Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor [2002] NSWSC 379

New South Wales Supreme Court

CITATION : Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor [2002] NSWSC 379 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 3918/2000 HEARING DATE(S) : 18/03/02 to 21/03/02, 15/04/02 JUDGMENT DATE : 2 May 2002

PARTIES : Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor JUDGMENT OF : Foster AJ at 1-72

COUNSEL : Mr I. Wales, SC - Plaintiff Mr J. Webster - Defendants SOLICITORS : Fox & Staniland - Plaintiff Teece, Hodgson & Ward - Defendants CATCHWORDS : REAL PROPERTY - Easements - s 88K of Conveyancing Act 1919 - whether an easement should be imposed. LEGISLATION CITED : Section 88K of Conveyancing Act 1919 Real Property Act 1900 Beekman v Gray (2001) NSWSC 531 CASES CITED : Hanny v Lewis (1998) 9 BPR 16,205 at 16,209. Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BPR 15,917. DECISION : Refer paragraphs 62, 63 and 65.; Award compensation to the defendants in the sum of $30,000; Plaintiff to pay the defendants' costs of the application; Direct that the parties bring in Short Minutes of Orders giving effect to this decision.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

FOSTER AJ

THURSDAY, 2 MAY, 2002

3918/2000 Grant Alfred KING v John Francis Cromwell CARR-GREGG JUDGMENT 1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919. The plaintiff, Grant Alfred King ("Mr King") is the registered proprietor of the land in Certificate of Title Folio Identifier 2/593258 being Lot 2 in D.P. 593258. The land and dwelling erected upon it are known as 3A Edward Street, Gordon ("The King property"). 2 The defendants, John Francis Cromwell Carr-Gregg and Susan Joy Carr-Gregg are the registered proprietors of the land in Certificate of Title Folio Identifier 6/3662 being Lot 6 in D.P.3662. The land and the house erected on it are known as 14 Nelson Street, Gordon ("The Carr-Gregg property"). 3 Mr King seeks the imposition of an Easement to Drain Water in favour of the King Property as dominant tenement over the Carr-Gregg Property as servient tenement, in accordance with the provisions of Schedule 4A Pt 3 to the Conveyancing Act 1919, together with such alterations or additions or subject to such conditions or undertakings, as the Court may think appropriate. 4 The King property and the Carr-Gregg property lie within an area of land bounded to the north by Edward Street, Gordon, to the west by Rosedale Road, Gordon and to the south by Nelson Street, Gordon. The King property is a battle-axe block with access to Edward Street by way of a laneway running south from Edward Street and making a right-angle bend to the east before entering at the northern boundary of the property. The laneway is on the title to the King property. 5 Immediately to the west of the King property is No. 17 Rosedale Road, which is also a battle-axe block. Its access is via a laneway, also on title, to Rosedale Road. There is a house erected upon this block. 6 Immediately to the east of the King property is a property, No. 9 Edward Street. This is not a battle-axe block. It has a direct frontage to Edward Street. 7 The southern boundaries of No. 17 Rosedale Road, the King property and No. 9 Edward Street form a continuous line. Portion of the southern boundaries of 17 Rosedale Road and the King property adjoin the northern boundary of the Carr-Gregg property. 8 On the Carr-Gregg property, to the rear of the house, there are a tennis court and swimming pool. The northern boundary of the tennis court is close to the northern boundary of the block, where there is also a retaining wall. The Carr-Gregg property is significantly lower than the properties to its north. As such, in the absence of effective prevention, it would receive water running off the surface of those properties during rain of intensity and duration suffice to exceed the capacity of the soil to absorb it. 9 Indeed, evidence, to which it is unnecessary to refer in detail, establishes that, in general terms, and leaving aside the specific effects of improvements upon the land, the King property is the natural focus of a catchment area which includes part of No. 9 Edward Street, No. 17 Rosedale Road and parts of a number of adjoining properties with frontages to those streets. A survey plan, in evidence, indicates this with sufficient clarity. In the ordinary course of things, the water from this catchment area, not absorbed into the soil of the adjoining properties, would find its way onto the King property, from which, by force of gravity, the unabsorbed water would, for the most part, flow down onto the Carr-Gregg property. 10 The evidence does not indicate what, if any, steps were taken by way of drainage, before 1977, to deal with these water flows. In that year, however, a subdivision plan was approved by Ku-ring-gai Council ("The Council") which provided for the creation of the battle-axe blocks to which I have made reference and also to the addition of some land to No. 9 Edward Street. The King property was Lot 2 in this subdivision, Lots 1 and 3 being 17 Rosedale Road and 9 Edward Street respectively. The plan of subdivision became D.P. 593258. 11 It was a condition of the approval of the subdivision that certain drainage easements be created. These consisted of easements over Lot 2 in favour of Lots 1 and 3 together with an easement for drainage from Lot 2 to No. 14 Nelson Street, which was Lot 6 in D.P. 3662. The intended drain would convey water thus collected on Lot 2, from that Lot and Lots 1 and 3, onto and across Lot 6, D.P. 3662, to connect with the Council's street drainage system in Nelson Street, the connection being near the frontage of that Lot to Nelson Street. It may be noted that, in 1977, at the time when the creation of this easement was being contemplated, there was already a house on the Lot, being premises No. 14 Nelson Street. These premises were later purchased by the defendants, in 1986. 12 The evidence makes it plain that the drainage easement over No. 14 Nelson Street, contemplated in the Council subdivision approval of 1977, was to consist of a pipe drain 375mm in diameter leading from a stormwater collection pit at the south-western boundary of Lot 2 and thence along the eastern boundary of 14 Nelson Street and exiting that property at its south-eastern corner. This drain was in fact constructed in 1977, to the Council's specifications and with its approval. It contained hydraulic pits roofed with concrete man-hole covers, which were also required features. The drain with its associated pits has been in operation since that time and, quite obviously, has conveyed large quantities of water from the catchment area to the north of 14 Nelson Street, which would, otherwise, in large part, have entered and flowed across that property. 13 Regrettably, contrary to the Council's requirement, as part of its subdivision approval, the drain, although constructed, was never registered as an easement upon the title of 14 Nelson Street. Its existence is noted upon D.P. 3662 as being the site of a "proposed easement". It is clear that negotiations were commenced between the then owner of the King property and the then owner of the Carr-Gregg property for an appropriate payment for the granting of the easement but that these negotiations were never concluded. Consequently, an appropriate easement was never registered. It appears that, despite this breach of the subdivision approval, no action was taken by the Council, with the result that, although the drain has operated as an essential part of the drainage system required as part of the subdivision, for over twenty years, it has done so in the absence of the indefeasible right of passage over 14 Nelson Street, which had been clearly contemplated. 14 The evidence establishes that when the defendants bought 14 Nelson Street, they were in considerable haste to exchange contracts in order to forestall a sale to another prospective purchaser. Mr Carr-Gregg says that the purchase was similar to a purchase at auction, in that he had no leisure to conduct any thorough inspection of the property but acted in haste, in order to avoid losing it. In the circumstances he was not aware of the existence of the substantial drain along its eastern boundary. The vendor's solicitor told him that there was a pipe on the property but that there was no easement for it. After purchase, Mr Carr-Gregg became aware of the existence of the pipe and also that it carried a considerable body of water. His Certificate of Title made no mention of any easement in relation to the pipe and, as he was a solicitor, he was aware that no indefeasible right over his property for the drainage of water from other properties had come into existence, despite the construction of the pipe. It may be noted, however, that he does not claim that, had there been an easement for the pipe, he would have refrained from purchasing the property. 15 The defendants, after purchase, noticed that water came on to their property at the rear, after heavy rain. Although Mr Carr-Gregg asserted in correspondence to the Council, in June 1989, that water was coming from "the broken pipe on my property" and that he was concerned by "the erosion (under the concrete) caused by the broken pipe", his evidence makes it clear that he was not really of the view that the water coming on to his property was the result of any breakage or malfunction of the pipe. In fact, it was the product of seepage through the rear and side retaining walls. I should add that references, in later correspondence, to water "cascading" over his rear boundary from the properties above has not been supported by any evidence given by him in the case. Also, suggestions in correspondence that he might exercise his rights and block the pipe and even remove it would appear to be an exaggerated reaction. Such blockage or removal would, obviously, have resulted in his property receiving the waters which the pipe conveyed away from it. 16 It is plain that, from an early stage, Mr Carr-Gregg adopted the stand that, as the pipe had been constructed over his property without any accompanying easement, he would, in those circumstances, himself, not grant any such easement. In April 1998, he was requested to grant an easement in relation to the pipe in favour of the property 17 Rosedale Road, Gordon, in circumstances where the owner of that property was seeking to sell it. He was asked by the vendor's solicitor "to formalise the existing arrangement by the grant of an easement for drainage over the existing line of pipes in favour of our client's property and also Lots 2 and 3 in D.P. 593258." This request was refused by Mr Carr-Gregg in a letter, which contained the following reasons: "We do not wish to grant third parties legal rights in relation to our property (we are particularly concerned about the possibility of work on our property based on the existence of such rights); In our view, the 375mm pipe is inadequate in terms of drainage from 3 properties: we note that it is currently providing drainage from a grass tennis court on lot 2 in D.P. 593258 and a synthetic grass tennis court at lots 3 and 4 in D.P. 593258 as well as your client's property. Our tennis court is serviced by a 200mm drain. There is, with respect, no 'arrangement' (as you describe it) to 'formalise': neither your client nor the owners of lots 2 and 3 have any rights to drain water through the pipe which runs through our property."