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[2013] QSC 21
Supreme Court of Queensland
2013-02-22
McMeekin J
Original judgment source is linked above.
ORIGINATING APPLICATION - Section 180 PROPERTY LAW ACT 1974 - OBLIGATION OF USER - EASEMENT - RIGHT OF SERVICES - APPROPRIATE CONDITIONS - supply of services - whether it is reasonable to remove a power pole - the positioning of a power pole is in issue - hours of access for services an issue - whether costs should be awarded on the indemnity basis.
Baypeak Pty Ltd v Lim [2005] VSC 77;
Bolgari v Steiner School and Kindergarten [2007] VSCA 58; (2007) 20 VR 1.**
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248
Cosgrove & Johns [2000] QCA 157
Di Carlo v Dubois [2002] QCA 225
John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201
Makita (Aust Pty Ltd) v Sprowles [2001] NSWCA 305
Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351;
Paroz v Paroz & Ors [2010] QSC 157
Re De Pasquale Bros Pty Ltd & NJF Holdings Pty Ltd [2000] QSC 004
Todrell Pty Ltd v Finch & Ors; Croydon Capital Pty Ltd v Todrell Pty Ltd & Anor [2007] QSC 386
Tran v Cowan [2006] QSC 162
**[1] The applicants, Mr and Mrs Graham, are the registered proprietors of land described as Lot 2 on registered plan 609674 in the county of Livingstone, parish of Yeppoon, title reference 30420119 ("Lot 2"). The land is located at 57A Todd Avenue, Yeppoon. They acquired their interest in 2008.
[2] The respondents, Mr and Mrs Murphy, are the registered proprietors of two parcels of land which share boundaries with Lot 2, namely Lot 1 on registered plan 609674 ("Lot 1") (in respect of which the respondents are registered proprietors as trustees of the John J and Margaret Murphy Superannuation Fund) and Lot 30 on registered plan 600694 ("Lot 30"). The respondents' home is constructed on Lot 30. Lot 1 is presently relevant and is situated at 57 Todd Avenue. A house is constructed on Lot 1 and is rented by the respondents.
[3] By an amended originating application the applicants seek an order pursuant to section 180 of the Property Law Act 1974 that the court impose upon Lot 1 an obligation of user in respect of Lot 2. The right of user sought is in the form of a registered easement, a draft of which is part of exhibit RCW02 to the affidavit of Roy Charles Ware filed 5 October 2012. Lot 2 already has the benefit of a registered easement of way over Lot 1 described as Easement A on RP611793. The proposed easement lies over the area of the existing easement of way.
[4] By the existing easement the applicants have "full and free right and liberty them and each of them there and each of their tenants, servants, visitors, licensees in common with the guarantors at all times hereafter by day or night to pass to, on or from easement A on RP11793 ... with or without vehicles of any description for all purposes connected with the use and enjoyment of the dominant tenement .....".
[5] The draft easement proposed provides for an easement for services on certain conditions as well as the easement of way, the latter in the same terms as previously but with the addition of certain clauses to make plain the respective parties' obligations for any damage.
[6] The existing easement runs down the southern boundary of Lot 1. It has a width of 3 metres for the depth of the allotment and an area of 105 square metres. Both Lots 1 and 2 use the area - Lot 1 to gain access to a garage at the back of an existing residence and Lot 2 to gain access to the public road.
[7] The existing easement was registered on the title in 1974 and long pre-dates the acquisition of the respective titles by the applicants and respondents.
[8] The purpose of the order sought is to protect infrastructure supplying certain services to Lot 2 which include underground electricity, water, drainage and sewerage services as well as a power pole which stands on the easement and which supplies power to Lot 2. The services would appear to have been present in the area encompassed by the existing easement for decades but no steps have previously been taken to formalise their presence.
[9] Similarly the power pole has been positioned on the easement area for decades, again long pre-dating the acquisition of title by either of the parties.
[10] The respondents were self represented. Mr Murphy gave evidence in the respondent's case. At the commencement of his evidence he informed me that he and his wife did not oppose the grant of the easement sought, as having consulted past authorities, they thought they could not succeed in opposing the grant. He informed me that the respondents did oppose the conditions that were proposed upon which the easement was to be granted.
[11] Thus the scope of the debate was greatly limited to one of determining what conditions, if any, it would be appropriate to impose upon the grant of the easement sought.
The Legislation & the Satisfaction of the Pre-Conditions
[12] The application is brought pursuant to section 180 of the Property Law Act ("PLA").
[13] Despite the concession made by the respondents the remedy sought is discretionary and the legislation requires that certain pre-conditions be first satisfied before the imposition of a right of user. I am satisfied that those pre-conditions have been met. For present purposes for the court to impose a statutory right of user in respect of the respondents' land these essential pre-conditions are:**
(a) it must be shown that it is "reasonably necessary in the interests of effective use in any reasonable manner" of the applicants' land that the user be imposed (s 180(1));
(b) it must be consistent with the public interest that the applicants' land should be used in the manner proposed (s 180(3)(a));
(c) the court must be satisfied that the respondents "can be adequately recompensed in money for any loss or disadvantage which they may suffer from the imposition of the obligation" (s 180(3)(b));
(d) the respondents must have refused to agree to accept the imposition of the obligation and their refusal must, in all the circumstances, be unreasonable (s 180(3)(c)(i)).
**[14] The respondents do not now contend that the use of the applicants' land in the manner proposed is inconsistent with the public interest, nor do they contend that they could not be adequately recompensed in money for any loss or disadvantage which they might suffer from the imposition of the obligation.
[15] As the respondents correctly assumed it is perfectly plain that it is "reasonably necessary in the interests of effective use in any reasonable manner" of the applicants' land that they be provided with the services that are present within the easement. The applicants' home is in a residential area. The services are essential to their well being and reasonable comfort. But for the power pole the services cause no inconvenience whatever to the respondents. Save for emergencies and the potential presence of service personnel one would not expect that the existence of the services within the easement would diminish the respondents' ability to enjoy their own property. So far as is known there has been no problem in the past caused by the existence of the services within the easement area.
[16] This is not a case where the applicants have known from the outset that they had no right to have their services in the present location. The applicants contend, and they were not challenged, that they were not aware at the time that they purchased Lot 2 that the infrastructure supplying the essential services to Lot 2 was not lawfully located in and under the easement. It is not irrelevant that some of the services enjoy statutory protection, quite apart from any easement: Water Supply (Safety and Reliability) Act 2008, ss 36 and 192; Electricity Act 1994 ss 98,112,113, 230 and 232.
[17] The respondents contend that they are not being unreasonable in refusing to accept the conditions attached to the imposition of the obligation. In my view s180(3)(c)(i) is satisfied as, until Mr Murphy entered the witness box, he and his wife had refused to agree to accept imposition of the obligation at all and that refusal was in all the circumstances unreasonable. As will be seen I consider that their continued refusal to accept those conditions proposed by the applicants to be unreasonable in the sense intended by the legislation.
[18] I turn now to the question that the respondents agitated, that is the question of what terms and conditions are just to impose on the imposition of the obligation. The question is governed by the legislation. The relevant provision is contained in s 180(4) PLA which provides so far as relevant:**
"(4) An order under this section (including an order under this subsection) -
(a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and
(b) may include such other terms and conditions as may be just; ..."
**[19] The differences between the respondent's position and the applicants can be summarized as follows:
(a) The respondents contend that there should be no change to the easement of way. The easement proposed by the applicants contains two extra clauses to which the respondents object as follows:
"1.2 Subject to clause 1.3, each grantee covenants with each other and with the grantor, and the grantor likewise covenants with each grantee, and the respective successors in title that each of them, the grantor and the grantee, will contribute toward the cost of keeping and maintaining any roadway (including any pavement and landscaping) constructed on the servient tenement to enable such access to be obtained. The grantor (counted as one) and each grantee (counted as one for each separate lot) must contribute equally to these costs.
"1.3 Any damage to any roadway (including pavement or landscaping) constructed on the servient tenement caused by the wilful or negligent acts of either the grantor or grantee (including their agents, licensees or invitees) shall be repaired solely by and at the cost of the party causing the damage."
(b) The respondents object to part of clause 2.1 of the proposed easement for services. That clause makes reference to services "within, upon and under the servient tenement". The respondents contend that the reference should be to "services under (but not on) the servient tenement". The significant point is that without the words that the applicants seek the power pole would need to be removed.
(c) The respondents wish to restrict the time at which service personnel and maintenance personnel can access the easement. The clause proposed by the applicants is that the grant or "covenants they shall at all times allow service personnel and maintenance personnel the right to enter ...". The respondents seek that the clause read: "That the grant or covenants they shall between the times of 7am to 5pm on weekdays (except in emergencies where no time restrictions apply) ...".
(d) The respondents seek that an additional clause be included to read:
2.5 "In circumstances where services are covered by a concrete driveway, access shall be gained by cutting the concrete as necessary to enable its removal, and repositioning the removed portion, on completion, to its original level at the cost of the person whose services are being maintained."
[20] The respondents submit that the "terms and conditions as may be just" should be restricted to the terms and conditions that they propose not as the applicants proposed. Significantly, if the power pole is to remain where it is, then they contend that they are entitled to compensation in an amount of $30,000 in accordance with the opinion of a valuer that is in evidence. The applicants disagree.
[21] I turn now to the respondents' concerns about the conditions on the proposed easement.
Conditions on the easement of way - Clauses 1.2 and 1.3
[22] The respondents' objection to these clauses was, I think, twofold. One is that there is already in existence an easement of way and there was no need to add conditions to it. Secondly, they would prefer to have control over the costs of keeping and maintaining the roadway over the easement area and required no contribution from the applicants or their successors in title.
[23] I do not agree with the respondents' views. The long history of acrimony between the parties, the distinct possibility of acrimony in the future either between the respondents and the applicants or between either of them and any successor in title to the other all suggest that it would be strongly advisable to lay down precisely the obligations imposed on each in relation to the area enjoyed by both. While there is the scope for future disputation whatever order is made the respondents' approach, in my judgment, is more likely to lead to such disputes. It would be seen by most as unjust that only one party bear the possible costs. While the respondents might be presently content to bear any costs that may not always be their view and it certainly may not be the view of any successor in title.
[24] A further point is that the requirement that any damage caused be repaired solely by the party who causes that damage is precisely the effect of clause 2.5 that the respondents themselves have proposed as being reasonable, albeit their condition is restricted to only one potential eventuality - interference with the concrete driveway in order to gain access to services. But that is by no means the only circumstance in which damage might be caused to the roadway.
[25] In my view the clauses proposed by the applicants are both reasonable and it is just that they be imposed.
[26] The significant issue agitated concerned the removal of the power pole. The uncontested evidence is that the power pole can be removed and replaced with a turret that would not impede on the easement. The cost of that removal has been investigated and is approximately $19,800. The relevant authority will not oppose that course but the applicants have no wish to incur that cost.
[27] Whether the incurring of that cost can be considered just depends in my view on two matters. One is a weighing up of that significant cost against the impact of the presence of the services on the value of the respondents' land and their potential enjoyment of their land, whether that be measurable by valuers or not. The other is the history of the provision of the services to Lot 2.
[28] As mentioned above the presence of the underground services has no impact on the respondents save for the occurrence of emergencies and the potential presence of service personnel. The significant point argued was that the power pole restricts the trafficable width of the easement.
[29] The easement as granted is 3m wide. According to the respondents' measurements the total width of the easement is 2.503m at the power pole. The position of the power pole reduces the effective easement width by .435m according to Mr Murphy's measurements. The principal inconvenience that the respondents identified brought about by the presence of the power pole is the impediment that it causes to very large vehicles and to things that they might tow - boats, trailers, caravans and the like. Mr Murphy reported that the maximum width of a large truck is about 2.45m excluding mirrors. Mr Murphy submitted that emergency vehicles would be unable to access 57A Todd Avenue i.e. Lot 1.
[30] It is not irrelevant to observe that there are in fact three objects that intrude into and obstruct passage along the easement of which the power pole is only one. The respondents are responsible for the other obstructions. One is a fence that the respondents caused to be constructed on the alignment of the easement the southern most part of which intrudes into the easement by about 62mm. This fence was constructed without consultation with the predecessors in title to the applicants, Mr and Mrs Busby, during the course of the construction of the residence on Lot 2.
[31] The respondents claim the right to so fence the easement. While the applicants did not put that right in issue in these proceedings the matter is not quite so clear cut as the respondents assume. No statutory authority to obstruct the easement has been identified and I know of none. The decided cases suggest that where the grant is silent, as it is here, although there is a presumption that the servient owner has a right to fence the common boundary, such a presumption could be rebutted if the construction of the fence blocks the right of way or makes it too narrow: Dunell v Phillips (1982) 2 BPR 9517; Baypeak Pty Ltd v Lim [2005] VSC 77 at [20]; Mantec Thoroughbreds Pyt Ltd v Batur [2009] VSC 351; Bolgari v Steiner School and Kindergarten [2007] VSCA 58; (2007) 20 VR 1.
[32] For present purposes the relevant point is that the construction of the fence throws some doubt on the claim that the pole and its consequent effect on the access to the rear of Lot 1 significantly impacts on the value and amenity of the lot. At the time of the construction of the fence the respondents made no claim that they had any right to have the pole removed - that claim was first made years later. If every millimetre counts, as the respondents contend, it is at least an odd feature of the case that they would worsen the access by the positioning of a fence, thereby emphasising the adverse impact on their own land of the access issues and, on their case, diminishing its value.
[33] The other obstruction to the easement is the positioning of the roof and eaves of the house on Lot 1 ie the respondents' house. As the applicants observe it is at least as big an obstruction on the easement as the power pole. When I asked Mr Murphy about the obstruction he conceded that it ought to be removed. However the removal of the roof and eaves is not in issue in this case.
[34] The relevant point is that the obstruction to vehicles is not caused solely by the power pole. Wide vehicles are often high as well. The number and class of vehicles whose ability to access the rear of Lot 1 is restricted only by the position of the power pole are diminished by the presence of the respondents' house. I observe that there was no evidence of how great the numbers of vehicles, boats etc. that fall into that class might be or how significant that class is to the Yeppoon real estate market.
[35] Apart from the ability to gain access for large vehicles and the like to the rear of the property no other adverse impact on Lot 1 was identified. As Mr Deaves, who appeared for the applicants, submitted the argument that emergency vehicles cannot access Lot 2 cannot be relevant to the impact of the presence of the power pole on the value of Lot 1.
[36] There is an issue of fact underlying the debate that I should dispose of. After the respondents acquired Lot 1 a new power pole was installed on the easement replacing the existing pole. The respondents contend that it was so placed such that it impeded on the easement by 40mm more than did the original power pole, that is, it was placed 40mm to the north. The power pole was replaced at the direction of a Mr Busby, a predecessor in title to the applicants. Mr Busby maintains that the positioning of the new pole was undertaken by agreement between him and Mr Murphy. This is disputed by Mr Murphy. I cannot resolve that issue but I do not see the need to.
[37] The respondents considered the issue of the precise placement of the pole to be of some significance to their case. I assume that the respondents were concerned that if the pole was in the same position in its north-south alignment as at the time they acquired their title then their claim to have the pole removed would be considerably weakened - they effectively have what they bought. While that is a factor I doubt that my decision would be greatly different whether the pole had been moved further north or not.
[38] The significant costs involved in replacing the pole, the small space differential, and the minimal impact on the respondents' enjoyment of their land all militate against this being decisive. As well there is no suggestion that any further encroachment, if there was any, was a deliberate act. The width of the easement is of importance to both the occupants of Lot 1 and of Lot 2. Each use that area as their driveway. I observe that if the power pole when moved did encroach further into the easement by 40mm this was done by contractors and without any intention on the part of the applicants' predecessors in title of so intruding. They, of course, were as much affected by any encroachment as would the owners of the servient tenement.
[39] Given that the question of the repositioning of the pole was the focus of much of the evidence and given that others may not share my view I will determine it. Mr Murphy gave evidence that the pole was aligned 40mm to the north after its repositioning. He based his evidence on two things, as I understood him. One was his own observation of the position of the pole and his ability to go up and down the easement after the pole had been moved to its new location. While Mr Murphy did not live in the residence on Lot 1 he did visit the house from time to time and use the drive way. The second piece of evidence that the respondents relied on was Mr Murphy's observation of the remnant of the pole. He excavated the remnant of the pole and located both that remnant and a concrete casing which he said surrounded the original base of the pole. He then carried out a measurement of the alignment of that pole with the alignment of the present pole demonstrating the 40mm difference.
[40] The applicants disputed that there was any such increased imposition on the easement by reason of the position of the new pole. First, they relied upon the evidence of Mr Busby, the predecessor in title. Mr Busby was the owner of the property for some 5 years prior to the movement of the pole and was the owner subsequent to its movement. As he lived there he passed up and down the easement every day. He said that his observation was that it was easier to go up and down the easement, that is, there was more width, after the pole had been moved rather than before.
[41] Secondly, the applicants relied on the opinion of an architect, Mr Brian Hooper. Mr Hooper was the architect supervising the construction of the Busby's new home. He had not carried out any measurements of the position of the old and new pole but he had been made aware of the problem with the old pole at the time it became apparent and had seen both in position. He did not claim to be able to tell whether one was positioned 40mm further north than the other. However he pointed out that there was considerable doubt whether the positioning of the remnant of the old pole and the positioning of the concrete, assuming it to be at the base of the old pole provided any guidance, with the necessary degree of accuracy, as to its alignment with the new pole. His point was that the poles do not necessarily decay evenly and the concrete base can move when the pole is extracted. Mr Murphy conceded the possibility of the possible movement of the base. Given the small difference in alignment - 40mm - Mr Hooper considered the existence and the positioning of the remnant and the concrete as being very unreliable guides to the positioning of the original pole.
[42] The point that Mr Hooper made was a reasonable one. It does not conclude the matter either way but it does introduce some qualification to the weight that can be given to Mr Murphy's observations.
[43] I am conscious that no love is lost between Mr Busby and the respondents. However I very much doubt that Mr Busby would be prepared to perjure himself because of his dislike of the respondents just as I doubt that Mr Murphy would be prepared to perjure himself because of the difficulties that he and his wife have experienced with their neighbours. Each, I am sure, was doing their best to explain accurately to the court their views. Mr Busby however was in much the better position to make the necessary observation given his daily experience over a significant period of time.
[44] Suffice to say that in the state of the evidence I am not persuaded that the position of the new pole is materially different from the position of the old pole in terms of its north-south alignment.
[45] Thus the application is to be decided on the basis that at the time each of the parties acquired the title to their respective lands the power pole was in a position that impeded to some degree upon the path of vehicles upon the easement and that has not changed adversely over the years. It has been the case for decades.
[46] While it can be accepted that the existence of the power pole restricts access and that a certain size vehicle would be unable to use, or comfortably use the passageway to gain access to Lot 2 or to the rear of Lot 1 the numbers of vehicles that would fall into that class would be very small indeed. The impact of that restriction is presumably considerably greater on the applicants than it is on the respondents. The frontage of the respondents' land is on Todd Avenue and so access is not such a critical issue for Lot 1.
[47] The question then may be posed in this way - is it just that a condition be imposed on the imposition of the user that will result in the applicants expending approximately $20,000 to maintain an essential service to their property in order to remove a power pole, a power pole which has been present on the easement and intruding that to the extent that it does for decades and prior to the acquisition by either party of their titles and the property? The disadvantage to the respondents, and to any proprietor of Lot 1, is small. I will come to the question of impact on the value of Lot 1 in a moment but in my view the cost of removing the pole is well out of proportion to the impact of the pole on the enjoyment that the respondents have of their land.
[48] I am not prepared to hold that it is a just condition of the imposition of the statutory right of the user sought that the power pole be removed.
[49] The condition of the easement proposed by the applicants should be accepted as appropriate and the condition proposed by the respondents rejected as one that is not just within the meaning of subsection of 180(4)(b).
[50] The respondents wish to restrict the ability of service and maintenance personnel to access the easement for the purpose of repairing and maintaining the services to the hours of 7am and 5pm on weekdays except in emergencies. The applicants wish for such personnel to have the right of access at all times. The condition that they propose was described from the bar table as being in the standard form.
[51] There is no suggestion that there has ever been any difficulty with service and maintenance personnel accessing the easement. It is highly unlikely that such personnel would access the easement outside normal working hours except in an emergency. Given the impossibility of predicting all eventualities that can arise it seems to me most unwise to restrict the access as the respondents propose. In my view such restriction is more likely to lead to further disputes. Again in my view the condition that the applicants propose is one that is just and reasonable.
Repositioning of the Concrete Driveway after Disturbance
[52] The proposed clause 2.5 effectively mimics the applicants' suggestions albeit in a more limited way. My acceptance of the applicant's clauses 1.2 and 1.3 makes it unnecessary to require clause 2.5 to be inserted into the conditions.
[53] Subsection 180(4)(a) requires that an order made under the section must include provision for payment by the applicants to the respondents "of such amount by way of compensation or consideration as in the circumstances appears to the court to be just". That is so unless special circumstances apply.
[54] The respondents contended, that assuming the power pole stayed, the imposition of the right of user impacted substantially on the value of their land. They called a registered valuer Mr Paul Turner, to say so. Mr Turner's opinion was that the value of Lot 1 was reduced by some $30,000 as a result of the impact of the power pole on the ability to access the rear of the property. Mr Turner argued that the loss of access "reduces the ability of the current owners to enjoy the option to construct a larger structure at the rear of their property" - by which he means a garage larger than the one that is presently there - that a 150 square metres of land is affected and this should be valued at $650 per square metre (using comparable sales) and 30% of that figure should be allowed as the loss.
[55] When challenged as to why he adopted the 30% figure Mr Turner said that that was his professional opinion. That answer is not enlightening. This failure to explain an essential part of his opinion undermines that opinion entirely. As Heydon JA (as his Honour then was) pointed out in Makita (Aust Pty Ltd) v Sprowles [2001] NSWCA 305 at [59] for an expert's report to be useful it is necessary that it "comply with a prime duty of experts in giving opinion evidence; to furnish the trier of fact with criteria enabling evaluation of the validity of the experts conclusions". Mr Turner did not identify the criteria that he brought into account in seizing upon the figure of 30%. So far as I am aware it may be an idiosyncratic view held by Mr Turner. It was certainly not supported by the other valuer called in the case, Mr Craig.
[56] There are other difficulties with the opinion. One is that $30,000 represents a very significant percentage of the value of the land ignoring the improvements upon it. Mr Craig thought that the figure approached 5% of the value of the land. Mr Turner disagreed but did not explain what his opinion was as to that percentage but it must be significant. Mr Craig explained the basis of his opinion. It seemed reasonably based on comparable sales. I accept it. To my mind 5% is a remarkably high percentage of the value of the land merely for the impact of being unable to get a very restricted class of vehicles, or large objects that they might tow, to the back of the property. As Mr Craig pointed out if that was indeed a significant matter all that the owner of the property need do is to remove the fence that the respondents have constructed along the alignment of the easement. The only restriction on access then would be the presence of the dwelling. As Mr Craig pointed out it is difficult to believe that a willing vendor, but one under no particular pressure to sell, would have reduced his sale price by some $30,000 to cater for a purchaser who might wish to get a slightly larger vehicle up the driveway but wished to ensure that no vehicle placed its tyres over the northern boundary of the easement. All the vendor need do is move the internal fence and the repositioning of the fence would cost a small fraction of the $30,000.
[57] Mr Craig's opinion was that there was no impact on the value of the property by reason of the existence of the pole. My earlier finding as to the location of the pole is significant here. If the relocation of the pole has not resulted in any further intrusion into the easement area then, for practical purposes, the land is in the same state as when the respondents acquired it. Presumably the price that the respondents paid for the land reflected the impact that the pole had upon the ability to gain access to their block. That it is more difficult now reflects the respondents' own activities which they are at liberty to undo.
[58] I am not persuaded that any compensation on any of these grounds is justified.
[59] The only impact that the imposition of the right of user will have on the respondents was one that was not explored at any great length in the evidence or at all in argument.
[60] Given the conditions that I propose to impose on the statutory right of the user, third parties will be entitled to come onto the easement to maintain the relevant services. There is no evidence of how likely that is to occur. As I have mentioned there seems to have been no need to access that area in the past. Experience suggests the attendance of such personnel is likely to be rare and those who come to homes to maintain such services usually have the good manners not to intrude on neighbours more than they must. Nonetheless it remains as a potential imposition on the respondents' quiet enjoyment of their land which would not otherwise be the case.
[61] The difficulty in making any allowance - and it could only have been a very modest one - is that the respondents appear to have assumed at the time of the acquisition of their title that the services present on and under the easement were entitled to be there. Hence the need for service personnel to enter onto the land was or should have been evident to a suitably informed purchaser. That potential imposition on their quiet enjoyment was presumably reflected in the price paid for the land initially.
[62] There appears to be a legislative injunction to order that "compensation or consideration" be paid to a servient owner unless there be "special circumstances". There is no hint in the legislation as to what might constitute special circumstances nor is there much assistance in the decided cases. Here the effect of my orders is to permit the continuation of the presence of services that have existed for decades, with no discernible adverse effect on the respondents' land value or the enjoyment of their land. Whether one considers that these matters amount to "special circumstances" within the meaning of s180(4)(a) justifying that no order be made for payment of compensation or consideration, or whether it simply be that it would not be just in the circumstances to allow any compensation to the respondents is not necessary to determine. In my view one or the other applies.
[63] There remains the issue of costs. The applicants submitted that the matter should be approached in two stages. The first stage relates to injunction proceedings. The second relates to the relief under s180 of the Property Law Act.
[64] First I need to say something more about the background facts.
[65] Mr and Mrs Busby became the registered proprietors of Lot 2 in 2002. They carried out the demolition of an existing home and construction of a new home in 2007. The genesis of the present dispute between these neighbours lies in that construction. There were several issues.
[66] The respondents complain that the building contractor or his sub-contractors did not keep to the easement area in passing to and from Lot 2 during construction but rather entered onto Lot 1 outside the easement area on its northern side. This was done, so the respondents say, despite their express instructions that it was not to happen.
[67] Secondly, an internal fence on Lot 1 running parallel to the edge of the easement area and about one half metre away from the northern edge of the easement was damaged beyond repair, according to the respondents. This damaged fence was replaced by the fence that I have mentioned that was constructed on the alignment of the easement.
[68] Thirdly, and this is common ground, the power pole present on the easement was found to have a base that was rotted. As I have mentioned this power pole was replaced and repositioned. It was repositioned at the request of the respondents closer to Todd Avenue (that is to the west). I have mentioned the dispute about its north-south alignment.
[69] The final issue concerned the level of the new concrete driveway that was installed.
[70] In August 2008 the applicants became the registered proprietors of Lot 2. They were then unaware of the on going dispute between the Busbys and the respondents.
[71] I do not need to detail the history of the acrimony that has destroyed the relationship between the applicants and the respondents. What is essential is to note that matters came to a head on 1 July 2012. On that date the applicants received a letter from the respondents, dated the previous day, which included the following:
"As of midnight Sunday July 8 2012 the use of the easement is strictly limited to the use described in the easement document i.e. passing between your property and the roadway. You have until this date to remove from the easement any items you consider to be your property and not permitted by the easement document i.e. water, electricity, storm water and telephone services. Any items remaining after this date will be removed by us and held for your collection."
[72] The applicants engaged solicitors who responded by letter of 3 July 2012. In the letter the solicitors pointed out that so far as the applicants were aware "any infrastructure running through the land which is the subject of the registered easement burdening your land in favour of [the respondents'] land is the property of the service provider of each respective service" and as such was protected by legislation regardless of whether it was the subject of a registered easement. The solicitors indicated that enquiries were being made to confirm that all infrastructures which supplied services to Lot 2 were in fact owned by the relevant service providers. In the letter the solicitors indicated that an application would be made to the court for the imposition of a statutory right of user to protect that property if necessary. The solicitors also indicated that they held instructions to make application to the court for an injunction to issue restraining the respondents from carrying out what was termed their "threat" to disrupt the services enjoyed by the applicants. The solicitors sought from the respondents a written undertaking not to interfere with those services without first giving 14 days written notice.
[73] The respondents did not provide any undertaking and the applicants applied to the court for injunction ex parte which was duly granted by the Chief Justice on 6 July 2012.
[74] The respondents filed material which suggested continuing opposition. The matter came before me on the 16th July 2012. By this time the respondents were prepared to give an appropriate undertaking but sought a similar undertaking from the applicants. Whilst protesting that they had no reason to give any undertaking as they had not harmed or threatened to harm the property of the respondents the applicants provided that undertaking and upon those cross undertakings the matter was adjourned and the present application brought.
[75] By email of 2 October 2012 the male respondent made two points in relation to the proposed easement. One was the conditions it contained were not necessary. The second was expressed as follows:
"The existence of any above ground infrastructure in the easement will always hinder vehicle traffic for both parties and should be eliminated by re-design of the electricity supply method."
[76] By letter posted and emailed on the same date (i.e. 2 October 2012) the applicants' solicitors sought the respondents' advice as to whether they were prepared to agree to the surrender of the existing easement and the registration of the new easement in the form attached to their earlier letter. By email the following day the male respondent advised:
"Until the issues are raised in the previous email, and others that may arise, are addressed to my satisfaction, nothing will be agreed to or signed".
[77] On the 8th October 2012 the matter returned to court when directions were made.
[78] Their matters remained until Mr Murphy advised in his evidence the respondents' response to the proposed conditions.
[79] I can see no reason why the respondents should not pay the costs related to the injunctive proceedings. The letter that they wrote contained what in my view is accurately described as a threat to interfere with the essential services to the applicants' property. Despite an invitation to provide a written undertaking none was forthcoming. The applicants had no choice but to bring the application to prevent interference with their essential services.
[80] Mr Murphy submitted that all he and his wife intended by their letters and emails were to force the applicants to negotiate reasonably with them. There is, regrettably, no indication in the communications revealed to the court of any attempt by the respondents to do so.
[81] There is no reason that I can see why the usual rule should not apply and costs follow the event (see r 681 Uniform Civil Procedure Rules 1999). It is appropriate that the respondents pay the costs of and incidental to those proceedings.
[82] The applicants seek that those costs be paid on the indemnity basis pointing to the reasoning in Tran v Cowan [2006] QSC 162. That too was a case involving the application of s 180 and there indemnity costs were ordered to be paid. In the course of his reasons Chesterman J, as his Honour then was, pointed out that had the respondents been honest "it would have been obvious to all concerned, the parties and their advisors, that the application had to succeed". The applicants argue here that it should have been obvious that the injunctive proceedings would succeed and I agree. However it was not the certainty of success that justified the order on the indemnity basis in Tran but rather the dishonesty of the defence. It is important to appreciate that I have not found that the respondents acted dishonestly.
[83] In Paroz v Paroz & Ors [2010] QSC 157 Peter Lyons J provided a summary of the principles that apply to an award of indemnity costs, with due acknowledgment of the submission made to him by Mr APJ Collins of Counsel. In reliance on Colgate Palmolive Co v Cussons Pty Ltd;[1] John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd;[2] Cosgrove & Johns;[3] and Di Carlo v Dubois[4] his Honour extracted the following:**
"(a) the ordinary rule is that costs are payable on a standard basis;
(b) the court ought not usually make an order for the payment of costs on some basis other than the standard basis unless the circumstances of the case warrant the court in departing from the usual course. The tests for such departure include 'as and when the justice of the case might so require' and 'some special or unusual feature in the case to justify the court in departing from the ordinary practice';
(c) the categories in which the discretion may be exercised are not closed;
(d) the question must always be whether the particular facts and circumstances of the case warrant the making of an order for the payment of costs other than on the standard basis. Circumstances which have been regarded as warranting the exercise of the discretion to award indemnity costs include:-
vi. an imprudent refusal of an offer to compromise; and
(e) Judges are not necessarily obliged to exercise their discretion to make an order for indemnity costs. Costs are always in the discretion of the trial judge, and provided that the discretion is exercised having regard to the applicable principles its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error of justice."
**[84] Peter Lyons J also referred to Todrell Pty Ltd v Finch & Ors; Croydon Capital Pty Ltd v Todrell Pty Ltd & Anor [2007] QSC 386 where Chesterman J identified a test which he had applied as being "whether there was something irresponsible about the conduct of the losing party which exposed its opponent to costs which should, in fairness, be ordered on the indemnity basis. It is, of course, irresponsible to commence proceedings which cannot succeed because of a known legal impediment."
[85] I think that there are several relevant points. While the respondents did not commence these proceedings they certainly invited them. As I have said the actions of the respondents left the applicants with no choice. Assuming in the respondents' favour that they acted reasonably in demanding that the services be removed, the time period that the respondents allowed was remarkably short for the removal of several services each of which was essential to the applicants. Even if illegally present the services did the respondents no harm nor cause any present inconvenience. To require removal within a week was, on any view, plainly unreasonable. However as I have found the respondents did not act reasonably in demanding that the services be removed. It would seem that they sought no legal advice before acting so precipitously. Nor did they consult the statutes that applied to the services. When the applicants' solicitor drew relevant matters to their attention they paid no heed. A reasonable offer of compromise was made by the applicants and was ignored. That was imprudent. The irresponsibility of conduct that Chesterman J thought should be the guide is present here.
[86] For these reasons I am persuaded that it would be just to order costs on the indemnity basis in respect of the injunction proceedings.
[87] The application pursuant to s180 of the Property Law Act was instituted by amending the originating application by a document filed on 10 October 2012. Subsection 180(6) is relevant and provides:
"In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner."
[88] The applicants submit that there are such special circumstances here and identify the following:**
(a) The conduct of the applicants was just and reasonable;
(b) The applicants had at all times a very strong case for relief;
(c) The need to bring the application only arose because of the conduct of the respondents there having been no issue with presence of the services for many years prior to the respondents making their threat;
(d) The respondents sole ground for opposing the application is entirely the respondents own making;
(e) The respondents blanket rejection of the terms of the easement proposed by the applicants;
(f) The respondents attempt to take "opportunistic advantage" of the applicant's position.
**[89] The legislative injunction not to order costs except in special circumstances is made against a background that there has been an anterior finding that the refusal of the owner of the servient lands to accept the imposition of the obligations sought was unreasonable (the precondition in s 180(3)(c)(i)). Thus the fact that the applicants' cause was just and reasonable and the respondents' opposition unreasonable cannot in my view amount to special circumstances within the meaning of the subsection. Nor in my view can the respondents' rejection of the terms of easement that was initially proposed and eventually pursued successfully in court such a circumstance. Nor can the fact that they were not prepared to negotiate. All this is encompassed in the accepted unreasonableness of the opposition to the application.
[90] The applicants rely on the reasoning of Chesterman J in Re De Pasquale Bros Pty Ltd & NJF Holdings Pty Ltd [2000] QSC 004 at [9]:
"The terms of the section s180(6) suggest that an unreasonable refusal to allow land to be used is not enough to justify an order for costs. Something more is needed. However the generality of the language of subsection (6) suggests that the respondent's conduct which amounts to an unreasonable refusal may be of such character as to constitute a 'special circumstance'."
[91] The facts in De Pasquale were quite out of the ordinary and, as Chesterman J held, those facts took it out of the norm - the burden imposed upon the servient land was of limited duration; the burden imposed would not diminish the extent to which the servient owner could enjoy his own land; and the order was sought for the protection of the respondent's building, not as a means of increasing the applicant's enjoyment of his own land.
[92] Two of those features at least are not present here - the burden to be imposed is of indefinite duration and the purpose of the order is to preserve the applicants' enjoyment of their land.
[93] The most significant argument advanced by the applicants was the "opportunistic advantage" point and there is some force in that.
[94] Mr Murphy submitted that the respondents' opposition to the statutory right of user was not unreasonable in that the services had been placed on his land without consent and hence constituted a trespass. For him to protest at the trespass and to seek conditions more suitable to him he argued could hardly be characterized as unreasonable.
[95] The difficulty with that argument is that there is no evidence that the services were placed on the land without consent. How and why they came to be there is simply unknown. There may have been discussion at the time and agreement reached between respective registered proprietors. There are other possibilities. I can see no basis upon which to commence from an assumption that there was a trespass, as Mr Murphy has done.
[96] But in one sense Mr Murphy is right - it can hardly be perverse to insist that the legality and conditions of the continued presence of another's services on one's land be determined. If the services were there merely at the leave and licence of the proprietor of Lot 1 that leave and licence was no doubt revoked by the respondents. The Murphys broke no law in doing so. To the extent that the services were not statutorily protected then it was necessary for the applicants to bring the application and, as the respondents belatedly realized there could be no sensible opposition to that application. And it is true that the respondents left it very late to make plain the limited extent of their opposition. By that time the applicants had closed their case. However it does not appear to me that the applicants were forced to call evidence that they would not otherwise have called - there always remained the issue of the original location of the power pole and the extent to which it impacted upon the enjoyment of the servient tenement. The applicants were successful on that issue but I do not see that as a special circumstance. Nor is it a special circumstance that the respondents sought that conditions be imposed that better suited them and failed in that attempt. The underlying premise of the legislation is that the legislature expected there to be opposition, and unreasonable opposition, to requests to impose on the property rights of others. The jealous guarding of one's rights is all that one might expect in these cases. The level of perversity in the respondents' conduct in De Pasquale is not present here.
[97] In my view no special circumstance is shown and I have no jurisdiction to award costs in the applicants' favour, despite their success on the application.
(a) that a statutory right of user be imposed upon the land described as Easement A on registered plan 611793 in the County of Livingstone and Parish of Yeppoon, in favour of the land described as Lot 2 on registered plan 609674 in the County of Livingstone and Parish of Yeppoon, in the form of the draft easement attached to exhibit RCW-02 to the affidavit of Roy Charles Ware filed 5 October 2012;
(b) that the respondents pay the costs of the applicants, limited to those of and incidental to the injunction proceedings, on the indemnity basis.
(c) that there be no order as to costs in respect of the application for the imposition of a statutory right of user.
Graham and Anor
Murphy & Anor [2013] QSC 21
(2007) 20 VR 1
(1993) 118 ALR 248
(1994) 52 FCR 201