Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415

Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 | Case summary | Zoe

[13]

The claim is made that the previous owner of the plaintiff's land had removed the vehicle crossover and driveway at the Mathoura Road entrance, and had constructed a garden bed with rocks on the southern side of the apartment block in 1974. Later, it was put, based on evidence, that this occurred in 1971. In so doing, it was pleaded that raised garden beds with rocks and shrubs had been erected preventing access, and by reason of the foregoing had thus contested the use and enjoyment of any pedestrian access or right-of-way by any of the residents since 1974, it being claimed that the owner interrupted or attempted to interrupt that use, and had not acquiesced in the use. It could said that the defence to counterclaim appears to plead evidence in large part**.** Nevertheless it clearly raises the contention that any use or enjoyment of any pedestrian access or right-of-way was not as of right but was contested by the owner so that if there were used it was enjoyed under protest, or by stealth and without the acquiescence of the owner. It is also contended that since the apartment block was tenanted, the owner of the plaintiffs' land was not in possession of it and that an agent was used to manage the tenancies to the counterclaimants' knowledge. It is claimed that the owner did not know of the enjoyment or use of the alleged pedestrian right-of-way and had no reasonable means of knowing that, nor any reasonable opportunity to become aware of the use or enjoyment claimed by the claimants. Importantly, it was argued that the previous owner did not have any power to prevent any use or enjoyment by the claimants of the alleged pedestrian right-of-way because the units and the common areas of the apartment block were subject to leases in favour of tenants throughout the period since the premises were first occupied. The argument was raised that since the tenants were entitled to quiet enjoyment and exclusive possession of the land the subject of the lease, Rosuma could not contest any alleged user. It was also argued that there cannot have been any use by the claimants or their predecessors in title to the alleged pedestrian right-of-way as against the owner of the fee simple, because the land was subject to tenancies of various length, as tenants came and went. Thus there was an argument advanced that an easement arising by prescription at common law could not be claimed or presumed save by an owner in fee simple.

[24]

The plaintiffs are the registered proprietors of the land in the relevant Certificates of Title. The first plaintiff holds title to the individual units and the second plaintiff is the body corporate owning the common areas. The plaintiffs brought a separate proceeding No. 5182 of 1999 which seeks to restrain the claimants and others from attempting to interfere with the enjoyment of the property. It is to be noted that each of the claimants, or their predecessors in title, claim to own houses in Woodside Crescent which is a winding, wholly residential street. The claimants by their evidence sought to assert free and uninterrupted access as pedestrians to the pathway. Essentially, the claimants' counterclaim is that between 1972 and until 1974 a driveway passed along the southern side of the block of apartments and allowed access to Woodside residents on foot to 91 Mathoura Road. They claim that the local government authority then in charge, the City of Prahran, became concerned about the use of motor vehicles between Woodside and Mathoura so that Rosuma agreed to carry out landscaping which involved the putting in of the garden bed and the diversion in the path. Mr. Kanis claimed that this all happened at an earlier time, when the block of flats was built. One of the issues is whether the alteration effected by the garden bed and the bend in the path constituted an interruption of the right of passageway previously enjoyed. It will become clear when I summarize the evidence that whether or not it is true that the garden bed was put in to prevent cars being driven through to Mathoura Road, or being parked on the southern boundary, it did not affect its use as a means of pedestrian access. Indeed, the claimants argue that this enhanced the use of the path. The time at which this was effected is of importance, as the residents claim that the alteration to the pathway by the putting in of a garden bed makes it clear that Rosuma retained possession and control over the pedestrian right-of-way but never prevented it. The claimants' case is that any alteration is otherwise irrelevant as they have used the pathway since 1974, the latest date of possible alteration.

[35]

Dr. Wulff in addition to being a Bachelor of Landscape Architecture from the University of Oregon, had a Ph.D. from Cornell in Natural Resources Ecology. He worked as a landscape architect as a partner in a firm and was familiar with varieties of shrubs and plants. He agreed that from the back of his residence at 38 Woodside he had access by way of a laneway to Gordon Street which could take him to Mathoura Road. They originally owned the property at 2 Woodside through a company of theirs, Ithica Griffin Pty. Ltd. It had taken possession of No. 2 in 1978. However it was not settled until the following year. In 1986 he and his wife moved to 38 Woodside. He would use the walkway on the south side of Mathoura throughout the period for a variety of purposes to go to the Village, the post office, the chemist, to the park, to the primary school for voting. He took his children to the Brookville Oval which was east of Mathoura Road. His children, who were now 20 and 17, were born at No. 2 and always used the walkway to catch the No. 8 at Toorak Village to go to school at Glenmorgan. He recalled the garden bed as being about a metre wide with a couple of plants and a rock edging. It had what he thought was a self-sown "pittosporum undulatum" and a prunus stunted because they were shaded on the south side. The prunus is deciduous but the pittosporum evergreen. They walked from the entrance at Woodside up to the dog-leg turn to the south and out to Mathoura Road along the concrete surface. He did not believe the construction and layout of the garden bed was consistent with an intention by the landscaper to prevent or deter pedestrian access. It may be more intended to stopping a car. Two persons could walk on the path abreast but one would be more comfortable. You could accompany a child. It was about a metre wide. The vegetation was no impediment and he used the walkway every night for one reason or another and two or three times on Saturday and Sunday. There was never any sign. He walked through openly. He believed he had a right to walk through although no one had given him consent and there were never any obstructions or gates. He noticed cars parked on the western side of the block of apartments in delineated car parks. He became aware of the development plans, visited Stonnington Council and reviewed the plans, including the gates. He sighted a letter (Exhibit Q) written by S.J.B. Planning acting on behalf of the developer to the Planning Office of the City of Stonnington which in effect indicated the preparedness of the developer to ensure the gates were not erected, although the developer did not admit the right-of-way. This letter proposed that the gates be deleted from the plan submitted to the Council. Dr. Wulff said he saw two plans: an architect's plan had the gates on and the landscape plan, submitted later, that did not show any gates. He nothing of any arrangement but had simply been told by the vendor to him when he purchased 2 Woodside through Ithica Griffin that there was a walkway where they could walk through at the end of Woodside Crescent to Mathoura. This was general knowledge that you could walk through. When we told people we were moving into Woodside, some people said you have got access at the end of the street.

[43]

Mr. Reginald Edward Grouse is retired and lives at 21 Woodside Crescent and has done so as owner and occupier since 1 April 1963. He said he had used the pedestrian walkway along the south side for over 25 years, that is since about 1974. Usually once or twice a day, when he is in residence, to gain access between his house and the Toorak Village. He said really much the same thing as every other witness concerning the pathway, accessibility, its width, the dog-leg, the scraggly garden bed and the non-obstruction in any way of the access through the walkway. He described it as a "small display bed" at the end of the path. He used it because everyone else was using it at the time. He knew the block of flats was tenanted and he used to say hello to the people who lived in the flats closest to the walkway. His dog was interested in their cats. Over the years he had observed gardeners and other workmen working on the property cleaning it up and he also tradesmen working on it who would have observed him using the walkway. He believed the tenants with whom he had exchanged pleasantries and the workmen were aware that he lived in Woodside Avenue. They observed him as he moved along the walkway. He usually did that to buy the paper in the morning and give the dog a walk or to go to the post box in Mathoura Road. He also used to go to a doctor at the end of Mathoura Road and to go to other streets like Wallace Street and Carter Street. He had been an architect but his place of business was not in the village. Like many of the others his son used the walkway to go up to get the tram in Toorak Road. It was blocked off this year. Mr. Grouse had a strip of land that ran from his back yard across the top of No. 19 Woodside to Tintern Avenue when he purchased No. 21. Thus he has had a right-of-way available to him ever since he lived in Woodside to go north via Tintern Avenue rather than down to Mathoura and then north to the Toorak Village. The Tintern Avenue entrance was really his front entrance, he said and the Woodside Crescent entry to 21 is the car entrance. The sun room and sitting room in which he sat was about half way down his house. It was more convenient for him to go out through Mathoura Road if he were going to the doctor or the post box or anywhere rather than the actual Village. He was living at No. 21 Woodside at the time of the construction of the flats in the early 1970s. There had been a house there before, he believed. When he first commenced to use the walkway, the garden bed was in existence, but, he did not use the walkway until 1974. It seemed to me from this witness's evidence that he was not in a position to know when the garden and rockery was erected, that is whether it was when the building was constructed or at some time in 1974. He denied any knowledge of any dispute between the owner of the apartment block and the residents of Woodside Crescent as to the driveway. He never met the owners, had no knowledge about anything. There did not even know who the owners were. There was tendered a letter in support of his application of the appeal to VCAT but, fairly read, there is nothing in it contrary to the essence of his evidence. He said on re-examination that some years before when Rosuma was the owner, the owner or the agents had put up a notice about the renovation of the block of flats, being a notice in general form. He thought it was an application for strata title but it was on the glass panel beside the front door and could be seen very visibly as he walked past the doorway.

[44]

Elizabeth Anne Bishop lives at 248 Williams Road, on the corner of Woodside Crescent and Williams Road, and has lived there since 1972. She used the pedestrian pathway twice a day at least to walk her dogs, post mail and visit restaurants and shops. Ms Bishop is an occupational therapist and has students at her home for lessons. According to her, they use the pedestrian pathway to walk to and from her home. She always believed the pedestrian pathway to be open for free access to people walking between Woodside Crescent and Mathoura Road. She had never been challenged, or barred, had done it daylight, had no consent and there was no obstruction to her. She described the usual method of walking on what was, notwithstanding attempts by defence counsel to say the contrary, a very simple journey with a single dog-leg on the way between Woodside Crescent and Mathoura Road. She recalled the garden bed being put in. Most of her students were primary aged students coming from Glenmorgan and Toorak Primary, some alone, some accompanied. They used that way perhaps for convenience but also for safety rather than going down Williams Road where there is a lot more traffic. She walked her dogs, labradors, every morning and night. She recalled gardening renovations being carried out at Mathoura Road four or five years ago. When the flats were rented they were very untidy and the owners tidied the place up and put bench seats on the Mathoura Road side. Sometimes, because the plants in the bed were degraded, one could walk through the bed without going round the dog-leg. She walked the walkway because it was the accepted habit of all the people in the street. Lots of people were walking through to avail themselves of easy access to the Village. There was never any sign to the contrary and it was the accepted route that everyone took. Ms Bishop wrote out for one McKillop in her handwriting, a statement dictated by him about events that he wanted to make (not to this Court). His writing was so poor, she said, that she wrote it so it could be understood. It never did emerge whether or not Mr. McKillop was capable of writing. Ms Bishop took the pedestrian route through to Mathoura because she did not wish to walk up the hill in Williams Road and then walk up the hill to the Toorak Village because of a respiratory condition namely lung damage after pneumonia.

[51]

Other deponents were as follows: Joseph Templin, postman, who used the walkway every day for deliveries from the period 2 December 1975 up until the safety fence was erected. Susan Smith of 7 Woodside Crescent, who with her family, keen walkers, used the pedestrian pathway daily to go to the business, social and entertainment services at the Toorak Village. Neil Butler, a pharmacist, who has operated a pharmacy on the corner Toorak Road and Mathoura Road since 1976, and who lived at 81 Mathoura Road since 1984. According to Mr. Butler, since 1976 he has believed it to be common knowledge that the pedestrian pathway through the block of flats at 91 Mathoura Road provided access to and from Woodside Crescent and that since 1976 home deliveries from his pharmacy had been made along that pedestrian pathway at least 14 times a week to Woodside and surrounding streets. Geraldine De Malet of 36 Woodside Crescent, is a management consultant who has owned that property and occupied since November 1988 and has used the walkway on a regular basis in the same way as the other residents referred to has. According to Ms De Malet, when she purchased those premises the agents R.T Edgars advertised the property as being a short flat walk to the Village and the property was sold to her as having access to Mathoura Road through the walkway. She stated that the previous owners, Mr. and Mrs. Whitehead had used the walkway during their tenure and Ms De Malet had herself previously lived in a local street, Fairbairn Road, and had used the walkway to gain access to Woodside Crescent. She claims that from her own knowledge and experience, large numbers of Woodside Crescent residents had used the walkway without interruption or incident on a regular basis for over 20 years. Ms Kerrie Gillespie owned and occupied with her family 12 Woodside Crescent between 1974 and 1989. She twice daily used the pedestrian pathway to access the services and facilities of Toorak Village and to walk her dogs. She always believed the pedestrian to be open to free access to people walking between Woodside and Mathoura. Joanna Ingram lived at 4 Castle Street, South Yarra, in 1991 and used the pedestrian pathway at 91 Mathoura Road from Woodside Crescent in order to go to the Village, believing it to be for public use. Her aunt had done the same thing and she claimed it was common knowledge in the area that it provide walk-through access.

[53]

I now summarize the principal evidence called on behalf of the developer. The first witness was Mr. Warren Thompson, director of Sunshine Retail and in effect its owner. Mr. Thompson swore an affidavit with exhibits on 17 June 1999 the substance of which was to detail the history of the dispute between the residents of Woodside Crescent and Sunshine as the residents fought to maintain their right of access through 91 Mathoura Road. He confirmed that the plaintiff purchased the land on 3 July 1998 and went into possession on 3 August 1998 for the purpose of redeveloping the apartment block. He stated there were 11 car spaces on the site, five of which provided undercroft parking and that the only vehicle access to 91 Mathoura Road was from Woodside Crescent. Part of what was proposed involved the construction of a high fence along Mathoura Road, remodelling of the car spaces, construction of the security wall and gate between the southern wall of the building and the southern boundary of the land and the installation of automatic security gates at the rear access to Woodside Crescent, Toorak. He also details the history of the various applications to and appeals from the decisions of the City of Stonnington to grant a planning permit, including the Victorian Civil Administrative Tribunal hearing. It should be said that the Tribunal made it clear (and indeed the parties had accepted) that the right of access over the land of the Woodside Crescent residents was not a matter for consideration by the Tribunal which acknowledged that their rights in that respect would have to be established "in another place". It appears from the evidence that the security wall was erected on 19 May. Certain paragraphs of this deponent's affidavit were excluded. Mr. Thompson's affidavit and oral evidence indicated that he had not been informed by the previous owner Rosuma or their solicitors of the existence of a right-of-way through No. 91 Mathoura Road but had not made any complaint about that.

[55]

He first consulted Minter Ellison about town planning issues involving that access. Mr. Thompson admitted that he took the gates off the landscaping plans, he denying this was because he had formed the view that the question of an easement by the Woodside residents had to be dealt with outside the planning area. He claimed they were taken off the landscape plan because the application that was being made to the City of Stonnington related to removing three car-parking spaces. Notwithstanding that he agreed that he had received a letter from Mrs. Nola Byrne stating that she would never have purchased Unit 3/23 Woodside Crescent if she had known there was any danger of losing the right-of-way. Mr. Thompson said he did not read that as asserting a right-of-way. He agreed he told Ms Peterson to make it clear to the City of Stonnington in the plans that the gate were not part of the planning application because they had the right to put up gates and boundary fences at any time up to a height of 1800 millimetres. As the owner he said he did not want anything in the plans other than showing matters that he had to have a permit for. So he directed her to take the gates off the plans and they would worry about that later. He appeared to deny that the gates were taken off the plans to delude residents into thinking that their access would not be lost. He agreed that he did not want to be delayed by people making objections concerning the gates. The orange safety fences were put up in January. He agreed that that was to stop people walking onto a construction site with possible attendant risks. He agreed that the gates were on an earlier plan and it was after his conversation with Mr. Byrne that he gave the direction for the removal of the gates from the plan. But in fact, he said, the City of Stonnington did not take them off the plan. Exhibit DD, the landscape of the 9 September 1998 has no gates on it. Mr. Thompson said that the landscape plans are not as detailed as other drawings.

[60]

Coleen Yvonne Peterson, a town planning consultant with S.J.B. Planning Pty. Ltd. gave evidence for Sunshine Retail which had retained S.J.B. to seek the necessary planning permits to proceed with the proposal to renovate the apartments. She verified the factual matters about a letter written by her on 24 August 1998 having inspected the property file of Stonnington City Council. Her affidavit of 5 August said that the development plans had set out the proposed construction of security gates at the Woodside Crescent entrance to 91 Mathoura Road and the proposed construction of a security wall and gate between the southern wall of the apartment building and the southern boundary of the property. Notice of the application for the permit was put on the front of the property on 9 September 1998. As early as 16 September 1998 she was told by the Stonnington City Council that complaint from a Woodside Crescent resident about losing access to Mathoura Road had been made. Thompson had told her that he was happy to remove the gates from the plan and resolve the issue at a later date. She said that Sunshine Retail did not need a permit to erect the gates and wall around the property so the security wall and gates remained on the development plans which were used by Sunshine Retail in its application for a planning permit. On 17 September 1998 she wrote the letter previously referred to that Thompson was prepared to ensure the gates were not erected although he maintained the pedestrian access was not a right of the residents in Woodside Crescent and she proposed the deletion of the gates from the plans. Sunshine Retail delayed the building of the wall between the southern boundary and the main entrance of the apartment block because Sunshine Retail had an application to dispense with two car-parking spaces along the southern boundary of the property. Ms Peterson's evidence was there were 23 objections lodged to grant Sunshine Retail of a planning permit as set out in paragraph 14 of her affidavit of 5 August 1999. They included the claimants in this case.

[61]

Ms Peterson described the garden bed as appearing to her to act as a form of visual and actual barrier to access from Mathoura Road to Woodside Crescent although she admitted that it did not prevent persons walking through. She claimed that during her inspections of the property she had no reason to believe that the people she saw were other than tenants using the pathway. With respect to the letter of 17 September 1998 written by her (Exhibit BB), she said that Thompson's instructions were that he was always going to provide secure access to the apartments and thereby erect the gates at a later date, but since the gates did not require a planning permit it was not necessary for them to be in the plan but they had been put on the plan as part of the overall scheme of the development. She said that she told residents who contacted her that Thompson's intention was to remove the gates for the time being but that it would be his intention in the long run to provide secure access to the apartment building. The landscape plan of 9 September 1998 did not show gates at the Woodside Crescent end or the Mathoura Road end. The development plans prepared by the architect did show gates at Woodside Crescent. The Council were asked to strike the gates from the plans but the Council did not take the gates out. Then, when the landscape plan was lodged, it did not show the gates. She expected Ms Lee at the Stonnington Council to strike the gates from the plan herself because that was a common practice. Ms Peterson had worked at the Stonnington City Council at one point in time. She would have expected that her letter of 17 September to the Council would be on the Council file. She agreed that the reason for taking the gates off was to deflect the concerns the Woodside Crescent residents had had because the gates were no longer a planning issue. When she wrote on 29 October to all the residents of Woodside Crescent who were objectors, the erection of the gates or the gates themselves were not mentioned (Exhibit EE). She said it was not she who supplied the information to the Council that the residents had enjoyed pedestrian access through the flats since they were built in 1970.

[77]

Mr. Peter Holder worked for Trebilcock Purdy between 1969 and 1974. Trebilcock ultimately merged with George Humes which ultimately became Kay Burton Hume. He said he commenced to manage the property in 1974 from the file as it had been built some years previously. The agents arranged and maintained the leases for each of the 11 apartments, collected the rents from tenants, acted as a liaison between the tenants and Rosuma, conducted inspections every one to two weeks of the property and dealt with complaints and problems. As the property manager Mr. Holder attended to all of those matters and he was involved in the day-to-day management of the property from mid-1974 to 1982. He said if the apartments became untenanted there was no difficulty in re-letting them. He described the area through which the walkway went in language very like that of the other deponents. He claimed not to be aware in the period in which he was managing agent, of residents using Woodside Crescent using the property for access and never reported to Rosuma that it was. The agent, but not Mr. Holder, was responsible for arranging persons to maintain the surrounding areas for gardening and car parking. If plumbers, painter, or glaziers or whatever trade was needed, they were called on an ad hoc basis. He said if tenants left and new ones had to be obtained it might be virtually immediately, others it might be some weeks. It was not a difficult letting proposition, they were basically three-bedroom flats and reasonably attractive. There were other persons in the firm, in his department, who went to the property with tenants and met tenants. He was not able to identify persons who were not tenants on the property or what was their purpose in being there. He was aware, however, that Woodside Crescent was a cul-d-sac with an open entrance into 91 Mathoura Road. Asked whether or not it was obvious that it was a convenient shortcut, he answered that by saying that there was nothing to stop people coming through and it was perfectly possible that they did, he just did not recall having seen anyone do it. He claimed that he had never heard of properties being sold on the basis that there was a walk through or that estate agents advertised sales of property in the area on that basis. He had never heard anyone say that people used it as a walkway. He said he had some difficulty in remembering, which is why his affidavit said he did not recall even of being aware of tenants much less residents. He said he would recognize a tenant because he got to know most of them towards the end but did not know their friends or relatives. Mostly they would telephone about their problems and he would arrange for someone to go down. Sometimes he might meet the tradesman on site or to check afterwards to see he had done the right thing. He had perhaps about 20 blocks like this but this was the biggest one. He agreed that he could not remember inspecting the flats every time, he must have "had an assistant". However, his office was not in Mathoura Road but was in High Street, Malvern. Most of the tenants were working people, the leases were for six or twelve months. So far as new tenants were concerned, that was normally handled by one of his assistants and Mr. Holder was mainly on maintenance and cleaning supervision. That included a gardener who went regularly and other maintenance people for things like spoutings, cost of maintenance and the gardener would be deducted from the net amount to be paid to the owner and that included painting and other maintenance matters. He agreed that he would expect the gardener or maintenance persons to report matters to him that ought to have been reported. He had visited the property to remove junk mail from time to time because the letterboxes invariably got full of junk mail. He never parked in Woodside Crescent and walked in. He did not seem to know whether he knew then that the property had no gates on the north or south. He could not recall as to whether Pitard discussed the letters with him, although he dealt with complaints from tenants. Mr. Pitard was presently the manager of Stanton Hillier Parkinson.

[79]

Nicole Devitt is the property manager for Kay & Burton Pty. Ltd. which has been the managing agent since 1986 when Humes sold its rent roll (which included this property) to Kay & Burton. She was managing at the time when the property was sold by Rosuma to Sunshine Retail and until the last of the tenants vacated in September 1998. She produced a form of lease that was used between 1993 and 1996 and from 1996. She said the overall vacancy rate within the apartment block was low. If the fixed term expired, the majority of tenants held over on periodic tenancies. Ms Devitt visited the property frequently from 1996 on to deal with complaints or problems and conduct inspections, review maintenance problems, see that the property was properly cleaned by the contract cleaner and maintained by the contract gardener. In a supplementary affidavit she said much the same thing as others about the pathway and the vegetation. She did not see any Woodside Crescent residents walk through but she had seen Mrs. Nola Byrne. She was unaware of anyone using it other than the tenants. She had complaints from Mrs. Byrne about rubbish on the boundary. Ms Devitt conveyed a strong impression of seeking to argue the developer's case in the way she answered questions. She managed the portfolio of 250 individual properties which was a standard portfolio in her firm. They were all residential. She placed the most of the tenants that were there in the last two to three years but about half of those tenants left during that period which led to cleaning and re-letting, sometimes showing people through but often she did not go with the tenants to inspect the property. About half of the properties would be vacant for two or three weeks during that period of two years. The gardener was there for a whole day. The landlord had to pay for the gardener and the contract cleaner. She said that the firm had a number of properties in Mathoura Road and she was constantly backwards and forwards down there, quite apart from the regular and routine inspections every six months. She said she did not ever remember identifying anyone on the property other than the tenants. This was, if true, a remarkable state of affairs in view of the number of persons who apparently went through the property from Woodside Crescent each day. They were the selling agents for the apartments and the new development. Ms Devitt claimed that she would have been surprised to hear that people walked through 91 Mathoura Road because it would have been trespassing. When the property was purchased their instructions were to let the leases expire. Most of them were then periodic tenancies on a month-to-month basis. At that time there was one vacancy and that had been unlet for six weeks and had not been renewed. She used to get her instructions from Mrs. Unger. She was not showing any new tenants through the property in the last six months, possibly the last 12 months. Most of the leases were 12 month leases. No one ever expressed any concern to her about the lack of security because of the absence of gates at the Woodside Crescent end. She was the only person from July 1996 on who was involved in the day-to-day management of the property.

[95]

Counsel for the developer argued that a letter of 15 March 1999 from the claimant's consultant had referred to some "arrangement" made about use made at the time of redevelopment in the early 1960s, supplying evidence of permission. However, other evidence in the case made it clear to me and I so conclude that there is no credible evidence of any arrangement or permission for Woodsiders or anyone else to use 91 Mathoura Road as a cut-through. All evidence touching permissive arrangements was hearsay, folkloric and incapable of providing acceptable evidence on which to found any conclusion. The same may be said of McKillop's evidence, either in the statement written by Bishop or his oral evidence. In some cases permission might be inferred (see Fullwood Nominees Ltd. v. Teitz Vic.Conv.R. 63-848-9 and 852). The thrust of the submission was that the claimants had to prove that there was no permission. If this is correct, then they have proved it sufficiently. Reference to cases such as Healey v. Hawkins (1968) 1 W.L.R. 1967 are of little assistance because here there was no permission given to anyone by anyone. The suggestion was also made that it might be concluded that the use was merely permitted as "neighbourly tolerance" or "tacit consent", a concept addressed by Gobbo, J. in Neville v. Dale (1990) V.Conv.R. 54-382. The developer's post-trial written submissions ignore the realities that there was no admissible evidence of any permission or arrangement. On the contrary, the flavour of the evidence was entirely this, that "no one said we could, we just did and no one stopped us". One of the "suggestions" was that the Woodside Crescent residents were given the right to walk through as a trade-off or compensation for having to put up with the motor vehicles of the tenants in 91 Mathoura coming down Woodside Crescent to enter the car-parking area of the apartments instead of coming in from Mathoura Road. This may well have been a feasible solution if there was a dispute. But there is no admissible evidence of any dispute, much less this arrangement. I therefore do not propose to re-visit the issue of permission by the owner of the servient tenement again.

[97]

However, it is my conclusion that the presence of the walkway did accommodate the dominant tenements in this case. It was not much in dispute that it was and is certainly much more convenient for residents in Woodside Crescent to walk down through 91 Mathoura Road rather than go back, walk up the hill in Williams Road to Toorak Road and down Toorak Road to the Village. In no case am I of the view that the walk through was purely recreational. Many of them used it in association with business purposes in Toorak Village, or to go to doctors, or, in cases of almost every one of them, to use the post box in Mathoura Road, or to eat evening meals in Toorak Village restaurants, or they used it with their children to catch trams in Toorak Village and the various other matters referred to in my summary of the evidence. The latter aspect was particularly the case in the 1970s. I accept that for some residents it afforded greater convenience than others and that for some (the Wulffs, Mr. Grouse) there were other ways to the north and east other than going back to Williams Road. But in my view, this easement did and does accommodate the dominant tenements. Having regard to the evidence, including the exhibits which amply demonstrate the considerable advantages in Woodside Crescent residents of being able to go to the east and north without going back to Williams Road, the alleged right of way does, in my judgment, increase the value of the dominant tenements and is connected with the normal enjoyment of it. In the simplest language, it was and is very "accommodating" to be able to go through 91 Mathoura Road if one were going to the Mathoura Road post box or the school, or the park, or to the tram stop in the Village, and to do business there and to shop and eat there. To walk only 200 metres and not battle to park one's car was, to say the least, a notable benefit and advantage. It "accommodates and serves" the dominant tenements in Woodside Crescent. See In re Ellenborough Park 1956 1 Ch. 131. The utility and benefits conferred are clearly established in this case.

[120]

This may be correct, but the developer chose for itself to call the evidence that it did, and to explain away the failure to call others. Even confining oneself to the facts, and knowledge of them, to the period between 1974 and 1979, it is clear that residents of Woodside Crescent moved daily through 91 Mathoura in substantial numbers. Mr. Cawthorn claimed that there was a case for about 50 persons a day moving through although this was truer of later periods. Although no claim could be brought by non-residents, (no dominant tenement) it cannot be overlooked, when addressing knowledge and acquiescence, that the pathway was moderately busy. The evidence was that most of the tenants worked. The local postie, the chemist, the delivery man to Woodsiders, all walked through virtually daily, in addition to the local residents. Mr. Batters, the estate agent, sold houses in Woodside Crescent in the late-1970s with reference to the cut through to Mathoura Road. Bennison did so later, also. The managing agent for Rosuma has been fundamentally the same agent throughout in different emanations - Trebilcock Purdy, Humes, Kay & Burton - since 1972. It seems surprising that a long-established estate agent, managing large portfolios of rented properties, and handling lettings, based in Toorak Village would be oblivious to what many other locals, including estate agents, all knew. People were not as security conscious or concerned about privacy in the 1970s. It was, in my judgment, not necessarily a matter of concern to the owner or their agents that residents from Woodside Crescent, or for that matter other persons, cut through the block. Mrs. Unger said as much, subject to tenants' objections. It seems that there were no objections from the tenants. None were mentioned by the various witnesses from the agent's office since 1974. But I am satisfied that the owner did not know of the slowly growing use between 1973 and 1979, or for that matter, at any time until the sale to Sunshine Retail had taken place.

[127]

Mrs. Unger was called to give evidence. She and her husband were the directors of Rosuma. Mr. Unger died in 1980. Mrs. Unger denied any recollection of these events, including receipt of the letter from the Council giving any instructions to the managing agents. She ultimately found that letter in some papers in 1999. Pitard's letter stated that the owners requested the managing agents to deal with the matter. However, this was then an issue dealing with the Council's seeking an explanation for breach of the permits provision for 14 rather than 11 car parks. That is, it was about cars and not people and was very likely to have been so viewed by Mrs. Unger. Her evidence indicated that her husband was in poor health even at that time and it was she who attended to the property. She was a regular visitor to it. In her evidence she accepted that the garden bed was there but was not a barrier to pedestrian access, either visual or physical. Mrs. Unger's evidence was that, over the years when she visited the apartments, she parked her car in Woodside Crescent and came into 91 Mathoura from there. She knew there was a free and uninterrupted walkway between Woodside Crescent and Mathoura Road and was aware there were no gates. But according to her evidence, when she saw people there, she did not know whether they were tenants or not. She stated she would not have cared about the "Woodsiders" walking through, if the tenants did not care. Mrs. Unger was, in my judgment a truthful witness although naturally her recollection is likely to have been affected by the lapse of such a length of time. However she was remarkably focussed for someone of her years (she was over 80) and I accept her evidence was that she did not know that Woodside residents, or anyone else, customarily walked across to Mathoura Road. It was put to Mrs. Unger that she had an interest in giving that evidence because the company Rosuma had failed to disclose the possible easement when the sale was effected to Sunshine Retail. She denied that anyone had spoken to her directly about Rosuma's failure to disclose the easement but they did talk to her solicitor. However I have formed the view that Mrs. Unger was a truthful person and that she had no knowledge of the use by the Woodside residents of the walkway.

[128]

Mr. Cawthorn for the residents argued that an inference should be drawn from the letters of 10 and 18 December 1974, and from Mrs. Unger's occasional visits to the property when she saw people walking along the path who might have been residents, and from the fact that she knew the Woodside entrance was open, that Mrs. Unger had actual knowledge of users. However I have reached the conclusion that neither Mr. Kanis nor Mrs. Unger had any actual knowledge of the use by residents of pedestrian access through the property. Both denied it and I accept those denials. In any event, it was not submitted on behalf of the residents that Kanis had any actual or constructive knowledge of users during his period of ownership, or that the agent employed by Kanis (Trebilcocks) had any actual knowledge of users during that relatively short period. Mrs. Bishop, as I have indicated, commenced using the walkway in 1972, possibly April, and her evidence was that at that time both the apartment block and the garden bed were constructed, and that the block of flats was apparently occupied. There is no evidence that either Mr. Kanis or Mrs. Unger had any knowledge of her use, or of any other one of the claimants. Mr. Grouse's evidence was that he was reasonably sure that the garden bed was constructed when the building was constructed and that was when the landscaping was done. All of this strongly supports, it seems to me, that Mr. Pitard's version set out in the letter of 18 December 1974 was incorrect. It also fuels the inference that Mr. Pitard was putting forward an apparently plausible explanation for non-compliance to the Prahran City Council and did so successfully, as the Council let the matter drop. The consequence, however, is that even had Mrs. Unger been aware of the contents of the letter of 18 December 1974 (which she denied) it could not constitute evidence of actual knowledge by her of use by any residents of pedestrian access through the property because Pitard did not have any actual knowledge of this matter, capable of being imputed to Rosuma.

[129]

Confining myself for the moment to the knowledge of Rosuma (having already indicated I find no actual knowledge of user in Rosuma) the argument was advanced that I should conclude that Rosuma had constructive knowledge of the use by the residents prior to the commencement of the relevant 20 year period. I put aside for the moment the issue as a matter of fact and law of constructive knowledge by the servient owner's agent. Mrs. Unger gave evidence she saw people using the pathway but did not know whether they were tenants, strangers or Woodside Crescent residents. The case was put that all of those matters, coupled with the absence of a gate and the possibility of a shortcut, should have put Mrs. Unger on inquiry that use by the residents of the walkway was likely and that her failure to make inquiry was negligent. In effect, Mrs. Unger said she only attended the property when a "drama" had occurred or she was asked by the agent to attend for some purpose. I do not judge this to be of any great frequency and I am cautious about drawing the inference, simply because the entrance from Woodside had to be left open and was open to permit car access, that it was apparent that the Woodsiders" were using the pathway to cut through to Mathoura Road. Naturally, because of the concrete apron and concrete paths, there had been no track worn into the pathway to suggest use of it as a cut-through, no wheel tracks, no gates, that is, the sort of indicia that were considered in cases like Gangemi v. Watson (supra); Neville v. Dale (supra) and Diment v. Foot (supra). It seems to me that on the sporadic visits made by Mrs. Unger herself, that is, as the director and one of the two moving spirits of Rosuma, it was a reasonable conclusion that the people she saw walking along the pathway were tenants or tenants' guests or on building business. Another way of putting it is that it does not appear that there was much to put Mrs. Unger on inquiry as to whether those she saw on the pathway were trespassers. The existence of the opening of the back fence and the apparent attractiveness of the shortcut to Toorak Village was not, in my view, sufficient to fix Rosuma with constructive knowledge of user, if they failed to make any inquiry. Most of the cases about constructive knowledge of user by the owner are not cases of blocks of flats surrounded by open common property, nor large residential properties right in the heart of a busy urban environment. Moreover, it was argued by counsel for the developer that in any event constructive knowledge of user by each claiming resident would have to be demonstrated. I do not find it necessary to pursue that further as in my view the circumstances were not such as to have put Mrs. Unger on inquiry on the occasions which she attended and saw a few persons moving along the pathway.

[137]

This passage is adopted from Mechem Law of Agency (2nd ed.) s.183, a U.S. publication. However, the comment on Article 97 in Bowstead is more cautious about its application, citing from Palles, C.B. in Taylor v. Yorkshire Insurance (1913) 2 Ir.R. 121 "when a question of notice, or knowledge, arises, we find ourselves overwhelmed in a sea of authorities, not altogether reconcilable with each other". If, as I accept to be the proper legal conclusion, that information "constructively" acquired cannot be imputed to the principal, then reliance by the claimants on the alleged observations by gardeners, or painting and maintenance men, does not advance the claimant's case at all. There was some evidence from the Byrnes, Maryanne Wulff, Leon Haskin, Mr. Grouse and Ms Bishop about observing, and being observed by, some workmen who were apparently engaged by the estate agent on behalf of Rosuma, which paid for the work by having its cost deducted prior to the remission of rentals. There was also some debate as to whether or not such men were employees or independent contractors. Mr. Holder said the expectation was that such men would report anything unusual although the evidence falls well short of there being any legal obligation on them to do it. In addition, any evidence of any knowledge by a gardener or maintenance person or similar person, or by reason of complaints about rubbish on the property, will not be of any benefit to the claimants if the knowledge was acquired after 1979. Mrs. Byrne gave evidence of a gardener and a maintenance person seeing her use the pathway but this was "more in later years because the tenants became more messy" or a period about five or six years ago. I do not regard Mrs. Byrne's complaints, well justified as they may have been, as necessarily indicating to anyone that she was asserting any kind of right. She did not recall ever meeting an agent on the property and did not identify the time when she complained about rubbish to agents. One such complaint was about rubbish in 91 Mathoura against her back fence.

[146]

If I am wrong about the views I have formed concerning the absence of actual and/or constructive knowledge in the owner of the servient tenement, the claimants are still faced with a number of difficulties which arise from the simple fact of that the servient tenement has been tenanted from the commencement of the period of alleged long user. The authorities appear to suggest that in those circumstances it is unreasonable to presume the grant of an easement. Put another way, it is suggested in some of the cases and monographs that any user must be against the fee simple owner, not the tenant or tenants. Accordingly a claim for an easement by prescription must fail if the servient tenement is tenanted at the time of the commencement of that user. See Megarry and Wade at 872-3; Pugh v. Savage (supra) 382-384. Even if the premises were not tenanted but the owner was not in possession or occupation at the commencement of the period, there is some authority to the effect that no presumption of the grant of an easement should be made. Non-occupation by the owner was described by Powell, J. in Hamilton v. Joyce as being an insuperable obstacle to a claim for a prescriptive easement. In Piromalli v. Di Masi (supra) the position was accepted that the user must begin when the owner of the servient tenement is still in possession. I will shortly look at these authorities a little more closely. One might provisionally indicate that the proposition as stated seems to be reasonable because if the owner of the servient tenement is not in occupation at the commencement of the period of the claimed user the owner is not in the position to prevent that user whether he has knowledge of it or not. It should not be overlooked that an easement arising under the doctrine of lost modern grant is a perpetual easement; the courts should not be astute to find it. Thus the argument advanced for the developer in this case was that where there is a series of residential tenancies in a block of flats combined with either a lease or licence of external common property such as car parking areas and pathways, the absentee servient owner is not in possession of occupation of the property in such a way that might be said that he or she or he have acquiesced. A corollary of that issue is that the owner of the servient tenement lacks the legal right to prevent the use of it by trespassers once the property has been let to tenants.

[156]

Essentially the submission made on behalf of the developer was that, not only was the owner of the servient tenement not in possession of the common property at the time when each period of alleged user commenced, but the owner of the servient property did not ever subsequently take possession of the common property. It was put that the only right that Rosuma had to enter upon the external common property was a licence to do so to enable it to perform limited tasks under the lease such as inspections, maintenance and other obligations with respect to which an implication would have to be made. This, it was put, does not constitute possession of the common property; and that both possession and the right to possession of the common property lay with the tenants of the respective units in the apartment block, to the exclusion of the lessor. It was further put that even if the tenant's rights over the external common property (which essentially were the car-park areas and the path-ways), it was only the tenants, so the submission ran, that had the unrestricted right to use, enjoy and occupy that common property. Thus, it was submitted, those occupiers of the servient tenement (not the owner) could not grant a perpetual easement nor could the owner of the servient tenement who was out of possession, relying on the statements by Burt, C.J. in Piromalli. It was also argued that in the case of a subsequent tenancy, or licence, over the land after the servient owner went out of possession, unless knowledge prior to the servient owner going out of possession was established there could be no easement. The argument was advanced that the absent servient owner, Rosuma, had no right to commence an action in trespass against the residents of Woodside Avenue, even it had been known what they were doing, and thereby lacked the power to prevent user. The power to restrain trespass lay with the tenants. It was thus put that Rosuma had no knowledge of user before the lease of the units and the surrounding common property was entered into because the leases were in existence when Rosuma purchased the property.

[158]

It was argued that the external common property was subject to a lease from the moment that the first tenant took a lease of the unit and that thereafter all subsequent tenants were joint tenants or tenants in common with every other tenant of a unit, of the external common property. The owner had only the limited rights consequent upon its duty to make the premises safe and its rights to inspect and with tenants' consent. I accept that Pugh v. Savage and Piromalli are authority for the simple principle that time does not begin to run against a servient owner who is not in possession and, less certain, who is not in occupation. In Hamilton v. Joyce (supra), Powell, J. accepted the correctness of the statements of the Court of Appeal in Pugh v. Savage and the correctness of the statements in Megarry and Wade. In that case, a lost modern grant easement of way over a rural paddock was sought. There had been a number of tenants of the owner of the servient tenement of that paddock. Powell, J. stated that it was an insuperable obstacle to the plaintiff's claim for an easement of way that for a long period of time, at least since 1913, the fee simple owner had not occupied either of the properties of which the paddock formed part. He seemed unconcerned about issues of knowledge or power to prevent, and based his judgment on the underlying principle that a fee simple owner not in occupation of the land could not be presumed to have granted an easement, nor could a tenant or licensee in occupation of the servient tenement at the time of the commencement of user be presumed to have granted a perpetual easement to the trespasser. This case appears to be the strongest case on the issue of non-occupancy of the servient owner being enough in itself to deny the presumption of grant of an easement can be made. Piromalli was followed in Gangemi v. Watson (supra), That was a case concerning the level of knowledge of the owner of a laneway who said she did not even know she owned it. In the judgment of the Western Australian Court of Appeal (Seaman, J. with whom Ipp and Woolwork JJ. agreed) the court concluded that the legal owners nevertheless had constructive knowledge of adverse use because, although they did not reside on it, they technically had possession of it and that they had had the means of knowledge because of their knowledge of the presence of double gates in the fence around the relevant lot, described by the court as "being much more than a clue to an adverse claim". In that case the owner of the servient tenement had possession of the land because he alone was entitled to possession. That was a case of the court being satisfied on the facts as to the knowledge of the owner, the person entitled to possession. The argument advanced was that their position should be equated to that of absentee landlords and that the common knowledge of local residents could not be attributed to them. Seaman, J. stated:

[161]

Mr. Cawthorn contended that Rosuma owned the walkway and could prevent its use by anyone other than tenants or their invitees. The contention that Rosuma owned the common area comprising the walkway, the area where the cars parked and the areas to the south of the building is not to be doubted, but all of that was leased. He contended that the issue was that the landlord could have taken steps to indicate to the residents of Woodside Crescent that they were not legally entitled to use the walkway and that could have been done by putting up a sign or a gate. However, all of these issues of abstention from interference and the contesting of the right to use the walkway can only be driven by knowledge, actual or imputed, by the owner of the servient tenement. He relied on cases such as Lipman v. Clendinnen [1932] HCA 24; (1932) 46 C.L.R. 550; Taylor and Anor v. Liverpool Corporation [1939] 3 All E.R. 329; and Vial v. Housing Commission of New South Wales (1976) 1 N.S.W.L.R. 389. These are cases concerning injury sustained by persons on rented premises injured because of the failure of the landlord to make the premises safe. However, I would regard those cases as standing in a special position as the landlord has the right and obligation to enter upon leased premises in order to make them safe. The issue here is not safety but what rights in the landlord to the external common property exist. Similar cases such as Dowse v. Winyard Holdings (1962) N.S.W.L.R. 252 and Maurice Toltz Pty. Ltd. v. Macy's Emporium Pty. Ltd. (supra) are cases concerned with the special terms of the lease. To the extent that they are concerned with interference by the landlord with the use and enjoyment by the tenants of the demised premises, or concerned with an obligation to keep common areas of a leased building in a reasonable state of repair, nothing in them is concerned with the right to take action to prevent trespass, whether legal action or other action. It is also clear law that a landlord is not permitted to derogate from the grant of demised premises. In Dikstein v. Kanevsky [1947] VicLawRp 29; (1947) V.L.R. 216 O'Bryan, J. had to consider whether or not a tenant had an implied right to use a lift and concluded that not giving access to the plaintiff to the lift in the morning amounted to a derogation from the grant. Reference was also made to Arndale (Kilkenny) Pty Ltd v Gaetjens & Anor (1970) 44 A.L.J.R. 434 (a case discussed by me in my decision in Ergopex Pty. Ltd. & Ors. v. Meerkin & Apel (unreported, 12 December 1995) where a landlord who was the owner of a shopping complex leased to various tenants was restrained at the suit of certain tenants of shops in the centre from erecting stalls in the pedestrian mall so as to deprive the plaintiffs from using and enjoying areas which they could enjoy, absent those stalls. The High Court decided that that interference did infringe the rights of the tenants under the leases and held that the tenant's express rights were to use and enjoy as a common area a defined area of the appellant's land. The argument advanced here was that the landlord thereby had the right to erect a gate at Woodside Crescent, perhaps operated by tenants keys, on the basis that that would make the common area more safe, more convenient and more pleasant and would not derogate from the grant of a tenancy to each of the tenants.

[167]

These pronouncements of principle were suggested by counsel for the claimants not to represent the modern law, he relying on an article by V. Delaney "Lessees and the Doctrine of Lost Grant" 1958 74 L.Q.R. 1983. That article examined a number of cases and earlier texts relating to the Prescription Act 1832 (which does not apply in Victoria) and concluded that the cases had misunderstood the statute, the thesis being that an easement under the doctrine of lost modern grant could be granted by a tenant of the servient tenement. The cases, relied upon and referred to by Mr. Cawthorn, are primarily Irish authorities which appear to run counter to the tenor of authority in England and Australia. The article, in any event, was published prior to the decisions in Pugh v. Savage, Piromalli v. Di Masi, Hamilton v. Joyce and Gangemi v. Watson. It was also published before those editions of Megarry and Wade and Halsbury to which I have referred. Counsel for the developer argued that in the real sense of the words "occupation and possession" neither Mr and Mrs Kanis or Rosuma were ever in occupation or possession of either the units or the external common property at the time of the commencement of each period of alleged user, by which I mean the period of alleged user, of each of the claimants. This appears to be correct. The argument was put that this was so even if the relationship between the owner and the tenants of the external common property was a lease, a licence or an easement. If it was a lease, then the authorities indicate that the existence of the tenancy at the commencement of each period of user negatives presumption of the grant of an easement. If the relationship was one of licence or easement the servient owner was still not in possession or occupation of the common property (and the retention of a right to enter for limited purposes does not alter the situation). Some modern authorities appear to have given as much emphasis to "not being in occupation" as an independent and separate ground. Counsel for the developer argued that this was the modern law, irrespective of the knowledge, actual or constructive, of user by the servient owner or the power in the servient owner to prevent the user. I do not find it necessary to consider the extent to which that represents the present state of the law because, as would already appear, I do not make a finding of knowledge of user in the servient owner.

[171]

Both counsel referred to Exhibit 23, the standard form Real Estate Institute of Victoria Residential Tenancy Agreement exhibited to the Devitt affidavit, an agreement that was prepared in accordance with the Residential Tenancies Act of 1980 in Victoria. It seemed likely that many of the terms of this agreement were used in leases prior to the commencement of the Act and in fact put into the Act. The clauses in the lease were conventional enough, with the usual covenants of landlord and tenants including quiet enjoyment. The tenant is obliged to keep the premises in a clean condition and cannot use them for any purposes other than residential purposes without the landlord's written consent. It contained a clause that the tenant shall not do or allow to be done anything that would cause the shared service facilities to become obstructed or damaged. The tenants had to deposit rubbish, including cartons and newspaper, into appropriate rubbish receptacles. A tenant could not hang clothes, except in an area provided for the hanging of clothes. The tenant agrees to observe and to be bound by the Rules of the Body Corporate insofar as they relate to or affect the "use occupation and enjoyment of the premises and the common property". The tenant agrees to maintain the garden area and to water trees and shrubs, mow the lawn and remove garden rubbish from the property. Visitors cars are not allowed on the premises and a tenant is not allowed to park vehicles that leak oil without an oil tray. In agreeing to be bound by rules relating to the use, occupation and enjoyment of the external common property the implication is that the tenant had rights to use, occupy and enjoy the common property. It seems to me that it can be inferred that in relation to that agreement, and all previous leases, the landlord expressly granted to each tenant an unrestricted right to use, occupy and enjoy the external common property for various purposes associated with the lease of the units, including generally the garden area and surrounding space, just as a tenant of a house would, to occupy and enjoy the garden and the yard. Specifically, under that lease each tenant had a right, inter alia, to park a motor car, hang out washing in an appropriate place, store garbage bins, sit on the lawn, enjoy the garden or hold a barbecue, that the external common property was in effect the residential back and front yards. This involves some substantial assumptions about the application of these terms or their place in previous written leases but it may not be that fanciful. It seems reasonable to conclude that tenants must have acquired some form of fixed and irrevocable interest in the external common property because, if they did not, their rights of access to their units and their car parks could have been denied at the whim of the landlord. At least it would seem likely that the parties intended that each tenant had the right to use and occupy the common property for as long as they leased the units and the car parks. They also had other rights to use, occupy and enjoy the external common property and were certainly entitled to occupy it. Since the landlord was not in possession, this was the tenants' area to use and it would be surprising if the position were not that the landlord would not be permitted to assert rights to do the same thing on the common property as the tenants were, eg, park a car or hold a party in the garden. As I have indicated the claimants submissions as to what the relevant rights of landlords and tenants in relation to the external common property seem to be concerned with whether or not that characterisation permitted Rosuma to take steps to prevent the Woodside Crescent residents using the walkway for access to Mathoura Road, it being argued that if it was in a position to contest the use of the walkway and it did not, it would have acquiesced. However, it would seem to me likely that the absent servient owner could not prevent trespass by taking legal action. That right lay with the tenants.

[173]

There is nothing adventurous in regarding 11 separate tenants as being joint tenants, or for that matter tenants in common, of the pathway and surrounds of the building. As each new tenant entered into a lease the tenant acquired the right to use and occupy and enjoy the external common property with the other tenants from time to time. When a tenant left and was replaced, the same analysis applied. Whether it is necessary to analyse this on the basis of a surrender of existing tenancy over the external common property and a re-grant to when the relevant unit was re-let is not necessary to decide. See A.G. Securities v. Vaughan (1991) A.C. 417 where the Court of Appeal and the House of Lords considered the difference between joint tenancy and tenancy in common on the basis that a tenant's right to use, occupy and enjoy the external common property carried with it the right to exclusive possession of that common property as against the landlord but not the other tenants. There is no reason to suppose that the covenant of a quiet enjoyment was intended to exclude the external common property if the form of lease that prevailed at the time contained a similar clause to Clause 1 of the standard tenancy agreement. The premises would include not only the car park but the external common property of which there would have been an express grant by way of lease of it. If it were not expressly dealt with in that way such a right might be implied. (See Dowse v. Wynyard Holdings Ltd (1962) N.S.W.L.R. 2525; and Miller v. Ebser Products Ltd. (1956) 1 Ch. 304). In the case of a residential lease, particularly one which referred to occupation pursuant to the lease either of the unit or external common property it is not a difficult task to conclude that the intention was to exclude the landlord. In Maurice Tolz (supra) there was a lease by the owner to the tenant of part of a second floor of a Sydney commercial building. The landowner in that case granted to the tenant as a right in common with the lessor, the use of the common entrance way, stairways and lifts. Hope, J. characterised the tenant's right to use the entrance ways as an easement and not a mere licence. However, in the instant case, the right is unrestricted use and occupation of the common property; it is not simply confined to egress and access from the units as if the tenants (at least in the later lease) were entitled to occupation of the garden and the yard.

[174]

I have made reference to Arndale (Kilkenny Pty Ltd) v. Gaetjens (supra), a case in which by a standard form lease tenants leased from the owner of a shopping centre shops with the right to use and enjoy the common areas "in common with the lessor". In that case the High Court restrained the lessor's attempt to diminish the rights of the lessees to fully use the pedestrian malls where the stalls were sought to be set up. These were the equivalent of the common areas. In that case, however, the right of each tenant under the lease was in common with other tenants and with the lessor to use and enjoy the whole of the common areas. The tenants could not be excluded from it by the owner as part of the owner's use. In that case, Windeyer, J. analysed the rights that were granted, deeming them to have the general characteristics of an easement but appeared to stop short of saying that it was. It was more than a right of way, more than a means of access; it was an open space by which people may pass and re-pass. More specifically, he rejected what the claimants appeared to argue in this case that Arndale was a case about non-derogation from a grant. He thus did not seek to apply Gordon v. Lidcombe Development Pty Ltd (1966) 2 N.S.W.L.R. 9, a case relied on by the claimants. At first instance Street, C.J. viewed the quiet enjoyment covenant of the leased premises as including the right to the use and enjoyment of the common areas but, if it did not, he was prepared to imply a covenant to the same effect because in those cases both parties, that is, tenants and landlord, were given rights to use the common areas. But it did not appear to be denied that the rights had the characteristics of a lease over the common area, so the contrast in this case (at least in the written form of lease) is that there is no reservation of any shared right to the landlord, Clause 27 of the standard tenancy agreement strongly suggesting he did not have those rights of occupation. In Riley v. Pentilla [1974] VicRp 67; (1974) V.R. 547 home owners surrounding a reserve were granted expressly a "liberty" to use and enjoy in common with other home owners the reserve for the purpose of a garden or park. This was registered on title as easements. Gillard, J. characterised the right as easement and concluded that the owner ultimately intended to lease the reserve to all of the surrounding home owners. He decided that if the lots were all sold the owner would lease the reserve to all the home owners because it was not intended the owner would otherwise reserve to himself any right to use and enjoy it. It was contended here that that decision was consistent with the situation argued for here, that each tenant had a right to occupy and use the common property and to the exclusion of the landlord. See, too, Liverpool City Council v. Irwin [1976] UKHL 1; (1977) A.C. 239 where the House of Lords considered the circumstances in which there might be implied an easement for the tenants or their licensees to use the stairs or the lift and the rubbish chutes. It was an easement that was necessary for the reasonable access to and enjoyment of the property, and in this case the external common property. I do not myself see any particular difficulty in making the implication if the likely written lease did not specifically deal with it.

[176]

If the proper characterisation of the use, enjoyment and occupation of the common property is, as I have indicated, it would seem to me that the owner of the servient tenement had no power to prevent the Woodside Crescent residents from trespassing although a tenant might. In my view, the owner had no power to construct fences, gates or other structures unless it obtained the consent of the tenants. The lease of the common property must have extended to the boundary of the property at the Woodside Crescent entrance. While it would seem unlikely that an owner would be bound to erect structures to ensure quiet enjoyment of the unit, once it was let without being fully enclosed (to admit the cars) the landlord could not interfere with the quiet enjoyment of that common property. This meant that the entrance at Woodside Crescent could not be closed off. No obligation existed on the landlord to fence or erect control gates at the entrance to the property from Woodside Crescent. This is because only the tenants had a right to possession of that common property and they were the only ones entitled to bring an action of trespass against any of the claimants. As trespass "vindicates only violations of actual possession and is not concerned with protecting the interests of persons out of possession at the time of intrusion ... a purchaser cannot sue for a trespass occurring before title has passed nor a landlord during the subsistence of a lease", Fleming on Torts, 9th ed. 49, citing a number of authorities including Rodrigues v Uffton [1894] VicLawRp 106; (1894) 20 V.L.R. 539. The servient owner/landlord may bring an action in trespass if the reversion damaged. Passing over the land in this way would not cause such damage. (See Trindade and Caine, Law of Torts in Australia, 2nd ed. 104). All standard works on the law of torts express the point in much the same way. Even if the tenants' rights were a licence and not arising under lease, it is my view that it is only they who could bring an action in trespass to eject the Woodsiders from the land. All of this derives from the fact that it is the tenants who had the right of exclusive possession, and that the servient owner does not have any right of that kind, was never in actual occupation of the external common property and retains only limited access rights for specific purposes. And even if the servient owner did have some right to enter onto the common property and to put up a fence or a gate without the consent of the tenants there was no obligation to do so. Even if he was entitled, a servient owner would not be required to expend funds in doing so, having leased the common property in the state in which it was with the open fence. Failure to expend funds in that way could not amount to acquiescence. I say this because it was put that Rosuma could have put up signs saying the land was private land for the use of tenants only. One must doubt that would have made much difference since every one of the Woodside Crescent residents knew the property was not theirs to walk through and that it was the tenants and owners of the flats who had rights in relation to it. They all now say that they believed that by tradition and reputation they could do so with freedom and without opposition. Not one of them ever identified a reason why they thought that, other than the general belief. It does not appear any of them ever contacted the owner or the owner's agent to tell them what was happening or to have their rights clarified. Counsel's submissions never did identify the basis on which any assertion that Rosuma had power to prevent third parties from trespassing on the common property arose. If it did not have that power then, even if the knowledge of their use of the walkway existed, the requirement of acquiescence would not have been satisfied in this case.

[179]

Referring briefly to the ultimate claimants, I make the following observations. Mr. and Mrs. Wulff (Mrs. Wulff was late added as a plaintiff by counterclaim) had access to a laneway off their property to Mathoura Road and another one to Gordon Street so that they had a number of alternative routes to Toorak Village apart from going through the apartment block. Although it was argued that use of the walkway was not reasonably necessary for the better enjoyment by the Wulffs of their property, it was nevertheless a considerable convenience. However, the Wulffs have occupied over the years two premises in Woodside Crescent No. 2 and No. 38. In this case they commenced relying on occupation of 2 Woodside Crescent but ultimately relied upon use by the deceased Merle Thomas of their predecessor in title in respect of 38 Woodside Crescent. However, there was no evidence that anyone ever saw Ms. Thomas use the walkway. She was apparently a recluse and was so described. The law does not permit the aggregation of two separate dominant tenements of the Wulffs in No. 2 and 38 respectively. Thus they would have to establish the use by their predecessor of No. 38 in title of the walkway. In many circumstances it would not be difficult to infer that their predecessor in title to No. 38, Ms. Thomas, did use the walkway prior to 1986 but such evidence as there is does not permit of that inference here. Notwithstanding the arguments directed by counsel for the developer as to the use by Mr. Haskin, the Byrnes, Mrs. Wodetski (predecessor in title to Ms Abson), Mrs. Howcroft and Miss Crankshaw in relation to 30A Woodside Crescent that the use was one of mere preference and convenience, I am satisfied that their use and the use by their predecessors fulfilled the criteria of accommodation of the relevant dominant tenements. Shortly, I am satisfied that with respect to each of them the use of the walkway was reasonably necessary for the better enjoyment of their property. With respect to the Byrnes, an argument was advanced that their purpose in use had changed from one of personal convenience to one of business convenience. I do not accept the argument advanced that there could not be, as it were, an aggregation of different purposes in order to fulfil the accommodation requirements of reasonable necessity for the better enjoyment of the tenement. It is by no means unusual in easement of way cases that there are alternative routes that might be taken in order to achieve and fulfil the purposes effected by use of the claimed right of way. It is a matter of judgment and balance about these matters. Without condescending to the detail of each case (since all claimants have failed on the broader grounds which I have examined) the use by each one of them seems to me to have fulfilled the legal requirements, although the time of commencement of use varies in each case.

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Judgment (182 paragraphs)

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