Philip & Others v JPM Developments Pty Ltd

Supreme Court of NSW|2015-02-11|Before: Sackar J

Judgment

These proceedings concern a dispute over the development of land over which the plaintiffs have a right of carriageway. The plaintiffs (Mr Philip, Ms Seet and Ms Windybank respectively) are owners and residents of properties on Barcom Avenue in Darlinghurst. The defendant (JPM Developments) is the owner of a vacant lot on Barcom Avenue (Property), which is burdened by a right of carriageway. The lots adjoining the Property, including the three lots owned by the plaintiffs, have the benefit of the right of carriageway. In total, over twenty properties have a right of carriageway over the Property.
The plaintiffs seek a declaration that the defendant, by carrying out work under a development consent granted on 8 November 2000, will contravene the plaintiffs' right of carriageway. The plaintiffs also seek an order restraining the defendant from carrying out any work pursuant to this development consent.

Background facts

The Property (which is Lot 24 in Deposited Plan (DP) 233299) is located in Darlinghurst, in a densely populated area characterised by Victorian and Edwardian terrace houses. It sits between Womerah Avenue and Barcom Avenue, both of which are one-way streets. Traffic along Womerah Avenue runs in a northerly direction and traffic along Barcom Avenue travels in a southerly direction. The Property has a boundary on Barcom Avenue and then continues between 1 and 1A Barcom Avenue before turning at the rear of 1 Barcom Avenue and continuing in a westerly direction behind the properties on Barcom Avenue. It terminates at the rear of 15 Barcom Avenue near Oswald Lane (see Diagram 1).

Relevant legislation

The plaintiffs' right of carriageway over Lot 24 operates pursuant to s 181A and sch 8 of the Conveyancing Act 1919 (NSW). It is in the following terms: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.
The right of carriageway is articulated in much broader terms than the other easements described in sch 8 of the Conveyancing Act. These include a right of foot way, an easement to drain water, an easement to drain sewage, an easement for repairs, an easement for batter, an easement for drainage of sewage, an easement for the drainage of water, an easement for electricity purposes, an easement for overhang, an easement for water supply, an easement to permit encroaching structures to remain, a right of access and an easement for removal of support.

Legal principles

An easement, in this case the right of carriageway, represents the embodiment of the idea that a property owner is entitled to the full use of their property. The legal principles relevant to this matter are uncontroversial. In Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 (Westfield Management v Perpetual Trustee) the Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) considered at [38]-[44] that the nature of the rights of the respective owners depends upon the interpretation of the words in the Register (citations omitted): 38 Recent decisions, including Halloran v Minister Administering National Parks and Wildlife Act 1974, Farah Constructions Pty Ltd v Say-Dee Pty Ltd, and Black v Garnock, have stressed the importance in litigation respecting title to land under the Torrens system of the principle of indefeasibility expounded in particular by this Court in Breskvar v Wall. 39 The importance this has for the construction of the terms in which easements are granted has been remarked by Gillard J in Riley v Penttila and by Everett J in Pearce v City of Hobart. The statement by McHugh J in Gallagher v Rainbow, that: "[t]he principles of construction that have been adopted in respect of the grant of an easement at common law … are equally applicable to the grant of an easement in respect of land under the Torrens system" is too widely expressed. The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee. 40 It is true that in Overland v Lenehan Griffith CJ admitted extrinsic evidence to show a misdescription of the boundaries of the land comprised in a certificate of title. This is a matter now dealt with in the RP Act by the provisions in Pt 15 (ss 136-138) for the cancellation and correction of instruments. Subsequently, in Powell v Langdon Roper J accepted as applicable to the construction of a particular grant of a right of way (apparently over land under the RP Act) a statement by Sir George Jessel MR in Cannon v Villars. This was that the content of the bare grant of a right of way per se was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied. 41 The situation with which the Australian courts were concerned in the above cases bore little resemblance to that in the present case, where the evidence goes to the intentions and expectations of the parties to the Instrument respecting the development of an area in the central business district of Sydney. 42 To some degree the attraction of "the common law approach to the construction of grants of easement" has been to counter arguments that a right of way may be used only for the purposes for which the way was used at the time of the grant. But to accept the proposition that the user under a registered easement may change with the nature of the dominant tenement, so long as the terms of the grant are sufficiently broad, does no violence to the principles of the Torrens system. 43 Subsequent changes in circumstances may found an application under s 89 of the Conveyancing Act for modification or extinguishment. The conduct of the immediate parties to a dispute may found a personal equity of the kind considered in Mayer v Coe and accepted in Breskvar v Wall, and also may bear upon a claim for injunctive relief, as Kearney J indicated in Andriopoulos v Marshall. But this was not what was involved in the significance attached by the primary judge to the evidence of what may or may not have been in the contemplation of Jamino and Mastwood, or their affiliates and advisors, at or before the grant of the Easement in 1988. These matters were used to guide, if not control, the construction of what appeared on the Register. 44 It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in the case on the DP.
In Hare v Van Brugge (2013) 84 NSWLR 41, Barrett JA, with whom Macfarlan JA and Tobias AJA agreed, said: 16 In that case [referring to Westfield Management v Perpetual Trustee] (at [37] to [40]), Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ drew attention to the restrictions inherent in the Torrens system when it comes to construing registered instruments creating easements. The general rule is that material outside the register may not be used. But, as this Court confirmed in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200, the High Court recognised that that general rule does not rule out reliance on evidence of the physical characteristics of the land concerned. Handley AJA said, with the concurrence of McColl and Tobias JJA, at [15]: "[T]he decision in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 has since confirmed that extrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900: paras [5], [37]-[41] (Emphasis added)". 17 This formulation refers to both dominant and servient tenements. There was no submission on the present appeal that Sertari Pty Ltd v Nirimba Developments Pty Ltd should not be followed. 18 By resorting to evidence of physical characteristics of the tenements, a court does not have regard to matters which, like the intentions of the original grantor and grantee, are unavailable to third parties inspecting the register. The physical features are there for all to see, at least as they stand today. Different considerations may apply if it is suggested that some material change in physical circumstances has occurred since the creation of the easement (see the observation of Fryberg J, with whom Margaret McMurdo P and Fraser JA agreed, in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; [2012] 2 Qd R 511 at [49]). There is no such suggestion in this instance.
There is no dispute between the parties that the relevant question is whether or not the development constitutes a substantial interference with the rights conferred on the owners of the dominant tenements. In Middleton v Arthur [2002] NSWSC 627 (Middleton v Arthur), Palmer J summarised the applicable principles as follows at [48]: What amounts to a substantial interference with the reasonable use of a Right of Way for the purposes of a dominant tenement is essentially and ultimately a question of common sense judgment founded upon the circumstances of each particular case. An obstruction may be small in size and short in duration but, in the light of the particular use for which the Right of Way is reasonably required, it may nevertheless be a substantial interference: see e.g. Ex parte Purcell (1982) 47 LGRA 433, at 439; Finlayson v Campbell at 15,710. On the other hand, the obstruction may be large in size and of permanent duration and yet, because of the limited use for which the Right of Way is reasonably required, it may not be a substantial interference: see e.g. Clifford v Hoare (1874) LR9CP 362.
In Middleton v Arthur the defendant had development consent for the renovation of his house, including the addition of a garage and a studio that was to overhang the right of way. It was clear that an average sedan car would have had no difficulty negotiating the right of way. The plaintiffs contended that it would nonetheless be a substantial interference with the right of way because certain vehicles, including removalist vans and builders' trucks, would be too tall to pass under it. At [38]-[43], Palmer J considered that: 38 If it can otherwise be ascertained from the terms of the grant and from the extrinsic circumstances at the time of the grant that tradesmen's vehicles and removalists' vans were intended to be entitled to use the Right of Way then, in my opinion, it would be reasonably ancillary to the use and enjoyment of the Right of Way that such vehicles be permitted to stop on the Right of Way for such time as is reasonably necessary to load, unload and effect their necessary business. The significance and weight of this third point is, therefore, largely dependent upon whether it appears from other relevant considerations that tradesmen's vehicles and removalists' vans are, or are not, within the category of vehicles permitted to use the Right of Way. 39 Fourth, Mr Perram submits that the Right of Way leads only to the garages under Nos. 28 to 30A so that only the garages are the relevant terminus ad quem. I cannot agree. I have already noted that the terminus ad quem is the whole of the land comprising the dominant tenements, not merely some part of it, and that the Right of Way is granted for all purposes connected with the use and enjoyment of the dominant tenements. I must, therefore, have regard to the fact that at the date of the grant the dominant tenements were used as residences, that the garages were only part of those residences, and that access to the residences themselves is afforded by stairs leading up from the garages. 40 Fifth, Mr Perram draws attention to the fact that access to Nos. 28 to 30A is available from Hopewell Street and that deliveries and removals could probably be effected more conveniently by that means. 41 While it is true that access to the dominant tenements can be gained from Hopewell Street, it is not possible to generalise that such access must have been contemplated by the parties at the time of the grant as more convenient at all times and for all purposes than access from the rear and by means of the Right of Way. In any event, convenience of alternate access from Hopewell Street is beside the point, in my opinion, for the purposes of construing the words of the grant. Rear access to the dominant tenements has been granted in wide terms which expressly permit use by vehicles of "any description" for "all purposes" connected with the enjoyment of the dominant tenements. It can hardly be right to approach the construction of those words with the attitude that the grantor and the grantee must have intended to exclude from the category of vehicles entitled to use the Right of Way all those which were able - even conveniently able - to use Hopewell Street itself for access. To approach the matter in that way would be to construe the grant most strongly against the grantee and in favour of the grantor. The law requires the opposite: see e.g. Williams v James (1867) LR2CP 577, at 581; Wood v Saunders (1876) LR 10 Ch App 582, at 584; Gallagher v Rainbow at 640. 42 Further, such an approach involves defining the rights created by the grant by reference primarily to considerations of convenience rather than by reference primarily to the words of the grant themselves. It is to the words of the grant that the Court has first regard and they must be given full effect unless it can be seen from the surrounding circumstances that, as a matter of implication, the words must be cut down: see e.g. White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113, at 116 per Cozens Hardy MR; Robinson v Bailey [1948] 2 All ER 791, at 795 per Lord Greene MR; Finlayson v Campbell at 15,707 per Young J; Todrick v Western National Omnibus Company Ltd [1934] Ch 190, at 206-207 per Farwell J; Gallagher v Rainbow at 640. 43 It is a normal and perennial incidence of residential life that, from time to time, renovations and repairs to the residence are necessary, households move in and move out, and heavy or awkward household items have to be delivered or removed. Vehicles involved in any of those activities are clearly engaged in a purpose connected with the use and enjoyment of Nos. 28 to 30A within the meaning of those words in the grant, and they have a right to stop on any part of the Right of Way for such time as is reasonably necessary to effect their business. In my opinion, such vehicles are not excluded from use of the Right of Way by the five considerations to which Mr Perram has referred, taken singly or together.
The remark at [41] by Palmer J that "[t]o approach the matter in that way would be to construe the grant most strongly against the grantee in favour of the grantor", whereas "the law requires the opposite" is at odds with the consideration of Young J in Finlayson v Campbell (1997) 8 BPR 15,703, which emphasises the rights of the owner of the servient tenement: Before one can see whether there is a substantial or real substantial and material as the case may be, interference, one has to see what rights the plaintiff has under the grant. I have already touched on this in section (b), but it is necessary to look at the way in which courts construe these grants of rights. Mr Coles QC and Mr Reuben put that one focuses on the position of the grantee and asks whether what the grantee is doing with the servient tenement is a reasonable user. On the other hand, Mr Jucovic QC who appeared with Mr PT Taylor for the defendants, says that one focuses, if one focuses at all, on the fact that the land is owned in fee by the servient owner and that he has only granted to the dominant owner limited rights. In my view, the analysis by Messrs Jucovic and Taylor is the correct one and is supported by the authorities. Many of these I have reviewed already. In Zenere v Leate at 9304, McLelland, J said, "The dominant owner has only such rights as are to be found expressly or by necessary implication in the terms of the grant. The servient owner has all the rights of an owner except those which are inconsistent with the exercise by the dominant owner of the rights expressly or by necessary implication conferred on him by the terms of the grant."
It should be noted that the right of carriageway being construed in that case was not as broadly defined as that in the instant case; it was a right of carriageway "15 feet wide & variable width". In this way, the easement was circumscribed in a way that is not analogous to the right of carriageway enjoyed by the plaintiffs. Young J had earlier referred to cases which emphasised that when determining what constitutes a substantial interference, regard must be given first to the nature of the rights enjoyed by the holder of the dominant tenement. He said: In Ex parte Purcell (1982) 47 LGRA 433 at 439, McPherson, J said that "The question in a case such as this is not simply whether the interference is substantial', if that expression is used simply to denote an extensive interference. It is whether it is material', and it is material if the consequences of the interference are likely to be extensive, even though the interference itself may be slight and the occasions of its occurrence infrequent. Hence a slight interference with the council's right of access to and use of appropriate machinery on the easement area may constitute an impermissible interference with that right in circumstances where, as here, the consequence may be a prolonged interruption of a clean water supply to many residents of the shire."
In Gallagher v Rainbow (1994) 179 CLR 624 McHugh J said at 640 that "[i]n the absence of a contrary indication, the grant is construed against the grantor." His Honour cited the English cases of Williams v James (1867) LR 2 CP 577 (at 581) and Wood v Saunders (1875) LR 10 Ch App 582 (at 584). With the greatest of respect to Young J, I prefer the approach taken by McHugh J and Palmer J, although for reasons which follow later the point makes little if any difference here.
The plaintiffs submit that, in this case, the words of the grant of the right of way should be construed as including the right of carriageway for larger vehicles, such as tradesmens' vehicles and removalist trucks. It is evident that although such vehicles may be able to access the rear of the plaintiffs' houses via Oswald Lane, those that may not fit under the roller door, for example, would need to reverse out rather than proceed forward onto Barcom Avenue.
In Prospect County Council v Cross (1990) 21 NSWLR 601 at 610, Bryson J considered that: In my opinion, an interference and a substantial interference with the enjoyment of rights created by an easement can in principle occur in ways other than offering physical impediment to the exercise of those rights. Acts or circumstances which create danger and in that way, or in any way offer an impediment to the freedom of a decision to exercise and continue the exercise of the right, or impose a risk or cost on so doing, could fall for consideration as interference and substantial interference with the exercise of the right.
Brereton J reiterated this point in Trewin v Felton [2007] NSWSC 851 at [69]-[70], noting the decision of Jalnarne v Ridewood (1989) 61 P & CR 143 and saying that "interference with an easement, which makes it less convenient, although it remains passable, is an actionable nuisance." His Honour went on to make the observation at [77]-[78] that: …Although 3 metres is sufficient for the passage of vehicles, this point in the right of way is one where maximum manoeuvrability is important to users, since it is the vicinity in which vehicles manoeuvre and turn to enter the garage on Lot 1, and those manoeuvres are restricted - particularly in the case of a vehicle towing a trailer - by the gateposts. Generally there is no obligation on a servient owner to maintain the full width of the easement throughout, so long as there is no substantial interference with reasonable exercise of the right of wa...in my view, the gateposts at the point at which they are located reduce the width of the right of carriageway below that of ordinary convenience for its users. Accordingly, the gateposts are an actionable obstruction.
Panfili v Lawless [2010] NSWSC 79 concerned properties with adjoining driveways. The plaintiff and the defendant had rights of carriageway, one over the other, in respect of the driveways. The defendant installed a raised garden bed that had the effect of reducing the width of the right of carriageway. The plaintiff was a garden landscaping consultant who received deliveries of plants and materials by trucks. At [43] and [46] White J concluded that: 43 There is nothing in the language of the easement which limits the nature of the vehicles which are permitted to go, pass and repass on the carriageway over lot C to gain access to lot B. There is nothing in the instrument or the deposited plan creating the easement from which such an implication, as contended for by the defendants, can be made. … 46 It is not an unreasonable or unforeseen use of the right of carriageway on lot C that it be used to assist access for the full length of the right of carriageway on lot B of large trucks, such as furniture vans, or building suppliers, or concrete pourers, on what were then undeveloped residential sites.
Counsel for the plaintiffs noted that the language of the easement in question was identical to the language of the right of carriageway in the instant case.

The Lay Evidence

Two of the plaintiffs gave evidence. They were both cross examined.

Ms Seet

Ms Seet owns No 1 Barcom Avenue. There is a Victorian or Edwardian terrace on her land. Ms Seet purchased the property in December 2007 and she has lived there since 2008. The front door of her home is accessed from Barcom Avenue, via a steep flight of approximately ten steps. From the back of her house she has what appears to be level access out into the laneway.
She states (which is uncontroversial) that the laneway runs adjacent to her property and thus continues around behind her property and the row of adjoining terraces, forming an "L" shape.
Her property along with the other terraces has rear access to the laneway. It is clear all owners use or could use the laneway to access their properties and in some cases their cars. It is also clear that members of the public use the laneway either to walk or drive up and down it. I am of course not concerned about those persons.
Presently much of Ms Seet's backyard comprises a pool, which she plans to renovate in the next two years. At that point she, unsurprisingly, wants tradesmen to be able to access her house from the laneway. That will obviously involve the delivery of building materials and of course the presence of builders', vehicles.
Part of the defendant's proposed development is to create a permanent car space which will run along much of the rear boundary of her property. She is concerned about this and believes that this will interfere with and obstruct access to her back gate, let alone impede any future relocation of the gate and her ability to change the access arrangements for a car to her rear boundary.
The plans of the defendant also involve landscaping on both sides of the corner of the laneway. They involve the construction of planter boxes with established trees. This will necessarily reduce the width of the laneway. It will also have an affect on another plaintiff, Ms Windybank. I will return to her concerns separately.
On 11 March 2014 Ms Seet wrote to the principals of Richardson and Wrench, real estate agents in Surry Hills, when she learned they were acting as agents for the vendor in a sale of the laneway. Her letter was intended to make clear that the proposed development consent was ill conceived because it would interfere with her easement.
On the same day she wrote a more detailed letter to the then owner a Mr Michael Cassim, who is also a real estate agent.
She does not appear to have received any response to either letter. In any event, it is accepted by Mr Marahaj, sole director and shareholder of the defendant, that he saw both letters before he exchanged contracts on 23 June 2014.
Ms Seet was cross examined. She accepted that before purchasing her property she made no enquiries of the local council regarding any development applications relating to Lot 24. She said by way of explanation that she did not do so because she did not think anyone would be able to build on a laneway.
She stated that at the moment there were no cars in her household and that when she bought the property it already had the pool. She has over time had some work done in and around the pool area and some tree roots had to be removed because they had obstructed some underground pipes.
Ms Seet agreed she was aware that a red Mitsubishi four wheel drive regularly parks behind different houses that front Barcom Avenue. She was unaware of who owns the vehicle. She also agreed other cars park at the rear of her property from time to time. She has taken no steps to prevent persons from doing so. Sometimes she (or perhaps her house guests), and I infer other residents, position traffic cones in order to reserve car spaces. This approach does not always work.
Somewhat unsurprisingly, Ms Seet would not agree that a permanent car park behind her house utilised exclusively by the defendant would improve access to her house. Although she conceded the proposed car space may not block her existing access she thought it would impede a tradesman, for example, parking at the back. I should add in passing that the defendant has not yet determined the manner in which he would ensure that the parking area was used as a permanent car park. During the hearing counsel for the defendant indicated, or perhaps, in fairness, speculated, that placing steel rods in the ground which would be upright when locked but could be folded in a horizontal position to the ground when unlocked might be the method used to ensure exclusivity.
Ms Seet accepted that the landscaping proposed near her property would prevent cars from parking there as they do from time to time. However, she stated she believed that the corner would be narrowed if the landscaping occurred. She refused to accept the landscaping would lead to a positive outcome because of the combination of the tunnel (created by the construction of the proposed residence) and a narrowing of the corner making access more difficult.
She agreed, of course, with the proposition that if cars were parked along the laneway this would likely reduce the laneway to one trafficable lane. She believed she had at some point seen two cars going in opposite directions in the laneway. She agreed that one car would probably have to stop to permit the other to go past. She did, however, accept as a possibility that if there were controlled gates at either end of the laneway traffic may be diminished. She accepted it would prevent the public at large from entering the laneway. I should say again in passing that there is simply no information by which it could be determined whether cars using the laneway are those of residents or members of the public, or in what numbers each group uses it. Some persons who use the laneway may be members of the public but some, perhaps a preponderance, would be residents, their family or their guests.
Although Ms Seet agreed there were twenty odd lots that adjoin the laneway she was uncertain how many persons owned cars, but she believed there were "many" garages along the laneway.
Whilst she agreed gates at either end of the laneway might reduce traffic she thought they would increase the possibility of delay in opening and closing the gates. In addition she agreed that her garbage was collected from Barcom Avenue. Whilst she has not seen large garbage trucks in the laneway she has seen smaller ones in the lane picking up rubbish which had been dumped.
In so far as it is necessary to do so I accept Ms Seet's evidence. In so far as it is relevant she is clearly and genuinely concerned about the proposal, amended or otherwise.

Ms Windybank

Ms Windybank is another of the plaintiffs. She swore two affidavits. She is the owner of the house at 1A Barcom Avenue. She has owned the property since 2011.
She has a back gate to her property. It opens into the laneway. Indeed, she stated that she uses the gate as the main entrance to her property. So too her husband and guests. This is because the other entrance to her property, she says, is narrow and awkward. Much like other houses in Barcom Avenue there are steps up to what would otherwise be her front door. In her case, although not exceptional, the steps are quite steep and there is no landing at the top. In the circumstances it is difficult for her to open her front door. It is simply more convenient for her to enter and exit her home by the gate in the laneway.
She believes that the proposed development or the amended plans will cause significant disruption and inconvenience to her, and of course to her husband as well.
Not only would (in her view) the development restrict and in some cases arguably prevent her from doing a whole series of things she currently does via her back gate, it would significantly (again in her view) restrict if not prevent her from doing alterations to the back of her property such as changing the layout of her courtyard, which would require reasonable access for tradesmen and which could also involve a widening of her back gate. This would follow, as she sees it, from the building of the garden bed at the back of her property, and also the close proximity of the proposed dwelling to her gateway.
She also made the point that whether the gate at the Barcom Avenue end is 2.1 or 2.2m in height it would restrict many types of vehicles that could access the laneway and hence her house. She said that in her view the height restriction at the Barcom Avenue end would significantly inconvenience her. She stated that already certain vehicles can only navigate the corner in the laneway by either slowing down or reversing and re-approaching the corner.
She believed that the proposed landscaping and creation of the permanent car space behind Ms Seet's property will make negotiation or navigation of the corner all the more difficult. She stated she witnessed an event in about October 2013 when a council truck coming down the laneway ran into a parked car behind 1 Barcom Avenue, as a result it got stuck and damaged an electrical box on the side of her property.
In a reply affidavit (2 February 2015) Ms Windybank sought to place in issue the frequency with which cars are parked at the rear of or adjacent to 1 Barcom Avenue. Some evidence on this topic was put forward by the defendant and its traffic expert to support the proposition that the proposed development, amended or otherwise, would not in effect change the current situation. Ms Windybank said she had observed cars parked at the rear and adjacent to 1 Barcom Avenue but on other occasions there were none. She exhibited a number of photographs taken by her which show no cars parked at the rear of 1 Barcom Avenue. (CB, 223 - 231)
In passing I should observe it is uncontroversial that there are numerous signs in the laneway indicating "No Stopping" or "No Parking". There is no evidence as to who is responsible for the signs or whether the Council placed them and, if it did, that the Council does anything about enforcement. (CB 234 - 243)
Ms Windybank also said, and again it is not controversial, that persons often use traffic cones at the rear of their properties to reserve spaces for tradespeople, deliveries and/or visitors, and perhaps even for themselves.
Ms Windybank also said she has observed removalist trucks, emergency plumbing trucks, Sydney Water trucks, Council trucks, small garbage trucks, disabled taxis and delivery vans, many of which have according to her entered the laneway from Barcom Avenue and negotiated the corner. She also stated that some of these vehicles exceeded 2.2 metres in height, although she does not state how precisely she determined that fact. She does state contrary to Mr Varga, the defendant's expert, (who thought about six) that there are about twelve rear driveways. (CB 246 - 255)
Ms Windybank took a series of photographs depicting a good deal of pedestrian traffic on 30 January 2015. (CB1, 256 - 292)
The photographs clearly show pedestrians walking in Oswald Lane in the direction of Womerah Avenue. They also show persons on bicycles and children walking or on scooters.
Ms Windybank was cross examined. She agreed that at the time she purchased the property in 2011 she made no enquiries as to whether her property had been the subject of development consent. The reason is that she just assumed the laneway was a road.
She and her husband each has a car. She drives a small two door hatchback and her husband drives a ute. She rarely parks her car in the laneway as she has a resident parking permit which permits her to park on Barcom Avenue when space is available.
She agreed that cars do from time to time park in the laneway and when they are parked in the laneway this reduces the trafficable area. She also agreed that if two cars are coming towards each other in the laneway, one generally has to pull to one side to enable the other to pass. This could, she thought, lead to a minor delay. She fairly accepted that if there were gates at either end that might diminish the prospect of congestion occurring. She also stated from her observation that two cars could pass at the corner of the laneway and Barcom Avenue end at any one time if they proceeded carefully. This would not happen if a car was parked near or adjacent to the corner of the laneway. She also pointed out that there are twenty or so houses that back onto the laneway and many residents would use it daily for various reasons.
She stated she had observed large vehicles slowing down to negotiate the corner. She accepted that the landscaping near Ms Seet's property would restrict cars from parking there. If the proposal went ahead, however, she stated that to drop off her groceries, for example, having gone through the tunnel, she could then be blocking another vehicle from getting through if she stopped near her gate. She stated that with gates as it were she would be hesitant about parking there even to drop off groceries.
Although she currently does not have plans drawn up she is considering widening her gate and reconfiguring her backyard. She agreed that whilst she could load and unload groceries from her car if the development went ahead it would not be as convenient for her.
She was asked to make an assumption that her back gate would be about 4.5m from the rear wall of the proposed boundary of the new structure. It was put that on that basis she ought to be able to have all relevant deliveries via her back gate. She said however unsurprisingly she was unsure as to what could or could not be delivered.
Again as far as it is relevant, I accept Ms Windybank's evidence. She is obviously genuinely concerned about the inconvenience and difficulties the proposed or amended development will cause.

Other Evidence

Affidavits were also read from Mr James Evans and Mr Paul Lalich. Neither was required for cross examination.
Mr Evans and his wife own 26 Womerah Avenue. They purchased the property in February 1988. Their house also backs onto the laneway. They enjoy a right of carriageway in identical terms to those of the plaintiffs. They frequently use the back gate to access the laneway. They have a disabled daughter who requires twenty four hour care. She attends a specialist care facility, five days a week.
She is transported to and from the facility sometimes in a van operated by it. The van collects Mr Evan's daughter two or three days a week. He states the van is between two and three metres in height and contains lifting equipment. Occasionally his daughter is transported by specially equipped taxis. The laneway is used because access is easier for Mr Evans and all concerned. This is partly but not unimportantly because the vehicle can stop for a longer period of time in the laneway as opposed to the front of his house on Womerah Avenue. Although there is a disabled parking spot at the front of his house, persons do not always observe such reservation. He believes the proposed development, especially with the height restrictions at the Barcom Avenue end, would cause serious disruption to the family's current arrangements. He believes that some drivers may object, as I understand his evidence, to negotiating the gates or having to reverse out the Oswald Lane end because their vehicle exceeds 2.2m in height.
Mr Lalich's affidavit contained purely formal matters covering the proceedings and service of the process.

The Defendant

The sole director and shareholder of the defendant, Mr Maharaj, is a consulting engineer and a property developer who has owned the laneway since only August 2014. He exchanged contracts on 23 June 2014 and was well aware of the various rights of carriageway prior to exchange. He proposes, he says, to live in the new dwelling with his twenty three year old son, having sold his house in Manly.
He saw the property advertised on Domain.com on or about 9 June 2014. He met with real estate agents at the property on 10 June and paid a 5% deposit almost immediately. Although the agent initially indicated the price was $400,000 he offered it seems $350,000, which was accepted. He exchanged contracts on 23 June 2014.
He and his son are involved, it seems, in about three property development projects.
It was put to Mr Maharaj that he believed he was acquiring the land cheaply. He prevaricated in answering by suggesting that he was not really sure about values, especially in the Darlinghurst area. He did agree it was a modest price for what was in effect 405 square metres of land in Darlinghurst. It was put to him that he knew it was a modest price because of the constraints associated with the land. He appeared to agree to this latter proposition.
He accepted he was well aware of the attitude of local residents but took the view the property came with an approval from the Council to develop the land.
He agreed that since settling on the property in about August 2014 he had not sought to prevent members of the public from parking or walking through the laneway.
Mr Maharaj exhibited a series of photographs to his affidavit. They depict various cars parked in the laneway at various locations from time to time. Some of the photographs show one small car parked right on the corner of the laneway and Barcom Avenue. In one of the photographs it would appear a taxi has gone down the laneway and into Barcom Avenue past the car.
Another photograph shows a number of cars parked at the rear of 1 Barcom Avenue. In other photographs there are numerous cars parked on the eastern side of the laneway seemingly creating one lane access. In other photographs cars are seen to be parked in Oswald Lane, just up from the corner of Womerah Avenue.
Mr Maharaj then provided some details about the Development Consent. He expressed his views about it and its impact on residents. In particular he indicated that he proposed to remove the height restriction on the gates at the Oswald Lane end of the laneway. He then advanced various arguments why in his view neither the permanent car space nor the landscaping would amount to "unreasonable interference".
There is little doubt the defendant through Mr Maharaj is prepared to make some changes to the approved plans in an attempt to accommodate the plaintiffs' concerns. Indeed he instructed his counsel to make additional concessions in final submissions. Partly because of the changing and uncertain nature of any further changes I stopped counsel from in effect further amending the proposal orally in final submissions. I took the view that to permit those submissions would be to make the matter so uncertain as to arguably be unmanageable. In any event the status of such proposals is questionable.
However, Mr Maharaj was cross examined and during that exercise the following exchange occurred (T63). Q If you go to paragraph 13 for me please is it right that in paragraph 13 you have summarised the works that you in September-October 2014 you intended to do under the development consent? Is that right? A Yes. Q That included your intention in (a) to construct a terrace over the lane with a minimum height of 2.1 metres and (b) to put a roller shutter at the western end of lot 24 with a minimum height of 2.1 metres. Correct? A Yes Q Is it the case that you now agree that if you carried out works or the company carried out works as described in 13(a) and 13(b), that would interfere unreasonably with the rights of carriageway? Is that right? A Yes
He was also asked a series of questions so as to compare what was approved with what is presently proposed by way of amendment. What emerged in my view is that the plans for the amended development are somewhat confusing, particularly as to some of the measurements. Mr Maharaj was, it seems to me, also confused as to whether he had or needed development consent for the so called proposed amended plans. He vacillated between asserting he could achieve the amended proposal without the need to approach the Council to agreeing, for example, that his proposed Juliet balconies would definitely require specific approval.
He agreed that the width and type of gate and supports at the Oswald Lane end had not been finally determined. He also agreed that on the proposed amended plan concerning the landscaping adjacent to Ms Windybank's boundary there were no dimensions for the height of the planter boxes. It is clear that the matter has not been finalised. He thought they would be perhaps 600mm high and the same height behind Ms Seet's property, in which would be placed advanced trees. He also agreed that once in place there would be obvious expense if they were to be removed.
He said he had attempted to negotiate a solution with the residents, he was at pains to say on a "without prejudice" basis. He also agreed that in buying the property he took a risk as to whether he would be able to get some form of development completed.
Mr Maharaj is a property developer who has unashamedly taken a risk in buying this property. He was reluctant to accept that upfront. He was also, in my view, quite confused about the effect of his proposed plans, but is obviously prepared to abandon aspects of them and be pragmatic to get the construction complete. If my impression of him and/or his credit were relevant to any issue I would have to say that I formed a somewhat unfavourable view of him. No such issues arise, however, here. Whilst his attitude is understandable in one sense and whilst he may be prepared to be pragmatic and abandon some of what is currently approved, it seems to me he will not for obvious reasons abandon the height restriction of 2.2m at the Barcom Avenue end.
However, it is clear from his evidence that he accepts that the development consent currently in place would lead to a substantial interference to the existing rights of carriageway, and if I may say appropriately so.

A View

A view was undertaken of the relevant site on the first day of the hearing. Counsel accurately recorded the observations made by all (including myself) at (TT91.40-212.25).

The Experts

Both sides engaged experts. They prepared individual reports and ultimately a joint report and were cross examined jointly.

Mr Hollyoak

Mr Hollyoak was called by the plaintiffs. He has a bachelors degree in civil and structural engineering and a masters degree in transportation planning, both from universities in the United Kingdom.
He has given expert evidence and/or prepared expert reports in many cases involving traffic and access issues in many courts in New South Wales. He now runs his own consulting business.
His first report was dated 24 October 2014. He had been supplied with copious materials including the plans of the proposed development.
He visited the site and made numerous observations. He says he saw what he described as small rigid vehicles (SRVs) delivering goods to houses on Barcom Avenue. Such vehicles according to Australian Standard (AS2890.2, parking Facilities, Part 2: Off Street Commercial Vehicle Facilities) require a minimum of a 3.5 vertical clearance. Larger long medium rigid vehicles (ie over 8.8 m in length), and 12.5m heavy rigid vehicles require a 4.5 vertical clearance.
Mr Hollyoak observed and photographed a delivery vehicle, seemingly delivering a refrigerator. He noted that many delivery vans/trucks, tradesmen's vans and removalist trucks were around 2.9 m in height. (CB, 180 - 193)
In order to assess the manoeuvrability of such vehicles, he prepared several swept path diagrams showing what he described as B85 and B99 vehicles and a small rigid truck turning into the laneway and negotiating the bend in the laneway to the rear of 1 Barcom Avenue.
Mr Hollyoak explained that his Figure 1 showed a B99 vehicle (which is one larger than or equal to 99.8% of the passenger and light commercial vehicles that operate on Australian roads) turning into and out of the lane even allowing for a vehicle parked in the kerbside of Barcom Avenue. He explained there is a "design" car in the Australian standard based on a mix of vehicles which includes the Toyota 100 series Land Cruiser with a width of 1.94m and uses a length of 5.2m with a kerb to kerb turning circle of 12.5m.
Mr Hollyoak explained that Figure 2 showed a B85 vehicle turning into and out of the lane and around the corner even allowing a vehicle parked at the kerbside of Barcom Avenue. A B85 is a light commercial vehicle defined as a vehicle which is larger than or equal to 85% of the passenger and light commercial vehicles that operate on the Australian roads. A typical B85 such as a Ford Falcon sedan has a width of 1.87m, length of 4.91m, with a kerb to kerb turning circle of 11.5m. In Mr Hollyoak's view (Figure 3) an SRV (the smallest truck of those described as AS2890.2) could successfully turn into the lane and negotiate the corner.
Mr Hollyoak pointed out that he in effect assumed the approved plans provided for the construction of a new dwelling and a gated right of way beneath it which will have a maximum height clearance of 2.1m and a minimum width of 2.5m. Mr Hollyoak pointed out that "AS2890 Parking Facilities Part 2004 Off-Street Car Parking" stipulates that to permit access for cars and light vans the height between the floor and an overhead obstruction should be a minimum of 2.2m.
In relation to the approved plans, in his view a B99 could not (Figure 4) pass through the approved gates at the east/west section of the laneway. This is because of the narrowness of the laneway and the angle at which the vehicle would need to enter the amended right of way. In his view (Figure 5) a B85 would also be unable to pass through the gates and would not be able to turn into the east/west section of the laneway because of the proposed landscaping adjacent to the property.
However, in addition (Figure 6), Mr Hollyoak said that as adequate clearance of 3.5m is not provided, a small rigid vehicle would be prevented from entering the gates and negotiating through the building and around the corner. This again was because of the narrowness of the laneway and the angle at which the vehicle would have to enter.
Mr Hollyoak also expressed the view that the opening and closing of the gates on Barcom Avenue could be the subject of congestion depending on whether a vehicle is coming from the opposite direction. This question of what sort of gates and more importantly what sort of locking mechanism (the defendant at the hearing envisaged electronic gates and a swipe card system), is yet to be decided. This could in and of itself be the subject of some concern. There is simply no evidence before me as to precisely what locking mechanism will ultimately be used.
Mr Hollyoak saw (on the approved plans) considerable difficulty with the proposed roller doors at the Oswald Lane end. Again there was proposed a 2.1m height clearance which, as Mr Hollyoak saw it, would again limit the vehicles that could use the laneway.

Mr Varga

The defendant retained Mr Robert Varga. Mr Varga holds qualifications in traffic planning, management and control (UNSW) and has completed a range of courses with the RTA and is a member of the Australian Institute of Traffic Planning and Management and has successfully completed the IMEA/RTA course for Road Safety Auditors. He regularly gives evidence in Land and Environment Court matters.
In his report of 19 January 2015 (said to be for the purposes of accompanying an application for a residential development), Mr Varga recommended that a number of changes be made to the vehicular access arrangements proposed on the subject site pursuant to the development consent.
He recommended in that report that the overhead clearance be increased to a minimum of 2.2m to comply with the relevant standard. He also recommended that the proposed garden bed in the north-western corner of the lane be deleted to enable the swept turning path requirements of a large B99 vehicle as specified by AS2890.1-2004 to be accommodated.
In addition he recommended that the proposed roller doors in the laneway at the Oswald Lane end of the property be changed to a gate. Mr Varga stated these changes were to comply with relevant standards, and in his view to ensure that the existing vehicular access arrangements were not diminished.
In his view it would be physically impossible for a small SRV truck to negotiate the corner adjacent to 1 Barcom Avenue if any cars were parked in the lane adjacent to the rear boundary and the side boundary of 1 Barcom Avenue, due to the number of walls that encroach on the right of carriageway.
Mr Varga stated that in his view vehicles larger than a B99 could continue to access that section of the laneway between Oswald Lane and the corner on the subject site adjacent to 1 Barcom Avenue by reversing to or from Oswald Lane.
He then commented on Mr Hollyoak's first report, and in particular the observation that various vehicles access the laneway many of which exceeded the height of 2.9m. Having viewed the photographs exhibited by Mr Hollyoak he disputed various observations made by Mr Hollyoak. He made the point that the City of Sydney Council garbage collection do not use the laneway because their trucks will not fit. I observe, however, this does not explain garbage collection by either Council or private contractors using smaller trucks in the laneway to remove dumped rubbish or the like.
Mr Varga disputed the potential for delay by reason of the opening of gates, suggesting that delays "would be minimal", or that "similar delays" would be experienced when a vehicle is reversing into a kerbside parking space. He said that "in any event" traffic flows in Barcom Avenue are minimal.
There is no material suggesting Mr Varga was given any information about other gates in the area or information about the types of gates or locking devices in the proposed development. It is a little difficult to understand, then, his comparison of the various gates and/or delays he refers to. Admittedly he was not asked questions in cross examination about this, but as an expert he has an obligation to explain his reasoning process clearly. In my view, he did not.
His report then proceeds to dispute various matters of fact raised by Ms Seet, and Ms Windybank in their evidence.
Again, as an expert witness I am by no means satisfied that he is really in a position to do so (except perhaps as an advocate). Again, this matter was not the subject of cross examination, but it is obvious he purports in his response to give evidence of a factual nature mixed with various opinions.
In addition he dismisses Mr Evans' concerns about transport for Mr Evans' daughter by advocating that there are no problems because the 2.2m clearance at the Barcom Avenue end would comply with AS2890.6 - 2009, together with the fact that there would be no height restriction on vehicles accessing the rear of Mr Evans' house at 26 Womerah Avenue via Oswald Lane. The so-called gate at the Oswald Lane end would of course be unrestricted in height by reason of Mr Varga's recommendation. Given Mr Evans was not cross examined and although some of what he says may be based on his opinions rather than having a factual basis, I am by no means persuaded Mr Varga is in a position to say anything meaningful about those vehicles that may be required to transport Mr Evans' daughter.
He has not in all likelihood had the weekly effort over fifteen years of ensuring that a disabled daughter is conveyed to a care centre. He simply, and in my view somewhat glibly, asserts that a 2.2m clearance complies with the relevant standard and on his recommendation there would be no height restriction at the Oswald Lane end. He seems unable as a matter of common sense to envisage a problem.
I regret to say that the clear impression I have of Mr Varga's report was that it was written by an advocate wishing to make debating points rather than an expert focusing on his obligation under the expert witness code. That impression was fortified having heard him give evidence.

Mr Hollyoak replies

Mr Hollyoak provided a report dated 30 January 2015 in reply to Mr Varga
In order to ascertain the level of activity in the laneway, Mr Hollyoak instructed Skyhigh Traffic Surveys to undertake a video traffic survey of all traffic movements at the laneway/Barcom Avenue intersection for a period of a week. The week was the seven day period commencing Saturday 18 October and ending Friday 24 October.
In that period by far the greatest number of vehicles (a total of 320) were what Mr Hollyoak described as cars (316). There were four vehicles described as large vehicles. Some of these vehicles entered and left the laneway via Barcom Avenue.
Exhibited to Mr Hollyoak's report are seven photographs of the "large" vehicles entering or exiting. It is apparent from the photographs that the sizes of the vehicles varied considerably. (CB 192)
Mr Hollyoak fairly accepted that all vehicles entering or exiting may not be related to properties enjoying a right of carriageway but appropriately observed some are likely to be. It was also observed by him that on his site visits, vehicles were parked behind some of the houses pointing in both directions, again indicating the likelihood they had entered or would likely exit via Barcom Avenue.
He also observed that a car was not always present in the parking space adjacent to 1 Barcom Avenue. The space according to the video was unoccupied for an average of four hours per a day.
Mr Hollyoak disagreed with Mr Varga's assertion (in his report) that it was physically impossible for SRVs to negotiate the corner in the laneway near Barcom Avenue.
Mr Hollyoak stated that the survey, especially Figure 2, showed that SRVs as defined can and do use the laneway. He also observed that if no cars are parked at the corner near Barcom Avenue, it could at that point operate two ways for perhaps a limited period. The photographs clearly show what appear to be different kinds of what I consider can fairly be described as large trucks exiting the laneway into Barcom Avenue.
Mr Hollyoak also expressed the view that the 2.2m height restriction would not allow some SRVs to pass through the tunnel. Notwithstanding an increase in proposed tunnel width to 3.3m, in his view it would still not permit two cars to negotiate the corner at the Barcom Avenue end. Mr Hollyoak also expressed his concerns about the need for vehicles to reverse back towards Oswald Lane. Mr Hollyoak's view is that reversing some 60m in a narrow road environment used by vehicles, pedestrians and cyclists is significantly less safe than the current arrangement.

Joint Report

The experts prepared a joint report. For that purpose they conferred on 2 February 2015.
In the result the experts agreed that a B99 vehicle would be able to traverse the right of way in both directions under the Amended Proposal. However, both agreed it could not traverse the right of way in both directions under the 2005 scheme.
Mr Hollyoak was of the view that the 2005 scheme would not allow a B99 car through the tunnel. He accepted that the proposed width of 3.3m provided for under the Amended Proposal, would allow that to occur even though it does not comply with the standard. However, the 3.3m width would limit the right of way in his view to a one way operation. Larger vehicles would not be able to use the tunnel at all.
Mr Varga accepted AS2890.1 - 2004 required the width of a single lane roadway to be 3.6m between vertical barriers and obstructions. Mr Varga stated that the right of way (which is 3.5m between the walls under the amended 2014 scheme) may be reduced to 3.4m with the installation of gates attached to either wall. At 3.3m width there would be minimum (200mm) non compliance, which in Mr Varga's view would not affect the practical day to day use of the right of way by large B99 vehicles (ie. 5.2m in length).
Mr Hollyoak referred to the video survey of the Barcom Avenue intersection over the relevant week. With regard to a car parking adjacent to 1 Barcom Avenue, he considered there were significant periods when no car was parked there. He also observed vehicles did park a few metres away from the corner, no doubt out of a sense of self preservation.
On the question of whether larger vehicles (eg. an SRV) would be able to access the right of way from Barcom Avenue, Mr Hollyoak was of the view that an SRV could drive along the right of way if no cars were parked adjacent to 1 Barcom Avenue.
Again he stated that the independent traffic survey demonstrated that small rigid vehicles currently can and do use the right of way. Mr Hollyoak also explained that the SRV as defined in AS2890.2 represents vehicles to a maximum load capacity of 4 tonne and having a single rear axle and either single or dual tyres. He also expressed the view that many SRVs are shorter than the AS2890.2 definition but the dimensions described in the standard are used as a "design vehicle"
He stated the survey showed an SRV entering the right of way even with a car parked in the laneway adjacent to Barcom Avenue. In his view, however, the proposed gateway opening would not be wide enough to allow such vehicles to undertake that manoeuvre. Such vehicles would require 3.5m clearance to accord with the standard. Therefore, in his view, SRVs could not pass through the tunnel under the approved 2005 plan or the Amended Proposal.
The problem as Mr Hollyoak saw it was that many relevant vehicles would be over 2.2m in height. The standard states the maximum allowable vehicle heights should be 0.2m less than the clearance height (that is there should be a 200mm clearance). In Mr Hollyoak's view the proposed 2.2m height restriction would preclude SRVs of the size of the AS2890.2 and larger trucks from using the right of way. It would also prevent access for some cars with loads on the roof (eg. roof mounted bikes).
Mr Varga with the use of a computer generated a swept turning path diagram of the 6.4m long SRV and stated that it would be physically impossible for an SRV truck to traverse the right of way in either direction if cars are parked at either the side or rear (or both) boundaries of 1 Barcom Avenue. Mr Varga did conclude that what he described as "mini" trucks could only access the right of way if they were less than 2.2m in height. The "mini" trucks Mr Varga had in mind are smaller than the B99 vehicles as defined by AS2890.1. They are 1.7m shorter than a small SRV truck and 0.5m shorter than a 5.2m long B99 vehicle.
Mr Hollyoak expressed the view that if the SRVs are unable to pass beneath the proposed property (by reason of their height being greater than 2.2m) then they will have to use Oswald Lane and either reverse down the laneway to their destination or drive down the laneway and reverse back up. Mr Hollyoak considered this to give rise to safety issues because the vehicle would be reversing apparently 60m in a narrow environment. This raised particular concerns given the possible presence of children, pedestrians and/or cyclists.
Mr Varga stated that reversing vehicles is a typical feature of the urban environment and by implication rejected this as a safety issue.
Both experts were called and jointly sworn and examined briefly and cross examined.
Mr Varga stated that in his visits (four in number) he observed a car parked beside 1 Barcom Avenue, and that in his view accessing the corner would be difficult for a car coming in either direction. Mr Hollyoak again stated his video survey showed the car space was vacant approximately 30% of the time. He also expressed the view that cars did not park right up to the corner in the laneway at the Barcom Avenue end.
Mr Varga again wanted to make the distinction between what he called a small truck and a car. Mr Varga asserted that Australian Standards defined a small truck or an SRV as a vehicle of 6.4m in length. He said there are smaller vehicles (mini trucks) which have lengths of say 4.7 or 5.2m. Mr Hollyoak disputed this but said all of them, whatever length, were at least 2.2m in height. Mr Varga simply indicated when he was referring to an SRV he was referring to a vehicle 6.4m in length.
Mr Varga agreed that, for example, ambulances are of varying sizes. Most are in the order of 5.3 to 6.4m in length but there are a couple which are the same size as a car. Mr Hollyoak interjected to make the point that most are in the range of 5.3m to 6.4m but he said they were higher than 2.2m. They could be 2.7m including the aerial. The range he said would be 2.4m to 3.2m in height. He later agreed ambulances were typically 2.4m - 2.5m in width.
Both experts appeared to agree that a fire truck would not fit around the corner from Barcom Avenue into the laneway. Mr Varga stated most fire trucks would be too long.
It was put to Mr Hollyoak that SRVs would have an overall length of 6.4m. Mr Hollyoak said that that is for what he called an off street commercial vehicle. He stated there would be plenty of vehicles he would classify as an SRV less than 6.4m in length. As an example, Coles, he said, used different types of vehicles not all of which would fit into a B99 category. Whilst he accepted a car as defined by the standard would have to be 5.2m in length to be defined as a B99, he would not agree that an SRV as defined has to be 6.4m in length as SRVs can, he said, be of varying lengths.
In Mr Varga's view an SRV as defined as he sees it (ie. 6.4m) would not get around the corner at the Barcom Avenue end of the lane, if there are cars parked there. Mr Varga agreed that as a general proposition what might be described as a truck by a lay person (ie. longer than 5.2m) would generally be higher than 2.2m.
Mr Varga also agreed that such a vehicle coming from the Eastern suburbs to deliver goods would turn left into Barcom Avenue and instead of turning right into Womerah Lane would have to go to Liverpool Street and then down Womerah Avenue into Oswald Lane and then the laneway. He would not accept it was circuitous or should be regarded as difficult. He would not accept delivery at the back of some of these houses would be easier than taking goods, especially bulky goods, up the front steps in Barcom Avenue. He thought there would be different levels even at the back entrances. Having said that he agreed he had not investigated Mr Philip's backyard. for example.
Some further debate took place on the ability of fire trucks of various sorts to access the laneway. Differences were restated. Mr Varga was of the view that a fire truck could negotiate the corner of Oswald Lane and the laneway if it was under 8.8m in length. He asserted a number of fire trucks fit within that description. He was of the view none could negotiate the turn at the Barcom Avenue end of the lane. Mr Hollyoak agreed but also said a larger fire vehicle could turn its front into the laneway if no car was parked there, but he agreed they could not negotiate the dog leg.
Of all the ambulance vehicles Mr Varga accepted the VWT5 and the Landcruiser could probably negotiate the rear lane adjacent to 1 Barcom Avenue. The VWT5 is 2.4m in height and the Landcruiser is 2.44 in height. The other vehicles in his view could not.
Mr Varga accepted an ambulance could negotiate the corner of Barcom Avenue if a car was parked there, provided it was less than 6.4m. He also accepted that a taxi or commercial vehicle capable of transporting a wheelchair could exceed 2.5 or 2.6m in height.
Again the experts disagreed on whether reversing a vehicle back toward Oswald Lane would cause safety issues. Mr Hollyoak thought so, Mr Varga thought not.

Discussion

The determination of whether there has been a substantial interference to a right of carriageway calls for a commonsense judgment upon the particular circumstances of the case. That judgment clearly requires a qualitative rather than a quantatative assessment. It will often involve matters of degree
The terms of the easement in this case are broad and hence should be given a broad interpretation. Amongst other things it permits the owner of the dominant tenement to "pass and repass". There is no suggestion of any restriction in the type of vehicle to be used or for that matter its height. Obviously the physical characteristics of the land are a relevant consideration. Anything which impedes a freedom to exercise and continue to exercise the right can amount to a substantial interference. A substantial interference may arise because of the risk that may be imposed in exercising the right of way.
It has been submitted correctly by the plaintiffs in my view, that Lot 24 is entirely configured as a carriageway. Lot 24 does not include, for example, an area like the residential lots that adjoin it. Again it is correctly pointed out by the plaintiffs that Lot 24 is a carriageway serving multiple lots in a residential subdivision, with multiple easements.
The plaintiffs Ms Seet and Ms Windybank I am satisfied would suffer a substantial interference to their rights of carriageway if the proposed landscaping and/or permanent car space went ahead. The landscaping alone causes at least two problems. First the proposed location would severely restrict Ms Windybank's ability in a very real way from reconfiguring her backyard or back gate or having tradespeople access it for that purpose.
So far as the corner of the laneway at the Barcom Avenue end is concerned it would have the distinct disadvantage of obstructing that corner to the point of making it difficult if not impossible to negotiate it.
The permanent car space proposed removes Ms Seet's opportunity to reconfigure her backyard for carparking or perhaps changing the location of her gate. More importantly it removes her opportunity to park her own car if she were to acquire one at the back of her property or have her guests do so, or conveniently have tradesmen park there to perform work at her property.
By reason of the proximity of Mr Philip's property to the proposed landscaping and/or the permanent car space I consider that this would again lead to a substantial interference to his right of carriageway.
However, whether one considers the current approved development or the proposed amendments (although it is not entirely clear what ultimately the defendant would propose by way of amendment), either in my view would lead to the interference and disruption of the flow of vehicles that currently access the laneway because of the proposed height restriction at the Barcom Avenue end. The 2.2 m height restriction alone would prevent certain vehicles from entering or exiting the laneway from Barcom Avenue and would, given the evidence of current use, amount in my view to sufficient disruption or inconvenience to amount to a substantial interference.
The state of the evidence does not really permit me to conclude with any precision what volume of the current vehicular or pedestrian traffic in the laneway is attributable to those persons with rights of carriageway as opposed to members of the public. Of course it is obvious that those persons who own houses and who are entitled to use the right of way will not only use it themselves but likely have relatives, friends and other visitors who come from time to time, and who use it. Tradespeople, delivery vans, emergency vehicles including certain ambulances, can negotiate the laneway and many are likely to be over 2.2 m in height. Mr Hollyoak, whose evidence I accept, made this point.
The thrust of the defendant's case is either that many vehicles cannot currently negotiate the laneway or that gates at either end would have a prophalactic effect by restricting the amount of traffic in the laneway and hence be of some benefit to residents. Further that the 2.2m height restriction would in any event allow a good deal of vehicular traffic. These arguments are in my view of superficial attraction only. The reduction in traffic, assuming it were to occur, would come at the expense of a significant restriction on the freedom to exercise the right of carriageway fully for vehicles over 2.2m in height.
Whether or not Mr Maharaj would be prepared to delete his proposed Juliet balconies or landscaping, for example, is not really to the point. It seems to me that this is a part of Sydney where the accommodation is cramped at best and space of any kind for parking, delivery of goods and services or the provision of emergency services is already at a premium. In this case, in my view, the height restriction of 2.2 metres at the Barcom Avenue end of the laneway would with or without the landscaping or a permanent car space severely and significantly interfere with those persons entitled to use the right of carriageway for the reasons already stated. By the very nature of the type of housing together with the topography and one way street arrangements in Womerah Avenue and Barcom Avenue residents and those visiting and/or providing services necessarily have to make use of the rear access for any number of reasons. Their options would in my view be curtailed in a very real and tangible way by the height restriction.
As far as the expert evidence goes as is already clear I prefer the views of Mr Hollyoak over those of Mr Varga.
Mr Hollyoak gave evidence about the variety and size of vehicles which currently use the laneway. My impression of Mr Varga was that he was too ready to become the advocate and dismiss, the obvious significant consequences which flow from the 2.2m height restriction. There are clearly many vehicles which currently negotiate the corner of the laneway off Barcom Avenue which could no longer do so because of their height.
Mr Hollyoak's evidence in my view, along with the survey, supports the fact that some vehicles would have to access the laneway from the Oswald Lane end but then have to reverse out (or reverse in) in order to access the back of the terraces for whatever purpose.
The fact that in the particular week surveyed only a limited number of trucks accessed the laneway is not to the point. The survey was merely a snapshot and I could not I consider even draw an inference that it was typical of vehicular usage. Mr Hollyoak and for that matter Mr Varga appeared to accept that there could well be many vehicles over 2.2m in height that would no longer be able to go down the laneway and park or enter via the Barcom Avenue end, without having to reverse.
It is glib in my view in the extreme to suggest that those vehicles could simply come through a gate at the other end of the laneway (with whatever delay may be occasioned as a result), drive down to various points along the laneway and simply reverse out. The fact that Mr Varga sees reversing vehicles in a confined space as both typical and perfectly safe is again not to the point. It is clearly a situation which calls for greater care because it is neither a conventional way to drive a vehicle nor alternatively the safest way to do so. In addition Mr Evans is concerned some vehicles may refuse to access the back of his house for his daughter. That is an entirely valid concern.
In such a densely populated and cramped environment where, as I have said, space is at a premium, the height restriction at the Barcom Avenue end with or without a permanent car space and landscaping is simply in my view an unreasonable interference.
The whole concept of the development or whatever proposals ultimately Mr Maharaj may be prepared to accept on behalf of the defendant will with the height restriction of 2.2m likely face an insurmountable problem. The level of inconvenience to residents as a result of the height restriction is something which I think is entirely antithetical to the right of carriageway.
This may be thought to lead to a somewhat unfair result to the defendant. But it cannot be ignored that what the defendant bought was a private laneway burdened with multiple rights of carriageway. It did not purchase a conventional building block. Indeed, whilst it is no part of my function to decide any planning law questions, I must say in passing that the decision of the Council to approve this development is eccentric to say the least.
In saying what I have I am conscious of the fact that vehicles from time to time park along the laneway and that the movement of traffic is either slowed or hampered by this occurring. I am also conscious of the fact that sometimes vehicles may be parked at the corner of the laneway close to Barcom Avenue such that certain vehicles may not be able to pass or be able to pass without some difficulty. I acknowledge there are some vehicles that could never negotiate the corner at the Barcom Avenue end. I am, however, satisfied that the height restriction (which is common to the approved and proposed plans) with or without the landscaping and/or permanent car space, would simply make a bad situation very much worse and lead to a substantial interference in the relevant sense.
In the light of my reasons I therefore consider it entirely appropriate to grant both declaratory and injunctive relief which would cover both the approved and the proposed amended proposals and I would invite the parties to prepare short minutes to reflect these reasons. In addition, if the parties cannot agree on the appropriate costs order I would invite them to relist the matter so that the matter can be determined. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2015

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Judgment (16 paragraphs)

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