Shelbina Pty Ltd v Richards

Berryman v Sonnenschein [2008] NSWSC 213 Bulstrode v Lambert [1953] WLR 1064 Butler v Muddle (1995) 6 BPR 13,984 Carlson v Carpenter (1998) 8 BPR 15,909; (1998) NSW ConvR 55-848 Chiu v Healey [2003] NSWSC 857; (2003) 1 BPR 21,241 Huckvale v Aegean Hotel Ltd (1989) 58 P & CR 168 CASES CITED : McCrow v Chaplin [2009] NSWSC 965 Pettey v Parsons [1914] 2 Ch 653 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Thorpe v Brumfitt (1873) LR8ChApp 650 Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579 Twomey v Blanch [2008] NSWSC 826 Westfield Management Ltd v Perpetual Trustee Company Limited (2007) 233 CLR 528 Zenere v Leate (1980) 1 BPR 9300

TEXTS CITED : Bradbrook and Neave, Easements and Restrictive Covenants in Australia, (2000) 2nd ed. Butterworths

Shelbina Pty Ltd (Plaintiff) PARTIES : Peter Richards (First defendant) Charmaine Richards (Second defendant)

COUNSEL : P Lane (Plaintiff) G Sirtes SC (Defendants)

SOLICITORS : Midcoast Legal & Conveyancing Service (Plaintiff) Holding Redlich (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Date of Hearing: 14 December 2009 Date of Judgment: 15 December 2009

2098/09 Shelbina Pty Ltd v Peter Richards and anor JUDGMENT (EX TEMPORE) 1 REIN J: The plaintiff (for whom Ms Lane of counsel appears) owns a block of land at Kundabung, New South Wales. It is Lot 13 in deposited plan 708538 ("Lot 13"). The defendants (for whom Mr Sirtes SC appears) own a block of land to the south of Lot 13 known as Lot 11 in deposited plan 708538 ("Lot 11"). To the south of Lot 13 and to the west of Lot 11 is Lot 12 in deposited plan 708538 ("Lot 12"). The owners of Lot 12 are not parties to these proceedings. To the west of Lot 13 and to the north of Lot 12 is a lot known as Lot 12 in deposit plan 87884. That lot is owned by Mr and Mrs Taylor who acquired that property in 2005 and who are not parties to these proceedings. I shall refer to that Lot 12 as "the Taylor property". Annexed to this judgment is a copy of p 18B to Exhibit A which might make what follows easier to comprehend.

2 The western southern and eastern sides of Lot 13 are burdened by two easements, both approximately 20 metres wide. One of the easements runs from the north west corner of Lot 13, down the western side of Lot 13 along its southern side up to a point a few metres past the boundary between Lots 12 and 11. This has been described by the parties as "the western right of carriageway" or "western ROCW"; I shall refer to it as "the western easement".

3 At its termination, a point marked ZZ on p 18A of Exhibit A, the second easement commences. The second easement is known as "the eastern right of carriageway" or "eastern ROCW"; I shall refer to it as "the eastern easement". It continues to the south east corner of Lot 13 and then north along the eastern side of Lot 13 to the north eastern corner of Lot 13. It continues on to the north east corner of land above Lot 13 which is Lot 14 in deposited plan 708538. It then proceeds east to a point where it joins up with the western easement.

4 The eastern easement was created later in time than the western easement and the eastern easement is no longer the subject of any dispute in these proceedings. The western easement was created in 1984 at a time when Lot 13 was not owned by the plaintiff and Lot 11 was not owned by the defendants.

5 The terms of the western easement are those incorporated by s 181A of the Conveyancing Act 1919 and in the following terms: "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof."

6 These proceedings are now concerned only with what use can be made of the western easement. The parties have reached agreement on the facts and on the issues for determination. I have had marked the folder which contains the Agreed Statement of Facts and Issues together with relevant documents as Exhibit A. 7 There is a complicating factor also recorded in the Agreed Facts. There exists a third easement in favour of Transgrid's predecessor, which was created in 1987 ("the Transgrid easement"). It is 45 metres wide and it runs in a south eastern direction across the Taylor property and continues on along the boundary of Lot 13 and Lot 12, and Lot 13 and Lot 11, burdening not only Lots 13 but Lots 11 and 12 and the Taylor property.

8 For all its extent on Lot 12 and Lot 13 the western easement is within the Transgrid easement. For part of its extent on Lot 11 and Lot 13 the eastern easement is within the Transgrid easement. At a point not far from the junction of the western and eastern easement on the south of Lot 13 the Transgrid easement continues in its south easterly direction across Lots 11 to its eastern parameter and continues in a southerly direction thereafter.

9 At the south west corner of Lot 13 there has been installed by Transgrid (or its predecessor) a gate between the Taylor property and Lot 13. It is marked YY on p 18A of Exhibit A and I shall refer to it as "the Transgrid gate". A photograph of the Transgrid gate is found at page 22 of Exhibit A in which photograph the gate is in an open position.

10 The Agreed Facts contain the following: "A gate (western gate) has been constructed in the fence line along the boundary between Lot 13 and the Taylor Property where the Transgrid easement over Lot 13 and the Transgrid easement over the Taylor property meet. The western gate was installed by Transgrid. The plaintiff says that Transgrid put a lock on the western gate when it was installed and that Mr Bischof, a director of the plaintiff and then owner of the Taylor property, were each given a key to it. The first defendant says there was no lock on the western gate when he inspected Lot 11 and surrounding areas before the defendant acquired Lot 11 or when the acquisition took place or after that time, except for a short period in late March 2008."

11 The parties have proceeded upon the basis of the Agreed Facts and there is no evidence in relation to the gate beyond that which I have described above. It was agreed by both parties that I did not need to resolve the factual issue that arises out of what I have just set out.

12 I have mentioned that the western easement continues north to the north western corner of Lot 13. It continues on in a northward direction for some distance onto Lot 14 as depicted in deposited plan 708538 and through that lot in a general northerly direction to Link Road. The western easement has not been used by the owners of Lots 11 or 12 for access to the forestry road and Pacific Highway due to "physical constraints over its northern part and over parts of the right of carriageway over the western part of Lot 14": see paragraph 11 of the Agreed Facts.

13 The terms of the Transgrid easement are found on p 15 of Exhibit A. Essentially it permits the erection and maintenance of electricity pylons. 14 On the eastern easement close to the north east corner of Lot 13 a road intersects the area of that easement at a point described on p 18A of Exhibit A as XX. The road runs east to Ravenswood Road and is used by Shelbina and the defendants. Shelbina, in accordance with a development consent which has been granted by the local council in December 2006 and modified in November 2008 for subdivision of Lot 13 to six allotments, is required as a condition of the approval to contribute a specific sum towards the council's costs of constructing a roadway over the access way. It was agreed by the parties that the details of this are not relevant.

15 The access way leads into Ravenswood Road and is very close to the Pacific Highway. The overall view of the site can be gleaned from pp 19A and 19B of Exhibit A. Page 19B was added to Exhibit A during the course of the hearing. It has imposed on it a rough and difficult to discern outline of the lots that are the subject of this proceedings and the neighbouring lots.

16 Page 18A of Exhibit A has colour markings on it. Page 18B, which is annexed to this judgment was prepared by my associate and which, it is agreed by parties, accurately depicts the western easement and the Transgrid easement in a way that will not be diminished by the absence of colour on photocopying.

17 Paragraph 4 of the Agreed Facts is in these terms: "The defendants use Lot 11 as their residence and the right of carriageway and another right of carriageway ROCW eastern in relation to which there is no dispute. The only means of access to Lot 11. The defendants (and those authorised by them to use the rights of carriageway) only use the rights of carriageway to go to and fro Lot 11 for that residential purpose".

Paragraph 17 is in these terms: "The western gate is used by the defers and the Taylors (under the authority of the defendants) to enter onto, leave the western ROCW when going to or from Lot 11 from or to the Taylor property in connection with the use of Lot 11. The defendants say this includes a share driving arrangement for driving their children to and from the school bus stop. Mr Taylor has given permission to the defendants to enter his land and use the western gate".

18 In essence the plaintiff's position is that whilst the western easement gives rights to the defendants as the owners of Lot 11 as a dominant tenement those rights do not extend to permitting the defendants to use the easement to pass through and to obtain access to the Taylor property nor to authorising the Taylors to use the easement as a means of accessing the defendants' property. The defendants assert that their use of the Transgrid gate to exit and enter from the Taylor gate on the western easement and along the eastern easement falls within the express or ancillary terms of the western easement and they are entitled to chose the Transgrid gate as an entrance/exit point if they wish.

19 The dispute in one sense is a petty one, since there would appear to be little hardship to Shelbina if the Transgrid gate is left unlocked and the defendants visit the Taylors through it and the Taylors visit the defendants. The issue however is not determined solely for the benefit of the present owners or their use but the determination is relevant to future owners and future use.

20 It might be thought that, whatever the strict legal position, the parties could have come to a sensible arrangement that would permit the Taylors and the defendants to visit each other without the Taylors having to exit their property by usual exit located some point west or north west of Lot 14 (it is not identified on p 18B of Exhibit A) but clearly the parties are unable to reach an accommodation and hence the court needs to determine the legal position with whatever consequences that may have.

21 The plaintiff relies on the following propositions: (1) That "pass and repass" are words apt to describe the use of an easement for the purposes of going to and from a particular place: see Zenere v Leate (1980) 1 BPR 9300, Butler v Muddle (1995) 6 BPR 13,984, Chiu v Healey [2003] NSWSC 857; (2003) 1 BPR 21,241. (2) The particular place from which the easement commences is at the end of the easement on the northern boundary of Lot 14 and a particular place where it terminates is at the boundary of Lots 11 and 13. In Zenere v Leate McLelland J said at p 9307: "A right of way connotes a right of passage between two places separated by the servient tenement. In the words of Middleton J in the High Court of Ontario: "A right of way must have a terminus a quo as well as a terminus ad quem .": Grant v Lerner (1914) 7 OWN 564 at 566. This does not exclude the possibility of two or more termini a quo where such were clearly intended. Each of the termini may be sufficiently identified in the grant but "if the deed is silent as to the place of entry, surrounding circumstances must be taken into consideration to throw light on the intention of the parties": See Goddard - The Law of Easements 8th ed p 382." (3) The western easement is identified in deposited plan 708538: see page 6 of Exhibit A. Its commencement can be seen where the word "old" is found at the top of plan close the words "Maraya". (4) Easements do not operate as a transfer of the land to the owner of the dominant tenement: see Zenere v Leate at p 9304 and Butler v Muddle at 13,986. The right granted to the owner of the dominant land is no greater than is necessary for the proper enjoyment of the easement and ancillary purposes. (5) The use which is authorised is one which benefits the land and is not personal to the dominant owner: see Westfield Management Ltd v Perpetual Trustee Company Limited (2007) 233 CLR 528. (6) An owner has a right to fence the easement: see Pettey v Parsons [1914] 2 Ch 653 and the very helpful summary of the law in relation to this area in Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579 at [19] to [35], [43] to [45] per Brereton J, and McCrow v Chaplin [2009] NSWSC 965 per Brereton J.

(7) The right to fence is subject however to the right of reasonable access to the dominant land by the owner of the dominant land: see Trewin v Felton, McCrow v Chaplin .

(8) For the owner of the dominant tenement to be entitled to access any property along the route of the easement that is other than his own or other land that is described as having the benefit of the easement would require the words "or to any other land" at the end of the instrument. No such words are found in the relevant instrument.

(9) The instrument in this matter is in a form enacted by Parliament and is intended to regulate the rights of landowners and the benefits and burdens and to be applicable in diverse situations.

(10) The use that the defendants seek to make of the easement by giving them access to the Taylor property and permitting the Taylors to access their land is not open to the defendants except with the permission of Shelbina. The easement which is described in the deposited plan and which starts at the boundary between Lot 13 and 11 travels north to the point that I earlier described is the easement and therefore it is the right of the way along which, says Shelbina, the defendants are entitled to go pass and repass at all times. They are not permitted to use the right of way to access the Taylor property and nor is it a purpose that can be discerned in the instrument nor is it for the benefit of the dominant land.

22 The defendant's argument was based on the following: (1) The words "to go pass and repass at all times" used in the instrument are words of the widest input. See Berryman v Sonnenschein [2008] NSWSC 213. There is no restriction on the use of the easement as seen in Bulstrode v Lambert [1953] WLR 1064.

(2) The use to which the defendants are putting the easement and permitting their invitees to utilise the easement is a use of their land, Lot 11, not any other land and it does not involve any deviation onto the land of Shelbina beyond the easement. No consent of Shelbina is required to cross from the easement into land adjacent to the easement.

(3) There is no restriction in the easement or in the deposited plan on access from the right of the way to the adjoining properties relevant, particularly to the Taylor property.

(4) Although the plaintiff contends that the entrance point to the western easement is on the boundary of Lot 14 there is nothing which specifically refers to the 20 metre wide length opening "other than its depiction on the deposited plan": see paragraph 5 of the defendant's submissions.

(5) Shelbina is required to permit the defendants to gain access from the Taylor property onto the easement on the assumption that Shelbina is entitled to fence its western boundary and separate it from the Taylor property.

(6) Cases such as Trewin v Felton , Carlson v Carpenter (1998) 8 BPR 15,909; (1998) NSW ConvR 55-848, Twomey v Blanch [2008] NSWSC 826 particularly at [20] highlight that it is not unreasonable to permit a point of access to the easement on the western boundary, a boundary which is 552 metres in length.

(7) Westfield v Perpetual Trustees is not an analogous case. Here the owner of the dominant tenement seeks to use the easement for the purpose of passing along the right of way to and from the Taylor property whereas in Westfield v Perpetual Trustees , Westfields wanted to use the easement to access land beyond that of Skygarden.

(8) Cases such as Zenere v Leate and Butler v Muddle are out-moded in view of the Westfield v Perpetual Trustee decision.

(9) The grant of an easement includes ancillary rights which are necessary for the enjoyment of rights expressly granted. The easement must accommodate the dominant tenement. It should confer a real and practical benefit on the dominant tenement and "be reasonably necessary for its better enjoyment". See Nourse LJ in Huckvale v Aegean Hotel Ltd (1989) 58 P & CR 168 and Bradbrook and Neave, Easements and Restrictive Covenants in Australia , (2000) 2nd ed. Butterworths at 1.119.

(10) So far as the reference to the extent of the easement is concerned Mr Sirtes responded to that by disputing that there was an exit or entrance point near the word "old" on the deposited plan. He submitted that it could not be treated as the entrance point since there was no public road access.

(11) Mr Sirtes argued that it was for the plaintiff to prove that there was an exit or entrance point some where along the easement and that the defendants were entitled to an entrance point somewhere along the length of what was after all a long easement. Since no exit point was identified it could be the point where the Transgrid gate is now located. 23 In Westfield v Perpetual Trustee the High Court laid down some important principles in relation to the construction of easements. The land in question consisted of several parcels in the central business district of Sydney. The dominant tenement known as Skygardens had the benefit of an easement for an underground ramp from King Street to its land under the land of the servient tenement known as the Glass House which was Perpetual's land. Westfield had purchased other blocks subsequently that were contiguous to Skygarden and it wanted the ramp to service traffic to these other blocks.

24 The High Court, affirming the decision of the New South Wales Court of Appeal, held that such access was not permitted since it did not benefit the dominant land rather it only benefited the owner of the dominant land. 25 At [18] the High Court set out the approach of Hodgson JA in the Court of Appeal: "Although the words 'to and from [the dominant tenement] or any such part thereof' do not exclude the possibility that the right should extend to going to the dominant tenement and then going across it to further land, and then returning across the dominant tenement and then going from it across the servient tenement, the words tend to suggest that it is access to and from the dominant tenement that is the purpose of the [E]asement, and not access to further land reached only by going across the dominant tenement. Certainly, if it had been intended that the grant extend to the authorisation of others to go across the dominant tenement to further properties, the words 'and across' could readily have been added. (emphasis in original)"

26 The High Court referred to Thorpe v Brumfitt (1873) LR8ChApp 650 and said of the case: "First, it illustrates the importance of the legislative requirement imposed in New South Wales by section 88 of the Conveyancing Act (also introduced by 1930 Act) for identification of the lands comprising the dominant and servient tenements. Secondly, it emphasizes that the 'purposes' extensive as they may be, must be confer what the law regards as a benefit on the dominant tenement, by making it 'a better and more convenient property'; this is something more than a 'personal advantage' to the owner of tenement for the time being." (footnotes omitted)

27 The Court accepted that "user" under a registered easement may change with the nature of the dominant tenement so long as the terms of the grant are sufficiently broad: see [42]. 28 The Court was of the view of that extrinsic evidence to establish the evidence or contemplation of the parties to the grant of the easement was not admissible and that rules of evidence assisting the construction of the contracts inter partes did not apply: "The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens scheme, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any Court later ceased of the dispute) in the situation of the guarantee".

29 The approach of the High Court in Westfield v Perpetual Trustee on the question of extrinsic material was summarised in this respect by Handley AJA with whom other members of the Court of Appeal concurred in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [15] - [16]: "… the decision in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 has since confirmed that extrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900: paras [5], [37] - [41]. [16] This Court is therefore limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements." 30 Although in his written submissions Mr Sirtes relied on that summary, at the hearing he suggested that the reference to the "physical circumstances" was problematic. This arose in the context of the question of whether Lot 13 was fenced as at the date of the creation of the easement but I do not need to consider the issue, because there is no evidence of whether the land (that is, Lot 13) was or was not fenced at the time of the creation of the easement.

31 Ms Lane submits that the approach taken by Hodgson JA and endorsed by the High Court is relevant here. 32 Ms Lane also submitted that the High Court's approach on ancillary purposes is relevant because the Court said that the use asserted must be a use necessary for the enjoyment of rights for access to the dominant land. 33 The view that I have come to is that Shelbina's contentions should be upheld and for the following reasons: (1) I accept Shelbina's contention that the right of the defendants is to pass to and from and along the western easement and the eastern easement but that there is no express right to use the western easement to access the Taylor property.

(2) In the absence of express words of the kind identified by Ms Lane the owner of the dominant tenement has a right to enter and exit the right of way at its two ends but does not have the right to enter and exit the right of way at any point along its length to access (or provide access from) another property. That is not mentioned expressly or impliedly in the easement. I do not accept Mr Sirtes' contention that absent the Transgrid easement Shelbina would not be free to fence the boundary of its property or that such fencing would inhibit the defendant's enjoyment of the right of way. As at the time of the creation of the western easement there was no Transgrid easement and no reason to think that access to or from the Taylor property would be of any use or purpose relevant to the enjoyment of the western easement. The subsequent ownership of the land by the Taylors and the defendants and their friendship is entirely irrelevant and cannot make the construction contended for by Shelbina an unreasonable one. In my view the approach taken in Westfield v Perpetual Trustee is pertinent here; just as in Westfield v Perpetual Trustee was not permitted to utilise the easement to access the land other than the dominant tenement, here the defendants have no right to use the easement to access the Taylor property.

(3) The cases which consider what is reasonable access to the dominant land are not in my opinion relevant here. The defendants are seeking access to the Taylor property from the easement and the Taylor property is not benefited by the easement. There is no dispute as to the right of the defendants to access their property, Lot 11, from the right of way and there is no issue about the reasonableness or sufficiency of the access point for them to do so.

(4) I do not accept the defendants' argument that the western easement has no exit or entrance point.

(a) There is agreement that Link Road was a forestry road which joins the northern end of the easement and there is no evidence that such a road could not be used.

(b) There is on p 18A of Exhibit A a road described as Seams Road and no evidence has been shown that it was not a public road.

(c) There is no road access shown at the end of the western easement on the deposited plan but there is shown another easement which extends in an easterly direction and ends up at the "proposed motor way": see p 6 of Exhibit A. I infer the "proposed motor way" was the Pacific Highway since it is visible on the Google maps and the overlay at pp 19A and 19 of Exhibit A. Even if Link Road and Seams Road were not available for use as a public road the second easement created on that deposited plan lead to a proposed motor way. The easement so far as Lots 13 and 14 are concerned did all that it could to enable access and there was contemplated a public motorway with which the western easement would be linked.

(d) The Taylor property is not a public access point.

(5) Whilst I accept that the process of reasoning by which the court reached a conclusion as to the construction of an easement in some of the older cases is no longer acceptable given what has been said in Westfield v Perpetual Trustee it is only to the extent that reliance was placed upon such reasoning to reach the conclusion that those authorities are now in doubt. I do not accept that the cases are not otherwise relevant. (6) The Transgrid gate was not in existence in 1984. The fact that it was created subsequently and burdens both the Taylor property, Shelbina property and Lots 11 and 12 is irrelevant to the determining the construction of the western easement. The gate seems to have proven to be convenient to both the Taylors and the defendants but its presence cannot govern the right of the defendants against Shelbina. 34 At one point Mr Sirtes argued that the Taylors must be free to open the gate as they are joint owners of the gate and being free to open it they can step onto the western easement and use it for one of the purposes for which the easement was granted, that is, to allow visitors to visit the Taylor property.

35 There is no evidence before me of what arrangements were made in respect of the gate beyond what I have described in the Agreed Facts and as I have noted the terms on which the gate are to be operated as between Lots 13 and Lot 14 and Transgrid, later in time cannot govern the construction of the western easement's terms. 36 I accept the statement of principle in Trewin v Felton and as expounded further in McCrow v Chaplin by Brereton J leads to the conclusion that Shelbina was free to fence the boundary subject only to permitting the defendants' reasonable access to Lot 11.

37 It follows in my view Shelbina has succeeded in its claims and should, subject to what follows, be granted the relief sought in paragraphs 3 and 5 in the Amended Summons. 38 I raised a concern about the form of the orders sought particularly order 5 in the amended summons given that the Taylors are not parties to the proceedings. Ms Lane sought to amend the relief to make it clear that no orders are sought against the Taylors and there was no objection to the course. I did not understand the defendants thereafter to take issue with the form of orders.

39 I raised a question of concern also that the Agreed Facts refer to the fact that the western easement was blocked by obstacles and that if the easement is blocked and cannot be used there may be a problem. Ms Lane relies on the principle that dominant tenement has the burden of maintaining the easement unless the instrument says otherwise: see Bradbrook and Neave (supra) at 6.41, which was not disputed. The instrument contains no requirement for the servient tenement to maintain the easement. That left a question about whether or not any obstacles have been created by Shelbina. There is however insufficient evidence to indicate whether any obstacles were created by Shelbina and no issue was raised as to this matter in the Agreed Issues. On reflection I do not think that this should inhibit the grant of relief sought. 40 I will hear the parties on the issue of costs.

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