Thomas v Symons

Supreme Court of NSW|2013-04-30|Before: Windeyer AJ, Mr J

Outline 1HIS HONOUR: The plaintiff and defendant are brother and sister. They have owned and lived on adjoining properties for 66 years. During this time the plaintiff has had vehicular and pedestrian access to her property over part of the land of the defendant. The defendant wishes to sell his property and has stated that access will be denied to the plaintiff in future. The plaintiff claims the defendant is estopped from denying she has a right of way. In the alternative she seeks the imposition of an easement by the Court pursuant to s 88K of the Conveyancing Act 1919. Other relief sought in the statement of claim was not pursued.

Uncontested facts 2The plaintiff is aged 88 and the defendant 90. The plaintiff is the owner of Lot 9 in Deposited Plan No. 10200. The defendant is the owner of lot 25 in the same deposited plan. 3In 1944 Mrs Thomas and her husband, who has since died, had purchased a block of land being lot 8 Beattie Avenue, Bulli for about £50. They intended to build a home there. The brother of Mr Thomas owned the next door land and intended to build a shop on his land. 4In 1947 the defendant, Mr Symons, was a fruiterer. He owned a truck, drove from Wollongong to the Sydney Markets to purchase fruit and vegetables and then returned to the Bulli or Wollongong district to deliver orders and otherwise sell the produce. 5In early 1947 Mr Symons found out four blocks of land in Bulli were available for purchase from the Official Receiver in Bankruptcy as trustee of a bankrupt estate. 6These blocks were not available separately. Any purchaser was required to purchase all four blocks at a price of £280. There is no dispute that Mr Symons agreed to purchase the four lots and subsequently agreed to transfer lot 7, now numbered 141 Princes Highway, Bulli to his brother Frederick (Fred), to transfer lot 8, now numbered 143 Princes Highway to his brother Leslie (Les), to transfer Lot 9, now 145 Princes Highway, to the plaintiff and her husband. Each of those lots was sold for £62.0.0. Mr Symons retained Lot 25, now 10 Tyrwhitt Avenue, Bulli. Its rear boundary abuts the rear boundaries of each of lots 7, 8 and 9. Frederick and Leslie were minors. 7The transfer of the four blocks of land to Mr Symons was apparently completed on 3 March 1947 although for some reason the transfer was not registered until June 1948. Mr Symons obtained a bank building loan secured on lot 25. Lots 7, 8 and 9 were each sold to the respective purchaser for £62, the three transfers being dated 21 August 1947 although not registered until October 1948. Mrs Thomas said that Mr Symons arranged for Mr J C Brown, a solicitor in Wollongong, to do all the legal work in connection with the three sales and it is clear that is so. 8I will come to the detail of the crucial events later but will cover them quickly here. Mrs Thomas says that Mr Symons came to Corrimal in early 1947, discussed his purchase, said that he wanted only lot 25, that Fred and Les were taking lots 7 and 8, and asked whether she and her husband would purchase lot 9 saying that access was available over lot 25. Mr Symons wanted lot 25 as it provided adequate areas to park his vehicles. 9Mrs Thomas said that she and her husband were quite happy with the block of land they had in Beattie Avenue. However, they inspected lot 9 and agreed to buy it if they could sell Beattie Avenue. Mrs Thomas said that in her opinion lot 9 was not so good as Beattie Avenue as it was covered in timber which had to be cleared, but nevertheless they agreed to go ahead with the purchase to help her brother out. 10From the time of purchase in 1947 Mr and Mrs Thomas accessed lot 9 by passing over lot 25 on its northern side. Mr Symons built his house on lot 25 in 1948, fenced it, and built a brick wall separating his back yard and lawn from the strip of land leading to the rear along which he drove his vehicles and over which builders who constructed houses on lots 7, 8 and 9 gained access to those blocks for building purposes. 11It is clear that it would have been very difficult, if not impossible, to gain reasonable access to lots 7, 8 and 9 from the Princes Highway. Those lots, but particularly lot 9, are well above the Princes Highway and on a left hand bend for one travelling north to south. As far as lot 9 is concerned, I am satisfied no reasonable access could be obtained to it for building purposes in 1948 from the Princes Highway. 12After he completed the home, Mr Symons built a double garage on his land against his southern boundary towards the rear of his land. This did not interfere with access used by Mr and Mrs Thomas. Nor did it interfere with access which his two brothers were using to their blocks over lot 25. 13Mr and Mrs Thomas sold Beattie Avenue to a Mr and Mrs Dixon in March 1948. It seems therefore that they did not need that money to enable them to buy lot 9, although they may well have needed it if they were to build a house. They then built a house on lot 9, gaining access all the time over lot 25. In 1950 Mr and Mrs Thomas built a garage at the rear of lot 9 almost on the rear boundary with the garage fronting the rear boundary of lot 25. This garage was built largely with bricks left over from construction of the house on Lot 9. Mr Symons assisted in the building of this garage. In addition, Mr Thomas constructed a concrete pad from the garage entrance to a distance of about three metres onto lot 25. Mr Symons also assisted with this. There is some dispute about who did all the work but I think the evidence shows that it was done as I have set out and I so find. Later Mr Symons put a bitumen seal over that part of lot 25 used by him and the other owners for access to the rear of his property and access to their properties. 14Over some years thereafter Mr Symons encouraged Mr and Mrs Thomas to purchase a motor vehicle and then a caravan so they could go on holidays with Mr and Mrs Symons. They did buy a car in around 1952 which was kept in the garage. In addition to access to lot 25 through the garage, there was a pedestrian access from lot 9 to lot 25 through a passage to the south of the garage. 15Prior to building his garage, Mr Thomas constructed steps from the surface area of lot 9 to the Princes Highway. There were about 14 steps which were, and remain, quite steep. As a result of road changes, there are now about 20 steps, the additional ones being put in by the Council or the then Department of Main Roads when the road alignment was altered.

Subsequent events 16Sometime late into the 1960s there was a dispute between Mr Symons and his brother Fred, the owner of lot 7, after which Mr Symons built a fence across his boundary with lot 7, preventing access to and from lot 7 over lot 25. Mrs Thomas says in her affidavit sworn on 19 February 2012 at paragraph 41 that she raised this with her brother Donald, the defendant, who said words to the effect: "Don't worry it doesn't concern you. Your property has a right of way. I was fed up with Fred letting his workers leaving their trucks or material in the driveway." Mrs Thomas said she felt reassured by this. 17Mr Thomas applied to the Wollongong Council for approval to build a garage fronting the Princes Highway. Approval was granted on 10 February 1975. As I will later explain I consider it would have been impossible to access that garage safely. In any event, no action was taken on the approval. 18Mr Thomas died in 2007. Mrs Thomas still drives a car. Mrs Thomas is now 88 years of age and the defendant 90. Everything continued in the same way it had from 1947 up until 2011. Mr Symons and his wife were moving into some form of aged care type facility. Mr Allan Symons, their son, had power of attorney from his father. He informed Mrs Thomas that lot 25 was to be sold and that access to lot 9 over it would be denied. There was some discussion and some correspondence between Allan Symons and the son of Mrs Thomas who is a barrister. No agreement was reached. Mrs Thomas consulted a solicitor, Mr Makim, through arrangements made by her son and a caveat was entered against the title to lot 25. That caveat claims an estate or interest in the land in the following terms: "A right of carriageway enabling the caveator to have access to and egress from her land." It claims that interest by virtue of the facts stated below which are set out as follows: "The caveator has had uninterrupted access to and egress from her land (both vehicular and pedestrian) by crossing the registered proprietor's land during the past 65 years." 19The operation of the caveat has been extended by consent until the determination of these proceedings. On its face it would appear to claim an easement by prescription, but it is accepted such a claim is not possible in respect of Torrens Title land. In any event, it would not have been possible to obtain such an easement because it is perfectly clear that access across the land was by permission of the defendant. 20The plaintiff's principal claim is for an easement by estoppel. In the alternative, she seeks an order under s 88K of the Conveyancing Act imposing an easement of right of carriageway over lot 25. If such an order were made, it is accepted that such an order would result in diminution of the value of lot 25 by $125,000 and it is agreed that is the figure which would have to be paid by the plaintiff to the defendant as compensation for the granting of the easement.

Pleaded claim 21The following paragraphs appear in the statement of claim: "7. Prior to 1947 the Plaintiff and her husband had previously purchased a property located at Beattie Ave Bulli on which they proposed to construct a home for themselves. 8. The Defendant in or about March 1947 represented to the Plaintiff and her husband that: (a) He proposed to or had purchased Lots 25, 7, 8 and 9 in deposited plan 10200; (b) He only wished to own or retain ownership of lot 25; (c) That the sale to the Defendant of Lot 25 could only proceed if he purchased all 4 lots; (d) That the defendant could not himself afford to purchase and retain all 4 lots; (e) That the defendant could only afford to purchase all 4 lots if he then sold lots 7, 8 and 9; (f) That the defendant wished to sell lots 7, 8 and 9; (g) That there was no access from lot 9 to Main South Coast Road (as it was then known); (h) That Lot 9 had the benefit or would have the benefit of a right of way over lot 25 for the purpose of providing access from Trywhitt [sic] Ave Bulli to Lot 9. 9. The Defendant made the above representations: (a) To induce the plaintiff to purchase Lot 9; and (b) Knowing that the plaintiff would rely on such representations; 10. In reliance upon the aforesaid representations in paragraph 8 above the Plaintiff and her husband sold the property at Beattie Ave Bulli and purchased lot 9 from the Defendant. 11. The Defendant by his conduct represented that there was or that he would give an easement for the benefit of lot 9 over lot 25 to pass to and from lot 9 near the boundaries of lots 7, 8 and 9 and lot 25 and then along the boundary of lot 25 and lot 26 to Trywhitt [sic] Avenue. 12. In the circumstances the Defendant is estopped from denying that there exists an easement by way of right of way to pass over lot 25 for the benefit of lot 9 and/or from refusing to do all things necessary to give effect to that easement. ... 15. Further the representations in paragraph 8(h) above was a continuing one. 16. Between 1948 and 1953 the Plaintiff and her husband constructed on lot 9 a substantial brick residential home (the home) and a substantial garage (the garage) such structures being designed and built in reliance upon the continued existence of a right of way over lot 25 for the benefit of lot 9. 17. The construction of the home and garage were done with the knowledge and co-operation of the Defendant and in reliance upon the continuation of or in the expectation of the grant of the right of way over lot 25 for the benefit of lot 9. 18. By reason of the construction and position of the home and the garage the owners of lot 9 from time to time would not thereafter be able to have vehicular access to and from lot 9 to the Princess [sic] Highway. 19. The garage was and is only accessible to a car or vehicle from Trywhitt [sic] Avenue passing to and from and over lot 25. 20. The only available means of vehicular access to Lot 9 is through the right of way over Lot 25. 21. From 1948 until 2011 the Plaintiff has exercised unimpeded free access and right to pass to and from and over lot 25 to reach lot 9. 22. The Plaintiff[']s husband died in 2007 and she became the sole registered proprietor of lot 9. 23. In the premises set out above the Defendant is estopped from denying that there exists an easement by way of right of way to pass over lot 25 for the benefit of lot 9 or from refusing to do all things necessary to give effect to that easement." 22The defendant admits the plaintiff has had access but denies this is of right and denies the representations.

Further matters relevant to estoppel claim 23Paragraphs 14-21 of the plaintiff's first affidavit sworn on 19 February 2012 are as follows: "14. Donald, Samuel and I sat around the kitchen table. Donald produced a piece of paper, a copy of which is annexed hereto and marked with the letter 'A'. We then had a conversation as follows: Donald: 'I have come to show you some land that I have found.' He then pointed to Annexure 'A'. Donald: 'There are four blocks of land for sale just around the corner from your block (meaning Beattie Ave) Three facing the Highway, and one facing Tyrwhitt Avenue, Bulli. I want to buy the one in Tyrwhitt Avenue, as it is the largest block and it suits me for my fruit truck and car. I cannot buy it, unless I buy all four. The three at the front have no access to the main road (meaning the Princes Highway) but there is a right of way through the block that I am buying to allow access to the other blocks. I have spoken to Fred and Les, and they have already picked the blocks they want, there is one left over. These (pointing to the diagram), are the blocks that Les and Fred have picked, and this (indicating lot 9) is the one you can have.' I am not sure whether it was Samuel or I, who replied, Edna/Samuel: 'This all sounds good, we know where it is, but we have not seen it, we would need to see it.' Donald: 'No problem, we can go now.' I stayed home to care for my young daughter Pamela, and Donald drove Samuel to see the land that same afternoon. 15. I recall further conversations to the following effect, though I do not recall whether such conversations happened before Samuel went to look at the property with Donald, or after they both returned. Edna: 'What would we do with Beattie Avenue? We were going to build there and we cannot afford two properties.' Donald: 'Don't worry about it, I know a woman, Mrs Dixon, whose son is getting married, and she is looking to buy land in the area. I am sure she would love to buy your block. I'm happy to talk to her for you.' Edna: 'It would be great if we can help you get the property you want but we cannot consider buying unless we sell the other one at the same time as we wouldn't have the money' 16. Samuel and I had regularly walked along the Princes Highway, along the footpath in front of Lot 9. I was very familiar with that area and knew that the land was quite high up from the street. 17. Leading up to the decision by Samuel and me to purchase Lot 9 I recall further conversations (there were possibly several conversations) with Donald to the following effect: Edna/Samuel: 'It's pretty high up there. Beattie Ave. is perfect for us. Donald: 'You don't need to worry. It won't be a problem. As I have told you my block has a right of way to yours. That will be the only way in and out of the one you buy. It would really help me out if you buy as the one on Tyrwhitt is perfect for me.' Edna/Samuel: 'Alright I suppose it will be ok then as we won't have to worry about getting in and out from the front.' Donald: 'Leave it all to me, I will organise it all with the solicitors including your sale. Thank you so much. 18. Shortly thereafter, Mrs Dixon and her husband came to our home at Coledale and introduced themselves. I had never previously met them. We have a conversation to the following effect, and after the pleasantries of introduction: Mrs Dixon: 'You probably know from Don, that we are interested in buying your land at Beattie Avenue. How much would you want for the land?' 19. I do not recall all the conversation, but I do recall that Samuel was [trying] to negotiate a price of five pounds more than we had paid for the property. The negotiations took place over about half an hour or so. Eventually, Samuel and I agreed that we would sell the land to Mr and Mrs Dixon, for the same price that we had paid for it. I do not have a recollection of the price. 20. At that time, neither Samuel nor I held a drivers' licence, nor owned a car. As such, we relied on Donald to drive us to and from the solicitors. 21. Samuel and I would not have sold Beattie Avenue, but for the purpose of purchasing Lot 9 and we would not have purchased Lot 9 but for the fact that Donald stated that Lot 9 had a right of way over lot 25 to access it." 24Annexure A referred to in paragraph 14 of that affidavit is a plan of a large subdivision of land at Bulli dated 1919. In cross-examination Mrs Thomas said that she and her husband were doing the defendant a favour, that they were happy at Beattie Street, but agreed to purchase lot 9 to help a family member. The defendant denies this. He said he could have sold to anyone and had no need to sell. I accept that he was able to buy the four lots but not necessarily to build on lot 25 without sale of the others. I do not accept that the plaintiff was anxious to buy. The fact that the defendant organised everything with the solicitor tends to support the plaintiff's version. 25There was further oral evidence relevant to the representations. Mrs Thomas stuck to her account that it was her brother, the defendant, who had suggested to them that they might buy lot 9 and that he brought the plans to them at Corrimal to show them. She had a particular reason for remembering this because an event had occurred the previous day at Corrimal. Mr Symons does not deny that he went to Corrimal, but his consistent version of events is that he did not ask Mrs Thomas and her husband to buy lot 9, and to the contrary they asked him if they could buy it from him. I have come to the conclusion that the evidence of Mrs Thomas on this aspect should be accepted. One reason for doing so is that I accept her evidence that she and her husband were quite happy with the block of land which they had bought in Beattie Avenue and on which they intended to build. They had no particular reason to look for another block of land and I do not think they had any reason to think that lot 9 was superior to the block which they then owned. Mrs Thomas said she thought it inferior. 26So far as any conversation about access is concerned Mr Symons accepted that there was discussion about access, that he knew that access was to be gained to lot 9 across lot 25 for the purpose of building and otherwise and that he was happy for this to take place. There is some confusion in the evidence which Mr Symons gave in cross-examination, partly I think because due to his age he has more difficulty than his sister in giving evidence. The general effect of his evidence was that he did not agree or say that he would give a right of way over lot 25 to lot 9, but what he did do was to agree that they could have access, but not permanent access. The transcript at page 172, line 45 - page 173 line 5 should not read as accepting any concession of Mr Symons that he spoke of a right of way. He denied that he had told Mr Cameron that there was an arrangement with his sister that he could not go back on. He accepted that he knew the garage was being constructed and he assisted with this. He also accepted that it was Mr Thomas who had put down the concrete pad to the garage which extended onto his land. He denied the conversation set out in para [16] above. While his evidence was that access was not to be permanent, he did not tell the plaintiff or her husband that. 27Mr Cameron lived at 143 Princes Highway and was therefore a neighbour to Mrs Thomas. He said that they had a reasonable neighbourly relationship, but that it seems this fell away a few years ago as a result of some disagreement about pruning shrubs on the boundary. That does not really matter. Mr Cameron's evidence was that he found out that there was a problem about the access and that he spoke to Mrs Thomas because he had remembered a conversation which he thought might help. In his affidavit sworn 1 August 2012, he gave the following evidence in para 7. "7. My daughter, Sarah, was born on 9 October 1991. Approximately, 12 months before Sarah's birth, I had repaired a side fence and had some left over [Colorbond] fence panels. I recall having a conversation with Donald in the following terms: Donald said words to the effect of, 'I see you have some left over panels. Could you use them to fix the fence between our properties?' I replied words to the effect of, 'yes no problem but now that you have raised that, I would like to leave an opening in the fence, and use the driveway down your property much as Edna have been doing. I am happy to pay for it, [or] lease it from you.' Donald said words to the effect of, 'No, you can't have use of the driveway. I had problems with Fred in the past, and don't want any more problems.' I said words to the effect of, 'There won't be any problems. I can use it much as Edna does. Can't I do the same thing?' Donald said words to the effect of, 'No, its different with Edna. She is my sister, and it was part of the deal when we bought the land, it included use of my driveway. It was part of the agreement. I can't change that.'" 28Mr Symons in his affidavit in reply accepted the first part of the conversation put forward by Mr Cameron, but denied the last part. I have already dealt with the cross-examination on this. I thought Mr Cameron was a reliable witness. I accept his evidence on this. It is to be remembered that some of the evidence of Mr Symons was clearly incorrect. I do not accept his evidence he gave that Stephen Thomas, the son of the plaintiff, asked him whether a right of way could be purchased over his land for use by his parents, nor that Mr Thomas did not build the concrete pad. In cross-examination he admitted he did. 29There are a number of matters which need to be borne in mind when deciding whether or not the plaintiff's version of events should be accepted. The first of these is that the caveat does not in any way state the basis for the interest which the plaintiff now claims. Objection was taken to questions asked of her as to the story which she had told to Mr Makim, the solicitor who was responsible for the wording of the caveat. It is correct to say that this caveat appears to be based on a view that there might be some rights to an easement by possession or by prescription. On the other hand, the interest claimed is not necessarily contradictory to the claim now made by the plaintiff. 30The next point against the plaintiff is the obtaining of the approval for the garage. She and her husband were joint owners of lot 9 at the time so that his actions are important so far as her present claim is concerned. It does seem that at one stage Mr Thomas decided not to proceed with the application, but then said that he wished it to proceed. In any event, having got approval, he did nothing about it. It may have been that he decided access would be too dangerous, but one does not know. Mrs Thomas said she did not know of the application. That was unconvincing and I do not accept it. 31The most significant matter against the plaintiff's story is that she did not tell it to anybody else prior to giving instructions to her solicitor for her affidavit. What I mean by that is that she said that she had not discussed what had happened in 1947 with her family or with any of her friends, particularly at the bowling club and the ladies with whom she played bingo regularly, although she said they were always discussing her case and how she was getting on with it. More importantly however, she did not discuss it with her son who is a barrister and in answer to a question by me, he said that he had not been told by his mother the version of events in the important paragraph 14 of her affidavit (cited at para [23] above) and when he saw that paragraph either in final form or in draft, he had not been told of that story of the events before that time. The explanation of Mrs Thomas for this is that only she and her brother knew what had occurred in 1947. 32The final matter to bear in mind is that the conversations relied on took place in 1947 and the late 1960s. This was many years ago and the plaintiff is elderly, although quite alert. Care must be taken before accepting the plaintiff's version of events. 33In spite of these problems I consider that the version put forward by the plaintiff is substantially the truth. As I have said, I accept that she and her husband did not need to move and were not keen to move; I accept that Mr Symons came to see them at Corrimal to discuss the matter with them and that at that particular time, he showed them the plan and said that access would be obtained over lot 25. I accept that Mr Symons asked Mr and Mrs Thomas whether they would buy lot 9. And I accept the evidence of Mrs Thomas that they would not have done so had they not had access over lot 25. I accept that it would have been quite impossible for them to build their house without that. I also bear in mind that Mr Symons did not put forward in chief any version of the conversation about access which clearly did occur. I also accept the evidence of Mrs Thomas referred to in paragraph 16 that Mr Symons used the words "right of way". 34The result of this is that I find that Mr and Mrs Thomas relied on the representations of Mr Symons as to access over his land to lot 9 and that they would not have bought lot 9 unless he had done so. I also accept the obvious evidence that they placed their garage where it is so as to be able to drive their car over lot 25 into the street. I accept that they spent money in building the house and garage. The detriment is obvious. Mrs Thomas has lot 9 without legal vehicle access. 35In deciding this it is necessary to bear in mind that Mrs Thomas did not know the legal effect of a right of way. There is nothing to suggest that she understood that it was a right attached to the land rather than a right of access for her and her husband to their land. Mr Symons said he knew what a right of way was but gave no evidence of his understanding. While I accept the evidence of Mr Cameron and the evidence of Mrs Thomas as to the right, that in itself does not mean that the representations amounted to a permanent easement in favour of lot 9. They may have amounted to a licence or they may in a way have amounted to an easement to exist while lot 9 was in the ownership of Mrs Thomas or Mrs Thomas and her husband. 36Again, in considering all the evidence I bear in mind that the plaintiff seems remarkably alert for her age but on the other hand the defendant cannot now read, is hard of hearing, is no longer independent and is not what might be called as sharp as his sister. In spite of this I formed the clear view that he understood the questions asked and was able to answer them. The result of all of this is that I find: (a) The defendant encouraged the plaintiff and her husband to buy lot 9; (b) The defendant said they would have access over lot 25. He may have said they would have right of way but not so as to bear its legal meaning so as to attach to land. This is an estoppel case, not an objective theory of contract case; (c) The plaintiff and her husband relied on this and continued to do so and the defendant knew this. Construction of the garage with his help and the concrete pad makes this clear; (d) The plaintiff and her husband acted to their detriment in moving from Beattie Street with only street access to lot 9 without vehicle access and in expending money building their home and the garage on the basis of access over lot 25. 37I was taken to many recent decisions of the Court of Appeal dealing with equitable proprietary estoppel including Duic v Duic [2013] NSWCA 42; Waddell v Waddell [2012] NSWCA 214; Walsh v Walsh [2012] NSWCA 57; Evans v Evans [2011] NSWCA 92; and Delaforce v Simpson-Cook [2010] NSWCA 84. The principles as set out in those cases derive from the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387. It is not necessary to repeat them again other than to bear in mind that the equity need not be the minimum. 38I have come to the conclusion that the plaintiff has not established entitlement to a permanent easement benefiting her land. In other words, the representations she relied upon have not required such a result. In addition I consider such relief would be out of proportion to the detriment. However, I conclude the evidence is clear enough and strong enough to lead to a finding that there was a representation that the plaintiff would have a right of access as has been used for 66 years and it would be unjust and unconscionable to bring that right to an end while Mrs Thomas remains in occupation of lot 9. I find the defendant is estopped from denying that the plaintiff has a right of continued access as used since 1947 over lot 25 so long as she remains in occupation of lot 9 as her home. While this relief was not specifically sought in the statement of claim, it was discussed in submissions and would come within "other orders as the Court thinks fit". In any event the appropriate relief is always a matter for decision in estoppel cases. 39The defendant intends to sell lot 25 and an injunction restraining interference with access would not bind on purchasers. There would be ways of overcoming this by requiring purchasers to bind themselves to the rights of Mrs Thomas, but unless the purchasers have any objection the same result could be achieved by ordering the defendant to execute a grant of right of carriageway over the part of lot 25 presently used for access until Mrs Thomas ceases to live in No. 145 Princes Highway as her home. Counsel can discuss the appropriate form of order. 40Laches was raised as a defence. It is referred to in written submissions, but not addressed in oral submissions. The plaintiff acted when she first knew access would be denied. That defence must fail.

Conveyancing Act, section 88K claim 41Counsel for the plaintiff said that if the plaintiff did not obtain an unrestricted right of way easement by estoppel as sought then this claim was pressed in preference to an order of the type I have indicated I would make. The relevant parts of s 88K are as follows: "88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful." 42The requirement under s 88K(1) cannot be made out unless vehicle access is necessary for the effective use and development of the land. There is pedestrian access to the Princes Highway. In theory at least there is vehicular access. After a view was held, I noted without objection some observations made, one being that safe vehicular access could not be available as it would be highly dangerous to enter the road from lot 9 moving backwards and highly dangerous to back into lot 9 so as to be able to access the Princes Highway moving forwards. The very short sightlines I think make that finding inevitable. A planning report in evidence supports that. There are "no stopping" signs at the relevant part of the road adjacent to lot 9. There was some suggestion that access could be obtained by constructing a driveway entering from the north and going out towards the south in a quarter moon shape, but my conclusion is that without evidence while that might be possible it would be highly dangerous. I have regard to the evidence of Mrs Thomas that those people in the properties to the immediate south, when they are accessing the Princes Highway from their driveways, in fact drive down the footpath for some distance. As I conclude that safe vehicular access cannot be obtained to the Princes Highway, it is not necessary to consider in any detail arguments addressed to me on s 6 of the Roads Act 1993, but I deal with this in brief.

Section 6 of the Roads Act 1993 "6 Right of access to public road by owners of adjoining land (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law." 43The argument of counsel for the defendant was that there was access as of right under s 6(1). The argument of counsel for the plaintiff was the right was qualified by s 6(2). The drafting is not good, but on consideration I think that under s 6(2) "those rights" means the s 6(1) right and any common law right. The Princes Highway where it passes the plaintiff's property has been classified pursuant to s 47 of the Roads Act as a Highway. It would appear that pursuant to s 9 of the Roads Act, Wollongong Council is the road authority for the Princes Highway in the relevant section of the road here. Thus it is the consent authority under s 138 for giving consent to any work on the road which would include constructing a driveway over the footpath or gutter. However, pursuant to s 138(2) the Council as roads authority can only give consent with the concurrence of the Roads and Maritime Services as the highway is a classified road. That authority has indicated it is unlikely to give consent. 44For these reasons, practical and legal, there is no available vehicular access to the road from lot 9. I return to reasonable use and development. 45While reasonable use must be considered at the present time, it must be considered objectively without reference to the position of the garage, the relationship between the parties, or what has happened in the past. In other words, it should be considered as if there were new owners of lots 9 and 25 and the question being whether or not a right of way in favour of lot 9 over lot 25 was required for the reasonable use and development of lot 9. 46The evidence is that the land is likely to continue to be used for a dwelling house. It is accepted that there is pedestrian access from the Princes Highway. Vehicular access is no doubt convenient. A great many of the nearby homes enjoy vehicular access and in any event, people living in nearby streets would be able to park a car in the street adjacent to their homes which the plaintiff cannot do. However, the land can be used as a residence without vehicle access. It could be used more conveniently with such access and it would obviously be made considerably more valuable if such access were available. Counsel for the defendant argued that it would be quite extraordinary if an owner of land without vehicle access was entitled to say access was necessary so as to require an easement from the back of the land to the street through a neighbour's land just because there was no other access for vehicles. That argument in some ways would have more relevance to matters which might arise with homes in Paddington or Balmain than when considering the position here, but it has some force. 47It has been agreed that the diminution in value of lot 25 if an easement is granted as sought is an amount of $125,000. It has also been agreed, after I drew this matter to the attention of the parties and the case was re-opened for that purpose, that the value of lot 25 at present is $615,000. 48It has been held in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [117] that the question of reasonable necessity "needs to be considered having regard to the effect it would have on the enjoyment of [the land sought to be made subject to the easement] and on the property rights of the owner of that land". When considering the effect on lot 25 the evidence of significance is that if an easement were granted the value would be reduced by just over 20 per cent. That is a serious affectation when it is considered that this is not a resumption but an easement preserving control for the servient owner. 49Reasonable use and development means something more than more desirable or preferable (Rainbowforce Pty Ltd v Skyton Holdings Ltd [2010] NSWLEC 2 at [76]), but does not mean absolutely necessary (117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd at [154]). Here the alternatives are use with or use without vehicle access. The former is preferable as here we are speaking of use as a dwelling, which can be accommodated without the proposed easement. After consideration I conclude the requirements of s 88K(1) are not made out. If this were incorrect on its own then it is supported by consideration of the effect of the easement on Lot 28. I consider this to be so seriously detrimental in its reduction of value that taken with my considerations relating solely to lot 9 a case of reasonable necessity is not made out. I had formerly thought that this was something to be considered as an exercise in discretion (Blulock Pty Ltd v Majic [2001] NSWSC 1063), but the result here would be the same. It does not seem reasonable to reduce the value of lot 25 by 20 per cent or $125,000 and presumably add something like that value to lot 9 accepting of course that the price of the easement or the compensation for it would be $125,000. I should add that the preconditions of s 88K(a) and (c) are met. Subsection (b) considerations would I think bring about the same result as is reached by considering the effect on the enjoyment of the servient land. 50For these reasons the application for the imposition of an easement is refused. I certify that this and the 23 preceding pages is a true copy of the reasons for judgment herein of the Honourable Acting Justice W V Windeyer Date: 8 May 2013 Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2013

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