New South Wales Supreme Court CITATION : Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252 HEARING DATE(S) : 14 and 15 February 2007 JUDGMENT DATE : 22 March 2007 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Order that defendant consent to the lodgement of a development application for the use of a right of way. CATCHWORDS : EASEMENTS – Right of way – Right of carriageway in favour of whole or any part of dominant tenement for "any purpose" – Subdivision of dominant land – Large residential development proposed on one lot of subdivided dominant tenement – Consent of owner of servient tenement required for lodgement of application in Land and Environment Court for use of right of carriageway for proposed development – Consent refused – Whether mandatory order for consent should be made – Construction of terms of grant of easement – Evidence admissible on construction – Whether question of excessive use special consideration or one going to construction Conveyancing Act 1919 LEGISLATION CITED : Environment Planning and Assessment Act 1979 EPA Regulation 2000 Jelbert v Davis [1968] 1 WLR 589 Kirkjian v Towers (unreported NSWSC Waddell J 7 March 1975 and Waddell CJ in Eq 6 July 1987) CASES CITED : Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337 South Metropolitan Cemetery Company v Eden (1855) 16 CB 42 Todrick v Western National Omnibus Co [1934] Ch 190 PARTIES : Nirimba Developments Pty Limited (Plaintiff) Sertari Pty Limited (Defendant) FILE NUMBER(S) : SC 5386/06 COUNSEL : Mr S Kalfas SC with him Mr S Flanigan (Plaintiff) Mr T S Hale SC with him Mr M A Izzo (Defendant) SOLICITORS : Deacons (Plaintiff) Holding Redlich (Defendant) - 12 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 22 MARCH 2007. 5386/06 NIRIMBA DEVELOPMENTS PTY LIMITED V SERTARI PTY LIMITED JUDGMENT Question for decision 1 Whether a registered proprietor of part of land which was the original dominant tenement of an easement as set out below is entitled to enforce it in accordance with its words or whether the true construction of the easement precludes that enforcement. Facts 2 The plaintiff is the owner of Lot 1 in DP 853847 being land in Folio Identifier 1/853847 and known as 9 Nirimba Drive, Quakers Hill. The defendant is the registered proprietor of Lot 1 in DP 806691 known as 7 Nirimba Drive, Quakers Hill. The defendant's property is the servient tenement under an easement created by operation of s88B of the Conveyancing Act 1919 upon registration of DP806691. 3 The easement as set out in the s88B instrument is noted as a "Right of Carriageway 7 wide" benefiting Lot 4 DP 216298 and burdening Lots 1 and 2 in DP 806691. The body with power to release vary or modify the easement is the Council of the City of Blacktown. The terms of the easement as fully set out in paragraph 1 of Schedule 2 to the instrument are as follows: 1. Terms of Easement firstly refered to in abovementioned plan (a) 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 him and lessees, employees, customers, patrons, invitees and licencees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to and from the said dominant tenement or any part thereof. (b) The site of the servient tenement shall be maintained and repaired by the registered proprietor thereof, which obligation shall bind his successors in title and assigns. I will refer to the easement as the Right of Carriageway (ROC). 4 The dominant tenement was at the time owned by the Commonwealth of Australia. It was an area of about 557 acres, part of which was used for the site of what was or had been the Schofield Airport, part for the naval establishment HMAS "Nirimba", and part for the site of a Telecom depot. The plaintiff's land, 9 Nirimba Drive, is part of what was Lot 4 at its southern end. It is about two hectares in area. 5 The plaintiff applied for development consent to build a residential flat building containing 236 units or apartments on its land, together with 351 car spaces including 93 for visitors' cars. The Council did not determine that application within the 40 day period allowed and it was thus deemed to have been refused. On appeal the Land and Environment Court gave approval subject to various conditions. 6 The plaintiff then applied for development consent to use the ROC under the easement for the purpose of vehicular access to the development. This is accepted to be required under the Environment Planning and Assessment Act 1979. The defendant company, as owner of the servient tenement, did not give the required consent to the application as was needed pursuant to clause 47 of the EPA Regulation 2000. In any event, once again, Council did not deal with the application within 40 days so that a further application for consent was lodged with the Land and Environment Court. Quite how that happened without consent is not clear, but in any event the matter has not progressed there as there is no consent to the application by the owner of the land subject to the ROC. The plaintiff seeks a mandatory order requiring the defendant to furnish its consent to the application being lodged. It is accepted that this will not amount to consent to the proposed use, but merely consent to the lodgement of the application. 7 The issue then is whether the defendant is bound to give its consent to the lodging of the application and as it has refused to do so, whether it should be required to do so. It is accepted on the authority of Kirkjian v Towers (unreported NSWSC Waddell J 7 March 1975 and Waddell CJ in Eq 6 July 1987) that the court can so require and order if the terms of the ROC are such that the plaintiff is entitled to the benefit of the ROC. 8 The servient tenement land is used for the Quakers Hill Tavern. The area of land subject to the ROC is on the eastern side of the tavern. Car parking spaces for patrons of the Tavern are set out on either side of the ROC. Quite why a hotel proprietor would not want to have an additional 400 or so persons within walking distance of its hotel is not clear, but that is asserted to be the position. 9 The strange thing about the ROC is that it now joins two parts of a public road. The difference is, of course, that the road is about 20 metres wide while the ROC is seven metres wide. The court is not concerned with whether it is a reasonable use of the land for planning purposes to allow the development application. That is a matter for the Land and Environment Court. The question here is to determine the extent of the ROC or more strictly its proper construction. 10 This area of western Sydney near Quakers Hill is planned to give a greatly increased population over the next ten years or so. No doubt it can be expected that much of the original Lot 4 will be covered in houses. While in theory these might all be entitled to use the ROC, this is probably theoretical only as it can be assumed provision of adequate roads would be a requirement of council and any major development would not necessarily use the ROC for access. In any event that is irrelevant to this decision. 11 In 1990, when the defendant obtained development consent for the hotel that consent was subject to a condition that the ROC be created. At that time there was a track from Railway Street to Lot 4, over what became part of the tavern land which led to the Telecom depot site on Lot 4. Conditions 18 and 20 of the development consent was as follows: 18. Access across the subject site to Lot 4, DP.216298 is to be provided. An appropriate 'restriction as to user' is to be created under Section 88B of the Conveyancing Act to ensure this requirement. This Section 88B instrument shall contain a provision that it may not be extinguished or altered except with the prior consent of Council. … 20. The 'rights of way' required in Condition 18 and 19 above are to be to the satisfaction of, and at no cost to Council. 12 As I have said the ROC was created by registration of the deposited plan. There is no evidence to suggest that the Commonwealth of Australia played any part in this or that it even knew of the grant. Under the relevant regulation it was not required to execute the deposited plan or the s88B instrument, but presumably it had to lodge its certificate of title at some stage to have the ROC endorsed on it as an appurtenant easement. 13 The report to Council of the engineer recommended that development consent be given without the requirement to dedicate to Council land for road purposes to give access to the Telecom depot on Lot 4. That may have been the reason for the imposition and acceptance of the condition that the ROC would be maintained by the owners of the tavern and perhaps it also explained why the only person nominated as having the right to release, vary or modify the easement was the Blacktown Council. However, that report was admitted on the basis there might be some ambiguity in the wording of the easement. On consideration that is not so. A report to Council is not in my view admissible to evidence the objective intention of the grantor. I have therefore disregarded the report other than in so far as it is evidence of the physical nature of the servient tenement at grant date. Question of construction 14 The words of the grant are clear. Unless it is permissible to have regard to circumstances existing at the date of the grant when determining its meaning, all persons connected with the proposed development will be able to use the ROC. If the proposed development results in a strata subdivision all owners of lots in the plan will be proprietors of part of the original dominant tenement and entitled as such to the benefit of the ROC. 15 Any suggestion that anything other than the actual words of the grant could bear on the extent of the use seems to be counter to the intentions of Mr Torrens. A purchaser of land, the certificate of title of which shows there is a ROC appurtenant to it or its being subject to a ROC, would I think be entitled to think that he or she was entitled to rely on or be bound by the register as to this, or at least not have to go behind it to ascertain what the words meant, particularly when the grant might have been made over 100 years ago. 16 A right to pass over land to go to church or to go on foot to the train station can clearly bear upon the extent of use allowed. It is far removed from the present case where the right is to pass for all purposes. Thus without further instruction I would have thought that there was real force in the plaintiff's argument that if the grantor intended some restriction then he could say so by words in the grant. That is in essence what was said by Jervis CJ in South Metropolitan Cemetery Company v Eden (1855) 16 CB 42 at 57 where the following passage appears: This is not like the case of Henning v Burnet 8 Exch 187 where the grant was a right of way to a particular place, for a particular and limited purpose. If I grant a man the way to a cottage, which consists of one room, I know the extent of the liberty I grant; and my grant would not justify the grantee in claiming to use the way to gain access to a town he might build at the extremity of it. Here the grant is general, - to use the road for the purpose of going to or returning from the land conveyed, or any part thereof: It is not defined, as in the case referred to. 17 It is clear that a great deal must turn on this decision and if the plaintiff succeeds here, on the decision in the Land and Environment Court. The case was very clearly and carefully argued and I am grateful to counsel for this. I was, during the course of the hearing, referred to many authorities, but I have come to the view that it is not necessary to refer to many of them. The prime reason for this is the clear guide which is given in the recent decision of the Court of Appeal in Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337. The judgment in that case was delivered by Hodgson JA, and Beazley and Tobias JJA agreed with his reasons. It is an important case on the construction of easements. Paragraphs 26 to 28 of the judgment of Hodgson JA are as follows: 26 In my opinion, there is just one question, what does the grant authorise; and that question is to be determined by construing the grant. One way of posing the question is to ask, what use was intended to be authorised by the grant; but no separate investigation into the use contemplated by the parties is either necessary or permissible. However, in determining this question, regard may be had to surrounding circumstances, including the physical circumstances of the dominant and servient tenements and the use actually being made of them at the time of the grant. 27 This in turn gives rise to the question of whether other circumstances may be taken into account, such as communications between the parties prior to the grant of the easement. One view could be that such circumstances can be taken into account, to the extent to which they can be taken into account in construing an ordinary contract: Codelfa Constructions Pty. Limited v. State Rail Authority (NSW) (1987) 149 CLR 337. Another could be that, because easements are documents of title and operate in rem, the surrounding circumstances to which regard can be had should be more limited, and in particular limited to objective circumstances readily ascertainable by the public in general: cf. House of Peace Pty. Limited v. Bankstown City Council [2000] NSWCA 44, (2000) 48 NSWLR 498 at [23] and [37]; Auburn Municipal Council v. Szabo (1971) 67 LGRA 427 at 433-4. 28 As a matter of general principle, I would have preferred the latter approach: the meaning and effect of a document of title, that binds successors in title to both dominant and servient tenements for indefinite and possibly very long periods, should not in my opinion depend on anything other than the terms of the document and ascertainable objective circumstances existing at the time of the grant. However, there is authority supporting the former approach which I believe I should follow. In The Shannon , there was a grant of an easement which did not explicitly identify the dominant tenement. The grantor had already conveyed some land to the grantee, on which the grantee had erected a factory, which was constructed so that it could readily be extended on to adjoining land. The grantor then conveyed the adjoining land to the grantee, together with a right of way "for all purposes for [the grantee] and their successors in title". The English Court of Appeal held that, because the identification of the dominant tenement was not clear, evidence was admissible of the circumstances in which the grant was made, including the grantee's communication to the grantor that it intended to extend its factory on to the land then being conveyed; and the Court concluded that the dominant tenement was the whole of the grantee's land. 18 Dealing first with paragraph 26, which I have just set out, and the wording I am looking at in the present case, I would have thought the words determine the matter. Nothing could be clearer. Nothing can really be determined by the physical circumstances of the tenements at the date of the grant. The defendant's land was apparently undeveloped bushland. The Commonwealth land was a large area on which there was a Telecom depot with a track to that depot passing through the private land now owned by the defendant. The rest of the Commonwealth land was used for specific purposes or was just open land. There is no evidence of any communication at all between dominant and servient owners. While, as a matter of principle I, like Hodgson JA, would have preferred the view that communications and other extraneous material ought not to be taken into account, but accepting the view that they can be, that does not assist here. 19 Some stress was placed by Mr Hale SC for the defendant, on what is generally described as a doctrine of excessive use. However, in accordance with the decision in Perpetual Trustee v Westfield this is really a matter of construction. A limitation on use is best expressed in grant: a ROC to give access to a church is easily expressed. A right for all purposes is equally clearly expressed. 20 The cases to which I was referred in particular are, I think, explained by their wording. The main case relied upon was Jelbert v Davis [1968] 1 WLR 589. This dealt with a grant of a ROC over a driveway about 180 yards long leading from the highway to the land sold to the grantee, which was then used as farming land. The grantee later obtained planning approval for a tourist caravan site for up to 200 caravans for six months of each year. The ROC was for all purposes, but was to be used in common with all other persons having the same right. Other farmers used the driveway for access to their own properties and for farming vehicles and the like. The decision turned on the finding that although the grant was for all purposes, its proper construction did not authorise unlimited use because the interests of other persons with the same right had to be taken into account so that the driveway could not be used by the owner of the land on which the caravans were placed so as to interfere with the use by other persons. In discussing this on page 595 Lord Denning said: "The only way in which the rights of all can be reconciled is by holding that none of them must use the way excessively". While on their face those words may seem to indicate some doctrine of excessive use they are I think best taken as relevant to the proper construction of the grant. That is made apparent from the next paragraph in the judgment which is as follows: More generally, the true proposition is that no one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant. The Master of Rolls then goes on to say that the law was stated in Todrick v Western National Omnibus Co [1934] Ch 190 where the trial judge Farwell J, in a passage which was subsequently approved by the Court of Appeal, said at 206-7: In considering whether a particular use of a right of this kind is a proper use or not, I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made … a grant of this kind must be construed as a grant for all purposes within the reasonable contemplation of the parties at the time of the grant. That decision also must be looked at in the light of its facts. I would have thought that it was obvious enough that a ROC 7 feet 9 inches wide was on its proper construction not one to be used by company buses 7 feet 6 inches wide. I do not think it could be said that, even accepting the contemplation of the parties has anything to do with the matter, in the case with which we are dealing here, a grant for all purposes attached to the whole or any part of the land could be thought to be restricted to the type of use made at the time the Telecom site was being occupied as a depot. The words are quite contrary to a finding of such objective intention. Excessive use is not, in my opinion, a separate doctrine but goes to construction. A use which directly and regularly interferes with the rights of the servient owner over the land subject to the easement and the rights of others with a similar right may bear on the proper construction of the grant and the objective intention of the parties at the time of the grant. I should add that the first judgment of Waddell J in Kirkjian to which I have had access, in discussing the question of excessive use and referring to Todrick , relied on the doctrine of competing rights as discussed in Todrick in the Court of Appeal [1934] 1 Ch 561, where Lord Hanwell MR said at p575: In the present case, having to balance the rights of both parties, the owner of the dominant and the owner of the servient tenements, I find that the owner of the servient tenement has had a ramp put up on the surface of the land which belongs to him and that it circumscribes the area available to him for the purpose of washing his car or of getting his car out of the garage to the extent that it has so shortened the area in front of the garage as to make it difficult for him to use the garage freely and to take his car in and out of it with any freedom. In that sense there has been a distinct limitation imposed upon the plaintiff of his rights in respect of the garage and the land which he owns. The defendants have for their own purposes put up upon the land belonging to the plaintiff this ramp in order to use the gradient which leads up to the garage upon their own ground. If the gradient had been steeper it would have been possible to commence the ramp at the point where the wall intersects the two properties of the plaintiff and the defendants, but rather than do that they have put up this structure without bearing in mind the rights of the plaintiff over the land. It is an exercise of the right of way which is not merely a development such as occurred in the case of Dand v Kingscote , but an intrusion on the rights and property of the plaintiff. In those circumstances there ought to be a mandatory injunction to restrain the defendants from doing what they have done and t compel them to remove the ramp which they have superimposed upon the plaintiff's land to their own advantage and to the disadvantage of the plaintiff. 21 There are two other arguments to which I should refer. The first is the argument that the obligation of repair placed on the owner of the servient tenement is contrary to a construction of unlimited use under which there are likely to be numerous car movements per day and many movements of large trucks during construction which may cause the ROC surface to break up. There is strength in this submission but on consideration I do not think it overcomes the wording "for all purposes". At present the evidence does not justify a quia timet injunction to restrain threatened trespass. 22 The second argument relates to the words in the grant "and lessees employees, customers, patrons, invitees and licensees of any business conducted from the improvements erected or to be erected on the dominant tenement." It is said those words, added to what is otherwise the extended Conveyancing Act meaning, indicate an intention to confine the use of the ROC for the purposes of access to the Telecom site and the business of Telecom conducted from the site. Such a construction is contrary to the words "for all purposes" and I think to the words "to be erected". 23 It is, of course, possible that there may be times at peak periods when customers of the tavern parking cars in the parking spots adjacent to the ROC may be subject to some short delay in moving into or out of the parking spaces but such problems are at present somewhat speculative and are not established to interfere unreasonably with the rights of the servient owner. It may seem strange to an outside observer that the development consent given was obtained, but that decision was that of the appropriate specialist court considering all the evidence. That will be the same position with the present pending application before that Court. Orders to be made 24 The parties can consider the terms of the orders required to give effect to this judgment. I repeat that the making of an order that the defendant consent to the lodgement of the development application for use of the ROC does not prevent the defendant from opposing the application. I will stand the matter over for a few days to enable the plaintiff to bring in draft orders. 25 An order should be made requiring the giving of consent. The declaration sought in paragraph 2 of the statement of claim is unnecessary. The declaration sought in paragraph 1 is not appropriate. The plaintiff has been successful and is entitled to costs. The orders should provide for return of the exhibits. ********** 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. 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