Plaintiff v Defendant

1 The Hampton Park Medical Clinic has operated for a number of years on a property in Hallam Road, Hampton Park, which is owned by Grandsea Holdings Pty Ltd. The Clinic provides medical services to the local community and specialises in family health and chronic diseases. It is a bulk billing Clinic. It is open every day of the year and operates until midnight each weekday, 9.00 pm on weekends and 6.00 pm on public holidays. Over the past 12 months, the Clinic has served over 100,000 patients.

2 Grandsea wants to expand the Clinic and proposes to redevelop the property. The expanded Clinic will have additional consulting rooms. Grandsea obtained a council planning permit for the works that it proposed to undertake. It has retained the services of architects, town planners, project managers and a builder to design, plan and carry out the redevelopment. On 1 August 2014, it obtained a building permit for the works.

3 Opposite the Clinic is a United Petroleum Service Station which is owned by Ausbal Pty Ltd. The Service Station and Clinic are separated by a roadway which is on part of the land owned by Grandsea. The roadway runs east to west and is presently twoway. If the redevelopment works are carried out, the Clinic will encroach onto part of the existing roadway and part of the roadway at the eastern end will be converted to oneway. No works will be carried out on the western end of the carriageway unless the local council permits it. This twoway section will be narrower than at present. In addition, whilst the works are carried out, a temporary construction fence will be erected which will further encroach into the roadway. Ausbal has easement rights in respect of the roadway which it alleges will be infringed if the proposed redevelopment works are completed. Grandsea accepts that there is an easement but says that at its eastern end, the entitlement is limited to entry only.

4 The works began on 10 August 2014. On 22 August 2014, Ausbal's solicitors sent a letter to Grandsea seeking an undertaking that it would not affect or change ingress or egress and access to the Service Station. No undertaking was forthcoming. Ausbal then successfully obtained an injunction preventing the works from continuing pending trial. At trial, Ausbal sought a permanent injunction to prevent Grandsea from proceeding with the redevelopment.

5 There are two central issues. First, whether the proposed redevelopment will infringe Ausbal's easement rights because the works will constitute a real substantial interference. Secondly, if it does, whether Ausbal is estopped from seeking to enforce its easement rights by preventing the redevelopment from proceeding.

6 For the reasons which follow, I am satisfied that Ausbal, the Service Station operators and those frequenting the Service Station are entitled to pass and repass by foot or vehicle by means of the carriageway, including by entering and leaving from both ends of the carriageway. I am also of the opinion that the proposed construction at the eastern end of the carriageway and the proposal to turn that section of the carriageway into a oneway road would substantially interfere with the easement rights. In my view, it is not possible to tell whether what is proposed at the western end of the carriageway is a substantial interference. This is because at present there is insufficient precision about what is to occur. In this regard, before Grandsea proceeds it should provide information with sufficient detail of what it proposes and it should afford Ausbal a reasonable opportunity to consider that material.

7 I have also reached the conclusion that Ausbal is not estopped from enforcing its rights.

8 Finally, in my opinion, relief should be limited to a declaration. I am not persuaded that in the absence of an injunction, Grandsea would proceed with the proposed works. Consequently, I will not make restraining orders against Grandsea.

9 The aerial photograph on the previous page shows the Clinic at the bottom (south) and the Service Station at the top (north) with the various roadways surrounding the two buildings and the four car parking spots in the middle of the picture next to the Clinic. The red hatched area is the carriageway which is the subject of the easement dispute. At present, traffic travels along that carriageway in both directions. Grandsea's initial redevelopment plan involved turning the carriageway from a twoway into a oneway road with traffic travelling east to west (right to left on the photograph).

10 The road on the left (or west) of the photograph separates the Clinic and Service Station from the Hampton Park shopping centre. Some vehicles going to and from the shopping centre use the carriageway.

11 The road at the top of the photograph is Enterprise Avenue. Vehicles enter the Service Station from that direction as well as from the carriageway. On the right hand side of the picture is Hallam Road. When delivering fuel, petrol tankers turn left off Hallam Road, travel along the carriageway for a short distance and then turn right to enter the Service Station. They pull up in a position next to the filling points which are located near the Service Station bowsers under the canopy on the right hand side of the photograph. There are two adjacent rows of bowsers that run north-south with an aisle on either side of them and one between them (that is, three aisles in total). The petrol tankers use the middle aisle to discharge the fuel into the filling points. Given their size and configuration, there are limitations upon how the petrol tankers can manoeuvre their way into the Service Station so that they are positioned correctly for unloading fuel.

12 Some vehicles also leave the Service Station via the carriageway and exit left onto Hallam Road. As can be seen from the photograph, vehicles exiting the carriageway in this manner must exit by making a sharp left hand turn. There is no cut away angle as exists for those vehicles entering the carriageway by making a left turn from Hallam Road. As will be seen from what I say below, two experts are of the opinion that it is undesirable for vehicles to use that exit to leave the carriageway and to enter into Hallam Road.

13 The survey plan on the next page shows the proposed development works.

14 The proposed extension is shown in dark green with a hatched edging.

15 One of Ausbal's concerns was that if the redevelopment works went ahead, the petrol tankers would not be able to access the Service Station whilst the planned temporary construction fence was in place as the remaining width of the carriageway would have been 3 metres. Only cars, vans and smallersized rigid trucks would have been able to use it. In response to this concern, Grandsea developed a different option (referred to by the parties as 'Option 2') for the temporary construction fence so that the available width of the carriageway at the Hallam Road entrance would be 4.9 metres. This option still involved restricting use of the carriageway to oneway traffic from east to west. A yellow line was physically marked on the site to show where the temporary construction fence would be placed on the carriageway. The dashed black line marked "EDGE PROPOSED LANDSCAPING" on the survey plan above approximates the proposed Option 2 construction fence line.

16 The schematic diagram on the next page also shows part of Option 2 with the proposed construction fence marked on the red line titled 'construction zone fence'.

17 One of the experts, Ernest James Mensforth, prepared this diagram using computer software to identify the pathway of a 19metre articulated truck in B-double configuration, showing how it would enter the Service Station site from Hallam Road. The petrol tankers that deliver fuel to the Service Station are similar although not identical to the depicted truck.

18 An independent test using a petrol tanker was conducted on the site. The test was filmed. The recording shows that the petrol tanker used in the test could keep within the Option 2 yellow line (referred to in paragraph 15) and still access the Service Station from the Hallam Road entrance part of the carriageway for the purpose of refuelling. I will say more about this test later in these reasons.

19 During the course of the trial, Grandsea further compromised its proposed redevelopment plan. It has pleaded that it will only carry out works encroaching on the carriageway at its western end to the extent that the local council, the City of Casey, determines is appropriate so as to allow at all times for twoway traffic flow on the carriageway to the point marked with a diagonal black line on the schematic diagram below:

20 In effect, this would mean that if the Council permitted it, the carriageway would accommodate twoway traffic from the west (left hand side of the diagram) until the black line but from that line to Hallam Road, the traffic would only be oneway (in the westerly direction entering from Hallam Road). The proposal means that traffic would not be able to exit from the Service Station across the carriageway to Hallam Road. It is not clear what would happen where the twoway section of the carriageway meets the oneway section.

21 The existing width of the carriageway varies throughout its length. Where the black line on the schematic diagram is drawn, the existing width of the carriageway is about 12 metres. It would reduce to a bit less than 6 metres under the proposal. The width at the other end of the carriageway (western end) is about 9 metres and would reduce to about 4.1 metres.

22 As I have said, Grandsea accepts that Ausbal has an easement along the carriageway. Grandsea says that the easement arises by intention or implication from the fact that the Service Station (as a service station) was constructed at the same time as the carriageway and that initially there were no other buildings which the carriageway served. It contends that the easement is for specific purposes. Its view is that the easement permits entry to the Service Station from the east and west by foot and vehicles but that the easement does not extend to exiting from the east. Rather, it submitted that the carriageway may only be used to exit from the west.

23 Vehicles have used the carriageway to gain access to the Service Station and the Clinic and other parts of the shopping centre for many, many years. In this regard, Mr Brian Walsh gave evidence. He has lived and worked in the area since the late 1980s. From time to time he has used the Service Station and, at some stages, quite frequently. He is currently an employee for United Petroleum Pty Ltd, and between 2010 and 2014 he was the regional manager for South Eastern Victoria for United Petroleum. In that role, Mr Walsh had responsibility for the Service Station. Mr Walsh gave evidence that since the late 1980s or early 1990s the Hallam Road access and carriageway, which runs between the Service Station and what is now the Clinic, has been identical to its current configuration. I accept that evidence.

24 Much of the evidence focussed on the delivery of fuel to the Service Station by petrol tankers. Most deliveries are made at night or early in the morning so that they do not coincide with peak times. It takes about 45 minutes to an hour to unload the fuel from the tanker.

25 Mr Geoffrey Brown, a truck driver employed by United Petroleum, gave evidence about access to the Service Station by petrol tankers under the proposed changed conditions. He has worked as a truck driver delivering petroleum products for the past 30 years and has delivered fuel to the Service Station. On all but two or three occasions he has entered the Service Station from the Hallam Road entrance. Indeed, the preponderance of the evidence was that this means of access for petrol tankers to the Service Station is by far the most common. Mr Brown's evidence was that the Hallam Road entry is the preferred access point. His view is that if the carriageway is narrowed to oneway, it would make accessing the Service Station safely very difficult. In his view, accessing the Service Station in the current configuration is already tight. Grandsea was critical of Mr Brown's evidence because he did not measure the minimum width required to manoeuvre a tanker into the Service Station; rather, he proceeded on instinct. Nevertheless, I do accept his evidence to the extent that it supports a finding that the entry to the Service Station will be more difficult if the carriageway is narrowed. I do so because of his long experience as a petrol tanker driver and his experience of delivering fuel to the Service Station in question. Moreover, his evidence is unsurprising. Common sense dictates that the narrower the carriageway, the more difficult the entry must be because there is less room for driver error.

26 Two experts gave evidence: Mr Mensforth (who prepared the swept path diagram at page 8 above) and Mr Henry Turnbull.

27 Mr Mensforth is a traffic engineer with many years of experience. His areas of expertise include car parking, traffic advice, assessment of land uses and development proposals to planning authorities. Mr Mensforth considered the Option 2 proposal, which brought the proposed construction barrier closer to the Clinic leaving the width of the carriageway at 4.9 metres at the Hallam Road entrance. Mr Mensforth prepared a swept path diagram which is very similar to the one reproduced at page 8 above with the major difference being the location of the depicted tanker under the Service Station canopy. The swept path diagram above at page 8 depicts the approximate location of the Bdouble truck when unloading fuel from its forward trailer. The swept path diagram is a conservative modelled approximation using computer software of the path that a vehicle may take with a 600 mm safety margin on either side of the vehicle depicted. Naturally, in actuality, vehicles would not always match precisely the path that has been modelled. Mr Mensforth's opinion was that Bdouble trucks (which in this case relevantly means petrol tankers) and all other vehicles that commonly refuel at petrol filling stations, would be able to enter the Service Station from Hallam Road along the carriageway with a continuous forward movement to the fill points, without compromising the 600 mm offsets required for the movements to be completed with relative ease. Mr Mensforth accepted that margins greater than 600 mm were safer insofar as they gave more margin for error. Nevertheless, in his opinion 600 mm is a more than sufficient margin for error to ensure that a licensed tanker driver could follow the path into and through the Service Station. Mr Mensforth also prepared a swept path diagram addressing the position after the construction was completed and the temporary barriers were removed. He concluded that fuel deliveries to the Service Station would be possible using all likely petrol tanker vehicle classes both during construction and following completion of the Option 2 proposed works.

28 Mr Mensforth arranged a survey of vehicle movements to and from the Service Station over a 48hour period. Approximately 850 vehicles entered the Service Station each day. Approximately 75 per cent of vehicles entered the Service Station from the carriageway and 87 per cent of these were from the Hallam Road direction. Approximately 10 per cent of all vehicles entered from the west end of the carriageway. On the first day of the survey, which was a Friday, 3.9 per cent[1] of vehicles left the Service Station via the carriageway and turned left on to Hallam Road. On the second day, the figure was slightly higher at approximately 5 per cent.[2] In traffic engineering terms, those numbers are quite low. Mr Mensforth concluded that few, if any, customers would be dissuaded from refuelling at the Service Station if the Grandsea development went ahead. Both experts were of the opinion that, from a safety and traffic management perspective, exiting this way is undesirable. Mr Mensforth opined that it is entirely appropriate for reasons of improved road safety if the Hallam Road entry point is restricted to oneway traffic going from east to west.

29 Mr Mensforth also arranged for a demonstration at the site by a 19metre Bdouble petrol tanker. The driver and tanker were independent of both parties to this litigation. The demonstration was filmed. The tanker approached the Service Station from the Hallam Road entrance. It entered the Service Station and pulled up in a position in the middle aisle near the petrol pumps and the filling points from which fuel could be unloaded from the front tank. This is a still shot taken from the video when the tanker was in this position:

30 As can be seen, both the front and rear tanks were at an angle across part of the central aisle, with the rear tank being at the greater angle. The two front rear wheels of the tanker were just outside the boundary to the Service Station (which approximates the grate on the picture). The rear of the tanker therefore protruded into the carriageway. It would not have been possible for a car to fit between the tanker and the eastern petrol bowsers in the central aisle if the car approached those bowsers from the carriageway. This can be seen from the photograph below, which is taken as a still shot from the video when the tanker had moved slightly forward towards its next stopping position:

31 The tanker next stopped so that it was positioned to make a fuel delivery from its rear trailer. As it did so, it straightened slightly so that the rear trailer was at less of an angle in the centre aisle. The picture below is a still shot taken from the video when the tanker was in its final resting position:

32 In this position, the whole of the tanker was within the Service Station site. Finally, the tanker exited the Service Station onto Enterprise Avenue.

33 The demonstration showed that if Option 2 were implemented, it would still be possible for a petrol tanker to enter the Service Station from the Hallam Road entrance. Mr Mensforth's opinion is that the tanker manoeuvres would continue to be made with ease. He also noted that while fuel is unloaded from petrol tankers, access to four of the eight refuelling bowsers (the two bowsers facing east towards Hallam Road and the two bowsers facing west towards the Service Station convenience store) would remain functional for the use of patrons of the Service Station whether fuel is being unloaded from the forward or rear trailers of the tanker.

34 The other expert, Mr Turnbull, is a practising traffic consultant. He has managed numerous traffic engineering assessments for major developments. Mr Turnbull provided a written report that was in part based on work undertaken by his colleague, Mr Nathan Woolcock. Mr Turnbull adopted Mr Woolcock's opinions and conclusions, including that petrol tankers would be unable to achieve an unloading position immediately next to the fill points. Mr Turnbull annexed to his report the affidavits which Mr Woolcock had affirmed earlier in the proceeding and to which Mr Woolcock's report was an exhibit. Mr Woolcock observed a fuel tanker trial at the Service Station. The driver was a United employee and the truck was of the type that typically delivers fuel to the Service Station. The exercise was not filmed although some photographs were taken. Mr Woolcock observed that under typical conditions, the fuel tanker traversed well into the area identified for the proposed works. The tanker attempted to avoid the pavement markings (which delineated the temporary construction barrier line for the works before Option 2 was proposed). The tanker was directed by a second person in order to allow the tanker to get as close as possible to the bowsers. Mr Woolcock observed that this test demonstrated the inability for the tanker to access the relevant area without likely otherwise running into a bowser on the eastern side of the site. Furthermore, he opined that even if access between the two rows of bowsers were possible, the driver would need to undertake several corrective movements (including reversing movements) in order to adequately position the tanker sufficiently near the fuel refilling points. Mr Woolcock concluded that the proposed works would compromise the ability for fuel tankers to access the site and fuel refilling points based on the current and historic activities. In addition, Mr Woolcock observed many occasions when motorists were required to drive over the area identified for works in order to negotiate vehicles that were propped at the bowsers.

35 Although he provided a written report expressing these opinions, Mr Woolcock was not called to give evidence. As I have said, instead, Mr Turnbull annexed a copy of Mr Woolcock's report to his own report. Mr Turnbull said that he agreed with the opinions and conclusions expressed by Mr Woolcock.

36 In my view, very little (if any) weight can be given to Mr Woolcock's opinions. He was not able to be crossexamined. His opinions and conclusions rest, at least to some extent, on the test that he conducted with the United driver and tanker and that test was undertaken before the Option 2 proposal had been suggested. The photographs taken of that test run do not provide sufficient demonstration of what actually occurred. Mr Turnbull did not see the test. Finally, as has been seen from what I said earlier in these reasons, an independent test established that a petrol tanker could access the Service Station if Option 2 was adopted.

37 I will now consider the direct evidence of Mr Turnbull. He visited the Service Station and observed the traffic flow. He also witnessed an actual delivery by a United tanker and observed the path that that truck took. He provided a written report. In that report, Mr Turnbull opined that, if vehicles departing the Service Station in a southerly direction are unable to exit into Hallam Road, then they will have to travel back into the shopping centre to exit via Enterprise Avenue. In Mr Turnbull's opinion, this is a significantly less convenient and a more convoluted route than existing conditions and may discourage some drivers from using the Service Station. In crossexamination he pointed out that although the additional distance that a vehicle would have to travel using that route is only about 90 metres, the vehicle would have to travel through the shopping area with other vehicles parking and leaving parking spots which would make it more convoluted and less convenient. Mr Turnbull also stated his opinion in his report that the petrol tankers would block the centre aisle and it would no longer be possible to use fully the eastern side of the centre aisle. Mr Turnbull concluded in his report that, in his opinion, the proposed works to be carried out by Grandsea have the potential to be severely detrimental to traffic flows at the Service Station and may impact patronage as a result.

38 Mr Turnbull's report was prepared before the independent trial was undertaken. Having watched the recording of that trial, Mr Turnbull acknowledged that if Option 2 were adopted it would be possible for the tanker to make a delivery of fuel. However, he described the access as an extremely tight manoeuvre and said that he was not 'particularly comfortable with it ... being quite so tight ... and that has the issue that the vehicle might get very close to the bowsers and may have to make some adjustment manoeuvres to make sure they don't actually scrape the bowser when they arrive in because the clearances are at a minimum'. He also acknowledged that if the truck needed to make movements to adjust its position, it would be able to do so, but it may be that it could not be done in one consistent forward manoeuvre. He also noted that when the tanker was parked next to the filling point in position to unload from the front tanker, the rear of the tanker extended into the carriageway. According to Mr Turnbull, this restricts the area behind the tanker and creates some difficulties for vehicles that want to pass around behind the tanker. Mr Turnbull also noted that when the truck came to rest in the position to unload the rear tank, that tank is at an angle in the middle aisle. The consequence is that it is a little further from the fill points and can also block access through the middle aisle of the Service Station. In Mr Turnbull's opinion, it is preferable to keep the tanker as close to the bowsers as possible so that the existing arrangement is best. He did accept, however, that in practical terms lining up with the fill points if Option 2 were implemented would be acceptable. He also accepted that under the current system, the bowser in the centre aisle closest to the carriageway (the southern bowser) could not be used and that a change to Option 2 would be the same. Moreover, he accepted Mr Mensforth's plotted paths for the tanker on his diagrams which allowed a 600 mm clearance on each side of the vehicle. Mr Turnbull acknowledged that that is the desirable clearance and that it is the industry standard. He accepted that if a tanker stopped where the tanker is depicted on Mr Mensforth's diagrams there would be sufficient room at the back of it for other vehicles to get behind it. But, as Mr Turnbull observed, not all trucks would stop exactly where the vehicle is depicted on the swept path diagrams. Grandsea was critical of this observation by Mr Turnbull and contended that this was mere speculation on his part. However, in my opinion, that criticism is unwarranted. Whilst I accept that tanker drivers would likely have the skill to park the tanker in about the same position each time, it goes without saying that individual tanker drivers are not likely to stop in exactly the same position on each occasion. Indeed, it would be astonishing if they were able to achieve such precision, no matter how skilled they are.

39 Mr Turnbull accepted that as things stand now it is undesirable for vehicles to leave the Service Station and turn left into Hallam Road because of the angle to that turning. He noted that very few people use that exit and that the proposed development does not change the situation.

40 The tanker used in the independent test was of a slightly different configuration to the model drawn on Mr Mensforth's swept path diagrams. The test tanker (like those used by United) had a spaced rear bogie (that is, there is a gap between the two rear tyres) whilst the vehicle drawn on the swept path diagrams does not. Mr Turnbull's evidence was that paths of the differently styled rear wheels would be the same. The length of the vehicles is the same. However, the position of the rear wheels assists in identifying where the tanker has stopped on both the swept path diagrams and on the video of the independent trial. As I have noted above, the vision of the independent trial shows that the truck takes up part of the carriageway by extending into that area. Mr Turnbull's opinion is that the consequence is that this restricts the area for vehicles to get around the tail of the truck. He contrasted the stopping position of the independent trial tanker with that of the tanker depicted in Mr Mensforth's diagrams.

41 As can be seen from what I have described, in essence there was very little difference of opinion between the two experts. I am satisfied that petrol tankers would be able to access the Service Station if Option 2 were implemented but the manoeuvre would be more difficult. In this regard, I prefer the evidence of Mr Brown to that of Mr Mensforth. Mr Brown has been driving petrol tankers for many years. He delivers to the Service Station and is familiar with it. His evidence is based on that experience. Whilst one might model the path of a vehicle with accuracy using a computer program, the driver's feel for how easy or difficult the manoeuvre would be is based in practicality. Mr Brown struck me as a very frank, open and reliable witness who was not prone to embellish his evidence. I also find that when the petrol tanker is in position to discharge from its front fuel tank, the central aisle of the Service Station is effectively blocked so that no other vehicle could enter it from the direction of the carriageway. I am not persuaded though that this is any different from the position at present. I also find that it would be possible for vehicles to pass behind the petrol tanker and to gain access to the petrol bowsers in the other aisles. Finally, I prefer the evidence of Mr Turnbull to that of Mr Mensforth that some of the people who use the petrol station now may be dissuaded from patronising it in the future if they could not exit onto Hallam Road. Whilst in terms of distance and time the alternative route is not substantial, it is more convoluted and necessitates making a number of additional turns and taking a route through the shopping centre. It seems to me probable that this is likely to put off at least some existing patrons such that they would choose not to stop at the Service Station but rather would continue on to a more convenient petrol station.

42 As I have noted, Grandsea argued that the easement is limited so that at its eastern end it was only intended to be used for entry from Hallam Road, not exit to Hallam Road. Grandsea's basis for this contention is that at the time of creation of the easement, Hallam Road was a main street. There were no other streets nearby. At that time one would expect the traffic to enter the Service Station from the Hallam Road end of the carriageway. However, Grandsea submitted that the Court should infer that the grantor did not intend that vehicles would leave via that exit directly onto Hallam Road because of the undesirability identified by both Mr Mensforth and Mr Turnbull of using that exit.

43 I do not accept Grandsea's submissions on this point.

44 The Service Station site was first leased by the then registered proprietor, W.E.B. Holdings Pty Ltd, to Caltex Oil (Australia) Pty Limited. The term of the lease was 10 years from 1 August 1988. A plan was attached to the lease which, among other things, showed the roadways. Ausbal contended that that plan is evidence of the intention of the grantor W.E.B. Holdings Pty Ltd and indicates the extent of the right granted. Ausbal contended that it coincides with the extent of the carriageway built and enjoyed. It also submitted that as between the grantor and the grantee it shows the anticipated reasonable user. The plan has the roadways and some adjacent areas for car parks shaded yellow. A closer examination of the lease indicates that the yellow shading is intended to identify the common areas rather than any easement. In this regard, Grandsea noted that the yellow area never became common property. Consequently it submitted that the lease diagram cannot properly be used to infer the intention of the grantor as to the precise extent of the use of the carriageway because the plan of subdivision contained on it was never implemented. Nevertheless, it does seem to me that it gives some indication of what was broadly intended at the time.

45 In any event, one purpose of the carriageway was to give access into and out of the Service Station. Access would be required by all sorts of vehicles of all types of size and configuration. Such vehicles would include cars, vans, trucks, motorbikes and petrol tankers. Whilst leaving the Service Station via the carriageway and turning left into Hallam Road may be undesirable, there are other matters to be taken into account. In circumstances where the carriageway was planned, designed and constructed with a width to accommodate twoway traffic at its mouth at Hallam Road, it would strike me as odd if the grantor had no intention for vehicles to both enter and leave Hallam Road by means of the carriageway. In my opinion, it is probable that the original intention was that the easement would cater for that and was not intended to be restricted to entry only from Hallam Road. It also seems probable to me that the easement was intended to extend to the whole width and length of the carriageway. It was established as a roadway and use of the whole roadway (in line with what would ordinarily occur) was most likely contemplated and intended by the grantor.

Will the proposed redevelopment constitute a real and substantial interference with Ausbal's easement rights?

46 It seems to me that the real question is whether limiting the use of the carriageway to oneway traffic for some greater or lesser part of its length and narrowing the width of the carriageway is a real substantial interference[3] with Ausbal's easement rights. Whether it is or not is a question of fact[4] and the Court is entitled to consider all the circumstances surrounding the creation of the easement.[5] In this regard, the reduction of the width of a right of way will not always constitute substantial interference.[6] Rather, it is a question of what is required by the reasonable needs of the owner of the dominant tenement.[7]

47 Grandsea submitted that its proposed redevelopment will still allow all vehicles (including petrol tankers) to enter the Service Station from Hallam Road via the carriageway. Petrol tankers will be able to enter the central aisle and align themselves with all the fuel filling points in a continuous forward movement. Grandsea also submitted that because the carriageway is twoway to the black line marked on the plans, all cars coming down the carriageway from the west will be able to access directly all of the aisles of bowsers at the Service Station. Grandsea contended that even if the Court were to find that one additional bowser (the south eastern end of the central aisle) could not be used if a petrol tanker was discharging from its front tanker, that would not be a real substantial interference because most fuel deliveries are outside peak times. It says that similarly, the fact that vehicles would not be able to exit onto Hallam Road from the carriageway will not amount to a real substantial interference, because only a few people use that exit and not many would be dissuaded from using the Service Station.

48 Ausbal submitted that the question is not whether the right of way remaining is sufficient for the possible manoeuvre into and out of the Service Station, but whether its existing reasonable use should be impeded.

49 The parties referred me to a number of cases where the issue of whether there was substantial interference with easement rights was considered. Each case naturally turns on its own facts. For example, the reduction of a right of way from 9 metres to 4.14 metres was held to be a substantial interference,[8] but a 2foot encroachment into a 40foot roadway was not.[9] These earlier decisions are of limited assistance having been determined in the context of the relevant facts in each case.

50 As I have said, in broad terms, Grandsea's current intention is not to undertake works at the western end unless the Council permits twoway traffic of the carriageway. At the other end of the carriageway, it proposes that from the black line marked on the plan the carriageway will turn into a oneway section. Mr Mensforth gave evidence about all of this. He is of the opinion that a width of the carriageway at 5.5 metres after construction is completed would be sufficient for twoway travel along the carriageway. He opined that the appropriate width of a twoway road or lane link should be determined taking into account other facts. In his opinion, and taking into account traffic volumes, the likelihood of the type of vehicles using the carriageway and that there is an intended garden bed between the carriageway and the completed extended Clinic, Grandsea's proposal to keep the carriageway at a width of 5 metres would be sufficient to accommodate a twoway road. One problem with Mr Mensforth's evidence is that the plan which Grandsea relied upon in closing submissions to describe what is proposed shows that at the western end, the width of the carriageway after construction will be 4.1 metres.

51 Mr Mensforth also gave evidence that where the proposed twoway section of the carriageway met the proposed oneway section, any traffic conflict caused by that intersection could be controlled by 'No Entry' signs.

52 As I have said, the intended use of the carriageway was as a twoway thoroughfare. In my opinion, this is a good indication of what the original grantor saw as reasonably necessary for the enjoyment of the land on which the Service Station was erected. In those circumstances, it seems to me that to change the section of the carriageway beyond the black line marked on the plan from twoway to oneway is a substantial interference with the easement rights of Ausbal. Further, the narrowing of the roadway by approximately half its width is a substantial interference. As I have found, the movement into the Service Station by petrol tankers will be more difficult. Although only a small percentage of vehicles exit the carriageway at the Hallam Road end, the number is not low enough to justify ignoring it. The change to oneway at the eastern end is still a substantial interference with the reasonable use of the carriageway. As I have said, the grantor saw exit from that position as a reasonable use.

53 The difficulty with the western end at which Ausbal says it will do no works unless the road is twoway with Council approval is that there is insufficient detail about the proposal so that a determination may be made as to whether there is likely to be a substantial interference with Ausbal's easement rights. Counsel for Grandsea submitted that there was nothing academic nor the subject of conjecture about how it intends to proceed. He contended that the Court had all the information necessary for the purposes of determining the matter. I do not agree. How will each part of the carriageway function in practice? At present, I am not in a position to answer that question. Consequently, the Court cannot make a proper assessment of whether there is likely to be substantial interference. As such, I consider that before Grandsea undertakes any works at the western end of the carriageway, Ausbal is entitled to know exactly what is proposed by means of plans or some other method of detailed description, including the width of each side of the twoway section for which sanction is to be sought from the Council. Indeed, once such information is provided to Ausbal it should be afforded sufficient time to consider what is proposed and to take advice so that it may appropriately consider its position.

54 Grandsea alleged that Ausbal is estopped from seeking an injunction. The allegation is that from May 2011, Ausbal represented that it would not seek to enforce any entitlements that it has in respect of the carriageway to the extent of preventing Grandsea's proposed redevelopment of the Clinic, including the construction works. The basis for the allegation is that Ausbal did not object to the proposed construction works, nor did it notify Grandsea of any objection it had to them.

55 To succeed in its estoppel defence, Grandsea must establish that it relied upon an assumption or expectation that Ausbal did not object to its proposed construction works.[10] It must have been reasonable for Grandsea to assume or expect that Ausbal had no objection.[11]

56 In June 2011, Grandsea obtained an amendment to a planning permit from the local Council to redevelop the Clinic. Grandsea's estoppel case in part rested on establishing that the Council gave Ausbal notice of Grandsea's application for the amended planning permit. The evidence in this regard is that despite searches being undertaken, Ausbal has not located amongst its documents any notice of the application. The Council has retained a mail merge list and copy of the standard form letter that it sent in May 2011 to at least some land owners and occupiers in close proximity to the Clinic. The letter set out in broad terms what was included in the amendment and told recipients where they could look at the application and documents. It also stated the date by which comments about the application should be sent to the Council and that if an objection was lodged, it would be considered by the Council before making a decision. The mail merge list included an entry for Ausbal (with a post office mailing address). There was no evidence that the postal address for Ausbal was incorrect.

57 In my view, it is probable that a letter was sent by the Council and received by Ausbal. That is what would happen in the ordinary course of events with a mail merge process. The fact that it could not be found amongst Ausbal's documentation does not matter. There could be many explanations for that including that it may have been overlooked by the person searching for it, or it may have been mislaid or misfiled by Ausbal.

58 Also included in the mail merge list is an entry for 'The Occupier' at the Service Station's address. The current operators of the Service Station have not been able to locate any letter from the Council about the proposed development. That is to be expected because at the time that the letters were sent, the current operators had not taken over the Service Station. No correspondence files were left behind by the old operators.

59 Among the documents on the Council's file is what appeared to be an original letter to 'The Occupier' at the address of the Service Station. There may be many explanations for that, including that it could be a copy printed on letterhead that looks like an original but was retained as a copy. In my view, it is most likely that a letter was sent to the then current occupier. Again, that is what would usually happen with a mail merge list and whilst the apparent 'original' was located on the Council file, to my mind it does not throw sufficient doubt on the usual processes to conclude on the balance of probabilities that a letter was not sent to 'The Occupier'. Even if I am wrong about that, it does not detract from the finding that other persons listed on the mail merge list, including Ausbal, were sent Council letters.

60 Ausbal also relied on the evidence of an owner of a shop that is directly behind the Service Station. Ausbal contended that his evidence was that he did not receive any notice from the Council (although his details did appear on the mail merge list). However, his evidence did not go that far. Rather, his position was that he had not been shown plans for the development, nor had he had the nature and extent of the proposed development explained to him. That is not evidence that he did not receive notice from the Council.

61 Grandsea also claimed that Ausbal received notice of the proposed redevelopment in November 2011 by means of the Owners' Corporation for the subdivision on which the Clinic and Service Station are located. However, critically the plans that were sent by the Owners Corporation did not show that the carriageway was to be converted to oneway traffic. Rather, arrows placed on the two plans suggested that the carriageway would be twoway. One of the plans showed the width at the western end as '9940'. Consequently, if Ausbal had seen those plans, it would not have been alerted to changes that it sees as important to its easement rights.

62 I accept Dr Lim's evidence that he assumed that Ausbal did not object to the development as proposed in the planning permit. I would also infer that he would not have proceeded to engage architects, builders and the like if he thought that Ausbal opposed the development. Dr Lim did not strike me as someone who would push ahead with his plans regardless. Moreover, I accept that if the redevelopment project is stopped, Grandsea will sustain losses, including the amounts that will have to be paid to the builder, project manager and architect.

63 But in my opinion, there are fundamental difficulties with Grandsea's estoppel defence, including how the case unfolded and how Grandsea now proposes to undertake redevelopment of the Clinic.

64 Indeed, Ausbal argued that there are three problems with Grandsea's estoppel argument. First, as I have stated, the form of the proposed development has changed from that contemplated when the proceeding was commenced. Grandsea submitted that this is irrelevant. Indeed, it says that what is now proposed is less intrusive than what was originally proposed. That may or may not be so. For example, it is not clear what is proposed at the intersection between the proposed twoway and oneway sections of the carriageway. Depending upon how that is managed and configured it may be more intrusive than what Grandsea first proposed. As things stand, I could not be satisfied that Ausbal is estopped from seeking to enforce its easement rights because one cannot tell whether what it did not oppose is sufficiently similar to what is now proposed.

65 In case I am wrong, I will deal with the two other arguments that Ausbal raised.

66 In a sense, Ausbal's second argument was to the same effect as its first but put in different terms. Ausbal contended that the proposed redevelopment (as it was when the proceeding commenced) is different from the approved permit plans. Grandsea submitted that the 2013 amended plan is not, in terms of the effect of the redevelopment on the carriageway, different from the 2011 plan. That is so. The 2011 ground floor plan shows the same encroachment onto the carriageway and the same oneway traffic that is shown on the 2013 amended plan. However, this does not take matters very far. Again, it cannot be known now what any future amendment to the permit to accommodate Grandsea's latest proposal will look like. Consequently, I cannot be certain that an estoppel will arise.

67 Thirdly, Ausbal says that the alleged representation does not constitute a representation that Ausbal would not seek to enforce its easement rights. As such, Ausbal says that it could not constitute the basis of an estoppel against the enforcement of those rights. Ausbal observed that if it had objected to the issue of a planning permit, the permit may still have been issued and that would not have prevented Ausbal from separately pursuing its easement rights.[12] Consequently, Ausbal submitted that silence on a planning permit application or its amendment (as was the case here) does not engender any assumption about the nonenforcement of its easement rights. I accept that argument. In my opinion, it would not be reasonable for Grandsea to assume that Ausbal would oppose the planning application if it intended to rely on its easement rights. Different considerations are at play in respect of the granting of a planning permit to those central to easement rights. There may have been any number of reasons why Ausbal would not object to the issue of a planning permit. Its lack of action in this regard says nothing about what it would do in respect of its easement rights.

68 Grandsea also alleged that since about April 2014, Dr Lim had spoken to the Service Station operator and his son, Mr Abbott, about the proposed redevelopment. Mr Abbott denied any such conversations. In general terms, I would prefer Dr Lim's evidence to that of Mr Abbott's. The redevelopment is a matter of significance to Dr Lim and his recollection that there were discussions concerning the redevelopment is likely to be better than that of Mr Abbott. Consequently, I accept that Dr Lim probably did speak to the Service Station operators, but only in general terms as to when work would start. That was the tenor of his evidence as to the discussions which he says that he had. He recalls that Mr Abbott and his father asked questions like 'When is your building going up?' and 'When is construction happening?'. Dr Lim says that his responses were along the lines of 'Not so soon, in a few months', or 'In a few months'. I therefore do not accept that Dr Lim made clear either the extent of the work to be performed or the effect that it would have on the carriageway.

69 For the reasons set out above, I am not persuaded that Ausbal is estopped from pursuing its easement rights.

70 The remaining issue is whether an injunction should be granted to prevent Grandsea from undertaking the works it now proposes.

71 The grant of injunctive relief is discretionary.

72 In Beswicke v Alner,[13] the plaintiff owned land over which the defendant had a right of carriage way. The plaintiff sought damages and an injunction to restrain the defendant from continuing or repeating the discharge of water over the plaintiff's land. The trial judge had refused to grant an injunction on the basis that the actual damage proved was negligible. The Full Court held that an injunction should be granted only where:

(b) the plaintiff has established the invasion of a common law right;

(c) there is ground for believing that without an injunction there is likely to be repetition of the wrong; and

(d) there are no special circumstances.[14]

73 The Full Court went on to state that in their opinion the judge had paid too much attention to the actual damage and not enough to the fact that:

(a) possessory and proprietary rights were involved;

(b) a number of actions for nominal damages would not afford an adequate remedy; and

(c) the defendant had threatened to repeat the wrongful act.[15]

74 Consequently, the appeal was upheld and an injunction granted.

75 In this case, I have come to the view that no injunction should be granted. First, it is not clear that there will be a substantial interference with Ausbal's easement rights at the western end because, as I have said a number of times, there is no adequate definition of what Grandsea proposes to do. Secondly, given that lack of certainty, it is unlikely that a meaningful and appropriate form of injunction could be fashioned. Thirdly, I am not satisfied that in the absence of an injunction, Grandsea would pursue its proposal without first seeking agreement from Ausbal. I am particularly of this mind given that Grandsea will be aware of what has been said in these reasons.

76 Ausbal has succeeded in its claim that the proposed works will constitute a substantial interference with its easement rights in respect of the carriageway. In this regard, I think that it may assist the parties if a declaration were granted. Whilst Grandsea accepted that there is an easement, as I have described above, it contended that it was not intended to be used for exiting into Hallam Road. I would propose to declare that Ausbal and its successors in title and their servants, agents, guests and invitees are entitled to access by foot, motor vehicle or any other form of conveyance to go, pass and repass over on and through the carriageway and for the purpose of both access and egress to and from Hallam Road, to and from the Ausbal's land and to and from the common property (no 1) in plan of subdivision 031076N.

[3] Pettey v Parsons [1914] 2 Ch 653, 662 (Lord Cozens-Hardy MR) 665 (Swinfen Eady LJ) 667 (Pickford LJ).

[5] Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507, 523 [77] (Habersberger J relying on Saint v Jenner [1973] Ch 275, 279).

[6] Clifford v Hoare (1874) LR 9 CP 362.

[7] Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507, 529 [102].

[8] Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204.

[9] Clifford v Hoare (1874) LR 9 CP 362.

[10] Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 429 (Brennan J).

[11] Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485, 506.

[12] Gordon v Body Corporate Strata Plan 3023 (2004) 15 VR 557, 560 [7]-[12].

[13] [1926] VicLawRp 10; [1926] VLR 72.