Middleton v Arthur

Supreme Court of NSW|2002-07-16|Before: Palmer J

CITATION : Middleton v Arthur [2002] NSWSC 627 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2062/02 HEARING DATE(S) : 13, 14 and 18 June, 2002 JUDGMENT DATE : 16 July 2002

Robert Wilmot Middleton - Plaintiff PARTIES : Susan Elizabeth Middleton - Plaintiff Gillian Margaret Flower - Plaintiff Peter John Elliot Arthur - Defendant JUDGMENT OF : Palmer J

COUNSEL : Peter Walsh - Plaintiffs Nye Perram - Defendant SOLICITORS : Church & Grace - Plaintiffs Allens Arthur Robinson - Defendant CATCHWORDS : EASEMENTS - RIGHT OF WAY - CONSTRUCTION - Principles of construction discussed. RIGHT OF WAY - SUBSTANTIAL INTERFERENCE - Principles discussed. INJUNCTION - LACHES ACQUIESCENCE AND DELAY - Defendant takes calculated risk in proceeding with proposed obstruction after warning of litigation. HELD: Defendant's proposed building plans would create a substantial interference with the Plaintiffs' Right of Way - no discretionary defences available - injunction should be granted. LEGISLATION CITED : Conveyancing Act, 1919 (NSW) - s.88B Sydney Water Act, 1994 (NSW) - s.44(1) - Bulstrode v Lambert [1953] 2 All ER 728 - Butler v Muddle (1995) 6 BPR 13,984 - S.S. & M. Ceramics Pty Ltd v Yau Kin [1996] 2 Qd R 540 - Clifford v Hoare (1874) LR9CP 362 - Finlayson v Campbell (1997) 8 BPR 15,703 - Gallagher v Rainbow (1994) 179 CLR 624 - Jones v Pritchard [1908] 1 Ch 630 - Keefe v Amor [1965] 1 QB 334 CASES CITED : - Purcell, Ex parte (1982) 47 LGRA 433 - Robinson v Bailey [1948] 2 All ER 791 - Robmet Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461 - Todrick v Western National Omnibus Company Ltd [1934] Ch 190 - Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 - White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113 - Williams v James (1867) LR2CP 577 - Wood v Saunders (1876) LR 10 Ch App 582 - Zenere v Leate (1980) 1 BPR 9300 DECISION : Plaintiffs entitled to declarations and injunctions accordingly.

1 The parties are neighbours in a row of terrace houses in Hopewell Street, Paddington. The Defendant is in the course of renovating his house. Part of the work involves the construction of a studio which will overhang a Right of Way giving rear access to the parties' properties. The Plaintiffs contend that the studio will be a substantial interference with their enjoyment of the Right of Way and seek an injunction restraining the Defendant from constructing it. Background

2 The first and second named Plaintiffs ("Mr and Mrs Middleton") own and occupy the land in Folio Identifier 5/260490, known as 28 Hopewell Street ("No. 28"). The third named Plaintiff ("Ms Flower") owns and occupies the land in Folio Identifier 8/260490, known as 30A Hopewell Street ("No. 30A"). The Defendant ("Mr Arthur") owns and proposes to occupy the land in Folio Identifier 502/731979, known as 26 Hopewell Street ("No. 26") 3 The terraces owned by Mr and Mrs Middleton and Ms Flower were built in about 1978 or 1979. Front door access to their properties is at street level in Hopewell Street and rear access is provided by a narrow public road, Kidman Lane, which runs behind the terraces parallel to Hopewell Street. The rear access leads to garages under Nos. 28, 28A, 30 and 30A. From the garages one gains access to the houses by going up fairly narrow flights of stairs. 4 The physical characteristics of the properties, Kidman Lane and the Right of Way, and the description of them which follows, are best appreciated by reference to the sketch plan which is a schedule to this judgment. Kidman Lane runs in a north-easterly direction as far as the northern boundary of No.26. Nos. 22, 24 and 26 all back directly onto it, but Nos. 28 to 30A do not. Their rear boundaries adjoin the property known as 5 Comber Street ("No. 5"). Accordingly, the Right of Way was created over Nos. 22, 24 and 26 to enable vehicles to drive down Kidman Lane and to cross over those properties in order to gain access to the rear of Nos. 28 to 30A. The Right of Way is shown as hatched on the sketch plan. 5 At the northern end of Kidman Lane there is shown on the sketch plan a triangular shaded area, which the parties have referred to as "the Triangle". This is, in fact, located on No. 5, although it appears to be part of Kidman Lane. There is no boundary or other demarcation between the end of Kidman Lane and the Triangle: and the kerb and gutter which run along Kidman Lane continue on to the Triangle. 6 The Triangle is part of an area within No. 5 which is affected by a covenant created in about 1920 by Memorandum of Transfer Registered No. A590368 in favour of the Council of the Municipality of Paddington. The covenant prohibits the registered proprietor of No. 5 from building over or obstructing the drain which runs through the Triangle and from building on the affected part of the land unless the building is erected "at least one foot six inches over the height of the present kerbing on both sides of the channel or drain" . A substantial brick building has been constructed on No. 5, apparently over the channel or drain referred to in the easement and, presumably, in compliance with it. There is a sewer main and a manhole in that part of the Triangle which is a continuation of the bitumen surface of Kidman Lane. 7 The Right of Way benefiting Nos. 28 to 30A was created by registration on 22 April 1980 of DP 260490 pursuant to s.88B Conveyancing Act, 1919 (NSW). The terms of the Right of Way, as appearing in the Deposited Plan, are: "Full right and liberty for the persons in whose favour this right is created and his successors in title, the owners and occupiers for the time being of the land hereby benefited and his or their respective servants, invitees and licensees at all times hereafter by day or night to pass and repass along over and upon [the land burdened] with or without vehicles of any description and with or without animals for all purposes connected with the use and enjoyment of the benefited lands." 8 The Council has approved Mr Arthur's Development Applicant for the renovation of No. 26, including the construction of the garage and the studio overhanging the Right of Way. On 27 December 2001 Mr Arthur entered into a building contract for the carrying out of the work. Building on the site commenced on 14 January 2002 and excavation of the Cutout commenced on 4 February and finished on 15 February. The Plaintiffs commenced these proceedings by Summons filed on 27 March 2002. On 15 May they obtained an interlocutory injunction restraining Mr Arthur from continuing any work which would interfere with the Right of Way. 9 The position of the studio which Mr Arthur proposes to construct over the Right of Way is shown on the sketch plan as the area which is cross-hatched and described as "the Cutout". It is a rectangle measuring 2.63m by 1.7m; the northern side of the rectangle, measuring 2.63m, runs along the southern boundary of No. 28. The Development Approval for Mr Arthur's renovations includes the construction of a metal grille screen along the northern side of the Cutout and of a metal gate along its western side. These structures are to be attached to a metal post, called a "C channel", running from floor to ceiling at the north-west corner of the Cutout. The locations of the grille, gate and C channel are shown on the sketch plan. 10 Along its western side, the studio will, at its lowest point, be about 2.42m above the level of the floor of the Cutout. It is not now in issue that, if the C channel, gate and grille are not erected, an average sedan car, confined exclusively to the Right of Way, would have no difficulty in crossing from Kidman Lane over the Right of Way including the Cutout, under the studio and thence directly into the garage of No. 28. That must be so because the top of the garage of No. 28 is below the level of the studio. The relative ease of access and egress to the garage of No. 28 across the Cutout and under the studio, if the C channel, gate and grille are not erected, is demonstrated by the sketch plan attached to this judgment. It is also not in issue that no vehicle higher than about 2.4m could drive across the Cutout. 11 Mr and Mrs Middleton and Ms Flower insist that the construction of the studio, even without the C channel, gate and grille, will be a substantial interference with the Right of Way because certain vehicles, such as removalist vans and builders trucks, will be too tall to pass under it. The issues

As a matter of construction of the terms of the Right of Way, will there be a substantial interference with the Plaintiffs' enjoyment of the Right of Way if the studio is constructed such that sedan cars and other vehicles less than 2.42m in height can pass under it but vehicles more than 2.42m in height cannot?

Will the construction of the studio with the C channel, the gate and the grille be a substantial interference with the Plaintiffs' enjoyment of the Right of Way?

Alternatively, will the construction of the studio without the C channel, gate and grille be a substantial interference with the Plaintiffs' enjoyment of the Right of Way?

If the Plaintiffs are otherwise entitled to relief, should a permanent injunction be refused by reason of the Plaintiffs' laches, acquiescence or delay or by reason of hardship to Mr Arthur? Principles of construction of the Right of Way

13 The principles applicable to the construction of a grant of an easement, whether at common law or under the Torrens system, are familiar and are common ground between the parties. In construing the scope of an easement which is in general terms, the Court has regard to the language of the grant in the light of the circumstances at the time of the grant. Such circumstances include: the locus in quo over which the easement is granted; the nature of the terminus ad quem; and the purpose for which the easement is to be used as contemplated by the grantor and the grantee at the time of the grant. Where there is a change in the use of the dominant tenement subject to the grant, the grantee has no right to use the easement for the new or additional purpose unless the terms of the grant clearly indicate otherwise: see Gallagher v Rainbow (1994) 179 CLR 624, at 640 per McHugh J. 14 The covenant in the present case is in general terms so that it is appropriate to give them particular content by reference to the factual considerations to which I have referred. I should note in this regard that I have been greatly assisted in understanding the evidence and appreciating its effect by a view of the site with Counsel and their solicitors. Locus in quo

15 The relevant physical characteristics of the Right of Way at the time of the grant are as follows. Entry upon the Right of Way was, and still is, from Kidman Lane; entry to Kidman Lane is from Little Comber Street. The width of the entrance to Kidman Lane from Little Comber Street is about 2.64m. There is no evidence as to whether, as at or about the time of creation of the Right of Way, i.e. April 1980, the entry to Kidman Lane was of the same dimension; there is a sign attached to the light post at the entry to Kidman Lane stating "Light Traffic Only Maximum Load Weight 3 Tons Offenders will be prosecuted" . There is no evidence as to whether such a sign or restriction existed as at the time of creation of the Right of Way. 16 Entry upon the Right of Way from Kidman Lane may be gained at any point along the western boundaries of Nos. 20 to 26. There are reciprocal rights of way granted over Nos. 20 to 26 and further reciprocal rights of way created over Nos. 28 to 30A. 17 The area of the Right of Way is paved with concrete so as to be suitable for the passage not only of cars but of heavier vehicles such as vans and trucks. 18 It is clear from documents in the file of the Woollahra Council relating to the Development Application for construction of the townhouses on Nos. 28 to 30A that at the time of creation of the Right of Way construction of the houses, including their garages and the concreted Right of Way, had been completed. 19 The Right of Way extends west for about 6.85m from the garages of Nos. 30 and 30A and part of the garage of No. 28A. The Right of Way in front of the remainder of No. 28A and in front of the garage of No. 28 extends west for about 5m. The total distance from the garage of No. 28 to the western boundary of that property is about 7m. These dimensions are shown on the sketch plan. 20 If one were to pass from Kidman Lane onto the Right of Way at a point close to the north end of Kidman Lane one would have to pass through a "neck" of the Right of Way, between the eastern end of Kidman Lane and the south-western corner of the proposed Cutout, which is about 3m wide. This "neck" is shown on the sketch plan. Terminus ad quem

21 The terminus ad quem of the Right of Way is not, as submitted by Mr Arthur, merely the garages beneath each of Nos. 28 to 30A; it is the land itself described as the dominant tenements in the grant of the easement. I must, of course, have regard to what was upon that land at the time of the creation of the Right of Way. 22 As I have mentioned, by April 1980 the terrace houses upon Nos. 28 to 30A had been completed. They are substantial houses, having more or less similar characteristics and floor layouts. In No. 28 there are four habitable floors in a split-level arrangement. The front entry is from Hopewell Street and leads into a lounge; there is a lower bedroom 7 steps above the entry level and the upper bedroom and balcony level is up a further set of 7 steps. From the entry level there are 7 steps down to the kitchen. Access from the rear garage is by a flight of 16½ steps up to a courtyard level and from there up a set of 5 steps to a timber deck at kitchen floor level. 23 Hopewell Street is a back street of Paddington, leading off Oxford Street near Victoria Barracks. It is not very wide and in the vicinity of the subject properties it is lined by houses on both sides. As one would expect in Paddington, now and in 1980, one could often expect to have difficulty finding a parking space. The purpose of the Right of Way

24 Mr Perram, in his very thorough and careful argument for Mr Arthur, submitted that the purpose of the Right of Way was to provide nothing more than access to the garages of Nos. 28 to 30A. It follows, he says, that the height of vehicles using the Right of Way is restricted to such as will permit those vehicles to enter the garages. Because the cantilevered slab of Mr Arthur's proposed studio will be higher than the top of the doorways to the garages, any vehicle which can enter the garages must be able to pass under the studio overhanging the Right of Way. The result, says Mr Perram, is that Mr Arthur's studio cannot constitute any interference at all with the Right of Way. 25 Mr Perram submits that the purpose of the Right of Way, so limited, can be determined by having regard to "the actual purpose for which the grant was made" or, if that cannot be ascertained, by having regard to "the presumed purpose for which the grant was made" . 26 According to Mr Perram, "the actual purpose of the grant" is evidenced by documents appearing in the files of the Woollahra Council relating to various development applications in respect of the site upon which Nos. 28 to 30A were constructed. The files go back to 1972 and include numerous documents relating to what was evidently a long and complicated process in obtaining the development approval. Communications to and from various people negotiating on behalf of the Council and the applicant are said to show that the "actual purpose" of the Right of Way was intended to be no more than the provision of off-street car parking and access to the garages to be constructed under the terrace houses. 27 Mr Walsh, who has argued the case for the Plaintiffs with great clarity, points out that the words of the grant squarely contradict the very limited purpose of the Right of Way for which Mr Perram contends. Nevertheless, Mr Perram's submission seems to be that in construing the words of a right of way the Court is entitled to have regard to the actual subjective intentions of the grantor and the grantee as part of the surrounding circumstances. No authority for this proposition was cited and I am unable to accept it. The purpose for which a right of way is granted under the Torrens system is to be ascertained by the same means as the Court applies in ascertaining the intention of parties to the grant of an easement by a deed under the common law, namely, by reference to the words contained in the instrument; where there is ambiguity or wide and general language the words are construed in the light of the relevant extrinsic circumstances at the time of the grant: Gallagher v Rainbow at 640; Finlayson v Campbell (1997) 8 BPR 15,703 , at 15,707 . As a general rule, those extrinsic circumstances will be confined to the locus in quo and the terminus as quem since the purpose of a right of way will almost invariably emerge from a consideration of the words of the grant in the light of those two circumstances. 28 I should note in passing that the documents in the Council files to which Mr Perram refers would not have enabled me to ascertain with any conviction at all whether the intention of the grantor as to the purpose of the Right of Way was anything other than as emerges from the words used in the grant construed with regard to the locus in quo and the terminus ad quem. 29 Mr Perram's alternative submission is that one can discern "the presumed purpose of the grant" as being to enable residents' cars to gain access to their garages from the following surrounding circumstances. 30 First, the entrance to Kidman Lane from Little Comber Street is 2.64m wide; accordingly, Mr Perram says, vehicles wider than 2.64m could not have been intended to use the Right of Way. Although there is no evidence as to the width of the entry to Kidman Lane as at the date of the grant in 1980, I shall assume for the purposes of the submission that it was no wider than 2.64m. Even so, there is no evidence as to the range of widths of typical tradesmen's vehicles and removal vans in use in 1980. I am unable to assume that all tradesmen's vehicles and removalists' vans then in use, or even a substantial proportion of them, would necessarily have been excluded from entry into Kidman Lane at the time of the grant. 31 Second, Mr Perram draws attention to the fact that reciprocal rights of way run across a concrete apron at the rear of Nos. 28 to 30A and that that apron is 6.85m wide at its maximum. Turning a vehicle larger than a sedan car on an area of that size, Mr Perram says, would be difficult. 32 No doubt this is true, but delivery trucks and vans have frequently to deal with tight manoeuvres requiring them sometimes to reverse out of a particular place rather than turn around and drive forwards. Indeed, the evidence in this case shows that a concrete mixer has been brought down Kidman Lane and onto the Right of Way for the purpose of Mr Arthur's current building work. I am unable to give any significant weight to the difficulty of turning on the concrete apron. 33 Third, Mr Perram emphasises that the reciprocal easements over the apron at the rear of Nos. 28 to 30A grant only a right "to pass and repass" ; they do not grant a right to stop; the result, he says, must be that it was not intended that vehicles longer than those which could comfortably park on that part of the apron behind a single house would use the apron or the Right of Way. The evidence is that vehicles in excess of 5m in length would thereby be excluded from use of the Right of Way. 34 It is not correct to say that a right to "pass and re-pass" over a right of way always excludes a right to stop on it for any reason or for any period of time. As Windeyer J said in Robmet Investments Pty Ltd v Don Chen Pty Ltd (1997) 8 BPR 15,461 , at 15,464 : "A right to pass and re-pass does not necessarily require constant movement" . The question depends entirely on whether a right to stop on the right of way "is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted" : Jones v Pritchard [1908] 1 Ch 630, at 638; Butler v Muddle (1995) 6 BPR 13,984 , at 13,987 . 35 So, for example, in Bulstrode v Lambert ([1953] 2 All ER 728) a right of way afforded access to premises used as an auction mart at the time of the grant. The plaintiff desired to bring vans onto the right of way so that furniture could be unloaded and carried into the auction mart or taken therefrom and loaded onto the vans. The terms of the grant conferred no more than a right "to pass and re-pass … over and along the right of way" . The defendant submitted that "right to pass and re-pass" did not include a right to stop. 36 At p.733, Upjohn J said: "The whole object of the reservation is for the purpose of the vendor, his workmen and others obtaining access to the auction room. What is the object of that? It is to get access to business premises, with or without vehicles. Therefore, as I have already held, the plaintiff can, in my judgment, bring goods in the vehicles to his auction room. If he is entitled to do that, then he must, of necessity, in my judgment, be entitled to unload them. And if he is entitled to unload them, he must, per contra, be entitled to load them. In my judgment, therefore, the plaintiff must be entitled to remain in the yard for such time as is necessary to enable him to enjoy his easement of bringing vehicles into the yard, that is, for such time as it takes to load or unload lorries. This right is only an incident of easement and may be described as ancillary to the easement, because without the right he cannot substantially enjoy that which has been reserved to him." 37 Again, in S.S. & M. Ceramics Pty Ltd v Yau Kin [1996] 2 Qd R 540, McPherson JA said at 547: "Whether the grant of a right to pass and repass would be rendered nugatory or would be impaired if it did not carry the right to stop and off-load on the easement area depends on the circumstances prevailing at the time of the grant." 38 If it can otherwise be ascertained from the terms of the grant and from the extrinsic circumstances at the time of the grant that tradesmen's vehicles and removalists' vans were intended to be entitled to use the Right of Way then, in my opinion, it would be reasonably ancillary to the use and enjoyment of the Right of Way that such vehicles be permitted to stop on the Right of Way for such time as is reasonably necessary to load, unload and effect their necessary business. The significance and weight of this third point is, therefore, largely dependent upon whether it appears from other relevant considerations that tradesmen's vehicles and removalists' vans are, or are not, within the category of vehicles permitted to use the Right of Way. 39 Fourth, Mr Perram submits that the Right of Way leads only to the garages under Nos. 28 to 30A so that only the garages are the relevant terminus ad quem. I cannot agree. I have already noted that the terminus ad quem is the whole of the land comprising the dominant tenements, not merely some part of it, and that the Right of Way is granted for all purposes connected with the use and enjoyment of the dominant tenements. I must, therefore, have regard to the fact that at the date of the grant the dominant tenements were used as residences, that the garages were only part of those residences, and that access to the residences themselves is afforded by stairs leading up from the garages. 40 Fifth, Mr Perram draws attention to the fact that access to Nos. 28 to 30A is available from Hopewell Street and that deliveries and removals could probably be effected more conveniently by that means. 41 While it is true that access to the dominant tenements can be gained from Hopewell Street, it is not possible to generalise that such access must have been contemplated by the parties at the time of the grant as more convenient at all times and for all purposes than access from the rear and by means of the Right of Way. In any event, convenience of alternate access from Hopewell Street is beside the point, in my opinion, for the purposes of construing the words of the grant. Rear access to the dominant tenements has been granted in wide terms which expressly permit use by vehicles of "any description" for "all purposes" connected with the enjoyment of the dominant tenements. It can hardly be right to approach the construction of those words with the attitude that the grantor and the grantee must have intended to exclude from the category of vehicles entitled to use the Right of Way all those which were able - even conveniently able - to use Hopewell Street itself for access. To approach the matter in that way would be to construe the grant most strongly against the grantee and in favour of the grantor. The law requires the opposite: see e.g. Williams v James (1867) LR2CP 577, at 581; Wood v Saunders (1876) LR 10 Ch App 582, at 584; Gallagher v Rainbow at 640. 42 Further, such an approach involves defining the rights created by the grant by reference primarily to considerations of convenience rather than by reference primarily to the words of the grant themselves. It is to the words of the grant that the Court has first regard and they must be given full effect unless it can be seen from the surrounding circumstances that, as a matter of implication, the words must be cut down: see e.g. White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113, at 116 per Cozens Hardy MR; Robinson v Bailey [1948] 2 All ER 791, at 795 per Lord Greene MR; Finlayson v Campbell at 15,707 per Young J; Todrick v Western National Omnibus Company Ltd [1934] Ch 190, at 206-207 per Farwell J; Gallagher v Rainbow at 640. 43 It is a normal and perennial incidence of residential life that, from time to time, renovations and repairs to the residence are necessary, households move in and move out, and heavy or awkward household items have to be delivered or removed. Vehicles involved in any of those activities are clearly engaged in a purpose connected with the use and enjoyment of Nos. 28 to 30A within the meaning of those words in the grant, and they have a right to stop on any part of the Right of Way for such time as is reasonably necessary to effect their business. In my opinion, such vehicles are not excluded from use of the Right of Way by the five considerations to which Mr Perram has referred, taken singly or together. 44 It follows that I cannot accept the submission that use of the Right of Way is restricted to cars gaining access to the garages of Nos. 28 to 30A. Consequently, I cannot accept a submission that, as a matter of construction, the height of vehicles entitled to use the Right of Way is restricted to such height as will permit those vehicles to enter into the garages. 45 In my opinion, upon the true construction of the terms of the grant, vehicles entitled to use the Right of Way include tradesmen's vehicles and removalists' vans which are physically able to enter Kidman Lane, regardless of their height. Whether the studio is a substantial interference

46 Mr Perram submits that the construction of a studio overhanging the Right of Way at a height of 2.42m would not be a substantial interference with the rights of the dominant owners even if the Right of Way may be used by tradesmen's vehicles and removalist vans regardless of their height. He relies on the well-established principle that the grantee of a right of way is entitled to object only to such activities on the right of way, including the retention of an obstruction, as substantially interfere with the reasonable use of the grantee's land for the time being: Keefe v Amor [1965] 1 QB 334, at 347; Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, at 281; and see especially per Young J (as his Honour then was) in Finlayson v Campbell at 15,709 where the development of the law through the leading cases is authoritatively expounded. 47 Mr Perram says that the construction of the studio over the Right of Way will not materially interfere with the reasonable use of the Right of Way because most vehicles presently in use can pass under it if they have to cross any part of the Cutout. He points to evidence to the effect that vehicles currently in use in Australia which are lower than 2.42m include: all passenger sedans, station wagons, 4-wheel drives, utilities and panel vans, fifteen of the eighteen high-roof panel vans available in Australia, and all small trucks fitted with a tray. The vehicles which could not pass under the studio include: three of the eighteen high-roof panel vans currently available in Australia, small trucks with a pantech on the back, small trucks with a tray on the back carrying objects so that the total height exceeds 2.42m, large trucks, removalist vans, concrete mixers, emergency vehicles and vehicles for disabled persons. That these vehicles cannot pass under the studio does not amount to a substantial interference, he says, because most of them are either not physically capable or legally permitted to use Kidman Lane, most of them would not be entitled to park or turn on the concrete apron behind Nos. 28 to 30A and, finally, there are alternative means of access for those vehicles from Hopewell Street. 48 What amounts to a substantial interference with the reasonable use of a Right of Way for the purposes of a dominant tenement is essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case. An obstruction may be small in size and short in duration but, in the light of the particular use for which the Right of Way is reasonably required, it may nevertheless be a substantial interference: see e.g. Ex parte Purcell (1982) 47 LGRA 433, at 439; Finlayson v Campbell at 15,710 . On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the Right of Way is reasonably required, it may not be a substantial interference: see e.g. Clifford v Hoare (1874) LR9CP 362. 49 In the present case the particular facts and circumstances which I have taken into account in arriving at my conclusion that the studio would be a substantial interference with the Right of Way are as follows. 50 First, Mr Arthur's studio, once constructed, will be a permanent and substantial building. If the design of tradesmen's vehicles and other vehicles entitled to use the Right of Way changes over the years so that a larger proportion becomes too high to pass under the studio the reasonable use of the Right of Way will be substantially diminished, but it will be very difficult, if not impossible, for the dominant owners to obtain a mandatory injunction requiring Mr Arthur or his successors in title to demolish the studio. 51 Second, even at the present time a significant number of vehicles entitled to use the Right of Way would be unable to pass under the studio if it were constructed at a height of 2.42m. Such vehicles include removalist vans, large delivery trucks, small delivery trucks with large objects on the tray and concrete mixers. It is certainly true that such vehicles would not be expected to use the Right of Way frequently. However, as I have observed, it is a normal incidence of residential life that such vehicles are required from time to time and, in my view, the Right of Way exists for the very purpose of affording them rear access to Nos. 28 to 30A whenever required. 52 Mr Perram says, however, that removalist vans, concrete mixers and large trucks may be disregarded because their gross weight would exceed three tonnes so that they would not lawfully be able to pass along Kidman Lane. He refers to the sign which I have noted in paragraph 15. 53 I cannot accept this submission. It lies a little awkwardly in the mouth of Mr Arthur to suggest that the owners of Nos. 28 to 30A could not reasonably expect to bring concrete mixers exceeding three tonnes into Kidman Lane when that very circumstance has occurred in the course of the construction work on his own property. This whole question must be approached in a common sense and practical way. For example, the Heavy Vehicle Drivers' Handbook issued by the Road & Traffic Authority states, at p.88: "You must not use any road which shows a load limit sign if the total weight of your vehicle is the same as, or heavier than, the weight shown on the sign. However, if you have a pick-up or delivery or your destination is in that street you may use a light traffic road if there is no alternative route to that destination."

The attitude of the RTA to street load limits is, therefore, one of common sense and practicality. If, for example, a concrete mixer has to pour concrete at the rear of Mr Arthur's property or at the rear of Nos. 28 to 30A, it could legitimately be said that there is no alternative route to the destination (i.e., the work site) other than Kidman Lane: the RTA would, therefore, say that the use of Kidman Lane by the concrete mixer is permissible. The same reasoning is applicable if large trucks are required to deliver building materials for work at the rear of the properties or removalist vans are required to deliver or remove goods at or from the rear of the properties. A further matter to note is that there is no evidence as to how long, and for what reasons, Kidman Lane has been subject to a three tonne gross weight restriction. Whether Kidman Lane will continue to be so restricted indefinitely is a matter of speculation. 54 Third, while I acknowledge that turning a large vehicle around on the concrete apron behind Nos. 28 to 30A would be a difficult manoeuvre, I do not accept the submission that that difficulty makes use of the Right of Way by large vehicles unreasonable. As I have said, large vehicles often have to perform awkward manoeuvres and have to reverse out of narrow spaces rather than turn around and drive forward. Evidently, the difficulty of the manoeuvre did not prevent Mr Arthur's building contractors from bringing a concrete mixer into Kidman Lane and onto the apron. 55 Fourth, I do not accept the submission that "there are alternative means of access available in all cases" from Hopewell Street or by bringing vehicles into Kidman Lane, stopping them before the Cutout and the studio is reached, unloading goods and transporting them to Nos. 28 to 30A. This is no more than a generalisation and is tantamount to saying that if there is some way in which the owners of Nos. 28 to 30A are able to 'get by', however inconveniently, with their use of the Right of Way being confined to passenger vehicle entry into their garages, then any construction upon the Right of Way by Mr Arthur which compels them to 'get by' in that way will not be a substantial interference. 56 In my opinion, that is not the correct approach to the question. In assessing whether or not there is a substantial interference with the reasonable use of a right of way, the Court does not prefer the convenience of the servient owner to the convenience of the dominant owner. The Court has regard to the purpose of the right of way, ascertained as a matter of construction of the grant in the light of the surrounding circumstances; the dominant owner has only such rights as are to be found within the grant, so ascertained; the servient owner has all the rights of an owner but with the qualification that those rights are limited by the rights which are conferred on the dominant owner. The dominant owner cannot enlarge upon his or her rights by an appeal to convenience; neither can the servient owner, by an appeal to convenience, whittle away the dominant owner's rights: Zenere v Leate (1980) 1 BPR 9300, at 9304; Butler v Muddle at 13,986 . Convenience is usually an ephemeral thing but legal rights and obligations are enduring. 57 Fifth, I have taken into account that for as long as vehicles are able to drive over the Triangle on No. 5 they can enter the Right of Way without having to pass under the studio, so that the height of the vehicles would not be of concern. Both parties accept that because of the present physical characteristics of the Triangle a general licence to pass over it by foot or by vehicle can be inferred. However, both parties accept also that the licence would be revocable at will by the owner of No. 5 for the time being. 58 The present owners of No. 5 are Mr and Mrs Harris. They were approached by Mr Arthur in October 1999 with an offer to purchase access rights over the Triangle. The offer was, apparently, firmly rejected. One may take it that Mr and Mrs Harris are not only aware of their rights in respect of the land comprised within the Triangle, but also have no intention of giving them up. 59 Mr Perram draws attention to the restrictive covenant affecting the Triangle in favour of the Council, to the existence of a sewer main and manhole within the Triangle, to the restrictions on interference with access to the sewer main imposed by s.44(1) of the Sydney Water Act, 1994 (NSW), and to the evidence of Mr Arthur's experts that a redevelopment of No. 5 would probably require the dedication of the Triangle as a public road. Mr Perram concedes that a redevelopment of No. 5 which includes the Triangle is not impossible, but he says that all of these difficulties make it extremely unlikely. 60 There is much force in Mr Perram's submission. However, in the end, I am unable to accept it for the following reasons. 61 As Mr Perram concedes, the difficulties of redevelopment to which he refers are not insuperable. No. 5 is presently used, at least partly, for commercial purposes. It is a comparatively large parcel of land, much larger than the average residential allotment. Land in a fashionable inner-city suburb such as Paddington - particularly land which might be suitable for high-density residential development - is notoriously in demand. No. 5 is apparently held by Mr and Mrs Harris as a investment. It is not at all fanciful to suppose that, either in the short term or in the medium term future, No. 5 might be redeveloped for such use as would persuade the developer that the difficulties and expenses involved in utilising the Triangle are worthwhile. If that were to happen some years hence and Mr Arthur's studio had been built in the meantime, it would be difficult, if not impossible, for the owners of Nos. 28 to 30A to obtain a mandatory injunction requiring Mr Arthur or his successors to demolish the studio in order to restore their rights under the Right of Way. 62 I do not think that it is reasonable to require the dominant owners in the present case to take their chances as to their continuing ability to pass over the property of a third party when they themselves have no enforceable rights to do so. As their rights under the grant presently stand, they do not need to pass over the Triangle because access for all permitted and reasonable purposes can be gained by vehicles entering upon and remaining within the Right of Way. In my opinion, it would be a substantial interference with their rights under the grant to erect anything on or over the Right of Way which would compel the dominant owners to have permanent recourse to a means of access in respect of which they have no legal right when access is otherwise fully available over the Right of Way as a matter of present legal entitlement. 63 For these reasons, I have concluded that the construction of Mr Arthur's studio over the Right of Way as proposed would be a substantial interference with the reasonable use of the Right of Way as enjoyed by the Plaintiffs under the terms of the grant. Whether grille, gate and C channel a substantial interference

64 Because of my conclusion that the studio would be a substantial interference and because I have concluded that an injunction should go to restrain its construction, it is in a sense unnecessary for me to decide whether the grille, gate and C channel would be a substantial interference: without the studio there would be no grille, gate or C channel as I understand Mr Arthur's Development Application. However, in case I am wrong in my conclusions thus far, I should set out my findings as to the grille, gate and C channel. 65 At various times during the trial Mr Arthur made open offers concerning possible removal of the grille, gate and C channel upon certain conditions. However, in his final submission, Mr Perram made it clear that Mr Arthur did not abandon his position that erection of the grille, gate and C channel would not substantially interfere with the use of the Right of Way. For this submission, he relies upon two propositions. 66 First, he says, the dominant owners are entitled to use the Triangle, so that it is unreasonable for them to seek to use the Cutout, particularly having regard to the fact that the grille and gate are desirable for security and their design is said to be aesthetically very pleasing. Second, he says, the grille, gate and C channel are removable so that if the dominant owners are no longer able to use the Triangle, Mr Arthur will undertake to remove them and he will, in any event, remove them before he sells No. 26. 67 I have already concluded that the Triangle cannot be regarded as a reasonable means of access to the dominant tenements for the purpose of determining whether the studio would be a substantial interference. For the same reasons, I conclude that the present availability of the Triangle should not be taken into account in determining whether the grille, gate or C channel would be a substantial interference. 68 If the grille, the gate and the C channel are erected, a vehicle endeavouring to gain access to the garages of Nos. 28 to 30A while remaining entirely within the Right of Way would have to pass through a space between the C channel and the end of Kidman Lane which is 2.35m wide. Mr Coady's evidence, which I accept, shows that a minimum 'squeeze point' width of 2.40m to 2.46m would be required to accommodate reasonably the passage of an average sedan car travelling straight through the 'squeeze point'. A vehicle approaching the 'squeeze point' at an angle or attempting a turning movement through the 'squeeze point' - as would be required if a sedan car attempted to drive directly from within the Right of Way into the garage of No. 28 - could not pass through the 'squeeze point'. The sketch plan shows Mr Coady's depiction of a sedan car attempting that manoeuvre. 69 To negotiate through this 'squeeze point' and enter the garage of No. 28 would be a delicate manoeuvre even for a proficient driver of the average sedan car and would require the car to be driven past the garage and then reversed into it. To leave the garage and enter Kidman Lane, while driving forward rather than in reverse, would be an even more complicated operation: the driver could not exit the garage of No. 28 and turn left through the 'squeeze point' because the turning angle is much too sharp. The driver would have to exit the garage, turn right into the Right of Way, reverse south, then west, drive forward into the garage, reverse out of the garage turning right, then drive forward through the 'squeeze point'. The manoeuvre is depicted graphically in the sketch plans which are Figures 4A and 5B to Mr Coady's report of 19 April 2002. 70 In my opinion, it is unreasonable to require the drivers of cars attempting access to the garages of the dominant tenements to engage in these manoeuvres. Without the grille, gate and C channel access is now quite easy and convenient; with the grille, gate and C channel in place additional time, care and effort on the part of the driver will be required to negotiate an awkward 'squeeze point'. It may be said by Mr Arthur that all that results to the dominant owners from the narrowness of the 'squeeze point' is a little less convenience. However, convenience of access is a benefit to which the dominant owners are presently entitled under the terms of the grant; Mr Arthur cannot appeal to his own convenience in having a studio in order to whittle away the right to convenient access which the dominant owners now have. I conclude that the erection of the grille, gate and C channel would constitute a substantial interference with the Right of Way. 71 As I have noted, Mr Arthur has offered to remove the grille, gate and C channel in certain circumstances if the Triangle becomes inaccessible. In the result, however, the offer comes to nothing because the studio itself is, as I have held, a substantial interference; without the studio, there will be no grille, gate and C channel. 72 I should add, however, that even if Mr Arthur proposed to erect the grille and gate without the studio, I would not have been prepared to force upon the Plaintiffs some undertaking to the Court from Mr Arthur which they do not wish to accept. In my view, it is not the correct approach to permit a person to buy the Court's permission to invade another's legal right by proffering in exchange an undertaking to the Court. Undertakings to the Court are different in character and substance from such legal rights as are conferred, for example, by a right of way or a contract and different considerations arise in their enforcement. A person who has such legal rights should not be lightly deprived of them and compelled instead to face the prospect of appeals to the Court's discretion to vary the terms of an undertaking as circumstances change, possibly over many years. Discretionary defences

73 Mr Perram submits that if the Plaintiffs are otherwise entitled to an injunction, relief should nevertheless be refused on the ground of their laches, acquiescence and delay or on the ground that undue prejudice or hardship would be caused to Mr Arthur. 74 The relevant facts are as follows. Mr Arthur is a litigation partner of Allens Arthur Robinson ("Allens"). His knowledge and experience as a lawyer is relevant to the consideration of the discretionary defences which he raises. Mr Arthur purchased No. 26 in May 1998. Prior to exchanging contracts, he was fully aware of the Right of Way and of its terms. He purchased the property with the intention of redeveloping it. On 27 October 1998 he lodged a Development Application with the Council which related only to the renovation of the house and did not include any proposal about a studio. 75 On 7 April 1999, Mr and Mrs Middleton invited Mr Arthur to dinner to discuss his building plans. There is disagreement between the parties as to whether Mr Arthur asked them on that occasion to sign a release of their rights under the Right of Way in respect of the Cutout. It is not a critical issue. What is clear enough is that the parties discussed Mr Arthur's building plans in a general way. Mr Middleton's evidence, which I accept, is that in the course of discussion he told Mr Arthur "we have rights over [your] land and we would certainly object to things across the land" . 76 On 20 April 1999, Mr Arthur wrote to Ms Flower seeking a release by her of her rights over the Cutout. Ms Flower did not respond to that letter. There was correspondence between Allens and Mr and Mrs Middleton's solicitors (Messrs Church & Grace ("Church & Grace")) as to the extinguishment of the Middletons' Right of Way over the Cutout. 77 On 30 June 1999, Mr Arthur lodged a further Development Application with the Council which related to the proposed garage and studio. 78 On 7 September 1999, Mr Arthur met Ms Flower to discuss a release of her rights over the Cutout. 79 On 15 September 1999, Church & Grace wrote to Allens stating that Mr and Mrs Middleton would not consent to the extinguishment of the Right of Way over the Cutout. 80 On 13 January 2000, Mr Middleton wrote to the Council objecting to Mr Arthur's Development Application on the ground that it would constitute an interference with the Right of Way. On 25 January 2000, the Council approved the Development Application. 81 On 21 February 2000, Church & Grace wrote to Allens complaining of the proposed grille, gate and C channel as an interference with the Right of Way. On 24 February 2000 Allens responded, saying that the grille, gate and C channel would not be a substantial interference with the Right of Way. 82 By March 2000 Ms Flower, through her solicitors, had made it clear to Mr Arthur that she would not consent to an extinguishment of the Right of Way over the Cutout. 83 On 16 March 2000, Church & Grace wrote to Allens asserting again that the grille would be a substantial interference with the Right of Way and that they would commence legal proceedings if Mr Arthur proceeded with his proposal. 84 On 31 March 2000 Allens responded, saying that Mr Arthur had made his position clear. 85 On 27 December 2001, Mr Arthur entered into a fixed-price building contract to construct the home, garage and studio at No. 26. There had been no communication between Mr Arthur or his solicitors on the one hand and Mr and Mrs Middleton or their solicitors on the other hand between 31 March 2000 and 27 December 2001. 86 Mr Arthur gave this evidence: "Q: By the time that you signed that building contract, were you aware that the Middletons objected and would object to any interference with the right-of-way? A: At that time the last communication I had received from them was from their, from Church and Grace, and that was back in 2000 when - sorry, I think it was - 2000. There was a letter of 24 February 2000 in which my solicitor explained the detail of the amendments I had made to the design. The Church and Grace letter that responded to that in March said that they still had an objection, and that if I built they would commence proceedings. My solicitor wrote back and said well I've made my position clear, I am going to build.

Q: I just want to ascertain what you believed as at 27 December when you signed the building contract on 27 December 2001. Had the Middletons or their solicitors said anything to you prior to 27 December 2001 which caused you to believe that the Middletons would now approve the construction of the studio garage over the right-of-way? A: The construction that I, was the subject of the building contract, the garage studio construction, in my view on my legal advice did not infringe.

Q: I would like an answer to the question. There had been voiced and expressed to you and your solicitors, through Church and Grace, opposition to what you proposed? A: Yes.

Q: In a chain of correspondence. What I just really want some clarification about is at any time prior to 27 December 2001 had Church and Grace or Mr and Mrs Middleton said anything to you which caused you to believe that they had changed their mind as expressed in previous correspondence? A: No.

Q: Would it be fair to say that you signed the building contract appreciating that there was a risk of litigation by the Middletons and there was a risk that a Court might interpret the situation differently from the way you did? A: I considered that such a long period of time had passed since I received this letter in March 2000, that although there was no indication to the contrary, I don't have any communication with the Middletons, but no action had been taken by them in the nature of an injunction. I felt that I was free to build.

Q: Did you communicate to the Middletons or their solicitors that you were about to sign a building contract on 27 December 2001? A: No, I didn't." 87 On 4 February 2002, excavation on the Cutout commenced and on 15 February it was completed. On 22 February and on 26 March, Church & Grace wrote to Allens asserting that the building works were an infringement of the Right of Way. There was no specific reference in these letters to the studio. On 27 March these proceedings were commenced. 88 This narration makes it very clear, in my opinion, that when Mr Arthur entered into the building contract he fully appreciated that Mr and Mrs Middleton resolutely opposed his proposal to build the studio over the Right of Way. They had told him personally over dinner in April 1999 that they would certainly object to any interference; they had lodged an objection to Mr Arthur's amended Development Application which included the studio; the correspondence from Church & Grace had given clear warning that Mr and Mrs Middleton would take legal action to vindicate their claimed rights. In signing the building contract and proceeding with the building work, Mr Arthur took a deliberate and calculated risk either that the Plaintiffs would not really embark upon litigation or else that, if they did, he would be able to defend the proceedings successfully. 89 Mr Arthur seems to suggest that when Allens wrote on 31 March 2000 "making his position clear" , it was incumbent upon the Plaintiffs immediately to commence proceedings for a quia timet injunction and that, because they did not, they somehow lost the right to take any further action against him so that he was "free to build" . 90 I am unable to accept such a suggestion. There was no indication in March 2000 and thereafter that Mr Arthur was just about to commence building work. It was reasonable for the Plaintiffs to wait and see if Mr Arthur's "clear position" as expressed in Allens' letter of 31 March was, in truth, a bluff and whether he really would proceed to construct the studio in the face of an unequivocal warning of litigation. In fact, no building work on the Right of Way was undertaken between April 2000 and February 2002. 91 Mr Middleton was taxed in cross examination with an accusation that he had done nothing to enforce his rights against Mr Arthur up until April 2002. He said: "I don't know how many times we have to object. Mr Arthur knew we didn't want the building built. We had spoken to him about that, we objected to Council, I don't know how many times one has to put forward one's objection to something that is being built over our right of way which is acknowledged by Mr Arthur."

In my opinion, the position taken by Mr and Mrs Middleton, as expressed in that answer, was a reasonable one. 92 I am satisfied that in proceeding with his building plans from March 2000 onwards and in expending money thereon without giving the Plaintiffs notice that he was doing so, Mr Arthur took a calculated risk of loss if litigation were commenced by the Plaintiffs and the Court decided in their favour. His knowledge and experience as a litigation solicitor would have made him fully aware of the nature and extent of that risk. 93 In these circumstances, I am of the view that the Plaintiffs have not been guilty of any laches, acquiescence or delay and that Mr Arthur would suffer no relevant hardship if an injunction were granted as sought. Orders

94 The Plaintiffs are entitled to an order restraining the Defendant from proceeding with construction of the studio and the grille, gate and C channel in accordance with the Development Approval. 95 The Defendant is not entitled to the declarations sought in paragraphs 2 and 3 of the Amended Cross Claim. By agreement of the parties, the Defendant's Cross Claim for extinguishment of part of the Right of Way has not been heard in this part of the proceedings. 96 I will stand the proceedings over for a short time to enable the parties to determine how the remainder of the proceedings should be dealt with and for the Plaintiffs to bring in Short Minutes of Order reflecting these reasons. When the matter is re-listed, I will hear argument, if any, as to costs.

Last Modified: 07/17/2002 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.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Cases Cited (2)