- Unreported Judgment
 QSC 28
SUPREME COURT OF QUEENSLAND
Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor  QSC 28
FANIGUN PTY LTD (ACN 009 986 403)
BS3893 of 2005
BS5548 of 2005
28 February 2006
15-16 August and 9 September 2005
1.It is declared that the manner in which Woolworths Limited has conducted the business of the service station on Lot 1 on Survey Plan 156962 in the County of Stanley, Parish of Nundah (“Lot 1”) situated at 180 Braun Street, Deagon since 1 July 2004 has resulted in its customers from time to time stopping their motor vehicles for a time measurable in seconds or minutes on the land described as subdivisions B and C on RP102629 in the County of Stanley, Parish of Nundah (“the subject land”) whilst queuing before moving towards the petrol bowsers on Lot 1 and Woolworths Limited has thereby authorised such customers who do so stop their motor vehicles on the subject land to use the subject land in a way which is not permitted by registered easement number 601790395 (“the easement”) and has breached condition 1 of the easement on each occasion that such queuing has occurred.
2.Application 3893 of 2005 against the second respondent is dismissed.
3.The issue of the exact terms of the injunction to be granted in application 3893 of 2005 against the first respondent is adjourned to a date to be fixed.
4.Application 5548 of 2005 is dismissed.
5.The question of costs of applications 3893 of 2005 and 5548 of 2005 is adjourned to a date to be fixed.
6.Liberty to any party to apply on 2 days’ notice in writing to the other parties.
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – CONSTRUCTION OF EASEMENTS – where easement provides right to go, pass and repass over servient tenement in order to access service station on dominant tenement in common with the rights of access of the owner or occupier of servient tenement – where easement subject to a condition that neither grantor nor grantee will obstruct the use of the servient tenement - whether right to go, pass and repass over servient tenement permits customers of the service station to stop their motor vehicles on the servient tenement whilst queuing to gain access to petrol bowsers on dominant tenement – whether an implied ancillary right – where such queuing of motor vehicles on a repetitive basis amounts to an obstruction of the right of way
TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – TRESPASS TO LAND – where tenant of dominant tenement conducts its business in such a manner as to cause its customers to trespass on servient tenement – whether tenant has authorised its customers to trespass on servient tenement – whether owner who is not also the occupier of servient tenement can restrain the trespass
NUISANCE – PRIVATE NUISANCE – whether obstruction of right of way by queuing of motor vehicles on servient tenement substantially and unreasonably interferes with the right of the occupier of the servient tenement to use the right of way to obtain access to the balance of the occupier’s land – whether owner who is not also the occupier can restrain the nuisance
EASEMENTS – RIGHTS OF WAY – where benefit of easement subject to a condition that grantee will not obstruct the use of the servient tenement – where party claiming through successor in title of grantee exercises the right of way – whether such party is bound by the burden of the condition which is relevant to the exercise of the right of way – whether injunction should be granted in favour of grantor to restrain the breach of the condition – where party in breach of the condition has acted in reckless disregard of grantor’s proprietary rights
LANDLORD AND TENANT – LIABILITY OF LANDLORD FOR TENANT’S CONDUCT - where leased land is entitled to benefit of a right of way easement – where tenant conducts business on leased land in such a manner as to cause its customers to use the right of way in breach of the terms of the easement – where tenant disputes the claim of the owner of servient tenement that it is authorising its customers to trespass or commit nuisance on the servient tenant or breach the easement – whether landlord able to take action to terminate trespass, nuisance or breach of easement where tenant disputes liability for conduct – landlord not liable to owner of servient tenement for failing to take remedial action against tenant
EASEMENTS – EASEMENTS GENERALLY – CREATION UNDER STATUTE – whether reasonably necessary in interests of effective use – where statutory right of user sought to address breach of existing right of way by applicant – where applicant did not investigate other means of eliminating breach of easement which would not diminish proprietary rights of the owner of servient tenement – Property Law Act 1974 (Q) s 180
Property Law Act 1974
Bulstrode v Lambert  1WLR 1064
Doolan v Hill (1879) 5 VLR 290
Gallagher v Rainbow (1994) 179 CLR 624
Grinskis v Lahood  NZLR 502
Halliday v Nevill (1984) 155 CLR 1
Hargrave v Goldman (1963) 110 CLR 40
Hoy v Allerton (2002) Q ConvR 54-559;  QSC 440
Jones v Chappell (1875) LR 20 Eq 539
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Lynch v White (1987) Q ConvR 54-257
McCarty v The Council of Municipality of North Sydney (1918) 18 SR (NSW) 210
Rhone v Stephens  2 AC 310
Rodrigues v Ufton (1894) 20 VLR 539
Saggers v Brown (1981) 2 BPR 9329
Sedleigh – Denfield v O’Callaghan  AC 880
SS & M Ceramics Pty Ltd v Kin  2 Qd R 540
Williams v James (1867) LR 2 CP 577
R J Douglas SC for Fanigun Pty Ltd
M M Stewart SC for Woolworths Limited
D Pyle for ISPT Pty Ltd
Hopgood Ganim for Fanigun Pty Ltd
Allens Arthur Robinson for Woolworths Limited
Holding Redlich for ISPT Pty Ltd
- MULLINS J: Fanigun Pty Ltd (“Fanigun”) is the registered owner of Lots 7 and 8 on RP 29257 in the County of Stanley Parish of Nundah (“Lots 7 and 8”) which is situated at 174 Braun Street, Deagon. Lots 7 and 8 are burdened by registered easement number 601790395 (“the easement”) which applies to that part of Lot 7 and 8 described as subdivisions B and C on RP 102629 (“the subject land”). The easement is in favour of Lot 1 on Survey Plan 156962 in the County of Stanley Parish of Nundah (“Lot 1”), the registered owner of which is ISPT Pty Ltd (“ISPT”). The street address of Lot 1 is 180 Braun Street. Lot 1 is leased to Woolworths Limited (“Woolworths”) pursuant to registered lease number 706713963 (“the lease”) which is for a term of 15 years that commenced on 19 September 2002. Woolworths uses Lot 1 to conduct the business of a service station and an ancillary convenience store.
- The grant under the easement is in the following terms:
“… to the registered proprietor and occupier for the time being of the dominant tenement or any part thereof and its tenants servants visitors and licensees in common with all others having a like right the following easement, namely, full and free right and privilege at all times hereafter by day or night with or without horses cattle or other animals carts carriages motor cars and other vehicles of any description laden or unladen for all purposes to go pass and repass along through and over Subdivisions B and C of Resubdivisions 7 and 8 of Subdivision A of Portion 88 in the County of Stanley, Parish of Nundah, containing 3 82/100 perches more or less, being part of the land described in Certificate of Title No. 588540, Volume 2888, Folio 30, as per Plan Catalogue No 402629 (hereinafter called ‘the servient tenement’) SUBJECT to the following conditions: … .”
There are five conditions set out in the grant as follows:
- "Neither the grantor nor the Grantee shall obstruct in any way the use of the servient tenement for the aforementioned purposes and shall not park or leave thereon any motor vehicle plant or machinery.
- If the Grantee shall raise the level of the servient tenement in any way it shall do so in such a manner that vehicular access from the servient tenement to the remainder of the said subdivisions 7 and 8 shall not be impeded.
- The servient tenement shall be kept free of noxious and other weeds and all rubbish whatsoever by the Grantee which shall also maintain the carriageway on the servient tenement in a good condition.
- The Grantee shall at its own expense supply and maintain a fence dividing the servient tenement from the remainder of the said subdivisions 7 and 8, such fence to provide for a gateway to provide access for the Grantor to the servient tenement.
- The Grantee shall pay to the Grantor on demand from time to time such proportion of the rates land tax and other charges levied from time to time on the said subdivisions 7 and 8 by any statutory authority as the area of the servient tenement bears to the total area of the said subdivisions 7 and 8 on which the whole of any assessment is based.”
- Under the amended originating application on file number 3893 of 2005, Fanigun seeks final relief by way of injunction to restrain conduct, namely queuing of vehicles on the subject land. Woolworths has made a cross-application on file number 5548 of 2005 for a grant of statutory right of user under s 180 of the Property Law Act 1974 (“PLA”) in the event of a finding that queuing is not permitted under the easement.
- The evidence-in-chief for each of the parties was found in the affidavits filed on behalf of the parties and relied on at the hearing of the applications. A number of deponents were cross-examined. For Fanigun, its director Mr William Gollan Snr and his son Mr William Gollan Jnr gave evidence. Fanigun also relied on traffic engineer Mr Robert Holland. Submissions were made by Woolworths and ISPT that in some respects the evidence of Mr Gollan Snr and Mr Gollan Jnr should be treated with caution. Although Mr Gollan Snr tended to be an advocate for his position, his evidence was substantially reliable. Where it has been necessary to make a finding where it was asserted there were discrepancies in the evidence, I have done so. Ultimately there were few factual issues in contention.
- Woolworths’ deponents who were cross-examined were its National Property Manager-Petrol Mr Clayton Rowston, Mr Wayne Smith who is described as a Petrol Specialist, and valuer Mr Brian Cox.
- Woolworths relied on affidavits from Mr David Ireland who is the manager of the service station on Lot 1, Mr Rodney Baker who was a traffic controller employed at the service station between November 2004 and May 2005, Mr Donald Moss who was a traffic controller employed from 20 April 2005, Mr Raymond McInnes who was the Assistant Property Manager – Queensland for Woolworths from 1989 until he retired in 2005, paralegals Mr Scott Stiegler and Ms Jennifer Brennan who made observations of the subject land on 5, 6 and 8 to 11 August 2005 and leasing agent Mr Steven Bunney who had been engaged by Fanigun from September 2003 to lease Lots 7 and 8.
Location of the subject land
- Lot 7 adjoins Lot 1 on Lot 1’s northern boundary. Lot 8 adjoins Lot 7 on Lot 7’s northern boundary. Lot 8 is situated on the corner of Braun and Musgrave Streets. The total area of Lots 7 and 8 is 809.37m². The subject land has an area of 96.61m² and is triangular in shape. The frontage of the subject land to Braun Street has a length of 14.78m comprising the entire frontage of Lot 7 and about half of the Braun Street frontage of Lot 8. The subject land is 13.106m wide where it adjoins the northern boundary of Lot 1. The hypotenuse of the triangle is 19.9m measured between the end of the triangle on the Braun Street frontage of Lot 8 and where the perpendicular side of the triangle ends at the point which is 13.106m along the northern boundary of Lot 1 measured from the Braun Street end of the boundary.
- Lots 7 and 8 are on the eastern (inbound) side of Braun Street. Braun Street is a State-controlled road. It is currently (and has been for many years) four lanes, with two lanes travelling in each direction and separated by a significant traffic island. The subject land therefore provides access to Lot 1 for southbound traffic. Lot 1 is zoned Multi-Purpose Centre MP3 – Suburban Centre Area which permits the use of a service station.
- To the casual observer the subject land appears to be part of the service station allotment. That is emphasised by the role the subject land plays in providing the primary access to the service station. It is surprising that the primary access for vehicles to Lot 1 is through land over which the occupier of Lot 1 exercises a right of way only.
- The photographs of Lots 7 and 8 taken immediately prior to the hearing show that the balance of Lots 7 and 8 has been fenced off from the subject land and Braun and Musgrave Streets by a 6 foot fence (similar to a pool fence) that comprises black metal uprights with spaces in between that allows for persons to see through the fence into the balance of Lots 7 and 8. Mr Gollan Snr caused that fence to be constructed in late 2004 with the knowledge and approval of ISPT. ISPT contributed to the cost of that part of the fence and the gateway in that fence on the boundary between the subject land and the balance of Lots 7 and 8.
History of the relevant land
- Mr Gollan Snr’s mother, Mrs Annie Lewis Gollan (“Mrs Gollan”), purchased Lot 1 in 1955 for £5,000. From that time Mr Gollan Snr with his parents operated the service station and workshop that existed on Lot 1. Mrs Gollan purchased Lots 7 and 8 in 1957. Mr Gollan Snr and his father cleared Lots 7 and 8 and commenced operating a used car business from that land.
- Mrs Gollan granted a lease of Lot 1 to Caltex Oil (Australia) Pty Ltd (“Caltex”) for a term of about 10 years which commenced on 1 December 1957. At the same time Caltex entered into an exclusive agreement with Mr Gollan Snr and his father to sell Caltex products for a term of about 10 years at the service station on Lot 1 and Caltex sublet Lot 1 to Mrs Gollan for a term of 10 years less 3 days as from 1 December 1957. As part of the arrangement Caltex was granted by Mrs Gollan a lease (registered number B545660) for 10 years less 1 day from 1 December 1957 over a small part of Lot 7 immediately adjacent to Lot 1 to widen the driveway entrance to Lot 1. To complete the arrangements and facilitate the operation of the service station on Lot 1 by the Gollan family, Caltex granted a sublease (registered number B545661) to Mrs Gollan of that same small part of Lot 7 for a term of 10 years less 3 days from 1 December 1957.
- In or about 1962 Mr Gollan Snr and his father negotiated with Caltex to sell Lot 1 to Caltex. The transfer of Lot 1 from Mrs Gollan to Caltex was registered in March 1962. Caltex proceeded with the redevelopment of the service station on Lot 1. It was at this time that the subject land was surveyed, the easement was granted and lease number B545660 and sublease number B545661 were surrendered. The easement recites that the consideration for the grant of the easement by Mrs Gollan to Caltex was the payment of £500 by Caltex to her. At that stage Braun Street was only a two lane roadway.
- In about June 1963 Mr Gollan Snr purchased the land at 188 Braun Street which was one block removed to the south of Lot 1 and established a used car business on that property. In 1967 Mr Gollan Snr and his wife Mrs Kathleen Gollan purchased the land situated at 186 Braun Street which is the block between Lot 1 and 188 Braun Street.
- Mrs Gollan sold Lots 7 and 8 to a company associated with Mr Gollan Snr in 1971. That company then rented Lots 7 and 8 to a Mr Remington who operated a used car yard known as “Bargain Cars”. In 1977 Mr Gollan Snr’s company then transferred Lots 7 and 8 to Fanigun.
- Bargain Cars vacated Lots 7 and 8 in about 1979. Fanigun then leased Lots 7 and 8 to a Mr Harley who traded as “Brighton Cars”. Mr Gollan Snr recalls that Brighton Cars rented Lots 7 and 8 for approximately 7 to 8 years until the late 1980’s. After Brighton Cars left, Fanigun rented Lots 7 and 8 to Mr Leigh Kong who traded as “Leigh Motors”.
- Shortly after Leigh Motors commenced operating from Lots 7 and 8, Mr Gollan Snr arranged to have Lots 7 and 8 concreted to upgrade the site. It was at this time that Mr Gollan Snr constructed the two driveway entrances from Musgrave Street into Lots 7 and 8. It was also around this time that a raised concrete parapet was constructed along the boundary between the subject land and the balance of Lots 7 and 8, except for a section in the middle of that boundary that was left clear as a driveway to provide access between the subject land and Lot 7. At this time posts were installed in that parapet and heavy gauge chain was run between the posts, including across the driveway on the common boundary between the subject land and the balance of Lot 7. That chain could be removed to allow access from the subject land to Lot 7.
- There is access to Lots 7 and 8 via the driveways from Musgrave Street. There is no parking permitted by the Council on either side of Musgrave Street.
- Leigh Motors operated from Lots 7 and 8 for approximately 8 to 10 years. When Leigh Motors left in about 1995 or 1996, Mr Gollan Jnr’s company Navport Pty Ltd rented Lots 7 and 8 to conduct a used car business. Mr Gollan Jnr continued to operate his business from Lots 7 and 8 until about 2001 when he incorporated his business with that of Mr Gollan Snr and the joint business was conducted from 188 Braun Street.
- In or about July 2001 Caltex transferred Lot 1 to Westway Systems Pty Ltd (“Westway”) which leased Lot 1 to Liberty Oil Pty Ltd (“Liberty Oil”). Liberty Oil sought to redevelop Lot 1. At that stage the service station had a total existing floor area of 193m² of which 88m² was for a workshop. Liberty Oil proposed to remove the workshop and extend the convenience store into the area used as the workshop which would result in a total floor area of 187m². Fanigun did not consent to the application for development approval. Liberty Oil and Westway applied to the Supreme Court for an injunction requiring Fanigun to consent to the application. That application was dismissed. Liberty Oil and Westway appealed. Fanigun agreed with Liberty Oil and Westway to compromise the appeal on the basis that Liberty Oil paid Fanigun the sum of $10,000 and the costs of the appeal and the terms that were set out in a notice of agreement to dismissal of appeal filed in the Court of Appeal on 25 January 2002. Under that agreement Fanigun agreed to sign the documents in connection with the planning application and Westway agreed to paint hatching along the entire length of the left-hand side of the subject land in order to designate it as “No Parking” and to erect a “No Parking” sign on the subject land directing entering vehicles not to park on the subject land. The terms directed at making it clear that no vehicle was to park on the subject land reflected the evidence that was recited in the judgment of Ambrose J on the application that it had been common practice for people coming to the service station to park on the subject land along the driveway at the front of the caryard on Lots 7 and 8. The painting of the concrete including the words “No Parking” within the painted hatching was carried out.
- Although the development application for the redevelopment of the service station that was undertaken in 2002 referred to the retention of the existing 15 car parking spaces on Lot 1 (four of which were shown on the plan of the service station between the line of bowsers closest to Braun Street and Braun Street), there are not four marked car-parking spaces in that position. When cars are stopped on the Braun Street side of that line of bowsers, there can but may not necessarily be enough space left for other vehicles to move between the stopped cars and the landscaping that abuts the boundary of Lot 1 with Braun Street. In relation to this space, Mr Ireland observed in paragraph 23 of his affidavit filed on 17 June 2005:
“Although the area is designed to fit two cars through, if a car using the bowser is not parked right next to the bowser, but is close to the middle of the area, there would not be enough room for another car to drive past. Also, if a larger car, such as a four wheel drive was using a bowser on the Braun St side, there would not be enough room for another car to drive past.”
- Fanigun’s solicitors sent a letter on 13 September 2002 to the solicitors who had acted for Liberty Oil and Westway making complaint that Liberty Oil and Westway were allowing entrants to the service station to park over the subject land. In response by letter dated 19 September 2002, Westway advised that notice had been given to Woolworths enclosing a copy of the plan showing the subject land and advising that there was to be no parking on any portion of the subject land.
- Westway leased the land to Woolworths as from 19 September 2002. Woolworths came to lease Lot 1 as a result of Woolworths acquiring a number of Liberty Oil service station sites.
- Clauses 5.5 and 5.6 of the lease provide:
“5.5The Lessee must not do anything which is or may become a nuisance or annoyance to the Lessor, other users of the Land or users or occupiers of adjacent or nearby properties, taking into account the Permitted Use of the Land and Premises.
5.6The Lessee agrees not to cause any nuisance or annoyance to the occupier or owner of the land comprised in Title Reference 12888030 and acknowledges that the Lessor has notified the Lessee of its obligations to comply with the provisions of Easement No 601790395 (‘the Easement’) as registered in favour of the Land and being the Easement over the land described in Title Reference 12888030.”
The reference in clause 5.6 of the lease to Title Reference 12888030 is to the title of Lots 7 and 8.
- Since 2002 Woolworths’ national policy has been to discount its petrol by 4 cents per litre for customers who had purchased goods to a specified minimum value at Woolworths’ supermarkets or Big W stores. It was accepted by Mr Rowston that the discounting of petrol attracts customers to service stations operated by Woolworths and that there was a synergy between Woolworths’ petrol retailing and its supermarkets. This is also reflected by the following statement found at page 13 of the Annual Report 2004 of Woolworths:
“We believe a chain of around 470 petrol canopies, most of which will be in close proximity to our supermarkets, is the optimum number of canopies to drive profitable sales for our existing chain of Supermarket and BIG W stores.”
- Wilseed Pty Ltd rented Lots 7 and 8 from October 2002 until March 2003. The property remained vacant thereafter for some considerable time.
- Since April 2003, the service station on Lot 1 has operated 24 hours per day for 7 days per week.
- In September 2003 Fanigun engaged Mr Bunney to assist in locating a tenant for Lots 7 and 8. Mr Bunney described the level of enquiry in relation to Lots 7 and 8 as “consistently low”.
- In or about September 2003 Westway transferred Lot 1 to ISPT.
- Fanigun rented Lots 7 and 8 to “Gateway Cars & Commercials” from December 2004, but it vacated the premises at the end of March 2005.
- Fanigun rented Lots 7 and 8 to a new tenant for a used car business as from 15 July 2005.
Complaints about use of the subject land by Woolworths
- On or about 27 February 2003 Mr Gollan Snr had a meeting with Mr Raymond McInnes, in relation to complaints that Mr Gollan Snr and Mr Gollan Jnr had made to Woolworths about parking and/or queuing on the subject land.
- On or about 6 March 2003 Mr Gollan Jnr informed Mr McInnes that Fanigun would consider leasing Lots 7 and 8 to Woolworths for $5,000 per month (excluding GST). By letter dated 13 March 2003 Mr McInnes advised Mr Gollan Snr that Woolworths would try to better manage the easement conditions.
- In March 2003 Woolworths engaged a contractor to repaint the concrete on the subject land and to install signs on the easement to deter cars from queuing on the subject land. It appears that Mr Gollan Jnr ordered the contractor to stop work. The repainting of the lines did not proceed as Mr Gollan Jnr advised Mr Smith that repainting would deface Fanigun’s property and he did not think it would deter cars from queuing for petrol. Between July 2003 and early 2004 Mr Smith had a few conversations with Mr Gollan Jnr in which he confirmed that Woolworths was willing to repaint the concrete on the subject land.
- In July 2004 Mr Gollan Snr and Mr Gollan Jnr made complaints to representatives of Woolworths as to the way in which the subject land was being used by Woolworths and its customers.
- Woolworths obtained a valuation of the subject land on the basis that it would be excised from Lots 7 and 8 and added to Lot 1. The valuer assessed the current market of the subject land as at 6 June 2004 at $75,000. Woolworths by letter dated 22 July 2004 offered to pay Fanigun a one-off payment of $15,000 to procure an amendment to the easement which would allow vehicles intending to enter the service station to stand on the subject land whilst queuing until they were able to move onto Lot 1. That offer was rejected by Fanigun.
- In a conversation which Mr Rowston had with Mr Gollan Jnr in early August 2004, Mr Gollan Jnr advised Mr Rowston that he considered the value of the subject land was $150,000 and that he wanted Woolworths to lease the subject land.
- Since 3 August 2004 Woolworths has employed a traffic controller on what it considers to be the peak days for purchase of petrol in order to attempt to prevent cars from queuing over the subject land. Since 21 August 2004 a traffic controller has been present each Wednesday, Thursday and Friday between 8am and 4pm.
- Mr Rowston, Mr Smith and two other employees of Woolworths (Mr Narsey and Mr Holmes) inspected the service station on 14 September 2004 and a meeting took place between Mr Gollan Jnr and them. Mr Rowston offered to rent the subject land for $7,500 per annum which Mr Gollan Jnr refused. At that meeting Mr Gollan Jnr offered that Fanigun would lease the subject land to Woolworths for about $2,000 per month. That offer was not accepted by Woolworths.
- On 14 October 2004 Woolworths’ solicitors wrote a letter to Fanigun complaining that on 1, 6 and 13 October 2004 a vehicle had been parked by Mr Gollan Snr on the subject land. Mr Gollan Snr’s explanation for two of the occasions referred to in the letter was that he was relocating a Jackeroo motor vehicle from his caryard at 188 Braun Street to the caryard at Lots 7 and 8 and as he could not get access into Lots 7 and 8, because there was queuing for the service station, he left the Jackeroo on the subject land next to the access to Lots 7 and 8 intending to return when the queue had gone. (Mr Gollan Snr had also parked a four wheel drive vehicle on the subject land on 3 August 2004.) No doubt Mr Gollan Snr was frustrated and trying to prove a point to Woolworths about inconvenience associated with obstruction of Fanigun’s access to its own land. The vehicle that was parked perpendicular to the fence on the boundary between the subject land and the balance of Lots 7 and 8 for almost 2 hours on the afternoon of 6 October 2004 was a mini-van.
- By letter dated 21 October 2004 to ISPT, Mr Gollan Snr sought a resolution to what he described as “The constant blocking of the easement”. In response ISPT pointed out that Woolworths’ customers’ vehicles were “queuing, not parking and leaving their cars in the carriageway” and suggested placing additional signage to direct the traffic flow and reduce queuing. Mr Gollan Snr indicated by way of response that he would not permit further signage on the property, as the current signage was not working. In fact, at some stage someone has tried to obliterate the painted words “No Parking” from the concrete on the subject land. Mr Gollan Snr and Mr Gollan Jnr explained in evidence that they considered that it would deface or devalue the subject land by allowing additional signs on the subject land.
- By letter dated 24 December 2004 from its solicitors, Fanigun foreshadowed to Woolworths and ISPT that it would initiate court proceedings to seek relief in respect of the failure to address the problem of vehicles being driven by customers of Woolworths that blocked the subject land. The problem was described in these terms:
“9. Since the Lease of the Adjoining Property to Woolworths, it has frequently come to our client’s attention that the line up of vehicles queuing for petrol bowsers at the Woolworths petrol station commences in the Adjoining Property, frequently extends on to the Easement Property and on some occasions, the line even extends on to the shoulder of Braun Street itself. In doing so, the vehicles line up and queue on the Easement Property in front of the entrance of the Fanigun Property, and thereby consistently block the entrance to the Fanigun Property.
- This conduct has occurred for some time now and continues to occur on a daily basis. Our client is concerned in this regard as our client has had difficulties in tenanting the Fanigun Property and, until only recently, the Fanigun Property had been vacant for almost 18 months. Our client is of the view that ISPT’s and Woolworths’ misuse of the Easement Property and the consequent blocking of the entrance to the Fanigun Property has:
(a)Contributed to our client’s difficulties in finding a tenant for the Fanigun Property; and
(b)May contribute to the viability of the current tenant of the Fanigun Property in the future should this conduct continue.”
- Both Mr Gollan Snr and Mr Gollan Jnr described in evidence how the queuing of motor vehicles on the subject land blocked the view of the balance of Lots 7 and 8 (and therefore any stock displayed on the balance of Lots 7 and 8) for passing motorists travelling north along Braun Street.
- In the letter of 24 December 2004 Fanigun demanded both ISPT and Woolworths to immediately provide a proposal to rectify the matters raised in the letter.
- Although the solicitors for Woolworths denied that Woolworths had breached the easement in any way, Woolworths, ISPT and Fanigun agreed to retain traffic engineer Mr Robert Holland to investigate and advise as to the options available to prevent vehicles queuing on the subject land and/or obstructing access to the subject land on the basis that Mr Holland’s costs and outlays incurred in investigating and preparing the report would be met by Woolworths . The instructions were delivered to Mr Holland on 15 March 2005. Mr Holland attended the site on 21 March and 8 April 2005 and provided a report to the parties on 12 April 2005. The observations made by Mr Holland in his report included:
“It is evident that significant queuing of service station patrons’ vehicles occurs within the easement, sufficient to obstruct and deter access to the balance of the Fanigun site via the easement: in fact, the area included in the easement appears to be wholly and exclusively part of the overall service station site.
In my view, at least part of the problem lies in slow refuelling and payment rates at the service station and the design of the petrol bowsers such that drivers must choose the correct side of the bowsers from which to refuel their vehicles, that is, the bowser hoses are not long enough to reach to the ‘remote’ side of an adjacent vehicle. These factors all exacerbate the tendency for queues to form and extend back onto the Fanigun land.
An obvious difficulty with the Fanigun site is that there is no readily available on-street parking available: parking within the Braun Street frontage is precluded by virtue of the access driveway which has been constructed in conjunction with the easement, and the limited carriageway width in Musgrave Street has led Council to install No Standing Any Time restrictions on both sides of that street.
In my view, short of a full rebuilding of the service station site to incorporate a modern and efficient bowser configuration, measures by the service station operator to reduce queuing within the easement would involve reduction in the time each patron is required to occupy a refuelling bay. This may involve:
- higher capacity pumps to reduce the time required to actually transfer fuel into each vehicle,
- longer hoses capable of reaching the side of vehicles remote from each bowser,
- multiple cashiers to reduce time spent in queues awaiting payment for fuel purchases.
It is noted that while the site was under observation, a traffic marshal was employed part of the time, but was ineffective at reducing queues.”
- As a result of receiving Mr Holland’s report, ISPT had its solicitors write to Woolworths’ solicitors on 4 May 2005 advising that ISPT required Woolworths to comply with the lease and stating:
“If the circumstances regarding obstruction of the easement area outlined in the HTC Report are correct, ISPT requires Woolworths to take all reasonable steps to comply with the restrictions in the easement.”
- Mr Rowston made comments on behalf of Woolworths in his affidavit filed on 8 July 2005 in response to Mr Holland’s report. Mr Rowston states:
“28.In operating its petrol stations, Woolworths complies with industry standards. If Woolworths were to comply with the recommendations in Bob Holland’s report, it would not be operating in accordance with accepted industry practice.
- For example, in relation to Mr Holland’s comments about lengthening the length of the fuel hoses, I am informed by Mr Nigel Hobbs (National Operations Manager) and believe that the length of the hoses complies with industry standards.
- In relation to the comments about high capacity pumps, I have been informed by Mr Hobbs and verily believe that the hoses at the Service Station cannot flow any quicker and that they comply with industry standards.
- In relation to the comments about the traffic controllers, I have not been involved in providing instructions to the traffic controller, however I have been advised by Wayne Smith and verily believe that the traffic controller has been instructed that the easement must be kept clear at all times and that no car should queue on the easement. However, I am informed by Wayne Smith and verily believe that if there is a choice between cars queuing on Braun St and cars queuing over the easement, we would firstly endeavour to avoid have (sic) cars queuing on Braun St as this is a safety hazard.
- Finally in relation to Mr Holland’s comments that the site could be re-designed, Woolworths does not own the site. In fact, the tanks and the improvements on the land are all owned by ISPT. Woolworths are unable to change the configuration of the site without ISPT agreeing to this. In any event, the way the Service Station is currently configured with the length of the fuel hoses, the flow-time of the pumps and the position of the traffic controllers all ensure that Woolworths is responsibly serving combustible fuels and complies with industry standards.”
- The observation can be made that Mr Rowston has curtailed his comments on Mr Holland’s report by comparing Mr Holland’s suggestions with industry standards. Mr Rowston therefore did not deal with whether it was possible to use longer hoses or to install pumps that had higher capacity than the existing pumps or whether, subject to obtaining ISPT’s consent, there was a re-design of the service station that would eliminate queuing of customers’ vehicles on the subject land.
- After the receipt of Mr Holland’s report, Fanigun considered that the breaches of the easement were continuing and on 13 May 2005 filed the originating application in file number 3893 of 2005. The amended originating application was filed on 28 June 2005. Woolworths’ cross-application was filed on 8 July 2005.
- In the course of giving evidence Mr Gollan Snr expressed his desire that Fanigun retain ownership of the subject land.
Relief sought by Fanigun
- In its amended application, Fanigun seeks various declarations to reflect what it asserts has occurred since 1 January 2004 in relation to the use of the subject land, is the proper characterisation of the queuing of motor vehicles on the subject land and is the legal consequences for ISPT, Woolworths and Fanigun of such queuing. Fanigun then seeks an injunction against Woolworths in the following terms:
“An injunction restraining the first respondent, by itself its servants or authorised agents, from conducting such business in such a way as to permit allow or authorise the queuing of vehicles on the land the subject of Registered Easement No. 601790395.”
and an injunction against ISPT in the following terms:
“An injunction compelling the second respondent, by itself servants or authorised agents, to take reasonable steps under Clauses 5.5 and 5.6 of the registered lease so as to obviate or minimise such queuing being permitted or allowed by the first respondent.”
- The application has proceeded as such, without pleadings, and there is no claim by Fanigun for damages arising from the conduct alleged against Woolworths and ISPT.
Evidence of queuing
- In his affidavit filed on 17 June 2005, Mr Ireland stated at paragraph 6:
“6.Based on my experience as Manager of the Service Station, I would estimate that queuing for petrol most often occurs between the hours of 6:30 am and 7:30 pm on Wednesdays, Thursdays and Fridays. These are the peak periods for the Service Station as petrol is generally cheaper on these days. Cars do not queue for petrol constantly during these times. Sometimes, queuing may occur for a couple of minutes followed by a long period of no queuing. There are substantial lull periods during these peak days. During the peak days, there are always two staff members rostered on the cash registers to ensure customers are serviced quickly. Based on my experience, the maximum number of customers queuing in the Service Station to pay for petrol and other items on these peak days would be five. However, as I have outlined above, there are always two staff members rostered on the registers and this queue is cleared in a very short period of time. If all of these customers are paying with cash, the queue would be cleared in a matter of seconds. However, if some customers are paying by credit card or eftpos, it may take a few minutes to clear the queue.”
- Mr Ireland conceded in paragraph 19 of his affidavit:
“However, my experience has been that while employing a traffic controller has had a beneficial effect on queuing, a traffic controller is not able to prevent queuing completely, mainly because we cannot stop people driving into the Service Station by the easement.”
- Mr Ireland has instructed each traffic controller who has been engaged at the service station that he is to move cars forward to the bowsers as quickly as possible. Mr Ireland has instructed delivery drivers who deliver goods to the service station not to stand on the subject land and all staff have been instructed that if they see a car or delivery vehicle standing on the subject land when the traffic controller is not present, they are to immediately instruct the driver that it is a no standing zone and to move the vehicle immediately. Woolworths spent about $24,000 on traffic controllers in the period of 12 months from August 2004.
- Mr Baker’s experience of controlling traffic at the service station was that there was a morning rush period between 8am and 9am, a midday rush period between 11.30am and 1pm and an afternoon rush period from 2.30pm or 3pm until about 4pm. Mr Baker stated in his affidavit that cars did not necessarily queue over the subject land during those times, but queuing would occur if something occurred such as a pump not working, a customer not wanting to fill up at a bowser on the wrong side of the car (i.e. the side of the car which does not have the petrol cap), a customer refusing to move forward to the parking spaces before paying for petrol or a vehicle waiting for the petrol tanker to finish filling up the tanks at the service station. In Mr Baker’s experience the subject land would be blocked for no longer than a maximum of 5 or 10 minutes at any one time and that on busy days, cars would queue on the subject land for a maximum of about 15 or 20 minutes in total during the time he was working.
- Mr Moss conceded that queuing of customers’ vehicles across the subject land did occur during part of the rush periods (which he described as the morning rush until about 9.30am and the afternoon rush from 2pm or 2.30pm until 4pm) and when there was a significant reduction in fuel prices. Mr Moss estimated that of the total number of days he had worked at the service station, such reductions occurred on about half of those days.
- Mr Gollan Snr described in paragraph 128 of his affidavit that he did not observe any queuing on the subject land prior to Woolworths commencing to lease Lot 1, although he had observed parking on the subject land from time to time. There was some inconsistency with Mr Gollan Snr’s earlier statement in paragraph 85 of his affidavit that:
“Prior to Woolworths operating the service station on Lot 1, problems with patrons of the service station parking and/or queuing on the easement land were infrequent.”
- After considering Mr Gollan Snr’s cross-examination and materials disclosed relating to the litigation with Liberty Oil and Westway, it is clear that the problem that Fanigun complained about which resulted in that litigation with Liberty Oil and Westway was parking on the subject land. I accept Mr Gollan Snr’s evidence that it was after Woolworths commenced operating the service station that queuing of vehicles on the subject land whilst waiting to use the petrol bowsers has become a frequent occurrence.
- The complaints on behalf of Fanigun to Woolworths escalated from mid July 2004. Both Mr Gollan Snr and Mr Gollan Jnr have been in a position to observe the service station as they conduct their used car yard from the nearby 188 Braun Street property. The problem with delivery vehicles parking on the subject land appears to have been substantially addressed by Woolworths, but the problem with queuing of vehicles on the subject land has continued despite the complaints made on behalf of Fanigun. Mr Gollan Snr’s observation that queuing is at its worst when Woolworths discounts its petrol accords with Mr Ireland’s experience. Mr Gollan Jnr’s observation that there was no regular pattern to the degree and duration of queuing and that it could occur on any day of the week and Mr Gollan Snr’s observation that queuing was not limited to the times when Woolworths discounts its petrol was also consistent with the evidence of Mr Baker that attributed various reasons for queuing.
- There was adduced as part of the evidence a number of photographs and videos that show queuing of vehicles on the subject land. Some of these photographs and videos were directed to showing that the subject land was blocked to stop entry to the service station when a tanker was refilling the tanks. Mr Ireland referred to a requirement that the service station close down to other customers when the tanker refills the tanks with petrol at the service station. It was acknowledged by Mr Holland that there were rules that applied to protection of the public when a tanker was delivering petrol, but he was unfamiliar with them. Under s 130(1) of the Transport Operations (Road Use Management – Dangerous Goods) Regulation 1998 the occupier of premises where dangerous goods (which includes petrol) are transferred must, as far as practicable, ensure that the goods are transferred in a way that averts, eliminates or minimises risk. Mr Ireland did not identify the precise regulatory scheme for refuelling the petrol tanks. To the extent that it is reasonable to close the subject land to eliminate or minimise risk of injury to the public whilst a tanker is refuelling tanks at the service station, it may also be in the interests of the occupier of Lots 7 and 8 who exercises the like right to access the subject land in common with the lessee of Lot 1 to ensure that the subject land is not used or closed during times of refuelling.
- There are photographs exhibited to Mr Gollan Snr’s affidavit that show queuing of vehicles across the subject land in a line of vehicles to the bowsers on one occasion around late January 2005, at 3.45pm on 9 February 2005 and 3.20pm on 24 February 2005.
- When Mr Holland attended the service station between 4pm and 5pm on 21 March 2005 and between 3pm and 5pm on 8 April 2005, he observed queuing over the subject land.
- Mr Gollan Jnr exhibits numerous photographs to his affidavits filed on 16 June and 5 August 2005. Apart from the occasions when a petrol tanker was refilling the tanks at the service station, the photographs show queuing of vehicles across the subject land in a line of vehicles to the bowsers on 21 and 28 January, 3, 9 and 11 February, 14 and 21 April, 6, 14 and 19 May, 2 June at 9.39am, 7 June at 5.08pm, 8 June at 10.46am and 3.56pm, 9 June at 10.01am, 10.26am, 4.58pm, 5.28pm and 5.56pm and 18 July.
- Mr Gollan Jnr also exhibits to his affidavit filed on 5 August 2005 three short videos recorded at various times in or about July 2005, two of which clearly show instances of queuing of vehicles across the subject land in a line of vehicles to the bowsers.
- Mr Stiegler observed the subject land for 29 hours on 5 and 8 to 11 August 2005. He observed several short periods of parking and/or queuing on the subject land which totalled 1 hour 40 minutes 55 seconds of which he attributed 8 minutes to parking or queuing connected with Lots 7 and 8. Ms Brennan observed the subject land for 37 hours over 5, 6 and 8 to 11 August 2005. The total parking and queuing over the subject land observed by Ms Brennan was 1 hour 58 minutes 10 seconds. In the total time observed by Mr Stiegler and Ms Brennan of 66 hours, the total parking and queuing over the subject land was calculated to be 3 hours 39 minutes 5 seconds of which 25 minutes 30 seconds only was attributed to uses connected with Lots 7 and 8. Each of Mr Stiegler and Ms Brennan further dissected the time on which there was obstruction on the subject land by attributing the period in which either the parking or the queuing obstructed access to Lots 7 and 8. If the back wheels of a queuing vehicle were on the subject land, so that access to the gate in the fence on the boundary between the subject land and the balance of Lots 7 and 8 could be achieved, they noted that access was not obstructed. The total time attributed to the obstructing of access to Lots 7 and 8 was 2 hours 10 minutes 50 seconds. The total time attributed to queuing obstructing access was 1 hour 1 minute 35 seconds. It is notable that queuing by motor vehicles over the subject land occurred on each of the 6 days the subject land was observed by Mr Stiegler and Ms Brennan.
- Mr Gollan Jnr suggested that the evidence of Mr Stiegler and Ms Brennan was not representative of the true problem because their observations were made during a week when there was higher than normal petrol prices that had reduced the demand for petrol. The affidavit of Mr Smith filed by leave on 16 August 2005 shows that this was not the case.
- The worksheets of Mr Stiegler and Ms Brennan together with the photographs and videos bear out the observations made by Mr Gollan Snr, Mr Gollan Jnr, Mr Ireland and the other witnesses that at least from mid 2004 there has been consistent (in the sense of continuing to occur), though intermittent, short periods measurable in a minute or minutes at one, or more than one time, on some of the days of each week of queuing over the subject land by motor vehicles waiting for their turn to move forward in the line of vehicles to access the petrol bowsers on Lot 1. Rather than repeat this lengthy description of the consistent but intermittent short periods of queuing, I shall refer to it as queuing “on a repetitive basis”.
- Queuing of motor vehicles on the subject land on a repetitive basis has arisen because Woolworths has been successful in attracting customers to the service station by providing discount petrol to those who patronise Woolworths’ Supermarkets and Big W stores. The use of Lot 1 as a service station by Woolworths in conjunction with its discount scheme for customers of its supermarkets and Big W stores has resulted in a more intense use of the site as a service station from time to time than when Lot 1 was used merely as a stand alone service station.
Construction of the easement
- It was common ground amongst the parties that Woolworths as the lessee of Lot 1 had the benefit of the easement, but its use of the subject land could not exceed what was permitted by the easement. The construction of the grant and the terms of the easement was therefore critical to the issues raised on this application.
- Although the easement is a registered instrument under the Queensland system of title by registration, the principles of construction that apply to the grant of an easement at common law have been found to be equally applicable to the grant of an easement in respect of land under the Torrens system: Gallagher v Rainbow (1994) 179 CLR 624, 639 – 640 per McHugh J. McHugh J at 640 also referred to the classic statement found in Gale on Easements (15th ed) at 292:
“the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used.”
- Relevant principles include that the grant is construed against the grantor: Williams v James (1867) LR 2 CP 577, 581, and that a grantee is not entitled to more than what is encompassed in the grant: SS & M Ceramics Pty Ltd v Kin  2 Qd R 540, 547 per McPherson JA (“Kin”).
- The rights conferred by the grant of an easement are not equated to ownership of the land: Saggers v Brown (1981) 2 BPR 9329 at 9330.
- The issue that needs to be resolved by the construction of the easement is whether queuing of motor vehicles from time to time on the subject land whilst those vehicles are waiting to pass onto Lot 1 to use the petrol bowsers in such a way that the vehicles are stopped more than momentarily and on a repetitive basis is permitted by the easement.
- The grant under the easement is what is commonly described as a “right of way” easement. It allows those who have the benefit of the easement “to go pass and repass along through and over” the subject land. The right of way is to be exercised “in common with all others having a like right” which means in common with Fanigun as the registered owner of Lots 7 and 8 and/or those who from time to time have the right through Fanigun to access the balance of Lots 7 and 8 through the subject land such as Fanigun’s tenants or visitors or licensees of the occupier from time to time of Lots 7 and 8. When Fanigun leases Lots 7 and 8 to a tenant, that will usually have the consequence that Fanigun’s tenant will have the right to the exclusion of Fanigun to exercise Fanigun’s rights over the subject land. That is consistent with the tenant obtaining exclusive possession of the land the subject of the lease.
- Each of the words “go pass and repass” imply motion. That is reinforced by condition 1 of the grant which prohibits both the grantor and the grantee from obstructing the subject land for the purpose of the right of way that is exercisable by the grantee in common with the grantor. It was suggested on behalf of Woolworths that condition 1 should be construed so that the obligation not to obstruct in any way the use of the subject land was limited to obstruction of the subject land involving things other than vehicles on the basis that there was included in condition 1 a specific obligation not to park or leave any motor vehicle, plant or machinery on the subject land which exhausted the restrictions proposed in respect of motor vehicles. I reject that construction of condition 1. The obligation of the parties not to obstruct in any way the use of the subject land supports the intention of the parties to the grant that the subject land be used by the grantee to gain access to Lot 1 in common with the grantor continuing to use the subject land to gain access to the balance of Lots 7 and 8. The inclusion in condition 1 of the specific prohibition on parking or leaving of motor vehicles, plant or machinery on the subject land does not, in the context of the easement, limit the general prohibition contained in condition 1 against obstructing in any way the use of the subject land for the purpose of the right of way in common with the rights of access exercisable over the subject land by the grantor. Conditions 2 and 4 of the easement also serve to emphasise the importance of the right of access to the balance of Lots 7 and 8 retained by the grantor.
- Construing the easement according to its terms suggests that queuing of vehicles which results in the vehicles being stopped for a measurable time (even if it is measurable only in seconds or a minute or a few minutes) on a repetitive basis does not fall within the right “to go pass and repass” over the subject land . That makes relevant another principle of construction of an easement which permits reference to be made to the circumstances existing at the time the grant was made for the purpose of construing the easement where an assertion is made that the easement provides for rights beyond those expressly described in the easement: Kin at 545 and 547, Hoy v Allerton (2002) Q ConvR 54-559;  QSC 440 at paras -.
- In Kin the respondents conducted on their land a shop selling fruit and vegetables that fronted the main street and at the rear of the block had an easement over the servient tenement owned by the appellant that provided access to a side street. The appellant objected to the actions of those bringing goods to the respondents’ shop and making deliveries from it who parked vehicles upon the easement area during loading and unloading operations. The right of way easement was granted in 1955 and conferred on the grantee the right with or without motor cars, trucks etc “to pass and repass in or through over or along the said servient tenement for all purposes connected with the use and enjoyment of the said dominant tenement”. The issue was whether the right “to pass and repass” with motor cars, trucks and other vehicles conferred the right to stop and load or unload those vehicles on the servient tenement.
- The majority in the Court of Appeal (Macrossan CJ and McPherson JA) allowed the appeal from the decision in favour of the respondents. Ambrose J dissented. Both Macrossan CJ and McPherson JA had regard to the circumstances that existed at the time of the grant in 1955. At that stage there was a generous area at the rear of the dominant tenement which vehicles could utilise for parking purposes and there was no suggestion that any extensions to the structures on the dominant tenement were in contemplation at the time of the grant of the easement. Macrossan CJ distinguished Bulstrode v Lambert  1 WLR 1064 (“Bulstrode”) and McIlraith v Grady  1 QB 468 and found that the implication of a right to stop in the easement area to load or unload did not arise under the circumstances as they existed in 1955.
- McPherson JA stated at 547-548:
“The extent of the right therefore falls to be determined in accordance with the physical facts and circumstances existing at the time of the grant in 1955. At that time the dominant tenement was so built upon as to leave space for loading and unloading vehicles on it without the need to stop, stand or park on the servient tenement. It would therefore not have been necessary at all, or even reasonably necessary, to stop on the easement area in order to exercise the right of passing and repassing along the easement area. The case may, to that extent, fairly be compared with one in which a relatively confined right of way leads through the large area of a dominant tenement which is wholly or partly vacant. In such a case it would not be a reasonable exercise of the right to pass and repass to insist on stopping, standing or parking on the easement area when it would be equally convenient to do so on the dominant land. In such circumstances, it is difficult to see why the servient owner should have to submit to the exercise of right over his land which he has never expressly granted and which were not plainly in contemplation at the time of the grant.”
- Ambrose J relied on the line of authorities that included Bulstrode and considered the trial judge was correct in concluding that the right to load and unload upon the easement area was a right necessarily and ancillary to the grant of the right to pass and repass for the purpose of the business carried on for the time being upon the dominant tenement.
- In Bulstrode a conveyance of a house and a yard running alongside it and leading to a building retained by the vendor and used as an auction mart reserved the right for the vendor, his tenants and workman and others authorised by him “to pass and repass with or without vehicles over and along” the yard for the purpose of obtaining access to the auction mart. It was held that the vendor’s successor was entitled to bring vans and pantechnicons over the yard for the purpose of transporting furniture and other chattels to and from the auction mart and to bring those vehicles to a point in the yard beyond which it was physically impossible to pass and to carry the goods from there into the mart by hand and to halt the vehicles in the yard as often and for so long as was necessary for the purpose of loading and unloading. This was found to be an ancillary right necessary for the substantial enjoyment of the reservation of the right of way which would have been useless without it.
- Amongst the factors that Woolworths relies on to contend that the terms of the easement should be construed to give it a wide effect which permits the queuing of vehicles whilst waiting to move onto Lot 1 are:
- Lot 1 was used and intended to continue to be used as a service station with the subject land as the sole means of entry to it;
- the terms of the easement contemplated that it would still be used by the occupier of Lots 7 and 8 to gain access to the balance of Lots 7 and 8 thereby creating the potential for congestion which might result in vehicles stopping on the subject land;
- the easement was granted to widen and replace the area that had been the subject of a prior lease to facilitate the operation of the service station on Lot 1;
- it was common ground at the time of the grant that the grantee intended to expand the service station substantially; and
- a significant sum was paid for the grant of the easement.
- The fact that a significant sum was paid for the grant of the easement does not affect the construction of the terms of the easement. The other factors relied on by Woolworths are directly related to the location of the subject land and the common intention of the parties that it provide the primary access to Lot 1 in conjunction with the rights exercised by the occupier of Lots 7 and 8 over the subject land for gaining access to the balance of Lots 7 and 8. The fact that the subject land was intended to be used for such access to a service station that the parties contemplated would be expanded by Caltex in 1962 or 1963 was addressed by the express terms of the grant and supporting conditions found in the easement.
- There are authorities which endorse a liberal approach to the construction of the grant of an easement on the basis that such a grant creates rights of indefinite duration that continue to exist in a changing environment: Grinskis v Lahood  NZLR 502, 509. Even recognising that approach, the construction of the easement still depends on its terms.
- The queuing of motor vehicles on a repetitive basis on the subject land which has been occurring since at least mid-2004 amounts to an obstruction of the subject land while the queues subsist. The problem of obstruction was contemplated by the parties at the time of the grant and addressed by the specific terms of the grant and the conditions. In those circumstances the rights conferred on the grantee under the easement cannot be construed as permitting queuing of motor vehicles on a repetitive basis on the subject land or justify the implication of an ancillary right to queue motor vehicles on a repetitive basis on the subject land. To do so would defeat the terms of the easement.
- I therefore find that there is no authorisation under the easement for those claiming the benefit of the easement through the registered owner of Lot 1 for the queuing of motor vehicles on a repetitive basis on the subject land.
Whether Woolworths is liable to Fanigun for queuing on the subject land by customers of Woolworths
- The only right that Woolworths has to use the subject land for access is that which it derives from being entitled to exercise the benefit of the easement as incidental to its lease over Lot 1. The next issue is whether Woolworths can be liable directly to Fanigun as a result of Woolworths’ customers using the subject land in a way that is not authorised or exceeds the rights granted by the easement.
- Fanigun seeks to hold Woolworths liable for the conduct of its customers on the following bases:
- breach of covenant; and
- s 55 PLA.
- A trespass is constituted by an unjustified entry directly by a person on land in the possession of another which is carried out either intentionally or negligently: Halliday v Nevill (1984) 155 CLR 1, 10. A tortfeasor may be liable for trespass on the basis of having authorised or instigated others to commit the trespass for the tortfeasor: Doolan v Hill (1879) 5 VLR 290, 291. As it is the method by which Woolworths has conducted its business of a service station on Lot 1 that has caused or contributed significantly to the queuing of customers’ motor vehicles on a repetitive basis on the subject land, Woolworths has authorised its customers from time to time to commit a trespass to the subject land and therefore can be held liable for the actions of its customers. This situation can be distinguished from that in Stoneman v Lyons (1975) 133 CLR 550 where the trespass was committed by the independent contractors of the builder engaged by the adjoining owner and no issue of authorisation of the trespass by the adjoining owner arose.
- It is usually only the person who is in possession of the land in respect of which the trespass is committed who can seek to restrain the trespass: Rodrigues v Ufton (1894) 20 VLR 539, 543-544. Fanigun’s evidence was primarily directed at showing the excess of use by Woolworths through its customers of the subject land and was not directed at proving a permanent injury to the reversion of Lots 7 and 8. Despite the evidence about the queuing interfering with the view of the balance of Lots 7 and 8 from Braun Street, the approach of Fanigun to its claim can be gleaned from the series of declarations sought in its amended originating application. By seeking injunctive relief only (and not damages) Fanigun is endeavouring to prevent the trespass. No question of any permanent injury to Lots 7 and 8 therefore arises.
- Although Fanigun was in possession of the subject land when it filed its application seeking an injunction against Woolworths, that was not the position when the application was heard. It may be that the position has changed again whilst this decision has been reserved. Subject to the discretionary considerations in relation to the grant of an injunction, it would be only if I were satisfied that Fanigun was in possession of Lots 7 and 8 that an injunction could be granted against Woolworths to restrain trespass.
- A private nuisance is a substantial and unreasonable interference with the private right to the use and enjoyment of land: Sedleigh – Denfield v O’Callaghan  AC 880, 896-897, Hargrave v Goldman (1963) 110 CLR 40, 59. Primarily it is the person who has the right to occupy or exclusively possess land who has the entitlement to sue for nuisance: Jones v Chappell (1875) LR 20 Eq 539, 543. A registered owner who is not in possession may sue for nuisance if injury is caused to the land of a permanent character: McCarty v The Council of Municipality of North Sydney (1918) 18 SR (NSW) 210, 212-213.
- The problem for Fanigun is that its case for nuisance against Woolworths was conducted on the basis that it was the queuing of the motor vehicles on a repetitive basis that inhibits access to the balance of Lots 7 and 8 and amounts to the nuisance. It was not claimed that there was permanent injury to the reversion of Lots 7 and 8.
- While the balance of Lots 7 and 8 was vacant between April 2003 and late 2004 and for a couple of months between April and June 2005, Fanigun sought to use the subject land to gain access to the balance of Lots 7 and 8 infrequently. It was used occasionally to relocate a vehicle from Mr Gollan Snr’s caryard at 188 Braun Street to the caryard at Lots 7 and 8 such as in August and October 2004. I also infer that the queuing of Woolworths’ customers’ vehicles on the subject land on a repetitive basis was likely to have discouraged Fanigun from making use of its access to Lots 7 and 8 through the subject land. Even though there was alternative access to Lots 7 and 8 via Musgrave Street, obstructing the access via the subject land interferes with the right of the occupier of Lots 7 and 8 to enjoy full access to Lots 7 and 8.
- Although the queuing of motor vehicles on the subject land by Woolworths’ customers occurs intermittently and for very short periods, the evidence of the persistence of and the intention of Woolworths to persist with the conduct that results in such queuing indicates such a degree of interference with the right of access of the occupier of Lots 7 and 8 to the balance of Lots 7 and 8 via the subject land that amounts to substantial and unreasonable interference with that right of use and enjoyment of Lots 7 and 8.
- As with the claim for an injunction to restrain trespass, Fanigun is not entitled to an injunction to restrain nuisance unless it is in possession of Lots 7 and 8. If it were necessary, I would therefore give the parties an opportunity to address further evidence as to who is currently in possession of Lots 7 and 8.
- As Woolworths seeks to enjoy the benefit of the easement, it is bound by the conditions of the easement, notwithstanding that there is neither privity of contract nor privity of estate between Woolworths and Fanigun. This is referred to as the conditional benefits principle (see MacDonald, C et al, Real Property Law in Queensland (2nd ed, Lawbook Co 2005) at paras [17.150]-[17.200]) and applies where a right (such as a right of way or party wall support) is granted subject to a condition in the nature of a burden which is relevant to the exercise of the right, so that the burden is enforceable against a party who is entitled to exercise the right that is subject to the condition: Rhone v Stephens  2 AC 310, 322-323.
- As Woolworths has authorised its customers from time to time to queue their vehicles on the subject land in a way that exceeds the authorisation conferred by the easement, Woolworths has breached condition 1 of the easement. The breach is not trivial. It infringes the proprietary rights of Fanigun to the subject land. Even Mr Cox who did not take into account in his valuation exercise that Woolworths should be an anxious lessee of the subject land or that Woolworths should encourage ISPT to be an anxious purchaser of the subject land attributed about $2,000 per annum for the benefit of Woolworths gaining queuing rights over the subject land by obtaining a lease of the subject land from Fanigun.
- The right of Fanigun to seek relief for the breach of the condition of the easement does not depend upon Fanigun being in possession of Lots 7 and 8. It is not relevant that there may be other means for Fanigun or the occupier of Lots 7 and 8 to gain access to the balance of Lots 7 and 8. Fanigun is entitled to insist that Woolworths exercise no greater rights under the easement than those conferred by the easement. Fanigun has sufficient standing to pursue its claim for breach of covenant on the basis that it is the party in whose favour the condition operates.
- It is not necessary to deal with the claim based on s 55 of the PLA, as it adds nothing to the claim for nuisance.
Whether ISPT is liable to Fanigun for queuing on the subject land by customers of Woolworths
- Woolworths has the exclusive possession of Lot 1 under the lease and is therefore in control of what occurs on Lot 1 and the exercise of the rights of access to Lot 1 by virtue of the easement. Fanigun seeks to hold ISPT liable for the trespass by the customers of Woolworths on the basis of authorisation by ISPT of the conduct of Woolworths’ customers. Woolworths’ liability arises from the manner in which it conducts its business on Lot 1 that causes its customers to conduct themselves in a way which amounts to trespass to the subject land. All that can be said of ISPT is that it has failed to exercise what rights it may have under the lease to control the manner in which Woolworths uses the subject land. There is not a sufficient link between ISPT’s position as landlord of Lot 1 and the conduct of the customers of Woolworths to enable ISPT to be held liable for the trespass committed by the customers of Woolworths. In the circumstances it cannot be concluded that ISPT has authorised or instigated the customers of Woolworths to trespass on the subject land.
- Fanigun relies on the authority of Aussie Traveller Pty Ltd v Marklea Pty Ltd  1 Qd R 1 (“Aussie Traveller”) to contend that ISPT is liable in nuisance for not taking any step under the lease to prevent or deter Woolworths from its conduct which caused the queuing or from precluding the queuing itself.
- In Aussie Traveller the plaintiff was a tenant in the defendant’s industrial complex when another tenant (“Top Flight”) that made timber staircases leased the adjoining premises from the defendant. The plaintiff complained to the defendant about the sawdust from Top Flight’s operations that passed into the plaintiff’s premises and the noise of the equipment operated by Top Flight. It was found that the plaintiff’s occupation of its premises was substantially interfered with by the activities of Top Flight. Prior to Top Flight occupying the premises adjoining the plaintiff, it had leased another unit in the same complex and the defendant was aware of the sawdust problem and knew that Top Flight intended to expand its production when it moved to the premises next to the plaintiff. It was found that the defendant must or ought reasonably to have foreseen that, unless controlled, it was likely that Top Flight’s sawdust problem would adversely affect the plaintiff’s business of manufacturing and selling canvas goods. It was found that within 12 months of Top Flight occupying the adjoining premises, the defendant was aware of the noise problem emanating from Top Flight’s premises. It was found that, having regard to the “nuisance” provision in Top Flight’s lease, it would have been open to the defendant to put a stop to the noise by evicting Top Flight for breach of that condition and that it therefore adopted the noise nuisance created by Top Flight when it failed to do anything about the noise. It was held by McPherson JA at 14 that “… the defendant was rightly held liable for the sawdust and noise nuisance created by Top Flight which, although not shown to have been authorised or encouraged by the defendant, was capable of being corrected or terminated by active intervention on its part”.
- Whilst Woolworths remains in exclusive possession of Lot 1 under the lease, there is no authority whatsoever for ISPT to enter Lot 1 to take steps to preclude the queuing.
- The issue then arises whether there was any step that ISPT could have taken under the lease to prevent or deter Woolworths from its conduct which caused the queuing of the vehicles on the subject land prior to this proceeding.
- Clause 5.5 of the lease imposes an obligation on Woolworths not to do anything which is a nuisance to the users or occupiers of adjacent properties and this is complemented by clause 5.6 of the lease by which Woolworths has agreed not to cause any nuisance or annoyance to the occupier or owner of Lots 7 and 8.
- Woolworths was the existing tenant when ISPT acquired the reversion of Lot 1. Although Woolworths has engaged in some negotiations with Fanigun to resolve the dispute that developed following the complains by Fanigun that Woolworths’ customers were queuing on the subject land in breach of the easement, the position adopted by Woolworths has been that there has been no breach of the easement. Unlike the position in Aussie Traveller where it was found that the defendant was in a position to evict Top Flight, ISPT could not have successfully pursued Woolworths for breach of clauses 5.5 and/or 5.6 of the lease until the disputed issue of whether Woolworths was conducting its business in such a way as to breach the easement was determined.
- After receiving the report of Mr Holland, ISPT’s solicitors put Woolworths on notice that it required Woolworths to take all reasonable steps to comply with the restrictions in the easement. If a notice to remedy breach of covenant had been served by ISPT at that stage or soon after, proceedings pursuant to that notice would have depended on the resolution of the same issue in this proceeding. This is not a case where ISPT could have terminated the trespass or nuisance by taking action under the lease prior to the resolution of this proceeding. At this stage ISPT cannot be held liable to Fanigun for nuisance caused by the customers of Woolworths.
- ISPT is not liable to Fanigun for breach of condition 1 of the easement as ISPT has not authorised the use of the subject land by the customers of Woolworths in excess of the rights conferred by the easement.
Discretionary factors relating to the grant of an injunction
- In LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 the defendant was carrying out a commercial development of its property and failed to obtain the consent of the plaintiff who occupied the adjoining property to the erection of scaffolding that intruded in the airspace above the plaintiff’s land, but went ahead with putting up the scaffolding in reckless disregard of the plaintiff’s rights. In granting the injunction, Hodgson J stated at 496-497:
“There is no substantial injury caused to the plaintiffs, and compensatory damages would probably be nominal only. I do not think an injunction could be said to be greatly oppressive to the defendant: the defendant knowingly put itself in a position where it needed to use the first plaintiff’s land in order to carry out a commercial development, and I think the law establishing that what the defendant did was a trespass was reasonably clear, so that the defendant has not been taken by surprise in this regard.
In my view, the case really comes down to the question of whether one person should be permitted to use the land of another person for considerable commercial gain for himself, simply because his use of the other person’s land causes no significant damage to that other person’s land. As a matter of general, though not universal principle, I would answer this question “no”.
- It is particularly relevant in the circumstances of this matter that Woolworths obtains financial advantage from conducting its business in such a way that breaches the terms of the easement. Although the queuing of motor vehicles on the subject land on a repetitive basis may not occur everyday and may only involve short periods of time (such as a minute or a few minutes at a time) when it does occur, it occurs repeatedly.
- It is also relevant that Woolworths had notice of the terms of the easement and the concern of Fanigun that they be observed from the commencement of the lease.
- Woolworths claims hardship as a factor which requires refusal of the injunction. Woolworths points to the failure of the traffic controllers to date in eliminating queuing. Mr Smith estimates that if traffic controllers were employed 13 hours on each of Monday to Friday, 7 ½ hours on Saturday and 5 hours on Sunday, that would result in a cost of $106,795 per annum which would significantly impact on the profit of the service station and there would still be no guarantee that queuing would be eliminated. Mr Rowston has deposed to the cost of an extensive redevelopment of Lot 1 of between $1.8 and $2million, subject to obtaining the cooperation of ISPT. Mr Rowston suggests that any redevelopment of the site would not be commercially feasible for Woolworths to consider.
- Woolworths also points to the impossibility of complying with an injunction because customers do not always comply with the directions of the traffic controller or Woolworths’ staff and Woolworths’ procedures currently comply with accepted industry standards.
- Woolworths has incorrectly assumed that it can be required to do no more in the set up and operation of the service station than conforms with “industry standards”. That overlooks that this dispute in respect of the use of the subject land arises from Woolworths electing to lease Lot 1 for the purpose of a service station when the access to Lot 1 is dependent on the exercise of the easement rights granted over the subject land. On any view, it could not be an “industry standard” for a service station site to depend on a non-exclusive right of way over the land which provides the primary access to the site.
- It is relevant in considering Woolworths’ position as to hardship that Woolworths dismissed Mr Holland’s suggestions about higher capacity pumps and longer hoses on the basis of “industry standards” without dealing with the substance of the suggestions. Woolworths deals only with one re-design scenario which is a total redevelopment of Lot 1 without endeavouring to explore other possible solutions which may include re-configuration of the bowsers, making an entry to the site on Lot 1, subletting the service station to an operator whose business is not operated in conjunction with a supermarket discount scheme or a combination of possible solutions. I am not suggesting that any of these possible solutions may be appropriate or feasible. The point is that Woolworths’ material is limited and mainly reactive in considering solutions.
- Woolworths relies on Fanigun’s refusal to permit Woolworths to paint signs on the surface of the subject land and place signs at the entry of the subject land to dissuade customers of the service station from queuing on the subject land as a factor against the exercise of the discretion to grant an injunction. That factor would have some bearing if Fanigun’s concern about the effectiveness of the signs had been shown to be wrong. It is also relevant that Woolworths did not seek to obtain ISPT’s consent to experiment with signs placed on Lot 1 which explained to customers that they had no permission to queue motor vehicles on the subject land.
- The few instances when Mr Gollan Snr parked a vehicle on the subject land are explained by frustration at Woolworths’ disregard of Fanigun’s rights and is not sufficient to prevent Fanigun obtaining an injunction. The fact that Fanigun has refused to lease the subject land to Woolworths or to vary the easement, so as to permit queuing on the subject land, and that Mr Gollan Snr has expressed an intention not to sell the subject land are also not of significance in the circumstances of Woolworths’ disregard of Fanigun’s rights to the subject land.
- When all the factors relevant to the exercise of the discretion to grant an injunction are taken into account, the balance is tipped in favour of Fanigun because of the high handed approach and recklessness of Woolworths in conducting its business on Lot 1 in a manner that breaches the terms of the easement. Woolworths cannot seek to maintain its current position of excessive use of the subject land, when that position has been brought about by disregard of Fanigun’s rights under the easement.
- Subject to determining the cross-application, I am satisfied that it is appropriate to grant an injunction against Woolworths to prevent breach of the easement.
- If I were wrong in my conclusion that Fanigun has not established a cause of action against ISPT which would support the grant of an injunction against ISPT, I would not grant an injunction against ISPT on discretionary grounds at this stage. Until the issue of whether the easement was breached by the queuing of the motor vehicles of Woolworths’ customers on a repetitive basis was determined, ISPT was not in a position to take steps to have Woolworths comply with the terms of the easement.
Cross-application under s 180 PLA
- Woolworths seeks an order pursuant to s 180(1) of the PLA that Woolworths, for so long as it remains the lessee of Lot 1 under the lease, be entitled to use the subject land for the purposes described in the easement, save that where there is an inconsistency between the terms of the easement and paragraph (b) set out in the originating application, the provisions of paragraph (b) shall prevail. Paragraph (b) is in the following terms:
“for the purposes of enabling its customers or persons who have lawful business on [Lot 1] to have access to [Lot 1] by vehicle including by permitting such persons to form or be part of a queue of vehicles upon the Easement, when necessary, for the purposes of having such access including where the forming of or being part of a queue has the effect that such persons halt their vehicles temporarily in being part of such a queue.”
- In order to obtain relief under s 180 of the PLA, Woolworths must show that:
- it is reasonably necessary in the interests of effective use in a reasonable manner of Lot 1 to impose the right of user;
- it is consistent with the public interest that Lot 1 be used in the manner proposed;
- Fanigun can be adequately recompensed by money; and
- Fanigun has refused and refused unreasonably to accept the imposition of the right.
- The standard of proof on the cross-application is on the balance of probabilities, but the evidence is required to be examined with care to ensure that the proprietary rights of Fanigun are not unnecessarily diminished: Lynch v White (1987) Q ConvR 54-257 at 57,769-57,770.
- As set out above, Woolworths has not adequately addressed possible solutions to eliminate the breach of the terms of the easement. In the absence of a proper investigation of other solutions that do not involve diminution of Fanigun’s property rights, Woolworths cannot show that it is reasonably necessary in the interests of effective use of Lot 1 to impose the right of user that is sought. This is sufficient to dispose of the cross-application. It is also relevant that a service station has been able to be operated on Lot 1 without the queuing of motor vehicles on the subject land on a repetitive basis prior to the commencement of Woolworths’ lease.
- It is unnecessary to consider whether Woolworths has established the other matters that are necessary to obtain relief under s 180 of the PLA.
- In the circumstances it is appropriate to make a declaration that reflects the nature of the conduct of Woolworths that has breached the easement.
- Because of the serious consequences for Woolworths if it fails to comply with an injunction to preserve Fanigun’s rights under the easement and it is likely that it will take a little time for Woolworths to address how it will change its operation of the service station site to ensure that it does not breach the easement, I propose to give the parties an opportunity to consider these reasons and the appropriate wording for the injunction and to make further submissions, before I make the order for an injunction. I will dispose of the costs of both applications when I make the order for the injunction.
- It follows that the orders which will be made at this stage are:
- It is declared that the manner in which Woolworths Limited has conducted the business of the service station on Lot 1 on Survey Plan 156962 in the County of Stanley, Parish of Nundah (“Lot 1”) situated at 180 Braun Street, Deagon since 1 July 2004 has resulted in its customers from time to time stopping their motor vehicles for a time measurable in seconds or minutes on the land described as subdivisions B and C on RP102629 in the County of Stanley, Parish of Nundah (“the subject land”) whilst queuing before moving towards the petrol bowsers on Lot 1 and Woolworths Limited has thereby authorised such customers who do so stop their motor vehicles on the subject land to use the subject land in a way which is not permitted by registered easement number 601790395 (“the easement”) and has breached condition 1 of the easement on each occasion that such queuing has occurred.
- Application 3893 of 2005 against the second respondent is dismissed.
- The issue of the exact terms of the injunction to be granted in application 3893 of 2005 against the first respondent is adjourned to a date to be fixed.
- Application 5548 of 2005 is dismissed.
- The question of costs of applications 3893 of 2005 and 5548 of 2005 is adjourned to a date to be fixed.
- Liberty to any party to apply on 2 days’ notice in writing to the other parties.
- Published Case Name:
Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor
- Shortened Case Name:
Fanigun Pty Ltd v Woolworths Ltd
- Reported Citation:
 QSC 28
28 Feb 2006
|Event||Citation or File||Date||Notes|
|Primary Judgment|| 2 Qd R 366||28 Feb 2006||-|