New South Wales Supreme Court CITATION : McCrow v Chaplin [2009] NSWSC 965 HEARING DATE(S) : 27 August 2009 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 27 August 2009 CATCHWORDS : REAL PROPERTY – Torrens title – Easements – Right of carriageway – right to fence – Where plaintiff has right of carriageway over access handle to defendant's property – where plaintiff claims that defendant has obstructed right of carriageway by erecting fence along the boundary of the right of carriageway – where gate cannot be opened from plaintiff's side – extent of access points permitted from easement to dominant land – held: existing gate to be rendered able to be opened from within dominant land – plaintiff would not be exceeding reasonable user by relocating gate or installing second access point. – COSTS – general rule – costs follow the event – whether to depart from general rule – where plaintiff pursued claims to relief to which not entitled – where plaintiff made offer of compromise though not in compliance with UCPR r 20.26 – where if offer accepted defendant would have been no worse off – held: defendant to pay plaintiff's costs LEGISLATION CITED : (NSW) Conveyancing Act 1919 s 181A (NSW) Uniform Civil Procedure Rules 2005 r 20.26 CATEGORY : Principal judgment CASES CITED : Trewin v Felton (2007) 13 BPR 24,579, [2007] NSWSC 851 PARTIES : Kenneth Bruce McCrow (plaintiff) Leslie Bert Chaplin (defendant) FILE NUMBER(S) : SC 5965/08 COUNSEL : Mr P Singleton (plaintiff) Mr A Pickles (defendant) SOLICITORS : LD Rogers Solicitor (plaintiff) Kemp Strang (defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Thursday 27 August 2009 5965/08 Kenneth Bruce McCrow v Leslie Bert Chaplin JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Kenneth Bruce McCrow is the registered proprietor of 4 Windsor Place, St Ives, being the land comprised in lot 19, Deposited Plan 517542, which is benefited by a right of carriageway over the access handle to lot 20 in the same Deposited Plan, situated to its rear, of which the defendant Leslie Bert Chaplin is the registered proprietor. Mr McCrow claims that Mr Chaplin has obstructed the right of carriageway by erecting a fence along the boundary between the right of carriageway and lot 19. 2 The instrument creating the right of carriageway describes it as "Right of carriageway within the meaning of s 181A of the Conveyancing Act". (NSW) Conveyancing Act 1919, s 181A, has the effect that a right of carriageway created, as this was, after 1 January 1931, is taken to be in accordance with Part 1 of Schedule 8, namely: 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 3 On 1 October 2007, Mr Chaplin and Mr McCrow had a conversation, the precise terms of which are, to a minor extent, disputed, but in respect of which it is common ground that Mr Chaplin indicated that he intended to erect a fence along the boundary between the access handle and lot 19, and to install an automatic gate at the Windsor Place entrance to the right of carriageway, while Mr McCrow indicated he had no objection to such a gate at Windsor Place provided that he was given a remote control to operate it, and also provided that a gate was installed at the existing point at which a track deviated from the access handle into lot 19. Correspondence then ensued between the parties. On 5 October, Mr McCrow wrote to Mr Chaplin in the following terms: Re: RIGHT OF CARRIAGEWAY PROPERTIES: 2 & 4 WINDSOR PLACE, ST. IVES I refer to our meeting on your above property on Monday 1st October, 2007. You advised me you intend to fence part of the northern boundary of your property common with my property 4 Windsor Place, the Right of Carriageway driveway for its full length between your property and my property, and to install a gate across the driveway at the Windsor Place boundary. You suggested the fencing positions be 'give and take' in relation to boundaries. I confirm my discussion on site that any fencing will need to be on the boundaries, provided the vehicular access movement at the front of my property from and to Windsor Place is retained and a gate provided at the existing entry to my property off the driveway. I have no objection to fencing being within your property as you indicated. You also stated you will not allow my use of the gate to access my property from the Windsor Place by the Right of Carriageway. This Right of Carriageway is an integral part of my property and its continuing use is to be available at all or any times. I am agreeable to discussing the matters further, however should the existing access be denied to my property by the Right of Carriageway from or to Windsor Place I will consider my options. I trust the issues can be resolved amicably. 4 On 11 October, Mr Chaplin responded in the following terms: RE: RIGHT OF CARRIAGEWAY BETWEEN 2 AND 4 WINDSOR PLACE, ST IVES With reference to your letter of October 5, 2007, I do in the following respond to those matters you have raised, dealing with the above subject matter:- 1. The Surveyor's report clearly showed that the existing wire mesh fence that was in part still standing that was originally erected on the northern boundary did encroach on my side of the driveway some 720mm and on your side of the property from just past the driveway light some 180mm. As clearly shown on the plan, if the fence line was taken from this point, east to west, you would lose 2.1 metres wide by 16.2 metres long tapering down to zero of your land. We agreed that from the large tree, the new paling fence would follow the existing lattice and wire mesh fence line; 2. With reference to the driveway entrance, I informed you that the brick fence to be erected would be some 720 mm on my side of the boundary, thereby providing you with the same entry width as mine. This too you agreed to; 3. I informed you that an electronic timber entrance gate would be installed upon the brick fence being completed. You raised the fact that a 'right of carriageway' was in place and you required the following:- entry into your property from the 'right of carriageway' to have a gate would be acceptable to you; and a remote control for accessing the electronic timber gate. I replied that, due to my wife's ongoing serious health problems, these conditions were unacceptable to me as I required absolute security around my property. Further, I informed you that I had discussed this 'right of carriageway' with my corporate solicitors who are of the opinion that if this matter goes to Court, I would have more than a 50/50 chance of having this covenant removed due to the area you have available in your property to turn vehicles around and exit your property in accordance with Council requirements. You will recall I raised various issues concerning your property such as:- the state of your driveway from the front of the property and access through the 'right of carriageway' which consists of dirt and some gravel; the damage to the bitumen access area from the 'right of carriageway' to your property; the condition of your property, which to this date your tenants have still not removed all the building equipment stored on the grounds; the northern and southwestern area of your grounds - the grass, weeds and rubbish is knee high, that is a haven for snakes and rodents that requires to be urgently cleaned up. In respect to the general condition of your property, I said it was a 'shit box' and it was evident that you have done nothing to the property since you purchased it around 1966. Your comment that the Council has written to your tenant to address some of these matters I find very strange as you are the owner, not the tenant. Rest assured I will take these concerns up with the Ku-ring-gai Council. As you are aware, I informed you that I did not consider erecting a paling fence on the rear of your property, due to the landscaping I am going to have done. However, if you do not address the condition of your backyard, I will proceed with this fence and you will bear 50 percent of the cost. For your immediate attention I enclose a copy of two quotes I have obtained in respect to the fencing and an invoice or $5,031.00 + GST that I have paid and request you to forward your 50% share of this cost in the sum of $2,767.05 within seven (7) days. I regret to advise that concerning your access via the 'right of carriageway' I am not prepared to change from the stance I have taken. If you decide to pursue this legally through the Courts, I will defend any action taken by you. 5 It will be apparent from the foregoing that Mr Chaplin then refused to accept the conditions stipulated by Mr McCrow – that entry into his property from the right of carriageway have a gate acceptable to him and that he have a remote control for accessing the electronic timber gate proposed to be installed at the Windsor Place frontage. Thereafter, Mr Chaplin proceeded to erect a paling fence along the boundary between the right of carriageway and Mr McCrow's property. However, the proposed automatic timber gate at the entry to the right of carriageway was never installed. When installed, the fence had no gate in it and totally closed the point at which access had previously been enjoyed by lot 19 from the right of carriageway into lot 19. Mr Chaplin claimed contribution towards the cost of constructing the fence, and Mr McCrow declined to contribute. 6 On 26 November 2008, Mr McCrow instituted these proceedings by Summons, incorporating the following claims: 1. A declaration that the property described as Lot 19 in Deposited Plan 517542 remains entitled to the benefit of the right of way described in the said Deposited Plan and affecting Lot 20 in the said Deposited Plan (being a rectangular portion of land approximately 170' 2 1/8" by 15'). 2. An order requiring the defendant to remove the fence that has been erected between the said right of way and the said Lot 19 (being a fence of approximately 50 metres in length running approximately north-south) and retaining wall and garden bed as required and lower in the ground any services so that the Plaintiff will have his right of access from the right of way to his property along the full length of the right of way. 3. Costs. 7 The Summons came before the Court for directions on 3 February 2009, 21 April 2009, and 18 May 2009. At a time that the evidence does not permit to be identified precisely, but before 9 June 2009, Mr Chaplin caused to be installed in the fence, at the point where access had previously been enjoyed from the right of way into lot 19, a double gate. The latch and other equipment which enables that gate to be opened and closed are located on the right of way side of that fence, and can only be operated, if at all, with great difficulty, from within lot 19. The effect is that the gate can easily enough be opened and closed by someone in the right of way, but not by someone in lot 19. 8 The matter was again before the Court on 19 June 2009, when directions were made for the plaintiff to serve submissions by 10 July, the defendant to serve submissions by 31 July, and the matter was listed for hearing today, 27 August. The parties duly served submissions, though not necessarily on the dates directed. In those submissions, the plaintiff continued to press for the relief in the original Summons. However, by an Amended Summons, leave to file which in Court was obtained at the outset of the hearing today, the plaintiff now claims the following relief: 1. A declaration that the property described as Lot 19 in Deposited Plan 517542 remains entitled to the benefit of the right of way described in the said Deposited Plan and affecting Lot 20 in the said Deposited Plan (being a right of was (sic) over a rectangular portion of land approximately 170' 2 1/8" by 15'). 2. A declaration that the owner of the said Lot 19 shall be entitled: (a) to require the owner of the said Lot 20 to alter the gate that presently exists in the fence that has been erected between the said right of way and the said Lot 19 (being a fence of approximately 50 metres in length running approximately north to south) so as to allow the gate to be opened and closed from within Lot 19; and (b) at the expense of the owner of Lot 19, to relocate the said gate to another position along the said fence; and (c) to require the owner of the said Lot 20 to construct at any second point nominated by the owner of the said Lot 19 along the said fence a second gate of a standard and style similar to and commensurate with the said existing gate 2A. In the alternative to 2 above, a declaration that the owner of the said Lot 19 shall be entitled, at the owner's expense: (a) to alter the gate that presently exists in the fence that has been erected between the said right of way and the said Lot 19 (being a fence of approximately 50 metres in length running approximately north to south) so as to allow the gate to be opened and closed from within Lot 19; and (b) to relocate the said gate to another position along the said fence; and (c) to construct at any second point along the said fence a second gate of a standard and style similar to and commensurate with the said existing gate. 3. Costs. 9 I had occasion to review the law pertaining to the fencing of rights of way in circumstances such as these in Trewin v Felton (2007) 13 BPR 24,579, [2007] NSWSC 851. Having reviewed the authorities I summarised the position (at [36]) as follows: These authorities establish that, ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable user of the right of way; that the dominant owner is not entitled to have the right of way remain unfenced; and that the dominant owner is not limited to a single point of access and does not irrevocably elect to use only one point of access by initially determining to do so, but may from time to time vary the points at which access is exercised to and from the right of way. Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct user of the right of way. 10 At paragraph [43], I observed: If the dominant owner's claim amounts practically to an exercise of rights of ownership over the site of the carriageway, then it will be excessive. To insist that there be no fence is excessive. Short of that, however, the dominant owner has a substantial degree of discretion. 11 Then I sought to summarise the position (at [95]) as follows: In the case of an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner's reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced. 12 Both parties appeared content to proceed in this case on the basis that the law was as I there summarised it. It follows, that while Mr Chaplin was entitled to fence the right of carriageway, he was not entitled to deny Mr McCrow suitable access points to permit reasonable use by the occupants of lot 19 of the carriageway; and the proprietors of lot 19 were not to be limited to a single access point, and were entitled to change access points from time to time. 13 The essential question ultimately became what was the limit of reasonable access. Mr Chaplin's unilateral fencing of the right of way, so as to obstruct use of the existing access point, unreasonably interfered with the access to which the proprietors of lot 19 were entitled, by obstructing that access which they were accustomed to use. On the other hand, in the then configuration of the property, and having regard to its then existing use, I do not think he was bound to leave more than that one access point for them to use. But he was not entitled to exclude them from the use of the right of carriageway, which is effectively what he did, until June 2009. 14 There is no longer any dispute between the parties but that an order should be made, requiring an alteration to the existing gate in order to permit it to be readily used from lot 19 as well as from the right of carriageway. That concession was, in my view, properly made. A gate which could only be used effectively from one side is just as effective an interruption or obstruction to the use of right of carriageway as a fence without a gate. 15 In the current configuration of the land – and having regard to the manner in which it has so far been used – I do not think the absence of a second entry point is an actionable obstruction, but that is not to say that the proprietors of lot 19 are to be limited now or in the future to a single access point. As I endeavoured to explain in Trewin v Felton, the dominant owner is not in this type of situation ordinarily limited to a single access point. As I then suggested (at [76]): The Trewins may in the future from time to time change the points at which they exercise access between the rear of Lot 1 and the corridor, and if they close some part of access currently used, they may then be entitled to open an access point at the last 5 metres. As presently advised, and consistent with the principle that the dominant owner is entitled to construct a right of carriageway at its own expense, but not have the servient owner construct a way that is not constructed, any such change of access points should be at the Trewins' own cost, but for present purposes I need not determine that question. 16 The observation that the Trewins would not be limited to the single access they currently used if they close part of it before opening a new access point must be seen in the context that, as was concluded in that case, the access then used by the Trewins was so extensive as to exhaust the limits of what was reasonable use of the right of way. That is not so in the present case, and I do not see that there would be any requirement for the proprietors of lot 19 to close the existing access point before opening a second one. 17 However, the costs of relocating the existing access way and of opening a second one, if it is desired to do so, should be borne by the dominant owners. I accept that the cost of installing the initial gate must be borne by the servient owner, as in the events that have happened it has been. When fencing the right of way the servient owner was not entitled to obstruct the access point then in use, and ought to have installed a gate. He did not originally do so. Ultimately, he remedied that, earlier this year, by installing, at his own expense, the gate that is now there. In circumstances that that was the point which had until then been used for access from the right of way into lot 19, and that Mr McCrow had in his letter of 5 October, stipulated that the gate should be located at that point, I do not accept that it was necessary for Mr Chaplin to ask again where the gate should be installed. If Mr McCrow wishes to change the use of the right of way by moving the access point, or to increase it by installing a further access point, that is a cost which he must bear. 18 Argument has been directed as to whether a declaration should be made as to the continued existence of the easement. There is not now any dispute as to the continued existence of the easement. Indeed, in reality, I do not think there has ever been any real dispute as to the existence and enforceability of the easement: there was simply a refusal to honour its terms, and an obstruction of it for a year and a half until the gate was installed, but I do not read Mr Chaplin's correspondence as denying its existence. 19 I completely accept Mr Singleton's submission that the Court does not encourage, let alone expect, parties to resort to self help rather than to approach the Court; but the appropriate remedy, so long as there was an obstruction, was an injunction to require removal of the obstruction, rather than a declaration that the easement continued to exist. Declarations are granted to resolve disputes as to what are the competing legal rights of parties. There was never really any dispute as to whether the easement existed or not, although there was at the time some dispute as to precisely what it might permit. As I outlined in argument, it is usually undesirable to declare prospectively the full extent of what an easement will permit: it may well be that as land is redeveloped and zonings change, the permissible user might evolve with time. But there is no harm in making a declaration which may avoid future dispute and which proscribes such which is not sought to mark out the maximum limits of user, but it reflects what might unarguably permissibly be done without exceeding the bounds of the reasonable user. 20 For those reasons, I make the following orders: 1. Order that by 10 September 2009 the defendant alter the gate presently situated in the fence erected between the right of way described in the Deposited Plan 517542 affecting lot 20 and benefiting lot 19 in that plan and the said lot 19, being a fence approximately 50 metres in length running approximately north to south so as to allow the gate to be conveniently opened and closed from within lot 19 as well as from within the said right of way. 2. Declare that upon the true construction of the right of way, and in the events which have happened, the plaintiff would not be exceeding the reasonable user of the said right of way by at his own expense relocating the said gate to another position along the said fence and/or installing a second access point through the said fence by installing a gate of commensurate style, scale and standard to the said gate at some other point along the said fence. 21 I will hear parties on what is, no doubt, the contentious questions of costs. 22 On the question of costs, which is neither straightforward nor easy in this case, the Court has a discretion; but, ordinarily, costs follow the event, unless there is some good reason for departing from that position. In the event, orders have been made substantially along the lines of what was sought by the plaintiff in his Amended Summons. That said, the relief claimed by the plaintiff in the original Summons and at least on the record persisted up to the outset of the hearing today – certainly in the written submissions of 10 August 2009 – was considerably in excess of that which the plaintiff was ever entitled. Against that, it is clear that the plaintiff was from the outset entitled to some relief, because of the complete obstruction of the right of way by the defendant. There is no indication of any offer of compromise on the part of the defendant which could have made the slightest difference to the prosecution of the proceedings, until the gate was installed in or about June of this year. 23 In my view, the plaintiff was entitled to come to Court for relief – even though not by any means the full extent of the relief he sought – and remained so entitled until the installation of the gate in June. The defendant must therefore pay the plaintiff's costs, at least up until the directions hearing on 19 June 2009. After that point, however, the plaintiff ceased to be entitled to any further relief – until it amended its Summons today to claim the much more limited relief ultimately pursued, and even less comprehensively ultimately granted. On the other hand, by letter of 18 June 2009, the plaintiff made an offer – purportedly under UCPR r 20.26, but in various respects not complying with the requirements of that rule – to compromise the proceedings on terms not less favourable to the plaintiff than the orders ultimately made by the Court. Had the offer of 18 June 2009 been accepted, the defendant would have been no worse off than he is as a result of the orders made, and the costs of today's hearing would have been avoided. As I have said, the offer did not fully comply with r 20.26, and accordingly, I am not bound to make an indemnity costs order. The circumstance that the plaintiff belatedly amended the claim for relief it now seeks, and until today pursued a claim for relief substantially in excess of that to which it was entitled, disinclines me from making an indemnity costs order. But ultimately, the letter of 18 June 2009, the offer it contained and the circumstance that, if accepted, the defendant would have been no worse off than has eventuated, and the costs of a hearing would not have been incurred, are powerful considerations in support of the plaintiff's claim for costs. 24 I therefore order that the defendant pay the plaintiff's costs. ********** 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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