GORDON & ANOR v BODY CORPORATE STRATA PLAN 3023 & ANOR [2004] VSC 359

2. The plaintiffs in this matter are the registered proprietors of Unit 1 on Plan of Strata Subdivision RP3023. The relevant subdivision was effected in May 1972.

5. Unit 1 comprises part of an L-shaped allotment with an extended frontage to Kent Avenue in Brighton to the south and a western abuttal to the foreshore reserve of Port Phillip Bay. At the date of subdivision the allotment contained a two storey residential building comprising five apartments and generally running east-west generally parallel to Kent Avenue, five garages to the north of this building and a boat shed to the west of this building adjacent to the foreshore reserve. The subdivision then effected is schematically described in the plan set out below.

11. Unit 1 comprised two components. The first of these was the western portion of the pre-existing main building having a lower boundary within the floor of the ground floor of such building and an upper boundary within the ceiling of such building. Secondly, Unit 1 comprised the portion of the site diagonally hatched on the plan (including the western portion of the site) having as its lower boundary "that part of the site" which is within the vertical or near vertical boundaries of the unit, and having as its upper boundary 20 feet above that part of the site.

14. At the time of subdivision the Strata Titles Act 1967 defined "site" to mean "the ground surface of the land described in a strata subdivision".

17. The title further records that the common property is all the land within the parcel except the land in Units 1 to 10 inclusive. The effect of this is that the land beneath ground surface level of the hatched portion of lot 1 constitutes part of the common property. The site levels in issue were established by a survey plan tendered in evidence and which formed the basis of a subsidiary argument to which I shall return.

20. The current proceeding has its origin in the desire of the plaintiffs to erect an extension to the existing building comprised in Unit 1. The extension would comprise one level of residential extension to the west of and adjacent to the ground floor of the existing residential building, a roof deck upon the western portion of this extension, and a lower level garage and storage area beneath the proposed "ground floor" extension together with an external swimming pool, terrace and adjoining garden areas.

23. A planning permit has been obtained for the proposed development following a contested hearing before the Victorian Civil and Administrative Tribunal ("the Tribunal"). The parties before the Tribunal included the second defendant as an objector. The Tribunal found that the proposal would not result in an unacceptable impact upon adjoining properties in terms of loss of view, neighbourhood character, visual privacy, overshadowing, visual bulk and acoustic considerations.

26. The Tribunal's decision records that counsel who appeared for objector owners of other units (including the second defendant) acknowledged "that the digging of foundations below the surface of the rear yard for the extensions would have no impact on any other unit or any services or facilities provided to that unit."

29. The decision sets out an argument that was put to the Tribunal on the basis of the decision of Smith J in Port Phillip City Council v Hickey[1] to the effect that no permit should be granted without the consent of the body corporate. Ultimately the Tribunal concluded:

"From the evidence and submissions I find that the proposed extensions do not intrude below the site, namely the natural service of Lot 1, except for foundations and the provisions of services such as water and drainage below the ground as may be necessary, and accordingly I should not refuse the grant of a permit on the basis of Hickey. On this material it is evident no consent of the body corporate is required to the proposal, the necessity for such consent being the basis on which Mr Justice Smith considered the interests of other unit holders of relevance to a planning permit application, leading to the permit application being futile. Further The Tribunal does not have jurisdiction over body corporate rights, and the other unit holders have their right to take the issue to the appropriate Court."

33. Subsequent to the planning permit a building permit has also been obtained which describes the works proposed by way of detailed plans.

(a) of services within common property adjacent to and below Unit 1; and

(b) of foundations and in particular footings in the common property below Unit 1.

42. The second defendant has contended that such works cannot proceed without the consent of the four unit holders other than the plaintiffs. At the hearing before me, however, objection was taken only to the construction of footings within the common property.

45. The footings in issue are described in structural plans. They comprise concrete strip footings which would intrude into the subsoil some 500 millimetres. Further, it is apparent that in order to found them upon natural sands having the bearing capacity specified in the structural plans, somewhat deeper footings may be required at some points. In addition it is apparent that excavation of cavities for the footings will necessarily involve some incidental interference with the subsoil below and around the footings.

49. The plaintiffs seek a declaration that pursuant to s.12 of the Subdivision Act 1988 there are implied over the land affected by the body corporate on Plan of Strata Subdivision RP3023 all easements and rights of:

(i) support; and

(ii) passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission);

necessary for the works described in the Planning Permit issued pursuant to the decision of the Tribunal referred to above and further described in the building permit.

55. The relevant certificates of title expressly provide that title to the common property is subject to:

"Any encumbrances created by Section 98 of Transfer of Land Act 1958 or Section 12 Strata Titles Act 1967 and any other encumbrances shown or entered on the plan set out ... below."

59. Section 12 of the Strata Titles Act 1967 relevantly provided:

"12(1) The common property and each unit on a registered plan shall by virtue of this section have as appurtenant thereto all such rights of support, shelter and protection, and for the passage or provision of water, sewerage, drainage, gas, electricity, garbage, air and all other services of whatsoever nature (including telephone, radio and television services) over the parcel and every part thereof as may from time to time be necessary for the reasonable use or enjoyment of such common property or unit. (2) The common property and each unit on a registered plan shall by virtue of this section have as appurtenant thereto - (a) a right to the full free and uninterrupted access and use of light to or for any windows doors or other apertures existing at the date of registration of the plan and enjoyed at that date; and (b) a right to maintain overhanging eaves existing at the date of registration of the plan - over the parcel and every part thereof. (3) The rights created by this section shall be easements, and shall carry with them all ancillary rights necessary to make them effective: Provided that any person exercising such rights shall make good all damage done in the exercise thereof."

63. By reason of s.41 of the Subdivision (Miscellaneous Amendments) Act 1991, Schedule 2 of the Subdivision Act 1988 provides:

"2. (1)(e) the easements or rights implied over a strata or cluster plan under section 12 of the Strata Titles Act 1967 or section 20 of the Cluster Titles Act 1974 are extinguished; (f) there are implied over the land in a strata or cluster plan the easements referred to in section 12(2) of this Act; (g) a certificate of title to a lot on a strata or cluster plan has effect as if any reference to section 12 of the Strata Titles Act 1967 or section 20 of the Cluster Titles Act 1974 were a reference to section 12 of this Act."

67. Section 12 of the Subdivision Act 1988 provides:

"(2) Subject to subsection (3), there are implied - (a) over - (i) all the land on a plan of subdivision of a building; and (ii) that part of a subdivision which subdivides a building; and (iii) any land affected by a body corporate; and (iv) any land on a plan if the plan specifies that this subsection applies to the land; and (b) for the benefit of each lot and any common property - all easements and rights necessary to provide - (c) support, shelter or protection; or (d) passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or (e) rights of way; or (f) full, free and uninterrupted access to and use of light for windows, doors or other openings; or (g) maintenance of over hanging eaves - if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property. (3) A plan may provide that some only, or none, of the easements and rights mentioned in subsection (2) are implied over all or any of the land on the plan. ... (4) Any person, Council or referral authority entitled to use an easement can gain access to that easement over the common property and any lot for the purpose of using the easement and must repair any damage caused in gaining access to or using the easement. ... (8) The easements specified on a plan or implied by subsection (2) are in addition to easements under section 98(a) of the Transfer of Land Act 1958. (9) Section 98(b) of the Transfer of Land Act 1958 does not apply to a plan registered under this Act."

71. The plaintiffs contend that the easement of support which is in issue is "necessary for the reasonable use and enjoyment of Unit 1" and "is consistent with the reasonable use and enjoyment of the other lots and the common property."

(1) that any right of support created upon subdivision is necessarily limited to buildings then in existence, (the "primary submission");

(2) that development in the form of the currently proposed building was not in the contemplation of the subdivider at the time of subdivision and could not for that reason be regarded as a reasonable use of Unit 1;

(3) the easement claimed is not in any event necessary for the reasonable use and enjoyment of Unit 1;

(4) the proposed building would not be consistent with the reasonable use and enjoyment of the other lots and the common property; and

(5) further, and in any event, the declaration should not be made with respect to the plans before the Court or in other circumstances of the current application.

The Common Law

80. The second defendant submits that s.12 should be construed in the context of pre-existing common law doctrines.

83. The right to support of land from neighbouring land has long been recognised as a natural right attaching to real property and does not need to be created by easement. The natural right to support with respect to one plot of land as against adjoining land does not however extend to a right to support of buildings. As Lord Selborne said in Dalton v Henry Angus& Co[2]:

"Support to that which is artificially imposed upon land cannot exist ex jure naturae, because the thing supported does not itself so exist; ... "

87. In Kebewar Pty Ltd v Harkin[3] McHugh JA commented at 740:

"Much criticism has been directed at the inappropriateness under modern urban conditions of the rule in Dalton v Henry Angus & Co. But it is a rule that has been referred to with tacit approval by the High Court on more than one occasion. If the rule in Dalton v Henry Angus & Co is to be overturned, it can only be done by the High Court."

91. It follows that at common law the right to support a building against adjoining land must be founded upon grant, express or implied, or upon prescription.

94. An implied grant will occur in the circumstances stipulated in Wheeldon v Burrows[4] in which Thesiger LJ expressed the judgment of the Court as follows:

"We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz, that a grantor shall not derogate from his grant."

98. This decision settled the meaning of "the swaying controversy which had existed since Palmer v Fletcher[5]."[6]

101. The first rule in Wheeldon v Burrows gives rise to an implication arising from circumstances external to the instrument which creates the relation of grantor and grantee. As Bowen LJ said in Birmingham, Dudley & District Banking Co v Ross[7] in terms approved by Isaacs J in Nelson v Walker[8]:

"It is not an obligation that arises simply from the interpretation of the deed as read by the light of the circumstances outside. It is a duty that arises from the outside circumstances having regard to the relation of grantor and grantee which the deed creates. Supposing you take the deed alone, no amount of construction could evolve from the deed itself the protection which the grantee of the deed desires ... It is only by looking outside the deed that the implication of a duty arises."

The Ambit of the Right Created by Section 12(2) with Respect to Easements of Support

106. The second defendant's primary submission goes to the ambit of the right created by s.12(2) of the Subdivision Act. It is submitted firstly, that the legislature should be presumed not to have intended to alter common law doctrines or proprietary rights in the absence of clear and specific words. Secondly, it is submitted that the easements implied pursuant to s.12(2) should be understood to be governed by circumstances existing at the time of subdivision including in particular the limitations upon an implied grant of easement stated in the first rule identified above in Wheeldon v Burrows.

109. In my view the phrase "necessary for the reasonable use and enjoyment of the lot" is not to be read down as the second defendant contends. In summary:

(a) the plain language of the section contains no proviso of the type suggested;

(b) conversely, the section expressly qualifies the right granted by reference to a consideration not found at common law;

(c) insofar as the phrase reflects the language of Wheeldon v Burrows it should be interpreted in the manner in which the same phrase has been interpreted in s.98 of the Transfer of Land Act 1958 and its predecessors;

(d) the terms of s.12 of the Strata Titles Act 1967 pursuant to which the subdivision occurred do not support the plaintiff's construction;

(e) the history of amendment to the Subdivision Act does not support the plaintiff's construction; and

(f) the restricted nature of rights of support recognised at common law in the absence of an easement does not justify reading down the right in issue.

The Plain Language of the Section

115. The section does not in terms express the qualifications for which the second defendant contends. Indeed, insofar as it implies all easements and rights necessary to provide certain outcomes, it uses prospective language rather than retrospective language such as "maintain". In my view, the plain meaning of this section is that for which the plaintiffs contend.

118. Although contained in somewhat different legislative schemes and using slightly different phraseology both New South Wales and Queensland legislative provisions have been understood to apply to circumstances from time to time when provision is made for the grant of easements "reasonably necessary for the effective use and development of the land".[9] Such understanding reinforces my conclusion as to the plain meaning of the section with which I am concerned.

121. For the sake of completeness I should record that it was not submitted that the phrase "necessary for the reasonable use and enjoyment of the lot" reflected a requirement that the easement be essential or absolutely necessary to the use of the land in the sense required for reservation of an easement of necessity in the strict sense. In such cases as Stanley LJ stated in Union Lighterage Co v London Graving Dock[10] an easement of necessity:

" ... means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property."

126. Whilst the section does not express the qualifications for which the second defendant contends it is to be noted that conversely the section does expressly qualify the implied grant of reasonable rights by reference to considerations relating to the use of the balance of the land. It does so by considerations which are prospective not retrospective. Where the legislature has imposed an express requirement that the right in issue be "consistent with the reasonable use and enjoyment of the other lots and the common property", it is difficult to discern an intention that a further implied qualification be imposed by reference to the pre-existing use of the balance of the land.

130. The phrase "necessary for the reasonable use and enjoyment of the lot" comprises part but part only of the words used by Thesiger LJ in Wheeldon v Burrows. In Bowman v Taylor[11] Lowe J considered the provisions of s.12(2) of the Transfer of Land Act 1928 which read:

"A transfer of an allotment of land by reference to a plan of subdivision deposited with the Registrar shall be deemed to include and shall be deemed always to have included a grant therewith of all such easements of way and drainage over the land appropriated or set apart for those purposes respectively on the plan of subdivision as may be necessary for the reasonable enjoyment of the allotment transferred."

134. As in the present case it was submitted the words "necessary for the reasonable enjoyment" were words used in the classic exposition of what rights arose by way of apparent and continuous use of quasi-easements when the owner disposed of part of what had previously been an entire property. It was argued that in such cases regard was always had to the circumstances existing when the grant was made and the same test must be taken to have been intended by the legislature when it adopted this phrase.

137. Lowe J observed that the words relied on are only a portion of the sentence used in Wheeldon v Burrows and that the rest of the sentence is "and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."[12] He further stated:

"The whole doctrine rests on the assumption that it is the intention of the parties that after the severance the use of the severed part, so far as the quasi-easement is concerned, shall continue as when in the ownership of the grantor ... That presumption cannot, in my opinion, arise when the very purpose of the subdivision is, as in this case, to change the nature of the use in future of the subdivisional blocks from what had been their use prior to the subdivision. Moreover the implied grant in such a case arises, as Isaacs J shows in Nelson v Walker [1910] HCA 27; [1910] 10 CLR 560 at pp.582-583 with a wealth of authority, not from the grant itself, but from circumstances outside the conveyance. The subsection with which I have to deal imputes to words in a particular document a special meaning, and, in my opinion, I have to construe that document with its statutory implication in order to determine what rights it confers. What then is the extent of the easement of way which is necessary for the reasonable enjoyment of Lot 20? In the first place, Lot 20 is not to be understood as limited to any particular part, such as that fronting York Street; it means, in my opinion, every part of Lot 20, the rear no less than the front. In my opinion, 'reasonable enjoyment' involves, too, the use of Lot 20 for any purpose which the law permits and by any means the law permits."

141. This decision was applied in Stathoulis v O'Connor[13] by Gray J.

144. Further, it was expressly approved by the Court of Appeal in Shelmerdine v Ringen Pty Ltd[14] in which Brooking J with whom Marks and Hedigan JJ agreed, stated:

"Nearly 60 years have elapsed since this decision. It has never, so far as I am aware, been questioned. It was applied by Gray J. in Stathoulis v O'Connor ... It should be approved by this court now. On this approach, easements of way, to be enjoyed both with and without vehicles, were created in favour of lots 5 and 7. The view that the right of way conferred by the section is not limited by conditions at the time of the transfer is reinforced by the reference which the section now makes to any building or part of a building at any time on the lot."

148. In Shelmerdine v Ringen the Court was concerned with s.98 of the Transfer of Land Act 1958 which now provides:

"98. Easements arising from a plan of subdivision The proprietor of an allotment of land shown on an approved plan of subdivision or a lot shown on a registered plan shall be entitled to the benefit of the following easements which shall be and shall be deemed at all times to have been appurtenant to the allotment or the lot, namely - (a) all such easements of way and drainage and for party wall purposes and for the supply of water gas electricity sewerage and telephone and other services to the allotment or the lot on over or under the lands appropriated or set apart for those purposes respectively on the plan of subdivision as may be necessary for the reasonable enjoyment of the allotment or the lot and of any building or part of a building at any time thereon; and (b) in the case of the subdivision of a building, all such additional easements of way drainage support and protection and for the supply of water gas electricity sewerage and telephone and other services to the allotment or the lot on or over the other allotments or other lots in the subdivision as may be necessary for the reasonable enjoyment of the allotment or the lot as part of that building or any building at any time situated on the land in the subdivision - in all respects as if all such easements have been expressly granted."[15]

152. In Bowman v Taylor the Court was concerned with agricultural land which was subdivided for residential development and use. In Shelmerdine v Ringen it was concerned with land comprising a bush covered cliff forming part of a subdivision for residential development and use. In the present case it is submitted the subdivision was concerned with land already used for residential purposes. It created Unit 1 in a form which contained an existing dwelling and it is said it cannot be inferred that residential development of the western portion of the unit was intended.

155. The distinction referred to may well be relevant to the factual conclusion as to what constitutes reasonable use and enjoyment of Unit 1 in the particular circumstances of this case. It cannot however govern the potential ambit of s.12(2). The analysis in Bowman v Taylor strongly supports the view that the section is not to be read as including the absent words from the statement of the first rule in Wheeldon v Burrows "and which have been and are at the time of the subdivision used by the owners for the entirety for the benefit of the lot created".

158. The better view is that as Lowe J concluded in Bowman v Taylor, the adoption of part only of the language of Wheeldon v Burrows is deliberate. Further, as I have stated this view is supported in the present case by the imposition of an express statutory qualification upon the implied grant of easements and rights, which qualification is expressed by reference to factors other than those specified in Wheeldon v Burrows. Both the phrases "necessary for the reasonable use and enjoyment" in the implied grant and "consistent with the reasonable use and enjoyment" in the qualification are to be understood prospectively.

The Terms of Section 12 of the Strata Titles Act

162. The background to the provisions of the Strata Titles Act 1967 is usefully set out in Chapter XV: Strata Titles of the third edition of The Law Relating to the Sale of Land in Victoria which chapter is written by the Hon. Robert Brooking.

165. It might be thought that the potential to create titles in horizontal strata would provide the most dramatic reason to revise the common law rules relating to rights of support with respect to buildings.

168. For present purposes it is sufficient to repeat that s.12 of the Strata Titles Act 1967 provided:

"12(1) The common property and each unit on a registered plan shall by virtue of this section have as appurtenant thereto all such rights of support, shelter and protection, and for the passage or provision of water, sewerage, drainage, gas, electricity, garbage, air and all other services of whatsoever nature (including telephone, radio and television services) over the parcel and every part thereof as may from time to time be necessary for the reasonable use or enjoyment of such common property or unit." (My emphasis.)

172. It follows that at the time of subdivision of Unit 1 an appurtenant easement was created with respect to all such rights of support "as may from time to time be necessary for the reasonable use or enjoyment of such ... unit." This provision materially supplemented the common law and provided a context other than the common law for the implementation of the Subdivision Act 1988. The terms of the Strata Titles Act do not support the view that there was a legislative continuation of notions of continuous and apparent enjoyment by way of precondition to the creation of implied easements of the type in issue before me.

The History of the Subdivision Act 1988

176. The sequence of amendments to the Subdivision Act 1988 is canvassed by McDonald J in Daryhan Pty Ltd v Seadog Pty Ltd[16]. For present purposes it is again sufficient to record that as originally enacted the Act provided by s.12(2) as follows:

"(2) An easement or right is implied and attached to a lot and the common property of a building subdivision if - (a) it provides - (i) support, shelter or protection; or (ii) passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or (iii) right of carriageway with or without vehicles over areas marked on the plan for the purpose; or (iv) full, free and uninterrupted access to and use of light for windows, doors or other openings enjoyed at the time the plan is registered; or (v) maintenance of overhanging eaves existing when the plan is registered; and (b) it is necessary for the reasonable use and enjoyment of the lot or the common property; and (c) it is consistent with the reasonable use and enjoyment of the other lots and the common property of the subdivision; and (d) where it is attached to the common property, the benefit is enjoyed by a lot owner who is a tenant in common in that common property." (My emphasis.)

180. The process of subsequent amendment has deleted the express requirements for certain classes of easement to be founded in circumstances which were enjoyed or existed at the time the plan of subdivision is registered.

183. It is impossible to discern in this process of amendment an intention that all the categories of easements and rights now provided for in s.12(2) be understood to be subject to such an implied requirement. The terms and history of the 1988 Act suggest rather that if s.12(2) were intended to have the effect for which the second defendant contends, the section would contain express words of limitation by reference to circumstances which exist at the time the plan is registered.

187. It is further contended that the easements and rights necessary to provide support which are created by s.12(2) of the Subdivision Act 1988 are restricted to negative rights with respect to buildings existing at the date of subdivision. It follows from the above analysis, however, that there is no reason in principle why easements and rights of support should not be understood to extend to the future provision of support for buildings necessary for the reasonable use and enjoyment of the lot.

(a) is the proposed development a reasonable use and enjoyment of Unit 1;

(b) is the easement in issue necessary for the proposed use;

(c) is the easement consistent with the reasonable use and enjoyment of the other Lots and the common property?

Reasonable Use and Enjoyment of Unit 1

197. The second defendant submits that development of the general kind now in issue was not contemplated at the time of subdivision and should not be regarded as reasonable use and enjoyment of Unit 1 within the meaning of the statute for that reason. I am satisfied, however, that it can be inferred that the subdivider contemplated that development complementing or extending the existing dwelling might take place within the western portion of Unit 1. In the first place it is apparent from the existing conditions plan upon the registered plan of subdivision that at the date of subdivision the western portion of Unit 1 already contained a structure, the foundation of which protruded into common property, namely the boat shed which still exists and is shown in photographs tendered in evidence. Secondly, the envelope created by Unit 1 above natural ground level is 20 feet in height. This height complements the existing two storey building and substantially exceeds what would be necessary for use as what counsel for the secondnamed defendant characterised as "an attractive foreshore fronting garden." The height would be entirely arbitrary if it were not fixed in order to constrain additional building to an appropriate scale. Thirdly, the base of the western portion of the envelope comprising Unit 1 was fixed at ground level at a time when s.12 of the Strata Titles Act expressly provided for easements of support "as may from time to time be necessary." It may be presumed that the unit was dimensioned with knowledge of the relevant legislation.

200. Further, it is strongly arguable (although given my above conclusion it is unnecessary to decide) that the subdivider simply contemplated that Unit 1 as defined might be used for any reasonable lawful use in the future and provided an envelope adjacent to the existing two storey building within Unit 1 as an adjunct to such building with open ended potential.

203. The secondnamed defendant further submits that the plaintiffs' particular proposal is not reasonable as it fundamentally alters the nature of the apartment complex. It is said that it would destroy the "feeling of openness and sense of place" within which the existing apartment block sits and would create a situation where Unit 1 dominates the apartment block.

206. I do not accept this submission. In my view the proposed use and development of Unit 1 is reasonable given its context as demonstrated by the site plan, the plan of subdivision itself and the photographs tendered to the Court. This context includes the existing boat house structure within Unit 1 and other existing developments. The development proposed is not unreasonably disproportionate to the scale of the existing apartment building and will have no apparent direct impact upon the amenity of the other units. In reaching this conclusion I have had regard to the fact of the grant of a planning permit and consideration by the Tribunal of amenity concerns expressed on behalf of objectors including the second defendant. I have not, however, treated this aspect of the matter as conclusive of the question of reasonableness. The Tribunal's decision is consistent with the view I have otherwise reached on the whole of the evidence as to the nature of the proposed development and its relationship with the balance of the land and development within the subdivision.

210. It is also submitted on behalf of the second defendant that the proposed easement is not necessary for the use proposed. In particular it is submitted that it would intrude into the common property to a greater extent than would a transfer slab system of foundations.

213. I accept the evidence adduced on behalf of the plaintiffs that the cost of a transfer slab system would be prohibitive and that some intrusion would be necessary into the subgrade even if a transfer slab system were utilised for the proposed use and development. The evidence to this effect was not challenged by cross-examination and the plaintiffs' affidavit material adequately answers criticism put by way of affidavit material filed on behalf of the secondnamed defendant in this regard.

216. The proposed development cannot simply float above ground level and once it is accepted that it must have foundations the proposed system of support is fairly characterised as necessary for the reasonable use and enjoyment of Unit 1.

219. The present case is to be distinguished from that of Burford v Wichlinski[17] where it was clear from the evidence that there were two feasible means of providing sewerage and drainage to a lot, one only of which necessitated the easement claimed.

222. As was concluded in Stathoulis v O'Connor the easement here in issue is not "a mere matter of convenience."[18]

Impact of the Easement Upon the Reasonable Use and Enjoyment of Other Lots and the Common Property

226. It is further submitted on behalf of the second defendant that the strip footing system proposed by the plaintiffs would be inconsistent with the reasonable use and enjoyment of the other lots and the common property. In particular it is submitted that it would make any proposal for meaningful use of the common property beneath Unit 1 significantly more expensive.

229. It is clear that the proposed strip footings would not impact on any existing use of the common property below Unit 1. Nor would it affect the existing use of the other units. It is also clear that any construction within Unit 1 would, insofar as it rested on the subgrade, materially increase the cost of any future development within that subgrade. This would be so whatever footing system were adopted. In my view the proposed strip footings cannot be said to constitute material intrusions into the subgrade themselves or to be likely to materially constrain any future use of that subgrade. The only feasible use of the subgrade suggested on behalf of the secondnamed defendant was the possible future construction of storage facilities.

232. It follows that I am satisfied that as a matter of fact the easement in issue is necessary for the reasonable use and enjoyment of the plaintiffs' unit and is consistent with the reasonable use and enjoyment of the other lots and common property within the subdivision.

236. The second defendant next contends that no declaration should in any event be made on the terms sought by the plaintiffs.

239. It is said firstly, that each of the owners of the units should be named as defendants. It is to be observed, however, firstly, that s.12(2) of the Subdivision Act relevantly implies an easement over "any land affected by a body corporate". Secondly, s.28 provides:

"... when a plan providing the creation of one or more bodies corporate or containing common property is registered - (a) each body corporate for which the plan provides is incorporated; and (b) the owners of the specified lots become the first members of the body corporate; and (c) the owners for the time being of the lots are the members of the body corporate while they are owners; and (d) any common property vests in those owners as tenants in common in shares proportional to their lot entitlement; and (e) the Registrar must create folios of the Register for any common property in the name of the body corporate as nominee for those owners but must not produce a certificate of title for those folios, and may require submission of and cancel any existing certificate of title for common property."

243. In my view it is not necessary that each member of the Body Corporate be named as a defendant. It stands as nominee for the owners for the time being of the lots. Further, and in any event, I am satisfied that each of the owners of the lots has notice of these proceedings and it would not be inequitable to make the declaration sought.

246. It is next submitted that the plan upon which the plaintiffs rely would allow intrusion of structure other than footings below natural surface level. It is said the floor of the building rather than just the support for the building would intrude below natural surface level.

249. This is a question of contested fact turning upon the interpretation of the site survey plan which was tendered in evidence and the building permit drawings.

252. The plaintiffs rely upon the express opinions of an architect and structural engineer that the proposal does not so intrude. These opinions were not challenged in cross-examination. It is not open to the Court to form its own expert opinion as to the meaning of abbreviations such as "SSL" upon the survey plan or to draw inferences from such plan as to the intersection of the proposed floor levels with natural surface levels.

255. Having said this, it is desirable that the effect of any declaration be clear and fully resolve the issues between the parties. It is apparent from the contentions put forward on behalf of the second defendant that if the floor levels proposed do intersect with natural surface level they do so to a limited degree only. It is the plaintiffs' position that in any event the floor levels in both the areas challenged by the second defendant are capable of further modification within the building envelope otherwise described in the plan. In the circumstances the declaration sought by the plaintiffs can be framed to include an express qualification:

"but not extending below existing natural ground surface level save for such necessary support and services."

259. It is next submitted on behalf of the second defendant that the building works proposed cannot be constructed without the consent of the Body Corporate, because they involved the creation of openings in walls subject to title divided along the median in which the Body Corporate has an interest as to part.[19] In my opinion, only one such wall is affected. Neither the western wall of the building within Unit 1 nor the western boundary of Unit 1 adjoin common property. The southern wall of the existing building with Unit 1 does, however, adjoin common property. Window openings within it cannot be altered without the consent of the Body Corporate. It is intended to alter the form of one such opening but this proposal has no bearing on the necessity for footings and services which forms the basis of the easement claimed. Furthermore, the requirement for future consent does not render it inappropriate to make the declarations sought by the plaintiffs. As Hodgson CJ in Equity stated in 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123[20] when considering broadly analogous legislation:

"In my opinion, even if the use of the proposed easement would be illegal without consents, and those consents have not been obtained, the easement may still be 'reasonably necessary for the effective use or development of the land', at least so long as the use is not absolutely illegal or there is no real chance of consent."

263. Lastly, it is submitted that it would be inequitable to make the declarations sought when the potential liability of other unit holders with respect to insurance and other body corporate charges has not been adjusted to take account of the proposed development within Unit 1. The plaintiffs have proffered an undertaking with respect to liability for any such increase as a condition of any declaration obtained by them but this is attacked as providing no lasting resolution of the problem.

266. Section 33 of the Subdivision Act provides a statutory scheme for the adjustment by consent of lot entitlements or lot liabilities. In turn, s.38 gives affected parties a right to apply to a court of competent jurisdiction with respect to such alterations in the absence of consent. Although the proposed undertaking might not be regarded as adequate in the absence of the statutory scheme, in my view it provides an entirely satisfactory adjunct to such scheme. The statutory scheme ensures that the effect of the easements granted by the Court will not be inequitable by way of continuing consequences. Accordingly, I propose to make the declarations sought by the plaintiffs subject to an undertaking that the plaintiffs will pay to the first defendant any additional insurance or other costs incurred by it as a result of the construction of the works described in the declaration until adjustment of lot liabilities in accordance with the provisions of the Subdivision Act, and subject to the proviso I have stipulated as to floor levels in [70] above.

269. I will also reserve liberty to apply to enable the parties to approach the Court if practical difficulties with the declaration should emerge.

272. I will hear counsel on the question of costs.

[1] [2001] VSC 129 (unreported decision 3 May 2001)

[2] (1881) 6 AC 740, 792

[3] (1987) 9 NSWLR 738

[4] (1879) 12 Ch D 31 at 49.

[6] per Isaacs J; Nelson v Walker [1910] HCA 27; (1910) 10 CLR 560 at 582

[7] 38 Ch D 295 at pp.314 and 315

[9] 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504; Re Seafarth Land Sales Pty Ltd's Land [1976] Qd R 190; and on appeal [1997] Qd R 317.

[10] [1902] 2 Ch D 557 at 573

[11] [1934] VicLawRp 9; [1934] VLR 34 at 40.

[14] [1993] VicRp 23; [1993] 1 VR 315 at 336

[15] Section 98(b) does not apply to the current case by reason of s.12(9) of the Subdivision Act set out above.

[16] [1999] VSC 539 at [48 - 53]

[17] (Unreported decision of Beach J, 30 April 1996)

[19] See Subdivision Act Schedule 2 cl.5 and Subdivision (Body Corporate) Regulations (2001) cl. 702(3).

[20] (1998) 43 NSWLR 504 at 512