· Erecting the fence along the last 5 metres;
· Erecting the gate posts at the commencement of the last 5 metres;
· Parking from time to time on the site of the right of carriageway.
75 The Trewins further complain that the proposed installation of a gate at the commencement of the last 5 metres will obstruct the right of carriageway. This gate has now been swung, but has remained open, pursuant to Mr Felton's undertaking, pending the hearing.
76 My conclusion that, given the extent of the access points which they currently enjoy, the Trewins are not entitled to insist on the last 5 metres remaining unfenced, means that the erection of a fence at that site is not an actionable nuisance. As I have indicated, the Trewins may in the future from time to time change the points at which they exercise access between the rear of Lot 1 and the corridor, and if they close some part of the access currently used, they may then be entitled to open an access point at the last 5 metres. As presently advised, and consistent with the principle that the dominant owner is entitled to construct a right of carriageway at its own expense, but not to have the servient owner construct a way that is not constructed, any such change of access points should be at the Trewins' own cost, but for present purposes I need not determine that question.
77 So far as the gateposts are concerned, they are substantial brick structures and have the effect of narrowing the right of way at the commencement of the last 5 metres to 3.02 metres. Although 3 metres is sufficient for the passage of vehicles, this point in the right of way is one where maximum manoeuvrability is important to users, since it is the vicinity in which vehicles manoeuvre and turn to enter the garage on Lot 1, and those manoeuvres are restricted - particularly in the case of a vehicle towing a trailer - by the gateposts.
78 Generally there is no obligation on a servient owner to maintain the full width of the easement throughout, so long as there is no substantial interference with reasonable exercise of the right of way. Thus in Powell v Langdon, while Roper J held that a gate and low wall erected by the servient owner on a right of way over a strip of land 20 feet wide, leaving an opening of 8 feet 2 inches, was a real and substantial interference, notwithstanding that it was passable, because it constrained manoeuvrability, his Honour nonetheless thought that a 10 foot opening would have been sufficient. But in my view, the gateposts at the point at which they are located reduce the width of the right of carriageway below that of ordinary convenience for its users. Accordingly, the gateposts are an actionable obstruction.
79 It does not necessarily follow that a gate, swung on narrower posts but in the same vicinity, would be an actionable obstruction. On the most generous view of Mr Trewin's evidence, the Trewins need to use the last 5 metres in the present configuration only when they have a trailer attached or to be attached. Mr Trewin gave contradictory evidence as to whether it was necessary to enter on the last 5 metres when reversing into the second garage bay, being that closest to the Felton's property. Mrs Trewin maintained that she needed to enter onto the last 5 metres in order to reverse into that bay, but having viewed the video evidence and inspected the site I am not satisfied that that is so. Nonetheless, I do accept that in order to manoeuvre a trailer, entry onto the last 5 metres is reasonably required. The only contrary proposition advanced amounted to the suggestion that the trailer could be detached and manhandled, and an obstruction that required the dominant owners to do that would be an unreasonable one.
80 However, Mr Trewin's evidence was that a trailer was used in some weeks not at all and in some weeks two or three times, the intensity being at the higher end of that range at present because renovations were underway to their house. The purpose for which Mr Felton wishes to have a gate is privacy and security of his home. It is not an actionable obstruction for the servient owner to fence off a part of the easement, which is not required for the reasonable exercise of the right of way [Powell v Langdon, in which Roper J was of opinion that a fence erected along part of the right of way so as to effectively excise 5 of its 20 foot width from that available for users for part of its length, in order better to secure the privacy of a cottage on the servient tenement, would not be an actionable obstruction]. Similarly, in the current configuration of the access arrangements, I do not think it would be an actionable obstruction to gate the last 5 metres for the purposes of enhancing the privacy of the home on Lot 2, so long as the Trewins can open the gate, although it may be otherwise if the access points were reconfigured so as to include one from the last 5 metres.
81 As has been seen, generally speaking, a servient owner may erect a gate across a right of way, provided that it is not a substantial obstruction and is left unlocked [Pettey v Parsons; Gohl v Hender; Powell v Langdon, 139; Deanshaw v Marshall]. In Johnstone v Holdway [1963] 1 QB 601, the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public, but offered the dominant owner the combination for the lock. The dominant owner's suit for a mandatory injunction to remove the spiked chain failed, the Court of Appeal holding that there was no substantial interference with the right of way: the dominant owner had the means of access through the gate.
82 Sometimes it has been stipulated that the gate should be left open during such times as persons entitled to use the right of way might reasonably be expected to do so [Pettey v Parsons; Powell v Langdon], while in other cases, the dominant owner has been obliged to open and shut the gate; to my mind these cases are distinguished by the circumstance referred to by Roper J in Powell v Langdon - although his Honour was using the distinction in the context of the appropriate width of the aperture - that "this right of way is more akin to a laneway leading to the boundaries of the plaintiff and of the occupiers of the rear blocks than to a way made for their own convenience within their own boundaries". The present right of way is more akin to a private driveway made for the owner's convenience within its own block, over which a neighbouring owner is also granted a right of use, and I can see no reason why the servient owner should not be entitled to gate it in order to secure his land. As he has not done so at the entrance from Gale Street, I do not think it unreasonable that he do so at some remoter point from Gale Street. Had he gated it at Gale Street, the Trewins would have had to pass through it (and open it if closed) every time they used the right of carriageway. In its proposed location, they will have to do so only on the infrequent occasions that it is necessary for them to enter on the last 5 metres. I do not consider it an unreasonable impediment to use of the right of carriageway that such a gate be closed, so long as it not be locked and the Trewins have the ability to open and operate it. Accordingly, a gate at the commencement of the last 5 metres would not be an actionable obstruction, so long as the Trewins are able to open it.
83 That leaves the question of parking. The evidence of Mrs Trewin establishes that from time to time vehicles of the Feltons' invitees, if not the Feltons themselves, have been parked on the corridor. No actual inconvenience has been occasioned to the Trewins by this, save perhaps for an occasion in November 2003 when the Feltons "parked in" a truck that was delivering timber to Lot 1 for the construction of the garage, which was itself parked on the site of the right of carriageway while unloading timber, blocking entry and egress by the Feltons' vehicles to and from Lot 2. On each other occasion, the evidence does not establish that there has been any actual interference with persons or vehicles using the right of carriageway, although there may have been potential obstruction.
84 It is clear that the parking of a car by the servient owners on the right of way may be an actionable obstruction. In Jalnarne, it was found that the servient owners had consistently parked a vehicle on the access road, immediately in front of the compound gates. This was conceded to be a breach of the covenant not to obstruct the roadway or park any vehicles on it, in respect of which his Honour said (at 16):
I have also by their concession found them liable for parking their motor car on the roadway in breach of covenant. That is also an interference with the right of way and is a nuisance. According to the affidavit of Mr Caple, which was in evidence, that state of affairs has continued since about 1985, some four years. I shall grant to the plaintiffs an injunction restraining Mr and Mrs Ridewood from parking the vehicle on the roadway. As for damages there is some evidence in Mr Caple's affidavits that both plaintiffs have been inconvenienced by the wrongful parking. The appropriate measure of damages is in my judgment £200 to Jarlnarne and £200 to Noah's Garage.
85 However, while there may be an actionable obstruction even though no one is in fact obstructed, there must be something that would have the effect of hindering passage if anyone wanted to pass [Ewing Phosphate Company v Driver (1903) 23 NZLR 108, 111 (Williams J)]. In this context, it is also important to bear in mind all the circumstances, including the rights of the servient owner and other persons entitled to use the way. It is not to be overlooked that the servient owner is entitled to do as it pleases on the servient land, so long as it does not interfere with reasonable use of the right of carriageway. It is not every act of parking on the right of carriageway that constitutes an actionable obstruction: for example, to park on the right of carriageway in a manner and location that did not obstruct the passage of the dominant owner or his licensees would not be a nuisance. To park there for a short time in circumstances that, in the event of the dominant owner or his invitees requiring access or egress, the vehicle could be promptly moved would, I think, not be an actionable obstruction.
86 Generally speaking, the parking of which the Trewins complain appears to have taken place in the vicinity of the last 5 metres. I accept that, to the extent that vehicles block access into the last 5 metres, this has the potential to obstruct reasonable user on those infrequent occasions when it is necessary or convenient for vehicles entering or leaving the rear of Lot 1 to manoeuvre on the last 5 metres. However, parking in that area has been only very occasional, and does not appear on any of those occasions to have actually prevented access and egress between the rear of Lot 1 and Gale Street. Except for the one occasion, in November 2003, when the Trewins' invitees were in any event themselves blocking the carriageway, I am unpersuaded that any act of parking on the site of the carriageway by or on behalf of the Feltons constituted a real and substantial obstruction.
87 It follows that the only obstruction that the Trewins have established against Mr Felton is the erection of the gateposts.
88 For Mr Felton, it was submitted that no mandatory injunction requiring the demolition of the gateposts should be granted, essentially by reference to the doctrines of laches and acquiescence. It was also submitted that the Trewins had, by their conduct, created an estoppel precluding them now from unconscionably asserting their rights, for which Greater Sydney Development Association Ltd v Rivett (1929) 29 SR (NSW) 356 was cited. In this behalf, it was contended that the Trewins' acts and omissions (essentially, previously fencing the last 5 metres), conveyed a representation that the terms of the easement were no longer enforceable in respect of the last 5 metres, so as to disentitle the plaintiffs from a mandatory injunction [Chatsworth Estates Company v Fewell [1931] 1 Ch 224, 231].
89 For the reasons that I have rejected the argument of abandonment, I also reject this argument. The use of only certain access points does not convey a representation that the dominant owner will not in the future choose different access points. Given the Trewins' continuous insistence on what they perceive to be their rights, it is incomprehensible that Mr Felton would have thought that they were agreeing to make the slightest concession in his favour.
90 It was also argued for Mr Felton that the hardship inflicted on him by a mandatory injunction would be disproportionate to the extent of the plaintiffs' injury or inconvenience. However, in my view Mr Felton took a calculated risk by constructing the gateposts when he did, well knowing the Trewins' attitude [cf Middleton v Arthur [2002] NSWSC 627
(Palmer J), [88] - [92]].
91 It follows that in my opinion the Trewins are entitled to a mandatory injunction requiring removal of the gateposts.
Have the Trewins committed trespass by excessive user of the right of way, by allowing vehicles to park on it?
92 The evidence establishes that - for relatively short periods of time, usually measurable in less than five minutes - vehicles of the Trewins or their invitees have been parked on the right of way. The Trewins conceded in cross-examination that, following the opening of their shop in March 2005, their suppliers' vehicles parked daily on the easement for short periods; that this reduced in frequency, but that it continues, albeit at reduced frequency, until today. As I have already concluded, this is not authorised by the easement, and therefore constitutes a trespass by excessive user.
93 Despite the submissions on behalf of Mr Felton, the evidence does not establish that any actual inconvenience has been occasioned as a result; on each of the three occasions when egress by a Felton vehicle might have been inhibited, the parked vehicle was promptly moved, so that any delay could be measured in seconds. Nonetheless the Trewins, while not vicariously liable for trespass by others, are obliged to take steps to ensure that their invitees do not exceed the terms of the easement, and Mr Felton is entitled to an injunction restraining the Trewins from licensing or inviting or authorising any persons to use the right of carriageway without ensuring that those persons do not park on the carriageway. As Moseley J said in Jalnarne, "How they ensure that is a matter for them".
Conclusion
94 My conclusions may be summarised as follows.