McWilliam v Hunter

Summary of salient evidence

1. The right of carriageway in its present state is well shown in the photographs that are annexed to Mr Hunter's affidavit of 15 July 2021. It can be seen that there is a concrete driveway on Lot 413 along the right of carriageway, leading to a garage on Lot 412. This is not the garage that was on Lot 412 at the time the right of carriageway was created in 1980. It seems that the new garage, which appears to have an upper level on its north-western side, was constructed at some time after 11 August 2016 as part of a residential development the subject of a modified development consent issued on that date. The garage has what appears to be a roller door that is about 2.14m in height, and situated approximately in line with, and about as wide as, the right of carriageway driveway (i.e. about 3m wide).
2. Since the construction of the garage, the plaintiffs have obtained from an accredited certifier a Complying Development Certificate (on 30 April 2019) and a Modified Complying Development Certificate (on 10 September 2020) for alterations to the garage. The plans in relation to the first certificate depict a sliding garage door with a height of 4m and a width of 3m. So, too, do the plans in relation to the second certificate. The plans depict a reconfiguration of the beams within the garage so as to accommodate vehicles having heights of up to about 4m.
3. The defendants' proposed development of Lot 413 is described and depicted in a Statement of Environmental Effects prepared by Alan Rudge Architects. The statement includes the following: 2.1 Site Description The subject size is zoned B4, "Mixed Use" under the Nambucca Shire Council Local Environment Plan. This zoning applies to both adjoining properties to the north-west (No's 7 & 9); to the south-east the R3-Medium Density Residential zone applies (No. 5 Ocean Street). Despite the B4 zoning and 10m height limit, the old Post Office building to the immediate north-west at No. 7 Ocean Street has recently been converted to a single-storey private residence, albeit with a 2-storey garage to the rear of the site. The renovation is well-designed and well-built and architecturally in keeping with its unique beach - side siting. Further along Ocean Street to the north-west, at No. 9 Ocean Street a new Architect-designed residence is currently under construction. This residence, at 9m/3-storeys takes full advantage of the 10m height limit. … The subject site is constrained at only 180m2 and is burdened with a right-of-carriageway 3.05m wide. This R.O.W. traditionally provided vehicular access to the adjacent old Post Office site at the rear of No.7A and a 2-storey garage has recently been constructed as part of the residential conversion of that old building.
4. A letter dated 20 March 2018 from Alan Rudge Architects to the Council, evidently written in response to objections made to the proposed development, contains submissions to the effect that the minimum proposed clearance height above the right of carriageway of 2.8m is "adequate for most vehicles", and would not amount to a material or substantial interference with the right of carriageway. As noted earlier, the Council ultimately imposed a condition that there be a clearance height of 2.8m for all structures within the right of carriageway.
5. The plaintiffs adduced evidence from a traffic consultant, Mr Craig McLaren. He inspected the site on two occasions in January 2021 and prepared a report dated 28 May 2021. In relation to a question concerning the types of vehicles that would be expected to use the right of carriageway having regard to the existing residential use of Lot 412, Mr McLaren stated (at 8.3): 8.3 I have no other certainty on the specific preferences of the past, present and future owners of Lot 412 besides the vehicle quotes provided with the Letter of Instructions, and instead I suggest the question should read "…what range of vehicles might use domestic driveways similar to the RoW?". In answering my own version of the question, I have observed the following vehicles utilising suburban residential driveways during my lifetime: a) Passenger Car; b) Off-Road Utility Vehicle; c) Motorcycle; d) Goods Trailer; e) Trailer taking carriage of a car, motorcycle or boat; f) Caravan forming part of a trailer; g) Motorhome; h) Goods or Passenger Van; i) Moving Truck on car licence (small rigid truck); j) Tow-Truck; k) Rigid Delivery Truck; l) Prime Mover.
6. Mr McLaren continued (at 9.1): 9.1 Of the vehicles referred, all vehicles are sufficiently narrow to traverse the RoW and some have variants which have a height above 2.7m (2.8m minus 0.1m air gap) or above 2.5m (2.6m minus 0.1m air gap) and would be unable to use the RoW due only to the proposed headroom. Of the listed vehicles, those with variants over 2.5m height are the following vehicles with examples included: a) Trailer taking carriage of a car, motorcycle or boat Surtees 650 Game Fisher boat on trailer - 3.85m high See Tab 3 Quotes for Vehicles Surtees 650 Game Fisher boat - 2.995m high (See Annexure H) Variable load up to combined 4.3m height by Australia Design Rules 43/04 b) Motorhome Australian Adventure Vehicles AAV4x4 FUSO FGB71 4x4 SINGLE CAB CHASSIS 6000GVM with Global Xplorer Module 2021 Production No 24/652 - 3.6m high (See Tab 3 Quotes for Vehicles) Jayco optimum-iv25-5bhrop-my21 - 3.24m high (See Annexure H) c) Caravan forming part of a trailer Jayco all-terrain-2268-1at-my21 - 3.04m high (See Annexure H) d) Goods or Passenger Van Mercedes Sprinter, Long, High Roof - 2.7m high (See Annexure H) e) Moving Truck on car licence (small rigid truck) Fuso Canter 515 Wide Cab Pantech - 3.11m high (See Annexure H) f) Tow-Truck Variable load up to combined 4.3m height by Australia Design Rules 43/04 g) Rigid Delivery Truck Variable Pantech height up to combined 4.3m height by Australia Design Rules 43/04 h) Prime Mover (The motorised part of a semi-trailer) Scania R730 - 3.5m high (See Annexure H).
7. The defendants adduced evidence from a traffic consultant, Mr Morgan Stanbury. He prepared a report dated 16 July 2021. The report includes the following: 7.2 The Plaintiffs' land currently accommodates a domestic dwelling and detached garage. Extract of survey prepared by Blairlanskey Surveys (copies of which are attached as Appendix 10) indicate that the garage door provides effective dimensions of 2.75m wide by 2.14m high. Any vehicle traversing the Right of Way and being required to be accommodated within the Plaintiffs' land is therefore limited in height to 2.14m. 7.3 I have however been advised that the Plaintiffs obtained a Complying Development Certificate in 2020 for alterations and additions to the existing dwelling contained within the Plaintiffs' land, which incorporates an existing garage providing approximate internal dimensions of 8.8m x 5.5m, being serviced by a new garage door providing dimensions of 3m wide by 4m high. An extract of the stamped approved plans with respect to this Complying Development Certificate is attached as Appendix 11. … 7.6. There are several factors to be considered when determining an appropriate clearance height (or class) of vehicle being serviced by the Right of Way, as follows: - The width of the vehicle with respect to the width of the Right of Way. - The ability of the vehicle to negotiate the grades of the gutter crossing connecting Ocean Street and the Right of Way. - The length of the vehicle with respect to the depth of the Plaintiffs' land, measured from the termination of the Right of Way. - The ability of the vehicle to turn around within the Plaintiffs' land so that all movements through the right of way can be undertaken in a forward direction. … 7.6.11 In my view, it should accordingly be demonstrated by the Plaintiffs that vehicles larger than passenger vehicles, or vehicles towing trailers, are indeed capable of satisfactorily travelling between Ocean Street and the Plaintiffs' land via the Right of Way, whilst providing an appropriate manoeuvring clearance to adjacent obstructions. This would necessitate a swept path assessment utilising documented vehicle specifications sourced from the manufacturer. This assessment should be based upon an appropriate engineering survey base prepared by an independent and suitably qualified surveyor. … 7.7.2 Whilst the Right of Way provides a relatively level and consistent pavement profile, it is observed via Google Street View (image date October 2016) that there is a notable height differential between the western Ocean Street kerb and the eastern edge of the Right of Way. The damaged nature of the driveway pavement connecting Ocean Street to the Right of Way visible via Google Street View indicates that some vehicles have previously 'scraped' or 'bottomed out' when accessing / exiting the Right of Way. From my experience this indicates that some vehicles (or trailers) have difficulty negotiating the existing gutter crossing profile servicing the Right of Way. 7.7.3 In my view, it should accordingly be demonstrated by the Plaintiffs that vehicles larger than passenger vehicles, or vehicles towing trailers, are indeed capable of satisfactorily negotiating the gutter crossing connecting Ocean Street to the Right of Way. This would necessitate a ground clearance assessment utilising documented vehicle specifications sourced from the manufacturer and longitudinal sections of the centreline and both edges of the driveway, extending between the centre of Ocean Street and the rear of the garage contained within the Plaintiffs' land. This assessment should be based upon an appropriate engineering survey base prepared by an independent and suitably qualified surveyor. … 7.8.1 The length of vehicle capable of being accommodated within the Plaintiffs' land is governed by the depth of the land, measured from the termination of the Right of Way. 7.8.2 This depth is dimensioned as being approximately 8.8m within the previously presented Complying Development Certificate plans. 7.8.3 Any assessment with respect to vehicles towing trailers is to demonstrate that both the vehicle and trailer can be wholly accommodated within the Plaintiffs' land, ensuring that there is no extended standing of vehicles or trailers within the Right of Way. … 7.9.2 The ability of the vehicle to turn around within the Plaintiffs' land is governed by the dimensions of the land, within the vicinity of the termination of the Right of Way. 7.9.3 Any assessment with respect to vehicles towing trailers is to demonstrate that the vehicle towing the trailer can turn around wholly within the Plaintiffs' land providing an appropriate manoeuvring clearance to adjacent obstructions. This would necessitate a swept path assessment utilising documented vehicle specifications sourced from the manufacturer. This assessment should be based upon an appropriate engineering survey plan prepared by an independent and suitably qualified surveyor or architectural plans of the development contained within the Plaintiffs' land. … 9.1 It has previously been determined that the Right of Way width of 3.05m is not capable of accommodating any vehicle recognised by AS2890.2:2018, in accordance with the requirements of that Standard. 9.2 The minimum required clearance of the Right of Way, having regard to the referenced Standards, is therefore 2.2m. 9.3 The restriction of the height of the Right of Way to 2.54m (in lieu of 2.8m as detailed within Paragraph 8.2 of this Report) does not constitute a substantial and unreasonable interference and/or obstruction of the Plaintiffs' reasonable use or likely future reasonable use of the Right of Way, having regard to the referenced requirements of the Standards.
8. Section 13 of Mr Stanbury's report contained his specific responses to Mr McLaren's report. Mr McLaren, for his part, prepared a report in reply dated 6 August 2021 which contained his response to Mr Stanbury's report. It is not necessary to refer to the detail of these parts of the evidence, much of which is directed to whether certain Australian Standards concerning car parking are relevant or applicable.
9. Mr Stanbury and Mr McLaren prepared a Joint Report dated 15 October 2021. Amongst the matters noted as agreed between them were the following: 10. … e) The current versions of Australian Standards AS2890.1 and AS2890.2 were established following the registration of the RoW. f) The instructions to MS by the instructing solicitors generally directed MS in the preparation of his Expert Report dated 16 July 2021 to assess the existing and ongoing operational performance of the RoW, "having regard to Australian Standards AS2890.1:2004 and AS2890.2:2018". g) Notwithstanding this, the application of AS2890.1 and AS2890.2 are not mandatory as non-compliances are often certified if deemed workable and fit for purpose. h) The stamped Approved CDC Plan for "Modifications to Garage for Phil & Sue McWilliam, 7 Ocean Street, Scotts Head" dated 9 April 2019 show a boat parked within the McWilliam's Garage. i) The stamped Approved Modified CDC Plan for "Modifications to Garage for Phil & Sue McWilliam, 7 Ocean Street, Scotts Head" dated 1 April 2020 show a motor home (with the dimensions of 7.7m in length by 2.33m in width) parked within the McWilliam's Garage. j) AS2890.1 and AS2890.2 do not provide specific design requirements explicitly relevant to vehicles trailing boats or motor homes. k) The approved CDC does not restrict the clearance height along the RoW.
10. The Joint Report contains further commentary pertaining to the matters upon which the experts continued to disagree. This includes the results of swept path and ground clearance tests undertaken by Mr McLaren in response to issues raised by Mr Stanbury (see Annexure 6 to the Joint Report). Mr Stanbury acknowledged that the swept path and ground clearance assessment of the specific motorhomes presented within Annexure 6 illustrate that those vehicles are physically capable of traversing the right of carriageway. However, Mr Stanbury stated that ground clearance assessment had not been presented demonstrating that passenger vehicles trailing a boat can physically traverse the right of carriageway. Mr Stanbury further stated that: In the event that ground clearance and swept path assessment can demonstrate that personal recreational vehicles which may be stored wholly within 7 Ocean Street can traverse the RoW, there is no legitimate reason to suggest these vehicles cannot utilise the RoW in a safe manner. In this regard, it is acknowledged that the swept path and ground clearance assessment for the specific off-road motorhomes presented within Annexure 6 illustrate that this particular vehicle is physically capable of traversing the RoW.
11. A number of brochures were admitted as evidence of the dimensions, including heights, of various vehicles, such as motorhomes and trailers carrying boats.
12. Finally, reference should be made to the report of a surveyor, Mr Bill McDonald, which demonstrates that a private electrical power line (that services Lot 413) runs above parts of the driveway on the right of carriageway at various heights, the lowest of which is 5.5m.
13. The only oral evidence given in the case was given by Mr McLaren and Mr Stanbury concurrently.
14. Mr Stanbury accepted that the maximum width of standard registered vehicles in New South Wales was 2.5m, so that the right of carriageway, which has a width of 3.05m, can accommodate all such vehicles if they travel in a straight direction. Mr Stanbury gave evidence that the "bottoming out" problem he referred to arises at the point where the driveway meets the gutter of the road. He said he was not aware of any reason why that area could not be levelled out or smoothed to avoid the problem, but said that this had not been demonstrated. Mr McLaren said that he did not believe there was any constraint that would prevent a modification so as to remove that ground clearance issue.
15. Mr Stanbury agreed that whether any future mixed use of the plaintiffs' land would require compliance with Australian Standard 2890 would depend on whether the Council imposed conditions to that effect. He further agreed that the Council had not done this in respect of the width of the right of carriageway for the defendants' proposed development. In this regard, I note that the standard specifies a minimum roadway width of 3.5m. Mr McLaren agreed that typically discussion about Australian Standards would come up in dialogue with Council officers in the development application process.
16. Mr McLaren agreed that the maximum height of a vehicle that could be stored in the plaintiffs' existing garage (even if the joist and beam were removed) was 3.8m.
17. Mr McLaren did not accept that a skilled driver would be required to reverse a motorhome along the right of carriageway. He said that most drivers of such vehicles would be aware of the dimensions of the vehicle and would commonly be assisted by reversing cameras and side clearance warnings. He expressed the same view in relation to a vehicle towing a boat. Mr McLaren said that a wireless reversing camera could be installed on the back of a boat trailer. Mr McLaren also gave evidence that a boat trailer on its own could be easily manoeuvred down the right of carriageway using a motorised dolly that can be attached to the trailer. Mr Stanbury said that reversing a boat trailer from the road into the right of carriageway would be a particularly complex movement.

Summary of submissions

1. The plaintiffs submitted that construction by the defendants of their proposed development, which would involve a clearance above the right of carriageway of only 2.8m, would constitute a substantial interference with the plaintiffs' current and reasonable future use of the easement. It was submitted that the development would impose a limitation that would curtail the range of vehicles that could physically use the right of carriageway, whether the plaintiffs' land continues to be used for residential purposes or is in the future used for mixed commercial and residential use, as may be permitted under the applicable zoning.
2. The plaintiffs pointed to Mr McLaren's first report (at paragraph 9.1 and Annexure H) for examples of vehicles that could not use the right of carriageway if its height were restricted to 2.8m. These examples include a Surtees 650 fishing boat on a trailer (height of 2.995m), a Jayco motorhome (height of 3.24m), a Jayco caravan (height of 3.04m) and a Fuso small rigid truck (height of 3.11m). The plaintiffs submitted that if commercial use was permitted in the future, it is likely that there would be even more inconvenience as a range of small rigid delivery trucks that could otherwise use the right of carriageway would be unable to do so. The plaintiffs also pointed to the swept path assessments undertaken by Mr McLaren, that are contained in Annexure 6 to the Joint Report, as showing that use of the right of carriageway by various large vehicles is feasible.
3. The plaintiffs submitted that the easement should be construed in accordance with its clear and unqualified language, and that there was no basis to read down that language. It was submitted that use of the easement was expressed to be for all purposes, and there was no suggestion of any restriction on the types of vehicles that may be used upon it. The plaintiffs submitted that the easement could not be read down by reference to Australian Standard 2890, which was not in existence at the time the easement was created.
4. The plaintiffs submitted that on any reasonable qualitative assessment, a height limit of 2.8m would amount to a substantial interference because a number of vehicles that would ordinarily be associated with both the present residential use and a possible future mixed use would not be able to use the right of carriageway. Reference was made to the decision of Palmer J in Middleton v Arthur (2002) 11 BPR 20,263; [2002] NSWSC 627, another case concerned with a height restriction over a right of carriageway.
5. The plaintiffs submitted that as there would be a substantial interference if the height were limited to 2.8m, the defendants' proposed modification of the easement to that effect would clearly cause substantial injury to the plaintiffs (see s 89(1)(c) of the Act). It was submitted that the defendants had plainly failed to show that the continued existence of the easement would impede the reasonable user of Lot 413, or that the easement does not secure any practical benefit to the persons entitled to it, within the meaning of s 89(1)(a) of the Act. It was thus submitted that the defendants' Cross-Claim should be dismissed.
6. The defendants submitted that the dimensions of the right of carriageway, and the situation that was present when it was created in 1980, should lead to the conclusion that only passenger vehicles that could be safely accommodated in a single garage were contemplated for use of the easement. In this regard, reference was made to the existence of a small single garage on Lot 412 at that time.
7. The defendants submitted that their proposed development would still enable the plaintiffs to use the right of carriageway to access the existing garage on Lot 412. It was submitted that the boat depicted in the plaintiffs' plans for the Complying Development Certificate would have great difficulty manoeuvring through the right of carriageway even if there were no restriction on the height above the right of carriageway. The defendants submitted that, given the history of the development of the plaintiffs' land, their Complying Development Certificates should be seen as mere contrivances designed to hinder the defendants' proposed development of Lot 413. It was submitted that the proposed height restriction of 2.8m would not, in practical terms, cause substantial injury to the plaintiffs. It was pointed out that the plaintiffs do not currently own or use vehicles of the types that would be precluded from using the right of carriageway if the height above it were limited to 2.8m. It was also pointed out that such vehicles could not fit within the plaintiffs' existing garage. The defendants also submitted that there were alternative vehicles of such types (in particular motorhomes) that were less than 2.8m in height.
8. The defendants further submitted that any future development application made by the plaintiffs would call for consideration of Australian Standard 2890 which requires a driveway width of 3.5m.
9. The defendants submitted that a 2.8m height restriction would not cause substantial injury to the plaintiffs within the meaning of s 89(1)(c) of the Act, and that the easement should be modified accordingly. The argument based on the second limb of s 89(1)(a) was not abandoned, but was put only faintly. In that regard it was submitted that the easement as it is prevents the defendants from reasonably using Lot 413 in circumstances where the existing improvements have reached the end of their economic life and any redevelopment of Lot 413 that did not involve some encroachment over the right of carriageway would be unlikely to be economically viable.

Determination

1. The defendants, as owners of the servient tenement, are entitled to make such use of their land as they see fit provided the use does not amount to an unreasonable interference with the rights of the plaintiffs as owners of the dominant tenement. A real substantial interference with the rights under an easement amounts to an actionable nuisance (see Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [73]).
2. The rights conferred under an easement are ascertained as a matter of construction of the terms of the easement. The terms of an easement over land under the Real Property Act 1900 (NSW) are to be construed in accordance with the principles enunciated in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [35]-[45]. The task of construction must therefore be undertaken by reference to the terms of the instrument itself. Recourse to extrinsic material is limited, it seems, to evidence of the physical characteristics of the land concerned (see Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW Conv R 56-200; [2007] NSWCA 324 at [15]-[16]; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15]-[18]; Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 at [86]-[88]).
3. The owners of the dominant tenement have the rights expressed in the terms of the easement, properly construed, together with such ancillary rights that may be implied where such right is reasonably necessary for the enjoyment of the rights expressly granted (see Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646-7; Butler v Muddle (1995) 6 BPR 13,984 at 13,987; Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580 at [27]-[30]). No issue arises concerning ancillary rights in this case.
4. The easement is a right of carriageway 3.05m wide. The terms of the easement are as set out earlier at [4]. The owners of Lot 412 (and persons authorised by them) are given full and free right to go, pass and repass, along the easement to and from Lot 412, at all times and for all purposes, including with vehicles. The references to "all purposes" and "vehicles" suggest that the range of vehicles that might be employed in the use of the easement is extensive. The language indicates that the range of vehicles is effectively limited only by the range of purposes for which the easement might be used (in a reasonable manner) so as to benefit Lot 412 (see Westfield Management Ltd v Perpetual Trustee Company Ltd (supra) at [20]-[22]; Lowe v Kladis (supra) at [89]-[90]). I would add, that in circumstances where the maximum width of standard registered vehicles in New South Wales is 2.5m, the 3.05m width of the right of carriageway places little in the way of a practical constraint upon the range of vehicles that could make use of the easement.
5. The evidence regarding the physical characteristics of the site essentially consists of some photographs, and what can be gleaned from the plan in the s 88B instrument itself. The easement is a relatively flat rectangular area, 3.05m wide and 21.515m in length, that runs along the south-eastern boundary of Lot 413 from its Ocean Street frontage to its rear boundary with Lot 412.
6. The Court was also informed, and it seems not to be in dispute, that when the easement was created there was an old single garage on Lot 412 at the end of the easement area. The precise location and dimensions of the garage are not known. I have considerable doubt that this material, such as it is, may be properly taken into account as evidence of the physical characteristics of the land concerned. It does not concern physical features which are there for all to see since the old garage no longer exists (see Hare v Van Brugge (supra) at [18]). However, if it may be taken into account, and even if an assumption is made that the old garage was capable of housing only vehicles of a modest size or type, it does not follow that the easement should be construed so as to be limited to use of vehicles of that size or type. Easements are property rights of an enduring nature, and should be construed with that in mind. Generally speaking, limitations should not be read into the language of the grant by reference to the state of improvements on the land where it can be expected that the improvements will change over time as the land is further developed. In my opinion, the terms of the right of carriageway should not be construed in such a way that the rights under the easement are restricted so that the range of vehicles that might be employed in its use are restricted to passenger vehicles that can be accommodated in a single garage. I do not accept the defendants' submission to that effect. Nor do I accept the related submission that Australian Standard 2890 can be regarded as a useful touchstone to determine the types of vehicles contemplated to be capable of using the right of way. I do not regard the Australian Standard (which in any event was not in existence when the easement was created) to be relevant to the question of construction of the terms of the right of carriageway.
7. The evidence referred to earlier amply demonstrates that if the height above the driveway of the right of carriageway is limited to 2.8m, various vehicles that would otherwise be able to use the easement would be precluded from doing so. These vehicles include certain types of motorhomes, caravans, small delivery trucks and boats on trailers. The use of those types of vehicles in association with the residential use of land is hardly uncommon, and the use of the right of carriageway in that fashion would clearly, in my view, be reasonable. If the defendants' proposed development proceeded, the preclusion of such vehicles from the easement would in practical terms be permanent.
8. In my opinion, the imposition of a height limit of 2.8m, as would occur if the defendants' proposed development proceeded, would amount to a substantial interference with the reasonable use and enjoyment of the right of carriageway. That is so, it seems to me, even if it is assumed (favourably to the defendants) that the lawful use of Lot 412 will remain confined to residential use. The introduction of a height limit of 2.8m above the easement would reduce to an appreciable extent the range of vehicles that would otherwise be able to traverse the right of carriageway. In practical terms, that reduction would significantly impede the manner in which the easement might be reasonably enjoyed in the use of Lot 412 for residential purposes. To my mind, an inability to use the easement to bring on to Lot 412 tall vehicles such as certain types of motorhomes, boat trailers and delivery trucks, would amount to a curtailment of the rights under the easement that is not minor or trivial, but significant.
9. In coming to that conclusion, I have taken into account the fact that the plaintiffs (as the current owners of Lot 412) do not presently use their land in a manner that would involve tall vehicles of these types using the right of carriageway. However, it would be reasonable for the plaintiffs in the future, or future owners of Lot 412, to choose to make use of the land in that way. The Complying Development Certificates, and the evidence of Mr McLaren, establishes, for example, that motorhomes and boats on trailers having heights well in excess of 2.8m could make use of the right of carriageway and be stored in a garage having the dimensions shown in the plans that accompany those certificates. It is not necessary for the plaintiffs to show that they personally intend to proceed in accordance with the Complying Development Certificates. The certificates serve as proof of a type of development of Lot 412 that is permissible. There are no doubt other possible ways of using Lot 412 for residential purposes that are consistent with the use of tall vehicles on the right of carriageway. One example would be having the area near the right of carriageway cleared of structures so as to create an open area within which tall vehicles could park. Such possibilities would be foreclosed if the height was restricted as proposed by the defendants.
10. For the above reasons, I have concluded that the defendants' proposed development, which involves the imposition of a height limit of 2.8m above the right of carriageway driveway, would amount to a real substantial interference with the reasonable use and enjoyment of the right of carriageway. It would be an interference with the rights of the owners of Lot 412 that amounts to an actionable nuisance. It is appropriate in these circumstances for the Court to issue an injunction restraining the defendants from proceeding with the proposed development. I do not think that declaratory relief is required in addition.
11. For similar reasons, it is my opinion that the modification of the easement sought by the defendants, which itself would involve the imposition of a height limit of 2.8m above the right of carriageway driveway, would substantially injure the persons entitled to the easement. The curtailment of the rights under the easement that would arise is no mere theoretical injury. It would be a real interference with those rights, such that the injury would have present substance (see Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 928). That is so even if the easement is not currently being used by vehicles of a height of 2.8m or more (see Sheppard v Smith [2021] NSWSC 1207 at [222]-[224]). In these circumstances, the Court cannot be satisfied that the proposed modification "will not substantially injure the persons entitled to the easement" within the meaning of s 89(1)(c) of the Act.
12. The defendants have also failed to satisfy the Court that the continued existence of the easement would impede the reasonable use of Lot 413 within the meaning of s 89(1)(a) of the Act. In order to establish such an impediment, it is necessary to show that no reasonable user of the land is possible unless the easement is modified or extinguished (see Trewin v Felton (supra) at [60]; Frasers Lorne Pty Ltd v Burke (2008) 14 BPR 26,131; [2008] NSWSC 743 at [14]-[15]). The defendants did not adduce any evidence that would enable the Court to come to that conclusion.
13. Accordingly, the defendants' application for an order modifying the easement under s 89 of the Act fails. The Amended Cross-Claim will be dismissed.
14. As the plaintiffs have succeeded in establishing their claim to relief, and the defendants have failed on their claim, it is appropriate to order that the defendants pay the plaintiffs' costs of the proceedings.
15. The Court will order: 1. That the defendants, by themselves, their employees or agents, be restrained from proceeding to construct the development the subject of Nambucca Shire Council development consent 2017/272 that would allow a clearance height of 2.8 metres above the right of carriageway that burdens Lot 413 in Deposited Plan 611276. 2. That the Amended Cross-Claim be dismissed. 3. That the defendants pay the plaintiffs' costs of the proceedings.

Amendments 29 March 2022 - Amendments made to citations in [37]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022