Court of Appeal (WA)|2001-12-21|Before: Mr J, Kennedy J, Pidgeon J, Wheeler J

Timpar Nominees Pty Ltd v Archer & Anor [2001] WASCA 430 (21 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TIMPAR NOMINEES PTY LTD -v- ARCHER & ANOR [2001] WASCA 430

BETWEEN : TIMPAR NOMINEES PTY LTD (ACN 008 835 265)

Easement - Right of carriageway - Registered diagram of subdivision of land into two lots with a right of way in favour of one lot giving access from rear of that lot along the servient tenement to a public street - Initial transfer of dominant tenement not in evidence - Whether dominant owner entitled to access from more than one point along a right of way

Easement - Interference with level of right of way - Whether caused by owner of dominant tenement - Whether owner of servient tenement had merely restored former level of right of way after level had been raised by owner of dominant tenement

Courts - Court from which appeal lies - Duty of trial Judge to provide adequate reasons for decision - Whether duty performed

Damages - Nominal damages - Award of $1,000 - Whether award could be characterised as nominal damages

Transfer of Land Act 1893 (WA), s 63A, s 65, s 167A, Ninth Schedule

Appeal allowed only to extent of reducing nominal damages to sum of $10

Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97

Bracewell v Appleby [1975] 1 Ch 408

Celsteel v Alton House Holdings Ltd [1985] 2 All ER 562

Charleston v Smith [1999] WASCA 261

Coleman v The Shell Company of Australia Ltd (1943) 45 SR (NSW) 27

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188

Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998

Nicholls v Ely Best Sugar Factory Ltd [1936] 1 Ch 343

Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819

SS&M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8

1 KENNEDY J: These proceedings are the product of a prolonged dispute between neighbours regarding the respective rights of the respondents as the owners of the dominant tenement in relation to a right of carriageway and of the appellant as the owner of the servient tenement. In 1998, the appellant, in connection with the redevelopment of its land, excavated the right of way, and has thereby prevented the respondents from having access to their land from the right of way. The appellant claimed that the respondents had raised the level of their land when they had demolished the old buildings previously on it and had erected new buildings during the period 1990 to 1993. The appellant further claimed that the respondents had then raised the level of the right of way in order to bring it up to the same level as the respondent's land. The appellant now appeals against a judgment of this Court by which the learned trial Judge ordered, in par 1, that the parties, within 14 days of the date of the order, should attend before a Mediation Registrar to negotiate an agreed reasonable and practical solution (if possible) for the purpose of restoring the right of way on Lot 4 on Diagram 4152, being the whole of the land comprised in Certificate of Title Volume 1142 Folio 107 ("the servient tenement"), to a level which will enable the plaintiffs (respondents) to have reasonable access to that part of Lot 5 on Diagram 4152, being the whole of the land comprised in Certificate of Title Volume 1835 Folio 641 (the plaintiffs' [respondents'] land) which abuts Lot 4 at all points along the boundary between Lot 5 and the right of way.

2 Paragraphs 2 and 3 of the order provide as follows:

"2. Unless the parties agree at the mediation conference to alternative orders, the following orders shall be made by the Mediation Registrar:

(a) The defendant [appellant] do within 35 days raise the right of way on Lot 4 where it abuts the plaintiffs' [respondents'] land to a level approximately equal to the ground level of the plaintiffs' [respondents'] land, being a level not significantly lower than the said part of the plaintiffs' [respondents'] land;

(b) The defendant [appellant] do within 35 days pay the plaintiffs [respondents] nominal damages in the sum of $1,000;

(c) The defendant's [appellant's] counterclaim be dismissed;

(d) The defendant [appellant] do pay the plaintiffs' [respondents'] costs of the action and the counterclaim to be taxed.

3. Execution of orders 2(a) and (b) (if made) be stayed for 21 days pending any appeal lodged by the defendant [appellant] and, if an appeal is lodged by the defendant [appellant] against these orders, thereafter until the appeal is determined by this Honourable Court."

3 No agreement could be reached at the mediation conference; but an appeal was duly lodged and, accordingly, the stay for which provision had been made in par 3 came into effect. The appellant now seeks to have the orders made by the learned trial Judge set aside and in lieu thereof to have the following declarations made:

1. A declaration that the respondents and their tenants, employees, agents, workmen and visitors:

(i) are not entitled to unrestricted access across the whole of the boundary of Lot 5 where it abuts the right of way, but only across the eastern boundary of the right of way, alternatively, across the eastern boundary of the right of way and part only of the southern boundary of the right of way where it abuts Lot 5;

(ii) are not entitled to enter and exit the right of way at any point or points along the boundary that they may choose, but only across the eastern boundary of the right of way, alternatively, across the eastern boundary of the right of way and part only of the southern boundary of the right of way where it abuts Lot 5;

(iii) are not entitled to use the right of way for the purpose of turning their vehicles (as opposed to access to and egress from Lot 5), alternatively are entitled only to turn vehicles at part only of the southern boundary of the right of way where it abuts Lot 5 so as to avoid having to reverse the vehicles along the right of way.

2. A declaration that the appellant is entitled to fence or put gates on the boundary of the right of way, provided that the fence and the gates do not interfere with the right of the respondents and their tenants, employees, agents, workmen and visitors to use the right of way to the extent permitted under the declaration made pursuant to par 1.

4 The appellant also seeks orders that the respondents pay the appellant's costs of the trial and of the appeal, to be taxed, and further or other orders as may be deemed appropriate.

5 At the commencement of his reasons for judgment, the learned trial Judge made the following findings of fact which, he said, he had found to have been established by the evidence:

1. The respondents are the registered proprietors of a property situated at 64-66 Bronte Street, East Perth, more particularly described as Lot 5 on Diagram 4152 and being the whole of the land contained in Certificate of Title Volume 1835 Folio 641.

2. The appellant is the registered proprietor of an adjoining property situated at 144 Bennett Street, East Perth, more particularly described as Lot 4 on Diagram 4152 and being the whole of the land contained in Certificate of Title Volume 1142 Folio 107.

3. The respondents' land adjoins the appellant's land and the latter includes an area comprising a right of way which is designated on Diagram 4152 deposited with the Registrar of Titles.

4. The respondents' land and the appellant's land formed an L-shaped lot the subject of Certificate of Title Volume 609 Folio 18, in the names of William York Langdon and William Kelly, issued on 7 January 1915 and there is an endorsement on that certificate of title, under the heading "Easements and Encumbrances Referred To", reading:

"A right of carriageway in the proprietor or proprietors for the time being of the several subdivisions on diagram 415 [sic] over the portion coloured brown on said diagram".

5. The portion coloured brown on Diagram 4152 is the right of way with which this present action is concerned.

6. A similarly-worded endorsement appears on the Certificate of Title Volume 609 Folio 137 relating to Lot 4 and issued on 14 January 1915. Subsequent Certificates of Title relating to these premises contain a representation of the right of way, without the words quoted in par 4 above, but with the initials "ROW" written on the diagram. It is common cause that those initials represent the words "RIGHT OF WAY".

7. The right of way is 3.06 metres in width. It abuts the respondents' land on the eastern and southern boundaries of the right of way, extending some 9.54 metres from west to east along the northern boundary of Lot 5. To the east of the right of way, there is a common boundary between the respondents' and the appellant's lands, some 10.08 metres in length.

8. The respondents demolished the buildings on Lot 5 in late 1990 and completed construction of the existing buildings on that lot in 1993.

9. The respondents raised the internal floor level of the new buildings on Lot 5 but the general level of the respondents' land at the northern area was not raised to any significant extent and remained at a level roughly that of the right of way and of the appellant's land towards the eastern end of Lot 4. The respondents' development complied substantially with the levels approved by the local authority. The garage constructed by the respondents was constructed at a slightly higher level than the right of way, so that a low ramp was required to permit ready access to it by vehicles.

The learned trial Judge, in making this finding, stated that he was not persuaded that the respondents had raised the level of the right of way to any significant extent. He added:

"It appears that yellow sand may well have encroached on the right of way and even penetrated to the [appellant's] land, but I am not persuaded that this had the effect of substantially raising the level of the right of way. It may have done so to some slight extent. Although the [appellant's] evidence was to the effect that the first named respondent had been observed carrying rubble in a wheelbarrow to place on the right of way, I did not accept that evidence but preferred the evidence of Mr Archer [the first respondent] that he had not done so."

10. After the construction of the new buildings on Lot 5, the respondents used the right of way to gain access to the rear of their land, including the garage and the paved area which was utilised as a loading area. At that stage, vehicles could readily drive from the right of way on to the respondents' land abutting on the southern and the eastern boundaries of the right of way.

11. The appellant did not at any material time raise any objection to the use that the respondents were making of the right of way.

12. Between 20 June 1998 and 15 October 1998, the appellant excavated the land within the right of way. The appellant has lowered the rear portion of Lot 4 so as to be level with the western boundary of that lot, on Bennett Street. In so doing, the appellant has excavated the right of way, preventing access to the respondents' garage (Some indication of the extent of the excavation can be seen by a comparison between the photographs, exhibits P51 and P80). The appellant has erected a new commercial building on Lot 4 which includes a gate or door leading from the right of way into the appellant's building and has created an access from the right of way to the lowered level at the rear or eastern end of the appellant's lot (An illustration of that gate appears in the photograph, exhibit 81).

13. Prior to the recent excavations carried out by the appellant in the right of way, the level of the rear of the appellant's land was approximately the same as the levels of the right of way and of the northern part of the respondents' land, so that vehicular access to the appellant's land and to the respondents' land was at approximately the same level for all practical purposes. (This fact is illustrated in the photographs, exhibits P51, P52 and P53).

14. The present situation in relation to the right of way is that access to the respondents' garage from Bennett Street is barred by reason of the appellant's excavation of the right of way. In addition to preventing access in a direct line to the respondents' garage, a result of the lowering of the right of way is to prevent access to the respondents' land to the south of the right of way. That fact is illustrated by the photograph, exhibit P83.

15. There was, in the past, some fencing along the boundary between the right of way and Lot 5 which would have had the effect of restricting access to the rear of Lot 5. The fencing was removed, wholly or in part, at various times and since at least 1961 the right of way has been regularly used for vehicular traffic by the proprietors of both Lots 4 and 5. Prior to the respondents' development of Lot 5, a user of the right of way who entered travelling forwards would be obliged to reverse out of Lot 5 as there was no room in which to turn a vehicle. Prior to the excavation of the right of way by the appellant, the respondents could turn a vehicle by using part of their land and part of the right of way for that purpose.

16. The appellant has not given permission for the use of the right of way for the purpose of turning a vehicle and objects to the respondents using any part of the right of way for such purpose (as opposed to driving a vehicle forward in one direction and reversing it in the other direction).

6 Before the learned trial Judge, the parties agreed that there were 14 issues for determination in the action. The first of these issues was whether the Ninth Schedule to the Transfer of Land Act 1893 (WA), as amended, ("the Act") applies to the right of way, or whether the right of way is an "easement appurtenant" to the respondents' land, Lot 5, pursuant to s 167A of the Act. His Honour's finding on that issue was that, by virtue of the operation of s 65(1) of the Act, the words of the Ninth Schedule are to be deemed to have effect in relation to the right of way with which the action was concerned. A contrary finding, he held, would involve the proposition that, somehow, the benefit of the right of carriageway endorsed upon the original titles of the lots became lost or reduced, in effect, over time and that there is nothing to support such a proposition.

7 The first ground of appeal, which challenges this finding, is as follows:

1. The learned trial Judge erred in law in finding that the words of the Ninth Schedule to the Transfer of Land Act 1893 (WA), as amended ("the Act") have effect in relation to the right of way

(a) to the extent that the learned trial Judge's decision that the Ninth Schedule applies to the right of way relies on the application of s 65(2), s 166 and Pt IVA of the Act:

(i) it was not the respondents' (or the appellant's) case, as pleaded, that s 65(2), s 166 or Pt IVA of the Act applied to the right of way;

(ii) the amendments to the Act made by the Transfer of Land Amendment Act 1996 (WA) ("the Amendment Act") do not affect rights or interests in existence prior to the amendments coming into operation;

(iii) section 166(1) of the Act in terms applies only where a registered proprietor of land wishes to sub-divide that land after s 98 of the Amendment Act comes into operation;

(b) there is no certificate of title for Lot 4 or 5 which contains the words "Together with a right of carriageway over" (specifying or describing the road or roads over which the right of way is created) and further or alternatively there is no such certificate of title which refers to a map endorsed on such certificate of title whereon such road or roads is or are coloured brown within s 65 of the Act (as it existed prior to the Amendment Act).

8 Diagram 4152, which was registered on 15 July 1914, delineated what are now the appellant's and the respondents' respective lots, Lots 4 and 5. The appellant's lot, Lot 4, fronted onto Bennett Street, East Perth, and the respondents' lot, Lot 5, fronted onto Bronte Street, East Perth, with a strip of land within Lot 4, described as "ROW" and coloured brown on the diagram, 150.5 links (30.3 metres) in length and 15.2 links (3.06 metres) in width, from Bennett Street to the rear of the respondents' lot. The two lots formed an L-shaped area around three other lots, being numbers 134, 136 and 138 Bennett Street. Number 134 Bennett Street is on the corner of Bronte and Bennett Streets. The premises at 138 Bennett Street abut most of the southern boundary of the right of way, with Lot 5 abutting the remainder of that boundary for a distance of 47.4 links (9.54 metres) to the eastern end of the right of way. The diagram indicates that, at the time when it was drawn, there were two semi-detached brick cottages on the Bronte Street frontage of Lot 5.

9 Certificate of Title Volume 609 Folio 18, which is dated 7 January 1915, covered the whole of the land in Diagram 4152, including the right of way, which is not, however, delineated, on the map on that certificate of title, no doubt by reason of the fact that all the land in the diagram was at that time in one ownership, that of Messrs W Y Langdon and W Kelly, as executors of the will of Bridget Kelly. Nevertheless, endorsed on the back of the certificate of title, the following appears:

"A right of carriageway in the proprietor or proprietors for the time being of the several subdivisions on diagram 4152 over the portion coloured brown on said diagram."

There were in fact only two subdivisional lots shown in the diagram, of which only Lot 5 had a right of carriageway appurtenant to it.

10 Later on the same day, 7 January 1915, Certificate of Title Volume 609 Folio 24 issued in the name of Margaret Davey as sole proprietor of Lot 5 on Diagram 4152. The map drawn on the title delineated the right of way, which was coloured brown. We do not have before us a copy of the transfer, which might have been expected to transfer Lot 5 "together with" the right of carriageway. However, in the circumstances, the endorsement on the back of Certificates of Title Volume 609 Folios 18 and 137 no doubt provided sufficient authority for including the right of way as being appurtenant to the land in Certificate of Title Volume 609 Folio 24 - see s 167A of the Act.

11 On 14 January 1915, a new Certificate of Title Volume 609 Folio 137 was issued to Messrs W Y Langdon and W Kelly (as executors of the will of Bridget Kelly) as the proprietors of Lot 4, of which the right of way formed a part. The whole of Lot 4 was coloured green on the map on the Certificate of Title. The land in the title was, in the usual manner, expressed to be subject to the easements and encumbrances notified on the certificate. The first entry on the back of the certificate is "A right of carriageway in the proprietor or proprietors for the time being of the several subdivisions on Diagram 415 [sic] over the portion coloured brown on said diagram". The diagram number is clearly incorrect and was accepted as such by the parties. The description of the land on the front of the certificate refers to the correct diagram number, and it is obvious, having regard to Certificate of Title Volume 609 Folio 24 and to Diagram 4152 itself that the latter diagram was intended to be referred to on the back of the certificate.

12 Since 1915 there have been a number of changes in the ownership of the respective lots. At the present time the appellant is the proprietor of Lot 4 on Diagram 4152, and the respondents are the proprietors of Lot 5 on that diagram.

13 It was, and is, common cause that the right of way with which these proceedings are concerned is an easement appurtenant to Lot 5. The dispute is as to what rights the easement confers on the proprietors of Lot 5.

"63A(1) Any certificate of title may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement or that the land therein described is subject to any right or right-of-way or other easement.

(2) Every such statement or entry shall set forth a true and accurate description of the easement, or if the instrument creating the easement is deposited in the Lands Titles Office shall refer to such instrument, and the certificate of title shall contain a plan of the land over which such easement extends, or if a plan showing the extent of such easement is deposited in the Lands Titles Office, the certificate of title shall refer to such plan."

15 Section 63A(1) provided the authority for the reference to the right of carriageway being endorsed on the back of Certificate of Title Volume 609 Folio 137, indicating that the land in the title was subject to a right of carriageway.

16 Section 63A was amended in 1996 by repealing subs (2) and substituting a new subsection, to which s 63A(1) became subject. The substituted subsection clearly has no retrospective effect. It has no relevance for the present purposes.

17 Section 64, which has never been amended, provides:

"64. Whenever any certificate of title or any duplicate thereof either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled".

18 There is no evidence that any certificate of title for Lot 5 on Diagram 4152 has ever contained a statement to the effect that the proprietor is entitled to a right of carriageway. However, it would appear that a right of way has been delineated and coloured brown on successive certificates of title for Lot 5. The current title to Lot 4, standing in the name of the appellant, shows the right of way coloured brown and marked "ROW".

19 Section 65, prior to its replacement in 1996, provided:

"65. Whenever any transfer lease or certificate of title shall contain the words 'Together with a right of carriage-way over ' (specifying or describing the road or roads over which the easement is created and referring to a map endorsed whereon such road or roads is or are coloured brown) such words shall have the same effect and shall be construed as if there had been inserted in such transfer lease or certificate of title the words contained in the Ninth Schedule to this Act. A memorandum of any transfer or lease creating any easement affecting any land under the operation of this Act shall be entered on the folium of the register book constituted by the existing certificate of title of such land in addition to any other entry concerning such instrument required by this Act."

20 It is apparent that the certificate of title referred to in the first sentence in s 65 is the certificate of title of the dominant tenement. The words "together with a right of carriageway" would not be appropriate in the certificate of title including the servient tenement.

"65(1) Where a transfer, lease or certificate of title contains the words 'together with a right of carriageway over ...' or words to that effect and specifies the road or land over which the easement is created by reference to a map on which the road or land is indicated by a symbol then, unless the contrary intention appears, the words of the Ninth Schedule shall be deemed to have effect in relation to the transfer, lease or certificate of title, as the case requires.

(2) Where a plan or an instrument referred to in Pt IVA contains the words 'right of carriageway' in relation to a place indicated on the plan or, in the case of an instrument, on the plan in relation to which the instrument was lodged then, unless the contrary intention appears, the words of the Ninth Schedule applicable to a transfer shall be deemed to have effect in relation to that plan or instrument.

(3) Where -

(a) a transfer, lease or certificate of title; or

(b) a plan or an instrument referred to in Pt IVA

contains a short form of easement then the words in column 2 of Schedule 9A corresponding to the short form shall be deemed to have effect in relation to that transfer, lease, certificate of title, plan or instrument, unless the contrary intention appears."

22 The Ninth Schedule, relating to the creation of rights of carriageway in a transfer of freehold land, prior to its amendment in 1996, read as follows:

"Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map."

23 Very minor amendments were made to the original Ninth Schedule, merely substituting "animals or vehicles" for "horses or other animals, carts or other carriages", and also substituting "a symbol" for "delineated and coloured brown". The Ninth Schedule has provided, and continues to provide, what has been described as a legislative definition of a right of carriageway.

"167A. Every right-of-way shown and marked as such upon any map or plan deposited with the Registrar, under the provisions of Part Eight of this Act, on the subdivision of any land shall, unless the contrary is stated, be deemed an easement appurtenant to the land comprised in such map or plan and abutting upon such right-of-way, and not a public way or thoroughfare."

25 The amendment to s 167A, which was passed in 1996, repeated the provisions of the original section in what became s 167A(1), but made that subsection subject to s 167A(2). The latter sub-section has no application to the facts of the present case.

26 In his reasons for judgment, the learned trial Judge said:

"The [respondent's] contend that, by reason of the provisions of ss 63A, 64 and 65 of the Act, the words of the Ninth Schedule define the rights encompassed in the right of way. The [appellant] submits to the contrary, contending that the Ninth Schedule cannot apply because the current certificates of title relating to Lots 4 and 5 respectively, do not contain the words 'together with a right of carriageway over ...' or words to that effect, as required by s 65 of the Act. The [appellant] also contends that Diagram 4152 is not a plan referred to in Pt IVA of the Act and is not therefore governed by s 65(2) or the Ninth Schedule to the Act. The easement created by s 167A, it is submitted, is not the same as the right of carriageway described in the Ninth Schedule.

It is, I think, plain that Diagram 4152 is indeed such a plan as is referred to in Part IVA of the Act. In that Part, a 'plan' means relevantly to the present action, a plan or diagram referred to in s 166 of the Act."

27 Part IVA, the heading of which is "Creation of easements and restrictive covenants by notations on subdivision plans and diagrams", was introduced into the Act in 1996, at the same time as the new s 65 was substituted for the original section. Section 136A, at the beginning of Pt IVA, defines "plan" to mean a plan or diagram referred to in s 166 or s 166A for the subdivision of land under the operation of the Act. Section 166A is concerned with the subdivision of Crown land by the Minister for Lands. It is not relevant to the present case.

28 With respect to the view expressed by the learned trial Judge, I am unable to accept his conclusion that Diagram 4152 is such a plan as is referred to in Pt IVA of the Act.

29 Section 166 applies to a proprietor of land under the operation of the Act who, after s 98 of the Transfer of Land Amendment Act 1996 came into operation (which occurred on 3 February 1997), wishes to subdivide the land, shall apply to the Registrar for the creation and registration of new certificates of title for the land and the application is to be made in relation to a plan or diagram of the land complying with subsection (2). Subsection (2) prescribes what the plan or diagram shall exhibit. Section 166 can have no reference back to a subdivision which was effected in 1915. It refers to future subdivisions.

30 Section 65, as it was up until 1996, related to a transfer, lease or certificate of title containing the words "Together with a right of carriage-way over" and meeting the other requirements of the section. As I have already indicated, there is no transfer in evidence. Nor is there any lease involved in the case, and the respondents' certificate of title does not contain the words "Together with a right of carriage-way over". Those words, as I have already indicated, are apposite only to the certificate of title of the proprietor of the dominant tenement; but there is no such certificate of title before us containing an express reference to a right of carriageway. All that there is on the certificates of title in relation to the dominant tenement is a map delineating Lot 5, which is coloured green, and the right of way, which is coloured brown, and is marked with the letters "ROW". The original certificate of title for Lot 4, which included the right of way, was coloured green. The right of carriageway, as previously indicated, appeared as an easement on the back of this certificate of title, together with other encumbrances to which the title was subject.

31 In my opinion, the respondent cannot rely upon s 65(1), s 65(2) or Pt XIVA of the Act to deem the words of the Ninth Schedule "to have effect" in relation to the right of way. It follows that, in my opinion, ground 1 of the grounds of appeal must succeed. The question remains, however, as to the extent of the rights of the respondents with respect to the right of way. This leads on to the second ground of appeal.

32 The second ground of appeal contends that the learned trial Judge erred in law in finding that the respondents are entitled to unrestricted access across the whole of the boundary of Lot 5 where it abuts the right of way and that they are entitled to enter and exit the right of way at any point or points along that boundary that they may choose. Particulars of this ground were provided.

33 All that appears from the evidence before us is that a right of carriageway was granted by Messrs W Y Langdon and W Kelly, as executors of the Will of Bridget Kelly, to the proprietor or proprietors for the time being of Lot 5 on Diagram 4152. There is no evidence of any limitation or restriction having been placed upon the grant.

34 In Cannon v Villars (1878) 8 ChD 415 at 419, in relation to the granting of an easement, Jessel MR said that, in construing all instruments you must know what the facts were when the agreement was entered into. In the present case, however, the only information in this respect is to be derived from Diagram 4152 which indicated that in 1914 the buildings on Lot 5 consisted of two semi-detached brick cottages fronting onto Bronte Street, which occupied the width of the block except for a narrow passage way on the western boundary, and two brick toilets situated on Lot 5 at the eastern end of the right of way, which would have severely restricted any vehicular access over that portion of the right of way. Reasonable access to the rear of the property could only be obtained through the right of way.

35 In the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed strongly against the grantor has been applied - see Williams v James (1867) LR 2 CP 577 at 581 and Wood v Saunders (1875) 10 LR Ch App 582 at 584 per Hall VC. In the first of these cases, Willes J said at 581 - 582:

"In the case of a grant [of an easement] the language of the instrument can be referred to, and it is of course for the Court to construe that language; and in the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against the grantor must be applied. Accordingly, in South Metropolitan Railway (sic) Company v Eden [(1855) [1855] EngR 432; 16 CB 42; 139 ER 670] where a grant was produced without stating the object of the grant, it was the opinion of the Court of Common Pleas that the grant was general, and that the right of way in that case might be used to any part of the land to which the way was granted."

36 In United Land Co v Great Eastern Railway Co (1875) 10 Ch App 586 it was held that, if there had been no limit in the grant, the right of way might be used for all purposes - see James LJ at 590 and Mellish LJ at 590 - 591. However, in Todrick v Western National Omnibus Co Ltd [1934] Ch 190 (Farwell J); [1934] Ch 561 (CA) at 576-577, affirming the judgment of Farwell J reported in [1934] Ch 190, the Court of Appeal in a case where the grantor had sold land, reserving a perpetual right of way for all purposes, with or without vehicles and animals, it was regarded as a grant for all purposes "within the reasonable contemplation of the parties at the time of the grant". At 206 - 207, Farwell J had said:

"In considering whether a particular use of a right of this kind is a proper use or not, I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made: see United Land Co v Great Eastern Ry Co per James LJ [10 Ch App 586 at 590]; and in my judgment a grant for all purposes means for all purposes having regard to the considerations which I have already mentioned. It would be ridiculous to suppose that merely because the grant was expressed to be for all purposes it entitled the owner of the dominant tenement to attempt to use it for something for which obviously it could not be used ... [I]n my judgment a grant of this kind must be construed as a grant for all purposes within the reasonable contemplation of the parties at the time of the grant".

Farwell J then went on to stress that all the relevant facts must be considered.

37 Unless the grant provides otherwise, however, the use of an easement may change to keep pace with technology. Accordingly, an easement granting a carriageway for a horse and carriage permits the use of mechanically propelled vehicles. As Bennett J indicated in Lock v Abercester [1939] Ch 861 at 864, the law must keep pace with the times. Subject to any limitation to be derived from the words of the grant, or the surrounding circumstances, a right of way may be used in the manner authorised by the grant, for any purpose and to any extent for the time being required for the enjoyment of the dominant tenement or any part of it, irrespective of the purpose for which the dominant tenement was used at the date of the grant - see Ackroyd v Smith [1850] EngR 1; (1850) 10 CB 164; 138 ER 68, United Land Co v Great Eastern Railway Co (1875) 10 Ch App 586, White v Grand Hotel, Eastbourne, Ltd [1913] 1 Ch 113 at 116 and Robinson v Bailey [1948] 2 All ER 791.

38 In South Eastern Railway Co v Cooper [1924] 1 Ch 211 a right of way over a railway line was used by the dominant tenement holder for agricultural purposes. The defendant opened a sandpit on his land and used it for conveying minerals across the line to the highway. By so doing, he largely increased the burden of the easement. It was held by the Court of Appeal that, being a grant of a general right of way for all purposes, the user was not restricted to that which prevailed at the time of the grant.

39 Similarly, in White v Grand Hotel, Eastbourne, Ltd (supra), the Court was concerned with a right of way which had been granted for general purposes for a private dwelling house. The house was subsequently converted to hotel purposes. The use of the right of way for these purposes was upheld. On the other hand, in Jelbert v Davis [1968] 1 WLR 589 the Court of Appeal rejected a change of user from an agricultural use to that of a large tourist caravan and camping site, it being considered that this would lead to an unreasonable increase in the burden on the servient tenement. The grant had been of a 10 foot right of way, permitting its use by the grantee and his successors at all times and for all purposes. Lord Denning, at 595, said:

"In my opinion, a grant in these terms does not authorise an unlimited use of the way. Although the right is granted 'at all times and for all purposes', nevertheless it is not a sole right. It is a right 'in common with all other persons having the like right'. It must not be used so as to interfere unreasonably with the use by those other persons, that is, with their use of it as they do now, or as they may do lawfully in the future. The only way in which the rights of all can be reconciled is by holding that none of them must use the way excessively."

40 Danckwerts LJ said, at 597, that the test must be whether the interference is so substantial as to interfere with the rights of other persons in an unreasonable manner.

41 The grant of a private right of way, ordinarily speaking, confers only a right to a reasonable use of the way by the grantee in common with others - see Clifford v Hoare (1874) LR 9 CP 362 at 371. It does not impose any obligation on the grantor to make the easement suitable for use by the grantee and to keep it in repair - see Jones v Pritchard [1908] 1 Ch 630 per Parker J at 637 and Bond v Nottingham Corporation [1940] Ch 429 per Sir Wilfred Greene MR at 438. The duty to repair is on the grantee, even where the right of way at the time of the grant is not physically fit for that purpose. Thus, in Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P&CR 488 Buckley LJ said at 494:

"When a grantor grants a right of way for use for any particular purpose, or for use for all purposes as in the present case, it is well recognised law that the grantor is not thereby, without more, subjected to an obligation to make up the right of way to any particular standard, or indeed to do anything to it at all to make the site of the right of way suitable for use by the dominant owner."

"[T]he grant of a right of way of itself places no burden on the owner of the servient tenement except the obligation of allowing the dominant owner to use the subject matter of the easement, in accordance with the grant ... "

42 The only duty of the owner of the servient tenement is to refrain from acts of misfeasance that would obstruct the enjoyment - see Spear v Rowlett [1924] 43 NZLR 801 at 803, per Salmond J.

43 In Lawrence v Griffiths (1987) 47 SASR 455, the Full Court in South Australia held that where a person has a right of way over land which is impassable to vehicles, he or she is entitled to construct a road within the limits of the right of way and to make entry upon the right of way for that purpose, even though excavation or building up for the purpose of constructing the right of way is an impediment to the free use of the area by the owner of the servient tenement, having regard to the width of the terms of the grant.

44 A number of authorities have dealt with the issue of access to rights of way. In Cooke v Ingram (1893) 68 LT 671, at 674, Wright J said:

"There is nothing in the original grant of the way which expressly limits the grantee to one line of access, or to access only at the points, if any, where his land actually adjoined the new way. And the parties certainly acted from the first upon the construction that the grantee was not limited to the shorter line of access, for the track always in fact used was not the shortest. In the absence of any such express limitation, and of anything to show that the right as claimed is unreasonable or destructive of the object of the grant, I am unable to see any ground on which any obligation to elect one particular line of access can be implied."

45 This passage was cited with approval by Lord Cozens-Hardy MR in Pettey v Parsons [1914] 2 Ch 653 at 663.

46 In the latter case, at 677, Swinfen Eady LJ said:

"In each case it is a question of construction. Assuming in favour of the defendant that he is entitled to open new means of access to this roadway, he is not entitled to have it continuously unfenced along the whole of the line so that at every inch of the way he may pass on to it at any times he pleases".

"I think the obligation is that, assuming the right of access from each part of the land from which access if required to any part of the way, such access shall be given as will be reasonable. It is obviously difficult to explain, but it is an inevitable word, I think. It means such access as will give reasonable opportunity for the exercise of the right of way, or, to put it another way, such access should be given as will not be a derogation from the grant of the right of way."

48 In Butler v Muddle (1995) NSW ConvR 55-745, Young J in the Supreme Court of New South Wales indicated that a right of way was not necessarily limited to one point of access, but that the owner of the dominant tenement was entitled to as many points of access as were reasonable. In this case, however, the proprietor of the dominant tenement with the benefit of the right of way had approval to subdivide the land, and he proposed to build four townhouses in such a way as to require access to the right of way at several points along it for access to double garages and for visitors' parking. It was held that the defendants' proposals were not reasonable. The driveways would have taken up 13 metres of the property's total frontage of 23 metres onto the right of way. The common intention was not that the dominant owner was to be permitted to build as many car parking spaces along the common boundary as he in his absolute discretion thought necessary.

49 Young J said that he thought it was rather artificial in the case where a right of way runs alongside the land which benefits from it to say that the parties intended that there should only be access at one spot. After all, he said, land is developed perhaps every 50 or 60 years, and dependent on the development, so the dominant owner for the time being wants access, even if there is only a single point of access at various points over the centuries. He could not see how the common intention was that the dominant owner was to be permitted to build as many car parking spaces along the common boundary as he in his absolute discretion thought appropriate. He added, at 5572:

"One must look at the reasonableness of it all when construing the grant and, in my view, the defendants are entitled to access from more than one point, but only such access as is reasonable, see Pettey v Parsons [1914] 2 Ch 653 and Hose v Cobden [1921] VicLawRp 110; [1921] VLR 617."

50 Schedule 8 to the Conveyancing Act 1919 (NSW) which applied to the right of way in Butler v Muddle is, for the present purposes, in similar form to the Ninth Schedule to the Transfer of Land Act (WA). It provides:

"Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or in part thereof with which the right shall be capable of enjoyment, and every person authorised by them to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof".

51 Subsequently, in Finlayson v Campbell (1997) NSW ConvR 55-825, at 56,452, Young J indicated that it was clear that a grantee is not confined to using a right of way for the purpose prevailing at the date of the grant, but may use the right of way for any reasonable different purpose. It is therefore necessary to work out what was in contemplation at the time of the grant, although, as his Honour said, "perhaps the cases suggest that one must objectively attribute to the grantor more than he or she may have actually had in contemplation." With respect, this appears clearly to have been the approach which has been adopted in these cases.

52 In Carlson v Carpenter (1998) NSW ConvR 55-848, Cohen J was concerned with a similar problem. At 56,639-56,640, his Honour said:

"There was argument before me as to whether the plaintiffs, assuming that they had the benefit of the whole of the right of way, were entitled to insist on exercising that right not only at the main entrance to the house but also at the rear of the land by way of access to the double garage. One of the aspects of a right of carriageway is that it may not be used unreasonably by the person having the benefit of it, notwithstanding its wide wording, as in the statutory form above [Schedule 8]. This means that, dependent on the circumstances, the owner of the land having the benefit of the right of carriageway is only entitled to exercise that right by having reasonable access. There is accordingly no right to unlimited access from the right of way to any part of the land having its benefit unless in the circumstances of its grant that was taken to have been intended. See Pettey v Parsons [1914] 2 Ch 453; Saggers v Brown (1981) 2 BPR 9329; Butler v Muddle (1995) 6 BPR 13,984

... It may be necessary, as was found to be the position in Butler v Muddle, above, that the Court has to decide what in the circumstances is reasonable in terms of the number of points of access and their size."

53 Finally, in Krolczyk v Raffan [1992] ANZ ConvR 228 at 231, Crawford J in the Supreme Court of Tasmania at 231, citing a number of authorities, including Cooke v Ingram (1893) 68 LT 671, South Metropolitan Cemetery Company v Eden (1893) 68 LT 671, Sketchley v Berger (1893) 69 LT 754 and Saggers v Brown (1982) NSW ConvR 55-054 expressed the view that the trend of authority is to allow entry and exit to and from the dominant tenement at more than one point along a right of way which abuts the tenement. Schedule 8 of the conveyancing and Law of Property Act 1884 (Tas) was in similar terms to the New South Wales and Western Australian legislation.

54 The grant in the present case is of a "right of carriageway", which was the expression used in s 65 of the Transfer of Land Act as at the time of creation of the easement. As I have indicated, the Ninth Schedule provides what has been described as a legislative definition of a right of carriageway. Although, however, on the evidence before us, the definition was not expressly made applicable to the right of way by using the verbal formula specified in the former s 65, the fact was that the grantor at the time of the grant chose to use an expression which was defined in the Act in a manner which is consistent with the rights conferred on the owner of a dominant tenement by the ordinary rules of the law of easements. It would, I think, be a somewhat odd result if, in this case, the grantor of the right of carriageway conferred rights upon the grantee different from those which the grantee would have had if the legislative definition had been applied to the easement. Be this as it may, the dominant consideration remains the reasonableness of the user.

55 The right of way is narrow, being just over 3 metres in width at the eastern end of the right of way. At the time of the grant, there were two semi-detached brick cottages and two brick toilets on Lot 5. Little else is known of the circumstances existing at that time. It is only when it comes to the evidence of Mr V Scalisi that evidence of the use of Lot 5 becomes available. Mr Scalisi had been living with his parents at 66 Bronte Street, East Perth from in or about May 1954. He purchased the adjoining brick cottage at 64 Bronte Street in May 1960. The right of way continued to be used by the occupiers of each dwelling. It is apparent from the plans in evidence that the two brick toilets situated on Lot 5 against the northern boundary of the lot, and close to the eastern extremity of the right of way, prevented vehicles from using a little over half the width of the right of way to access Lot 5. The evidence of Mr Scalisi was that, during the periods he lived on Lot 5 there was no wall or boundary fencing between the right of way and the rear yards of 64 and 66 Bronte Street, other than a small wooden picket gate which provided privacy to the toilets. He recalled that the right of way along the whole of Lot 5 was used for vehicle and pedestrian access purposes. This, however, does not take into account the portion of the eastern end of the right of way where the toilets were situated.

56 The evidence of Mr A J Battaglia, who has been a director of the appellant company since its incorporation, departed in a number of respects from the evidence of Mr Scalisi. It is to be noted, however, that he did not come to the area until 1968. His evidence was that the Scalisis had a garage at the end of the right of way and that they drove over the three-metre length of boundary to access the garage. This evidence appears to overlook the presence of the toilets which would have prevented the use of part at least of the boundary. Mr Battaglia claimed there was a five-metre fence along the southern boundary of the right of way appurtenant to Lot 5, but conceded that the remainder of this boundary was not fenced and that the Scalisis drove over this section in order to park under a pergola they had built on their property. Essentially, this is the section of the right of way which the respondents desire to use for turning vehicles and bringing in delivery vehicles.

57 In the course of their redeveloping Lot 5in the 1990s the respondents built a brick bin enclosure in the north-west corner of the lot. The bin enclosure has two doors; one opening onto a brick-paved area on the lot and the other opening onto the right of way. The construction of the bin enclosure by the respondents now prevents vehicles from having access onto Lot 5 over nearly one third of the length of the southern section of the right of way which Lot 5 abuts. In my opinion, vehicular access onto Lot 5 over a little in excess of six metres of the right of way is not unreasonable in addition to access over the eastern end of the right of way, having regard to the configuration of the area. Another relevant consideration appears to me to be that the area is not essentially residential, and the access to which I consider the respondents to be entitled will not damage the amenity of the area.

59 Ground 3 contends that the learned trial Judge erred in law and in fact in finding that the level of the northern area of the respondents' land and the level of that part of the right of way which adjoins that northern area had not been raised to any significant extent by the respondents, and that at all material times the northern area of the respondents' land remained at a level roughly that of that part of the right of way which abuts Lot 5 and that remaining part of the appellant's land which is towards the eastern end of Lot 4.

60 The particulars under this ground were as follows:

(a) the learned trial judge did not give any or adequate weight to the evidence of Mr Giuseppe Della Bona and Mr Gilbert Alexander for the appellant which plainly affects the accuracy of evidence adduced by the respondents in respect of the level of the right of way prior to the respondents' development of Lot 5;

(b) the evidence adduced by the respondents and accepted by the learned trial judge was inconsistent with the factual evidence adduced by Mr Della Bona and Mr Alexander on behalf of the appellant.

61 It is convenient to deal with grounds 3 and 8 together. Ground 8 contends that the learned trial Judge erred in law in failing to provide adequate reasons for his findings of fact on contested issues. The particulars under this ground are that the learned trial Judge failed to analyse and consider the conflicting evidence of fact and to provide any or any adequate reasons as to how he reached his conclusions for the following findings of fact:

(a) the general level of the respondents' land at the northern area was not raised to any significant extent and remained at a level roughly that of the right of way and of the appellant's land at the eastern end of Lot 4:

(b) the respondents had not raised the level of the right of way to any significant extent;

(d) present access to the garage on the respondents' land is barred by reason of the appellant's excavation of the right of way.

(e) the evidence of Mr Eric Archer was preferred to the evidence of Mr Anthony Battaglia on one issue only when answers by the appellant's witnesses were clearly relevant to the truth of Mr Eric Archer's evidence, which evidence was not considered including:

(i) Mr Della Bona's evidence of the level of the original in situ road base.

(ii) Mr Alexander's evidence of the level of the original in situ road base and soil composition.

(iii) Mr John Battaglia's and Mrs Anna Battaglia's evidence as to their absence from Perth during the meeting on the appellant's property in June 1997; and

62 In Lloyd v Faraone [1989] WAR 154 the Full Court was concerned with an appeal under s 79(1)(a) the District Court of Western Australia Act 1969 (WA), which enables a party who is dissatisfied with a final judgment to appeal to the Full Court from the judgment. Such an appeal, Malcolm CJ said, at 163, is one as of right, whether for error of fact or law. In these circumstances, the trial judge has a duty, in which both the litigants and the appellate court have an interest, to reveal his reasons. Those reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous. His Honour referred to three cases which had been decided on this point in New South Wales. In the first of these cases, Carlson v King (1947) 64 WN (NSW) 65, at 66, Jordan CJ said:

"It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision."

63 In the second case, Pettitt v Dunkley [1971] 1 NSWLR 376, at 387-388, Moffitt JA, with whom Manning JA agreed, said:

"[T]here is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have. Just as an express statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordan CJ quoted [supra] recognize that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.

64 Moffitt JA added that it is important to observe that the judicial obligation to give reasons in an appropriate case is directed at facilitating the exercise of a right of appeal.

65 The foregoing passage in Pettitt v Dunkley was repeated by Moffitt P, in whose judgment Glass JA agreed, in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702.

66 In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, the High Court was concerned with s 33(2) of the Criminal Procedure Act 1986 (NSW), which required a judgment by a judge in any criminal proceedings without a jury to include the principles of law applied by the Judge and the findings of fact on which the judge relied. The judge was required to take into account any warning which any Act or law would have required to be given to a jury. At 260, Gleeson CJ, McHugh, Gummow and Callinan JJ said that the scope and purpose of this legislation was a matter of first importance. They continued:

"Some insight into those questions is provided by the decision of the New South Wales Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376. Section 142 of the District Courts Act 1912 (NSW) provided for an appeal to the Court of Appeal by a party who was 'aggrieved by the ruling, order, direction, or decision of the judge in point of law'. It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law. [Pettitt v Dunkley [1971] 1 NSWLR 376 at 381-382, 385, 388]. In Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 Gibbs CJ said that the decision in Pettitt v Dunkley 'that the failure to give reasons was an error in law may have broken new ground'. Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal upon the construction of s 142 should be accepted."

67 In Maynard v Dabinett [1999] NSWCA 295; (1999) 29 MVR 512 at 515-6, a decision of the New South Wales Court of Appeal, Giles JA, in whose judgment Stein JA agreed, said:

"[16] It is not necessary for the reasons to be lengthy or elaborate, or for every fact leading or relevant to the ultimate decision or the detailed chain of reasoning to be set out: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 245 at 271, 280. Nor is it necessary for every matter raised in the proceedings to be dealt with: Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 647.

[17] But it is necessary that the reasons show that attention has been given to the evidence critical to the issues in the case and that the basis of critical findings be apparent: Soulemezis v Dudley (Holdings) Pty Ltd at 281; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; 13 MVR 243. The 'broad outline and constituent facts on which [the judge] has acted' should be apparent (Soulemezis v Dudley (Holdings) Pty Ltd at 273 per Mahoney JA) or the 'essential ground or grounds on which the decision rests should be articulated' including why one conclusion rather than another is to be preferred; Soulemezis v Dudley (Holdings) Pty Ltd at 280 per McHugh JA. As was said by Samuels JA in Strbak v Newton, unreported; CA (NSW), Full Ct, No 434 of 1987; 18 July 1989:

'It is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given'.

[18] The ability effectively to exercise a right of appeal guides and sets a minimum standard for, the sufficiency of reasons (Soulemezis v Dudley (Holdings) Pty Ltd at 280-1) always with regard to the particular circumstances".

68 The Court of Appeal in New South Wales returned to this subject in Moylan v Nutrasweet [2000] NSWCA 337, indicating that unsuccessful parties have a right to expect that the arguments put on their behalf will be dealt with in such a way that they can be satisfied that they have been understood and that any rejection of them is based on a clear and rational process of reasoning.

69 Having described in general terms the dispute between the parties in the present case, the learned trial Judge took the somewhat unusual step of proceeding immediately to make the 16 findings of fact, which have been set out above. He then went on to determine 14 issues, of which the sixth issue raised the question of whether the level of the respondents' land abutting the right of way had been raised by the respondents or the respondents' employees, agents or workmen during the period 1990 to 1996, thereby impeding access to the respondents' land from all or part of the right of way. Findings (8), (9), (10), (11), (12), (13) and (14) all relate to what became the critical issue as to whether the plaintiffs had raised the level of the right of way to any significant extent.

70 The learned trial Judge found that the respondents had demolished the buildings on Lot 5 in late 1990 and that they had, in 1993, completed construction of the building now erected on that site. There was undisputed evidence that substantial earthworks had been undertaken by the respondents, involving the excavation of the whole of Lot 5 for the purpose of removing black sand, debris and vegetation and the refilling of the lot with clean yellow sand. His ninth finding was that the respondents had raised the internal floor level of the new buildings on Lot 5, but that the general level of the respondents' land at the northern end of the lot had not been raised to any significant extent, and that it had remained at a level roughly that of the right of way and of the appellant's land towards the eastern end of Lot 4. His Honour further found that the respondents' development "complied substantially with the levels approved by the City of Perth".

71 His Honour's ninth finding would appear to have been based upon the evidence of a licensed surveyor, called on behalf of the respondents, Mr K J Sim. His evidence was based on surveys by two other surveyors, Carlton Surveys and Tuscom & Associates, which were not challenged, and on the City of Perth building licence and the plans for the present buildings on Lot 5. Mr Sim expressed the view that a discrepancy of a centimetre in the internal floor level of the building and a discrepancy of four centimetres at the frontage of the building onto Bronte Street were not significant with respect to the respondents' compliance with the requirements of the City of Perth.

72 Mr Sim indicated that at the time of his inspection it was obvious that the level of the right of way had been lowered, probably at the time of the earthworks and building works being carried out on Lot 4. This was not in dispute. The excavated level of the right of way, he said, would appear to tie in with the floor level of the building then being constructed on that lot. The survey also indicated that the difference between the original highest point of the right of way adjoining the carport on Lot 5 and the building floor level on Lot 4 appeared to be 0.66 metres different. The conclusion reached by Mr Sim was that the original level of the right of way adjoining Lot 5 had not been altered by work undertaken in relation to Lot 5.

73 His Honour found that the garage constructed by the respondents at the eastern end of the right of way had been constructed to a slightly higher level than the right of way, with the result that, prior to the appellant's excavating the right of way, a low ramp was required to permit ready access by vehicles into the garage. He went on to say that he was not persuaded that the respondents had raised the level of the right of way to any significant extent. Although he accepted that yellow sand may well have encroached onto the right of way and may even have penetrated to the appellant's land, he was not persuaded that this had the effect of substantially raising the level of the right of way. It is clear that he must have accepted the respondents' evidence on this point.

74 His Honour further indicated that, although the appellant's evidence (through Mr A J Battaglia) was to the effect that the first respondent had been observed moving building rubble in a wheelbarrow, and placing it on the right of way adjacent to his property, he did not accept that evidence, preferring the evidence of the first respondent that he had not done so. Mr Battaglia's claim was that by bringing in the rubble, the first respondent had raised the height of the laneway where it was on the boundary of his property. The first respondent maintained that he did not have any building rubble anywhere on his site because all the rubble had been removed in 1993 at the conclusion of the development of the respondents' property. This was a critical finding by his Honour. It could only have been based upon a consideration of the credibility of the respective witnesses. His rejection of the evidence of Mr Battaglia cannot be attributed to a mere lapse of memory on the latter's part.

75 In cross-examination, it was put to the first respondent that, following the completion of his building works, the yellow sand on the right of way "washed" down the right of way. He conceded that he had left some sand on the spoon drain which ran along the northern section of the respondents' property abutting onto the right of way. He conceded that, when it was raining it may have been that a small flow of sand had occurred down to the right of way, a flow not only of yellow sand, but of any type of sand. He denied pushing the sand back up the right of way as alleged by Mr Battaglia and he further denied that over any period of time the respondents had built up the right of way. He said that the yellow sand had not raised the right of way "any centimetre".

76 Mr G Della Bona, upon whose evidence the appellant also relied, is the brother-in-law of Mr A J Battaglia. Mr Della Bona gave evidence that he had lived on the premises on Lot 4 from 1954 to 1966, which was a period long before the respondents had acquired Lot 5. He said that the surface of the right of way was then made up of loose grey sand and that, while he was working for Blue Rock Quarries in 1966, he had carted a load of road base to the right of way and laid it on top of the loose sand along the length of the right of way, that he had compacted it in the best way he could so he could drive his truck in and out of the right of way without bogging it. Subsequently, he said, the right of way alongside the shop premises then on Lot 4 had been paved with bricks. He also gave evidence as to the nature and extent of the fencing on the boundary between Lots 4 and 5, claiming that the remaining fences had been taken down in 1990 or 1991. On the other hand, the evidence of the second respondent was that there were no fences on the boundary in 1989.

77 Mr G G Alexander is a consulting civil engineer, specialising in road works, drainage, access and subdivisions for residential and commercial properties. On 9 February 1999, not long before the trial, he had been instructed by the appellant to prepare a report. That report is dated 25 February 1999. When he made his inspection of the site, there was, he said, an exposed face of material on the southern side of the right of way adjacent to Lot 5. His evidence was that there was a "profile" of a concrete-edged beam at the top, which incorporated what he described as a strip drain which also supported some brick paving, and below that, in the order of 300 millimetres of clean, yellow imported sand. There was then a varying layer of a crushed rock type material some 50 to 100 millimetres in depth, and below that there was what appeared to him to be original in situ surface material. He claimed that the yellow sand was "actually supporting the kerb".

78 In cross-examination, Mr Alexander agreed that the crushed rock varied in width. There was, he said, a lensing effect, which suggested that initially the ground had not been fully levelled or graded. It was put to him that, in installing a spoon drain, there is over-excavation to form it up. Mr Alexander replied that it depended upon whether the material stood vertically. He contended that the material that he had looked at would in fact stand vertically, and that from a contractor's point of view, if the ground stands vertically, that is as far as he would dig. This, however, ignores the evidence of Mr S C Taylor, the plumber who actually installed the spoon drain, who indicated that he would have over-excavated for the drain, placed clean sand in the excavation and flooded it to make it easier to level off in order to place the spoon drain. He was cross-examined as to how he explained that there was, on average, 300 to 350 millimetres of yellow soil from the gravel up to the top of the spoon drain. He replied that he could assume that it was fairly easy digging down that side and that they may have gone a bit closer to the right of way with the result that there was more yellow sand there. He said he had been working off the stamped copy plans which he had been given by the first respondent.

79 Mr Alexander was shown two photographs, numbered P41 and P47. The first of these photographs was taken in mid-1997 and showed the right of way taken from the eastern end facing west, including the boundaries of the appellant's and of the respondents' properties abutting the right of way. The second photograph, which was taken on 15 September 1997, showed the eastern end of the right of way and the respondents' and the appellant's properties adjoining the right of way. Both photographs showed gates on the boundary to the west of the brick wall on the northern side of the respondents' garage. These photographs give no indication that the right of way had been built up by the respondents after the gates had been installed, which was the argument advanced by the appellant. There was an adequate clearance between the bottom of the gates and the level of the right of way, said by the appellant originally to have been some 10 to 15 centimetres, and there are no markings shown on the right of way to indicate that either of the gates had to be dragged across the surface of the right of way in order to open it, as the appellant alleged. Mr Alexander declined to comment on the suggestion that this was inconsistent with his evidence that the original ground level was where he had observed the rubble material.

80 The evidence of Mr Alexander was contradicted by that of Mr P W Scott, a practising civil structural engineer, who was engaged by the respondent in March 1992 to design the structural details of the buildings then proposed to be erected on Lot 5, which also included the relocation of a sewer. It was put to him by counsel for the respondents that in his report, Mr Alexander had made reference to the nature of the soil at the edge of the right of way, the fact that there was yellow sand beneath the level of the right of way extending about 300 mm below the spoon drain, which he suggested indicated that the respondents' block had been raised by at least that amount. Mr Scott replied that when Mr Alexander drew that inference he would not have had any idea of the history of the site, and the fact that the respondents had taken it upon themselves to remove the additional material from the site and to replace it with yellow sand. It was, he said, an incorrect conclusion arrived at because Mr Alexander was not aware of the early history of the site. He reiterated that the site was definitely not raised by the amount that Mr Alexander suggested it had been. Mr Scott's explanation for the layer of yellow sand was that it directly reflected either the replacement of the top soil by the respondents or the construction of the spoon drain along the alignment of the boundary. It is quite clear on the evidence that the soil of the right of way had also been disturbed when the sewer was relocated.

81 The tenth finding made by his Honour was that, after the construction of the new buildings on Lot 5, the respondents had used the right of way to gain access to the rear of their land, including the garage and the paved area which was utilised as a loading area. At that stage, vehicles could readily drive from the right of way onto the respondent's land abutting on the southern and eastern boundaries of the right of way. The eleventh finding was that the appellant did not at any material time raise any objection to the use that the respondents were making of the right of way were not in dispute. It should be added that, prior to the dispute arising with respect to the appellant's excavation of the right of way, there had been no complaint made to the respondents regarding their raising the level of the right of way for their own purposes. Nor does it appear that there was any complaint regarding any suggested consequential adverse effect upon the opening of the appellant's gates.

82 In relation to the 12th and 13th findings, the learned trial Judge clearly attached considerable weight to the photographs and in particular to those identified as P51, P52, P53, P80 and P82.

83 Photograph P51, which was taken on 15 September 1997, shows what was then the appellant's rear yard from the north-east corner of the respondents' property. Photograph P52, taken on the same day and from the same position as P51, shows more of the right of way. There is nothing in either photograph to suggest that the level of the right of way had been raised to any extent above the level of the appellant's yard.

84 Photograph P80, which was taken on 15 July 1998, shows the length of the right of way extending from the entrance to the respondents' garage down to Bennett Street, and the excavation carried out on behalf of the appellant. This would seem to indicate that the excavation had been undertaken significantly further than the western boundary of the respondents' property.

85 Photograph P81 shows the doorway from the right of way into the appellant's building in course of construction. This photograph indicates how the interior of the building had been excavated.

86 Photograph P53, also taken on 15 September 1997, is of the right of way taken from the west and looking towards the carport. It also shows the appellant's rear yard. Again, there is no indication of any discernable change between the level of the right of way and the level of the appellant's land prior to the excavation carried out by the appellant.

87 Photograph P83, taken on 5 August 1998, shows the right of way from the respondents' carport, facing in a westerly direction towards Bennett Street. This demonstrates how the excavation of the right of way by the appellant prevented access to the respondents' land to the south of the right of way. It also appears to indicate that there had been significant excavation to the west of the respondents' property.

88 I am mindful of the warning of Megarry J in St Edmundsbury & Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572 at 1596 that photographs can distort and mislead. However, in this case, it is to be noted that his Honour had the considerable advantage of a view of the right of way in its present condition and there is nothing to indicate that the photographs gave other than an accurate picture. The photographs were not challenged.

89 Although the learned trial Judge did not so express himself, the evidence of Mr Alexander appears to have been answered by Mr S C Taylor and Mr Sim. It is also clear that his Honour rejected the suggestion that the respondents had raised the level of the right of way to any substantial extent by placing yellow sand on it. He accepted that the yellow sand may have encroached on the right of way, and may even have penetrated onto the appellant's land, but said that if it had done so, it was only "to some slight extent".

90 Reference was made to the evidence of Mr J Battaglia and Mrs A Battaglia that they had been absent from Perth at the time when the first respondent claimed they had been present during a meeting on the appellant's property in June 1997. It may be accepted that the first respondent was in error in claiming that the Battaglias were present at the time he claimed. However, this concerned a peripheral issue only and did not go to the substance of the matter. It is highly improbable that the evidence of the first respondent was a deliberate lie.

91 It would have been preferable for his Honour to have elaborated rather more on his reasons for making the findings which he did. Not without some hesitation, however, I have reached the conclusion that this Court should not set aside the findings of the trial Judge on this issue. The photographic evidence appears to me to constitute compelling evidence against the appellant. Furthermore, the importance of the finding by his Honour that he preferred the evidence of the first respondent as against that of Mr A J Battaglia in relation to the latter's suggestion that the first respondent had been carting in building rubble to raise the level of the right of way for his own purposes is highly significant. The evidence given by Mr Battaglia which was rejected by the learned trial Judge could not have been attributed to a mere lapse of memory. With his Honour's rejection of the evidence that the first respondent had been seen placing rubble on the right of way, there is no evidence from any other person claiming to have seen the respondents or their workmen actually raising the level of the right of way, notwithstanding that the appellant's claim was that there had been a very significant raising of the level of the right of way.

92 There was a substantial amount of other evidence in support of the respondents' case. The evidence of Mr Taylor, the plumber who installed the spoon drains, was that, before entering into the contract, he had noticed that the right of way adjoining the respondents' site was covered with a crushed gravel road base. He also noticed that it extended into the rear yard of Lot 4 for about two metres. At that time, he said, the level of the right of way matched the level of the rear gate of Lot 4, the rear accessway, the metal fence between Lot 4 and the right of way and the paving in the appellant's rear yard. When he constructed the spoon drain, he particularly noticed that the spoon drain's surface level not only complied with the council's approved levels, but also matched the existing levels of the right of way so that no surface water could run into the right of way. He also described how, during the excavation for the spoon drain, he allowed extra space of approximately 25 centimetres on either side of the spoon drain so that the concrete workmen could place the forming. This being a very common practice. After the concrete had been placed, and the form removed, as already noted, he claimed that yellow sand was put in to fill the space.

94 Ground 4 contends that the learned trial Judge erred in law in finding that the appellant is not entitled to fence or to install gates on the boundary of the right of way if so doing impedes or interferes with the respondents' right to free access to and from the right of way at any point or points along the boundary between the right of way and Lot 5 that the respondents may choose. The appellant repeated grounds 1 and 2 as particulars this ground.

95 In its written submissions, the appellant has argued that it has the right to fence the right of way, and that it may use the land so long as it does not interfere with the reasonable exercise by the respondents of their rights. Any obstruction to a right of way must be substantial before it will become actionable - see Pettey v Parsons (1914) 2 Ch 653 at 662 per Lord Cozens Hardy. In the end, the question becomes one of fact to be determined upon the circumstances of the case in regard to the competing rights and interests of the parties - see Gohl v Hender [1930] SASR 158 at 162 per Napier J and see generally Bradbrook and Neave, Easements and Restrictive Covenants in Australia, 2nd ed (2000) at 6.29 - 6.35 and Gale on Easements, 16th ed (1997) at 13-05.

96 For nearly one third of the length of the northern boundary of Lot 5 appurtenant to the right of way, there is a brick bin enclosure. There would be no point in the appellant erecting a fence against this structure, and I assume that this was not intended.

97 For the reasons to be given in relation to the next ground of appeal, I am of the opinion that the respondents and the other persons entitled through them may cross over the balance of the common boundary on the south of the right of way so as to enable them to turn vehicles and so avoid having to drive in reverse down the length of the right of way. For this reason the appellant cannot be permitted to erect a fence along this section of the boundary. Nor can it be permitted to erect a fence along the eastern boundary of the right of way.

98 So far as the erection of gates is concerned, provided that they would not interfere unreasonably with the exercise of the respondents' rights, as found, this would be permissible, although any benefit to the appellant is not readily apparent. More importantly, however, there is nothing before us to indicate how the appellant could erect gates in such a manner as to avoid unreasonable interference with the respondents' rights. I would not uphold this ground of appeal.

99 Ground 5 of the grounds of appeal contends that the learned trial Judge erred in law in finding that the respondents are entitled to use the right of way for the purpose of turning their vehicles (as opposed to access to and egress from Lot 5) at any point or points along the boundary between the right of way and Lot 5 that the respondents may choose.

100 The only case on this point which I have been able to identify is the decision of Kearney J in Lehane v Jones (1982) NSW ConvR 55-079. In that case, a right of way provided access to and from a private dwelling-house which was surrounded by its own spacious grounds. At 564 -569 Kearney J indicated that he did not consider that the grant of the right of way carried with it by implication an entitlement for vehicles to reverse and turn on the right of way itself. He did not consider it implicit in the right of way that turning was to be permissible for the reason that that the defendant's land was much larger than that of the owner of the servient tenement, being approximately double the size.

101 In determining the reasonableness of the respondents' use of the right of way for turning vehicles, it appears to me to be appropriate to take into account considerations of safety. The right of way is narrow and there are two gates on its southern boundary which open onto the right of way, as well as a substantial door opening onto the northern boundary of the right of way. No question of amenity arises. If it be the case that the turning of vehicles on the right of way causes any damage to its surface, the respondents would be obliged to make good that damage.

102 In my opinion, in the circumstances of this case, it would be reasonable to allow the respondents and those persons entitled through them to use the right of way, in conjunction with the respondents' land, for turning.

103 I would not uphold ground 5 of the grounds of appeal.

104 Ground 6 of the grounds of appeal contends that the learned trial Judge erred in law and in fact in awarding the respondents $1,000 as "nominal damages" in that the respondents did not suffer, alternatively did not prove, any loss or damage and the $1,000 is not, in the circumstances, a nominal amount of damages.

105 By par 9 of the statement of claim the respondents alleged that, by reason of the appellant's interference with the respondents' free and unrestricted access to their land across the right of way, the respondents have suffered loss or damage. It was noted that the particulars of damage would be supplied prior to the trial. The particulars of loss which were subsequently delivered were as follows:

"By reason of the [appellant's] interference with the [respondents'] free and unrestricted access to the [respondents'] land across the right of way, the [respondents] have suffered damages calculated as follows:

(a) Loss of use of two covered car bays at $80.00 each month (01.07.98 to 15.03.99) = $1360.00.

(b) Loss of use of two uncovered car bays at $40 each per month (01.07.98 to 15.03.99) = $680.00

Total as at 15 March 1999 = $2400.00 (Accruing at a monthly rate of $120.00)"

"The [appellants] submit that the [respondents] have not proved that they have suffered any pecuniary loss, despite having been deprived of access to the rear of their property, over the right of way. The [respondents] led evidence as to the cost of leasing garage space but the fact is that they had not done so, but have utilised the front area of their property to park their vehicles. This exposes their vehicles to possible theft or damage but does not incur any cost.

In my opinion, the [respondents] were entitled to nominal damages for interference with their right of access and the prevention of their enjoyment of the right of way to which they are entitled and I award the [respondents] the sum of $1000 as nominal damages."

107 The learned trial Judge must be taken to have intended to award "nominal damages" in its strict sense.

108 In The Mediana [1900] AC 113 at 116, Lord Halsbury LC considered the meaning and incidents of nominal damages. He said:

" 'Nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict of judgment because your legal right has been infringed."

109 A second advantage has been considered to be the main purpose of an award of nominal damages, namely, as Maule J described it in Beaumont v Greathead [1846] EngR 257; (1846) 2 CB 494; 135 ER 1039 at 499, "a mere peg on which to hang costs".

Timpar Nominees Pty Ltd v Archer & Anor [2001] WASCA 430

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (236 paragraphs)

Timpar Nominees Pty Ltd v Archer & Anor [2001] WASCA 430 (21 December 2001)

Parties

Legislation Cited (7)

Cases Cited (11)