New South Wales Supreme Court CITATION : Trewin v Felton (No. 2) [2007] NSWSC 1112 HEARING DATE(S) : 25 September 2007 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 25 September 2007 DECISION : Order that dominant owners replace inferior fence with fence commensurate to other fencing of boundaries CATCHWORDS : REAL PROPERTY – Easements – Right of carriageway – right to fence – where dominant owner proposes to change access points – obligation to close existing access with fence consistent with existing fencing CASES CITED : Trewin v Felton [2007] NSWSC 851 Audrey Trewin (first plaintiff) PARTIES : Stephen Albert Trewin (second plaintiff) Graeme John Felton (defendant) FILE NUMBER(S) : SC 3832/05 COUNSEL : Mr Trewin (in person - via audio link) (plaintiffs) Mr I Mescher (defendant) SOLICITORS : R I McBroom, Solicitor (defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Tuesday, 25 September 2007 3832/05 Audrey Trewin & anor v Graeme John Felton JUDGMENT (ex tempore) 1 HIS HONOUR: I gave final judgment in these proceedings on 7 August 2007, when I indicated the effect of the declarations and orders that I proposed [Trewin v Felton [2007] NSWSC 851]. The parties then settled short minutes, in accordance with which I made orders on 27 August 2007. By those orders, the Court declared that the defendant Mr Felton was entitled to fence along the length of the right of carriageway, but so as not to deny the plaintiffs Mr and Mrs Trewin suitable access points to permit reasonable user by them of the right of the carriageway; that the Trewins were entitled to such access points along the boundary as they may from time to time determine, at their own cost, not exceeding 13.5 metres width in total; and that the erection by Mr Felton of a fence along the last five metres of the carriageway was not an actionable nuisance or obstruction so long as the Trewins' 13.5 metre access did not include that portion of the boundary of the right of the carriageway. The Court ordered that Mr Felton by 19 October remove the gateposts constructed on the right of the carriageway at a point five metres from the boundaries between lot 1 and lot 2, or modify them so as to allow an opening between them of not less than 3.6 metres (or such other dimension as the Court might fix); and reserved liberty to apply in the event of any difficulty arising in the implementation of the orders. 2 On 23 August, before final orders were made, the solicitors then acting for the Trewins suggested to the solicitor for Mr Felton that should either party propose to undertake works concerning the right of the carriageway, that party notify the other seven days prior to commencement of works setting out the nature and a description of those works. There was no reply. 3 On 1 September, three days after the final orders were made, the Trewins wrote to Mr Felton advising that they would be changing their access points, so as to provide access at the last five metres of the driveway, at the point closest to Mr Felton's house, and asserting that this would require the removal of the two brick piers as they would then be an obstruction to access by vehicle and trailer into the rear of the Trewins' backyard via their proposed new access point. They said that they would be commencing to remove the five metres of timber fence immediately, and requested Mr Felton to adhere to the orders to remove the two brick piers by 19 October. The orders, of course, did not require him to remove the piers but gave him the option of modifying rather than removing them. 4 On 5 September 2007, Mr Felton's solicitors wrote to the Trewins' solicitors, requesting that the Trewins not commence the proposed works until a number of matters had been clarified, including what part of the existing 13.5 metres of access was to be closed, who would bear the costs associated with removing the last five metres of fence and consequential costs, and, in particular, as the Feltons in the circumstances wished to relocate the gate to the boundary of their property, whether the Trewins would pay for the relocation of the gateposts. On the same day, the solicitors who had acted for the Trewins responded that they no longer acted for them, but had forwarded a copy of the letter to the Trewins. 5 On 6 September, the Trewins erected a barrier about three metres in length, along the boundary of the carriageway and his property, consisting of a star picket and shade cloth fence about 900 millimetres in height. It bears no resemblance and is obviously inferior to the existing paling fence which otherwise surrounds their property, including along the south-eastern boundary of the right of carriageway for its first half and, until 8 September, the last five metres of the carriageway. 6 On 8 September 2007, Mr and Mrs Trewin removed about three metres of the paling fence at the last five metres of the carriageway. On 9 September, Mr Felton wrote to the Trewins, recording the observations he had made to that effect and requesting the courtesy of advice as to what the Trewins' intentions were with respect to future access points, and provision of a sketch showing what they proposed, failing which he would approach the Court. There was no response. 7 Today, Mr Felton seeks an interlocutory order restraining the Trewins from commencing or carrying out any works for the purpose of removing or dismantling the last five metres of fence or the gate or gateposts constructed by Mr Felton on the right of the carriageway, and a direction that the Trewins respond to the requests contained in the correspondence of 5 and 9 September. 8 Although I reserved liberty to apply in the event of any difficulty arising in connection with the implementation of the orders of 27 August 2007, I have reservations as to whether the present application falls within that liberty to apply. However, if I do not deal with the matter in this way, then the alternative is for fresh proceedings to be commenced at even greater cost to the parties, and I think it preferable that for immediate purposes I deal with the matter as if under the liberty to apply, although that may not suffice if it has to proceed any further. That means that I am concerned with the implementation of the existing orders, rather than changing those orders to meet a new set of circumstances. 9 In my judgment, given the way in which the parties have conducted their affairs to date so far as fences are concerned, any replacement fence to an existing access point must be commensurate with the fence which it is to replace. The fence which the Trewins have so far erected does not do that. The suggestion that they will remedy that situation when funds are available puts their convenience in opening the new access point ahead of their legal obligations first to close an existing access point properly before they open alternative access. 10 Although good sense and common courtesy would suggest that the correspondence from Mr Felton's solicitors and then from Mr Felton should have received a response, the Court cannot make orders for good sense or courtesy. I do not see any legal basis upon which the Trewins were obliged to respond to that correspondence, and I will not order them to do so, although their failure to have responded earlier to requests, to which Mr Trewin ultimately responded in Court today, may have consequences so far as costs are concerned. 11 I do not see why Mr Felton's obligations under the existing orders to demolish or narrow the gateposts should be changed, just because Mr Trewin has decided to change the access points of which he wishes to take advantage in the future. The obligations of Mr Felton were determined on the facts as they were at the time of the trial, and nothing that has happened since changes those facts, including that the gateposts in their current configuration constitute an obstruction. Orders 12 Upon Mr Felton, by his counsel, giving to the Court the usual undertaking as to damages, I order that until further order the plaintiffs, Audrey Trewin and Stephen Albert Trewin, by 19 October 2007, replace the fence erected on or about 6 September 2007 of approximately three metres in length with a paling fence commensurate in style and structure to the paling fence that existed along the last five metres of the carriageway immediately prior to 8 September 2007. 13 I further order that until further order the plaintiffs, Audrey Trewin and Stephen Albert Trewin, be restrained from by themselves, their servants or agents removing any remaining part of the existing fence of the last five metres of the right of carriageway without having first erected an equivalent length of paling fence commensurate in style and structure with the paling fence that existed along the last five metres of the right of carriageway immediately prior to 8 September 2007. Costs 14 I have considered carefully what Mr Trewin has said on the question of costs. It seems to me that he has some explanation for the absence of a response to the correspondence before the works were done, in that the correspondence to their former solicitors, at least as Mr Trewin puts it, was not received by him, and the correspondence from Mr Felton was not received until after the works were done. That does not, however, satisfactorily explain why there was no response between that time and the listing of the matter before the Court today, which might well have avoided the need for today's hearing. 15 The more significant matter is that the Trewins – by erecting what, although Mr Trewin says it is a permanent replacement fence, is obviously inferior in quality and style to the existing fence, and having done so opened access at the last five metres – have preferred their own convenience in opening that access to their obligations properly to close the existing access before doing so. Mr Felton was entitled to bring the matter back to court, and if the Trewins had wanted to avoid the consequences, they had time between about 10 September and yesterday in which they could have responded to the correspondence and answered the questions that had been raised. 16 I order that the plaintiffs, Mr and Mrs Trewin, pay the defendant's costs of the application today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.