O'Donnell v Furci & 2 ors

London and Suburban Land and Building Co Pty Ltd v Carey (1991) 62 P&C R 480 CASES CITED : Grieskis and Lahood [1971] NZLR 502 Kirkpatrick v Kotis (2004) 62 NSWLR 567

Leanne Maree O'Donnell v PARTIES : Patrick Joseph John Furci Mary Furci Havenview Homes Pty Ltd

COUNSEL : Plaintiff: M J Cohen Defendant: D Bernie

SOLICITORS : Plaintiff: Home Wilkinson Lowry Defendants: Gould Shaw & Hume Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3312/06 Leanne O'Donnell v Patrick Furci & Ors JUDGMENT 1 HIS HONOUR: This is an application for an interlocutory injunction to restrain the defendants from interfering with the plaintiff's right to use a right of carriageway. 2 The plaintiff owns land known as 207 Fowler Road, Illawong, NSW. The first and second defendants are the owners of a neighbouring property, 203 Fowler Road. Both properties have frontages to the Georges River and neither property abuts Fowler Road. The right of carriageway gives access to both properties from Fowler Road. It is the only access which the plaintiff has to the road. 3 In about February 2006, the first and second defendants commenced building work on their property. The first defendant, Mr Furci, is undertaking the work as owner/builder of the construction of a house on the property. Access to the first and second defendants' site is also along the right of carriageway. The right of carriageway lies partly over the first and second defendants' property and partly over two other properties. Both the plaintiff and the first and second defendants have the right to use it. 4 There is some modification to the terms of the right of carriageway from that provided by schedule 8 of the Conveyancing Act 1919 (NSW). The right of carriageway gives the plaintiff full and free right to pass and repass at all times and for all purposes with or without vehicles. The first and second defendants have the same right. 5 There is a flat area of land along 203 Fowler Road before the land slopes steeply to the water. The first defendant says this area is big enough to allow for parking and manoeuvring space for utility vehicles and small trucks, but not for the delivery of goods from large semi-trailers. He also says that the flat area of land on the first and second defendants' property is too small to provide an adequate turning circle for concrete mixing trucks. 6 The problem which has arisen is that trucks and other vehicles of tradesmen engaged by Mr Furci, and vehicles of his, have regularly been parked on the right of carriageway, in many cases preventing the plaintiff from leaving her property or returning to her property by car. The plaintiff gives evidence of a number of such instances including the following. 7 On 3 April 2006, a large truck was parked on the right of carriageway while soil was excavated from the first and second defendants' property. This blocked any car using the right of carriageway, although it is not clear whether the plaintiff wished to use the right of carriageway at the time. 8 On 19 April 2006, according to her evidence, the plaintiff was delayed for 20 minutes in taking her son to the doctor due to vehicles blocking the carriageway. The next day she was delayed by about a quarter of an hour in taking her son to hospital. 9 On 24 April 2006, according to the plaintiff, she was delayed about 40 minutes from using the driveway to enter her property. 10 On 12 May 2006, the plaintiff said she was delayed for about 25 minutes in taking her son to the doctor, and was delayed by about 15 minutes from re-entering the property on her return, due to concrete trucks parked on the driveway of the carriageway. 11 In relation to this episode the first defendant admitted there was a period of about five to ten minutes when the plaintiff was prevented from driving down the carriageway. 12 On 23 May 2006, Mr Furci sent an email to the plaintiff advising that three trucks would be arriving at 9 am the next morning to carry out a concrete pour. Mr Furci said that he sent the email because he had received a letter from the plaintiff's solicitors advising him that the plaintiff had a child with a serious illness and he wanted to minimise any inconvenience to her. He said he was not seeking her consent to the use of the carriageway for the purpose of delivering concrete. 13 It appears that on the following day the plaintiff took her car out to the top of the carriageway near Fowler Road before the first concrete truck arrived and blocked its passage for a short time. It is unnecessary to go further into the events of that morning. However, the plaintiff gives evidence that on her return, she was unable to take her car back to her house and had to make a number of trips on foot between Fowler Road and her house to unload her groceries, leaving the car in the street. She says later that day she was again unable to drive down to her house. 14 The plaintiff said that on 5 June 2006, she was unable to leave her house for about 50 minutes when she was due to pick up her son after school. Again in relation to this incident, the first defendant's position is that he denies the length of the period of obstruction, but does not deny the substance of the complaint. 15 The following day, 16 June 2006, the plaintiff's older son was unable to drive up the carriageway to leave the house for about half an hour because it was blocked by a large truck. 16 The first defendant does not deny the carriageway has been blocked from time to time, generally in the way the plaintiff deposes, although he says the periods of obstruction were shorter than she contends. 17 It is clear that from time to time trucks have been parked on the carriageway. Concrete trucks have also been parked on the carriageway, and the concrete pour has occurred with the trucks parked in that position. 18 The first defendant's position is that "it is not practical to interrupt the pour of concrete to move the truck out of the carriageway so that the plaintiff's vehicle can come up the carriageway to her property. If this were done on each occasion that the plaintiff wished to use the carriageway the concrete being delivered would be wasted". 19 The first defendant appears to put his convenience in carrying out the construction work on his property ahead of his legal obligation to allow the plaintiff to use the carriageway to obtain vehicular access to her property. 20 The question on the present application is whether there is a serious question to be tried that the first and second defendants have substantially interfered with the plaintiff's right to use the carriageway and threaten to continue to do so, and if so, where the balance of convenience lies in either granting or withholding interlocutory relief. In determining that question, the strength of the plaintiff's case is a relevant consideration. It is particularly so where much of the substance of the plaintiff's complaints is not denied by the first defendant. However, not every obstruction of a right of way is actionable. There must be a substantial interference with the plaintiff's right. 21 It is submitted for the first and second defendants that they are entitled to use the right of way not only for the purpose of passage from the street to their property, but also to allow for the loading and unloading of vehicles. In some cases such a right of loading and unloading will be implied from the physical circumstances in which the right of way is given. For example, a right of way to a shop has been construed as impliedly granting a right to bring goods up to the shop and unload them at that point. 22 In this case however, the evidence suggests an interference going well beyond the use of a carriageway for that purpose. Further, such an implied right to use a right of way for loading and unloading has been found where the configuration of the land is such that the dominant tenement cannot itself be used as a place for loading and unloading goods. The position may well be otherwise where the person entitled to the right of way is able to load and unload goods on his own property (London and Suburban Land and Building Co Pty Ltd v Carey (1991) 62 P&C R 480). In any event, whatever ancillary rights might be implied in the right of way, there cannot be an implied right to use the right of way in a manner which substantially interferes with the plaintiff's right to use it (Grieskis and Lahood [1971] NZLR 502 at 509). 23 It appears to me that there is a strong prima facie case that the first and second defendants have substantially interfered with the plaintiff's rights, such that if there is a continuing threat, it is probable that a final injunction would be granted at a final hearing. There is still a lot of construction work to go. The plaintiff suggested there could be another 12 months of work remaining, and I do not understand the first defendant to take issue with that. There is no evidence from the first defendant to suggest that, unless restrained, there will be any change to the way he, or his tradesmen, will use the right of carriageway. 24 I am satisfied there is a substantial threat of a continued invasion of the plaintiff's rights. The first defendant is not entitled to say that the plaintiff and members of her household should accommodate themselves so as to make arrangements to leave and return to their property only when it suits the convenience of the first and second defendants' tradesmen. A householder is entitled at any time to use the right of carriageway. There is a substantial interference with that right whenever he or she is obstructed from using it. That is so whether the period of the obstruction is 40 or 50 minutes, as is alleged by the plaintiff to have occurred from time to time, or 10 or 15 minutes, or even shorter periods, as contended by the first and second defendants. 25 It is relevant to the balance of convenience that the plaintiff's son is apparently in need of frequent medical attention. It is unacceptable that that should be delayed whilst the first and second defendants or their tradesmen use the carriageway for their construction activities. 26 The plaintiff also complains that the first and second defendants have constructed a cyclone wire fence on the carriageway abutting the plaintiff's property. This was a requirement of WorkCover. Whilst the fence encroaches on the right of carriageway, it does not constitute a substantial interference with the plaintiff's right to use the carriageway. 27 The orders sought by the plaintiff include an injunction restraining the defendants from interfering with or impeding the plaintiff's right to pass and repass along the right of carriageway. I do not think an injunction should be given in those terms. The first and second defendants should be enjoined from carrying out acts which amount to a substantial interference with the plaintiff's right to use the carriageway. There is such a substantial interference with her right where the actions of the first and second defendants or tradesmen engaged by them obstruct or substantially impede people or vehicles from using the carriageway. 28 It is also desirable that the order should deal with the obstruction of the carriageway by tradesmen engaged by the first and second defendants who may be independent contractors and not agents of them (Kirkpatrick v Kotis (2004) 62 NSWLR 567 at 588). 29 The plaintiff also seeks injunctive relief against the third defendant, a company called Havenview Homes Pty Ltd. The first defendant is the director of that company. Mr Furci says that it has no connection with the property or the construction of the residence. I am not satisfied there is any evidence to show that the third defendant has any involvement in the works currently being constructed on the site. 30 For these reasons, upon the plaintiff through her counsel giving the usual undertakings as to damages, I order that until further order the first and second defendants by themselves, their employees and their agents, be restrained from blocking or substantially impeding access by any person, by vehicle or on foot, to or from Lot 15 in DP 1041447, known as 207 Fowler Road, Illawong, along the right of carriageway of variable width described in DP 1072004. 31 I order that until further order the first and second defendants not permit, suffer or cause any third party, including any contractor engaged by them or either of them, to block or substantially impede access by any person to or from Lot 15 in DP 1041447, known as 207 Fowler Road, Illawong, along the said right of carriageway. 32 The costs of the notice of motion of 19 June 2006 will be the plaintiff's costs in the proceedings. 33 These orders may be entered forthwith.

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