Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor

Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor - [2008] NSWSC 213 - NSWSC 2008 case summary — Zoe

[12]

ii. the defendants, Mr and Mrs Sonnenschein, are the registered proprietors of the property comprised in lot 3 in deposited plan 28700 known as 7A Cranbrook Road, Bellevue Hill [for convenience referred to as number 7A]. 2 The Berryman property has access from Cranbrook Road for vehicles and pedestrians by a bitumen driveway constructed partly on the Berryman property and partly on the Sonnenschein property. The driveway is steep, with a substantial drop down towards the neighbouring property on the northern side (number 5 Cranbrook Road). The driveway crosses from the defendants' property to the plaintiffs' at the north-western corner of the defendants' land. At this point, the driveway turns south and continues to climb up to a turning circle in front of the plaintiffs' house. The defendants make use of an earlier turn off into a private driveway serving number 7A, and have no right of access to that part of the driveway which extends onto the plaintiffs' land. 3 Benefiting the title of the Berryman property is a right of carriageway and easement for drainage and gas services created pursuant to dealing number G 974508 which burdens the Sonnenschein property. The right of carriageway was created on 6 June 1958 by the execution and registration of a memorandum of transfer between Property Management Pty. Limited and Mr Clive Cameron Bosler. 4 The plaintiffs are seeking to undertake improvements to the portion of the driveway which lies within the right of way. This work includes the removal of an encroaching brick retaining wall, the installation of timber bollards, the removal of a tree stump, the regrading of the driveway and the bituminising of additional areas of the right of way in order to facilitate the construction of a turning circle. 5 The orientation of the plaintiffs' and defendants' properties, the location of the driveway and the area where the proposed improvements are to take place are set out in the diagram reproduced below: admitted as part of exhibit ASL1 and prepared by the architect Bill MacMahon [referred to elsewhere in the judgment as 'the MacMahon Plan']. 6 Having unsuccessfully endeavoured to obtain the consent of the Sonnenscheins to the lodging of a development application with the Woollahra Municipal Council for the carrying out of the subject work, Mr and Mrs Berryman seek an order in the following terms:

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An order that the defendants sign a statement to the effect that they consent to the making of the Development Application dated 21 November 2006 to the Woollahra Council seeking development consent in accordance with the Woollahra Local Environmental Plan 1995 to the making of alterations to the driveway constructed inter alia on the right of way forming part of Lot 3 in Deposited Plan 28700 as required by the Environmental Planning and Assessment Regulation 2000 (NSW). Further developments on the plaintiffs' property 7 In addition to the developments discussed above, the plaintiffs also intend to submit a development application for work to be done within their own property. This work, while not the subject of this application, forms an important part of the context in which this dispute arose. The plaintiffs intend to erect a gate on their own property to provide them with additional privacy and security. They also intend to construct a turning circle which will lie predominantly on their own land, but will be accessed from, and protrude into, the right of way. This turning circle will allow vehicles which approach the plaintiffs' property along the driveway, but are unable to enter the property because the gate is closed, to turn around and exit the property in a forward direction. 8 The plaintiffs' claim that a turning circle is necessary regardless of whether a gate is installed on their property, as it would allow vehicles to turn around on occasions when the turning circle in front of the Berryman residence is full, or where another car is attempting to emerge and blocking the way. In contrast, the defendants allege that this is an unlikely and easily avoided scenario, and that "(t)he only event that seems to constitute a catalyst for the turning area is the decision to install the gate". The cutting down of the native olive tree 9 One issue which arose in cross-examination was the allegation, put to Mr Berryman, that the plaintiffs had cut down a native olive tree, said to be approximately 20 metres in height, which stood within the area in which the proposed works were to take place within the right of way [the tree stump shown on the McMahon Plan as requisite to be removed constitutes the remains of this tree]. Mr Berryman's evidence was that the tree was dead: however he also gave evidence that he had no real recollection of the existence of the tree, nor of its height or dimensions. His evidence was that he had not consulted the Sonnenscheins before causing the tree to be removed. 10 Ultimately, this matter bears no significance in the principled approach to the determination of these proceedings. However, the court presumes that the cross-examination proceeded on instructions and the defendants presumably took issue with their not having been consulted and with the entire incident. The encroachment 11 It is common ground that in late February 2008 it came to the attention of Mr and Mrs Berryman that a small area of the existing formed driveway [hereinafter called the encroachment] located outside the boundary of the right of carriageway had been inadvertently shown in support of the development application as part of the proposed work. The area over which the driveway encroaches onto the defendants' land is less than 0.4m2. 12 The plaintiffs' solicitor promptly notified the defendant's solicitor of the error in the plan, advising that the error was being corrected and providing an amended plan showing that the proposed work to be carried out was within the right of carriageway. The bifurcated nature of the issues 13 In the manner in which the proceedings were litigated it is fair to observe that the defendants' stance addressed two levels which, although from time to time overlapping, are able to be treated with as such:

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(3) The powers of the Court under this section are in addition to any other powers of the Court. 16 There is no issue but that, in appropriate circumstances, the owner of land which is burdened by a right of way can be compelled to consent to a development application by the owner of the dominant tenement, as one aspect of the implied incidental right to do something which as a matter of property law the owner of the dominant tenement is entitled to do on or concerning the site of the right of way: Kirkjian v Towers (Supreme Court of New South Wales, Waddell J, 6 July 1987, unreported); (considered in Cameron North Sydney Investments Pty Ltd v Owners Strata Plan No 50411 [2002] NSWSC 726); 177 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 521; Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26; [1999] NSWLEC 212; at 34, [27] - [32]. Turning to the questions of principle 17 Both parties have taken the Court to the many statements of principle which operate in this area and to past as well as more recent authorities. In very recent times the decision of the High Court of Australia in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 was handed down late last year. That decision was applied by the New South Wales Court of Appeal in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324. Another very recent decision, Trewin v Felton [2007] NSWSC 851, was handed down by Brereton J in August of last year. During 2008 the decision in Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 was handed down by White J. The parties also referred inter alia to Jones v Pritchard [1908] 1 CH 630 and to the well-known judgment of McClelland J [later Chief Judge in Equity] in Zenere v Leate (1980) 1 BPR 9300 at 9305. The parties drew attention to the decision of the Young J [presently the Chief Judge in Equity] in Butler v Muddle (1995) 6 BPR 13,984. A number of authorities are referred to in the reasons. 18 For obvious reasons it is unnecessary in the circumstances to traverse all of these authorities. A careful reading of many of these authorities throw up the principles. Plainly enough the particular circumstances are always of special significance. To my mind the extremely careful and detailed decision of Brereton J [although handed down before the High Court decision in Westfield], serves to provide useful observations in relation to many of the authorities. Naturally the decision in Westfield must be followed. The approach taken in these reasons is to deal only with matters where the parties seemed to be at issue on the material principles. The terms of the grant 19 Dealing at commencement with the terms of the grant the following may be seen:

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iii. The driveway on the right of way that services both lots 3 and 4 was constructed in 1959. At the time I caused the driveway to be built and the right of way to be created, I gave consideration to turning facilities for vehicles accessing lot 4, but I considered it to be unnecessary as part of the right of way as there was ample space to turn even very large vehicles on lot 4 in front of the house, and I never contemplated or intended that space for turning a vehicle, or a reversing bay, would be part of the right of way. Particular authorities relied upon by the defendants 31 Mr Bellamy took the court to a number of authorities said to support the defendant's case. He relied upon the approaches taken in two particular authorities [Lehane and Natva] and sought to draw parallels between number of the particular facts and circumstances said to be shared between those authorities and the instant circumstances. 32 I accept that there are a number of similarities between the present litigation and that determined by Kearney J in Lehane v Jones (1982) NSW ConvR 55-079. That was a case where the parties were the owners respectively of adjoining house properties fronting a road in Caringbah. A right of way traversed the plaintiffs' land and was appurtenant to the defendant's land. The right of way ran in part alongside the common boundary between the two properties beside which the plaintiffs had erected a fence. The dimensions of the plaintiffs' land were approximately 21 m along the frontage and approximately 43 m in depth. The defendant's land was a much larger parcel of irregular dimensions appearing to contain an area approximately double that of the plaintiffs' land. The route of the right of way was from approximately the centre of the road frontage of the plaintiffs' land diagonally across the front portion of their property to the common boundary with the defendant's land, and thereafter along the common boundary to the rear boundary of the property, which formed the common boundary between the plaintiffs' land and lot 4. 33 The terms of the right of carriageway were virtually identical to those of the right of carriageway in the present proceedings, both deriving from the Conveyancing Act. 34 After examining three decisions in particular [Zenere, Saggers v Brown (1982) NSW ConvR 55-054 and Dunell v Phillips (1982) 2 BPR 9517], Kearney J held that in the circumstances, including the terms in which the grant had been expressed, the rights attaching to the right of way did not carry by implication, a right for vehicles to stop or park on the right of way. His Honour did not regard the implication of any such entitlement as falling within the terms mentioned in the decisions to which he made reference as being reasonably necessary to the effective reasonable exercise and enjoyment of the right of passage expressly granted. His Honour contrasted the authorities in which a right to stop or park had been held to be included where what was involved were special circumstances: as with rights of way providing access to business premises or factories and the like where it would be necessary to use the right of way for the vehicle to stop in order to load or unload. As his Honour observed, by contrast, the right of way provided access to and from a private dwelling house surrounded by its own spacious grounds. That last observation is of course particularly pertinent to the circumstances of the current proceedings. 35 His Honour further did not consider that the grant of the right of way carried with it by implication, an entitlement for vehicles to reverse and turn on the right of way itself. As his Honour put it:

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iii. The decision to install the gate is for private reasons; it is not mandated or otherwise forced upon the plaintiffs. [ Hence the defendants have proceeded to contend as follows : · The plaintiffs have proceeded with the chosen position for the gate notwithstanding that they knew that the only place for the manoeuvring area (if it be required) is the right of way. · The plaintiffs should not be able to change the point of access or appropriate the balance of the right of way to manoeuvring area when reasonable access and reasonable manoeuvring area is available to them, especially given that they come to make their claim now with the knowledge of the access point and turning area on their land as they were there when the plaintiffs bought the said land. · There is no basis to think that the council would agree that the gate warranted approval and that is the reason why the manoeuvring area is sought - the matter remains theoretical.] Dealing with the issue 39 I accept entirely that the grant of a right of way is not to be regarded as equivalent to granting ownership to the dominant tenement owner over the land on the servient tenement over which the right is created. Clearly there are cases where the dominant tenement owner was prevented from using the right of way so as to extend the use of his own property completely over the site of the right of way: cf the observations in Saggers [supra] at 56, 469. 40 Plainly one looks to the terms of the grant: for example to establish whether or not the grant gives to the dominant tenement owner the right to gain unlimited access to the dominant tenement from every point along the relevant boundary between the dominant and the servient tenements. The grant may so provide expressly or by implication. 41 The unusual circumstance thrown up by the present proceedings seems to me to be the proposal of the defendants to in effect 'co-join' with the right of way, a part of the land held by them. They claim to have a right to use the right of way as one part only of a turning or manoeuvring area: the right of way being insufficient in itself to permit the entirety of the manoeuvring area to be constructed. [I acknowledge that use of the term 'co-join' perhaps furnishes an unwarranted gloss on what is proposed. But for present purposes it serves to highlight the case put by the defendants.] 42 As will be seen from what follows, the real and only question which requires to be answered requires the Court to focus upon what were and were not either express or ancillary rights granted by the subject easement. As the authorities have made plain, circumstances change. The ultimate 'litmus' test requires an answer to whether or not a particular proposal constitutes either an express or an ancillary right with respect to the right of way over the servient tenement. The right to co-join a portion of the land held by the dominant tenement owners with the right of way in order to allow room for vehicles to manoeuvre will be an ancillary right if, and only if, it is reasonably necessary to the effective reasonable exercise and enjoyment of the rights of passage granted by the particular right of way. Is the proposed turning circle reasonably necessary?

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47 The finding is that the subject proposal has as its raison d'être, the intent of the Berrymans to install the subject gate, and to do so on their own property. When one posits that exercise as a given [assuming for the purposes that they obtain any necessary council approvals] the plaintiffs will have successfully shown that the subject works on and off the right of way will be reasonably necessary for the effective and reasonable exercise and enjoyment of the express right to go, pass and repass to and from the dominant tenement. 48 Once this finding is made, the present proceedings can be easily distinguished from the case of Lehane, discussed above. In that case, the Court's finding that neither the right to park nor the right to reverse and turn were ancillary to the easement was based on the conclusion that neither of these rights were reasonably necessary to the effective reasonable exercise and enjoyment of the right of passage expressly granted [as discussed page 56,469]. The distinction in this case, where the turning circle proposed by the plaintiffs has been held to be reasonably necessary, is apparent. 49 Moreover, notwithstanding that the plaintiffs have elected to install the gate, and thus to some degree to bring upon themselves the difficulties involved in utilising the right of way once the gate has been installed, the finding is that their decision to install the gate [and that which will follow in terms of the need for the turning circle] cannot be characterised as constituting an unreasonable use of the right of way. 50 Notably, as Palmer J observed in Natva [at 78]: "(T)he desire of the plaintiff to make the best and most profitable use of its land is not the dominant consideration when the Court is assessing what is a reasonable use of a right of way. The Court takes into account all relevant circumstances, which include the impact of the proposed use on the owner of the servient tenement as well as on the owner of the dominant tenement." 51 In Natva, the Court's refusal to allow the plaintiff additional access points to their property from the right of way was based, in part, on the fact that the proposed new access point would cause significant detriment to the owners of the servient tenement, by preventing their reasonable use of the right of carriageway area for parking. In the present proceedings, while the installation of a turning bay may have some detrimental impact on the defendants, [as, for example, interfering with their opportunity to grow a tree in the space that is intended to be paved], this detriment is, in the ultimate analysis, outweighed by the benefits to be derived from the turning circle. 52 Ultimately, when weighing up the interests of the parties, including the reasonable desire of the plaintiffs to install a security gate, the finding is that the proposed use of the right of way to incorporate a turning circle is a reasonable use of the right of way.

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