CREATION – where the parties own adjoining properties –
where a
driveway straddles the boundary of the parties’ properties – where
Source
Original judgment source is linked above.
Catchwords
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –CREATION – where the parties own adjoining properties –where adriveway straddles the boundary of the parties’ properties – wherethe driveway is not registered, and has neverbeen registered, as an easement,encumbrance or interest on the title of either properties – where therespondents had conductedworks on the driveway – where the applicantssought a declaration that there is an easement by prescription, oralternatively,a grant of a statutory right of user – whether an easementexists at law or should be declared pursuant to s 180 of the Property Law Act1974 (Qld)Land Title Act 1994 (Qld) ss 185,185(1)(c)Property Law Act 1974 (Qld) ss 180, 180(1), 180(3), 180(4),180(6), 198A2040 Logan Road Pty Ltd v Body Corporate for PaddingtonMews CTS 39149 [2016] QSC 40, cited
M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257,
cited
Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578,
cited
Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 1
WLR 657, cited
Woolworths Ltd v Maryborough City Council [2005] 2 Qd R
203, cited
Judgment (120 paragraphs)
[1]
A dispute about an easement and statutory right of user
[2]
[1] Since 16 June 2011, the applicants have been the registered owners of a residential property at 11 Salisbury St, Woolloongabba ("Number 11"). Since 21 December 2021, the respondents have been the registered owners of an adjoining residential property at 15 Salisbury St, Woolloongabba ("Number 15").
[2] Number 11 is improved with a Queenslander style house, faces Salisbury Street to its north, on its western boundary adjoins a residential property at 7 Salisbury St ("Number 7") and on its eastern boundary adjoins Number 15. The applicants happen to also be the registered owners of Number 7. A driveway comprised of two parallel concrete strips runs from Salisbury Street into the rear of Numbers 11 and 15, straddling the boundary of those properties ("the driveway"). At the rear of Number 11, in the back yard, is a shed-like structure ("the garage"), which likely contains asbestos. The garage has a tilting door which reduces its usable height. The garage can accommodate a car but is not big enough to accommodate a larger vehicle, such as a van. Beside the garage is a concrete pad or slab, which was described in the evidence as a car parking pad ("the pad"). A carport type structure was formerly erected over the pad. In or about February 2022, a storm damaged the carport, which has since been demolished and removed.
[3] It is uncontroversial that the driveway is not registered, and has never been registered, as an easement, encumbrance or interest on the title of Number 11 or on the title of Number 15. In relation to the driveway, the applicants and the respondents are in dispute as to whether an easement exists at law or should be declared pursuant to s 180 of the Property Law Act 1974 (Qld) ("the Property Law Act").
[4] This proceeding started by an originating application filed 5 February 2024. The originating application was supported by an affidavit of the first applicant ("Mr Greatrex") filed 5 February 2024. The originating application was returnable on 22 February 2024. On that date, no interlocutory injunctive relief was sought by the applicants. Rather, directions were made for a trial to occur on 21 March 2024. The respondents were directed to file and serve any affidavit evidence on which they intended to rely by 8 March 2024. The applicants were directed to file and serve any expert evidence on which they intended to rely by 8 March 2024. The applicants were further directed to file and serve any affidavit evidence in reply by 15 March 2024. The respondents were further directed to file any expert evidence on which they intend to rely by 15 March 2024. In response to those directions, the applicants filed no further evidence. On 14 March 2024, the respondents filed an affidavit of the first respondent ("Mr Murray"). On 15 March 2024, the respondents filed an affidavit of an expert valuer, Mr Hugh Bristow ("Mr Bristow") and an affidavit of an expert town planner Mr Kieran Ryan ("Mr Ryan"). On 21 March 2024, the applicants filed an affidavit of an expert town planner, Mr Matthew Taylor ("Mr Taylor") and a second affidavit of Mr Greatrex. The trial was adjourned. The applicants were ordered to pay the costs thrown away by reason of the adjournment. The respondents were given leave to file responsive evidence from Mr Ryan and further responsive lay evidence by 11 April 2024. On 12 April 2024, the respondents filed a second affidavit of Mr Murray. On 1 May 2024, the respondent filed a second affidavit of Mr Ryan.
[5] The trial was conducted on 13 June 2024.
[3]
[6] Since its acquisition by them, the applicants have rented out Number 11. As at the time of the trial, there were three tenants living at Number 11. One of the tenants is William Orrick ("Mr Orrick"), an electrician who drives a van. None of the tenants gave evidence at the trial.
[7] The respondents purchased Number 15 with a view to renovating and living in the dwelling on the property. Mr Murray described the searches and inquiries he made about the driveway prior to the respondents' purchase of Number 15. Mr Murray recalled that he "did all the searches" and had instructed his lawyer to "look at whether there was anything that would burden the property". He had spoken to the vendor's real estate agent and inquired whether there was "any agreement, anything in writing" about the driveway. He had been advised by the agent to the effect that there was no such information or agreement. He concluded from the results of his searches and inquiries that the driveway was not a driveway which burdened the title of Number 15. He formed the belief that, if the respondents purchased Number 15, they would be able to build to the boundary of Number 15. I accept Mr Murray's evidence about these matters.
[8] Mr Greatrex did not describe any searches or inquiries he had made, or had caused to be undertaken, in relation to the driveway prior to the applicants' purchase of Number 11. Mr Greatrex recalled that when the applicants purchased Number 11, the next door neighbour at Number 15, Margaret Katschuriak, told him that "the driveway was a shared driveway". In his written evidence in chief, he recalled having agreed with Ms Katschuriak that no-one from Number 11 or Number 15 would park in the driveway, but they would "travel all the way through to end of the driveway and park in the respective properties". Under cross examination, he described the effect of his agreement with Ms Katschuriak as being that the applicants or their tenants could use the driveway as long as they did not park cars in the driveway. Ms Katschuriak was not called as a witness. I am not satisfied that Mr Greatrex had any conversation, or entered into any agreement, with Ms Katschuriak along the lines which he purported to recall. I find that no such agreement was made.
[9] In relation to that finding, the following matters are pertinent:
[4]
(a) Mr Murray gave evidence about a phone conversation which he had with Mr Greatrex on or about 12 July 2023. I have accepted that evidence. During that conversation, Mr Greatrex admitted that there had been no written or oral agreement with the previous owner of Number 15 in relation to the driveway.
(b) The alleged agreement with Ms Katschuriak was not referred to in the applicants' lawyers' letter to the respondents dated 12 July 2023.
(c) Rather, in that letter, the applicants' lawyers referred to a different agreement, one entered between previous owners "prior to 23 August 1951" which the letter styled as "the Driveway Agreement".
(d) There was no note, record or memorandum of any such agreement adduced into evidence.
(e) Mr Greatrex did not give evidence to the effect that he had ever advised the respondents about the alleged agreement at or about the time when they had purchased Number 15.
(f) Mr Murray gave evidence, which I accept, that he had first met Mr Greatrex on site at Number 15 on 18 December 2021, three days before the respondents became the registered owners of Number 15. On that occasion, Mr Greatrex had introduced himself and the pair had exchanged contact details, including mobile numbers and email addresses. There was no evidence, and it was not suggested to Mr Murray in cross examination, that Mr Greatrex ever raised with Mr Murray, his agreement with Ms Katschuriak.
(g) Further, in February 2022, prior to the damaged carport on Number 11 being removed, Mr Greatrex and Mr Murray exchanged emails in relation to the use of the driveway in the following terms:
(i) "Wed, Feb 16, 2022 at 3:40 PM
[5]
I am the landlord for 11 Salisbury St, gabba, next door to your house.
[6]
I have demolition works going on next door to you at 11 Salisbury St
[7]
tomorrow Thursday at noon for 4 hours and then next Wed all day.
[8]
I am getting a backhoe down the driveway to demolish the damaged carport on those days.
[9]
So on those days I would appreciate if the driveway could be kept clear for the contractors.
[10]
Sorry about the late notice but I have been chasing this contractor for the past 12 weeks get the works done and have had to slot into his schedule.
[11]
Happy for the contractor to use the access on the 17/02/22 and 23/02/2022.
[12]
Access to the driveway was scheduled for tomorrow (Wd).
[13]
Rex Demolitions have advised that they have staff off with Covid and cannot strat / finish the demo of 11 Salisbury St carport until Friday 25th Feb at 7:30am.
[14]
I apologise for the inconvenience and trust that you can accommodate this late change.
[15]
(h) These emails made no reference to any previous agreement in relation to the driveway. Mr Greatrex's emails apologised for "the inconvenience" and spoke in terms of Mr Murray being able to "accommodate" Mr Greatrex's request. Under cross examination, Mr Greatrex accepted that by his emails he had been seeking Mr Murray's permission to use the driveway.
(i) Mr Greatrex accepted under cross examination that since the respondents had purchased Number 15, his tenants had parked in the driveway because it had been convenient for them to do so.
[16]
[10] The agreement referenced in the applicants' lawyers letter dated 12 July 2023 styled as "the Driveway Agreement" was an agreement said to have been entered at some time before 23 August 1951, between previous owners of Number 11 and Number 15, by which those owners "agreed to construct and maintain a driveway partly built on each of the Properties for common use". Under cross examination, Mr Greatrex accepted that he had no direct or indirect knowledge of any such agreement. The assertion as to the existence of such an agreement appears to have been a speculative inference sought to be drawn from the physical condition of the driveway. I am not satisfied that any agreement along the lines of that styled as "the Driveway Agreement" was ever entered.
[11] In the near vicinity of Numbers 11 and 15, parking on Salisbury Street is subject to no limitations. To park on Salisbury Street in that area, a residents-only permit is not required. The area is near a train station, a busway station, a school and the Gabba stadium. Mr Greatrex gave evidence that parking is often limited in front of Number 11 except at night. He accepted that he is very rarely at Number 11 and that he "[didn't] really know what's going on in the day-to-day comings and goings at [Number 11]". Mr Murray, who did not live at Number 15, said that he never experienced any difficulty finding a carpark on Salisbury Street. On this discrete issue, I formed the view that the evidence of each witness was somewhat self serving and I have given that evidence little weight. However, the objective evidence regarding the location of Numbers 11 and 15, the parking characteristics which apply in the near vicinity of those properties and the nearby train and busway stations, school and the Gabba stadium, supports a finding, which I make, that parking spaces on Salisbury Street are not guaranteed and can be difficult to find.
[12] Since purchasing Number 15, Mr Murray had never seen any tenant of Number 11 use the driveway to access the pad or garage using a car. On occasions, Mr Murray has observed tenants to have parked vehicles on the driveway itself. There is presently in the backyard a Jeep which is unregistered, not currently operational and in the process of being restored. Since in or about 2020, the garage has not been used to house a car. The garage is too small to house Mr Orrick's van. Rather, the current tenants at Number 11 use the garage to house a motorcycle.
[17]
[13] A chronology of the materially relevant building works at Number 15 is as follows. In about late November 2022, the respondents commenced excavation works at Number 15. On 27 June 2023, a retaining wall at the rear of Number 15 was constructed. On 29 June 2023, preparatory works commenced for the raising of the house on Number 15. On 5 July 2023, the actual work of raising the house on Number 15 commenced. By 22 July 2023, the house on Number 15 had been raised and moved in a direction towards the rear of Number 15. On about 30 October 2023, the respondents commenced work involving the ripping up or destruction of a portion of the driveway on Number 15. On about 31 October 2023, the respondents commenced work involving preparing for a concrete slab to be poured. By 3 November 2023, the works in respect of the concrete slab had been completed. By 8 March 2024, the applicants had spent approximately $228,455.56 on the renovations at Number 15.
[14] Mr Murray recalled that, during the works, in or about June 2023, he had attended at Number 15 and had a conversation with Mr Orrick. Mr Murray recalled that he had said to Mr Orrick words to the effect that "if there is anything that needs to be moved please do so before we raise the house as there will be limited access to the back of the house after the raise". Mr Orrick had not responded to him. I accept Mr Murray's evidence on this matter.
[15] In the midst of the works, on or about 10 July 2023, Mr Greatrex received a telephone call from Mr Orrick complaining that the respondents had blocked off half of the driveway.
[16] On or about 10 or 12 July 2023, Mr Murray and Mr Greatrex had a telephone conversation. Mr Greatrex gave very limited evidence about this phone call. In his first affidavit, Mr Greatrex recalled that Mr Murray had informed him that Mr Murray "was reclaiming his half of the driveway... so that he [could] raise his property and have a retaining wall".
[17] In his first affidavit, Mr Murray provided a more detailed recollection of the phone conversation. Mr Murray recalled that the conversation went for approximately 20 minutes and was to the following effect:
[18]
(a) Mr Murray informed Mr Greatrex that he was planning on raising the house and building a fence on the boundary property line;
(b) Mr Greatrex said to Mr Murray words to the effect that Mr Murray was "reclaiming" his land;
(c) Mr Murray responded by saying words to the effect that he was using his land to its full potential;
(d) Mr Murray informed Mr Greatrex that there was nothing noted as an easement on the title;
(e) Mr Murray explained that no one had advised him that Number 15 was subject to any agreement or an easement;
(f) Mr Murray asked whether there was a written or verbal agreement in place with the previous owner of which he was not aware;
(g) Mr Greatrex responded "no";
(h) Mr Murray inquired of Mr Greatrex as to where the boundary of Number 11 was situated;
(i) Mr Greatrex replied in the middle of the driveway;
(j) Mr Murray explained that the house on Number 15 was being renovated as a family house;
(k) Mr Murray noted that the applicants' tenants had been parking on the driveway without consent;
(l) Mr Greatrex replied to the effect that "it wasn't his problem" and his tenants could choose to do whatever they liked;
(m) Mr Greatrex said words to the effect that he "could issue an injunction".
[19]
[18] Mr Murray's recollection of the conversation was not substantively challenged in cross examination. In his second affidavit, Mr Greatrex referred to Mr Murray's recollection of the conversation as set out in Mr Murray's first affidavit and did not dispute the conversation as recalled by Mr Murray. Rather, Mr Greatrex merely deposed "in response to that discussion I attempted to engage with the respondent[s] to negotiate a resolution....".
[19] I prefer and accept Mr Murray's recollection of their telephone conversation which I find occurred on or about 10 or 12 July 2023. I find that during that conversation, Mr Greatrex confirmed that he had not entered into any agreement with the previous owner of Number 15 in relation to the driveway, Mr Greatrex was informed that the applicants' tenants were parking on the driveway without consent and Mr Greatrex foreshadowed applying for an injunction.
[20] On 15 July 2023, Mr Orrick sent a text message to Mr Greatrex which relevantly stated "I no longer have any access to the driveway...". In that text, Mr Orrick referred to having made an arrangement with "the neighbour's dad" to "at least keep a spot at the top for me to park". I infer that the reference to "the neighbour's dad" is to the second respondent's father, Mr Steve Formenton, an engineer who was involved in the planning of the works at Number 15. Mr Greatrex sent a reply text to Mr Orrick which relevantly stated "I am sorry about the mess of the situation for you. We took legal action to protect the driveway arrangement immediately last Monday. Should be resolved soon..."
[20]
[21] The legal correspondence exchanged between the parties prior to this proceeding is of some importance.
[22] By a letter dated 12 July 2023, the applicants' lawyers wrote to the respondents in the following material terms:
[21]
5. Our Clients' Property and Your Property (together, the Properties) were built pre-1945. At a time presently unknown, but before 23 August 1951, the previous respective owners of the Properties agreed to construct and maintain a driveway partly built on each of the Properties for common use (the Driveway Agreement).
[22]
We are instructed that you have decided to raise and renovate your Property. Our Clients understand that you require access to the common driveway until completion of the renovations pursuant to the Driveway Agreement, at which point, you propose to reclaim your part of the driveway, raise it, and otherwise convert it to a use other than a driveway.
Relying on the Driveway Agreement a one-car garage, as well as half of the driveway, was built on our Clients' Property prior to 23 August 1951, and later a double carport was added (the carport roof was recently destroyed in a storm and has been removed ready for the new carport to be constructed). If you reclaim the driveway and convert it to a different use, our Clients would not be able to make use of the garage or carport concrete pad, materially impacting the value of our Clients' Property. There would also be the cost of removing our Clients half of the driveway and/or demolishing or converting the garage.
Our Clients are currently obtaining a survey plan to confirm the boundary lines. We anticipate this will be made available to our Clients next week. In the meantime, our Clients are considering their legal options to maintain the status quo or to receive compensation from you.
The most obvious answer is that there is a prescriptive easement on our Clients' Property as the respective Properties have been using the common driveway since on or before 1951, prior to the introduction of the [Property Law Act] which came into force on 1 December 1975. The common use of the driveway is a prescriptive easement on the grounds of a lost modern grant, given its continued use for more than 20 years. Such easement is irrevocable in nature and the status quo must be maintained.
We understand that your argument is that the access to the common driveway is a revokable licence. In that regard, you propose to use the common driveway for your renovations, and after that, you intend to reclaim the driveway. Even if the licence was revokable, we would question why our Clients should not immediately revoke the license to bring negotiations to a head.
At this stage, however, our Clients put you on notice that there may be a prescriptive easement, an irrevocable licence, or alternatively, grounds that the Court declare that there is an easement pursuant to section 180 of the [Property Law Act]. As such, any expenses incurred hereinafter on continued renovations may be ultimately lost depending on the outcome.
[23]
[23] By a letter dated 24 July 2023, the respondents' lawyers wrote to the applicants' lawyers in the following terms:
[24]
" 1. We are instructed to respond to your correspondence of 12
[25]
Your letter under reply mentions that your clients intended to obtain a survey plan to confirm the boundary lines. We have not been provided with a copy of any such survey plan to date.
Our clients engaged Heald Surveys Consulting Surveyor who conducted a contour survey of the properties on 19 March 2022, which we enclose for your clients' reference. This survey clearly outlines that approximately half of the width of the subject driveway is on our clients' property.
[26]
In your letter under reply, you refer to a 'Driveway Agreement' that was allegedly entered into by the previous respective owners of 11 Salisbury Street, Woolloongabba (Your Clients' Property) and 15 Salisbury Street, Woolloongabba (Our Clients' Property) (jointly referred to as the Properties). No such agreement has been provided to our clients by anyone.
Regardless, at no point have the rights and obligations under any Driveway Agreement been assigned to our clients. As you will be aware, section 10 of the Property Law Act 1974 (Qld) requires an interest in land at law to be "in writing signed by the person making such assurance". Our clients have at no point agreed verbally or in writing to be bound by any Driveway Agreement and as such, need not uphold any rights or obligations that may arise under same.
[27]
Your letter under reply alleges a number of historical events, namely:
[28]
the Driveway Agreement being entered into prior to 23 August 1951;
the driveway and a one-car garage on Your Clients' Property being built prior to 23 August 1951; and
the Properties using the driveway since on or before 1951.
[29]
However, your letter under reply is silent as to the source of these allegations or how they came to be alleged by your clients.
Prescriptive easements are generally not recognised in Queensland. A prescriptive easement would only be recognised over our clients' indefeasible title where your clients' alleged prescriptive right is recorded in the freehold land register and your clients are recognised as the registered proprietors under the Land Titles Act 1994 (Qld).
Neither your clients, nor any previous owner of Your Clients' Property, registered an easement over Our Clients' Property. Further, no easement has been registered on Our Clients' Property since at least 1994 and as such, your clients do not have any recognised right or interest in this respect.
Further, your letter fails to:
provide any evidence in support of your assertion that the driveway has been on the Properties from the requisite time; or
establish how your clients may be able to satisfy the remaining elements of a prescriptive easement.
[30]
At paragraphs 10 and 11 of your letter under reply, you refer to our clients' "argument [being] that the access to the common driveway is a revocable licence..." and later state that than an irrevocable licence may exist.
At no point have our clients made any representation to your clients of the nature suggested in paragraph 10 of your letter under reply.
You have failed to provide any legal basis upon which your clients claim to be entitled to the benefit of an irrevocable licence to use the driveway.
To make out such a claim, your clients would bear the onus of proving that the driveway:
is reasonably necessary in the interests of effective use in a reasonable manner of the land;
use in the proposed manner is consistent with the public interest; and
that your clients can adequately recompense our clients, the owners of the servient land, for any loss or disadvantage they may suffer from the imposition of any obligation.
Your letter fails to address these elements in any meaningful way or at all.
[32]
Our clients wish to resolve this dispute and remain open to conferring with your clients with the parties' respective lawyers present. However, at the present time your clients are yet to particularise the legal basis of their alleged cause(s) of action.
Please provide such particularisation by 5pm on Friday, 28 July 2023. Upon receipt of same, our clients will review their position.
To allay any concerns of your clients, our clients will refrain from performing, or causing to be performed, any construction works to the driveway on and before 28 July 2023."
[33]
[24] There was no substantive response to the respondents' lawyers letter dated 24 July 2023. Rather, correspondence was exchanged between the parties' lawyers in August and September 2023 regarding a possible without prejudice meeting.
[25] On 18 September 2023, the applicants' lawyers sent an email to the respondents' lawyers in the following terms:
[34]
"Our clients contacted your clients directly around one month ago to arrange a meeting between them on site and to facilitate open discussions in an attempt to resolve this dispute or narrow the issues in dispute. Your clients have failed or refused to respond to our clients.
[35]
Our clients are disappointed in your clients' approach, and your clients' failure to participate in the proposed discussions has left our clients with no choice but to commence legal action.
[36]
We have instructions to commence proceedings and are in the process of drafting our clients' Originating Application and Affidavit, which we anticipate filing in due course. If your clients have any intention of resolving this dispute without going through the substantial expense and inherent risks of Court proceedings, we invite them to contact our clients as a matter of urgency.
[37]
Please confirm whether your firm holds instructions to accept service of Court documents on behalf of the Shaun Murray and Christina Formenton."
[38]
[26] At the time of the exchange of all of this legal correspondence, construction work impacting the driveway was yet to commence and temporary fencing was erected on the driveway.
[27] On or about 4 November 2023, Mr Greatrex became aware that the respondents had conducted works on the driveway by excavating part of the concrete and the land that constituted part of the driveway.
[39]
[28] The originating application seeks the following relief:
[40]
"1. A declaration that there is an easement by prescription over
[41]
15 Salisbury Street, Woolloongabba QLD 4102 (more particularly described as Lot 2 of RP58475 with Title Reference 12307063) for the benefit of 11 Salisbury Street, Woolloongabba QLD 4102 (more particularly described as Lot 1 of RP58475 with Title Reference 18438010) in respect of the driveway situated along the boundary of the properties more particularly described in the plan attached to the affidavit of Robert Ryder Greatrex sworn 1 February 2024 (Driveway).
(a) The Applicants be granted a statutory right of user in respect of the Driveway in the form of an easement (Statutory Right of User**)**;
(b) The Statutory Right of User shall include a right of way, in perpetuity, over 15 Salisbury Street, Woolloongabba QLD 4102 in favour of 11 Salisbury Street, Woolloongabba QLD 4102 which shall be exercisable by any person entitled to be upon 11 Salisbury Street, Woolloongabba QLD 4102 for the purpose of providing or maintaining access, including vehicular access, to 11 Salisbury Street, Woolloongabba QLD 4102;
(c) The Statutory Right of User shall be registered with the Registrar of Titles and the Applicants and the Respondents shall do all things necessary to enable the Statutory Right of User to be registered including, but not limited to:
(i) signing any necessary documents required by the Registrar of Titles within 7 days of such documents being submitted for signature; and
(ii) producing any certificate of title to the Registrar of Titles within 7 days of being requested to do so.
(d) The Applicants, at their expense, cause to be prepared and lodged, any documents required by the Registrar of Titles to register the Statutory Right of User.
(e) The Applicants arrange for any Plan required by the Registrar of Titles to be prepared and lodged at their expense and the Respondents access to their property necessary for the purpose of preparation of such a plan.
(f) In the event that any party fails to perform any act, including sign any documents required by this order, the Registrar of the Court is appointed to perform the act and/or sign the document in place of the party.
(g) The Applicants pay to the Respondents a sum that the Court considers just, by way of compensation or consideration for the statutory right of user.
[44]
That the Respondents reinstate the driveway in the easement area upon the determination of paragraphs 1 or 2 in favour of the Applicants.
That the Respondents pay the Applicants' costs of this application."
[45]
[29] By the time of the trial, the parties had agreed a list of real issues. The real issues as agreed related to paragraphs one and two of the originating application.
[46]
[30] The applicants relied upon the principle referred to as the doctrine of the lost modern grant. In Dalton v Angus,[1] Lord Blackburn spoke in terms of the doctrine requiring a jury to be satisfied that there had been "equivalent to adverse possession as of right for more than twenty years". In Tremayne v English Clays Lovering Pochin & Co Ltd,[2] Whitford J spoke in terms of "acts complained of have been done without interruption ... for a period of 20 years". In Byrne v Palmer,[3] Crowley J provided the following succinct statement about easements by prescription or fiction of the lost modern grant:
[47]
"Under the common law an easement may be acquired by prescription in certain circumstances where there has been open, uninterrupted use of the servient land by another for at least twenty years, and where such use occurred to the knowledge of the servient landowner and absent any permission by them for such use. In such a case a trespasser may acquire rights in respect of the servient land, by way of an easement, consistent with the use. There is no express grant of the easement. Rather, the right is acquired through the legal fiction of the lost modern grant, which assumes the existence of an express grant that cannot be found.
[48]
Use with the permission of the dominant landowner at any stage during the period of at least twenty years will preclude the acquisition of an easement by prescription. Permission may be express or implied."
"198A Prescriptive right of way not acquired by user
[51]
(1) User after the commencement of this Act of a way over land shall not of itself be sufficient evidence of an easement of way or a right of way having been acquired by prescription or by the fiction of a lost grant.
[52]
(2) If at any time it is established that an easement of way or right of way over land existed at the commencement of this Act, the existence and continuance of the easement or right shall not be affected by subsection (1).
[53]
(3) For the purpose of establishing the existence at the commencement of this Act of an easement of way or right of way over land user after such commencement of a way over that land shall be disregarded."
[54]
[32] In Connellan Nominees Pty Ltd v Camerer,[4] Master Weld observed:
[55]
"The effect of s.198A is that the easement by way of right of way by prescription must have existed at 1 December 1975".
[56]
[33] In making that observation, in the context of a strike out application, Master Weld noted that, on the facts of Connellan, it was alleged that, after 1 December 1975, the land the subject of the claimed right of way by prescription had become land under the Real Property Act 1861-1986 ("the Real Property Act"). Connellan concerned a pleaded case to the effect that the easement by prescription existed prior to the relevant land being brought under the Real Property Act. Master Weld reasoned that s 198A applied to land under the Real Property Act subject to the provisions of that Act, including s 44. Master Weld considered the pleading in Connellan and observed:
[57]
"The pleader also recognises ... that it is necessary for the easement acquired by 1 December 1975 to be capable of being held to be an 'omitted or misdescribed easement' under s.44 of the Real Property Act in order for it to be within the exception to indefeasibility provided for in that case in s.44 of the Real Property Act. The defendants submit that it could not be an omitted easement. In Messrs. Duncan & Vann's Property Law and Practice under s.198A the comment appears that:
[58]
'Obviously, the acquisition of such rights in land by such means was inimical to the concept of indefeasibility under the Real Property Acts which declare that easements may only be created by instrument embodying a deed. Nor would an easement by prescription or fiction of a lost grant be an 'omitted or misdescribed easement' under s.44 of the Real Property Act of 1861. To fall within that exception, the right should have been created at some stage by deed.'
[59]
I think it is fair to observe that those comments appear to relate to the possibility of an easement said to have arisen by prescription after the land was brought under the Real Property Act and not to a situation such as the present where the allegation is that the easement by prescription existed prior to the land being brought under the Act."
[60]
[34] In the context of considering whether there may have been an easement by prescription existing prior to the land in question being brought under the Real Property Act, Master Weld referred to a decision of the Full Court in Stuy v BC Ronalds Pty Ltd[5] where Connolly J[6] had said:[7]
[61]
"The relevant exception from s. 44 is 'the omission ... of any right of way or other easement created in or existing upon the same land'. For the easement to be within the exception it must have been created in or exist upon the land. Under the general law an easement was created by the acts of the owners of the dominant and servient tenements. As an incorporeal hereditament it lay in grant and the grant would be presumed from long user; and it would be implied from necessity and in the case of a conveyance of land enjoying a continuous and apparent right of way strictly necessary to the enjoyment of the land conveyed. Where, before land was brought under the Act, an easement had been created by any of these means, if the subsequent certificate of title failed to refer to it, it could properly be described as omitted. It had been left out."
[62]
[35] As Connellan makes clear, s 198A is relevantly subject to the provisions of the Real Property Act: I regard Connellan as authority for the proposition that for an easement by prescription to take effect as an exception to indefeasibility, the easement must have existed at the time that the land was brought under the Real Property Act such that the certificate of title's failure to refer to the easement enables the easement to be properly described as an omitted easement. This approach is also consistent with the reasoning of Crowley J in Byrne v Palmer.[8]
[36] In the present case, Number 15 was brought under the Real Property Act, and the title to that land was created, on 9 April 1947. The respondents as the registered proprietors of Number 15 have the fee simple interest under the Land Title Act 1994 (Qld) ("the Land Title Act"). The respondents enjoy indefeasibility of title in respect of their land free from all other interests unless there is a possible exception to indefeasibility. The exceptions to indefeasibility are contained in s 185 of the Land Title Act. The relevant exception is contained in s 185(1)(c) and refers to "the interest of a person entitled to the benefit of an easement if its particulars have been omitted from, or misdescribed in, the freehold land register". To bring themselves within that exception, it was incumbent upon the applicants to prove that an easement by prescription existed before the land comprising Number 15 was brought under the Real Property Act and was omitted from the register.[9] The evidence adduced by the applicant did not address the position which existed for the twenty year period prior to the date when the title to Number 15 was first registered, that is 9 April 1947.
[63]
"... ultimately, the modern grant case comes down to whether or not your Honour's persuaded that from the three photographs I've taken your Honour to, your Honour can see and should infer that the driveway was there from 1946, and that the garage was there from the date between 1955 and 1958. So it will be a question of your Honour looking at the photographs and either being persuaded or not."
[64]
[38] Later, the applicants' counsel orally submitted that there was "some further evidence in relation to [the modern grant case]" involving Mr Greatrex's evidence in re-examination to the effect that "prior tenants, to his knowledge, had parked vehicles in the garage larger than mini minors".[11]
[39] I have had careful regard to the historical images and photographs. On the basis of my consideration of these images, I am not satisfied on the balance of probabilities that they reveal or depict any driveway existing between the properties at the relevant times of the images. Mr Greatrex's evidence about his knowledge of the use of the garage at some time since the applicants became registered proprietors did not advance the matter. That evidence was not relevant to establishing the requisite continued use for the twenty year period prior to 1 December 1975. Further, I accept the respondents' counsel's submission to the effect that the structure in the backyard depicted from the 1958 photograph has a different coloured roof to the garage. I am not satisfied to the requisite standard that the structure depicted in the backyard of Number 11 in 1958 is a garage, as distinct from some kind of shed or storage facility. Further, even if a driveway existed at the times of the images, there was no evidence concerning any agreement between relevant parties as at the date of any of the images concerning the terms of use of any such driveway.
[40] The applicants have not established an entitlement to a declaration that there is an easement by prescription over Number 15.
"180 Imposition of statutory rights of user in respect of land
[68]
(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.
[69]
(2) A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable -
[70]
(a) by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and
(b) on 1 or more occasions; or
(c) until a date certain; or
(d) in perpetuity or for some fixed period; as may be specified in the order.
[71]
(3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that -
[72]
(a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and
(b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and
(c) either -
(i) the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or
(ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.
[73]
(4) An order under this section (including an order under this subsection) -
[74]
(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; and
(c) shall, unless the court otherwise orders, be registered as provided in this section; and
(d) may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that -
(i) the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or
(ii) some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and
(e) shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.
[75]
(a) direct a survey to be made of any land and a plan of survey to be prepared; and
(b) order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and
(c) order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and
(d) give directions for the conduct of proceedings; and
(e) make orders in respect of the costs of any of the preceding matters and of proceedings generally.
[76]
(6) In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.
[77]
(7) In this section - owner includes any person interested whether presently, contingently or otherwise in land. statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land. utility includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility.
[78]
[42] In M Salazar Properties Pty Ltd v Jeffs,[12] Flanagan JA provided the following analysis of s 180:
[79]
"Section 180 seeks to balance competing interests of landowners, where one party refuses to consent to something to which they ought to consent, and their refusal to do so prevents the effective use by the other party of the other party's land. The section empowers the court to resolve this issue by diminishing the property rights of the servient landowner insofar as the statutory right of user applies. It permits the court to alter the property rights of servient landowners against their will. This construction is reinforced by the use of the words, 'Imposition' in the section's heading, and 'impose' in s 180(1). By this section the court may impose upon the servient land or upon the owner for the time being of the servient land, an obligation of user or an obligation to permit such user. These words demonstrate that something negative - that is, a burden or 'obligation' of user - is being laid on the servient landowner. This view is reinforced by the fact that an order under s 180(1) cannot be made, unless the owner of the servient land can be adequately recompensed: s 180(3)(b). Further, pursuant to s 180(4), an order under s 180(1) requires, except in special circumstances, a provision for the payment of just compensation or consideration. Because of the section's impact on servient landowners, in Re Seaforth Land Sales Pty Ltd's Land, Douglas J observed that in embarking upon a consideration of s 180, 'the premise [is] that one should not interfere readily with the proprietary rights of an owner of land sought to be made the subject of a right of user...'.
[80]
In its report preceding [the Property Law Act's] enactment, the Queensland Law Reform Commission similarly recognised that because s 180 permits interference with property rights, it is also 'necessary to surround the power to impose ... statutory rights of user with adequate safeguards'. These safeguards are the subject of ss 180(3), (4) and (6).
[81]
Given s 180 aims to protect the interests of servient landowners by applying safeguards to the court's power, before any order is made under the section, the court must be in a position to ensure its requirements are met. The court must consider all the circumstances of the case, and the effect that the particular facts of the case have on the application of the section. For example, s 180(1) draws a distinction between statutory rights of user that are granted to 'the land' which forms the dominant land, against those which are granted to the owner for the time being of such land'. This demonstrates a temporal aspect to the obligation of user sought to be imposed upon the servient land, being either permanently attached to the land itself, or temporarily imposed solely in respect of the landowner personally. Categories of the latter case might include a licence imposed for the purposes of temporary scaffolding. In the present case, the drainage easement sought by Salazar Properties constituted a permanent easement. This permanency is a factor that warrants greater protection of the interests of Mr Jeffs, as the servient landowner, to be afforded by the safeguards in ss 180(3), (4) and (6)."
[82]
[43] The requirements of s 180(1) have been distilled in 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149, where Burns J said:[13]
[83]
"Whether the grant of easement proposed by the applicant is reasonably necessary in the interests of the effective use in any reasonable manner of any land falls to be determined in accordance with well-settled principles. These were collected by Douglas J in Lang Parade Pty Ltd v Paluso & Ors in a passage recently affirmed by the Court of Appeal and are as follows:
[84]
(a) One should not interfere readily with the proprietary rights of an owner of land.
(b) The requirement of ‛reasonably necessary' does not mean absolute necessity.
[85]
(c) What is ‛reasonably necessary' is determined objectively.
[86]
(d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree.
(e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.
(f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user.
(g) Regard must be had to the implications or consequences on the other land of imposing a right of user."
[87]
The enquiry whether what is proposed is 'reasonably necessary in the interests of the effective use in any reasonable manner of any land' involves two steps, although they are more often than not taken together. The first is whether the proposed use of the dominant tenement is a use in a reasonable manner of that land and the second is whether that use is reasonably necessary. That said, an applicant for relief does not have to demonstrate that 'each and every use (in a reasonable manner) of its land is one for which the obligation of user is reasonably necessary' for it is enough if the applicant "can point to a particular use and seek to make its case in relation to it'."
[88]
[44] Section 180(3) of the Property Law Act makes it clear that an order imposing a statutory right of user "shall not be made" unless the court is satisfied that the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of "the obligation", being the obligation of user or an obligation to permit such use in accordance with an order. If the court cannot make a determination as to the compensation payable at the time the order is made, there is no power to grant the statutory right of user.[14] Further, s 180(3) makes clear that an order shall not be made unless the court is satisfied that the owner of the servient land has refused to agree to accept the imposition of "such obligation", again being the obligation of use or an obligation to permit such use in accordance with an order and the owner's refusal is able to be characterised as "in all the circumstances unreasonable".
[45] In M Salazar Properties,[15] Flanagan JA, referencing earlier authorities, made the following observations about the need for clarity in applications made under s 180:
[89]
"In Re Seaforth Land Sales Pty. Ltd.'s Land (No. 2), one of the earliest cases to consider the section, Hanger CJ observed:
[90]
'Subsection [180(3)(a) provides] that an order shall not be made granting the right unless the Court is satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed. These last words 'in the manner proposed' contemplate that the applicant will come to the Court with a particular proposal - a proposal to use the land in a particular manner; and it appears to me that it is this manner which is referred to in subsec. (1). The applicant must show that in the interests of effective use of the land in this particular manner, the grant of statutory right of user in some form is reasonably necessary'.
[91]
More recently, in 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149, Burns J observed:
[92]
'As Andrews J held in Ex parte Edward Street Properties Pty Ltd, in order to justify the imposition of a statutory right of user, the case in favour of the applicant should be 'clear and persuasive'. Furthermore, such a case must establish the conditions for the making of an order with an equal degree of clarity. If the applicant does not discharge that burden then 'the occasion to include in any such order terms and conditions that are just does not arise'.
[93]
This does not mean that every detail of an applicant's proposal must be worked out in a final way or that every necessary approval or permission is obtained in advance of the hearing of the application, but it does mean that matters of substance are satisfactorily defined and established by the evidence. If otherwise then the court cannot properly assess the merits of the application, let alone settle on conditions to accompany the grant. The words in s 180(3)(a) PLA, 'in the manner proposed', contemplate that an applicant for relief 'will come to court with a particular proposal - to use the land in a particular manner', and that expectation will not be met where, as here, there are substantial gaps in the detail of what is proposed.'
[94]
... The requirement for clarity in an application under s 180 arises solely because the subsections, which safeguard the servient landowner, are inherently interlinked with the need for an easement to be definite. This is consistent with the above observations of Burns J that, in order to be successful, a proposal must have sufficient clarity to allow the court to be able to 'properly assess the merits of the application' and to 'settle on conditions to accompany the grant'."
[95]
[46] In the present case, the applicants sought to establish that the grant of a statutory right of user involving a right of way in perpetuity over Number 15 exercisable by any person entitled to be upon Number 11 for the purpose of providing or maintaining access, including vehicular access to Number 11, was reasonably necessary in the interests of the effective use of Number 11. The applicants advanced the following reasons in support of their position. There was no way to access the garage or pad by vehicle without the easement. There was insufficient space to build an alternative driveway from Salisbury Street to the garage and pad. There were no alternative options for a carport on Number 11 that were reasonable or financially viable. Street parking was not consistently available in the relevant area of Salisbury Street.
[47] In M Salazar Properties,[16] Flanagan JA observed that it was not incumbent upon the trial judge "to alter [the applicants'] proposal or to attempt to fashion an acceptable proposal out of the arguments and evidence that it put before the court". As will be apparent from the earlier review of the interlocutory orders made in this proceeding, the applicants initially declined the opportunity to adduce expert evidence. Rather, it was the respondents who adduced expert evidence from a valuer and town planner directed towards the burden and necessity of the easement. The applicants then relied upon a town planner's evidence to seek to undermine the opinions of the respondents' town planner. The applicants conduct of the proceeding is initially noteworthy because:
[96]
(a) The proposal advocated by the applicants was on the basis of a sketch imposed upon an image, without the benefit of a survey;
(b) The applicants did not call evidence from a valuer to place a value on the amount of compensation which should be paid in respect of the applicants' proposal;
(c) The applicants' counsel cross examined the respondents' valuer, Mr Bristow, on the basis that his valuation was in error or excessive but did not put to Mr Bristow an amount that should be payable as compensation in respect of the easement;
(d) The applicants came to Court without having made any offer of a specific sum by way of compensation;
(e) The applicants had instructed their town planner, Mr Taylor, to respond to Mr Ryan's opinions and had not instructed him to express an opinion about whether the easement was necessary;
(f) To the extent that the applicants contended that there was no financially viable option for a carport on Number 11, they adduced no evidence of relevant costs.
[97]
[48] The greater the burden of the imposition the stronger is the case required to justify a finding of reasonable necessity. The easement or right of user in contemplation in the present case is one which sought to confer a right of way in perpetuity over Number 15 in favour of Number 11. This permanency is a factor that warrants greater protection of the respondents' interests, as the servient landowners, to be afforded by the safeguards in ss 180(3), (4) and (6).
[49] The respondents' expert valuer, Mr Bristow, observed that no meaningful beneficial rights were sought to be conferred on Number 15 in return for the proposed easement. In cross examination, Mr Bristow relevantly said "... there is no residual benefit value to the servient tenement by imposition of the proposed easement. It's not a reciprocal easement. The benefit only flows one way." Mr Bristow noted that the easement would result in a reduction in the frontage of Number 15. He described the encumbrance of the driveway as a "major feature" for the hypothetical purchaser. Mr Bristow explained that, as matters presently stand, that feature is not associated with Number 15. He reasoned that, presently, from the perspective of a hypothetical purchaser the "clear thing would be .... that a title search showed that there was no easement". Mr Bristow added that he expected that the state of the title would be "quite definitive, from a buyer's ... point of view ... and indeed ... their conveyancer." I accept Mr Bristow's evidence and find that the proposed easement would result in a reduction in the frontage of Number 15, would confer no reciprocal benefit upon Number 15 and would constitute an encumbrance that would be a major feature for any hypothetical purchaser.
[50] Mr Murray gave evidence about the impact of the proposed easement as follows. The approved plans for the respondents' house contemplate a laundry door on the side of the house which would open directly into the proposed easement. The approved engineer's design plans also contemplate a retaining wall on the boundary line which could not exist if the easement were granted. It was unclear whether the current design plans would be feasible in the absence of the retaining wall. The easement would prevent the construction of a fence on the boundary of Number 15. Mr Murray regarded a fence as important for privacy and security. He said in his evidence in chief that "the idea of having my young child or dog playing in the backyard while the next door neighbours were driving their cars over that space is scary to me". I accept this evidence regarding the state of the respondents' approved plans and the genuine concerns held by Mr Murray.
[98]
"(a) In the affidavit by Mr Robert Ryder Greatrex, dated 2 February 2024, it is opined that there is no 'alternative option that is reasonable or financially viable' to achieve access parking on 11 Salisbury Street. It also states that Brisbane City Council may not approve a garage at the front of 11 Salisbury Street and that there is insufficient depth in the front yard of 11 Salisbury Street to build a carport.
[99]
(b) In my report dated 13 March 2024 I identified (in response to my instructions) alternatives for off-street parking. Mr Taylor refers to the options I have identified as recommendations. My instructions were not to (nor did I) recommend an option, nor did I suggest that the options could be undertaken without further consideration, design or approvals. They are however options which (in the case of Options 1 to 3) can be undertaken without town planning approval and in all cases are outcomes which regularly occur across the city.
(c) Further input from other qualified professionals, such as a building certifier, would be required to ensure that any option meets all relevant building and construction standards, applicable permit requirements, such as a residential driveway permit, in addition to the planning outcomes as identified in the City Plan. These are nevertheless very normal and standard practices that occur on a daily basis.
(d) Mr Taylor does not identify any issue that would, in his opinion, prevent the construction of one of the options. For instance, at paragraph 21 he identifies matters which he says 'could' constrain the achievement of Option 1. He goes on to identify that the crossover location would need to would need further consideration and this affects Option 1 - without stating what the effect would be.
(e) In my opinion there are viable alternatives for vehicle access and off-street parking for 11 Salisbury Street, including the options I identified in my report, dated 13 March 2024. Subject to further detailed design and approvals it is my opinion that there are good prospects of achieving each of the options."
[100]
[61] Mr Ryan had visited Salisbury Street and had looked from the boundary into Number 11 but had not walked on the site. During his cross examination it was suggested to him that his opinions were not cogent or reliable because he had not physically walked on Number 11 or measured areas whilst onsite. Mr Ryan explained that the fact that he had not walked on the site or not physically measured spaces whilst on site, were not matters of significance to the formation of his opinions. He relevantly said:
[101]
(a) "I have confidence in the mapping software that we use on Nearmap. It's a GIS-based software, and in my experience, it's quite accurate, and because of the areas that I calculated here, I had confidence that there was space to - to fit the different options on."
(b) "I had confidence in the aerial photos. I'd been onto s - I've been to the site and confirmed that I was seeing in the aerial photos was still accurate, and I had confidence in the software that I used."
[102]
[62] I accept the opinions of Mr Ryan. He impressed me as an expert witness and his opinions were not undermined in any material respect by cross examination. I find that there are viable alternatives for reasonable vehicle access and off-street parking for Number 11 comprising each of the options identified in Mr Ryan's report. Option 4 provides a viable option for vehicles to access the back of Number 11. I am also prepared to find that subject to further detailed design and approvals, the options identified by Mr Ryan presently enjoy good prospects of being able to be actioned if necessary.
[63] Having regard to the nature of the proposed easement and the burden it would impose on Number 15, I am not satisfied that the proposed easement is reasonably necessary. I am prepared to accept as a proposition that the provision of a car park or carport on Number 11 is desirable and convenient to the applicants. I am less persuaded as to the desirability or convenience of vehicular access to the back of Number 11. For some time, cars have not used the driveway to access the back of Number 11. The garage at the back of Number 11 is not used to house a car. The carport structure over the pad has been demolished and not replaced. I am prepared to find that vehicular access to the back of Number 11 is at some general level desired or preferred by the applicants. However, I am not persuaded that the provisions of a car park or carport or vehicular access to the back of Number 11 is a reasonable necessity. I am conscious that mere desirability or preference does not meet the test under s 180. In any event, the applicants have not persuaded me on the balance of probabilities that an easement in the form sought is reasonably necessary to achieve an onsite carparking space or vehicular access to the back of Number 11. The options identified by Mr Ryan present as viable options by which the desired outcome of an onsite carparking space can realistically be achieved.
[64] There are further reasons why an order under s 180 is not appropriately made.
[65] First, the applicants have failed to satisfy me that the proposed right of user is consistent with the public interest. I am prepared to find that the proposed right of easement is consistent with the applicants' interests, but I am not satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed. I am not satisfied on the evidence that the proposed easement, involving as it does a driveway straddling two properties, can be regarded as one which involves a use in a reasonable manner of Number 11. On the evidence, the proposed easement would appear to pose a real and appreciable risk of harm to unsuspecting children on Number 15.
[103]
[67] The respondents objected to certain paragraphs of Mr Greatrex's first affidavit. My ruling in relation to those objections are as follows. As to paragraph 10(d), the objection is upheld. That paragraph is inadmissible as secondary evidence or mere assertion. As to paragraphs 16, 38(a) and 46, the objections are upheld. Those paragraphs contain inadmissible opinions. The objections to paragraphs 24 to 29 are overruled. The evidence is either not hearsay or not apparently adduced for a hearsay purpose. To the extent that any hearsay purpose exists, the evidence formed part of the context in which the dispute emerged. As to paragraphs 37, 38(b), 40, 41, 42 and 47, I have allowed those paragraphs but given them little weight.
[104]
(1) The originating application filed 5 February 2024 is dismissed.
You will appreciate, of course, that discussions between your representative Shaun Murray and our Clients only occurred on Monday, 10 July 2023 and that our Clients have acted quickly to seek legal advice, and to enquire with surveyors to minimise any loss you may suffer.
You will further appreciate the situation our Clients find themselves in, being the loss in access and value of our Clients' Property. As such, our Clients wish to resolve this matter on mutually beneficial terms.
Please let us know by close of business on Friday, 14 July 2023 if you would be willing to participate in a mediation on the matter, preferably the week starting 17 July 2023. At this stage, we would propose that the mediation occur on site at the Properties after our Clients obtain a survey plan.
If we do not hear from you, we anticipate our Clients will instruct us to commence proceedings in the Supreme Court of Queensland.
We reserve our Clients rights in all respects."
[37] The applicants' adduced evidence directed towards establishing that, as at the time of the commencement of the Property Law Act, an easement by prescription existed in relation to Number 15. That evidence concerned the suggested use of the land for a 20 year period prior to 1 December 1975. For the reasons I have explained, that inquiry was irrelevant because the easement by prescription needed to exist at the earlier time when the land comprising Number 15 was first registered under the Real Property Act. In any event, the evidence adduced by the applicants did not establish that an easement by prescription existed as at 1 December 1975. The applicants' fundamental contention was based upon spatial images concerning Numbers 11 and 15 captured on 3 May 1946, 27 July 1955 and 17 April 1958. The applicants' counsel relevantly submitted:[10]
[51] The applicants sought to minimise the significance of this evidence by submitting to the effect that, from the point in time of the applicants' lawyers letter dated 12 July 2023, the respondents knew that there was "a problem"[17] or that "there was something up"[18] with the driveway and thereafter proceeded with their building works possessed of that knowledge. It seemed to be suggested that the knowledge of "a problem" militated against any suggestion that the imposition of the easement would be burdensome.[19]
[52] I reject this submission. Prior to purchasing Number 15, the respondents had conducted searches and made all relevant inquiries. The searches revealed a clear title. Their inquiries did not reveal any basis for concluding that the driveway constituted rights in the nature of an easement. The applicants' lawyers letter dated 12 July 2023 made bare, unparticularised assertions about a historical agreement not involving the applicants or the respondents and historical reliance upon that agreement by other persons. That letter flagged the prospect of the applicants being compensated by the respondents but made no offer of compensation to the respondents. The letter concluded by speculating that "there may be a prescriptive easement, an irrevocable licence, or alternatively, grounds that the Court declare that there is an easement pursuant to section 180 of [the Property Law Act]." When pressed by the respondents' lawyers' letter dated 24 July 2023 to provide evidence supporting their assertions and particulars of their clients' legal claims, the applicants' lawyers did not provide any substantive response. The destructive works involving the driveway then commenced on or about 30 October 2023. The applicants did not provide any evidence about their assertions prior to starting this proceeding. In fact, as matters transpired, the assertions contained in the letter dated 12 July 2023 about a historical agreement and reliance upon that agreement by other persons were contrived and not based on the applicants' direct or indirect knowledge. Further, until Mr Greatrex's first affidavit, there was no indication that the applicants were prepared to pay compensation for any easement granted under s 180.
[53] The present case is not one where a party has with "their eyes wide open" acted in calculated disregard of an articulated risk of illegality.[20] Rather, this is a case where the respondents, who made all relevant searches and inquiries, were put on notice of an unparticularised, unsubstantiated assertion of a prescriptive easement and a claim for an easement under s 180 which lacked clarity and offered no compensation. In my consideration, the respondents acted reasonably by affording the applicants time to provide substantiation of their claims or the opportunity to commence litigation before destructive works were undertaken which impacted the driveway. The present circumstances provide no basis for departing from the usual position that the requirement of reasonable necessity is to be decided considering the circumstances which exist at the time of the trial.[21]
[54] Mr Greatrex, a layperson, relevantly deposed that he had "considered options alternative to the driveway and was not aware of any alternative option that was "reasonable or financially viable". Whatever consideration had been undertaken by Mr Greatrex was apparently a lay person's assessment. I have given Mr Greatrex's evidence in this respect little weight.
[55] Mr Ryan, the respondents' expert town planner, was instructed to prepare an expert report providing his opinion as whether, in respect of Number 11, there was a viable alternative for vehicle access or off-street parking and whether a carport or garage could properly be constructed on the property. Mr Ryan's report identified four potential options to achieve off-street parking for the benefit of Number 11 which did not involve Number 15. The first option ("option 1") involved a single three metre by six metre off-street carparking space or carport built in proximity to the northern and eastern side boundaries located partially over the driveway. The second option ("option 2") involved a space in the front yard to accommodate a three metre by six metre single carport parallel to the Salisbury Street frontage. The third option ("option 3") involved raising, relocating and enclosing underneath the existing house. The fourth option ("option 4") involved an easement involving Number 7. Mr Ryan considered that each of his options achieved both off-street parking and undercover parking, being a minimum of a carport. In his opinion, options 1, 2 and 3 could conceivably proceed within exempt development limitations so as not to require town planning approval. He considered that option 4 would require a development application to be assessed and decided under the requirements of City Plan 2014. Mr Ryan considered that any such application had good prospects of obtaining approval.
[56] In response to Mr Ryan's report the applicants adduced evidence from their expert town planner, Mr Taylor. The respondents specifically instructed Mr Taylor to "consider and comment on options" as identified by Mr Ryan. Notably, Mr Taylor was not instructed to consider any alternative means of access or use of Number 11 beyond the options identified by Mr Ryan. Further, in his consideration of the options identified by Mr Ryan, Mr Taylor was specifically instructed to "focus" on five points namely whether the turning circles for options 1 and 2 were adequate and/or appropriate "given that the tenant drives a commercial van", whether any of the options required town planning approval, building approval or development approval, whether there would be a need to modify the porch or landing of the house on Number 11 to accommodate a carport and whether this would comply with the Traditional Building Character Overlay, whether a tree at front of Number 11 would affect the viability of the options and the estimated costs of the options.
[57] Mr Taylor readily accepted that he was not a traffic engineer or expert in vehicle movement. He agreed in principle with Mr Ryan's opinion that a 6 m x 3 m single carport structure was "a reasonable consideration for vehicle accommodation on [Number 11]". He referred to "a reasonable expectation to place a 6 m x 3 m carport per option 1 without triggering a town planning assessment". He could see "sense in Mr Ryan's positioning of the carport" for options 1 and 2. He expressed the view that the adequacy or actual viability of each option was best determined or confirmed by a traffic consultant. He expressed the conclusion that options 1 and 2 were "in principle valid and appropriate in a town planning context" but there were "many other practical matters that must be considered prior to enacting/enjoying town planning outcomes recommended in [options 1 and 2]". He considered that in respect of option 1 a town planning application would not be required to remove the existing landing and pergola roof on the house at Number 11. He considered that option 2 was unlikely to cause or trigger a town planning application. He considered that option 3 would not attract a town planning application if detailed design works and site surveys confirmed that all necessary works remained within the scope of accepted development. He agreed with Mr Ryan that option 4 was viable. In respect of the street tree, he noted that any interference with a street tree would require a permit which the Brisbane City Council "may or may not approve". He expressed a speculative opinion that the existing street tree or tress "could" affect the viability of the options. Mr Taylor did not express an opinion about the costs of the options.
[58] Under cross examination, Mr Taylor accepted that option 1 would not trigger a development application and would not require planning approval from the Brisbane City Council. He agreed that a six metre by three metre single carport was reasonable vehicle accommodation for a dwelling house and that most vehicles could reasonably access and manoeuvre from Salisbury Street into Number 11 to achieve direct access to the single carport in option 1.[22] He agreed that the matters concerning option 1 which required further consideration included fire separation, whether the front and side boundaries required relaxations, whether there was a need to partially remove fencing, access grades and whether a new concrete slab and cross over would be required. He accepted that these further considerations were "normal considerations."[23] He accepted that he was not suggesting that any of the matters requiring further consideration in respect of option 1 meant that option 1 was not in principle "workable or achievable".[24] In relation to option 2, he accepted that a six by three metre single carport was reasonable vehicle accommodation for a dwelling house and that option 2 would not trigger a development application. He accepted that the location of option 2 would not require a planning approval from the Brisbane City Council and that its proposed location was logical. He accepted that Option 2 gave rise to similarly normal further considerations which he had identified in respect of option 1. He accepted that those further considerations did not necessarily mean that Option 2 was not workable or achievable. In relation to option 3 he accepted that none of the further considerations which he had identified in his report necessarily meant that option 3 was not workable or achievable. In relation to Option 4 he considered that an easement involving Number 7 was viable and worth considering.
[59] In his responsive report, Mr Ryan comprehensively noted and considered the matters which had been raised by Mr Taylor. Mr Ryan was careful to note that the matters identified by Mr Taylor were not matters of disagreement as between the experts but rather matters which he, Mr Ryan, agreed should be the subject of further consideration.
[60] Mr Ryan provided the following summary by way of conclusion in his reply report:
[66] Secondly, the applicants failed to demonstrate that the respondents' refusal to agree to accept the imposition of an obligation of user or to permit such user was, in all the circumstances, unreasonable. The applicants' proposal for an easement lacked clarity in material respects. The proposal was made by reference to a sketch which was not defined by a survey and which was superimposed upon an image supplied by the applicants, being an aerial photograph. The precise date of the image is unclear. It was not clear whether the image was an accurate representation of the site after the house on Number 15 had been raised and moved. Mr Bristow's evidence, which I accept, was that the proposal for an easement was unusual and vague and difficult to accurately assess because it was not made by reference to a survey plan. Mr Bristow further expressed, what I find to be a clearly correct opinion, that the proposed easement, as revealed by the sketch, was unworkable or impractical because it did not proceed past the back of each of the dwellings on the properties, meaning that it would be impossible to turn into Number 11 at the end of the proposed easement without a vehicle trespassing on some part of Number 15. Further, although in his first affidavit, Mr Greatrex ultimately deposed to the applicants being "willing to make payment of a reasonable amount to the respondents as compensation or consideration of a right of user in relation to the driveway", the applicants came to Court without having made any offer of a specific sum and ultimately led no evidence of what they considered would be a reasonable amount of compensation.