Lowe v Kladis

The proceedings

1. Mr Kladis commenced proceedings in the Equity Division on 3 November 2014. By a Second Further Amended Summons filed on 24 August 2015 (Summons), Mr Kladis sought orders that the appellants consent for the purposes of cl 49(1)(b) of the Environmental and Planning Assessment Regulation 2000 (NSW) (EPA Regulation) to the lodgement of a development application on his behalf incorporating plans for the construction of the ramped driveway. Clause 49(1) of the EPA Regulation provides that a development application may be made (a) by the owner of the land to which the development application relates, or (b) by any other person with the consent in writing of the owner of the land.
2. The primary Judge delivered the Primary Judgment on 16 December 2016. His Honour concluded that Mr KIadis was entitled to relief against Ms Lowe, but not against SP 30459. However, the primary Judge considered that any relief in favour of Mr Kladis should be subject to a condition removing an aspect of the development application which provided for certain regrading work to be carried out on an area of about 2m2 on No 30. His Honour contemplated that although SP 30459 could not be compelled to consent to work on No 30, it could request Mr Kladis to perform that work. If SP 30459 made such a request Mr Kladis would have to undertake that the work would be carried out. The primary Judge also required Mr Kladis to undertake to provide an access door from each of Nos 28 and 24 to enable pedestrian access to the elevated driveway if the proprietors of Nos 28 and 24 so requested. His Honour directed the parties to formulate orders giving effect to the Primary Judgment.
3. A hearing was held on 17 February 2017 to consider competing versions of the proposed orders. In Judgment 2, delivered on 17 March 2017, the primary Judge rejected Mr Kladis' proposed orders. His Honour directed Mr Kladis to file and serve further orders giving effect to the reasons for judgment.
4. Mr Kladis duly filed a second set of proposed orders incorporating a development application exhibited to an affidavit sworn by Mr Spiro Kladis (Mr Kladis' son). A hearing was held on 16 June 2017 to consider the proposed orders. In Judgment 3, delivered on 23 June 2017, his Honour rejected the appellants' objections to the proposed orders. His Honour then made the following orders: "Upon [Mr Kladis] by his counsel undertaking to the Court that in the event that he obtains development consent for the construction of the driveway described in the development application being exhibit 'SK1' to the affidavit of Spiro Kladis sworn 26 April 2017, which development application is referred to as 'the revised DA': (a) he will inform [SP 30459], by notice in writing, of the date on which he intends to commence construction of the driveway (the commencement date) not less than 28 days prior to the commencement date; (b) if [SP 30459] requests him, by notice in writing not less than seven days prior to the commencement date, to perform the regrading work over an area of approximately [2 m2] within [SP 30459's] common property … (which work is referred to as 'the regrading work') he will amend the development application to include those drawings within it and will lodge an application under section 96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent accordingly ('the first section 96 application'); (c) if the development consent is modified in accordance with the first section 96 application, he will carry out and complete the regrading work at his own cost and expense and in a proper and workmanlike manner; (d) if [SP 30459] requests him, by notice in writing not less than seven days prior to the commencement date, to construct a staircase on and from its land down onto the land the subject of the easement created by transfer J47795, he will amend the development application to include within it drawings … which depict such a staircase) and will lodge another application under section 96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent accordingly ('the second section 96 application'); and (e) if the development consent is modified in accordance with the second section 96 application, he will carry out and complete the construction of the staircase at his own cost and expense and in a proper and workmanlike manner. The Court orders: 1. That within twenty one (21) days from the date of this order, the [appellants] give their consent under clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 to the lodgement of the development application, such consent to be provided by their execution of annexures A and B. 2. That, in the event that either of the [appellants] do not comply with order 1, upon [Mr Kladis] filing an affidavit by his solicitor proving such non-compliance, the consent be executed by the Registrar in the name, and on behalf of, the non-complying [appellants] 3. That, in the event that it becomes necessary for [Mr Kladis] to lodge the first section 96 application and/or the second section 96 application, [SP 30459] give its consent under clause 115(1)(h) of the Environmental Planning and Assessment Regulation 2000 to the lodgement of the first section 96 application and/or the second section 96 application, such consent to be provided by its execution of either or both (as the case may be) of annexures C and D. 4. That, in the event that [SP 30459] does not comply with order 3, upon [Mr Kladis] filing an affidavit by his solicitor proving such non-compliance, the consent or consents be executed by the Registrar in the name, and on behalf of, [SP 30459]."
5. In Judgment 4, delivered on 19 September 2017, his Honour ordered the appellants to pay one third of Mr Kladis' costs of the proceedings.

The Development Application

1. At the hearing of the appeal the Court requested information as to the status of the development application lodged by the respondent in connection with the construction of the elevated driveway. The parties subsequently provided the following information: (i) Following the orders made by Beech-Jones J on 23 June 2017, the appellants provided written consents to the respondent's Development Application in conformity with his Honour's orders. (ii) The respondent lodged Development Application DA 8.2017.148.1 (DA) with Mosman Council (Council) on 1 August 2017. (iii) On 4 January 2018, the respondent commenced proceedings 2017/00368048 in the Land and Environment Court (L & E Court) appealing against the Council's deemed refusal of the DA. (iv) On 16 February 2018, the appellants filed a notice of motion in the L & E Court seeking to be joined as parties to the proceedings. That motion has not yet been determined. (v) By consent of the parties, the proceedings L & E Court proceedings have been stayed pending determination of the appeal by this Court.
2. Shortly after the hearing in this Court concluded, the respondent filed an "Irrevocable Undertaking" in which he undertakes to the Court that in the event the appeal to this Court succeeds he will: (i) withdraw the DA; and (ii) discontinue the L & E Court proceedings.

Access rights

1. I shall refer shortly to the mutual easements existing over the four properties depicted on the diagram. For the sake of completeness the following explanation of access rights repeats some matters already noted:

• Strip 1, which runs from No 26 to Musgrave Street on a steep incline, is 1.549m in width. No 26 has no access to McLeod Street and currently has no vehicular access to Musgrave Street. Strip 1 forms part of the title to No 26 and, as will be seen, No 26 has a right of carriageway over Strip 2. Subject to the constraints of topography, there is pedestrian access between No 26 and Musgrave Street along Strips 1 and 2. At present the steep path from No 26 towards Musgrave Street veers off from Strips 1 and 2 and proceeds for a distance via stairs on Strip A. No 26 has no rights over Strip A.
• No 28 has vehicular and pedestrian access to McLeod Street. Strip 2 is also 1.549m in width and runs east to Musgrave Street. Strip 2 abuts Strip 1 immediately to its north. In addition to having access to McLeod Street, No 28 currently has pedestrian access to Musgrave Street along Strips 1 and 2.
• No 30 includes the areas on the plan designated as "A" (Strip A) and "E" (Strip E). [4] No 30 has pedestrian and vehicular access to Musgrave Street along the existing pebblecrete driveway.
• No 34 fronts Musgrave Street and of course has pedestrian and vehicular access to the street. Vehicular access is via the existing pebblecrete driveway.
• No 24 is a property to the immediate south of Nos 26, 28 and No 30. The northern boundary of No 24 abuts Strip 1. Contrary to what the diagram suggests, the northern boundary of No 24 apparently does not extend all the way to Musgrave Street. No 24 has vehicular access to Musgrave Street independently of its rights over Strips 1 and 2, but it also has pedestrian access to Musgrave Street along Strips 1 and 2 over which it has rights of way. The proprietors of No 24 are not parties to the proceedings, a matter to which I shall return. [5]

1. The primary Judge found that a series of "rights of carriageway" and "rights of way" were created in 1963 and 1964 over the lots on the plan reproduced above. In fact it appears that the rights were registered in 1965 although nothing turns on this. The relevant interests are as follows:

• No 26 has the benefit of "a right of Carriage Way" over that part of No 28 described as Strip 2 (created by Transfer J477955). No 26 also has the benefit of a "Right of Carriageway" over Strip E, being a strip of land within No 30 1.549 metres in width, (created by Transfer J533820). No 26 has no right of carriageway over that part of No 30 designated as Strip A.
• No 28 acquired a "right of Carriage Way" over Strip 1 (created by Transfer J477955). It is common ground that No 28 also has the benefit of a "right of Carriage Way" over Strip E (Transfer J477955), but there is a dispute as to whether No 28 has the benefit of a right of carriageway over Strip A.
• No 30 has the benefit of a "Right of Carriageway" over Strip 1 (Transfer J533820). No 30 also has the benefit of a "right of Carriage Way" over Strip 2 (Transfer J477955).
• No 24 has the benefit of a "Right of Way" over Strip 1 (Transfer J655385) and also has the benefit of a "right of Carriage Way" over Strip 2 (Transfer J477955). In addition No 24 has a "Right of Carriageway" over Strip E (Transfer J533820), but not over Strip A.

1. The primary Judge found that No 28 acquired a right of carriageway over both Strips A and E, each being within the title to No 30. His Honour attributed the creation of the right of carriageway to a transfer of the fee simple estate in No 28 dated 8 October 1963 (Transfer J477955). Although it is not clear from the material in the Blue Book, (which is not always legible), Transfer J477955 may well have been intended to have that effect. However, Mr Tomasetti SC, who appeared with Ms Hemmings and Ms Hammond for the appellants, challenged his Honour's finding on the ground that the registered title to No 28 does not record a right of carriageway over Strip A.
2. The registered title to No 28 shows that No 28 has a right of carriageway "affecting the land designated (E) in Lot 1 … in DP 32915". Strip E is within the title to No 30. The register does not expressly refer to a right of carriageway over Strip A, but on one interpretation of DP 32915 the designation "(E)" is intended to encompass both Strips A and E.
3. The documentary evidence, in the absence of further explanation, leaves the true position uncertain. The uncertainty was not resolved by the parties' submissions. Neither party submitted that the precise extent of No 28's rights of carriageway should be determined by reference to s 42(1)(a1) of the Real Property Act 1900 (NSW) (RP Act), which provides that the title of the registered proprietor of land is free from all unregistered estates or interests except (relevantly) "in the case of the omission or misdescription of an easement … validly created [after the land was brought under the provision of the Act]".
4. In this rather unsatisfactory state of the evidence and submissions, I am not prepared to say that his Honour's finding was wrong. I therefore proceed on the basis that No 28 enjoys the benefit of a right of carriageway over both Strips A and E.

Legislation

1. All of the transfers creating easements use the expression "right of Carriageway" except for No 24's "Right of Way" over Strip 1. Section 181A(1) of the Conveyancing Act 1919 (NSW) (Conveyancing Act) provides that in an instrument purporting to create a right-of-way, the expression "right of carriage way" has the same effect as if there had been inserted in lieu thereof the words in Part 1 of Schedule 8. Schedule 8 to the Conveyancing Act relevantly provides as follows: "Part 1 Right of carriage way 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 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."

Primary Judgment

1. The primary Judge explained the topography between the end of the current driveway and No 26 as follows: [6] "From point X to the eastern edge of No 26, the land drops sharply by 15.725m. Immediately to the west of point X are a set of steps made of concrete and the rock face. The steps descend for approximately 8 metres. The stairs wind down the incline and in doing so veer off strips 1 and 2 and onto strip A. The bottom part of the stairs are made up of brick and the path beyond is paved. At the bottom of the stairs the house on No 28 is almost adjacent in a northward direction. The northern wall of No 24 abuts the stairs and the path. It is self‑evident that a vehicle cannot be driven past point X and that would be so even if a driveway was built immediately on top of the existing land. It would be too steep." (Footnotes omitted.) His Honour noted that the proposal annexed to the Summons did not involve either No 24 or No 28 having vehicular or pedestrian access to the elevated driveway, although both had vehicular access to public streets by other means. [7]
2. The primary Judge continued as follows: [8] "27 It seems inevitable that the construction of the ramp will have a substantial effect on the amenity of No 28 in that an elevated ramp will be in close proximity to the back portion of the house on that property However … it is not part of this Court's function to determine such matters. Instead, it is concerned with the driveway's effect on property rights, especially the exercise of rights over strips 1, 2 and A."
3. His Honour continued: [9] "28 The effect of constructing the driveway will be to obliterate the top part of the stairs and create a cave under the ramp over the land on the western half of strip 1 and strip 2. In that event, the owners of No 28 will be unable to walk on the elevated ramp unless they climb the balustrade. Equally, they will not be able to walk on the area of strip 1 and strip 2 under the ramp up the stairs to Musgrave Street or down to the western end of their property but will instead have to divert and use their easement over No 30 to ascend to the upper part of strip 1 and strip 2. 29 Similarly, the owners and occupiers of No 24 will be unable to walk on the elevated ramp unless they climb the balustrade. Further, they will not be able to access the area of strip 1 and strip 2 under the ramp at all even though they have an easement over both. If they did find themselves in that area they would be unable to exit without No 30's consent as, unlike No 28, No 24 does not have an easement over strip A on No 30."
4. The primary Judge recorded that Mr Kladis had offered to build gates to enable the proprietors of No 24 and 28 to gain vehicular or pedestrian access to the elevated driveway. Mr Kladis had also offered to construct a stairway under the ramp and partly on No 28's existing right of way over No 30 so as to provide No 28 and No 24 additional pedestrian access to the street. [10]
5. His Honour found that the plans proposed by Mr Kladis required the use of a 2m2 section of Strip A on No 30 as a parking bay. According to Mr Kladis, this had been included in the plans for the benefit of No 30 and 34, to ensure that there was no gap between their current turning area and the new elevated driveway. [11] However, his Honour accepted that the proposed use of this section of land over which No 26 had no rights would constitute an actionable trespass. [12]
6. Mr Kladis had submitted that if necessary this aspect of the plans could simply be deleted. The appellants' response was that if the passing bay was not constructed, it would be impractical for the vehicles leaving the garages on Nos 30 and 34 to manoeuvre. His Honour's approach to the apparent impasse was as follows: [13] "51 If the removal of this area from the DA was to make it impractical for the vehicles on No 30 and No 34 to manoeuvre then that would be a consequence of their [sic] refusal to agree to the regrading work on their land. It is not an impediment to conditioning relief so that no permanent entry onto No 30 occurs without its owner's consent. Otherwise, I do not agree that the Court is presented with a binary choice of either ordering the [appellants] to sign the DA that was tendered or dismissing the Summons. Instead, it is a matter of fact and degree. The Court can always mould relief although there is a limit to which it can, by conditioning relief, effectively amend a DA. 52 At least so far as the two square metres … are concerned I accept that the Court can proceed as suggested by Mr Grieve QC [for Mr Kladis] and mould relief so that [SP 30459] can choose whether or not to allow work to proceed on its land if the DA is ultimately approved. 53 Accordingly, this aspect of the DA will need to be removed and [Mr Kladis] will need to proffer an undertaking that, subject to Council approval, [he] will perform the proposed regrading work on this area if [SP 30459] (or its successor) advises them that it is required. This choice is to remain open until a period prior to the date that [SP 30459] is notified that the work will commence (assuming that the DA is approved)."
7. His Honour concluded that Mr Kladis was entitled to relief against Ms Lowe, conditional on Mr Kladis giving undertakings relating to:

• work on the 2m2 section of No 30; [14] and
• gateways providing for pedestrian access from Nos 24 and 28 to the proposed driveway. [15] Mr Kladis was directed to prepare short minutes giving effect to these conclusions. [16]

1. The primary Judge next addressed a submission by the appellants that the proposed works would derogate from the rights over Strips 1 and 2 enjoyed by the appellants and the proprietors of No 24 (even though the latter were not parties to the proceedings). The submission was based on the contention that the owners of No 28 and 30 could not be compelled to approve a development application that unreasonably interferes with the owners' rights. [17]
2. The primary Judge summarised the effects of the proposed works as follows: [18] "57 … the construction of the [Development Application] as tendered would preclude the owner of No 28 (and persons authorised by her) from walking continuously over strip 1 and strip 2 to Musgrave Street. They would be unable to access the area at the bottom of the ramp, would have limited access to strips 1 and 2 under the ramp and could no longer ascend the stairs. At best they could only walk from approximately half way under the ramp up the remainder of stairs. To access Musgrave Street they would need to use their right of way over strip A. In that respect Mr Parker SC submitted that the owner of No 28 cannot be compelled to give over its own land and a right of way over strip 1 simply because she has a right of way over No 30. That said, if the owner of No 28 were to take up the proposal to build a gate onto the driveway, then they could access Musgrave Street from that point by walking up the ramp. 58 With No 24, however, they have the extra impediment in that they cannot exercise a right of way on strip A on No 30. … [T]he owner of No 24 would be at the mercy of the owner of No 30 if they wished to walk from the area under the ramp up to Musgrave Street. The owners of No 24 could not traverse down the stairs as they previously could, however, they could walk down the driveway if access were granted via a gate." (Footnotes omitted.)
3. His Honour found that these were "not insubstantial affectations" even if Nos 24 and 28 accepted Mr Kladis' offer to construct gates providing access to the proposed driveway. Nonetheless his Honour was not satisfied that the proposed use of the easement of carriageway was unreasonable: [19] "59 … this aspect of the [appellants'] objection falls to be determined by a consideration of whether [Mr Kladis'] proposal involves an interference with the [appellants'] and No 24's rights that "is so substantial as to interfere with their rights in an unreasonable manner". To dismiss the Summons on this basis would effectively deny [Mr Kladis] from ever exercising the right to build a driveway on strip 1 and so much of the right of carriageway that involves a right to pass over strip 2 "with vehicles". Assuming the proposal includes footway access for No 24 and No 28 to the driveway, there is no realistic possibility of ever building a driveway to No 26 that does not interfere with the [appellants'] and No 24's rights to this extent. To refuse the application would be to effectively deny No 26 the ability to ever exercise this aspect of its right of carriageway. On the other hand, to grant the relief would, in this respect, impair the rights of passageway of the owners No 28 and No 24 although if they were offered gates onto the driveway that impairment would be mitigated. 60 There is a significant distinction between not allowing an unreasonable or excessive user because of its effect on the servient tenement or other users of the right of way … and effectively denying the dominant tenement any right of carriageway for vehicles at all. The building work encompassed by the [Development Application] may impair the rights of passageway of No 24 and No 30 over strip 1 and strip 2 as well as No 28's rights, but that does not lead to a conclusion that the form of use proposed by [Mr Kladis] is unreasonable if to deny that use is to deny [Mr Kladis] a right of carriageway for vehicles altogether. To the contrary, I am not satisfied it is relevantly unreasonable. (Footnotes omitted.)

Judgment 2

1. At the outset of Judgment 2, the primary Judge stated that it was not part of the Court's function to consider the effect of the proposed driveway on the amenity of the appellants' properties. Nor was it the Court's function to assess whether any of the parties was acting unreasonably. The sole question was whether the respective proprietary interests of the parties warranted the grant of relief to Mr Kladis and, if so, the form of that relief. [21]
2. The primary Judge identified the principal difficulty with the short minutes proposed by Mr Kladis as their failure to identify a specific form of development application that the appellants were required to execute. [22] Among other things, the short minutes contemplated that the proposed development application might be modified to extend the driveway over Strip E. The Primary Judgment had not granted relief against SP 30459 because its only relevant interest was in the 2m2 strip on No 30. This small area was not to be affected by the development application unless SP 30459 requested Mr Kladis to perform the work. If works were to be performed on Strip E, further issues would arise. [23]
3. A further difficulty was that the Primary Judgment envisaged that the undertakings required of Mr Kladis would enable the affected owners to elect after the development application had been approved but before any works commenced. The development application would then have to be amended. Mr Kladis' proposed short minutes required the election to be made before the development application was lodged. [24]
4. The primary Judge recorded that the appellants had withdrawn their submission that the proposed driveway unreasonably interfered with No 24's rights of carriageway over Strips 1 and 2. The appellants accepted that there was therefore no utility in Mr Kladis providing an undertaking since the proprietors of No 24 were not parties to the proceedings and their right to sue for any potential nuisance was unaffected. [25] His Honour agreed that there was now no need for the undertaking. [26]
5. The primary Judge acknowledged that in the Primary Judgment he had overlooked a submission by the appellants that the proposed works would restrict the ability of the occupiers of No 30 to move from the higher part of the common area at the south-east section of No 30 to the lower part at the south-west section. [27] In order to address this submission his Honour explained the layout of No 30: [28] "At the south eastern corner of No 30 is a common area which allows for vehicular access for both of the strata units in No 30. The edge of the existing driveway is just to the west of the edge of this area. The two metre squared area referred to above and described in Kladis No 1 at [25] is in this vicinity. One of the two strata units in No 30 has a balcony which is located near the south‑western corner of No 30 and well below the level of the common property in the south eastern corner. The common property of No 30 includes the area immediately to the north of strip 2 which runs from point X down past the balcony to the south western corner (and then north along the boundary with No 28). Various services for the building have been laid across this land. It can be accepted that No 30 has an obligation to maintain this area."
6. Access between the two sections of No 30 was via a stairway on the steeply sloping land that was partly on Strips 1 and 2 but veered off onto Strip A. The proposed driveway did not facilitate access between the two sections of No 30 because it was elevated from ground level at the point where it was adjacent to the south-western corner of No 30. [29]
7. His Honour approached this issue as follows: [30] "I do accept ['the appellants'] submission that generally it is not an answer to the impairment of No 30's rights of carriageway that it could use some of its own property to ameliorate this impairment. However, an analysis of No 30's rights of carriageway over No 26 need not result in a denial of No 26's right of carriageway altogether. In particular, I do not accept that some modification of the driveway to provide access down to the common area of No 30 must occur wholly within strip 1 and strip 2. Assuming that, at the appropriate time, the proprietor of No 30 decided to reject ['Mr Kladis'] proposal for a modified staircase, then No 30 can and should have access to its common property via its rights of carriageway but only via a ramp on its land up to the driveway and not via a ramp on strip 1 and strip 2."
8. The result was that in order to obtain relief Mr Kladis would have to prepare and serve a revised development application. Any revised development application was to relate only to so much of Strips 1, 2 and E that were to be affected by the proposed driveway. [31] The revised development application was to include provision for so much of the access to the driveway for No 28 that was to be built within Strip 2. Other issues were for Mr Kladis to consider. [32] The primary Judge directed Mr Kladis to file and serve proposed orders necessary to give effect to Judgment 2.

Judgment 3

1. Judgment 3 addressed the revised set of orders and a revised development application prepared by Mr Kladis. The primary Judge summarised the revisions to the development application as follows: [33] "7 First, the revised DA deletes the 2m2 area of proposed work on No 30 referred to in Kladis No 1 at [25]. 8 Second, the revised DA includes new pedestrian gates providing footway access via the proposed driveway for No 24 and No 28 (see Kladis No 2 at [46]). 9 Third, the revised DA deletes a proposed stairway that was included in the original DA that extends over part of No 30 and under the proposed driveway that would have provided footway access for No 28 to point X on the [diagram] and access between the common areas of No 30 (see Kladis No 1 at [30] and Kladis No 2 at [19]). This deletion gives effect to the finding in Kladis No 2 at [13] and [28] to [29] that the revised DA must be strictly confined to property over which [Mr Kladis] has property rights. 10 Fourth, the revised DA involves a reconstruction and extension of the existing driveway so that it extends over the entirety of strip E (see Kladis No 2 at [25ff]). This work will incorporate some regrading work, will require the demolition of two stairs which provide access to the basement of No 34 and the removal of some shrubs and trees."
2. The primary Judge noted that Mr Kladis had proffered undertakings: [34]

• to modify the revised development application to include the area of 2m2 on Strip A if SP 30459 so elected; and
• to modify the revised development application to include the stairway extending onto No 30 if SP 30459 so elected.

1. The primary Judge observed that a number of objections made to the proposed orders and development application attempted to relitigate matters resolved in the Primary Judgment and Judgment 2. [35] Contrary to the appellants' submissions, they were not compelled to consent to a development application that involved works on parts of their land over which Mr Kladis had no rights. The works could only take place if the appellants elected to have them included in the development application. [36]
2. His Honour rejected all other objections to the revised development application and indicated that, subject to minor amendments he would make the orders sought by Mr Kladis. [37] The orders have been set out earlier. [38]

An observation on the evidence

1. Much of the argument in this Court was taken up with counsel endeavouring to explain, by reference to various plans and photographs scattered throughout the appeal books, the effect the proposed construction of the elevated driveway would have on the rights of the proprietors of Nos 28, 30, 34 and 24. This exercise was made considerably more difficult than it should have been because the evidence was incomplete and was not presented in a form that was easy to follow. The Court was not taken, for example, to any report that explained the impact of the proposed elevated driveway on the ability of the proprietors of each lot to gain access to Strips 1 and 2 at current ground level. Nor was the Court taken to any report that explained precisely what each set of owners and occupiers would have to do in order to gain access to the elevated roadway if it were constructed. Consequently, senior counsel on each side attempted, with varying degrees of precision and apparent accuracy, to explain the topography of the land, the location of structures and vegetation on each lot including existing gates or doorways, the position of the proposed elevated driveway in relation to existing boundaries and structures and the means by which the proprietors of the various lots could gain access to the elevated driveway once it was constructed.
2. The difficulty can be illustrated by the response to the Court's queries concerning the distance between the northern side of the proposed elevated driveway and (a) the southern boundary of No 28 and (b) the existing structures on No 28. The Court was taken to a plan designated "Long Section (Looking North)" which is part of the development application to which appellants were required to consent. The plan represents the proposed works, starting at a point near the boundary between Nos 34 and 30 and finishing at No 26, by reference to elevations and existing structures on Nos 28 and 30. The plan is reproduced below:
3. The plan shows, among other things, that the proposed driveway (including the balustrades) proceeds from east to west on a falling gradient from east to west near the southern boundary of No 28. The plan also shows the location of a "new pedestrian access gate" at a point where the driveway descends below the level of the existing house on No 28.
4. When Mr Grieve QC, who appeared for Mr Kladis, was asked how far the northern edge of the driveway was from the southern boundary of No 28 and from the southern façade of the house on No 28, he suggested that the ramp was 3.66 metres from what he described as a retaining wall on No 28. Although it does not appear from the plan or any other document to which the Court was taken, Mr Grieve suggested that there were two retaining walls on No 28. The more westerly wall was said to be at a lower level and was more or less on the boundary of No 28, while the more easterly wall was higher (reflecting the upwards slope of the land to the east) but was set back 3.66 metres from the boundary. Mr Grieve deduced these conclusions from another plan which contained a reference to a distance of 3.66 metres. Scrutiny of the second plan to which Mr Grieve referred the Court suggests that the recorded distance of 3.66 metres refers to the distance between the northern edge of the ramp and the southern edge of a balcony on No 28. It would seem therefore that Mr Grieve misinterpreted the second plan and that the distance between the more easterly retaining wall (if it indeed continues as far as Mr Grieve suggested) is not necessarily 3.66 metres.
5. Mr Grieve was also asked how the occupiers of No 28 would gain access to the proposed gate. He said that it would be a simple matter of descending from the house to what is apparently a landscaped area in the south-western section of No 28. The occupiers would proceed towards what seems to be vegetation growing above the more westerly (lower) wall and then walk along what Mr Grieve described as the 3.66 metre gap between the southern boundary of No 28 and the more easterly retaining wall to the proposed gate. Neither party referred the Court to evidence supporting or refuting this hypothesis. It is possible that the hypothesis is correct but it cannot be verified from the material to which the Court was taken in submissions.
6. This is a case which is said to depend, to a large extent, on the impact of the proposed elevated driveway to be constructed over Strips 1 and 2 on the rights over the proprietors of the various lots affected by the development. These include the owner of the servient tenement (No 28 of which Strip 2 is part) and the owners of lots entitled to the benefit of concurrent easements over the land on which the development is to take place (Nos 24 and 30 which have the benefit of easements of carriageway over Strips 1 and 2 and No 28 which has a right of carriageway over Strip 1). In a case such as this it would have been helpful, to say the least, had the parties jointly prepared, if not a computer-generated model of the proposed development (including the access gates), then at least a report explaining the physical consequences of the proposed development on the affected lots.

Appellants' submissions

1. Mr Tomasetti did not dispute that the primary Judge correctly stated the relevant legal principles. He submitted, however, that his Honour fell into error in applying the principles to the facts. Although the submissions were put in a variety of ways, Mr Tomasetti put three principal arguments.
2. First, the primary Judge had accepted that the proposed elevated driveway substantially interfered with the appellants' proprietary rights. Yet his Honour considered that the interference could be ameliorated by moulding relief in a manner that provided for the appellants to "elect" to permit work on their own land over which Mr Kladis had no rights. According to Mr Tomasetti, the primary Judge was faced with a binary choice: either to approve the proposed development application or dismiss the Summons. His Honour was not entitled to conclude that if the appellants declined to permit works on their own land, any adverse impact on their rights would be a consequence of their own acts.
3. Secondly, the primary Judge erred by imposing conditions that gave the appellants no choice but to "elect" to permit the works on their land. Effectively they were required to agree to Mr Kladis using No 30 to rebuild the driveway transition near the existing garages on Nos 30 and 34 and to construct a stairway on No 30 to give access to common property and utility services on the lower south-western section of the property. If the appellants did not make the election proposed to them, they would suffer a loss of rights they currently enjoyed over Strips 1 and 2.
4. Thirdly, the primary Judge erred in failing to conclude that the effects of proposed works on their proprietary rights were so unreasonable as to require dismissal of the Summons. Mr Tomasetti submitted that the proposed elevated driveway, among other things, denied the appellants access to their own land; impaired or prevented egress from the existing garage on No 30; provided only unsafe pedestrian access from No 28 to Musgrave Street by means of a small gate in the balustrade onto the steep ramp; created a void under the new ramp; and prevented access from the upper part of No 30 to the lower part unless SP 30459 agreed to the construction of a stairway on Strip A.
5. The primary Judge reasoned that to dismiss the Summons would be effectively to deny Mr Kladis the right to build a driveway on Strip 1. But, so Mr Tomasetti contended, Mr Kladis had no such right because his interest in Strip 1 was burdened by the easements of carriageway in favour of Nos 24, 28, 30 and 34. The concept of reasonable use applied both to the servient and dominant owners and the proposed works prevented the reasonable exercise of the rights of the appellants.

Mr Kladis' submissions

1. Mr Grieve characterised the primary Judge's decision as discretionary. Accordingly, so he argued, this Court should interfere only if the appellants could show that the primary Judge committed an error of the kind identified in House v The King. [39] Mr Grieve submitted that no such error had been shown. His Honour had applied the correct legal principles and made a judgment as to whether the proposed elevated driveway unreasonably interfered with the rights of the appellants.
2. Mr Grieve contended that in any event the undertakings proffered by Mr Kladis would ensure that the appellants' rights of pedestrian access to their lots would not be adversely affected. For example, the offer to construct a staircase as specified in par (d) of the orders made by the primary Judge would provide No 30 with access to the lower portion of the lot. While the proposal required work to be done on land over which Mr Kladis had no rights, the primary Judge's approach struck a "practical and reasonable balance between the respective rights" of Mr Kladis and the appellants. This was particularly the case given that the occupiers of No 28 had alternative access to a public street and, in any case, cannot secure vehicular access from Musgrave Street because of the steep terrain to the west of the pebblecrete driveway.
3. Mr Grieve summarised Mr Kladis' contentions in oral argument as follows: "We say that the alternative solutions to this problem in a practical sense are there, and would provide a ready answer to the competing claims of all the neighbouring landowners, to both pedestrian and if they wanted it, vehicular access to Musgrave Street, as well as accommodating 30's desire to get to the lower part of its own property. That really is the case in a nutshell."

Should the proprietors of Nos 24 and 34 have been joined as parties?

1. As has been noted, neither the proprietors of No 24 nor Mr Conen, the proprietor of No 34, were joined as parties to the proceedings. The question of whether the proprietors of Nos 24 and 34 were necessary parties to the proceedings was raised with both senior counsel at the outset of the hearing.
2. Although the issue was primarily for Mr Kladis, since he was the plaintiff in the Equity Division proceedings, Mr Tomasetti indicated to the Court that there would be no difficulty in joining Mr Conen as a party if necessary. Mr Tomasetti pointed out that Mr Conen was effectively actively involved in the proceedings in any event by reason of his ownership of one of the two units on No 30. Moreover he had given evidence in the proceedings in support of the appellants' case. Mr Tomasetti acknowledged that there might be an issue as to whether the owners of No 24 should have been joined as parties to the proceedings but conveyed his understanding that the owners of No 24, who apparently live overseas, were aware of the proceedings and did not wish to be heard. Mr Tomasetti did not suggest that there was evidence to this effect.
3. The principles governing the circumstances in which a party must be joined to proceedings were helpfully stated by Leeming JA in Ross v Lane Cove Council: [40] "51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. 52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between 'legal' and 'commercial' interests. His Lordship said at 56: 'A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?' 53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said: 'Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.' (Citations omitted) 54 Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. … 57 Contrary to Council's submission that 'the line of authority from the Super League case must be read in the context of the overriding purpose set out in the Civil Procedure Act', nothing in ss 56-59 of the Civil Procedure Act undermines this principle, at least in its application to the present case. The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order. That is why the High Court referred to the position of the non-party Walker Corporation in John Alexander's Clubs at [153] as depending on 'matters of right affecting non-parties which rest on general law principles of natural justice'."
4. Leeming JA qualified this analysis by observing that because the underlying concern is natural justice, joinder is not always necessary. [41] His Honour pointed out that Uniform Civil Procedure Rules 2005 (NSW) r 6.23 provides that proceedings are not defeated merely because of the non-joinder of a party. His Honour considered that where a party would suffer no prejudice by not being joined to the proceedings, joinder is not essential.
5. In the present case, I am satisfied that it was not necessary to join Mr Conen. He not only had notice of the proceedings but actively participated in them. He was clearly fully aware of the impact of the proposed development application on No 34 and had had the opportunity to adduce evidence and advance arguments in opposition to Mr Kladis' claim for relief.
6. The owners of No 24 are, however, in a different position. The primary Judge found that the original development application contemplated that No 24 would lose access to parts of Strips 1 and 2 under the ramp notwithstanding No 24's rights of carriageway over both Strips. [42] The owners of No 24 would be at the mercy of the owner of No 30 if they wished to walk under the ramp and then emerge at a higher level in order to reach the pebblecrete driveway leading to Musgrave Street. [43] Importantly, his Honour accepted that No 24 would experience "not insubstantial affectations" even if the plans were modified to include a gate providing access from No 24 to the elevated driveway. Nonetheless he did not think that a modified proposal would be so substantial as to interfere with No 24's rights as to be unreasonable. [44]
7. In Judgment 2, the primary Judge recorded that the owners of No 24 were not parties to the proceedings because they were not the owners of the land to which the development application related. [45] His Honour accepted a submission that there was no need for Mr Kladis to give an undertaking concerning access from No 24 to the elevated driveway because the appellants had withdrawn their submission that they could rely on the impairment of No 24's rights as a basis for refusing their consent to the lodgement of the development application. [46] It was therefore not necessary for the Court to determine whether the proposed driveway unreasonably interfered with the rights of a non-party.
8. In Judgment 3, the primary Judge rejected an attempt by the appellants to revive the argument that the amended development application had an adverse impact on No 24. [47] However, he noted that the amended development application provided new pedestrian gates to allow footway access from No 24 to the elevated driveway. Presumably because any adverse effect on No 24 had been removed from consideration, Judgment 3 did not examine what the owners of No 24 would be required to do in order to take advantage of the proposed new gate, which seems to be well above existing ground level. In the course of argument in this Court Mr Tomasetti suggested that the owners of No 24 would have to use some of their own land to erect stairs to the new gate, which otherwise would be more or less suspended above ground level.
9. In my view, the owners of No 24 should have been joined as parties to the Equity Division proceedings. It was not simply a matter for the appellants to decide whether or not they wished to advance arguments based on the adverse impact of the proposed development application on No 24. It was the responsibility of Mr Kladis as the party seeking relief from the Court to join all those whose rights were directly affected.
10. The orders sought by Mr Kladis would not of themselves result in works that would impair the rights of carriageway appurtenant to No 24. The lodgement of a development application would only result in work being carried out if the Council, as the consent authority, granted development consent. Even so, the orders made by the primary Judge required the owners of the properties on which the proposed development was to take place to give their consent to the development application. The owners of No 24 could still lodge an objection with the Council to the development application. But the objection would be limited to planning matters that a consent authority can take into account under the Environmental Planning and Assessment Act 1979 (NSW). The owners of No 24 could not successfully object to the development application simply on the ground that the proposed works would interfere with their rights of way.
11. The effect of cl 49(1) of the EPA Regulation is to require the consent of the owner of the land on which the development is to take place. The consent of a person whose right of carriageway is affected by the proposal is not required. In the present case, the owner of the relevant land refused to consent and Mr Kladis sought orders compelling the owner to consent.
12. The orders sought by Mr Kladis would not bind the owners of No 24 if the owners were not joined in the proceedings. Nonetheless, given that neither Ms Lowe nor SP 30459 was prepared to consent to the development application, the proceedings were intended by Mr Kladis to remove an otherwise insuperable barrier to the lodgement of his development application. If Mr Kladis succeeded in removing that barrier the owners of No 24, like Ms Lowe and SP 30459, would be at risk of interference with and derogation from their proprietary rights. As the owners of No 24 were not joined as parties to the proceedings, they lost the opportunity to be heard in opposition to the orders sought by Mr Kladis. The owners therefore were denied the opportunity to prevent the proposed works reaching the stage of development consent.
13. It is true that the owners of No 24 would not be prevented from bringing proceedings in nuisance to restrain Mr Kladis from carrying out the works even if development consent was granted. But it is one thing to have the opportunity to be heard, along with others with a similar but not identical interest, in opposition to an application to remove a barrier to the lodgement of a development application. It is another to be forced to institute proceedings to prevent the commencement or continuation of works for which development consent has already been obtained. Among other things an action to restrain the works would almost certainly require the owners of No 24 to give an undertaking as to damages.
14. It is also to be borne in mind that s 63 of the Supreme Court Act 1970 (NSW) requires the Court to determine finally and completely, so far as possible all matters in controversy between the parties and to avoid the multiplicity of legal proceedings concerning those matters. Until the appellants withdrew their submission that No 24's rights would be adversely affected by the proposed development, the parties to the present proceedings were debating an issue in the absence of the owners of No 24 that would necessarily arise in any subsequent proceedings brought by them against Mr Kladis. This would be inconsistent with the policy underlying s 63.
15. I consider that the Equity Division proceedings directly affected the rights of the owners of No 24 in the relevant sense. The failure to join the owners as parties denied them the opportunity to be heard to protect those rights.
16. The absence of necessary parties to the proceedings would ordinarily justify setting aside the orders made by the primary Judge. However, after the hearing in this Court was concluded, the solicitors for the appellants wrote to the solicitors for the owners of No 24 providing details of the proceedings, including the judgments at first instance and the notice of appeal. The letter invited the solicitors to consider the documents and to advise whether their clients wished to be joined as parties to the proceedings or otherwise to participate in the litigation. The solicitors' reply included the following: "In answer to your enquiry, we are instructed to confirm that our clients do not wish to be joined as a party to these current proceedings. Our clients are and have been aware of these proceedings since they commenced, however our clients have been living in the USA on a business posting for some time. Given the uncertainty as to managing their participation required in the litigation from overseas and the costs involved of doing so, our clients decided that they would not join in the proceedings." For reasons that will appear, the appeal is to be allowed in any event. The response of the solicitors for the owners of No 24 indicates that the owners have been aware of the proceedings from the outset and decided that they did not wish to participate. In these circumstances, it is not necessary to carry further the consequences of non-joinder of the owners of No 24.

Rights of carriageway

1. The argument in this Court (and it would seem in the Equity Division) tended to conflate the issues arising in relation to the proposed development on Strips 1 and 2. Mr Kladis is proposing to exercise two quite distinct sets of rights. Insofar as the proposed driveway is to be constructed over Strip 1, Mr Kladis is intending to exercise his rights as the owner of a servient tenement subject to rights of carriageway held by the owners of the dominant tenement (Nos 28, 30 and 24). Insofar as the proposed driveway is to be erected on Strip 2, Mr Kladis intends to exercise his rights as the holder of a right of carriageway over Strip 2. He is therefore the owner of a dominant tenement seeking to construct works on the servient tenement (which is also subject to other rights of carriageway).
2. Since Mr Kladis is proposing to exercise two different sets of rights, it is necessary to distinguish between them. This requires a restatement of the principles governing the construction of easements of carriageway and reference to the respective rights and duties of the owners of dominant and servient tenements.

Construction of an easement of carriageway

1. The decision of the High Court in Westfield Management Ltd v Perpetual Trustee Co Ltd [48] marked a significant change in the approach to construction of an easement registered on the title to Torrens system land. The conventional view prior to the High Court's decision was that the principles of construction applicable to easements under the general law applied to an easement registered under the Torrens system. [49] Thus, consistently with the approach to the construction of contracts, the court could take account of the circumstances known to the parties at the time the easement was created. This principle created difficulties because, as the present case illustrates, questions of construction may arise decades after the easement was created and registered on the title to the dominant and servient tenements.
2. In Westfield the High Court held that general contractual principles of construction do not apply to registered easements. The reason is that a third party inspecting the register cannot be expected, having regard to the objectives of the Torrens system and the paramountcy of the register, to ascertain facts and circumstances existing at the time the easement was created. [50] Generally speaking, therefore, the construction of a registered easement is to be determined by the language of the easement itself without reference to extrinsic evidence that might be relevant to the construction of a contract.
3. Despite the decision in Westfield, a court is not required to ignore the physical features of the land in question when construing the terms of an easement. This Court has held that for this purpose it is permissible to have regard to the physical features of both the dominant and servient tenements. [51] The justification for this view is that the court is not taking into account matters, such as the intentions of the original grantor and grantee, that are inaccessible to a third party inspecting the register. [52]
4. In Westfield, the easement considered by the Court had "affinity to" the language used in Pt 1 of Sch 8 to the Conveyancing Act, [53] but included certain additional words that were critical to the outcome of the case. Nonetheless the Court directed attention to the wording of Pt 1 of Sch 8, which is incorporated in the rights of carriageway in the present case. The Court stated that while the expression "for all purposes" in Pt 1 of Sch 8 is very broad, the purposes for which the right of carriageway is used must confer a benefit on the dominant tenement by making it a better and more convenient property, as distinct from conferring a personal advantage on the owner for the time being of the dominant tenement. [54]
5. The purposes for which the dominant owner may use a right of carriageway must also take into account the inherent nature of such a right. [55] The authorities establish that a right of carriageway connotes a right to pass between two places separated by the servient tenement. It follows that, in general, a right of way must have a terminus a quo (point of origin) as well as terminus ad quem (end point), although it is possible to have more than one terminus if the terms of easement so provide. [56] This proposition is relevant to the present case.

Obligations of the servient owner

1. As has been noted, Mr Kladis is the proprietor of Strip 1, which is subject to rights of carriageway. Mr Kladis' rights in relation to Strip 1 are limited in that the owner of the servient tenement is not entitled to obstruct the use of a right of carriageway by the owner of the dominant tenement.
2. In Powell v Langdon, [57] Roper J said that whether an obstruction of a right of way is actionable is a question of degree to be decided in the light of the circumstances of each case. However, the test is whether what has been done or is proposed to be done is a real substantial interference with the right of way. [58] In Zenere v Leate, [59] McLelland J said: "the servient owner is not entitled to do anything … which substantially interferes with the exercise by the dominant owner of such of the rights conferred on him by the grant as for the time being he wishes to exercise".
3. In Middleton v Arthur, [60] Palmer J explained the relevant principles in terms that accurately reflect the authorities: "What amounts to a substantial interference with the reasonable use of a Right of Way for the purposes of a dominant tenement is essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case. An obstruction may be small in size and short in duration but, in the light of the particular use for which the Right of Way is reasonably required, it may nevertheless be a substantial interference … On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the Right of Way is reasonably required, it may not be a substantial interference …" (Citations omitted.)
4. Powell v Langdon and Zenere v Leate provide examples of conduct that has been held to amount to a substantial interference with a right of carriageway. In Powell v Langdon, Roper J held that the conduct of the servient owner in erecting a gate and wall at the terminus of a right of carriageway, the effect of which was to narrow the roadway and to require the gate to be opened and shut by drivers entering the roadway, substantially interfered with the dominant owner's right of carriageway. In Zenere v Leate, the servient owner was held not to be entitled to carry out works which were designed to make the gradient of the roadway more uniform but which prevented the dominant owner gaining access to his car port. [61]
5. The principle applied in these cases does not mean that any interference by the servient owner with the dominant owner's enjoyment of the right of carriageway is actionable. For example, a right of carriageway does not generally confer upon the dominant owner a right to enter the carriageway from every part of the dominant tenement adjoining the carriageway. [62] The general principle is that the servient owner is entitled to fence the right of way in order to secure the servient owner's property along the boundary, provided that the dominant owner retains access through gates that permit reasonable exercise of the right of way. [63]

Rights of the dominant owner

1. It follows from what has been said that the dominant owner has a commensurate right to enjoy the easement of carriageway free from substantial interference by a servient owner. In addition, the dominant owner has such ancillary rights as are reasonably necessary for the exercise or enjoyment of the easement. [64] This is a common law principle but it has been applied to easements registered on the title to land under the Real Property Act 1900 (NSW). Thus in Hemmes Hermitage Pty Ltd v Abdurahman, [65] this Court held that the owner of a dominant tenement was entitled to go onto the servient tenement beyond the boundaries of a footway, to undertake works necessary to maintain the trafficability of the right of footway.
2. The ancillary rights of a dominant owner include, where appropriate, the right to obtain the written consent of the owner of the servient tenement to the lodgement of a development application by the dominant owner. In Sertari, this Court held that such an order can be made where the development application is for the construction of improvements on the right of way which are reasonably necessary for the proper enjoyment of the easement. [66] Mr Kladis relied on Sertari both in the Equity Division and in this Court to support his claim for relief against the appellants.
3. In Sertari, the dominant tenement comprised some 557 acres. The right of carriageway was seven metres wide and gave access to the dominant tenement from a major public road. The dominant tenement had been subdivided and the respondent acquired a two hectare lot in the sub-division. It wished to lodge a development application for the construction of 236 residential units. If approved, the development would greatly increase traffic both during the construction phase and thereafter. The trial judge ordered the servient owner to give its consent to the development application. In affirming the trial judge's decision, Handley AJA observed that the refusal of a servient owner to consent to a development application, where such consent is legally necessary, infringes the dominant owner's rights in the same way as physical obstruction prevents use of the carriageway. [67]
4. Handley AJA accepted that the servient owner would have a "lawful reason" to refuse consent if the proposed user of the right of way was excessive and therefore not authorised by the terms of the grant. [68] However, his Honour upheld the conclusion of the trial judge that: [69] "the words of the grant were clear and since it was a right for all purposes and at all times all persons connected with the proposed residential development were entitled to use the right of carriageway. In these circumstances the question of excessive user, which was essentially one of construction, could not arise." Handley AJA considered that, following the approach endorsed by the High Court in Westfield, there was no basis in the language of the easement or the physical characteristics of the land to read down the clear and unequivocal words of the grant.
5. At the conclusion of his judgment Handley AJA noted that while the servient owner and persons authorised by it were also entitled to use the carriageway, the evidence did not establish that the increased use of the dominant owner would unreasonably interfere with the reasonable use of the servient tenement by the servient owner. Accordingly the principles stated in Jelbert v Davis were not enlivened "at this stage". [70] This comment indicates that the ancillary right of the dominant owner to require the servient owner to consent to the lodgement of a development application raises two separate but perhaps related questions: (i) Is the proposed use of the carriageway by the dominant owner excessive, such that it is not authorised by the terms of the easement and is therefore unlawful? (ii) Does the proposed development by the dominant owner unreasonably interfere with the reasonable use of the servient tenement by the servient owner (or by persons entitled to a right of carriageway over the same land)?

Obligations of the dominant owner

1. As the judgment of Handley AJA in Sertari indicates, the dominant owner is not entitled to use a right of carriageway in a manner that is not authorised by the terms of the easement. It also follows from his Honour's analysis that the dominant owner is not entitled to use the right of carriageway in a manner that unreasonably interferes with the use by the servient owner of the carriageway.
2. The reasoning in the older authorities that are usually cited for these propositions was influenced by the courts' assessment of what would have been in contemplation by the parties to the transaction creating the easement. Thus in Todrick v Western National Omnibus Co, [71] Farwell J said that: [72] "In considering whether a particular use of a right of this kind is a proper use or not, I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made … a grant of this kind must be construed as a grant for all purposes within the reasonable contemplation of the parties at the time of the grant."
3. Farwell J's statement of principle was adopted by the Court of Appeal in Jelbert v Davis, [73] a case that involved an easement of way to be used ín common with all persons having "the like right". Danckwerts LJ observed that: [74] "A use of the right of way which is so excessive that it renders the rights of such other persons practically impossible … is not justified. The difficulty is to fix the limit in respect of such use. The test must be whether the interference is so substantial as to interfere with the rights of other persons in an unreasonable manner."
4. The reasoning in the older authorities, insofar as it is based on matters in the contemplation of the parties to the creation of an easement, departs from the approach taken in Westfield to the construction of easements. But this does not mean that the principles stated in cases such as Todrick v Western National Omnibus Co and Jelbert v Davis no longer apply to easements registered under the Torrens system. The observations of this Court in Hare v Van Brugge suggest that the principles continue to apply.
5. In that case, it was argued that a right of way entitled the dominant owner to reasonable use of the carriageway and that if there were two ways in which the carriageway could be used, the dominant owner was bound to use the less intrusive way. In rejecting the argument, Barrett JA: [75] "accepted that a concept of reasonable use applies. But it applies to both parties. Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights. The necessary restraint does not, however, require one party to desist altogether from exercising some part of the totality of the party's rights so as to leave the field entirely clear for the other party. For example, if a right of footway exists over land traversed by a shallow stream and the owner of the servient tenement (or a predecessor) has constructed a bridge, the person entitled to the benefit of the easement may walk across the bridge; and this is so even though it is physically possible to wade through the shallow water."
6. I do not understand this passage as intended to detract from the authorities referred to earlier establishing the test for determining whether the servient owner has unlawfully interfered with a right of carriageway enjoyed by the dominant owner. The passage confirms, however, that the decision in Westfield does not affect the principle that the owner of a dominant tenement cannot use a right of carriageway in a manner that interferes with the rights of the servient owner.
7. It was common ground in the present case that a dominant owner entitled to a right of carriageway over a particular strip of land on the servient tenement cannot interfere unreasonably with a right of carriageway enjoyed by another dominant owner over the same strip of land. As Lord Denning MR said in Jelbert v Davis a right of carriageway: [76] "must not be used so as to interfere unreasonably with the use by [other persons entitled to rights in common], that is, with their use of it as they do now, or as they may do lawfully in the future. The only way in which the rights of all can be reconciled is by holding that none of them must use the way excessively."

Strip 1

1. In applying these principles to the present case, it is convenient to commence with the development application insofar as it relates to Strip 1. Mr Kladis is the registered proprietor of Strip 1 which is subject to rights of carriageway in favour of Nos 28, 30 and 24. As the servient owner, he is not entitled to undertake works on Strip 1 that substantially interfere with the rights of carriageway enjoyed by each of the dominant owners.
2. Contrary to what seems to have been assumed by the parties in argument, the rights appurtenant to each of the dominant tenements are not identical. SP 30459, as the proprietor of No 30 (or part thereof) is entitled to use Strip 1 to pass and repass at all times and for all purposes to and from No 30 or any part thereof. Having regard to the location of No 30 in relation to Musgrave Street, the commencement of the right of carriageway (the terminus a quo) is at the junction of Strip 1 and Musgrave Street. The right of carriageway over Strip 1 ends at a point no further from Musgrave Street than at the western boundary of No 30 (the terminus ad quem).
3. The existing garage on No 30 is located at the south-eastern corner of the lot, no doubt because of the steep slope of the land to the west. Nonetheless No 30's right of carriageway over Strip 1 allows access to No 30 "or any … part thereof". As a matter of construction, therefore, the right of carriageway entitles the owner of No 30 to use the carriageway for pedestrians or vehicular access to the western section of No 30. Strip 1 may not be wide enough to allow a motor vehicle to travel along its length to the western side of No 30 (assuming it is feasible to construct a driveway providing such access). But as a matter of legal entitlement, the owner of No 30 can use the right of carriageway over Strip 1 in combination with such rights as No 30 has over Strip 2 to gain not only pedestrian but vehicular access to and from the western section of No 30.
4. Ms Lowe, as the proprietor of No 28 is in a different position. She is entitled to use Strip 1 to pass and repass at all times and for all purposes to and from No 28 or any part thereof. This right of carriageway starts at the junction of Strip 1 and Musgrave Street but extends to the western boundary of No 28. Of course, No 28 has access to a public street by a route other than Strip 1, but that does not detract from the rights Ms Lowe enjoys pursuant to her right of carriageway over Strip 1. She has a right to unimpeded pedestrian access from No 28 along Strip 1 to Musgrave Street. Under the current conditions, pedestrian access to Musgrave Street from No 28 requires use of the steep pathway from No 28 (which deviates from Strip 1) until the pebblecrete driveway is reached and then use of the pebblecrete driveway to Musgrave Street.
5. No 24's right of carriageway over Strip 1 clearly commences at the junction of Strip 1 and Musgrave Street and would extend to the western boundary of No 24. But the location of that boundary at the intersection with Strip 1 was not subject of evidence. Thus the precise linear extent of No 24's right of carriageway over Strip 1 is not clear.
6. The primary Judge found that the proposed works would result in "not insubstantial affectations" of No 28's rights of carriageway over Strip 1 even if a gate was installed to allow access from one point on No 28 to the elevated driveway. [77] Mr Kladis does not challenge this finding. In any event, it is difficult to see how his Honour could have reached any other conclusion.
7. It appears from the revised plan reproduced above [78] that the construction of the elevated driveway would effectively deny the occupants of No 28 access to a substantial segment of Strip 1 at ground level. This is so regardless of the point at which the occupants of No 28 might seek to enter Strip 1 at ground level. As a pedestrian walked to the east under the elevated driveway, he or she would be blocked as the underside of the driveway came nearer to ground level. Thus pedestrian access along the route between No 28 and Musgrave Street via Strip 1 at ground level would be impossible. The installation of a gate would allow the occupants of No 28 to walk to and from Musgrave Street via the elevated driveway. But Strip 1 at ground level, over which No 28's right of carriageway exists, is to be effectively obliterated between the western boundary of No 28 and the commencement of the pebblecrete driveway. In effect, under the proposed development No 28 has had one set of rights extinguished and replaced by another set of rights.
8. The primary Judge found that the proposed works would not be so substantial an interference with No 28's rights as to constitute an unreasonable interference. The basis of this finding was not that the interference was insubstantial but that otherwise there would be no realistic possibility of constructing a driveway to No 26. One difficulty with the finding is that there does not appear to have been any evidence that the proposed elevated driveway was the only practicable means of securing vehicular access to No 26. It is obvious that the topography presents formidable challenges but this Court was not taken to any consideration in the evidence of possible alternatives.
9. More fundamentally, the test to be applied in determining whether the servient owner proposes to obstruct a right of carriageway does not involve balancing the desires of the owner of the servient tenement to gain better access to his or her land and the rights of the dominant owner. The relevant question is whether the servient owner proposes to do something on the servient tenement that substantially interferes with the exercise by the dominant owner of such of the rights conferred by the grant as the dominant owner wishes to exercise. [79] Mr Kladis' proposal necessarily involves a substantial interference with the rights of the owner of No 28.
10. The position with respect to No 30 is not as clear cut since the revised plans for the elevated driveway would not disturb access to and from the garage on No 30 (subject to the issue concerning the grading of the area near the proposed point at which the elevated driveway is to commence). Nonetheless the proposed works would prevent the occupiers of No 30 gaining access along Strip 1 to the western (lower) part of No 30 via No 30's right of carriageway over Strip 2. Since the right of a carriageway allows the occupiers of No 30 access to and from any part of the dominant tenement the effective destruction of Strip 1 at ground level from just beyond the termination of the pebblecrete driveway constitutes a substantial interference with No 30's right of carriageway over Strip 1.
11. Mr Kladis proposed to ameliorate the impact of the proposed driveway on No 30 by including in the plans provision for a staircase to be erected on No 30 at Mr Kladis' expense. But this would require works to be constructed on land over which Mr Kladis has no rights. Whether the proposed driveway substantially interferes with the dominant owner's right of carriageway must be determined by reference to the works to be undertaken on land over which the servient owner (Mr Kladis) has rights. It is not to the point that if the dominant owner agrees to works being constructed on his or her land, over which the servient owner has no rights, the impact might be ameliorated. As the primary Judge observed, [80] the issue was to be determined in accordance with the parties' strict proprietary rights.
12. These conclusions are sufficient to warrant allowing the appeal and setting aside the orders made by the primary Judge.

Strip 2

1. The primary Judge found that the works proposed by Mr Kladis on Strip 2 were not so substantial as to interfere unreasonably with the rights of Ms Lowe, the proprietor of No 28 (the servient tenement). Although it is not strictly necessary to address this finding I shall do so.
2. Mr Grieve contended that the primary Judge's decision was discretionary because his Honour granted injunctive relief. However the critical question on this aspect of the case is whether the primary Judge's finding was in error. The finding did not involve the exercise of discretion that attracts the principles of appellate review stated in House v King. Rather it is to be reviewed in accordance with the principles stated in Warren v Coombes. [81] Due respect is to be paid to the conclusions reached by the primary Judge but the appellate court must make its own judgment as to the proper inferences to be drawn from the undisputed facts.
3. The construction of the elevated roadway would effectively deny No 28 the use of Strip 2. The proposed access gate would give the occupiers of No 28 direct access to the elevated driveway at one point. But so far as the plans reveal, the occupiers would not be able to gain access to Strip 2 - its own land - at ground level. Even if the occupiers of No 28 could gain access to Strip 2, they would be unable to use it to walk towards Musgrave Street. Nor would they be able to use that portion of Strip 2 between Nos 30 and 26 to travel between the upper and lower parts of the house block on No 28.
4. Moreover, construction of the elevated driveway would deny No 28 the possibility of using Strip 2 (coupled with No 28's right of carriageway over Strip 1) to gain vehicular access from Musgrave Street to No 28. It is true that at present No 28 does not require that access. However that is apparently a consequence of the original lot being consolidated with another lot to the north. If there were to be a restoration of original boundaries presumably No 28 would require vehicular access along Strip 2.
5. In effect the proposed elevated driveway would deny the owner of Strip 2 the right to use that land even as a pathway.
6. The primary Judge considered that the decisive factor in determining whether the proposed works interfered unreasonably with No 28's rights was whether the elevated driveway was necessary if No 26 was to have vehicular access to and from Musgrave Street. In my view there are two difficulties with this analysis.
7. The first is that there is no evidence and no finding that the works proposed in the development application constitute the least intrusive means of providing vehicular access to No 26. Having regard to the obvious interference with the rights of the owner of Strip 2, evidence of this kind might have been expected.
8. Secondly, I do not accept that the question of unreasonable interference is to be determined simply on the basis that the proposed development is necessary to allow the dominant owner to exploit fully his or her rights of carriageway, regardless of the extent to which the development will interfere with the rights of the servient owner. The emphasis in the authorities is on the extent to which the proposed works by the dominant owner interfere with the rights of the servient owner. The impact on the dominant owner if the works cannot proceed is a relevant consideration on the question of reasonableness, but it cannot be decisive.
9. In this case the interference with the rights of the owner of No 28 (as the servient owner) could hardly be any greater. If the works cannot proceed there will be no vehicular access to No 26 from Musgrave Street. However, No 26 will not be landlocked as the right of carriageway can continue to be used for pedestrian access (although arrangements may have to be made at some stage to substitute stairs on Strips 1 and 2 in place of the stairs on Strip A that currently form part of the path from Musgrave Street to No 26). This is the position that has prevailed by reason of the local topography ever since No 26 was created by subdivision in 1940.

Scope of the argument

1. I recognise that the reasoning in relation to Strip 1 departs slightly from the arguments advanced on behalf of the appellants. Neither party disputed the primary Judge's statement of principles but I have considered it necessary to distinguish between Mr Kladis' rights as the proprietor of Strip 1 and his rights of carriageway over Strip 2.
2. The Amended Notice of Appeal contains grounds that are framed sufficiently widely to embrace the analysis I have adopted in relation to the interference with the rights enjoyed by the appellants over Strip 1. Perhaps more importantly, the appellant's submissions expressly raised the objection that the proposed elevated driveway would deny the proprietors and occupiers of Nos 28 and 30 access to Strip 1 and thus obstruct their rights of carriageway. Mr Grieve had an opportunity to answer these contentions. In these circumstances there is no injustice in dealing with the interference with the appellant's rights over Strip 1 as I have.

Conclusion

1. For these reasons I consider that the primary Judge erred in finding that the proposed elevated driveway would not interfere so substantially with the rights of the owner of No 28 as to be unreasonable. I do not think it is necessary to consider separately other ways in which the proposed works would interfere with the rights of the owner of No 28. Nor is it necessary to address separately the extent to which the proposal would interfere with the rights of the owner of No 30.

Orders

1. The following orders should be made:
2. Appeal allowed.
3. The orders made by Beech-Jones J on 23 June 2017 be set aside.
4. The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside.
5. In lieu of the orders referred to in Orders 2 and 3 above make the following orders: (1) Dismiss the proceedings. (2) The plaintiff pay the defendants' costs of the proceedings.
6. The respondent pay the appellants' costs of the appeal.
7. The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW).
8. In view of the respondent's irrevocable undertaking to the Court it is not necessary to make further orders with respect to the DA or the L & E Court proceedings.

Endnotes

1. The primary Judge delivered four judgments: Kladis v Lowe [2016] NSWSC 1834 (Primary Judgment); Kladis v Lowe (No 2) [2017] NSWSC 249 (Judgment 2); Kladis v Lowe (No 3) [2017] NSWSC 815 (Judgment 3); and Kladis v Lowe (No 4) [2017] NSWSC 1259 (Judgment 4). The orders of which the appellants complain were made on 23 June 2017, in consequence of Judgment 3. Judgment 4 deals with costs.
2. Primary Judgment at [24]. The primary Judge delivered four judgments in all. As will be seen, the respondent's proposal has been modified but not so as to affect the general description given by the primary Judge.
3. Primary Judgment at [25].
4. His Honour said in the Primary Judgment that Strip E is part of No 34 but corrected the error in Judgment 2 at [6].
5. See at [68]-[83] below.
6. Primary Judgment at [22].
7. Primary Judgment at [26].
8. Primary Judgment at [27].
9. Primary Judgment at [28]-[29].
10. Primary Judgment at [30].
11. Primary Judgment at [49].
12. Primary Judgment at [47].
13. Primary Judgment at [51]-[53]
14. Primary Judgment at [53] reproduced at [36] above.
15. Primary Judgment at [64].
16. Primary Judgment at [66].
17. Primary Judgment at [54]. The submissions cited Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200 (Sertari) at [11] (Handley AJA, Tobias and McColl JJA agreeing).
18. Primary Judgment at [57]-[58].
19. Primary Judgment at [59]-[60].
20. Primary Judgment at [62]-[63].
21. Judgment 2 at [3].
22. Judgment 2 at [24].
23. Judgment 2 at [25]-[26].
24. Judgment 2 at [27]-[29].
25. Judgment 2 at [30]-[31].
26. Judgment 2 at [32].
27. Judgment 2 at [36].
28. Judgment 2 at [37].
29. Judgment 2 at [38].
30. Judgment 2 at [43].
31. Judgment 2 at [45].
32. Judgment 2 at [46].
33. Judgment 3 at [7]-[10].
34. Judgment 3 at [11]-[12].
35. Judgment 3 at [16]-[17].
36. Judgment 3 at [18].
37. Judgment 3 at [27].
38. See at [20] above.
39. (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (Dixon, Evatt and McTiernan JJ).
40. (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]-[54], [57] (Meagher JA and Tobias AJA agreeing). See also Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210 at [101]-[103] per curiam.
41. Ross v Lane Cove Council at [61].
42. Primary Judgment at [29].
43. Primary Judgment at [58].
44. Primary Judgment at [59]-[60].
45. Judgment 2 at [31].
46. Judgment 2 at [31]-[32].
47. Judgment 3 at [16].
48. (2007) 233 CLR 528; [2007] HCA 45 (Westfield).
49. Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24 at 639-640 (McHugh J).
50. Westfield at [39] per curiam.
51. Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [16]-[17] (Barrett JA, Macfarlan JA and Tobias AJA agreeing), following Sertari at [15] (Handley AJA, McColl and Tobias JJA agreeing).
52. Hare v Van Brugge at [18].
53. Reproduced at [30] above.
54. Westfield at [21].
55. See Westfield at [21] citing Thorpe v Brumfitt (1873) LR 8 Ch App 650 at 657-658 (Mellish LJ).
56. Zenere v Leate (1980) 1 BPR 97029 at 8 (McLelland J).
57. (1944) 45 SR (NSW) 136.
58. Powell v Langdon at 139 citing Pettey v Parsons [1914] 2 Ch 653 at 662. See also Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; [1973] HCA 274, at 280-281 (McTiernan J)
59. Zenere v Leate at 6.
60. [2002] NSWSC 627 at [48]. See also Philip v JPM Developments Pty Ltd [2015] NSWSC 145; (2015) 17 BPR 33887 at [15]-[24] (Sackar J).
61. See also Panfili v Lawless [2010] NSWSC 79; (2010) 14 BPR 27283.
62. Pettey v Parsons at 663 (Lord Cozens-Hardy MR), 667 (Swinfen Eady LJ), 669 (Pickford LJ).
63. Trewin v Felton [2007] NSWSC 851 at [19] ff (Brereton J and authorities cited there); Boglari v Steiner School and Kindergarten (2007) 20 VR 1; [2007] VSCA 58 at [26] (Neave JA, Chernov JA and Habersberger AJA agreeing).
64. 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 521-522 (Hodgson CJ in Eq).
65. (1991) 22 NSWLR 343.
66. Sertari at [9] (Handley AJA, Tobias and McColl JJA agreeing).
67. Sertari at [10]
68. Sertari at [11].
69. Sertari at [13].
70. Sertari at [23]. As to Jelbert v Davis [1968] 1 WLR 589, see at [103] below.
71. [1934] Ch 190, aff'd [1934] Ch 561.
72. [1934] Ch 190 at 206-207.
73. [1968] 1 WLR 589.
74. [1968] 1 WLR 589 at 597.
75. Hare v Van Brugge at [25].
76. Jelbert v Davis at 595.
77. Primary Judgment at [57], [59].
78. See at [55] above.
79. Cf Philip v JPM Developments Pty Ltd at [164].
80. Judgment 2 at [3].
81. (1979) 142 CLR 531; [1979] HCA 9 at 551 (Gibbs ACJ, Jacobs and Murphy JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [25] (Allsop J, Drummond and Mansfield JJ agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2018