Walker v Espie

2701/03 CLIVE CECIL WALKER & ANOR v NATHAN JOHN ESPIE JUDGMENT - Ex Tempore 1 HIS HONOUR: This is a final hearing of an application for an injunction to restrain the use of an easement by the erection of a gate across part of the boundary of the site of an easement. 2 The plaintiffs are the registered proprietors of land which lies on the corner of Old Ferry Road Murwillumbah and Tumbulgum Road. That land is a rectangular block which is orientated in approximately an east/west direction. Even though it lies at the corner of Tumbulgum Road and Old Ferry Road, it does not have vehicular access from either of those roads. The frontage that is on Tumbulgum Road is the southern side of the plaintiffs' land. The plaintiffs' land near that frontage falls away extremely steeply - it is retained by a retaining wall, and there is only a footway which goes from the plaintiff's property to Tumbulgum Road. The frontage near Old Ferry Road is the eastern side of the plaintiffs' land. The land around that frontage falls away fairly steeply. There is a small council reserve of some sort in between the easternmost boundary of the plaintiff's property and Old Ferry Road. Because of these matters of both topography and title, access to the plaintiff's land is derived from a right of way over the land of the defendant. 3 The defendant's land is a rectangular block which is orientated in approximately a north/south direction. The southern third or thereabouts of the defendant's land lies immediately to the west of the plaintiffs' land. The right of way to which the plaintiffs are entitled is one which is 12 feet wide and traverses approximately two thirds of the length of the eastern boundary of the defendant's lot. 4 By going along that right of way in a northerly direction from the plaintiff's property, one can reach Sunnyside Lane. This is a small dead-end street which branches off Tumbulgum Road, then curves around to go in roughly an easterly direction. It is by going along Sunnyside Lane to its end, and then turning into the right of way, that the plaintiffs have access to their property. They enter their property by going through a space, through which a car can easily drive, which lies to the north of the spot where a fence constructed on the boundary between the land of the plaintiff and the defendant terminates. 5 The easement which the plaintiffs use is one which was granted pursuant to a memorandum of transfer made on 13 January 1916. The terms of the grant are: "… full and free right and liberty for the said William Thomas Burch his executors administrators and assigns or other the registered proprietor or proprietors for the time being of said Lots 2 and 3 on said deposited plan No 8291 and his and their tenants and servants and all persons authorized by him or them from time to time and at all times hereafter at his and their will and pleasure to pass and repass with or without horses and other animals motors and carriages over and along the piece of land twelve feet wide marked on said deposited plan as site of proposed right of way and thereon colored brown…"

It is the plaintiffs' land which is referred to as Lot 3 in that grant. 6 The circumstances in which this matter came to court should be recorded. The plaintiffs have been living in their present house for some time. The house of the defendant is a new one, which the defendant and his family has been occupying for only a matter of months. On 14 October last year the first plaintiff wrote to the defendant and his de facto wife, at their then address, expressing concern about some activity of surveyors. The detail of that problem no longer matters, but the letter concluded by saying, "In the circumstances, be advised that no further communication in respect of matters pertaining to the right of carriageway burdening your property and benefiting our property will be entertained, except by writing addressed to the writer, c/- Ellis & Baxter, Solicitors, of PO Box 935, Murwillumbah. Any other form of communication will be considered ineffective and of no legal force. Further to the above, you are invited to give an undertaking in writing, subject to legal advice, by yourselves or on behalf of the Nessing Group, not to hinder, interfere with, or otherwise obstruct and prevent the enjoyment by the writer of the benefits of the right of carriageway according to law, except by consent, by yourselves, servants, agents, employees or contractors in the course of construction on the site, by workers, tradesmen, delivery of materials or other activities whatsoever." 7 The letter that was so written was written by the first named plaintiff, who is a barrister. The second named plaintiff, his wife, is a solicitor, in practice in Murwillumbah. 8 On 21 March this year there was a conversation between the male plaintiff and the defendant. I accept the evidence of the defendant concerning that conversation. It was to the following effect; "Clive, have you got a minute. I need to talk to you about the erection of a gate over the right-of-way?" He answered "No, no, no I don't want the gate." I said, "Hang on a minute Clive and hear me out. I want to put a remote controlled sliding gate." He answered "So, it will be able to be opened from inside the car?" I said "Yes Clive. It will have a remote control. I wouldn't expect you to get out of your car and open a gate. He said "Yes, well, we are the holder of a similar device on our other property and it works quite well for us." I said "Well, we will have to work at a few more details. I would prefer that the electricity be connected to your place as you would be the only ones opening and closing it." Clive Walker said (interrupting me and pointing to my electricity metre box) "It would be closer to yours". "I said "Oh well, work on the details, but I would also like you to go halves in the cost." He answered "You want the gate. The onus is on you to pay all the cost and supply electricity." I said "Whatever Clive." Clive Walker said "As I said, before any works are carried out on the right-of-way give me notice so I can make arrangements for the car, so I'm not trapped in." "I replied, "Okay"." 9 On 24 March 2003 the plaintiffs sent a letter to the defendant which dealt first with a topic not now relevant, and continued: "We note your intentions to undertake works to the right of carriageway benefiting our property. As previously advised, we will require reasonable notice of same in order that we may make appropriate arrangements. Finally, we confirm our earlier request to you to confine all necessary communications with us to written communication only, in respect of any matter affecting our property." 10 On 6 May, there was another brief encounter between the male plaintiff and the defendant. The defendant tried to give the male plaintiff a document. The male plaintiff refused to accept it, and insisted it be put in his letterbox. On 6 May the defendant put into the plaintiffs' letterbox a letter which said: "We are writing in regards to our driveway, which you use to access your property. Due to maintenance and necessary updates to our driveway, access to your property with vehicles can not take place, from 9am Wednesday 7/05/03 - 9am Friday 9/5/03, foot traffic is acceptable, providing care is taken, as there will be wet cement involved in construction." 11 The plaintiffs chose to not look at this document for a fortnight or thereabouts. The only conclusion one can draw is that they did not look at it because they preferred not to know what it might have said. 12 On 6 May 2003 the plaintiffs wrote a letter to the defendant, which they sent by registered post. It was probably posted about 5.00pm on that day. It complained about building debris and parked vehicles encroaching on the right of carriageway and about some pot plants which had been placed upon it. 13 Also, by this time there had been a trench excavated on the part of the boundary between the property of the plaintiffs and the defendant which was unfenced, and at the head of the right of way. That trench is one which, it is now clear, the defendant was proposing to use to lay a footing for the erection of a gate. The plaintiffs' letter of 6 May 2003 continued: "A trench has been excavated by you across the entrance to our home, creating a hazardous situation to persons seeking to enter and leave the premises. On two (2) previous occasions we have requested that you provide us with written notification of any activities intended by you affecting access to our property. In the circumstances, you are requested to desist from the above conduct. Should you continue with such conduct, or fail to provide appropriate written notice of matters affecting our property, we shall immediately make an application to the Supreme Court for an injunction restraining your conduct. We shall also tender our correspondence to you in relation to a question of costs, which will be sought against you." 14 On 7 May the defendant's wife went to the office of the female plaintiff around 2 o'clock, and sought to hand her a letter. The female plaintiff knew that she was there, but did not speak to her, and arranged for a member of staff to receive the letter. The letter dealt with the problems which had been raised concerning vehicular access and pot plants, and continued: "As for notification of works being carried out on our property, Mr Espie had a verbal conversation with Mr Walker outlining the proposed works, Mr Walker informed Mr Espie that he would not be paying for any part of it, and if Mr Espie was to continue with construction he would be solely responsible for erection and payment. A letter was also handed to Mr Walker on 6 May 2003 by Mr Espie, Mr Walker refused to accept it, Mr Espie explained that it would be in Mr Walkers interest to read the letter, still he refused (letter attached) there is also a copy of this letter in the area where your other mail is deposited. This is confusing to us as every other letter we have written to you has been hand delivered and accepted. Conversation in regard to our driveway has been initiated by Mr Espie on a number of occasions, to which you respond by ignoring him and walking in the other direction. We would like to point out that as neighbours it is not out of the ordinary to have courteous conversations, and we wish to do so, as there is no reason for letter writing and threats of Supreme Court action to be taken against either party, this is very extreme and completely unnecessary, due to the nature of the above mentioned matters." 15 On 6 May 2003 Mr Walker observed a partly constructed gate being trundled back and forth by the defendant outside his kitchen window. That kitchen window overlooks the carport of a neighbour whose property abuts, to the south, the land of the plaintiffs, and to the west, that part of the land of the defendant along which the right of way runs. That neighbour's land is lot 2 in DP 8291, land which has the benefit of the same right of way that the plaintiffs have. 16 On 7 May 2003, shortly after 2.00pm, the plaintiffs approached the court for ex parte relief. That ex parte relief was granted by the Duty Judge who ordered that until 9 May the defendant be restrained from preventing the use of the right of way by erection of a gate across the right of way. 17 On 9 May, by consent, the injunction was extended until 13 June 2003. The matter came before me as Duty Judge on 13 June 2003. The injunction was, by consent, extended until further order, and the proceedings were fixed for hearing today. 18 On 9 May 2003 the solicitors for the defendant wrote to the plaintiffs expressing disappointment at their refusal to meet the defendant, even in the presence of a solicitor. The letter confirmed that the defendant wished to place a sliding gate on the boundary between the two properties. The defendant's solicitor suggested initiation of the Court proceedings was premature. He continued; "It seems that you have assumed that the sliding gate will be an obstruction. That is unlikely to be so, and our client has put a proposal to Mr Walker, verbally, suggesting an electronically controlled, motorized gate which could be opened and shut by you from the inside of your car, even without the necessity of getting out. With respect, that seems like an eminently reasonable proposal." 19 Under cover of a letter of 14 May 2003 the solicitors for the defendant enclosed plans which showed the proposed gate. The plans showed a gate which was mounted on wheels, and was designed to slide along the fence, on the defendant's side of the fence. The gate was constructed of palings of the same height as the existing fence. 20 By 13 May 2003 someone from the Community Justice Centre in Murwillumbah wrote to the defendant reporting that he had been in contact with the plaintiffs to seek mediation but the offer of mediation had been declined, and given that mediation requires the willing participation of both parties to a dispute, the Community Justice Centre could do nothing further. 21 In the course of evidence today, it emerged that the defendant had more extensive plans for fencing the of his property than merely putting a gate on the boundary of the northern most part of the right of way along the line where it joins the defendant's property. It emerged that, as well, he was planning to fence off the right of way near the spot where it adjoins Sunnyside Lane. He also wants to put a fence along the part of his property which adjoins Sunnyside Lane and is not the site of the right of way, and a fence up the western side of his block to meet an existing fence on that side. That work, if done, would make his yard more suitable for his young children to play in. 22 The cross-examination of the defendant shows that, in many respects he has not, at this stage, thought through all the detail of how a gate separating his land from the land of the plaintiffs would operate. There were some problems which were put to him, about what would happen if there was an electricity failure; what would happen if the motor which drives the gate were to fail, and what would happen if either of these events were to occur at a time when the defendant was not at home. He had not thought through what would happen in those situations. He expressed confidence that some solution could be found, because other people have gates of this type and they seem to work satisfactorily, but he personally did not know how the problems would be solved. He said he intended to engage a subcontractor who specialized in gates to carry out the work on the gate and that the subcontractor would be able to come up with the best plan. 23 The prospect that there might be a second gate constructed on the right of way was one which had been referred to obliquely in some earlier correspondence. In their letter of 8 May 2003, the defendant's solicitor had said; "You know our client needs to install gates at the entry and exit point of their property." However, no detail concerning any such second gate had been communicated prior to that letter. 24 In light of the evidence about the expanded fencing plans of the defendant, the plaintiffs today sought and were granted leave to amend their summons, so that it sought an injunction not just prohibiting the erection of a gate across the right of way but prohibiting the erection of a gate or gates across the right of way (a) at the junction of the right of way with Sunnyside Lane and (b) on the boundary of the plaintiffs' property and the defendant's property at the junction with the right of way. 25 Within a short period of this amendment being sought and granted, the defendant proffered to the court an undertaking that he would not take any action to erect a gate at the junction of the right of way over his land with Sunnyside Lane without giving 28 days notice to the plaintiffs. 26 The appropriate legal tests for an injunction to restrain interference with use of a right of way are not in dispute. The appropriate test for whether there had been an infringement of the right of the owner of the dominant tenement to use a right of way is whether an action for nuisance would lie for it: Finlayson v Campbell (1997) 8 BPR 15,703 at 15,706-15,707: Anderson v Pender [2002] NSW SC 1005 at [14]. 27 The test for actionable interference of the right of way being that there has been conduct which amounts to a private nuisance, one then applies the test appropriate to any injunction to restrain the repetition of continuance of a tort to decide whether it is appropriate to grant an injunction in relation to any such interference. 28 So far as interference with rights of way generally is concerned, in Pettey v Parsons [1914] 2 Ch 653 Lord Cozens-Hardy MR said at 662: "It must not be forgotten that this is not a highway; it is a private road. It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is a wrong if it is appreciable. That I think is the recognized distinction. Any appreciable obstruction in a highway can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way."

His Lordship also said, "It is contended by the defendant that any gate which interferes with the full and absolute enjoyment of any and every inch of way is per se and necessarily an obstruction in respect of which he was justified in pulling down, as he did, this gate."

Lord Cozens-Hardy did not accept that contention. 29 The question which the court must decide was described by Roper J in Powell v Langdon (1944) 45 SR (NSW) 136 at 139. "Whether an obstruction of a right of way is actionable or not is a question of degree to be decided in the light of the circumstances of each case in which it arises. The law, I think, is clear. "In the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way': Petty v Parson [1914] 2 Ch 653 at 662, and see Clifford v Hoare (1874) LR 9 CP 362 and Sketchley v Berger (1893) 69 LT 754. Cases decided on the question of whether the erection of a gate constitutes an actionable obstruction, eg Flynn v Harte [1913] 2 IR 322; Petty v Parsons [1914] 2 Ch 653; Hender v Gohl [1928] SALR 325; 7 Austn Digest 861, are useful only insofar as they go to establish the principles to be applied." 30 More specifically, the situation concerning a gate across a right of way, where that gate is on a boundary, has been considered by Waddell J in Dunell v Phillips (1982) 2 BPR 9517 at page 9522. "A number of decisions have been cited in which consideration has been given to the places at which a dominant owner is entitled to access to a right of way and to the servient owner's right to fence the common boundary: Petty v Parson , [1914] 2 Ch 653 at 663, 667, 668; Hose v Cobden , [1921] VLR 617 at 620; Gohl v Hender , [1930] SASR 158 at 162; Powell v Langdon , (1944) 45 SR (NSW) 136; 61 WN (NSW) 238 at 239; Guildford (Earl) v St Georges Gold Club Trust Ltd , (1916) 85 LJ Ch 664; Zenere v Leate (1980) 1 BPR 9300 at 9306, and an unreported decision of Rath J in this Division: Saggers v Brown , 30 November 1981 [now reported (1981) 2 BPR 9329]. These decisions clearly establish that in cases where a right of way is wide enough to permit the purpose for which it was granted and in the absence of any provision in the grant to the contrary, and in the absence of the purpose for which the right of way was granted requiring otherwise, the servient owner is entitled to fence the common boundary and the dominant owner is entitled to access to the right of way by means of gates at such points as reasonably meet his requirements. As Napier J said in Gohl v Hender , at 163: "It is a natural and necessary incident to the use and enjoyment of the plaintiff's land that it should be fenced in"."

That proposition has also been accepted by Young J (as his Honour then was) in Butler v Muddle (1995) 6 BPR 13,984 at 13,986. 31 Because the plaintiffs come to court seeking a quia timet injunction the onus is upon them to establish that the conduct which might occur is such as is likely to amount to an actionable interference with their right of way. Here, because the plaintiffs have deliberately refrained from communicating with the defendant, and have thereby not allowed themselves the opportunity to find out from the defendant exactly what it is which he is proposing, in anything other than broad terms, they are at a corresponding disadvantage in being able to discharge their onus of proof. 32 There are several concerns which the plaintiffs have expressed in evidence. The plaintiffs drive in and out of their property several times in the course of a day. They have tradesmen, visitors and suppliers who come to the property. The plaintiffs also say that the present method of unobstructed access enables the postman to put letters in their letterbox which is within the boundary of the property. That is a statement which is strictly accurate, but which is, in its context misleading. That is because, while the letterbox is within the boundary of the property, it is perfectly possible for someone to put items in the letterbox without actually going on to the property, and that is the way in which the postman delivers mail at present on those occasions when it is needed to be put into the letterbox. As well, the use of the right of way enables the plaintiffs to put garbage bins out in Sunnyside Lane, it enables delivery of newspapers and take-away food, and it enables access to persons reading meters located within the home. 33 The defendant has proposed a system whereby the gate is opened using an electric motor. He proposes that that electric motor is one which could be activated by radio signal from a remote control and he would be prepared to provide a remote control to the plaintiffs. I assume this means one to each of the plaintiffs. The defendant offers, at the suggestion of the male plaintiff made on 21 March, that it should be him who pays for all the electricity. 34 The defendant also proposes that there should be a device whereby the gate can be opened by someone pressing a button located on the post. There may need to be some further consideration given to exactly where such a button might be applied to enable convenient access, so that it could not be readily operated by children, but so that a short adult would be able to use it. The defendant has not formed any firm views about how to do that, in circumstances which I have referred to earlier. 35 If the gate were to be powered in this way, the best estimate seems to be it would take about thirty seconds to open and another thirty seconds to close. 36 If someone was approaching the gate, who did not have a remote control device, it would be necessary for them to get out of their vehicle and press the button to enable the gate to open. 37 I would accept that there are some unresolved matters about the precise method of operation of the gate, and about what arrangements there could be if there were to be an electrical or mechanical failure. If those problems could not be solved, they might mean that the presence of the gate is a substantial interference with the right of way. However, the plaintiffs have not satisfied me that it is likely there will be problems of that kind which are insuperable. On the evidence before me, I am not persuaded that the existence of a gate across the space will be a substantial interference with the right of way. 38 If there were to be a second gate installed, at the other end of the right of way, the situation would need to be considered again. The cumulative effect of there being two gates is not necessarily to be regarded as a simple arithmetical sum of the amount of interference which the existence of each gate separately imposes. However, in the light of the undertaking which has been proffered to me, and which I accept, that is not a problem which is before me today. 39 I dismiss the summons.

(Mr Maiden sought costs on an indemnity basis.) 40 I order the plaintiffs to pay the defendant's costs. Application is made that those costs should be paid on an indemnity basis. It does not seem to me that that is appropriate. **********

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