Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council

JUDGMENT:

11 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10280 of 2003 Lloyd J 20 October 2003 PRO-VISION DEVELOPMENTS PTY LIMITED ABN 950 774 540 85 Applicant v KU-RING-GAI MUNICIPAL COUNCIL Respondent ANDREW PICKER AND JILL PARKER RABBI NOCHUM SCHAPIRO ROGER G JACKSON DENIS CONAGLEN JOHN WILLIAM SANDERS AND JANE EWING SANDERS RONALD ANDERSON JOHN SAINTY SPECIALIST PROPERTY LIMITED (ACN 008 983 073) P BACHELARD AND J BACHELARD Applicants on the Motion JUDGMENT Introduction 1 This is a notice of motion by several persons seeking joinder as parties in an appeal that has been brought against the deemed refusal of a development application. That appeal is presently part heard by a commissioner of the Court. The notice of motion was filed on the third day of that hearing. 2 The notice of motion for joinder is to enable the applicants on the motion to raise several points of law. The motion also seeks an order that the proceedings be stayed until the points of law now sought to be raised have been determined by the Court. 3 Section 39A of the Land and Environment Court Act 1979 ("the Court Act"), upon which the applicants on the motion rely, is as follows: 39A Joinder of parties in certain appeals On an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979 , the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that: (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. 4 In exercising its jurisdiction to order joinder under this section, the Court has a discretion (arising from the words "the Court may"). In exercising its discretion it seems to me that the Court should have regard to (a) the explanation for any delay in making the application and the effect of any such delay on the parties; and (b) the strength of the issues which are sought to be raised. That is to say, it is not sufficient merely to establish the matters described in pars (a) and (b) of s 39A of the Court Act. There would be no point in making an order for joinder if, for example, the questions of law or other issues sought to be raised have little or no prospect of succeeding. 5 As to the delay in making the present application, I have been informed that the commissioner allowed limited participation by the applicants for joinder, being limited to making submissions on the merits of the proposed development. The applicants for joinder also wish, however, to raise questions of law which are outside of the scope of the leave granted by the commissioner. This does not fully explain the delay, but none of the present parties say they are prejudiced by any delay. In the absence of any prejudice I am not willing to refuse the application for joinder on this ground. 6 I now turn to the strength of the questions now sought to be raised. The motion seeks to raise five questions of law. On the hearing of the motion, however, Mr J R McKenzie, appearing for the applicants on the motion, abandoned two of the questions. 7 In order to understand how the questions are said to arise, some of the basic facts may be briefly described. The land to be developed is lot 106 and lot 107 in deposited plan 263569. There is at present a single residence on lot 107. It is proposed to develop the two lots so as to provide housing for older people or people with a disability under State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP No. 5"), to comprise 13 units with associated car parking. It is then proposed to effect a strata subdivision of each of the 13 units. 8 Lots 106 and 107 are what are commonly described as "battle axe" lots. They form part of an existing subdivision of several "battle-axe" lots, each lot having a narrow strip of land giving them access to Killeaton Street, Pymble. In the case of lot 107, the access strip is two metres wide. In the case of each other lot in the subdivision the access strip is 1.5 metres wide, except for lot 102 which also has an access two metres wide. The total width of all the access strips is ten metres. Each strip of land is subject to a right of way in favour of each other lot in the subdivision. 9 The first question which is sought to be raised is whether on the true construction of the instrument creating the rights of way, the rights created are appurtenant to each part of lots 106 and 107; and further, whether they are not appurtenant to the lots to be created upon the re-subdivision of lots 106 and 107, should the development application be approved. 10 The relevant terms of the instruments creating the rights of way are as follows: Full and free right for the registered proprietor in whose favour this easement is created and every person authorised by him to go pass and repass at all times and for all purposes with or without animals and vehicles or vehicles or both over the land indicated herein as the servient tenement provided that the registered proprietor for the time being of every lot in this subdivision shall contribute an equal share towards the costs and expenses in keeping the right of way and the supporting and retaining walls and banks maintained in good and substantial order and repair and such expenses to include any engineering fees or other expenses relating thereto … 11 Mr McKenzie relies upon the absence in the language of the instrument of any express reference to "any part" of the dominant tenement. This, he submits, distinguishes the present case from the facts considered by the High Court in Gallagher v Rainbow & Ors (1994) 179 CLR 624. It is thus submitted that the benefit of the rights of way would not attach to the units within the proposed development. Mr Mackenzie also draws a contrast between the wording of the instrument in the present case and standard wording of rights of carriage way in the Conveyancing Act 1919 (s 181A and Sch 8, Pt 1), which is: 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 … (emphasis added). 12 In Gallagher v Rainbow the right of way in question was expressed to be appurtenant to "the dominant tenement or any part thereof". In that case the owners of two dominant tenements subdivided their lots. It was held that the benefit of the easement would attach to the dominant tenements in their subdivided form. The relevant statement of principle is set out in the joint judgment of Brennan, Dawson and Toohey JJ (at 633): The principle is that an easement is no mere personal right; it is attached to the dominant land for the benefit of that land. To the extent that any part of the dominant land may benefit from the easement, the easement will be enforceable for the benefit of that part unless the easement, on its proper construction, benefits the dominant land only in its original form. 13 In applying this statement of principle to the terms of the instrument in the present case, it seems that the absence of words "or any part thereof" is not conclusive. The question is whether the instrument, on its proper construction, benefits the dominant land only in its original form. The present instrument is not expressed to limit the benefits to the dominant land only in its original form. The passage in Gallagher v Rainbow set out above is an unambiguous statement of general principle which is not limited to the particular facts in that case. It is thus a statement of general principle which is binding on this Court. It follows that the benefit of the right of way attaches to any part of the dominant tenements, including in this case the various units to be constructed thereon, whether the subject of strata subdivision or not. It also follows that this question of law has little or no prospect of succeeding. 14 The second question which is sought to be raised is whether the instrument creating the rights of way is an agreement or covenant within the meaning of s 28 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and cl 8 of SEPP No. 5. 15 Section 28(2) of the EP&A Act provides that, to the extent necessary to enable development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Act, an environmental planning instrument may provide that a "regulatory instrument" specified therein shall not apply to such development. A "regulatory instrument" is defined as "any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made". 16 Clause 8(1) of SEPP No. 5, which applies in the present case, states: 8 Suspension of certain covenants etc (1) For the purpose of enabling development to be carried out in accordance with this Policy or in accordance with a consent granted under the Act, any agreement or covenant imposing restrictions on any such development, to the extent necessary to serve that purpose, does not apply to the development. 17 Mr McKenzie submits that cl 8 is expressly limited in its operation to "any agreement or covenant". The clause does not include the additional words "or instrument", so that the instruments creating the rights of way in the present case are not caught. According to the submission, if it were intended by the draftsperson to include in the operation of cl 8 such an instrument, it would have been necessary to say so. A comparison was made with cl 8(1) of the State Environmental Planning Policy No. 53 - Metropolitan Residential Development, which expressly applies to any "agreement, covenant or similar instrument" (emphasis added). I now turn to a consideration of the submission. 18 A right of way is a type of easement. An easement is, by definition, the grant of a non-exclusive right in respect of the use of land for the benefit of other land (Halsbury's Law of Australia, Vol 22, par [355-12000]). In Municipal District of Concord v Coles (1905) 3 CLR 96, Barton J defined an easement (at 110) as a privilege without profit, which the owner of one neighbouring tenement has of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner. 19 This suggests that there is an overlap between an easement and a covenant, the latter being "an obligation concerning land, whether or not originally created by deed' (Halsbury par [355-12500]). The overlap is illustrated by such cases as Fraser v Finlay (1968) 91 WN 731. There is a similar overlap in the present case, whereby the terms of the right of way include both dominant and servient tenements, the grant of a right, a covenant to allow persons to pass and a covenant to maintain and repair. 20 There is not, however, a complete overlap between an easement and a covenant, particularly a negative covenant. Whilst both easements and covenants require a dominant tenement and a servient tenement (or land which is benefited and land which is burdened), a restrictive covenant obliges the proprietor of the servient tenement not to use the land in some way in which he or she would be otherwise entitled. By way of contrast, an easement such as that in the present case is a right which entitles the holder of the benefit of the easement to some non-exclusive use of the servient tenement (Halsbury par [355-12530]). Although restrictive covenants strongly resemble equitable negative easements they are not analogous. In Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154, the High Court declined to draw an analogy between restrictive covenants and equitable easements (at 162-163). Thus some negative obligations may be created and enforced as either easements or restrictive covenants, but not all. 21 Moreover, a positive right imposed on a servient tenement by the proprietor of a dominant tenement, such as a right of way, is not generally described as a covenant. Because the concept of an easement does not completely overlap with a covenant I conclude that cl 8 of SEPP No. 5 does not apply to easements or rights of way. It only applies to any agreement or covenant (as distinct from an easement). The rights of way in the present case, registered under s 88B of the EP&A Act, would not be described as an agreement. 22 This conclusion is not a satisfactory answer. Although cl 8 of SEPP No. 5 does not apply in the present case, there remains an outstanding question, to which I now turn. 23 Under s 39(2) of the Land and Environment Court Act 1979 ("the Court Act"), for the purpose of hearing and disposing of an appeal, the Court has all the functions and discretions which the body whose decision is the subject of the appeal had in respect of the subject matter of the appeal. The rights of way in the present case are set out in an instrument registered under s 88B of the Conveyancing Act. The instrument states that the person empowered to release, vary or modify the easement is the Council of the Municipality of Ku-Ring-Gai. The powers of the Court under s 39(2) thus include the discretion to release, vary or modify the easement in the course of determining the development appeal, if the circumstances warrant (Willoughby Municipal Council v Huxley Homes Pty Ltd, NSWLEC, Stein J, 16 November 1989, unreported, McDougall v Warringah Shire Council (1993) 80 LGERA 151, Chehab v Canada Bay City Council [2002] NSWLEC 220 per Pain J). 24 Since the Court has the power to release, vary or modify a property right, which is at risk of being released, varied or modified, then it is in the interests of justice that those who presently enjoy such a right be joined as parties. It would be unthinkable, for example, if an application were made under s 89 of the Conveyancing Act to release, vary or modify an easement, if the owners of the land, having the benefit or burden thereof were not to be afforded the opportunity of becoming parties. It would be equally unthinkable that, where there is a possibility that the Court might release, vary or modify the easement pursuant to its powers under s 39(2) of the Court Act, those whose property interest may be affected should not be afforded the opportunity of being joined as parties. 25 It is not sufficient, in my view, that the affected property owners be given a limited right to be heard. They should be joined as parties, thereby giving them the right of full participation in the hearing and the right of appeal therefrom. 26 The third question which is sought to be raised is whether the proposed vehicular and pedestrian user constitutes an impermissible intensification of user of the right of way and whether this is a proper matter for consideration under s 79C of the EP&A Act. There is no doubt that the increased user of the right of way is a relevant matter for consideration under s 79C(1)(b) of the EP&A Act. This then becomes one of the considerations to be taken into account in assessing the merits of the development application. 27 Mr McKenzie goes further, however, and submits that the proposal for the construction of a footpath, which will occupy almost the whole of the width of the access strip of lot 107, is a substantial interference with the easement. He further submits that if this is so, then the development may not be approved in the absence of an order made by the Court under s 40 of the EP&A Act imposing an easement to accommodate what is now proposed. No application has been made by the appellant for an order under that section. 28 In this respect, the question for determination is whether as a consequence of the development proposal, in particular as a consequence of the construction of the footpath within the access strip of lot 107, there will be a substantial interference with the right of way. If so, then the development proposal could not proceed absent an application under s 40 of the EP&A Act, otherwise the owners of the dominant tenement could restrain any such substantial interference with their enjoyment of the right of way. 29 The total width of the various strips of land comprising the right of way is ten metres. There is an existing driveway of constructed pavement 6.5 metres wide in the middle of the ten meter wide strip. It is proposed to construct a footpath 1.5 metres wide, including its retaining walls, within that part of the right of way comprising the access strip for lot 107. There will be a handrail on the edge of the footpath which will separate vehicular traffic from pedestrian, so that vehicular traffic will be prevented from entering upon that part of the right of way upon which the footpath will be constructed. 30 It is an implied term of every right of way that the dominant owner has such ancillary rights as are reasonably necessary for the effective and reasonable exercise and enjoyment of the right expressly granted (Jones v Pritchard [1908] 1 Ch 630 at 638, cited with approval in Zenere v Leate (1980) 1 BPR 9300 by McLelland J). Those ancillary rights include the right to carry out such physical works on the right of way as may be reasonably necessary in order to put it to its intended use (Newcomen v Coulson (1877) 5 Ch D 133, Todrick v Western National Omnibus Co [1934] 1 Ch 190 at Zenere v Leate at 9304). 31 It is also an implied term that the servient owner is not entitled to do anything which substantially interferes with those rights of the dominant owner which he or she wishes to exercise (Powell v Langdon (1944) 45 SR (NSW) 136 at 139, Keefe v Amor [1965] 1 QB 334 at 347, Zenere v Leate at 9305). The position is explained by Roper J in Powell v Langdon in the following terms (at 139): Whether an obstruction in a right of way is actionable or not is a question of degree to be decided in the light of the circumstances of each case in which it arises. The law, I think, is clear. 'In the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way': Pettey v Parsons [1914] 2 Ch 653 at 662, and see Clifford v Hoare (1874) LR 9 CP 362 and Sketchley v Berger (1893) 69 LT 754. 32 In Keefe v Amor [1965] 1 QB 334 at 347, Russel LJ said (at 347): I would remark that it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct a passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict the user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required. 33 The express terms of the rights of way in the present case allow the registered proprietors in whose favour it is created and every person authorised by them to pass and repass, with or without animals and vehicles, or vehicles, or both. None of these rights are substantially interfered with by the present proposal. Vehicles will still be able to pass upon the constructed pavement. The proposal for the construction of a footpath would clearly allow access by persons on foot, provided that footpath is not restricted only to those persons associated with the development on lots 106 and 107. Moreover, it would seem that the construction of a footpath is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted to the registered proprietors of lots 106 and 107. The express terms of the right of way also refer to the maintenance of "supporting retaining walls and banks", which shows that some physical structures within the right of way were contemplated. In my opinion the construction of the footpath would not of itself constitute an actionable obstruction of the right of way. 34 There remains, however, the separate question of whether the width of the constructed pavement for vehicles is sufficient for the number of vehicles likely to use it if the development were to proceed. That is a merit consideration under s 79C of the EP&A Act. Conclusion 35 I have rejected the first and third questions which Mr McKenzie has sought to raise as being questions of law which justify the joinder of his clients. 36 I have accepted the strength of Mr McKenzie's second question and have found that cl 8 of SEPP No. 5 does not extent to the right of way created by the s 88B instrument in the present case. I have found, however, that the Court can nevertheless release, vary or modify the right of way under the terms of the instrument and under s 39(2) of the Court Act. If it is necessary, in order to enable the development to proceed, to release, vary or modify the right of way, then this would involve a variation of property rights. This is sufficient to justify the joinder of those persons having the benefit of the right of way. Since property rights may be involved, it would seem that any proposal to release, vary of modify the right of way should be determined by a judge. Moreover, as Mr McKenzie submitted, an order may have to be made under s 40 of the Court Act to accommodate what is now proposed. The jurisdiction of the Court to make an order under s 40 is only exercisable by a judge (sub-s (3)). Mr McKenzie seeks an order that the matters raised by his clients be referred to a judge for determination, but I do not have jurisdiction to make such an order. The listing of cases, including the question of whether they should be heard by a judge or by a commissioner, is solely a matter for the Chief Judge (s 36 of the Court Act). Orders 37 The formal orders of the Court are: (1) The applicants on the motion, namely Andrew Picker and Jill Parker, Rabbi Nochum Schapiro, Roger G Jackson, Denis Conaglen, John William Sanders and Jane Ewing Sanders, Ronald Anderson, John Sainty, Specialist Property Limited (ACN 008 983 073), P Bachelard and J Bachelard be joined as respondents. (2) The proceedings before the Commissioner be stayed pending hearing of evidence and submissions on behalf of the applicants on the motion. (3) The question of costs of the notice of motion is reserved.

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