Plaintiff v Defendant [2007] VSC 203 | Case summary

His Honour appeared in this passage to disapprove of a particular view of the phrase in s.12(2) as equivalent to "essential and absolutely necessary" in the sense of meaning "an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property". In quoting from Union Lighterage Co v London Graving Dock[7], his Honour was juxtaposing the terms of s.12(2) with a test which in its own terms rejected what s.12(2) in its terms, expressly provided. That is, that the test in Union Lighterage (for a different purpose) used words which was inconsistent with the test embodied in s.12(2). The concept of necessity in s.12(2) does not require that the property to be benefited by an implied easement or right cannot "be used at all" without the implication. In other words the requirement of necessity for the reservation of an easement of necessity found in Union Lighterage is not the requirement found in s.12(2).

10 In Biki v Chessels[8] Byrne J observed that "necessary" in relation to secondary rights implied by law means "reasonably necessary". In saying that, his Honour was not dealing with s.12(2) or substituting those words for the statutory requirement in the section. In that case the issue was the extent of a secondary right where there existed an easement. In that context the question to be asked was what was necessary "to make effectual the primary right" in the existing easement. In the case of s.12(2) the question is, rather, what is implied as the primary right rather than what is necessary to be implied by way of a secondary right to make the primary right effectual. That is not to say that the concept of "making effectual" has no role to play in the construction of s.12(2). On the contrary, it is a useful concept capable of much assistance in determining whether something is necessary, however, it is important to bear in mind that what was to be implied in Biki was a secondary right where the question of necessity was one about what was needed to give effect to an existing primary right.

11 The evidence in this case does not satisfy me that any of the easements or rights said to be implied are necessary for the reasonable use and enjoyment of the property which would benefit from the implication. The easements and rights asserted by the plaintiff changed significantly several times during the hearing. In the end, indeed almost at the end of the submissions for the plaintiff, a new list of proposed "easements" was handed to me setting out the form of easements asserted by the plaintiff. In essence what was claimed, consistently with how the case was conducted (but not as first put), were three rights of way over apartment 141 for three purposes. The three rights of way were the various paths to the Stairway (being the northern stairway), to the 14th floor balcony and to the 15th level balcony (through the internal stairway). Initially what had been sought was only a right of way through the laundry of apartment 141. That claim was varied, added to, modified, partly abandoned and ultimately found expression in the final list as handed to me during final submissions. In saying that I mean no criticism of counsel in their efforts to define the rights and easements claimed on behalf of the plaintiff, but point to the difficulty in their task and seek to identify what ultimately was sought. At all times the plaintiff's case was, however, that some right or easement was needed through apartment 141 somewhere. The difficulty of identifying the path over which the implied right or easement was sought did not detract from an appreciation of the plaintiff's claim of an entitlement through apartment 141 although it may detract from the confidence of the implication which may be said to arise.

12 It is for the plaintiff to establish the conditions needed to enliven an implied easement under s.12(2). In the end, senior counsel for the plaintiff put it in final submissions that whether the requirement of necessity was made out is a matter of judgment in light of all the evidence. In my opinion the evidence does not establish that the implied entitlement claimed for the plaintiff "is necessary for the reasonable use and enjoyment of" the lots in the building (other than apartment 141) or the common property. The fact is that the purposes for which access through apartment 141 is claimed has been satisfied over the last four or five years by accessing the roof and common property stairway from the common property on the ground floor. That is to say that access for the required purposes has in fact been available through means other than the implied entitlement asserted by the plaintiff.

13 The plaintiff's claim for access through apartment 141 was on the basis that the access is needed so that various services can be provided; namely, to service and maintain the air conditioning cooling tower, the motors for the lifts and the fire equipment; to render emergency services in the event of an emergency; to maintain and clean the steel portions of the external walls of 51 Spring Street; to clean the external windows for each whole floor apartment; and for other incidental and related purposes. The need of access for truly emergency services was not the subject of separate submission on behalf of the plaintiff and is I think adequately met by other provisions of the law. Thus, at common law there is an implied licence to enter land where it is reasonably necessary for the preservation and protection of life and property: see Halsbury's Laws of Australia at [415 - 530] and Dehn v Attorney- General[9]. There are, in addition, provisions relating to specific emergency services such as the Metropolitan Fire Brigade with rights to enter any land, building or structure and to "take such other measures as appear necessary for the protection of life and property": see Metropolitan Fire Brigades Act 1958 s. 32A; 32B(3)(c) and (e).

14 The current servicing and maintenance of the air conditioning cooling tower has been provided, apparently satisfactorily, by Select Airconditioning Pty Ltd ("Select Air") since at least November 2002. That company has been using the fire stairs from the ground floor of the building and has charged an additional amount to cover the extra time taken to complete the service by gaining access through the ground floor and walking up the stairs. Mr Loffler, a director of Select Air, gave evidence of annual renewals of contract on behalf of Select Air and that there is a current contract being performed. Mr Gunn, the caretaker of the building, similarly gave evidence of annual renewals of contracts and of the satisfactory discharge of the tasks needed to be done. A company sub-contracting to Select Air, Tamar Group Pty Ltd ("Tamar"), has been providing cooling tower water treatment services since at least November 2002 via the fire stairs entering from the ground floor. Mr Mantella gave evidence on behalf of Tamar confirming that services were provided under a subcontract to Select Air and that all work to the water treatment services have been provided satisfactorily and in accordance with the relevant regulations and standards. In addition to this evidence the defendants led evidence that A.E. Smith & Son Pty Ltd ("A.E. Smith") was ready, willing and able to provide the mechanical air conditioning services required at 51 Spring Street via the fire stairs from the ground floor at a firm price. The defendants also led evidence that Tandex Pty Ltd ("Tandex") was ready, willing and able to provide the cooling tower water treatment services that may be needed. Both companies provided firm quotes and representatives were cross-examined on their evidence. Plainly these services are capable of being provided, in my view reasonably, without having to access apartment 141 albeit that there may be some additional cost and, possibly, some inconvenience in having to walk 14 flights of stairs more than if there was access through apartment 141.

15 The lift maintenance services to the building have been provided to date by Kone Elevators Pty Ltd ("Kone"). A Mr Martinelli is the account manager employed by that company and had himself performed services at the building in the past. It is clear from his evidence that Kone's technicians would prefer to use the lift to apartment 141 rather than walk up 14 flights from the ground floor, but the company has successfully been providing lift maintenance services since at least November 2002 via the fire stairs. Kone is willing and able to continue to do so and has done so properly to date. In addition there have been some alterations to the lift system to provide access to the lift shafts in the common area at level 3 thereby reducing, in part, Kone's need to access higher floor apartments. Again the defendants gave evidence that there was at least another reputable company, United Lifts, which was ready, willing and able to provide the lift maintenance services to the building via the stairs from the ground floor. It too provided a firm quote which Mr Gunn, the caretaker, accepted as reasonable for the work to be undertaken.

16 The servicing and maintenance of the fire equipment by the current contractor, All Essential Fire & Security Pty Ltd ("AEFS"), can and has also be done without access to apartment 141. Access to the roof of the building on a yearly basis to change the batteries in the smoke detectors in the lift motor room can be from the ground floor via the fire stairs. The fire equipment located on each level of the fire stairs in the building can be accessed via the fire stairs. The company has been satisfactorily performing fire services to the building via the fire stairs over the last four or five years and is willing to continue doing so.

17 The plaintiff's evidence in relation to the maintaining and cleaning of the steel portions of the external walls of the building and of the need to clean the external windows was not entirely satisfactory. In any event, the defendants led evidence from a reputable company, Vertex Window Cleaning Services, that it was ready, willing and able to provide the window cleaning services to the building via the fire stairs at a price which, again, Mr Gunn considered reasonable.

18 Not much was said about the "incidental" or "related" purposes for which the plaintiff might seek access to the roof via apartment 141. I have already dealt with the need which might arise in relation to truly emergency situations and need say nothing further about that. There was evidence from a Graham Cawsey to the effect that boiler servicing and maintenance was required once a year but I see no reason why this should not be undertaken via the fire stairs and, indeed, the quote of A.E Smith included servicing of the boiler as part of the scope of works for which it provided the quote to be undertaken via the fire stairs from the ground floor.

19 In addition, the defendants led evidence of alternatives for some of the tasks which might be performed by installing a hoist to lift parts, equipment, chemicals and, perhaps people, from the ground floor. The evidence on this was that more investigations needed to be undertaken before being certain that the hoists would provide a certain solution, although those who gave evidence expressed considerable confidence in the proposal and I infer that their confidence is well founded. In any event, I need say nothing more about the "hoist solution" as my decision is not dependent upon its availability other than to note that some such device appeared necessary for those items which needed to be brought to the roof but which were too large to fit through the man hole; a solution to that problem might also assist in providing a more general solution of access (at least in part).

20 The plaintiff's case of necessity relied heavily upon considerations of safety, especially the safety of the workers who were likely to undertake the work and who were required to walk up 14 flights of stairs. In that regard Mr Dohrmann gave evidence on the plaintiff's behalf. Mr Dohrmann is a respected consulting engineer with post-graduate qualifications in ergonomics. He described that field as a study of the strengths and weaknesses of human beings to perform tasks related to the products which they use. His evidence emphasised the risks to health of undertaking various tasks by accessing the 14 flights of fire stairs rather than the lift to apartment 141 on the 14th floor. Those considerations are, without doubt, significant and important. His evidence, however, did not establish a case of necessity for the purposes for which I am concerned. His evidence of risk and the consequent desirability of minimising that risk does not, in my view, establish that it is necessary in the sense of giving rise to an implied right or easement over apartment 141.

21 The evidence of the tradespeople undertaking the task, and of others, established, at very least, that the risks identified by Mr Dohrmann could be minimised by other means, albeit that the risk might not be minimised as much as Mr Dohrmann might prefer in an ideal world, or even, in the world at 51 Spring Street. That is, that the relevant contractors could take steps to minimise or reduce in various ways the health and safety risks occasioned by walking up 14 flights of stairs: carrying less; taking more time; working in pairs; assigning physically demanding tasks to appropriately fit and able personnel; etc. In addition, the risks identified by Mr Dohrmann need to be measured against those identified by others in relation to accessing apartment 141. A number of those who performed the work gave evidence that they would not wish to enter private property and would not wish to do so for a variety of reasons including the potential risk of damage to property, intrusions into privacy, and the risk of unfounded allegations against them of theft or of untoward conduct. Some of these are risks to the people who were also of concern to Mr Dohrmann. That is to say, that some of these risks needed also to be taken into account as well as those which Mr Dohrmann considered important. There were, however, other risks to be taken into account in addition to the risks to those performing the work. The evidence of Mr Long in this regard was emphatic and impressed me greatly. Mr Long was a former employee of A.E. Smith with 17 years experience in that company before moving to Lakes Entrance. He was cross-examined carefully and closely about his evidence in chief and was both careful and thoughtful in the answers he gave. He was particularly tested about whether or not it would be "better" to use a lift rather than walk the 14 flights of stairs at the premises or, indeed, generally. He is now 45 years of age and, therefore, is not within that group of "young and fit" workers frequently referred to during evidence as needed or essential for undertaking a task requiring walking up at least 14 flights of stairs. His evidence was nonetheless clear and emphatic that he would avoid accessing private property and if unable to find a younger and fitter person to do the task by climbing up the stairs he would do it himself. He strongly disagreed that it would be "better" to use the lift rather than walking up the stairs because, as he said, accessing private property was "unsafe". He elaborated upon that answer by saying that it was, in his view, unsafe because a core concern for him was to protect the people and the property where he was providing services. To enter into private areas, such as private apartments, especially when carrying toxic chemicals would mean that he could not guarantee the safety of the people in the apartment or its property. He said that he could not walk through a domestic situation carrying a chemical "that will eat straight through their carpet. I can't do that, that's unsafe. That's unsuitable." He was, in addition, concerned about inappropriate allegations of sexual harassment, theft, and of being accused of something untoward. A conclusion about necessity based upon safety and risk requires a consideration of all safety and risks, and in that context, I could not conclude that necessity lies in the implied easement or right claimed by the plaintiff.

22 It was also put on behalf of the plaintiff in final submissions, albeit perhaps tentatively, that "it was always intended that access be through" apartment 141. In that regard I was urged to consider, amongst other things, the evidence of Ms Curry- Hyde (a representative of the developer undertaking the construction prior to its sale to the defendants) and of Mr Fazzino (the architect who varied the plans of the layout of the apartment).

23 Ms Curry-Hyde gave evidence that she was the assistant to Mr Nonda Katsalidis and in that capacity had attended project meetings of the construction company as representative of the joint venturer undertaking the development for commercial profit. Her evidence was that she had a "concern" about access to the roof. She described her recollection of the concern that she voiced as whether the access to the lift motor room would be through the apartment and how it would be done. The evidence of the architect, Mr Fazzino, was that a change was made to the plans for apartment 141 and that he received instructions to change the plans from his former employer Mr Nonda Katsalidis. The changed plan (described as "revision C") modified the bathroom and the area behind the kitchen "to allow for access from the lift to the stairs at the back".

24 I do not regard this evidence as relevant or determinative of whether an implied easement such as asserted by the plaintiff is implied by s.12(2), indeed, if anything it leads me against an implication. If this evidence be relevant it is, in my view, wholly outweighed both by the failure to communicate any of the information asserted by either Ms Curry-Hyde or Mr Fazzino to Mr Norman and also by the evidence of Mr Norman. Mr Norman was the licensed surveyor at Reeds Consulting Pty Ltd which was the company responsible for the preparation of the plan of subdivision in respect of the premises. His task included that of identifying any easement on the property. Nobody informed him of any right intended to have been made available through apartment 141. He said that had he been asked to do so, he would have required instructions in writing. Indeed, he would have sought clarification of exactly where the easement was to be because, as he said, he would need a very clear definition of a width and a path which he would need to mark clearly on the plan so that it could be put in the correct position. It would then have been submitted to council and it would appear on the plan of subdivision by reference to description, purpose and location. Mr Norman was satisfied at the time of preparing the plan of subdivision that access was available to the roof from the fire stairs and was unable to recall ever putting an easement of the kind sought by the plaintiff through a residential apartment. His evidence was, and I assume that the architects were well aware of this, that his role was to receive such architectural drawings as would enable him to identify the title boundaries and how to access the title boundaries. He said that he always ensured that there is common property stairwell access to the roof because there "is always" plant on the roof.

25 The evidence of Ms Curry-Hyde and Mr Fazzino is, at best, evidence of an attempt to correct a deficiency or mistake which remained uncommunicated to the person whose task it was (to their knowledge) to identify access to common property in the building. I would not regard their evidence as sufficient to enliven the operation of s.12(2) in those circumstances. Indeed, the evidence of Ms Curry-Hyde, Mr Fazzino and the architectural drawing in revision C is inconsistent with some of the claims made by the plaintiff. Their evidence, at best, would establish an easement through the laundry but not through any other path claimed by the plaintiff. To that extent their evidence would tend against the asserted easement through the internal stairs or through any path other than the laundry; that is to say, that their evidence (if it were relevant) would defeat the plaintiff's claims to all easements other than that of a right of way through the laundry. In any event, I do not consider the subjective intention of either Ms Curry-Hyde or Mr Fazzino to be relevant or probative of necessity for the purpose of s.12(2). It may be that their evidence suggests mistake on the part of the architects but any fault on their part was not sufficiently explored in this proceeding for me to comment upon any further.

B. Consistent with the reasonable use and enjoyment

26 The second condition to enliven the operation of s.12(2) is that the implied easement or right "is consistent with the reasonable use and enjoyment of [apartment 141] and the common property". Beach J in Burford considered that a detriment caused by the implication to the burdened lot was relevant to whether the provision was made out. Senior counsel for the plaintiff ultimately urged me not to follow the decision in Burford and to adopt a construction of the provision that limited a consideration of the consistencies as those relating to the provision of the services. This proposition was said to be put best in this way, namely,

I see no warrant to constrain the second condition in s.12(2) in the way urged on behalf of the plaintiff. The plain words of the second condition in the section militates against that construction. What is required is that there be considered whether the implied easement or right said to be necessary is consistent "with the reasonable use and enjoyment" of the two parcels of property identified. The section calls for no narrow examination of the relevant use and enjoyment other than that it be reasonable and I see no warrant to narrow the use and enjoyment to be considered or to depart from the approach taken by Beach J in Burford.

27 In my view the easements or rights said to be implied by s.12(2) in this case are not consistent with the reasonable use and enjoyment of apartment 141 and the common property. The intrusion into the apartment which the implied easements or rights would effect is, in my view, inconsistent with that use and enjoyment of apartment 141 which may fairly be regarded as reasonable. I do not consider relevant for this purpose the evidence of Mr Sheppard that he would be "shattered" by the implication of an easement. Nor do I consider it relevant, or at least not determinative, that the easement said to be implied might have an adverse impact on the economic value of the property. Indeed, it is perhaps of the nature of implied easements that they may have a negative impact upon the economic value of a property and, therefore, that fact alone would not seem to me to be determinative of whether the implication arises. It is unnecessary, therefore, to consider whether the defendants "were fully aware" of the fact that the tradespeople were accessing the roof when the defendants purchased apartment 141 and before they became its registered owners as the plaintiff contended. However, I should indicate that the evidence does not establish what the plaintiff asserts. It is true that the defendants allowed access to apartment 141 to reach the roof for a number of months after the purchase of the apartment. It is also true that they were the first to reside in it after its completion. The evidence does not establish, however, that the access which had occurred was known, believed or understood by the defendants to be an ongoing right attaching to the apartment as an obligation. The evidence of the file note of a conversation between Ms Forsner and Mr Sheppard goes no further than an awareness of the possibility of an expectation of access through the apartment and not that he, or the defendants jointly, knew of a continuing entitlement of anyone to have access through apartment 141; that is to say, that they might have been aware that there might be some expectation of being permitted to have access as an indulgence but not that anyone could require access as of right.

28 I do consider it relevant that the implied easement or right would necessarily have a significant intrusive effect upon the use and enjoyment of apartment 141 as judged by reference to the nature, place and time of the intrusion. The nature of the intrusion in this case is a right of way involving physical presence in the premises to an extent and of a kind which is fundamentally different from that caused by the placement of pipes or cables embedded in property. At times the workers would carry chemicals through the apartment and on many occasions there would be risk of damage to health and to property. There would be both physical presence and physical interference with the private and domestic activities the occupier may wish or need to undertake.

29 The place of intrusion is the area to be occupied when the right may be sought to be exercised. In this regard there would necessarily be a physical presence of workers in entertaining areas and private spaces. There would also be access through a substantial part of the premises when accessing the wholly internal stairway that, on any view, was never within the contemplated easement said to have been in the uncommunicated intentions of Mr Fazzino. The internal stairway is not common property and is the means by which the occupants of apartment 141 access their two floors. There is nothing about the design of that stairway which suggests an intention that its wholly internal space was intended to be used for the benefit of anyone other than those occupying the apartment itself. The place of intrusion which the claim of access through the internal stairway involves is large, prominent and internal to the domestic space of the apartment. Even the less intrusive pathways needed for the narrower easements asserted by the plaintiff, involve, however, too great an intrusion into and impact upon the use and enjoyment of apartment 141. They too involve physical presence through central parts of the living areas of the apartment being that of entry into the apartment, the passage linking the two main parts of the apartment and, at least in part, some passing over or near domestic and entertaining areas.

30 The temporal intrusion arises by the need to access the asserted easement at times that would be inconvenient to the owners of the apartment. A right of way is, of course, capable of implication under s.12(2), but the extent of the implication needed in this case is so great as to be inconsistent with the reasonable use and enjoyment of apartment 141. This can be seen from the table of frequency of services handed to me in the opening by the plaintiff showing the estimated frequency of service based on Mr Dohrmann's report by reference to the existing provider and service as follows:

Plaintiff v Defendant

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Judgment (15 paragraphs)

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Legislation Cited (2)