a result, all of the properties fronting the beach at Palm Beach are well within that erosion zone and most of the esplanades were completely or partially lost in the 1960's and 70's. The original esplanade is now discontinuous as much has been lost by erosion. This has resulted in some blocks having difficult access and public parking being restricted and often congested."

[38]

[36] In clause 4.6 at page 94 reference is made to the construction of the "Tallebudgera Groyne" in 1976. It is said that t his was completed by 1981. I assume that this "groyne" is the training wall to which reference was made in the expert evidence. It is observed "this groyne acts as a major control point at the northern end of Palm Beach and has realigned and widened the beach back to about 21st Avenue. Reference is then made to the "many groynes" at 21st and 11th Avenue. It is said that they have had minimal impact on the beach system due to their short length and will not have significant impact on the beach process in the long term.

[39]

[37] The evidence indicates generally that there have been no serious storms or erosion problems of the sort depicted in the photograph taken on 7 February 1974 (Ex G13 to which I have previously referred in para 22 hereof) over the last twenty years or so. There was one in 1996 which although serious seems to have been much less serious than that in 1974. The applicant seeks to have the respondents' easement extinguished on the ground that because of steps taken to replenish sand on the foreshore lost since the 1950s by erosion, that led to its creation back in 1957 it has become obsolete. It has been argued that because access has not been obtained by the respondents from 27th Avenue via the easement from when they first enjoyed their seaside house - about 20 years ago - it cannot be contended that it is or has been used for the purpose for which it was granted - ie the obtaining of access when the Esplanade became impassable due to erosion problems. Erosion problems of course have not occurred during the last 20 years. Essentially it is the applicant's case that the construction of the rock wall and groyne referred to in para 28 hereof and the dumping of rocks in 1974 to impede erosion referred to in para 14 hereof have made it improbable that storms and cyclonic influences will in the future ever cause erosion problems in the vicinity of the Esplanade on Palm Beach of the sort or to the extent of those experienced in the past and particularly in February 1974.

[40]

[38] Should the applicant succeed in having the respondents' easement extinguished it will then be able to construct a building or buildings within six metres of the front boundary of each of its allotments which will entirely cover those parts of those allotments within the bounds of the respondents' easement. The respondents argue however that having regard to the recorded history of the operation of elemental forces in this area they may well need their easement for the purpose of access should the severity of erosion of a kind that probably explains the grant of it in the first place again occur albeit that it has not occurred over the last 20 years as it did occur the previous 20 year period. The severity of such erosion from time to time 20 to 40 years ago is graphically emphasised throughout PDR1 to which I have already referred and particularly on the back of p 19 showing erosion at Burleigh Heads in July 1979 and pp 13, 14, 16 and 80 showing erosion at Palm Beach in 1967 and 1974. Ex PDR 11 to the affidavit of the first respondent filed 17 January 2003 shows erosion at Currumbin in or shortly before 1976 which overcame the protection of a rock wall of some kind built in an effort to impede it. I refer to the rocks shown in the photograph as well as to those shown in PDR1 at G13.

[41]

[39] In Ex PDR 1 there are many photographs of serious beach erosion that has occurred from Southport to Kirra as a result of cyclonic influences over the last half century. I refer in particular only to those taken of erosion on that part of the coastline where the respondents' land is located - ie between Burleigh Heads to its north and Currumbin to its south.

[42]

[40] The respondents say in addition that sometimes the Esplanade is so crowded with vehicles left there improperly by visitors to the beach and the single lane width bituminised strip so narrow that they anticipate that from time to time in the future (with population growth) they may find it a matter of convenience to use their easement to obtain access to and from 27th Avenue to their allotment.

[43]

[41] However one objection to the loss of their easement most strenuously advanced by the respondents is the contention that if it is not kept free of obstructions to its use as an easement of right of way - which would result from a building or buildings, as high as or higher than their house, entirely straddling them - they will lose the benefit of unrestricted views of the shoreline to the south and south east which they and their predecessors in title have enjoyed without interruption since 1957. Upon the inspection which was conducted on the second day of the hearing I had the opportunity from the veranda on the upper level of the respondents' seaside house to experience those views which extend over the beach from some distance to the north to as far south as the eye can see. These views are unimpeded except by sparse upper foliage and branches of trees in the front yard of the respondents' home and in the front of the applicant's adjacent allotment, which they regard as enhancing the amenity of the view rather than detracting from it. Such foliage also gives a degree of privacy from the Esplanade some 12 metres or so from the eastern end of the respondents' seaside house without significantly impeding views from it through and around those trees. Photographs showing the nature of this foliage are numbered 5 and 6 on page 6 of Ex LJ2 to which reference is made in para 1 hereof.

[44]

[42] In support of its contention that the easement enjoyed by the respondents is obsolete the applicant called two expert witnesses - Mr Jackson a specialist in coastal engineering and Professor Tomlinson director of the Griffith Centre for Coastal Management since January 2000.

[45]

[43] Mr Jackson's report is Ex LJ2 to his affidavit filed on 6 December 2002. He said that the training wall constructed at Tallebudgera Creek in 1976-79 and at Currumbin Creek in 1980 have widened the northern section of Palm Beach where the applicant's and respondents' allotments are located and have "reduced the vulnerability of the beach and beach front properties to erosion". He does not say that such risk has been obviated. An aerial photograph of the beach between the groyne just south of 21st Avenue and the Tallebudgera Creek training wall on the northern side of 27th Avenue is shown on page 3 of the exhibit. He said that the beaches in the vicinity of 27th Avenue are now approximately 110 metres wide from the boulders to which I have referred to mean sea level. He said dunes extend seawards for 64 metres from those boulders. He said to protect roads and beach front properties against severe erosion a sea wall has been gazetted along the Gold Coast. He observes in his report that a substantial boulder wall already exists in the vicinity of 27th Avenue and asserts that this is shown in Fig. 5 on page 6 of his report. I am not persuaded that this observation is correct. I prefer the evidence to which I have already referred in para 21 to the effect that rocks, even if categorised as "boulders", shown in that photograph and recorded in the sketch plan Ex PDR 9 were not part of any sea wall constructed under the supervision of an engineer whether in accord with various diagrammatic plans shown in the exhibits or not. I am persuaded that the "rocks" shown are simply the tops of rocks or even the bigger part of them that were dropped off trucks during an episode of storm driven erosion in February 1974 when the Esplanade to the west of where they are now located was being severely eroded. There is simply no evidence that the rocks were placed within the eroding Esplanade in a systematic way in the course of building a wall. There is no evidence that they form part of a certified wall and it is clear that they are not of the size (5 tonnes) which one would expect of a wall designed along the lines included in the various expert reports contained in Ex PDR 1 to which I have already referred.

[46]

[44] Mr Jackson observed that the most recent severe storm event in 1996 while eroding beaches in the central Palm Beach area "back to the boulder walls in place" did not reach the "boulder wall" near 27th Avenue. I observe merely that I reject the suggestion that the rocks to which various witnesses referred in the vicinity of 27th Avenue and the Esplanade allotments near it were ever part of a boulder wall designed and constructed as such.

[47]

[45] On page 6 of his report it is observed that because properties have been developed to the north of the respondents' allotment "well seaward of the easement" that easement would be of limited use because it would only provide access to one property - ie the respondents'. I observe merely that if such be the case, it is a quite irrelevant consideration upon this application. I am unpersuaded that the fact that only the respondents would benefit from the maintenance of their easement across the applicant's property to provide an alternate access to that from what remains of the Esplanade is at all relevant on the question of the obsolescence of that easement as far as the respondents are concerned. It could not be relevant to s 181(1)(b)(ii) upon the evidence led upon this application.

[48]

[46] Mr Jackson observes that the completion of the training wall at Tallebudgera Creek in 1979 has significantly reduced the risk of erosion in the northern part of Palm Beach - and particularly in the vicinity of 27th Avenue because since that time it has restored some of the sand to those beaches which had been lost by erosion prior to its construction.

[49]

[47] I reject the view expressed that there is a "substantial boulder sea wall" in the sand dunes in front of the respondents' allotment which would provide "a line of defence" against very severe erosion events. In my view there is no evidence whatever from which it could properly be inferred that a substantial boulder sea wall was ever constructed in the vicinity of where a few relatively small rocks are visible in the vicinity of 27th Avenue and the respondents' allotment and in fact on my evaluation of the evidence given by both experts there is just no record of such a substantial sea wall ever having been constructed - much less a wall that would comply with the design requirements of one constructed to withstand the impact of a 1967 style cyclonic event.

[50]

[48] The conclusion reached by this witness that "the risk of erosion affecting The Esplanade is low" to my mind is not supported by the evidence. It is not suggested that the construction of either the training wall to the north of the respondents' allotment or the groyne to the south of it has or will in the future have any impact other than to gradually restore sand lost by cyclonic disturbance of coastal waters. The capacity of that restored sand to prevent further erosion of the Esplanade will clearly depend upon the severity and duration of further cyclonic disturbances.

[51]

[49] It is not suggested that the "defence" against erosion in the future in the vicinity of the respondents' allotment and those of the applicant will be any more than the capacity of the sand restored naturally by tidal influences as a consequence of the construction of those walls in the late 1970s to impede erosion until eventually it is lost entirely to erosion. Less than 25 years has elapsed since their completion during which time no cyclonic disturbance has been recorded which approximates those in 1967 or 1974.

[52]

[50] I am unpersuaded that any sea wall has ever been constructed at or immediately to the north or immediately to the south of 27th Avenue. Certainly no part of one was pointed out or visible to me on inspection. No test was done to confirm the fact that the few scattered rocks visible on the surface of the sand dunes were on the top of such a wall and their disposition in my judgement is inconsistent with them being part of such a wall.

[53]

[51] Much of the residential development with beach frontage to the Gold Coast has occurred on sand dunes which one might think have been deposited at various times over the centuries by waves or other sea influences. It is clear that it has been determined by the Council and by the Griffith Centre for Coastal Management upon expert advice that a sea wall ought be constructed along the full length of Palm Beach in accordance with the designs contained in the expert material. This has clearly not been done to date. I infer that when the subdivision which produced these allotments was registered in 1924 showing a road reservation about 20 metres in width, the sand dunes in front of the allotments were not as badly eroded as they are today and probably a road surface could then have been constructed on the reservation as one has been constructed within the 27th Avenue road reservation - also on a sand dune. When reserved or dedicated in 1924 the eastern edge of the Esplanade was at High Water mark. It is not clear to me on the expert evidence whether any properly designed sea wall in the future would be constructed some distance beyond the seaward limit of 20 metres from beach front allotments which was dedicated initially as a roadway. One would think that might be the course taken but the expert evidence led upon this application was really given on the basis that the Esplanade which has been reserved for so many years is now confined to the remnants of the trafficable roadway which has a width of about one motor vehicle with relatively narrow sandy verges on either side and less than one third that of the originally dedicated roadway.

[54]

[52] It is possible only to speculate on what the position may be if and when a properly designed boulder wall is constructed to protect the 20 metre wide Esplanade which was initially dedicated on the subdivision of the beach front allotments containing those of the applicant and the respondents.

[55]

[53] Professor Tomlinson the director of the Griffith Centre for Coastal Management since January 2000 was responsible for the preparation of the Palm Beach protection strategy for the Gold Coast which was finalised in only 2001.

[56]

[54] Professor Tomlinson in his evaluation of the utility of the respondents' easement in terms of "storm related use" adopted the same approach as that adopted by Mr Jackson. He said he concurred with Mr Jackson's assessment that "as the risk of erosion affecting the Esplanade is low and the extent of the easement is insufficient to service all properties along the Esplanade there is little technical justification for retention of the easement". In his report of 20 November 2002 (Ex RT2) he observed -

[57]

"The situation at Palm Beach is similar to many sections of the Gold Coast where beachfront development in the past has been allowed on what was the frontal dune system which provides the natural buffer against storm erosion. The strategy recommended for Palm Beach is to undertake works designed to artificially maintain an adequate beach width, and to ensure that the continuous seawall is refurbished where necessary to specification, thereby providing a "last line of defence" against the so-called design storm (ie equivalent to the 1967 cyclone which caused widespread damage along the coast). It should be noted that such a storm is not the most extreme event which has occurred, or could occur."

[58]

[55] I can only conclude that the creation of that part of the coastal sand dunes upon which the allotments in issue are located resulted from storm surges of a kind not recorded over the last century or so.

[59]

"In the event of a storm of a magnitude equivalent to those that have occurred in the 1960s and 1970s, it is my view that the beach would be cut back no further than the seawall which is seaward of the Esplanade. Provided the wall has been constructed to standard at this location (I cannot confirm this), the wall would provide the necessary protection of the Esplanade and the utilities located there. In this case there would be no need for an easement through you property (ie the applicant's property) from a point of view of storm-related use..."

[60]

[57] In the course of his evidence Professor Tomlinson observed that if storm erosion in the future "actually came back to the point of that wall at any location I would expect it to hold if the wall was designed against that particular storm".

[61]

[58] I repeat that in my judgment the evidence has failed completely to establish that a professionally designed storm wall was ever constructed in the vicinity of 27th Avenue to resist even a 1967 type storm - much less one of greater severity. It is clear on the evidence that the few rocks that can be seen are scattered in such a way as to make it most unlikely that they ever formed part of a properly designed and constructed wall and are so located as to make it probable that while serious cyclonic erosion was occurring they were dumped in a position where trucks were able to drop them with a view to impeding that erosion sufficiently to enable filled sand bags to be placed or probably thrown behind the rocks as volunteers battled to save what remained of the Esplanade and as well its beach front allotments. There are simply no rocks visible anywhere near the surface level of what remains of the dedicated roadway initially described as "Pacific Parade" but now described as "the Esplanade". There is no evidence of the location of any rocks - much less 5 tonne boulders on the sand the level of which presently is at least one metre below the bitumen surface of the trafficable part of the dedicated roadway shown in the photographs tendered upon this application.

[62]

[59] I conclude from the evidence given by Professor Tomlinson that the remnant of the 20 metre dedicated roadway now known as the Esplanade would be or at least might very well be at serious risk of further erosion as a result of cyclonic activity in the future simply because there has not been constructed a sea wall seaward to the Esplanade (or what is left of it) designed to withstand erosion from a 1967 design storm. The recommended designs of such a wall are recorded in the coastal management report. Professor Tomlinson said that he was unaware whether any such wall had ever been built in the vicinity of 27th Avenue. On my understanding of Mr Jackson's evidence he also was unaware whether such a sea wall had ever been built and a search of Council records as to the building of such a sea wall in 1974 or before or since that time for that matter, failed to disclose any record of the construction of such a wall in which the Council was involved.

[63]

[60] Professor Tomlinson said that the 1967 storm design for sea walls was selected without a "rigorous statistical analysis" but he thought that it would resist storms that occurred in the order of one in fifty years or perhaps one in seventy years. He agreed of course that one might experience a one in 70 year storm two years running. To the extent that this opinion is to the effect that a 1967 or 1974 type cyclonic event might occur once in fifty or once in seventy years, it is inconsistent with the view expressed in the Council Strategy document referred to in paras 32 and 33 hereof which is that it might occur once in thirty years. He said that in the absence of a properly designed sea wall erosion may well take out the rest of the Esplanade at Palm Beach and that the construction of such sea walls was in effect a "last line of defence" type of works. He conceded that the Palm Beach protection strategy called for the construction of a sea wall for the full length of the Palm Beach ocean front. He conceded that to construct such a wall would be a costly exercise. He said that in the absence of such a sea wall there was a real risk of erosion of the sand dune behind where the wall should be constructed and that the construction of such a wall was the simplest of coastal protection measures that could be taken in areas along Palm Beach. He agreed that the building up of the beach with sand as a consequence of the construction of the training wall, groynes etc was merely "a first line of defence". When he proposed the construction of a continuous sea wall along the whole of Palm Beach in 2001 the training wall at Tallebudgera Creek had been in place for about 22 years. During that period it had replaced sand dunes to a level well below that of the remnant of the Esplanade on the original sand dune level which presently remains trafficable.

[64]

[61] He agreed that in the early 1900s Palm Beach was wider than it was at the time of the design storm in 1967 and that it is reasonable to assume that it could well have been wider than the beach is now - after being replenished as a consequence of the construction of the training wall, and groyne. He agreed that beach erosions and replenishments are "highly variable systems". He expressed his views on the assumption that the rocks on the surface of the sand dune in the vicinity of the allotments involved in this application indicated the existence of a properly constructed sea wall - in my view an incorrect assumption. He said that a cyclonic storm with the intensity of the 1967 storm would impact on that wall. He must have meant that it would impact at least on a properly designed and constructed sea wall located where the rocks are observable in the photographs and Ex PDR9 (vide para 25 hereof). He expressed the view that the alignment "of the wall" at the moment is where the 1974 storm came back to. He said that as a consequence of the harvesting of sand as it moves northwards as a result of the construction of the Tallebudgera Creek training wall "the same storm now hitting on the beach should not get any of the wall assuming that the underwater sand profiles are the same as they were in 1967."

[65]

[62] I find that there is not at present and never has been a sea wall constructed on the Palm Beach frontage anywhere in the immediate vicinity of 27th Avenue and in particular in front of the allotments of land owned by the applicant and the respondents. I am satisfied that in the early 1900s long before the construction of the training wall on the southern side of Tallebudgera Creek and the groyne on Palm Beach south of 27th Avenue, Palm Beach was significantly wider than it is at present - as a consequence only of the construction of that wall and groyne in the late 1970s. I am satisfied that as a consequence of cyclonic storms Palm Beach was suffering from significant erosion prior to the late 1970s. The beach erosion at that time has been repaired to some extent by the works carried out with the training wall and groyne which has caused sand eroded by such cyclonic storms to be replaced more rapidly than would otherwise have been the case. I assume that long before the construction of such works was recommended and implemented, Palm Beach had been eroded and replenished naturally for centuries without the intervention of such man-made innovations as training walls, groynes and sea walls designed only to permit and safeguard long term residential development on sand dunes which commenced before the nature of such erosion and replenishment was fully (if at all) understood. I am satisfied however that the beach as it exists at present as a consequence of the construction of the wall and groyne is not as wide as it was when the subdivision was effected in 1924. Between then and the early 1970s cyclonic activity had caused great erosion at the northern end of Palm Beach - to such an extent that two thirds of the dedicated Esplanade roadway which I infer had not been eroded in 1924 has been lost to erosion. At the moment in my view on the expert evidence and upon the findings of fact which I have already made, the build up of sand to which I have referred in front of the allotments in issue has resulted from the construction of the training wall and groyne which has replenished much or at least some of the sand lost between 1924 and 1974. That replenishment of sand is the only protection that the Esplanade and indeed the allotments fronting it have against erosion in the future. It is likely on the expert evidence that there will be erosion of beach sand as the result of cyclonic storm activity greater than that which was experienced in the 1967 design storm for the construction of sea walls. The designed sea wall along Palm Beach has not yet been constructed or at least completed at its northern end. If it were constructed it should obviously, in my view, be constructed on the seaward side of the road dedicated or reserved in 1924 to give access to the beach front allotments. There is no evidence that the Council has any plans or intention to construct such a sea wall in the foreseeable future or even to construct one to protect what remains of the Esplanade. Even recent reconstruction of very expensive residential development on the Esplanade has not resulted in any sea wall construction.

[66]

[63] In my view in those circumstances there is a "real risk" that at some time in the not-to-distant future erosion will occur of the sort that did occur in 1974, to photographs of which I have referred. It is possible that the erosion will be worse in a future cyclonic disturbance than it was in 1974. I have come to the conclusion that the respondents' easement over the applicant's land may well be and indeed probably will be useful and be used by the respondents should cyclonic disturbances again cause erosion even limited to the Esplanade as they did in 1974, at least until the time of completed construction of a properly designed sea wall of the sort the committee has resolved should be constructed to protect both the Esplanade and the beach front allotments obtaining access from it along Palm Beach.

[67]

[64] With respect to the respondents' deprivation of residential amenity consequent upon the applicant constructing a building or buildings which straddle the respondents' easement I keep in mind the evidence of all valuers that the respondents are not making the highest and the best use of their allotment (as an investment) by maintaining on it, in its present position, their seaside house which they have occupied for about 20 years. The highest and best use according to the applicant's valuer would be its redevelopment for a single unit dwelling house, the development cost of which might exceed $2.5m. I infer that such a redevelopment would involve constructing a house of the sort to which I have already referred in para 19 hereof up to the current Council building - set back line which is six metres to the west of the front boundary of the beach-front allotments. In the event of such a redevelopment of course the front of buildings on the applicant's land would not be 3.6 metres in front of a new building on the respondents' allotment. It would be level with the front of the development on the allotment to the north of the respondents' land as well as with the proposed development on the applicant's land. In that event there would be no impediment to views to the north or south for such a dwelling house the front of which would be approximately level with the front of the buildings erected on the allotments either side of it.

[68]

[65] However if the respondents wish to maintain their house in its present condition and location which has not substantially changed ever since they purchased it 20 years ago they would of course lose the benefit of the views and suffer a reduction in the residential amenity which they currently enjoy should their easement be extinguished.

[69]

[66] Mr Brett a valuer called on behalf of the applicant said that the loss that they would suffer in the circumstances, limited to the impact on their changed amenity would be within the range of $85,000.00 to $100,000.00.

[70]

[67] Mr Slater called for the respondents came to the conclusion that the value of the loss of amenity to the respondents should their view be obstructed would be about $100,000.00 to $117,000.00. Both valuations of course are based on a hypothetical sale. Upon that evidence I would assess the value of loss of amenity on an objective (and not subjective) basis at $100,000.00.

[71]

[68] Whatever determination is made on this aspect of the evidence which is largely uncontested, it is clear that the respondents would suffer a significant loss should their view to the south presently indirectly protected by their easement be obstructed by buildings constructed over it the fronts of which are located on the building line six metres to the west of the front alignment of the applicant's allotments. Whether or not their easement gives incidental or collateral protection to the maintenance of the benefit of that view and if so whether it is compensable was debated at some length. I will later determine as a matter of law whether the easement protects the residential amenity of their allotment, ignoring altogether the alternate access it gives and whether if extinguished they would be entitled to compensation for the loss of that view and any resulting reduction in the residential amenity in their front garden area. It suffices to say that in my judgement that deprivation of view and amenity by the construction of a building straddling that area of the applicant's allotments subject to the easement would for them subjectively be a substantial detriment to their enjoyment of their house and garden area in their present location. I infer that the beachfront views and garden area contributing to the residential amenity of their beach house were very important, if not the most important factors in their purchase of it in 1983.

[72]

[69] I will turn now to s 181 of the Property Law Act 1974 pursuant to which the application to extinguish the easement is made.

[73]

[70] I will recite those parts of s 181 which are relevant to the matters debated upon this application -

[74]

Section 181 provides -

[75]

"181. Power to modify or extinguish easements and restrictive covenants

[76]

(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, 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 or restriction upon being satisfied -

[77]

"(a) that because of change in the user of any land having the benefit of the easement or restriction, or in the character of the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed obsolete; or

[78]

(b) that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either -

[79]

(i) does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or

[80]

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification;

[81]

(d) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, ....

[82]

(2) In determining whether a case is one falling within subsection (1)(a) or (b) and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance."

[83]

[71] The word "or" where it appears for the third time in s 181(1)(b)(i) should be read conjunctively as "and" - Ex parte Melvin [1980] QdR 391 at 393 and Ex parte Proprietors of `Averil Court' Building Units Plan No 2001 [1983] QdR 66 at 70.

[84]

[72] I have found aerial photographs taken in 1956 Ex 11 (No 2 of 5), 18 January 1969 Ex 11 (No 4 of 5) and 27 September 1973 Ex 11 (No 5 of 5) of some assistance in this matter. All three aerial photographs were taken from different flying heights. There is no indication as to the time of tide at which they were taken. It seems clear however that the last one taken in September 1973 was taken a few months before the erosion that took place in February 1974 to photographs of which I have already referred in para 22 hereof (Ex PDR1 G13).

[85]

[73] The photograph taken September 1973 clearly records what to my mind is the Esplanade then a sandy track from its junction with 27th Avenue and stretching to its termination at the end of ten allotments or thereabouts to the north. It shows the residential developments on both the applicant's allotments and the respondents' allotment at that time. It also shows that the trafficable portion of the sandy Esplanade at that time was close to the front alignments of those allotments although it appears that there was sufficient remaining of the 20 metre wide road reservation at that time for a full width road to be constructed over it comparable to that constructed over 27th Avenue. I infer however that having regard to the number of allotments it would serve the Council would not embark upon the construction of a dual carriageway until appropriate steps had been taken to combat erosion.

[86]

[74] The aerial photograph in 1969 which does not seem to depict the respondents' house or the current residential development on the applicant's land depicts 27th Avenue as either a sandy or gravel road (certainly not bitumen) with a track seemingly in the sand giving access to allotments to the north of the applicant's allotments. It is unclear whether the easement granted in 1957 is in the approximate location of the sandy track shown in the 1969 photograph to the west of the Esplanade/foreshore apparently giving access to the building shown constructed on the allotment to the north of the respondents' allotment. On my examination of the photograph it seems that when it was taken the respondents' allotment had not then been developed for residential purposes and the applicant's allotments had only a small building on them although I suspect that the allotment to the north of the respondents' upon which a house is erected, shown to be connected by a sandy track joining the unbitumened 27th Avenue was probably the only allotment which then made use of the sandy track which is in the approximate location of the easement.

[87]

[75] Certainly by the time the aerial photograph was taken in 1973 the respondents' house had been erected beside the building currently erected on the applicant's allotments.

[88]

[76] The aerial photograph taken in 1956 illustrates what seems to me to be the unconstructed Esplanade running off 27th Avenue which whether or not constructed certainly did not have a bitumen surface.

[89]

[77] I find it impossible to detect on the 1969 photograph the sandy Esplanade shown with reasonable clarity in the 1956 photograph. On my examination of the 1969 photograph the waves shown seem turbulent and I keep in mind that in 1967 a severe cyclonic storm did significant damage to this part of the Gold Coast beach front as a consequence of which it was used as a storm for design of sea walls to withstand the impact of similar cyclones in the future. I note also that the 1956 aerial photograph perhaps unsurprisingly gives no indication of a track of any sort in the approximate location of the easement over the applicant's lands. On the other hand the 1969 aerial photograph does depict the existence of such a track although the 1973 photograph does not depict such a track in the approximate location of the easement. Disregarding the absence of information as to the state of the tide when each photograph was taken the inference I draw from all three aerial photographs is that in 1973 the Palm Beach foreshore in the vicinity of the applicant's and respondents' allotments of land seems not to have varied a great deal from what it was in 1956.

[90]

[78] I gain no assistance from the aerial photograph Ex 11 (3 of 5) - it does not appear from the endorsements on this photograph whether it was taken in 1952 or 1960. In any event it does not show whether there was any Esplanade track at the time it was taken or if so where it may have been. The areas generally photographed seem to be obscured to some extent by cloud which perhaps obscures the location of the Esplanade which was clearly visible in 1973 and which witnesses I accept to be reliable said existed in the mid 1950s.

[91]

[79] Under s 181(1)(a) the applicant must show either -

[92]

(i) The respondents have changed the "user" of their allotment or

[93]

(ii) A change has occurred in the character of the neighbourhood or

[94]

- which require that the easement be deemed obsolete under s 181(1)(d) and that the proposed extinguishment of their easement will not substantially injure the respondents.

[95]

Under s 181(1)(b) the applicant must show -

[96]

(i) That the continued existence of the respondents' easement would impede some reasonable user of the applicant's land and

[97]

(ii) That the respondents' easement in impeding that reasonable user of the applicant's land either -

[98]

(a) Does not secure to the respondents any practical benefit of substantial value, utility or advantage to them

[99]

(b) that the continued user of the easement would be contrary to the public interest

[100]

(c) that money would be an adequate compensation for the loss or disadvantage which the respondents will suffer from extinguishment of their easement

[101]

and under s 181(1)(d) that the proposed extinguishment of the respondents' easement will not substantially injure them.

[102]

[80] The easement was probably granted in 1957 because of the predictability of bad erosion of the foreshore to the seaward side of the dedicated Esplanade which would hinder if not prevent access to the allotments with a frontage to it in times of predictable cyclonic disturbance - albeit that the occasions of such disturbance were and remain unpredictable. In my view it has not been demonstrated on the evidence that the remnants of the Esplanade will not again be subjected to the same sort of cyclonic disturbances as led to the grant of the easement in question in 1957. Erosion had obviously encroached upon the dedicated Esplanade prior to 1974 and in February 1974 actually encroached upon it to the extent of two thirds of its width and to within less than six metres from the eastern boundaries of the beach front allotments.

[103]

[81] In my view it has not been shown that there has been any change in circumstances concerning the risk of encroachment upon the remainder of the Esplanade between the time the easement was granted and the present time. There is no evidence whatever to suggest that there has been a sea wall erected on the seaward side of the existing remnant of the Esplanade or that there is any plan to erect such a sea wall to give a last ditch protection against erosion of the sort to which the Esplanade has obviously been subjected over the last half century. The construction of the training wall at Tallebudgera Creek and the groynes to the south of 27th Avenue has not been demonstrated to do anything except restore sand banks eroded away by cyclonic disturbance by trapping sand as it moves over the years in a northerly direction along the beach profile. On my assessment of the expert evidence the most that can be said is that the existing 60 metre wide sand dune that has been restored (probably only partly) in the vicinity of the respondents' allotment as a consequence of sand replenishment since completion of the walls and groynes in the late 1970s, must first be eroded by cyclonic storms of the sort that occurred in 1974 before any erosion of the six metre remnant of the Esplanade itself will again occur.

[104]

[82] There is no change in the character of the neighbourhood in which the allotments are located which itself would permit the easement in question to be deemed obsolete.

[105]

[83] In my view there are no other material circumstances which would justify finding that the easement should be deemed obsolete. Whether or not it might be deemed obsolete should a proper boulder sea wall be constructed along the full length of Palm Beach so as to protect the Esplanade and allotments with frontages to it from erosion caused by a 1967 type storm need not be considered. No such wall has been constructed and in my view on the expert evidence in the absence of such a wall should there be further cyclonic disturbances (of which there have been relatively few over the last few years) there will be "a real risk" of erosion occurring to the existing remnant of the dedicated 20 metre wide Esplanade.

[106]

[84] The discretion given to a Court to extinguish the respondents' easement under s 181(1) depends upon the applicant proving either the fact prescribed by s 181(1)(a) or those prescribed by s 181(1)(b). If the facts prescribed in either one of those subsections are proved, the applicant must then also establish the fact prescribed in s 181(1)(d) of the Act to enliven the discretion under s 181(1)(a) to extinguish or modify the easement.

[107]

[85] In my view the applicant has failed to demonstrate that the respondents' easement ought be deemed obsolete under s 181(1)(a).

[108]

[86] I find it a little difficult without the assistance of authority to determine upon the facts of this case the import in s 181(1)(b) of the phrase -

[109]

[87] I would construe "impede" to mean "significantly impede".

[110]

[88] However I have difficulty in determining what is meant by "impede some reasonable user". Does "some" mean a particular reasonable user that the owner of the servient tenement wishes to make of its land? If one assumes that nearly all uses lawfully made of residential allotments would be categorised as "reasonable" it is hard to imagine that an easement of right of way would not impede to some extent many otherwise reasonable uses of that part of the land over which the easement extends. It could hardly be contemplated on the facts of this case that the use of the applicant's land within the confines of the respondents' easement for purposes such as the construction of a swimming pool or fountain or tennis courts or gardens or BBQ facilities would not all constitute "reasonable uses" of those residential allotments if the easement did not exist.

[111]

[89] On the facts of this case it could not be contended that the use of the applicant's land without the existence of the easement for the purpose of constructing on it either single unit residential dwellings or a multi storied apartment block within the constraints of the current town plan might amount to other than a reasonable user of that land. Undoubtedly the existence of the easement impedes to some extent the use of that land for many purposes within the contemplation of s 181(1)(b); that is why extinguishment of the impediment on the rights of the owner of a dominant tenement is narrowly limited by the terms of s 181(1)(b)(i). It is difficult to envisage a situation where the owner of a dominant tenement who did not derive any practical benefits of substantial value utility or advantage would ever be awarded compensation for any loss or disadvantage which might be suffered by him by reason of the extinguishment or modification of his easement. Perhaps the owner of a dominant tenement might be deprived of benefits of less than substantial value utility or advantage the loss of which upon extinguishment of the easement nevertheless would be sufficiently compensated by the award of compensation. These considerations however do little to assist in determining the ambit of the phrase "some reasonable user" in s 181(1)(b). "Impede" while connoting permanent obstruction to passing and repassing will extend also to hindering or partially obstructing from time to time. If for example the applicant permitted a caravan to be parked on the respondents' easement periodically obstructing than passing and repassing that would amount to one of the impediments contemplated by s 181(1)(b). If it were possible for the occupier to park his caravan lawfully between the eastern side of the easement and the front of the allotments one might have to determine whether the use of the land within the easement for that obstructing purpose was a "reasonable user" of at least the land within the easement albeit that parking such a caravan anywhere in the front yard of the applicant's allotments might, looking only at the 817m2 of land within those allotments and ignoring the existence of the easement be thought generally to amount to a reasonable user of the whole of those allotments of land.

[112]

[90] This is a consideration in determining whether the reasonable user of either the whole of the applicant's land or only that part of it within the confines of the respondents' easement requires that the area of land within that easement be used in redevelopment of that 817 m2 area of land (keeping in mind site coverage, and other constraints under planning legislation etc) or whether as the respondents contend in this case precisely or almost precisely the same building redevelopment may occur wholly to the west of the easement as may occur entirely straddling the easement.

[113]

[91] On the facts of this case, whatever the ambit of "some reasonable user", the applicant is able to redevelop its land without any significant impediment resulting from leaving unobstructed the respondents' easement, as well by constructing the proposed redevelopment entirely to the west of the easement as by constructing it straddling the easement.

[114]

[92] In any event my finding under s 181(1)(a) that the easement is not obsolete because it may and indeed probably will be used to pass and repass in the event of cyclonic disturbances of the sort that occurred in 1967 and 1974 in the absence of construction of a sea wall means that the easement of right of way entitles the respondents to that benefit which is of substantial value, utility and advantage to them within s 181(1)(b)(i) even if one disregards altogether the collateral or incidental benefit of preservation of residential amenity.

[115]

[93] If the respondents' easement be extinguished, the disadvantage of losing that right of passing and repassing in times of cyclonic erosion of the beach frontage to their allotment will be a disadvantage in respect of which the payment of money will not be an adequate compensation.

[116]

[94] With respect to the suggestion made that the easement might be relocated at its cost to the rear of the applicant's allotments there is no evidence that such a relocation would be permitted by the local authority. Moreover should the applicant or successor in title determine to construct in lieu of the currently proposed two single unit residential dwellings a six or seven storey high rise apartment block with onsite parking provided for each apartment, such a relocated easement although perhaps serving the same function as the existing one in times of cyclonic erosion of the Esplanade, would significantly hinder the respondent/s passing and repassing from their allotment to 27th Avenue if as suggested the same easement area would be used by the occupiers of the residential redevelopments on the applicant's land. In any event should the applicant so desire, occupiers' access to the permitted residential redevelopment on its land could be obtained from a driveway constructed over the respondents' easement and could be used by persons enjoying residential redevelopment on the applicant's land for access to and from that redevelopment as long as the use of land within the confines of the respondents' easement did not obstruct or impede their ability to pass and repass over it.

[117]

[95] To succeed in its application therefore it must prove the facts prescribed by s 181(1)(b)(i) which include that money will be adequate compensation for the loss or disadvantage (if any) which the respondents will suffer from the extinguishment or modification of their easement. As well it must establish under s 181(1)(d) that the proposed extinguishment or modification will not "substantially injure" the respondents entitled to the easement.

[118]

[96] With respect to s 181(1)(b) in my view the architectural evidence makes it quite clear that almost precisely the same single unit residential development proposed to be erected over the area of the easement if extinguished or relocated can be erected to the west of it. Only the most minor modifications of the plans advanced need be made. It seems clear also that precisely the same six or seven storey apartment block may be erected on the western side of the easement as may be erected straddling it.

[119]

[97] With respect to s 181(1)(b) I am persuaded that the existing easements do secure to the respondents a practical benefit of substantial value - being alternate access to the property in the event of a cyclonic event resulting in erosion of the sort that actually did impede access along the remnant of the Esplanade in 1974. Moreover in my view the maintenance of the residential amenity resulting from the unobstructed view to the south of the respondents' current seaside home is a practical benefit of substantial value (on the evidence about $100,000.00) and advantage to them.

[120]

[98] With respect to s 181(1)(b) I am not satisfied that money - even $100,000.00 - would be adequate compensation for the loss or disadvantage which they will suffer should they lose the collateral or incidental advantage of the preservation of that easement which preserves their unobstructed views to the south and south east. The respondents have owned their allotment and used it for family purposes for 20 years. They desire to retain the residential amenity that they have enjoyed and still enjoy by virtue of the unobstructed view to the south and south east when they retire and for as long as they wish to occupy their seaside house. They do not want their house altered or extended merely to accommodate the applicant's preferred development plans for its servient tenements. Those allotments may be developed reasonably to achieve the same residential density whether or not the respondents' easement is extinguished. The occupants of such residential redevelopment on the applicant's allotments will enjoy the same views to the east and south east as they and the respondents do at present whether the proposed (or other) redevelopment occurs upon or to the west of the easement. The respondents wish to retain the residential amenity of their seaside house which they have enjoyed since they acquired it 20 years ago. I am quite unpersuaded that payment of the cost of altering or extending their house to the east or granting them an easement giving access to the back of their property - which would neither improve nor maintain the residential amenity of their property at all in my view - would compensate them for impairment of their current residential amenity which they perceive to be one of the prime attractions of their seaside house.

[121]

[99] I adopt the approach of Powell J in Post Investments P/L v Wilson (1990) 216 NSWLR 598 at 644 [E-G].

[122]

[100] The applicant placed some reliance on Ex parte Proprietors of `Averil Court' Building Units Plan No 2001 [1983] QdR 66 where Matthews J considered an application for the extinguishment of an easement in effect conditional upon the granting of a different easement over the servient tenement some distance away from that sought to be extinguished. The debate before His Honour related to the applicant's proposed relocation of the easement. One of the objections taken was that the proposed relocated easement would not be as well situated as the easement sought to be extinguished, because in the event of a possible redevelopment of units on the dominant tenement (together with an adjacent site allotment owned by the respondents) it would not attract potential tenants to those units as would the easement sought to be extinguished because "they would be unable to see any beach access". On the brief report of the case I find it difficult to determine whether the inability of potential tenants "to see any beach access" would arise when they were within the property which might be redeveloped looking towards the beach or when they were looking towards the property of which they were potential tenants from the beach or from the Esplanade. One would have thought that the tenants of the possible unit redevelopment would have little difficulty in seeing beach access to their units from either within or outside the area upon which they were constructed. However that may be at 69 (F-G) His Honour observed that the objection raised by the respondent -

[123]

"... has doubtful relevance because the right conferred by the easement is a right of access. Mr. Tankard was concerned with the view which would be afforded along the easement in the event of its continued existence even assuming there was erected on the servient tenement a high rise building; but the loss of the view, it seems to me, is not something of which the respondent has a right to complain (cf. Masters v Snell [1979] 1 N.Z.L.R. 34, at p 42)."

[124]

"I was not impressed by the assertion by Mr. Tankard that such plans for the re-development of the respondent's land would be seriously disadvantaged and would probably need re-designing if the easement were to be so relocated and despite further assertion of Mr. Tankard that it is the respondent's intention to maintain the individual character and separateness of the parcels of land which the respondent owns, I cannot refrain from thinking that in the event of such relocation benefit will accrue to the respondent as the easement is moved south and more of the respondent's land will be closer to it."

[125]

[102] The order ultimately made by Matthews J was that conditional upon the relocation of the easement and as well the payment of $15,000.00 offered by the applicant (the basis for which payment does not seem to emerge from the judgment) the respondent's easement should be extinguished. It is unclear from the terms of the judgment on what basis compensation was assessed under s 181(1)(b) and (4) in the sum of $15,000.00 as the value of the easement to be extinguished for loss and disadvantage caused by that extinguishment/relocation of the easement over another part of the servient tenement by replacing it with another easement of up to double the width of that to be extinguished. A further condition for extinguishment was that all legal costs both in relation to the extinguishment proceedings and conveyancing costs involved in "relocating" the easement to be extinguished were to be paid by the applicant.

[126]

[103] In Averil Court although reference is made to the decision in Masters v Snell and to the passage that appears at page 42 of the judgment in that case, the terms of the legislation in New Zealand and Queensland concerning extinguishment of easements were not analysed. The only support which the applicant can derive from the decision in Averil Court is the rather ellepsis-like observation to the effect that "the loss of the view... is not something of which the respondent has a right to complain..." upon an application under s 181 to extinguish an easement on condition that a fresh easement of double the width of the extinguished easement be relocated "some few feet further than" the location of the easement sought to be extinguished (p 69 F).

[127]

[104] In Stannard v Issa [1987] AC 175 the Privy Council considered an application in Jamaica upon legislation modelled on s 84 of the Law of Property Act 1925 of the United Kingdom.

[128]

[105] The relevant part of the local legislation for their consideration was s 3(1)(b) which permitted the discharge or modification of a restrictive covenant on the ground that -

[129]

"(b) that the continued existence of such restriction or the continued existence thereof without modification would impede the reasonable user of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction, or, as the case may be, the continued existence thereof without modification..."

[130]

[106] Their Lordships at 186[C] cited with approval the "powerful dissenting judgment" of Carey JA who had held -

[131]

"An applicant for modification or discharge of a restrictive covenant where his ground is that provided for in section 3(1)(b) has a burden imposed on him to show that the permitted user is no longer reasonable and that another user which would be reasonable is impeded... Lord Evershed M.R. In re Ghey and Galton's Application [1957] 2 Q.B. 650, 633 expressed the view that in relation to this ground - `it must be shown, in order to satisfy this requirement, that the continuance of the unmodified covenants hinders, to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and to the purpose of the covenants'. Put another way, the restrictions must be shown to have sterilised the reasonable use of the land. Can the present restrictions prevent the land being reasonably used for purposes the covenants are guaranteed to preserve?"

[132]

"... I would make one final comment. If the evidence indicates that the purpose of the covenants is still capable of fulfilment, than in my judgment the onus on the applicant would not have been discharged."

[133]

"But it is, in their Lordships' judgment, entirely clear that in propounding his test, Lord Evershed M.R. was very far from suggesting, as Kerr J.A. seems to imply, that all that had to be shown was that there was some use of the land which was (a) reasonable and (b) impeded to a sensible degree by the restrictions sought to be modified. That submission, under legislation in all material respects similar to that with which this appeal is concerned, has been decisively rejected - and in their Lordships' view rightly rejected..."

[134]

"In the instant case there was no evidence whatever of any difficulty in developing the applicant's land or in disposing of it for development within the framework of the existing restrictions and certainly there was no suggestion that they had the effect of sterilising the land. All that was said was that the applicant's proposal was one which made a reasonable user of the land having regard to current pressures of population and current notions of optimum density."

[135]

[108] In my view the respondents would be "substantially injured" under s 181(1)(d) should they be deprived of the benefit of their residential amenity which they derive as a collateral or incidental advantage of maintaining their easement. I am unpersuaded that an award of any monetary compensation would make up to the respondents for the loss or disadvantage they would suffer if deprived of the enjoyment of their seaside house in the same position and with the same amenity and with the availability of alternate access to 27th Avenue - should it be required in the event of 1967 or 1974 style erosion of the Esplanade the front of their allotment which they have enjoyed for the last 20 years, should their easement be extinguished.

[136]

[109] There is no evidence as to any reduction in purchase price which the applicant achieved by reason of the existence of the respondents' easement the extinguishment of which it thinks desirable to permit redevelopment of its allotments for residential use for commercial gain in one, rather than another, reasonable way. This might have been relevant to the exercise of the overriding discretion under s 181(1) because the respondents have always stoutly maintained (to the knowledge of both applicant and its predecessor in title) that they were not willing to surrender their easement for whatever compensation might be offered. However this was not a matter pursued upon the application. The valuation evidence suggests that there may have been a substantial reduction but having regard to the way the case was conducted I give no further consideration to that matter.

[137]

[110] I will turn now to an issue debated at considerable length upon this application. That issue was the relevance of the loss of residential amenity to the respondents' improved allotment should their easement be extinguished, by reason of the deprivation of views and the reduction in amenity of the garden area to the front of their house.

[138]

[111] The applicant's contention revolves around the wording of s 181(1)(b)(i). Stated shortly this contention is that the only benefit to the respondents of their easement over the applicant's land is the right to pass and repass and that therefore this right is the only benefit "secured" to the respondents which can be "of substantial value utility or advantage to them".

[139]

[112] The applicant contends that the easement does not "secure" to the respondents the collateral or incidental advantage of the maintenance of their view and the privacy of their front garden; while it may prevent or at least hinder the type of redevelopment of its allotments proposed by the applicant while it exists, and thus indirectly prevent impairment of the residential amenity it only "secures" to them the benefit of the right to pass and repass.

[140]

[113] As authority for this proposition the applicant relies upon the judgment of Chilwell J in Masters v Snell [1979] 1 NZLR 34 at 41-2. That was a case where the respondent, to preserve an amenity his dwelling house enjoyed upon sale of part of his land for residential development, reserved an easement to "go pass and repass". The principal object of reserving the easement of its shape and size was to preserve aspects of the existing amenity of his residential allotment. That same object may have been achieved one might think by effecting a "battle-axe" style of subdivision. Perhaps there were subdivisional or other planning constraints which prevented use of this common subdivisional technique.

[141]

"He cannot add to the benefits of the grant such things as an attractive approach or with the benefit of a view. The "benefit" "secured" to him by the grant is the right to "go pass and repass"..."

[142]

"In that sense Mr Snell has the practical use of the right of way. ... He uses the right of way for the many purposes outlined in his affidavit including the preservation of the charm of his entrance and the preservation of his view. But the majority of these benefits are incidents which go beyond the grant. He has no legal right other than "to go pass and repass": that is the extent of his theoretical benefit. He cannot purport to engraft practical benefits beyond the scope of his legal benefits. Anything going beyond the right "to go pass or repass" is not "secured" by the grant".

[143]

[115] The legislation considered by Chilwell J although relating to the extinguishment of easements and restrictive covenants is not in the same terms as s 181 of the Property Law Act 1974 (Qld).

[144]

[116] Under the New Zealand legislation s 127(1)(a) provided inter alia -

[145]

"...that the continued existence [of the easement or restriction] would impede the reasonable user of the land subject to the easement or restriction without securing practical benefit to the persons entitled to the easement or to the benefit of the restriction or would, unless modified, so impede any such user."

[146]

Sub section 1(c) provided -

[147]

"That the proposed modification or extinguishment will not substantially injure the persons entitled to the benefit of the restriction. ..."

[148]

[117] The first point of difference between the two pieces of legislation is that the Queensland legislation talks of the existence of the easement impeding "some reasonable user of the land subject to the easement" while the New Zealand legislation talks of the easement or restriction impeding "the reasonable user of the land subject to the easement".

[149]

[118] Under s 181(1)(b)(i) the Queensland legislation refers to the easement not securing "to persons entitled to the benefit of it any practical benefits of substantial value utility or advantage to them" while the New Zealand legislation refers to the continued existence of the easement "without securing practical benefit to the persons entitled to the easement."

[150]

[119] In Masters v Snell the word "securing" in the New Zealand legislation was construed to have effect in the same sense as a loan is "secured" on property by a mortgage or bill of sale. However unless compelled by binding authority to do so I would not so construe the word "secure" in s 181(1)(b)(i) in that sense. This easement is merely the respondents' registered interest in the applicant's land, which in the present case gives them a right to enjoy the benefit of "passing and repassing" over it. The Queensland section differentiates between "the benefit of" their easement to which the respondents are entitled, i.e. the right which that interest in the applicant's land gives them and the "practical benefits of substantial value utility or advantage" which they enjoy as holders of that right.

[151]

[120] In the shorter OED "secure" is defined to mean inter alia "To make free from care or apprehension" or "to make (a person) feel secure...against some contingency", "to make secure or safe", "To make secure or certain; `to place beyond hazard'". These definitions all convey the notion of protection generally however "secured" - whether by walls, guards locked doors etc.

[152]

[121] In another sense the word is defined to mean "To make (a creditor) certain of receiving payment, by means of a mortgage, bond, pledge or the like", or "To make the payment of (a debt, pension, etc) certain by a mortgage or charge upon certain property". These definitions convey the notion of acquiring the right of recourse to property of value to obtain payment of money due from a debtor by its sale.

[153]

[122] While Chilwell J adopted or construed "secure" in the New Zealand legislation in the sense of a mortgage type security he did so having regard to the terms of the legislation before him.

[154]

[123] The Queensland legislation as I have indicated is in terms different from the New Zealand legislation. The relevant section in New Zealand refers only to "without securing practical benefit to the persons entitled to the easement" whereas the Queensland legislation refers to an easement which "does not secure to persons entitled of the benefit of it any practical benefits of substantial value utility or advantage to them".

[155]

[124] In my view the word "secure" in s 181(1)(b)(i) ought not be construed in the same sense as "secure for payment of a debt"; rather it should be construed in the sense of "provide", "protect" or "safeguard" practical benefits. An easement is not in the nature of a mortgage or a bill of sale. It is simply a property right which in the present case if not obstructed will provide or safeguard to the owners of the dominant tenement all benefits of the unimpeded exercise of that right including those collateral or incidental to that of passing and repassing. On the facts of this case should their easement be extinguished clearly the respondents will lose the benefit not merely of alternate access in times of cyclonic erosion of the Esplanade, but also of the residential amenity preserved incidentally by the maintenance of their easement free of obstruction by a building or buildings and this safeguard or protection unless overcome will prevent the applicant from constructing buildings over it which would significantly diminish the residential amenity of the house on their allotment.

[156]

[125] This residential amenity of the respondents' house is currently protected by s 58 of the Standard Building Regulations 1993 which provides -

[157]

"A development application for building work over land in an easement must not be approved unless the holders of registered interests in the easement consent to the building work."

[158]

[126] In my view upon a proper construction of "secure" in s 181(1)(b)(i) all practical benefits of their easement which are of substantial value utility or advantage to the respondents are protected or "secured" by the easement which gives them as owners of the dominant tenement the right to pass and repass. The right to pass and repass is only one benefit - albeit perhaps the principal or dominant benefit - and that principal or dominant benefit does not constitute the whole range of "practical benefits of substantial value utility or advantage" to the exclusion of other benefits which are collateral or incidental to the maintenance of the unobstructed easement. A contrary conclusion would render the phrase otiose and tautological.

[159]

[127] In my judgment preservation of an unobstructed view is itself a practical benefit of substantial value utility or advantage - vide Gilbert v Spoor & Ors [1983] 1 Ch 27 at 32-33 per Eveleigh LJ.

[160]

[128] It is unnecessary to speculate as to whether one of the purposes of locating the 3.6 metre wide easement so far to the west of the frontages of the dominant and servient allotments was to achieve a set back to maintain the perceived amenity which would result to the dominant tenements - a benefit which the respondents still seek to preserve. No evidence was called from anybody who might be able to relate why the easement was so located rather than being located within six metres of the frontages of those allotments. Perhaps it was thought at the time that erosion might well take some part of the eastern end of the allotments. Alternatively it may have been an attempt to achieve a set back of residential development to preserve for the common benefit of each allotment affected unobstructed beach front views to the north east and south of the buildings on the allotments to the west of the easement. It was the owners of each of the servient tenements of course who chose the precise location of the easement. Perhaps both considerations played a part in locating the easement over the servient tenements. It is clear of course that the law does not recognise an express grant of an "easement for prospect" - vide the article by G I Baalman in 16 ALJ 126. It is unnecessary to consider efforts which have been made by conveyancers over the years both successfully and unsuccessfully to protect views. On my reading of s 181(1)(b)(i) however I can find nothing to indicate that preservation of residential amenity whether with respect to views or otherwise, may not be one of the "practical benefits" of "substantial value utility or advantage" resulting from the maintenance of the respondents' unobstructed easement.

[161]

[129] In my view the applicant has failed to show that the respondents' easement ought be extinguished or relocated pursuant to s 181(1)(b).

[162]

[131] I order that the applicant pay to the respondents the costs of and incidental to the application to be assessed on a standard basis.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (162 paragraphs)

Parties

Cases Cited (1)