Donskoi v Whitaker-Mead[2025] QSC 166

SUPREME COURT OF QUEENSLAND

The application

1. [1]
   Pursuant to s 180 of the Property Law Act 1974 (Qld) (the Act) the applicants seek orders that:

   1. A statutory right of user in the form of an easement for right of way be imposed over part of the respondent’s land so as to provide vehicular access to the rear of the applicants’ land and to a garage situated there;
   2. The respondent be directed to remove at his own cost the concrete fence and any other structures that presently prevent vehicular access to the garage and rear of the applicants’ land;
   3. The applicants pay the respondent $10,800 as compensation for the imposition of the statutory right of user or such other amount as the Court deems fair and reasonable;
   4. The respondent pay the applicants’ costs pursuant to s 180 of the Act.
2. [2]
   The applicants seek to obtain a right of user over a part of one side of the respondent’s land. The right of user is sought so that the first applicant, one of two registered owners, can use a part of the respondent’s new driveway, with their own driveway, as the means of vehicular access to the rear of the applicants’ property and in particular to a garage at the rear.  It seems that vehicles have been able to access this area for the last three decades.  That is not presently possible as the respondent recently constructed a new driveway, and a fence on his land proximate to the boundary.
3. [3]
   The application is resisted by the respondent primarily on the ground that the Court cannot be satisfied that the statutory right of user sought is reasonably necessary in the interests of the effective use in any reasonable manner of the applicants’ land.  The respondent abandoned arguments about the lawfulness of the garage and about the applicants’ house being a dual occupancy dwelling.
4. [4]
   The applicants advance a case for a statutory right of user granted over an elongated (longer than wider) strip of the respondent’s land currently used by the respondent as a driveway.  It would involve 8m² of the respondent’s land.  It would seek to take advantage of what remains of a shared vehicle crossover (remnant shared crossover).  The parties refer to this suggested right of user as option 1.
5. [5]
   The applicants also provide another option.  Anticipating a possible difficulty with the future availability of the remnant shared crossover, the applicants advance a case for a statutory right of user over a wider than longer portion of the respondent’s land which is currently utilised by the respondent as a driveway.  It would involve 4m² of the respondent’s land and would require the properties to share the same crossover – the respondent’s new crossover for which he obtained council approval in recent years.  For this reason, the applicants characterise this as the less preferable option.   The parties refer to this as option 2. 
6. [6]
   For the reasons which follow, the applicants have not satisfied me that it is reasonably necessary to impose a statutory right of user over the respondent’s land in terms of either option 1 or option 2.

Non contentious facts

7. [7]
   In September 2020 the applicants became the registered owners as joint tenants of Lot 362 on RP 96898, known as 44 Dilgara Street, Tugun.  The land adjoining is Lot 363 on RP 96898, known as 46 Dilgara Street, Tugun.  Dilgara Street ends in a cul-de-sac and 44 and 46 Dilgara Street are situated just before the “bulb” area of the cul-de-sac.
8. [8]
   The applicants’ property is approximately 546m².  It has an angled western boundary with 46 Dilgara Street.  The property slopes in a downwards direction from the front at a gradient of around 15%.  The property has a street frontage of about 13 metres.  It currently has two crossovers giving access from Dilgara Street to the property.  The eastern crossover provides access to a concrete slab situated in the front yard of the property.  A motor vehicle can be parked on that slab.  The western crossover is what remains of a shared crossover which gives access to the driveway to 44 Dilgara Street.  That driveway formerly gave access to the garage at the rear of the property.  The remnant shared crossover was probably constructed in 1993 or 1994 and the driveway and garage were probably constructed at about the same time.  The remnant shared crossover had been part of a wider shared crossover which once gave access from the street to 46 Dilgara Street too. 
9. [9]
   The eastern crossover and the remnant shared crossover are situated on council land.  No council records can be found concerning the construction of or authorisation for the remnant shared crossover. 
10. [10]
    In January 2021 the respondent became the registered owner of 46 Dilgara Street, which has an area of 615m².  From sometime in May 2021 the respondent became aware that a part of the applicants’ concrete driveway encroached onto his land.  The encroachment was approximately 1.08 metres.  During 2021 the respondent demolished the house at 46 Dilgara Street and began to construct a new house.  The respondent took no steps to restrict vehicles using the applicants’ driveway from travelling over his land until July 2023. 
11. [11]
    Although the second applicant has moved away from 44 Dilgara Street, he remains a registered owner of the property with the first applicant.  
12. [12]
    On 6 May 2023 the respondent provided the first applicant with a copy of a survey plan he had commissioned.  This plan showed the encroachment.  On 28 June 2023 the applicants had a discussion with the respondent and his wife about the boundary.   The applicants’ evidence about this discussion differs in some respects from the evidence of the respondent and his wife.  The applicants submit that the agreement they say was arrived at in that discussion bears upon whether the respondent’s refusal to accept the imposition of an obligation of user is unreasonable.  Whether his refusal is unreasonable is a matter dealt with in s 180(3)(c) of the Act.  Whether or not his refusal is in all circumstances unreasonable need only be considered if the applicants satisfy the test imposed by s 180(1) of the Act.
13. [13]
    On 6 July 2023 the respondent began the construction of a new driveway on his land.   The process to construct the new driveway involved the removal of that part of the applicants’ driveway which encroached onto his land. 
14. [14]
    On 16 August 2023 the respondent caused an encroachment notice to be sent to the first applicant.
15. [15]
    In October 2023 the respondent built a concrete fence along or near the boundary with 44 Dilgara Street.  The erection of the fence has had the effect of preventing any vehicle larger than a motorcycle from accessing the rear of the applicants’ land.  
16. [16]
    The Gold Coast City Council Driveways and Vehicles Crossing Code limits properties of less than 40 metres street frontage to one crossover.  In view of the size of the applicants’ street frontage a second crossover for their property would not be an “accepted development” under the Code.  If a statutory right of user is imposed the first applicant said she will relinquish the eastern crossover.
17. [17]
    It is common ground that there is no alternative feasible means of vehicular access to the rear of 44 Dilgara Street that does not involve a route which passes between the applicants’ house and the respondent’s property.

Relevant legislative provision

18. [18]
    Section 180 of the Property Law Act provides:

“180  Imposition of statutory rights of user in respect of land

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—

1. by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and

2. on 1 or more occasions; or

3. until a date certain; or

4. 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—

1. it is consistent with the public interest that the dominant land should be used in the manner proposed; and

2. 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

3. either—

1. 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

2. 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)—

1. 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

2. may include such other terms and conditions as may be just; and

3. shall, unless the court otherwise orders, be registered as provided in this section; and

4. 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—

1. 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

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

5. 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.

5. The court may—

1. direct a survey to be made of any land and a plan of survey to be prepared; and

2. order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and

3. order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and

4. give directions for the conduct of proceedings; and

5. make orders in respect of the costs of any of the preceding matters and of proceedings generally.

6. In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.

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.

8. This section does not bind the Crown.”

19. [19]
    Before an order may be made under s 180 the Court must be satisfied about four matters.  First, that the right of user sought is reasonably necessary in the effective use in any reasonable manner of the applicants’ land (s 180(1)). Second, that it is consistent with the public interest that the applicants’ land should be used in the manner proposed (s 180(3)(a)). Third, monetary compensation for the respondent is adequate (s 180(3)(b)). Fourth, the respondent’s refusal to accept the imposition of the obligation of user is unreasonable in all of the circumstances (s 180(3)(c)).

Applicable principles

20. [20]
    Section 180 facilitates “a form of compulsory private acquisition of interests in or rights over land …”.^[1]
21. [21]
    The onus lies on the party who seeks a statutory right of user to prove that the right of user sought is reasonably necessary.^[2]  Section 180(1) requires two matters to be considered.  The first is whether the proposed use is a use in a reasonable manner of the applicants’ land.  The second is whether that use is reasonably necessary.^[3]
22. [22]
    In M Salazar Properties Pty Ltd v Jeffs Flanagan JA said:^[4]

“Because of the section’s impact on servient landowners, in Re Seaforth Land Sales Pty Ltd’s Land, Douglas J observed that in embarking upon a consideration of s 180, ‘the premise [is] that one should not interfere readily with the proprietary rights of an owner of land sought to be made the subject of a right of user…’.”

23. [23]
    In Re Hodgskin Wilson J said:^[5]

“The question of what is ‘reasonably necessary in the interests of effective use [of the land] in any reasonable manner’ cannot be determined without regard to the implications or consequences on the other land likely to be affected: see Nelson v Calahorra Properties Pty Ltd … The evidence in relation to reasonable necessity is to be examined with particular care to ensure that the proprietary rights of [the servient landowners] are not unnecessarily diminished: see Lynch v White … While absolute necessity need not be established, it is necessary to show more than mere preference or convenience: see Tipler v Fraser … Lynch v White; Re Seaforth Land Sales Pty Ltd (No 2) …” (Citations omitted)

24. [24]
    Also, in Bradshaw v Griffiths Morrison JA said:^[6]

“…

2. The requirement of “reasonably necessary” does not mean absolute necessity.

3. What is ‘reasonably necessary’ is determined objectively.

4. Necessary means something more than mere desirability or preferability over the alternate means, it is a question of degree.

5. The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.”

25. [25]
    In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd the Court of Appeal of NSW in considering a provision analogous to s 180 said:^[7]

“The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved.  That is implicit in the concept of reasonable necessity.  In the present case it involves the consideration of whether there is alternative access to give effect to the development.”

Summary of evidence relevant to reasonable necessity

26. [26]
    The first applicant’s evidence was that the respondent’s construction of the fence has deprived her of vehicular access to the double garage at the rear of her property for any vehicle larger than a motorcycle.  This means she is unable to store objects there which require towing such as a trailer or a jet ski.  The garage has been used “primarily” for storage of objects during a period of family separation, though it has been used for “occasional vehicle use”, for gardening equipment and for trailers.  She said she has not used the garage to store a vehicle since she and the second applicant separated.  Separation occurred in September 2021.  Her evidence was that once the second applicant removes his property from the garage her intention is to “resume” vehicle storage there, in particular to use the garage to store a motor vehicle she intends to restore. 
27. [27]
    The first applicant said the area adjacent to the garage has been used as a place to park to load and unload objects into or from vehicles.  When she moved into the property almost all of her furniture was brought into the house via the back stairs due to restricted space at the front of the house.  Should she ever decide to move away, refrigerators and couches would have to be carried up the steep driveway and this would be both unsafe and impracticable, as well as increasing the costs to her of hiring removalists.  Also, her insurance premiums have increased due to the loss of access to the garage.
28. [28]
    The construction of the fence has also deprived her of the ability to park her car on the driveway adjacent to her front door.  This has caused her to park her vehicle at the top of her driveway but her small SUV vehicle protrudes onto the footpath area when parked there.  This resulted in a Council infringement notice issued to her on 13 November 2023 for parking in a restricted area.  She says there have been visits by Council officers to investigate complaints about her parking on the 2 May 2024, 7 May 2024, 17 May 2024 and 9 June 2024.  She also says that she was issued with a warning to move the vehicle on 26 June 2024.  The first applicant said that there is  also a carparking area at the top of her land but it is only sufficient for a small car.  It is a significant distance from the house.
29. [29]
    The cul-de-sac her house is adjacent to is marked with yellow lines prohibiting parking.  The situation of her having to park on the street has increased congestion in an area of street where there are 25 dwellings over about 125 metres of street frontage. 
30. [30]
    In a supplementary affidavit the first applicant said she was “not insisting on parking rights over the disputed area.  My only interest is in preserving access to the garage for storage and occasional vehicle use”.
31. [31]
    She says emergency vehicles are no longer able to access the rear of her property.
32. [32]
    Her gas supplier has informed her that it will no longer deliver 43kg bottles to her house because the supplier’s trucks are unable to access the rear of the property.  The supplier has informed her safety concerns for their drivers mean that their drivers are unable to deliver gas bottles of that size by trolley to the back of her house having regard to the steepness of the driveway they would be required to negotiate.  She says the intake valve for gas to enter the house is at the rear of the house.  She says no reasonable structural alternative is feasible due to the position her house occupies on the land.
33. [33]
    The first applicant’s evidence was challenged to the following extent.  She rejected the suggestion she rarely drove her vehicle to the rear of her property before the fence was built but did agree she had usually parked her car on the driveway in front of the gate.  Photographic evidence showed the gate to be proximate to the front door to the applicants’ house.  To the suggestion she could adjust her gas bottle deliveries so as to be supplied with 12kg bottles she said the supplier had not suggested that as an option.  She said the supplier’s advice was gas is now undeliverable.   The delivery of smaller gas bottles was not something she had looked into.
34. [34]
    The second applicant’s evidence was that when he lived at the property the garage had been used to store a motor vehicle and trailers. 
35. [35]
    A prior registered owner of the applicants’ land deposed that over the 13 years that she lived there she used the driveway as a place to park her car and as the means of access to the garage.
36. [36]
    The respondent’s evidence was that the first applicant had never driven her vehicle further down her driveway than the gate.  Mrs Whitaker, the respondent’s wife,  said the only vehicle she had ever seen at the rear of the property was a motorcycle. 
37. [37]
    The respondent, who is a licenced builder, said that a modification to a corner of the applicants’ house could be made to allow for a vehicle to gain access to the garage thereby obviating any need for a statutory right of user over his land.  He had initially estimated that the work to do this would cost about $10,000.  His estimate at the time of the trial was that the suggested modification would cost $16,170.  However, he acknowledged his proposal did not include any of the costs associated with the private certification of the modification or the costs associated with the construction of a new vehicle crossover.  He acknowledged that the modification would not provide sufficient space for a vehicle as large as a four-wheel drive to gain access to the garage.  He agreed for that to occur a portion of the applicants’ front veranda would also have to be removed.
38. [38]
    The parties each adduced opinion evidence from town or urban planners.  Each expert’s evidence was relevant to option 1 because the efficacy of this option depended upon the continuing availability of the remnant shared crossover as the means of access to 44 Dilgara Street from the road.
39. [39]
    Mr Gianarakis gave evidence for the applicants.  Relying on historic aerial imagery, he opined that the shared crossover utilised by 44 and 46 Dilgara Street had been constructed in the period between January 1993 and August 1994.  Under the council’s City Plan, which came into effect on 2 February 2016, vehicle access works did not require a development permit if the works complied with the Driveways and Vehicles Crossing Code Table 9.4.2–1.  If the works did not comply with that Table then a development permit to perform the works was required.  His search of council records had not been able to locate a development permit for the works for the shared crossover.  The records only went back to 1998 though.  Prior to the commencement in February 2016 of the City Plan, the previous planning scheme had not required a development permit for works for a crossover for a house.  Although the remnant shared crossover did not meet the Table 9.4.2–1 requirements of the Code, Mr Gianarakis’s opinion was that the remnant crossover would not be regarded as unlawful “in a town planning sense”.  However, if it was necessary to obtain the approval of the council for use of the remnant shared crossover, his opinion was that such an approval “could” be obtained by demonstrating that the “Performance outcomes” in Table 9.4.2–2 of the Code had been met.  He acknowledged the “Performance outcomes” approval included a requirement both landowners consent to the works proposed.  Although the respondent gave evidence that he would not give his consent, Mr Gianarakis’s opinion was the lack of consent would not necessarily be determinative of any application.  Also, council approval for the new crossover the respondent obtained to access his new driveway would have no effect on the “legality of the remainder of the older wider shared crossover from a town planning perspective”. 
40. [40]
    Mr Selten gave evidence for the respondent.  He also considered that the remnant shared crossover did not meet the requirements in Table 9.4.2–1 of the Code.  He considered that this crossover was “unlawful”.  His view was that it could not be regularised under Table 9.4.2–2 of the Code because it could not meet the “Acceptable outcomes” criteria in the Table.  Mr Selten agreed that he had not considered the possibility of the remnant shared crossover meeting the “Performance outcomes” under Table 9.4.2–2.

Findings of fact relevant to reasonable necessity

41. [41]
    I accept the first applicant’s evidence that there were occasions when she drove her vehicle to the garage area.  I accept her evidence that the loss of the driveway which encroached onto the respondent’s land and the construction of the fence on his land have deprived her of the ability to get a motor vehicle to the rear of her property and have deprived her of a space to park her car.  I accept her evidence that gas bottles of the size she used to receive can no longer be delivered to the rear of her property.  She has suffered inconvenience as a result of the building of the fence on the respondent’s land.  To the extent that her evidence is that there is no reasonable structural alternative gas entry point I accept that is her understanding of the situation. 
42. [42]
    I accept the second applicant’s evidence that he used to store a motor vehicle and trailers in the garage when he lived at the property. 
43. [43]
    The evidence of the former owner shows that the applicants’ use of the land was not peculiar to the applicants.

Parties’ submissions about reasonable necessity

44. [44]
    The applicants submit that if a statutory right of user is not imposed in conformity with either option 1 or option 2 vehicular access to the garage will be impossible and there will not be enough parking space for the first applicant’s vehicles.  The use of the land to accommodate vehicles is a use of it in a reasonable manner.  Therefore, it is submitted that the Court can be satisfied that it is reasonably necessary in the interests of the effective use in a reasonable manner of the land that the applicants have a statutory right of user over the respondent’s land.  The applicants submit that there will be minimal interference with the respondent’s land because the right of user will only be over a portion of his concrete driveway and apart from the removal of a portion of the fence the respondent has constructed, the right of user will not interfere with his house, yard or utilities infrastructure.  The right of user sought will restore access to the applicants’ land as it was for many decades.
45. [45]
    The respondent submits that neither option should be imposed.  The Court should not interfere readily with the respondent’s proprietary rights when an inexpensive means to achieve vehicular access is available.  The applicants could modify their house in the way the respondent has proposed and that will result in the vehicular access sought.  The applicants have not adduced any evidence demonstrating that the respondent’s proposed modification to the house is not feasible.  The applicants have not established a right of user is reasonably necessary.  Also, option 1, which requires access from the street, would be by way of the remnant crossover and that would require council approval and approval for that will not be granted.
46. [46]
    The applicants’ position is that council planning schemes prior to 2016 did not require a development permit for vehicle access works.  Therefore, s 260 of the Planning Act 2016 (Qld) applies to preserve the remnant shared crossover as a lawful use.  If it does not do so, the real possibility of obtaining an approval for that remnant crossover does not constitute an impediment to the Court imposing a statutory right of user in the form of option 1.^[8]
47. [47]
    My conclusion below about whether reasonable necessity has been established means it is unnecessary to arrive at any finding about the likelihood of the council approving the crossover contemplated by option 1.

Reasonable necessity

48. [48]
    The use of land within a residential allotment for the purposes of a driveway to park on, to garage a vehicle and to accommodate a vehicle, whether permanently or temporarily, such as to effect deliveries or collections of material, all involve uses in a reasonable manner of the land.  The land now owned by the applicants has been used for these purposes for many years.  A portion of the land now owned by the respondent has been used to facilitate access to the garage and for parking for many years.  In Nelson, McPherson J (as his Honour then was) said:^[9]

“The circumstance that a supposed but legally non-existent right has been persistently exercised in the past with the acquiescence of the land owners provides some evidence that the corresponding use of the land is both effective and can take place in a reasonable manner.”

49. [49]
    So one aspect of the test imposed by s 180(1) of the Act is met.
50. [50]
    The imposition of a right of user to enable these uses to continue would not just be convenient but desirable for any registered owner of 44 Dilgara Street. 
51. [51]
    I am mindful that it is not incumbent on the applicants to demonstrate absolute necessity.  However, the position, considered objectively, is that reasonable necessity, the other aspect of the test imposed by s 180(1), is not established.  The applicants’ land is accessible from the street and the evidence leaves open as realistic possibilities other options for car accommodation elsewhere on the applicants’ land, the continued use of the garage for the storing of objects other than cars or trailers and alternative arrangements for the supply of gas.
52. [52]
    The photographs annexed as exhibits to the first applicant’s affidavit show that the space which remains between the house and the respondent’s house is of sufficient width to allow people, furniture, bicycles and motorcycles to travel to and from the rear of the applicants’ property.   The garage area is therefore still accessible and usable.  The applicants have not adduced any evidence to show that an alternative option for garaging a vehicle is not available having regard to the fact that there is an area of land in front of the house.  The photographs show that in that area there is a concrete slab which is currently used as a parking area for a motor vehicle.  No evidence has been adduced to show that the area in front of the house could not be converted into a carport or garage and/or that the local authority would not permit such a development. 
53. [53]
    The evidence does not establish vehicular access is necessary to ensure the delivery of gas.  The first applicant’s evidence only goes so far as to show that deliveries of 43kg size gas bottles are not possible without vehicular access.  Her evidence is that she is unaware about whether she could have smaller sized gas bottles delivered to the rear of the property.  She said that, “that’s one of the things we would have to explore if the present application was refused.”  The applicants did not adduce evidence from either the gas supplier or a gas fitter regarding the feasibility or otherwise of relocating the gas intake valves and the bottle storage site to another area of the property to ensure the continued delivery of 43kg gas bottles.  No evidence was adduced that the property is now devoid of a means to heat or cook.  The correspondence sent by the gas supplier on 8 March 2024 invited the first applicant to visit their website to find out “how to fix the issue and get your gas deliveries”.  There was no evidence about what solutions had been proposed to her by her supplier. 
54. [54]
    It is not reasonably necessary to impose a statutory right of user to provide for contingencies which may never occur, such as for access to the rear of the applicants’ property by emergency services vehicles.  A shortage of adjacent street parking spaces does not advance the applicants’ case, particularly when there remains open the possibility of alternative parking space on their land. 
55. [55]
    The first applicant’s evidence that the respondent had never been inside her house to look at the area he said could be modified illustrates his suggestion is simplistic.  I have disregarded it.
56. [56]
    The statutory right of user sought is a right of way in perpetuity.  It will impose a significant burden on the respondent’s land.  The options the applicants have proposed require at least 4m² or up to 8m² of the respondent’s land.  His allotment, at 615m², is not a large allotment.  The respondent constructed the fence for reasons of safety and privacy.  If a statutory right of user is imposed any re-constructed fence would render the land the subject of the right unavailable for the respondent’s use.

Section 180(3)

57. [57]
    In view of the conclusion I have reached about reasonable necessity it is not necessary to consider the three matters s 180(3) concerns.  However, I will set out my finding about the matter in dispute in the discussions had on 28 June 2023.
58. [58]
    The issue in dispute was essentially the following.  The applicants’ evidence was that in return for them facilitating the respondent’s construction of a new driveway (which involved the removal of that part of the applicants’ driveway which encroached) by them refraining from parking on their driveway, the respondent undertook to allow them the right to drive vehicles over a portion of his new driveway upon completion of it to access the rear garage.  The respondent and his wife denied that this was agreed to.  In an email sent to the respondent and his wife on 23 October 2023 the first applicant stated, “I believed this matter was finally put to rest on the 28^th June when we conceded to the loss of land, and you had agreed that no fence would be erected”. 
59. [59]
    I am not persuaded that on 28 June 2023 the respondent gave an undertaking to the applicants that he would allow them access across his property to their garage after he completed his new driveway.  Two considerations are relevant to this conclusion.  First, according to the first applicant’s first affidavit on 6 May 2023 the “Respondent advised me that he wanted to construct a fence on the boundary of the 46 Dilgara property”.  Second, in text messages exchanged between the first applicant and Mrs Whitaker in the two days prior to the meeting of 28 June 2023, Mrs Whitaker wrote as follows:

“Council has told us we need to have our driveway 1 m from the fence (when we put one up) …”;

And:

“we haven’t planned a fence yet just FYI.  The plans we sent you are just the council approval for our driveway and vxo, … Happy to talk fencing after that …”

Order

60. [60]
    The order of the Court is:

1. The application is dismissed.

61. [61]
    I will hear the parties as to costs.