In this regard, it is to be observed that this is not a case where a grant of an easement would require that the owner of the servient tenement submit to the carrying out upon his land of extensive and disruptive work associated with the installation of a substantial pipe. The pipe was in situ when Mr Carr-Gregg purchased the land and he has had some benefit from it ever since, insofar as it has prevented the water that has flowed through it from coming unimpeded onto his land.
43 The defendants' main assertion is that the sought for easement is not reasonably necessary because the installation of an electrical pump-out system by Mr King would cope with the drainage problems of his property, without there being any need for the drainage easement in respect of the subject pipe. The existence of this allegedly viable alternative, it is said, removes any necessity for the easement.
44 The evidence in relation to such a pump-out system is far from clear. Reliance is placed upon Mr Juradowitch's notation on the file, which is set out above, it being submitted by the defendants that, if the easement be refused, then the Council will accept the pump-out proposal, which it earlier failed to approve. I am quite unpersuaded by this argument. The evidence makes it plain that the pump-out proposal was put to Council on behalf of Mr King, as a fairly desperate measure to obtain approval for his development, in circumstances where it had been considerably delayed through his inability to obtain the required deed. Even in this situation the Council was not prepared to approve the pump-out system. Indeed, the evidence makes it plain that the use of such systems is against Council policy. I am not prepared to find that, should the current application be refused, the Council would accept the previous or any other proposal for a pump system. Indeed, the Council's "Stormwater Management Manual" states quite unequivocally, in paragraph 2.4.2 that "Council will not approve the use of pump systems for site drainage."
45 Notwithstanding this, it was argued on behalf of the defendants that a pump-out system would be "substantially preferable" to an easement over the existing pipe. In this regard, use was sought to be made of portion of the formulation of Hodgson CJ in Eq, in the passage referred to above. It is to be noted that the passage, in relation to the formulation in terms of substantial preferability, contrasts situations of use or development with and without the sought for easement. This is not really the position here, where the contrast sought to be made is between alternative methods of site drainage.
46 However, considerable time and effort has been expended in this case on the part of the defendants in seeking to establish that an electrical pump-out system would be of such utility in meeting the drainage problems on the King property, that the granting of an appropriate easement over the existing pipeline through the Carr-Gregg property could not, in the circumstances, be substantially preferable to its not being granted. It is submitted, on the basis of evidence to which I shall refer, that the establishment of a pump-out system in the King property would obviate the use of the pipe and consequently any need for the grant of an easement over it.
47 While judicial translation of statutory words can, quite frequently, be of assistance in understanding and applying them in particular fact situations, such translations can never become a substitute for the words of the statute. Indeed, the using of such translations, which have proved helpful in the decision of other cases, may not always be of assistance in cases involving significantly different facts. It must be remembered that the basic question for decision in the present case is whether the granting of the sought for drainage easement is "reasonably necessary" for the use or development of the King property. The obtaining of this easement has, in fact, been made a condition of approval for its development. It remains so, even though the development has now taken place. In any event, in my view, a drainage easement over an adjacent property may be seen as being clearly related to the use of the property having the benefit of it.
48 Nevertheless, it is the major argument of the respondent that the alternative of a pump-out system renders unnecessary the grant of the drainage easement, insofar as the use of the existing pipe has not been shown to be substantially preferable to the installation of such a system. I have already indicated that I am not persuaded that the Council would, in any event, countenance the installation of such a system. However, the respondent's argument proceeds on the basis that, should the Court refuse to grant this easement, then the Council would feel constrained to consider a pump-out system as an alternative solution to the drainage problem, created by the failure to obtain the relevant easement in 1977.
49 On that basis, it has been urged upon me that I should accept the evidence of Mr Rowbottom, an expert witness called on behalf of the defendants, as establishing that an electrical pump system was relevantly preferable to the use of the existing pipe, even when the pipe was used in conjunction with the OSD which has been constructed on the King property. The passage from Mr Rowbottom's evidence which is particularly relied upon in this regard, reads as follows:
"Q. Having regard to the particular problems of this site, Mr Rowbottom, namely, the problems about the water, etcetera, what in your opinion is the preferable criteria, the pump-out or the easement?
A. My preference in any location would be to use gravity if we can. In this particular situation here we have an existing pipe that has insufficient capacity and we have the potential for flooding for any events between the capacity of the pipe and the hundred year event I believe that anything that we can do to reduce the impact on that drainage pipe, ie: pump some of the water, although not a lot of the water, up to 3A Edward Street will be beneficial, would be beneficial for this system.
Q. So might I ask you again, would that be the preferable system in regard to the problems with this site?
A. In regard to this particular property, yes."
50 As I understand counsel's submissions, this passage is relied upon as indicating that Mr Rowbottom expresses the opinion that a pump-out system as such would be a preferred alternative to the existing drainage system, utilising the OSD and the existing pipe. It appears that counsel founds this submission upon the second question and answer. In my view, however, it is plain that Mr Rowbottom, in answering the second question in the affirmative, had in mind the previous answer that he had given. This did not envisage the use of the pump system to dispose of the totality of the stormwater on the King property but only so much of it as accumulated as flood water during the relevant "hundred year event", when the pipe was posited as having insufficient capacity to cope with the excessive demands upon it. This passage simply does not establish the proposition contended for.
51 The pump-out system received consideration in another aspect of the expert evidence, to which it is necessary to make short reference. At the Court's direction Mr Rowbottom conferred with Mr Kenny, the expert witness for the plaintiff in order to ascertain whether the two hydrologists could arrive at points of agreement and points of difference with regard to their views on the drainage problems posed in this case. As a result of their discussions they produced a document, Exhibit "C", which set out the matters upon which they had agreed. Each gave oral evidence in relation to this document, to the salient features of which I shall now refer.
52 The subject pipe is a 375mm diameter concrete pipe. Besides the pit, which constitutes its entrance on the King property, it has two other pits which are referred to as pits "C1" and "C2" which exist in the Carr-Gregg property. These pits have certain hydraulic functions. The experts agreed that the theoretical capacity of the pipe was 340 litres per second. It could not cope with a flow rate of water in excess of this amount. Were it required to do so, flooding would occur, either as a result of the waters not being accepted at the pit entrance in the King property and, consequently flooding back from the pit, or through the "surcharging" of the pits "C1" and "C2", which would involve waters being forced out through the concrete lids of the pits. I should observe, that the evidence fails to indicate, with any degree of clarity, that such adverse events have ever, in fact, occurred.
53 In their theorising, the experts considered the capacity of the pipe to provide effective drainage in three particular weather situations. In the first place it was agreed that, in 1977, the Council accepted, as a design parameter, that approved drainage systems should be able to cope with hypothetical rainstorm conditions occurring on the basis of once in twenty years, this being described as a twenty year average recurrence interval (ARI). Since 1977, however, regard has been paid to storm conditions described as fifty year ARI and one hundred year ARI. So far as I could gather from the evidence, which, in some respects, I found difficult to elucidate, the best current engineering practice calls for design consistent with a hundred year ARI but Councils tend to be satisfied with designs that conform to fifty year ARI. As a result, Messrs. Rowbottom and Kenny provided, in Exhibit "C", evidence relating to each of the latter periods. They did so on the basis that they were considering "two options…to drain OSD on 3A Edward Street". These options were described in Exhibit "C" as "(a) Pump out to Edward Street (refer to 2.4.2 Council Policy). Feasible option but not as reliable as gravity system. (b) Drain through Carr-Gregg 375mm pipe (ie grant easement to drain). Pipe capacity limited to 340l/s."
54 These two options were then considered in relation to the fifty year ARI and one hundred year ARI hypothetical storm situations, having regard to the existence of the current OSD on the King property and the theoretical capacity of the pipe at 340 litres/second. By means of computer modelling in relation to the assumed total catchment area for waters coming onto the King property, the experts arrived at hypothetical "flows exceeding pipe capacity". In relation to the "pump-out option", for the fifty year ARI storm, there would be an excess flow of 46 litres/second as against the drain option with an excess flow of 62 litres/second. In respect of the one hundred year ARI storm the excess flows would be 107 litres/second for the pump-out as against 123 litres/second for the drain.
55 As the experts considered that it was appropriate to have regard to the one hundred year ARI storm, it is necessary to consider what significance, so far as can be gathered from the evidence, should be attributed to these latter figures. In the first place, it is apparent that, in the posited situations, neither the pipe nor the pump are seen as capable of coping with the water coming to the King property. The difference in flow rate of 16 litres/second is equivalent to one and a half buckets of water per second and, I am satisfied by the evidence of Mr Kenny, has no real significance. In fact it represents the capacity of the pump to discharge water up to the Edward Street level. If, indeed, this is the pump's capacity I have difficulty in understanding how it can be described as a "feasible option". When I take into account Mr Rowbottom's evidence, set out above and relied upon by the defendants, I find myself more than a little confused as to what the defendants' case in relation to the pump-out system really is. Mr Rowbottom seems to regard it as a back-up to the pipe and dependent upon the continued use of the pipe in conjunction with the pump in order to cope with the one hundred year ARI storm. If this be the case, then the two options cannot be regarded as true alternatives.
56 Moreover, it is difficult to afford great weight to the theoretical flow figures in Exhibit "C". They involve many imponderables and estimates. Mr Kenny described them as "ropey" and stated that they did not take into account improvements to the current OSD system and the King property drainage pit, which were suggested in Exhibit "C" and to which I will make subsequent reference.
57 In the result, I am completely unpersuaded that a "pump-out system" provides a viable alternative to the use of the existing pipe, such that the sought for easement should be found to be not "reasonably necessary", or not "substantially preferable".
58 A secondary argument was put forward by the defendants, to the effect that the easement was not reasonably necessary, because of an offer on the part of Mr Carr-Gregg to enter into a deed granting permission to Mr King to use the pipe for a period of ten years. This offer was made at the commencement of the hearing. It, apparently, took the place of an earlier offer for the same period of use but which had coupled with it a condition that Mr King would never seek an easement over the pipe. The offer carried with it the possibility, if not the probability, that at the end of that period Mr Carr-Gregg would withdraw permission for the use of the pipe. It, clearly enough, did not take into account what might occur, should Mr Carr-Gregg wish to sell his property within the period. This offer was, quite reasonably, rejected by Mr King as offering no satisfactory solution. It was argued that the Council had been prepared to accept such a deed for the purpose of granting the necessary approvals for the development of the King property. The evidence does not bear this out. In my view, the Council documents indicate the reverse.
59 When one also considers that the pipe has been in situ for twenty-five years and has, apparently, in conjunction with the pipes bringing drainage water from 9 Edward Street and 17 Rosedale Road, operated without significant malfunction or the occasioning of identifiable harm to the Carr-Gregg property, then, in my view, "reasonable necessity" for the granting of the easement is amply demonstrated. Although the imposing of an easement lies in the discretion of the Court, in my opinion, not to so regularize this important segment of this long established drainage system would be an absurdity.
60 It was also contended on behalf of the respondents that no easement should be granted because the situation was such that, within the meaning of s. 88K(2)(b), loss or disadvantage arising from its imposition could not be "adequately compensated for". It was submitted that, in effect, it would not be possible to arrive at an appropriate figure for compensation as there were so many imponderables to be taken into account. There is no substance in this argument. Arriving at a figure for compensation presents, in my view, no more difficulties than were to be found in previous cases in which the Courts have awarded compensation in relation to the grant of an easement under the section. Indeed, both sides have provided expert and lay evidence to assist in the computation of compensation in the present case, which is made easier by the fact that the relevant pipe is already in existence.
61 I am of the view that the real question in this case relates to what, if any, terms, conditions, or undertakings should be imposed or required in relation to the imposition of the easement. It is in this area that the opinions of the experts provide real assistance. Having regard to changes in approach to the reasonable requirements of drainage since 1977, it is appropriate to consider what requirements might properly now be imposed, over and above what would have been seen as sufficient at the time when the easement was proposed but not obtained. In this regard, I am satisfied that compliance with a twenty year ARI standard should not be regarded as sufficient and that, in the circumstances, having regard to the agreed expert evidence, a one hundred year ARI standard is appropriate. The question is, what is reasonably necessary to give effect to this standard. It seems plain that the standard could be met if the present pipe were removed and a wider pipe, say 450mm, was substituted. However, this would be plainly absurd and neither side seeks such a solution, nor does it have any support in the expert evidence. Clearly, what has to be aimed at, is the reduction in the flow rate of waters coming on to the King property so that these waters can be received into and disposed of by the existing pipe, without occasioning significant flooding.
62 The evidence demonstrates that realisation on the part of local Councils that earlier stormwater drainage systems have become increasingly less able to cope with surface waters occasioned by increasing development of land has resulted in their introduction of OSD's, as a condition of new development approvals. As I have already indicated the current OSD on the King property has Council approval and appears to function quite satisfactorily. The expert evidence, however, demonstrates that it is not adequate to cope with the one hundred year ARI hypothetical storm. Moreover, it was constructed in accordance with a flawed approach to the actual size of the relevant catchment area for the King property. It is capable of coping with the twenty year ARI situation and, probably, the fifty year ARI situation. However, for the one hundred year ARI position, the evidence satisfies me that it should be made more efficient.
63 In the first place the orifice plate which operates to control the outflow of water from the OSD into the drainage pipe system needs to be modified so that a maximum outflow of sixteen litres/second is ensured. This requires only a minor adjustment and should be attended to. The next requirement is that water be retained in the King property in a way which will enable it to be disbursed through the OSD at that rate of flow. The evidence clearly indicates that this can be achieved by supplementing the holding capacity of the OSD by using the area of the tennis court, in which the OSD is situated, as a further retaining device. This can be done by increasing the height of the existing brick wall round the tennis court by the addition of a further two courses of ordinary bricks. This will have the effect of retaining considerably more water than is currently retained by the OSD and which, having been so retained, will disburse through the OSD at the required rate of 16 litres/second. Moreover, the present OSD is connected to a 150mm pipe, part of the drainage system from No. 9 Edward Street through which the water is taken to the pit at the top of the subject pipe. I am satisfied, on the evidence, that this connection should be removed and, in its place, a fresh pipe laid which will take the water from the OSD directly to that pit. This, according to the expert evidence, will enhance the performance of the OSD. This work should also be done.
64 In addition, the evidence indicates that the operation of the exit pit on the King property could be enhanced, if alterations were made to it which would enable it to receive and deal with increased flows of drainage water. The experts agree that such alterations could be easily designed and executed, although no plans for them currently exist. It is obviously desirable that such plans be drawn up expeditiously and the work performed as soon as possible, no doubt in conjunction with the laying of the new pipe between the OSD and this pit. I am satisfied that this work should be done. I am also satisfied that, as the experts agree, a grate should be placed on the top of this pit to prevent the entry into it of materials which might cause blockages in the pipe.
65 Messrs Rowbottom and Kenny also suggest that additional work might advantageously be done in respect of the pipe in the pits "C1" and "C2" in Mr Carr-Gregg's property. It is suggested that an investigation be conducted by means of a TV closed circuit device to ascertain whether there may be excessive turbulence in those pits and whether consequent alterations should be made. I gained the strong impression from the evidence that this work was regarded as desirable but by no means immediately essential. Indeed, there is no evidence in the case of any malfunction in these pits during the period that Mr Carr-Gregg has owned 14 Nelson Street property or previously. Mr King may, having regard to the experts' opinions, decide to undertake and pay for this work. However, I am not persuaded by the evidence that I should require that it be done as a condition for the imposition of the easement. Mr Carr-Gregg must have been well aware of the existence of the pipe for many years and of the work that it performs. He has, of his own volition, executed landscaping work which has had the effect of obscuring the covers to these pits. I find it somewhat surprising that he should have done so, without first considering whether this work might lead to future problems. It must have been reasonably apparent to him, as a solicitor, that the absence of a registered easement over this long established drainage pipe was due to some past mistake or oversight, which, at some future time, would be sought to be rectified.
66 I am of the view that the performance of the work, which I have indicated is required, should be made the subject of undertakings to be given to the Court. An easement can then be granted in the ordinary statutory form without amendment or addition. I consider this course preferable to including these matters as terms of the easement itself. It follows that I reject the form of easement proposed by the defendants in their written submissions. I consider that the easement should be of the width of and follow the line of the "proposed" easement depicted in DP 3662.
67 I have given consideration to the question of compensation, notwithstanding Mr Carr-Gregg's earlier insistence that he did not seek any payment. Both sides have called valuers. The main basis, in my opinion, on which compensation should be awarded in this case is for what is described as "blot on title". The Carr-Gregg property has had on its title, previously, only a "proposed" easement. It will now have a registered easement. My task in arriving at compensation for this "blot" is made easier by the fact that the respondent's valuer put a figure of $20,000 on it whilst the plaintiff's valuer arrived at $25,000. In the circumstances I will award $23,000 in respect of this aspect of the claim for compensation.
68 This is not a case where significant and disruptive work is required to be performed upon the servient tenement in order to lay drainage pipes. Any future disturbance in the area of the easement, of a significant nature, will, in my view, be largely occasioned by the fact that Mr Carr-Gregg has chosen to cover over the openings to the pits "C1' and "C2" and render them difficult of access. I consider that an award of $3,000 is sufficient to allow for any future disturbance or disruption.
69 As to compensation for the so called "hope" factor, some sketchy evidence has been given as to possible development of the Carr-Gregg property in the future in conjunction with the property of a neighbour. It is said that the existence of the easement might occasion problems in relation to any such development. I am not particularly impressed with this evidence but am prepared to allow a further $4,000 under this head.
70 Accordingly, I award compensation in the total sum of $30,000.
71 Section 88K(5) provides that the costs of the proceedings are payable by the applicant subject to any contrary order by the Court. The cases make it clear that, generally speaking, the plaintiff is ordered to pay the defendants' costs of the application. I have considered whether I should vary this order in this case as, in some respects, I have found Mr Carr-Gregg's attitude in relation to the granting of an easement in respect of this obviously important and long established drainage pipe, somewhat unreasonable. However, on balance, I am not persuaded that I should depart from the usual order. Accordingly, I order that the plaintiff pay the defendants' costs of the application. However, I reject the application that these costs should be on an indemnity basis.
72 I direct that the parties bring in Short Minutes of Orders giving effect to this decision at 9.30am on Tuesday 28 May, 2002. .