LANG v KIRKNESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and POWELL JJA 26 July 1994, 16 August 1994 [1994] NSWCA 180 FACTS: Access to land owned by Kirkness was only possible via a right of way through Lang's land which featured a causeway over a gulley. This was damaged during heavy rain, and Kirkness repaired it in a way which caused Lang to take exception. The dispute was settled by consent orders, but when the repair included an extension to the right of way exceeding the agreed 6m width, Lang jackhammered the offending portion. In proceedings which ensued, Brownie J held that the compromise embodied in the orders was repudiated by Lang's action and awarded damages to Kirkness. Lang appealed. HELD (1) On proper construction of the original orders it was Kirkness who contravened the agreement by exceeding the width of the easement. ORDERS: 1. APPEAL upheld. 2. ORDERS below set aside. 3. In lieu thereof, order that the proceedings be dismissed with costs. 4. ORDER that the respondents pay the costs of the appellants in this appeal, the respondents to have a certificate under the Suitors Fund Act. Clarke JA I agree with Meagher JA. Meagher JA This is another episode in the apparently endless, and potentially bankrupting, litigation between the appellants, Mr and Mrs Lang, and their neighbours, Mr and Mrs Kirkness, the present respondents, over the use of an easement in Galston Road, Galston. The Langs are the proprietors of certain land being Lot 2 in DP 567756, an area of about 5 acres, and known as 280 Galston Road. The Kirknesses own Lot 3 in the same DP. It is also 5 acres in area and lies to the east of Lot 2. Access to the Kirkness' land is relevantly gained by utilising a right of the carriage way across Lot 2. That is the only way of obtaining access to Lot 3. Lots 2 and 3 were created when certain land was subdivided in 1973, and DP 567756 registered. At that time there were created, in favour of Lot 3, a right of way as well as easements for the supply of electricity and water. Each of these three easements affected the same strip of land, which crossed Lot 2. However, in 1981, each of these three easements was surrendered and replaced by a new easement which was in identical terms, save that each of the new easements affected a new or different strip of land, six metres wide, and following an irregular line across Lot 2. Someone constructed a track along this line, and buried some pipes, through which electricity and water are supplied to Lot 3, beneath the surface of the tract. A question arose as to whether or not the embankment had been built before 1981, the point being that perhaps some inference might be drawn as to the intention of the parties who joined together to create the new right of way, if the embankment was then already in existence. It was agreed that this question was 2 UNREPORTED JUDGMENTS best deferred, and for the purpose of this judgment, I will assume for the moment that the embankment was built after the grant of the easement in 1981, pursuant to the grants then made. The evidence does not establish who did the work in question, or when, except that it was done before 1987, and was not done by any of the present parties. Each of Lots 2 and 3 consists of about 5 acres of steeply sloping land. Within Lot 2 there is a "V shaped valley" also described as a "gorge [which] is fairly narrow and rugged", along the floor of which there is a creek. Where the track crosses this valley, an embankment was constructed, and the embankment was pierced by a pipe or culvert through which the water in the creek ordinarily flows. Looking at the photographs in evidence, it is difficult to see how any ordinary vehicle could have traversed the right of way, where it crosses the valley, prior to the construction of the embankment. Perhaps a four wheel drive vehicle could have done so, but even this seems dubious on the photographic evidence. The pipe which pierces the embankment is 1050 millimetres in diameter. Its southern or downstream end rests upon a rock ledge. Its northern end appears to have been placed in or close to the original creek bed, but its southern end was in a position a little to the west of the original creek bed, apparently so that water discharging from the pipe will flow onto a number of boulders, and thence down into the creek bed, and so that this flow of water out of the pipe does not undermine the slope or batter on the southern side of the embankment. In the vicinity of the embankment the land slopes quite steeply down towards the south. The embankment is made from earth and rock. Its upper surface is about two metres above the bottom lip of the pipe, on the northern side of the embankment, and on the southern side it is a considerably greater height above the creek bed. The track runs along the top of the embankment, and in this area it varies between three and four metres in width. The designer of the embankment apparently expected that at times the pipe would be insufficient to cope with the flow of water down the creek, and at these times the embankment serves as a causeway. Its design is such that when water overtops the embankment, a little to the east of the line of the pipe, it flows down the slope or batter of the embankment, and ultimately back into the creek bed. The Kirknesses purchased Lot 3 in 1987 and the Langs purchased Lot 2 in 1989. During 1990 heavy rains overtopped the embankment and overflowed down the gutter on the southern side of the embankment. In so doing it scoured that batter or slope. This led to collapse within the embankment to the extent that the embankment as a whole was endangered, and with it, of course, the Kirknesses' easement and access to their land. In order to counter this danger Mr Kirkness, who is an engineer, carried out certain works which he regarded as repairs to the easement and the Langs regarded as trespasses to their land. These works involved "shot creting" the southern batter and an area of the creek bed to the south of the toe of the batter. The Kirknesses strongly believed that this work was necessary to preserve their right of way; the Langs resented it violently, both because it involved a trespassing excursion onto land not the subject of the right of way and because it desecrated a beautiful valley. These rival points of view erupted in litigation before Needham J. In that litigation the Langs were the plaintiffs and they sought the following relief: "1. An order restraining the Kirknesses from pouring concrete on the right of way on the Langs' land, or on any part of the said right of way. URJ LANG v KIRKNESS (Meagher JA) 3 2. An order requiring the Kirknesses to remove the formwork constructed on the right of way over the Lang's land." The defendants, the Kirknesses, counterclaimed for the following relief: "1. A declaration that in the events that had happened the carrying out of the repair work to the right of way by concreting the surface of the track, where it crossed the creek, was permitted by the terms of the right of way, and the ancillary rights attaching to that right of way. 2. A declaration that the Kirknesses were entitled to enter onto the Langs' land (Lot 2), for the purpose of carrying out those repairs. 3. A declaration that the repair to the carriage way within the strip of land affected by the right of way by concreting the surface of the strip was permitted by the terms of the right of way and the ancillary rights attached to it." Neither the factual nor the legal issues involved in this litigation - some of which are obviously complicated - were ever solved, because the parties compromised their difficulties and reached a settlement which resulted in the following Orders being, by consent, made by the Court: "THE COURT DECLARES that: 1. In the events that have occurred, the Defendants are entitled to repair the causeway on the Right of Way and will within six (6) months of the date hereof do so in accordance with the following conditions: (a) the causeway will be concreted and tied with the existing shot crete construction on the embankment of the causeway in accordance with an engineering design to be prepared by Gutteridge Haskins and Davies Pty Ltd; (b) that the design drawings of Gutteridge Haskins and Davies Pty Ltd be supplied to the Plaintiffs; (c) that Gutteridge Haskins and Davies Pty Ltd will inspect crucial phases of the construction work: (d) that Gutteridge Haskins and Davies Pty Ltd will certify; (i) that the design is satisfactory and in accordance with engineering principle and relevant Australian standards; (ii) that the work has been carried out in accordance with the design; (e) that Gutteridge Haskins and Davies Pty Ltd will do all tings as are required including but not limited to the lodgment with Hornsby Shire Council of a Building Application in respect of the design toward obtaining Council approval for the construction; THE COURT ORDERS that: 2. The defendants will at their expense remove so much of the shot crete as is not part of the structural requirements and specifications of the design referred to in paral hereof. THE COURT NOTES that: 1. The agreement between the Plaintiffs and the Defendants that the Defendants will not concrete the carriageway between Galston Road and the existing concrete which is on the carriageway where it abuts the Defendant's house, except for so much of the carriageway as is immediately upon the construction referred to in paral hereof. 4. So far as the terms contained herein refer to matters to be attended to by Gutteridge Haskins and Davies Pty Ltd, such covenants are the obligation of the Defendants in that they are to retain and direct Gutteridge Haskins and Davies Pty Ltd to do those things. 4 UNREPORTED JUDGMENTS 5. Each party undertakes to the other to provide quiet enjoyment of the carriageway and to do all things reasonably necessary in regard to their personal conduct, the conduct of members of their respective families and of their friends so as to ensure such quiet enjoyment of each party over his own land. 6. The agreement that the Defendants will provide written notice of one (1) month to the Plaintiffs of any work required for the repair and maintenance of the carriageway except in the case of emergency with such reasonable notice as the circumstances allow. 7. The Defendants will at their own expense do all such tings as are necessary to effect the variation of the easement such that whilst not being extended beyond a width of six (6) metres at any point, it does incorporate the whole of the shot crete wall and causeway construction provided that in any event the variation of the easement be not more than two (2) metres either side of its current situation and approaches to the causeway be varied not more than ten (10) metres in each direction. " Pursuant to that Order, a Mr Alden of Messrs Gutteridge Haskins and Davey (which firm was mistakenly called Gutteridge Haskins and Davies Pty Ltd in the Court Order) set about preparing an engineering design for the "repairing" of the embankment. This involved retaining the site of the existing right of way, concreting its surface on the embankment, and "tieing" that concreting to the existing shot crete construction, which protruded at one point some seven metres beyond the boundaries of the easement into the Langs' property. Mr Alden's plans, then, involved the retention in position of the whole of the existing shot crete construction, but in his view (which Brownie J accepted) nothing else would be safe. The Langs were of another view and destroyed by jack hammering as much of the shot crete construction as protruded into their land. This, in turn. infuriated the Kirknesses, who interpreted the Langs' behaviour as a repudiation of the compromise embodied in Needham J's Orders. They, the Kirknesses, therefore sued the Langs in the Supreme Court in a suit which was heard by Brownie J who found for them: His Honour found that the jack hammering constituted a repudiation of the earlier compromise, that the repudiation had been accepted, the earlier agreement had been thus terminated, and Needham J's Orders based on it were discharged; moreover the Langs were liable to the Kirknesses in damages. It is from that decision that the present appellants appeal. It should be noted that His Honour really decided no question other than the proper construction of the Order made by Needham J: the contentious issues lying at the base of the earlier litigation remain still unresolved. (It might be noted, in passing, that Brownie J committed the procedural barbarity of making an order in one set of proceedings discharging an order made in quite separate, although related, proceedings.) The whole of the present appeal therefore depends on whether or not Brownie J correctly construed the order of Needham J (which it has been necessary to set out in full). Unfortunately, in my opinion he did not. Basically the submission which His Honour accepted, was that the orders contemplated that the new concrete surface could be "tied to" the old shot crete construction, and that the action of the Langs, having destroyed the utility of the shot crete construction, had attacked the very basis of the agreed compromise. He also held that after agreeing to Gutteridge Haskins and Davey preparing a design, any actions, such as that indulged in by the Langs, which frustrated that design would constitute a repudiation of the compromise. The submissions accepted by URJ LANG v KIRKNESS (Powell JA) 5 His Honour would make perfect sense if the Court had done nothing but construe the declaration numbered 1. The difficulty arises from the "Note" numbered 7. That note does prove that the Kirknesses could do nothing which would involve transferring the easement more than 2 metres to the north or the south; if Messrs Gutteridge Haskins and Davey had designed a plan involving moving the easement 2 metres to the south, the easement would have covered most of the shot concrete construction, in which case the Langs' behaviour would to a large extent have been tortious. In truth, once the experts had decided not to vary the position of the easement, the Kirknesses' behaviour became indefensible. This interpretation of Needham J's order is reinforced when one considers that the declaratory order number "1" is in its terms confined to repairing "the Causeway on the right of way". It is further reinforced when one considers that on Brownie J's construction the Kirknesses would end up in effect with an easement which was 13 metres wide at one point, although the Note numbered 7 makes it clear that the 6 metre easement was not in any circumstances to be expanded. Yet further reinforcement for regarding Brownie J's views as fallacious is derived from the fact that on that view, although the orders made by Needham J. were supposed to represent a compromise, the Langs would be making large concessions and the Kirknesses none at all. It is with some regret, therefore, that I conclude the appeal should be upheld. The reason for the regret is that finality of resolution of the parties' disputes is postponed one more stage. This is deplorable. It is not the function of this Court to do more than decide the matters which come before it. It is certainly not its function to furnish advice to litigants who appear before it. But in the present case it is impossible not to deplore the effort and cost put into seeking a curial solution to a neighbours' problem which should be capable of a less unwieldy disentanglement. I am therefore of the view that the following Orders should be made: 1. APPEAL upheld. 2. ORDERS below set aside. 3. In lieu thereof, order that the proceedings be dismissed with costs. 4. ORDER that the respondents pay the costs of the appellants in this appeal, the respondents to have a certificate under the Suitors Fund Act. Powell JA I agree with Meagher JA. APPEAL upheld. ORDERS below set aside. In lieu thereof, order that the proceedings be dismissed with costs. ORDER that the respondents pay the costs of the appellants in this appeal, the respondents to have a certificate under the Suitors Fund Act. RYN Counsel for the Appellant: MG CRAIG QC Instructed by: WILSHIRE WEBB Counsel for the Respondent: SD ROBB QC Instructed by: WASHINGTON AND FLYNN