Govindan-Lee v Sawkins; Sawkins v Govindan-Lee [2016] NSWSC 328 | Case summary

Judgment (5 paragraphs)

[1]

Introduction

This is a dispute between neighbouring landowners in Duneba Place, Frenchs Forest. Two sets of proceedings are involved. The main proceedings (2015/195545) were commenced by a Summons filed on 3 July 2015. The plaintiff in the main proceedings is the registered proprietor of Lot 4 in Deposited Plan 230828 (4 Duneba Place). The defendants to the main proceedings are the registered proprietors as joint tenants of Lot 5 in Deposited Plan 230828 (5 Duneba Place). The lots were created upon the registration of Deposited Plan 230828 on 1 September 1966, as part of a sub-division of three lots.
Lots 4 and 5 may each be described as a battleaxe block. The dispute concerns access (that is, motor vehicle access) to Lot 4. To this end, the plaintiff seeks an order under s 88K of the Conveyancing Act 1919 (NSW) imposing an easement in the nature of a right of carriageway over a portion of Lot 5. The defendants oppose the making of the order.
The plaintiff has been the registered proprietor (or a registered proprietor with her husband, Mr John Lee) since 1987. The plaintiff and her husband constructed a house upon Lot 4 in the late 1980's, and have lived there more or less continuously ever since. There is a garage underneath the house, and an area near the garage where vehicles can turn around. There is space there for at least one car and a trailer to park. The plaintiff has always gained motor vehicle access to Lot 4 by means of a concrete driveway which had been constructed (it seems by 1987) partly on Lot 4 and partly on Lot 5. In about 2010 the defendants re-surfaced the driveway along part of its length.
Lot 4 has the benefit of a right of carriageway over a portion of Lot 5. This easement, which is referred to as the Red Easement, is the first right of carriageway noted on the Deposited Plan. It is located on the "handle" to Lot 5 and extends to Duneba Place.

Application under section 88K of the Conveyancing Act

Despite the challenge to the plaintiff's right to bring her s 88K application, I propose to deal first with that application.
Section 88K(1)-(2) provides: (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
The first matter to consider is whether the easement sought by the plaintiff over Lot 5 for the benefit of Lot 4 is reasonably necessary for the effective use or development of Lot 4.
The easement sought is depicted on a plan prepared by Mr Kiprovich, surveyor, on 6 August 2015. The plan became exhibit A. The easement is described as a new right of carriageway of variable width, with an area of 23.25m2. It is located on the Yellow Land. The easement is quite narrow in the area close to the defendants' garage (no more than 600mm) but it gradually becomes wider as it approaches the Red Easement. At a point about halfway to the Red Easement it has a width of 930mm, and at a point about two thirds of the way to the Red Easement it has a width of 1.25m. At those points, the width of the Yellow Land would be reduced to 2.45m and 2.2m respectively.
It seemed to be accepted by the parties that the proposed easement would be at least sufficient to permit vehicles going to and from the house on Lot 4 to do so by travelling up and down the existing concrete driveway. That is, there would be no need to go off the concrete driveway and make use of other parts of the Green or Blue Easements.
The photographic evidence (for example the photographs at pages 3059, 3060 and 3149 of the Court Book) shows that when vehicles are parked on the Yellow Land near to the boundary of Lot 4 (that is, close to the Blue Easement) there is barely enough room for even small vehicles to drive up to the house on Lot 4 without going off the concrete driveway onto the vegetated part of the Blue Easement. There was evidence that beyond the edge of the concrete driveway the land in the Blue Easement falls away quite steeply towards the boundary between Lots 4 and 3. The evidence was not precise about the location of the points where the land begins to fall away, or as to the gradients and lengths of the slopes. Nevertheless, it appears that the difference between the level of the driveway and the level of the land on Lot 3 (which difference increases as one moves up from Duneba Place) is such that it may be dangerous for a vehicle to move far off the driveway into the vegetated part of the Blue Easement.
However, the defendants contend that an alternative to the proposed easement is available to the plaintiff. The alternative involves the widening of the concrete driveway across parts of the Blue and Green Easements. The defendants adduced evidence from an experienced geotechnical engineer, Mr Don Katauskas. In his report dated 17 September 2015, Mr Katauskas gave evidence to the effect that there was no technical reason why a carriageway or access driveway cannot be constructed upon Lot 4 utilising land to the side of the existing concrete driveway. Mr Katauskas said that such construction would involve: 1. clearing and grubbing of vegetation, trees and shrubs situated along the western edge of the existing concrete driveway; 2. clearing and grubbing of the tall dead tree stump also situated near the edge of the existing concrete driveway; 3. construction of foundations and retaining wall; 4. placement of backfill behind the wall; and 5. construction of a concrete driveway to abut the existing concrete pavement.
Mr Katauskas did not provide any estimate of the likely cost of construction of such an access driveway. The plaintiff did not serve any expert report in response to that of Mr Katauskas.
In the course of his cross examination, Mr Katauskas said that the job did not present a big problem. In relation to the need to construct foundations and a retaining wall, he did not agree that it was a relatively big task in itself. He said that this was common practice, and there was nothing unusual about it.
Mr Katauskas was then asked a series of questions directed to how much it might cost to widen the driveway. Mr Katauskas was prepared to give an estimate of the cost which, he emphasised, was only a rough estimate. The upshot of his evidence was that something in the order of $80,000 to $150,000 "would see it through".
The basis of the estimate is not altogether clear. That is not surprising given that Mr Katauskas was asked to give his estimate on the spot and that the assumptions upon which the estimate was to rest were not clearly identified for him. However, I think it can be gleaned that Mr Katauskas adopted $2,000 per m2 of surface as the cost of an average retaining wall and may have assumed that a retaining wall with up to 60m2 of surface might be required. He accepted that, for a 30m long retaining wall, the "low mark" for the job could be $80,000.
I should add that in re-examination Mr Katauskas suggested that it may be a distance of 50m along the boundary of Lots 4 and 3 from Duneba Place up to a point opposite the defendants' garage. However, this was based on a misreading of the dimensions shown on exhibit A. When regard is had to the imperial dimensions shown on the Deposited Plan, it is clear that the figure of 38.305m relied upon by Mr Katauskas refers to a distance that extends all the way to the end of the boundary.
Attention was paid to the effect the proposed easement might have on the use and enjoyment of Lot 5. Both of the defendants were cross-examined on this question.
Mr Sawkins gave evidence to the effect that his wife parks her utility vehicle on the Yellow Land a little way down from the entrance to the garage on Lot 5, and that there is room for a visitor to park on the Yellow Land a bit further down still towards Duneba Place. Mr Sawkins gave evidence that it was only if his wife parks her car close to the rock face on Lot 5 (no more than about 800mm away from the rock face) that there is enough room to allow a car to drive along the concrete driveway up to the house on Lot 4. Mr Sawkins pointed out (by reference to the photograph at page 3149 of the Court Book) that a visitor's car parked behind his wife's vehicle, wholly within the Yellow Land, made it difficult for a small vehicle to be driven up the driveway to Lot 4. He further stated that the visitor's car appeared to be parked partly in the area of the proposed easement across part of the Yellow Land. Mr Sawkins said that the proposed easement would not only make parking on the Yellow Land impossible or at least very inconvenient (due to a need to park very close to the rock face), but might also prevent the future addition of a carport in that area.
Ms Knight deposed that if the defendants or their visitors were unable to park on the Yellow Land and thus had to park on the street, there would be great inconvenience. She deposed that there is a significant incline from Duneba Place up to the stairs that lead up to the house. Ms Knight was questioned about where she generally parked her vehicle. She was shown a photograph (the photograph at page 2123 of the Court Book) which showed her vehicle parked very close to the rock face. Ms Knight explained that she parked in that position only because of the injunction issued by the Court. She said (by reference to a photograph taken before the injunction was issued - the photograph at page 2074 of the Court Book) that she has regularly had problems getting in and out of her parked car. Ms Knight also referred to a concern arising from the fact that difficulties have arisen with the owners of Lot 4 when visitors have parked on the Yellow Land.
Ultimately, Ms Knight expressed her desire to be able to use the land (which she said was the only somewhat level land on the Lot) in whatever manner she chose. She also referred to various future possibilities for the Yellow Land, including a carport and even, as "an ultimate wish", a garage with a pool on top.
The defendants also drew attention to the history of the development of Lot 4, and in particular to the fact that the opportunity to make use of the Blue and Green Easements to secure vehicular access was not taken when the house on Lot 4 was constructed in the late 1980's. The defendants pointed to evidence produced from the files of the Warringah Shire Council that showed that the plans submitted and, it seems, ultimately approved in relation to the building application suggested that access to Lot 4 would be by way of a driveway constructed on Lot 4 only. Those plans were drawn by Mr Lee, an experienced local government engineer. Ms Govindan-Lee accepted in cross-examination that the relevant plan did record a driveway that went along the Blue Easement and continued down the Green Easement to Duneba Place. Mr Lee gave evidence to similar effect. Ms Govindan-Lee also appeared to accept that when Lot 4 was acquired she was able to drive her car up to a point on the lot, near the site of the garage now standing on Lot 5, without driving upon any part of Lot 5.
However, no driveway along the route of the Blue and Green Easements was constructed. A retaining wall was constructed by Mr Lee along the rear part of the boundary between Lots 4 and 3, but the wall did not extend as far as the Blue or Green Easements. It appears that, for whatever reason, a decision was taken by the plaintiff and her husband not to build the driveway suggested by the plans. Instead, they made use of the concrete driveway that had already been constructed, in part, on the Yellow Land.
The relevant principles concerning whether an easement is "reasonably necessary" within the meaning of s 88K(1) were considered by the Court of Appeal in Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at [154]-[159]. Relevantly, the Court of Appeal there stated: 154 The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available: Rainbowforce supra at [76]. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street supra as follows: It is clear that "reasonably necessary" in s 88K(1) does not mean "absolutely necessary", and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement. In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. The first of those requirements may seem contrary to a statement by Hamilton J in Tregoyd Gardens (at 14) that the Court "is not to judge upon the reasonableness of the particular development". However, that statement is qualified by the words "at least in this case". If there are some possible reasonable uses or developments of the land for which a proposed easement is not reasonably necessary, then it seems to me that the easement cannot be "reasonably necessary for the effective use or development" of the land, at least unless there is some proposed use or development, for which the proposed easement is reasonably necessary, which is itself a reasonable use or development. It may be that the particular use or development would need also to be preferable to the alternatives; but whether or not that is so, it would in my opinion certainly need to be at least reasonable. (at 508-509 citations omitted) …… 156 As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity: Rainbowforce supra at [77]; Khattar v Wiese supra at [27]; Woodland v Manly Municipal Council, supra at [12] Lonergan v Lewis supra at [22]. 157 As we indicated earlier (para [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed. 158 The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development. 159 None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other.
Mr Sneddon of counsel, who appeared for Ms Govindan-Lee, submitted that absent the proposed easement Lot 4 was effectively "vehicle locked". He accepted that an alternative method of facilitating access was available (namely, the widening of the existing driveway across parts of the Blue and Green Easements), but submitted that this was not a feasible financial alternative. Mr Sneddon seized upon Mr Katauskas' evidence about a 50m distance and said that his estimate of $80,000 to $150,000 had to be adjusted accordingly, such that the cost could be in the order of hundreds of thousands of dollars. However, as I have said, Mr Katauskas was in error when he suggested the retaining wall may have to be 50m in length.
Mr Sneddon accepted that Ms Govindan-Lee bore the onus of establishing reasonable necessity for the purposes of s 88K(1). He submitted that in considering the question of reasonable necessity, the Court should have regard to the significant cost of widening the driveway and various uncertainties in relation to the proposed widening, such as Council requirements and tree preservation issues. (In that regard I note that Ms Govindan-Lee has obtained permission to remove the tall tree stump that is located on the Blue Easement near to the driveway, but has not done so). Mr Sneddon submitted that it was relevant that the plaintiff had made use of the existing driveway for many years.
Mr Sneddon submitted that the Court should also have regard to the evidence concerning the effect the proposed easement would have on the use of Lot 5. It was submitted that the area of Yellow Land not affected by the easement would have a width of between about 2.2m and 2.5m, such that vehicles could still be parked there, albeit with less convenience than would be the case if all of the Yellow Land was available. It was submitted that the inconvenience was not such as to warrant the refusal of the easement, particularly when the inconvenience was considered alongside the great cost of widening the driveway. It was suggested that the cost of widening the driveway was much greater than the amount of any compensation that would be payable to the defendants if the proposed easement was imposed.
Mr Dawson of counsel, who appeared for Mr Sawkins and Ms Knight, referred to the comments made by Young J in Hanny v Lewis (1998) 9 BPR 16,205 at 16,209 - 16,210 where his Honour said: As a general approach to applications under this section the court must bear in mind that property rights are valuable rights and the court should not lightly interfere with the property rights of the defendants. It is in the public's interest that landlocked land be utilised. However, the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect others to make their land available for access.
Mr Dawson submitted that this was a case where the plaintiff had built without adequate access and had then expected the defendants to make their land available for that purpose. In this regard, Mr Dawson referred to the evidence, mentioned earlier, regarding the plans submitted to Warringah Shire Council in relation to Lot 4.
Mr Dawson also referred to Khattar v Wiese [2005] NSWSC 1014 at [27], in which Brereton J noted that "[t]he authorities repeatedly point to the confiscatory nature of s 88K as requiring firm proof of the reasonable necessity for the easement, and that the court bear in mind that property rights are valuable rights not to be lightly taken away".
Mr Dawson submitted that the plaintiff's case had sought to trivialise the impact the proposed easement would have upon the defendants' rights. Further, it was contended that the plaintiff had failed to engage with the issue of available alternatives, such as the widening of the driveway using parts of the Blue and Green Easements, and the only evidence of the likely costs of widening the driveway was not a reliable basis upon which to reach firm conclusions. It was pointed out that there was no evidence going to the question of whether a widened driveway would add value to Lot 4.
As for compensation, Mr Dawson submitted that, in addition to compensation in respect of the strip of land subject to the easement, the defendants would be entitled to substantial compensation for the adverse effect that the easement would have on the use of the rest of the Yellow Land, which is the only relatively flat land on Lot 5.
The requirement that a proposed easement be reasonably necessary for the effective use or development of land may be satisfied even when the plaintiff's land could be effectively used or developed without the easement (see Moorebank Recyclers Pty Limited v Tanlane Pty Limited (supra) at [154]). The determination of the question whether an easement is reasonably necessary for the use or development of land involves consideration of any alternative methods by which such use or development could be achieved (see Moorebank Recyclers Pty Limited v Tanlane Pty Limited (supra) at [158]).
In this case, the evidence of Mr Katauskas satisfies me that adequate vehicular access for Lot 4 could be secured by widening the existing concrete driveway to extend further across the Blue and Green Easements. There is no technical reason why that could not be achieved. Mr Katauskas outlined a scope of works, but no detailed specification of the works was in evidence. In the course of his cross-examination Mr Katauskas said that there were numerous ways in which the structure could be built, which could be costed to see which was the most economical. I have already referred to the evidence given by Mr Katauskas in cross-examination about how much it might cost to do the work.
Apart from the evidence obtained from Mr Katauskas in cross-examination, the plaintiff adduced no evidence about this alternative. It is not known whether the alternative has been investigated by the plaintiff or her husband to any extent, or indeed whether they have even considered it at all.
In this case, the possible widening of the driveway across parts of the Blue and Green Easements is an alternative that obviously calls for consideration. However, the state of the evidence does not allow the Court to undertake that task in a reasonably comprehensive manner.
The plaintiff bears the onus of showing reasonable necessity and is best placed to adduce evidence about this alternative. It is unsatisfactory that the plaintiff has failed to bring forward evidence that would facilitate a more comprehensive assessment of this alternative, including of any difficulties or uncertainties involved in it.
I am unable to accept the submission that a widening of the driveway across parts of the Blue and Green Easements is not a feasible financial alternative. Based on the evidence given by Mr Katauskas that a retaining wall would be required and that an average retaining wall costs about $2,000 per m2 of surface area, the total cost of widening the driveway further into those easements from the point where the existing retaining wall stops, down to Duneba Place, is likely to be substantial and quite possibly within the range of the rough estimate of $80,000 to $150,000 given by Mr Katauskas. However, in the absence of more cogent evidence about what would actually be required in terms of retaining walls and methods of construction, the Court is not in a position to be more definite.
The difficulty in providing a definite conclusion in this regard can be illustrated by reference to the evidence about the likely surface area of the retaining wall to be constructed. Mr Katauskas seemed to contemplate a wall with an average height of 2 metres. That assumed that the height at the point furthest from Duneba Place was about 4 metres. However, no actual measurements of heights were put into evidence. Mr Sneddon variously suggested to Mr Katauskas (at T169) that the height might be 3 or 3.5 metres, or 4 or 4.5 metres; Mr Katauskas did not clearly adopt either alternative. (Earlier, Mr Sneddon suggested to Mr Sawkins (at T85) that the height might be 2.5 or 3 metres; Mr Sneddon also suggested to Ms Knight (at T104) that the height might be 2 or 2.5 metres).
I might add that, in circumstances where Lot 4 has the benefit of the Red Easement, it may not be necessary for the driveway to be widened for much distance along the Green Easement. If that was so, the length of the required retaining wall might be in the order of 20 metres rather than 30 metres. Again, the paucity of evidence means that the feasibility of that route (the possibility of which seems apparent from a consideration of exhibit A and various photographs - for example the photographs at pages 2126, 3136 and 3137 of the Court Book) cannot be properly considered.
In short, there is no firm basis upon which to draw a conclusion as to the likely cost of a suitable widening of the driveway, let alone conclude that such alternative is not financially feasible or justifiable. As pointed out by Mr Dawson, there was no evidence going to the question whether a widened driveway would add value to Lot 4. Moreover, for reasons that I will come to, if the proposed easement was imposed, compensation of about $67,500 would be payable by the plaintiff to the defendants.
The concept of reasonable necessity also requires consideration of the effect the grant of the proposed easement would have upon the servient tenement (see Moorebank Recyclers Pty Limited v Tanlane Pty Limited (supra) at [113]-[117] and [156]).
In my opinion, the proposed easement would significantly restrict, although not eliminate, the ability of the owners of Lot 5 to use the Yellow Land for parking vehicles. The parts of the Yellow Land that are suitable for parking (that is, in the area down the driveway clear of the entrance to the Lot 5 garage) are between about 3.1 metres and 3.45 metres wide. The imposition of the easement would reduce those widths to between about 2.5 metres and 2.2 metres.
There is evidence that Ms Knight's utility vehicle is about 1.8 to 1.9 metres wide. This vehicle, which is generally parked reasonably close to the entrance to the garage, may fairly be described as a larger than average vehicle, but it is by no means of uncommon size. If a small allowance of about 800mm was made to permit some opening of the driver's door (on the right side near the rock face on Lot 5), there is insufficient room for the vehicle to park on the Yellow Land without obstructing the easement. The difficulty would be more acute in the area further down the driveway where visitors usually park. In that area the width available for parking would be reduced to about 2.2 metres. I was not referred to any evidence about the width of motor vehicles. However, proceeding on the assumption that many vehicles are considerably narrower than 1.8 to 1.9 metres, say in the order of 1.6 metres, and again making an allowance of 800mm to permit some opening of the driver's door, there is insufficient room for the vehicle to park on the Yellow Land without obstructing the easement.
In order to avoid encroachment upon the easement, smaller allowances for the opening of doors would be required. Such parking might be regarded as feasible, albeit cramped. Even if so, I do not think there is much doubt that the utility and convenience of the area for parking would be significantly diminished if the easement was imposed. The possibility of a usable carport being constructed for parking in the area would also be significantly reduced.
The plaintiff bears the onus of establishing reasonable necessity. In my view, having regard to all of the circumstances of this case, including those referred to above concerning the existence of an alternative to the proposed easement and the effect that the easement would have upon Lot 5, the plaintiff has not shown that the proposed easement is reasonably necessary for the effective use or development of Lot 4.
It may be accepted that vehicular access is something that is reasonably required for the effective use of Lot 4 - a residential, battleaxe block, where the house is situated a considerable distance away from the street. The proposed easement would secure that access. Nevertheless, there appears to be an available alternative that would secure vehicular access to Lot 4. The alternative appears to be technically feasible (on the evidence available before me) and the plaintiff has not shown that it is not feasible or justifiable for financial reasons, or for any other reason. It has not been shown that use or development of Lot 4 with the proposed easement is substantially preferable to the use or development of Lot 4 without the proposed easement.
The proposed easement would, if imposed, have a substantial effect upon Lot 5. An area currently available for the parking of two vehicles would be reduced to an area where car parking, even if possible, would be cramped and inconvenient. It is not unreasonable of the defendants to want to take advantage of their existing rights over the Yellow Land. Those rights should not be taken away lightly.
I have taken into account the fact that the plaintiff and her husband have used the existing concrete driveway for access for many years. Against that, it is relevant to note that, for whatever reason, the plaintiff and her husband did not construct a driveway along the Blue and Green Easements as suggested in the plans submitted to Warringah Shire Council. Rather, they chose, perhaps unwittingly, to use the driveway that was constructed in part on the Yellow Land, over which no easement in favour of Lot 4 exists.
For the above reasons, the plaintiff's application for the imposition of the proposed easement fails.
It is thus not necessary to proceed to deal with the three matters referred to in s 88K(2). However, I will briefly state my views concerning those matters.
As to s 88K(2)(a), the defendants submitted that the imposition of the easement would be contrary to the public interest because it would be contrary to that which was approved by Warringah Shire Council in relation to the plaintiff's building application and would erode the public interest in maintaining indefeasibility of title. On the first point, it is true that the plans submitted by the plaintiff in relation to her building application suggested that access to Lot 4 would be by way of a driveway constructed on Lot 4 only. Nevertheless, there was no stipulation by the Council that access should only occur in that fashion, or that access using the driveway constructed partly on the Yellow Land should not occur. On the second point, accepting that there is a public interest in maintaining indefeasibility of title (as reflected in the Torrens Title legislation), Parliament has from time to time passed legislation which qualifies the notion of indefeasibility of title. Section 88K of the Conveyancing Act can be seen as an example of such legislation. I therefore do not think that the imposition of an easement, in accordance with the requirements of s 88K, could in itself be regarded as contrary to a public interest in maintaining indefeasibility of title. For these reasons, had I concluded that the proposed easement was reasonably necessary for the effective use or development of Lot 4, I would have been satisfied that use of Lot 4 with the benefit of the easement would not be inconsistent with the public interest.
I would also, in those circumstances, have been satisfied that the defendants could be adequately compensated for any loss or other disadvantage that would arise from the imposition of the easement (see s88K(2)(b)). In my view, the losses and disadvantages that would arise from the imposition of the easement (primarily the impact upon the title of imposing a right of way over 23.25m2 of the Yellow Land, and the diminished amenity of the Yellow Land) are of a nature that could be adequately compensated by an appropriate monetary payment.
As to s 88K(2)(c), it appears that, following the commencement of her proceedings, the plaintiff made an offer to the defendants that the proposed easement be granted upon the payment to the defendants of compensation of $10,000. The plaintiff also offered to provide the necessary s 88B instrument. There was no evidence of any response to that offer. I also note that the evidence given by the defendants, and in particular Ms Knight, demonstrated that they were firmly opposed to the imposition of the easement due to the deleterious effect it would have upon their use and enjoyment of Lot 5. In these circumstances, I would also have been satisfied that all reasonable attempts to obtain the easement had been made by the plaintiff without success.
I turn now to the question of compensation. By s 88K(4), where the Court makes an order imposing an easement, it must, unless special circumstances exist, provide for payment of compensation as the Court considers appropriate. The compensation contemplated by s 88K(4) is compensation "for any loss or other disadvantage that will arise from imposition of the easement" as referred to in s 88K(2)(b) (see Wengarin Pty Limited v Byron Shire Council [1999] NSWSC 485; (1999) 9 BPR 16,985 at [26]; Mitchell v Boutagy [2001] NSWSC 1045; (2001) 118 LGERA 249 at [25]).
It was faintly submitted that this may be a case where no compensation is payable, having regard to the use of the driveway by the plaintiff over many years. However, in my view it is clear that there are no special circumstances existing which would warrant the making of no order for compensation. The defendants are in no way to blame for the situation that has arisen. They have not acted unreasonably in asserting their legal rights.
In Wengarin Pty Limited v Byron Shire Council (supra) Young J stated at [26] that ordinarily compensation under s 88K(4) will be: 1. the diminished market value of the affected land (including the potential use to which the subject land could be put); 2. associated costs that would be caused to the owner of the affected land; 3. compensation for insecurity, and loss of amenities such as loss of peace and quiet; and 4. the compensation is to be less any compensating advantages.
The manner in which compensation is assessed in any particular case is likely to be influenced by the approaches taken by valuers called to give evidence. In the present case, evidence was given by two valuers. Mr Thomas Webster was called by the plaintiff and Mr Stephen Eccleston was called by the defendants. They each provided a report, and subsequently prepared a Joint Statement outlining points of agreement and disagreement.
Mr Webster initially assessed the value of the area the subject of the easement at $2,000. He considered that the area, which was disconnected from the house and not part of any yard or landscaped space, had limited utility for the owners of Lot 5, and that the easement would not restrict the use of the area as a driveway for the owners of Lot 5.
Mr Eccleston, by reference to sales of vacant, level land in the Frenchs Forest area, applied a rate of $1,200 per m2 for the 23.25m2 area the subject of the easement. That gave a figure of $27,900. Mr Eccleston then applied a 25% discount (to reflect that title to the area remained with Lot 5) to arrive at a value of the easement of $20,925.
Mr Eccleston also considered that the imposition of the easement would result in what he described as injurious affection to the remainder of Lot 5. In this regard, he referred to the prospective effect of the easement on the ability to park vehicles, construct a carport, store or unload materials, or fence the driveway to obtain privacy. Mr Eccleston considered that the loss of the exclusive use of part of the driveway would make it more difficult to sell Lot 5. Taking all of those matters into account Mr Eccleston thought that the value of the remaining land would be reduced by 10% if the easement was imposed. On the basis of a total value for Lot 5 of $1.1 million, this loss was approximately $110,000. Accordingly, Mr Eccleston assessed the total compensable loss at $130,925.
In the Joint Statement, Mr Webster expressed his agreement with Mr Eccleston's approach to deriving a rate per m2 value for the area the subject of the easement. Mr Webster did not, however, accept $1,200 per m2 as the correct figure. Mr Webster preferred to use a rate of $788 per m2, derived from a recent Valuer-General's valuation. Mr Webster thus arrived at a figure of $18,321, which he agreed should be discounted by 25% to about $13,740. Mr Eccleston maintained that $1,200 per m2 was appropriate given that it was derived from sales of vacant, level land whereas the Valuer-General's value was based on the overall site.
Mr Webster also took issue with the proposition that the remainder of Lot 5 would incur injurious affection if the easement was imposed. In summary, he said that the owners of Lot 5 would be able to continue to park, albeit that the area available was narrower; that it may be difficult for a carport to be erected in any event; and that fencing the driveway would be unusual. He agreed that there would be some loss of storage area.
On the subject of injurious affection, Mr Eccleston concluded as follows: The loss of the exclusive use of the driveway would in my opinion make it more difficult to sell Lot 5, as the majority of houses in Frenchs Forest have a double garage and also the ability to park additional cars, boats or trailers either on the driveway or on other land within the property. Given the very steep nature of Lot 5, if the easement was granted, the loss of the exclusive use of the driveway, which is the only portion of level land within Lot 5 accessible by vehicle, would render the property less desirable.
Both valuers were cross-examined. Mr Webster maintained that there was no additional disadvantage to Lot 5 over and above the value of the area the subject of the easement.
Mr Eccleston was challenged about his rate of $1,200 per m2. Ultimately, he appeared to accept that a figure of about $1,000 per m2 may be appropriate. Mr Eccleston was also challenged concerning the various matters upon which he based his opinion as to injurious affection. Mr Eccleston accepted that the remaining part of the Yellow Land could not be used for much apart from storage of items and parking of cars. He remained concerned that the width of available driveway would inhibit the ease (and safety) of getting in and out of vehicles, or the use of the driveway for storage or as a place to keep a boat. Accordingly, Mr Eccleston did not agree that this aspect of his reasoning could be ignored. He also maintained that construction of a carport in the area (perhaps utilising a cantilever design) was at least a possibility that would be hindered by the easement. Mr Eccleston conceded that a fence along part of the boundary of the area would not make any difference to value. Unsurprisingly, Mr Eccleston agreed that if the matters underlying his opinion as to injurious affection "go south" the adverse affection claim would be smaller in magnitude, and that, if his assumptions were not well founded, the claim would be reduced by a substantial amount. He did not accept it would be about 90% smaller, or "next to nil". Mr Eccleston stated that a potential buyer of Lot 5 would look at the effect the easement would have on getting in and out of the property.
I accept Mr Eccleston's evidence that a figure of about $1,000 per m2 would be appropriate to adopt for the purpose of ascribing a value to the area of the easement itself. On that basis, and given that the valuers agreed on a discount of 25%, the value of that area is approximately $17,500.
As to injurious affection, I prefer the evidence of Mr Eccleston to that of Mr Webster. Having regard to my findings about the effect that the easement would have on the ability of the owners of Lot 5 to park vehicles on the Yellow Land (including through the possible use of a carport), I consider that Mr Eccleston was correct to conclude that imposition of the easement would make it more difficult to sell Lot 5. I agree with his view that a potential buyer of Lot 5 would look at the easement and its likely effect, and would compare Lot 5 with other properties that did not have that issue. The number of spaces for car parking (and whether the spaces are covered or not) is plainly an issue commonly taken into account by purchasers of residential property in suburban Sydney. Lot 5 has only a single lock up garage. Any street parking is a considerable distance away from the garage and the steps that lead up to the house. The amenity of the Yellow Land as a place for parking is likely to be a matter taken into account by potential purchasers.
Nevertheless, I would not be prepared to accept that there may be a 10% diminution in value on account of the injurious affection brought about by the imposition of the easement. I note that Mr Eccleston assumed that no parking would be possible on the Yellow Land if the easement was imposed. I have concluded that the proposed easement would significantly restrict, although not entirely eliminate, the ability of the owners of Lot 5 to use that land for parking. On the available evidence, and taking into account the various concessions made by Mr Eccleston in cross-examination (including in relation to fencing), I think that the diminution in value (assuming that Lot 5 has a current value of $1.1 million) would be in the range of about $40,000 to $60,000. Once the value of the area the subject of the easement is added, the total compensation would thus be in the order of $57,500 to $77,500. Had it been necessary to assess compensation for the purposes of s 88(4), I would have assessed it as within that range, at $67,500.

Govindan-Lee v Sawkins; Sawkins v Govindan-Lee

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