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[2009] QCA 124
Court of Appeal (Qld)
2009-11-14
Muir JA, White and Wilson JJ, Judgment of the, Court
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Oldfield & Ors v Gold Coast City Council [2009] QCA 124
PARTIES: DEBRA OLDFIELD as representative of the Lot Owners of Western Bay CTS Body Corporate 30080 (first appellant/first cross respondent) WESTERN BAY CTS BODY CORPORATE 30080 (second appellant/second cross respondent) v GOLD COAST CITY COUNCIL (respondent/cross appellant)
FILE NO/S: Appeal No 10644 of 2008 / SC No 1581 of 2007
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 15 May 2009
DELIVERED AT: Brisbane
HEARING DATE: 21 April 2009
JUDGES: Muir JA, White and Wilson JJ / Judgment of the Court
ORDER: **1.**Appeal dismissed with costs / **2.**Cross-appeal allowed / **3.**The order below about costs be set aside and instead order that the appellants pay the respondent’s costs of and incidental to the proceedings to be assessed on the standard basis
CATCHWORDS: REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – ABANDONMENT, SUSPENSION, EXTINGUISHMENT OR MODIFICATION – EXTINGUISHMENT – STATUTORY – where easements granted in favour of respondent by developer of residential estate for purpose of pedestrian access – where first appellant represents lot owners in residential estate – where second appellant is body corporate of which lot owners are members – where appellants applied to extinguish easements under ss 181(1)(b) and (d) Property Law Act 1974 (Qld) – where proceeding was dismissed by the learned trial judge with no order as to costs – whether the learned primary judge erred in application of s 181(1)(b) – whether members of the public were “entitled to the benefit” of the easements under s 181(1)(b) or “entitled to” the easements under s 181(1)(d) – whether the learned primary judge erred in exercising discretion under s 181 to not to order extinguishment of the easements / REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – COMPENSATION – where easements granted in favour of respondent by developer of residential estate for purpose of pedestrian access – where first appellant represents lot owners in residential estate – where second appellant is body corporate of which lot owners are members – where appellants applied to extinguish easements under ss 181(1)(b) and (d) Property Law Act 1974 (Qld) – where proceeding was dismissed by the learned trial judge with no order as to costs – whether the learned primary judge erred in not taking into account the fact that the easements could be extinguished under s 181 on the basis of a payment by the appellants to the respondent / PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – CONDUCT TENDING TO LITIGATION – where appellants applied to extinguish easements under ss 181(1)(b) and (d) Property Law Act 1974 (Qld) – where proceeding was dismissed by the learned trial judge with no order as to costs – where the learned trial judge exercised discretion to depart from general principle that costs follow the event under r 681 Uniform Civil Procedure Rules 1999 (Qld) – whether conduct of respondent was such as to disentitle it to an award of costs under the general principle / Property Law Act 1974 (Qld), s 181(1) / Uniform Civil Procedure Rules 1999 (Qld), r 681 / Averono & Anor v Mbuzi & Anor [2005] QCA 295, considered / Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488, cited / Hill v Hasler [1921] 3 KB 643, cited / Lake Macquarie City Council v Luka [1999] NSWCA 447, cited / Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, applied / R v Rose [2009] QCA 83, cited / Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435; [1998] QCA 282, cited / Re Ghey and Galton's Application [1957] 2 QB 650, considered / Re Rollwell Australia Pty Ltd (1999) Q ConvR 54-521; [1998] QSC 208, cited / Stanhill Pty Ltd v Jackson (2005) 12 VR 224; [2005] VSC 169, cited / Stannard v Issa [1987] AC 175, cited / Sterling Engineering Co Ltd v Patchett [1955] AC 534, cited
COUNSEL: J A Griffin QC, with R J Clutterbuck, for the appellants/cross respondents / D J Campbell SC, with H Trotter, for the respondent/cross appellant
SOLICITORS: PCF Law for the appellants/cross respondents / Minter Ellison (Gold Coast) for the respondent/cross appellant
The appellants applied by originating application for the extinguishment of easements BK on SP 150115 and BJ on SP 143451 in the County of Ward, Parish of Coomera pursuant to s 181 of the Property Law Act 1974 (Qld) ("the Act"). The proceeding was dismissed on 25 September 2008 with no order as to costs. The appellants appealed against the primary judge's decision on 14 grounds but most were not relied on.
The first appellant represents the owners of Lots 210 to 220 and 222 to 235 in Stage 4 of an estate at Coomera known as the Coomera Waters Estate. The lots are each subject to pedestrian access easements in identical terms over that part of the property approximate to an artificial lake in the estate known as Lake Serenity. One easement burdens Lots 210 to 220 which are properties in Nocturne Lane and the other burdens Lots 222 to 235 which are properties in Ripple Court.
The second appellant, Western Bay CTS Body Corporate, is the owner of common property between Lots 220 and 222 which is traversed by the easements. The lot owners represented by the first appellant are members of that body corporate.
Factual background relevant to the dispute between the parties is conveniently recorded in the following passages in the primary judge's reasons:1
" [1] 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 easements were granted by … [the developer] in favour of the Gold Coast City Council (the Council) for the purpose of pedestrian access.
[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 Act 1997. There are three principal bodies corporate and 25 subsidiary bodies corporate … 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.
[3]… The easements were registered prior to any plaintiff becoming a registered owner of one of the subject lots.
…
…
[7]The easements are public utility easements made pursuant to s 89 of the Land Titles Act 1994. … 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. … the covenants provide:
‘2 Access
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.
3Public Included
The Grantee may authorise under clause 2 the members of the Public as such to exercise access rights pursuant to that clause.
…
5 No Damage or Nuisance
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.’
[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 …
…
[33]Under by-law 41.2 of the by-laws of the Principal Body Corporate, [it] is deemed the beneficial owner of the revetment wall and the improvements on the easements. Under by-law 41.3 … 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.
[34]… 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 ...
…
[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.
[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.
[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 …"
[5] In paragraphs [41] to [48] inclusive, there is discussion of the supervision of the walkway: signage erected on it with a view to confining its use to pedestrians and conferences with the respondent with a view to the provision of gates which may be locked within specified hours. Paragraphs [50] to [53] inclusive contain a discussion of the appellants' complaints about the difficulties faced by them in obtaining insurance. There is a finding that the principal body corporate now has insurance cover to a level of $20,000,000 in respect of the walkway which will provide indemnity to the owners of the servient tenements for any claims for incidents on the easements. It is noted that the concern of the appellants in respect of insurance "is now primarily focused on the lack of insurance for any legal expenses … [incurred] in defending a claim arising from the use of the walkway."
In paragraphs [54] to [72] inclusive, the primary judge records the evidence of witnesses who gave evidence on behalf of the appellants. That evidence concerns allegations of misuse of the walkway, anti-social and unlawful conduct and general impact on the residents resulting from inappropriate public use of the walkway. The evidence of persons who gave evidence in the respondent's case is discussed in paragraphs [73] to [83] inclusive. That evidence generally describes the benefits to the deponents and the public arising from the availability of a walking path along the shores of the lake.
There is then discussion of the evidence of two town planners, that of Mr Buckley, who was called in the appellants' case and that of Mr Brannock, who was called in the respondent's case. The reasons record Mr Buckley's opinions that: the use of private land the subject of the easements for public purposes is of general planning concern; it is inequitable that there be public access between houses and bodies of water in only part of the Coomera Waters Estate; there exists alternative means of access to public spaces and other venues; denial of public access to the walkway would not prevent members of the public from obtaining views and enjoying the outlook across the water from parks; it was open to the respondent to resume the walkway if that was thought to be important for general accessibility around the estate and that there was a material change in the character of use of the easements in a way which interfered with the reasonable expectations and comfortable use of owners' land.
Mr Brannock's opinions were that: the ambience of the lake enjoyed by pedestrians using the walkway differed from the ambience enjoyed when using Ragamuffin Drive; there was a shift towards urban design that promoted "walkability" in the design and layout of neighbourhoods; if the easements were to be removed from public use there would be a material change to the development due to the loss of public space available to the community at large.
The appellants' pleaded case
(1)The first appellant and those represented by her acquired their respective lots on the understanding that the land the subject of the easements would be "a ‘residents only’ walkway";
(2)The resident appellants made representations to the respondent with a view to having the easements extinguished;
(3)The representations included statements that the requested extinguishment was supported by:
(a)Unrestricted use of the easements in breach of the relevant covenants;
(b)Difficulties faced by the appellant residents in obtaining public risk insurance;
(c)Loss of security and quiet enjoyment;
(d)Anti-social behaviour on the part of persons using the easements, including invasion of privacy; and
(e)The use of motor cycles, bicycles, cars and other vehicles on the easements.
(4) Pursuant to s 181(1)(a) of the Act, there had been a change in user of the dominant tenement such that:
(a)A nuisance arose from the respondent's breach of covenants;
(b)The original ambience of the estate was lost;
(c)The alteration of the whole of the estate was of such significance as to increase its size, traffic and utilities so as to disrupt quiet enjoyment;
(d)The covenants contained in the easements proved to be unworkable and were subject to breach;
(e)The easements were thus obsolete;
(f)Continued use of the easements impedes the reasonable use of the servient tenements and does not secure to the respondent practical benefit of substantial value, utility or advantage (s 181(1)(b)(i));
(g)The easements present dangers inherent in both their continued unsupervised use and their continued use which is contrary to the public interest (s 181(1)(b)(ii));
(h)The extinguishment of the easements will neither injure substantially nor cause injury whether economic or otherwise to any person entitled to the easements (s 181(1)(d)).
The arguments advanced by counsel for the appellants
A feature of the easements crucial for present purposes is that pedestrian access is permitted on a strip of land along the boundary of each servient tenement.It does not grant access to the lake as there is a revetment wall between the easements and the lake. On a proper construction of each easement, it allows persons to have pedestrian access from one point of the estate to the other. That access is also provided by the footpath on the Ragamuffin Drive frontage of the houses.
Contrary to the terms of the grants, the evidence shows that use of the easements has not been and is not likely to be confined to pedestrian use. In assessing whether the pre-requisites to the application of paragraphs (b) and (d) of s 181(1) were satisfied, the primary judge proceeded on the basis that the grants permitted a wider use and enjoyment of the boardwalk than would be permitted by easements restricted to "pedestrian access". Thus, the primary judge referred to, and apparently placed reliance on: the evidence of the Chairman of the principal body corporate to the effect that the walkway was the only part of the walkway system which was beside the water and that it formed "quite an essential part of the amenity of the area" and encouraged "healthy lifestyles"; the evidence of witnesses concerning the use of the walkway for "Regular pram walks"; and the evidence of Mr Brannock to the effect that residents in the estate used the walkway "as a means of accessing the waterfront and for recreational use and exercise." The primary judge also referred to Mr Brannock's evidence to the effect that the ambience of the lake enjoyed by pedestrians when walking along the walkway differed from the ambience experienced walking along Ragamuffin Drive and to his observations about "walkability".
In evaluating the factors relevant to determining whether the criteria in subparagraphs (b) and (d) of s 181(1) were applicable, the primary judge at no stage assessed the impact of the restriction of "pedestrian access" in the relevant part of the estate which would be occasioned by the extinguishment of the two easements. Nor did her Honour assess the disparity, if any, between the access provided by the easement next to the lake and the access provided by the walkway adjacent to Ragamuffin Drive. It was necessary for the primary judge to undertake that task in determining the applicability of the two subparagraphs as the grants were for no more than "pedestrian access".
The primary judge erred in finding that members of the public were "entitled to the benefit of" the easements or "entitled to" the easements. On a fair reading of the grants, it is plainly within the discretion of the grantee/respondent, possibly in conjunction with the grantor, to authorise members of the public to use the walkway. "Entitled" within the meaning of s 181(1) means the existence of a present right and not a right exercisable or consequent only on the obtaining of a permission. The normal sense in which the word "entitled" is used is "as a matter of legal right".
The primary judge's findings
"[97]… 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."
(a)The fact that the appellants would not be indemnified by the public liability insurer of the Western Bay body corporate for any legal expenses incurred in 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 appellants from fully utilising his or her lot for residential purposes;
(b)Anti-social behaviour, noise and disturbance resulting from the use of the walkway "has not affected the use of the lots for residential purposes. Isolated instances of trespass and throwing of things into [residents'] 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";
(c)The matters complained of by the appellants do not establish that the easements are preventing the relevant lots (or any of them) from realising their potential;4
(d)Although breaches of the conditions of the easements are still occurring, principally through the use of the walkway by cyclists, skateboard riders and for fishing activities, that behaviour has not impeded the use of the relevant lots for residential purposes;
(e)The appellants have not discharged the onus on them so as to enliven s 181(1)(b)(i) or (ii) of the Act.
Section 181(1) of the Property Law Act 1974
"(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—
(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
(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—
(i)does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or
(ii)is contrary to the public interest;
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
(c)that the persons of full age and capacity for the time being or from time to time entitled to the easement … 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
(d)that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction. [Emphasis added.]
(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.
…
(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 …"
(a)do not secure to the persons entitled to the benefit of the easements any practical benefits of substantial value, utility, or advantage to them; or
(b)are contrary to the public interest
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer.
It was not argued on behalf of the appellants that the continued existence of the easements was contrary to the public interest.
"I think, however, that it must be shown, in order to satisfy this requirement, that the continuance of the unmodified covenants hinders, to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and to the purpose of the covenants."
Consideration of alleged errors in the primary judge's application of s****181(1)(b)
(a)The primary judge erred in failing to consider that alternative pedestrian access is available by the footpath on Ragamuffin Drive;
(b)The primary judge erred in failing to consider that the use of the walkway has not been confined to pedestrian use and is not likely to be so confined; and
(c)The primary judge made her determination on an erroneous basis, namely that the grant permitted a wider use and enjoyment of the boardwalk than would be permitted by an easement restricted to "pedestrian access". (In this respect, the appellants' counsel pointed to the matters referred to in paragraphs [11] and [12] above.)
There is no substance in the challenge to the reasons on the basis that the primary judge directly or indirectly had regard to "amenity", "ambience" and "walkability". The easements granted by the developer and accepted by the respondent local authority were not positioned on the shores of the lake by accident. The nature of the place over which the right is granted is a "very material" consideration.10 It is inherent in the easements' location that lawful users will enjoy an aspect and ambience different to, and, one would think in the perception of most users, more enjoyable than that experienced by users of the footpath on Ragamuffin Drive. The evidence of witnesses called by both sides establishes that the walkway is the preferred route for pedestrians engaged in recreational activities. It may be inferred that part of the respondent's object in obtaining the easements was to enhance the general amenity of Coomera Waters Estate. That conclusion is supported by the existence of the alternative pedestrian route on Ragamuffin Drive.
The proposition that the purpose of the right of way was merely to permit purely utilitarian pedestrian movement from one end of the easements to the other overlooks, not only the location of the easements, but their express terms. Clause 2 grants pedestrian access "for all lawful purposes". Those purposes include recreation and exercise. If "the circumstances surrounding the execution of the grants" were to be considered in order to construe them,11 it is likely that the appellants' arguments would receive even less support.
Another complaint is that the primary judge did not assess the disparity, if any, between the access provided by the easement next to the lake and the access provided by the walkway adjacent to Ragamuffin Drive. The primary judge may not have addressed the question directly, but she did so indirectly, and in plain terms. She found that12 "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." She found also that the easements permitted enjoyment of the walkway for exercise as well as for walking and made reference to town planning evidence concerning the enjoyment obtained by persons through use of the walkway.13 It is relevant also that the footpath on Ragamuffin Drive is beside a roadway used by motor vehicles.
Did the continued existence of the easements impede the residential user of the lots?
It is argued that the primary judge should have found that the conduct of users of the walkway was such as to "impede" the reasonable user of the appellants' lots.
"Impede" in s 181(1)(b) has its normal meaning in everyday speech of "hinder",14 "retard" or "obstruct".15 Its meaning is not synonymous with "prevent". Evidence was given by appellant proprietors of: noise and disturbance caused by drunken revellers using the walkway late at night and early in the morning; the frequent throwing of objects, mainly beer and wine bottles onto lots from the walkway; disturbance resulting from the noise of joggers and walkers on the walkway early in the morning; the loss of privacy through persons on the walkway staring at residents on their respective lots or in their respective dwellings; residents' dogs barking after being disturbed by early morning walkers with dogs; abuse of residents by teenagers and inebriated adults; trespass to pontoons and boats; and the use on the walkway of skateboards and bicycles.
One resident complained of having tomatoes, yoghurt, eggs and rocks thrown at her home "all hours of the night" and of people catching their fishing lines on her pontoon carpet. Two proprietors each described an occasion on which a stranger left the walkway and entered their respective homes.
The evidence, however, was not one-sided. Witnesses called by the respondent gave evidence of their observations of normal and appropriate use of the walkway. In excess of 500 people signed a petition against the closure of the walkway. The committees of the four bodies corporate within the estate made submissions opposing the closure of the walkway and gave reasons for their submissions. The primary judge found, in relation to the extent to which the erection of signs at each end of the walkway had reduced its use by cyclists and skateboard riders, that the evidence adduced by the respondent was more persuasive than the evidence of the appellants. Her Honour implicitly accepted, at least substantially, the appellants' evidence about noise and barking dogs. She said:16
"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."
The findings that there were "instances of trespass" and that the "throwing of things into the plaintiffs' yards" were isolated and "not atypical of community living" were not challenged by the appellants.
The finding that the conduct described does "not prevent the relevant lots being used for the purpose for which they have been developed" does not resolve the issue for determination. The critical question is whether, as a result of such conduct, some reasonable user of the lots would be impeded by the continued existence of the easements. The primary judge, however, stated the correct test earlier in her reasons17 and there is no reason to suppose that she applied an incorrect test. The finding that "noisy walkers and joggers, persons who litter the walkway and associated gardens and unleashed or barking dogs … annoying to the residents" have "not affected the use of the lots for residential purposes" means, in its context, that the use of the lots for residential purposes has not been hindered or obstructed. The reasons, properly understood, convey that the lots continue to be used for residential purposes and remain suitable for that use.
The evidence does not suggest that many, let alone most, appellants have altered their properties or the way in which they live in and use their properties to avoid or minimise the impact of the matters of which they complain. It may be inferred from the evidence that the appellants, or the great majority of them, continue to use their properties as they would have done had the conduct complained of not occurred. Also, the evidence does not disclose any reduction in value of the lots as a result of the conduct complained of. This is not to say that frequent noise and disturbance of the type complained of, which would be sufficient to detract materially from a reasonable person's use and enjoyment of his or her lot, could not impede the user of the lot within the meaning of s 181(1)(b). Nor is it the case that a diminution in market value of the affected land must be shown before it can be found that the reasonable user has been impeded.
In deciding the question under consideration, it is necessary to bear in mind that s 181(1)(b) 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."18 Consequently, the occasional misuse of the walkway for other than pedestrian purposes would not appear to be a relevant consideration.
The evidence does not establish that use by bike riders would persist to any material degree regardless of the taking of appropriate steps by the Authorities to prevent their use of the walkway. But, in any event, the use of the walkway by bike riders and skateboarders would not appear to be of much relevance for present purposes. What is relevant is their impact, if any, on the use of the lots for residential purposes by the proprietors. No material relevant impact would seem to exist in that regard. For the sake of completeness we mention that the arguments advanced on behalf of the appellants did not rely on any interference with their rights in respect of their pontoons or jetties.
Consideration of the contention that the primary judge failed to duly consider the problems with the easements caused by split responsibility
Counsel for the appellants referred to the evidence of Mr Buckley to the effect that "if public access of the kind utilised were to be provided in this type of area, the land should be in public ownership" and to a provision of the Canals and Waterways Code which provides, "Public access, including boardwalks and similar structures, is provided to waterways, and is included within a dedicated public user area." The argument acknowledged that that provision in the Canals and Waterways Code was not in existence at the time of relevant local authority approvals. This point does not appear to have much, if any, application as the walkway does provide public access to the lake.
A related point was that the primary judge should have taken into account the fact that the easements could be extinguished under s 181 on the basis of a payment of an appropriate amount by the owners of the servient tenements to the respondent, thus enabling the respondent, if it saw fit, to resume the land, and thus cause the area to be controlled by the one authority.
The appellants' argument pointed to passages in the primary judge's reasons which adverted to confusion or lack of control over the walkway arising from possible confusion about the relative responsibilities of the respondent and various bodies corporate.
The primary judge stated that if she had to decide the adequacy of compensation, she would have concluded that the appellants had not discharged the onus borne by them. She had in mind that the compensation offered, if somewhat vaguely, was only compensation to the respondent and the appellants' argument ignored "the question of whether money would be an adequate compensation for the members of the public who were enjoying the benefits of the easements."
Central to the success of the appellants' argument on this point is the validity of their argument that members of the public are not "entitled to the benefit" of the easements. That question is addressed later. But even if that argument succeeded, for reasons also given later, it would be necessary for the appellants to secure a finding that money would be an adequate compensation for the loss suffered by the local authority as a result of the extinguishment of the easements. It is doubtful, however, that money could compensate the respondent appropriately for the loss of the pedestrian walkway secured by it in the course of performing its statutory functions.
The reasons do not directly consider the contention that the easements should be extinguished on the basis of payment of a sum of money so that the Council could resume the subject land and thus cause the walkway to be controlled by the one authority. The point did not surface in the amended statement of claim in which the thrust of the appellants' case was that the public use of the walkway so impeded the appellants' use of their land that it was just that the easements be extinguished. The proposal that the subject land be resumed and be given over to public use is quite inconsistent with the pleaded case. Also, there is no explanation of why the respondent should have to pay to provide a benefit which it has already secured for the public.
Were members of the public "entitled to the benefit" of the easements within the meaning of s 181(1)(b) or "entitled to the easement" within the meaning of s 181(1)(d) of the Property Law Act**?**
The essence of the appellants' argument is that the right of way is granted to the respondent, "the Grantee’s employees, and all other persons authorised by the Grantee …" (Clause 2). Clause 3 provides that the respondent may authorise the members of the public as such to exercise access rights pursuant to Clause 2. It is conceded, implicitly at least, that members of the public have the respondent's authority to use the walkway but it is asserted that this is not enough; what is required, so it is said, is a legal right under the easements as opposed to "permission to utilise given by the person in whose favour the right has been created."
We accept that the word "entitled" normally signifies the existence of a legal claim or a right, ie a right to obtain or enforce something, whether by legal process or otherwise, without having to obtain, or satisfy conditions or approvals.19 "Entitled", like most other words in the English language, takes its meaning from the context in which it is used. The fact that a person cannot exercise a "right" without further obtaining a court order, does not necessarily signify that no "entitlement" exists.20 Also, an "entitlement" might arise in circumstances in which the vindication of the right depends on the favourable exercise of a discretion.21
In the case of an easement of right of way granted by the proprietor of a servient tenement in favour of a dominant tenement, the words "entitled to the benefit of", in most circumstances at least, have their everyday meaning of "entitled as a matter of legal right" enforceable by the proprietor of the dominant tenement. Section 181, however, applies to all forms of easement and to any "restriction arising under covenant or otherwise as to … user of the land". In considering what is meant by "entitled to the benefit" in s 181(1) it is appropriate to consider the circumstances in which the section may have application.
An obvious enough application of s 181(1) is to public utility easements acquired by local authorities so as to create a right of public user over land in connection with the granting of development approval. In relation to such easements, and easements of a similar nature granted to public bodies prior to the enactment of the Land Title Act 1994 (Qld), it would be unduly restrictive to confine the concept of "entitlement" to the rights of the local authority which is the grantee of the covenant. Including members of the public, on whose behalf the local authority acted in securing the right of way as "entitled to the benefit of it", does no violence to the language of the statute.
Discretionary considerations
[55] In the circumstances of this case, even if the appellants had brought themselves within s 181(1)(b) or (d), it would have been appropriate to exercise the Court’s discretion against giving the relief sought.
[56] It is relevant also that the easements were granted relatively recently and it may be inferred that the appellant proprietors were aware of their existence when they acquired their respective interests.24
[57] The submission that the primary judge adopted a "primarily conservative approach, and embarked upon the exercise with a predisposition against interfering with … the rights of the public" should be rejected. The reasons do not support the conclusion that there was such a predisposition but her Honour was right to approach with caution an application which sought the extinguishment of the right on the part of the public, recently secured by the local authority, to access to a lakefront walkway. As Keane JA, with whose reasons the other members of the Court agreed, said in Averono v Mbuzi:25
"It is well established that the courts should approach an application for extinguishment of an easement on the footing that it is ‘a serious inroad upon the proprietary right which is vested’ in the owner of the dominant tenement."
[58] There is an extensive body of evidence given by residents in the Estate and others of the regular use of the walkway for enjoyment, exercise and relaxation. That public benefit was secured by the respondent local authority becoming grantee of the easements in the exercise of its statutory functions. The lots acquired by the appellant proprietors were property, the use and enjoyment of which always stood to be impinged upon by the existence of the walkway and its users. If residents wish to minimise disturbance, there are steps which can be taken to achieve that end. For example, hedges can be planted and maintained and blinds and shutters can be installed. These expedients will bear on the residents' views and hence enjoyment of their properties, but the properties were acquired with the limitations inherent in the existence of a lakefront walkway. The evidence was that lots with direct frontage to the lake were more expensive than those encumbered by the easements.
[59] Another pertinent consideration is that others have acquired lots in the Estate with the expectation that they and members of their households will have the right to use the walkway.
[60] As is evident from the above discussion the appeal should be dismissed.
Cross appeal
[61] The primary judge made no order as to costs. The respondent has cross appealed from that decision. The grounds of the cross-appeal are that there were no facts which could reasonably justify the exercise of a discretion to deviate from the general rule that costs follow the event; and that the respondent made a formal offer to the appellants in terms that it would not seek costs if the appellants discontinued the proceedings.
[62] When judgment was delivered on 25 September 2008 the learned primary judge made a reference to her observations in paragraphs [95]–[98] of her reasons about the costs of the proceeding. Her Honour stood the matter down so that counsel could obtain instructions about costs. On their return senior counsel for the respondent asked for costs. Junior counsel for the appellants submitted that in light of her Honour’s observations in the reasons the appropriate order was that there should be no order as to costs. When invited to do so by her Honour, senior counsel for the respondent made no further submissions.26
[63] Her Honour then gave brief reasons which it is convenient to set out:27
"This was an unusual dispute. It is apparent from the history of the matter that the reason that the plaintiffs felt compelled to bring proceedings arose from matters that had occurred at the outset of the development of the Coomera Waters Estate.
In the course of my reasons I dealt specifically with these matters and made observations at paragraphs 95 to 98 that reflect on the issue of costs.
At the conclusion of the judgment, I observed that even though the plaintiffs had been unsuccessful in the proceeding it is relevant to take into account that the Council failed to take any steps until November 2005 to alert those persons who it would authorise to use the walk way for pedestrian access that the walkway was restricted to users for pedestrian access.
I have no doubt, because that was not done, that it has contributed to the high feeling within the estate and the plaintiffs, quite properly, endeavoured to take action to have the covenants of the easements observed.
The Council was a party to those easements and did not take any responsibility for taking action to ensure that the easements were complied with.
In all those circumstances, I consider the appropriate order is the one that is sought by the plaintiffs and that is there be no order as to costs."
[64] In her principal reasons her Honour noted that the public right of access along the walkway was limited to pedestrian access only and:
"… 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."28
Her Honour continued:29
"… 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."
[65] Her Honour observed30 that 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."
Her Honour accepted that evidence adduced by the Council that the signs, in conjunction with more active monitoring of the walkway by the security service, had a positive effect in conveying that the walkway was solely for pedestrian use. Her Honour concluded on this topic:31
"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."
[66] The respondent contends that her Honour acted under a misapprehension as to the facts when she reached her conclusion about costs. It was not so much a misapprehension but whether the identified facts could sustain the exercise of the discretion to depart from the general principle in r 681 of the Uniform Civil Procedure Rules 1999 (Qld) that although the costs of a proceeding are in the discretion of the court they follow the event unless the court orders otherwise.
[67] The principal concern of the appellants, apart from issues of amenity, was the failure to obtain public liability risk insurance from their independent insurers for the area covered by the easements. The respondent’s solicitors in a letter dated 17 March 2005 to the community managers for the principal body corporate indicated that the respondent declined to assume that liability. The indemnity issue was, in fact, resolved. In response to concerns about inappropriate user, signage, paid for by the principal body corporate but carrying the logo of the respondent, was erected in November 2005. This signage made clear, in words, that the walkway was for pedestrian use only and requested consideration for the privacy of the adjacent residents and their property. In mid-2006 signs using internationally recognised symbols depicting the prohibited uses of the walkway were erected at the end of the walkway.
[68] By a letter dated 17 October 2005 the principal body corporate, through its body corporate manager, proposed to the respondent that gates be erected at either end of the walkway to be locked by the security service between 8.00 pm and 6.00 am. The respondent agreed by letter from its solicitors dated 7 December 2006 but proposed that the hours of closure be between 10.00 pm and 5.00 am and added further, not unreasonable, conditions.32 These proceedings were commenced by the appellants in February 2007 without the gates proposal being advanced.
[69] The respondent was faced with a difficult situation as the walkway was a public access walkway much utilised. There was a significant body of evidence before her Honour that that facility was greatly valued by the residents of the Estate as a whole. The respondent recognised the tension between these interests33 but, not surprisingly, saw this as a matter preferably for resolution within the layers of bodies corporate managing the Estate.
[70] The rationale for the general rule about costs was expressed by McHugh J in Oshlack v Richmond River Council34 as follows:35
"The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation."
[71] As his Honour identified, the traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. This includes36 the "lax" conduct of the successful party which invited the litigation; unnecessary protraction of the proceedings; success on a point not argued before a lower court; prosecution of the matter solely for the purpose of increasing the recoverable costs; obtaining relief which the unsuccessful party had already offered in settlement of the dispute. His Honour added:37
"… there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct."
[72] The question then is, was the conduct of the respondent of such a kind as to disentitle it, as a respondent to proceedings brought against it, which were unsuccessful. It is difficult to see that there was any relevant conduct (or want of action) by the respondent which fell into that category. This was not a proceeding about breach of the covenants under the easements. Her Honour found the signs in November 2005 had reduced the non-pedestrian user of the walkway. A proposal for gates worked out amongst the various interests on the Estate had obtained the approval of the respondent prior to the institution of the proceedings and her Honour identified it as beneficial. It seems that her Honour gave too little weight to the general rule and characterised the conduct of the respondent as disentitling when it was not.
[73] Although reference was made in the grounds of appeal to an offer to settle by the respondent, no submission was directed to it.
[74] The cross-appeal should be allowed.
[75] Orders:
The appeal is dismissed with costs.
Cross-appeal allowed.
The order below about costs should be set aside and instead order that the appellants pay the respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at pp 2–5 and 10–11. ↩
Permanent Trustee Company of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 420; Lake Macquarie City Council v Luka [1999] NSWCA 447; Leontiades v F T Manfield Pty Ltd (1980) 43 FLR 193; Sterling Engineering Co Ltd v Patchett [1955] AC 534 at 545–546; and In re Millers Agreement; Uniacke v Attorney-General [1947] Ch 615 at 624–625. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at p 21. ↩
Cf Re Eddowes [1991] 2 Qd R 381 at 382. ↩
Ex parte Melvin [1980] Qd R 391 at 392; Ex parte Proprietors of "Averil Court" Building Units Plan No. 2001 [1983] 1 Qd R 66 at 70 and Re Rollwell Australia Pty Ltd (1999) Q ConvR 54–521. ↩
[1957] 2 QB 650 at 663. ↩
Property Law Act 1974 (Qld), s 181(1)(b) uses the words "some reasonable user". ↩
[1987] AC 175. ↩
See eg Re Miscamble's Application [1966] VR 596 at 603; Pink v Cummings [2000] NSWSC 1114 and the authorities referred to in paragraph [14] thereof; Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd [1998] NSWSC 787 and Re Alexandra [1980] VR 55 at 58–59. ↩
Oldfield & Ors
Gold Coast City Council
(1998) 193 CLR 72
(2005) 12 VR 224
(1960) 105 CLR 401
(1980) 43 FLR 193
Section 181(1)(b) makes reference to an award of money which will be "an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification". The term "such person" refers back to persons "entitled to the benefit" of the easements. It cannot have been the intention of the draftsman that, in circumstances like the present, compensation could be payable either to members of the public as a whole or to those members of the public who utilise the easements. The reference to compensation being paid to "such person" must surely be a reference to the prospect of compensation being payable to the actual grantee of the easements.
The primary judge should have taken into account the fact that the easements could be extinguished under s 181 on the basis of a payment by the owners of the servient tenements to the respondent if it saw fit to resume the land and thus cause the area to be controlled by the one authority.
The evidence disclosed that the existence of the walkway accessible to the public caused "a range of problems for the owners of the servient tenements, and others". This was accepted by the primary judge.The appellants were the only lakefront residents in the estate with a walkway between their properties and the lake. That subjected the affected areas of the easements to "a disproportionately high degree of use". The evidence given by many of the proprietors of servient tenements about the way in which use of the walkway affected their enjoyment of their lots required the primary judge to find that the continued existence of the easements would impede reasonable users of the lots. She erred in not so finding and the finding was inconsistent with authorities which treat the word "impede" as meaning "retarding" or "hindering".
There was evidence of confusion as to the management of the area because of the multiple interests involved, ie various bodies corporate, the owners of the servient tenements and the Council. The primary judge also conceded in her reasons that with the benefit of hindsight, the management and control of the easements could have been conducted more effectively.
The primary judge approached her determination "with a predisposition against interfering with … the proprietary rights of the public to use the area the subject of the easements, and measuring the impact on the servient owners accordingly." The primary judge was advised at the hearing that the appellants consented to the Court making a condition of the extinguishment of the easements that the appellants pay an appropriate amount to the respondent in consideration of the extinguishment but the primary judge did not address that matter in her reasons.
At first instance it was submitted for the appellants that any condition imposed should not require payment of the full amount of $1,242,500, being the valuation of the difference between the appellants' properties as encumbered by the easements and as unencumbered. The valuation was made on the erroneous basis that the easements were a "public walkway". The Court should thus accept the appellants' submissions and fix a reasonable proportion of the sum of $1,242,500 as the amount which should be paid by the appellants to the respondent. Whilst it is conceded that the making of an order under s 181 is discretionary, the exercise of the primary judge's discretion miscarried.
At least as a general proposition, the reasonable use of land for the purposes of domestic dwelling will not be impeded for the purposes of s 181(1)(b) by acts and things which could be expected to exist or arise as a normal incident of land use in the subject locality, taking into account the land’s situation. For example, the disturbances created in suburbia by the noise generated, normally on weekends, by the paraphernalia of gardening enthusiasts such as motor mowers, leaf blowers, whipper snippers and mulchers, although often intrusive and irritating, are normal incidents of suburban living. They cannot be regarded as impairing the user of the land.
Similarly, if a dwelling has a frontage close to a busy street frequented by pedestrians, noise generated by vehicles and pedestrians, being an inevitable consequence of the location of the land and the normal use of public thoroughfares, normally could not be said to impair the use of the dwelling as a dwelling for the purposes of s 181(1)(b). So too with pedestrians and motorists looking into the dwelling to satisfy their curiosity, the depositing of dog faeces on the footpath and littering.
In considering the question of impairment of user the primary judge applied the appropriate test. It has not been demonstrated that in so doing she took into account irrelevant considerations or failed to take into account relevant considerations. The findings made by her were open on the evidence. Her Honour, having heard and seen the witnesses and having inspected the subject area had an advantage over this Court in determining the question of impairment. It has not been shown that her Honour misused that advantage.
There was a contention that while the easements remain, there will be some division of responsibilities which might result in the walkway not being properly controlled. The point lacks merit. The appellants and the principal body corporate between them would appear to have adequate power to exercise due control over the use of the walkway. It is open to the appellants, the local authority and other relevant bodies corporate, to take more positive and well directed steps to minimise the problems of which the appellants complain. The evidence reveals that steps were being taken to that end when the litigation was instituted. The appellants are not worse off than many other citizens who complain of conduct on property to which the public have access. The normal remedy of persons in those circumstances is to seek the assistance of the police and/or the local authority and, failing such assistance, to seek satisfaction from their elected representatives. The appellants, in fact, are in a stronger position than the general run of residents with properties abutting a public walkway, roadway or other public land. As proprietors of the lots they are in a position to exert a degree of supervision and control over the easements. Also the principal body corporate has responsibilities in respect of the walkway and a security service provides some policing of its use.
In every case, however, it is necessary to proceed beyond generalities and address the words of the grant of easement and other relevant circumstances. Here, the evidence is that members of the public with the obvious knowledge and implied approval of the respondent, have been using the walkway for years. Had there been any dispute about proof of such approval the presumption of regularity would apply.22 Once authorised, the members of the public had a presently existing right to use the walkway and were thus "entitled to the benefit" of the easements. It was not contended that "entitled to the easement" in paragraph (d) had a different meaning to "entitled to the benefit" of the easement in paragraph (b).
In our view, the easements also secure to the respondent local authority "practical benefits of substantial value, utility, or advantage".23 A walkway which the public could use was secured by the respondent in the performance of its statutory role. That role includes the planning and ordering of urban development and the enhancement of the amenity provided thereby. If the easements are extinguished, the respondent's actions in accepting the grants of easements will be negated. The public benefits flowing from the easements will be lost. There is no particular difficulty in regarding the easements as securing to the respondent benefits of "utility or advantage". Nor are such benefits of "utility or advantage" unable to be regarded as "practical" or secured to the respondent because it is acting in the public interest as a local authority. "Practical" means the opposite of hypothetical; something of real utility. In our view the benefits to the respondent provided by the easements can be regarded as "practical" for the reasons just given.
14 Halsbury's Laws of England, 4th ed, paragraph 149 and Cannon v Villars (1878) 8 Ch D 415 at 420. ↩
See 14 Halsbury's Laws of England, 4th ed. paragraph 149. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [105]. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [109]. ↩
Re Rollwell Australia Pty Ltd (1999) Q ConvR 54-521. ↩
Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488 at 507 and Stanhill Pty Ltd v Jackson (2005) 12 VR 224 at 238. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [101]. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [15]. ↩
Averono & Anor v Mbuzi & Anor [2005] QCA 295 at [21]. ↩
R v Rose [2009] QCA 83; Sterling Engineering Co Ltd v Patchett [1955] AC 534; Hill v Hasler [1921] 3 KB 643 and Lake Macquarie City Council v Luka [1999] NSWCA 447. ↩
See eg Hill v Hasler [1921] 3 KB 643 at 652. ↩
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435. ↩
Carpenter v Carpenter Grazing Co Ltd (1987) 5 ACLC 506. ↩
Property Law Act 1974 (Qld), s 181(1)(b). ↩
See Averono v Mbuzi [2005] QCA 295 at [20] and Ridley v Taylor [1965] 1 WLR 611 at 615. ↩
[2005] QCA 295 at [19]. ↩
AR 249–250. ↩
AR 252–253. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [95]. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [96]. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at **[**97]. ↩
Oldfield & Anor v Gold Coast City Council [2008] QSC 226 at [98]. ↩
AR 875. ↩
AR 336. ↩
(1998) 193 CLR 72. ↩
(1998) 193 CLR 72 at 97. ↩
(1998) 193 CLR 72 at 97 – 98. ↩
(1998) 193 CLR 72 at 98. ↩