KERR v PERMANENT NOMINEES (AUST) LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, SAMUELS and MAHONEY JJA 2 February 1990, 2 February 1990 [1990] NSWCA 105 Appeal from Equity Division — Restraint on erection on boundary of "a barrier to pedestrian traffic between" two lots "erected... as a dividing fence (within the meaning of the Dividing Fences Act 1951)" — Servient tenement erected garden plot along boundary c150mm high and clm wide surfaced with pine bark chips on which are trees 500mm — 3m high at intervals — Held not a breach of the restriction because: (per Gleeson CJ and Mahoney JA) it was not "a barrier to pedestrian traffic" within the meaning of the restraint; (per Samuels JA) it was not "erected... as a dividing fence (within the meaning of the Dividing Fences Act 1951)". Gleeson CJ By a contract of sale dated 7 September 1983 the pLaintiff purchased certain land from the defendant's predecessor in title. The contract of sale provided for the creation of a restriction as to the user of the relevant land or the boundary between the two areas of land under s88B of the Conveyancing Act. That restriction was subsequently registered. The plaintiff complains that in 1984 the defendant's predecessor in title breached that restriction. On 2 March 1988 the plaintiff commenced the present proceedings seeking an order that the defendant removes the things placed upon the relevant piece of the land constituting such breach. On 2 September 1988 Young J held that what had been done did not constitute a breach of such restriction and dismissed the plaintiff's proceeding. The plaintiff appeals to this Court against his Honour's decision. The restriction was imposed by an instrument registered on deposited plan No 634568. It was relevantly in the following terms: "(a) No boundary or dividing fences or walls or other obstacles which shall constitute a barrier to pedestrian traffic between the Lot hereby benefited and the Land hereby burdened shall be erected or be permitted to remain erected on the Land hereby burdened as a dividing fence (within the meaning of the Dividing Fences Act 1951) without the consent in writing of the registered proprietor from time to time of the Lot hereby benefited first had and obtained." The land benefited was, of course, the plaintiffs land; the land burdened was the land which the defendant now owns. The essential facts giving rise to the present dispute are, I think, not substantially in issue. The learned judge in his judgment said: "Tn 1984 as part of the laying out of the parking area of the shopping plaza the defendant's predecessor in title asphalted the area, erected kerbing at the front of car parking spaces and then put a little garden, in which there were small trees and shrubs in between the kerbing. That is an inexpert description of what was done, but gives the general picture. One such island of kerbing, approximately 150 millimetres high, with shrubs which presently range in height from 500 millimetres to 3 metres located at approximately 1.5 metre centres, occurs close to the boundary of the defendant's land with the plaintiffs land. That garden also contains loose pine bark chips spread over part of the area." 2 UNREPORTED JUDGMENTS The nature and extent of the thing which has been erected is explained by photographs which the parties have placed in evidence so the Court can draw the appropriate factual inferences from them. There is also in evidence a plan by a surveyor giving in plan form a description of the area and then in sections some indication of the nature of the thing which has been erected. The plaintiff in his evidence described what had been done in the following terms: "kerbing of approximately six inches in height, guttering and landscaping". In fact, the land appears not to be completely flat and to slope. The cross-sections given by the surveyor appear to show that one section of the land (the garden plot, as I shall describe it) is at one place level or more or less level with the natural surface of the plaintiffs land and on the defendant's side is approximately 150mm above the level of the defendant's land. At other places there is a fall between the level of the garden plot and the level of the plaintiffs land of about 250 mm and a fall of about 150 mm from the garden plot level to the defendant's land. The garden plot is itself about a metre wide. The material of which the actual structure is composed appears to be concrete or the like. It is only about 150 mm wide. The chips placed on the garden plot have been placed here, the evidence suggests, to prevent the growth of weeds. The photographs show that at some but not all of the parts of the thing that has been erected trees have been planted and in some places the trees have grown to significant heights. In other places there appear to be either no trees or trees or other growths which are of no great height. If one reads correctly the plan upon the certificate of title in question it would appear that on its boundary with the defendant's land the plaintiff's land has a length of some 75.96 metres. In any event, it has a length of significant dimensions. In my opinion, in order that the plaintiff may succeed in this proceeding it is necessary for him to establish, in the sense to which I shall refer, firstly that the thing that has been erected constitutes "a barrier to pedestrian traffic between the lot hereby henefited and the land hereby burdened"; and, second, that the thing was erected "as a dividing fence (within the meaning of the Dividing Fences Act 1951)...". In my opinion, the plaintiff has failed to establish the first of these. He has, I think, failed to establish that the thing which has been set up constitutes "a barrier to pedestrian traffic between" the two areas of land. The term "barrier" is a word which may have, according to its context, different meanings. It may be used to indicate something which involves in a practical sense an absolute prohibition or impediment to, as in this case, pedestrian traffic from one side of it to the other. However, I think that ordinarily it does not have such an absolute meaning. Thus a six metre high wall along the whole of the boundary with only a one metre opening to allow pedestrians to go from one lane to the other may, in some contexts, be held to constitute a barrier notwithstanding that, in a length of seventy metres or more, there is provided one means of access from one land to the other. On the other hand, the fact that that which has been erected along a boundary prevents pedestrians being able to cross the boundary at literally every part of the boundary between the two areas of land does not mean that it is a barrier in the ordinary sense. Thus, a lighting pole would prevent pedestrians crossing at that precise point but it would not, I think, result in there heing a barrier to pedestrian traffic in this sense. Similarly, a small parapet Scm high, which could easily be stepped over would not be such a barrier: this would be so notwithstanding that URJ KERR v PERMANENT NOMINEES (AUST) LTD (Gleeson Cu) 3 there may well be inconveniences of particular dimensions to particular classes of pedestrians who might want to go from one land to the other. And it would be so, I think, notwithstanding that a person with a pram or a stroller might have to lift the pram or stroller or manipulate it in particular ways in order to go from one land to the other. There is a difference between a barrier and an impediment. The question at issue in this case is essentially the meaning given to "barrier" in the present restriction. I do not think it is necessary or desirable to attempt to spell out in a formula of words precisely what it is that constitutes the parameters of the meaning of the term as here used or to spell out the kind of things which are or are not within them. It is sufficient to indicate that in my opinion what is now set up and what it does is not within the terms of the restriction, a barrier to pedestrian traffic between the two lots in question. As I have indicated, the nature of what has been set up and what it does is referred to in the evidence. Insofar as it may be relevant, the surveyor (in an affidavit the relevant portions of which have been admitted into evidence) said that he had measured the average step or stride of pedestrians to be from 600mm for a female to 700mm for a male and had found a rise of 150mm "reduced the length of the step or stride by an equal amount". He therefore concluded, as it was put, that: "an average pedestrian would find it impossible to walk along the said strip and would find it difficult in crossing it even between the low shrubs." He referred to the difficulties of women with prams or strollers and the problems of the aged and the disabled in passing from one land to the other in the present circumstances. The facts have not been significantly in dispute. Taking those matters into account and drawing upon the evidence as it appears in the photographs and elsewhere, I do not find that there is in the relevant sense a barrier created by what is done. In my opinion the great bulk of people, if not all of them, would be able to pass as pedestrians from one area of land to the other. The fact that this would require, for example, stepping up or over a rise of some six inches or so at some parts of the boundary and walking across a garden plot of approximately 1 metre would not, I think, mean that there was in the relevant sense a barrier to pedestrian traffic. Reference has been made in argument to the effect in this regard of the trees which have been planted and which now are of significant size on certain parts of the garden plot. I do not wish to pre-empt the problem which may arise if at some stage there are found on the garden plot along the whole of the boundary, or a sufficiently long length of it, trees which in the practical sense make it impossible or practically very difficult to pass from one side to the other. It may be that there would then be a barrier within the meaning of that term as used in the restriction. That problem will require consideration when and If it comes before the Court. However, in the present case, taking into account the whole of the circumstances and such impediments as are presently existing because of the shrubs and trees, I do not think that what has been done constitutes a barrier to which the restriction applies. For that reason, in my opinion, the plaintiff fails. It is not necessary for present purposes, in order to arrive at a decision in this case, to consider whether the thing which has been set up has been "erected... as a dividing fence (within the meaning the Dividing Fences Act 1951)" within the terms of the restriction. On that matter I prefer not to express any opinion. 4 UNREPORTED JUDGMENTS For these reasons therefore in my opinion the appeal should be dismissed. I propose that the appeal be dismissed with costs. Gleeson CJ I am of the same view as Mahoney JA. I consider that the learned trial judge was correct in concluding that the word "boundary" at the commencement of the covenant is not a noun but an adjective which qualifies the words following, that is to say, fences, walls and perhaps obstacles. It follows that in the present case the relevant term with which the Court is concerned is "obstacles". The construction in question is only a prohibited obstacle if it constitutes a barrier to pedestrian traffic between the two parcels of land in question. Whether a garden strip located between two parcels of land constitutes a barrier to pedestrian traffic between those parcels is a question of fact and degree. In any given case the answer to that question may depend at least in part upon the nature of what is planted in the garden and also upon the nature and extent of the pedestrian traffic which was in the contemplation of the parties to the covenant. As to the latter consideration, there was very little evidence before the trial judge as to what kind of pedestrian traffic was contemplated. The most that can be gained from the evidence is that it was within the contemplation of the parties that both parcels of land would be used for commercial purposes. There was some description in various portions of the evidence as to the general nature of the commercial purposes contemplated. There was, however, no detailed evidence as to the flow of pedestrian traffic that was contemplated. As to the former consideration, Young J concluded as a fact that the garden strip, at least in its present condition, does not constitute a substantial impediment to pedestrian movement between the two parcels of land and for that reason was not a barrier to pedestrian traffic. This conclusion and the reasons given for it, in my opinion, reflect no error either of fact or law. I agree that the appeal should be dismissed with costs. Samuels JA I have the misfortune to take a somewhat different view although I agree in the result. It seems to me that both parties agreed that there were in substance two questions in the case. The first was whether the structure, as I may call it, I hope without confusion, satisfied the definition of a dividing fence in the Dividing Fences Act 1951, and, secondly, whether, if it did, it constituted a barrier to pedestrian traffic. As to the first point I think it fair to say that this structure clearly satisfied neither the definition of "dividing fence" or that of "fence" in the Act. The words "dividing fence" are in s5 defined to mean: "' Dividing fence' means a fence separating the lands of different owners whether on the common boundary of adjoining lands or on a line other than the common boundary." "Fence", in the same section, is said to mean: "'Fence' means a structure of posts and boards, palings, rails, galvanised iron, metal, or wire, enclosing or bounding land, or a wall, ditch, or embankment enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary or the support and maintenance of the fence, but does not include a wall which is part of a house or other building." The definition of "dividing fence" takes one to the definition of "fence" and, in my opinion, this structure is not one of the kind described in the definition of "fence", being distinguished by the singular absence of posts, boards, palings, rails and so forth: nor can one regard it as a wall or a ditch or an embankment. URJ KERR v PERMANENT NOMINEES (AUST) LTD (Samuels JA) 5 Counsel for the appellant sought to overcome this consequence by pointing to the opening words of s5 and suggesting, as I understood the argument, that in some fashion relevant context or subject matter required quite a different kind of definition to be adopted. But those prefatory words cannot influence the meaning of the covenant when the language points to a definition in the Act which must mean the definition set out in the Act unaffected by the reference to context which is, of course, designed to supply an aid to the construction of the statute. Accordingly, I would decide the matter on the footing that what we are considering is not a dividing fence. As to the second point I cannot agree, I am afraid, that a structure cannot be regarded as exhibiting the character of a barrier unless it is insurmountable or impenetrable, or substantially insurmountable or substantially impenetrable, whatever those last two connotatlons of words might mean. I do not think that, in construing this covenant, it is necessary to consider whether this is a substantial barrier to pedestrian traffic. In my opinion, it is enough if the structure impeded the passage of pedestrian traffic. To my mind it is clear that it did. That being the case, it is a barrier. If it were not so then it would be logically impossible to use such well worn phrases as surmounting or overcoming a barrier, since a barrier would be something which could not be surmounted or overcome at all, or only with substantial or significant difficulty. No doubt in arriving at what is a conclusion of fact in particular cases the principle applies that the law takes no account of very little things. The law takes no account of very little barriers or impediments. But subject to that, a barrier is a barrier if it stands in the way, even though one may get over it or around it. In the result, however, as I have said, I agree with the orders which my brethren have proposed. The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: Mr C Stevens/Mr I Jackman Solicitors for the Appellant: K R Jones and Healey Counsel for the Respondent Mr D Bennett QC/Mr G McClellan (Solicitor) Solicitors for the Respondent: Freehill Hollingdale and Page