Marian Walker v Brian Bridgewood & Ors

Supreme Court of NSW|2006-03-29|Before: Gzell J, Mr P

Introduction 1 The plaintiff, Marian Walker, lives at 10 Pashley Street, Balmain, New South Wales. Her land is burdened by a registered right of way that benefits the land of the first defendant, Brian John Bridgewood, at 70 Beattie Street, Balmain. It also benefits the land of the third defendant, Elaine Kristen Pfeil, at 8 Pashley Street. 2 Ms Walker's land is also burdened by a right of way benefiting the land of the second defendant, Celia Jasmine Esplin, at 68 Beattie Street. I am no longer directly concerned with it, however, because the proceedings between Ms Walker and Ms Esplin have been settled. 3 Ms Walker's land runs more or less in a northerly direction from Pashley Street. Mrs Pfeil is her neighbour to the west. Portion of the northern boundary of Ms Walker's land, apart from the northern projection of the right of way into 68 Beattie Street, abuts the southern boundary of Mr Bridgewood's land. Ms Esplin is the neighbour of Mr Bridgewood to the east. 4 The right of way runs up the western boundary of Ms Walker's land from Pashley Street and turns at a right angle to run along the northern boundary of her land in an easterly direction. The right of way then turns at a right angle and proceeds in a northerly direction along the western boundary of Ms Esplin's land for some distance. 5 Ms Walker seeks an order extinguishing the right of way. The history of the right of way 6 All the lands in question were originally owned by the Australian Mutual Provident Society. In 1899 it transferred what became 68 Beattie Street to Mary Ann Wilkinson together with a right of way over its land in terms: "With full and free right and liberty for the said Mary Ann Wilkinson and others the owners and occupiers of the said piece of land and the messuages thereon erected and her their or his tenants servants and others authorised by her them or him at all times hereafter and for all purposes connected with the use and occupation of the said land messuages and hereditaments with or without horses carts carriages or wagons laden or unladen to go pass and repass along over and upon the right of way delineated in the said plan and thereon tinted blue." 7 The right of way has not been altered in configuration since its inception. The plan showed a brick stable at the rear of 68 Beattie Street and an iron and weatherboard stable at the rear of what was to become 70 Beattie Street. 8 In 1901 the AMP Society transferred what became 70 Beattie Street and 8 Pashley Street to Lancelot Louis Earl: "together with a right of way over the right of way shown on the said plan and thereon coloured brown". That right of way was identical to the earlier right of way. The memorandum of transfer did not contain any description of the right of way but it was common ground that its purposes were similar to those stated in the transfer to Ms Wilkinson. 9 The plan attached to 1901 transfer showed the stables at the rears of 68 and 70 Beattie Street and a brick and iron stable at the front of 8 Pashley Street. It may be assumed that the original purpose of the right of way benefiting 8 Pashley Street and 70 Beattie Street was to gain access between the stables on those lands, they then being in common ownership. 10 The right of way is 2.75 metres wide in its northerly direction from Pashley Street, 4.5 metres wide along the rear of 10 Pashley Street, and irregularly shaped in 68 Beattie Street where it skirted the stables and a brick washhouse. Between the right of way and the residence on 10 Pashley Street is a reserve for drainage three feet wide running from Pashley Street up to the right angle turn in the right of way. The entrance to the residence is on the western side by a sliding door off the drainage reserve. 11 The eastern boundary of 10 Pashley Street is irregularly shaped. From Pashley Street it runs in line with the eastern boundary of 70 Beattie Street until it meets the right of way. It then takes a right hand turn to the right until the right of way comes to its eastern termination when it takes a left hand turn to the north until it meets the southern boundary of 68 Beattie Street. From there it forms the irregular shape in 68 Beattie Street to which reference has already been made. The otherwise rectangular shape of 12 Pashley Street thus has an intrusion in its northwest corner. 12 Ms Walker acquired 10 Pashley Street in 1984. Mrs Pfeil purchased 8 Pashley Street in 1986 and Mr Bridgewood and his then wife purchased 70 Beattie Street also in 1986. The condition of the right of way 13 There is a rise of almost 10 metres from Pashley Street to the top of the fence at the rear of 10 Pashley Street. The right of way more or less follows the floor line of the residence on 10 Pashley Street but a short distance to the rear of the residence there is a retaining wall of approximately two metres and the land slopes up from the top of that wall a further metre to the bottom of a retaining wall at the rear of the allotment which, together with the fence on top of it, rises some five metres to the relatively level land at the rear of 70 Beattie Street. 14 Portion of the right of way along the relatively level area adjoining the house on 10 Pashley Street is paved. There was a stone ramp on the right of way that rose from approximately the rear of the residence towards the rear of the allotment. While the terrain along the rear of the allotment slopes to the south, it is relatively level. There are no signs of a formed road and no signs of ruts from the use of horse drawn carts carriages or wagons. 15 At various times the right of way has been overgrown and blocked by trees. A large eucalyptus tree some 30 feet high was blown over in the storm in the 1990s and removed. A mango tree that grew from a seed presently stands on the right of way. Ms Walker planted a selection of hedging plants on the right way near the fence dividing her property from 8 Pashley Street. At some stage the ramp was partially demolished and Mr Bridgewood took steps to partially restore it. Sometime before 1983, when David John Vowles purchased 12 Pashley Street, a small metal garden shed was erected on the right of way behind his allotment. It remains in place.

Mr Bridgewood's use of the right of way 16 At a time when the fence on the right of way separating 10 Pashley Street and 70 Beattie Street had many missing palings, Mr Bridgewood said he placed a metal ladder down onto the right of way from the top of the retaining wall in 10 Pashley Street and he passed through the fence and climbed down the ladder and was able to trample undergrowth along the right of way to gain access to Pashley Street in 1988 in the course of his renovation of a property in nearby Sutton Street. 17 In 1989, Mr Bridgewood moved out of 70 Beattie Street and went to live at Sutton Street. He leased 70 Beattie Street to a computer software supplier. In 1991, he sublet a room at 70 Beattie Street to conduct a new business. He ultimately took over the top two floors of 70 Beattie Street until early 1993. He said in this period he used the right of way two to three times a week to walk between his home in Sutton Street and the office at 70 Beattie Street. Sometimes he said he used the right of way during the day to go home for lunch. 18 Mr Bridgewood's evidence was attacked on the basis that he had a conversation with Ms Walker in 1989 concerning the proposed use of the right of way in which he said: "Well I am going to use it". It was suggested that these words meant he had not used the right of way prior to that time, and his evidence of use in 1988 should be doubted. It was submitted that it was unlikely that he would have climbed through a hole in the fence and descended an iron ladder dressed in a business suit. His evidence that the right of way was overgrown with grasses that he trampled did not accord with the evidence of Ms Walker that prior to Mr Bridgewood's work on the ramp, the area was impassable. It was submitted that the appropriate inference to be drawn was that Mr Bridgewood constructed rather than reconstructed the ramp. 19 I do not accept these challenges. To interpret what was said in a conversation in 1989 as indicating no past use of the right of way, is putting too fine an interpretation on the language used. It would appear that there was a ramp in existence prior to Mr Bridgewood's work on it in 1990. Some of the stones from the ramp appear to have been used to edge the garden strip along the boundary with 8 Pashley Street. A ramp would have been a logical structure for horses to mount the incline to the relatively even area of the right of way along the rear of 10 Pashley Street. And the photographs reveal so many missing palings in the fence, that Mr Bridgewood could have passed through it and down the ladder without damage to his clothing. 20 Mr Bridgewood also said that he used the right of way to converse with Ms Walker over the fence on a number of occasions. Mrs Pfeil's use of the right of way 21 Mrs Pfeil said that her husband used the right of way to repair the dividing fence and to load branches pruned from trees on the right of way into his car. They had also parked on the right of way to load and unload shopping. The observed use of the right of way 22 Thelma O'Hara, who was 82 years of age at the time of trial, has lived at 3 Pashley Street since she was seven years old. 3 Pashley Street is directly opposite 10 Pashley Street. As a child she said the right of way was just a dirt track with trees and rocks. She never saw it used by horse or cart. 23 Occasionally as a child she climbed the rocks on the right of way as a short cut to get to 68 or 70 Beattie Street. 24 Over the past 60 years, Ms O'Hara never observed anyone from 70 Beattie Street use the right of way. 25 To similar effect was the evidence of Mr Vowles. Since occupying 12 Pashley Street he has seen no one use the right of way. Mrs Pfeil's proposed use of the right of way 26 The front entrance to Mrs Pfeil's house is on the eastern side about 15 metres from Pashley Street along a side walk of about a metre in width between the house and the dividing fence with 10 Pashley Street. There are a number of steps up to a landing leading to an internal lobby. From the landing, another set of steps descends to the side walk which continues to the rear of the house. 27 Mrs Pfeil bought 8 Pashley Street as an investment. But she says in the future she and her husband may wish to "down-size" and move into 8 Pashley Street. She and Mr Pfeil, who is an engineer, discussed reconstructing the steps and landing to create formal access from the right of way. 28 Shortly before the hearing, Mrs Pfeil swore a further affidavit in which, for the first time, she said it was her wish to construct a garage or some other form of off-street parking on the undeveloped area at the rear her property, accessible from the right of way. 29 The area to the rear of Mrs Pfeil's house is higher than the right of way. In order to construct such off-street parking, Mrs Pfeil has in mind excavating the rear of her property up to approximately one metre. Presumably that would also entail removal of the ramp on the right of way or, at least, lowering of the height of any driveway to be constructed on the right of way at the point of entry to Mrs Pfeil's off-street car parking. Mr Bridgewood's proposed use of the right of way 30 The engineering evidence was that a driveway could be constructed along the right of way from Pashley Street to 70 Beattie Street. The gradient of such a driveway was required by the local council to be 20%. This could be achieved by excavation to a depth of almost one metre at the base of the retaining wall at the rear of 10 Pashley Street or by filling to a depth of almost one metre adjacent to the rear of the residence on 10 Pashley Street and extending that fill to approximately five metres from the frontage to Pashley Street. Or it could be achieved by a combination of excavation and fill. 31 An underground car park on 70 Beattie Street, reversing a vehicle up the driveway and leaving 10 Pashley Street in a forward direction, would obviate the difficulty of a right hand turn at the rear of 10 Pashley Street. On the other hand, if additional land on 70 Beattie Street was made available to ease the right hand turn, it was possible for a driveway to be constructed such that a vehicle could proceed up the driveway, turn right on to the right of way along the northern boundary of 10 Pashley Street and reverse into a car park on 70 Beattie Street. 32 If access was to be provided from a driveway to the rear of 8 Pashley Street, further excavation would need to be carried out on 8 Pashley Street in order to avoid the danger of overturning of a vehicle entering on an incline, and at the base of the retaining wall at the rear of 10 Pashley Street to produce a 20% gradient along the driveway from the rear of the residence on 10 Pashley Street to the proposed car park on 70 Beattie Street. Richard Nicholas Davies, the civil engineer, said that anything was possible, but it might not be practical. Local council landscaping requirements 33 Mr Bridgewood's proposal was for a double car park at the rear of 70 Beattie Street. The town planning evidence was that cl 19(3) of the Leichhardt Local Environmental Plan 2000 provided that the minimum landscaped area for residential development was 40% of the total site area and the term "landscaped area" was defined to mean that part of a site area at ground level not occupied by any building above or below ground and not overhung by part of a building with a clearance of less than 2.4 metres and used for recreation, lawns, gardens and substantial planting. It did not include balconies, driveways and parking areas but included decks where they had a direct connection to ground level and were no higher than 500 millimetres above ground level. 34 It was submitted that it was likely that council approval would not be obtained for the underground car park proposed on 70 Beattie Street because, if the area above the underground car park was excluded, the 40% requirement for landscaped area could not be achieved. Peter Andrew Le Bas made a rough calculation that there were 30 square metres of 70 Beattie Street that might be utilised for car parking without infringing the 40% requirement. He agreed, however, that if a two-car garage was proposed, the 40% requirement would not be met. 35 Likewise, it was submitted that Mrs Pfeil was unlikely to obtain council approval for off-street car parking at the rear of her premises because, above ground, the landscaped area would be less than 40% and if below ground, the area above it would still be excluded. Michael George said that because of the landscaping requirement, it was unlikely that Mrs Pfeil would receive council consent. He had not seen a plan for her proposed development and he conceded in cross-examination that he could not say that the 40% requirement could not be met. 36 I accept both submissions. On the evidence before me, the appropriate finding is that a two-car garage at the rear of 70 Beattie Street would be unlikely to meet the 40% requirement. And, so far as Mrs Pfeil's wishes are concerned, there is minimal landscaping potential at the front of the house where it is set back from Pashley Street, and the limited area to the rear of her property visible on the plans and aided by a site inspection that was taken, make it unlikely that the 40% requirement would be met if the rear of her property were excavated to establish off-street car parking. The locality 37 Pashley Street is a narrow one with parking only on one side of the street. In comparison, Beattie Street is wider and is metered. On-street parking is difficult in the Balmain area but the limited metered parking means that there is a turnover of vehicles that does not apply to Pashley Street. 38 There was some suggestion that the occupants of 70 Beattie Street might be advantaged by parking in Pashley Street. I reject that submission. There is far less likelihood of obtaining a parking space in Pashley Street than there is in Beattie Street. 39 There is no general attraction of Pashley Street to residents of Beattie Street. It is confined to residential allotments. There is no shop or other general convenience that might attract custom from Beattie Street. 40 The stables that gave rise to the original purpose for the grant of the right of way have long since disappeared. 41 8 Pashley Street is occupied by tenants. But, as I have indicated, Mr and Mrs Pfeil may live there in the future. 42 70 Beattie Street has had a number of uses under the ownership of Mr Bridgewood. It is currently divided into two units, one being used as an artist's gallery and studio, the other as a dwelling. Mr Bridgewood intends to seek development consent to utilise the premises as a boarding house. 43 These features apart, there have been no relevant changes in the neighbourhood as a whole, that are not consistent with the passage of time. Other aspects 44 In 1997, Mr Bridgewood applied for and obtained development consent for the construction of a garage on the 70 Beattie Street frontage. He did not proceed with that development. 45 Mr Bridgewood had 70 Beattie Street on the market in about 1999. He withdrew the land from sale and constructed a fence on the top of the retaining wall between his property and 10 Pashley Street and a wire fence between his property and 68 Beattie Street. He did not concede, in cross-examination, that he had abandoned the idea of using the right of way to gain access to Pashley Street. 46 In 2003, after the commencement of these proceedings, Mr Bridgewood made a development application to the council for the construction of off-street parking at the rear of 70 Beattie Street. He conceded in cross-examination that his reason was to attempt to defeat Ms Walker's claim for extinguishment of the right of way. The application was withdrawn later in 2003. Before the withdrawal, the council wrote to Mr Bridgewood seeking further information and indicating a preliminary assessment that raised concerns that one of the car parking space was inadequate in length and would not comply with Australian standard AS2890.1-1993 for off-street car parking; that there was significant non-compliance with landscaped area development standard under cl 19(3)(a) of the Leichhardt Local Environmental Plan 2000; and the impacts of the proposals on the health and stability of trees located at the rear of the site. 47 Mr Bridgewood has been able to obtain parking permits for both the units in 70 Beattie Street. The quality of the use of the right of way 48 Mr Bridgewood's use of the right of way has been limited and sporadic. It has also been idiosyncratic, governed by his interest in a Sutton Street residence to the south. His cessation of use of the right of way was not linked to any partial demolition of the ramp or the plantings along the boundary fence between 8 and 10 Pashley Street. Mr Bridgewood ceased to use the right of way when his interest in Sutton Street ceased. 49 Mrs Pfeil's use of the right of way to repair the dividing fence between 8 and 10 Pashley Street did not require the existence of a right of way. The Dividing Fences Act 1991, s 20 provides that an adjoining owner who carries out fencing work under the Act, including the owners, employees or agents may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work. 50 Her other uses were equally limited in scope. They involved parking on the right of way to gather up lopped tree branches and to unload household goods. But neither of those uses was incidental to the right to pass and repass along the right of way. 51 As Young CJ in Eq pointed out in Chiu v Healey (2003) 11 BPR 98049 at [61], a problem occurs when a person wants, not just to pass along a right of way, but to stop. Stopping for a short moment incidental to passage is unobjectionable. "Staying on the right of way for a period of time to erect a ladder to paint is an excessive user." 52 I agree with his Honour. In my view, none of the uses of the right of way by Mrs Pfeil fell within the permitted uses under the right of way. 53 The only persistent use of the right of way was for parking by the tenant of 10 Pashley Street of his motor vehicle on its paved portion adjacent to the residence on that lot. That was not a use of, or incidental to, passing and repassing along the right of way in terms of its grant. 54 If evidence was needed of this observation, a report of Michael Eugene Neustein, an architect and town planner, expressed the opinion that one might infer that parking in this area of the right of way would result in 8 and 10 Pashley Street being affected by increased noise. The mode of enjoyment of the right of way 55 The extent and mode of enjoyment of a right of way is a matter of construing the grant in the context of the surrounding circumstances. But, not only must the material facts existing at the time of the grant be taken into account, so, too, must technological change. Thus it has been held that rights of way for horses will permit the passing and repassing of motor vehicles. As Bennett J said in Lock v Abercester Ltd [1939] 1 Ch 861 at 864: "The law must keep pace with the times. As a matter of law I propose to decide that, where proof is given of the user of a way by carriages drawn by horses for the required period so as to establish the right to an easement for a carriageway, the right so acquired is one which enables the owner of the dominant tenement to use the way with mechanically propelled vehicles." 56 Decisions to that effect, however, depended upon the surrounding circumstances, including the physical nature of the site. In the leading case of Cannon v Villars (1878) 8 Ch D 415 at 420, Jessel MR stressed the locus in quo over which a right of way is granted and the terminus ad quem of a right of way as highly material circumstances. "If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the passage not only of foot passengers, but of horsemen and carts. Again, if we find the right of way granted along a piece of land capable of being used for the passage of carriages, and the grant is of a right of way to a place which is stated on the face of the grant to be intended to used or to be actually used for a purpose which would necessarily or reasonably require a passing of carriages, there again it must be assumed that the grant of the right of way was intended to be effectual for the purpose for which the place was designed to be used, or was actually used."

At 421 his Lordship illustrated the converse situation: "If, on the other hand, you find that the road in question over which the grant was made was paved only with flagstones, and that it was only four or five feet wide, over which a wagon or cart or carriage ordinarily constructed could not get, and that it was only a way used to a field or close, or something on which no erection was, there, I take it, you would say that the physical circumstances shewed that the right of way was a right for foot-passengers only." 57 In Attorney-General v Hodgson [1922] 2 Ch 429 portions of a park were sold off for private residences together with a right of carriage, horse and footway through the park. Roads were laid out in accordance with this right. The balance of the park was conveyed to a corporation with powers under a local Act. It made bylaws prohibiting motor-cars or other similar mechanically drawn vehicles from using the park. Peterson J concluded, as a matter of construction, that the word "carriage" included a motor-car but the bylaws were valid. In that case the rights of way were over constructed roads. 58 In contrast, in Gregg v Richards [1926] 1 Ch 521, the plaintiff had the benefit of an express grant of a way described on a plan endorsed on the deed. When the plan was scaled, the way was only four feet wide. At 532, Warrington LJ said that along a road four feet wide, for all practical purposes, none but foot passengers could go and hence what was described in the grant was a restricted right of way, restricted not in express terms, but because when the description was compared with the plan, what was described in the body of the deed was only four feet wide. The Court of Appeal went on, however, to conclude for different reasons, that the plaintiff had the right to use the whole width of the roadway. 59 In Kain v Norfolk [1949] 1 Ch 163 at 168, Jenkins J accepted a submission that a right of way encompassed the use of motor vehicles provided the site was suitable for use by vehicles at the date of grant: "On the other hand, Mr Milner Holland for the defendants says that this is a right of way for all purposes. He says, and I think he is supported by authority, that a right given to the grantee of property at all times thereafter to go, pass and repass over and along a certain way without any reference to horses, carriages, carts or anything else, will, per se, unelaborated as it is, give a right of way for all purposes, that is to say, a right to pass with vehicles as well as on foot, provided that the way to which the grant refers is a way suitable at the date of the grant for use by vehicles. I think that accords with the statement of the law contained in the judgment of Jessel MR in Cannon v Villars." 60 A different result arose in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468. Land was conveyed subject to a right of way over land depicted on an attached plan to and from a church. When the grant was made in 1945, the condition of the strip of land was poor and vehicles could only be used with difficulty. At 473-474 the Court of Appeal quoted from Megarry J at first instance: "Between the trees at the end of 1945 there ran a path, consisting mainly of trodden earth. It was covered with rotting leaves, and was a little 'dished' in that it was lower in the centre than at the sides. Beneath the leaves there seems to have been some gravel or shingle, and perhaps some sand; but however well covered the path may have been before the war, by 1945 the covering was irregular and concealed. It gave no indication of being a roadway, and looked like a somewhat derelict pathway. The width of the path was difficult to perceive, and at the end of 1945 was probably indeterminate, with no defined edges and showing little more than the track made by the feet of those who had used it most recently; but even with the leaves and debris removed, I do not think that there was anything that could be recognised as a path which was wider than four feet or four feet six inches."

Megarry J concluded that on the true construction of the conveyance, no vehicular right of way was reserved, and the right of way was for the use of pedestrians only. That decision was confirmed on appeal. 61 There is a lot to be said for the view that the right of way in this case should not be construed to include vehicular traffic. Whatever was the condition of the ramp in 1901, it is unlikely that a motor vehicle, whether of that age or of this, could successfully traverse the ramp. Furthermore, the engineering evidence was to the effect that the ninety degree turn at the top of the ramp could not be negotiated without encroaching upon other land at 10 Pashley Street or 70 Beattie Street. That portion of the right of way running along the northern boundary of 10 Pashley Street gave no impression of a road. There were no wheel marks on it and while it was relatively level, the surface was uneven and dipped towards the south. The ends of the right of way gave access to stables in 70 Beattie Street and 8 Pashley Street then in single ownership. 62 In other words, the inference that might be drawn from the evidence is that the right of way was incapable of use by motor vehicles at the time of grant and the proper construction of the right of way, therefore, might well be restricted to passing and repassing by foot, its use for horse travel having become obsolete with the demolition of the stables and the passing of the use of horses in suburban Sydney. 63 I am loathe to decide this case on that basis, however, as the argument was not raised at trial. I place my decision upon a different footing. Obsolescence 64 Ms Walker puts her principal argument on obsolescence. The Conveyancing Act 1919, s 89(1)(a) enables the court to wholly or partially extinguish an easement upon being satisfied that by reason of change in the user of any land having the benefit of the easement or in the character of the neighbourhood or other circumstances that the court deems material, the easement ought to be deemed obsolete. 65 In Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 97761, Young J analysed the authorities with respect to obsolescence. His decision was reversed on appeal, Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 97830 but, as Campbell J pointed out in Lolakis v Konitsas [2002] NSWSC 889, his Honour's analysis of the authorities was not criticised. 66 As I pointed out in Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554, a view that was not upset on appeal, Ashoil Holdings Pty Ltd v Fassoulas (2005) NSW ConvR 56-125, the analysis of the authorities by Young CJ in Eq on this issue commenced with Re Truman, Hanbury, Buxton & Co Ltd's Application [1956] 1 QB 261 at 272 where Romer LJ spoke of obsolescence in the sense that the original purpose could no longer be served. 67 In Re Mason and The Conveyancing Act (1960) 78 WN (NSW) 925 at 927, Jacobs J treated obsolescence as meaning that the object was incapable of fulfilment or, perhaps, that it served no present useful purpose. 68 In Durian at 18100, Mason P agreed with that approach. In Mason, the original purpose of a restrictive covenant was to preserve the privacy of, and views from, a cottage. The cottage was subsequently demolished. Jacobs J was of the view that the covenant could not be narrowly limited. It must have had a contemporary usefulness if it preserved benefits for those entitled to the dominant tenement. Young J observed in Cavacourt that this approach followed from the principle that the grant was construed most strongly against the grantor (Williams v James (1867) LR 2 CP 577 at 581). 69 In determining whether the object of the right of way is now incapable of fulfilment or serves no present useful purpose, the introductory words of the Conveyancing Act 1919, s 89(1)(a) require the court to have regard to any change in the user of any land having the benefit of the right of way, or in the character of the neighbourhood, or other circumstances of the case that the court deems material. 70 In my view, there is no relevant change in the user of 70 Beattie Street or 8 Pashley Street that has had any effect on the ability to use the right of way. The demolition of the stables and the erection of residences on those lots has not had any effect in restricting the use of the right of way. 71 There has been one material change in the character of the neighbourhood that bears upon one aspect of fulfilment of the object of the right of way and whether it serves any present useful purpose. That is the development of the area as a modern suburb in which the use of horses and horse drawn conveyances is now obsolete. At least with respect to the passing and repassing along the right of way with horses, carts, carriages or wagons laden or unladen that purpose of the right of way is now incapable of fulfilment and serves no present useful purpose. In my opinion the use of the right of way for horse and horse drawn conveyances ought to be deemed obsolete. 72 In other respects, I see no relevant change in the character of the neighbourhood. 73 The other circumstances to which reference may be made in terms of the Conveyancing Act 1919, s 89(1)(a) are many and various (Re Roseblade; Re Foenander [1964-1965] NSWR 2044 at 2046). 74 If there ever was an intention that motor vehicles might pass and repass over the right of way, I am of the view that the right of way serves no present useful purpose to that end. 75 Because of the slope of the land, a driveway constructed on the right of way in conformity with the council requirement of 20% would lead to fill adjacent to the rear of the residence on 10 Pashley Street of almost one metre, that fill continuing down the right of way towards Pashley Street. That fill would pass within three feet of the side of the residence including the main entrance to it. 76 The grant of a right of way carries with it all ancillary rights reasonably necessary for its exercise and enjoyment. Thus in Newcomen v Coulson (1876) 5 Ch D 133 at 143, Jessel MR said: "If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather." 77 And in Hanny v Lewis (1998) 9 BPR 97702 at 16208, Young J took the view that if one had a right of footway over a cliff one could erect stairs to go down the cliff. 78 In Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 the Court of Appeal held that where a right of footway was registered under the Real Property Act 1900, it was an implied incident of the registered easement that the owner of the dominant tenement should have the right to go on to the servient tenement in order to maintain the trafficability of the right of way where necessity required. What was involved was work upon a right of footway to Sydney Harbour that, in part, was not trafficable because of the natural topography. 79 And in Butler v Muddle (1995) 6 BPR 97532, Young J concluded that a grant of a right of carriageway gave the owner of the dominant tenement the right to pave the carriageway, but only so much of it as was needed for reasonable enjoyment of the right of way. In that case, and in Hanny, Young J took the view that the common intention of the parties to a grant of an easement was limited to reasonable use. Thus in Butler, his Honour concluded that the owner of the dominant tenement was not entitled to build as many car parking spaces along the common boundary as he in his absolute discretion thought appropriate. And In Hanny, his Honour was concerned that the type of stairs to be erected should not impose a substantial increase in the burden on the servient tenement. At 16208 his Honour said: "However, there is a great problem with the type of stairs that might be erected. One can well consider that some stairs could be erected which would be too substantial an interference with the rights of the proprietor of the subservient tenement. On the other hand, one could think of very basic stairs that would not be." 80 The concept of unreasonable burden on the servient tenement was considered by the Court of Appeal in Todrick v Western National Ominbus Co Ltd [1934] 1 Ch 561. The plaintiff owned property that included a private roadway from a highway to garages on his land. The defendants had a right of way along the roadway with power to extend it some yards to land belonging to them. The defendants built a garage for motor omnibuses on their land. As the garage stood on higher land, the defendants extended the roadway by a concrete ramp to the height of the five foot wall between the plaintiff's land and the intervening strip. The ramp made access to the plaintiff's garage more difficult. The Court of Appeal held that there had been excessive user both with respect to the building of the ramp and with respect to the user of the roadway for motor omnibuses. Of the ramp, Lord Hanworth MR said at 575-576: "In the present case, having to balance the rights of both parties, the owner of the dominant and the owner of the servient tenements, I find that the owner of the servient tenement has had a ramp put up on the surface of the land which belongs to him and that it circumscribes the area available to him for the purpose of washing his car or of getting his car out of the garage to the extent that it has so shortened the area in front of the garage as to make it difficult for him to use the garage freely and to take his car in and out of it with any freedom. In that sense there has been a distinct limitation imposed upon the plaintiff of his rights in respect of the garage and land which he owns. The defendants have for their own purposes put up upon the land belonging to the plaintiff this ramp in order to use the gradient which leads up to the garage upon their own ground. If the gradient had been steeper it would have been possible to commence the ramp at the point where the wall intersects the two properties of the plaintiff and the defendants, but rather than do that they have put up this structure without bearing in mind the rights of the plaintiff over the land. It is an exercise of the right of way which is not merely a development such as occurred in the case Dand v Kingscote 6 M & W 174, but an intrusion on the rights and property of the plaintiff." 81 To similar effect was the decision of the Court of Appeal in Jelbert v Davis [1968] 1 WLR 589 where it was held that the conversion of the dominant tenement from agricultural use to a caravan park with 200 camping units would result in an unreasonable increase in the burden on the servient tenement. At 595, Lord Denning MR said: "In my opinion a grant in these terms does not authorise an unlimited use of the way. Although the right is granted "at all times and for all purposes," nevertheless it is not a sole right. It is a right "in common with all other persons having the like right." It must not be used so as to interfere unreasonably with the use by those other persons, 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." 82 In my view, the construction of the ramp proposed by Mr Bridgewood would unreasonably intrude on Ms Walker's rights and property. It would clearly make her entrance to her residence more difficult and would impede her use of the land upon which the right of way is situated. 83 The ramp proposed by Mr Bridgewood would not suit Mrs Pfeil. She would wish the right of way to be at its present level towards the rear of her premises if she was to excavate for off-street parking. But that would increase the gradient of the ramp to the right angle turn at the rear of 10 Pashley Street such that it would not comply with council requirements for ramp gradients. 84 Nor would the creation of car parks, underground or otherwise, at 70 Beattie Street and 8 Pashley Street, in my view, comply with the landscaping requirements of the local council. 85 Such matters were regarded as of great significance with respect to obsolescence in Durian. At 18103 Meagher JA said: "What is perhaps the greatest factor tending towards obsolescence is the growth of town planning restrictions which make the original use of the tenement impossible, and now even illegal." 86 When these matters are coupled with the evidence that motor vehicles could not negotiate the first ninety degree turn at the rear of 10 Pashley Street without encroaching upon 10 Pashley Street outside the right of way or 70 Beattie Street, I have formed the view, expressed above, that the right of way ought to be deemed obsolete to vehicular passage. Any object of vehicular travel is now incapable of fulfilment and the easement serves no useful purpose in that regard. 87 It is not to the point that Mr Bridgewood has proposed an engineering solution to the gradient problem by the suggestion of excavating his land and excavating portion of the right of way to reduce the gradient and, therefore, the fill outside Ms Walker's residence. Nor is it to the point that Mrs Pfeil has proposed excavation in her premises. 88 Neither Mrs Pfeil nor Mr Bridgewood is bound to carry out the works they suggest, if they can. The evidence suggests that the landscaping requirements would not be met and council approval would not be forthcoming for the proposed excavations. 89 Furthermore, Ms Walker is not obliged to develop her land in conjunction with the owners of 70 Beattie Street and 8 Pashley Street. 90 So far as pedestrian traffic is concerned, Mr Bridgewood's use was sporadic and is non-current. Now that a fence borders the rear of 70 Beattie Street, practical use of the right of way for pedestrian traffic could only arise if a gate is opened in the fence, a matter of little moment, and steps are constructed in Ms Walker's property down to the right of way. There was no indication of the type of steps proposed and, as Young J said in Hanny, steps could be erected that would be a too substantial interference with the rights of Ms Walker. Furthermore, Mr Bridgewood has not bound himself to construct such steps or to improve the ramp which is currently in such a dilapidated state that it would not allow for reasonable pedestrian passage. 91 Mrs Pfeil suggested she had a benefit from the easement because her entrance might be converted to an entrance from the right of way. But that gives her no advantage that she does not already possess. Entrance to her home is by a side walk within her property from Pashley Street. If the entrance was transferred to the right of way, entrants would have to travel exactly the same distance from Pashley Street to gain entry to Mrs Pfeil's residence. 92 The only evidence of any use of the right of way by pedestrians was that of Mr Bridgewood and a young Ms O'Hara climbing up over the rocks over fifty years ago. 93 There does not seem to be any good reason why a person would wish to reach Pashley Street from the rear of 70 Beattie Street. Parking in Pashley Street is more difficult than it is in Beattie Street. And Mr Bridgewood was able to obtain two parking permits for 70 Beattie Street. The only attraction to Mr Bridgewood of using the right of way was when he was involved in renovating and thereafter conducting a business from Sutton Street. His activities there having concluded, there ceased to be an advantage to him to use the right of way. 94 In my view, the right of way should also be deemed obsolete to pedestrian traffic and should be extinguished wholly. Impediment to reasonable use 95 The Conveyancing Act 1919, s 89(1)(a) goes on to provide another basis for extinguishment of an easement if its continued existence would impede the reasonable user of the land subject to the easement without securing practical benefit to the persons entitled to the easement. 96 Ms Walker put an alternative submission that the right of way should be extinguished under this head. It was submitted that if the driveway were constructed as proposed by Mr Bridgewood, it would impede the reasonable use of her land. 97 In view of my finding of obsolescence, it is unnecessary for me to deal with this issue. I do so in deference to the submissions put before me. 98 In Ashoil at [38]-[40] I analysed the authorities on this issue. In order to obtain an order under the second limb of the Conveyancing Act 1919, s 89(1)(a), it has to appear that no reasonable user of the land is possible unless the restriction is extinguished (Heaton v Loblay (1960) 60 SR (NSW) 332 at 335). It must be shown that the continuance of the right of way hinders to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies to the surrounding property and to the purpose of the right of way (Re Ghey and Galton's Application [1957] 2 QB 650 at 663). The restrictions must be shown to have sterilised the reasonable use of the land (Stannard v Issa [1987] 1 AC 175 at 186). 99 Valuation evidence was called from Malcolm Geoffrey Garder and Terrence Michael Dundas. Mr Garder said that termination of the right of way would affect the market value of 70 Beattie Street by only a nominal amount. Mr Dundas said it added $15,000 in value to 70 Beattie Street and $7,500 to the value of 8 Pashley Street. He also said that the owner of 10 Pashley Street might be expected to pay $100,000 to extinguish the right of way. 100 I did not find the evidence of Mr Dundas convincing. Since I formed the view that the right of way does not secure practical benefit to Mr Bridgewood or to Mrs Pfeil, I fail to see how it could increase the market values of their properties. 101 I have already indicated that it is unlikely that the driveway could be constructed in view of council requirements. If it is not, there is no impediment to the reasonable use of Ms Walker's land. And while I have found that the right of way does not secure practical benefit to Mr Bridgewood or Mrs Pfeil, I am of the view that the second limb of the Conveyancing Act 1919, s 89(1)(a) has not been made out. Abandonment 102 The Conveyancing Act 1919, s 89(1)(b) contains a further basis for extinguishing a right of way if the court is satisfied that adults entitled to the right of way, by their acts or omissions may reasonably be considered to have abandoned the right of way. Ms Walker put an alternative claim under this heading. 103 In Ashoil before the Court of Appeal, Handley JA pointed to the statement by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 385-386 that the Torrens system of registered title was not a system of registration of title but a system of title by registration, because that which the certificate of title described, was not the title that the registered proprietor formerly had. The title it certified was not historical or derivative. It was the title that registration itself vested in the proprietor. 104 There are statements in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, Proprietors Strata Plan Number 9968 v Proprietors Strata Plan Number 11173 [1979] 2 NSWLR 605 and Pieper v Edwards [1982] 1 NSWLR 336 that refer to the relevance of acts and omissions of previous registered proprietors in a case of abandonment under the Conveyancing Act 1919, s 89(1)(b). But Handley JA suggests that it is open to question whether it is necessary, when the dominant tenement is under the Real Property Act 1900, to establish that the current registered proprietor has abandoned the right of way. His Honour did not need to decide that issue, and nor do I, because I have formed the view that there is insufficient evidence to establish the abandonment either by predecessors in title to Mr Bridgewood and Mrs Pfeil or by them personally. 105 I analysed the authorities on the topic in Ashoil at [18]-[24]. The conduct of the dominant owner must have been such as to make it clear that he or she had, at the relevant time, a firm intention that neither he nor she nor any successor in title should thereafter make use of the right of way (Gotobed v Pridmore (1970) 115 SJ 78). 106 Abandonment of a right of way can only be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right or to attempt to transmit it to any one else (Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at 553). 107 In Treweeke there was a right of way over impassable terrain to a waterfront granted in 1927. A chain wire fence was erected in 1933 and later renewed. It crossed the right of way. It had been erected for safety reasons. In 1956 the owner of the servient tenement installed a swimming pool, partially on the right of way, and in 1958 she erected an iron fence across it. The owners of the dominant tenement used an alternative route over other land to gain access to the waterfront. They had never used the entirety of the right of way. The owner of the servient tenement failed to obtain a declaration that the right of way had been abandoned. The fences could be removed. There had been complaint about the swimming pool when it was discovered that it had been constructed partly on the right of way. At 302, Mason J explained that mere non-user, even for a long period of time, did not necessarily indicate an intention to abandon: "It has been said, for instance, that mere non-user of a right of way the subject of a grant, even for a long period of time, does not necessarily indicate an intention to abandon ( Ward v Ward (1852) 7 Ex 838 (115 ER 1189)). Non-user may be referrable to the absence of a need to use the right of way and the use of an alternative and more attractive means of access; then it may be thought that the non-user indicates, not so much an intention to abandon the right of way, as a preference for the alternative means of access so long as it remains available." 108 The evidence reveals sporadic use of the right of way but nothing more. I do not regard Mr Bridgewood's fencing of 70 Beattie Street as indicating a deliberate decision never more to assert the right of way. He had withdrawn the property from an unsuccessful attempt to sell it, and his actions are consistent with making the property more attractive for any future attempt to sell it. 109 Nor do I regard his application for, and the grant of, approval to erect a garage on the 70 Beattie Street frontage as evidence of abandonment. It was an exploitation of an alternative use of his land. 110 I regard the right of way as obsolete partly because the evidence establishes a lack of use of it. But that lack of use is insufficient, in my view, without more, to establish abandonment. 111 I am of the view that Ms Walker has failed to make out an entitlement to extinguishment of the right of way under the Conveyancing Act 1919, s 89(1)(b). No substantial injury 112 The final submission for Ms Walker was under the Conveyancing Act 1919, s 89(1)(c) which enables the court to extinguish a right of way if satisfied that it will not substantially injure the persons entitled to the right of way. 113 Substantial, in this context, connotes injury that has present substance. It does not mean large or considerable (Mason at 928). 114 Since I have concluded that the right of way should be deemed obsolete, there will be no substantial injury to Mr Bridgewood or to Mrs Pfeil or to their successors in title upon its extinguishment. Had there been practical benefits to either from the continuation of the right of way, the finding of obsolescence would not have been open.

Conclusion 115 It follows from what I have said that Ms Walker is entitled to an order pursuant to the Conveyancing Act 1919, s 89(1)(a) extinguishing the right of way in favour of 70 Beattie Street and 8 Pashley Street on the basis that it ought to be deemed obsolete. The cross claim must be dismissed. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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.

CITATION : Marian Walker v Brian Bridgewood & Ors [2006] NSWSC 149

Chiu v Healey (2003) 11 BPR 98049 Lock v Abercester Ltd [1939] 1 Ch 861 Cannon v Villars (1878) 8 Ch D 415 Attorney-General v Hodgson [1922] 2 Ch 429 Gregg v Richards [1926] 1 Ch 521 Kain v Norfolk [1949] 1 Ch 163 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468 Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 9776 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 97830 Lolakis v Konitsas [2002] NSWSC 889 Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554 Ashoil Holdings Pty Ltd v Fassoulas (2005) NSW ConvR 56-125 Re Truman, Hanbury, Buxton & Co Ltd's Application [1956] 1 QB 261 Re Mason and The Conveyancing Act (1960) 78 WN (NSW) 925 Williams v James (1867) LR 2 CP 577 CASES CITED : Re Roseblade; Re Foenander [1964-1965] NSWR 2044 Newcomen v Coulson (1876) 5 Ch D 133 Hanny v Lewis (1998) 9 BPR 97702 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 Butler v Muddle (1995) 6 BPR 97532 Todrick v Western National Ominbus Co Ltd [1934] 1 Ch 561 Jelbert v Davis [1968] 1 WLR 589 Heaton v Loblay (1960) 60 SR (NSW) 332 Re Ghey v Galton's Application [1957] 2 QB 650 Stannard v Issa [1987] 1 AC 175 Breskvar v Wall (1971) 126 CLR 376 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Proprietors Strata Plan Number 9968 v Proprietors Strata Plan Number 11173 [1979] 2 NSWLR 605 Piper v Edwards [1982] 1 NSWLR 336 Gottobed v Pritmore (1970) 115 SJ 78 Tehidy Minerals Ltd v Norman [1971] 2 QB 528

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