Markos v O R Autor

LEGISLATION CITED : Conveyancing Act 1919 (NSW), s 89 Building Code of Australia, Section D, paras DO1, DP4, D1.7, D1.10

Alliance Economic Investment Co Ltd v Berton (1923) 92 LJ KB 750 Attorney-General v Horner (No 2) [1913] 2 Ch 140 Bulstrode v Lambert [1953] 1 WLR 1064 Butler v Muddle (1995) 6 BPR 13984 Castagna v Great Wall Resources Pty Ltd [2005] 12 BPR 23,363 Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 Clifford v Hoare (1874) LR 9 CP 362 Denham Pty Ltd v Sidoti (unreported, Waddell CJ in Eq, Supreme Court of New South Wales, 2 August 1989; BC8901890) Denton v Phillpot (1990) NSW Conv R para 55-543 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 Ex parte Purcell (1982) 47 LGRA 433 Finlayson v Campbell (1997) 8 BPR 15,703 Flynn v Harte (1913) IR 322 Gallagher v Rainbow (1994) 179 CLR 624 Harris v Flower (1904) 74 LJ Ch 127 Harrison v Duke of Rutland [1893] 1 QB 142 Hoy v ALL ERton [2001] QSC 440 In re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261 Jelbert v Davis [1968] 1 WLR 589 Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592 Long v Michie [2003] NSWSC 233 CASES CITED : Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee of Australia Ltd (1988) 4 BPR 9534 Natva Developments Pty Ltd v McDonald Bros Pty Ltd (2004) 12 BPR 22,287 Nickerson v Barraclough [1980] Ch 325 Paine & Co Ltd v St Neot's Gas & Coke Co [1939] 3 All ER 812 Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337 Pettey v Parsons [1914] 2 Ch 653 Posetti v Kosciuszko Thredbo Pty Ltd [2007] ACTSC 4 Prospect County Council v Cross (1990) 21 NSWLR 601 Re Lewis [1959] NZLR 1040 Re Mason and The Conveyancing Act (1960) 78 WN (NSW) 925 RK Roseblade & VM Roseblade and the Conveyancing Act (1964-5) NSWR 2044 Saggers v Brown (1981) 2 BPR 9329 Siple v Blow (1904) 8 OLR 547 Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 Todbern v Hurstville City Council [2001] NSWLEC 145 Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 Toomey v Scolaro's Concrete Constructions Pty Ltd (No 2) [2000] VSC 279 Tujilo v Watts (2005) 12 BPR 23,257 United Land Company v Great Eastern Railway Company (1875) 10 Ch App 586 White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113 Zenere v Leate (1980) 1 BPR 9300

Con Markos (P1) Katina Markos (P2) PARTIES : George Markos (P3) O R Autor Pty Ltd (D1) Anna Countouris (D2)

COUNSEL : D L Warren (P) T Iuliano (D)

SOLICITORS : Otto Stichter & Associates (P) Colin Biggers & Paisley (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6537/04 CON MARKOS & ORS V O R AUTOR PTY LTD & ANOR JUDGMENT 1 HIS HONOUR: This is a case about a right of way. I shall use the expression "right of way" to refer to the easement that allocates rights and duties to the holders of the dominant and servient tenements. For convenience, I shall refer to the piece of land to which the right of way relates as "the passageway". 2 By their amended statement of claim, the plaintiffs (Mr and Mrs Markos and their son) seek the following relief against the first defendant ("Autor") and the second defendant (Mrs Countouris):

1. A declaration that the use, as a fire exit, of a certain passageway that is subject to a right of way burdening the plaintiffs' property for the benefit of the defendants was not intended or contemplated at the time the right of way was granted;
2. An order restraining the defendants from using the passageway as a fire exit;
3. An order that, by reason of change in the use of the defendants' land and/or change in the character of the neighbourhood, or "such circumstances" [sic], the right of way ought to be deemed obsolete and extinguished pursuant to s 89 of the Conveyancing Act 1919 (NSW);
4. An order that the right of way be extinguished. 3 The defendants have filed a defence, denying many of the allegations in the plaintiffs' statement of claim, but they have not made a cross-claim. The properties 4 Barrenjoey Rd is the main arterial road passing through Newport, a beach suburb north of Sydney, on the way to Palm Beach. Along the relevant strip of Barrenjoey Rd there are retail shops generally in two or three storey buildings with other businesses overhead (T 42-45). Coles Parade adjoins Barrenjoey Rd at right angles at a T-intersection. On the other side of the T-intersection is Newport Beach. Travelling away from the beach along Coles Parade, one would come to the intersection of Coles Parade and Foamcrest Avenue. Foamcrest Avenue runs approximately parallel to Barrenjoey Rd. There are three-storey and duplex residential developments on Coles Parade opposite the plaintiffs' land, and on Foamcrest Avenue (T 41-2). Generally the area surrounding the plaintiffs' land is "commercial shopfront and residential" and "shop top" buildings (T 43). 5 The plaintiffs are the registered proprietors of Lot 78 of Section 5 in Deposited Plan 6248, a property at 383-5 Barrenjoey Rd and 3-6 Coles Parade Newport ("Lot 78"). The first defendant, Autor, is a company owned by Mr and Mrs Countouris. It is the registered proprietor of Lot 1 in Deposited Plan 732697, which is a consolidation of lots 30, 76 and 77 of Section 5 of Deposited Plan 6248. It is also the registered proprietor of Lot 29 in Section 5 of Deposited Plan 6248. Until recently the second defendant, Mrs Countouris, was the registered proprietor of Lot 75 in Section 5 of Deposited Plan 6248, but recently she transferred that property to Autor. These various lots are contiguous. Consequently Autor is now the owner of a large parcel of land comprising Lot 1 (old Lots 30, 76 and 77), and Lots 29 and 75 ("Autor's land"). 6 Autor's land has a frontage to Barrenjoey Rd next to the plaintiffs' land, and extends back to Foamcrest Avenue behind the plaintiffs' land. Previously there was a supermarket on Lots 76 and 77 but it was demolished in 2005. There may have been two supermarkets at some stage (T 14). Lot 30 was a car park for the supermarket, accessed from Foamcrest Avenue. There were other shops and a residence on Lot 75, with the shops having a frontage to Barrenjoey Rd. There was a residence on Lot 29, which had a frontage to Foamcrest Avenue and was directly behind Lot 75. These structures have also been demolished, so at present the land is vacant land. 7 There are now six shops on the plaintiffs' land, two fronting Barrenjoey Rd and four fronting Coles Parade. No 383 Barrenjoey Rd is a pie and cake shop, which has been occupied by the same tenant since 1978. The corner shop is presently used as a seafood take-away. Three of the four shops fronting Coles Parade (numbers 3, 4 and 5) have been from time to time clothing shops of various kinds. No 6 Coles Parade has in the past been used as a fruit and vegetable shop, though it was vacant when Mr Markos made his affidavit in 2005. All of the shops in Lot 78 are single-storey and, judging from the photographs which are in evidence, the buildings are not modern. 8 Between the seafood shop and the first clothes shop there is a narrow passage, and there is an open area running along the back of the Coles Parade shops up to the boundary of Lot 78 with Autor's land. There are toilet blocks in this open area, accessed from the back of the Coles Parade shops. A wire mesh fence runs along the boundary of Lot 78 with Autor's land. Previously the side wall of the supermarket on Autor's land ran approximately along the boundary with No 78. There is a lockable high metal gate across the end of the area behind the Coles Parade shops, from the back corner of the shops to the boundary with Autor's land. The gate prevents users of the adjoining passageway (which is subject to the right of way) from having access to the back of the shops. 9 The right of way extends over a passageway which is part of Lot 78, and provides access from Autor's land to Coles Parade. The passageway is about 4.57 m wide and about 12.5 m long. One end is open to Coles Parade. One side of the passageway is bounded by the wall of the clothing shops and the metal gate. There is some graffiti on the wall. The other side is bounded by the side wall of a three-storey residential and retail building at No 57-59 Coles Parade, a building which extends to the corner of the intersection between Coles Parade and Foamcrest Avenue. At present there is a wire mesh fence across the back of the passageway, marking the boundary between the passageway and Autor's land. Since Autor's land is at present vacant, the passageway is not being used for passage to and from the dominant tenement, and its only present use appears to be for casual parking and perhaps occasional deliveries to the shops on Lot 78, although on many occasions deliveries are made through the front door of the shops. The right of way over the passageway 10 The right of way was created by memorandum of transfer No H294463 dated 10 July 1956, a transfer of Lot 78 by the registered proprietor of Lots 76, 77 and 78. The transferor was Warringah Hardware Pty Ltd and the transferee was Bartolo Scafidi of Willoughby, described as a fruit merchant. The terms of the right of way are relevantly as follows: "reserving unto the transferor full and free rights as appurtenant to the residue of the land … being Lots 77 and 76 respectively of Section 5 Deposited Plan 6248 to pass and repass with and without vehicles over all that piece of land 15 feet wide shown as a right of way on the plan annexed hereto and marked 'A'." 11 The same memorandum of transfer created a restrictive covenant by the transferee and his successors in title that they would "not at any time cause to be erected on the subject land any general hardware store or become engaged in selling or dealing in builders' materials domestic hardware kitchenware ironmongery or housewares upon the subject land". 12 There is very little evidence of the uses being made of Lots 76, 77 and 78 when the right of way was created in 1956. Deposited Plan 6248 was registered after a survey made in January 1911. There is no indication in the survey plan (a copy of which is Ex D4.2) of the use then being made of any of the lots, but it appears that even then Barrenjoey Rd was the main thoroughfare through Newport and the subdivision was not far from a village reserve, suggesting that the lots along Barrenjoey Rd were or were intended to become retail commercial or mixed commercial/residential ("shop top") premises of a kind typical in suburban communities in the Sydney region. 13 The plan annexed to the memorandum of transfer gives no indication of the use being made of the properties at that time, but the title deeds for lots 76 and 77 show that they were transferred in 1949 to Warringah Hardware Pty Ltd. That fact, coupled with the terms of the restrictive covenant, implies that in 1956 there was a retail hardware store on Lots 76 and 77, or such a development was intended. The title deed for Lot 76, which is dated 23 November 1931, shows a shaded area at the back of Lot 78 in approximately the same position as the existing passageway. That suggests that the occupiers of Lots 76 and 77 were having access over Lot 78 to Coles Parade approximately on the site of the existing passageway, before the right of way was created. 14 The transferee of Lot 78 is described in the memorandum of transfer of July 1956 as a fruit merchant. That, plus the inference to be drawn from the location of Lot 78 within Newport village, suggests that Lot 78 was being used in 1956, or was intended to be used, wholly or partly for a retail fruit business. 15 I conclude, on balance, that when the right of way was created in July 1956 both the dominant and servient tenements were either being used wholly or partly for retail purposes, or use for retail purposes was intended. In using the word "intended", I do not mean to make a finding about the subjective intention of the grantor and grantee of the right of way, but rather to make an inference from the objective circumstances at the time of creation of the easement. There was an existing area at the rear of Lot 78, which provided access from the rear of Lots 76 and 77 to Coles Parade. It is a reasonable inference, given the retail user or proposed retail user of Lots 76 and 77, that this area at the rear of Lot 78 was being used or intended (in the same sense) to be used for access by delivery vehicles to the retail business or businesses. That being so, a right of way, reflecting existing or proposed user and permitting the owner of the dominant tenement "to pass and repass with and without vehicles", must have been intended to provide a legal right of access over Lot 78 to the rear of Lot 76 and 77 for use by retail delivery vehicles, whether or not there were other uses as well. 16 It is not possible, on the evidence, to say whether the existing shop buildings on Lot 78 were there in 1956. However, by October 1978 the single-storey shop buildings currently on Lot 78 had been constructed. They are shown in a survey dated 25 October 1978 and the evidence is that those buildings have remained standing ever since that time. Use of Right of Way 17 Mr and Mrs Markos and Tom Markos acquired Lot 78 in about October 1978. There have been no changes to the buildings on the property since that time. In the 1980s, Tom Markos sold his share in the property to George Markos, the son of Mr and Mrs Markos. Mr and Mrs Markos and George Markos are the plaintiffs. 18 It appears that the use of the improvements on Lots 76 and 77 for one or more supermarkets commenced after the creation of the right of way in 1956, and supermarket use continued until 2005. At some point of time during the operation of the supermarket or supermarkets, the improvements on Lot 30 were demolished and it became a car park, convenient for use by customers of and delivery vehicles for the supermarket or supermarkets. 19 In early 2005 there were, according to Mr Markos, 10 car parking spaces on Lot 30. Mr Countouris gave evidence (affidavit made on 8 March 2006) that there were 12 or 13 car spaces. The exact number does not matter for present purposes. Vehicles obtained access to the car park from Foamcrest Avenue, and came out of the car park and across the passageway into Coles Parade. Mr Markos said (para 19) that vehicles parked on Lot 30 were permitted to exit via Foamcrest Avenue but, according to his observation, very few vehicles did so because the angle parking on Lot 30 facilitated exit via the passageway. Mr Countouris gave similar evidence, saying it was common for customers of the supermarket to exit the car park across the passageway to Coles Parade (affidavit made on 8 March 2006, para 14). He said (para 16) that on many occasions pedestrians used the car park and the passageway for access between Foamcrest Avenue and Barrenjoey Rd and the beach. 20 Mr Markos said that over a number of years he observed delivery trucks obtaining access to the car park on Lot 30 from Foamcrest Avenue, parking at the rear of the supermarket and unloading their produce, and exiting over the passageway into Coles Parade (affidavit of 10 March 2005, para 16). The evidence of Mr Countouris was that he had observed that large delivery trucks reversed from Foamcrest Avenue to the loading dock of the supermarket and left via the same route, but smaller trucks and panel vans making deliveries to the supermarket entered and exited the property via the passageway to Coles Parade (affidavit made on 8 March 2006, paras 13 and 15; his oral evidence was not quite the same (T 114-115), but to the extent of any discrepancy I prefer the affidavit evidence as his considered recollection). 21 I regard the evidence of Mr Markos and Mr Countouris on these matters as consistent. The evidence given by Mr Markos orally was very close to the evidence of Mr Countouris (T 16-17, T 33-34, T 48, T 114-5). Their evidence establishes that the passageway was frequently used during the life of the supermarket for egress from the car park and the rear of the supermarket to Coles Parade, by customers' vehicles and smaller delivery vehicles, and also pedestrians, and was occasionally used for vehicular ingress to the car park from Coles Parade. 22 Mr Markos said in oral evidence that he gave the tenants of the shops on Lot 78 keys for the gate leading from the passageway to the area behind the shops, and that the tenants used that area for delivery purposes and there was sufficient space for vehicles to turn around (T 36-7). His evidence implies that the tenants from time to time brought vehicles onto the passageway for the purpose of delivery to the area behind the shops. Mr Countouris said he had never seen a delivery to Lot 78 taking place from the passageway and he did not think the space behind the Coles Parade shops was large enough to permit a delivery truck to enter and turn around, and in any event, few deliveries to Lot 78 would be required because the Coles Parade shops had been closed for many years (T 122). The difficulty with assessing this evidence is that neither Mr Markos nor Mr Countouris was at the site on a daily basis. Bearing that in mind, taking into account the evidence of the photographs of the passageway and area behind the shops, and also taking into account that the area behind the shops was readily accessed from the passageway via lockable gate, it seems to me correct to infer that the Coles Parade tenants occasionally, though perhaps infrequently, received and made deliveries to and from their shops by the use of the back area and therefore the passageway, and consequently that vehicles were parked on the passageway for the purpose of those deliveries. Obviously that usage would cease, in respect of a shop, if the shop were vacant, but it would resume if the shop came to be tenanted again. 23 In his affidavit of 10 March 2005 (para 18), Mr Markos said that at the entry point to the passageway in Coles Parade the words "No Entry" had been painted in yellow on the bitumen surface in letters about 1 m long, in about 1985, together with a directional arrow pointing from Lot 77 towards Coles Parade. He said this was done without his consent or knowledge. Mr Countouris said he was unaware who painted the words "No Entry" across the passageway but he said it was not done by Autor or anyone with Autor's consent (affidavit made on 8 March 2006, para 36). He gave evidence to the yellow arrow on the ground of the right of way (T 123). 24 A letter dated 8 November 1999 written to Autor by the plaintiffs' solicitors (Ex P5) records that at some time in the past, the passageway was turned into a one-way passage to allow traffic to enter from Foamcrest Avenue through the defendants' land and to exit from Lots 76 and 77 across the passageway to Coles Parade, a usage allegedly not authorised by the plaintiffs nor (it was alleged) by the terms of the memorandum of transfer which created the right of way over the passageway. It was also alleged that the one-way traffic flow impeded the plaintiffs' right of access to the rear of the shops on Lot 78 and their ability to park vehicles at the rear of the shops, and that it was an excessive use. 25 It appears that some "No Standing" signs were erected on a wall in the right of way, but according to Mr Markos they were not erected by the plaintiffs (T 49-50). Mr Countouris recalled that "No Standing" signs had been erected in the laneway for at least the last few years, though he denied that he had erected them (T 123). I accept the evidence of both witnesses. Autor's proposed development 26 Autor has obtained the conditional development consent of Pittwater Council to a development of its land comprising a large ground floor supermarket, 21 shop top residential units and an underground car park. The conditions of the consent include various conditions requiring compliance with the Building Code of Australia ("BCA"). The approved plans make provision for fire egress over the passageway. A Construction Certificate was issued on 27 April 2007. 27 By the present proceedings, the plaintiffs seek to prevent Autor from using the passageway for fire egress from the proposed building. They seek two kinds of relief in their amended statement of claim, namely an injunction to restrain the defendants from using the passageway as a fire exit, and an order that the right of way be extinguished. During the trial a question arose as to whether the right of way should be modified rather than extinguished, and I received submissions on that issue. 28 The court received a substantial amount of evidence, including conflicting expert evidence, as to whether the fire egress proposed in Autor's approved plans will comply with the BCA. That is not a question that I need to decide, on the view I take of the facts and legal issues. The court has two substantive issues to decide, namely whether the proposed use for fire egress is not authorised by the terms of the right of way and therefore (subject to discretionary considerations) Autor should be enjoined from continuing with the proposal; and whether the right of way should be extinguished or modified under s 89(1). The plaintiffs' development proposals 29 It appears from the evidence given on behalf of the plaintiffs that they have in mind some form of commercial development project for Lot 78, but there is no specific evidence of what they have in mind. The matter is touched upon principally in the evidence of the experts of the parties on planning and building certification, Dr Hutcheson and Mr Lilli. 30 In his first report Dr Hutcheson expressed the opinion that if a fire escape were created, it would be necessary for the fire escape route to have a covered fire-rated enclosure over the whole of the length of the passageway and at least part of its width. He said the construction of a fire-isolated exit would reduce parking on the passageway to no more than three vehicles. 31 Dr Hutcheson addressed the plaintiffs' prospects of obtaining development consent for a development extending over such a fire escape route in his first report, and substantially repeated his opinion in his second report. He noted that any development would need the approval of Pittwater Council, which would be required to consider the constraints imposed by current planning instruments and amendments to the Environmental Planning and Assessment Act. In his opinion: "… many of the constraints under the current planning instruments will restrict development. These instruments are unlikely to permit the development of a viable commercial development, in part because of the inadequacy of parking which was effected by the right of way that now is further constrained by the required width of a possible fire-isolated exit". 32 Mr Lilli said he had not seen any development scheme for the plaintiffs' land and was therefore unable to express any opinion as to any effect the use of the passageway as a means of fire escape may have on development of the neighbouring property. He noted that it was not apparent that Dr Hutcheson had been provided with particulars of any planned development, by implication criticising Dr Hutcheson for expressing a view in the absence of that information. Mr Lilli added that Dr Hutcheson's expressed opinion was based on the incorrect assumption that a fire-isolated passage would be required over part of the width of lee passageway and the whole of its length, a view that Mr Lilli said was wrong. 33 On the question whether the construction of a fire-isolated enclosure along the length of the passageway would impede the development of Lot 78, my view is that no conclusion can be reached on the basis of the existing evidence. It is striking that the plaintiffs have produced no evidence of any specific development proposal for Lot 78. Lot 78 is a substantial parcel of land. The right of way affects only a passageway 4.5 m wide. I cannot accept Dr Hutcheson's broad assertion, not supported by any specific reasons, to the effect that it would be unlikely that any viable commercial development of Lot 78 would be approved if a fire-isolated enclosure were to be permitted. The scope of the right of way on its proper construction

The submissions of counsel 34 One of the main issues in this case is whether use of the passageway for fire egress from the proposed building is a use authorised by the terms of the right of way, on its proper construction. Counsel for the plaintiffs submitted, in substance, that · the right of way permits vehicular and pedestrian ingress and egress between Lots 76 and 77 and Coles Parade for purposes including the making of deliveries to retail premises on those Lots; and · a right of way for such purposes is substantially different from a right of egress in the event of fire; · therefore, as a matter of construction, the terms of the right of way do not authorise this substantially different use. 35 Counsel submitted that the difference between the present right of way and a right of fire egress can be seen by examining the rights of the owner of the servient tenement subject to the right of way. He said that the owner of the servient tenement may exercise all the rights of owner of the passageway so long as there is no unreasonable interference with the rights of the owner of the dominant tenement. For example, the owner of the servient tenement may park vehicles there, provided pedestrians and vehicles may pass by along the passageway; or install a lockable gate across the passageway, if there are good reasons for doing so, provided that a key is given to the owner of the dominant tenement. He contrasted that position with the requirements of a right of fire egress, where there must be clear access at all times for people exiting the building. Counsel's contention was that the exercise of the rights of the owner of the servient tenement would be incompatible with the requirements of fire egress. 36 Counsel for the defendants submitted that the terms of the right of way authorise its use as fire egress from the proposed building, because it was contemplated by the parties to the grant that people escaping by foot or by vehicle from a fire on the dominant tenement could use the right of way for that purpose. He referred to evidence, noted above, which (he said) indicated that commercial activity on the dominant and servient tenements was contemplated at the time of the grant. He contended that use of the passageway to escape a fire on the dominant tenement was an incident of conducting commerce. He cited Timpar Nominees Pty Ltd v Archer [2001] WASCA 430, where Kennedy J (with whom Pidgeon and Wheeler JJ generally agreed) said (at [37]) that the use of an easement may change to keep pace with technology (and thus an easement granting a carriageway for horse and carriage has been held to permit the use of mechanically propelled vehicles), and he contended that the use of the right of way in the present case for fire egress from the building is a development of the use permitted by the wording of the instrument. He also pointed out that according to the evidence, Autor's approved plans contemplate the use of the passageway not only for fire egress but also as a general purpose exit from the proposed building for residents of the units and users of the car park.

The Perpetual Trustee case 37 The correct approach to the construction of an instrument creating an easement was laid down by Hodgson JA (with whom Beazley and Tobias JJA agreed) in Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337 (special leave to appeal to the High Court has been granted). The case concerned the relevance and admissibility of evidence of communications between the grantor and the grantee and others at the time of the grant, matters that do not arise in the present case. But Hodgson JA also had some important things to say about the correct principles of construction of an instrument of grant. I wish to give an account of relevant aspects of the Perpetual Trustee decision at some length, as I gained the impression during the hearing that its true significance was not fully appreciated in the submissions made on behalf of both sides. 38 It is important at the outset to distinguish the principle of construction from two related principles, identified by Hodgson JA (at [30]-[31]): · for a grant of an easement to bind the servient tenement rather than merely to operate as between the parties, the use authorised must be such as to benefit the dominant tenement: Attorney-General v Horner (No 2) [1913] 2 Ch 140 at 196; Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 at 579-80 and 591; · unreasonable use of land causing unreasonable damage to other land is an actionable nuisance; and so even though use of the servient tenement may otherwise be within what was granted by the easement, if this use is carried out unreasonably so as to cause unreasonable damage to the servient tenement, it may be restrained as a nuisance. 39 Some earlier authorities, discussed and supported by McHugh J in his dissenting judgment in Gallagher v Rainbow (1994) 179 CLR 624, adopted the proposition (to use McHugh J's words at 640) that "the Court will not construe the grant in a way that would enable an easement to be used in a manner that goes beyond the use contemplated by the parties at the time of the grant". 40 Hodgson JA commented on that proposition as follows (at [25]): "I believe this proposition needs to be applied with care, because it could be taken as suggesting two related propositions that are, in my opinion, incorrect. First, it could be taken as suggesting that consideration of what is 'contemplated by the parties' is a separate exercise from construing the grant, whereas in my opinion it is not; and secondly, it could be taken as suggesting that the investigation of what is contemplated by the parties can be pursued in some way beyond the appropriate method for determining what is the intention of the parties as manifested by the grant itself, considered having regard to the circumstances in which the grant was made." 41 His Honour continued (at [26]): "In my opinion, there is just one question, what does the grant authorise; and that question is to be determined by construing the grant. One way of posing the question is to ask, what use was intended to be authorised by the grant; but no separate investigation into the use contemplated by the parties is either necessary or permissible; however, in determining this question, regard may be had to the surrounding circumstances, including the physical circumstances of the dominant and servient tenements and the use actually being made of them at the time of the grant." 42 In my opinion, a practical lesson to be drawn from these observations is that it is apt to create confusion for a court or counsel to analyse the meaning of a grant of easement by reference to the use "contemplated by the parties", unless they are very careful to explain what they mean by those words. That is an important lesson because many of the reported cases, and most of the textbooks, use this language. 43 Judges have spoken about the use contemplated by the parties in cases that may be divided, for the purpose of analysis, into two groups. In one group of cases, the use of the dominant tenement changed after the time of the grant. Jelbert v Davis [1968] 1 WLR 589 and White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113 are the best-known illustrations. In Jelbert the defendant converted the dominant tenement of a right of way into a caravan park with more than 200 camping sites. The English Court of Appeal held that the use of the right of way for such a large number of camping sites was impermissible, partly because such use was not authorised as a matter of construction of the grant, and partly because the use was excessive and therefore an actionable nuisance even if literally within the terms of the grant. On the question of construction, Lord Denning MR said (at 595) that the right of way could not be used to an extent that was "beyond anything which was contemplated at the time of the grant". But as Hodgson JA pointed out in Perpetual Trustee (at [43]), his Lordship's subsequent discussion was directed to the interpretation of the grant in the light of the objective circumstances. 44 In White, a private residence on the dominant tenement was converted into a lodging house for the drivers of cars whose owners stayed at a nearby hotel. At the time of the grant, the dominant tenement had a single resident with two vehicles, but after the conversion there were "many residents of a shifting character with vehicles that [did] not belong to them". The English Court of Appeal held that the different use was within the terms of the grant, as the dwelling house could be converted from a private dwelling house to a house used for the purposes of trade with the consent of a third person. 45 McHugh J in Gallagher (at 642) said it was not easy to reconcile White with the principle that an easement cannot be used for a purpose that was not contemplated by the parties to the grant, suggesting that on the facts the parties may have contemplated the altered use. But in Perpetual Trustee Hodgson JA said that White was consistent with other cases and he added (at [42]): "in my opinion the other cases referred to by McHugh J support a proposition somewhat narrower than the proposition asserted by him, limiting the use of an easement to that contemplated by the parties at the time of the grant." 46 In the present case counsel for both parties treated the quoted statement as indicating that according to Hodgson JA, an easement is limited to the use contemplated by the parties at the time of the grant. As I read the judgment in Perpetual Trustee, that is decidedly not Hodgson JA's view. That is the view he attributed to McHugh J. Hodgson JA criticised the misleading associations of that view and insisted that the court's task is to construe the easement to determine the intention of the parties as manifested by the grant, having regard to admissible surrounding circumstances. 47 The second group of cases in which judges have spoken about the contemplation or intention of the parties is a group of cases dealing with whether the owner of the dominant tenement can use the right of way to gain access to other land owned or acquired by him or her. That was the issue in the Perpetual Trustee case itself. A right of way had been granted across Glasshouse for the benefit of Skygarden, which adjoined Centrepoint and Imperial Arcade. Subsequently Perpetual Trustee acquired Glasshouse and Westfield acquired Skygarden, Centrepoint and Imperial Arcade. Westfield wished to use the right of way over Glasshouse for access through Skygarden to Centrepoint and Imperial Arcade. The Court of Appeal, overturning the trial judge, found that the grant on its true construction did not permit the owner of the dominant tenement, Skygarden, to authorise the use of the right of way for access to Centrepoint and Imperial Arcade. 48 In Harris v Flower (1904) 74 LJ Ch 127 at 132, Romer LJ appeared to state an absolute rule to the effect that if a right of way is granted for the enjoyment of Lot A and the grantee owns or acquires Lot B, the grantee cannot use the right of way for passing over Lot A to Lot B. An exception to that "rule" has been recognised where Lot A is a means of access to Lot B at the time of the grant. Hodgson JA treated Harris v Flower as an example of the correct approach to construction of the grant (influenced also by the principle that the user authorised by an easement must be for the benefit of the dominant tenement), rather than as a statement of an inflexible rule (at [45]). 49 Another exception was given by Megarry V-C in Nickerson v Barraclough [1980] Ch 325 at 336. Suppose that Lot A is a narrow footpath running from Lot X (the other side of which is a public road) to Lot B. The owner of Lot X grants a right of way over Lot X to the owner of Lot A (who also owns or later acquires Lot B) for the benefit of Lot A. According to Megarry V-C, the grant would be construed as authorising the dominant owner to use the right of way as a means of access to Lot B, since Lot A is a footpath which constitutes a means of access to Lot B. His Lordship said the same result would flow if Lot A were not used as an actual means of access to Lot B but as between the parties to the transaction it was intended to be used in that way. In Perpetual Trustee, the trial judge treated Megarry V-C's example as depending upon a finding that the contemplated use of the right of way was to permit access to Lot B, but Hodgson JA said that was wrong, if it meant that the contemplated use could be proved by evidence other than the evidence available for construction of the grant itself (at [46]). 50 Hodgson JA's judgment also sheds light on the relevance, to the question of construction, of the "purpose" for which the easement is to be used. According to his Honour's reasoning (at [36]), it is appropriate for the court to consider the purpose of the grant, by making inferences from the words of the grant and the circumstances to which regard may be had in construing the grant, but not by receiving evidence concerning the parties' purpose. It is not correct to say, as a universal rule, that the grantee has no right to use the easement for any new or additional purpose of the dominant tenement; that proposition is correct only to the extent that the new use is unauthorised as a matter of construction of the grant (at [37]-[39], citing United Land Company v Great Eastern Railway Company (1875) 10 Ch App 586 at 590 per Mellish LJ). It may be that the instrument, expressly or by implication, grants a general right of way for all purposes, and if that is so, the instrument authorises use beyond that which prevailed at the time of the grant (at [40]). 51 In the present case it is necessary to construe the right of way having regard to the language of the instrument and by reference to the surrounding circumstances at the time of the grant. There has been no attempt to tender evidence of what the grantor and grantee contemplated or of their purpose in making the grant, but in any case the subjective purpose or contemplation of the parties are not matters to be addressed, except to the extent that they are reflected in the terms of the grant and the admissible surrounding circumstances. 52 One of the issues that has been raised for consideration is whether the right of way authorises use of the passageway for access between Coles Parade and property belonging to Autor other than the dominant tenement. That raises for consideration such cases as Harris v Flower and Nickerson v Barraclough, as interpreted by Hodgson JA in Perpetual Trustee. Transposing the examples given by Romer LJ and Megarry V-C, Lots 76 and 77 (the dominant tenement) correspond with Lot A, the other land owned by Autor (Lots 29, 30 and 75) correspond with Lot B, and Lot 78 (the servient tenement) corresponds with Lot X. Those cases point to the conclusion that use of Lot X to pass to or from Lot B over Lot A is a nuisance actionable by the servient owner, unless Lot A is a means of access to Lot B at the time of the grant or it appears from the terms of the grant and the admissible surrounding circumstances that such access was or would be available. 53 In the present case there are some indications that the passageway was already being used for some purposes prior to the grant of the right of way, and it would hardly be surprisingly if the passageway were being used at that time for access to and from the beach. But there is just not enough evidence before me in the present proceeding to justify a finding there was access to and from Barrenjoey Rd and the beach between the passageway and points behind Lots 76 and 77. There is also the complicating factor produced by the consolidation of Lots 30, 76 and 77 (but not Lots 29 and 75). I think the appropriate finding in the present case is that there is a substantial degree of probability that the plaintiffs would be entitled, in appropriately constituted proceedings, to prevent Autor from allowing the passageway to be used for access between Coles Parade and properties other than Lots 76 and 77. 54 Since I shall use the expression "a substantial degree of probability" again in these reasons for judgment, I should explain that by "substantial" I mean "not insignificant or insubstantial", and I use the word "probability" in the mathematical sense, rather than to indicate "more likely than not".

Permitted use by owner of servient tenement 55 A right of way gives the dominant owner certain rights over land belonging to the servient owner. The grant of the right of way only permits the dominant owner the reasonable use and enjoyment of the ascertained way: Clifford v Hoare (1874) LR 9 CP 362 at 370 and 372; Pettey v Parsons [1914] 2 Ch 653; Saggers v Brown (1981) 2 BPR 9329 at 9331 per Rath J; Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204; Denton v Phillpot (1990) NSW Conv R para 55-543 at 59,026 per Young J. And so, where a right of way affords access to the dominant tenement along the whole or a substantial part of the boundary between the dominant tenement and the servient tenement, the grant does not give the dominant owner the right to gain unlimited access to the dominant tenement from every point along the boundary, unless the terms of the grant so provide expressly or by implication arising from the circumstances at the time it was made: Natva Developments Pty Ltd v McDonald Bros Pty Ltd (2004) 12 BPR 22,287 at [66] per Palmer J. 56 The dominant owner is entitled to legal remedies for disturbance of his reasonable use and enjoyment of the easement by an action for nuisance: Paine & Co Ltd v St Neot's Gas & Coke Co [1939] 3 All ER 812, at 823 per Luxmore LJ. 57 Subject to the rights of the dominant owner, the servient owner has dominion over the land: "The dominant owner has only such rights as are to be found expressly or by necessary implication in the terms of the grant. The servient owner has all the rights of an owner except those which are inconsistent with the exercise by the dominant owner of the rights expressly or by necessary implication conferred on him by the terms of the grant" ( Zenere v Leate (1980) 1 BPR 9300 at 9304 per McLelland J; see also Natva Developments Pty Ltd v McDonald Bros Pty Ltd (2004) 12 BPR 22,287 at [66] per Palmer J). 58 Within limits, the servient owner's rights include the right to place obstructions in the way of the dominant owner. In Finlayson v Campbell (1997) 8 BPR 15,703 at 15,709-15,710, Young J said, citing English authority: "the owner of the right of way cannot insist on having the whole parcel of land over which the way exists kept absolutely free from obstruction. The owner of the soil is entitled to maintain an obstruction, provided it does not amount to a substantial interference with the right of way." Similarly, in Butler v Muddle (1995) 6 BPR 13984 at 13986, the same judge said "it cannot be reasonable for [the dominant owner] to appropriate the [servient owner's] land and use it without the [servient owner's] consent as if it were their own." 59 As to the meaning of "substantial" interference with the exercise of the rights of the dominant owner, McPherson J said in Ex parte Purcell (1982) 47 LGRA 433 at 439: "the question in a case such as this is not simply whether the interference is 'substantial', if that expression is used simply to denote an extensive interference. It is whether it is 'material', and it is material if the consequences of the interference are likely to be extensive, even though the interference itself may be slight and the occasions of its occurrence infrequent." Thus, although a County Council which has an easement for power lines might need access to fix the power lines only infrequently, the installation of swimming pools and other obstructions under the power lines constitutes a substantial interference: Prospect County Council v Cross (1990) 21 NSWLR 601. 60 These principles have been applied for the purpose of deciding whether the servient owner may install lockable gates over, and park vehicles on, the site of a right of way. 61 As to gates, the general principle is that "it is not unreasonable that the person entitled to use the way should be subjected to the slight inconvenience which the maintenance of protective gates imposes upon his user" (Siple v Blow (1904) 8 OLR 547 at 554 per Moss CJ), although each case depends on its own facts (Flynn v Harte (1913) IR 322 at 327 per Dodd J). In Denton v Phillpot (1990) NSW Conv R para 55-543, after reviewing these and several other cases, Young J said (at 59,030): "… the cases show that ordinarily if there is a good reason for having a gate, such as the reasonable interests of security, and the dominant owner is given a key to the gate, then courts have not been over-anxious to find that there has been a substantial interference." 62 In Denton's case Young J reached the conclusion that the installation of gates by the servient owners was not a substantial interference with a right of way appurtenant to residential property, on the ground that it was reasonable to install gates to provide security and they had not been installed out of cussedness or spite, and the evidence did not establish that the location of the gates caused any substantial inconvenience to the dominant owner. 63 Here, there are no gates on the passageway and no specific proposal to install them. Mr Markos has given some quite general evidence that the plaintiffs intend to construct a lockable gate where the passageway joins Coles Parade (affidavit made on 10 March 2005, para 13) but his intentions seem to be quite vague (T 26-7, 51-52; see also the evidence of Mr Countouris in his affidavit made on 8 March 2006, para 32). The question whether the installation of gates would be permissible has not been argued by reference to any concrete circumstances. If a particular proposal were to be advanced, a question may arise as to whether the plaintiffs were estopped from proceeding by virtue of acquiescence over many years to a manner and level of use of the passageway that is incompatible with gates of any kind. According to the authorities, the question whether the installation of gates by the plaintiffs would constitute a nuisance actionable by Autor would depend on such matters as the nature of present and potential use of the passageway in non-residential circumstances, whether there was a reason for the installation, where the gates would be located, and how much interference they would cause, matters that cannot be addressed in the absence of a specific proposal. 64 However, on the limited evidence before me now, it seems to me that there is a substantial degree of probability that the installation of gates would be permissible. The passageway belongs to the plaintiffs and they are entitled to use it as they see fit, subject to Autor's rights. At the present time, the passageway is bounded by a brick wall and a gate on the plaintiffs' side, a brick wall on the other side, and a wire fence at the back, and it is open to Coles Parade. There is already graffiti on the plaintiffs' wall. The rear of the shops on Lot 78 is protected by a gate but there is nothing to stop vehicles parking on the passageway and thereby obstructing access to the rear of the shops by the plaintiffs and their tenants. In the circumstances there is a risk of damage to the plaintiffs' property from further defacement of the wall or other acts of vandalism (see Mr Markos' evidence, T 51-2), and of interference with the plaintiffs' and their tenants' use of the plaintiffs' property for access to parts of Lot 78. Those matters suggest that the installation of lockable gates (rather than, say, bollards (T 68-71) or a gate on a latch (T 83)) prior to the construction of Autor's building would be reasonable and not a matter of mere cussedness or spite. It may well not have been permissible to install gates while the supermarket was operating and there was a regular flow of traffic from the car park across the passageway into Coles Parade, but the situation is different now. 65 If it is reasonable to install gates while Autor's land is vacant, would the presence of gates become an actionable nuisance if the passageway comes to be used for fire egress from the new building? Again, my view is that there is a substantial degree of probability that if the installation of gates did not constitute an actionable nuisance when they were installed, the changed user of the dominant tenant would not cause those gates to become a nuisance, even though the changed user had been foreshadowed before the installation. The considerations making it arguably reasonable for the servient owners to have gates would not, as far as I can see, be substantially changed by the erection of Autor's building. 66 My conclusion is that there is a substantial degree of probability that lockable gates may lawfully be installed across the passageway, with a key given to Autor, in circumstances where Autor could not lawfully prevent the installation of the gates or require them to be removed. 67 The parking of vehicles on the passageway by or with the authority of the plaintiffs is governed by the same principles. The servient owners are entitled to use their land as they wish, subject to the dominant owners' right to restrain substantial interference with their rights. In Denton's case, Young J said (at 59,032) that if the evidence showed that obstructions by parked vehicles were occurring with sufficient regularity, the dominant owners would be entitled to some relief, but occasional parking would not constitute a substantial interference with the dominant owners' rights even though a parked vehicle would prevent the dominant owners from using the right of way for vehicular access to their garage. His Honour evidently assumed that there was a valid reason for the servient owners to park vehicles on the site of the right of way, and that they were not doing so out of mere cussedness or spite. 68 Here there is a valid reason for the plaintiffs and their tenants to park on the passageway from time to time, namely to have access to the rear of the shops in Lot 78 for making and receiving deliveries, even though the evidence indicates that most deliveries are made through the front doors of the shops. Moreover, it appears from the evidence of the experts that the passageway is wide enough for one vehicle to pass by another, although it is not quite wide enough to satisfy the Australian Standard with respect to parking lots (see Dr Hutcheson's first report, and Mr Lilli's first report referring to Australian Standard AES 2890.1, para 2.4.1, according to which the minimum width of two parking spaces would be 4.6 m whereas the passageway is 4.57 m wide). My conclusion is that there is a substantial degree of probability that from time to time the passageway will be partially obstructed by vehicles (including delivery vehicles) parked there by or with the authority of the plaintiffs, in circumstances where Autor could not lawfully prevent such parking from occurring.

The proper construction of the right of way in the present case 69 Here the right of way is simply and briefly expressed. It is a right "to pass and repass with and without vehicles over" the passageway as identified in the annexed plan. There is no additional reference to the purpose of the right of way and the instrument does not confer the right "for all purposes". The words "pass" and "repass" are commonly used in grants of right of way, and they have been held to denote moving from the terminus a quo to the terminus ad quem, or in the other direction. They do not entitle the dominant owner to be stationary on the site of the right of way, or to park vehicles there for any greater time than is necessary to load and unload them: Harrison v Duke of Rutland [1893] 1 QB 142 at 158 per Kaye LJ; Bulstrode v Lambert [1953] 1 WLR 1064 at 1071 per Upjohn J. Read literally, the terms of the grant encompass passing out of the dominant tenement, with or without vehicles, in order to escape a fire. 70 There is no disagreement between the parties concerning the surrounding circumstances that are relevant to and admissible in respect of the question of construction. Both parties submitted, as I have found, that at the time of the grant the dominant and servient tenements were used or intended (by reference to the objective circumstances) to be used wholly or partly for retail uses. That seems to me to reinforce the literal construction of the words, with respect to use of the right of way to escape a fire: that is, at the time of its creation the right of way was available to be used to escape the dominant tenement in the event of fire. To that extent I agree with the submissions made by counsel for the defendants. 71 However, to say that use of the passageway to escape a fire in the dominant tenement is an authorised use under the terms of the right of way is not to say that the right of way authorises use of the passageway as an allocated fire egress from the building development proposed on the dominant tenement. Here I agree with the submissions made by counsel for the plaintiffs. I disagree with the submission by counsel for the defendants that using the passageway for fire egress is merely a continuation in more regulated circumstances of the use for escaping fire that was permitted by the terms of the grant. 72 The starting point is that the right of way gives Autor substantially less than ownership of the passageway; indeed, the law recognises the plaintiffs as the owners of that property, subject to Autor's rights. In the present context, there are three aspects of the plaintiffs' ownership that are particularly significant, according to my findings. They are the substantial degree of probability that the plaintiffs may: · restrain Autor from allowing the passageway to be used as a means of access between Coles Parade and properties of Autor other than Lots 76 and 77; · install lockable gates across the passageway and provide a key to Autor; and · park vehicles from time to time on the passageway for deliveries to the shops in Lots 78 or for other reasonable purposes. 73 Compare the nature of the right of way, reflected in these rights of the plaintiffs, with what would be required for a fire egress route. What is proposed by Autor in its approved plans is not merely occasional use of the passageway by occupants of the new building in the event of fire and on other emergencies, but the establishment of a fire exit to the passageway for the purpose of meeting the Council's requirements for development consent. The Council's development consent, given by its Environment and Planning Committee on 19 July 2004, was conditional upon a large number of conditions including: · condition A1, which required compliance with the requirements of the BCA; · condition B10, which required that three sets of detailed working drawings complying with the BCA and the conditions of the development consent be submitted prior to the release of the Construction Certificate, and said that "the details shall demonstrate that egress from the building in the event of a fire is in accordance with the Building Code of Australia, whether or not that solution proposes the use of the right of way…"; · condition B37, which required submission of a schedule of essential fire safety measures, certified to comply with the BCA. Those conditions remained when, on 1 August 2005, the Council consented to modifications to the development application to permit a single large supermarket rather than several retail shops. They were continued when a further modification was approved with respect to the height of some other floors, on 15 June 2006 (Ex D4.35). 74 Therefore what Autor proposes, as it must under the terms of the Council's development consent, is fire egress complying with the BCA. The proposal is not merely that there will be doors opening out onto the passageway from which people escaping a fire can run on to Coles Parade. It is a proposal for a fire egress that is properly established in compliance with the BCA. 75 The court heard evidence from the experts in building certification called by the parties (Dr Hutcheson for the plaintiffs and Mr Lilli for the defendants) about the "deemed-to-satisfy" requirements with respect to fire egress contained in Section D of the BCA. The expert witnesses disagreed as to the meaning and application of certain of those provisions, in particular para D1.7 and D1.10, and also some definitions used in the BCA, especially the definitions of "exit", "open space" and "fire-isolated passageway". Broadly speaking, Dr Hutcheson took the view that the BCA would not be satisfied unless a "fire-isolated passageway" were constructed along the length of the passageway to which the right of way applies, whereas Mr Lilli took a more restricted view of the meaning of the deemed-to-satisfy provisions and on that basis he expressed the opinion that the approved plans satisfied those requirements without any adjustment to the passageway. 76 I do not need to adjudicate on the conflicting expert evidence as to the deemed-to-satisfy provisions. Although various courts have from time to time construed provisions of the BCA, even disagreeing with expert evidence as to their meaning and application (for example, Todbern v Hurstville City Council [2001] NSWLEC 145; Toomey v Scolaro's Concrete Constructions Pty Ltd (No 2) [2000] VSC 279; Posetti v Kosciuszko Thredbo Pty Ltd [2007] ACTSC 4), it seems to me desirable for this Court when hearing an easement case to avoid, if practicable, judicial pronouncements about provisions that are the subject of skills and expertise in building construction and not in the law, and are consulted and applied on a daily basis by people who have those skills and expertise but are not lawyers. 77 For present purposes, it is sufficient to take into account that there is bona fide disagreement between experts as to whether Autor's approved plans fall within the deemed-to-satisfy requirements. But whether Dr Hutcheson or Mr Lilli is right, it is plain that the objectives, performance requirements and deemed-to-satisfy provisions of the BCA reflect an overarching concern that buildings be constructed with a means of egress that ensures safe evacuation of the occupants of the building in the event of fire (see paras DO1, DP4, D1.7 and D1.10). In that regard, I accept Dr Hutcheson's evidence that compliance with the BCA requires "certainty of egress". 78 In my view, the terms of the development consent and the contents of the BCA, explained by expert evidence given on behalf of both parties, show that use of the passageway for fire egress is a type of usage that is categorically different from use of the passageway as a right of way. For the passageway (or any part of it) to be used as fire egress complying with the BCA, the plaintiffs would need to give up or agree not to exercise their right to park vehicles there from time to time, and their right to install gates across the passageway for good reasons. Furthermore, they would have to give up or agree not to exercise their right to complain if the passageway or that part of dedicated for fire egress were to be used by people coming across the dominant tenement, to the point of egress, from other properties. 79 I say that the plaintiffs would have to give up or agree not to exercise these rights, even though my finding is only that there is a substantial degree of probability that the rights might be available. This is because fire egress satisfying the BCA can be established only if certainty of egress ensuring safe evacuation is delivered. It is not enough, as I understand the BCA and the evidence, that the plaintiffs have not yet sought to exercise their rights or given any firm indication that they will do so.

Conclusion on the question of construction 80 My conclusion, therefore, is that the right of way does not authorise Autor to use the passageway for the purpose of fire egress from its proposed building in a manner complying with the BCA. That is what Autor proposes to do in its approved plans. The approved plans are evidence of an imminent threat by Autor to use the passageway in that fashion without the plaintiffs' authority as servient owners, and consequently to trespass on the plaintiffs' land. A threatened trespass to land may be restrained by injunction: Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee of Australia Ltd (1988) 4 BPR 9534, at 9542 per Powell J. 81 There are no discretionary factors that would prevent the plaintiffs from obtaining a final injunction to restrain the threatened trespass. On the contrary, discretionary considerations point to the granting of an injunction. Having reached the conclusion that the terms of the right of way do not authorise use of the passageway for fire egress in the manner proposed in the approved plans, I think it is important to make orders reflecting that adjudication so that the parties know where they stand. The erection by the dominant owner of a building to be used contrary to the servient owner's rights would formalise potential trespasses in the event of fire egress, and on the basis of the defendants' evidence it would lead to regular or even daily trespasses by residents and users of the car park including those who come into the passageway from land other than the dominant tenement. The threat of continuing or repeated trespasses of those kinds, into the indefinite future, points to the conclusion that damages would not be an adequate remedy to cure Autor's wrongdoing (see, for example, the Mercantile General case at 9542 per Powell J). The plaintiffs' application to extinguish the right of way 82 Section 89(1) of the Conveyancing Act 1919 (NSW) provides as follows (to the extent relevant to this case): "Where land is subject to an easement … , the Court may from time to time, on application of any person interested in the land, by order modify or wholly or partially extinguish the easement, … upon being satisfied: (a) 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 of the case which the Court may deem material, the easement … ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, … without securing practical benefit to the persons entitled to the easement … or would, unless modified, so impede such user, or (b) … (b1) … (c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement …".

Should the right of way be deemed obsolete under s 89(1)(a)? 83 Counsel for the plaintiffs submitted that the right of way ought to be deemed obsolete, and should therefore be extinguished under s 89(1)(a), by reason of each of the three grounds set out in that provision. 84 As to the question of change in the user of the land having the benefit of the right of way (that is, the former Lots 76 and 77 now part of Lot 1), it appears to me that if the proposed building is erected on Autor's land as planned, there may well be a change of user of that land. At the time of creation of the right of way Lots 76 and 77 were used, or were intended to be used, wholly or partly for retail purposes, whereas if the building is erected those lots and other property belonging to Autor will be used for a major commercial and residential development including a much larger supermarket and retail units and car parking. But in my opinion no change in the user of the land having the benefit of the right of way has occurred yet, and therefore it would be premature to deem the right of way to be obsolete on this ground. 85 Counsel for the plaintiffs submitted that the evidence establishes that the approved development will proceed to completion. If that were the case, it may be permissible for the court to assume that the construction of the building has occurred, for the purpose of assessing whether there has been a change of user. That appears to have been the approach taken in Denham Pty Ltd v Sidoti (unreported, Waddell CJ in Eq, Supreme Court of New South Wales, 2 August 1989; BC8901890). In that case the court considered that there had been a change of circumstances because development approval had been given to a project that would lead to the construction of a hotel on land including land having the benefit of the right of way. This was found to be so even though the hotel had not yet been constructed. 86 The court's reasoning in Denham (BC8901890 at 9) clearly assumed that the building construction would go ahead and the report does not indicate that there was any evidence to suggest otherwise. Here there are evidentiary grounds for believing that the proposed building will have to be redesigned, because what is proposed is inconsistent with the right of way. It would therefore be a mistake to proceed on the basis that the proposed building will be constructed. 87 The evidence shows that a Construction Certificate has been issued, and consequently there appears to be no obstacle to Autor proceeding with the building project provided that those conditions of the Council's development consent that remain applicable are complied with. But, for the reasons I have expressed, the plaintiffs have made out an entitlement to an injunction restraining Autor from using the passageway for the purpose of a fire egress complying with the BCA. In an e-mail dated 19 July 2004 Ross Fleming, the defendants' town planner, said the deletion of the fire egress to the passageway would effectively require redesign of the project (Ex D1.G). No evidence has been led to suggest that the issue of the Construction Certificate, or any other subsequent event, has made Mr Fleming's observation no longer applicable. Therefore I infer that the grant of such an injunction to the plaintiffs will have the practical effect of preventing Autor from proceeding with construction in accordance with the approved plans. Consequently it would be a mistake to treat the development as having occurred, for the purpose of assessing whether, under s 89(1)(a), there has been a change of user of the dominant tenement. 88 As to the question of change in the character of the neighbourhood, decided cases indicate that the neighbourhood can be a particular area surrounding the property that is subject to the easement, possibly even an area as small as a street or a street block. In Alliance Economic Investment Co Ltd v Berton (1923) 92 LJ KB 750 Bankes LJ, speaking of the comparable UK provisions, said (at 723-3): "I pass now to consider what is indicated by the expression 'neighbourhood'. In this connection it is impossible to lay down any general rule. In country districts people are said to be neighbours, that is, to live in the same neighbourhood, who live many miles apart. The same cannot be said of dwellers in a town where a single street, or a single square, may constitute a neighbourhood within the meaning of the section." Counsel for the plaintiffs submitted that in the present case the neighbourhood is the immediately surrounding area of the dominant and servient tenements, including the dominant and servient tenements themselves. I agree. In addition to the dominant and servient tenements, it is relevant to take into account the character of the properties on Barrenjoey Rd Road adjacent to those properties, the properties along both sides of Coles Parade up to Foamcrest Avenue, and the properties along Foamcrest Avenue immediately behind and next to Autor's land. 89 The evidence shows that when the right of way was created in 1956 the immediate neighbourhood of the dominant and servient tenements included retail shops. There is evidence that at later times (during the 1970s) there were shops along Barrenjoey Rd and Coles Parade and dwellings on other land between Barrenjoey Rd and Foamcrest Avenue, some or all of which structures may have existed in 1956. I have already noted the evidence that in recent times three-storey and duplex residential developments have been built on Coles Parade opposite the plaintiffs' land, and on Foamcrest Avenue, and generally the area surrounding the plaintiffs' land is "commercial shopfront and residential" and "shop top" buildings. It appears that the development of the neighbourhood is now more dense than it was in 1956, but I am not persuaded by the evidence that there has been any change in the character of the neighbourhood. It was retail and residential in 1956, and it still is. In my opinion the court's assessment of the character of the neighbourhood would not be altered by taking into account the proposed building, given that it is a retail and residential development. 90 As to the question whether there are "other circumstances of the case which the Court may deem material", it has been held that the statutory words allow the court to take into account "the widest field of evidentiary material": RK Roseblade & VM Roseblade and the Conveyancing Act (1964-5) NSWR 2044 at 2046. 91 Counsel for the plaintiffs submitted that the court should find that the passageway cannot be used as a fire escape route and that the design of the development on Autor's land is such that if it proceeds, the right of way can only be used as an access way from the fire escape. These, it was said, are "other circumstances of the case" that would justify deeming the right of way to be obsolete. 92 In my opinion if the construction of the building were to proceed, the passageway would be used not only for fire egress but also, from time to time, for egress for general purposes. I accept the evidence given on behalf of the defendants to the effect that people coming down the stairway from the residential units, and people coming up the stairway from the car park, would be able to come out of the fire doors at the end of those staircases and onto the passageway for the purposes of general egress and not merely egress in the event of fire; whereas the fire door from the supermarket level would only be available for use in an emergency. If the fire doors from the residential units and the car park were not interfered with they would close after someone had used them for egress out of the building, and as I understand the evidence, it would not be possible for pedestrians to open them from the outside. Consequently ingress from the passageway into the building would not be feasible unless the closing of the doors were to be interfered with. 93 While I have held that upon the proper construction of the right of way, it does not permit the owner of the dominant tenement to use the passageway to provide a means a fire egress from the proposed building satisfying the requirements of the BCA, that finding does not constitute "other circumstances" of a kind that would warrant the extinguishment of the right of way. It is simply a finding having the effect that the proposal for fire egress contained in the approved plans cannot proceed, not that the right of way can no longer be used for any useful purpose. Indeed, it is conceivable that this finding may lead to Autor devising new plans for the development of the dominant tenement that would make use of the passageway as a right of way in accordance with the terms of the grant. 94 The plaintiffs relied on Denham Pty Ltd v Sidoti (cited above). In that case there was a right of way commencing part way along the rear boundary of No 5 Gilbert St and running along the rear boundaries of Nos 7 and 9 Gilbert St to Eustace St. The plaintiff acquired all of the land in the street block including the servient tenement and No 5 Gilbert St. For the purposes of carrying out its development plans, it wished to establish that the owners of No 7 and No 9 had no interest in that part of the site of the right of way that was at the rear of No 5 Gilbert St, an area less than one metre wide and about 5 m long (described by Weddell J as a "tongue of land" extending into property that had become wholly owned by the plaintiff). It will be noted that the tongue of land was at the beginning of the right of way and was not needed by the owners of No 7 and 9 for access to and from Eustace St. In its terms, the right of way authorised the owners of No 7 and 9 to pass and repass from their properties to the back of No 5, to go on to No 5 if they were lawfully entitled to do so (as they would be, if invited onto the land by its owner). 95 The owner of No 9 released any interest it might have had in the tongue of land, but the owners of No 7, the defendants, maintained that they were entitled to use the tongue of land in accordance with the terms of the grant. After rejecting submissions that the defendants were entitled to place ladders on the tongue of land or use it for children to play or to exercise dogs, Waddell CJ in Eq said (BC8901890 at 8): "The only legitimate use which the defendants are entitled to make of [the tongue of land] is to go on to the land of the plaintiff on any occasion on which they have its consent to do so. This being so, it is difficult to see how the right which the defendants claim can be maintained contrary to the wishes of the plaintiff as evidenced by the making of this application. Further, extinguishment of the defendants' right to use this part of the passageway for this purpose can hardly be said to cause any substantial injury to them. In these circumstances it seems to me that the plaintiff has made out the ground of extinguishment provided by s 89(1)(c) …". 96 The plaintiffs submitted that Denham's case has distinct similarities with the present case, but I disagree. In Denham's case the only legitimate use the defendants could make of the tongue of land was to pass on to the plaintiff's land, a use which would require the plaintiff's consent. Here Autor is entitled as dominant owner to pass and repass along the passageway. It is unlikely to exercise its rights for the time being because its land is vacant land and there is a wire fence across the end of the right of way, but it may wish to use the right of way in future, depending upon whether it changes the current approved plans in light of the outcome in the present proceeding. 97 I have therefore concluded that none of the pre-requisites for deeming the right of way to the obsolete, and consequently extinguishing it under s 89(1)(a), has been established. 98 It may well be that if the building is erected without any change to the fire egress arrangements (contrary to what is likely, according to the evidence of Mr Fleming), there will be a strong case for the plaintiffs to claim that the right of way has become obsolete. The use of Autor's land for the purposes of a large supermarket, residential units and car park may well amount to a change in the user of land having the benefit of the easement. It will not be permissible for the defendants to use the passageway as a means of fire egress in accordance with the BCA, in light of my findings, or to authorise anyone else to do so. The use of the passageway by residents and users of the car park for egress to Coles Parade may not be sufficiently substantial to support an argument that the continuation of the right of way serves no present useful purpose (see In re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261 at 272 per Romer LJ; Re Mason and The Conveyancing Act (1960) 78 WN (NSW) 925 at 764 per Jacobs J; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 at 18,100 per Mason P; and my judgment in Long v Michie [2003] NSWSC 233 at [27]). But it would be premature at this stage to anticipate that the building will be constructed in accordance with the present approved plans and consequently to determine that the right of way is already obsolete.

Should the right of way be extinguished or modified on the alternative ground in s 89(1)(a)? 99 The alternative ground for extinguishing or modifying an easement under s 89(1)(a) is that the continued existence of the easement would impede (or would impede, unless modified) the reasonable user of the servient tenement, without securing practical benefit to the persons entitled to the easement. Case law on this requirement is usefully summarised by Young CJ in Eq in Castagna v Great Wall Resources Pty Ltd [2005] 12 BPR 23,363, at [42] [43]. 100 In my opinion this ground is inapplicable, because the evidence does not show that the continued existence of the right of way, if used in accordance with the terms of the grant, would in any way impede reasonable user of the plaintiffs' land. The plaintiffs' land contains shops which do not encroach upon the passageway that is subject to the right of way, and the tenants of some of those shops from time to time use the passageway for deliveries to the rear area. I see nothing in the evidence to suggest that continuation of the right of way impedes the plaintiffs' reasonable user. There is some evidence, of course, as to what would happen to the plaintiffs' prospect of developing their land if part of the passageway were to become a means of fire egress satisfying the BCA. But that is not the issue raised by the wording of s 89(1)(a). The issue under the statutory wording relates to the continued existence of the easement, as it now is. 101 Even if the plaintiffs were able to show that continued existence of the right of way would impede their reasonable user of Lot 78, they would not be able to establish the other part of this ground, namely that the continued existence of the right of way would not secure practical benefit to Autor. Autor may well wish to rely on the right of way, in accordance with its proper scope, if it chooses to modify its development plans. Modification of the right of way under s 89(1)(c) 102 During the course of his final submissions, counsel for the plaintiffs raised the question whether the right of way might be modified under s 89(1)(c). When I expressed some interest in a modification that would alter the terms of the right of way to make it is clearly a right of way for fire egress, but over only a part of the passageway, on the basis that the remainder of the passageway would be released to the plaintiffs in fee simple, counsel for the plaintiffs sought a brief adjournment to obtain instructions. When the hearing resumed he informed me (T 152) that his instructions were to submit that the right of way could be modified so as to reduce the width of the passageway, without altering the terms of the right of way by making it into a right of fire egress. After further discussion, in which counsel for the plaintiffs submitted that the parties would need access to planning advice on any proposal for modification of the right of way (T 155), I made consent orders for mediation. 103 Mediation having been unsuccessful, the hearing resumed and the defendants adduced additional evidence from Mr Lilli, their expert building certifier, in a report dated 25 June 2007. 104 Mr Lilli said that the unobstructed clear width of a fire escape path of travel from the defendants' land to Coles Parade over the passageway would be 1 m. It appears from his report that an extra 0.5 m would need to be allowed in order to ensure unobstructed clear width of 1 m. Substantially the same question was addressed by Dr Hutcheson in response to an earlier report by Mr Lilli. Dr Hutcheson said (page 13 of his second report) that under para D1.10 and para D1.6 of the BCA the width of the passage would depend on the number of persons using it. But Mr Lilli firmly reiterated his opinion and was not challenged in cross-examination. I accept Mr Lilli's evidence. 105 Mr Lilli also said in his report that, although he believed the plaintiffs were not legally entitled to use the airspace over the right of way for development purposes, if that were to occur, the defendants would require an unobstructed clear width of 3 m for the fire escape path from the development to Coles Parade, and in order to provide an unobstructed clear width of 3 m a total width of 3.5 m would be needed. Mr Lilli's evidence that 3.5 m would be needed was not challenged and I accept it. 106 Counsel for the plaintiffs submitted that in light of Mr Lilli's evidence, if it was not prepared to extinguish the right of way, the court should modify it under s 89(1)(c) by narrowing the width of the passageway to 1 m or 1.5 m and releasing the remainder of the present passageway to the absolute ownership of the plaintiffs. He opposed any modification of the permitted user so as to authorise fire egress in express terms, on the ground that the court has no power to make such a modification. Counsel for the defendants submitted that it would be consistent with Mr Lilli's evidence for the court to modify the right of way by narrowing the width of the passageway, and that it was not necessary to alter the uses to which the passageway could be put because the grant on its proper construction permitted the use for fire egress that Autor proposed. 107 I have rejected the defendants' contentions on the construction of the terms of the grant. As I understand the position of counsel for the defendants, if I were to reach that decision on the matter of construction he would invite me to consider modifying the right of way so as to make it clear that the proposed use for fire egress is permitted. In any event, that is a prospect that I raised, of my own motion, during the trial. I regard it as necessary to consider whether I can and should do so. 108 The case law dealing with the construction of s 89(1)(c) was usefully set out by Campbell J in Tujilo v Watts (2005) 12 BPR 23,257 at [36]-[40]. It is not necessary to traverse that territory here, having regard to the view I take as to the court's power. Here the question to be considered is whether s 89(1)(c) allows the court to modify an easement by changing the permitted use in a manner which increases the burden on the servient tenement (and so, to convert a right of way into an easement for fire egress). 109 In Hoy v ALL ERton [2001] QSC 440 at [29] Atkinson J expressed the opinion that the word "modify" has as its primary meaning to "limit or restrain", and consequently the court's power to modify an easement is a power to limit or restrain rights given under the easement, rather than to expand or replace them. Atkinson J did not cite any authority for this view. 110 The Macquarie Dictionary gives as the first meaning of the word "modify" "to change somewhat the formal qualities of; alter somewhat". The Concise Oxford English Dictionary gives as the first meaning of the word "modify" "to limit, restrict or make less". The latter definition was relied upon by counsel in Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420, 424, to support a submission that this is the "primary ordinary meaning" of the word. Holland J noted that the same dictionary offered some subsidiary meanings, including the meaning of making partial changes in, or altering, without radical transformation. He found it unnecessary to decide which meaning of the word was to be preferred. 111 Like its smaller sister, the Oxford English Dictionary (2nd edition, 1989) gives as the first meaning of "modify" "to limit, restrain, keep within bounds and measure", but (unlike the Concise Oxford) it identifies this meaning as obsolete. Apart from technical usages (such as in philosophy or grammar), the principal modern meaning is "to make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation". The New Shorter Oxford English Dictionary (1993) likewise gives, as a meaning of the word "modify", "limit, restrain; appease, assuage" and it says that this meaning is obsolete. It also gives the broader meaning adopted by the longer dictionary, while adding a helpful explanation: "3. Make partial or minor changes to; alter without radical transformation. Orig. esp . qualify or moderate (a statement etc.), alter so as to make less severe; now freq., alter so as to improve." 112 The dictionary definitions point to the conclusion that in modern usage, the word "modify" means to change without transforming, and therefore it is not confined to changes that limit the dominant owner's rights. That conclusion is supported by the decision of Hutchison ACJ in Re Lewis [1959] NZLR 1040. That case that has been disapproved in Australia (Tujilo v Watts (2005) 12 BPR 23,257 at [52] per Campbell J, citing other authority), but not on this point. Hutchison ACJ held that in the New Zealand legislation, which was to be interpreted liberally in accordance with the Acts Interpretation Act (NZ), the word "modification" meant "alteration or change" (at 1041). 113 Therefore I do not accept that the use of the words "modify" and "modification" in the section confines the court's power to limiting or restraining rights given under an easement. But I respectfully agree with Atkinson J's conclusion that the court's power is restricted in this way, for other reasons which I set out below. 114 First, in my opinion the wording of s 89(1)(c) supports the view that only a limiting modification is permitted. Section 89(1)(c) permits the court to modify or extinguish an easement if it is satisfied that the proposed modification or extinguishment "will not substantially injure the persons entitled to the easement". Literally that criterion can be applied where the question before the court is whether to expand the range of permitted uses under the easement or to alter the permitted uses so as to make them conform to the dominant owner's wishes, but if s 89(1)(c) applies in such cases, where the modification is clearly for the benefit of the dominant owner, the criterion that it prescribes will necessarily be satisfied. It would be odd for the legislature to confer a power on the court that is available only when a stated criterion is satisfied, if the criterion is bound to be met. On the other hand, where the proposed modification restricts the dominant owner's rights, it is sensible for the criterion of availability of the court's power to refer to whether the dominant owner will be substantially injured. Denham's case is a good example of a case where the court's order took away rights of the dominant owners but it was held that the order did not substantially injure them. In summary, the criterion for availability of the power in s 89(1)(c) suggests that the legislature intended the power to be exercised to restrict but not to expand the dominant owner's rights. 115 Secondly, the more restricted construction is also supported by the introductory language of s 89(1). Section 89(1) empowers the court to modify or extinguish an easement "on the application of any person interested in the land". The "land" there referred to is "land [that] is subject to an easement", in other words the servient tenement. Therefore an application under s 89(1) for modification or extinguishment can be made only by the servient owner or someone else who is interested in the servient owner's land. The section does not authorise an application to be made by the dominant owner. If the legislature had intended to permit the court to modify an easement by enhancing the dominant owner's rights or increasing the burden on the servient tenement, one would have expected it to authorise proceedings to be taken by the dominant owner. 116 Thirdly, there is some support for the more restrictive construction in s 89(2). Section 89(2) provides that where proceedings are instituted to enforce an easement, any person against whom the proceedings are instituted may apply for an order under s 89 in those proceedings. As a matter of ordinary language, proceedings to "enforce" an easement are proceedings brought by the dominant owner to require the servient owner or someone else to permit the exercise of the rights conferred by the easement. Proceedings to prevent the dominant owner from acting in excess of the terms of the easement are not aptly described as proceedings to "enforce" the easement. Therefore what s 89(2) does is to permit the defendant in proceedings by the dominant owner to respond to the dominant owner's assertion of rights under the easement by seeking to limit or remove those rights. 117 Finally, such case law as there is supports the idea that s 89(1)(c) permits only the limitation or extinguishment of an easement. I have already referred to Atkinson J's decision in Hoy v ALL ERton [2001] QSC 440. In Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 Holland J considered whether a proposal by the servient owner to replace a right of way with another one in a different place could be described as a modification authorised by s 89(1). In Re Lewis (cited above) it had been held under the New Zealand legislation that a proposal to change the locus of a right of way from the centre of the applicant's land to the side of the same piece of land was a modification. Holland J did not follow that decision. Although he acknowledged that the court should not unduly restrict the operation of the language of s 89, he held that it would be playing with words to say that the easement was merely relocated and therefore modified, rather than extinguished, however broad the concept of modification may be. His Honour's reasoning on that point has been followed in subsequent cases, and the law now seems to be that a relocation of the site of an easement so that it traverses a completely different track is outside the power conferred by s 89(1)(c): Tujilo v Watts (2005) 12 BPR 23,257 at [52] per Campbell J. 118 Holland J took the view that the court has the power to order that an easement be extinguished subject to certain events occurring, such as the granting of another easement, without waiting for those events to have already occurred. Importantly for present purposes, his Honour made an observation supporting the view that the orders authorised by the section are orders of limitation or extinguishment (at 424): "The section is designed to relieve wholly or partly, in a proper case, a land owner from the burden of restrictions and easements whilst at the same time recognizing the legal rights of the owners of the dominant tenement, and ensuring that they will not be unduly prejudiced by the proposals of the applicant." 119 In Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592 Gzell J had to consider whether the court could alter the boundaries of a right of way on the application of the servient owner, on condition (opposed by the servient owner) that a clearance of a specified height be maintained above the site of the right of way. He referred to the Manly Properties case and pointed out that Holland J was dealing with an extinguishment order to take effect on the happening of a future event, the future event being one desired by the parties (the consensual grant of a substitute easement). He referred to later cases that had followed Manly Properties and distinguished them on the same basis. He compared the New South Wales' provision, which is silent on the question of imposing conditions, with s 84(1C) of the Law of Property Act 1925 (UK), which (by amendment in 1969) specifically declares that the power conferred by the section to modify a restriction includes power to add such further provisions restricting the user of, or the building on, the affected land as appear to the Lands Tribunal to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant. He concluded (at 596) that it would be an "over-generous interpretation of the power in s 89 of the Act to 'modify or wholly or partly extinguish' an easement … to conclude that the power extends to the imposition of conditions upon a modification or extinguishment". 120 Loclot did not address the question whether an easement can be modified under s 89(1)(c) by expanding it or altering its character for the benefit of the dominant owner against the opposition of the servient; but if, as that case held, there is no power to impose conditions for the benefit of the dominant owner when modifying an easement by limiting it, it would be odd if there were a power of modification for the benefit of the dominant owner enabling the court to achieve the same outcome. Just as the legislature could amend s 89 so as to permit the imposition of conditions, it could amend so as to permit modifications for the benefit of the dominant owner, but it has not done so. 121 My conclusion is that the court cannot, under s 89(1)(c), make an order expanding a right of way or changing it to the benefit of the dominant owner. By application of that general proposition, the court cannot make an order changing the right of way in the present case into a right of fire egress over a smaller part of the passageway. 122 As to the plaintiffs' submission that the court should simply reduce the width of the passageway to which the right of way applies, in my view the plaintiffs have failed to discharge the onus of proof which they bear (see Tujilo v Watts at [36] per Campbell J) to show that the proposed modification would not substantially injure Autor, the person entitled to the right of way. Therefore an order cannot be made under s 89(1)(c). 123 The question of substantial injury is to be assessed on the basis that Autor has development consent for its proposed building, but an injunction will be granted in the present proceeding on the plaintiffs' application, which may require revision of the approved plans. That means that Autor may wish to use the existing right of way in accordance with the terms of the grant, if it abandons or modifies the proposed building. A restriction on the width of the passageway would prevent one vehicle from passing another on the passageway and may, depending upon the width of the remaining passageway, prevent any use of the right of way by vehicles. Conclusions 124 The plaintiffs should be granted a declaration that the use of the passageway on that part of the plaintiffs' land that is subject to the right of way to provide fire egress in compliance with the BCA, as contemplated in Autor's approved plans, is not authorised by the right of way. The declaration should not, as proposed in the amended statement of claim, refer to the contemplation of the parties at the time the right of way was granted, having regard to the Perpetual Trustee case. The plaintiffs should also be granted a final injunction restraining Autor from using the passageway in the manner contemplated in the approved plans. 125 The plaintiffs have failed to establish grounds for extinguishment of the right of way under s 89 of the Conveyancing Act 1919 (NSW), or narrowing the width of the right of way, and that section does not permit the court to modify the right of way so as to change it into a right of fire egress. Consequently the right of way will remain in place. 126 These outcomes are unfortunate, in the sense that they are likely (having regard to the evidence of Mr Fleming to which I have referred) to prevent the building of a commercial residential and retail development in Newport that has the consent of Pittwater Council. The problem is that those who designed the development have sought to make use of land not owned by the company which proposes the development, and to make use of that other land in a way that is inconsistent with the landowner's rights. My decision vindicates rights of ownership. 127 It seemed to me during the trial, and it seems to me now, that a commercial resolution of the disagreement between the parties should be possible, along the lines that part of the passageway would be made subject to an easement for fire egress (or even be transferred to Autor in fee simple) while the remainder of the passageway would be released from the right of way so that the plaintiffs would have the unrestricted freehold. But the court does not have the power to impose such a solution. The mediation that I ordered during the trial, with a view to the parties reaching agreement on some such outcome, was unsuccessful. Resolution of the impasse that is likely to be produced by this judgment will have to depend on renewed commercial negotiations, hopefully infused with a measure of commonsense.

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