Supreme Court New South Wales Medium Neutral Citation: Towers v Stolyar [2017] NSWSC 526 Hearing dates: 26 April 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Equity Before: Darke J Decision: Declaration made that easement for parking and garaging is valid and enforceable. Catchwords: REAL PROPERTY – easements – validity – easement confers rights of parking and garaging – easement confers rights to keep structure erected and replace structure – whether easement capable of being the subject matter of a grant – whether easement deprives the servient owner of proprietorship and possession – easement held to be valid – declaratory relief granted Legislation Cited: Conveyancing Act 1919 (NSW), s 88B Real Property Act 1900 (NSW) Cases Cited: Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20,605; [2002] NSWCA 389 Copeland v Greenhalf [1952] Ch 488 Harada v Registrar of Titles [1981] VR 743 Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 In Re Ellenborough Park [1956] Ch 131 Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] UKHL 42 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498; [2008] WASCA 180 Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 Weigall v Toman [2008] 1 Qd R 192; [2006] QSC 349 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 Category: Principal judgment Parties: Barrie Towers (First Plaintiff/Cross-Defendant) Celia Towers (Second Plaintiff/Cross-Defendant) Faina Stolyar (First Defendant/Cross-Claimant) Ian Stolyar (Second Defendant) Representation: Counsel: Mr J Giles SC with Mr H Grace (Plaintiffs/Cross-Defendants) Mr N C Kidd SC(Defendants/Cross-Claimant) Solicitors: TressCox Lawyers (Plaintiffs) Yates Beaggi Lawyers (Defendants/Cross-Claimant) File Number(s): 2016/233519 Publication restriction: None Judgment Introduction 1. The plaintiffs, Barrie Towers and Celia Towers, are the registered proprietors as joint tenants of Lot B in Deposited Plan 402700, known as 6A Dumaresq Road, Rose Bay. The plaintiffs have owned the property since 1970. The first defendant, Faina Stolyar, is the registered proprietor of Lot A in Deposited Plan 33652, known as 2C (formerly 4A) Dumaresq Road, Rose Bay. She acquired the property in May 2015. The second defendant, Ian Stolyar, is the son of the first defendant. He occupies the 2C Dumaresq Road property with his family. 2. The two properties share a common boundary. They both have frontages to the eastern shore of Rose Bay. 3. These proceedings concern a right of vehicle parking and garaging (referred to hereafter as "the Easement") which is the subject of Deposited Plan 643174 and associated instrument under s 88B of the Conveyancing Act 1919 (NSW). Deposited Plan 643174 was registered on 21 February 1990. 4. The plaintiffs claim that the defendants have wrongfully interfered with their rights under the Easement and threaten to continue to do so. They seek declaratory and injunctive relief accordingly. The defendants deny the allegations of wrongful interference. In addition, the defendants contend that the Easement is invalid because the rights it confers are so extensive that they amount to joint occupation of the first defendant's property and substantially deprive the first defendant of proprietorship and possession of her property as a whole, or at least that part of it which is contained within the area of the Easement. By her cross-claim, the first defendant seeks a declaration that the Easement is not valid or enforceable, and an injunction restraining the plaintiffs from parking within the area of the Easement. The Easement Area 1. The Easement covers a rectangular area approximately 3m wide and 16m long. The Easement area is adjacent to the eastern boundary of the first defendant's property, where it adjoins the property in Lot C in Deposited Plan 33652. That is to say, the Easement area forms a 3m wide strip which runs roughly north to south along the eastern boundary, being the boundary furthest from Rose Bay and closest to Dumaresq Road. Lot C in Deposited Plan 33652 lies between the first defendant's property and Dumaresq Road. 2. A single garage has been built on the Easement area. There is no door at the entry. There is room in front of that garage to park another vehicle. The plaintiffs have parked vehicles in the single garage and in the area in front of the garage for many years. A larger (double) garage has been built on the first defendant's land immediately to the west of the single garage, outside the Easement area. Since about mid-2015 the second defendant has used the double garage for parking. Some time ago a turntable was installed in the area in front of the double garage. The turntable has not been in working order for a considerable time, at least since the first defendant acquired her property. 3. Whilst the evidence is not entirely clear, it seems likely that the garages were built by the time Deposited Plan 643174 was registered on 21 February 1990. The first plaintiff gave evidence that he and his wife had used the single garage since 1988. 4. There is a doorway at the rear of the double garage that leads on to a walkway. The walkway passes behind the garages (including over part of the Easement area) to a stairway which is itself located in the Easement area. Those stairs descend to a path that provides pedestrian access to the house on the first defendant's property. 5. Vehicles parked in the Easement area can be driven to Dumaresq Road by way of a route which, for some of its length, traverses land not owned by the plaintiffs. The route utilises part of the Easement area itself, then traverses another part of the first defendant's property (an area in front of the double garage), and part of Lot A in Deposited Plan 402700 (known as 6 Dumaresq Road, Rose Bay), before reaching a narrow laneway (which is part of the plaintiffs' property) that leads to the road. 6. The plaintiffs' property has the benefit of various rights of carriageway which permit the plaintiffs and persons authorised by them to drive along that route. Those rights of carriageway were created on 24 July 1989 (nearly eight months prior to the creation of the Easement) upon the registration of Deposited Plan 642324. That Deposited Plan also created rights of carriageway for the benefit of the first defendant's property, which permit the first defendant and persons authorised by her to drive across part of the 6 Dumaresq Road property and along the plaintiffs' laneway to the road. The terms of the Easement 1. The right of vehicle parking and garaging which burdens Lot A in Deposited Plan 33652 and benefits Lot B in Deposited Plan 402700 is in the following terms: Full and free right for the person or body in whose favour this easement is created, and every person authorised by him or it, from time to time and at all times to stand, park and garage vehicles whether powered or unpowered and whether in an enclosed or partly enclosed garage or carport or otherwise on and upon the land herein indicated as the Servient Tenement and designated E on the plan herewith together with the right for the body or person in whose favour this easement is created and every person authorised by him or it, to keep closed any doors or gates on any garage, shed, carport or structure erected upon the Servient Tenement pursuant hereto together with the right to keep erected thereon or upon any part thereof any garage, shed or carport now presently standing thereon or to be erected thereon and to maintain in good repair any such garage, shed, carport or like structure and to replace any such garage, shed, carport or like structure and together with the right for the body or person in whose favour this easement is created and every person authorised by him or it, with any tools, implements, vehicles, machinery and materials, necessary for the purpose, to enter upon the Servient Tenement and to remain there for any reasonable time for the purpose of effecting any such repairs or replacement to or of any such garage, shed, carport or structure thereon and for any of the aforesaid purposes to open the soil of the Servient Tenement to such extent as may be necessary provided that the body or person in whose favour this easement is created and the persons authorised by him or it will take all reasonable precautions to ensure as little disturbance as possible to the surface of the Servient Tenement and will restore that surface as nearly as practicable to its original condition. Conflict concerning the Easement 1. In view of the manner in which the case was conducted, it is unnecessary to resolve the various conflicts in the evidence. It was agreed that there would be no cross-examination of the deponents (Mr Towers and Mr Stolyar). The Court was invited to proceed on the basis that each deponent advanced their genuinely held account, and any differences were the product of fallible human memory and were in any event of little or no moment. Nevertheless, something should be said about the nature of the conflict that has arisen. 2. The affidavits reveal that disagreement concerning the Easement began in early September 2015 when Mr Stolyar complained about a car (owned by the plaintiffs' daughter) that was parked in the area in front of the single garage. Mr Stolyar claimed that there was no right to park in that area. It seems that Mr Stolyar believed, based on what is now accepted as an erroneous interpretation of Deposited Plan 643174, that the right of vehicle parking and garaging did not extend over all of the 3m x 16m rectangular area. In particular, Mr Stolyar asserted that the right to park did not extend over that part of the area which is in front of the garage. 3. On 22 October 2015 the plaintiffs' then solicitor, Mr Dickinson, sent an email to Mr Boskovitz, solicitor, about the matter. Mr Dickinson's email stated, in effect, that the attached title searches and copies of documents concerning Deposited Plan 643174 made it clear that the right to park extended over the area in front of the garage. Mr Stolyar responded to Mr Dickinson's email later that day. Mr Stolyar maintained that there was no right to park in the area in front of the garage. 4. Mr Stolyar deposed that if a car is parked in that area it is not possible for him to perform a three-point turn in his car in the area in front of the double garage. He explained that a three-point turn in that location would allow a vehicle to be reversed into the double garage, thereby enabling the vehicle to exit to Dumaresq Road in a forward direction. Alternatively, a three-point turn in that location would allow a vehicle reversing out of the double garage to turn around and then exit to Dumaresq Road in a forward direction. Mr Stolyar said he would not be confident attempting to reverse a vehicle along the narrow laneway that leads to the road. 5. There was a further incident on 4 November 2015. On that day, the plaintiffs' house cleaners had parked in the area in front of the single garage. Mr Stolyar later parked his wife's car in the area in front of the double garage in which his own vehicle was parked. This meant that the cleaners were unable to drive away. The police were called. The police telephoned Mr Stolyar, who had by that time left the property to attend a meeting. Mr Stolyar then returned to the property and moved his wife's vehicle. He asked the cleaners not to park in front of the single garage again. 6. After that incident, Mr Stolyar read the documents that had been attached to Mr Dickinson's email of 22 October 2015. Mr Stolyar then formed the view that there was a right to park in the area in front of the single garage, and that this was the only area where parking was permitted. Accordingly, Mr Stolyar asserted that the plaintiffs had no right to park in the single garage itself. On 6 November 2015 Mr Stolyar sent an email to that effect to Mr Dickinson. The plaintiffs were requested to remove their car and stored belongings from the garage within 7 days. Mr Stolyar sent a further email to Mr Dickinson on 2 December 2015 in which it was reiterated that there was no right to park in the garage. A further month was given to the plaintiffs to cease parking in the garage. 7. There were various other incidents between the parties, but it is not necessary to refer to them, still less to resolve any of the factual disputes about them. 8. In January and February 2016 correspondence passed between the plaintiffs' current solicitors and Mr Stolyar. He maintained in that correspondence that the plaintiffs had no right to park in the single garage. Mr Stolyar further stated that the plaintiffs had no right to store goods on the property. He also complained that the plaintiffs had not kept the turntable in front of the double garage in working order. 9. In April 2016 the plaintiffs' solicitors sent a letter to the first defendant which attached a draft Statement of Claim. The proceedings were commenced in August 2016. 10. The parties made certain informal arrangements of an interim nature pending the determination by the Court of the issues between them. Overview of submissions 1. The defendants now accept that the Easement, if valid, would permit the plaintiffs and those authorised by them to park vehicles in the single garage and in the area in front of that garage. However, the defendants contend that the Easement is not valid or enforceable because it fails to satisfy the fourth condition for the creation of a valid easement laid down by Evershed MR in In Re Ellenborough Park [1956] Ch 131, namely, that the right be capable of forming the subject matter of a grant. In particular, the defendants submitted that the rights purportedly given by the Easement would amount to rights of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession, either of the Easement area itself, or the servient tenement as a whole. 2. The defendants contended that the rights purportedly conferred by the Easement extend to: 1. a right to stand and garage an unlimited number of vehicles on the whole of the easement strip indefinitely; 2. a right to erect a permanent garage, shed or structure of unlimited height on the whole or any part of the easement strip; and 3. a right to keep closed any doors or gates on such structure, which right must include a right to lock the doors or gates so as to prevent use or access by persons other than the plaintiffs or those authorised by them. 1. The defendants invoked the principles enunciated in Copeland v Greenhalf [1952] Ch 488 at 498 and Harada v Registrar of Titles [1981] VR 743 at 753, which were said to have been approved in New South Wales by three decisions of the Court of Appeal including in the dissenting judgment of McColl JA in White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243, and more recently in Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 (hereafter referred to as "Jea Holdings"). 2. The plaintiffs submitted that it was well-established that a right to park cars is capable of forming the subject matter of a grant of an easement (see, for example, the cases cited by Bathurst CJ and Beazley P in Jea Holdings (supra) at [36]). It was put that a right of garaging is of the same quality or character. It was further submitted that insofar as additional rights were conferred, they did not change the character or quality of the grant. 3. The plaintiffs took issue with the defendants' construction of the Easement. First, it was submitted that no right to erect buildings is given apart from the right to "replace" any garage, shed, carport or like structure, and that right does not allow the building of a structure that is larger than or different in character to the one that is replaced. Secondly, it was submitted that there is no right to lock any such structure so that the servient owner would be prevented from entry. 4. The plaintiffs referred to the tests referred to in Jea Holdings (supra) at [64] and contended that the rights given did not deprive the servient owner of reasonable use of the servient tenement, and were not inconsistent with the servient owner's proprietorship or possession of the servient tenement as a whole or the Easement area itself. Applicable principles 1. In Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20,605; [2002] NSWCA 389, Santow JA (with whom Mason P and Beazley JA agreed) said at [35]-[36]: The fourth condition from In Re Ellenborough Park requires that the right be capable of forming the subject matter of a grant. Evershed MR explained that the resolution of whether condition four is satisfied is to be answered by posing three cognate questions. First, whether the rights purported to be given are expressed in terms too wide and vague in character. Second, whether such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession. Third, whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit (In Re Ellenborough Park at 163-164). In the present case Bryson J held that the first and third of the cognate questions were adequately resolved in favour of the right satisfying condition four though that did not suffice: at [23] and [25]. In relation to that second question Bryson J held that the rights purportedly conferred by the fourteenth restriction on its own and in conjunction with the scheme of restrictions, deprived the title-holders to the burdened lots from any real proprietorship over the burdened land, such that the rights sought to be conferred on the farm managers were inconsistent with the proprietorship and possession by the servient owners: at [49]-[50]. In support for this conclusion Bryson J highlighted that although the servient owners own the vines, that is the uppermost limit of their rights of ownership. In contrast, the dominant owner has a plethora of rights, such as rights to: cultivate and harvest the vines; take and sell and the produce; prevent the titleholder from using the land for other agricultural purposes; to exclude others from the lot; and limit the recreational usage of the lot. Most significantly, the production and accumulation of profits from use of the land is wholly within the control of the dominant owner, with the servient owners having minimal capacity to exercise any control over the agricultural produce and economic use of the land: at [59]. In this regard reference was made to the fact that under the fourteenth restriction there were minimal rights reserved to the servient owners to hold the dominant owners accountable for the conduct of the commercial enterprise through the web of restrictions on the rights of the servient owners: at [52]. 1. His Honour continued at [45]: In relation to the fourth condition, it is necessary to assess the degree to which the rights conferred interfere with the servient owners' exclusive possession of the site. In Australia, Harada v Registrar of Titles [1981] VR 743 expressly followed Copeland v Greenhalf [1952] Ch 488 (and not the earlier inconsistent Wright v Macadam [1949] 2 KB 744 (CA)), in rejecting the easement claimed by the SEC in favour of an overhead power line transmitting electricity over the plaintiff's land. No pylon was located on the plaintiff's land and the Commission owned no land in the vicinity. Though these are distinguishing features, what is relevant here is the statement of principle by King J (at 753), applicable here, which emphasised that the rights sought to be acquired went much further than what were needed for SEC to enjoy its rights of power transmission: "the restriction on the owner not to build on the easement area and not to erect any structure thereon goes much further than a prohibition of interference with the enjoyment by the SEC of its rights. I think that if the rights the subject of the [alleged easement] were acquired the plaintiff would be left with very few rights over her property and could do little more with it than move over it and park cars on it. I think that the rights sought to be acquired by the SEC do not fall within the category of a common law easement. They would really amount to rights to joint user by the SEC of the plaintiff's land." 1. Applying those principles, his Honour upheld the decision of Bryson J that an "easement for vineyard" was invalid. Santow JA stated at [46] that the purported easement: applies to a very significant portion of the lot. It leaves the owner with merely his rights of residual recreational activities that are totally subordinated to the over-arching rights of Clos Farming. When [the easement] is placed in its context of those further restrictions that apply to the lot in total, the servient owner's rights are so attenuated as no longer to meet the description of exclusive possession. 1. The judgment of Santow JA in Clos Farming Estate Pty Ltd v Easton (supra) was considered by Bathurst CJ and Beazley P in Jea Holdings (supra) at [39]-[45] and [61]-[62] as part of a review of the authorities (including the House of Lords decision in Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] UKHL 42). 2. At [63]-[64] Bathurst CJ and Beazley P stated: Santow JA's conclusion, at [46], is clearly an abbreviated or summary form of what his Honour had stated at [36]. Having said that, it is apparent from his Honour's reference, at [45], to Copeland v Greenhalf and its application in Australia in Harada v Registrar of Titles [1981] VR 743 that the extent of a restriction on use of the servient tenement may mean that no easement is created. Harada v Registrar of Titles concerned a claim for easement by an electricity company in favour of an overhead power line transmitting electricity over the plaintiff's land. King J, at 753, had emphasised that the restriction on the owner of the servient tenement not to build on the easement went further than a prohibition of interference with the enjoyment of the claimed rights of the electricity company. King J stated that, if the rights the subject of an alleged easement meant the owner of the servient tenement would be left with very few rights over that property, the rights claimed would not constitute a common law easement but rather were really rights of joint user. Notwithstanding the reference to Copeland v Greenhalf in Santow JA's judgment, we do not consider that Clos Farming Estates stands only for the proposition that the owner of the servient tenement must have reasonable use of the servient tenement in its entirety. That is a relevant consideration and, in a given case may be decisive, but it is also relevant to consider the extent of the interference with the rights of ownership on that part of the servient tenement actually affected by the easement. That is apparent from the bolded portion of the summary from Bryson J's judgment to which reference is made above. It is also consistent, in our view, with the approach taken in Harada v Registrar of Titles. It may be that if the interference with possession amounts to an effective interference with ownership rights, that may be sufficient to deny the validity of an easement. However, that is not this case. In our opinion, Windeyer AJ was correct in his conclusion, at [39] and [40], that Jea Holdings "enjoys a very substantial use of the land". It not only has the right to use the servient tenement for parking for itself, its servants, agents and invitees, it could be added for matters such as advertising on fencing and the like, and it has the valuable right to use both the airspace above and the subterranean land below. It also follows that, as his Honour also indicated and for the reasons he gave, the Covenant would be a valid easement if the correct approach was that taken in Moncrieff. (The reference to the bolded portion of the summary of Bryson J's judgment is to "the rights sought to be conferred on the farm managers were inconsistent with the proprietorship and possession by the servient owners".) 1. Jea Holdings (supra) concerned an easement for parking that extended over the entirety of the servient tenement. It was accepted by the parties in that case that a right to park a car was a right capable of forming the subject matter of the grant of an easement (see at [36] and [149]). The cases referred to at [36] of the joint judgment amply support the proposition, which was not doubted by the Court. Those cases include the decision of the Court of Appeal in Western Australia in Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498; [2008] WASCA 180 where Buss JA (with whom McLure JA and Murray AJA agreed) reviewed the authorities at [58]-[64]. 2. In the present case, both sides seemed to accept that the Court should apply the test (or tests) as formulated in Jea Holdings (supra) at [64]. I propose to follow that approach. 3. It is first necessary to construe the Easement to ascertain the nature and extent of the rights it purports to confer. Construction of the Easement 1. The Easement, which is embodied in an instrument registered in respect of land under the Real Property Act 1900 (NSW), must be construed in accordance with the principles enunciated in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45. That is to say, the task of construction must be undertaken by reference to the terms of the instrument itself, and evidence of the physical characteristics of the land concerned (see Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [15]; Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15]-[18]). I have referred to the salient physical characteristics of the land at [5] to [8] above. 2. In approaching the task of construction it is important to read the language of the instrument as a whole. The terms of the Easement are contained in a single, lengthy sentence. It is apparent that a number of rights, or groups of rights, are intended to be conferred, and that such rights, or groups of rights, are to be enjoyed "together with" the other rights conferred. 3. First, there are rights "from time to time and at all times to stand, park and garage vehicles…whether in an enclosed or partly enclosed garage or carport or otherwise on and upon the land herein indicated as the Servient Tenement and designated E on the plan herewith". 4. Secondly, there are rights to "keep closed any doors or gates on any garage, shed, carport or structure erected upon the Servient Tenement pursuant hereto". 5. Thirdly, there are rights to "keep erected…any garage, shed or carport now presently standing thereon or to be erected thereon and to maintain in good repair any such garage, shed, carport or like structure and to replace any such garage, shed, carport or like structure". 6. Fourthly, there are rights to "enter upon the Servient Tenement and to remain there for any reasonable time for the purpose of effecting any such repairs or replacement to or of any such garage, shed, carport or structure thereon and for any of the aforesaid purposes to open the soil of the Servient Tenement to such extent as may be necessary", subject to the terms of the proviso which follows. 7. The first group of rights described above, being the rights to stand, park and garage vehicles, is unlimited as to time. There is no express limit on the number (or types) of vehicles that may be parked. Those matters are constrained only by the physical attributes of the Easement area, including any structures built upon it. The defendants' first submission concerning the extent of the easement may thus be accepted. 8. However, I do not accept the defendants' submission that the terms of the Easement confer a right to erect a permanent garage, shed or structure of unlimited height on the whole or any part of the Easement area. In my opinion, the only right given to erect a new structure is conferred by the right of replacement which falls within the third group of rights described above. 9. That group of rights seems to me to be essentially concerned with keeping or maintaining the existence or standard of any car parking structures that are built upon the Easement area. The owner of the dominant tenement is given rights to "keep erected", "maintain in good repair" and "replace" any garage, shed, carport or other like structure that stands (whether at the time of grant or subsequently) on the Easement area. I do not read the words "keep erected" as conferring a right to build. Rather, it seems to me that, read in its context and as part of the grant as a whole, the expression should be read as conferring a right to maintain the existence of any car parking structures that are built on the Easement area, including by exercising the further rights to maintain in good repair, and to replace. It is noteworthy that the fourth group of rights described above, which permits the undertaking of building works, is restricted to the effecting of "any such repairs or replacement to or of" any such structures. 10. Moreover, the notion of replacing any garage, shed, carport or like structure seems to me to be restricted to the building of a new structure of the same character to replace the old. (There is a concomitant right to demolish the structure that is to be replaced.) I agree with the submission of the plaintiffs that there is no conferral of a right to build a structure that is larger than, or of a character that differs from, the structure that is replaced. 11. In essence, powers are conferred on the dominant owner to enable that owner to keep or maintain the existence of car parking structures of the character and standard of those actually erected by the servient owner. At its highest, the right to "keep erected" might permit the dominant owner to prevent the servient owner from taking steps to cause such structures to cease to exist. 12. I am also unable to accept the defendants' submission that the terms of the Easement confer a right to lock doors or gates to car parking structures so as to prevent use of or access to the structures. No such right is expressly conferred, and I do not think that it is necessarily implied by the right to keep doors or gates closed. In my view, the right to keep doors or gates closed enables the dominant owner to insist that any doors or gates are kept in a closed position when access to or from the structure (at the point of such door or gate) is not being exercised. 13. However, in my opinion the dominant owner is not entitled to prevent the servient owner from exercising rights of access to or from structures erected on the Easement area. In the absence of clear words giving the dominant owner the right to keep doors or gates locked so as to exclude others (including the servient owner), I would not construe the right to keep doors or gates closed as including any such right of exclusion. Accordingly, if a door or gate would (or might) become locked when closed, the servient owner would have the right to unlock it by means of a key or other device. The dominant owner would not be entitled to withhold any such key or device from the servient owner. Validity of the Easement 1. In determining the question of validity of the Easement it is necessary to consider the matters identified as relevant by the Court of Appeal in Jea Holdings (supra) at [64]. It is thus necessary to consider the extent of interference with the servient owner's rights of ownership on that part of the servient tenement actually affected by the Easement, and on the servient tenement as a whole (see also Clos Farming Estates Pty Ltd v Easton (supra) at [35]-[36]). Included in that analysis is a consideration of whether the servient owner retains reasonable use of the servient tenement in its entirety, and an assessment of the degree to which the rights conferred by the Easement interfere with the servient owner's exclusive possession of the land (see Clos Farming Estates Pty Ltd v Easton (supra) at [45]-[46]). Questions of degree and evaluation are involved (see Jea Holdings (supra) at [150]). 2. The terms of the Easement confer extensive parking rights over the Easement area. As noted earlier, there is no express limit on the number of vehicles that may be parked in the Easement area, although the physical attributes of the area, including any structures built upon it, impose practical constraints. The location of the single garage, for example, effectively restricts parking to the garage itself and the area in front of it. The area at the rear of the garage (which is used by the servient owner to obtain access from the double garage to the house on the servient tenement) is not accessible for parking. Moreover, the dominant owners do not in my view have any right to build a new structure in that area. Neither do they have any right to build a new structure in the area in front of the single garage. 3. Plainly, the rights conferred by the Easement mean that the ability of the servient owner to use the single garage and the area in front of it is very significantly reduced. Those areas, even when not actually being used by the dominant owner for parking, must be kept available for that use. Nonetheless, the Easement does not amount to a grant to the dominant owner of exclusive possession of those areas. The servient owner may make use of those areas to the extent that it does not unreasonably interfere with the dominant owner's rights. There is evidence, for example, that there is space in the single garage for some storage, consistent with the garage being used for parking. The servient owner is entitled to make use of that space. As I have found, the dominant owner does not have the right to exclude the servient owner from the single garage. 4. The Easement confers rights to use the surface of the Easement area (including any structures built upon it). There is only a limited right to disturb the surface for the purposes of effecting repairs to or replacement of structures. The servient owner otherwise retains its rights in respect of the sub-surface. Subject to not infringing the dominant owner's rights over the Easement area, including its right to "keep erected" car parking structures on the Easement area, the servient owner retains its rights to build structures upon, under or above the Easement area. It may be possible, for example, to increase the height of the single garage to create additional storage space. In any case, the servient owner remains entitled to make use of the roof of the single garage. A satellite dish, or solar panels, could be placed there, for instance. 5. In my view, the rights which are conferred upon the dominant owner by the Easement are not of such magnitude that they substantially deprive the servient owner of its rights of proprietorship or possession in respect of the Easement area. They do not amount to rights of joint occupation. The extent of interference with the servient owner's rights of ownership on the Easement area itself is not sufficient to warrant a conclusion that the Easement is invalid. The Easement in the present case, whilst extensive, does not give exclusive use and enjoyment of the Easement area to the dominant owner. As noted earlier, easements for the parking of cars have been held to be valid grants. In Weigall v Toman [2006] 1 Qd R 192; [2006] QSC 349 (one of the cases cited in Jea Holdings (supra) at [36]), an easement which provided for the exclusive use of a garage and right to rebuild (and extend the length of) the garage, was upheld, albeit by reference to the effect of the easement on the servient tenement as a whole. The Easement in the present case does not go as far. It is not so extensive as to be regarded as really amounting to a claim to a "joint user" of the Easement area in the sense in which that expression was used in Copeland v Greenhalf (supra) at 498 and Harada v Registrar of Titles (supra) at 753. I am unable to accept the defendants' submission that the Easement is virtually a claim to possession of the Easement area. 6. For similar reasons, the extent of interference with the servient owner's rights of ownership of the servient tenement as a whole does not warrant the conclusion that the Easement is invalid. 7. It is also my view that, despite the rights conferred by the Easement, the servient owner retains reasonable use of the servient tenement in its entirety. The defendants submitted that the easement prevents reasonable use of the servient tenement because: 1. it prevents the carrying out of three-point turns to facilitate driving along the narrow laneway in a forward direction; and 2. it (arguably) permits the dominant owner to erect a structure over the stairs at the rear of the Easement area, and thereby prevent the servient owner from having reasonable access between the double garage and the house. 1. As to (b), I have concluded that the Easement does not confer such a right. 2. As to (a), it is true that if a vehicle is parked in the area in front of the single garage, the ability to perform a three-point turn in a vehicle which is on the way into or on the way out of the double garage may be precluded. The only evidence on this issue was Mr Stolyar's testimony to the effect that it was not possible for him to perform a three-point turn in his Mercedes CLS 500 without driving across (to an unspecified extent) the area immediately in front of the single garage. It is not possible to assess the extent to which such impossibility is a function of the size or type of vehicle involved. In any event, there is evidence (in the form of survey plans and photographs) that the area in front of the double garage is large enough to house a turntable of a size which could be used to enable cars (even if not cars of all sizes) to be turned around without the need to perform a three-point turn. 3. I am in no doubt that the servient tenement as a whole is able to be reasonably used notwithstanding the extent of the rights conferred by the Easement. The land contains a two-storey house, gardens and a pool in close proximity to Rose Bay. 4. For the above reasons, the defendants' challenge to the validity of the Easement fails. The Easement satisfies the fourth condition laid down in In Re Ellenborough Park (supra). The extent of interference with the ownership rights of the servient owner is not such as to warrant the conclusion that the Easement is invalid. A declaration will be made to the effect that the Easement is valid and enforceable. The first defendant's cross-claim will be dismissed. 5. In closing submissions, Senior Counsel for the plaintiffs did not firmly press for injunctive relief. That position reflected the manner in which the case was conducted, including an acceptance that Mr Stolyar was proceeding on a mistaken basis, and an assumption that he would abide by whatever determination was made by the Court. It was accepted that the need for an injunction was thus removed somewhat. In these circumstances the Court will not, at least at this stage, proceed to consider whether injunctive relief should be given arising out of Mr Stolyar's conduct. 6. The Court will order that the defendants pay the plaintiffs' costs of the proceedings. ********** Amendments 17 May 2017 - Judgment Coversheet amended. Defendants' legal representation incorrect. 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. Decision last updated: 17 May 2017