New South Wales Supreme Court CITATION : Panfili v Lawless [2010] NSWSC 79 HEARING DATE(S) : 02-04 February 2010 JUDGMENT DATE : 4 February 2010 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 4 February 2010 1. The defendants and each of them, at their expense, promptly do all things necessary to be done on their part: (a) to remove or cause to be removed: (i) the three trees at the eastern extremity of the right of carriageway on lot C in DP 416799 and associated garden bed and retaining walls; and (ii) the most easterly six trees of the plantings at the eastern end of the Gladstone Avenue frontage to the west of the current gap in such plantings, and the associated garden bed and retaining wall at the position of those trees; and (b) reduce the level of the driveway on the said lot C right of carriageway to such extent as may be necessary to make it readily accessible by vehicles travelling to or from the right of carriageway on lot B in DP 416799, or using the said lot C right of carriageway to manoeuvre into the north-south extension of the said lot B right of carriageway. DECISION : 2. Reserve the proceedings for further consideration and grant liberty to apply on reasonable notice. 3. Order that the claims for relief in the summons and the statement of claim be otherwise dismissed. 4. Order that the cross-claim dismissed. 5. The exhibits may be returned after 28 days. 6. These orders may be entered forthwith. 7. Order that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis. CATCHWORDS : REAL PROPERTY – easements – construction of right of carriageway – reciprocal rights of carriageway granted over adjoining driveways – whether works and improvements on servient tenement resulted in substantial interference with right of carriageway – owner of dominant tenement entitled to removal of obstruction LEGISLATION CITED : Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) CATEGORY : Principal judgment Sertari Pty Limited v Nirimba Developments Pty Ltd [2007] NSWCA 324 Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528 CASES CITED : Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579 Berryman v Sonnenschein [2008] NSWSC 213 Lehane v Jones (1982) NSW ConvR 55,079 Plaintiff: Diana Nicoletta Panfili PARTIES : 1st Defendant: Bryan Xavier Lawless 2nd Defendant: Ann Louise Lawless FILE NUMBER(S) : SC 2008/281910 COUNSEL : Plaintiff: V R Gray with F F F Salama Defendants: A P Cheshire SOLICITORS : Plaintiff: Gye Associates Defendants: Goldrick Farrell Mullan IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WHITE J Thursday, 4 February 2010 2008/281910 Diana Nicoletta Panfili v Bryan Xavier Lawless & Anor JUDGMENT 1 HIS HONOUR: In this case, the plaintiff complains that the defendants have substantially interfered with her right to use a right of carriageway over the defendants' land. The case concerns adjoining driveways on residential properties at Warrawee in Sydney. 2 The plaintiff owns 8 Gladstone Avenue, Warrawee, being land in lot B in deposited plan 416799. The defendants own 6 Gladstone Avenue, being land in lot C in DP 416799. 3 Each lot has a relatively narrow frontage to Gladstone Avenue. Lot B is a battleaxe block. Each lot has the benefit of a right of carriageway over the other lot's access strip to Gladstone Avenue. The location of lots B and C and the adjoining rights of carriageway are shown in the plan below. 4 The plaintiff purchased lot B in January 2003. The defendants purchased lot C in November 2005. At that time, the only vehicular access to Gladstone Avenue was along a driveway on lot B over which the defendants have a right of way. At that time, there was no vehicular access to the street along lot C because a plumbago hedge was planted near the street and there was a steep rise in the last few metres at street level. 5 Further away from street level and closer to the house on lot C, the right of carriageway on lot C was level and was used from time to time for parking and, on occasions, as I find, for the manoeuvring of large trucks to the gates on lot B which are at the southern end of the right of carriageway over lot B where it turns to the south. 6 Lots B and C were created by a subdivision in 1960 of what was then lot 14 in DP 7385 into three lots. The plan of subdivision showed the sites of the proposed rights of way over parts of lots B and C. 7 The easements were created by a transfer in November 1976 by the then owners of lots B and C of lot B to the plaintiff's predecessor in title. The memorandum of transfer relevantly provided that the transferors granted to the transferee "As appurtenant to the land comprised in LOT B in Deposited Plan No. 416799 ... a Right of Carriageway within the meaning given to those words by section 181A of the Conveyancing Act 1919 as amended, over that part of the 'site of proposed Right of Way' within LOT C as shown in Deposited Plan No. 416799". The land benefited by that easement was lot B. The land burdened was lot C. 8 The memorandum of transfer also provided that the transferors reserved out of lot B: " As appurtenant to the land comprised in LOT C in Deposited Plan No. 416799 being part of the land comprised in Certificate of Title Volume 2469 Folio 36 a Right of Carriageway within the meaning given to those words by Section 181A of the Conveyancing Act 1919 as amended, over that part of the 'site of proposed Right of Way' within LOT B as shown in Deposited Plan No. 416799. " The land benefited by that easement was lot C and the land burdened was lot B. 9 Section 181A of the Conveyancing Act 1919 (NSW) provided that the instrument creating a right of carriageway had the effect as if it were in the terms of Pt 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 ." 10 Although there was no direct evidence as to the condition of lot C in 1976, it is clear that at that time there was no formed driveway along lot C to Gladstone Avenue. Whether or not there were then shrubs or a hedge at Gladstone Avenue which obstructed access, the natural gradient of the land in the last few metres before the street was such as to make the land, in its then state, unsuitable for vehicular access by an ordinary sedan. 11 A deal of evidence was given and contested about the purposes for which cars or trucks used the right of carriageway on lot C prior to the defendants' constructing a driveway and associated works over the right of carriageway on lot C. 12 I do not regard that evidence as relevant to the construction of the easement. It had some relevance in testing the plaintiff's credit in relation to her assertions as to the difficulties of large trucks using the right of carriageway on lot B. But as will appear later in these reasons, that issue was resolved by observations taken on a view. 13 So far as the construction of the right of carriageway is concerned, the Court of Appeal said in Sertari Pty Limited v Nirimba Developments Pty Ltd [2007] NSWCA 324, following the High Court's decision in Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528: " [14] The appellant relied on evidence of extrinsic circumstances, including the physical characteristics of the servient and dominant tenements, and the activities being conducted on the dominant tenement at the time of the grant, to support a narrower construction. In particular it relied on the genesis and purpose of the grant evidenced in the report to the Council of its chief town planner of 4 July 1989 which it acted upon when granting the development consent of 18 August that year. [15] Windeyer J rejected the town planner's report and the terms of the development consent as irrelevant to the construction of the grant. He also held that the physical characteristics of the tenements and the activities being conducted on the dominant tenement at the time of the grant could not cut down its plain words. The appellant again sought to rely on this extrinsic material but the decision in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 has since confirmed that extrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900: paras [5], [37]–[41]. [16] This Court is therefore limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements. These provide no basis for reading down the clear and unqualified words of the grant. The grant was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the dominant tenement with which the right was capable of enjoyment, and persons authorised by them. " 14 Nonetheless, I should deal with the evidence that was given on the topic of the use made by vehicles of lot C prior to the defendants' carrying out works in October 2007 and 2008. 15 Prior to those times, the eastern portion of the right of carriageway over lot C was used from time to time by the plaintiff or her visitors or tradesmen for parking and was used when the plaintiff received deliveries from large trucks. 16 I accept that, from time to time, such vehicles passed over the boundary between lots B and C into the right of carriageway in lot C before making a right-hand turn on the carriageway on lot B to where there are the double gates at the terminus of the right of carriageway. 17 The plaintiff is a garden landscaping consultant. She deposed that, as part of her consultancy, plants and garden materials would be delivered to her property by truck about once every eight weeks. There was an example of such a delivery in December last year. The photograph shows a large rigid bodied truck which, the plaintiff said, was employed in dropping off a large garden elm and 20 bales of loosened mulch for her garden. 18 I accept that there were occasions, from time to time, when the plaintiff took delivery of materials from such large-bodied vehicles and that, at those times, the vehicles would pass and repass over parts of the right of carriageway on lot C to gain access to her gates. 19 There was, at that time, a gravel turning bay at the eastern end of the right of carriageway over lot C. The plaintiff deposed that cars as well as trucks crossed the boundary between lots B and C when driving down the driveway on lot B. There is no obvious reason as to why cars should have done so, except to park on lot C, or if the right of carriageway on lot B was obstructed by a parked car. There is a formed gravel driveway on lot B and an ordinary car would have no trouble making the right-hand turn at the eastern end of the drive remaining wholly on that driveway. 20 In cross-examination, the plaintiff accepted that one of the manoeuvres she described in her affidavit as being made by large trucks was rarely, if ever, carried out. Nonetheless, it was clear, at the inspection of the site, that large trucks would have crossed the boundary of lot C to make deliveries adjacent to the gates. 21 The critical question is not whether such trucks used part of the right of carriageway on lot C prior to the defendants constructing their driveway and associated works. The critical questions are whether the right of carriageway over lot C permits the passage of such trucks, and, if so, whether the works constructed or part of them - and, if so, which part - substantially interferes with such passage. 22 By at least 2007, all parties had in mind the creation of separate driveways and the extinguishment of the reciprocal rights of carriageway. The plaintiff expressed concern to the defendants about damage to the driveway on her lot by the passage of the defendants' vehicles. The defendants were under no obligation to construct a driveway over lot C of Gladstone Avenue, but they were prepared to do so in accordance with the plaintiff's wishes. But there were difficulties in implementing such a plan. 23 The defendants proposed constructing a driveway over the right of carriageway on their land and also constructing a fence along the boundary between the two lots and extinguishing the easements. In principle, the plaintiff was amenable to this proposal. 24 When the parties corresponded about this topic in March and April 2008, the plaintiff did not object on the ground that, if implemented, the proposal would mean that trucks coming down her driveway would have insufficient room to turn towards the gates. But she had not taken a final position. 25 As I have said, the question of whether the works constructed by the defendants substantially affect the use of the driveway on lot B is resolved by the inspection of the property. 26 Relations between the parties were tense. The plaintiff insisted that negotiations be conducted between solicitors. 27 On 27 June 2008, through her solicitor, the plaintiff proposed a boundary adjustment. She proposed that the defendants transfer to her a metre wide strip of their land where it abutted the right of carriageway on lot B on the eastern boundary near the gates. This would increase the width of lot B in the vicinity of the gates where the right of carriageway is at its narrowest. The plaintiff proposed that, in return, she would transfer the same area of land to the defendants at street level to widen the frontage to the driveway on lot C. The access to the driveway on lot C is affected by a large gum tree on the street whose roots reduce access to that driveway. 28 The defendants did not agree to a boundary adjustment. In October 2008, the defendants took matters into their own hands. About a year earlier they had arranged for delivery of soil to reduce the gradient from their property to the street. In October 2008 they constructed a driveway on their property. 29 If access by the plaintiff to the driveway so constructed on lot C were not obstructed, and the works did not interfere with the plaintiff's using her own driveway on lot B, there could be no complaint about the defendants' building a driveway. But at the same time the defendants installed a dividing line of trees on their side of the boundary. These were planted in beds. The level of the drive on lot C was raised to provide a more gradual slope to the street. 30 The raising of the level of the land on lot C on the right of carriageway and the planting of the trees and the installation of the garden beds, supported by retaining walls, meant that it became impossible for vehicles to traverse the boundary. 31 At the eastern extremity of their drive, the defendants installed three trees and a garden bed of a length of 1.96 metres. They left a gap of approximately 3.9 metres between the garden beds on the boundary between lots B and C. That gap is adequate to allow a normal car to traverse onto either driveway. The present position is shown on the plan set out above. 32 The present position is that the plaintiff or anyone visiting her could drive a normal car down the driveway on lot B to the double gates on the plaintiff's property without difficulty and without crossing onto lot C. Such a driver could also drive a normal car down the driveway on lot C, over which the plaintiff has a right of carriageway, and turn right through the gap onto the carriageway on lot B at the foot of the drive, near the vicinity of the gates. 33 I would infer that articulated vehicles, for example, a car carrying a boat trailer, or a caravan, could also make such manoeuvres. But a large rigid bodied truck, such as a furniture van, could not do so. That is because of the garden beds and trees located on the boundary of the right of carriageway between lots B and C east of the gap and the trees and associated garden bed on the lower portion of the boundary west of the gap. 34 This was established by a view at which a large truck was present and which attempted various manoeuvres. The truck was 2.48 metres wide and 9.18 metres long. The observations on that view are evidence (Evidence Act 1995 (NSW), s 54). 35 It was very difficult for the truck to gain access to the driveway on lot C because of the gum tree on the northern boundary and an electricity pole which stands 1.5 metres to the north of the boundary. On that being eventually negotiated, it was impossible for the truck to turn from the driveway of lot C into the driveway on lot B because of the garden bed and trees. 36 When the truck came down the driveway of lot B, there was not enough room to make the right-hand turn at the foot of the drive. To make such a turn, a truck of that size would need to veer left onto lot C before swinging right. The safest way of exiting would be for such a truck to reverse on the right of carriageway on lot C and then move forwards up the driveway on lot B. 37 Those manoeuvres are currently impossible. For such a large truck to have access along the full length of the right of carriageway of lot B to the gates, it is necessary to remove the furthest eastern garden bed of 1.96 metres and to remove between five to eight trees and the associated garden bed on the western side of the gap, a distance of between about four to six and a half metres. 38 In her summons, the plaintiff sought orders that the defendants remove all of the works that they constructed in 2008 for their driveway and associated garden beds and trees. 39 Initially, at the hearing, the plaintiff contended that because the elevated driveway on lot C and the dividing bed and trees prevented access across all points of the boundary, and prevented access by a car straddling the boundary, all of the work should be removed. 40 In final submissions that claim was not maintained and, in my view, rightly so. The garden bed and trees erected on the boundary act as a fence. In Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579, Brereton J reviewed the authorities on whether a servient owner can erect a fence along the boundary contiguous to a dominant tenant. The authorities establish that, subject to the express terms of the easement, the owner of the servient tenement can erect such a fence, provided that the dominant owner is provided reasonable access to the right of way. This access might change from time to time. The reason, that, prima facie, a dominant owner is not entitled to access at all points along the boundary is because the dominant owner's right is only to such use of the right of way as is reasonable, and only a substantial interference with the easement is actionable. I do not consider that Westfield Management Limited v Perpetual Trustee Co Limited affects the analysis of the authorities made by Brereton J in Trewin v Felton. Those authorities are all directed to the proper construction of rights of way, guided by these principles (although compare Berryman v Sonnenschein [2008] NSWSC 213 at [25]). 41 In final submissions, the plaintiff sought orders for removal of the three trees at the eastern end of the boundary and associated bed and a further eight trees and associated bed moving up the driveway and the levelling of the gradient between the driveways. Orders of substantially that kind are appropriate if, upon the proper construction of the right of way, they permit the owner of lot B to bring large rigid-bodied trucks over the carriageway on lot C to gain access to the gates on lot B. 42 Mr Cheshire, for the defendants, disclaimed any argument that the right to "go, pass and repass" over lot C did not include the right to turn or manoeuvre vehicles on lot C to gain access to the driveway on lot B. (See Berryman v Sonnenschein and Lehane v Jones (1982) NSW ConvR 55,079.) He submitted that, having regard to the circumstances as they were when the right of carriageway over lot C was created, the right should be construed as not extending to the bringing of such large vehicles over the carriageway on lot C to gain access to the gates on lot B. 43 There is nothing in the language of the easement which limits the nature of the vehicles which are to be permitted to go, pass and repass on the carriageway over lot C to gain access to lot B. There is nothing in the instrument or the deposited plan creating the easement from which such an implication, as contended for by the defendants, can be made. 44 To the contrary, the fact that both owners of lots B and C would have the right to use appurtenant carriageways of a combined width of about 20 metres, implies no limitation on the size of the vehicles permitted to use the rights of way. Nor is there any such implication, from such evidence as there is, as to the physical condition of the land when the easements were granted. 45 So far as appears, there was then no inhibition on a large truck descending the driveway on lot B and turning onto the right of carriageway on lot C to complete a turn, or reversing out by crossing over the carriageway on lot C. In any event, it would be open to the owner of lot B to carry out necessary works to create a driveway to the street along the right of carriageway on lot C thereby creating a driveway of a combined width of approximately 12 metres. 46 It is not an unreasonable or unforeseen use of the right of carriageway on lot C that it be used to assist access for the full length of the right of carriageway on lot B of large trucks, such as furniture vans, or building suppliers, or concrete pourers, on what were then undeveloped residential sites. 47 As I understand the defendants' argument, it was that, when the easements were created, the only access to the street was along the right of carriageway on lot B. So much can be accepted. The defendants contended that it should be inferred that the reason a right of carriageway was created over lot C was that if the owners of lot C constructed their own driveway to the street at some time in the future, it would be unfair if there were not reciprocal rights of way. They submitted that the right of carriageway over lot C, which then had no formed driveway, was created to afford the adjoining owners reciprocal rights to assist in their adjusting their positions when the owner of lot C constructed a driveway on lot C, with a view to each having his or her separate driveway. 48 This is wholly speculative and is unsubstantiated. But if correct, it would say nothing about what are the rights of each owner in exercising the right of carriageway over the other's lot before any agreement were made for the extinguishment of the rights of way. 49 The possibility - and it is no more than that - that this may have been in the mind of the subdividing owner in 1976, cannot control the construction of the grant so as impliedly to limit the size of the vehicles which can use the right of way to such vehicles as could negotiate separate driveways. 50 In short, the argument assumes that reciprocal rights of carriageway were created with a view to their later extinguishment on the construction of a driveway over lot C. There is no evidence to support that, but even if that were the case, it says nothing about the extent of the rights each owner has prior to such extinguishment. 51 In my view, it is not an excessive use by the plaintiff of the right of carriageway over lot C for the right to be used to assist the passage of large rigid-bodied trucks to gain access to lot B along the full length of the right of carriageway over lot B. That right has been obstructed by part of the works erected by the defendants in 2008. 52 The plaintiff is entitled to an order for the removal of that obstruction so that vehicles can cross between lots B and C. This will also require provision of a smooth slope so that vehicles can cross. 53 Having regard to the observations made on the view, I do not think it necessary for the defendants to remove more than six of the trees closest to the western edge of the gap and associated garden bed as well as the three trees and garden bed east of the gap. No submissions were made as to whether such work will require council approval. If it does, the defendants will be required to do all things necessary to obtain that approval. 54 In case any issue arises about the implementation of the orders I propose to make, I will reserve the proceedings for further consideration and grant liberty to apply. 55 A good deal of evidence was given as to the suitability of the Leylandii trees planted to create what is intended to be a hedge. The plaintiff contended that the trees were likely to grow to such a height and girth that, in the future, they will obstruct access along each driveway. 56 As the plaintiff does not seek orders for the removal of the trees at the upper end of the driveway and as the trees at the lower end must be removed because they currently obstruct reasonable use of the right of way, it is unnecessary to consider this issue. 57 The defendants filed a cross-claim seeking orders under s 89 of the Conveyancing Act for extinguishment or modification of the easement over lot C. At the conclusion of the evidence that claim was withdrawn. 58 For these reasons, I make the following orders: 1. The defendants and each of them, at their expense, promptly do all things necessary to be done on their part: (a) to remove or cause to be removed: (i) the three trees at the eastern extremity of the right of carriageway on lot C in DP 416799 and associated garden bed and retaining walls; and (ii) the most easterly six trees of the plantings at the eastern end of the Gladstone Avenue frontage to the west of the current gap in such plantings, and the associated garden bed and retaining wall at the position of those trees; and (b) reduce the level of the driveway on the said lot C right of carriageway to such extent as may be necessary to make it readily accessible by vehicles travelling to or from the right of carriageway on lot B in DP 416799, or using the said lot C right of carriageway to manoeuvre into the north-south extension of the said lot B right of carriageway. 2. Reserve the proceedings for further consideration and grant liberty to apply on reasonable notice. 3. Order that the claims for relief in the summons and the statement of claim be otherwise dismissed. 4. Order that the cross-claim dismissed. 5. The exhibits may be returned after 28 days. 6. These orders may be entered forthwith. [The parties addressed on costs.] 59 I do not consider that this is an appropriate case either for indemnity costs or for a reduction of costs payable to the plaintiff. I order that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis. 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.