Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village
[2004] QSC 197
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- Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village[2004] QSC 197
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Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village[2004] QSC 197
Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village[2004] QSC 197
SUPREME COURT OF QUEENSLAND
CITATION: | Noyea Park Country Club P/L v Body Corporate for Noyea Riverside Village & Ors [2004] QSC 197 |
PARTIES: | NOYEA PARK COUNTRY CLUB PTY LTD |
FILE NO: | S10056/03 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 24 June 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5, 6 April 2004 |
JUDGE: | Douglas J |
CATCHWORDS: | REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - OTHER INTERESTS IN LAND - RIGHT OF USER OF LAND FOR BENEFIT OF OTHER LAND - Creation under statutory power - Reasonably necessary in interests of effective use - Onus to show consistency with public interest - Reasonableness of refusal by servient owner - Existence of other means of access Property Law Act 1974 (Qld), s.180 Acts Interpretation Act 1954 (Qld), s. 32C Re Seaforth Land Sales Pty Ltd’s Land (No. 2) [1977] QdR 317, referred to 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, referred to Re Worthson Pty Ltd [1987] 1 Qd R 400, referred to Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86, applied |
COUNSEL: | BJ Clarke for the applicant No appearance for the first respondent PE Hack SC for the second respondents |
SOLICITORS: | Crowley & Greenhalgh for the applicant Jeff Thomas & Associates for the second respondents |
- DOUGLAS J: Noyea Park Country Club Pty Ltd, the applicant and a company controlled by a Mr and Mrs Herbst, owns two blocks of land, lots 2 and 3, on the northern bank of the Albert River between that river and Martens Street, Mount Warren Park. Neither block has direct access to Martens Street. To the north and west of those two blocks and between them and the street is a large lot, lot 1, occupied by the Body Corporate for Noyea Riverside Village CTS 21058, the first respondent.
- Lot 2 is land locked. Lot 3 is to the east of Lot 2 and has access to Martens Street by a circuitous route, notionally along two easements skirting the northern, eastern and southern boundaries of lot 1, called easement E and easement H. In reality, however, vehicles travel by a route that cuts across land, lot 4, owned by Mr and Mrs Herbst, which is also on the river to the east of Lot 3. Vehicles travelling to Lot 3 do not use easement H and only that part of easement E along Lot 1’s northern boundary. The informal route cuts across some parkland further to the east, lot 5. None of lots 2, 3 and 4 abut any public road. The situation becomes clearer when one examines a coloured plan of the lots which became exhibit 4. I have attached a copy of the plan to these reasons.
- This is an application asking the court to impose a statutory right of user in respect of part of the common property of the body corporate on lot 1 by the creation of a proposed easement K along an existing driveway across lot 1 leading to lot 2. The applicant also proposes to create an easement L over its own lot 2 in favour of lot 3 linking up with the proposed easement K. The proposed easement K is a right of way in favour of lots 2 and 3 and a right to place services under the land also in favour of lots 2 and 3.
- No respondent opposes the imposition of an easement in respect of services under the land in respect of both lots 2 and 3. Nor does anybody oppose the imposition of a right of way over lot 1 in favour of lot 2. The driveway is currently used to access lot 2 and everybody recognises the sense in regularising that situation. The applicant operates a community hall, tennis court, bowling green, swimming pool and car park on lot 2. Those facilities are used by the residents of the retirement village. The applicant has written agreements with the individual residents of the retirement village to provide them with facilities and services.
- Before 1985 the Herbsts owned all the land on which the retirement village is constructed. Their original block was subdivided in about 1985 into six lots. In their own right the Herbsts now only own Lot 4 which they wish to sell, no doubt preferably unencumbered by easement H. Lot 1 was one of the subdivided blocks and is now occupied by the retirement village where the body corporate is the registered owner of its common property. Lot 2 was transferred to a company called Noyea Park Community Property Pty Ltd and was later acquired by the applicant on 8 October 1999. Lot 3 was transferred in 1985 to a Mr and Mrs Martin who had entered into a joint venture with the Herbsts to develop the retirement village. The Herbsts and the Martins were shareholders of Noyea Park Community Property Pty Ltd until 1989 when a dispute arose and the Martins transferred their interest in that company to the Herbsts but retained ownership of lot 3 until January 2000 when the applicant acquired it from them. Lot 3 is vacant land.
- Mrs Herbst says that the failure to create easements in favour of Lots 2 and 3 over Lot 1 at an earlier stage was inadvertent, an oversight by previous solicitors. She also says that the applicant would not have acquired lot 3 if the resident representatives of the body corporate had not encouraged it to purchase the land.
- The real contest is over whether the right of way should be granted over part of lot 1 in favour of lot 3. The body corporate did not appear on the application and will abide the court’s order on that issue. The opposition comes from the second respondents, a number of members of the body corporate who were joined as respondents and who oppose the grant of access to lot 3 down the existing driveway over lot 1 and across lot 2. They say that lot 3’s access should remain along easements E and H, the solution reached by agreement between the then landholders, the Martins and the Herbsts, and ratified by an order of this court made 22 August 1994.
- Section 180(1) of the Property Law Act 1974 allows the Court to impose a statutory right of user on servient land in respect of other, dominant land where it is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. Such an order shall not be made, pursuant to s. 180(3), unless the court is satisfied that, in this context, it is consistent with the public interest that the dominant land should be used in the manner proposed, the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation and the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation.
- There are three possible uses proposed for lot 3 by the applicant: construction of a detached dwelling house on lot 3, or, subject to council approval, an extension of the existing village for up to a maximum of 12 accommodation units, or construction of an aged care facility.
Reasonably necessary in the interest of effective use in any reasonable manner of the dominant land
- In submitting that it was reasonably necessary to impose the statutory right of user in the interest of effective use of the dominant land, Mr Clarke, for the applicant, pointed to a number of factors supporting the inference that it was not merely desirable or convenient but substantially preferable to impose the right and what a prudent owner would regard as reasonably necessary; see Re Seaforth Land Sales Pty Ltd’s Land (No. 2) [1977] QdR 317, 322 A-C; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 508-509. It is important to note in this context that the remedy may be available although another means of access may exist; Re Seaforth Land Sales Pty Ltd’s Land (No. 2) at 331D-E.
- The factors Mr Clarke submitted supported the inferences were:
- Easement E is only constructed into a sealed roadway along the part parallel to Martens St. It is un-constructed in the part that abuts the park land, lot 5.
- The constructed part was not made for the purposes of access to lots 2 or 3 but solely to service residents of the village. It is not constructed with regard to the limits of easement E and approximately 50% of the made carriage way is outside the surveyed limits of easement E.
- The construction and use of the unmade part of easement E would significantly reduce amenity to residents of adjacent units by destruction of lawns, gardens and trees and by bringing traffic closer to the units.
- The construction and use of Easement H would significantly reduce the amenity of residents of adjacent units by destruction of lawns, gardens and trees and by bringing traffic closer to the units.
- Access over easements E and H is over a very roundabout route.
- The part of the easement at the join of easements E and H was below Council flood levels. In addition to the statistical flood levels reported by a surveyor Mr Volker, he pointed to the evidence of Mrs Herbst that part of easements E and H, where they intersect, was subject to flooding and adversely affected in times of heavy rain.
- The width of Easement E, where it abuts lot 5, is under the width set as the standard by the Gold Coast City Council for such access.
- The comparison to be made is not between the situation where lot 3 is not being used and the circumstances of proposed user of lot 3 with access over proposed easement K. The proper comparison is each of the proposed users, comparing use with access over easement E and use with access over proposed easements K and L.
- Evidence that, even without “impact amelioration”, user with access over proposed easements K and L would best serve general safety and amenity. (This was in response to concerns of the residents that more traffic movements along the proposed easement K would pose a traffic hazard, particularly to the more elderly residents of the village. The “impact amelioration” proposed is the construction of a defined walkway from stages 1, 2 and 2A of the retirement village to the community facilities on lot 2 to try to avoid problems with car traffic.)
- Evidence that the position is even stronger if the proposed “impact amelioration” is implemented.
- The evidence of a Mr Kempe, an engineer with significant development planning and engineering design experience, who said that easements K and L have none of the impediments or constraints of easements E and H. Some of those constraints are referred to above. Another was the unsatisfactory turning radius available at the join of easements E and H at the south east corner of lot 1.
- Mr Kempe’s evidence was also relevant to the possible use of lot 3 if access was restricted to easements E and H. It was his view that if it remained the only access it would be unlikely that the local council would grant a development approval to permit multiple unit dwellings or higher density use such as that on lot 1.
- In response Mr Hack SC accepted that the existing easements were circuitous and longer than that proposed but that did not, either of itself or in combination with the other matters, make the proposed easement reasonably necessary. Rather it meant that the proposed easement was merely preferable to the applicant. He also submitted that Easement E was not crossed by residents, rather, if it was used, it was used by residents walking along it and the applicant’s proposal would have traffic intersecting with the residents’ access to all of the community facilities. If one did not know what was proposed on Lot 3, he submitted further, it is impossible for the Court to reach any proper conclusion as to the likely effect of increased traffic since the extent of that increase is unknown. He also sought to minimise the problems of flooding or non-compliance with current requirements of the local authority in respect of the proper use of the existing easement.
- The constraints on the proper use of the existing easements E and H created by its circuitous route, the potential effect of floods on that route, the need to disrupt the amenity of lot 1 to use the existing easements properly in accordance with their terms and their unsuitability to permit higher density use of the land, which seems to be a proper use when one looks at the development on the adjoining blocks, all point to the conclusion that the imposition of such an easement is something that a reasonable and prudent owner would do and which is “substantially preferable” to use of the dominant land without the easement. In reaching this conclusion I have also formed the view that the proprietary rights of the members of the body corporate are not unnecessarily diminished. The claims by some witnesses that the position of the proposed easement K would lead to more strangers entering the premises were not convincing as, if lot 3 is to be sold to people unassociated with the retirement village, they will still have access along easement E over a much greater distance and in more secluded areas of the village than would be the case if they came down the main driveway near the facilities on lot 2. Nor does it seem to me that there is a significant risk to pedestrians in that area caused by any slightly higher number of traffic movement there than exists at present. This would be the case particularly if the “impact amelioration” proposed is undertaken.
- There is no practical likelihood of any other means of access to lot 3 via easement H and across lot 5 to Martens Street on the evidence of Mr Kempe.
Consistent with the public interest
- The continuation of the existing impractical, circuitous and flood affected route to lot 3 via easements E and H is not desirable. It is consistent, therefore, with the public interest that land such as lot 3 be able to be used for the use its zoning allows or might appropriately allow; Re Worthson Pty Ltd [1987] 1 Qd R 400, 404. Where the access available now suffers from those problems and there is a reasonable alternative open to provide more direct, all weather access that alternative is consistent with the public interest. The approach to that phrase in Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86, 90 of Andrews J, where his Honour said that the burden on the applicant was to show that a proposed use of the dominant tenement was not inconsistent with or contrary to the public interest and not to show that the public interest will be advanced by the use, seems to me to be appropriate.
Use in the manner proposed
- I referred earlier to the three proposed uses for lot 3 suggested in the applicant’s contentions: construction of a detached dwelling house, or, subject to council approval, use for an extension of the existing village for up to a maximum of 12 accommodation units, or construction of an aged care facility. It was submitted for the respondents that the number of possibilities submitted had the effect that there was insufficient certainty of the proposal for the court to be satisfied that it was consistent with the public interest that the dominant land should be used in the manner proposed.
- It seems to me to be a straight forward question of construction to interpret s. 180(1)(a) of the Act to allow the Court to satisfy itself that it is consistent with the public interest that the dominant land should be used in one or several of a number of proposed manners. It is simply an application of the principle that words in the singular include the plural; see s. 32C of the Acts Interpretation Act 1954. In other words I am satisfied that it is consistent with the public interest that lot 3 should be used in the manner or manners proposed; see also 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 at 508-509.
Adequate recompense to the owner of the servient land
- The applicant’s draft easement attached to the originating application proposes that it contribute one tenth “of the costs and expenses of and incidental to repairing and keeping in repair the surface of the right of way so that it will at all times be in trafficable condition.” At the moment the land is zoned only for residential use. There appears to be a prospect that it could be used for retirement village purposes particularly in association with the existing facility. In that event it may be possible to place 12 retirement units on the land. On another view it may be preferable to place fewer units on the land. No development approval has yet been sought for any such proposal.
- In any of these eventualities the likely increase in traffic over the access route will, on the evidence, be small. There are already 149 units on Lot 1 which have access to that route. Accordingly the contribution of one tenth of the costs of repairing the surface of the right of way offered is reasonable and adequate compensation for any loss or disadvantage which the owner may suffer. This also has to be considered in the context that the applicant proposes to surrender its rights over the existing easements E and H. I have already referred to its undertaking, if requested, to carry out the amelioration work recommended in a report by Mr Hunter of Vietch Lister Consulting by creating a defined walkway separated from vehicular traffic from stages 1, 2 and 2A of the village to the community facilities on lot 2; see para 20 of Mrs Herbst’s affidavit filed 23 January 2004 and Mr Hunter’s report attached to his affidavit.
Such obligation
- The area of the proposed easement K increased from 746 sq metres in January 2003 to 1007 sq metres in November 2003. The original proposal was not accepted by the body corporate at a meeting of 7 February 2003. The respondents submit that, accordingly, there cannot have been a refusal where what is now proposed is different from the earlier proposal. Other differences they point to are that a consideration of $10,000 that was previously offered for the grant has changed to $1 and an offer to have lots 2 and 3 rezoned so that they could not be used for any purpose other than for a retirement village and facilities has been deleted.
- It is necessary for all of the members of the body corporate to agree in respect of the imposition of the obligation, which was what led to the earlier refusal. It is evident from the stance taken by the second respondents that they have continued to refuse to agree to the imposition of the obligation proposed in this application. That has the necessary effect that the first respondent will not be able to agree to accept it.
- It is true that the present application has not been put to a meeting of unit holders but one does not need such a meeting, given the attitude of the second respondents, to know the outcome. Nor is the redefined proposed easement K significantly different from that proposed in January 2003. As Mr Clarke rightly points out s. 180(5) permits the court to direct a survey to be made of any land and a plan of survey to be prepared in respect of the imposition of the right which leads to the inference that the submission of a plan of survey before approaching the Court is not intended to be an essential element of the proposal made by the applicant before commencing this action.
- It is my view that the essential proposal by the applicant was put to the meeting and refused and that there has been a continuing refusal of the owner of the servient land to agree to accept the imposition of “such obligation” either as defined in January 2003 or as defined by this application in essentially similar terms. As first formally proposed by the applicant to the body corporate in its letter of 7 March 2002 it was described as a proposal for “access through the main internal driveway”. That remains the case. The resurvey takes into account the existing underground services not any proposed widening of the roadway as constructed. Nor does the question of area affect the decision to reject the proposal.
Unreasonable refusal
- The body corporate itself supported the proposal put to the meeting in January 2003, having taken independent legal advice. There are inferences open on the evidence that some of the reasons for opposition by the second respondents are unrealistic, in some cases based upon a hope that the land may be given to the village or sold to the body corporate at less than its true value. Little regard appears to have been paid to the advantages associated with the surrender of the existing easement to lot 3 over easement E. Some of these attitudes were also reflected in the fears of witnesses of strangers coming on to the property to access lot 3. They did not appear to appreciate that whoever becomes the owner of lot 3 when and if it is sold will have rights to access the land by travelling a significant distance through the village in any event.
- When one compares these attitudes with the simplicity inherent in the applicant’s proposal, its practical logic for the effective use of lot 3 in a reasonable manner, the reasonable compensation offered, the likelihood that there will be no adverse consequences for the residents of the retirement village and some benefits from the works proposed and the surrender of its rights over easements E and H, the refusal by the body corporate to accept the imposition of the obligation is, in my view, unreasonable.
Conclusion
- Accordingly I propose to make an order essentially in the terms sought and will hear the parties as to the form of the order and any undertakings offered by the applicant. I shall also hear the parties as to costs.
![Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village [2004] QSC 197](/judgmentview/image?name=53277.001.jpg&id=53277)