Tiller & Anor v Hawes

Supreme Court of NSW|2005-06-08|Before: Smart AJ

CITATION : Tiller & Anor v Hawes [2005] NSWSC 1232

CATCHWORDS : Easement and restrictive covenant - whether two should be taken together - effect of earlier proceedings, points not taken and undertakings given - construction of restrictive covenant having regard to surrounding circumstances - form of relief to be granted

Clos Farming Estates Pty Ltd (Rec. & Man Appt) v Easton & Anor [2001] NSWSC 525; [2002] NSWCA 389 CASES CITED : Harada v Registrar of Titles [1981] VR 743 Re Ellenborough Park [1956] Ch 131

PARTIES : Dean Anthony Tiller and Vicki May Tiller v Vanessa Marie Hawes

(P) J R Young COUNSEL : (D) D A Casperson

(P) Karageorge & Co SOLICITORS : (D) Pickering Priestley

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Friday, 2 December 2005 2122/04: Dean Anthony TILLER & Vicki May TILLER v Vanessa Marie HAWES JUDGMENT

The plaintiffs and the defendant are the registered proprietors of adjoining blocks of land, each of about 1 hectare in Loftus Road, Crescent Head, being Lots 2 and 1 respectively, DP882231. They are the result of a subdivision of a larger area. The lots are in an attractive area close to a beach. While Lots 1, 3, 4 and 5 have a frontage to Loftus Road, Lot 2 does not. For access from Lot 2 to Loftus Road and vice versa the registered proprietors of Lot 2 depend upon a right of carriageway over Lot 1 extending from Loftus Road to the boundary of Lot 2. The unusual covenant contained in the transfer to the defendant confers extensive rights of use of the carriageway on the plaintiffs and appears to be restrictive of the use of the carriageway by the defendant. There have been bitter disputes between the parties as to the use the covenant permits the defendant to have and as to her actual use. In order to understand this judgment frequent reference will need to be made at an early stage to Exhibit A - the large map showing Lots 1, 2 and 3.

By their summons filed on 25 March 2004 the plaintiffs sought orders that Ms Hawes by herself, her servants, contractors or agents cease to use the right of way 10 metres wide over her land in Lot 1, DP 882231 as a means of access to her land from Loftus Road and only use the said right of way as a means of crossing from one side of her adjoining land to the other side. The plaintiffs also sought an order that Ms Hawes reinstall the fencing on the right of way as soon as practicable, a declaration that the plaintiffs have a right to lock the gate granting access to the right of way from Loftus Road and an injunction that Ms Hawes be restrained from interfering with the gate. Relief as to the fencing was abandoned at the start of the hearing and the declaration as to the locking of the gate and the consequent injunction were abandoned during the hearing.

During final addresses the plaintiffs sought these orders: " 1 . The defendant is restrained from, by herself, or by permitting or suffering any other person (including her family, her servants, contractors, agents, invitees or visitors) from using the right of way the subject of Covenant 8646652 contained within Transfer 8646652 ( "the Covenant") as a means of access from Loftus Road to the land burdened by the Covenant.

Order 1 shall not prevent the defendant by herself, or the defendant permitting or suffering any other person, from crossing the right of way from any point on the land burdened to any other point on the land burdened, provided that the substantial purpose or character of such crossing is not as part of, or as a means of, access to the land burdened by the Covenant from Loftus Road.

The defendant shall not be taken to have contravened Order 1 if any access by her, or any access which the defendant permits or suffers (a) is only for the purpose of access to a point which enables access to the land burdened ( "the point" ) by means of access other than by use of the right of way; and

(b) is to the point which is as close to Loftus Road as is reasonable in the circumstances.

Orders 1, 2 and 3 herein shall not have effect until 1 September 2005."
Mr and Mrs Whitehair owned Lot 521 DP 587923 which had a frontage to Loftus Road, Crescent Head, within the Kempsey Shire. They subdivided it into five Lots. The defendant purchased Lot 1 and the plaintiffs purchased Lot 2, settlement of that purchase taking place on 13 December 2002.

The Development Approval of Kempsey Shire Council of 17 April 1998 of the subdivision provided, amongst other things: "4. Proposed right of way is to be created over the existing gravel drive for the exclusive use of lot 2 in the subdivision. Any or all of the owners of the benefiting lots be able to maintain the carriageway within the right of way at any time. The 88B instrument creating the right of way is to be lodged with Council prior to the release of the plan of subdivision. … 6. Dedication as public road those parts of the existing road (Loftus Road) that may be located on land forming part of this subdivision, at full cost to the applicant. … 9. Construction of a vehicular access from the road formation to the property boundary in accordance with Council's Standard for Access to Rural Properties. Council has allowed a reduction in the minimum frontage of the Lots in the subdivision fronting Loftus Road.

To reduce traffic conflict there are to be only two (2) vehicular accessways servicing the subdivision off Loftus Road. Lots 1, 2 and 3 via a shared drive to the north …" If the first sentence of condition 4 had been followed literally that would not be a valid easement as it would exclude the owner of the servient tenement from using the area of land the subject of the right of way.

The Council's certificate of compliance bears date 29 October 1998 and the Deposited Plan was registered on 11 December 1998 as DP882231. Endorsed on the plan is the notation: "Restriction On Use Right of Carriageway 10 wide."
The plan shows that right of carriageway. Shown within that carriageway is "Easement for Transmission of Electricity variable width."

The "Instrument Setting Out Terms of Easements And Restrictions On The Use of Land Intended To Be created Pursuant to Section 88B of the Conveyancing Act" contains these words, amongst others: "2. Terms of easement secondly referred to in abovementioned plan

'A Right of Carriageway within the meaning of Part 1 of Schedule VIII of the Conveyancing Act 1919

Name of persons empowered to release, vary or modify the easement secondly referred to in the abovementioned plan: SCOTT ROBERT WHITEHAIR, JULIE ELIZABETH WHITEHAIR THEIR SUCCESSORS OR ASSIGNS'". The abovementioned plan is DP882231. The first and third restrictions related to other matters (boundary fencing to be rural fencing and no existing stands of 'Scribbly Gum' and 'Paperbark' to be disturbed)

"Terms of easement secondly Right of carriageway referred to in abovementioned plan 10 wide (Lengths are in metres) Schedule of lots affected Lot burdened Lot … Benefited Lot 1 Lot 2. … " 10. Thus, from registration of the Deposited Plan on 11 December 1998 Lot 1 was subject to the right of carriageway specified in Part 1 of Schedule VIII of the Conveyancing Act, namely: "Right of Carriageway Full and free right for every person who is at any time entitled to an estate or interest in possession of the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by him, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any part thereof." 11. This right of carriageway indirectly restricts the use of the land by the owner of the servient tenement, in that such owner must not obstruct, impede or restrict the owner of the dominant tenement in his going, passing and repassing along the servient tenement. Such right extends to those living at, working at or visiting the dominant tenement. When using the right of carriageway the owner of the servient tenement would have to ensure that there was no interference with the rights of the dominant owner.

As earlier mentioned the right of carriageway extends from the boundary of Lot 1 with Loftus Road to its boundary with Lot 2, a distance of roughly 80-90 metres. (I have estimated this approximate distance from the enlarged plan, Exhibit A, and my estimate may be inaccurate. It is a long right of way). Running down the centre of the right of carriageway for most of its length is a gravel track. That track extends from the boundary of Lot 2 to a point about 6-7 metres from the boundary of Lot 1 and Loftus Road. On either side of the gravel track are trees and shrubs. For some time, and probably at the time of the preparation and registration of the Deposited Plan there was a bitumen and gravel area from the boundary to the commencement of the gravel track. From the edge of the bitumen of Loftus Road to the boundary there is a bitumen apron to facilitate the entry of vehicles and that apron appears to meet up with bitumen-gravel area which extends to the commencement of the gravel track. On Exhibit A the area of the total apron is marked out by a broken line against which the letters EB (edge of bitumen) are placed.

It seems that the intention of the Council was that all vehicles going to Lots 1, 2 and 3 would drive up the apron (including what appears to be a continuation of the apron up to the end of the gravel at a point about 7 metres from the boundary and then travel onto Lots 1 or 3, or along the carriageway to Lot 2. About 3 metres past the end of the gravel track and across the track is a gate (about 10 metres from the Loftus Road boundary). There was some suggestion that the position of the gate was changed at some stage. It is doubtful whether the conveyancing accurately reflected what the Council intended.

On either side of the carriageway there was further land forming part of Lot 1. The defendant is building a house and a studio on the substantially larger portion of Lot 1. On the southern side of the carriageway and adjacent to Lot 3 is a relatively thin "sliver" of land, being part of Lot 1. The sliver extends from Lot 2 to Loftus Road and adjoins Lot 3 for the whole of its length, but narrows markedly near the boundary with Loftus Road and appears to have a frontage of about 2 metres to Loftus Road.

Accepting that there is no usable road other than Loftus Road which provides access to Lot 1, the plaintiffs' counsel suggested that vehicles and people going to Lot 1 should travel up the apron, probably to close to the beginning of the gravel track and then turn right off the apron into Lot 1. There was some evidence that this would be impracticable because of a gully or depression in the land, the need for a pipe, the existence of a small orchard and the need to construct a track of some length around to the house. There was also the question of the location of some septic tanks and some water meters. The plaintiffs offered to shift their water meter.

The evidence does not disclose the precise items of the contract to purchase Lot 1 signed by Ms Hawes.
The Transfer (including Covenant) dated 14 May 2002 relating to Lot 1 and signed by Mr and Mrs Whitehair and Ms Sharon Downs, a Licensed Conveyancer, on behalf of Ms Hawes contains this covenant: "The registered proprietors of the land benefited by this covenant agree to be responsible for all repairs, maintenance and upkeep for the driveway within the right of way provided that they have exclusive use of the land within the right of way including the right to maintain the trees and fencing that are currently within or immediately adjacent to the right of way burdening lot 1 in Deposited Plan 882231. The registered proprietors of the land burdened by such right of way agree not to use such right of way as a means of access to the land burdened. However, this will not prevent the proprietors of the land burdened from crossing the right of way to access the land burdened on either side of the right of way. The proprietors of the land benefited will permit the proprietors of the land burdened to install gates in the fence within the right of way or immediately adjacent to the right of way to enable the proprietors of the land burdened access to the land on either side of the right of way."

This clause is not happily drafted and it gave rise to considerable debate both as to what it meant and whether it was permissible. That clause was subsequently embodied in an instrument signed by Ms Hawes as a result of earlier court proceedings.

Counsel for Ms Hawes submitted that the first sentence of the covenant provided that the owners of Lot 2 have exclusive use of the land within the right of way, including the right to maintain the trees and fencing currently within or immediately adjacent to the right of way and that this was a condition of this covenant. This interpretation was said to be supported by the last sentence of that covenant in that the owners of Lot 2 were to permit Ms Hawes to instal gates in the fence within the right of way or immediately adjacent to the right of way to enable Ms Hawes to obtain access to the land either side of the right of way.

Ms Hawes contended that the second sentence of the covenant reinforced that the owners of Lot 2 were to have exclusive use. That sentence contemplates that the land burdened does not include Ms Hawes' land in the right of way. Ms Hawes is "not to use such right of way as a means of access to the land burdened." However, the land the subject of the right of way is part of the land burdened. In one sense, it is the land most burdened. Construed literally the second sentence poses some difficulties. The owner of the land burdened (and that includes the land the subject of the right of way) is not to use the land the subject of the right of way as a means of access to itself. In my opinion, the circumstances suggest that what is meant (but not stated) is that the registered proprietor is not to use the right of way as a means of access to the remainder of Lot 1, especially the larger portion to the north of the right of way.

The third sentence of the covenant states that it does not prevent Ms Hawes, as the proprietor of the land burdened from crossing the right of way to access the land burdened on either side of the right of way. Crossing from Ms Hawes' land from the north side of the right of way to the south side and vice versa involves using the right of way as a means of access to the remainder of the land burdened. There is a theoretical problem. What would be the position if Ms Hawes travelled backwards and forwards along the right of way between Loftus Road and Lot 2, but did not enter the remainder of Lot 1.

The plaintiffs disputed that the covenant conferred on them exclusive use of the land within the right of way. It was submitted that it provided that if they have exclusive use of the land within the right of way, that is, they are given exclusive use in fact, the plaintiffs are to be responsible for all repairs, maintenance and upkeep for the driveway including the right to maintain the trees and fencing currently within or immediately adjacent to the right of way burdening Lot 1.

The plaintiffs submitted that neither the plaintiffs nor the defendant had sought to exclude the other and that Ms Hawes had never regarded herself as excluded from within the land the subject of the right of way or the plaintiffs as having exclusive use of it. Nor had the plaintiffs sought to maintain a claim that they have exclusive use of it. Mr Tiller told the Court that they would not spend more than 6-8 weeks per year at the property. Sometimes it may only be two weeks. At the time of the hearing Ms Hawes and Mr Hubbard lived on Lot 1. The plaintiffs contended that the critical part of the covenant was that Ms Hawes (as the registered proprietor of the land burdened by such right of way) agreed not to use the right of way as a means of access to the land burdened, that is, Lot 1. It was contended that "Means of access" means access from outside Lot 1 to Lot 1 and does not mean crossing the right of way while on Lot 1. The plaintiffs seek to read into the covenant after the words "means of access" the further words "from Loftus Road. Alternatively, they contend that access from Loftus Road is covered by the covenant. This is a problem area.

It was common ground that the covenant had to be construed in the light of the surrounding circumstances which included the location of Loftus Road, the layout revealed by the Deposited Plan, the Council's stipulation that there should only be one exit point from Loftus Road to Lots 1, 2 and 3 for traffic safety reasons, that effectively Lot 2 was landlocked, the road adjoining this property being unusable, Lot 2 needed to have access to Loftus Road by a lengthy right of way and Council's stipulation that the proposed right of way to be created over the existing gravel drive was to be for the exclusive use of Lot 2.

In its letter of 13 September 2004 to Mr Hubbard and Ms Hawes, Kempsey Shire Council, after referring to condition 9 of its development consent that there were to be only two vehicular access ways, continued: "The above mentioned two access points were provided by Council's Engineering Section (appointed contractor) in 1998. Unless other private arrangements can be made the owners of Lots 1, 2 and 3 need to make arrangements for separate vehicular access to each lot via this single entry point, constructed in 1998."
Counsel for the plaintiffs accepted that the right of way appeared to go right to the boundary of Loftus Road and Lot 1. To give effect to the Council's intention of one entry point from Loftus Road to Lots 1, 2 and 3, all vehicles would have to travel along the right of way for at least a short distance to access their properties, that is, as a means of access and that would infringe the Council's stipulation as a condition of development consent that the registered proprietors of Lot 2 have exclusive use of the right of way and the terms of the covenant that the registered proprietors of the land burdened not use such right of way as a means of access to the land burdened.

Order 3 of the final draft of the orders sought by the plaintiff was intended to overcome these difficulties. The final 10 metres of the right of way, that is the 10 metres from the boundary of Lot 1 and Loftus Road back to about the gate, should not, if regard was had to the intention of all parties, have been included in the right of way in the terms in which that right of way was couched. That area along with the apron was intended to be used by the owners of Lots 1, 2 and 3 as a point of entry immediately prior to each proprietor going to his, her or their Lot. It would also be the point of departure. The proprietors of Lots 2 and 3 had to have a shared right of access with the proprietor of Lot 1 over the 10 metres earlier mentioned and the apron.

The plaintiffs contended that essentially the covenant was directed to restricting the use by of Ms Hawes of the right of way. She was not to use it as a means of access to her land when travelling from and to Loftus Road. The plaintiffs' approach was that although the covenant could have been better drafted, it was not necessary to resolve what the first sentence meant. It was envisaged that the owners of Lots 1 and 3 would enter via the bitumen apron and would turn off the right of way on to their respective Lots in the area at the beginning of the right of way. It was submitted that the owner of Lot 1 was not to travel from Loftus Road along the right of way for any appreciable distance and then enter the land of Lot 1 to the south or north of the right of way as was happening. For access purposes the covenant was drawing a distinction between those parts of Lot 1 to the south and north of the right of way and that part of Lot 1 which was subject to the right of way. What the covenant prohibited was the defendant using part of the right of way to gain access to the remainder of Lot 1 to the south and north of the right of way. The plaintiffs contended that Ms Hawes was using about half the right of way to gain access to the larger portion of Lot 1 on which her house was being constructed. The point at which Ms Hawes left the right of way is shown on the map as "Access In Use" on Exhibit A.

Ms Hawes and her partner, Mr Craig Hubbard, contended that they entered by clinging to the left side of the apron (as you face it) and driving from portion of the apron across the shoulder of Loftus Road, then onto a small portion of Lot 3, then along the adjoining sliver of her land until they reached a point nearly level with the gate. They turn and go through the gate and then proceed along the gravel track and the right of way until they reach the point marked "Access In Use" when they turn right and enter the northern and largest portion of Lot 1 on which the house under construction stands. Thus to gain access to the largest portion of Lot 1 and the building operations Ms Hawes, the builder and related tradesmen travelled along about half the length of the right of way on which the gravel driveway was built.

Mr Hubbard detailed an alternate route which is sometimes taken. Instead of turning right when nearly level with the gate and going through the gate a person could proceed down the sliver of land almost to the boundary with Lot 2, proceed through the area where the fence is open for access and then onto the gravel track and back down the gravel track to the area marked "Access In Use". Then the person turned left onto the largest portion of Ms Hawes' land where her home is under construction.

Shortly after the plaintiffs completed their purchase of Lot 1 difficulty arose between them and Ms Hawes. She maintained that she was not bound by the covenant because the transfer from Mr and Mrs Whitehair creating the covenant had not been executed by her but a licensed conveyancer whom she had retained. It seems that the Registrar-General may have been intending to amend the register to delete the covenant. This led to Mr and Mrs Whitehair and the plaintiffs instituting proceedings (1309 of 2003 in Equity) against the Registrar-General and Ms Hawes.

Those proceedings were settled on 14 February 2003 on the basis of Ms Hawes undertaking to obtain a quality print of transfer 8646652X from the office of the Registrar-General, executing it as purchaser and delivering the executed quality print of the transfer to the Registrar-General. This was done. This contained the covenant previously set out. This overcame the problem that the transfer containing the restrictive covenant had not been signed by Ms Hawes personally and so was not binding upon her.

On 14 February 2003 Ms Hawes undertook to the Court in terms of Order 1 of the interlocutory orders filed 5 February 2003 until such time as she complied with Order 4 of the Short Minutes of 14 February 2003. She did so comply by delivering the executed quality print to the Registrar-General and thereupon that undertaking lapsed. That undertaking involved her in not seeking to have the Registrar-General amend Transfer 8646652 by deleting the covenant it purported to contain.

Ms Hawes also gave undertakings to the Court in terms of Orders 2(i), (ii) and (iii) of the Interlocutory Orders sought in the summons. Those sub-paragraphs read: "(i) Not to build on her land within a distance of fifteen (15) metres of the common boundary of Lots 1 & 2 in D.P.882231;

(ii) To cease to use the Right of Way 10 wide over her land, Lot 1 DP 882231 as a means of access to her land except to cross her land;

(iii) Not to remove any trees from the tree line adjacent to the right of way and not to remove any fencing on the common boundary between Lots 1 and 2 in DP882231 and not to remove any fencing on or adjacent to the right of way except for the purpose of installing gates to allow her to cross the right of way so she may cross from her land on one side to her land on the other side of the right of way."

Those undertakings extended to Ms Hawes' servants, contractors and agents.

The Associate's Record of Proceedings contains this note of the judge's orders and directions: "By consent and without admission, I note the undertaking in paragraph one of the document entitled 'Short Minute'.

I note the undertakings in paragraphs two and three of the document.

Each party is to pay their own costs." The undertaking in paragraph 3 involved Ms Hawes executing the quality print as purchaser of the transfer containing the covenant as earlier mentioned.

The document attached to the Associate's Record of Proceedings differs from Annexure E to the affidavit of Ms Karageorge in that (a) It uses the words "Short Minute" and not the words "Consent Orders" (b) Paragraph 5 - "Costs be reserved" has been deleted (c) It bears the judge's initials and the date "14/2/2003" beside her initials.
I rely on the Associate's Record of Proceedings and the attached "Short Minute". There is not a great deal of difference in substance between the undertaking given on 14 February 2003 in order 2(ii) and Orders 1 and 2 as now sought. The latter are expressed in greater detail and with greater precision. In these earlier proceedings Ms Hawes did not press for the covenant to be set aside.

Ms Hawes submitted that: (a) the covenant was bad at law as it amounted to an ouster of the servient landowner.

(b) A right that purports to confer on the dominant owner the exclusive right to use part of the servient land, or a right which is too extensive or practically amounts to exclusive possession is inconsistent with the concept of an easement and is therefore not an easement.

(c) The easement does not have to amount to giving total possession and exclusive rights to the dominant tenement to be bad at law: Harada v Registrar of Titles [1981] VR 743 at 753 where it was held:

"… if the rights the subject of the [alleged easement] were acquired, the plaintiff would be left with very few rights over her property and could do little more with it than move over it and park cars on it. … the rights sought to be acquired by the SEC do not fall within the category of a common law easement. They would really amount to rights of joint user by the SEC of the plaintiff's land."

See also Clos Farming Estates Pty Ltd (Rec. & Man Appt) v Easton & Anor [2001] NSWSC 525 at [44] and [45]:

"It appears from Evershed MR's observations in Ellenborough Park at 168 that an intervention less extreme than an exclusive and unrestricted use of a piece of land can invalidate a supposed easement."

(d) While the second condition for a valid easement specified in Re Ellenborough Park [1956] Ch 131 that the easement must accommodate the dominant tenement is satisfied with the normal right of carriageway (quoted earlier) the covenant goes well beyond that as it seeks to stop the subservient owner also using her property as a right of carriageway. The extra layer of rights vested in the proprietor of the dominant tenement on top of the normal right of carriageway in favour of the dominant tenement to the exclusion of the subservient tenement makes this easement an invalid one. The dominant tenement cannot have the alleged extra contractual right to try and force the subservient tenement owner from the driveway. The extra layer of right residing in the proprietor of the dominant tenement keeping the registered proprietor of the subservient tenement from her land is not connected with the normal enjoyment of the dominant tenement. In Clos Farming Estates v Easton & Anor [2002] NSWCA 389 at [31] Santow JA accepted the view of Bryson J that whether the right granted accommodated and served the dominant tenement depended on whether the right granted was connected with the normal enjoyment of the dominant tenement. Santow JA pointed out that this was a question of fact, dependent on the nature of the dominant tenement and the right granted. The nexus must exist in a real and intelligible sense. (e) The fourth condition, as specified, in Re Ellenborough Park , namely that the right claimed must be capable of forming the subject matter of a grant, had not been met. The covenant imposes so great a restriction on the possessory rights of the proprietor of the servient tenement as to render the right given away not capable of forming the subject matter of a grant of easement. (f) The terms of the orders sought and the terms of the covenant do not satisfy the three cognate issues formulated in Ellenborough Park. First, the rights purported to be given are expressed in terms too wide and vague in character. Secondly, such rights would amount to rights of joint occupation or, at least, would substantially deprive the owners of proprietorship or legal possession. The third cognate issue does not arise in the present case. 39. As to the second cognate issue or question the defendant submitted that the covenant could not be upheld because it granted exclusive use of the right of way to the plaintiffs and or, at least, produced a situation of no "real proprietorship over the burdened land." ([36] of Clos). What was left accentuated the "sterile" and "nominal" character of the right of ownership and occupation remaining for the servient owner.

The defendant asked the Court to apply the reasoning of King J in Harada v Registrar of Titles, submitting that as in Harada the rights sought by the plaintiffs "go much further than a prohibition of interference with the enjoyment by [the plaintiffs] of [their] rights".

The defendant pointed out that the 10 metre wide segment of land had to be kept as a right of carriageway. She could not dig it up and plant a crop, or plant an orchard on it. There were problems about running stock on the carriageway if the plaintiffs or their visitors left the gate open and making sure that the stock did not impede the plaintiffs in their passing along the carriageway. The major use of the land, with its gravel track is as a driveway. The defendant complained that the plaintiffs were treating the land the subject of the right of way as if they were the freeholders and were seeking to regulate how far she can travel along the right of way and how she must access the burdened land. She complained that the plaintiffs proposed that her access to her land be via a gully where a pipe has to be laid and other works carried out, for example, the construction of a track.

The plaintiffs' response was that the right of carriageway created in late 1998 was the conventional and usual one and could not be regarded as objectionable. The restrictions complained of arose not from the easement but from the terms of the restrictive covenant. The plaintiffs contended that the easement and the restrictive covenant were separate and could not be linked in the manner suggested by the defendant. Further, the defendant had not sought to cross-claim to set aside (or modify) the easement or the restrictive covenant. As a result of the earlier proceedings the defendant had entered into the restrictive covenant. She had not taken the opportunity to challenge the restrictive covenant and she had given undertakings to the Court which continue.

Even though not formally articulated the basis of the approach of the defendant was that the easement and the covenant had to be taken together as the restrictive covenant imposed further restrictions on the servient tenement and particularly on her use of the land the subject of the right of way. It was artificial to separate them as both flowed from the development condition (4) imposed by the Council, namely: "Proposed right of way is to be created over the existing gravel drive for the exclusive use of Lot 2 …".

The s 88B Instrument lodged with the Council and registered at the time of the registration of the Deposited Plan did not contain the restriction mentioned in Development Condition 4. That was picked up in the covenant, included in the transfer.

There are a limited number of uses to which the land the subject of the right of way might be put. A limited number of stock may be able to graze on that land provided the gate about 10 metres from Loftus Road was kept shut. It would be impractical to plant a crop. Provided they did not use it as a means of access to the land burdened the defendant and her children could ride their bicycles or run or walk up and down the right of way for exercise. Further, the covenant would not prevent the defendant using the carriageway to move supplies from one part of her land to another. There may well be other uses which would not contravene the restrictive covenant, but they are limited.

The third sentence of the covenant does not require the proprietors of the land burdened to cross the carriageway at right angles. Each crossing of the carriageway could involve walking or driving along some part of the carriageway.

My views are as follows: 1. If the terms of the easement, that is, the grant of the right of way, are considered separately there can be no valid attack on that easement.

The covenant falls short of granting exclusive use of the carriageway to the proprietors of the land benefited. The covenant envisages that such proprietors may in fact have exclusive use of the carriageway but that does not seem to have happened in the present case. However, the effect of the covenant and easement when taken together severely limits the use to which the land, the subject of the easement can be put by the owner of the servient tenement. There is substance in the contention that the character of the right of ownership and occupation remaining for the servient owner is sterile and nominal. 3. Sentences 1 and 4 of the covenant impose positive obligations on the proprietors of the land benefited. Sentence 2 of the covenant imposes what in substance is a negative obligation on the registered proprietor of the land burdened. The third sentence creates an exception to that negative obligation. 4. If the easement had, pursuant to the development approval, been expressed in those terms or if it had incorporated the terms of the restrictive covenant the easement would probably not have been upheld. I am wary about upholding the devise of using a restrictive covenant to add to the burden of the easement when, if the easement granted had included those additional terms it would not have been upheld.
It should not be overlooked that if the land the subject of the right of way had been incorporated into Lot 2 and had not formed part of Lot 1, that Lot may not have reached the minimum area for a subdivision and the whole subdivision may have had to be re-ordered.

I am not aware of any authorities which deal with the situation which has arisen in the present case or a similar or related one. To some extent this case raises novel issues. The terms of the restrictive covenant were re-affirmed in February 2003 in the earlier proceedings. Important and continuing undertakings to the Court were given. Neither in the earlier proceedings nor in these proceedings has application been made for a declaration as to the lack of enforceability of the easement or the covenant or to set either or both aside. Those foundation issues have to be resolved and these proceedings as presently constituted are not a satisfactory vehicle to resolve them. The plaintiffs mounted a relatively narrow case at the hearing. The essence of the injunctive relief they now seek is to restrain a breach of a negative stipulation that the registered proprietors of the land burdened not use the carriageway as a means of access from Loftus Road to the land burdened.

Has the Covenant been Breached 50. Ms Hawes submitted that even if the covenant survived no breach had occurred. It was submitted that since the resolution of the earlier proceedings on 14 February 2003 Mr Hawes and her agents have been accessing her land via Lot 3 and then onto her sliver of land on the southern side of the carriageway. It was submitted that the evidence of Mr Surveyor Rogers shows that this was physically able to be achieved. Mr Rogers stated that there was a distance of probably about 5 metres between the Telstra Pit and the intersection of Lots 1, 3 and Loftus Road. If a vehicle travelled roughly between these points the vehicle would enter and travel upon Lot 3 and then upon Lot 1 (the sliver). Mr Rogers believed that the verge up to the 5 metre area mentioned was reasonably flat and that you could drive a vehicle on to Lot 3.

The vehicle could move from Lot 3 onto the sliver of land being the smaller part of Lot 1. The vehicle would then travel onto the right of carriageway, through the gate and along the gravel roadway within the right of carriageway until it was about half way along the right of carriageway, when it would turn onto the larger portion of Lot 1 at the area marked "Access In Use".

The plaintiffs challenged that this had happened and was in fact happening other than on, perhaps, a few isolated occasions. The plaintiffs also challenged the defendant's claim that the defendant had permission from Mr Skelton, the owner of Lot 3, to use a small triangular portion of Lot 3 to access the sliver. The plaintiffs pointed out that Mr Skelton had not been called. The suggested route uses a miniscule part of Lot 3.

In his affidavit of 5 October 2004 Mr Hubbard deposed to a meeting he and Ms Hawes had with the plaintiffs, probably about 15 February 2003 in which, amongst other discussion he said: "Since the Court case Vanessa and I have negotiated with Mr Skelton next door. We have got his permission to enter by coming off Loftus Road onto Lot 3 and then onto Vanessa's land."

Mr Hubbard stated that Mr D A Tiller replied: " You can't do that. You can't use any part of that right of way. We will let you use the right of way as a means of access if you want to but you will have to get rid of your rubbish keep your block clean and tidy and fix the fencing."

Mr Hubbard explained that by the words "Since the Court case" he meant since it began. He said that this was about 6 weeks before the hearing on 14 February 2005. Mr Hubbard insisted that he had negotiated with Mr Skelton and did have his permission to enter Lot 3 by coming off Loftus Road onto Lot 3 and then proceeding on to the sliver of land which was owned by Ms Hawes and that this matter was discussed with the plaintiffs.

Mr Hubbard stated that at the time of the meeting they (Ms Hawes and Hubbard) had negotiated with Mr Skelton. Mr Hubbard said that he did not believe that they were trying to negotiate with the plaintiffs for a licence agreement, but rather that the plaintiffs were trying to negotiate with them. The plaintiffs wanted concessions before any licence agreement was signed and these were not acceptable to the defendant.

Mr Hubbard said that they (Ms Hawes and he) did have an agreement with the Whitehairs, the previous owners, to use the right of way. The troubles started about November 2002 when Mr Whitehair said to him "Stop using the right of way or I will have you arrested" and he was put in gaol. Apparently an AVO (apprehended violence order) was taken out about 11 November 2002. Mr Hubbard said that a result of what had happened they realised they had a problem and so they looked at approaching Mr Skelton.

Mr Hubbard stated that a couple of days after the plaintiffs completed their purchase of Lot 21 he introduced himself to the plaintiffs, who said "…we have heard about you." This was in mid-December 2002. Mr Hubbard said that they ceased using the right of way.

In his affidavit of 5 October 2004 Mr Hubbard said: "…I have not since approximately February 2003 used the carriageway to access Loftus Road from the defendant's land. I admit that visitors drive on the right of carriageway. All visitors are told that they must enter through Lot 3."

At T43 Mr Hubbard stated that they "were coming in on Lot 3, and then travelling in and coming off half way down the drive."

Mr Hubbard said that the other option used was "by coming in Lot 3, round the bottom of Lot 3 and then back up from the Tiller's end of the right of way and then back up and then exiting …"
Counsel for the plaintiffs endeavoured in cross-examination with the use of photographs to establish that access via Lot 3 could not be gained, but did not succeed. Mr Hubbard explained that he had removed two lots of fencing. Access was possible from Loftus Road onto Lot 3 adjacent to the intersection of Lots 1 and 3 with Loftus Road. Having gained such access it was possible to travel onto the sliver of Lot 1. This was a relatively awkward manoeuvre and likely to be avoided by most visitors to Lot 1.

I am not prepared to reject the evidence of Mr Hubbard that he did make an informal arrangement with the owner of Lot 3 to gain access via Lot 3. A miniscule part of Lot 3 was involved. Lot 3 has an overall area of 6.227 ha. The informal arrangement may well be able to be cancelled on very short notice.

The plaintiffs contended that even if access was possible via Lot 3 the bulk of visitors and tradesmen drove straight down the right of carriageway and did not enter via Lot 3. Mr Hubbard stated that they told all visitors and tradesmen to enter to the left of the survey peg and when they leave to exit to the right of the survey peg. It was described as "the little one". It was in a tuft of grass. Mr Hubbard said that whenever the plaintiffs are staying at their property or someone needs to know about the peg (for entry purposes) they (he and Ms Hawes) put in a longer peg. Unfortunately the longer peg is interfered with and disappears. Mr Hubbard added, "It is not always removed, it is just a silly thing to have out there when the Tillers aren't there. Mr Hubbard maintained that their visitors and tradesmen knew the route to be used when coming and going from Lot 1 involving the initial entry onto Lot 3.

Mr Hubbard said that when heavy vehicles needed access to Lot 1 he would go to a point on Loftus Road at the nearby corner and guide the vehicles as they manoeuvred to gain access. Normally he did not position himself at the gate to open and close it.

Mr Hubbard stated that the Tillers did not close the gate across the right of way and that as a result any stock using the carriageway escaped.

In her affidavit of 5 October 2004 Ms Hawes stated that she instructs all her guests, contractors, agents or anybody else coming to her house to enter via Lot 3 and follow the route which she uses, that is enter Lot 3 from Loftus Road, turn in what is essentially a northerly direction to leave Lot 3, enter her land, traverse the land within the carriageway, and again turn in essentially a northerly direction to go to her house.

Ms Hawes said that at a meeting with Mr and Mrs Tiller, after she had repelled his demands as to clearing up her block and fixing the fencing, she told him amongst other things, "We're also entitled to use the right of way, we just can't access the road directly from the right of way and as you know we don't."

Ms Hawes said that Mr Tiller became very animated and very aggressive and said words to the effect of "Are you stupid?" and "I have a lot of money and I'll have you in and out of court until you're broke and I own the place." Although Mr Tiller denied making such remarks I think he probably did.

Ms Hawes said she replied to the following effect: "I know it's a registered right of way and I know you are entitled to get from A to B. We can both use it and maintain it equally. It is a shame that Mr Whitehair has done this in a way that creates all this trouble."

Ms Hawes said that she had an oral agreement with Mr Whitehair that he would permit her to use the existing driveway for construction traffic on the basis that she would maintain the driveway's integrity.

Ms Hawes believed that they came upon the idea of accessing her property via Lot 3 after the Court case [in February 2003] when they looked into the Council and linen plans, the development application and they saw there was only one access for Lots 1, 2 and 3 and that Lot 3 needed to use that access as much as they and Lot 2 did. Ms Hawes said that Mr Hubbard had talked with Mr Skelton and she had talked with his wife. Ms Hawes believed that Mr Hubbard entered into those discussions directly after the Supreme Court hearing. Ms Hawes thought that they had not approached Mr Skelton prior to their discussions with the plaintiffs and while negotiations over the licence agreement were proceeding. She did not enter into the licence agreement because it could be revoked.

Ms Hawes thought that Mr Skelton was approached around late February.

The evidence of Ms Hawes and Mr Hubbard differs as to the time when Mr Skelton was approached. I can accept that having regard to the awkward nature of the entry via Lot 3 it is not improbable that Mr Hubbard, after having made arrangements with Mr Skelton, was prepared to enter into discussions with the Tillers as to the use of the right of way as that was a more convenient method of access and one more likely to be taken by tradesmen. Ms Hawes' evidence as to the time of the approach seems more probable. Ms Hawes' memory is re-enforced by the research done and satisfactory arrangements with the Tillers to use the right of way were preferred. However, the important issue was whether the informal arrangement with Mr Skelton deposed to by Mr Hubbard was made. I think it probably was, but a little later than suggested by Mr Hubbard.

Ms Hawes said that during February 2003 they accessed Lot 1 by driving to the southern end of Lot 1 and gaining access to the sliver. She denied that they were accessing Lot 1 via the right of way.

It was apparent from Ms Hawes' evidence that she believed that if she entered in her vehicle via Lot 3 and then turned onto the sliver, proceeded to and through the gate (about 10 metres from Loftus Road) and travelled along the right of way to the point marked "Access In Use" (about halfway along the right of way) and then turned onto the largest portion of her property, she was not using the right of way as a means of access to Lot 1. She insisted that she accessed her land prior to going on to the right of way.

The video taken by Mrs Tiller in October 2004 showed Ms Hawes proceeding in a vehicle down the right of way from the gate to the point marked "Access In Use". Ms Hawes asserted that she had previously left Loftus Road, entered Lot 3, passed onto the sliver of Lot 1 and passed through the gate. She asserted that she was crossing over the right of way to access the largest portion of her land. I accept that from February 2003 Ms Hawes followed the route she has described.

The video taken by Mr Follington, the private investigator, showed vehicles including heavy trucks progressing along the right of way from the gate to the point "Access In Use". Ms Hawes asserted that the vehicles were crossing over the right of way. Heavy vehicles were directed to enter via Lot 3 and the sliver of Lot 1. She said that sometimes they were out on Loftus Road when the heavy vehicles arrived. Further, they had told the suppliers of the means of entry beforehand, alerting them to the position of the survey peg which, she said, can be seen clearly. It indicates the boundary of Lots 1 and 3.

Ms Hawes agreed that she entered the right of way about 10 metres after she entered Lot 3. There was, she said, plenty of room to access her land (the sliver) before entering the right of way. Ms Hawes and Mr Hubbard agreed that there was no sign at the front of Lot 1 telling visitors and tradesmen how to enter and gain access to her property.

Ms Hawes insisted that she, Mr Hubbard and visitors (including tradesmen) used the means of access she described. I accept Ms Hawes and Mr Hubbard used the route she described and that some of the tradesmen and some of their visitors also did so. I do not accept that all tradesmen and visitors did so. Driving straight up the apron to the gate, opening it if necessary, and continuing along the carriageway was much easier than the route described by Ms Hawes.

Mrs Tiller gave evidence of a meeting in mid to late February 2003 involving her husband, Ms Hawes and Mr Hubbard. Mrs Tiller said that she told Ms Hawes and Mr Hubbard that they could use the right of way but not as a means of access to build their home. Mrs Tiller asked them to remove their rubbish from the buffer zone. In response to Mr Hubbard Mr Tiller said they would never remove the covenant.

Mrs Tiller said that on 25 April 2003, after an incident involving her ten year old daughter and Ms Hawes on the carriageway she (Mrs Tiller) said to Ms Hawes, "Stop using the right of way as your access"; and that Ms Hawes replied, "I am going to use the right of way; it's my land. I can do what I want. I'll put up 14 gates and leave everyone of them open all the time." I accept that Mrs Tiller issued the direction to Ms Hawes. I have some doubts as to the terms of Ms Hawes' alleged reply.

Mrs Tiller said that on 7 June 2003 at 1.30pm she saw a male driving vehicle registration AGV67G up the right of way to Ms Hawes' property. She said that the male got out of the vehicle and walked across Ms Hawes' land towards the right of way. They spoke and amongst other things she told him that he should know that he should not be driving along the right of way,

Mr S A Hartas confirmed that he drove the vehicle in question and that he had visited Ms Hawes' property. He said that he drove up what appeared to be the driveway when a woman approached him and told him that he could not drive up the driveway to get to the house on Lot 1. Mr Hartas said that the lady (whom he believes was Mrs Tiller) became very abusive. The lady went to the house of the neighbouring property. A male came out of the house and jumped on a ride-on lawn mower. The male drove down the driveway and commenced cutting the grass in such a way as to throw rocks and debris at his car, as a result of which Mr Hartas moved his car.

There was some inconsequential conversation between Mrs Tiller and Mr Hartas, as to which they disagreed.

In about August/September 2003 Mrs Tiller telephoned Mr Hubbard. She said that during the telephone conversation Mr Hubbard said, "Lots 1, 2 and 3 are entitled to use the right of way under the Carriageway Act. I have sorted this out with Council."

On 26 December 2003 there was an ugly incident. Mrs Tiller alleged that her son was riding his bike on the right of way when Ms Hawes started to yell at him and that as he drew level with her she tried to either hit him or push him on his back. There was a confrontation between Mrs Tiller and Ms Hawes. Mr Hubbard was also present. Mrs Tiller remonstrated with Ms Hawes and this was allegedly followed by this interchange, according to Mrs Tiller. VT: "Don't you touch my children again. CH: I am concerned the bikes are going down the right of way too fast and I want you to slow down because we have some small children.

VT: You just don't get it do you. If you didn't pull down the fences and if you put up gates this wouldn't happen." 88. Mrs Tiller asserted that Ms Hawes and Mr Hubbard had removed the fencing from the right of way where they were accessing their land for building purposes and had not installed any gates. Mrs Tiller said that she and Ms Hawes had a heated verbal argument. That is probable.

Ms Hawes and Mr Hubbard gave a somewhat fuller version of events. They said that Mr Tiller approached. He said, "I'm going to put you in a f - -box with handles if you touch my son again." Ms Hawes believed that remark was addressed to Mr Hubbard. He replied" "I did not touch your son."

Ms Hawes photographed the plaintiffs. They were in an aggressive frame of mind.

Ms Hawes said that about five minutes later Mrs Tiller called out to Mr Hubbard from the carriageway when she was near our house. She remarked that things were getting out of hand. Mr Hubbard replied, "Your husband has threatened my life again and this is getting too dangerous. You can't use the carriageway as a racetrack."

Mr Hubbard said that Mr Tiller then emerged and started making abusive comments about Ms Hawes. When Ms Hawes joined them she remarked, "No one touched your son. He almost ran into me."

Mr Tiller then said: "I wouldn't f - you with a ten foot pole, you feral slut."

Mr Hubbard looked at Mrs Tiller and said, "See". Mr Hubbard and Ms Hawes left.

Mrs Tiller accepted that her husband had uttered the words attributed to him, but explained they were angry at what had happened.

Mr Hubbard said that on the morning of 26 December 2003 the plaintiffs' children and others associated with them were racing their motor bikes up and down the gravel drive. They were reaching third gear and also doing "burnouts". It seems that they were probably doing circuits although that was denied. One motorcycle rider was doing about 30 km per hour. He swerved to avoid hitting the 6 year old son of Ms Hawes and Mr Hubbard and in so doing swerved towards Ms Hawes. As the motorcycle rider veered towards Ms Hawes her arms went up in the air. The rider appeared to make contact with Ms Hawes who appeared to jump away. Mr Hubbard said that he and Ms Hawes returned to their house site. Mrs Tiller then approached them.

Mr Dallas Tiller, a nephew of the plaintiffs, said that on 26 December 2003 he was riding his motor bike and Wade Tiller and Stephanie Tiller were riding their motor bikes alongside him. It was about midday. He said that he saw Ms Hawes run out to the right of way and put herself in front of Wade's bike so he had to stop to avoid knocking her down and that she held Wade's hands on the handlebars and then screamed abuse at him. Mr Dallas Tiller said that they had been riding their bikes for short periods on and off during the morning. He could not remember when they started. He said that they were riding down the right of way towards Loftus Road and then back up towards the plaintiffs' house. They were wearing helmets. He said that they had not been racing each other up and down the drive, but they had been racing each other in the backyard of the plaintiffs' property. On occasions they went up Loftus Road and turned left along the access road or fire trail, entered the plaintiffs' property and then came down the right of way. Every time he visits the plaintiffs' property, it is one of the rides they do on the motor bikes. They were trail bikes.

Mr Dallas Tiller was familiar with burnouts and had done them but, he said, not on the carriageway. The motor bike he was driving was pretty powerful. He did drive it fast on Loftus Road but, he claimed, not on the carriageway.

I do not accept that the motor bike riders were proceeding as slowly as Mr Dallas Tiller stated. Nor do I accept that the riders engaged in no burnouts or racing on the carriageway. Ms Hawes was worried about the safety of her young children and was concerned about what appears to have been an unreasonable use of the carriageway. She tried to stop it. It had continued for some hours, but with some breaks.

This case is not primarily concerned with unreasonable or unsafe use of the carriageway by the plaintiffs or their family members on occasions.

The photographs taken on 26 December 2003 were revealing. I am satisfied that each of the plaintiffs acted aggressively towards Ms Hawes and Mr Hubbard and that Mr Tiller behaved like a bully towards both of them. The aggression of each of the plaintiffs came through as each gave evidence.

The plaintiffs did not accept that Ms Hawes, her family and her visitors, on leaving Loftus Road entered via Lot 3 and then moved onto the sliver of Lot 1.

Mrs Tiller said that on 12 January 2004 at 3.50pm she observed that Mr Hubbard was a passenger in an Isuki truck WIH 506) which was being driven along the right of way. She stated that she said to the driver, "You should not be driving along the right of way." She saw the same truck driving back along the right of way at 6.30pm towards Loftus Road. The evidence does not disclose whether on either occasion the truck, before or after passing through the gate, travelled upon the sliver of land and Lot 3. What is not in doubt is that the truck travelled from the gate along the right of way to the point marked "Access In Use".

Mrs Tiller has annexed to her affidavit of 24 March 2004 a photograph taken by her on 7 February 2004, showing openings in the right of way fencing which Mrs Tiller asserted that Ms Hawes used to access her building site from the right of way. The tyre marks from the gravel track onto Ms Hawes land are telling and bespeak an appreciable amount of use of that access.

Mrs Tiller annexed two further photographs she took showing the front of Ms Hawes' property (Lot 1) to Loftus Road. She asked the Court to draw the inference that there was plenty of room for Ms Hawes to arrange alternative access to her land. Lot 1 has a lengthy frontage to Loftus Road but the Kempsey Shire Council, for reasons of road safety, will only permit one point of entry and exit to and from Loftus Road for Lots 1, 2 and 3. This does mean that all vehicles going to and from these Lots would have to drive up the apron and once on the right of way at the boundary of Loftus Road proceed to their various properties. The evidence led on behalf of the defendant referred to a number of substantial difficulties with providing and constructing a driveway onto the largest portion of her land.

In her affidavit of 15 October 2004 Mrs Tiller said that on at least 100 occasions she had seen Ms Hawes drive "off Loftus Road, up the apron through the gate that is on the front of the carriageway and then turn off the carriageway into her property". Mrs Tiller asserted that Mr Hubbard "accesses the property this way, as do the tradespeople who are building the house and other persons who are visiting the defendant's property." Mrs Tiller insisted that she had never seen Ms Hawes accessing her land by driving onto Lot 3 but her evidence on that point is incorrect. Mrs Tiller stated that she was able to observe the entrance to the right of way off the roadway from her kitchen. She annexed a photograph she took on 8 October 2004 and drew attention to some insulated wire between two posts immediately to the south of the apron.

Mrs Tiller said that if anyone was to remove that wire to gain access to Lot 3 she would easily be able to see them when she looked out from her kitchen. She did not see anyone removing that wire. From the photographs it is not clear whether a vehicle could be driven up the apron and turned sharply to the south and onto Lot 3 behind the slender post which stands on the southern side of the apron.

Mrs Tiller stated that she stayed at their property from about 25 September 2004 to 10 October 2004 and, during that time, observed at least six vehicles, one being a large truck, which accessed Ms Hawes' land by means of coming in the gate and driving up the right of way.

On 11 October 2004 she took the video previously mentioned. She said that she was at her front door when she saw Ms Hawes' car approaching from Loftus Road. She said Ms Hawes and Mr Hubbard accessed her property by means of the right of way.

In her affidavit of 15 October 2004 Mrs Tiller explained her position as follows: "We do not want the gate at the boundary of the Defendant's property where it meets Loftus Road. We want the gate to remain where it is at the commencement of the right of way, which I estimate to be five to ten metres from Loftus Road. If the gate were locked the Defendant could still enter her land by turning right before the gate from the gravelled apron that fronts Loftus Road and she could enter Lot 3 by turning left. The thing that prevents her from entering land by turning right at the moment is that she has not constructed an entrance driveway. If it is suggested that the position of the water meter to my property would impede access from the apron to Lot 1 my husband I am perfectly prepared to move it."

In his affidavit of 19 May 2004 Mr Tiller said that he had seen Mr Hubbard driving his car on the right of way on numerous occasions and visitors to Ms Hawes using the right of way on numerous occasions. The covenant does not prohibit Ms Hawes or her visitors from driving along the right of way, but it does prohibit them using the right of way as a means of access to Lot 1 when going to and from Loftus Road.

In his affidavit of 20 October 2004 Mr Tiller said that he had seen Ms Hawes and Mr Hubbard drive down the driveway from Loftus Road and through the gate at least 20 times. Mr Tiller said that the last time he saw Mr Hubbard drive through the gate and down the driveway in a westerly direction and then turn in a northerly direction to access the largest portion of Lot 1 was 11 October 2004.

Mr Tiller said: "We wish to lock the gate in its existing position and we say that there is nothing stopping the defendant from driving off the apron from Loftus Road and onto the start of the right of way before the carriageway begins and turning north before the gate to access her property, except that she hasn't built a road."

Mr Tiller admitted that he said words to the effect: "I am prepared to enforce my legal rights in Court if necessary." He denied as alleged by Ms Hawes and Mr Hubbard, saying "I have a lot of money and I will have you in and out of Court until you're broke and I own the place."

As earlier stated it is probable that Mr Tiller did say the words alleged. The materials disclosed that he was a man of considerable financial substance. He was very aggressive and a bully. This emerged on 26 December 2003. His aggressive qualities emerged while he was being cross-examined.

When, in his second affidavit Mr Tiller denied using the words quoted in paragraph 17 of Ms Hawes' affidavit (the "feral slut" remark) Mr Tiller was being untruthful.

Mr A G Follington, private investigator, stated that in about June 2003 he received instructions from the plaintiffs to investigate whether Ms Hawes, Mr Hubbard or others were using the right of way as a means of access to their building site on Lot 1 from Loftus Road. He wrote of visiting the property on 24 different occasions before being able to photograph and film Mr Hubbard, workers and a delivery vehicle using the right of way then onto the work site.

Mr Follington wrote that they only found Mr Hubbard and workers present on several occasions and Ms Hawes on one occasion. Mr Follington's report of 5 September 2003 and his subsequent report concentrated on what occurred on 2 September 2003.

Mr Follington engaged Mr Hubbard in conversation on several occasions, telling him that their son was interested in purchasing property in the area. Mr Follington did not tell Mr Hubbard that he was there to investigate. When he was filming or photographing he was taking trouble not to be seen.

Mr Hubbard was filmed opening the front gate (or about to do so). Mr Follington said that on Mr Hubbard, seeing his vehicle, he drove around on his own land and when Mr Follington approached him, stopped before driving on to the access proper and said, "I came around the back as I thought someone was trying to photograph me using Tiller's right of way, but it is only you." Mr Hubbard was filmed driving along the carriageway onto the largest portion of Lot 1.

Mr Follington wrote: "A worker then arrived, driving onto the access road via the main gate and subsequently onto the work site. A large tipper truck arrived driving directly thorough the front gate and onto the access road. Hubbard was then seen guiding the truck to a point on his property, where sand was dumped.

Hubbard was then filmed guiding the truck driver who reversed the vehicle along your access road and out onto Loftus Road and then went off in the direction of Crescent Head.

A short time later another worker was seen to drive through the front entrance onto your access and then onto the work site." 122. Mr Follington agreed that in effect he was filming down the right of way towards the gates. In cross-examination he said that the vehicle came off Loftus Road onto the right of way. He was told by Mrs Tiller that the right of way started at the gate. He was instructed to film how Ms Hawes and Mr Hubbard accessed the right of way starting at the gate.

One of the photographs taken by Mr Follington on 2 September 2003 shows the gate open. There is a notation that workers were on site.

I accept that on 2 September 2003 vehicles, each being driven by a worker, Mr Hubbard's vehicle and Mr Hubbard and the tipper truck passed through the gate, along the carriageway and then onto the larger portion of the plaintiff's property. The tyre marks leading from the gravel track on the carriageway onto the largest portion of Ms Hawes' land and vice versa indicate an appreciable number of vehicular movements.

It has been proved that breaches of the covenant occurred.

Decision 126. An important factor in resolving the issues in the present proceedings is that in the earlier proceedings Ms Hawes settled them on the basis earlier mentioned. She sought no declaration that the covenant contained in transfer 8646652 was unenforceable and no declaration that the easement and covenant taken together were unenforceable nor any modification of either of them. Instead, she undertook to execute a quality print of that transfer with the covenant and to deliver it to the Registrar-General. She also gave the other undertakings earlier mentioned and which continue. There cannot be further litigation in respect of issues that should have been raised in the earlier proceedings. There is no application before this Court for declarations that the easement or the covenant are unenforceable, nor for orders setting aside the easement or the covenant.

Ms Hawes believed she was complying with her undertaking to cease using the right of way as a means of access from Loftus Road to her land by adopting the tortuous method of access which she has described, that is, via Lot 3, the sliver of Lot 1, passing through the gate and then proceeding along the right of way to the point marked Access In Use on Exhibit A, the large plan.

In my opinion, the route travelled by Ms Hawes and those of her visitors and tradesmen who follow that route involves using the right of way (or carriageway) as a means of access to the land burdened. What is involved is travelling along the right of way for about half its distance. That could not fairly be described as crossing the right of way to access the land burdened on either side of the right of way. I accept that the crossing points on either side of the carriageway do not have to be directly opposite each other. It is a matter of degree.

The plaintiffs are entitled to use the carriageway to pass and re-pass on their journey from Loftus Road to Lot 2 and vice versa. They are not entitled to use it as a race track or to create a nuisance. Ms Hawes is the owner of the land the subject of the right of way and has the right to use it other than as a means of access to the land burdened. Neither she nor any of her family may hinder or prevent the plaintiffs passing and re-passing along the right of way.

The relationship between the plaintiffs and the defendant will continue to be stormy and difficult. Part of the problem has been that the plaintiffs initially believed that they were entitled to the exclusive use of the right of carriageway. They also believed that the right of way did not extend to the boundary of Lot 1 and Loftus Road, but to a point or line on Lot 1 about 10 metres from such boundary, that is, where the gravel track commences. The plaintiffs believed that vehicles going to Lots 1, 2 and 3 would drive up the apron from Loftus Road on to an area on Lot 1 being not more than 10 metres from the Loftus Road boundary and that vehicles going to Lot 1 would enter the remainder of Lot 1 to the north at a nearby point, vehicles going to Lot 3 would enter Lot 3 at a nearby point to the south and vehicles going to Lot 2 would proceed down the right of way.

The problems are not made easier by the plaintiffs being present on the property for short periods each year and the difficulty Ms Hawes and Mr Hubbard have in appreciating why in those circumstances they cannot use the right of way in the manner they have described.

In formulating in final addresses the revised orders sought counsel for the plaintiffs partly followed the words of the covenant and the easement and expanded upon them. The covenant "The registered proprietors of the land burdened by such right of way agree not to use such right of way as a means of access to the land burdened" has become in draft order 1: "The defendant is restrained from, by herself or by permitting or suffering any other person (including her family, her servants, contractors or agents invitees or visitors) from using the right of way as a means of access ………..from Loftus Road to the land burdened by the covenant."

That form of order is too wide and could operate oppressively. "Suffering" has many meanings. It is not clear which one is meant. In the context it connotes the taking of action which she cannot prevent or control in practice. Ms Hawes can ask people not to use the right of way as a means of access from Loftus Road to Lot 1, but if they ignore her request there is little she can do practically, except to tell them not to come again. Employees of contractors may not be told of the restriction by their employer and she may not know of all intending visitors, for example, salesmen, charity collectors or religious enthusiasts seeking converts. People may access her property when she is not there. Ms Hawes cannot be expected to maintain a constant vigil at the roadside for straying vehicles. It is preferable that any injunction should commence to operate not from the boundary of Lot 1 and Loftus Road, but from a point or line on Lot 1 10 metres from such boundary. Care has to be taken that Lot 1 is not technically land-locked, bearing in mind the Council's requirement that there be one point of access from Loftus Road to Lots 1, 2 and 3. Draft Order 1 has to be reframed and I have done so.

Draft Order 2 as proposed by the plaintiffs adds a proviso namely "provided that the substantial purpose or character of such crossing is not as part of, or as a means of access to the land burdened by the covenant from Loftus Road." Words to this effect are not found in the covenant and are unduly restrictive.

In my opinion it would not be in breach of the covenant for the defendant to leave Loftus Road via Lot 3, move onto the sliver of land, travel down the sliver of land to a point approximately opposite the area marked "Access in Use", cross over the right of carriageway and proceed along the area marked "Access in Use" on to the northern portion of Lot 1. There could be variations to this scenario and the point at which there is a crossing of the right of carriageway. The vice in the arrangements described by Ms Hawes was proceeding down the right of way for about half its length. The actual words of the covenant are: "The registered proprietors of the land burdened by such right of way agree not to use such right of way as a means of access to the land burdened. However this will not prevent the proprietors of the land burdened from crossing the right of way to access the land burdened on either side of the right of way."

It is important that the order reflect both the negative stipulation and the qualification. It is also desirable to add the second qualification.

In view of the way Draft Order 1 has been reframed Draft Order 3 is not appropriate

The question of costs remains. The plaintiffs at the hearing abandoned the relief sought in the Summons as to re-installing of the fencing and the declaration as to locking the gate and the consequent injunction. On the other hand the plaintiffs have obtained some of the relief sought, subject to reformulation of the orders. The greater part of two days of the hearing was occupied in hearing evidence and the resolution of factual disputes. Much of the defendant's address on the third day of the hearing was spent seeking to have the Court refuse the relief sought by the plaintiffs on the ground that the easement and the covenant should not be upheld. My provisional view is that the plaintiffs should receive three-quarters of their costs of the proceedings, but I am prepared to hear argument on the point. I will make an order giving effect to my provisional views, but will reserve leave to either party to argue the question of costs provided any such party gives written notice to my associate and the other party of the desire to do so within 7 days from the date of delivery of this judgment.

I propose to defer the coming into operation of Orders 1 and 2 until 30 April 2006 so as to give the defendant an opportunity to consider what works, if any, she wishes to carry out and the opportunity to have them carried out. In fixing the date mentioned I have taken into account the Christmas and holiday periods and the difficulty of getting advice and work done prior to 22 January 2006.

I make the following orders: 1. The defendant is restrained from, by herself or by permitting any members of her family, her servants, contractors, agents or invited visitors from using the right of way the subject of covenant 8646652 contained within Transfer 8646652 as a means of access from a line on Lot 1 10 metres from the boundary of Loftus Road and Lot 1 and within the alignment of the right of carriageway as shown on DP 882231 to the land burdened by the covenant.

Order 1 shall not prevent the defendant by herself or the defendant permitting any members of her family, her servants, contractors, agents or invited visitors: (a) from crossing the right of way to access the land burdened on either side of the right of way

(b) installing gates in the fence within the right of way or immediately adjacent to the right of way, to enable the defendant, the members of her family, her servants, contractors, agents or invited visitors to have access to the land on either side of the right of way. 3. Order that the defendant pay three-quarters of the plaintiffs' costs of these proceedings with leave reserved to either party to argue the question of costs provided that any such party gives written notice to my associate and the other party of the desire to do so within 7 days of the date of delivery of this judgment.

Orders 1 and 2 shall not have effect until 30 April 2006.

Direct that these orders shall not be taken out for a period of 14 days.

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.

At a glance

Court

Decision date

Before

Source

Judgment (163 paragraphs)

Parties

Cases Cited (2)