A right of carriageway as appurtenant to the land contained in certificate of title volume 3939 folio 32 over all that piece of land shown as "Site of Right-of-Way" on the plan annexed hereto and marked "A".
AND IN CONSIDERATION of the premises the transferee for herself and her personal representatives and her and their assigns DOTH HEREBY COVENANT with the transferor and her personal representatives and her and their assigns
(i) that she shall forthwith erect or cause to be erected along the western boundary of the said piece of land shown as "Site of Right-of-Way" on the said plan and shall at all times maintain in a proper state of repair a paling fence or such other type of fence as shall be mutually agreed upon from time to time by and between the transferee and the transferor or other the registered proprietor for the time being of the land contained in the said certificate of title volume 764 folio 149;
(ii) that in the event of the transferor or her personal representatives or her or their assigns at any time or from time to time failing to maintain the said fence in a proper state of repair the transferor or her personal representatives or her or their assigns shall be at liberty to repair the same and to recover the cost of such repair from the transferor or as the case may be from her personal representatives or her or their assigns;
(iii) that the transferor and her personal representatives and her and their assigns shall not be bound to make or pay and shall be exempt from all liability to make or pay any contribution to the cost of the erection maintenance or repair of any dividing fence along the western boundary of the said piece of land shown as "Site of Right-of-Way" on the said plan or of any other dividing fence between the lands contained in the said certificate of title volume 764 folio 149 and volume 3939 folio 32
AND IT IS HEREBY AGREED AND DECLARED
(a) that the land to which the benefit of the foregoing covenants shall be appurtenant is the land contained in the said certificate of title volume 764 folio 149
(b) that the land which is subject to the burden of the said covenants is the land contained in the said certificate of title volume 3939 folio 32 and
(c) that the person having the right to release vary or modify the said covenants or any of them shall be the registered proprietor for the time being of the land contained in the said certificate of title volume 764 folio 149 and the same shall not be released varied or modified without the consent of such registered proprietor.
ENCUMBRANCES, &c. REFERRED TO
NIL"
5 The plan annexed to that dealing showed the "site of right of way" as a thin slice of land lying just inside the eastern boundary of No 86, and extending part of the length of that eastern boundary. Subsequent survey has identified its dimensions. Without being fully precise, the site of the right of way can be identified by starting at the north-eastern corner of the defendant's land, proceeding 0.305 metres in a westerly direction, then proceeding in a southerly direction for about half the length of the boundary between No 84 and 86, then veering slightly to the east so that one meets the boundary between No 84 and 86 at a point very approximately two thirds of the distance along that boundary from King Street, and then returning in a northerly direction, along the boundary, to the point of commencement. (The evidence establishes the boundaries more precisely than I have just described them, but the description gives a general idea of where the site of the easement lies.)
6 Mr Konitsas became the registered proprietor of No 86 on 12 June 1968, and took up residence in No 86 at that time. His wife began living there with him in 1972. They continued to live there until 1985, when they moved to another home. Since 1985, No 86 has been occupied by tenants.
7 In the summer of 1974, part of the fence dividing No 84 and No 86 had fallen over. That fence had been the dividing fence between No 84 and No 86 ever since Mr Konitsas had owned No 86, and from its appearance it could well have been erected there prior to 1968. I find that no fence had ever been erected on the site of the fence contemplated by the instrument which created the right of way.
8 A survey which Mr Konitsas commissioned in November 1973 showed that the dividing fence between No 84 and No 86 was slightly off the boundary -- it was three inches outside the boundary of No 86 at the front of the house, crossed the boundary a short distance from the street frontage (but well in front of the front of the house erected on No 86), stood up to 8 inches inside the boundary for the length of the house erected on No 86, but stood on the correct boundary for the remainder of its length. When the fence fell over, Mr Konitsas spoke with one of the then owners of No 84, Mr Nicholas Kipriotis (who with his wife was registered proprietor of No 84). Mr Konitsas showed him the November 1973 survey, and suggested that they should replace the existing fence, and put it straight, as shown by the survey. Mr Kipriotis agreed. They agreed that they should share the labour equally, and share the cost of materials equally. In the summer of 1974 a wooden paling fence was erected by Mr Konitsas, Mr Konitsas' father-in-law, Mr Kipriotis, and a friend of Mr Kipriotis. Mr and Mrs Kipriotis contributed half the cost of the materials required to erect the new paling fence. As they had discussed, it was build on the boundary line between No 84 and No 86. That fence has been the dividing fence between No 84 and No 86 ever since.
9 Mr and Mrs Lolakis became registered proprietors of No 84 in early 1985. At the time of acquisition they received a survey which a surveyor, Mr Fuller, had performed in February 1985. Mr Fuller reported that the land had on it a cottage which was erected about 1926, and that the western wall of that cottage stood from 1.98 to 1.99 m inside the boundary. He also reported:
"A Right of Carriageway created by K445071 appurtenant to subject land is shown in blue upon sketch hereon. I report that this right is not presently utilised however if the existing fence was moved to the western boundary of the right it would provide wider access down the side of subject cottage to the garage at the rear."
10 Soon after Mr and Mrs Lolakis purchased No 84, they met Mr Konitsas. Mr Lolakis told Mr Konitsas that he had a survey of the property, which said he could use about one foot of his land. Mr Lolakis showed Mr Konitsas a piece of paper (which I infer was the survey) which showed this. Mr Konitsas said "No you can't. It's mine." Mr Lolakis says that to avoid an argument he terminated the conversation.
11 Mr Konitsas denies in evidence that this conversation occurred, but it seems to me more likely than not that Mr Lolakis' evidence is correct in this respect. There is no doubt that Mr Lolakis had a survey which showed that he had the benefit of the right of way. It is not in the slightest unusual that a new purchaser of property, which was supposed to have the benefit of a right of way, would try to actually obtain the benefit of that right of way. While Mr Lolakis cannot read English, and says that his affidavit was not read over to him in Greek before he swore it, he attended conferences with his solicitor and was accompanied by his wife, who can read English. Further, the essential elements of his affidavit evidence in chief on this topic were confirmed in cross-examination, which was conducted through a Greek interpreter. The effect of Mr Konitsas' denials of the conversation having occurred is seriously undermined by the fact that, in the course of his cross-examination, he denied some propositions which were clearly correct. Having seen Mr Konitsas in the witness box, I find it quite credible that his reaction to a suggestion that he should give up some of his property would be such as to make the person raising the suggestion decide it was prudent not to pursue the matter.
12 When Mr and Mrs Lolakis first purchased No 84 they had a Ford Cortina car. Though it was a tight fit, they were able to drive the car down the driveway at the western side of No 84, to reach a garage which was located towards the rear of the property. When Mr and Mrs Lolakis first purchased No 84 the driveway on the western side of No 84 consisted of two concrete strips, with grass in between. Mr Lolakis concreted the entire width of the driveway, from the western side of the house up to the existing fence. He constructed some gates across the driveway, so that one side of the gates abutted his house, and the other side of the gates abutted the existing fence.
13 In about 1988 or 1989, when Mr Lolakis was repairing the driveway of No 84, he said to Mr Konitsas, "Now that I am repairing the driveway, why don't we move the fence to allow me to use the easement?" Mr Konitsas replied "No. Don't you dare touch the fence!" Mr Konitsas denied that this conversation also had occurred. For similar reasons as I gave concerning the conversation in 1985 when Mr Lolakis first raised the question of having access to the right of way, I prefer the evidence of Mr Lolakis on this topic.
14 At a time not well identified by the evidence, Mr and Mrs Lolakis built an extension at the rear of their house. The western wall of this extension did not continue in a straight line with the western wall of the original part of the house, but rather stood a little to the east of a prolongation of the western wall of the original part of the house. Mr Lolakis explained that he built the wall this way so that the extension would not block vehicular access to the garage.
15 Seven or eight years ago, Mr Lolakis purchased a different car. This was a Holden Commodore, a car wider than the Ford Cortina, and it was not realistically possible to drive it down the driveway. The garage at No 84 came to be used for storage, and Mr Lolakis parked his car on the street. The driveway was used for storage of Mr Lolakis' boat, and sometimes for storage of his trailer.
16 In 1975 Botany Municipal Council approved a development application lodged by Mr Konitsas, which enabled him to build an extension at the rear of his house, and the addition at the rear of a second storey. Mr Konitsas built some footings and walls shortly thereafter, but at that time built nothing more of the proposed extension. In March 2000 he resumed the building work. Mr and Mrs Lolakis were most upset to find that building work of a fairly substantial kind was going on next door, particularly when they had received no notification from the Council that there was any proposal for such building work. This building work was the catalyst for Mr and Mrs Lolakis to take action to enforce the right of way. In September 2000 they instructed solicitors to write to Mr Konitsas seeking his co-operation in carrying out the realignment of the fence which will be necessary to use the right of way. Mr Konitsas apparently did not receive that letter, but he received a copy of it which was sent him on 18 October 2000. This prompted the making of an application to the Registrar General, on Mr Konitsas' behalf, for the cancellation of the easement on the ground that it was abandoned. Notification that the application had been made prompted, in turn, Mr and Mrs Lolakis to file a caveat against the title to No 86, seeking to protect their rights under the easement.
17 On 14 February 2001 Mr Lolakis engaged a builder to construct a fence on the site of the fence contemplated by the transfer granting the right of way. There was an unpleasant scene, with some threats of violence against the builder made by Mr Konitsas and his son. The police were called. Following this incident, there could be no room for doubt that Mr and Mrs Lolakis were actively seeking to enforce a right to use the easement, and that their right to do so was being actively opposed by Mr Konitsas.
18 Mr and Mrs Lolakis have a simple case in chief. They say that they have a registered easement, and that unless that easement is held invalid, extinguished or modified, they are entitled to a court order confirming that they have the benefit of it. As this is a case where the defendant did not rely upon any equitable discretionary defences, I accept that submission. I therefore turn to consider the grounds upon which the defendant seeks to have the easement held invalid, extinguished or modified.
Ground of Invalidity -- Not an Easement Because Exclusive Possession is Granted
19 The defendant contends that, in substance, the memorandum of transfer did not create an easement, but rather a transfer of more extensive rights in the area of land over which it purported to grant an easement.
20 It is clearly established that if an instrument creates exclusive and unrestricted use of a piece of land, that instrument does not create an easement. In Reilly v Booth (1890) 44 ChD 12 at 26 Lopes LJ said:
"The exclusive or unrestricted use of a piece of land, I take it, beyond all question passes the property or ownership in that land, and there is no easement known to the law which gives exclusive and unrestricted use of a piece of land. It is not an easement in such a case; it is property that passes."
21 The first sentence in this quotation was expressly approved by Lord Ashbourne in Metropolitan Railway Co v Fowler [1893] AC 416 at 428. In Copeland v Greenhalf [1952] 1 Ch 488 Upjohn J held that a right for the defendant to leave as many lorries as he liked on a particular strip of the plaintiff's land, for as long as he liked, and to repair lorries there, was not an easement.
"It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject matter of an easement." (at 498)
22 In In Re Ellenborough Park [1956] 1 Ch 131 at 163 Evershed MR (delivering the judgment of the English Court of Appeal) adopted, at 163, Cheshire's four characteristics of an easement, namely:
"(1) There must be a dominant and a servient tenement:
(2) an easement must "accommodate" the dominant tenement:
(3) dominant and servient owners must be different persons, and
(4) a right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant."
23 Concerning the fourth of these requirements, Evershed MR said, at 164:
"The exact significance of this fourth and last condition is, at first sight perhaps, not entirely clear. As between the original parties to the "grant" it is not in doubt that rights of this kind would be capable of taking effect by way of contract or license. But for the purposes of the present case, as the arguments made clear, the cognate questions involved under this condition are: whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession; whether, if and so far as effective, such rights constitute mere rights of recreation, possessing no quality of utility or benefit; and on such grounds cannot qualify as easements." (emphasis added)
24 His Lordship referred, at 176-177, to the decision in Copeland v Greenhalf and at 177 referred to the conclusion of Upjohn J as one which he had "very justifiably (if we may say so)" arrived at. See also Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd's Rep 472 at 477, Grigsby v Melville [1972] 1 WLR 1355 at 1364, where Brightman J expressed, obiter the view that a claim to an "easement of storage" over a cellar lying beneath the plaintiff's premises, and as a matter of construction of the conveyance to the plaintiff falling within the plaintiff's premises, failed because it "would give, to all practical intents and purposes, an exclusive right of user over the whole of the confined space representing the servient tenement."
25 It has been suggested (in argument in Grigsby v Melville, and also in Bradbrook & Neave, Easements and Restrictive Covenants in Australia, 2nd edition, paragraph 1.9), that there is an inconsistency between the decision in Copeland v Greenhalf and the earlier decision of the English Court of Appeal in Wright v Macadam [1949] 2 KB 744. I am not persuaded that there is any inconsistency. Wright v Macadam had held that the right of a tenant to store coal in a shed on the landlord's land, for use in the demised premises, could exist as an easement for the benefit of the demised premises. The argument in the case concerned whether the permission which the tenant had been given to store coal in the shed, was a mere personal license, and too uncertain or precarious a right to amount to an easement. The nature and extent of occupancy of the coal shed (including whether the tenant stored coal in the shed all year round) was not established by the evidence, and the court had no occasion to consider whether the nature and extent of occupancy was, by reason of depriving the defendant of possession of the land, incapable of being an easement.
26 Australian law has likewise recognised that conferring a right of occupation or use, to the exclusion of the owner of the land, is inconsistent with the concept of an easement. In Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 the plaintiff and the defendant occupied adjoining lots of land in George Street Sydney. Those lots had originally been part of a single Crown grant. The grantee conveyed the plaintiff's lot to a predecessor in title of the plaintiff, also granting a right of way to the plaintiff over a strip of land which abutted the common border between the lots, but reserving the right to build buildings at a height of 12 feet from the ground over the site of that right of way. That reservation was acted on, and buildings were erected over the site of the right of way. Then a predecessor in title of the defendant granted, to a predecessor in title of the plaintiff, "all buildings at present erected on the said road … at a height of not less than 12 feet from the ground above such road …". Windeyer J said, at 91:
"… when [the defendant's predecessor in title], as registered proprietor for an estate in fee simple, granted and transferred the buildings that were then erected to [the plaintiff's predecessor in title], he conveyed a part of his land, something very different from an easement. The transfer of a building without any reservation of a right by the transferor amounts, I consider, to a conveyance of the exclusive ownership of the building. That is inconsistent with the concept of easement."