Steer v Hemmings[2010] QSC 460

SUPREME COURT OF QUEENSLAND

1. The applicants are the owners of the property at 40 Pacific Drive, Banksia Beach, Bribie Island, where they reside.  The respondents are their neighbours.  The applicants seek orders under s 180 of the Property Law Act 1974 (Qld) (PLA) imposing a statutory right of user over the respondent’s land; and relief relating to encroachments under s 185 of that Act.

Background

2. The real property description for the applicants’ property is Lot 152 on Registered Plan 880515, County of Canning, Parish of Woorim.  It has an area of 614 square metres.  It lies to the north of Pacific Drive, and has canal frontage at its northern boundary. 

3. A house is constructed on the applicants’ property. On the western side, there is an unroofed courtyard, with parts of the house on three sides of the courtyard. The western wall of the house encloses the courtyard, but adjacent to the courtyard, this wall is slightly lower than for the other parts of the house. That part of the house nearer Pacific Drive is a garage; while the other part of the house on the western side of the applicants’ property includes the main bedroom.  The house is constructed so that the western wall is very close to the western (or common) boundary, the face of the wall being of the order of 25 centimetres from the boundary.  Roof guttering for the roofed areas extends beyond the western wall, and is between 8 and 10 centimetres from the common boundary. 

4. From the south-western corner of the garage, a brick fence runs in a direction which might be described as west of south, crossing the common boundary at an angle. There is then a bend in the brick fence, from which it runs, within the respondents’ property, on an alignment approximately parallel to the common boundary, towards Pacific Drive.  Before reaching Pacific Drive, it then turns at an approximate right angle, and continues, parallel to (and within) the respondents’ southern boundary, in a direction away from the applicants’ property, across much of the road frontage of the respondents’ property.  At its south-eastern corner, the brick fence is 35 millimetre from the common boundary. 

5. To the north of the applicants’ house, there is a fence on the common boundary.

6. The respondents’ property is described as Lot 151 on RP 880515, Parish of Woorim.  Its address is 42 Pacific Drive, Banksia Beach.  On its northern side, it adjoins the canal.  It also has an area of 614 square metres.  The brick fence to which I have referred serves as its front fence, with a substantial opening, accommodating what appears to be a double-width paved driveway, from the kerb and channelling for Pacific Drive onto the respondents’ land, and leading to a double-door garage.  There is no gate for this opening.  The respondents’ house occupies much of the allotment, with much of the area between the house and the brick fence being paved.  To the northern side of the house, between it and the canal, there is a grassed embankment leading down to a concrete wall that forms the edge of the canal.

7. Like the applicants’ house, the respondents’ house is built very close to its western boundary. This appears to be a feature of the construction of housing in this locality.

8. The space between the applicants’ house and the respondents’ house is grassed. This grassed area links to the grassed area to the north of the respondents’ house. On the respondents’ land, there is in this grassed area a tank, which appears to be a rain water tank, and another smaller structure, both close to the respondents’ house. The grassed area is, to some small extent, within the applicants’ property.

9. There is a steel gate near the front (south-eastern) corner of the respondents’ house, extending from hinges attached to a post immediately adjacent to the western wall of the applicants’ house. The gate locks at a post immediately adjacent to the respondents’ house. The gate and its posts completely block the space between the two houses.

10. The respondents purchased their property on 11 August 1998. At that time, the brick fence at the front of the properties, and the gate between the houses, had been constructed.

11. The applicants purchased their property about the middle of 2004. About the middle of 2006, the applicants wished to install a rain water tank at the rear of their house. Mr Steer asked Mrs Hemmings whether it would be possible to take the tank through the space between the houses. Permission to do so was refused by Mr Hemmings. As a result, the applicants hired a crane to lift the tank over their house, to the rear of their property.

12. Since the installation of the tank, there has been some discord between the parties. The respondents have complained about a replacement roof installed over the patio at the rear of the applicants’ house. A request by Mr Steer to Mr Hemmings, for permission to have access to paint the western wall of the house and attend to the guttering, led to a dispute and threats of aggressive behaviour. A later attempt by Mr Steer to obtain permission to have access to the western part of the applicants’ property, to spray to control ants, and to carry out some maintenance to the drain, was unsuccessful.

13. Correspondence between the solicitors for the parties resulted in agreement on a number of terms on which access might be permitted, but the negotiations did not reach a conclusion.

Relief sought and contentions

14. In the pleadings, the applicants seek removal of that part of the brick wall which is within their land, and the gate post and the gate from within their land. However, in oral submissions Counsel for the applicants accepted that there was no practical utility in requiring the removal of that part of the brick fence which was on the applicants’ land. Moreover, if the applicants were granted a right of user which would give them access to their land to the north of the gate, he appeared to accept that the gate and post might remain in place, provided the applicants were given a key. He submitted that the grant of a statutory right of user was necessary to enable the applicants to carry out maintenance on their property.

15. The respondents oppose an order for the removal of part of the brick fence, gate and post because of the effect on the privacy and security of their property, the associated expense, and the fact that the structures were erected prior to the purchase of either of the properties by their present owners. They also submit that a more appropriate order would be an order for a boundary realignment, but have not raised the granting of such relief in their defence and counterclaim. The respondents submit, by reference to a statement of principles relating to s 180 of the PLA found in Lang Parade Pty Ltd v Peluso & Ors,^[1] that the grant of a statutory right of user is not reasonably necessary in relation to the applicants’ use of their land, particularly in light of the consequences for the enjoyment of the respondents’ property.  They submit that maintenance could be carried out from the roof of the applicants’ house, “albeit a little less conveniently”.  In the event that a statutory right of user is granted, they have, by counterclaim, claimed a sum of $100,000 by way of compensation.

Application for relief in respect of encroachments

16. The following provisions of the PLA are relevant to this application:

“184 Application for relief in respect of encroachments

(1)Either an adjacent owner or an encroaching owner may apply to the court for relief under this division in respect of any encroachment.

(2)This section applies to encroachments made either before or after the commencement of this Act.

185Powers of court on application for relief in respect of encroachment

(1)On an application under section 184 the court may make such order as it may deem just with respect to—

(a)the payment of compensation to the adjacent owner; and

(b)the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and

(c)the removal of the encroachment.

(2) The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other matters—

(a)the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and

(b)the situation and value of the subject land, and the nature and extent of the encroachment; and

(c)the character of the encroaching building, and the purposes for which it may be used; and

(d)the loss and damage which has been or will be incurred by the adjacent owner; and

(e)the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and

(f)the circumstances in which the encroachment was made.”

17. When considering an application for relief of this kind, the court is given a broad discretion, to grant or refuse relief “as it deems proper in the circumstances of the case”. Amongst the matters specified in the statute as matters which might be taken into consideration, are the nature and extent of the encroachment, the character of the encroachment, the purposes for which it may be used, loss and damage incurred by the adjacent owner, and loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment.^[2]  It is apparent from the photographs in evidence that the width of the brick fence is equivalent to the length of a brick.  Because the fence curves across the common boundary, it is apparent that a line taken through the fence along the common boundary is substantially longer than the width of the fence.  No evidence was put forward about how the fence might be treated if that part of the fence which is within the applicants’ land were removed.  Literal compliance with an order for the removal of that part of the fence would result in the retention of an odd-shaped ending to the fence, with the exposure of cut brick.  An alternative, not canvassed at the hearing, would be to remove that part of the fence where the curve commences, and continue the fence further north, wholly within the respondents’ property. 

18. It is apparent that an order for removal of the brick fence, to the extent that it encroaches on the applicants’ property, would not provide the applicants with any significant benefit. It is likely to result in their having the use of that very small piece of land covered by the encroaching fence; and a narrow entry to the very narrow strip of land between the western wall of their house, and the common boundary. If (as I intend) a statutory right of user is to be granted which does not depend upon access at this location, then any benefit from the removal of the encroaching part of their fence is even less significant. However, it is obvious that some cost would be incurred in the removal of the fence, and possibly additional cost in replacing it wholly within the respondents’ property, or in attempting to achieve a satisfactory treatment of the end of the fence, the need for which would be created by the removal of that part within the applicants’ land.

19. There has been no suggestion that the very small area of land covered by the fence itself has any measurable value.

20. Although the encroaching fence prevents access to the narrow strip of land owned by the applicants and adjoining the western wall, it also effectively operates as the boundary between the two properties. In doing this there is some give and take, because it prevents the respondents from having access to the south eastern portion of their allotment. In a practical sense, this area has been made available to the applicants, and appears to form part of a garden bed, most of which is on the applicants’ allotment.

21. As has been indicated, it is apparent that the brick fence was constructed prior to the purchase of either of the properties by their present owners. The applicants and the respondents would appear to have purchased their properties on the assumption that the brick wall, in a practical sense, divided the properties.

22. In those circumstances, and on the basis that a statutory right of user is to be granted to the applicants, I do not propose to make an order requiring the removal of that part of the brick wall which is within the applicants’ property.

23. While part of the gate and the post are within the applicants’ property, the result of an order for their removal, to the extent they encroach on the applicants’ land, may well lead to a requirement for the construction of a fence on the common boundary; or possibly to the placement of a new post wholly within the respondents’ property, and the replacement of the gate with a smaller gate. Such a result would not significantly enhance access by the applicants to that strip of their land which is to the north of the gate.

24. The gate is important to the respondents because it provides them with security and privacy. While there was no evidence about the cost of removing those parts which encroach onto the applicants’ land, it is inevitable that some costs would be involved.

25. Again, the gate and post were in place before either of the properties was purchased by the parties.

26. In these circumstances, and on the basis that a statutory right of user is to be granted to the applicants, it seems to me proper to refuse an order requiring the removal of the fence and part of the gate.

27. Accordingly, that part of the applicants’ claim fails.

Principles relating to grant of statutory right of user

28. The power to impose a statutory right of user is conferred by s 180 of the PLA, in the following terms:-

180(1)Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.

(2)A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable—

(a)by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and

(b)on 1 or more occasions; or

(c)until a date certain; or

(d)in perpetuity or for some fixed period; as may be specified in the order.

(3)An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

(a)it is consistent with the public interest that the dominant land should be used in the manner proposed; and

(b)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

(c)either—

(i)the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner’s refusal is in all the circumstances unreasonable; or

(ii)no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.

(4)An order under this section (including an order under this subsection)—

(a)shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and

(b)may include such other terms and conditions as may be just; and

(c)shall, unless the court otherwise orders, be registered as provided in this section; and

(d)may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that—

(i)the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or

(ii)some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and

(e)shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.

(7)In this section—

owner includes any person interested whether presently, contingently or otherwise in land.

statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.

utility includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility.”

29. Both Counsel relied on the following passage as a statement of principles relating to some of the issues raised by s 180(1), taken from the judgement of Douglas J in Lang Parade Pty Ltd v Paluso & Ors:^[3]

“[23]The applicant usefully and accurately summarised the relevant principles on this issue as follows:

(a)One should not interfere readily with the proprietary rights of an owner of land.^[4] 

(b)The requirement of ‛reasonably necessary’ does not mean absolute necessity^[5]. 

(c)What is ‛reasonably necessary’ is determined objectively.^[6] 

(d)Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree.^[7]

(e)The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.^[8] 

(f)For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user.^[9] 

(g)Regard must be had to the implications or consequences on the other land of imposing a right of user.^[10]”

30. Before applying these principles to the facts of the present case, it is convenient to note some further features of the applicants’ property.

Reasons why applicants might require access to western wall and boundary

31. The strip of land between the applicants’ western wall and the common boundary is grassed. From the photographs in evidence, it appears to be maintained. The logical inference from the circumstances of the present case is that the grass is mowed by the respondents, in a sense, as a matter of grace, and in another sense, to the benefit of the respondents, because it renders the adjacent part of the respondents’ property more attractive than it otherwise might be. There are reasons why this state of affairs would continue indefinitely, but that is not inevitable. However, this circumstance was not specifically relied upon in support of the applicants’ application under s 180, and accordingly, I do not propose to give it further consideration.

32. Provision is made for surface water to pass from the grass strip between the houses, under the applicants’ western wall, to a drain in their courtyard. In the past, this has become blocked. It has been possible to re-establish a passage for water by pushing a pipe from the courtyard, under the wall. However, it is by no means certain that on future occasions the passage can be maintained in this way; and in any event, it seems to me to be likely that a clear pathway for the flow of surface water can be more efficiently established if the applicants have access to this part of their property from the respondents’ land. So much is implicit in the brief report of Mr Moore, a plumber, who gave evidence; and in the evidence of Mr Hills, an engineer. I accept the evidence of these witnesses.

33. Mr Wells, of Slabset Systems (Aust) Pty Ltd, who has qualifications in pest control and termite treatments, gave evidence that a Slabset underslab termite barrier has been installed to the concrete slab on which the applicants’ house is constructed. That system, to be effective, requires the application of chemicals every five years. His evidence was that chemicals were last applied in 1997. Within the western wall of the applicants’ house are three plates, which provide access to nozzles by means of which the chemicals are applied. Mr Wells gave evidence, which I accept, that access will be required to these locations, to enable the treatment to be carried out; that a visual termite inspection would be required prior to the treatment; and that because the area is considered to be “a potentially high termite risk”, the treatment should be done “as a matter of some urgency”.

34. To the rear of the applicants’ house, a piece of white ducting emerges from the western wall. It houses cable supplying electricity to the pontoon at the rear of their property; and for a pump for a water tank. The applicants are concerned that it might be a source of a problem they have experienced in their bedroom, due to the presence of ants (the alternative source being damage to the western wall of their house). In any event, it is by no means impossible that at some time in the future, some maintenance would be required to this ducting and cable.

35. The western wall of the applicants’ house is constructed of Hebel block work, which has a waterproof coating. Mr Hills gave evidence that this block work would readily absorb water if exposed to the elements, and that it is critical that access be made available to the wall in order to apply and maintain the water proof coating. His observation was that the wall showed early signs of oxidation, indicating a breakdown in the water proofing ability of the surface.

36. Mr Hemmings gave evidence that the guttering on the western side of the applicants’ house could be cleaned and maintained from the roof. Nevertheless, it seems to me to be relatively obvious that some work of this kind could be carried out more safely and effectively if the applicants were able to have access to the space between the two houses.

37. The applicants suggest that the pipe connecting their property to the external water supply main passes under the ground between their western wall and the common boundary. This is disputed by the respondents.

38. In May 2008 Mr Moore went to the applicants’ house and concluded that the water supply pipe was in that location; and that the brick fence and side gate between the houses had been constructed over that pipe. His conclusion was consistent the conclusion of Mr Hills, as a result of an inspection in October 2007. In his affidavit sworn in May this year, Mr Hemmings said that no evidence had been adduced to support the allegations that water pipes and storm water pipes are located in this part of the applicants’ property, and put forward a reason for a contrary conclusion. The respondents also relied upon an affidavit from Mr Foote, a plumber, who suggested that water supply piping went from the south western corner of the applicants’ land to a tap in the middle of the front boundary, and thence to the house.

39. As a result, Mr Steer excavated parts of the garden immediately adjacent to the common boundary, and took photographs showing the location of the water pipe leading into the applicants’ property. Mr Steer’s evidence was that the alignment of the pipe indicated that it passed under the brick fence. This in turn would indicate that it lies to the west of the applicants’ western wall, passing to the west of a drain pipe at the south western corner of the applicants’ house.

40. Moreover, if the water pipe had been installed under the slab of the applicants’ house, then it would only be possible to have access to it if maintenance were required, by using a jackhammer to break up the slab. That consideration provides some support for the view that it was installed outside the slab, rather than under it.

41. The photographs produced by Mr Steer demonstrate that the view expressed in Mr Foote’s affidavit is not correct. I also note that Mr Steer gave evidence that he was not able to enter the respondents’ property to obtain further evidence about the location of the water pipe. The conduct of the respondents’ case suggests that they are not prepared to accept that a water pipe lies in the applicants’ land, outside the western wall, unless that is established beyond all doubt. On the evidence available to me, I find that the water supply pipe lies under the applicants’ land, outside and adjacent to the western wall of their house.

42. The applicants are concerned that a stormwater drainage pipe also lies in this area. Mr Foote expressed the view that there was no stormwater drainage pipe in this location, based in part on the absence of any downpipes on the western wall of the applicants’ house, and on the fact that the stormwater drainage terminates to the south-east of the applicants’ land. However, Mr Steer gave evidence that there are a number of downpipes adjacent to the western wall, though not on the western wall itself; being at the western end of the front of the house; at the western end of the northern wall (the rear of the house); and on the wall of the courtyard behind the garage, towards its western end (near the door). In light of one of the matters raised by Mr Foote, this evidence suggests that there may be a stormwater drainage pipe in the applicants’ land, outside the western wall of their house. In my view, while the evidence raises the prospect that there might be a stormwater pipe between the applicants’ house and the common boundary, I am not prepared to make a positive finding to that effect.

Reasonable necessity and s 180(1)

43. Section 180(1) makes it necessary to attend to the identification of the land in favour of which (or in favour of the owner of which) a statutory right of user might be created. It also makes it necessary to identify the relevant use of that land.

44. It is now well established that an application may not be defeated simply by identifying a use of the land, which might be carried on effectively and in reasonable manner, and which would not make necessary the creation of a statutory right of user.^[11]  An application may succeed if the use on which it is based is reasonable, and, in the interests of carrying out that use effectively, the imposition of a statutory right of user is reasonably necessary.

45. In the present case, the land for the benefit of which the statutory right of user is sought is the whole of the applicants’ land. The intention is to permit access to the western strip, either from the balance of the applicants’ property, or in connection with its enjoyment.

46. The use of the applicant’s land is as a house property; or a use for residential purposes. There has been no suggestion that that is not a reasonable use of the land. Given that a house has been constructed on the applicants’ land, and that the land is located in a residential neighbourhood, this use, in my view, comfortably satisfies the statutory description of a use of the land in “any reasonable manner”.

47. It appears that houses in the immediate locality have been constructed, like the applicants’ and the respondents’, very close to a side boundary. It does not seem to me (and it was not argued) that the fact that the applicants’ house is constructed so close to the common boundary takes the use outside the description in s 180(1) of the PLA.

48. Such a use of the land includes, in my view, maintenance of the property, including the house and associated utilities and services; and the taking of steps intended to maintain, and even enhance, the residential amenity of the property. Relevant to the present case, it will extend to things like painting or otherwise maintaining the exterior surface of the wall; painting, repairing and replacing guttering; clearing drainage, including controlling vegetation which might affect the drainage; and maintaining utilities which service the property.

49. It is then necessary to direct attention to the question whether the creation of a statutory right of user is reasonably necessary in the interests of such use.

50. For the respondents, it is submitted that the applicants purchased a “near zero alignment property”, without the benefit of an easement, and at least by implication, thereby accepted any difficulty resulting from the location of the western wall of the house, very close to the western boundary of the allotment. They rely upon a statement by Young J in Hanny v Lewis,^[12] which includes the following:

“… the section does not exist for people to build right up to the boundary of their property or to build without adequate access and then expect others to make their land available for access.”

51. It should be noted that that proposition does not apply to the applicants. Their house had been constructed on the land before they purchased it. In my view, the applicants’ purchase of the property with the difficulties relating to access on its western boundary should not be unduly criticised. The house had been constructed at some previous time. They were entitled to assume it had the benefit of any approval required for the building work resulting in the construction of the house; and that it was otherwise lawful under relevant town planning controls. The fact that other houses in the locality (including the respondents’ house) are similarly located in relation to their boundaries provides additional support for this assumption. In those circumstances, it is entirely unsurprising that a purchaser would not appreciate that there may be a need to ensure a right of access over a neighbour’s property.

52. In any event, as Philip McMurdo J pointed out in Pacific Coast Investments,^[13] Young J was indicating a general approach, rather than identifying a condition which must be satisfied before relief is granted.

53. In my view, while the fact that the applicants purchased their property with the limitations relating to access to the western part of it is a consideration relevant to the exercise of the discretion, it does not preclude the granting of relief. Nor does it demonstrate that the grant of such relief is not “reasonably necessary”.

54. For the respondents, it was submitted, by reference to Re Hodgkin,^[14] that the question whether the imposition of a statutory right of user is reasonably necessary cannot be determined without regard to the implications or consequences on other land likely to be affected.  This reflects paragraphs (e) and (g) from the passage cited from Lang Parade.  The submissions also make reference to the fact that there is no evidence from the previous owner of the applicants’ land that the effective use of the land has been impeded in any manner by reason of the lack of a right of access through the respondents’ property; and that the evidence from the applicants does not demonstrate this.  They submit that home maintenance can be carried out from the roof of the applicants’ house.  They point to effects which it is said will result for the respondents’ property, namely, that security would be compromised, privacy would be lost, and the value of land reduced. 

55. In my view, the respondent’s submission about how home maintenance might be carried out demonstrates the weakness in their position. It ignores the fact that there is no roof immediately adjacent to that part of the wall next to the applicant’s courtyard. More importantly, there is inherently a greater risk in attempting to paint a wall from the roof above it, particularly the lower part of the wall, than from a position standing on the ground beside the wall. It is very difficult to accept that in any practical sense, maintenance to services adjacent to the western wall of the applicant’s house could be carried out from the house roof. In my view, to say that maintenance might be carried out from the roof “albeit a little less convenient(ly)” than from the ground, significantly understates the position. In this case, it is not a question of “(m)ere preference or convenience”, as is submitted on behalf of the respondents. Bearing in mind that it is not necessary for an applicant to establish “absolute necessity” (by whatever standard that might be judged), it seems to me that reasonable necessity encompasses access which is necessary to carry out maintenance to a property in a reasonably practical fashion.

56. I have previously identified specific reasons why the applicants might seek to have access through the respondents’ property to their land adjacent to the common boundary. Taken together, and acknowledging that there is some uncertainty about the location of some utilities, it seems to me that they provide a basis for finding, subject to the considerations I am about to discuss, that the grant of a statutory right of user is reasonably necessary in the interests of the effective use of their land in a reasonable manner.

57. The propositions stated in Lang Parade indicate that it is necessary to consider the consequences for the respondent’s land of the imposition of a statutory right of user.  An adverse effect on the value of the respondent’s land is assumed by the statute, being a consideration relevant to compensation.  It seems to me that it would be a relatively rare case where this consideration alone would justify refusing relief.  As will become apparent, I do not consider that the imposition of a statutory right of user in the present case will have a significant adverse effect on the value of the respondents’ land.  I do not consider it a reason to refuse relief in the present case.

58. The issues raised on behalf of the respondents relating to their security and privacy may be dealt with together. Although the respondents have the benefit of the brick fence for part of the street frontage of their property, they nevertheless have a wide opening, without a gate, for the balance of their frontage. They are obviously prepared to accept such intrusions on their security and privacy as that might permit.

59. The evidence showed that the canal to the rear of their property is a waterway accessible to the public. The rear of their property is completely open to this waterway, and is plainly vulnerable to entry by strangers, particularly at night. Users of the canal will obviously have direct views into the respondents’ property.

60. The case advanced on behalf of the applicants makes it clear that the statutory right of user is sought for limited purposes. They propose the imposition of conditions on the exercise of the rights, including the giving of reasonable notice. There is no reason for the applicants to exercise their rights, other than for those purposes. It is therefore likely that the rights will be exercised quite infrequently, and generally with notice to the respondents. The imposition of a statutory right of user would, in my view, have very little real effect on the privacy which the respondents currently enjoy in respect of the use of their property.

61. In evidence, Mr Hemmings expressed concern about security, particularly if the applicants were given a key to the gate. In my view, those concerns could by no means be regarded as reasonable. The occasions when rights would be exercised are likely to be very few, and are to be the subject of notice. The provision of a key to the applicants could not be said materially to alter the risk of a stranger entering the respondents’ property. I have already mentioned the extent to which the respondents’ property is vulnerable to entry. There is no reason to think that the applicants, or their successors in title, would be likely to use the key to enter the northern part of the respondents’ property for some illegal or improper purpose; indeed, if they were in fact minded to enter the respondents’ property for such a purpose, the photographs which are in evidence suggest that it would not be particularly difficult for them to do so, without a key to the gate.

62. On behalf of the respondents, it is submitted that these considerations have the consequence that the “implications and consequences of the imposition of an easement over the respondents (sic) property are dire”.  That submission, in my view, very significantly overstates the consequences of the imposition of an easement. 

63. It is also submitted that the amenity of the area would be altered by an alteration in the gate line. The submission did not explain how the imposition of a statutory right of user might cause the gate line to be altered; or how that would adversely affect the streetscape of neighbouring properties, given the location of the gate between two houses, and set back behind a brick fence. On its face, the submission appears to border on the extreme.

64. Considerations relating to the effect of the imposition of a statutory right of user on the respondents’ property should in this case be assessed against the form which development takes in this locality. The respondents’ house, like the applicants’, is constructed very close to the western boundary. It is implicit in the form of development which occurs in this locality that each landowner will need access across a neighbour’s property, for maintenance and similar purposes; and in turn, that each landowner will need to permit his or her neighbour on the opposite side of the property to have such access for similar reasons. It is, in a sense, the price of having houses of a particular size and configuration on a relatively small allotment. It seems to me that the consequences for the respondents and their property of the imposition of a statutory right of user (framed in appropriate terms) are generally what they should reasonably have expected when purchasing a property in this locality.

65. I have previously referred to difficulties which have occurred between the applicants and the respondents in relation to access by the applicants to the western wall of their house and the western strip. Against that background, it seems to me to be highly undesirable to leave questions of access to this area to attempts by the parties to make informal arrangements.

66. In my view, a consideration of the need by the applicants to carry out maintenance, the difficulties in doing so without the formality which would result from the imposition of a statutory right of user, and the limited consequences for the respondents and their property, all point strongly to the conclusion that the imposition of such a right is reasonably necessary in the interests of the effective use by the applicant of their land in a manner which is reasonable.

Compensation

67. In Re Seaforth Land Sales (No 2), D M Campbell J, with whom Hanger CJ agreed on this matter, considered the determination of compensation under s 180 of the PLA.  His Honour made reference to the statement of Dixon J in Nelungaloo Pty Ltd v Commonwealth,^[15] to the effect that the purpose of compensation is “to place in the hands of the owner the full money equivalent of the thing of which he has been deprived”.  D M Campbell J observed:^[16]

“It is plain that the legislature intended that all the circumstances should be taken into account in arriving at the compensation or consideration, and not merely the diminution in value of the land.”

68. As mentioned, the respondents have claimed compensation in the sum of $100,000 for the imposition of a statutory right of user. In support of that, they relied upon reports provided by a valuer. At the commencement of the hearing I ruled that those parts of the reports which specified an amount by which the value of the respondents’ property would be diminished if an easement were imposed were inadmissible. I also ruled that evidence proposed to be called from two real estate agents was inadmissible.

69. The written submissions on behalf of the respondents make reference to s 186 of the PLA, which deals with compensation where an adjacent owner is required to transfer land on which an encroachment has occurred to the encroaching owner.  In a case where the encroaching owner satisfies the court that the encroachment was not intentional and did not arise from negligence, the minimum compensation is the unimproved capital value of the land.  There is no equivalent provision where a statutory right of user is imposed under s 180.  Indeed, in special circumstances, there may be no order for compensation.^[17]  In Etwell v Newcastle City Council^[18] Palmer J found special circumstances which warranted a decision not to make an award of compensation.  However, I have not identified any statement of principle in his Honour’s reasons.  Something similar happened in Tran & Anor v Cowan & Ors.^[19]  However, the reasons for judgment suggest that the imposition of a statutory right of user would not cause any loss to the owners of the servient tenement.

70. The written submissions for the respondents correctly point out that many factors are relevant to the assessment of compensation, which is not confined to the diminution in value of the servient tenement.^[20]  They also submit that the appropriate way of calculating compensation is to determine the value of the respondents’ property as it stands now, and subtract what it would be after the imposition of a statutory right of user.  While, no doubt, there will be many cases where this approach is appropriate, it is not inevitably correct.^[21]  In the end, the Court is to consider whether there are special circumstances which would warrant a refusal to make an order for compensation; and otherwise to determine the amount of compensation which in the circumstances appears to be just.

71. In the present case, it has not been submitted that the circumstances are such that no order for payment of compensation should be made.

72. As has been indicated, an appropriate approach to compensation may be the determination of the reduction in value resulting from the imposition of a statutory right of user. Compensation sometimes includes an allowance for the “blot on the title” resulting from the registration of the right. Factors such as the adverse effect on the use or enjoyment of the servient land are to be taken into account. As s 180(4)(a) indicates, regards may be held to any relevant circumstance.

73. It is therefore necessary to identify the effects of the statutory right of user. One is to create a formal right permitting the applicants (and, most likely, their tradespersons) to enter onto the respondents’ land, and from it to carry out work on the applicants’ property. That is likely to have some impact on the respondents’ privacy and, possibly, their enjoyment of their property. The impacts, however, would undoubtedly be significantly limited by a requirement (except in cases of some urgency) to give notice of any proposed entry, and (again, except in cases of urgency) to limit the time of entry to times when such persons ordinarily carry out their work.

74. Generally, the imposition of an easement would preclude the erection of any obstruction in the area the subject of the easement. However, I propose to make an order which would permit the respondents to retain a gate in the position where one is presently located, on condition that they provide the applicants with a key. It seems to me that this would have no impact on the enjoyment by the respondents’ of their property. I consider the evidence given by Mr Hemmings on this issue to be without foundation.

75. Otherwise, the imposition of a statutory right of user would preclude the erection of a structure on the land affected by it. However, the Hemmings’ land is already fully developed. The area which would be subject to the right lies within what constitutes the only passage from the street to the rear of the property, other than through the house itself. Most landowners would wish to maintain such a passage, for practical purposes. There has been no suggestion that the respondents have any plans to erect any structure in this area. The photographs which are in evidence show what appears to be a tank, and some smaller structure, immediately adjacent to the eastern wall of the respondents’ house and towards its northern end. There has been no suggestion made on their behalf that the imposition of a statutory right of user, as proposed on behalf of the applicants, would require any alteration to the location of these structures.

76. Finally, it seems to me very likely that the right would be used on rare occasions. It does not provide the applicants with a convenient route which they are likely to use, except for the purpose of carrying out maintenance. The evidence demonstrates that the occasions for doing this are likely to be quite infrequent.

77. Again, it seems to me to be relevant to consider the activities which are likely to occur in that part of the respondents’ land which would be subject to the statutory right of user, are a consequence of the form of development which has occurred in the locality. As mentioned earlier, they are the very sorts of activities which any property owner in the locality would reasonably expect to occur, and ones which they themselves are likely to wish to carry out from time to time.

78. In the course of cross-examination of Mr Grams, the valuer called on behalf of the applicants, it was suggested that, in assessing compensation, the “value of the lost land” should be determined by apportioning, pro rata, the improved value of the respondents’ property over the total land area. That approach, in my view, should be rejected as quite unrelated to any measure of the detriment the respondents might suffer by reason of the imposition of a statutory right of user. Indeed, it is highly unlikely to reflect the value of the land which would be subject to the statutory right of user.

79. Mr Grams provided a report in which he expressed the view that the respondents’ land, if vacant, would have a value of $450,000. He then apportioned that over the area he was considering as likely to be subject to the imposition of a statutory right of user. His exercise assumed that the area affected would have a width of .5 metres (when in fact the applicants contend that its width should be .75 metres). Taking that approach, he assessed the value of the area which he considered, as being $8,000. An application of his approach to the area which the applicants contend for would result in a figure of $12,000.

80. Mr Grams assessed the reduction in value to the respondents’ property in the manner which has been indicated. He identified the effects of a statutory right of user as a restriction on the use of the land to which it is subject, because it would not be possible to erect structures such as gardens, sheds and water tanks. There would also be a loss of exclusive use of the area, loss of privacy, inconvenience while maintenance was being carried out on the applicants’ property, and the blot on the title which might have a future effect on saleability.

81. In my view, Mr Grams has attributed too much weight to some of these matters. I have commented on a number of them previously. It seems to me that the effect of the registration of a statutory right of user, as a blot or encumbrance on the title, depends on its consequences. For example, it is difficult to think that a purchaser who is otherwise prepared to purchase the respondents’ property at a particular price, would not be prepared to do so because of the rights conferred by the statutory right of user.

82. While the identification of the value of the respondents’ land, considered as a vacant parcel, and the apportioning pro rata of that value to the area affected by the statutory right of user, is of some assistance, it seems to me that to adopt it as the measure of compensation would be over-generous to the respondents. In the circumstances of the case, which have been discussed previously, it seems to me that I should take global approach to the assessment of compensation. Counsel for the applicants submitted that the appropriate amount was $5,000. Bearing in mind the matters to which I have referred, that seems to be a not inappropriate amount, and I determine compensation accordingly.

83. It will be noted that Mr Grams’ assessment related only to the area of the respondents’ land which is immediately adjacent to the common boundary. I propose to consider a grant of a statutory right of user which would permit the applicants access through the existing gateway or gap in the brick fence, and across the front yard of the respondents’ property. It seems to me that no additional compensation should be awarded in respect of this area. A contributing factor to its necessity is my decision not to order the removal of that part of the brick wall which encroaches on the applicants’ land. I have previously identified benefits to the respondents which are a consequence of that decision. The absence of the gate at the street boundary demonstrates that the concerns expressed by Mr Hemmings relating privacy and security did not extend to this part of the respondents’ property.

Other considerations

84. It seems appropriate to make reference to the other matters referred to in s 180 of the PLA whether or not they have been raised for consideration by the parties. 

85. One consideration is whether it is consistent with the public interest that the applicants’ land should be used “in the manner proposed”. The applicants use their land for residential purposes. That reflects the planning designation for their land and is consistent with land uses in the area. In my view, their use of the land, including the maintenance of their house, is consistent with the public interest.

86. Another consideration is whether the respondents have refused to agree to accept the imposition of a statutory right of user, and their refusal is, in all the circumstances, unreasonable. In the written submissions for the respondents it is contended that their refusal to grant an easement is reasonable because there is no evidence that the respondents would be adequately compensated, in the event that an easement were imposed. There is no basis for that submission. The applicants’ statement of claim seeks an order that a statutory right of user be granted on such conditions as the Court thinks just. In paragraph 25 (admitted by the respondents), it pleads that the applicants wrote to the respondents, requesting, among other things, the grant of an easement, along the common boundary, and offering to pay to the respondents any resultant decrease in value.^[22]  In the reply from the respondents’ solicitors (pleaded by the applicants and admitted by the respondents), the respondents proposed that there be a written agreement, which would not be registered on the title for the property, with different terms.  However, the reply did not suggest that the proposal for compensation was inadequate.  As a result, on 11 March 2008 the solicitors for the applicants, in a letter to the solicitors for the respondents (pleaded by the applicants and admitted by the respondents), renewed that proposal, though incorporating some of the conditions from the letter from the solicitors for the respondents.  That necessarily included the offer of compensation.  Subsequent correspondence on behalf of the respondents did not suggest that the compensation offer was inadequate.  The conduct of the applicants’ case at the hearing did not suggest that the respondents should not receive appropriate compensation.  While submissions made on behalf of the applicants were directed to the quantum of the compensation, they did not suggest that the respondents should receive less than adequate compensation.

87. In the correspondence before the commencement of the proceedings, the applicants made it plain that they sought an easement over part of the respondents’ land. The respondents’ position was that they would be prepared to enter into an agreement, but not to provide a document which could be registered over their land. Given the lesser rights provided by such an agreement, and concerns about the position when the properties pass to other owners, it is not surprising that the applicants were not prepared to accept the respondents’ proposal. However, in a letter of 13 March 2008 to the solicitors for the respondents, the solicitors for the applicants advised that the applicants, while their preferred approach was the grant of an easement, would consider any reasonable proposal by the respondents. However, in subsequent correspondence, the respondents maintained the position that they would not grant an easement, and would do no more than enter into an agreement which would not be registered. Against the background of the dealings between the parties, it seems to me that at this point, the refusal to agree to the registration of an instrument which would ensure access to the western strip and western wall of the applicants’ property, was unreasonable.

88. In any event, the question whether the respondents’ refusal was unreasonable can be determined by reference to the way in which the respondents have conducted their case at the hearing.^[23]  Throughout the hearing, they opposed the imposition of any obligation on them.  They took issue with many points, without any substantial basis for doing so.  The debate about the location of the water supply pipe provides an example.  The counterclaim for compensation in the sum of $100,000 was at no time abandoned, nor was the amount reduced.  As I indicated, the approach taken on their behalf in cross-examination in relation to the assessment of compensation was extreme.  In my view, their continued opposition to the application was unreasonable.

89. There nevertheless remains a discretion to grant or refuse relief under s 180.^[24]  In the present case, the imposition of a statutory right of user on the respondents’ land subject to appropriate conditions, and including an order for the payment of compensation, is consistent with the purpose of s 180, which includes facilitating the effective use of land in any reasonable manner, whilst ensuring just compensation for the effect of that imposition on the property rights of the owners of the servient land.  The other matters to which I have given consideration also favour, on balance, the imposition of a statutory right of user, notwithstanding the caution that should be exercised. 

Conclusion

90. In my view, it is appropriate to impose a statutory right of user. It should permit the applicants, their servants, agents, tradespersons, and others authorised by them, to enter the respondents’ land through the existing gateway, to open the existing gate at the side of the respondents’ house, or any similar gate erected in its place, and to have access to an area of the respondents’ land 75 centimetres wide, for the full length of the applicants’ house, including eaves and gutters, and any additional distance necessary to carry out work on the western side of the house. Entry should only be on notice of at least seven days, and in ordinary working hours for tradespersons; except in a case of some urgency. The respondents should be permitted to retain the gate, with a lock, provided they give a key to the lock to the applicants. There are likely to be other conditions, which have not yet been the subject of submissions. I shall invite further submissions from the parties on the precise terms of the order to be made, and on any other outstanding issue, including costs.