Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Stolyar v Towers [2018] NSWCA 6 Hearing dates: 12 December 2017 Decision date: 05 February 2018 Before: Gleeson JA at [1] Simpson JA at [85] White JA at [86] Decision: (1) To the extent necessary, grant leave to appeal. (2) Appeal dismissed. (3) Appellants to pay the respondents' costs. Catchwords: REAL PROPERTY – easements – validity of right of vehicle parking and garaging – whether use of easement area amounts to joint occupation of the easement area - degree of interference with area actually affected by easement or the whole of the servient land – whether right of vehicle parking and garaging substantially deprived servient owner of rights of proprietorship or possession of servient land – whether servient owner demonstrated that motor vehicles could not be turned around in the driveway without encroaching upon the easement area. Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 89 Supreme Court Act 1970 (NSW), ss 75A(10), 101(2)(r)(i) Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.52 Cases Cited: Batchelor v Marlow [2003] 1 WLR 764 Clos Farming Estates Pty Ltd (Receivers and Managers Appointed) v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845 Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605 Harada v Registrar of Titles [1981] VR 743 Lolakis v Konitsas [2002] NSWSC 889 London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992) 1 WLR 1278 Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 Moncrieff and Anor v Jamieson and Ors [2007] UKHL 42; 1 WLR 2620 Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202 Queanbeyan Leagues Club Ltd v Poldune (1996) 7 BPR 15,078 Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261 Re Cook [1964] VR 808 Re Ellenborough Park [1956] Ch 131 Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 S.S. & M. Ceramics Pty Ltd v. Kin [1996] 2 Qd R 540 The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180 Towers v Stolyar [2017] NSWSC 526 Weigall v Toman (2006) 1 Qd R 192; [2006] QSC 349 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Wilcox v Richardson (1997) 43 NSWLR 4 Texts Cited: K Gray and SF Gray, Elements of Land Law (5th ed, 2009, Oxford UP) Category: Principal judgment Parties: Faina Stolyar (First Appellant / First Cross-Defendant) Ian Stolyar (Second Appellant / Second Cross-Defendant) Barrie Towers (First Respondent / First Cross-Claimant) Celia Towers (Second Respondent / Second Cross-Claimant) Representation: Counsel: CJ Leggat SC (Appellants) J Giles SC (Respondents) Solicitors: Colin Biggers & Paisley (Appellants) Tress Cox Lawyers (Respondents) File Number(s): 2017/1647132017/313914 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2017] NSWSC 526 Date of Decision: 04 May 2017 Before: Darke J File Number(s): 2016/233519 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: This is an appeal from a decision of Darke J declaring a right of vehicle parking and garaging (the easement) upon land owned by the first appellant, Mrs Faina Stolyar, is valid and enforceable: Towers v Stolyar [2017] NSWSC 526. 2. The essential issue raised on appeal is whether the degree of interference with the area actually affected by the easement (or the whole of Mrs Stolyar's land) substantially deprives Mrs Stolyar of her rights of proprietorship or possession of the easement area (or the whole of her land) to such a degree as to render the grant of the easement invalid. 3. For the reasons which follow, the primary judge has not been shown to be in error, and I would dismiss the appeal. Background facts 1. Both Mrs Stolyar's property and the respondents' property (Mr Barrie Towers and Mrs Celia Towers) have frontages to the eastern shore of Rose Bay. There is a house on each property. The two properties share a common boundary. Mrs Stolyar's property, 2C Dumaresq Road, Rose Bay, is more particularly described as Lot A in Deposited Plan 33652 (Lot A). Mrs Stolyar acquired that property in May 2015. Mr Ian Stolyar, her son, lives at the property with his family. The Towers' property, 6A Dumaresq Road, Rose Bay, is more particularly described as Lot B in Deposited Plan 402700 (Lot B). The Towers have owned that property as joint tenants since 1970. There is no garage on the Towers property. 2. The easement was created in 1990 by Mrs Stolyar's predecessor in title, and is recorded in Deposited Plan 643174 and an associated instrument under s 88B of the Conveyancing Act 1919 (NSW), which were registered on 21 February 1990. The easement grants a right of vehicle parking and garaging which burdens Mrs Stolyar's property, Lot A (the servient tenement) and benefits the Towers' property, Lot B (the dominant tenement). A survey plan showing the respective positions of the two properties is attached as Schedule 1 to these reasons. An aerial photograph of the two properties and their proximity to Dumaresq Road, Rose Bay is attached as Schedule 2 to these reasons. 3. The easement covers a rectangular strip approximately 3 metres wide and 16 metres long, in effect, along the eastern boundary of Lot A where it adjoins the rear of the property in Lot C in Deposited Plan 33652, which fronts Dumaresq Road. A single garage has been built on the easement area. The garage has no door. There is room in front of that garage to park another vehicle. The Towers have parked vehicles in the single garage and in the area in front of the garage for many years. Immediately adjacent and to the west of the single garage is a double garage on Lot A which is used by the Stolyars. The primary judge found that it was likely that the garages were built by the time the easement was registered on 21 February 1990: at [7]. He also found that, some time ago, a turntable was installed in the area in front of the double garage, although the turntable has not been in working order for a considerable time, at least since Mrs Stolyar acquired her property: at [6]. 4. Vehicles parked by the Towers (or persons authorised by them) in the easement area can be driven to Dumaresq Road by way of a route which traverses part of the Stolyars' property and part of another property, 6 Dumaresq Road, Rose Bay (Lot A in Deposited Plan 402700), before reaching a narrow laneway (which is part of the Towers' land) that leads to Dumaresq Road. 5. The Towers' land, Lot B, has the benefit of various rights of carriageway which permit the Towers and persons authorised by them to drive along that route to Dumaresq Road. Those rights of carriageway were created on 24 July 1989 upon the registration of Deposited Plan 642324. That Deposited Plan also created for the benefit of Lot A, rights of carriageway, which would permit Mrs Stolyar and persons authorised by her to drive across part of the 6 Dumaresq Road property and along the Towers' laneway to Dumaresq Road. 6. The dispute in relation to the easement began in early September 2015, when Mr Stolyar complained about a car (owned by the Towers' daughter) that was parked in the area in front of the single garage and blocking him from turning his car around to park (in the double garage). Mr Stolyar claimed there was no right to park in that area. His belief was ultimately accepted to be an erroneous interpretation of the easement. Another incident occurred in November 2015, when police were called to the properties after Mr Stolyar parked his car in front of a cleaner's car (attending the Towers' home) that was parked in the single space and prevented that car from leaving. 7. There were continuing disputes about parking and garaging. Mr Stolyar acknowledged in his affidavit (par 35(iv)) that he has been angry and frustrated at times when discussing the parking and garaging issues with the Towers and may have seemed aggressive. Police were again called to the properties in August 2016 after the proceedings had been commenced. It is not necessary to refer to the detail of the events giving rise to these disputes. The Easement 1. The terms of the easement creating the right of vehicle garaging and parking described as "3 wide" are as follows: 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. 1. The easements recorded in DP 643174 also include an easement for electrical supply described as "3 wide and variable", the terms of which were not included in the materials before this Court. The proceedings below 1. The Towers brought proceedings against Mrs Stolyar and her son, claiming that they had wrongfully interfered with the Towers' rights under the easement and threatened to continue such conduct. The Stolyars denied the allegations of wrongful interference and, in addition, contended that the easement is invalid because the rights it confers are so extensive that they amount to joint occupation of Mrs Stolyar's property and substantially deprive her of the 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. 2. Mrs Stolyar also brought a cross-claim seeking a declaration that the easement is not valid or enforceable, and an injunction restraining the Towers from parking within the area of the easement. 3. The Stolyars' primary submission at trial focused on the "easement strip" and the impact of the rights granted by the easement upon the Stolyars' possession and use of the "easement strip". Counsel for the Stolyars also made a "secondary submission" that the easement rights do not permit reasonable use of the entirety of the servient tenement (Lot A) because it prevents cars from undertaking a three-point turn in the area in front of the double garage in order to drive back up the laneway to Dumaresq Road in a forward facing direction. That submission was based on the affidavit evidence of Mr Stolyar, to which his Honour referred at [57] of his reasons (extracted at [31] below). Grounds of appeal 1. The Stolyars contend that the primary judge erred: in holding that the easement was valid (ground 1); in failing to hold that the rights conferred by the easement were so extensive that they amount to joint occupation of that part of Mrs Stolyar's property contained within the area of the easement, and substantially deprive Mrs Stolyar of proprietorship and possession of that part of her property (ground 2); and in failing to restrain the Towers from parking within the area of the easement (ground 3). 2. The primary relief sought by the Stolyars is a declaration that the easement is invalid and an injunction restraining the Towers from parking motor vehicles on any part of Mrs Stolyar's land. 3. In the alternative, the Stolyars seek a declaration that the easement is invalid, in part, to the extent that it permits the parking of motor vehicles in the area in front of the single garage. In the further alternative, the Stolyars seek an injunction restraining the Towers from parking a motor vehicle or motor vehicles on that part of the land of Mrs Stolyar the subject of the easement in front of the single garage. Matters not in issue 1. It is appropriate to identify the matters not in issue on appeal. There is no challenge to the primary judge's findings of fact or statements of legal principle derived from the decisions of this Court in Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605 (Clos Farming Estates) and Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 (JEA Holdings). 2. Nor is there any challenge to his Honour's construction of the scope of the easement. His Honour identified four groups of rights granted by the easement: at [38]-[41]: [38] 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". [39] 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". [40] 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". [41] 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. 1. As to the first group of rights, his Honour found that the rights to stand, park and garage vehicles are unlimited as to time; there is no express limit on the number (or types) of vehicles that may be parked; and those matters are constrained only by the physical attributes of the easement area, including any structures built upon it: at [42]. 2. His Honour rejected the Stolyars' 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. His Honour found that the only right given to erect a new structure is conferred by the right of replacement which falls within the third group of rights granted by the easement: at [43]. His Honour found 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: at [45]. 3. His Honour also rejected the Stolyars' submission that the terms of the easement confer a right to lock doors or gates to carparking structures so as to prevent use of or access to the structures: at [47]. His Honour further found that the dominant owner of Lot A is not entitled to prevent the servient owner of Lot B from exercising rights of access to or from structures erected on the easement area: at [48]. Relevant findings concerning validity of easement 1. Consistently with what was noted to be common ground (at [34]), his Honour proceeded to consider the validity of the easement, applying the test (or tests) as formulated in JEA Holdings at [63] – [64]. 2. After observing (at [50]) that the easement confers extensive parking rights over the easement area, his Honour found that the location of the single garage effectively restricts parking to the garage itself and the area in front of it, while the area at the rear of the garage (which is used by the Stolyars to obtain access from the double garage to the house on Lot A) is not accessible for parking. Further, the Towers do not have any right to build a new structure in that area, nor do they have any right to build a new structure in front of the single garage: at [50]. 3. His Honour accepted (at [51]) that the rights conferred by the easement mean that the ability of the Stolyars to use the single garage and the area in front of it is significantly reduced. That is because those areas, even when not actually being used by the Towers for parking, must be kept available for that use. However, his Honour rejected the Stolyars' argument that the easement granted exclusive possession of those areas to the Towers as the dominant owner. His Honour found at [51]-[52]: [51] … 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. … [52] … Subject to not infringing the dominant owner's rights over the Easement area, including its right to "keep erected" carparking structures on the easement area, the servient owner retains its rights to build structures upon, under or over 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. 1. His Honour also found that the rights conferred upon the dominant owner by the easement are not of such magnitude that they substantially deprived the servient owner of its rights of proprietorship or possession in respect of the easement area, giving the following reasons (at [53]): 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. 1. His Honour found for similar reasons that the extent of interference with the servient owner's rights of ownership of the servient tenement as a whole was not sufficient in the present case to warrant a conclusion that the easement is invalid: at [54]. 2. At [55], his Honour found that the servient owner retained reasonable use of the servient tenement in its entirety, rejecting the Stolyars' arguments that the easement prevents reasonable use of the servient tenement because: (a) it prevents the carrying out of three-point turns to facilitate driving along the narrow laneway in a forward direction; and (b) 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), his Honour concluded that the easement does not confer such a right: at [56]. There is no challenge to this finding. 2. As to (a), his Honour found (at [57] –[58]): [57] .... 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. [58] 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. The parties' submissions The Stolyars 1. The Stolyars accepted that the question of whether the extent of interference with either the easement area or the servient tenement as a whole is such as to result in invalidity of the easement, involves matters of degree and evaluation which will depend upon the circumstances of the case. 2. The Stolyars submitted that the extent of interference with the rights of ownership of the easement area is such as to deny them the reasonable use of those parts of the servient tenement, because they are not able to get into or out of the double garage and cannot use the driveway and double garage to gain access to and from Dumaresq Road, unless the Towers are not parking in front of the single garage. 3. The Stolyars embraced his Honour's finding at [57] that the ability to perform a three-point turn in a vehicle which is on the way into or out of the double garage may be precluded, if a vehicle is parked in the area in front of the single garage, but submitted that his Honour erred by concluding that the possibility of "hypothetical building works" being carried out, namely, the construction of a turntable of a size which could be used to enable cars to be turned around, meant that the extent of interference with the servient owner's right of ownership of Lot A did not warrant the conclusion that the easement was invalid. The Towers 1. The Towers pointed out that there was no suggestion in the court below that the grant of the easement was partially invalid, such that there was no right to park in front of the single garage. Rather, the focus of submissions at trial was on the right to garage. 2. The Towers submitted that all easements interfere with the owner's use of the servient tenement and that exclusion of the owner from part of the servient land is not inimical to the grant. The Towers submitted that the Stolyars have demonstrated nothing more than inconvenience. 3. The Towers further submitted that when the grant of the easement is tested both against the level of interference with the use of the servient tenement in its entirety, as well as the area of the servient tenement actually affected by the easement (referring to JEA Holdings at [64]), it is clear that there was no substantial interference either with the servient tenement as a whole, because it was in use by Mr Stolyar for its objectively intended purpose as a residence, or with the Stolyars' use of the easement area. The Towers emphasised that Mrs Stolyar maintains her right to the surface and to build structures both under and above the easement area. 4. The Towers also submitted that the Stolyars' submission that they cannot use their double garage is wrong and inconsistent with his Honour's findings of fact, which are not squarely challenged in the notice of appeal. Easements - relevant principles 1. It is generally accepted that there are four characteristics of an easement: In Re Ellenborough Park [1956] Ch 131. First, there must be a dominant and a servient tenement. Second, there must be the required connection between the one and the other; that is, an easement must "accommodate" and serve the dominant tenement and be reasonably necessary for the better enjoyment of that tenement. Third, the dominant and servient owners must be different persons. Fourth, the right over land said to amount to the easement must be capable of forming the subject matter of a grant. 2. It is the fourth characteristic of a valid easement that is in issue in this case. 3. There is no dispute on appeal that a right to park can be the subject of a valid easement. The authorities were reviewed by Buss JA in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180 at [57] – [66], including the decision of McLelland CJ in Eq in Queanbeyan Leagues Club Ltd v Poldune (1996) 7 BPR 15,078 at 15,080 and the remarks of Handley JA in Wilcox v Richardson (1997) 43 NSWLR 4 at 15. 4. Buss JA also referred to the first instance decision of Bryson J in Clos Farming Estates Pty Ltd (Receivers and Managers Appointed) v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845, in which his Honour made the following observations in relation to rights to park motor vehicles (at [39]): Rights to park motor vehicles have been upheld in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 and held invalid in Copeland v Greenhalf [1952] Ch 488. Parking vehicles and storing goods are probably older activities than creating easements. In my view these cases were well explained by Judge Paul Baker QC in the Chancery Division in London & Blenheim Estates. (Judge Baker's views were not disapproved when his decision was affirmed on other grounds [1994] 1 WLR 31). Judge Baker dealt with the right to use a car park at 1284–1288 and in doing so reviewed case law on storage of goods and car parking. Of Copeland v Greenhalf his Honour said at 1286: 'The matter must be one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.' At 1288 his Honour said: That leaves the main point under this head, whether the right to park cars can exist at all as an easement … The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant. The rights sought in the present case do not appear to approach anywhere near that degree of invasion of the servient land. If that is so … I would regard the right claimed as a valid easement. The validity of easements for storing goods or parking vehicles depends on the nature and circumstances of the servient tenement, the operation in detail of the purported easements and their effect on the servient tenement. 1. Other authorities which have recognised that the right to use land for the purpose of parking motor vehicle amounts to a permissible easement include: Weigall v Toman [2006] 1 Qd R 192 (Wilson J); [2006] QSC 349; and Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202 (Morrison and Philippides JJA and Flanagan J). 2. In Re Ellenborough Park, one of the issues was whether the fourth characteristic of an easement had been satisfied. Evershed MR (at 164, 175–176) considered that there were three cognate questions: (a) whether the rights purported to be given by the covenant were expressed in terms that were "of too wide and vague a character"; (b) whether such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession; and (c) whether the rights are mere rights of recreation without utility or benefit. 3. The approach in Re Ellenborough Park was applied by this Court in Clos Farming Estates. The plaintiff was the owner of a lot in a subdivision. It claimed the benefit of an 'easement for vineyard' over the defendant's land as the servient tenement. The terms of the alleged easement entitled the plaintiff to plant and cultivate grape vines on the servient land, to harvest the grapes, to sell or otherwise dispose of them and to retain any profits from the enterprise. Bryson J held that the interest granted did not, in law, constitute an easement. His Honour characterised the scheme of the alleged right of the dominant owner in respect of a vineyard as leaving the servient owner in substance with a "sterile or nominal ownership only": at [49]. In particular, the production of profits and use of the servient land was something over which the defendant, as the servient owner, was deprived of all control. An appeal to this Court was dismissed. 4. The reasoning of Santow JA in Clos Farming Estates was considered in JEA Holdings, where Bathurst CJ and Beazley P remarked (at [44] –[45]): [44] One of the arguments advanced by Clos Farming in support of its contention that there was an easement over the lots was that the rights in the covenants in the Easement for Vineyard touched only part of the lot, leaving the owner to have uninterrupted use of the residential portion. This argument was rejected. Santow JA (Mason P and Beazley JA agreeing) held, at [46], that the fact that: … the rights [conferred] only touch part of the lot is insufficient to preclude the finding that the rights so vastly interfere[d] with the servient owners' rights, were they exercised, as to preclude them constituting an easement. [45] In Clos Farming Estates the relevant covenant affected five-sixths, or almost 85%, of the supposed servient tenement. Whilst the court considered that to be relevant, it was the extent to which the right of the owner to use the servient tenement which was essentially determinant. As Santow JA pointed out, at [38], the covenant "effectively precluded [the servient owners] from engaging in any real farming or agricultural type activities attendant on its possession". Such residual rights as the servient owners had were "totally subordinated to the over-arching rights of Clos Farming": at [46]. His Honour concluded that when: … [the covenant was] 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. JEA Holdings concerned the validity of an easement registered on the title of the dominant land but not on the title of the servient land. The covenant creating the easement was contained in a memorandum of transfer which benefited Lot 5 (on which a hotel business was conducted) and burdened Lot 4 (vacant land owned by JEA Holdings comprising 198 car spaces) by purporting to limit the use of all of the surface area of Lot 4 to car parking for the use of the owners of Lots 1 to 5 and their respective tenants, lessees, servants, invitees and customers. The trial judge (Windeyer AJ) found, having regard to the decision of this Court in Clos Farming Estates, that the purported rights conferred by the easement were capable of being validly granted. 2. On appeal, the owner of the servient tenement (Lot 4) submitted that the covenant failed as an easement because, having regard to the degree or extent of the use conferred by the covenant, there was a substantial deprivation of the servient owner's proprietorship or legal ownership, since the covenant affected the whole of the surface area of Lot 4 so that its effect was to permit the patrons of the hotel located on Lot 5 to park anywhere on Lot 4. What the covenant permitted, according to the submission, was the joint use of the entirety of Lot 4. The servient owner submitted that this constituted such an interference with its rights as the owner of the servient tenement that it could not constitute a valid easement (contrary to the fourth element in Re Ellenborough Park). 3. Bathurst CJ and Beazley P rejected this contention. In doing so, their Honours said (at [64]) that they did not consider Clos Farming Estates to stand only for the proposition that the owner of the servient tenement must have reasonable use of the servient tenement in its entirety. The joint judgment accepted that is a relevant consideration which, in a given case, may be decisive, before adding that 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. Their Honours accepted that interference with possession amounting to an effective interference with ownership rights may be sufficient to deny the validity of an easement. 4. In upholding the trial judge's decision that the easement was valid, the joint judgment concluded (at [64]): In our opinion, Windeyer AJ was correct in his conclusion, at [39] and [40], that Jea Holdings "enjoyed 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 v Jamieson. 1. The reference in JEA Holdings to the approach in Moncrieff v Jamieson requires a brief explanation. In Moncrieff and Anor v Jamieson and Ors [2007] UKHL 42; 1 WLR 2620 the issue for decision was whether an express grant of a right of way included (as an ancillary right) the right to park on the way. The House of Lords held that a right to park is, in principle, capable of subsisting as an easement in relation to the law of servitudes in Scotland. As noted in JEA Holdings at [47], although each of their Lordships delivered separate judgments, there was substantial agreement in the judgments with the reasons of Lord Scott and Lord Neuberger. 2. Lord Scott stated (at [47]) that the right the subject of an easement must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner. Lord Scott disagreed (at [59]) with the test formulated in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992) 1 WLR 1278 and applied by the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764, which asks whether the servient owner is left with any reasonable use of his land. Lord Scott substituted a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land: at [59]. 3. Lord Neuberger, who otherwise substantially agreed with the reasons of Lord Scott, stated his own view (at [140]) that he was not satisfied that a right is prevented from being a servitude or an easement simply because the granting of that right would involve the servient owner being effectively excluded from the property. 4. For completeness, it should be noted that in his separate reasons in JEA Holdings, Basten JA adopted the formulation of K Gray and SF Gray in Elements of Land Law (5th ed, 2009, Oxford UP) that the effect of Moncrieff v Jamieson was to "rationalise the case law in a manner notably more sympathetic to easements which involve substantial exclusion of the servient owner from his land": at [151]. His Honour went on to say that "[s]tatements in more extreme cases of exclusion, such as Clos Farming, are not inconsistent with that approach". 5. It was not suggested by the parties that this Court should depart from the approach in JEA Holdings. Onus of proof 1. It was common ground that the Stolyars bore the onus (of proof) of establishing the invalidity of the easement: Lolakis v Konitsas [2002] NSWSC 889 at [67]-[70] (Campbell J), citing Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 at 56,856 (McLelland J) and Re Cook [1964] VR 808 at 812 (Gillard J); Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261 at 266 (Willmer LJ), 272 (Russell LJ) and 276 (Fenton Atkinson LJ); Grounds 1, 2 and 3 1. Grounds 1, 2 and 3 are connected and it is convenient to deal with them together. They each raise the question of whether his Honour erred in his evaluation of the degree of interference with Mrs Stolyar's proprietorship or possession of the area actually affected by the easement, or the whole of Lot A. 2. The focus of oral argument on appeal was directed to Mr Stolyar's evidence concerning parking and garaging difficulties, and the significance of the turntable. Parking and garaging difficulties 1. As to the first matter, Mr Stolyar gave unchallenged affidavit evidence (pars 11 and 22) that whenever a vehicle is parked in the open space within the easement area, he is unable to perform a "three-point turn" so as to reverse into or out of the double garage on Mrs Stolyar's property. Against this, two matters are notable. 2. First, Mr Stolyar did not give evidence that it was not possible for motor vehicles, including the Mercedes vehicles driven by himself and his wife, to turn around by making more than a three-point turn in the area in front of the double garage, without encroaching on the easement strip. 3. Second, no evidence was adduced at trial concerning the length of the CLS 500 Mercedes vehicle driven by Mr Stolyar or his wife's vehicle, described as a "smaller C230 Mercedes". Nor was there any evidence of the "turning circle" or turning manoeuvrability of the motor vehicles driven by Mr Stolyar and his wife. The survey plan in evidence at trial shows that the length of the double garage immediately adjacent to the single garage is 4.675 metres, while the length of the open driveway between Mrs Stolyar's property and the northern end of the single car space in front of the open garage is 7.29 metres (excluding the 3 metre wide easement strip). It was not established by the Stolyars that they cannot turn their vehicles around in the area in front of the double garage or elsewhere along the driveway by making more than a three-point turn. Significance of the turntable 1. As to the second matter, only brief evidence was given at trial regarding the turntable in front of the double garage since parts of the affidavit of Mr Towers on that topic were not read at trial. Further, there was no cross-examination directed to the conflicting affidavit evidence of Mr Stolyar and Mr Towers concerning their conversation on 5 September 2015 in relation to which of the owners of Lot A and Lot B was responsible for the repair of the turntable. No finding was sought or made in relation to this disputed conversation. It is common ground that Mr Towers gave an estimated cost of repairs of $10,000. It is also common ground, as his Honour found, that the turntable was installed some time ago and was not operational at the time Mrs Stolyar purchased Lot A in 2015. 2. The Stolyars' characterisation of his Honour's reference at [57] to the turntable is unfair. Rather than suggesting that the Stolyars undertake capital works to install a new turntable, the primary judge's reasons were directed to Mr Stolyar's evidence regarding the impossibility of performing a three-point turn in the area in front of the double garage where the turntable is located. That is to say, against the evidence of Mr Stolyar that he cannot perform a three-point turn without encroaching (to an unidentified extent) upon the area in front of the single garage, there was evidence of the observable turntable in the photographs which is large enough to enable cars to turn on the spot, albeit his Honour noted possibly not cars of all sizes. 3. The Stolyars pointed to his Honour's "size" qualification as supporting their contention of substantial interference with the use of Mrs Stolyar's land. I do not agree. To read his Honour's reasons in that manner would be to ignore that his Honour's qualification simply reflected the state of the evidence, upon which the Stolyars had the onus of proof. The Stolyars did not prove that the turntable on Mrs Stolyar's land (if operational) was incapable of being used by their vehicles by reason of the size of their vehicles. Nor did they prove who had responsibility for the repairs of the turntable, or what the likely cost of such repairs would be (beyond the estimate of $10,000 given by Mr Towers). 4. As I have said, the Stolyars had the onus of proof of establishing the degree of interference with the servient tenement (Lot A). For the reasons given above, the evidence simply did not establish that it was not possible to turn vehicles around by making more than a three-point turn in the area in front of the double garage, or elsewhere along the driveway before turning right into the laneway leading to Dumaresq Road. Significance of other incidents 1. Senior counsel for the Stolyars sought to meet this difficulty by pointing to two incidents referred to in Mr Stolyar's affidavit, when he was "blocked" from turning his vehicle around in front of the double garage. 2. The first incident occurred on or about 4 September 2015 when the parking dispute initially arose. On that occasion, Mr Stolyar complained to Mr Towers that a car parked by Mr Towers' daughter in the single space in front of the open garage was blocking Mr Stolyar from turning his Mercedes car around so as to reverse into the double garage. That dispute was resolved by Mr Towers' daughter moving her car. 3. The second incident occurred on or about 4 November 2015 when Mr Stolyar returned home driving his wife's C230 Mercedes to collect some documents that he had forgotten to take with him for a meeting. Mr Stolyar gave evidence (par 31) that there was another car parked in the area in front of the single garage, that he went into his home and obtained the documents that he needed for his meeting, "but as my car was already parked in the double garage, I could not turn my wife's car around". He left his wife's car where it was next to the car parked in the space in front of the single garage, and walked up to Dumaresq Road and caught a taxi to the meeting. This was the occasion when police were later called because the C230 Mercedes blocked the exit of the cleaner's car parked in the single space in front of the single garage. 4. His Honour was not asked to and did not make any finding with respect to either incident. In any event, I do not read Mr Stolyar's evidence as establishing a complete inability to turn either his vehicle or his wife's vehicle around to reverse park the vehicles into or drive out of the double garage by performing more than a three-point turn. Conclusion 1. The primary judge carefully evaluated the evidence concerning the degree to which the rights conferred by the right of vehicle parking and garaging interfered with Mrs Stolyar's use of the easement strip, or the whole of the servient land (Lot A). It may be accepted that the right of vehicle parking and garaging necessarily interfered with Mrs Stolyar's possession of the easement strip. However, contrary to ground 2, the rights granted by the easement did not amount to joint ownership of the easement strip, nor did they substantially deprive Mrs Stolyar of her proprietorship or possession of the area actually affected by the easement, for the reasons given by his Honour at [51]-[52] (extracted at [26] above). 2. The present case is not like Clos Farming Estates where the rights to the vineyard were inconsistent with the proprietorship and possession of the servient land by the servient owners. Nor is it like Harada v Registrar of Titles [1981] VR 743, where the extent of the restriction on the use of the servient land not to build on the easement in favour of an overhead power line transmitting electricity over the servient land meant that the owner of the servient land was left with very few rights over that property, such that the rights claimed by the electricity company were really rights of joint user. 3. The Stolyars contention that the easement substantially deprives Mrs Stolyar of her proprietorship or possession of the whole of Lot A because the Stolyars are unable to use the double garage and the driveway of Mrs Stolyar's land, is not established given the absence of evidence concerning the inability to turn motor vehicles around in the area in front of the double garage or along the driveway by making more than three turns. 4. In my view, there is no error in his Honour's finding that the rights given by the easement to the dominant owner (the Towers) did not substantially deprive the servient owner (Mrs Stolyar) of her rights of proprietorship or possession in respect of the easement area. Nor is there any error in his Honour's finding that Mrs Stolyar retained reasonable use of the servient tenement in its entirety. Other matters 1. In these circumstances it is not necessary to address the issue debated in this Court as to date at which the validity of the easement is to be assessed. The parties advanced alternative contentions: either, the date of grant (the Towers' contention) or the date of the application for relief, taking into account the facts and circumstances existing at that later time (the Stolyars' contention). The later approach assumed, in effect, that an easement is subject to an ambulatory or floating validity depending on later circumstances. Unsurprisingly, no authority was cited in support of this approach. In Re Ellenborough Park, it was common ground that the validity of the easement was to be determined as at the date of the grant (at 169.6). The Court accepted that this was correct. 2. The Stolyars preferred approach to the date for determining the validity of an easement also seems inconsistent with authority that an easement is to be construed having regard to the physical facts and circumstances existing at the date of the grant: Weigall v Toman at [4]; S.S. & M. Ceramics Pty Ltd v. Kin [1996] 2 Qd R 540, albeit that approach to construction must now be read subject to the qualification in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 in relation to Torrens Title land. Relevantly, extrinsic evidence of the intention or contemplation of the parties to the grant of an easement outside what is manifested in the terms of the grant is to be ignored, at least so far as that evidence is sought to be used to guide or control the construction of what appears on the Register: Westfield Management Ltd at [35]-[45]. 3. Given the view I have formed as to the validity of the easement, taking into account the facts and circumstances existing at the time of the litigation, the conclusion would be the same in the present case irrespective of whether the validity of the easement is determined as at the date of the grant or the date of the litigation. 4. Of course, a subsequent change in circumstances may found an application under s 89 of the Conveyancing Act or for injunctive relief to restrain a nuisance, or may also give rise to a personal equity: Westfield Management Ltd at [43] and the cases there cited. Alternative relief 1. In view of the above conclusion, it is not necessary to address the alternative relief sought in the notice of appeal: see [18] above. Nevertheless, the following brief comments should be made. 2. First, no authority was given for the contention that the court may declare the grant of an easement to be partially invalid. 3. Second, even if that substantive difficulty was overcome, the power given to this Court under s 75A(10) of the Supreme Court Act 1970 (NSW) to "make any finding or assessment, give any judgment, make any order … which ought to have been given or made or which the nature of the case requires", does not assist the Stolyars when the issues raised by the alternative relief were not canvassed at trial. The Stolyars' reliance on the powers conferred on this Court on appeal by the Uniform Civil Procedure Rules 2005 (NSW), r 51.52 is equally unsound. 4. Third, the Stolyars have not made an application for relief under s 89(1) of the Conveyancing Act for modification or partial extinguishment of the easement on the ground of subsequent change in circumstances. 5. Fourth, insofar as the alternative relief was characterised by the Stolyars as a possible means of resolving the disharmony generated by this dispute, that is a matter for any consensual resolution between the parties, not an outcome available to the court. Leave to appeal 1. Against the contingency that leave to appeal is required because the appeal involves a matter at issue less than the monetary value threshold of $100,000, the Stolyars also filed a summons seeking leave to appeal: s 101(2)(r)(i) of the Supreme Court Act 1970 (NSW). The Stolyars also filed valuation evidence directed to demonstrating that the added value to Mrs Stolyar's land if the easement was invalid exceeds $100,000. It is not necessary to address that evidence. The matter has been fully argued and this is an appropriate case in which, to the extent necessary, leave to appeal should be granted. Conclusion and Orders 1. For the above reasons, the appeal must fail. There is no reason why costs should not follow the event: UCPR, r 42.1. Accordingly, I propose the following orders: 1. To the extent necessary, grant leave to appeal. 2. Appeal dismissed. 3. Appellants to pay the respondents' costs. 1. SIMPSON JA: I agree with Gleeson JA. 2. WHITE JA: I agree with Gleeson JA. ********** SCHEDULE 1 Copy of Plan SCHEDULE 2 Aerial photograph of the subject properties Amendments 12 February 2018 - [61] - replace "7.625 metres" with "7.29 metres" 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: 12 February 2018