GENERALLY - RIGHTS OF WAY – ABANDONMENT, SUSPENSION,
EXTINGUISHMENT OR MODIFICATION
– EXTINGUISHMENT – STATUTORY –
Source
Original judgment source is linked above.
Catchwords
REAL PROPERTY - EASEMENTS – EASEMENTSGENERALLY - RIGHTS OF WAY – ABANDONMENT, SUSPENSION,EXTINGUISHMENT OR MODIFICATION– EXTINGUISHMENT – STATUTORY –where easement in gross granted in favour of local government by developer ofresidentialestate for pedestrian access over walkway between houses and lake– where local government permitted by easement to authorisemembers of thepublic to enjoy rights conferred by easement – where rights mainlyexercised by residents of the residentialestate other than the owners of theservient tenements – where application made by owners of the servienttenements to extinguisheasement under ss 181 (1) (b) and (d) of the PropertyLaw Act 1974 (Q) – where servient tenements able to be used forresidential purposes despite breaches of the easement – where ownersofthe servient tenements unable to show that easement impeded some reasonable userof the servient tenements – where members
of the public authorised to
exercise access rights are persons entitled to the benefit of the easement
– where owners of the
servient tenements unable to show that
extinguishment would not substantially injure persons entitled to the easement
Body Corporate and Community Management Act 1997, s
18
Land Titles Act 1994, s 81A, s 89
Property Law Act
1974, s 181
Averono v Mbuzi [2005] QCA 295,
considered
Averono v Mbuzi [2005] QSC 6, considered
Cavacourt
Pty Ltd v Durian (Holdings) Pty Ltd [1998] NSWSC 787, considered
Re
Eddowes [1991] 2 Qd R 381, considered
Eucalypt Group Pty Ltd v Robin
[2003] QSC 63
[2003] 2 Qd R 488, considered
Guth v Robinson (1977) 1 BPR 9209,
considered
Kort Pty Ltd v Shaw [1983] WAR 113, considered
Ex
parte Melvin [1980] Qd R 391, followed
Re Rollwell Australia Pty Ltd
(1999) Q ConvR 54-521, followed
Smyth v Brisbane City Council
[2007] QSC 30, considered
Wallace v Goodwin [2004] QSC 42,
considered
Judgment (163 paragraphs)
[1]
JA Griffin QC (4 June 2008 only) and RJ Clutterbuck for the plaintiffs
[2]
[1] MULLINS J: Coomera Waters Estate is a residential resort style estate that has been developed in stages around a man-made lake based on the Coomera River. This proceeding concerns stage 4 of the estate which is known as Western Bay and was one of the early stages of the development. The plaintiffs seek extinguishment of registered easements numbered 705416571 (easement BJ on SP 143451) and 705772957 (easement BK on SP 150115) under either paragraphs (b) or (d) of section 181(1) of the Property Law Act1974 (PLA). The easements were granted by Coomera Waters Village & Resort Pty Ltd (the developer) in favour of the Gold Coast City Council (the Council) for the purpose of pedestrian access.
[3]
[2] Coomera Waters Estate has been developed using a layered arrangement of community titles schemes, as provided for in s 18 of the Body Corporate and Community Management Act1997. There are three principal bodies corporate and 25 subsidiary bodies corporate. Relevantly for this proceeding Coomera Waters Community Titles Scheme 29693 is the Principal Body Corporate for 12 subsidiary bodies corporate including Western Bay Body Corporate Community Titles Scheme 30080 (Western Bay Body Corporate) which covers stage 4. There are 439 lots for the Principal Body Corporate.
[4]
[3] Easement BJ burdens Lots 222 to 235 which are the lakefront properties in Ripple Court. It was registered on 20 February 2002. Easement BK burdens Lots 210 to 220 which are the properties in Nocturne Lane. It was registered on 5 July 2002. The easements were registered prior to any plaintiff becoming a registered owner of one of the subject lots.
[5]
[4] In between Lots 220 and 222 is common property of the Western Bay Body Corporate. Both easements traverse and therefore burden this common property. That is why the Western Bay Body Corporate is the second plaintiff in this proceeding. The owners of Lots 210 to 220 and 222 to 235 are represented by the first plaintiff.
[6]
[5] The easements are contiguous. Easement BK joins the northern end of easement BJ. Where the easements traverse the properties in Ripple Court and Nocturne Lane, they are five metres wide, run along the edge of the lake and comprise a three metre wide walkway (the walkway) that abuts the edge of the lake and a two metre wide garden. There is also a revetment wall along the edge of the lake.
[7]
[6] Of the 25 lots that are burdened by the easements, 14 of the lots have an area which is between 527m2 and 606m2, another seven of the lots have an area between 736m2 and 808m2 and the remaining four lots are respectively 882m2, 997m2, 1001m2, and 1047m2 in area. The approximate area of that part of each lot that is covered by one of the easements is calculated by multiplying the width of the lot where it meets the easement area by the 5 metres representing the width of the easement. By way of example, Lot 226 has a frontage to the easement of about 17.5 metres, so that the part of Lot 226 that is the subject of easement BJ has an area of about 87.5m2. The total area of Lot 226 is 787m2.
[8]
[7] The easements are public utility easements made pursuant to s 89 of the Land Titles Act 1994. The covenants in each easement are identical. Clause 1 sets out the definitions of grantee, grantor and the servient tenement. The grantee is the Council. For the purpose of the easement covenants, the servient tenement is defined as the area surveyed for the easement. Clauses 2 to 11 of the covenants provide:
[9]
The Grantor hereby grants to the Grantee full and free right and liberty for the Grantee and the Grantee's employees, and all other persons authorised by the Grantee in common with the Grantor and all others having the like right and liberty at all times hereafter without any motor cars or any other vehicles of any description, for all lawful purposes but not for any other purpose (other than as may be set out in this Grant) to have pedestrian access along, through, over and across the Servient Tenement.
[10]
The Grantee may authorise under clause 2 the members of the Public as such to exercise access rights pursuant to that clause.
[11]
The Grantee and all other persons using the Servient Tenement shall not park or leave standing on the Servient Tenement or any part thereof any motor car or other vehicles or deposit or leave thereon any goods, article or things that may in any way interfere with the proper use of the Servient Tenement by the Grantor or the other persons authorised to use the Servient Tenement.
[12]
The Grantee must in its exercise of the rights granted hereunder use its best endeavours to ensure that no damage or nuisance is caused to the Servient Tenement or to the property of the Grantor or others thereon.
[13]
Neither party hereto, shall erect, or allow the erection, of any gate or barrier of any description on or across the Servient Tenement except that the owner (from time to time) of each Lot incorporating Servient Tenement land may erect and or maintain one Pontoon Gangway protruding up to 0.5 meter onto the Servient Tenement within the owner's land.
[14]
The right of access conferred on the Grantee by this instrument shall be exercised by the Grantee having full regard to the use and enjoyment of the Grantor of the Servient Tenement and the uses to which the Servient Tenement from time to time, is being put provided that such use and enjoyment of the Grantor shall in no way
[15]
The right of access conferred on the Grantee by this instrument shall be exercised by the Grantee in conjunction with the full use and enjoyment by the Grantor of the Servient Tenement,
[16]
The Grantor will keep the Servient Tenement in good repair. The Grantor will bear any and all costs incurred in respect of the maintenance of the Servient Tenement. The Grantee must, however, maintain any access tracks and appurtenant works which the Grantee may construct upon the Servient Tenement.
[17]
The Grantee and the Grantee's employees and all other persons authorised by the Grantee are entitled to:-
[18]
10.1 clear and keep clear the Servient Tenement by any means .or method and to cut and remove timber, trees and undergrowth from the Servient Tenement and to burn off on the Servient Tenement such timber, trees and undergrowth;
[19]
10.2 construct and maintain such access tracks and appurtenant works off the Servient Tenement which the Grantee shall consider necessary;
[20]
10.3 permit the use of the Servient Tenement for any purpose not inconsistent with the rights herein mentioned and not likely to cause interference with or endanger such access tracks and appurtenant works,
[21]
Neither the Grantee nor the Grantor may erect any buildings or structures on the Servient Tenement without prior approval in writing from the other party."
[22]
[8] The southern end of the walkway adjoins the balance of easement BJ that connects with the beach at Sandy Bay and traverses through the park that is common property of the Principal Body Corporate and known as "Sandy Beach Park" between the beach and Ragamuffin Drive. The northern end of the walkway adjoins the balance of easement BK that traverses the park that is common property of the Principal Body Corporate and meets another part of Ragamuffin Drive. It is therefore possible for members of the public to traverse the walkway by walking along the easements between the points where they respectively meet Ragamuffin Drive. (The contention of the plaintiffs made in the submissions at the conclusion of the trial that the easements do not connect areas of public access is wrong.)
[23]
[9] Between Nocturne Lane and Ripple Court there is a melaleuca wetland which is a nature reserve, but to which the public does not have access from the walkway.
[24]
[10] The plaintiffs complain that the use of the walkway is in excess of that contemplated by the easements and adversely affects their enjoyment of their residential properties. The plaintiffs identify as the fundamental difficulty with the easements that the walkway appears to be a public boardwalk, is being used as such and will continue to be used as such, in circumstances in which it is not public property. The plaintiffs propose extinguishment of the easements as the solution for this difficulty.
[25]
[11] Subsections (1) to (4) of s 181 of the PLA provide:
[26]
"Power to modify or extinguish easements and restrictive
[27]
(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied-
[28]
(a) that because of change in the user of any land having the benefit of the easement or restriction, or in the character of the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed obsolete; or
[29]
(b) that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either-
[30]
(i) does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or
[31]
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification; or
[32]
(c) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed, have agreed to the easement or restriction being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part or waived the benefit of the restriction wholly or in part; or
[33]
(d) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction.
[34]
(2) In determining whether a case is one falling within subsection(1)(a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance.
[35]
(3) The power conferred by subsection (1) to extinguish or modify an easement or restriction includes a power to add such further provisions restricting the user or the building on the land as appear to the court to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant, and the court may accordingly refuse to modify an easement or restriction without such addition.
[36]
(4) An order extinguishing or modifying an easement or restriction under subsection (1) may direct the applicant to pay to any person entitled to the benefit of the easement or restriction such sum by way of consideration as the court may think it just to award under one, but not both, of the following heads, that is to say, either-
[37]
(a) a sum to make up for any loss or disadvantage suffered by that person in consequence of the extinguishment or modification; or
[38]
(b) a sum to make up for any effect which the restriction
[39]
had, at the time when it was imposed, in reducing the
[40]
consideration then received for the land affected by it."
[41]
[12] It has been settled by a number of decisions that the words "or that the easement or restriction" in s 181(1)(b) of the PLA should be read as "and that the easement or restriction": Ex parte Melvin[1980] Qd R 391, 393 and Eucalypt Group Pty Ltd v Robin[2003] QSC 63; [2003] 2 Qd R 488, 503 [71] (Eucalypt).
[42]
[13] Some guidance to the approach that should be taken to s 181(1)(b) of the PLA was given by Muir J (as he then was) in Averono v Mbuzi[2005] QSC 6 at [28]:
[43]
"The provision under consideration is looking to the consequences flowing from the existence of the easement and the rights and obligations created thereby. It is not addressing specific acts or omissions in breach or exercise of such rights or obligations."
[44]
This statement was expressly adopted by Keane JA on appeal in Averono v Mbuzi[2005] QCA 295 at [21].
[45]
[14] In order to enliven s 181(1)(b)(i) of the PLA, the plaintiffs must show in respect of each easement that:
[46]
(a) the continued existence of the easement would impede some reasonable user of the land subject to the easement; and
[47]
(b) the easement, in impeding that user, does not secure to persons entitled to the benefit of the easement any practical benefits of substantial value, utility or advantage to them; and
[48]
(c) money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment of the easement.
[49]
[15] In relation to the first requirement, it has been held that "impede" means "retard or hinder": Re Rollwell Australia Pty Ltd(1999) Q ConvR 54-521 at 60,199. The construction given to "impede" as meaning "significantly impede" in Eucalypt at 506 [87] puts a gloss on the use of the word "impede" that is not justified by the provision.
[50]
[16] In the case of each lot of land which is burdened by one of the easements, it is the reasonable use of the entire lot that is relevant and not merely that part of the lot which is within the area of the easement. This proposition was common ground between the parties and is supported by the approach taken in other cases: Guth v Robinson (1977) 1 BPR 9209, 9216; Re Eddowes[1991] 2 Qd R 381, 392.
[51]
[17] In relation to the second requirement, the identity of "persons entitled to the benefit" of the easement has to be determined. Is it the Council as the grantee of the easement or does it extend to all persons authorised by the Council to use the walkway? The contention of the plaintiffs is that it is the Council alone that is the person entitled to the benefit of each of the easements and that members of the public have no entitlement under the easements. The contention of the Council is that the persons entitled to the benefit of the easement within the meaning of s 181(1)(b)(i) of the PLA include members of the general public as persons authorised by the Council to use the easement.
[52]
[18] If the Legislature intended to limit "persons entitled to the benefit of [the easement]" to the grantee or the successor in title to the grantee that could have been achieved by using an expression that expressly described that category of persons. In the case of an easement where there are servient and dominant tenements, the persons entitled to the benefit of the easement must be the grantee or the successor in title (as the registered owner of the dominant tenement) and any other person who has a relevant interest in the dominant tenement that gives that person the right to use the easement, such as a registered lessee, other tenant or licensee. The position in respect of an easement in gross is different as there is no dominant tenement. The grantee of such an easement may be a person entitled to the benefit of the easement. Where a public utility easement has been registered in reliance on s 89 of the Land Title Act1994 the benefit of the easement may, in a practical sense, be enjoyed by persons other than the public utility provider. A right of way easement that benefits pedestrians is of that nature. The issue was adverted to in Smyth v Brisbane City Council[2007] QSC 30 which was an application under s 181(1) of the PLA involving an easement in gross for drainage. Fryberg J stated at paragraph [16]:
[53]
"The case has been conducted on the assumption that the Council is the person entitled to any benefit secured by the easement. I shall proceed on that basis. In any event it is by no means clear that the practical benefits referred to in para (b) of s 181 and the absence of injury required under para (d) must affect the beneficiary under the easement personally where the easement is an easement in gross or a public utility easement."
[54]
[19] The access that is granted under clause 2 of the easements is to the Council, its employees and all other persons authorised by the Council. Clause 3 then makes it clear that the Council may authorise members of the public to exercise the access rights pursuant to clause 2.
[55]
[20] Although the plaintiffs did not allege in their statement of claim that the easements were invalidly granted, the plaintiffs submitted that an easement in reliance on s 89 of the Land Titles Act 1994 must be granted in aid of a public utility and that did not occur in this matter. Although the expression "public utility easement" is the description given to the easement in gross that is provided for in s 89 of the Land Titles Act 1994, that is the expression that is defined in s 81A of the Act and is a convenient way of referring to easements of that nature. Section 89(3) of the Act contemplates that the public utility provider under a public utility easement registered for a right of way will be either the State or a local government and the right of way will be used by pedestrians. There is no requirement that a public utility easement be granted in aid of a public utility.
[56]
[21] It is also not an allegation pleaded by the plaintiffs that the Council has not authorised members of the public to use the walkway. In fact, the complaints of the plaintiffs proceed on the basis that members of the public do use the walkway. Both parties conducted their cases on the basis that members of the public were using the walkway and the Council has defended the plaintiffs' claim on the basis of seeking to maintain the rights of members of the public to use the walkway. There must have been, at least, implicit authorisation by the Council for members of the public to use the walkway.
[57]
[22] Even accepting that the Council has authorised members of the public to use the walkway, the plaintiffs contend that members of the public have no rights under the easement in the sense of not being persons "entitled to the benefit" of the easement. Where a public utility easement is granted for the purpose of pedestrian access, the pedestrians who enjoy the benefit of that access must fall within the description of persons entitled to the benefit of the easement. It would amount to a failure to properly consider the rights conferred by the easement, if a consideration of the enjoyment of those rights for the purpose of an application to extinguish or modify the easements was limited to the rights of the Council as grantee. I therefore reject the plaintiffs narrow construction of the expression "persons entitled to the benefit of [the easement]".
[58]
[23] In relation to the second requirement of s 181(1)(b)(i) of the PLA, it is relevant to consider what can amount to "practical benefits of substantial value, utility, or advantage" to persons entitled to the benefit of the easement. Section 181 applies both to easements and restrictive covenants. The construction of comparable statutory provisions in their application to restrictive covenants has been treated as equally authoritative for the application of the same provision to easements: Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd[1998] NSWSC 787. (This decision was overturned on appeal on the aspect of whether the easement was obsolete. The dicta in relation to the construction of the relevant statutory provision was not relevant on the appeal: Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18099.)
[59]
[24] In Kort Pty Ltd v Shaw[1983] WAR 113 there was a restrictive covenant that prevented the subject land from being used other than for a single dwelling house. The restrictive covenant had been imposed by the original developer to preserve the neighbourhood as a single residence area. The purchaser of the subject land wished to demolish the existing dwelling and construct on the subject land and an adjoining block (that was not the subject of the same restrictive covenant) a building containing five single-storey residential units. Other residents in the neighbourhood opposed the removal or modification of the restrictive covenant on the basis that they enjoyed the open space, gardens and quietness that the original development had created. It was held by Burt CJ that such matters of enjoyment were "practical benefits" within the meaning of the comparable provision to s 181(1)(b) of the PLA and that if the restrictive covenant were removed or modified to permit the proposed redevelopment the injury to the objectors would be substantial.
[60]
[25] In order to enliven s 181(1)(b)(ii) of the PLA, the plaintiffs must show that:
[61]
(a) the continued existence of the easement would impede some reasonable user of the land; and
[62]
(b) the easement, in impeding that user, is contrary to the public interest; and
[63]
(c) money will be an adequate compensation for the loss or advantage (if any) which any such person will suffer from the extinguishment of the easement.
[64]
[26] It is not as onerous for the plaintiffs to enliven s 181(1)(d) of the PLA, as it is to enliven s 181(1)(b). All that the plaintiffs have to show in respect of s 181(1)(d) is that the proposed extinguishment will not substantially injure the persons entitled to the easement. The reference to "persons entitled to the easement" is in substance the same as "persons entitled to the benefit of [the easement]" and must be given the same meaning as that expression in s 181(1)(b).
[65]
[27] The expression "substantial injury" is "not an injury which is large or considerable but one 'which is real and which has a present substance'": Averono v Mbuzi[2005] QCA 295 at [26].
[66]
[28] The Coomera Waters Estate was facilitated by a rezoning in November 1996 to the Special Facilities Zone. Progressive development applications were then made for each precinct of the development. The estate is based on the Coomera River and surrounds a 17 hectare lake that gives ocean access via the Coomera River. Although there are many waterfront lots facing the lake, most of the housing lots in the estate are "dry" lots. There is an island in the middle of the lake called the Isle of Wings. The development includes a marina. The master plan for the estate included a village at the marina with shops, services and licensed premises and extensive walking tracks. Throughout the estate there are residents only recreation clubs containing gym, tennis and swimming facilities.
[67]
[29] The Coomera Waters Estate was promoted as an "eco-experience". Amongst the promotional material for the development was a guide to the proposed reserves and parks, walking trails and the wildlife and flora (exhibit 6). One of the walks depicted in this brochure is described as the marina circuit and incorporates the walkway as part of the marina circuit. The brochure emphasises the number and variety of walks available throughout the estate.
[68]
[30] On 16 January 2001 an application was made for a development permit for a material change of use and reconfiguration of a lot for stage 4. Approval for stage 4 was given by the Council in August 2001. Ultimately the Council in October 2001 issued a decision notice which allowed a subdivision into two stages 4A and 4B consisting of 28 residential lots in respect of an approved plan that showed the easements.
[69]
[31] Although the developer had proposed to the Council that there be a condition in the decision notice requiring the developer to provide a five metre zone along the lakefront in accordance with the landscape plans including a three metre easement for pedestrian access to the Council covering the pathway along the lakefront and linking to Ragamuffin Drive, there was not a condition in the decision notice as such. The decision notice referred to the proposal for "a lakeside beach and recreational park will be provided at the southern section of Stage 4 and a parkland area at the northern end both within common property allowing public access."
[70]
[32] The walkway was constructed before any lots in Western Bay were developed. Photographs taken in July 2002 show the completed walkway. The walkway is lit at night by means of overhead lights.
[71]
[33] Under by-law 41.2 of the by-laws of the Principal Body Corporate, the Principal Body Corporate is deemed the beneficial owner of the revetment wall and the improvements on the easements. Under by-law 41.3 of the Principal Body Corporate's by-laws, the Principal Body Corporate is empowered and obliged to maintain, repair, improve and/or replace the revetment wall and the improvements on the easements and to carry out the works and maintenance for purposes ancillary to such obligations.
[72]
[34] Progressively commencing from around early 2003 houses were constructed on the lots in Western Bay. The garden and walkway on the easements is fenced from the yards of the waterfront lots. Each of the yards has a gate in the fence to allow access to the walkway by means of steps leading from the yard for that lot down onto the walkway.
[73]
[35] Many of these properties also have jetties which are attached to the walkway and/or the revetment wall. Many of the jetties are gated to prevent general access. Clause 6 of each of the easements specifically allows the owner of each lot burdened by one of the easements to erect and/or maintain one pontoon gangway protruding up to 0.5 metres onto the walkway within the owner's land. Many of the owners have therefore exercised that right. The fact that the resident owned the land to the water's edge facilitated the approvals required for the construction of the jetty by the resident.
[74]
[36] There are two public pontoons which are accessed from the walkway. One is accessed from the park at the northern end of the walkway and the other is located about halfway along the walkway in line with the common property of Western Bay Body Corporate which is traversed by the walkway.
[75]
[37] The members of the public who are likely to use the walkway are mainly other residents in the Coomera Waters Estate, but use of the walkway is not limited to those members of the public. As each additional stage in the Coomera Waters Estate has been developed, the potential numbers of likely users of the walkway has increased. This is consistent with the master plan for the estate and has not been unexpected by the plaintiffs or anyone else.
[76]
[38] The walkway is not the only means of access from the point in Ragamuffin Drive that abuts Sandy Beach Park to the point in Ragamuffin Drive that abuts the park at the northern end of the walkway. Pedestrian access between the same two points in Ragamuffin Drive can be obtained by the footpath running alongside Ragamuffin Drive. That means of access, however, is not on the waterfront.
[77]
[39] Coomera Waters Management Pty Ltd (the caretaker) manages the Coomera Waters Estate on behalf of the principal bodies corporate. It has an office in the village at the marina and provides information to residents about various recreational groups that operate in the estate and is the contact point for information for the various bodies corporate. The caretaker contracts out the activities that are required in order to manage and maintain the estate including security and grounds and garden staff.
[78]
[40] The caretaker manages the contracts that the principal bodies corporate have with Sureline Security Pty Ltd (the security service) to provide 24 hour security to the estate. The cost of the security is divided equally among all lot owners in the Coomera Waters Estate who pay for the security through their body corporate fees.
[79]
[41] In November 2005 a sign was erected at each end of the walkway that was paid for by the Principal Body Corporate. The sign says:
[80]
No use of vehicles, including bicycles, skateboards, scooters are allowed.
[81]
Please ensure you keep well clear of the edge of the walkway.
[82]
Please consider and respect the privacy of the residents and their property along this walkway."
[83]
[42] The Council insignia is on the lower right hand corner of the sign.
[84]
[43] In about July 2006 a second sign was installed under the first sign at each end of the walkway. This second sign shows restrictions on use of the walkway in a pictorial form. The second sign prohibits cars, bicycles, scooters/skateboards and rollerblading. The second sign was paid for by the Principal Body Corporate.
[85]
[44] At the Principal Body Corporate meeting held on 28 September 2005 the following resolution was passed:
[86]
"That upon approval received from Gold Coast City Council (GCCC) that architecturally designed gates be erected on either side of Western Bay on Principal Body Corporate common property. That these gates be locked by Coomera Waters security between the hours of 8.00pm and 6.00am. The gates will remain open with no obstruction to the public outside those hours. It was further noted that the Principal Body Corporate Committee and Western Bay want to provide a solution which satisfies all the local residents whilst taking into account the privacy and noise concerns of the Western Bay residents. It was also envisaged that this problem will only get worse following the opening of the tavern and the Principal Body Corporate would like to resolve this matter before the opening of the tavern. Therefore the Committee requested for the Community Manager to correspond to the GCCC and to Minter Ellison Solicitors who are acting on behalf of the GCCC with regard to the above solution."
[87]
[45] The Community Manager sent the letter to the Council for the attention of Councillor Power on 3 October 2005. As a result of Councillor Power's suggestion that the proposal be sent to the Council's solicitor, that was done by the Community Manager on 17 October 2005.
[88]
[46] It was noted at the next meeting of the committee of the Principal Body Corporate held on 16 November 2005 that Councillor Power had accepted the proposal that was the subject of the resolution at the previous meeting, but it was required to be sent to the Council's solicitor for final approval and the Council's solicitors had requested plans and a view of the proposed gates that had been attended to.
[89]
[47] The Community Manager did not receive a response from the solicitors for the Council until 7 December 2006. That letter conveyed that the Council was likely to agree to Western Bay's request to construct gates restricting access over the walkway between certain hours. The Council's solicitors indicated that the Council's approval would be subject to conditions that would need to be incorporated into the easements by amendment. These conditions were:
[90]
"1. The constructed gates should be locked only between the hours of 10pm and 5am and must otherwise ensure free and unhindered public access between the hours of 5am and 10pm.
[91]
All gates are to be signed informing the public about the unrestricted hours of use.
Current public liability risks associated with the easement area must remain the responsibility of the grantors of the easement (the principal body corporate and individual lot owners variously).
The grantors of the easement must, at their expense:-
[92]
(b) provide security to Council's satisfaction to patrol, lock and unlock the gated areas during the restricted access period."
[93]
[48] This proposal of erecting gates and keeping the walkway closed to the public between 10pm and 5am on each day has not been pursued further at this stage.
[94]
[49] This proceeding commenced on 22 February 2007.
[95]
Insurance against liability for accidents on the easements
[96]
[50] At the time the proceeding commenced many of the plaintiffs had been refused cover by their public liability insurers for any loss, damage or injury that may occur to any person on their properties who was exercising the rights of access conferred by the easements.
[97]
[51] The Principal Body Corporate organised with its public liability insurer to include the additional risk from the walkway under its policy. The level of indemnity is for $20m. In addition the underwriters confirmed on 29 June 2007 that the public liability insurance for Western Bay Body Corporate was extended to provide indemnity to the owners of the servient tenements for any claims for incidents that occur on the easements. The policy schedule was endorsed as follows:
[98]
"Subject to the terms, conditions and exclusions of this policy, Section 2 of this policy is extended to provide indemnity to the owners for the time being of lot numbers 210 to 238 of Body Corporate for Western Bay CTS 30080 in respect of claims which occur on land which is the subject of the following easements:
[99]
Further this extension of indemnity to owners of the lot numbers specified above does not apply to Section 2 Liability - Additional benefit - Legal Expense Costs."
[100]
[52] A certificate of currency for that insurance policy for the year ending 31 January 2009 was produced at the trial (exhibit 3). As lot owners in Western Bay raised a concern about the wording in the extension of "owners for the time being of Lot numbers 210 to 238", the Principal Body Corporate clarified the wording with the underwriters. It was explained that the wording was intended to eliminate the need to list all the owners' names and the need to change the owners' names should the ownership of any of the lots change. The underwriters confirmed that the owners of the lots at the time a claim arose were covered under the indemnity, even if they had sold subsequently.
[101]
[53] The concern of the plaintiffs about insurance is now primarily focused on the lack of insurance for any legal expenses that the plaintiffs incur in defending a claim arising from the use of the walkway. The plaintiffs rely on the affidavit of solicitor Mr David Bray as to the potential legal costs that might be involved in dealing with any claims.
[102]
[54] The plaintiffs' application has to be determined on the evidence as to the use of the walkway and the consequences for the servient tenements when the proceeding was heard by the court. Evidence of past events remains relevant for giving context to the current use of the easements and assessing the existing concerns expressed by the plaintiffs about the future use of the easements.
[103]
[55] Although a number of the plaintiffs complained of vehicles using the walkway, the evidence consistently referred to one incident on 30 November 2005 where the owner of the boat moored at 11 Ripple Court had organised for repairs to be done to the boat by a mobile marine repairer who drove his van along the walkway. That incident was an aberration and, in light of subsequent steps taken to increase awareness of the users of the walkway that it is limited to pedestrian use only, is unlikely to be repeated.
[104]
[56] Some of the residents complain that representations were made on behalf of the developer before they contracted to purchase their lots that there would be a "residents only" walkway that would surround all the waterfront properties in the estate. Some of the promotional material for the estate (including exhibits 5 and 6) did show a boardwalk as extending further than stage 4. The focus of this proceeding is not any representations made on behalf of the developer to a Western Bay resident relating to the walkway before the resident purchased a lot in Western Bay. The easements were granted by the developer to the Council before any of the plaintiffs became the registered owners of the lots. This proceeding is therefore concerned with those matters that are relevant to the application to extinguish the easements.
[105]
[57] Mrs Oldfield's house in Nocturne Lane was constructed in 2003. Mrs Oldfield complains about people on the easement "staring" at her. Over the last few years, she has also had tomatoes, yoghurt, eggs and rocks thrown at her home all hours of the night. She also had people fishing off the walkway that hit her boat when they threw their lines into the water. She has observed people catching their fishing lines on her pontoon carpet. Mrs Oldfield sees people fishing from the walkway on a weekly basis, but mainly on the weekends. Mrs Oldfield does not consider the erection of the signs advising that the walkway is for pedestrian use only has stopped people from riding bicycles or scooters or using skateboards or rollerblades on the walkway.
[106]
[58] Mr Harrington lives in Ripple Court. Mr Harrington complains of increased noise under his bedroom window from walking groups and drunken revellers from as early as 4am. He has had beer and wine bottles thrown into his pool and gardens. Mr Harrington has been abused when he asked people not to ride bicycles and scooters on the walkway. He has had instances of unsupervised children using his pontoon as a diving platform and ignoring signs which say "keep out". On one occasion a man looking for his dog walked into Mr Harrington's yard from the walkway without asking permission. Mr Harrington exhibited a printout from the Coomera Waters Estate intranet site that purported to stipulate opening hours for the walkway.
[107]
[59] Mr Van Rooy lives in Nocturne Lane. Mr Van Rooy is disturbed by early morning joggers and people using the walkway who are loud, rude and disruptive. Mr Van Rooy has also noted that people on the walkway continually look into his house. Mr and Mrs Van Rooy have observed instances of dangerous activity involving children using the walkway and are concerned for the safety of unsupervised children on the walkway.
[108]
[60] Mr Van Rooy has exhibited photographs to his affidavit that record people riding bicycles on the walkway. One of those photographs relates to an incident that occurred on 29 July 2007 when Mr Van Rooy was talking to a security officer about the problems with the walkway. People passed them riding bicycles and were spoken to by the security officer. Mr Van Rooy has found that on some occasions, when he has endeavoured to contact the security service by telephone, his call has gone to message bank.
[109]
[61] Mrs Fraser lives in Ripple Court. She and her husband were amongst the early purchasers in stage 4. Their jetty was the first in the lake area and it was erected in August 2002. Mrs Fraser had a long list of problems that she experienced as a result of the walkway. She found that people swam across from Sandy Beach to her jetty and then climbed onto her jetty and boat. Although she said that she did not believe the signs erected at both ends of the walkway had changed much at all, some of the problems that she identified had been addressed. Her complaint about an electrician using a van to check the lights on the walkway resulted in that practice being discontinued. The abuse she had received from persons whom she had advised prior to the signs being erected that the easement was for pedestrian use only was addressed by the erection of the signs.
[110]
[62] The sorts of problems that Mrs Fraser still encounters are hostility and disregard from residents since the signs have been erected, people who are noisy when they traverse the walkway, broken bottles left overnight in the gardens on the easement and unleashed dogs roaming the walkway.
[111]
[63] Ms Hirsch lives in Ripple Court. She and her husband purchased their property from a private vendor in 2004 or 2005. Although Ms Hirsch complains about her house being egged from the walkway, her husband had made a complaint to the security service about that incident that suggests that it was not a random act in the sense that the teenagers alleged to have been involved may have been known to the teenagers living at the Hirsch home. Ms Hirsch gave evidence about a glass thrown at her family's boat and smashed over their pontoon, adults and children riding their bicycles on the walkway, early morning walkers with unleashed dogs or talking loudly and people stopping to take photographs of their house whilst they were at home.
[112]
[64] Mr Sinclair and his wife became residents in Ripple Court in February 2006. Examples of the misuse of the walkway observed by Mr Sinclair are noisy skateboard and bicycle riding by people of all ages, loud and often abusive language from teenagers and inebriated adults at all hours and a general lack of consideration shown to the residents of the walkway. Mr Sinclair does not consider that the signs put at both ends of the walkway have reduced the problems. He considers many of the users of the walkway have a belligerent attitude towards the restrictions.
[113]
[65] In the evening of 23 June 2007 a stranger wandered off the walkway and into Mr and Mrs Sinclair's home. Mrs Sinclair was alone at the time when she saw the man in the lounge room. He was inebriated and left when requested by Mrs Sinclair to do so. The security service responded quickly to Mrs Sinclair's report of this intrusion and dealt with it by locating the man and informing those with him of his trespass.
[114]
[66] Mr Potgieter and his wife have resided in Ripple Court since November 2004. The most serious instance of nuisance encountered by them was when a man entered their yard via the unlocked gate in the back pool fence and was in the kitchen when confronted by Mr Potgieter. Mr Potgieter escorted the uninvited visitor out of his house. Mr Potgieter expresses frustration about the failure of any authority to take responsibility for policing the use of the walkway. In 2005 he complained to the police about the bicycles, skateboards and scooters being used on the walkway. The response of the police was that he should contact the Council or the Principal Body Corporate. He found when he called the Council, he was told it was the developer's problem, while the developer advised him to contact the Council or the Principal Body Corporate. When he contacted the Principal Body Corporate, he was told to call security who claimed they had no power to do anything.
[115]
[67] Mr Dunlop and his wife moved into the house they constructed at Ripple Court in December 2003. They moved from that address in about September 2007. Mr and Mrs Dunlop have been affected by what Mr Dunlop describes as "constant abuse" from members of the community about the use of the walkway. Mr Dunlop found that when people walked their dogs early in the morning, it would cause his dogs and other dogs in Western Bay to bark.
[116]
[68] Mr and Mrs Lister have resided in Ripple Court since May 2004. On 25 October 2007 at 8am when Mr Lister was in his backyard with two of the security officers and Mr Richardson (who is the manager of the caretaker), they observed an adult riding a bicycle along the walkway at approximately 25kph. Mr Lister said something to the rider and he raised his finger in the air. Mr Lister states that he has been abused or insulted by riders of bicycles on an almost daily basis and has had to remove discarded drink bottles from his backyard and pool. He is also disturbed by early morning walkers who pat the dogs next door which causes them to bark and by walkers who stare into his home. On another occasion when Mr Lister was on his pontoon, a two year old girl walked down onto the pontoon with her parents about 40 metres down the walkway. The child fell into the canal and Mr Lister jumped in to retrieve her. On another occasion Mr Lister was on his back patio when he and a neighbour saw children undo the moorings of a boat at the pontoon of an adjoining property. Mr Lister and his neighbour ran down, jumped on the boat and tied it up again. They rang the security service which did not respond.
[117]
[69] Mr Lister was chairman of the Western Bay Body Corporate for about five years until April 2008. He raised concerns of Western Bay residents at Principal Body Corporate meetings and represented Western Bay Body Corporate at meetings with the Council and its solicitors in respect of the proposal for putting gates at either end of the walkway. He was under the impression that the Principal Body Corporate had refused permission for the gates, but no letter or resolution to that effect was produced on behalf of the plaintiffs. A proposal for bollards on the walkway was not pursued by the Principal Body Corporate, because of the objection of a resident who required a wheelchair for mobility.
[118]
[70] Mr and Mrs Hughes reside in Nocturne Lane. Mr Hughes has observed the increase in use of the walkway as the estate developed and is concerned that persons who use the walkway have little regard for his property. His complaints include the noise of joggers, persons who talk loudly and pound the pavement whilst passing a few metres from his bedroom window, bottles being thrown into his yard, fights on the walkway and inebriated persons using the walkway.
[119]
[71] On one occasion a large lump of wood was thrown into Mr Hughes' yard. He called the police who located the culprits.
[120]
[72] Mr and Mrs Racloz live in Nocturne Lane. Mrs Racloz complains about rocks, beer cans and other missiles being thrown into her garden and pool. She has been abused with offensive language when requesting consideration from users of the walkway. Since the tavern opened, she has been disturbed by inebriated persons using the walkway in the early hours of the morning. She then finds that she is woken by early morning walkers as early as 5am.
[121]
[73] Mr Hardcastle has been the chairman of the Principal Body Corporate since March 2007. Prior to that he was on the committee of another subsidiary body corporate, the Eastern Bay Body Corporate. He has been a resident in stage 5 for about 4 years. He decided against purchasing one of the lots in Nocturne Lane, as he did not want people walking past the front of the property on the water. He refers to the popularity of the walkway, as it is the only part of the walkway system which is alongside the water. (There is a path by the Coomera River that is not sealed and is not part of a walking track circuit.) Mr Hardcastle describes the walkway as forming an essential part of the amenity of the area and says that it encourages healthy lifestyles.
[122]
[74] Ms Brushett is a member of a walking group of the Coomera Waters Estate that comprises 30 members and has been walking together since February 2005. The group walks along the walkway and throughout other areas of the estate at 7:30am on Monday, Wednesday and Friday and at 6:30am on Tuesday, Thursday and Saturday. The group meets at Sandy Beach Park. The group enjoys the water views from the walkway.
[123]
[75] Mr Roper was the manager of the caretaker between August 2004 and September 2007. Because of complaints from residents of Western Bay regarding security along the walkway, the frequency of patrols along the walkway was increased. There was on average eight foot patrols along the walkway and in excess of 100 drive by patrols on a daily basis with increased monitoring at night.
[124]
[76] Mr Roper said that when one of the residents complained about one of the maintenance staff riding a ride-on mower over the walkway to access the common property between Lots 220 and 222, in order to mow it, the caretaker obtained from the Council approval for service vehicles to use the walkway for a 12 month period that is renewable. The letter from the Council dated 6 July 2007 incorrectly treats the area of the easement as a reserve or park. (There is no power given to the Council under the easements to give approval for any vehicles of any nature to use the walkway. The giving of that approval by the Council without the authority to do so does not override the prohibition in the covenants of the easements.)
[125]
[77] Mrs Ward has lived in the Coomera Waters Estate since March 2002. Her husband is a builder who has constructed many of the houses in the estate. They originally lived in stage 1A. They subsequently purchased a waterfront block, but not in Western Bay. They consider they paid a significantly higher premium for a waterfront block.
[126]
[78] Mrs Ward attended the public meeting held at the tavern on 16 April 2007 after this proceeding commenced. A Committee of Concerned Residents was formed. Mrs Ward is a member of that committee. A "Walk to Save The Walkway" was organised and held on 27 May 2007. Mrs Ward described the walkway as "a cherished feature of the Estate and an important community amenity".
[127]
[79] Mr Robert Clarke is a senior security officer with the security service. At the time he swore his affidavit in May 2008, he had held that position for 18 months. He described the 24 hour security provided by the security service to the estate in terms that two officers were on duty from 6am to 6pm, another two officers were on duty from 6pm to 6am and one further officer was on duty from midnight to 6am. The security service operates small identifiable vehicles and at any time one vehicle is on patrol. The security officer in the vehicle has a view of parts of the walkway when the vehicle is at various points in the estate. There is a closed circuit television (CCTV) monitoring of areas in the estate. One of the areas monitored is Sandy Beach Park.
[128]
[80] The security service maintains a computerised log system. Each area patrolled is itemised and recorded and any incidents or call-outs are recorded. This log system is completed at the time of patrol and a printout for each 24 hour period from 6am one day until 6am the following day is sent to the caretaker and the chairmen of the principal bodies corporate each morning.
[129]
[81] Mrs Powell and her husband have resided in the estate since April 2003. Their house is located in stage 2. She is involved in the Flutterbies Playgroup which is a group of mothers from the estate who interact amongst themselves with their children. It is a registered operating playgroup of Playgroup Queensland Association. The group meets on the morning of each Wednesday and Friday at the Recreation Centre One of the estate and between 8 and 20 mothers attend with their children. The walkway is one means of access that mothers who reside north of the recreation centre use to walk to the recreation centre. The walkway is used by mothers with young children who arrange play meetings at Sandy Beach Park (where there is playground equipment). Regular pram walks are also organised for mothers with small children. Mrs Powell describes that a highlight of these walks is walking along the walkway and enjoying pointing out the wildlife on the lake and the island to their children. Mrs Powell uses the walkway approximately three to four times each week. It is an important part of her walking circuit where she shares the water sites, sounds and smells with her child.
[130]
[82] Mr Green is the sole director of Coomera Waters Tavern Pty Ltd which is the licensee and lessee of the tavern premises that are located within the Coomera Waters Estate. He is also the sole director of DJG Properties Pty Ltd which is the owner of the tavern premises. Although the trading hours of the tavern are from 10am to 12 midnight, the tavern rarely remains open until midnight. When the advertising for the application for the tavern's general liquor licence was undertaken in July and August 2005, there were no public objections made. A survey was conducted of those who resided within 200 metres of the tavern and of the 77 survey forms that were completed, 80% supported the application for the general liquor licence. The tavern has operated a courtesy bus since December 2006. This enables patrons from the estate to use the bus to transport them to and from the tavern and restaurant from Wednesday to Sunday between 4pm to close of business.
[131]
[83] Mr Finniss is the chair of the Committee of Concerned Residents. He and his wife lived on a dry block behind the lake up until March 2008. When Mr Finniss was a resident, he used the walkway each day as part of his walk of about 5kms. In summer he walked in the morning between 4:30am and 6am and in winter he walked sometime between 11am and 2pm. Mr Finniss has exhibited to his affidavit a petition addressed to the Council containing over 500 signatures of persons who are opposed to closing the walkway.
[132]
[84] The plaintiffs rely on the reports and evidence from town planner Mr Christopher Buckley. Mr Buckley described the typical considerations for local governments regulating access to natural and man-made waterways and canals. These are allowing public access to features of public amenity and enjoyment; ensuring that such access is provided, as far as practicable, in an equitable way; and integration of the access into an efficient and practical estate layout. Mr Buckley expressed the opinion that where limited or continuous access is required to waterways, it is expected that it would be achieved by way of transfer of tenure, so that public access is on land of public ownership. He considered that it is a legitimate planning concern in this matter that private land is being used for public purposes.
[133]
[85] Mr Buckley referred to the inclusion of stage 4 of the development in the Detached Dwelling domain of the Council's current town planning scheme. Mr Buckley noted that an important aspect of the intent of that domain is the enhancement and promotion of residential living attributes and the quiet enjoyment of family life and pursuits. Although not in force at the time stage 4 was approved by the Council, Mr Buckley referred to the Council's Canals and Waterways Code under its current town planning scheme for support for his opinion that it was desirable that the walkway be in public ownership. Performance Criterion 6 of the Code provides "Public access to a waterbody must be provided to ensure maintenance of the site, and managed to ensure safety of the community." One of the acceptable solutions in the Code for achieving that was "Public access, including boardwalks or similar structures, is provided to waterways, and is included within a dedicated public open space area."
[134]
[86] Mr Buckley noted that the walkway is the only part of the Coomera Waters Estate where public access is facilitated between the houses and the water and noted that this appears inequitable. Mr Buckley observed that the plaintiffs were paying rates for land that is the subject of public access. Mr Buckley conceded that the walkway connected public spaces, could be used as a means of recreation itself by pedestrians and facilitated pedestrian access to destinations within the estate such as shops and the recreation club and that those who had been making use of it would be aggrieved if the facility were taken away from them. Mr Buckley pointed out, however, that there were alternative means of access to these destinations and that even if the walkway were closed to the public, members of the public and residents in the estate outside stage 4 could obtain views and enjoy the outlook across the water from the parks. Mr Buckley observed that the Council could resume the walkway if the strip of land between the northern park and Sandy Beach Park was important for general accessibility around the estate.
[135]
[87] Mr Buckley in his report dated 15 January 2008 expressed the opinion that there had been "a material change to the character of easement use in a way that interferes with the reasonable expectations and comfortable use of the owner's land." This was due to the increase in the intensity of the use of the easements and that some activities that had been reported involved anti-social behaviour.
[136]
[88] The Council relies on the reports and evidence from town planner Mr John Brannock. Mr Brannock emphasised the link that the walkway provides between the park areas that adjoin Ragamuffin Drive and the access that it gives residents in the northern part of the estate to Sandy Beach and the shops and tavern area. Mr Brannock noted that the walkway is used principally by residents in the estate other than those in stage 4 as a means of accessing the waterfront and for recreational use and exercise. Mr Brannock pointed out that the ambience of the lake that pedestrians enjoyed when walking along the walkway was different to the ambience that applied when walking along Ragamuffin Drive. Mr Brannock also pointed out that there is a shift towards urban design that promotes "walkability" in the design and layout of neighbourhoods.
[137]
[89] Mr Brannock included in his report plans of all boardwalks in Gold Coast City that were near waterways, but most provided access to natural waterways. Mr Brannock did not accept that the planning issues for providing access to waterways differed according to whether the waterway was natural or man-made.
[138]
[90] Mr Brannock in his report dated 27 February 2008 disagreed with Mr Buckley's conclusion about a material change having occurred to the character of easement use. Instead, Mr Brannock expressed the opinion that if the easement were removed from public use, there would be a material change to the development due to the loss of the public space available to the community at large. Mr Brannock observed that it was not unusual for some aberrant behaviour to be experienced on boardwalks or open spaces.
[139]
[91] The Council relied on valuation evidence from valuer Mr Lloyd Parsons. Mr Parsons compared the sale price of each of the waterfront lots in stage 4 for the original sales by the developer with the sale prices of comparable properties in stages 5 and 7 sold at similar times to the lots in stage 4. In choosing comparable properties from stages 5 or 7 for particular stage 4 properties, Mr Parsons considered area of lot, water frontage and aspect.
[140]
[92] Mr Parsons concluded that the value of waterfront land within stages 5 and 7 sold around the same time as comparable lots in stage 4 achieved a premium in the order of 10% above the comparable lots in stage 4 which he considered was due to the easements and associated issues.
[141]
[93] Mr Parsons considered the effect on the value of the land component of the waterfront lots in stage 4, if the easements were extinguished. He concluded that the land value of each of the waterfront lots would increase by 10% if the easements were extinguished.
[142]
Findings on the use and regulation of the walkway
[143]
[94] With the benefit of hindsight, the developer and the Council may have approached the provision of and title to the walkway in stage 4 of the development in a different way. On any view, the granting of access rights over the private land of residential owners to members of the public was a novel approach. This proceeding is not concerned, however, with whether there could have been an alternative approach to the walkway that would not have given rise to the complaints and tensions that have emerged in this trial.
[144]
[95] The starting point for the plaintiffs' application under s 181 of the PLA is that the easements are in existence and have always encumbered the titles to the plaintiffs' lots. As the public right of access along the walkway was limited to pedestrian access only, it was essential that the limitation was communicated by the developer, the Council and/or the Principal Body Corporate to potential users of the walkway. There is no entitlement otherwise for members of the public to traverse the walkway, if they are not pedestrians.
[145]
[96] Although information may have always been available from the developer or the caretaker about the conditions of use of the walkway (such as on the estate intranet site), the walkway, in the absence of any signage, presented as a path able to be traversed by both pedestrians and cyclists or skateboard/scooter riders and the like. From the time of the completion of the walkway, if the walkway was to be limited successfully to pedestrian use, it required those who were responsible for it to make that known to potential users. It was unfair of the developer, the Council and/or the Principal Body Corporate to leave it to the residents of the waterfront lots in Western Bay personally to convey to users of the walkway that it was limited to pedestrian use, as some of the residents not surprisingly felt compelled to do. The plaintiffs had the expectation of the walkway being available for pedestrian use, but their expectation was not matched by the manner in which the walkway was physically presented to other residents of the estate.
[146]
[97] The erection of the first signs at either end of the walkway in November 2005 making it clear that the walkway was for pedestrian use only, was an overdue, but appropriate, step in regulating the use of the walkway. Although most of the plaintiffs were reluctant to acknowledge that the signs had made a difference to reducing the use of the walkway by cyclists, skateboard riders, etc, the evidence adduced by the Council is more persuasive in showing that, although the problem has not been eliminated, the signs in conjunction with more active monitoring of the walkway by the security service have had a positive effect in conveying that the walkway is solely for use by pedestrians. It may be that there remains an issue about what further steps can be undertaken by the Council, the Principal Body Corporate and the security service to reinforce the steps that have been taken in endeavouring to limit the use of the walkway to conform with the covenants in the easements.
[147]
[98] The delay by those who were in a position to take responsibility for regulating the use of the walkway in accordance with the covenants of the easements must have heightened the frustrations felt by the plaintiffs about the use of the walkway. This no doubt contributed to the plaintiffs' decision to commence this proceeding which itself has resulted in a community backlash by other residents who wish to keep the walkway open and therefore the tensions between the plaintiffs and other residents in the estate over the use of the walkway have been maintained. This proceeding also seems to have overtaken the proposal of erecting gates and keeping the walkway closed to the public between 10pm and 5am. That proposal seems a sensible way of addressing the problem of noise from pedestrians on the walkway late at night or in the early hours of the morning.
[148]
Whether the continued existence of the easement impedes some reasonable user of the relevant lots
[149]
[99] Apart from the common property of Western Bay Body Corporate which is between Lots 220 and 222, each of the relevant lots is zoned for detached housing and has been developed accordingly. Mr Buckley in his report described the presentation of the dwellings as "of a very high standard".
[150]
[100] The difficulty that the plaintiffs may have encountered in being indemnified by their public liability insurers for injury or loss caused to persons traversing the walkway is no different now than it was at the time they purchased the relevant lots. In any case, the insurance issue has been largely addressed by the policy extensions obtained by the Western Bay Body Corporate and the Principal Body Corporate. The fact that the plaintiffs will not be indemnified by the public liability insurer for the Western Bay Body Corporate for any legal expenses in respect of defending a claim by a person who is injured or who otherwise suffers a loss in using the walkway has not prevented any of the plaintiffs from fully utilising the lot for residential purposes.
[151]
[101] Although noisy walkers and joggers, persons who litter the walkway and associated gardens and unleashed or barking dogs are annoying to the residents, this sort of behaviour has not affected the use of the lots for residential purposes. Isolated instances of trespass and throwing of things into the plaintiffs' yards are not atypical of community living and do not prevent the relevant lots being used for the purpose for which they have been developed.
[152]
[102] The concerns expressed by residents about unsupervised children or people standing and staring at their homes are not unexpected consequences of having members of the public use the walkway.
[153]
[103] The complaints of the plaintiffs do not give rise to a situation where the existence of the easement is preventing the development of the relevant lots (or any of them) to realise their potential: cf Re Eddowes[1991] 2 Qd R 381, 392.
[154]
[104] Even though breaches of the easements are still occurring in the use made of the walkway (such as by cyclists, skateboard riders and persons fishing from the walkway rather than the public pontoons) and the plaintiffs complain about the behaviour of persons using the walkway, the consequence at this point in time has not been to impede the use of the relevant lots for residential purposes. The plaintiffs have not discharged the onus they bear in relation to the first requirement for enlivening s 181(1)(b)(i) of the PLA. As this first requirement is the same for enlivening s 181(1)(b)(ii) of the PLA, the plaintiffs also cannot succeed under that provision.
[155]
Whether the easement does not secure to persons entitled to the benefit of the easement any practical benefits of substantial value, utility or advantage to them
[156]
[105] This second requirement for enlivening s 181(1)(b)(i) of the PLA does not need to be addressed, as it arises only if the first requirement of showing that the easement impedes some reasonable user of the land subject to the easement has been met. The enjoyment by residents of the estate outside Western Bay of the amenity provided from being able to walk alongside the water (whether for exercise, access or to enjoy the view of the lake) is an advantage to those persons: Kort Pty Ltd v Smith[1983] WAR 113, 115; Eucalypt at [97]. To the extent that the plaintiffs submitted that pedestrian access did not permit the pedestrians to use the walkway for exercise the submission is misconceived. An easement for access enables the person who has the benefit of that right to exercise the access for walking for exercise: Wallace v Goodwin[2004] QSC 42 at [13].
[157]
[106] If it were necessary to consider the second requirement, the plaintiffs cannot show that the easements did not secure to the public, and in particular other residents of Coomera Waters Estate, any practical benefits of substantial value, utility or advantage to them. In fact, the plaintiffs properly concede that the easements are capable of providing practical benefits to members of the public, particularly the residents who live nearby to Western Bay (exhibit 11, paragraph 6.4).
[158]
Whether money will be an adequate compensation for the loss or disadvantage from the extinguishment of the easement
[159]
[107] Again, it is not necessary to address this third requirement in relation to s 181(1)(b)(i) of the PLA, in view of the conclusion that I have reached on the first requirement to enliven that provision.
[160]
[108] This requirement was approached by the plaintiffs on the basis that as the Council was the only person entitled to the benefit of the easements, the issue of whether money will be an adequate compensation for the extinguishment of the easement should be considered from the perspective of the Council. When the submissions were made at the conclusion of the trial, the plaintiffs' counsel had instructions from the plaintiffs to offer that the court make it a condition of the extinguishment of the easements that the plaintiffs pay an appropriate amount to the Council in consideration of the extinguishment of the easements. Such an approach, however, ignores the question of whether money would be an adequate compensation for the members of the public who were enjoying the benefits of the easements. The plaintiffs did not endeavour to address this issue. If it were necessary to decide, it cannot be concluded that the plaintiffs have discharged the onus they bear in relation to this requirement for enlivening s 181(1)(b)(i) of the PLA. This requirement is also the same for enlivening s 181(1)(b)(ii) of the PLA and the same conclusion applies.
[161]
Whether the extinguishment of the easements will not substantially injure the persons entitled to the easements
[162]
[109] The plaintiffs case based on s 181(1)(d) of the PLA depends on their proposition that it was the Council only that was entitled to the easements. In view of my conclusion at paragraphs [22] and [26] above on the construction of the words "persons entitled to the easement" in s 181(1)(d) of the PLA, the application of this provision has to be considered in the light of the effect of the extinguishment of the easement on the members of the public who may exercise the access rights conferred by the easements. In view of the evidence of Mr Buckley and Mr Brannock about the effect on users of the walkway, if it were to be closed to the public, the evidence about the extent of use of the walkway by pedestrians and the evidence given by residents in the Coomera Waters Estate who enjoy walking along the walkway, the plaintiffs cannot show that those persons would not be substantially injured by the extinguishment of the easements in the sense in which that expression "substantially injured" has been construed: Averono v Mbuzi[2005] QCA 295 at [26].
[163]
[110] The only relief that the plaintiffs sought in this proceeding was the extinguishment of the easements. On the basis of the material that is before the court in relation to this proceeding, the plaintiffs have been unable to discharge the onus they bear in seeking extinguishment under either paragraphs (b) or (d) of s 181(1) of the PLA. It follows that this proceeding must be dismissed. I will hear submissions on the costs of the proceeding. Even though the plaintiffs have been unsuccessful in this proceeding, it is relevant to take into account on the question of costs that the Council failed to take any steps until November 2005 to alert those persons whom it authorised to use the walkway for pedestrian access that the walkway was restricted to users for pedestrian access.