Supreme Court of NSW|1998-08-27|Before: Young J

Hanny and Anor v Lewis and Ors Matter No 1893/98 [1998] NSWSC 385 (27 August 1998)

The Supreme Court of New South Wales Equity Division

HIS HONOUR: This is a dispute over access to some steeply sloping properties at Seaforth abutting on Middle Harbour.

Number 119A Seaforth Crescent, which is owned by the second and third defendants, Mr and Mrs Wong, abuts Seaforth Crescent and is on the highest ground. This property (to which I will refer simply as 119A) is lot 11 DP845836. As one proceeds down the slope towards Middle Harbour, one next reaches number 121, which is owned by the plaintiffs. That is lot 12 DP845836. It is approximately twelve and a half metres lower than the rear of the house on 119A. The property then slopes further down toward the harbour and number 119, owned by the first defendant Mr Lewis, is the lowest lot. Both numbers 119 and 121 are battle-axe blocks.

For the purpose of these reasons, although it is not strictly accurate, I will take Seaforth Crescent as being east, Middle Harbour west, number 117, which is sometimes referred to in evidence as "Scotts' land", to the south, and numbers 125 and 125A to the north.

The handle of the battle-axe block, number 119, is three metres wide. Transfer G385400 creates a right of footway over the whole three metre strip. Both the plaintiffs and the second and third defendants have rights of footway over this strip. The three metre strip extends on the whole of the southern side of 121 and 119A. The house on 119A has its southern wall virtually on the boundary between lot 119A and the battle-axe handle of 119. Immediately to the west of the house on 119A there is a cliff about eight metres high, plus a series of ledges, as one descends the twelve and a half metres to number 121.

Mr Lewis has an inclinator which terminates slightly to the west of the top of the cliff and goes down at a slight angle across the right of way to access his house number 119. There is also a wooden staircase from the top to the bottom of the cliff. That staircase is mainly on Scotts' land, though surveys would tend to show that the northern four hundred millimetres may be on the right of way.

Mr Hanny, the first plaintiff, says that he uses the staircase from time to time, always making sure he treads only on the northernmost four hundred millimetres.

The Wongs' backyard is at a much lower level than their house. Their only access to this yard is by a set of wooden stairs on the northern side of their house eight hundred millimetres wide. This eight hundred millimetres is on the battle-axe block handle of number 121. The stairs were erected before DP845836 was registered on 23 December 1994. However, under the 88B instrument lodged with that deposited plan, there are burdens over 121 in favour of 119A, and burdens over 119A in favour of 121. Apart from rights of drainage and easements for pipes, these prevent the erection of buildings, steps, inclinators or other structures, other than existing, without the consent of the other property owners. I have, of course, oversimplified the four or five page 88B instrument.

At present it is impossible physically to get to number 121 down the northern battle-axe handle because of the lie of the land and the wooden steps on the strip leading to the backyard of 119A. The physical access to 121 is gained either by walking down the right of way from Seaforth Crescent alongside the southern boundary of the Wongs' house and then either going down the northernmost four hundred millimetres of the Scotts' steps, or descending a series of almost vertical wooden ladders. There are approximately fifty-one steps down from a concrete slab immediately to the west of Mr and Mrs Wongs' house to the eastern boundary of number 121.

The Wongs have been in their house for about four years. They are not particularly impressed with the fact that people who walk down the right of way to access either 119 or 121 can actually see into their kitchen window and right through their lounge room window as they pass and repass. However, Mr Wong in the witness box made it clear that whilst that was not particularly nice, he knew he had to put up with it. However, he made it quite clear that he did not welcome at all any increased use of that particular right of way.

The plaintiffs purchased number 121 in February 1997. After purchasing the land they then (the evidence does not show how) constructed a substantial house on number 121. The house was commenced in May 1997 and its construction was completed in March 1998.

The plaintiffs borrowed money to construct the house and they have been making repayments on that loan since February 1997. Although the house has been completed they say they have not been able to live in it because of problems with access and have in fact been living in and paying rent for a unit about five kilometres away.

The male plaintiff says that he has health problems, which he fears will increase as he ages, making it difficult for him, particularly when carrying things, to reach his property and live in his house, without having an inclinator to help him. He says he has looked around the area and can identify about twenty-five properties within two hundred metres either side of his property which have inclinators and he seeks by these proceedings to compel consent to an inclinator to get to number 121.

The proceedings were commenced by summons on 31 March 1998, which was after the house on 121 was completed. The summons has been twice amended and in future I will refer only to the latest version, which is the further amended summons filed on 24 July 1998.

The summons seeks a series of orders. Orders 1 and 2 are for a declaration and consequential orders that the plaintiffs are entitled to construct an inclinator over what I might call the southern right of way, that is the battle-axe handle of 119, or the right of way created by G385400.

Next, in the alternative, the plaintiffs seek a declaration that they are entitled to construct stairs over the southern right of way.

Thirdly, they seek an order that under s 88K of the Conveyancing Act 1919 the appropriate easement be granted over the southern right of way so that they can construct an inclinator and/or stairs.

Fourthly, they seek an order under s 88K that they be granted additional rights over the northern eight hundred millimetre strip so as to get access to their land via that route.

There were various other orders sought in the further amended summons, including an order that Mr Lewis remove his inclinator, but these really do not enter into the final decision. The only reason on the evidence before me why Mr Lewis should move his inclinator is if one of the other orders sought by the plaintiffs is made, whereas when the proceedings were commenced it was alleged that there were other reasons as well why that inclinator should be removed.

I believe the way to approach this case is first to consider whether, without any order under s 88K of the Conveyancing Act, the plaintiffs have the right to erect an inclinator.

The grant of the right of way was specifically a right of footway. This picks up the definition in Schedule 8 to the Conveyancing Act, namely:

"Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass on foot at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof."

It will be seen that the definition expressly uses the words "without animals or vehicles". In this context "vehicles" is a word of very wide import and covers all manner of vehicles, whatever their mode of propulsion; see eg Kain v Norfolk [1949] 1 All ER 176; Barry v Fenton [1952] NZLR 990 and Robert Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461.

The evidence shows that inclinators of the type being considered in the instant case are constructed by putting a metal ratchet strip on wood and then providing a chair which by rack and pinion and the motor moves up and down the track.

The carriage of an inclinator is, to my mind, clearly a vehicle and, accordingly, the use of such is beyond the grant of a right of footway. There was some interesting discussion between Mr Warren, who appeared for the plaintiffs, and myself as to what was the cut off point between right of use by foot and vehicle, and whether it was really helpful to distinguish between a person wearing roller skates or roller blades on the one hand, which apparently would be using a footway for a purpose within the grant, and the use of a skateboard, non-motorised scooter or wheelchair, which would not. Whether these distinctions are well made or not can await a more appropriate case.

Is there then any right to build stairs over the right of way? This is not a question that can be answered yes or no. It is quite clear that a person can accommodate the rights that he has been granted by altering the surface of the land, such as building a made road or putting gravel, or what have you, on it to ease passage, so long as there is not undue interference with the rights of the owner of the servient tenement. If one has a right of footway over a cliff then it would seem to me by parity of reasoning that one can erect stairs to go down the cliff. There have been very few cases on this aspect of the law as it applies to a right of footway. Probably the most useful is the decision of the Court of Appeal in Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343, where it is at least assumed that a right of footway over a cliff can be used by means of steps and ladders. The proposition, in any event, follows from first principles.

However, there is a great problem with the type of stairs that might be erected. One can well consider that some stairs could be erected which would be too substantial an interference with the rights of the proprietor of the servient tenement. On the other hand, one could think of very basic stairs that would not be.

The plaintiffs seek a declaration in rather bald terms that they are entitled to construct stairs. I do not consider there is any utility in making such an order because the defendants do not contest the right of the plaintiffs to build appropriate stairs, and there has been no final specifications of the stairs that the plaintiffs want to build. Their rights, if there were any doubt

However, the plaintiffs are not really content at having stairs, they want an inclinator and I must now pass to the case made under s 88K of the Conveyancing Act 1919, that the court grant this easement because it does not exist at the moment.

Section 88K subsections (1) and (2) are as follows:

"88K (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

(2) Such an order may be made only if the Court is satisfied that:

(a) use of the land in accordance with the easement will not be inconsistent with the public interest, and

(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and

(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful."

It will be observed that a person seeking an order under the section has to establish four things:

(1) That the easement they seek is reasonably necessary for the effective use or development of their land;

(2) That the use of the dominant tenement in accordance with the easement will not be inconsistent with public interest;

(3) That the grant of the easement can be adequately compensated for; and

(4) That all reasonable attempts have been made by the plaintiffs to obtain the easement, but those attempts have been unsuccessful.

So far as the first of these matters is concerned, the cases show that the Conveyancing Act does not require that there be absolute necessity, as with an easement of necessity, but the need must go beyond merely desirability: Tregoyd Gardens Pty Ltd v Jervis (Hamilton J, 25 September 1997, unreported).

Hodgson CJ in Eq dealt with the question similarly in 117 York Street Pty Ltd v PSP 16123, 19 March 1998, unreported. See p 5 of the judgment. His Honour there said, among other things, that:

"In order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement".

It is to be noted that what is reasonably necessary is use or development of the land itself, not the enjoyment of the land by any of the persons who, for the time being, are the proprietors. Accordingly, evidence as to the particular problems that any one of the existing proprietors may have, or that because of those problems that person has to pay rent for other premises, or that that person has a mortgage, does not to my mind enter into the equation at all.

One must look to see what is reasonably necessary for the effective use of the land. In the instant case, it is certainly desirable for the use of the lower land, and it would affect its value if it had access by an inclinator rather than by a fifty-one step wooden staircase.

However, it does not seem to me that such a matter comes into the category of what is reasonably necessary. Access can be obtained by means of steps. There may, indeed, be other methods of access that might be obtained and the tone of the word "necessary" is getting close to something which is a vital requirement. I say "close" because the word "absolute" must not creep into the vocabulary, but there must be, as Hamilton J says, something more than the easement being merely desirable.

I stress this point because Mr Warren made his submission that if the easement that is currently sought, that is for an inclinator which ends up adjacent to the electricity box on the southern side of the Wongs' house and passes right by their kitchen window, may be thought by me to be too much, I should grant an easement which would allow an inclinator to a more westerly point.

After discussion I thought it was fairly clear between counsel and myself that if such an application were to be made the matter should be stood over so that it could be presented properly and the defendants have the opportunity of examining it. However, if, as I am holding, that access by inclinator is not reasonably necessary, then there is no point in doing that because, shortly, there is no power in the court under s 88K to grant such an easement. It might, of course, be granted by agreement, but that is another matter.

It is thus not really necessary to look at the other matters involved in an application under s 88K, but perhaps a couple of comments might be helpful.

As a general approach to applications under this section the court must bear in mind that property rights are valuable rights and the court should not lightly interfere with the property rights of the defendants. It is in the public's interest that landlocked land be utilised. However, the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect others to make their land available for access. It is not unreasonable for a defendant to show that he or she has a legitimate economic advantage in the status quo, nor is it at all unreasonable for a defendant to say for privacy or other personal reasons that there would be such an interference with his or her property rights that no compensation in money could make up for it, and no order could be made: cf Re Parimax (SA) Pty Ltd (1956) 56 SR (NSW) 130, 133.

In the instant case no offer of compensation was actually made by the plaintiffs. They indicated by their counsel that they were, of course, willing to pay any compensation that the court assessed as being appropriate, but they said it was impossible meaningfully to calculate the amount of compensation that should be ordered because there were so many imponderables. They further said, and what Mr Lewis said under cross-examination proved this, that it really would not have mattered what compensation was offered, Mr Lewis, at least, would not have accepted it.

I do not consider that a plaintiff can take this attitude. The plaintiff must at least make an initial attempt to obtain the easement by negotiation and although there may be some cases where it might be quite clear that there is going to be no interest at all in any money, in almost every case the court would expect some monetary offer to be made because, as Mr Murr, for the first defendant, said in his submissions, one knows from experience that one does not get negotiations rolling until someone has made an offer that can be tested.

There were quite a number of problems about the plaintiffs' case as presented. The inclinator seems only to take two people. However, there is no restriction on the number of folk that could use the right of way as guests of number 121. The easement may have had to have been granted subject to a large number of conditions, such as the number of people that could use it in any hour, or the hour in which it could be used, or otherwise. It is not necessary to go into these matters, but I mention them because ordinarily these sorts of things need to be brought to the surface and discussed before the application is brought on for hearing.

There was a subsidiary case brought that there should be a s 88K easement granted in respect of the northern side of the property. I think this fails for the reasons I have already given.

However, I would have thought that the evidence shows that the plaintiffs purchased their property knowing that there were these stairs on the northern side and the restrictions in the s 88B instrument, and the effect of putting an inclinator on that side is to remove the present access of Mr and Mrs Wong to their backyard, and their rights of privacy in entertaining in their upper courtyard area.

As the fee simple in the land is in the plaintiffs, it may be that they can do something without an order of the court, but I very much doubt it in view of the terms of the restrictions imposed by the 88B instrument, but in any event I am not asked to do anything along those lines.

It follows that the plaintiffs' claim must be dismissed with costs and the exhibits can be returned on the basis they will be returned to the court if there should be any appeal.

Hanny and Anor v Lewis and Ors Matter No 1893/98 [1998] NSWSC 385

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Hanny and Anor v Lewis and Ors Matter No 1893/98 [1998] NSWSC 385 (27 August 1998)

Parties

Legislation Cited (2)

Cases Cited (1)