Twomey v Blanch & Anor

LEGISLATION CITED : Conveyancing Act 1919 (NSW) - Schedule 8, Part 1

• Bulstrode v Lambert [1953] 1 WLR 1064 CASES CITED : - Chiu v Healey [2003] NSWSC 857 - Trewin v Felton [2007] NSWSC 851

Raymond William Twomey (Plaintiff) PARTIES : Jason Dudley Blanch (First Defendant) Clarence Dudley Blanch (Second Defendant)

COUNSEL : S.J. Philips (Plaintiff) D.P.M. O'Dowd (Defendants)

SOLICITORS : Barraclough Jones (Plaintiff) Steven T. Parrott (Defendants)

JUDGMENT - Ex tempore 11 August, 2008 Introduction

1 The Plaintiff and the Defendants are adjoining owners of commercial premises fronting Church Street, one of the main streets of the town of Gloucester. The Plaintiff's land, No.93, has the benefit of a right of carriageway ten feet (3.04m) wide, over the Defendants' land, which is No.89. 2 The Defendants wish to fence their land to provide security for their business activities, thereby enclosing the right of carriageway but allowing access to the Plaintiff's land through gates at certain points. The Plaintiff says that access only at those points would unreasonably interfere with his enjoyment of the right of carriageway. 3 The only issue for determination now is whether the reasonable use of the right of carriageway by the Plaintiff requires access to No.93 at four points along the right of carriageway, as the Plaintiff contends, or at only two points, as the Defendants contend. 4 Since about 1980 the Plaintiff has operated a hardware store on No.93. The Defendants operate an auto electrical and garage business on No.89. 5 The right of carriageway runs along the length of the southern boundary of No.89. Until very recently, there was no fence between No.89 and No.93, allowing the Plaintiff's customers to drive freely onto the right of carriageway and pedestrians to come onto it both from Church Street and from a lane running parallel to Church Street at the rear of No.93, called Billabong Lane. 6 In May 2008 the Defendants, after notice to the Plaintiff, began erecting a fence along the boundary line between the properties. The right of way was obstructed for a time. 7 A dispute arose between the parties which led to the commencement of these proceedings. The Plaintiff sought an injunction restraining the Defendants from erecting any fence along the boundary of the right of carriageway. The issues relating to the obstruction of the right of carriageway have now been resolved. 8 The Plaintiff has filed an Amended Summons in which he seeks orders restraining the Defendants from erecting a fence in a location which will prevent access to No.93 at four specified points. When the trial commenced this morning, the Defendants took the position that they would allow access at two of those points. The contest has therefore been confined to whether the Plaintiff's reasonable use and enjoyment of the right of carriageway entitles him to access at the remaining two points.

9 In 1934, a produce store was erected on No.93. It had pedestrian access via an entrance in Church Street and wider access through a sliding door in the northern wall. Clearly this sliding door (called "Door 1" in this judgment) was used for the delivery and removal of heavy goods, as there was no access at the rear of the building. 10 By Deed of Conveyance dated 1 March 1937 the owners of the land, which is now Nos.89 and 93, transferred No.93 to the Plaintiff's predecessor in title and, by that conveyance, created in favour of No.93 a right of carriageway ten feet wide running along the full length of the southern boundary of No.89. 11 The terms of the right of carriageway, as incorporated by Schedule 8 of Part 1 of the Conveyancing Act 1919 (NSW), confer on the owner of the dominant tenement the right "to go, pass and re-pass at all times and for all purposes with or without animals or vehicles or both" over the servient tenement. 12 The Plaintiff's father and his business partner commenced their business at No.93 in 1949 and purchased the land in 1958. In 1961, the owners of Nos.89 and 93 conveyed a strip of land at the rear of their properties to the Gloucester Council, enabling the council to create Billabong Lane which gave rear access to the properties. 13 In 1968, additions to the shop on No.93 were constructed, extending the property at the back. A second sliding door in the northern wall was constructed. This door has been called Door 2. 14 In 1995, a substantial new section was added to No.93. Another and larger sliding door was opened in the northern wall. This door is called Door 3. Additional access was given through a large door at the rear of the property and parking for four cars was provided. 15 As I have mentioned, there was no fence along the boundary between Nos.89 and 93 as at the beginning of 2008. Customers of the Plaintiff's business could gain vehicular access to the rear of No.93 via the right of carriageway from Church Street and via Billabong Lane. Pedestrian access to the shop premises could be gained through the entrance in Church Street and through Doors 1, 2 and 3 in the northern wall. 16 The Defendants wish to fence No.89 with wire mesh fencing. They intend to provide gates in the fence so as to give access to Door 3 and, a little further along the boundary, another gate to give access to the rear of No.93 to vehicles driving down the right of carriageway from Church Street. They say that gates to provide access to Doors 1 and 2 are more than is reasonably necessary to afford the Plaintiff the use of the right of carriageway to which he is entitled. They say that pedestrian access to the shop through Doors 1 and 2 is unnecessary as customers may come into the store through the entry in Church Street. 17 Further, the Defendants say access through Door 1 is causing them nuisance and inconvenience in the enjoyment of their property because customers of the Plaintiff frequently leave their cars parked on the right of carriageway outside that door while they go inside to shop so that access to the rear of the Defendants' premises is blocked. 18 Finally, the Defendants say that if access to the right of carriageway is available from Doors 1 and 2 they will be unable to lock up and secure effectively their own property (where customers' cars are left overnight), causing difficulty in obtaining insurance for their business and an increase in insurance premiums.

19 The parties do not disagree about the principles of law which are applicable in the present case. They are conveniently stated in the written submissions of Mr Philips of Counsel, who appears for the Plaintiff. 20 A servient owner is entitled to fence a right of way in order to secure his property along the whole boundary, so long as the servient owner does not interfere with the reasonable use of the right of way by the dominant owner by means of access points which meet no more than the dominant owner's reasonable requirements. The dominant owner may have access at more than one point and has some discretion in determining those points of access, which may change over the years. However, the dominant owner's rights are always subject to the requirement that the number and location of access points along the right of way must be no more than are reasonably necessary for the use and enjoyment of the dominant tenement: see generally the discussion of the authorities by Brereton J in Trewin v Felton [2007] NSWSC 851 at [19] and [36]; see also the discussion by Young CJ in Eq in Chiu v Healey [2003] NSWSC 857.

21 I have found the evidence of the Plaintiff, Mr Twomey, particularly helpful in this case. He has been perfectly frank in his evidence, and I think that I may safely rely upon it. 22 Mr Twomey gives evidence as to the use to which each of the doors in No.93 is put. He says that his store is open plan and that customers can easily walk in from the Church Street entrance through to the rear of the store without obstruction. He concedes that the entry from Church Street is the ordinary and natural point of access to the premises. 23 Mr Twomey says that Door 1 has not been used for some time for the delivery of heavy goods or for the loading of heavy goods into customers' vehicles. This was probably its use when the building was first constructed in the 1930s, but this use seems long ago to have fallen by the wayside. No doubt this is so because of the construction of other more convenient points of delivery and loading, to which I will come in a moment. 24 The principal use to which Door 1 is put is for pedestrian access, in that customers cut across the right of carriageway from Church Street and come into the shop premises on No.93 at Door 1, rather than simply going a few metres further and coming in the front entry door. 25 Pedestrian access through Door 1 has resulted in customers parking their cars on the right of carriageway just outside Door 1 while they enter the shop to transact their business. Mr Twomey has placed a number of "No Parking" signs at this point on the right of carriageway, but he concedes that they are not always effective to deter customers. He concedes that customers' cars are left outside Door 1 on the right of carriageway for up to half an hour, during which time it is impossible for any other vehicle to use the right of carriageway. 26 It seems to me that, bearing in mind that Door 1 is now used exclusively for pedestrian access and not for the loading or unloading of heavy goods, access from the right of carriageway to permit its continued use is unnecessary for the proper use and enjoyment of No.93. The circumstances in which that door was constructed in the 1930s have changed. It now offers an invitation for pedestrian access to the shop via a point of entry which is additional to the front entry, only a few metres away. Even more importantly, Door 1 is an inducement (notwithstanding the "No Parking" signs) for customers to park cars on the right of carriageway, to the inconvenience of the servient owner. 27 The terms of the right of carriageway do not expressly or impliedly permit the Plaintiff's customers to leave cars upon the right of carriageway for the purpose of carrying out their shopping. As is established by authorities such as Bulstrode v Lambert [1953] 1 WLR 1064, a right of carriageway can, in certain circumstances, confer a right to leave vehicles on the carriageway for a short time, such as is reasonably necessary for loading and unloading of goods. 28 No doubt in the 1930s, when Door 1 was the only point of access for the loading and unloading of goods, a right to park vehicles beside Door 1for that purpose was implicit in the terms of the grant. However, as I have noted, circumstances have changed and parking outside Door 1 is no longer for the purpose of loading or unloading heavy goods. I do not think that the terms of the grant entitle the Plaintiff's customers to use the right of carriageway outside Door 1 as a convenient parking lot for shopping within the Plaintiff's store. 29 Mr Twomey says that Door 2 is not regularly used for the loading and unloading of heavy goods or deliveries, nor is it regularly used for pedestrian access. The loading and unloading of heavy goods is now regularly effected through Door 3. It is through that door that pallets of goods are delivered when vehicles stop for that purpose along the right of carriageway. Access from the right of way to Door 3 is one of the points of access which the Defendants are willing to provide. 30 The door at the rear of the premises is mainly used for loading heavy goods onto customers' vehicles. Customers can back their cars up to the rear of the premises, arriving at that point either via Billabong Lane, or driving down the right of carriageway from Church Street. Goods may then be conveniently loaded onto lorries or onto the back of vans from the rear door. 31 In short, as far as the loading and unloading of goods and materials is concerned, Door 3 and the rear door are regularly used for that purpose, not Doors 1 and 2. Pedestrian access, as I have said, is afforded conveniently through the entry to the shop on the Church Street frontage. 32 In ascertaining whether or not the Plaintiff's requirement for access from the right of carriageway to Doors 1 and 2 is reasonable, I bear in mind not only the convenience to the operations of the Plaintiff in that regard, but also the effect of that access on the operation of the Defendants' business and their use and enjoyment of No.89. 33 It seems to me that retaining access from the right of carriageway to Doors 1 and 2, essentially for pedestrian use, merely encourages unauthorised parking by the Plaintiff's customers on the right of carriageway, causing substantial nuisance and interference to the Defendants' business and substantial obstruction to the use of the Defendants' land. 34 I accept the evidence that if access to the Defendants' land from Doors 1 and 2 is permitted via access gates in the boundary fence at those points, the security risks to the land of the Defendants are increased. There is in evidence a letter to the Defendants from an insurance broker advising that affording a right of access at these points will increase the Defendants' insurance premium. 35 Weighing, on the one hand, interference in the operation of the Defendants' business and in the use and enjoyment of their land and, on the other hand, the fact that Doors 1 and 2 are superfluous to the needs of the Plaintiff's business, I conclude that the provision of access from the right of carriageway to Doors 1 and 2 is not reasonably necessary for the use and enjoyment of the Plaintiff's land. Accordingly, I would not require the Defendants to provide access to the Plaintiff's land from the right of carriageway at Doors 1 and 2. 36 As I have earlier noted, the Defendants are willing to provide access to Door 3 from the right of carriageway and another access gate, a few metres further down the boundary, in order to enable vehicles coming along the right of carriageway to enter the rear area of the property. I conclude that that access is the only access from the right of carriageway to which the Plaintiff is entitled.

37 The orders which will result from this judgment have to be formulated by the parties with some care. For the avoidance of further dispute, some more precise definition of the points of access and their width should be specified in the Short Minutes of Order than is presently provided by the Amended Summons. I think it is advisable for the parties to consult as to the formulation of the orders. 38 I think it may also be of benefit to the parties to discuss and resolve, if they can, the precise location of the fence which the Defendants intend to erect. There seems to have been some misunderstanding by the Plaintiff up until now as to where that fence would commence in terms of its distance from the Church Street frontage. 39 Accordingly, I will defer making formal orders until the parties have formulated Short Minutes of Order. If they can do that this afternoon I will make the orders today. If they wish some little time to consult, I will stand proceedings over for a short time.

40 Mr O'Dowd of Counsel, who appears for the Defendants, seeks the usual order for costs, the Plaintiff having been unsuccessful in his claim. He draws attention to the fact that on 24 June 2008 the Defendants' solicitor made an offer to the Plaintiff's solicitor that the Defendants would provide access along the right of carriageway to give access at Door 3 and also to the rear of the property. They are the only points of access to which I have held the Plaintiff is entitled. 41 Mr Philips submits that the parties should bear their own costs up to 24 June 2008. However, I cannot see any conduct on the part of the Defendants prior to that date which would deprive them of the usual order as to the costs of the whole suit. 42 The Defendants gave notice in writing on 16 May 2008 to the Plaintiff that they intended to erect a fence on the common boundary and they explained the reasons for doing so. It appears that the Plaintiff did not seek details from the Defendants as to precisely where the fence would be put. Animosity quickly broke out and these proceedings were commenced by the Plaintiff by Summons on 30 May 2008. The Summons sought final relief in terms which the Court could not have granted, even if the Plaintiff had been successful to some degree. 43 The Defendants responded with offers for compromise, culminating in the 24 June 2008 letter, which offers the access to which I have held the Plaintiff is entitled. It seems to me that there is no conduct on the part of the Defendants in these proceedings which merits any departure from the usual order for costs, that is, that the Plaintiff will pay the Defendants' costs of the proceedings on the party/party basis. - oOo -

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