Anderson v Pender [2002] NSWSC 1005

New South Wales Supreme Court

CITATION : Anderson v Pender [2002] NSWSC 1005 revised - 1/11/2002 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3749/02 HEARING DATE(S) : 18 October 2002 JUDGMENT DATE : 18 October 2002

Patricia Anderson (Plaintiff) PARTIES : Christopher Gerard Pender & Veronica May Pender (First Defendants) The Proprietors Strata Plan 22145 (Second Defendant) JUDGMENT OF : Campbell J

COUNSEL : P O'Loughlin (Plaintiff) I Griscti (Defendants) SOLICITORS : W R Goodman & Associates (Plaintiff) Lough Wells Duncan (Defendants) CATCHWORDS : REAL PROPERTY - easements - cause of action for interference with easement lies in nuisance - availability of mandatory injunction to require removal of fence preventing use of easement - INJUNCTIONS - availability of mandatory injunction to require removal of fence preventing use of easement LEGISLATION CITED : Conveyancing Act 1919 Finlayson v Campbell (1997) 8 BPR 15,703 CASES CITED : Malliate v Sharpe [2002] NSWSC 1057 Middleton v Arthur [2002] NSWSC 627 DECISION : Orders made see paragraph 23

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

FRIDAY 18 OCTOBER 2002

3749/02 PATRICIA ANDERSON v CHRISTOPHER GERARD PENDER & ANOR JUDGMENT 1 HIS HONOUR: This is a dispute between two neighbours. The plaintiff occupies property which is located in Church St, Greenwell Point and which is lot 25 in a plan of subdivision. The defendant occupies the property next door which is lot 26. 2 In 1984 lot 26 was the subject of a strata plan of subdivision, number 22145. That strata plan of subdivision created a right of carriageway over part of lot 26, for the benefit of lot 25. 3 As with all easement cases, it is necessary to describe the lie of the land in some detail. The two blocks of land in question are rectangular blocks. The short sides of each rectangle are at their eastern and western ends. Church St lies at the eastern end of each of the blocks. The right of way in question is 1.15 metres in width. It runs from Church St in a westerly direction for a length of twenty eight metres, at the northern most part of lot 26. Thus, it is, itself, a rectangle which lies immediately to the south of the dividing line between lots 25 and 26. 4 The building on lot 25 is a building which is divided into two flats. Along the southern wall of that building there are some sets of steps which give access to the building. Those sets of steps are such that only a narrow path lies on the southern side of the building on lot 25, between the building on lot 25 and the dividing line from lot 26. From photographs which are tendered in evidence it looks like it would be possible for two people to walk side by side down that path if they were very close together but it is not much wider than that. 5 The main body of the building on lot 25 lies at a distance of 2.27 metres from the boundary between lots 25 and 26. Towards the western end of the building on lot 25 there is the part of the wall of the building on lot 25 which does not have the steps which I have mentioned protruding from it. The twenty eight metre length of the easement is such that its western end lies .56 metres beyond the prolongation of a line which is the western back wall of the building on lot 26. Thus, if one were to try to drive a motor car down the length of the easement, and endeavour to get into the backyard of lot 26, it would be a very tight squeeze and, indeed, there might not be enough room at all. 6 The present dispute arises because the registered proprietor of lot 26 has caused to be erected along the boundary line a paling fence. That fence runs the full length of the boundary between lots 25 and 26. It has the effect of completely cutting off the site of the easement from the site of the dominant tenement. 7 The plaintiff in this litigation seeks an injunction restraining the defendant from obstructing the right of carriageway, and also a mandatory injunction requiring removal of that part of the dividing fence which has been erected along the northern extremity of the site of the easement. 8 I said earlier that the easement is a right of carriageway. The meaning of "right of carriageway" is established pursuant to s 181A of the Conveyancing Act 1919, and schedule 8 of that Act. A right of carriageway confers: "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof". 9 The first defendants are the registered proprietors of the two strata title units which are located on lot 26. The second defendant in the proceedings is the body corporate of the strata plan of the building located on lot 26. The second defendant has been served, but has not appeared. 10 The first defendants submit that the right of carriageway is one which has in the past been used for enabling motor vehicles to get access to the rear of number 25, and that it is not possible, using only the rights conferred by the right of carriageway, for a motor vehicle to actually get into the backyard of No 25. They say the right of carriageway can only be used by a motor vehicle if it trespasses on the defendants' land, by going outside the land over which the easement has been granted. 11 As will be apparent from my earlier findings, it is not clear to me on the evidence whether a motor vehicle, using only the site of the right of way and the land on lot 25, would actually be able to squeeze past the building to get into the backyard, however, I do not think that matters. The terms of the right of way are required to be construed as at the date of grant, not by reference to the use that might subsequently be made of the right of way. The right of way permits the dominant owner to have the benefit of the right of way for the purpose of walking into the dominant tenement. It permits the owner dominant tenement to have the use of the right of way for bringing such animal as it might choose into the dominant tenement. It confers on the owner a right to bring into the dominant tenement such vehicles as it might choose, whether they be motor cars, bicycles, wheelchairs, or whatever other entities fit within the description of a "vehicle". Further, the right of carriageway on its correct construction entitles the dominant owner to use the site of the easement to get to such part as the dominant owner chooses of the dominant tenement. There is nothing in the terms of the grant of the easement to confine the dominant owner to having a destination in the backyard of lot 25. The dominant owner is entitled to use the site of the easement to get to any part whatever of lot 25, and to cross the northern boundary of the site of the easement at any point she chooses to get there. 12 The fence has the effect of completely denying the dominant owner the use of the right of way in any way whatever. 13 There were some submissions about whether the right of way entitled the dominant owner to bring vehicles onto the site of the right of way for the purpose of unloading them there. The authorities concerning that question are summarised by Palmer J in Middleton v Arthur [2002] NSW SC 627 at [33]-[38]. Any question about what is reasonable use of the right of way depends very much on questions of fact and degree, but the defendants are faced with the dilemma that, if they are right in saying it is not possible for a vehicle, using the right of way, to be able to get into the backyard of lot 25, that would be a situation which would create all the more need for vehicles to stop on the right of way, for a reasonable period of time, for the purpose of loading or unloading. It is not necessary for me to express any final views on this topic of whether the terms of the grant permits stopping, loading and unloading, to be able to decide whether the plaintiff is entitled to the relief she seeks. 14 In Malliate v Sharpe [2001] NSWSC 1057 I considered the authorities about when it was appropriate to grant a mandatory injunction to restrain nuisance. That line of authority is relevant because, as Young J has shown in Finlayson v Campbell (1997) 8 BPR 15,703 at 15,706-15,707 an action for interference with an easement lies in nuisance, and hence if a mandatory injunction is to be granted to restrain interference with an easement, it is granted in accordance with the same principles as mandatory injunctions are granted in connection with nuisance. 15 In Malliate v Sharpe I came to the conclusion that a mandatory injunction to restrain a nuisance was appropriate only where the particular work ordered to be done was the only way of remedying the nuisance. 16 In the present case, it is clear that the easement has been interfered with. Given that the owner of the dominant tenement is entitled to have access to lot 25 along the entirety of the length of the northern boundary of the site of the easement, the only way in which it is practical for those rights of the dominant owner to be enjoyed is by removal of the fence. Thus, it is appropriate to grant a mandatory injunction. 17 I make orders in terms of paragraphs 1 and 2 of the summons in the matter, namely: 1. That the defendants and each of them be restrained from obstructing or in any way impeding the right of carriageway created by the registration of Strata Plan 22145 in favour of premises known as 13 Church Street, Greenwell Point being Lot 25 of Section B in Deposited Plan 24386 and the whole of the land comprised in Certificate of Title Volume 6754 Folio 4. 2. That, in respect of the existing fence erected on or near the common boundary between properties 13 and 15 Church Street, Greenwell Point, the defendants be ordered to remove within seven (7) days such of that fence as extends from its eastern extremity to the western extremity of the right of carriageway created by the registration of Strata Plan 22145, or which otherwise impedes the said right of carriageway. * * * * * 18 After I delivered judgment on the substantial matters at issue, counsel for the defendant tendered two letters which his instructing solicitor had written to the instructing solicitor for the plaintiff. The first letter was one dated 24 September 2002. It put two alternative offers of settlement. The first was one which involved the creation of some new rights on the part of the parties, and does not need to be any further considered. The second is: "If your clients do not wish to choose option 1, our clients without admissions will remove the fence along the right of carriageway as originally requested by your client". 19 Both those options were rejected by the plaintiff by a letter dated 26 September 2002. On 3 October 2002 the solicitors for the defendant repeated the two offers, as open offers rather than without prejudice offers. 20 The proceedings were ones which were begun by summons filed on 24 July 2002. The principal affidavit of the plaintiff was also filed on that day. The first defendant swore an affidavit on 11 October 2002. 21 The offer which was made on 24 September 2002 did not include any offer to pay the costs of the plaintiff incurred up to that date. It was also an offer which was expressed to be made without admissions. Thus, if that offer had been accepted, the defendants would have been free (at least so far as the contractual arrangements between the parties were concerned, and leaving aside the terms of the grant itself) to re-erect the fence whenever they chose. 22 The plaintiff was quite justified in not accepting that offer. Further, the stance of the defendants in court today was one of arguing the case on its merits, not of protesting the unreasonableness of the plaintiff in refusing to accept their offer. 23 I order the defendants to pay the plaintiff's costs. **********