He had a workbench with a table saw in the garage, and carried out some carpentry work there. He carries out business under a business name, which since November 1997 has had its registered address at Lot 1.
86 Over the years he has employed from six to ten employees at any one time, and many of them have used the carpark of the Club as a means of access to Lot 1 on a daily basis, both in the morning and afternoon.
87 He has purchased a strata title factory, the purchase of which settled in May 2002. Since Christmas of 2003 he has been moving items connected with his business from the garage, and other places on his father's property, into that factory. When that move is complete he intends to still use Lot 1 for business purposes in a limited way, for storage of material which cannot be conveniently stored at the new factory. This is because his factory is "not big enough to store stone, bricks and stuff you saw the other day." He envisages using "large trucks" from time to time to deliver or collect that stored material, and is concerned that the Pittwater Road access to Lot 1 would be quite difficult for large trucks. He plans to move his office from Lot 1 to the new factory.
88 Mr David Mestrov is a friend of Mr Maher and James Maher. He is also a builder who has been getting about 80% of his work from Mr James Maher since the mid-1990s. He acts as a sub-contractor. For two to three days per week over that time he has carried out his work in the garage at Lot 1. On some occasions Mr Mestrov has had goods delivered to him at Lot 1, for purposes connected with the 20% of his business which is not for Mr James Maher.
89 There has been some use of the Site by vehicles which are of a type used for commercial purposes, but where that use has not been connected with any business being conducted on Lot 1. Ben Maher resumed living in the house at Lot 1 in early 2002. He is a carpenter, and used the Site as a means of driving his work utility or station wagon to and from work. Mr Hugh Monnock is a builder, who is friendly with the Maher family, and since around 1975 has visited the house about once a week for purely social purposes. Since around 1987, when he obtained his driver's licence, he has often been driving his own truck or utility. Counsel for the Club accepts that the Site is also likely to have been used by vehicles of tradesmen, like plumbers, doing work of the type which any house needs to have done on it from time to time.
90 The prescriptive easement which began accruing in 1974 was one for all purposes according to the ordinary and reasonable use to which Lot 1 might be applied at the time of the supposed grant, and which is of the same nature as that to which Lot 1 was put while the easement accrued. As the time of the supposed grant pre-dates the period of the user, it is the ordinary and reasonable use to which the land might be applied prior to 12 March 1974 which matters. The usage of Lot 1 for the purpose of James Maher's business involves a usage which is different in nature, not merely in extent, to that which occurred while the easement was accruing, which was a usage for residential purposes. I would accept that it might sometimes be an ordinary incident of using land for residential purposes that business is conducted on that land, in a minor way, and by activities which are the type of activities which it would not be unusual for a person to conduct in his or her own home. However, the activities of James Maher on Lot 1 go beyond that. Before there could be a prescriptive easement which justified the use of the Site for the purposes of that business, it would be necessary for a further prescriptive period of twenty years to have run since the business began, in 1990. That has not happened. Thus, the use of the Site for purposes connected with that business is (especially now that James Maher no longer lives at Lot 1) beyond the scope of the easement.
91 The ordinary and reasonable use of Lot 1 for residential purposes does not require the easement to be restricted, in the manner the Club claims, so that it allows the passage only of non-industrial and non-commercial vehicles. Even without proof of specific use of the Site by industrial or commercial vehicles, it is an ordinary part of use of land for residential purposes that it will be visited by such vehicles. Specific proof of use of the right of way by such vehicles runs only from 1990 (and so is not for a full twenty year period), but that does not matter, because being visited by such vehicles is part of the nature of land being used for residential purposes.
Illegality and Commercial Use
92 The Club submits that the use of Lot 1 for commercial purposes has been illegal under the provisions of the Pittwater Local Environmental Plan 1993 ("Pittwater LEP 1993"), and for that reason could not give rise to any prescriptive right to an easement aimed at continuing the illegal use.
93 The Pittwater LEP 1993 came into effect on 4 February 1994. Planning in the area had previously been controlled by the Warringah Local Environmental Plan 1985, the terms of which are not in evidence, and were not relied on by the Club.
94 Under the Pittwater LEP 1993, Lot 1 lies within a zoning 6(b) (Private Recreation "B"). Clause 9 of the Plan has the effect that within that zone no development may be carried out without development consent. Categories of development which may be carried out only with development consent include dwelling houses and "commercial premises or industries required in connection with a purpose permissible under this heading". Clause 6 of the Pittwater LEP incorporates within it (with some exceptions and modifications) the Environmental Planning and Assessment Model Provisions 1980. Clause 35 of those Model Provisions, as so amended, says:
"Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit -
…
(c) home occupations."
95 Clause 5 of the Pittwater LEP says:
"home occupation" means an occupation carried on in a dwelling by the permanent residents of the dwelling and which does not involve -
(a) the registration of the building under the Factories, Shops and Industries 1962 or the licensing of the premises under the Dangerous Goods Act 1975;
(b) the employment of persons other than those residents;
(c) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil or otherwise;
(d) the display of goods, whether in a window or otherwise; or
(e) the exhibition of any notice, advertisement or sign (other than a notice, advertisement or sign exhibited on that dwelling to indicate the name and occupation of the resident)."
96 The definition of "development" in s.4, s.76A, and s.125 Environmental Planning and Assessment Act 1979 combine to make use of land without development consent a criminal offence.
97 Sections 106 and 107 Environmental Planning and Assessment Act 1979 permit land to continue to be used for a purpose which was lawful immediately before the coming into force of an environmental planning instrument. Pittwater LEP 1983 is an environmental planning instrument. Hence whatever uses of Lot 1 were lawful before it came into effect, can be continued.
98 During the time that James Maher ran his business from Lot 1 until the construction of the double garage, planning controls were, until 4 February 1994, under an instrument other than the Pittwater LEP 1993. There is no evidence of whether he obtained any approval under the Warringah Local Environmental Plan 1985 to commence his building activities on the Site, or, if he did, what the terms of that approval were. James Maher carried out no business activities on Lot 1 during 1994 and 1995, because he was overseas. The precise date of construction of the double garage in 1996 does not emerge from the evidence. Nor is there evidence of the terms of any development consent which was granted for the garage. Against that evidentiary background, the Club has not satisfied me that any use which James has been making of the garage, or Lot 1, is illegal. In so deciding, I take into account that s.140(2) Evidence Act 1995 requires me to take into account, in deciding whether I am satisfied of any matter, the gravity of the matter alleged.
99 I was referred to various authorities which bear upon whether prescriptive easements can arise when there is an illegality: Rochdale Canal Co v Radcliffe (1852) 18 QB 287; 118 ER 108; Neaverson v Peterborough Rural District Council [1902] 1 Ch 557 at 573, 577, 579; Hulley v Silversprings Bleaching and Dyeing Company Limited [1922] 2 Ch 268 at 281-2; Oakley and Another v Boston [1976] 1 QB 270 at 280-1, 284-5; Cargill v Gotts [1981] 1 WLR 441 at 446; Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 at 20. See also Bakewell Management Ltd v Brandwood and Ors [2004] UKHL 14. In the circumstances I do not need to consider those cases further.
Two Way Use
100 Ms June Brooks has been an employee of Mr Maher for the whole time he has lived at Lot 1. She has used the Site on a regular basis, throughout that time, for picking up and dropping off work associated items, at a time when she was helping Mr Maher with housekeeping in 1983, and in connection with staff Christmas parties and other social gatherings. She gives evidence, which I accept, that:
"Now and then I was confronted with a vehicle travelling in the opposite direction to me between the Maher property and Darley Street. I am unable to recall whether the drivers of such vehicles were visiting the Maher property or were club members but I do recall that when this occurred there was enough room for both vehicles to pass provided the drivers were careful."
101 Mr David Glading was a regular visitor at the Maher house for about 10 years from 1974. He gives evidence, which I accept:
"On occasions when the children met after school at the Maher house on my observations parents were coming and going at various times to collect their children. Often this led to more than one vehicle at a time attempting to enter or exit the "break in the stone wall" and when this happened common courtesy would prevail to the extent that one vehicle would pull to the side and let the other vehicle pass."
102 Mr Raymond Grellis is another person who regularly visited the Maher residence over the period 1974 to 1985 for social functions. He gives evidence, which I accept, that:
"When attending these occasions I also observed other attendees at such occasions entering and leaving the property via Darley Street. On some occasions whilst so entering the Maher's property or so leaving the Maher's property I encountered a vehicle going to or coming from the Maher's property in the opposite direction to me. On some of these occasions I recall acknowledging the other vehicle's occupants. I even recall on occasions stopping my vehicle and speaking to the occupants of the vehicle travelling in the opposite direction. Two of these people spoken to by me on such instances are Robin Owens and Peter Atkins who at the time were travelling with their families."
103 Mr Maher gives evidence, which I accept that:
"… on very many occasions when I have been entering my property from Darley Street I have observed a vehicle leaving my property and it has been necessary for me to wait briefly and let such vehicle pass before entering my property and vehicles entering my property also extended the same courtesy to me when I was leaving my property and they were entering my property. I have also observed other family members and access users extending the same courtesy to each other. The point at which it was or is necessary to halt and wait varies depending upon the number of cars parked adjacent to the stone wall boundary fence of my property in the area now defined as "Directors/Executive Parking". … When vehicles pass one another they can do so at all times from the Darley Street entrance to a point about 12 metres from the stone wall. Between this lastmentioned point and the entrance to my property it is sometimes not possible to pass and re-pass depending upon whether or not cars are parked in the "Directors/Executive Carpark" and in the event that there are no cars parked in such carpark, cars can pass and re-pass up to a point much closer to the entrance to my property."
104 Mr Mestrov has been a friend of Mr James Maher since they were both school boys. Between 1986 and 1994 he visited the house at least four times per month, and since 1994 he has visited the house most days. He gives evidence, which I accept, that before the Club carpark was sealed, he observed vehicles leaving the gap in the sandstone wall travelling towards Darley Street, and passing vehicles travelling from Darley Street to that gap. He gives evidence, which I accept, that:
"Following the sealing of the parking area and surrounds … on my observations the usage of the access way has increased and the incidence of vehicles passing one another going to or coming from the Maher house to and from Darley Street has increased. When ever I am passing a vehicle travelling in the opposite direction when I am entering or leaving the Maher property and the driver of such vehicle is known to me we normally greet each other by waving or stopping and having a chat."
105 Mr Monnock is another longstanding friend of Mr James Maher. He has been visiting the house from around 1975. He has continually visited the house around once a week. Since 1987 he has driven there. He gives evidence, which I accept:
"Both before and after the car park area and surrounds were sealed there were instances when I would be going towards the Maher house or towards Darley Street and I would observe a vehicle travelling in the opposite direction driven by a person I know, specifically the Plaintiff or James or Jill (Mrs Maher, and in her case only prior to the resealing) in these instances depending on the point at which the two vehicles were approaching one another they would either pass each other or if near the "gap in the sandstone wall" one vehicle would pull over and let the other one pass.
I recall on occasions when James Maher or Reg Maher were travelling in the opposite direction and we actually stopped and spoke with each other."
106 Of the 26 witnesses called by the Club (24 members of long standing, 14 of whom became members prior to 1967, plus Mr Brown and Mr Spinks) all except four gave evidence in a common form that:
"I have not, at any time that I have been at the Club, seen a motor vehicle driving from Darley Street West to the gap in the sandstone wall on the boundary at the same time as a vehicle is looking to or has passed from the gap in the sandstone wall boundary fence and driven in the direction of Darley Street West. In other words, I have not seen vehicles passing in opposite directions using the sealed car park area as an access from Darley Street West to 1852A Pittwater Road, Bayview."