McCONACHIE & ANOR v. MANLY COUNCIL [2002] NSWSC 434

New South Wales Supreme Court

CITATION : McCONACHIE & ANOR v. MANLY COUNCIL [2002] NSWSC 434 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 3579/01 HEARING DATE(S) : 09/05/02 JUDGMENT DATE : 9 May 2002

Peter Craig McConachie - 1st Plaintiff PARTIES : Faye Lorraine McConachie - 2nd Plaintiff Manly Council - 1st Defendant Charmean McQueen Rainsford - 2nd Defendant JUDGMENT OF : Bryson J at 1

C.J. Leggat & Dr J.G. Azzi - Plaintiffs COUNSEL : W. O'Rourke (Solicitor) - Defendants

Colin Biggers & Paisley - Plaintiffs SOLICITORS : Deacons - 1st Defendant Staunton Beattie - 2nd Defendant CATCHWORDS : EASEMENTS - right of carriageway - strip of land owned by Council had been in use (a) by public as a footway and (b) by neighbour under right of carriageway - application under s88K Conveyancing Act 1919 for grant of right of carriageway over strip longer than neighbour's existing right of carriageway, contingent on compliance with conditions imposed by Council in relation to subdivision of plaintiffs' property - under s88K consideration given to reasonable necessity for right to carriageway, public interest and compensation to the owner - application granted - decision on facts. LEGISLATION CITED : Conveyancing Act 1919 s88K CASES CITED : Plimmer v Mayor of Wellington (1884) 9 AC 699 DECISION : Right of Carriageway granted

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

9 MAY 2002

3579/01 McCONACHIE & ANOR v. MANLY COUNCIL JUDGMENT 1 HIS HONOUR: The plaintiffs are the owners of and live at the house property 23 Fisher Street, Balgowlah Heights, which is the land in Lot 12 DP9202 and Folio Identifier 12/9202. They have in hand a project of dividing the land into two residential lots, one of which will have the existing frontage to Fisher Street, while the second lot to the west will be available for development with a new dwelling. To provide the proposed lot with street access, it is in practical terms essential that that lot should have the benefit of a right of carriageway over an adjoining strip of land owned by Manly Council, which is lot B2 in DP449843. Lot B2 was created by subdivision in 1954 and lot B1 in the plan is the other land in that subdivision and is now the site of the house property 25 Fisher Street and owned and occupied by the second defendant Mrs Rainsford. 2 Mrs Rainsford's predecessor in title, Mr P H Rainsford, conveyed Lot B2 to Manly Council for a consideration of ten shillings, and reserved a right of carriageway over part of lot B2, so as to enhance the means of access from lot B1 to Fisher Street. 3 Lot B1 includes a battleaxe handle strip connecting the main part of the lot, on which the house 25 Fisher Street stands, to Fisher Street. The strip appears to be approximately six feet wide, while lot B2 is approximately twelve feet, or 3.66 metres wide. 4 For many years, it would seem since 1954, part of lot B2 has been used for vehicle and pedestrian access to number 25 Fisher Street, in exercise of the right of way so granted. Lot B2 has in fact for many years, perhaps since 1954, been used for vehicle and foot access to the western part of Lot 12, the rear of 23 Fisher Street, including regular use for vehicle access to one of the two garages of 23 Fisher Street. One garage can be reached directly from the Fisher Street frontage, whereas the other can be reached only from lot B2. However there has never been any registered easement or other established right to use Lot B2 for access to any part of Lot 12. Lot B2 forms part of a pathway continuing further to the west, and connecting Fisher Street with Heathcliff Crescent, Balgowlah. There has been no dedication of lot B2 so as to create a public right of way but at all times Council has permitted use by the public of lot B2 as part of the footway. Council has also permitted use as a carriageway by the owners from time to time Lot 12 and 23 Fisher Street of the part of Lot B2 over which Lot B1 has right of carriageway, although there has not been any established legal right in favour of Lot B2. Use by the owners from time to time of number 23, and of Lot B2 by pedestrians using the footway, has been by leave and licence of the Council. Council regards the strip as operational land. 5 The strip of land six feet wide forming the battleaxe handle of lot B1 is not the subject of any easement in favour of any person, and it is only available for use by the proprietor of lot B1, and so far as evidence appears, no proprietor of Lot B1 has ever granted any relevant permission for use of that strip by the proprietor of number 23 Fisher Street. It is not, in fact, used for vehicle access, but is divided from lot B2 by a post and chain fence, and appears to be used only for access on foot to number 25 Fisher Street. 6 Council's position is illustrated by a letter from the then Town Clerk dated 7 December 1982, which came to the knowledge of Mr McConachie about the time he purchased number 23 Fisher Street, in which the Town Clerk stated to the effect that lot B2 was transferred to Council (meaning transferred in 1954) for use as a public right of way, that Council had no objection to use by the owner of number 23 Fisher Street or his successors of the strip for vehicle access and that there was no need to grant a right of carriageway. So far as it appears, Council has never retreated from allowing this use. 7 On a number of occasions, perhaps as many as four, proprietors of 23 Fisher Street have applied to Council for subdivision approval or development consent for the creation of a new residential lot. Although several earlier applications were refused the plaintiffs have obtained development consent for the subdivision by a notice of determination dated 30 June 2000 for development as a two lot land subdivision. 8 The development consent was given subject to many conditions, and it is reasonable to expect that the conditions will be complied with under the supervision of Council before the subdivision becomes effective, or where appropriate in the course of later work. 9 The plaintiffs' application under s 88K of the Conveyancing Act 1919 relates to a somewhat longer part of lot B2 than was the subject of the grant of right of carriageway in favour of lot B1; the plaintiffs seek a right of carriageway over a further strip 5.085 metres long extending generally westward beyond the existing right of way, as well as over the area subject to the right of way created in 1954. 10 In their statement of claim, the plaintiffs put forward a claim based on principles in Plimmer v Mayor of Wellington (1884) 9 AC 699 and on indications to them, particularly in the Town Clerk's letter of 7 December 1982 that they would have use of the right of way for vehicle access. This part of the claim has not been pressed before me. 11 My confidence that compliance with the conditions imposed by Council will in all probability take place is a significant part of the favourable view I have formed of the plaintiffs' application. The plaintiffs have proffered an undertaking to the defendants to comply with the conditions of development consent and I have had regard to this undertaking in reaching my conclusion. Compliance with the conditions imposed by Council will overcome all the difficulties attending the plaintiffs' application to which in my view it is reasonable to have regard. It should be understood from the conditions that Council contemplate that the right of way in favour of lot B1 will be extended to the extra strip 5.085 metres long. My order will not itself deal with that extension or attempt to confer an additional right of way on the owner of lot B1. Inasmuch as that extension is available, the plaintiffs' subdivision application, the conditions imposed on it and compliance with those conditions will confer significant advantages on Mrs Rainsford as owner of lot B1, as they will remove some difficulty and inconvenience attending vehicle movements between her carport and Fisher Street. It will become conveniently possible for a vehicle leaving her carport to be reversed, so as to minimise the need for vehicles from her carport to proceed in reverse, or to travel in reverse in either direction. 12 Conditions imposed on the development consent include condition 5, which requires the plaintiffs to consult with Energy Australia with regard to relocating the electricity pole. The electricity pole referred to stands at an inconvenient place within the extension 5.085 metres long. The Council, the plaintiffs and the Court, cannot wholly control the actions of Energy Australia, but it is reasonably to be expected that the inconvenience associated with the present location of the electricity pole will be removed or ameliorated as a result of the consultation required, particularly having regard to the interest of Manly Council in its removal, and its position in dealing with another public authority. 13 A number of other conditions should be noted. Condition 6 requires the owners of the proposed lots 1 and 2 to maintain landscaping in the proposed easement. This is a continuing condition and can be expected to provide some amenity to other users of Lot B2 for an indefinite future. 14 Conditions 7 and 8, when understood with the plan, exhibit 4, referred to in Council's consent operate to confer another significant advantage on the owner of lot B1, as well as facilitating use of the right of carriageway which the plaintiffs seek with vehicles, by providing two areas, one a passing bay and one an additional area to accommodate turning movements. These will facilitate use of Lot B2 with vehicles, and will benefit owners of lot B1 as well as the other persons using the right of carriageway for access. 15 Condition 9 requires erection of advisory signs for pedestrian and vehicle users that a section of the pavement is a shared pedestrian and vehicle zone. Condition 10 requires the erection of bollards immediately to the west of the right of way to delineate the end of that zone and impede further passage of vehicles. 16 Other conditions which will contribute in some way to the amenity of the locality are condition 11, requiring construction of a vehicular footpath crossing, and condition 12, requiring the construction of a kerb layback. Of great significance is condition 27, which requires the plaintiffs to construct a heavy duty pavement along the full length of the proposed right of way. 17 I turn to the terms of s 88K. The issue raised by subs (1) is whether it is reasonably necessary for the effective use or development of the plaintiffs' land that it will have the benefit of the easement. To my mind, it is altogether clear that there is such a necessity, as otherwise there can be no subdivision, and the westernmost part of lot 2 will remain sterilised from further significant development, in particular from residential development. It is also, in my view, reasonably necessary for the effective use of the easternmost part of lot 12, on which the present house property number 23 stands, that it should have access to its second garage on an established basis, and not subject to leave and licence. 18 Under subs 2(a) I am required to consider and may act only if satisfied that use of the land in accordance with the easement will not be inconsistent with the public interest. Some adverse impact on the public interest can be discerned. At present the strip of land which will be affected is used for vehicle access to two house properties. Under the proposed subdivision it will be used for vehicle access to three house properties. A corresponding increase in the total number of vehicle movements can be expected, and this, I suppose, should be said to have some impact on the convenience of use of the strip of land as a footway by the public. However the impact is no more than an intensification of an inconvenience which already exists, and overall I regard it as no more than a slight intensification. My view is that its impact would be overstated if it were treated as inconsistent with the public interest in the use of the land for footway. 19 In any event there are other public interests involved, including the public interest in there not being a sterilisation of a valuable piece of land otherwise available for residential use. I am satisfied in terms of paragraph 2(a) that use of the land in accordance with the easement will not be inconsistent with the public interest. 20 Paragraph 2(b) requires me to consider and to act only if satisfied that the Council, as the owner of lot B2, can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. An agreement between the plaintiffs and the Council has fixed the amount of adequate compensation at $10,000. This is a compromise figure, as the plaintiffs put in evidence an expert valuation, which obviously from its terms had a considerable claim to attention, which put the figure much lower. I have no hesitation in accepting the figure on which the parties have agreed. 21 Paragraph 2(b) also requires me to consider whether any other person having an estate or interest in lot B2 can be adequately compensated for any loss or other disadvantage. Mrs Rainsford, as the registered proprietor of lot B1 with a right of carriageway over the land to be affected, is such a person. Mrs Rainsford has no more than a right of carriageway over the land, and unless there was some unreasonable impediment to the exercise of her right of carriageway she has no right to influence whether or not Council permitted anyone else to take vehicles over the land. Her situation, if a right of carriageway is granted to the plaintiffs as asked, will not be in any way different to the situation which she is entitled to have. Compliance by the plaintiffs with Council's conditions will bring some significant elements of advantage to her by enhancing the utility of her existing right of carriageway, giving her the opportunity to extend the area to which it applies, and by improving in several ways the amenity of the area, by erection of signs and bollards and by paving. 22 I have regard to the correspondence in exhibit 3, which shows that the plaintiffs have indeed offered her compensation, but that did not lead to any agreed position. I do not regard the plaintiffs as bound by any negotiating position they earlier took. The issue relates to what I am satisfied is adequate. My view is that no payment to Mrs Rainsford is necessary and no compensation for her is called for. 23 Paragraph 2(c) requires me to address and consider whether I am satisfied that all reasonable attempts have been made by the plaintiffs to obtain the easement and that they have been unsuccessful. Exhibit PCM2 contains correspondence which gives the history of their negotiations with the Council, which is the only person from which an easement could have been obtained. The correspondence shows extensive and unproductive negotiations over many months, associated with consideration of the application for development consent itself. I do not see anything else which the plaintiffs could have done in an attempt to obtain an easement but have not done. I am satisfied in terms of paragraph 2(c). Subsection(4) requires that I should provide in my order for payment by the plaintiffs to persons for whom compensation the Court considers appropriate. As appears from the reasons I have stated earlier, the compensation and the only compensation which I consider appropriate is payment of the agreed amount of $10,000 to Manly Council. 24 The solicitor for the first defendant Manly Council did not make any significant adverse observations on the application; his observations were directed to his concerns to protect Council's position with respect to compensation and to give effect to an agreement on that subject. The second defendant, Mrs Rainsford, did not participate in the litigation, except to file a submitting appearance. The application should not be regarded as a consent application, but I have dealt with it ex tempore because it was not contentious, and because on my view of the material put before me, the order which I should make appears clear. 25 I turn now to address the terms of the order and compliance of proposed order with subs(3). 26 The order for costs is: order that the first defendant pay its own costs of the proceedings. Order 5 is that the plaintiffs pay the costs of the second defendant of the proceedings, such costs to be assessed on the basis of attendances necessary, if the second defendant had been a submitting defendant at all times. 27 Order 6 is the plaintiffs have liberty to apply with respect to the form of order 1, and its reference to the plan. Order in the short minutes. oOo