[2024] SASC 78

First to Fourteenth Applicant: DUKE UNLEY PTY LTD, DUKE ARTHUR 1 PTY LTD, DUKE ARTHUR 2 PTY LTD, DUKE ARTHUR 3 PTY LTD, DUKE MORNINGTON 1 PTY LTD, DUKE MORNINGTON 2 PTY LTD, DUKE MORNINGTON 3 PTY LTD, DUKE MORNINGTON 4 PTY LTD, DUKE MORNINGTON 5 PTY LTD, DUKE MORNINGTON 6 PTY LTD, DUKE MORNINGTON 7 PTY LTD, DUKE NOMINEES PTY LTD, DUKE ELEVATORS PTY LTD & DUKE UNLEY 204 PTY LTD Counsel: MR R J WHITINGTON KC WITH MR T A MCFARLANE - Solicitor: GRIFFINS LAWYERS Respondent: THE CORPORATION OF THE CITY OF UNLEY Counsel: MR M RODER KC WITH MR S EVANS - Solicitor: COWELL CLARKE COMMERCIAL LAWYERS Hearing Date/s: 12/12/2022 to 14/12/2022, 19/12/2022 to 22/12/2022, 27/01/2023, 30/01/2023, 31/01/2023, 21/03/2023, 28/05/2024 File No/s: CIV-20-006528 A SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DUKE UNLEY PTY LTD & ORS v THE CORPORATION OF THE CITY OF UNLEY [2024] SASC 78 Judgment of the Honourable Chief Justice Kourakis 6 June 2024 REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - STATUTORY EASEMENTS REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY IMPLICATION - IMPLIED GRANT AND RESERVATION - NON DEROGATION FROM GRANT REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY IMPLICATION - IMPLIED GRANT AND RESERVATION - BY NECESSITY REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - OTHER MATTERS REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY PRESCRIPTION - AT COMMON LAW AND LOST MODERN GRANT This was a multitudinous claim for easements burdening the respondent’s land and benefitting the applicants’ land. In October 1998, pursuant to a contract for sale executed in the previous year, the applicants acquired a shopping centre and attendant carpark at Unley, which they operated as part of their commercial -- 1 of 104 -- property portfolio. Adjoining the carpark on the applicants’ land (the Deck carpark) was a carpark located on the respondent’s land (the Council carpark), which had been constructed in 1973 and used by members of the Unley community generally to park. Also adjoining the Deck carpark was another carpark servicing a competing shopping centre (the Rossiters carpark), vehicular access to which had long been obstructed by way of a balustrade. On the applicants’ case, vehicular access between the Deck carpark and Council carpark was, as at the time of its acquisition of the premises, facilitated by a ‘Vehicle Access Link’, over which pedestrians could also pass on their way to the applicants’ shopping centre or onto the respondent’s land. It was contended by the applicants that, shortly after their acquisition of the shopping centre and Deck carpark, officers of the respondent entered onto their land and installed a number of concrete-filled and topped bollards, which had the effect of obstructing any further vehicular traversal between the Deck carpark and the Council carpark. Pedestrian traversal was still possible after the installation of the bollards. Those bollards, the applicants claimed, replaced a set of former bollards that had been installed in 1994 and removed in 1996, after an altercation between a director of the applicants and the CEO of the respondent. On the basis that, as at the date of its acquisition, vehicular and pedestrian access onto the Council carpark from the Deck carpark, and vice versa, were facilitated by the Vehicle Access Link, and only subsequently obstructed, the applicants claimed an easement in the nature of a right of carriageway and footway benefitting the Deck carpark and burdening the Council carpark, and an easement of parking on the Council carpark land for the benefit of prospective customers at its shopping centre. Those easements were claimed by way of: s 36 of the Law of Property Act 1936 (SA), on the basis that the extant user of each easement as at the date of conveyance metamorphosed such user into easements proper; implied grant under the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31; implied terms in the contract for sale; the doctrine of lost modern grant and prescription; and equitable recognition of an easement, arising from a set of unexecuted deeds between the respondent and the applicants’ predecessor-in-title. The applicants, further, claimed an easement in the nature of a right of footway over the Council carpark on the basis that, in certifying that the applicants’ land complied with the relevant fire standards, the respondent was to be taken as having granted such an easement. That easement was advanced on the ground that it was a necessary consequence of the grant of certification. Against this, the respondent contended that the easements of carriageway, footway, and parking on its land said to arise from the former user alleged by the applicants could not be made good in circumstances where the Vehicle Access Link had continuously remained obstructed by bollards, and pedestrian utilisation thereof was extended to all members of the public, irrespective of their business or reason for being on the putative dominant tenement. The respondent further contended that the easement of footway said to arise from its certification of the applicants’ land as fire compliant was untenable as a matter of principle. Held, dismissing the claim: 1. No equitable easement arose from the brace of unexecuted deeds exchanged between the respondent, the applicants’ predecessor-in-title, and the owner of an adjoining parcel of land. No clause of either deed countenanced the grant of an easement to the applicants’ predecessor- in-title and, in any event, neither party contended that the deeds had any legal effect in the absence of formal execution thereof. 2. The cumulative effect of the respondent’s lay and expert evidence established that the bollards obstructing vehicular access over the Vehicle Access Link were never removed prior to, and as at the date of, the applicants’ acquisition of the putative dominant tenement. Accordingly, there existed no extant user capable of metamorphosis into an easement of carriageway or parking by force of s 36 of the Law of Property Act 1936 (SA), or an implied grant thereof by application of the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31. The applicants’ claim for an easement by prescription was similarly untenable. 3. The cumulative effect of the applicants’ and respondent’s lay evidence established that pedestrian traversal of the Vehicle Access Link was countenanced to be undertaken by and extended to all members of the public, irrespective of their reason for being on, or business with, the putative dominant tenement. Accordingly, in the absence of any propinquity between -- 2 of 104 -- such traversal and the enjoyment of the putative dominant tenement as such, there existed no extant user capable of metamorphosis into an easement of footway by force of s 36 of the Law of Property Act 1936 (SA), or an implied grant thereof by application of the principles articulated in Wheeldon v Burrows (1879) 12 Ch D 31. 4. The respondent’s statutory power to certify land as complying with the relevant fire standards did not extend to creating a proprietary right to the extent necessary to ensure that the certificate of classification was properly issued. The issuing of a certificate of classification amounts to no more than a factum on which the lawful use of a building rests. Building Act 1971 (SA) s 9; Conveyancing and Law of Property Act 1881 (UK) s 6; Law of Property Act 1925 (UK) s 62; Law of Property Act 1936 (SA) ss 7, 36; Local Government Act 1934 (SA) ss 37, 37a, 218; Prescription Act 1832 (UK); Real Property Act 1852 (SA) s 10; Real Property Act 1886 (SA) s 69; Roads (Opening and Closing) Act 1991 (SA), referred to. Borman v Griffith [1930] Ch 493; Goldberg v Edwards [1950] Ch 247; Green v Ashco Horticulturist Ltd [1966] 1 WLR 889; International Tea Stores Co v Hobbs [1903] 2 Ch 165; Jones v Pritchard [1908] 1 Ch 630; Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633; Le Strange v Pettefar (1939) 161 LT 300; Lewis v Meredith [1913] 1 Ch 571; Phipps v Pears [1965] 1 QB 76; McGrath v Campbell (2006) 68 NSWLR 229; McKeand v Thomas (2006) 12 BPR 23,593; National Trustees Executors & Agency Co of Australasia Ltd v Long [1939] VLR 33; Quicke v Chapman [1903] 1 Ch 659; Schwann v Cotton [1916] 2 Ch 459; Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; Ward v Kirkland [1966] 1 WLR 601; Wheeldon v Burrows (1879) 12 Ch D 31; Wheeler v J J Saunders Ltd [1996] Ch 19; Wilcox v Richardson (1997) 43 NSWLR 4, applied. Clark v Barnes [1929] 2 Ch 368; Re a Contract between Peck and the School Board for London [1893] 2 Ch 315, discussed. Barkshire v Grubb (1881) 18 Ch D 616; Burrows v Lang [1901] 2 Ch 502; Bush v National Australia Bank Ltd (1992) 35 NSWLR 390; Butler v Mountview Estates Ltd [1951] 2 KB 563; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329; Concord Municipal Council v Coles (1905) 3 CLR 96; Duke of Sutherland v Heathcote [1892] 1 Ch 475; Graham v Philcox [1984] QB 747; Hill v Tupper (1863) 2 H & C 121; 159 ER 51; Horsfall v Braye (1908) 7 CLR 629; Kay v Oxley (1875) LR 10 QB 360; Nelson v Walker (1910) 10 CLR 560; Public Trustee v Smith (2008) 1 ASTLR 488; Re St Clement’s, Leigh-on-Sea [1988] 1 WLR 720; Re Walmsley and Shaw’s Contract [1917] 1 Ch 93; Tarrant v Zandstra (1973) 1 BPR 9381; Wall v Collins [2007] 3 WLR 459; White v Williams [1922] 1 KB 727, considered. -- 3 of 104 -- -- 4 of 104 -- DUKE UNLEY PTY LTD & ORS v THE CORPORATION OF THE CITY OF UNLEY [2024] SASC 78 Civil KOURAKIS CJ: Introduction 1 It has been said that, much like diamonds, easements are forever. This is a case that demonstrates the implications of that permanence, particularly in so far as it describes the sometimes dramatic ways in which easements can stand in the way of the future development of land. That aphorism also serves to highlight the seriousness with which parties, particularly commercial parties, are often taken to adopt with respect to the grant of a permanent interest in land. The grant of an easement is something that is neither lightly inferred nor routinely implied. 2 At first glance, this is a case about carparks and easements. On deeper examination, however, this is a case about the commercial consequences that easements, and other real proprietary interests, bear for the development of land. By a Fourth Revised Statement of Claim filed on 30 January 2023, the applicants, to whom I shall hereafter refer as the ‘Duke Group’, claim four easements benefitting their land and burdening an adjoining parcel of land owned by the respondent, to whom I shall hereafter refer as the ‘Unley Council’. Situated upon the Duke Group’s land is a shopping centre and an attendant carpark. The easements claimed by the Duke Group include: • an easement of carriageway and footway, so as to facilitate vehicular and pedestrian movement across the Unley Council’s land into and out of the shopping centre’s carpark; • an easement for parking in a carpark situated on the Unley Council’s land, so as to give prospective customers of the shopping centre a place to park their cars; and • an easement of footway over the carpark on the Unley Council’s land, so as to ensure that the Duke Group’s carpark complies with the applicable requirements of the Building Code of Australia. 3 The bases upon which those easements were claimed by the Duke Group could well serve as a table of contents for a text on the subject. The Duke Group laid claim to each easement by way of an amorphous combination of: the operation of s 36 of the Law of Property Act 1936 (SA) (LPA); implied grant by means of necessity or mutually intended use of land; implied terms in the contract pursuant to which the Duke Group purchased the shopping centre and carpark; implied -- 5 of 104 -- [2024] SASC 78 Kourakis CJ 2 under the rule in Wheeldon v Burrows (1879) 12 Ch D 31;1 the doctrine of lost modern grant and/or the Prescription Act 1832 (UK); and/or an express grant. 4 At the commencement of trial, counsel for the Duke Group informed the Court that an easement for ventilation of air throughout the carpark was no longer being pressed: the other easements claimed remained in dispute. Primarily, the Duke Group advanced its claim by reference to s 36 of the LPA, with secondary reliance being placed on: the supposed creation of an equitable easement arising from a set of unexecuted deeds between its predecessor-in-title, the Unley Council, and the owner of adjoining land; a common intention implied easement; the implied grant of an easement under the contract for sale; the long user of the putative servient tenement by the Duke Group and its predecessor-in-title; and the operation of the principles espoused in Wheeldon v Burrows. 5 In essence, the Duke Group’s claim to an easement of traversal over the Unley Council’s land, and to an easement of parking thereon, is underpinned by the contention that, as at the date of its acquisition of the putative dominant tenement, there existed a long-standing and extant practice of vehicles and pedestrians traversing from the Unley Council’s carpark into its carpark and vice versa. The essence of the Duke Group’s claim to an easement of traversal in compliance with the relevant fire standards is its contention that, in certifying that the putative dominant tenement was compliant therewith, the Unley Council is to be taken to have granted an easement without which such certification would be incorrect. 6 For the reasons that follow, the Duke Group’s claims in their entirety must be dismissed. That follows, primarily, from factual findings made that are inconsistent with large swathes of its case. In other respects, that follows from the proper construction of certain documents upon which the Duke Group seeks to rely. Some Context 7 On 22 August 1997, the Duke Group executed a tender offer for the Unley Shopping Centre (USC) and a two storey carpark (the Deck carpark) on the opposite (northern) side of Arthur Street. The lead tenant of the USC was Woolworths which operated a supermarket in it and held a ground lease over the USC generally. By contract dated 21 October 1997, the Duke Group purchased the whole of the USC and the Deck carpark from the Unley Council, together with Woolworths’ interest in the ground lease from Unley Council to Woolworths. Settlement occurred on 27 October 1997. Registration of the transfers was delayed until October 1998 as a result of difficulties encountered in locating the Woolworths ground lease. 8 The share equity of the Duke Group is held in trusts of which the members of the Angelopoulos family are beneficiaries. Mr Con Angelopoulos testified that 1 (‘Wheeldon v Burrows’). -- 6 of 104 -- [2024] SASC 78 Kourakis CJ 3 his father, Mr Chris Angelopoulos, was the managing director of the Duke Group and that he was employed as a manager. The Duke Group is a property holding company and a landlord. 9 He and his father worked closely together every day on the management of their property, from the same office. 10 The Duke Group had brought proceedings claiming that the Unley Council had, inter alia, declared an irrevocable statutory trust for the use of land to the north of the Deck carpark, over which it now claims private easements, as a carpark. That carpark was created by the Council in 1973 at the request of the rate payers of adjacent commercial premises who had requested (or rather, had presented a ‘memorial’ pursuant to s 218 of the Local Government Act 1934 (SA)) the construction of a carpark. That carpark was referred to in the evidence as the ‘Memorial carpark’; throughout this judgment, it is also referred to as the ‘Council carpark’. The Council demolished buildings erected on that land and undertook civil engineering works to construct a carpark to benefit the adjacent ratepayers. After the Council undertook the work, it levied a special rate for a period of 10 years thereafter to recoup those costs. 11 On that factual foundation, the Duke Group brought proceedings in this Court in November 2019 claiming that the Unley Council had, inter alia, declared an irrevocable statutory trust for the use of the Memorial Carpark as a carpark. Those proceedings were finally dismissed in September 2021.2 12 On 5 February 2019, the Unley Council notified the Duke Group, as the successor entitled of one of the memorialists, that it was intending to sell the Memorial carpark and gave them the opportunity to object to the proposed sale. 13 On 4 October 2019, Mr Angelopoulos accessed the Unley Council’s website and discovered a letter from the Council’s solicitors dated 11 July 2011 concerning the Unley Council’s purchase of the Memorial carpark. On inspecting that letter, Mr Angelopoulos became aware of the existence of a right of way over part of the lane abutting the Deck carpark and that the Deck carpark may have had a requirement for natural ventilation from the abutting Council carpark land. Claims in respect of those interests were not ultimately pursued in the proceedings. 14 Mr Angelopoulos continued his investigations and in November 2019 had a survey of the boundary between the Deck carpark and the Council carpark undertaken. It showed that bollards which stood between the two carparks were installed within the land of which the Duke Group was the registered proprietor. He deposed that, until that time, he believed the bollards had been erected on the Council carpark land. In December 2019, he caused the bollards to be removed. 2 See Duke Unley Pty Ltd v Corp of City of Unley [2020] SASC 224; Duke Unley Pty Ltd v Corp of City of Unley (2021) 399 ALR 164. -- 7 of 104 -- [2024] SASC 78 Kourakis CJ 4 15 The proceedings in this matter were filed on 23 December 2020 initially by way of an application to extend a caveat lodged by Duke Group over the Council carpark. The development of the Deck Carpark 16 For some time before 1991, the Woolworths Property Group (Woolworths) held a ground lease over the USC which is located on the southwestern corner of the intersection of Unley Road and Arthur Street. It was also the lessee of an open-air carpark on the northern side of Arthur Street which was available to customers of the USC. The registered proprietor of the whole of that land was the respondent, the Unley Council or the Council. Vehicles were free to move between the open-air carpark and the Council carpark on land to its north. 17 In November 1991, Woolworths made a development application which included the construction of further specialty shops within the USC and the construction of a built two-level carpark over Deck carpark. The application went before the South Australian Planning Commission (the Commission) because of the Unley Council’s interest as the owner of the land. 18 At about the same time, a shopping centre was developed on the site of what was the Rossiters shoe factory on the northeastern corner of the junction of Unley Road and Arthur Street. It housed a Franklins Supermarket and some speciality shops. I will refer to that shopping centre as Rossiters. The developers built a two-storey carpark to service the Rossiters centre adjacent to the Deck carpark. I will refer to that carpark as the ‘Rossiters carpark’. 19 Uniscan Pty Ltd was engaged by Woolworths as the project manager for the development. On 25 March 1992, a design development meeting was convened. Officers of Woolworths, the Unley Council, and representatives of the engineers, Bestechat, attended. The integration of the Deck carpark with the adjoining Rossiters carpark to the east and the Council carpark to the north was discussed. 20 In March 1992, Mr Terry Sutcliff, Unley Council’s manager (planning and traffic) met with Messrs Malcolm Barton and Alick Haddad, the owners of a commercial building on the western side of Unley Road to the north of Arthur Street,3 which accommodated a medical centre, pharmacy, and some other shops (the Unley Central Shopping Centre or Unley Central). Vacant land to the rear of those buildings was used as an open-air carpark. At the time, Messrs Barton and Haddad were negotiating with Australia Post to purchase the Post Office building immediately to the south of Unley Central. There was also carparking adjacent to the Post Office (the Post Office carpark). 21 A note made by Mr Sutcliff at the time records that, in his meeting with them, he stressed that if the carparks around Unley Central, the Post Office and the Council carpark were to be integrated with the Deck carpark, it would be necessary 3 See note made on 26 March 1992. -- 8 of 104 -- [2024] SASC 78 Kourakis CJ 5 to close Birdwood Avenue to thoroughfare traffic. He told them that the Unley Council could not support the integration of the carparks unless they, as the prospective owners of the Post Office site, consented to the extinguishment of the right of way through the Council carpark to Birdwood Avenue. Mr Sutcliff indicated that the Unley Council and Woolworths might grant them, as owners of the Post Office site, a right of way to Arthur Street through the Deck carpark. The note records that Messrs Haddad and Barton were open to those proposals. As events transpired, they did not purchase the Post Office site. A footnote to Mr Sutcliff’s note records that, on 25 March 1992, Mr Miers, of Woolworths had agreed in principle to a right of way over the Deck carpark provided access and egress were made available to Unley Road. This was, in essence, a reciprocal right of way over the Post Office carpark site. 22 It should be noted at the outset that, in prosecuting its claims, the Duke Group relies heavily on the Unley Council’s aspiration to integrate the carparks and correspondence between the Unley Council, Woolworths, and the Post Office in which the detail of that aspiration was developed to allege that an agreement, to which it referred as the ‘Integration Agreement’, was reached. The Duke Group claims an equitable easement founded on the Integration Agreement. It also argues circumstantially from the alleged agreement to support its critical factual contention that certain bollards which were installed in 1994 across ingress and egress points between the carparks were removed in 1996. However, the Council’s plan was always conditioned on the closure of Birdwood Avenue which had not at that time been achieved. Indeed, it was not achieved until 2001, well after the USC was purchased by the Duke Group. The evidence that the proposal was so conditioned is documentary and testimonial. That satisfaction of the condition was essential to the Council’s integration proposal is inherently probable having regard to the very nature of community and local government affairs. I so find. 23 On 3 April 1992, the Commission gave notice of its consent to the redevelopment of the USC. It granted consent for extensions and alterations which included a new supermarket, speciality shops, and carparking areas. The conditions of consent included a condition that the development proceed in accordance with a plan, identified as SK1-6, unless varied by other specific conditions. Compliance with the applicable Australian standards concerning the carpark was mandated. The consent required that the Deck carpark have the same alignment to Arthur Street as the carpark approved for the Rossiters site immediately to its east and that the carparks be structurally connected. 24 On 6 April 1992, the then Town Clerk of the Unley Council, Mr Adams, wrote to Mr Miers. He referred to a meeting which was attended by Mr Miers, Mr Davidson from Uniscan, and Mr Sutcliff, at which they discussed the granting of reciprocal rights of way over the Deck carpark and the Post Office carpark sites. He informed Mr Miers that proposals would be put to a meeting of the Unley Council that: -- 9 of 104 -- [2024] SASC 78 Kourakis CJ 6 • The Council and Woolworths grant reciprocal rights of way for vehicle access between the Post Office site and the eastern side of the Council carpark (Lot 53)4 on the one hand and the Deck carpark (Lot 63)5 on the other allowing a connection with Arthur Street. • A right of way would be granted to Lot 63 over Lot 53 allowing a thoroughfare to Unley Road but with ingress and egress allowed only in respect of the northbound carriageway of Unley Road. • A right of way be granted to Lots 53 and 63 over the Unley Central Shopping Centre carparking areas (Lots 42, 50 and 51). 25 On 9 April 1992, Woolworths submitted, at the request of the Commission, an amended site plan for the Deck carpark, prepared by Uniscan, showing vehicular access between the Deck carpark and the Council carpark to the north. That facility is referred to in the evidence as the Vehicle Access Link, a term which I will adopt. 26 On 21 April 1992, Mr Miers responded to Mr Adams, confirming Woolworths’ agreement in principle to the proposal on the assumption that the costs were negligible. He informed Mr Adams that Woolworths would need to advise Uniscan, which was supervising the building works of the changes, and for that reason asked for confirmation as soon as possible. Two important facts emerge from those exchanges. First, it is plain that Unley Council was the instigator of the discussion and that Mr Miers was responding cautiously and only in principle. Obviously enough the details of any burdensome property rights would have to be carefully considered. The exchange is not indicative of a strong preference by Woolworths for vehicular access. Secondly, as at 21 April 1992, there was no binding agreement to grant reciprocal easements. Mr Miers was awaiting confirmation from the Council. 27 A Uniscan plan dated 18 May 1992, submitted to the Commission as part of the approval process, shows the ground floor of the USC carpark with bollards across the northern boundary of the Deck carpark and carparking spaces to the south of the Vehicle Access Link. It also shows carparking spaces along the eastern boundary of the Deck carpark which borders the Rossiters carpark. Plainly then, at that time, the plan did not allow for vehicular access from the Deck carpark to the Council carpark. However, two bold arrows are also depicted on the plan showing ‘future access’. One points north towards the USC car parking areas and another points to the Rossiters carpark. Again, it is clear that the discussions remained as petitioned. 28 On 25 March 1993, Mr Ports, a resident of Birdwood Avenue, complained to the Unley Council about an anticipated increase in traffic travelling down 4 In about 2001 Lot 53 was later incorporated with part of the Post Office site which was purchased by the Unley Council and reconstituted as Lot 1000. 5 The Deck carpark site also comprised Lots 70 and 71. -- 10 of 104 -- [2024] SASC 78 Kourakis CJ 7 Birdwood Avenue from the Deck carpark. He requested that the Unley Council install a barrier along the northern boundary of the Deck carpark to prevent cars accessing the Council carpark to the north. The alacrity with which Mr Ports reacted to the completion of the carpark is a manifestation of the political reality of urban development which local government authorities must manage. 29 On the same day on which Mr Ports lodged his complaint an internal Council note evidences that Uniscan was contacted to place a barrier across the Vehicle Access Link. Soon thereafter, two bollards were erected either side of the opening between the Deck carpark and the Council carpark, within the boundaries of the Deck carpark, and a chain was hung between them. I find that the chain was installed by Uniscan acting as Woolworths’ agent on or about 31 March 1993 on the basis of an internal Council note of that date. 30 The Deck carpark was formally opened on 30 March 1993. Of course, it is possible, indeed likely, that the carpark was operational before the formal opening. It may also be the case that, after the chain was hung, it was occasionally removed without the permission of the Unley Council. However, that is of no present relevance because, within a year or so, the chain was removed and three more bollards were installed between the original two bollards to which the chain had been attached. The bollards were spaced equidistantly with the effect that they obstructed vehicular access. 31 The Unley Council issued a certificate of classification for the Deck carpark on 24 May 1993. 32 A report by Colliers Jardine dated March 1994 on the vehicular and pedestrian integration of the Rossiters and Deck carparks on the one hand, with the Council carpark to the north is the first record of the existence of three red bollards across a dished invert between the Deck carpark land the Unley Council carpark. 33 The bollards must have been installed by the Unley Council or, alternatively, by Woolworths acting either unilaterally or at the request of the Unley Council. However, no record of the Unley Council relating to the installation of the bollards was put into evidence. I find that Woolworths caused the bollards to be erected at the request of the Unley Council for the following reasons. First, it is consistent with Woolworths earlier taking the responsibility to change the development application to show access if it were agreed. Secondly, it is consistent with Woolworths installing the bollards and chain arrangement through Uniscan. Thirdly, the bollards were installed on the Deck carpark land leased by Woolworths. Fourthly, it is consistent with a subsequent arrangement to which I refer at [60] below, between Unley Council and Woolworths that the latter would remove the bollards if and when the Council blocked access to Birdwood Avenue. Fourthly, from 1992, the Unley Council repeatedly gave assurances to local residents that no vehicular access would be allowed between the Council carpark and the Deck carpark until issues affecting nearby streets had been resolved. -- 11 of 104 -- [2024] SASC 78 Kourakis CJ 8 Fifthly, there is no evidence that Woolworths had any interest of its own to explain expedition of the installation of the bollards. 34 The correspondence, to which I have referred to at [26] was exchanged in April 1992 between Mr Miers and the Unley Council recording an in principle agreement that reciprocal rights of way be given over the Deck carpark land and the Council carpark is not inconsistent with my finding. Their shared aspiration gave them both an equal motive not to install the bollards but only one of them could have attended to that work. The installation is unlikely to have been undertaken without the express consent, or request, of the other. Their reasons for installing the bollards to block access between the carparks, despite their shared aspiration ultimately to integrate them, are obvious enough. The Unley Council was concerned that there not be movement between the Deck carpark and the Council carpark until the related issues of increased traffic through Birdwood Avenue, and Australia Post’s rights of access to Arthur Street, were resolved. Unley Council would not, for good reason, grant a reciprocal right of access until that issue was resolved. It was, therefore, consistent with the negotiation of reciprocal access in the medium to long term to install the bollards to restrict access more effectively in the short term. 35 In March 1994, the Council received a petition from Birdwood Avenue residents regarding the closure of Birdwood Avenue.6 36 In April 1995 the Council discussed a report dated 24 April 19957 on the temporary treatment of the eastern end of Birdwood Avenue to restrict vehicular movement between Birdwood Avenue and the Council carpark. An illustration of the treatment was attached to the report. The proposal was significantly to restrict the width of the access from Birdwood Avenue into the Council carpark, together with signage indicating the local nature of the area. It was put that, by implementing the temporary treatment, the Unley Council would obtain good data and information to enable better judgments as to the long term treatment options. 37 It was also proposed to put up a barrier fence which would be erected upon Unley Council property. The barriers would extend to the east from the boundary with Mr Ports’ residence for the width of Lot 64 and to the north from the corner of Lot 64 and the Council carpark to the northern footpath of Birdwood Avenue. The barriers were to be spaced so as to allow pedestrian and bicycle access. The cost of the proposal was just some $1,200. An Integration Agreement? 38 In support of its claim for an equitable easement, the Duke Group placed considerable importance on a brace of deeds prepared by the respondent’s then solicitors, MinterEllison. Duke Group contends that the cumulative effect of those 6 T 1925 records that agreement had been reached to close Birdwood Avenue improving access to and from the area. 7 Casebook 1710 -- 12 of 104 -- [2024] SASC 78 Kourakis CJ 9 deeds, together with related correspondence, was the creation of an agreement by the respondent to grant a right of way to the ground lessee of the Deck carpark in the nature of a right of carriageway. 39 The Unley Council’s Traffic Management Taskforce (the Taskforce) met on 12 September 1994. The Taskforce had before it a report dated March 1994 from Colliers Jardine. A focus of the Taskforce was the safety and convenience of pedestrians crossing Arthur Street. To that end, the Taskforce considered the installation of zebra crossings. The Taskforce also resolved to recommend to the Unley Council the closure of the connection between the Council carpark and Birdwood Avenue. 40 The Taskforce’s report to the Unley Council discussed integrating the Deck carpark and the Council carpark by creating rights of way: Discussions with the Woolworths Property Group have recently taken place with a confirmation forthcoming on a previous written commitment to provide for the integration of the Unley Shopping Centre Deck Carpark at its northern end with the Post Office carpark. It is of note that the previous commitments to reciprocal rights of way will not be possible due to Council not being able to grant a right of way itself (ie Council is the landowner of both properties). The legal assurance of access would have to be pursued through a change or addendum to the current ground lease. One advantage of this would be that Council would be the only one with access rights and this would prevent the possibility of Woolworths being able to dictate terms to Council on this issue in the future. 41 The Taskforce’s report concluded with the following recommendations: 5 commit in principle to the vehicular integration of all carparking areas within the Unley Town Centre precinct in the area bounded by Arthur Street, Unley Road and Mary Street. 6 that the Manager, Environment, be authorised to negotiate with Australia Post regarding the current encumbrances held over the Unley Post Office Carpark site by Australia Post with a view to facilitating the treatment of the eastern end of Birdwood Avenue in accord with the wishes of the local community … 8 that the Manager, Environment [Mr Harmer], be authorised to enter into negotiations with the Woolworths Property Group on behalf of Council to obtain a right of way over the Unley Shopping Centre Deck carpark site. 42 No minutes of the Unley Council adopting the resolutions have been adduced before me. Mr Keenan gave evidence that the Unley Council adopted those resolutions, but it is not clear when it did so. Importantly, it is clear from resolution ‘6’ that Mr Harmer was authorised only to negotiate with Australia Post and Woolworths. The resolution did not authorise Mr Harmer to bind the Council to a concluded agreement. 43 Mr Green gave evidence that he wrote to Australia Post on 6 October 1995 after speaking to Mr Curd, who was the State Manager of Australia Post, whom he -- 13 of 104 -- [2024] SASC 78 Kourakis CJ 10 knew through their membership of the Australia Day Council. The letter proposed a meeting with Mr Green and Mr Harmer. 44 On 19 October 1995, Mr Harmer, an officer of the Council wrote to Mr Miers in apparent accordance with the resolutions. Mr Harmer referred to the April 1992 correspondence to which I referred at [26] above. Mr Harmer then set out the facts on the ground: namely, that the only thing preventing the free flow of traffic between the Deck and Council carparks at that point were the three bollards ‘which have been erected at the USC Arthur Street Deck carpark and the three immediately adjacent marked carparking spaces’. Mr Harmer’s letter makes no reference to who erected the bollards, but noted that, if they were removed, there would be a free flow of traffic. 45 Mr Harmer then suggested a way forward which was consistent with the Taskforce’s recommendation, but which differed, markedly, from the 1992 proposal: Rather than embarking on an arrangement (such as rights of way) which would be both cumbersome and expensive, it is our view that the easier solution would be for Woolworths to enter a Deed with the Council and to submit a planning application to remove the bollards and delete the subject 3 carparking spaces. The corporation will support the application by indicating to the development assessment commission, that the corporation is in favour of approval being granted. The application will need to be made to the development assessment commission because the corporation is the owner of the land. 46 I set out below an unexecuted Deed which was attached to correspondence sent by Minter Ellison to Unley Council on 29 October 1997. The proposed Deed attached to Mr Harmer’s letter of 19 October 1995 was probably in the same form: ARTHUR STREET CARPARK DEED DEED dated 1995 BETWEEN THE CORPORATION OF THE CITY OF UNLEY of 181 Unley Road Unley SA 5061 (“Corporation”) AND WOOLWORTHS PROPERTIES LIMITED ACN 000 039 252 of 80-88 Rundle Mall Adelaide SA 5000 (“Woolworths”) RECITALS A. The Corporation is the registered proprietor of the land comprised in Certificates of Title Register Book Volume 5096 Folio 842, Volume 5096 Folio 843 and Volume 5096 Folio 844 (“Land”). B. The Land together with other land is leased to Woolworths pursuant to Memorandum of Lease No. 7324229 for a period commencing on 16 April 1992 and expiring on 15 April 2091. C. Following receipt of planning approval from the South Australian Planning Commission dated 3 April 1992 (Attachment 1) Woolworths has erected on the -- 14 of 104 -- [2024] SASC 78 Kourakis CJ 11 Land a carpark the layout of which is substantially in accordance with the plan (Attachment 2). D. At the end of the entrance driveway from Arthur Street Woolworths has erected 3 bollards on or about the northern boundary of the Land thereby preventing traffic travelling to and from land comprised in Certificate of Title Register Book Volume 4010 Folio 896 which is owned by the Corporation (Lot 53). E. Woolworths has agreed with the Corporation to remove the bollards in order to provide for the free flow of traffic from the Land to Lot 53 and from Lot 53 to the Land. AGREEMENT 1. Woolworths agrees the forthwith upon execution of this Deed Woolworths will make application to the Development Assessment Commission for approval to remove the bollards from the Land. 2. Upon receipt of development approval or in the event that development approval is not required Woolworths will forthwith remove the bollards from the Land. 3. The Corporation agreed that it will support the application for removal of the bollards from the Land. 4. Woolworths covenants and agrees that it will at all times hereafter keep the entranceway from the Land to Lot 53 free and clear of all obstructions and will not at any time undertake any development or erect any fence or other structure on the Land (other than removal of the bollards) which in any way prevents or inhibits the free flow of traffic from the Land to Lot 53 and from Lot 53 to the Land. 5. Each party will pay their own legal costs of and in connection with this Deed. 6. This Deed is binding upon the Corporation and Woolworths and their respective successors and assigns. 47 I will refer to that draft deed as the ‘Woolworths Deed’. Recital D of the Woolworths Deed is consistent with my finding that Woolworths installed the three bollards across the vehicle access length in 1994. 48 The Duke Group relies heavily on Recital E to contend that the Woolworths Deed, if executed, or incorporated into a collateral agreement, conferred reciprocal rights of way over the Deck and Council carparks. However, up to and including the word ‘bollards’, Recital E does no more than faithfully summarise cl 2 of the ‘Agreement’. The remaining words of Recital E are a statement of the purpose (‘in order’) of the removal, which was to be effected by the obligation imposed on Woolworths in cl 4 thereafter to keep the Vehicle Access Link free from any obstruction. 49 Recital E is, therefore, no more than a summary of the ensuing clauses of the Woolworths Deed: while it may, at its highest, assist in the construction of the -- 15 of 104 -- [2024] SASC 78 Kourakis CJ 12 Woolworth Deed’s operative provisions in the event of ambiguity,8 it is not a recital from which the applicants can establish an implied covenant by the Unley Council to grant an easement over the Vehicle Access Link.9 It is a most improbable construction of the Woolworths Deed that Recital E should impliedly encumber both the Council carpark and the Deck carpark with an easement when the express obligations are carefully calculated to fall short of doing so. 50 The absence of any obligation on the Council, express or implicit, cannot be explained simply on the basis that Recital D acknowledged, that Woolworths had installed the bollards. The purpose of Recital D is only to set the scene for the imposition of the obligation on Woolworths to remove them; that is because Woolworths installed the bollards on land leased by it. Woolworths, therefore, had control over the bollards. Nor is it correct to say that the words ‘in order to provide for the free flow of traffic from the Land to Lot 53 and from Lot 53 to Land’ assumes a reciprocity of rights. As I have explained, it does no more than explain the effect of cl 4, which is that the free flow of traffic will be facilitated, in fact, on the ground, because Woolworths would not again obstruct the Vehicle Access Link. The draft Woolworths Deed obliged Woolworths not to construct anything other than a carpark on the land because that would, in fact, obstruct the Vehicle Access Link. Breach of the Woolworths Deed would leave Woolworths liable for damages for breach of covenant, but it did not grant the Unley Council a proprietary interest which burdened the Deck carpark. Even more obviously, the draft Woolworths Deed did not grant any such interest to Woolworths over the Council carpark. 51 On 26 October 1995 Mr Miers responded to Mr Harmer’s letter. He said, simply: We inspected the area yesterday and agree in principle to the removal of the bollard. With the regard to the Deed, I believe the works will be completed before the Capital deed is executed in Sydney. It is suggested an exchange of letters may suffice. His response, and the italicised words in particular, confirm the limited purpose of the Woolworths Deed. 52 It is unlikely that Mr Miers would have shown that preparedness to continue to perform the work before the Woolworths Deed was executed if the Woolworths Deed had been understood to confer reciprocal rights of way. The agreement made by the exchange of correspondence was limited to the removal of the bollards. It created no proprietary interest, legal or equitable. Moreover, the agreement was never executed before ethe purchase of the USC by the Duke Group. 8 See, eg, OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1, 21 [63] (Allsop P, Macfarlan and Meagher JJA agreeing); Lemon v Mead (2017) 53 WAR 76, 119 [176] (Buss P). 9 Cf Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, 696 [380] (Campbell JA). -- 16 of 104 -- [2024] SASC 78 Kourakis CJ 13 53 On 29 November 1995, Mr Harmer wrote to Mr McQuillan at Australia Post in these terms: As mentioned, Council is in a difficult position to integrate the carparks by not being able to until the residents of Birdwood Avenue and adjoining areas are protected via a road closure or similar. To achieve this, Council needs your indication that you will not seek to exercise any right of access to Birdwood Avenue before it can progress this matter. As discussed, a possible solution may be for you to indicate that you will not exercise your rights so that Birdwood Avenue on the proviso that you vehicles can obtain direct access to Arthur Street. 54 The letter shows that the agreement with Woolworths was conditional on resolving closure of Birdwood Avenue in a mutually satisfactory way with Australia Post. 55 Additionally, for reasons which I give below, the bollards installed in 1994 were never removed until the Duke Group did so in 2019. 56 The evidence overwhelmingly supports a finding which I now make that the Woolworths Deed was never executed. 57 Mr Keenan was the Mayor of Unley at the relevant times and until 2006. He deposed in his affidavit to a ‘clear recollection that the Deeds attached were never signed and the bollards were never removed in the time that [he] was Mayor’. He deposed that he never signed a deed between the Unley Council and Woolworths in respect of ‘the removal of the bollards’. The Duke Group’s counsel contends that Mr Keenan’s evidence is undermined by his failure to refer to the ‘Integration Agreement’; however, the ‘Integration Agreement’ is no more than a construct of the applicants’ case. True it is that the Unley Council had a policy, and worked towards, integration of the carparks to the north of Arthur Street, but that is not inconsistent with Mr Keenan’s recollection. Nor does his failure to refer to the DAC application to remove the bollards in October 1995, or the approval in December of that year, detract from his evidence. The Unley Council’s correspondence in relation to that application makes it clear that it did not propose actually to remove the bollards until the associated traffic issues, and in particular the closure of Birdwood Avenue, had been resolved. Finally, Mr Keenan’s uncertainty about the clerical and administrative procedures of the Unley Council office staff in respect of storing and maintaining records of deeds is not at all surprising. He was the Mayor: not the Chief Executive or the Office Manager. His uncertainty does not detract from his evidence. 58 I was impressed by the frank, open, and responsive way in which Mr Keenan gave his testimony. There was no hint of defensiveness. He had no personal interest in the outcome. I accept his evidence on the non-execution of the Deeds as credible and reliable. 59 In any event, no criticism or torturing of Mr Keenan’s denial that the Woolworths Deed was executed can transform it into evidence that it was -- 17 of 104 -- [2024] SASC 78 Kourakis CJ 14 executed. Negotiations undertaken in the hope of reaching a conditional agreement cannot be treated as a binding agreement. Nor does a conditional agreement become an unconditional agreement unless and until the conditions are satisfied. Further, if the bollards were never removed, they are as insurmountable an obstacle to the contention that an agreement to grant a right of way to Woolworths was reached as they were to cars hoping to move across the Vehicle Access Link. 60 A facsimile of 21 October 1997 from Mr Davies to the Unley Council refers to a deed between Woolworths and the Unley Council which Mr Davies prepared in 1995. In that letter, Mr Davies said that he believed that the Woolworths Deed had been executed. The letter evidences Mr Davies’ belief that the Deed was executed, but his belief is irrelevant. The letter does not record the execution of the Woolworths Deed in a way in which perhaps an entry on a deed packet might. It is, therefore, not evidence of the execution of the Woolworths Deed. If I am mistaken in this respect, I nonetheless accord it the slightest probative weight. It is not a record of a fact made in the course of keeping business records. It is the recollection of a solicitor in his letter to a client. 61 On 16 November 1995, Mr Harmer informed Woolworths that it was intended to process the development application for removal of the bollards and that, upon approval from the relevant planning authority, the Unley Council would contact Woolworths to arrange for the removal of the bollards. It is that arrangement to which I referred to at [33] above as supporting the inference that the bollards were erected by Woolworths. 62 Woolworths’ development application was lodged with the Development Assessment Commission (DAC) by the Unley Council. However, on 8 November 1995, the Unley Council informed the DAC that, even though it supported the application, it would maintain the barrier to the Council carpark to the north until it had implemented measures on Birdwood Avenue to control traffic leakage. Accepting that that communication might not have been communicated to Woolworths, it nonetheless explains why the Unley Council was unlikely to execute the Deed. It is also clear from other correspondence that Woolworths understood that it was to await instructions from the Unley Council before removing the bollards. The Decision Notification Form from the DAC noted that the Unley Council would maintain closure of the Council carpark until traffic control measures in respect of Birdwood Avenue were in place. 63 On 29 November 1995, Mr Harmer wrote to Mr McQuillan of Australia Post, enclosing the correspondence with Woolworths dated 26 October 1995 and Mr Harmer’s response on 16 November 1995. Mr Harmer informed Australia Post that, on the basis of their discussion, he believed that the correspondence from Woolworths should provide them ‘with sufficient indication of Council’s commitment to integration of carparks in the area and their ability to achieve same’. -- 18 of 104 -- [2024] SASC 78 Kourakis CJ 15 64 He proposed that Australia Post agree not to exercise its right of access to Birdwood Avenue on the condition that its vehicles could obtain direct access to Arthur Street. The letter explained that, in order to integrate the carparks, access to Birdwood Avenue would need to be closed. 65 Mr Green, the CEO of Unley Council at the relevant time, testified that he became directly involved in negotiations with Australia Post after Mr Harmer left the Council. However, Mr Green’s preferred strategy was to purchase the Post Office site and its carpark. In his time, they acquired the carpark which, in his words, ‘opened up other possibilities’. 66 On 3 January 1996 Ms Hewitt wrote to Mr Harmer of Woolworths as follows: Reference is made to your correspondence dated 16th November 1995 regarding removal of the bollards at the abovementioned location. Attached is copy of Decision Notification Form from the Development Assessment Commission of which you may already have a copy. Please contact us in due course regarding removal of the bollards. 67 Two matters arise from that correspondence. First, it is probable that Woolworths was aware of the note made on the approval that the Unley Council did not intend to immediately remove the bollards. Secondly, Woolworths accepted that it was not to remove the bollards until the Unley Council so directed. 68 Mr Harmer was taken to Ms Hewitt’s email and was asked: Q You will see that the author writes ‘Please contact us in due course regarding removal of the bollards’. Can you remember ever contacting Ms Hewitt or anyone else from Woolworths following the Development Assessment Commission approval about removal of the bollards. A No. Q Sorry. A No. Q You simply had no memory on that topic. A I don’t recall contacting anyone regarding the removal of the bollards. HIS HONOUR Q After receiving the notification did you take any steps and if so, when, to cause the bollards to be removed. A I don’t believe that we took any steps to have the bollards removed because – -- 19 of 104 -- [2024] SASC 78 Kourakis CJ 16 Q Yes, don’t worry about ‘we’. I’m just asking about you. Did you take any steps to have the bollards removed. A I don’t believe I would have taken any steps to have the bollards removed until the issue of Birdwood Avenue traffic was resolved and Australia Post. Q I can understand why you say that, but my question is simply this, did you take any steps at any time after the notification to have the bollards removed. A I don’t believe so. 69 During 1996, there was correspondence between Unley Council and Australia Post about Australia Post surrendering its right of access to Birdwood Avenue. A draft deed might have been attached to that correspondence, but, if so, it is likely to have been subsequently amended. In the course of that correspondence, on 1 November 1996, Unley Council expressed an interest in purchasing the Australia Post land. 70 On 24 February 1997, a report to the Unley Council recommended that course to solve the issues arising from Australia Post’s right of way. 71 In the first half of 1997, letters continued to be exchanged on arrangements which might be made in respect of the rights of way. 72 A report to the Council meeting in May 1997 from the City Mayor referred to the complexity of resolving issues involving carparking access and rights of way in the Unley CBD.10 It continued: At the present time Council is being asked to support an agreement between Council and Australia Post, which will see access from the area known as the “Memorial carpark” through the Woolworths carpark to Arthur Street and the closure of Birdwood Avenue at the eastern end. In the case of the agreement (attachment 1), between the parties a draft is enclosed and is recommended for Council endorsement. In the case of the closure of Birdwood Avenue, a temporary arrangement has been in existence since 1996. In order to permanently close the Avenue, action needs to be taken under the Roads (opening and closing) Act which will require public notification of Council intent. 73 The report was received. The Council resolved to authorise the signing of ‘attachment 1’, the agreement with Australia Post, which was in the form of a Deed. The Council resolved that the Mayor sign it and that the City Manager countersign it and affix the Council seal to all documents relating to the agreement between Australia Post and the City of Unley. The Council also confirmed its intention that a portion of Birdwood Avenue at the eastern end marked A in the 10 TB Vol 14, p 1925. -- 20 of 104 -- [2024] SASC 78 Kourakis CJ 17 plan enclosed be closed pursuant to the provisions of Roads (Opening and Closing) Act 1991 (SA). 74 The Deed to which the resolution refers is most likely a deed, a copy of which was sent to the Council by its solicitors on 29 October 1997 as an attachment to an email. The same email also attached a copy of the Woolworths Deed, which I am prepared to accept is in the same form as that sent by Mr Harmer to Woolworths in late 1995. 75 The email attached the following draft Deed between the Unley Council and the Australian Postal Commission: 1996 Draft deed between The Corporation of the City of Unley and Australian Postal Commission DEED dated 1996 BETWEEN THE CORPORATION OF THE CITY OF UNLEY of 181 Unley Road Unley SA 5061 (“Corporation”) AND AUSTRALIAN POSTAL COMMISSION of C/- GPO Box 4032 Adelaide SA 5001 (“Australia Post”) RECITALS A. The Corporation is the registered proprietor of the land comprised in Certificate of Title Register Book Volume 4010 Folio 896 (“Corporation land”) a copy of which is annexed. B. Australia Post is the registered proprietor of the land comprised in Certificate of Title Register Book Volume 4010 Folio 895 (“Australia Post land”) a copy of which is annexed. C. Australia Post land enjoys a free and unrestricted right of way over portion of the Corporation land leading into Birdwood Avenue Unley. D. The Corporation may close Birdwood Avenue at its eastern end immediately adjacent to the Corporation land. E. The Corporation is also the registered proprietor of land comprised in Certificate of Title Register Book Volume 5096 Folio 842 (“Lot 63”) a copy of which is annexed, which is leased to Woolworths Properties Pty Ltd and on which is erected a deck carpark with entry/exit to Arthur Street Unley. F. The Corporation has entered into an agreement with Woolworths which provides for the free flow of traffic from Lot 63 to the Corporation land and from the Corporation land to Lot 63. G. The parties desire to record the matters which have been agreed between them in relation to access to and egress from the Corporation land and Australia Post land. AGREEMENT -- 21 of 104 -- [2024] SASC 78 Kourakis CJ 18 1. In consideration of the provisions of clause 2 of this Deed Australia Post consents to the closure of Birdwood Avenue Unley at its eastern end. 2. If the Corporation closes Birdwood Avenue Unley at its eastern end the Corporation will subject as hereinafter provided permit the free flow of traffic over that portion of the Corporation land marked “X” in the plan annexed thereby enabling the free flow of traffic to Arthur Street Unley from Australia Post land and from Arthur Street Unley to the Australia Post land. 3. In the event that at any time the Council determines that vehicles should not be permitted to enter the land marked “X” in the plan annexed or in the event that for some other reason the free flow of traffic to Arthur Street Unley from the Australia Post land and from Arthur Street Unley to the Australia Post land is prevented or prohibited Australia Post shall be entitled free of any cost of expense to Australia Post to rights of entry to and egress from Birdwood Avenue Unley at its eastern end prior to access to and from Arthur Street being prevented or prohibited. 4. Each party shall pay their own legal costs of and in connection with this Deed. 5. This Deed is binding upon the Corporation and Australia Post and their respective successors and assigns. 6. In this Deed the words “free flow of traffic” mean that notwithstanding parking of vehicles and other obstructions on land, vehicles are able to pass and repass over some portion of the Corporation land and Lot 63 in order to have access to Australia Post land from Arthur Street Unley and egress from the Australia Post land to Arthur Street Unley. 76 Recital D of the Deed stated that the Unley Council might close Birdwood Avenue at its eastern end and immediately adjacent to the Corporation Land. 77 Recital F states that the Unley Council had entered in an agreement with Woolworths, which provided for the free flow of traffic from Lot 63 to the Corporation Land and from the Corporation Land to Lot 63. Recital F of the unexecuted Australia Post Deed cannot give the Woolworths Deed any different construction to which I gave it at [50] above. In any event, the carefully limited term, free flow of traffic, is calculated to refer to no more than the removal of the obstruction caused by the bollards: it falls short of the grant of an easement. 78 The Council’s obligation in Clause 2 was no more than to allow the free flow of traffic over the Council carpark to a point marked ‘X’ immediately before or to the north of the Vehicle Access Link. It is at that point that the agreement with Woolworths to remove obstructions would allow Australia Post vans to continue through to Arthur Street. 79 Clause 3 required the Council to return free access to Australia Post to enter Birdwood Avenue if the proposed access to Arthur Street were prevented or prohibited for any reason. It contradicts a grant of reciprocal rights of ways. The deed is more consistent with the limited purpose of the draft deed with Woolworths to remove the bollards. It is, precisely, because rights of access were not granted either over the Council carpark or the Deck carpark that cl 3 provided for the -- 22 of 104 -- [2024] SASC 78 Kourakis CJ 19 reinstatement of access to Birdwood Avenue. There was no agreement by which the Unley Council granted Woolworths the right for its invitees to access the Deck carpark via the Vehicle Access Link and, reciprocally, that Woolworths would grant the Council the right for its invitees to the Council carpark to pass over the Vehicle Access Link. 80 The resolution passed by the Council authorising the execution of the Australia Post Deed was not self-executing. The execution of the Deeds depended, as Mr Green explained, on the resolution of a multiplicity of related traffic and easement issues. The Deed was never executed. It is not contended that the Deed achieved any legal effect by any conduct short of execution. There can, therefore, be no grant of an easement by Deed. 81 The Deed was provided to Australia Post on 3 October 1997. 82 On 9 October 1997, Mr Shuttleworth of Australia Post wrote to Mr Green informing him that he saw no point in signing the deed provided by Mr Green. Settlement on the Duke Group purchase took place on 27 October 1997. Resolution of the Birdwood Avenue closure had not been achieved. No deed had been executed. No easements had been granted. 83 The correspondence concerning the rights of way contemplated entry into Deeds. The intention to conclude negotiations with that level of formality precludes a finding that there was a binding contractual agreement before and without the execution of the Deed.11 84 Indeed the Local Government Act 1934 (SA) provided at the relevant time: 37a. A council contract as follows: (a) a contract may be entered into under the common seal of the council; or (b) a contract may be entered into by an officer, employee or agent authorized by the council to enter into the contract on its behalf. 85 Section 37(1)-(2) of that Act provided that the common seal of the Council must not be fixed or documented except to give effect to a resolution of the Council and the affixation must be attested to by the Mayor and Chief Executive. 86 In May 1998, Mr Green had reported to the Unley Council that the closure of Birdwood Avenue: 11 Masters v Cameron (1954) 91 CLR 353, 360-1 (Dixon CJ, McTiernan and Kitto JJ); Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102, [64]-[68] (Bell CJ, Hammerschlag CJ in Eq and Adamson JA). -- 23 of 104 -- [2024] SASC 78 Kourakis CJ 20 … could not be concluded in time for the change of ownership of the Unley Shopping Centre. The matter has been raised with the new owners but put aside pending attention to other options in this area. 87 Mr Green explained that, under the practices and policies of the Unley Council, Mr Harmer was not authorised, and did not hold a delegation, to finalise any such agreement. The Unley Council’s approval was required before an officer could bind it to an arrangement of that kind. 88 A report to the Unley Council, in 23 February 1998, noted that the resolution of the Unley Council of May 1997 to close Birdwood Avenue was yet to be implemented because the agreement of all of those affected by it was not yet obtained. 89 Mr Green’s report to that meeting stated that he had had preliminary discussions with the new owner of the USC in relation to the potential to create a right of way over the Deck carpark. His May 1998 report referred to the value of continuing those discussions. 90 The easement claimed on the basis of the pleading of the Integration Agreement must fail. The bollards were never removed 91 As we have seen, on 3 January 1996, Ms Hewitt wrote to the Unley Council requesting the Unley Council to contact Woolworths when the time came to remove bollards. A copy of the DAC approval was attached. 92 Plainly, on that evidence, the bollards were still in place in January 1996. 93 No record of the Unley Council requesting Woolworths to remove the bollards has been put into evidence. There is no evidence that Woolworths acted unilaterally to remove the bollards. Importantly, there is no written record of the Unley Council complaining to Woolworths that the bollards were removed prematurely before Birdwood Avenue had been closed that has been put into evidence. Nor is there evidence of a complaint of that kind from a resident to the Unley Council. 94 No record instructing a contractor to remove the bollards, or paying for their removal was adduced into evidence. A subpoena to Woolworths for such documentation received a ‘nil’ return. As shall be seen, when I turn to the engineering evidence called by the parties, the removal of the bollards would have been a substantial undertaking, and would have been expected to leave its vestiges in and around the site of installation. 95 The Duke Group’s case is that the bollards were removed in 1996 and different bollards installed shortly after settlement on its purchase of the USC land. Its claim that its land enjoys the benefit of an easement for vehicular traversal over and parking on the Council carpark by allowing vehicles to pass through the -- 24 of 104 -- [2024] SASC 78 Kourakis CJ 21 Vehicle Access Links, critically depends on proving those facts. The Duke Group called three witnesses in support of its case, Mr Angelopoulos, Mr Papetolis, and Mr Vassilopoulos. Mr Angelopoulos had a strong commercial motive to assert that the bollards were removed. A comparison of his affidavits to his testimonial account of using the Vehicle Access Link discloses subtle, but telling, indications of reconstruction. Mr Papetolis’ narrative was chronologically inconsistent with the Duke Group’s case. Mr Vassilopoulos’ evidence ultimately contradicted the Duke Group’s case. For the reasons given below, all three were unsatisfactory witnesses. 96 By contrast, all of the witnesses called by the Unley Council who testified to the effect that the bollards remained in place in that period, with the exception of Mr Lennon, on whose evidence I place no weight, impressed me as credible and reliable. Moreover, for the reasons which are developed below, the Duke Group’s case as to the removal and replacement of the bollards is strongly contradicted by three bodies of circumstantial evidence. The first is the political reality, reflected in testimony, correspondence, and other documents, that the Unley Council could not remove the bollards without first closing Birdwood Avenue. The second is the engineering evidence which failed to find any indication on the surface of the carpark in and around the Vehicle Access Link of the removal of the bollards. That engineering evidence also shows that there was no subsequent installation of bollards in or around 1996-1997, which accords with the lack of any recollection of any witnesses of any substantial disruption of the kind inherent in the carrying out of those works. The third is the absence of any complaints from an officer of the Duke Group about the installation of bollards within the boundaries of the Deck carpark, and the consequential disruption of traffic flow over the Vehicle Access Link, very shortly after their purchase of the USC. 97 I will deal first with each of the witnesses. 98 Mr Angelopoulos deposed that, in 1996, there were no bollards blocking the Vehicle Access Link between the Deck carpark and the Council carpark. Mr Angelopoulos claimed that it was possible to drive back and forth between the two carparks using the Vehicle Access Link. He deposed that the Vehicle Access Link was two lanes wide. 99 Mr Angelopoulos gave evidence that, before settlement, on the Duke Group purchase of the USC, his office was in Norwood at the Britannia Hotel, which the Duke Group then owned. He had worked there from about 1993. 100 Mr Angelopoulos deposed that, between 1996 and 1997, he regularly travelled through the Vehicle Access Link when visiting the USC. In particular he deposed that he accessed it by entering the Council carpark land from Unley Road and driving through the Vehicle Access Link to park in the Deck carpark before proceeding on foot to the USC. 101 In his affidavit of 22 December 2022, Mr Angelopoulos deposed: -- 25 of 104 -- [2024] SASC 78 Kourakis CJ 22 I would access the USC Carpark Land by entering the Council Carpark Land from Unley Road and utilising the Vehicle Access Link to drive into the USC Carpark. 102 Mr Angelopoulos testified that he visited the USC for banking, postal services, and the like. He occasionally shopped there. Often, he would simply continue to travel west along Arthur Street then turn South onto King William Road to visit his father on Victoria Avenue, or to return to his office or his home. He never went through Arthur Street when heading north. 103 Mr Angelopoulos explained that he first noticed that the Vehicle Access Link was open between the Council carpark through the Deck carpark, by chance, in 1996, about a year before settlement on the USC in 1996. He was travelling west along Arthur Street when he glanced to his right and noticed that it was open. He kept it in mind and thereafter used it if he was travelling that way late in the day, whenever there was a build-up of traffic on Unley Road at the junction with Arthur Street. Mr Angelopoulos attributed his more frequent use of the carpark in 1996 to his need to obtain change more often from the bank for the operations of the Britannia Hotel.12 He could not recall what had blocked access before that time. I observe here that there is at least a little tension, given the frequency and range of reasons for travelling down Arthur Street, in Mr Angelopoulos’ claim that he remembered the occasion on which he first noticed that the Vehicle Access Link was open and his claim not to recall what had formerly blocked access. I accept that human memory fades with the years as to the appearance of a built environment after it has been replaced or removed. Over time, our memory of its current appearance supplants the recollections of what was there before. However, Mr Angelopoulos claims a recollection of first noticing the change, but without remembering that which it had immediately replaced. 104 Mr Angelopoulos testified, in evidence in chief, that he subsequently took the route through the carparks when he was travelling south on Unley Road by turning right into May Street a couple of times a week. 105 Mr Angelopoulos’ explanation for travelling through the carparks to get to Arthur Street on his way home via King William Road, rather than driving straight down Mary Street, was not convincing. He said:13 A Yeah, you could have, but that was a path that I picked up and I found I just would do it. Because I came across it, I became familiar with it and I would use it to either go left or right. Q Just so I understand this. What you’re saying is, instead of going down the road [Mary Street] that you’ve described as being easier and having less traffic and it connects straight down to King William, that you’ve chosen to navigate and take a bend through several carparks and then try to turn right on to the busier road of Arthur Street for the purpose of getting to your home. Is that what you are telling his Honour? 12 T 258. 13 T 247. -- 26 of 104 -- [2024] SASC 78 Kourakis CJ 23 A Yes. The busiest part of Arthur Street was from that carpark east to the lights. It wasn’t from the carpark right. 106 In cross-examination, Mr Angelopoulos accepted that he had not described entering the Council carpark from Mary Street at all in his affidavits but had spoken only of entering the Council carpark from Unley Road which was only possible when travelling north on Unley Road at a point north of the Arthur Street junction. The questioning culminated in the following exchange:14 Q You’re describing them in different ways, there’s direct from Unley Road, and there’s from Mary Street via public car parks they’re the ways that it could be done, you say. A Well, if I was travelling on Unley Road, heading towards the city I could turn left into the car park, the council car park but if I was travelling away from the city, travelling south, I could turn into Mary Street, and then turn left behind the pharmacy car park and enter the council car park. Q I understand that, you’re just describing the configuration and you’ve told us that you didn’t use Unley Road to access the council car park for the purposes of getting through the vehicle access link, what I’m asking you about, this is in para.71 you are describing two distinct ways that you could get into the council car park at 71.2.1 and 71.2.2, one’s from Unley Road and one’s from Mary Street, right. A That’s right. Q When you tell us – when at para.72 you depose to what you actually did yourself in terms of utilising the vehicle access link, you say that you’d access the USC land by entering the council car park from Unley Road not from Mary Street as you described in 71.2.2 above, that’s right, isn’t it. A If I was leaving the city and travelling south, you couldn’t turn into the council car park by Unley Road, right, so you’d have to turn off the street prior to that which was Mary and then you would enter through the back car park. Q Well, I understand that, I mean can I suggest this to you: what you described in para.72, in effect couldn’t be correct entering from Unley Road regularly in the way in which you’ve described it because you’d have to turn right, you can’t access the carpark from Unley Road if you are travelling in a southerly direction. A What should have been included was the turn off into Mary Street after Unley Road. Q And also across public car parks to the north. A Yeah, I didn’t mean you could – travelling south you could turn across traffic into the … carpark at that time, that is what I meant. 107 I found Mr Angelopoulos’ explanation as to why [72] of his affidavit only referred to a route he took through the carpark when travelling north on Unley Road unconvincing, having regard to this testimony that the only advantage in the 14 T 231-232. -- 27 of 104 -- [2024] SASC 78 Kourakis CJ 24 use of the Vehicle Access Link was to avoid the Arthur Street junction and the specific reference to the Mary Street entrance in [71]. 108 Indeed, in evidence in chief he had testified: Q You’ve described a route coming south, did you ever do it in reverse, that is, enter from Arthur Street and then head north. A I don’t think I did, no. 109 Nor is it likely that Mr Angelopoulos would have entered whilst travelling north on Unley Road. It is significant that he was not asked in evidence in chief about travelling north along Unley Road and then turning into the carparks north of Arthur Street. There is no obvious reason for ever doing so on his own evidence. If Mr Angelopoulos had business at the USC, he could simply enter the eastern carpark of the shopping centre directly from Unley Road. For that reason, his failure to mention taking a route through Mary Street in his affidavit is all the more curious. If the route from Mary Street through the carpark were as convenient as Mr Angelopoulos had claimed, and were used often, one would expect that to be at the front of his mind when giving instructions, and for that reason could be expected to find expression in the affidavit. 110 I am satisfied that exhibits A13 and A14 show car parking spaces marked across part of the Vehicle Access Link in 1998. Mr Angelopoulos never claimed that they were marked by the Duke Group after the bollards were installed. It follows that they were there in the period that he claimed to travel over the Vehicle Access Link. It is inherently improbable that parking spaces would be marked if it were open. There was a central island of marked car parking spaces in the Council carpark set back from the boundary. 111 On the ease of moving through the Council carpark, Mr Angelopoulos testified that there were less than 16 carparks in the Council carpark in October 1997. 112 He was then taken to a planning report entitled ‘Beyond Main Street Unley Retail Precedent Strategy’.15 It was drawn in March 1997. He testified that the two most eastern carparks of the northern road were not there.16 113 Mr Angelopoulos was then taken to a plan marked, MS-1 (which is exhibit R12). Mr Angelopoulos testified that there were too many carparking spaces shown in the middle island bank of carparks too close to the Vehicle Access Link. He said that the carparks were placed a sufficient distance away from the Vehicle Access Link to allow cars to circulate around the island bank of spaces comfortably. Mr Angelopoulos recalled that there were only about six cars in each row and were shown too far from the east. 15 Tender Book Volume 4, p 1893. 16 T 297. -- 28 of 104 -- [2024] SASC 78 Kourakis CJ 25 114 He testified as to the plan MS-1 drawn by Mr Separovic: This is too tight to circulate through. I used to drive through that, and it wasn’t like that. 115 When Mr Angelopoulos was taken to a photograph,17 he agreed that it showed the central row of cars close to the eastern side of the Vehicle Access Link18 and that there were less carparking spaces in the photographs than in the plan MS-1. 116 Mr Angelopoulos said of the comparison between R12 and the photograph: I’ll say again R12 shows too many car parks too close to that access link, whereas this picture, especially the bottom picture, you can see the most southern bay is positioned further north than what he has shown it in this MS1 plan. 117 The cross-examiner then put to Mr Angelopoulos that two photographs taken when the bollard-chain structure was in place19 showed the carparking spaces in the island bank extending as far east as depicted on MS-1. Mr Angelopoulos disputed that suggestion. On my visual inspection of the photographs and MS-1 and on Mr Separovic’s evidence, I find that MS-1 accurately depicts the relative position of the island bank of carparking spaces. 118 Mr Angelopoulos testified in evidence in chief that, shortly after settlement on the USC, he noticed that the Vehicle Access Link had been obstructed by the erection of bollards. 119 Mr Angelopoulos testified that, shortly before settlement on the USC, he and his father met Mr Morris, the Duke Group’s financier and Mr Miers, at the Deck carpark. Mr Con Angelopoulos testified that the meeting was called following a telephone conversation between his father and Mr Green. Mr Miers informed them that, after the opening of Rossiters, Woolworths put up a balustrade to separate the Deck carpark from the Rossiters carpark because they had observed Rossiters’ owners, tenants, and customers flooding the Deck carpark. 120 He advised them to leave the balustrade as it was. Mr Chris Angelopoulos thought it was a good idea not to remove the balustrade and said that he would phone Mr Green. Mr Morris advised them to press on with the settlement. It was agreed that they would proceed with the settlement, and that the balustrade would be left in place as it was. It is not at all clear on the evidence why or how any decision by the Duke Group to remove or not to remove the balustrade could push out the settlement. The failure of Duke Group to call admissible evidence explaining the basis upon which Mr Angelopoulos could reasonably have believed any pressure was brought to bear on the Duke Group to remove the balustrade or have settlement deferred seriously undermines the reliability of his testimony that 17 Volume 8 page 477. 18 T 305. 19 TB 4477. -- 29 of 104 -- [2024] SASC 78 Kourakis CJ 26 the bollards were not in place when he met Mr Morris at the Deck carpark but were in place about a week later. 121 Mr Angelopoulos deposed that the Vehicle Access Link was open until shortly after the settlement date. Mr Angelopoulos was taken to his affidavit, sworn on 22 November 2019, in support of an extension of time for the removal of a caveat, in which he had sworn that he understood that the bollards blocking access between the Deck carpark and the Council carparks were erected prior to settlement. I observe that that recollection is inconsistent with the case advanced by the Duke Group through Mr Angelopoulos, that the bollards were installed because the Duke Group had refused to remove the balustrade very shortly before settlement. 122 It was put to Mr Angelopoulos that that directly contradicted his testimony that they were erected shortly after the settlement.20 Mr Angelopoulos explained the difference in this way: Your Honour, I made an error because prior to settling we had a meeting in the car park onsite, it was only two days out, to look at the balustrade at the request of council and two days out the carpark wasn’t closed with bollards. So I made an error in this paragraph of this statement. 123 It is obvious enough that there was an ‘error’ whether it be in Mr Angelopoulos’s affidavit or his testimony. It is the explanation of the error which was sought but was not forthcoming. That failure to explain the inconsistency undermines the ‘core concept’ Duke Group advanced for the installation of the new bollards at about the time of settlement which appears immediately below. 124 Mr Angelopoulos explained that it was the conversation between his father with Mr Green which set off a series of steps which led to the installation of the bollards: What I meant was when my father returned Mr Green’s phone call and explained why we wouldn’t push out settlement for the balustrade issue, I was told he was quite annoyed and that he got quite angry- 125 Insofar as that answer gave a hearsay account of Mr Green’s reaction, it was admitted only for the purposes of the question of credit. Mr Angelopoulos said that he did not see the bollards installed but he noticed them shortly (within a week) after settlement. He assumed they were installed on the Council carpark. However, he did not investigate on whose land they were erected.21 He did not ask anyone to check. Mr Angelopoulos agreed that the bollards were in a line to the south of the fence between the Deck carpark and the Council carpark ‘but not by a great deal’. He assumed that the fence would be close to his land, but he had not surveyed it. He said that he never returned to view the bollards with his father. 20 T 262. 21 T 268. -- 30 of 104 -- [2024] SASC 78 Kourakis CJ 27 Mr Angelopoulos accepted that the shopping centre may have lost customers because it was more difficult for them to enter and exit but he did not make any complaint because he assumed they were installed on the Council carpark side. 126 There is much that is strange in Mr Angelopoulos’s answers. It attributes egregiously vindicative and puerile behaviour to Mr Green, behaviour which would have put the Unley Council, and his career, at great risk. At the very least, the allegation is one of serious maladministration by a public officer. Moreover, as we shall see, the installation of the bollards would have required excavation in order to pour concrete footings, for the bollards and resurfacing with asphalt. The Vehicle Access Link would have been obstructed for a substantial period of time by work on land of which the Duke Group was the owner. It is inconceivable that works of that nature would not have come to the attention of the Angelopouloi. 127 In all probability, the Duke Group would have raised business concerns about the works’ effect on customers of the USC using the Deck carpark and a personal concern over the inconvenience it would cause Mr Con Angelopoulos. 128 It strains credibility that Mr Angelopoulos, or indeed his commercially astute father, would not have checked whether or not the Unley Council was trespassing and placing unwanted obstructions on their land. That is all the more so if, as Mr Angelopoulos implied, it was in effect a recriminatory act by the Unley Council. 129 Mr Angelopoulos deposed that, in mid-December 2019, he caused bollards between the Deck carpark and the Council land which were encroaching the Deck carpark to be removed. On 7 January 2020, the Unley Council informed his father that new bollards would be installed on the Council carpark land. 130 Mr Angelopoulos deposed that he had no recollection of receiving the letter Mr Green sent to Ms Sorrell on 11 February 1999 proposing a meeting to consider the integration of the carparks to the north of the Deck carpark. Nor did he have a recollection of any communications from Mr Green proposing the removal of the bollards. It is, of course, possible that Ms Sorrell failed in her management duties. I do not accept that Mr Angelopoulos would have forgotten a letter about the bollards which was inconsistent with his narrative about their installation if it were shown to him. The letter circumstantially supports Mr Green’s account to which I turn below, and undermines Mr Angelopoulos’s reliability. 131 Mr Angelopoulos accepted that, between 2005 and 2019, relations between the Duke Group and the Unley Council were good, but agreed that he did not approach it to remove the bollards. His explanation was that he did not believe that he had a legal interest which would entitle him to seek their removal. When pressed he answered, ‘Well in hindsight I should have, but I didn’t do it at the time’. That answer, too, strains credibility. The Duke Group was an extensive property owner and lessor. Mr Angelopoulos could not have failed to appreciate that negotiations may lead to agreements creating new rights to the mutual benefit -- 31 of 104 -- [2024] SASC 78 Kourakis CJ 28 of both parties. In this respect, Mr Angelopoulos’ failure to recall Ms Sorrell’s letter of 11 February 1999 is telling. It was sent 15 months after, on his evidence, Mr Green, in a recriminatory act, closed the Vehicle Access Link which was useful to Mr Con Angelopoulos personally, and commercially valuable to the USC. It was in the Duke Group’s commercial interest to enter into negotiations to explore mutually beneficial commercial arrangements. 132 I do not accept Mr Angelopoulos’ evidence that there were no bollards across the Vehicle Access Link for a period spanning 1996-1997. 133 The applicant also called Mr Anastosis Papetolis in support of its case that the bollards were removed in about 1996. In early 1987, Mr Papetolis and his two brothers opened a business, Unley Fine Foods, in the USC. The operation of that business was disrupted by the development of the USC in 1993. On the completion of that development, Mr Papetolis and his brothers took up two tenancies in the redeveloped USC, from which they operated businesses known as the Lunch Club and Café Nicks. Both businesses were sold about 12 months apart from each other in the year 2000. Mr Papetolis has now retired. 134 Mr Papetolis deposed that, when he commenced trading as Unley Fine Foods, he was allocated two carparking spaces in the western carpark of the USC (the back carpark). In the course of an ordinary working day, Mr Papetolis would make a number of trips in his car, or a van, to collect supplies from wholesalers or to attend business meetings. At that time, he and his brothers also operated snack bars in the city. 135 After the development of the USC, Mr Papetolis’ route on leaving the back carpark to travel to the Adelaide CBD was to travel north across the back carpark until he reached Arthur Street where he would turn right and travel in an easterly direction towards Unley Road. However, before reaching the traffic lights at the junction with Unley Road, he would turn left, to the north, through the Deck carpark and the carparks to its north to avoid what were sometimes long waits at the junction. He would continue through to Mary Street where he would turn right and then travel north into the city on Unley Road. 136 Mr Papetolis deposed: [25] I distinctly recall travelling the path that I have described above, whereby I drove through the ground floor of the Woolworths car park and continued travelling north across the Council carpark before exiting on to Mary Street, on numerous occasions in the period 1994 through to a few years before we sold our business in the Shopping Centre in 2000. [26] Some time prior to 2000, the exact month and year I am no longer able to recall, some bollards were then installed which then also blocked off the route that I previously had been using on at least a daily basis. That may have occurred in or about 1998, however, I can no longer specifically recall the precise date. In any event it was after the Angelopoulos family had acquired the Shopping Centre. -- 32 of 104 -- [2024] SASC 78 Kourakis CJ 29 [27] I do recall that it brought to an end me being able to traverse a route into and out of the Centre on to Unley Road, which I had been using literally every day. As one might imagine, I found that to be very inconvenient and meant that I now had to drive by the very busy Arthur Street and Unley Road intersection during my frequent trips into and out of the Adelaide CBD from the Centre which lead (sic) to delays in travel time. [28] However, as inconvenient as that was for me, I do not recall ever raising the issue with the Angelopoulos family who by that time had taken over ownership of the Shopping Centre. 137 It will be noticed that Mr Papetolis dates the period he drove across the Vehicle Access Link back to 1994, when the evidence clearly establishes that the chain was hung across it by about March 1993 and that the central bollards were in place in 1994. Moreover, it was not controverted that they remained in place in late 1995 when the development application was made to remove them. It should also be observed that Mr Papetolis dates the later installation of bollards to 1998, later than the settlement date on the USC. Mr Papetolis confirmed in his testimony that his recollection of the date of the installation was premised on his belief that the Duke Group purchased the USC in 1997. 138 Mr Papetolis acknowledged that he had been contacted by Mr Angelopoulos about six months before he gave his evidence at the trial. Mr Angelopoulos told him he wished to discuss the question of the Deck carpark and access through it. Mr Papetolis claimed that he had not spoken to Mr Angelopoulos before that time, and that whilst he held the tenancies Mr Papetolis he had only spoken to the Duke Group’s managers of the USC. His evidence, however, was not consistent: A I’ve dealt with centre management and it was Chris Angelopoulos. Q So it was Mr Chris Angelopoulos who was centre management for the Unley Shopping Centre all the time you were there. OBJECTION: MR WHITINGTON OBJECTS MR WHITINGTON: That’s not a fair encapsulation of the answer he’s just given. He said he dealt with the centre management and Chris Angelopoulos. My learned friend has then put to him that those two are the same which was not the effect of his answer in my submission. MR RODER: I thought the witness said that Mr Chris Angelopoulos was managing the centre. But in any event, the transcript will – MR WHITINGTON No, centre management. MR RODER: Sorry? MR WHITINGTON: He said no, it was centre management. MR RODER: Right XXN -- 33 of 104 -- [2024] SASC 78 Kourakis CJ 30 Q Centre management and Mr Chris Angelopoulos, is that right? A Well, I never dealt with Chris, no. Q I thought you told us that you did deal with Mr Chris Angelopoulos? A No. Centre management. Q You just gave some evidence about Mr Chris Angelopoulos only a matter of a minute or so ago. What was that evidence. A Well, it was from the purchase of the centre of Chris, and we dealt with centre management. Q Sorry, can you explain that again. A When the centre was bought and purchased by Chris Angelopoulos, we dealt with centre management. That is my recollection. HIS HONOUR Q Well, how did you come to know that the centre had been bought by, you say, Chris Angelopoulos or his company. A It was just rumours, word of mouth, Woolworths were selling. Q And at some point, were you introduced to Chris Angelopoulos. A Not personally, no. Q He didn’t come into the shop to see you and say, “Hi I’m the new owner.” A Not that I recall, your Honour. XXN Q Just so I understand that, you didn’t have any actual knowledge of when the shopping centre was bought by the Angelopoulos’… if I can put it in that way. A No. Notwithstanding those answers, Mr Papetolis then reaffirmed that Mr Chris Angelopoulos bought the shopping centre in 1997. I am surprised that Mr Papetolis, who leased two shops in the USC, never met Mr Chris Angelopoulos. There is no evidence on which I can find to the contrary but I am left with some unease about his testimony given the ambiguity of the first answer in the above passage, and the peculiarity of the answers which followed the objection. It will be remembered that his belief in that respect was central to his deposition that the bollards were erected after the Angelopoulos family had acquired the shopping centre. 139 In terms of dating his awareness of the sale to the Duke Group, Mr Papetolis was unsure whether he saw any change in the invoices he was sent for rental -- 34 of 104 -- [2024] SASC 78 Kourakis CJ 31 payments. Mr Papetolis eventually explained that he was aware that the centre had been sold to Mr Chris Angelopoulos because there was a change of personnel in centre management. However, he could not say why he dated that to 1997. 140 Mr Papetolis then gave the following evidence about the closing of the Vehicle Access Link: Q You only remember being it closed off once, don’t you. A I recall a chain being up for the period of time, right, which limited access and I’m not sure if that chain was removable. Q Or cuttable. A Well, not cuttable. I’m not sure who controlled it, whether the council controlled it for their own convenience, I’m not sure and there was a period of time where there was total no access. … HIS HONOUR Q Tell me about the occasion you first noticed the chain, how did that come about, what were you doing; where you ordinarily parking or were you trying to take the route, what happened. A No, I was trying to take the route and there was a chain which limited access and I don’t know how long that was for and then at some stage bollards appeared. XXN Q You can only recall bollards appearing once. A Correct. Q I’m suggesting to you that those bollards, that there were bollards installed which prevented access in 1994, certainly by 1994. A Can’t recall. Q If it were the case that the bollards were installed by 1994 it would follow, wouldn’t it, that you did not use that route from that point onwards. A Can’t comment. HIS HONOUR Q After you first saw either the chain or the bollards, did you ever take that route again. A Not if it was blocked, not with the bollards, no. Q But did you ever try again to take that route to avoid the Arthur Street/Unley Road intersection after first seeing the chain or the bollard. A No. -- 35 of 104 -- [2024] SASC 78 Kourakis CJ 32 Q Can you look at para 28 and read it for yourself. My question is what made you think that the person you might have raised this problem with was the Angelopoulos’ family instead of the centre management. A It says “I don’t ever recall raising the issue with the family or who took ownership of the shopping centre.” Q ‘Who by that time had taken over the ownership of the shopping centre’, what made you think that the Angelopoulos’ had taken over the shopping centre at the time you first encountered the problem. A Because I presumed the shopping centre was sold to the Angelopouloses at that time. (Underlining added). 141 Plainly enough, Mr Papetolis’ evidence that the bollards were installed only once and that he never used the Vehicle Access Link thereafter contradicts the Duke Group’s case. Moreover, it is in the nature of human affairs that Mr Papetolis would have been expected to enquire, if not complain, about the inconvenience to which he had been put. A person in his circumstance would naturally want to know who was responsible for adding to the burden of running his business and why, after the sale to the Duke Group. Mr Papetolis’ evidence is objectively improbable and his ‘can’t comment’ answer to a critical question in the above passage tells strongly against his reliability if not his credibility. 142 In re-examination, Mr Papetolis confirmed that it was the Deck carpark through which he would drive. The re-examination, however, failed to salvage anything from his evidence: Q So do you remember my question; I was focusing on the period when you saw the chain and the chain was in occupation, let’s say. A Yes. Q Then you said then bollards appeared. Now, I am directing your attention to those two events and whether there was any time between the existence of the chain and the existence of the bollard, when you could take your route through here. A I do recall a time that there was access given, and I’m not sure how long that was for, until it was closed again. Q When you say “closed again”, are you talking about two events – closed by the chain and closed by the bollards. A Yes. Q So, you are saying you do recall a period of time when there was access – A I don’t know how long for, whether there was an uproar, and they made that access viable, and then they closed it again; I’m not sure whether traffic got busy I’m not sure. -- 36 of 104 -- [2024] SASC 78 Kourakis CJ 33 Q Forget about the reason, because you are speculating on that, but you remember that phenomenon, that you could still go through. A I do for a period of time. Q Are you able now to assist his Honour by saying about how long that period of time was, just approximately. A Two months, three months, could be four months; I can’t give a definite period of time, your Honour I’m sorry. 143 Mr Papetolis’ evidence in re-examination more likely refers to the short periods of time when the chain was removed. It remains inconsistent with the Duke Group’s case that the bollards were removed for over a year in 1996-1997. 144 Mr Papetolis himself acknowledged that his evidence was confusing: Q And after the chains were installed there were bollards up, and they were up within a short period, weren’t they. A The period of time we’re talking about, I don’t have a recollection. But there was a period of time when the bollards did come down and there was access. … HIS HONOUR Q Do you mean that the bollards came down and there was access or that the chain came down and there was access? A See, it’s getting a little bit confusing now. There was a chain, then there were bollards. Now, for some reason, I’m not sure why, there was a period where the bollards were removed, and then I think reinstated again, and that’s where access I think was totally stopped. XXN Q You’ve never mentioned this idea. This is the first time in any of your evidence to date that you’ve suggested the bollards might have come up and come down, isn’t it. A I was never asked. (Underlining added). Later again, Mr Papetolis testified: A My memory – okay I’m not – once the bollards were in place, I’m not sure if there was a time where they were taken out and reinstated. That, I cannot give you a definite answer. Now, once the bollards were there, yes, I never would use that route because I wouldn’t have access to it. Q And you don’t have a recollection of those bollards later being removed. That’s clear, isn’t it? -- 37 of 104 -- [2024] SASC 78 Kourakis CJ 34 A No, I don’t have a vivid recollection, but I’m not sure whether they were removed.22 Mr Papetolis replied to questions I asked as follows: Q After you first saw either the chain or the bollards, did you ever take that route again. A Not if it was blocked, not with the bollards, no. Q But did you ever try again to take that route to avoid the Arthur Street/Unley Road intersection after first seeing the chain or the bollards. A No. 145 I am not able to give Mr Papetolis’ evidence any material weight. 146 Mr Vassilopoulos lived on Arthur Street for most of his life, three houses along from Mr Salaman, a witness who was called by Unley Council, and whom he knew. He explained that there has always been traffic congestion at the junction of Arthur Street and Unley Road, especially for traffic intending to turn left at the junction to travel north along Unley Road. Mr Vassilopoulos deposed that for a period of time around 1996 and 1997 it was possible to drive through the Deck carpark northward into the Council carpark and then through to Mary Street: [16] I distinctly recall that on many occasions and in the period 1996 to 1997 I did avail myself of what I regarded as a shortcut but predominantly only to travel in a northerly direction from Arthur Street to Mary Street simply to save time and to avoid traffic congestion that was always present on Arthur Street and the intersection with Unley Road. It is not clear to me why Mr Vassilopoulos used the shortcut predominantly to travel north when congestion at the junction of Unley Road and Arthur Street affected both roads. 147 In the course of preparing his affidavit, Mr Vassilopoulos’ attention was drawn to [5] of Mr Salaman’s affidavit in which Mr Salaman deposed that the bollards were erected in June 1993 and remained in place until 2019 when they were only temporarily removed. Mr Vassilopoulos accepted, at [18] of his affidavit, that Mr Salaman’s recollection23 sounded about right. That concession is plainly inconsistent with [16] of Mr Vassilopoulos’ affidavit, but if it had stood alone, might have been excused as the result of a miscommunication in the drawing of the affidavit. 148 However, in cross-examination, even though Mr Vassilopoulos at first testified that there were long periods in 1996-1997 when he could take access through the Deck carpark, there then followed this exchange: A Long periods – define long periods – like, one or two weeks and then I’d be restricted by the chain being erected and then, obviously, not being there and so on. So there 22 T 205-208 at page 180. 23 Affidavit of Rufus Luke Salaman sworn on 10 April 2021 at [5]. -- 38 of 104 -- [2024] SASC 78 Kourakis CJ 35 was times I’d be able to get through and other times I wouldn’t be able to get through. … There were periods during 96-97 where I was able to access the deck carpark and go straight through to Mary Street, and there were times I couldn’t and that was simply because there was a chain that was from one bollard to the other. Q You think there was a chain from one bollard to another in the period 1996-1997. A Anywhere from about ‘93-‘97 there was a chain that was consistently there and not there, it was inconsistent. 149 Mr Vassilopoulos testified that the chain was cut numerous times,24 and would remain down for anywhere between one or two days and perhaps a week.25 That testimony is irreconcilable with the common position of the parties, supported by the evidence the bollards were installed replacing the chain in 1994 and remained in place at least until sometime in 1996. 150 Mr Vassilopoulos gave an account of keeping his eye open to see if the chain was down so he could take the shortcut. He explained that when the chain was up, he would simply use the Deck carpark to park for shopping purposes. He maintained that he could see whether the chain was up by looking to his left as he drove past. He testified that a chain hung between two bollards obstructed the Vehicle Access Link for two to three years. 151 Later, when shown some photographs, Mr Vassilopoulos testified that there was a chain strung between two bollards for a period from the mid-1990s onwards until it was replaced by large grey bollards, which were thicker than the bollards between which the chain had first been hung.26 Mr Vassilopoulos conceded he did not have a clear recollection of the colour, saying, understandably, that the colour was irrelevant but maintained that he had ‘a very good recollection of those actual bollards’ and that he remembered them ‘quite clearly’. He went on to explain that he lived in the area and he would have observed what was going on.27 152 Mr Vassilopoulos was then asked: Q And from that point onward, when the chains block the driveway, you didn’t use the driveway anymore because you couldn’t. A I still used the actual carpark but I ceased actually going through there because I stopped travelling north to get to work and to the sporting activities because everything had stopped. Q Well you couldn’t travel through there anywhere if the bollards were there. A Exactly, exactly. 24 T 468. 25 T 469. 26 T 466; 480. 27 T 481. -- 39 of 104 -- [2024] SASC 78 Kourakis CJ 36 Q But I just want to make it absolutely clear that from the first time the bollards went up in the middle of the driveway to block the access that you’d been taking between the two wide red bollards – A That’s right. Q – from that time onwards, whenever that was, you didn’t go through again because it was blocked. A I wasn’t needing to go through that direction because I was no longer working or going through that carpark so I tried and get a shortcut from 1999 onwards. Q But in any event you would agree, wouldn’t you, that you couldn’t because .. A The bollards – Q – were blocking. A Exactly. 153 In short, Mr Vassilopoulos’ evidence supports the case of the Unley Council. It is significant also that Mr Vassilopoulos, as a local resident who would observe ‘what’s going on’ and who ‘kept an eye open’ to see if access was open, did not notice the substantial works on the Vehicle Access Link which, on the Duke Group’s case must have occurred in 1996 and/or 1997. On the Duke Group’s case, in 1996, the bollards installed in 1994 were removed and different bollards were installed in 1997. On the civil engineering evidence dealt with at [279]-[340] below, either the removal in 1996, or the later reinstallation in 1997, must have involved the excavation of the footings into which the bollards were embedded and later the pouring of new footings. Asphalt resurfacing was required on at least one of those occasions in order to account for the current uniform appearance of the surface either side of the Vehicle Access Link. Failure to call Mr Chris Angelopoulos 154 Mr Con Angelopoulos confirmed that his father, Mr Chris Angelopoulos, remained a director of all the Duke Group companies. Mr Con Angelopoulos testified that his father is 88 years of age and has slowed down. However, even during the trial of this action, his phone number continued to appear on advertisements for some tenancies. 155 Mr Con Angelopoulos testified that his father is not as sharp as he once was, and tends to forget things from time to time like where he last left his keys. He has ‘goods days and bad days’. Mr Angelopoulos has noticed the decline over the last four or five years. However, his father still does some work in the business. His father likes to engage with people, but Mr Con Angelopoulos usually accompanies him. 156 The affidavit of Marianthi Angelopoulos, one Mr Chris Angelopoulos’ two daughters, sworn on 23 October 2022, was received into evidence. Ms Angelopoulos has been admitted as a legal practitioner since 1995. She is a -- 40 of 104 -- [2024] SASC 78 Kourakis CJ 37 director on the various trustee companies of the Duke Group and a beneficiary of related discretionary trusts. In July 2018, she accompanied her father, at his request, to the Tennyson Centre for a prostate related procedure. She was present when the urologist discussed the procedure with her father. It later became apparent to Ms Angelopoulos that her father had not understood the nature of the procedure that he was about to undergo. From that time, she noticed her father became increasingly frail and elderly. From that time too, she and her siblings agreed that one of them would always accompany their father to specialist medical appointments. 157 In accordance with that agreement, Ms Angelopoulos accompanied her father to a respiratory physician. Her father told the physician that he understood her advice about the nature of his condition. However, on the way home, he asked Ms Angelopoulos to explain that condition to him because he had not understood anything the physician had said. 158 In late 2021, Ms Angelopoulos received a telephone call from the physician who informed her that her father had asked her to explain to Ms Angelopoulos at their last consultation because he was not able to understand the explanations given to him. Ms Angelopoulos deposed that her father’s difficulty in comprehending complex information was a relatively recent phenomenon, which she had only noticed from about 2018. 159 In 2022, Mr Chris Angelopoulos was again hospitalised over a period of about a month for a number of conditions. He again asked his treating medial practitioner to inform Ms Angelopoulos about his condition and treatment. 160 Ms Angelopoulos also deposed that, in recent years, her father had become forgetful. He would mistake the days on which he had appointments with medical practitioners. He also seemed to forget the details of recent conversations with family members. She has also noticed his anxiety increase. He became upset over minor things. 161 The affidavit of Jane Oberdan, the other of Mr Chris Angelopoulos’s daughters, sworn on 23 October 2022, was also received into evidence. Ms Oberdan also has noticed a physical decline in her father since 2018. She has noticed that her father’s mental activity was reduced after discharge from hospitalisation. Nonetheless, her father still has some involvement in the family business and visits the offices on South Terrace regularly but for fewer hours than before his decline in 2018. She, too, has noticed that her father forgets recent conversations. He misplaces documents and forgets to attend to actions which he has said he would undertake. 162 Ms Oberdan has also noticed that her father can become fixated or obsessed by issues. 163 [Redacted] -- 41 of 104 -- [2024] SASC 78 Kourakis CJ 38 164 I observe that the event there described certainly illustrates Mr Chris Angelopoulos’ increasing anxiety. On the other hand, it shows, even in recent times, relatively good cognitive functioning in both taking the trouble to check bank statements, detecting an unexplained charge, and pursuing the return of funds to his bank account. 165 A report of Dr Rositano was received into evidence. Dr Rositano has been Mr Chris Angelopoulos’ general practitioner for many years. Initially, he saw Mr Chris Angelopoulos three to four times each year but the frequency of consultations has increased since 2018. In 2018, there were 16 consultations, 18 in 2019, 12 in 2020, 20 in 2021, and 18 in 2022 up to 29 November 2022. 166 He listed the following conditions from which Mr Angelopoulos suffers: [Redacted] For those conditions, Mr Angelopoulos is prescribed some 10 medications. 167 Dr Rositano confirmed that Mr Angelopoulos’ medical condition has deteriorated over the last three to four years. He has been referred to specialists in cardiology, vascular medicine, urology, neurosurgery, and respiratory physicians. A pacemaker was inserted in March 2022. He was also recently referred to an ENT specialist for vertigo in September 2022. 168 Dr Rositano linked the deterioration to 2019 [Redacted]. He has continued to deteriorate up until the time of the report. 169 In respect of his cognitive functioning, Dr Rositano reported as follows. [Redacted] 170 In respect of Mr Chris Angelopoulos’s memory, Dr Rositano reported: [Redacted] 171 I observe, however, that there is no diagnosis of dementia or any other syndrome or illness impacting cognitive functioning. Nor is there any certification of any incapacity to give evidence or explanation as to why he could not give evidence. 172 Despite the paucity of medical evidence on Mr Chris Angelopoulos’ cognitive functioning, I decline to draw an inference that his evidence would not have assisted the Duke Group. It may be thought questionable whether, in the absence of proper expert medical evidence providing a proper basis for the claim that Mr Chris Angelopoulos had experienced a loss of memory, this Court could conclude that the applicants had a reasonable excuse not to call him to give evidence.28 But the respondent did not contend, in any event, that any such 28 See, eg, Cubillo v Commonwealth (No 2) (2000) 103 FCR 1, 119 [356] (O’Loughlin J). -- 42 of 104 -- [2024] SASC 78 Kourakis CJ 39 inference should be drawn. However, in the absence of his testimony, there is no more before me than speculation that the Unley Council’s decision to install the bollards after the settlement was Mr Green’s personal anger at the failure to reach agreement on removing the balustrade. 173 That explanation is fanciful. If the Unley Council had successfully managed the political fallout from allowing traffic to pass over the Vehicle Access Link for a year or so, it would be strange for it to reverse its own success by installing bollards. It is not surprising that, as we shall see, a different explanation was put to Mr Green when he was cross-examined. 174 The Unley Council’s evidence in support of its case that the bollards were installed in 1994 and not removed until 2019 by Mr Angelopoulos fell into three categories: 1 The evidence of local residents and frequent visitors to the USC who deposed that the bollards were not taken down in 1996/1997 or, at least, that they had no such recollection. 2 Reports and plans prepared for the Unley Council which showed that the Vehicle Access Link was closed in that period and the testimony of the persons involved in their preparation. 3 The evidence of the then Mayor, Mr Keenan, and Chief Executive, Mr Green, of the Unley Council that the bollards were in place in 1996 and 1997, and that they gave no direction, and were unaware of any information or documentation, in respect of the removal of the bollards in 1996 or their reinstallation in 1997. 175 I will commence with the local residents, Mr Salaman and Mr Ports. 176 Mr Salaman deposed that he took up residence in Arthur Street in 1971 and was thereafter active in the Unley Residents Society, and the Friends of the City of Unley Incorporated. He served on the City of Unley Council for much of the time between 1993 and 2018. 177 Mr Salaman deposed that, in the early 1990s, before the construction of the Deck carpark, it was possible to drive from Arthur Street through to the Council carpark. 178 In his affidavit, Mr Salaman was asked to address the contention by the Duke Group that between 1996 and 1997, it was possible to drive through the Vehicle Access Link because the bollards which had blocked it had been removed. Mr Salaman deposed that that did not accord with his recollection, which was that the Vehicle Access Link was blocked at all times from at least June 1993 until 2019 when the bollards were temporarily removed. Mr Salaman deposed that, in 1996 and 1997 he would walk from Arthur Street through the Deck carpark to -- 43 of 104 -- [2024] SASC 78 Kourakis CJ 40 access the rear entrances of the pharmacy, medical centre, and dentist in a centre a little to the north of the Council carpark. 179 Mr Salaman deposed that the Vehicle Access Link was blocked by a chain strung between two bollards from 1993 or shortly thereafter. His recollection is supported by a handwritten note which he made on a memorandum to the Council about the USC dated 9 June 1993 which read, ‘Remove chain to allow access to PO carpark’. The reference to the PO carpark was a reference to the Council carpark. 180 Mr Salaman recalled that the chain might occasionally have been cut by vandals, but he could not recall whether the chain which was cut blocked access to the Rossiters carpark or the Deck carpark. 181 When asked whether he made any representations for the removal of the chain, Mr Salaman responded: I think that I have been making representations over a long period consistently that there should be access from the carpark to the memorial carpark. 182 In cross-examination, Mr Salaman agreed that, when the application to develop the USC was made, he wrote to the Commission advocating for the retention of access between the carparks. Mr Salaman testified that the chain was hung across the Vehicle Access Link very shortly before or thereafter. Mr Salaman recalled that a line of bollards replaced the chain. He testified that he did not ‘ever remember the carpark being open and having clear access’. 183 As a member of the Unley Council too, Mr Salaman had a particular interest in the access between the carparks because it was his view that the carpark would be a valuable asset for the Unley Council if the existing rights of way over it, particularly the right of way of the Post Office could be removed. 184 Mr Salaman explained that his interest in integrating the carparks was to attract more clients to the area by making it easier for them to use the facilities on each side of Arthur Street. His view was that, by opening up the carparks and by removing the balustrade, it would be possible to simplify the circulation in the carpark by having one dedicated entrance and one dedicated exit. 185 He gave evidence that, from 1993, he had lobbied the Unley Council and the USC owners to remove the barrier between the Rossiters carpark and the Deck carpark, and to remove the bollards at the northern end of the Deck carpark to allow vehicle access to the Council carpark but without any success. 186 Mr Salaman deposed: [14] I do not know for certain who installed the bollards but I believe that it may have been Woolworths as I recall from my involvement in Council matters and my attendance at meetings that Woolworths wanted to keep other people’s customers from using the Deck carpark at around that time. -- 44 of 104 -- [2024] SASC 78 Kourakis CJ 41 Even though at [14] Mr Salaman referred to ‘bollards’, the balance of the paragraph is more apt to describe the barrier between the Rossiters carpark and the Deck carpark. Indeed, in cross-examination, Mr Salaman confirmed that he believed Woolworths’ desire to stop people shopping at Rossiters using the Deck carpark. 187 The reliability of Mr Salaman’s recollection was challenged by the Duke Group on the ground that he was mistaken in his claim that Woolworths had opposed opening the Vehicle Access Link. 188 Mr Salaman was asked: Q And was it your understanding that that was their only concern about others using their car park, that is, were Rossiters customers their only concern. A That was the only concern but as an outsider, I guess, I knew about. 189 In cross-examination, counsel for the respondents then asked: Q I wanted just to clarify your affidavit in para.14. Is this the case: you were there meaning to refer to a desire by Woolworths to avoid some connection between their deck car park and the Rossiters car park. A Yes. Q Can you remember anything now about what you learned about Woolworths' attitude towards opening up their deck car park to the Council car park at any time. A I remember them being strongly opposed. Q Do you remember anything about their attitude towards the connection between their deck car park and the Council car park to the north. A Where the bollards are, they didn’t want vehicular access. 190 Despite the strength and vehemence of Mr Salaman’s response, it may be that he has conflated Woolworths’ insistence on maintaining the balustrade obstructing passage between the Deck carpark and the Rossiters carpark with Woolworths’ position on the bollards. 191 In the working through of the complex issues around opening the Vehicle Access Link, some confusion or failure of recollection is not surprising. In any event, it is plain that the bollards were first installed by or with Woolworths’ support even if, at a later stage, after approaches by Mr Green, they also consented to the development application to remove them. However, others, too, recollect some resistance from Woolworths. 192 Mr Harmer, Mr Sutcliffe, and Mr Keenan deposed that Woolworths opposed the integration of the carparks. I accept that Woolworths’ opposition primarily is likely to have been directed to the Rossiters carpark operated by a competing shopping centre. Nonetheless, that is likely to have engendered some caution over -- 45 of 104 -- [2024] SASC 78 Kourakis CJ 42 integration with the Council carpark lest the Vehicle Access Link operate as a Trojan Horse. 193 Mr Salaman was taken to a letter which he wrote to the Unley Council’s ‘Customer Service person’ dated 4 June 1996. It complimented the service he had received from its staff but expressed some concern about the Unley Council’s procrastination of the traffic management issues affecting residents in Arthur, Thomas, and Mary Streets. Later in the note, he criticised the failure to remove the barrier between Rossiters’ and Woolworths’ carparks and complained that access from either or both carparks to the post office carpark is ‘STILL blocked to cars – despite repeated assurance that the barriers would be removed’. 194 On Mr Angelopoulos’ account, timing of the alleged removal of the bollards in 1996 means that Mr Salaman’s letter must have been sent just in a matter of months beforehand. Yet, there is no documentation of any arrangements made to that end at about that time. Nor is there any communication from Mr Salaman expressing satisfaction or gratitude that the Council had finally acted promptly on his request. 195 Mr Salaman was then taken to a letter he wrote to Mr Green dated 14 July 1997, before the sale of the USC to the Duke Group. The subject matter of the letter is ‘Sale of shopping centre/carpark easement’. It states Mr Salaman’s view that certain strips of land ‘will need to be formally encumbered’ despite a report to the Unley Council asserting that they did not require formalisation until Council transferred ownership. The subject matter of the letter reflects Mr Salaman’s opinion that it was in the Unley Council’s long-term interest to allow movement between the carparks. Mr Salaman did not mention the Vehicle Access Link. If it had been open at the time he wrote, I would have expected him to emphasise that the encumbrances he proposed would match the access which had in fact been in place on the ground for a year or so. 196 Next, Mr Salaman was taken to a facsimile sent by him on 10 May 1998 to Mr Green, concerning the development of a family restaurant in the Unley Post Office building. He asked to be briefed on the development and, in particular, as to any easements in and around the former Post Office building. It is common ground that the Vehicle Access Link was not open in 1998. 197 Next, Mr Salaman was taken to a memorandum dated 15 May 1998 from Mr Green to him. Mr Salaman was at that a time a Councillor. The memorandum responds to a request, which has not been located, made by Mr Salaman on 5 May 1998. That reference cannot now be found. Mr Green’s memorandum refers to the divestment of some Council land, which is probably a reference to assigning a strip on the western edge of the Council carpark to Mr Ports. It also refers the installation of temporary bollards to provide an improved amenity to an adjoining landowner because the area was being used by tenants of the Rossiters centre to park trucks. Again, this seems to be a reference to Mr Ports. Mr Green informed Mr Salaman that the Unley Council did not intend to remove the bollards at this -- 46 of 104 -- [2024] SASC 78 Kourakis CJ 43 stage, but doubted that the next Sturt home game would be much affected by the temporary arrangement. Mr Green indicated a willingness to discuss the status of the carpark with Mr Salaman but suggested that the discussion be deferred until after all relevant information had been received. The reference to the carpark status may well refer to access between the Deck carpark and the Council carpark. Again, it is common ground that, at that point, the Vehicle Access Link was not open. On the Duke Group’s case, the bollards then in place were those installed just eight or so months earlier. If that was the case, in fact, then it is surprising that there is no reference to that recent closure of the Vehicle Access Link and the reasons for it. 198 Finally, Mr Salaman was taken to a facsimile he sent to Mr Green on 15 March 2000. It referred to various matters and asked for a briefing on the status of bus shelters, a bridge across a culvert, and a right of way through Rossiters carpark being ‘long overdue’. The query about the long overdue connection from the Rossiters carpark may have been premised on the continued existence of the bollards across the Deck carpark. Again, it is common ground that the Vehicle Access Link was not open at that time. 199 As I understand it, the point of the cross-examination was that because Mr Salaman did not raise opening the Vehicle Access Link in 1996-1997, it must have been open. After taking Mr Salaman to those documents, counsel for the Duke Group asked: Q What I want to suggest to you is that I’ve taken you to various issues you raised with the council in between 2 June 1996 and this date 15 March 2000. A Yeah. Q But there was an absence of complaints in that period about the vehicle access link opening up. A I guess I had just been [worn] down and didn’t seem any point in flogging what seemed to be a very dead horse. … Q … Can I suggest that in that period I have taken you from 2 June 1996 through to March 2000, you were aware of the negotiations for the agreement with Woolworths to open access. A I was. There was an agreement that was never signed and never executed. Q What do you mean by that. A I mean there was I had reports when I was on council that agreement had been reached with Woolworths. My memory is that there was an agreement that they would allow access into the post office car park – of a council car park – and in return I believe the balustrade was to be opened up, at least to a certain extent. Q When you say ‘the balustrade’ you mean – -- 47 of 104 -- [2024] SASC 78 Kourakis CJ 44 A The balustrade between the two carparks. … Q That is something you heard from council administrative staff, is it. A It would have been something that the staff would have communicated to the councillors, probably by way of a report or document. Q What I want to suggest to you is that you can’t be sure that in that period I have mentioned to you, June 1996 to March 2000, there was no period when the bollards were absent. You can’t be sure about that, can you. A I couldn’t be sure of it going through the documentation but as a local resident who walks through there, I could be absolutely certain. The course of the correspondence, and Mr Salaman’s answers in the above passage, strongly support his evidence that the Vehicle Access Link was not opened after the middle bollards were first installed. 200 I observe here that, in the period between 1996 to 2000, the applicants’ case is that only in the years 1996 and 1997 were the bollards taken down. Moreover, Mr Salaman’s answers revealed that there were, at the very least, negotiations between those who controlled the Rossiters carpark and Woolworths about both removing the balustrade between the carparks and opening up the Vehicle Access Link. It is not surprising, in that context, that Mr Salaman might have conflated Woolworths’ position on each issue. In any event, the more telling feature of the communications between Mr Salaman and the Unley Council, and indeed his evidence generally, is that at no point in 1996 or 1997 or thereafter did he express any sense of satisfaction that the bollards had been removed. Indeed, his evidence in cross-examination is to the contrary, which was that he had been ‘[worn] down’ because he was ‘flogging … a very dead horse’. 201 The Duke Group submits that it is of some significance that Mr Salaman agreed in cross-examination that he never drove through the Deck carpark. True it is, too, that, in his affidavit, Mr Salaman only spoke of walking through the Vehicle Access Link. However, he is as likely to have noticed the removal of the bollards after walking between them as he was driving through the Vehicle Access Link. He would, after all, have had to watch out for cars driving over an opening which had been reserved for pedestrians. Mr Salaman was not asked about, and did not volunteer, a recollection of his path being obstructed by construction works, or of the smell or look of fresh asphalt. 202 Together with his advocacy for free access across the Vehicle Access Link, and consistently with it, Mr Salaman supported the closure or restrictions of access from Birdwood Avenue. Mr Salaman recalled that some form of ‘treatment’ was implemented to reduce the number of members of the public driving through, but he could not recall just what that was. His recollection was that Birdwood Avenue was closed completely ‘in about 2001/2002 or so’. -- 48 of 104 -- [2024] SASC 78 Kourakis CJ 45 203 Mr Ports lived on Birdwood Avenue, on its southern side and bordering the western boundary of the Council carpark. When Mr Ports took up residence there in the early 1990s, the Rossiters factory was on the site of what was to become the Franklins shopping centre. Mr Ports recalled the two-storey Deck carpark being erected at about the same time as the development of the Rossiters factory site. 204 Mr Ports deposed that, in the early 1990s, it was possible to drive from Arthur Street into the Council carpark through the land where the Deck carpark now stands. He deposed that he complained about access between the carparks after the construction of the Deck carpark and that, shortly after his complaint, a chain was hung across the vehicle access link. The chain was eventually replaced by bollards, which he described as red in colour and thicker than the ones between which the chain was hung. He recalled that the chain was replaced by bollards after about a year. 205 He deposed in his first affidavit, sworn on 8 November 2021, that to the east of his home was ‘a carpark of sorts’ which was initially unsealed but was later incorporated into the Council’s carpark at around the time of the developments of the Rossiters site and the USC. 206 After a period of time interstate, Mr Ports returned to Birdwood Avenue at the end of 1992. He noticed that trucks were parking, and pallets were stored, in the Council carpark next to the fence on the eastern boundary of his home. He was disturbed by the sound of diesel engines and the emptying of industrial bins in the early hours of the morning. His sleep was interrupted. At about that time, too, traffic on Birdwood Avenue increased which he associated with the use of the Deck and Council carparks. 207 Mr Ports deposed that a member of Unley Council assured him that it would close off access from the carparks to Birdwood Avenue. 208 Mr Ports moved out of his home in 1999 because of the disruptive effect of the noise. He did not sell his house until 2002. The issues were not resolved and Birdwood Avenue was not closed off before he moved out. 209 Mr Ports was shown aerial photographs of the Council carpark for the purposes of his second affidavit, sworn on 26 April 2022, which he was told were taken in 1997 and February 1998 respectively. He deposed that an orange line adjacent to his house appearing in one of those photographs was a view of orange plastic hoarding or bunting, of the kind used on construction sites, and attached to plastic posts or bollards. He recalled that it was installed by the Unley Council in about 1996 to alleviate the nuisances referred to in the preceding paragraph. 210 Mr Ports accepted that he had not deposed to the cordoning off in his first affidavit. The omission is of little significance. The affidavit, apart from matters of context, was addressed to the access between the Deck carpark and the Council carpark and the nature of the restrictions placed across the Vehicle Access Link. -- 49 of 104 -- [2024] SASC 78 Kourakis CJ 46 The process by which affidavits are prepared by solicitors for the purposes of litigation is well-known to courts and legal practitioners. Understandably, and for good reason, the solicitor’s focus is on the issue or issues which fall for judicial adjudication. For reasons which should be obvious, an affidavit which is intended to serve as a witness’s evidence in chief does not take the form of a narrative of everything of concern or interest to the witness. Nor can every forensic issue be anticipated at the outset. That is why supplementary affidavits are commonly filed. It is not surprising, therefore, that Mr Ports was not taken to the issue until his attention was drawn to it. 211 Mr Ports deposed in his second affidavit of 26 April 2022 that a photograph, marked and exhibited to his affidavit as CP1, showed the two bollards across which the chain was hung, and the three bollards, with rounded concrete tops, which were placed between them. It also showed two other concrete-topped bollards to the east of the most eastern of the original bollards. He deposed that the photograph accorded with his recollection of what was installed across the Vehicle Access Link in the period in which he lived on Birdwood Avenue. He again confirmed that he did not recall any change to the bollards blocking the Vehicle Access Link whilst he lived at Birdwood Avenue. 212 Mr Ports deposed: I do not remember the bollards ever coming down during the period that we lived at Birdwood Avenue. I remember that I used to see the bollards when I walked from my house and through the Deck carpark to go to the Unley Shopping Centre (which I did regularly) and I believe that it is likely that I would have noticed if they had come down during the time we were living in Birdwood Avenue. I interpolate here that the belief deposed to in the last sentence of that paragraph accords with what could be expected as a matter of human experience for at least two reasons. First, Mr Ports was concerned by the disturbance to the quiet enjoyment of his home from the operation of the Deck carpark. The erection of the chain and then the bollard addressed one of the sources of increased traffic about which he was concerned. He is likely to have noticed any removal of the bollards because it would have concerned him at the very least. Any removal is likely to have prompted him to make enquiries, if not complaints. No record of any such enquiry or complaint was put into evidence and Mr Ports had no such recollection. Secondly, Mr Ports, like Mr Salaman, would have to negotiate his way across the Vehicle Access Link with cars travelling over ground over which pedestrians only could pass. Mr Ports’ evidence, therefore, strongly denies the possibility that the bollards were removed between 1993 and 1999. 213 On 15 January 1999, Mr Ports wrote to the Unley Council chronicling the disturbance he had suffered as a result of the redevelopment and the history of his complaints to it, including his requests that it either purchase his home or to sell to him a strip of land on the western boundary of the Council carpark. -- 50 of 104 -- [2024] SASC 78 Kourakis CJ 47 214 As of the date of the letter, Mr Ports described the area directly adjacent to Birdwood Avenue as ‘stark, concrete and vandalised’. The letter gave a historical timeline of the attempts to close Birdwood Avenue, commencing with a presentation made by Mr Ports to a traffic and parking review on 16 November 1993. It also referred to a petition to close Birdwood Avenue presented on 10 March 1994. Mr Ports made his complaints public and received some media attention in February 1995. The letter notes that, on 6 February 1995, he spoke to Mayor Keenan, and the Chief Executive, Mr Green, which led to the Council flagging off a strip of Council carpark adjacent to the eastern boundary of his home. Mr Ports’ letter notes a report to Council dated 24 April 1995 about the access from Birdwood Avenue to the Council carpark which resulted in the implementation of ‘a temporary 2/way single lane narrowing treatment’. The chronology ends with a note that, on 26 May 1997, Mr Green hand delivered to Mr Ports a copy of a proposed road closure to be taken to the next Council meeting and that it was anticipated to be enforced by 1997. 215 In the course of his evidence in chief, Mr Ports was asked whether he had a recollection about a temporary two-way single lane narrowing treatment to Birdwood Avenue happening at a particular time. Mr Ports responded, ‘I remember it was discussed but whether it actually happened, I don’t recall that’. 216 Counsel for the applicants submitted that Mr Ports’ failure to remember the treatment to Birdwood Avenue was ‘extraordinary given that the structures to effect the narrowing were prominent, virtually outside of the front gate of the Ports’ residence and clearly must have been of significance to them’. The structures were constructed of bent tubular steel and certainly visible and obvious, but they were of a temporary nature and were not substantial in their appearance. I accept that Mr Ports’ failure to recall the narrowing indicates a fading of his memory over time. However, of greater significance is the absence of any reference in his letter to any concern or disappointment over the removal of the bollards, or for that matter gratitude that others were installed in their place. One would have expected Mr Ports to have included such significant events in his letter written within two years or so of those changes if they had, in truth, taken place. 217 The applicants rely on the following passage from the cross-examination of Mr Ports to cast doubt on his evidence that the central bollards were never removed after they were installed: A That’s correct. The chain was replaced by bollards to stop the traffic going through. Q But can you remember that from time to time there were no internal bollards but the chain was off the external bollards. A I don’t recall that. Q Do you say it never happened. A I can’t say that. -- 51 of 104 -- [2024] SASC 78 Kourakis CJ 48 Q And you can’t say either with certainty can you that after the chain was installed and after the internal bollards were installed, there was not a time when the internal bollards were absent. A I don’t recall that happening. Q But you can’t say for certain it didn’t happen, can you. A I can’t say that for certain but that is not my recollection. Far from being a concession which undermines Mr Ports’ evidence, the exchange simply emphasises the care with which he answered the questions. 218 The applicants, quite properly, accepted that Mr Ports presented as a decent and sincere man. However, I reject their contention that he suffered from such frailty of memory that little reliance should be put on his testimony. The Vehicle Access Link and disturbance to the quiet enjoyment of his home were of great concern to Mr Ports. He had frequent contact with the Unley Council. He made a record of his dealings. I have no hesitation accepting his evidence as both credible and reliable. 219 Mr Green was appointed City Manager/CEO of the Unley Council in November 1992 or 199429 after serving some years as its Director of Corporate Services. His office was on the eastern side of Unley Road, opposite to USC. He resigned from the Council in 2004. Mr Green was 80 when he gave his evidence. It follows that he was in his 50s when he was Chief Executive. 220 He deposed that the Rossiters redevelopment opened in 1992 or thereabouts and comprised a Franklins Supermarket and some smaller shops. The redevelopment of the USC was undertaken in 1992 and early in 1993. Mr Green deposed that from about 1993 ‘there was no vehicular access between the memorial carpark and the Deck carpark due to the presence of a number of steel bollards’ and that ‘no vehicular access was possible during the time that I was City Manager of the Council’. 221 Mr Green’s evidence was that, in 1995 or 1996, the Council approved installation of temporary traffic devices between Birdwood Avenue and the Memorial carpark. They were made of bent steel tubular racks which limited vehicular access to a three-metre width. 222 Mr Green deposed that he visited the Deck carpark from the Council offices and, in particular, passed through the Vehicle Access Link about fortnightly. His reasons for doing so varied. He regularly had lunch at the USC Café, he shopped at Unley Central, and his barber was located there. He usually walked to the USC from Unley Central. 29 Volume 4, 1779. -- 52 of 104 -- [2024] SASC 78 Kourakis CJ 49 223 Occasionally, Mr Green would go to the shopping centre by car after visiting worksites, travelling along Arthur Street and parking in the Unley Central carpark or the Deck carpark. 224 Mr Green was asked: Q … What do you recall about during the period that we’ve talked about, as to whether there would be vehicular access between the memorial car park and the deck car park. A There was no access; no vehicle access. Mr Green was then asked, more directly, ‘was there vehicular access between the deck car park and the council Car park’. He answered in the negative. He was then asked what prevented such vehicular access and he responded: A Well initially a couple of bollards with a chain across it and then at some time there were bollards there, but I can’t recall the time that the bollards were erected. Q During the period that you were CEO of the council did, those bollards come down at anytime? A No. 225 Mr Green gave evidence that the chain was put across the Vehicle Access Link ‘from the outset’. He estimated that there would have been no more than some months between the construction of the Deck carpark and Mr Green’s first sighting of the chain. Mr Green could not recollect how long it took to replace the chain with bollards but he did not recall any period during which the Vehicle Access Link was open for the movement of cars between the two carparks. 226 Mr Green was cross-examined about the absence of any reference to the chain in his affidavit. Indeed, it was put to him that he had no memory of a chain being hung across the bollards. He responded, ‘I’m sorry I did’. It was then put to Mr Green that his evidence was false. To that confronting allegation, Mr Green simply responded, ‘I don’t agree with you’. 227 I have no hesitation in accepting Mr Green’s clear and firm, but polite, rejection that he was deliberately pretending to have a memory which he did not have. I observe that it is common ground that the Vehicle Access Link was first closed by hanging a chain between two bollards. Presumably the point of the cross-examination was to suggest that Mr Green was deliberately pretending to have a better memory than was the case. That would be a surprising and unlikely thing for a witness who no longer has any interest whatsoever in the subject matter of the litigation to do. 228 The much more probable explanation for the omission of the reference to the chain lies, again, in the process of the preparation of witness statements or affidavits by legal practitioners. There are often imperfections in the narrative for fairly obvious reasons. The process necessarily compromises detail for efficiency. -- 53 of 104 -- [2024] SASC 78 Kourakis CJ 50 Not surprisingly, affidavits often omit detail which, if asked, would have been given. Mr Green’s affidavit contains the following two paragraphs, which even though not admitted as evidence of facts in issue, illustrate the points I make about the process: 5. I have been informed that the Applicant contends in these proceedings that there was vehicular access between the Deck Carpark and the Memorial Carpark in around 1996 to November 1997 or thereabouts. 6. From 1993 or thereabouts, there was no vehicular access between the Memorial Carpark and the Deck Carpark due to the presence of a number of steel bollards (the Bollards) and no vehicular access was possible during the time that I was City Manager of the Council. The answer at [6], and the omission of any reference to the chain is not surprising given that Mr Green’s attention was drawn to a period in dispute, 1996 to November 1997, at which time in accordance with the testimony he gave at trial he knew that there was a row of bollards blocking the Vehicle Access Link. 229 It was put to Mr Green that if the carparks had been integrated, cars which had been parked in the Council carpark would have exited through the Deck carpark. Mr Green at first mistakenly thought that the question was that there was a time, whilst he was in office, in which cars could exit through the Deck carpark. However, when the premise of the question was made clear to Mr Green, he responded: If there had have been integration, and that was approved by the council, yes. But it wasn’t.30 That exchange, too, only serves to enhance Mr Green’s credibility and reliability. 230 In cross-examination, Mr Green was taken to two exhibits, A3 and A4, which were aerial photographs of the location of the carparks north of Arthur Street. Exhibit A3 was an aerial photograph in the period 1992-1995, with some diagrammatic overlay. Exhibit A4 was an aerial photograph in 1997, shortly before Duke purchased the USC. Mr Green was asked to identify the Rossiters shopping complex and initially said it was north of a green carpark but then corrected himself and said that it was south. He was then asked:31 Q … Was there also a deck car park associated with Rossiters. A No. 231 The question and answer were then left and not returned to in re-examination. The applicants contend that Mr Green’s reliability is undermined by that answer. Given the two very different periods of time which were the focus of the exhibits 30 T 881.35-36. 31 T 880.12-14. -- 54 of 104 -- [2024] SASC 78 Kourakis CJ 51 and the fact that the Rossiters shopping complex was not shown, it is difficult to make much of that answer at all.32 232 Mr Green was taken to a memorandum dated 6 February 1995 from Mr Harmer to Mayor Keenan, into which Mr Green was copied.33 Mr Green explained that he did not directly receive a copy of the memorandum because he did not have the carriage of the matter, but that it would have formed part of a report to the Unley Council from the traffic management review committee. In that context, he testified that the Unley Council was a ‘highly delegated’ organisation but that the divisions did not operate as silos. He acknowledged that he did not know all that Mr Harmer, as the manager of the Environment Division, was doing but he claimed that he had an understanding of the major items through his regular meetings with Mr Harmer. 233 Mr Green testified that he became aware of a commitment from Woolworths to allow reciprocal rights of way between the Deck carpark and the Council carpark sometime after 1994. Mr Green agreed that Mr Harmer was given authority to negotiate reciprocal rights of passage.34 When Mr Green was asked if he recalled a problem in connection with the integration of the carparks created by Birdwood Avenue. Mr Green answered emphatically, ‘My word I do’.35 Mr Green’s response is hardly surprising. He had consistently explained, and the correspondence and other documents admitted before me on that issue demonstrate, that the Council had before it a multitude of issues and interests to resolve and reconcile before the integration of the carparks could proceed. Mr Green then gave his account of the problem in the course of his cross-examination:36 It was an extremely difficult situation and the Birdwood Avenue residents were lobbying to close Birdwood Avenue and to ingress and egress of traffic and as a council we felt that we could not address that whilst there was a – if we were to open up the car park, the deck car park to the memorial car park, and there were other issues as well. … Well, Australia Post, as I understand it, had a – I wouldn’t call it a right of way but an arrangement where they would use Birdwood Avenue to take their trucks. The post office was a distribution centre as well and not purely a retail outlet and mail was sorted there and trucks came in and out and they felt they had a requirement to go down through Birdwood Avenue ‘cos technically they couldn’t cross the Haddad car park, as I understand it. … Well, [the post office] felt that they – for them to get out of their car park behind the actual building, they would need to use Birdwood Avenue because they otherwise would have 32 T 879-880. 33 Volume 4, p 1705. 34 T 896. 35 T 896.31. 36 T 896.33-897.1; 897.5-13; 897.37-898.4; 898.22-24. -- 55 of 104 -- [2024] SASC 78 Kourakis CJ 52 had to cross – there was no entrance via the egress point via the council car park or over the Haddad property, to Mary Street. … … I had an understanding that discussions were occurring and the post office position but nothing else. 234 Mr Green explained that, after Mr and Mrs Ports objected to a refrigeration van regularly being parked in the Council carpark, just a few feet from their bedrooms, the Council erected a barrier comprising some bunting at a distance of about 10 metres from the boundary to their property. They also put in two tubular steel barriers, leaving only a gap of three metres between them, across the entry to Birdwood Avenue, in order to restrict traffic movement from Birdwood Avenue into the Council carpark and from the Council carpark into Birdwood Avenue. 235 Mr Green was asked about the Deeds attached to a facsimile dated 29 October 199737 to the Council from its solicitor, Ms Ursini of MinterEllison. The Deeds attached to that facsimile are extracted above at [46] and [75]. 236 Mr Green was asked how he understood Ms Ursini’s facsimile. He answered:38 Well, she was giving us the deeds to effect an opening of the entrance to the northern end of the car park. That’s the effect. The premise of Mr Green’s answer was that, at that time, the Vehicle Access Link was still blocked. After some debate about the form of Mr Whitington KC’s next question, he put this to Mr Green:39 Q Mr Green, I suggest to you that sometime well before this exchange of October 1997, access had been opened up between the council car park and the deck car park. A Incorrect. Q And I suggest that you understood that Australia Post required that to be done before they would negotiate further. A Yes. Recital D is, of course, inconsistent with the proposition that the bollards had been removed, but the Deed was prepared in 1996. However, it will be noted that Ms Ursini’s view was that the Deed need not be amended in any way, even as to the parties to it. 237 After some further questioning, Mr Green explained that Mr Miers, on behalf of Woolworths, had agreed in principle to open up the Vehicle Access Link. 37 STD tab 600. 38 T 939.27-29. 39 T 940.21-28. -- 56 of 104 -- [2024] SASC 78 Kourakis CJ 53 Mr Whitington KC then took Mr Green to what might have been a point of contention between Australia Post and Woolworths in that Australia Post wanted a right of way in its own right over the Deck carpark, and was not prepared to rely on a right of way Woolworths might have granted to the Unley Council. Mr Green testified that he had not turned his mind to that issue. 238 Mr Green deposed that he had a conversation with Mr Chris Angelopoulos after the tender by the Duke Group was accepted in which he informed Mr Angelopoulos of the Unley Council’s wish to remove the bollards and integrate the carparks.40 It will be remembered that, in a letter dated 11 February 1999 to the Duke Group’s Centre Manager, Ms Sorrell, Mr Green wrote that the Unley Council had negotiated with Woolworths for ‘ingress/egress’ from the Deck carpark to the Council carpark and what he described as, and he placed in quotes, ‘a right of way’. He noted that the issue was raised ‘with the current owners of the Unley Shopping Centre just prior to the signing of the sale agreements in my recollection of the discussion is that the owners, represented by Mr [Chris] Angelopoulos were unwilling to proceed for the time being but may wish to consider the matter once they have studied the operational needs of their new acquisition’. In my view, the letter is consistent with Mr Green’s testimony about his discussion with Mr Chris Angelopoulos. The issue to which he referred was physical ingress/egress which could be described as a de facto (hence in quotes) right of way. That, too, is the construction I give to the unexecuted Deed. I also observe that there is no hint of any animosity in the letter. Mr Green did not recollect receiving a response to his letter. 239 It was put to Mr Green that he had a telephone conversation with Mr Chris Angelopoulos at about the time of settlement on the sale of the USC. Mr Green disagreed and maintained they had a face-to-face ‘PR meeting’ at the manager’s officer in the USC. He described it as such because Mr Chris Angelopoulos was about to become the Council’s largest ratepayer. He recalled that the bollards were mentioned. He could not recollect discussion about bringing down the balustrade between the Deck carpark and the Rossiters carpark, but agreed that he might have raised it. It was put to Mr Green that he pressed Mr Chris Angelopoulos to grant a right of way to Australia Post. Mr Green maintained there was no discussion about that at all. He denied that it was ‘front of mind’ to secure that agreement at that time. He agreed that he was aware that Australia Post wanted a right of way, but explained, unsurprisingly, that ‘that wasn’t an appropriate discussion for it, at that time’ because it was a public relations exercise, and not a negotiating exercise. 240 The following was then put to Mr Green:41 Q Did you say to him that if Duke weren’t prepared to give such a right of way, you would close off the vehicle access link by putting the bollards back up. 40 [35] affidavit and 12/11/21. 41 T 944.33-945.1. -- 57 of 104 -- [2024] SASC 78 Kourakis CJ 54 A No, the bollards were already there. Q I suggest to you they’d been taken down by then, and there was open physical access at that time. A That’s not my understanding. 241 It will be remembered that Mr Green had deposed that he raised with Mr Chris Angelopoulos the removal of the bollards, not the grant of a right of way.42 Mr Green testified that Mr Chris Angelopoulos’ response, again unsurprisingly, was that he needed to study the operational needs of the USC before making decisions of those kinds. Mr Green explained that in his letter to Ms Sorrell by ‘prior to sale agreement’, he meant prior to settlement. 242 Later, the following was put to Mr Green:43 Q I suggest to you that you, whether it was in a meeting or over the telephone, engaged in a heated discussion with Mr Chris Angelopoulos, in which you got quite angry. A In which I got what? Q Quite angry. A No, that’s totally incorrect. I don’t believe I had a phone call with Mr Angelopoulos. Q I said phone call or meeting, whatever it was, in the discussion you had with him, shortly prior to settlement, I’m suggesting it became quite heated and you became angry. A No, on every account, sorry. Q And after that you determined that there should be bollards in place in the vehicle access link between the two car parks, didn’t you. A No. Q After that you appreciated that you would have little leverage to get an agreement out of Duke for the benefit of Australia Post and, therefore, open up Birdwood Avenue, if there were no bollards in place. A Certainly that was one of the options but there were others. I observe that the applicants’ case theory put in those passages of cross-examination does not appear to be founded on Mr Con Angelopoulos’ instructions. It will be remembered that the speculative basis arising from his evidence was that Mr Green was upset by Duke’s refusal to remove the balustrade between the Deck carpark and the Rossiters carpark. Indeed, Mr Angelopoulos’ evidence was that he was disappointed that the Council put the bollards back up, ‘based on that decision that my father made in regards to removing the balustrade, I was disappointed that that’s triggered that reaction to install those bollards’. It is 42 T 947-948. 43 T 949.23-950.15. -- 58 of 104 -- [2024] SASC 78 Kourakis CJ 55 not obvious on what material the cross-examination putting a quite different and more subtle motive was advanced. Only a very limited number of persons could have heard the alleged telephone conversation or face to face discussion between those two men. Presumably, it was not Mr Con Angelopoulos, because he testified that his belief was that the bollards were a reprisal for not removing the balustrade. 243 Be that as it may, the scenario put by Mr Whitington KC is devoid of any evidential support with the failure to call Mr Chris Angelopoulos. It, too, is purely speculative. 244 I found Mr Green’s testimony on this issue to be convincing. 245 The alleged threatening nature of the discussions, whatever their precise object, and Mr Green’s alleged reaction is the antithesis of the way in which I would expect an officer of a substantial corporation, and a significant organ of local government, in particular, would act. It amounted to an allegation of, at least, serious maladministration in public office. Mr Green, after long service to the Unley Council as a manager, became its Chief Executive, a position in which he served through to his retirement. It is fanciful that in the first ‘public relations’ meeting with the Unley Council’s largest ratepayer, Mr Green threatened Mr Chris Angelopoulos and then lost his temper when that threat failed to achieve its object. It would, as Mr Green himself acknowledged, not be appropriate to attempt to pressure the new owners of the shopping centre to give up an important part of their proprietary interest in the Deck carpark by agreeing to the grant of an easement to the Unley Council or Australia Post. A discussion about the existence of the bollards, however, was sensible, particularly having regard to the development application to remove them. Mr Chris Angelopoulos’ response, as recalled by Mr Green, that he needed to consider the operational requirements of the supermarket was exactly what could be expected. It would be futile, if not counterproductive, in that context, to attempt to pressure Mr Chris Angelopoulos to act precipitously on the removal of the bollards. Moreover, Mr Green’s account is supported by the terms of the letter written to Ms Sorrell and his report to Council in May 1998. 246 The premise to the question that Mr Green thought that the Unley Council needed to act fast to obstruct the right of passage to which it was seeking to give a legal foundation is illogical. There is no reason why negotiations could not have continued with the Unley Council making the point that, unless the right of way was formalised, Birdwood Avenue could not be closed and bollards would have to be installed. The Unley Council’s integration strategy depended on continuing access through the Deck carpark. Obtaining the agreement of Australia Post not to use Birdwood Avenue depended on assuring Australia Post that access through the Deck carpark would be available to it. Putting back bollards would take the Unley Council in the opposite direction. 247 I have no hesitation in accepting the testimony of Mr Green, within the limits of his recollection, as being both credible and reliable. -- 59 of 104 -- [2024] SASC 78 Kourakis CJ 56 248 Mr Keenan’s evidence in examination in chief that the bollards were never removed is challenged because of his mistaken recollection of the colours of the bollards between which the chain was hung and the bollards which were later installed in between them. Conflation of superficial appearances, like colour, is commonplace. A number of other criticisms of Mr Keenan’s recollection of detail also ignore the realities of human memory. The essential nature and substance of things and their functional effects may be accurately recalled even when some peripheral details are lost.44 249 In examination in chief, Mr Keenan gave the following evidence: Q … in terms of vehicular access, between those two car parks – between the Woolworths deck car park and the council car park, during the period that I am talking about, was vehicular access possible at any time? A I have no recollection of being able to get through there, yeah, so I don’t think there was vehicular access. Q Can you tell us what was there. A Bollards. Q Did the bollards ever come down? A Not while I was there. Later, Mr Keenan testified: I have a recollection of bollards being put in place but precisely the space of time, I can’t tell you, but I do know it was impossible to get through there while the building was on and impossible because of the bollards, yeah. Mr Keenan was asked in cross-examination: Q Prior to the construction of the Woolworths deck car park, the land on which it was built was vacant land, is that right, or can’t you remember. A Can’t remember, sorry, no. Q Can you remember whether access was available across vacant land where the Woolworths car park became to be built onto the council car park on the north. A No, no. … A No, I couldn’t tell you that. Sorry, yeah.45 44 In the context of depositions as to conversations, for instance, cf Gan v Xie (2023) 378 FLR 458, 483-6 [119]-[122] (White JA, Simpson and Basten AJJA agreeing), approving Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, [121]-[129] (Jackman J). 45 T 964. -- 60 of 104 -- [2024] SASC 78 Kourakis CJ 57 250 It is not clear from that whether Mr Keenan was saying there was no such access or whether he was saying he could not recall one way or the other but I take him to have intended the latter. In any event, memory of the condition of a landmark long after its replacement fades. His answer does not cause me to discount the weight of his evidence. 251 Mr Separovic is a registered architect and urban planner employed by Hassell Pty Ltd (Hassell). Hassell was engaged by the Unley Council in 1997 to prepare reports to guide its objective of amalgamating the carparks to the north of Arthur Street. Mr Separovic was assigned to work on that project. His primary role was to prepare layouts of the existing carparks and to suggest alternative configurations. Mr Separovic exhibited to his affidavit of 2 November 2021, a plan of the existing carparks dated 16 October 1997 and marked MS-1. MS-1 was later tendered as exhibit R12. He also drew a proposed alternative layout which he exhibited to his affidavit as MS-2. The carparking spaces on his plans were drawn to a standard carparking space of 5.5 metres long by 2.5 metres wide. Mr Separovic could not remember how long before the preparation of the plans he inspected the carparks. 252 Mr Separovic deposed that he was ‘certain that you couldn’t drive through the Deck carpark to the Council carpark’. 253 Mr Separovic deposed that there was access from Birdwood Avenue into the Council carpark, but his recollection was that it was either partly closed off, or that there were signs marking the access as being for local traffic only, or something to that effect. For that reason, he did not mark access from Birdwood Avenue on the plan by drawing in arrows. 254 He deposed that, although his plan showed the carparks marked in the Council carpark immediately to the north of the Deck carpark (which he described as the northern area) as at the time of his inspection, that area was used mostly for parking, and turning around, trucks. Large bins were also deposited there. 255 Mr Separovic also deposed that such cars as were parked in the northern area at the time of his inspection were parked along the carpark’s western edge. His opinion was that the layout of the northern area was inefficient and that the space between carparks on the western side and the marked spaces of the centre island of carparks was unsafe because it was too narrow. It was less than six metres in width, whereas the standard was three metres for cars in each direction of travel. He explained that it was for that reason that his alternative plan allowed for the access marked with two arrows in opposite directions north and south as ‘Proposed new access, lose two carparks’. The existing configuration also left a space of less than six metres between the southeastern most carparking space in the central area and the access to the Deck carpark. 256 Despite intense cross-examination as to alternative explanations for the reference to losing two carparks, Mr Separovic’s testimony was convincing. -- 61 of 104 -- [2024] SASC 78 Kourakis CJ 58 Moreover, the obvious inference from the very descriptions of the 1997 plans as ‘existing carparking and property layout’ and ‘option 1’ makes it pellucidly clear that Mr Separovic’s recollection is correct. He testified that:46 I added arrows to the access way to make it clear that the area would be a new access way and made the notation that ‘proposed new access (lose two carparks). Because two carparks would be lost in the Deck carpark by adding the access way. 257 Mr Separovic’s testimony, supported as it is by MS-1/R12, directly contradicts Mr Angelopoulos’s evidence that the Vehicle Access Link was open in 1996 and only closed after Duke Group settled on its purchase of the USC. 258 Mr Separovic explained that a further six carparks were added on the premise that Birdwood Avenue would be closed and, for that reason, he noted ‘new road closure to Birdwood Avenue’. He also ‘flipped’ the carparking spaces in the Council carpark to give sufficient space for traffic to pass from the Deck carpark through to the Council carpark by moving the carparks parked on the western side, along Mr Ports’ fence, to the eastern side of the Council carpark, namely against the Rossiters site. 259 Mr Separovic was cross-examined at some length about whether he observed any built feature of the Deck carpark which was calculated to allow the movement of vehicles between the Deck carpark and the Council carpark. Mr Separovic answered the questions on the mistaken understanding that the questions were directed to features like signs, bollards, or chains. However, when the cross-examiner eventually explained to Mr Separovic that the subject matter of his questions was the dished invert, which allowed for both drainage between the Deck and Council carparks and the smooth movement of vehicles over the boundary between the two, Mr Separovic understood the question and answered responsively. 260 The cross-examiner then took Mr Separovic to similarities between MS-1 (R12) and compared it to a plan which was prepared for the purposes of a Colliers Jardine report to Council in March 1994 headed ‘Unley Centre Vehicle/Pedestrian Integration Review Preliminary Study’. A number of the features, particularly the traffic features on Unley Road and the layout of buildings were the same. Mr Separovic accepted that that was so but also pointed out some differences between them. Counsel made it clear to Mr Separovic that he was not suggesting that the plans were identical but that Mr Separovic had taken the Colliers’ plan, in one way or another, and drawn over, or modified it. Again, once Mr Separovic understood the point being made, he explained that the straight line across Birdwood Avenue is a cadastral boundary, that is to say a mark indicating an allotment boundary.47 When Mr Separovic was asked directly whether he drew the 46 25.1. 47 T 840. -- 62 of 104 -- [2024] SASC 78 Kourakis CJ 59 plans from scratch or had obtained the plan from elsewhere with the ‘outer parameters like public roads’, he answered: Yes, so there were – at the time there’s a state service, called Mapland and they provide maps of different scales and Hassell had a whole plethora of these maps almost for every section of the city. So there would have been one at 1:500, or something like that, which actually showed that area, and it would have had the cadastre, so it would have the allotment boundaries, it would have the aerial photo and then you could see things like the trees and so forth. 261 Mr Separovic agreed that he had used the Mapland resource for his plans. He acknowledged that details like carparking bays could also be seen on photographs available through Mapland. It was put to Mr Separovic that he drew in the houses on Birdwood Avenue, and he agreed that he had, as was the case with some buildings on Mary Street. 262 He testified that there was very little circulation space between the southern part of the island of carparks in the ‘foot’48 of the Council carpark immediately to the north of the Deck carpark. It probably did not meet the Australian Standard(s). 263 Mr Separovic testified that he drew some 11 spaces in the ‘foot’ area, which matched the Colliers’ plan. He could not recall the carparks along Mr Ports’ fence being blocked with plastic bollards and bunting when he inspected the carpark. 264 Mr Separovic was taken to photographs in the tender book.49 He was then asked:50 Q What I want to suggest to you is that those photographs suggest that there was a much greater distance than you had depicted between the boundary of the car park and your southernmost line on your central island in MS1. Do you agree with that. A Well, it depends on what the distance is between the bollard and that line marking, I don’t know what that distance is. Because you’ve got added, you’ve got the added extension of the fence and so – but yeah, it does appear from the photos that there’s actually – I don’t know if you could say there’s 6 m, but it does seem a bit more, yes. 265 Nonetheless, Mr Separovic maintained that there was less than six metres between the island bank of carparks in the ‘foot’ area and the northern boundary of the Deck carpark. Mr Separovic testified that there was only about three metres between the most southern part of the island bank of carparks and the northern boundary of the Deck carpark.51 266 Mr Separovic accepted that he did not have a distinct memory of taking measurements of the Council carpark but did recall design problems which 48 The foot of the Council carpark is immediately to the north of the Deck carpark and is bounded on its western side by Mr Ports’ fence. The leg is that part of the Council carpark which runs from an access point on Unley Road westward. 49 Volume 8, p 447. 50 T 845. 51 T 859. -- 63 of 104 -- [2024] SASC 78 Kourakis CJ 60 restricted traffic flow and for that reason he proposed the flipping of the carparks from the western to the eastern sides. 267 I accept Mr Separovic’s evidence on the Council carpark layout. That part of his evidence is inconsistent with Mr Angelopoulos’s evidence of the case with which he navigated the Council carpark to get to the Vehicle Access Link. 268 Between July 1995 and December 1999, Mr Mosel was a senior consultant and practice director for Hassell. He also served on the Environment, Resources and Development Court as a Commissioner from 10 January 2000 until 2012. 269 After refreshing his memory from certain documents, Mr Mosel deposed that, on 6 June 1997, he was engaged by the Unley Council to undertake a carparking study. Mr Mosel deposed that Mr Separovic was assigned to work on the study. 270 Mr Mosel’s engagement required him to consider and resolve some of the physical and legal difficulties in the amalgamation of the Deck carpark with the Council carpark to the north. He inspected the carparks shortly after his engagement, and before the preparation of the plans by Mr Separovic. He deposed that he could not recall any vehicular access between the Deck carpark and the Council carpark at that time. 271 In cross-examination, Mr Mosel was asked whether he had: Q ... a confident memory during that inspection or any such inspection for the purpose of the work you did, of seeing bollards occupying a space in a driveway between the Woolworths deck car park and the council car park, do you? A That’s correct. In re-examination, Mr Mosel was asked: Q Just in respect of that last question, do you have a recollection as to whether, to your knowledge, anything changed in terms of access between the deck car park and the council car park during the period that you were at Hassell. A No, I can’t recall any change that I observed or whether it was brought to my attention. I have no memory of that. 272 Mr Mosel was taken to [8] of his affidavit which was to the effect that he could not recall any vehicular access between the Deck carpark and the Council carpark and was asked: Q Did you ever see or were reports or plans shown to you in respect of the building works, any sort of works, to … reinstate and then close off again that vehicular access. A I don’t recall seeing any such plans. Q Or seeing any such things. -- 64 of 104 -- [2024] SASC 78 Kourakis CJ 61 A Or seeing any such things. 273 Mr Mosel presented as a careful and reliable witness. I accept his evidence. His evidence too contradicts Mr Angelopoulos’s account of the opening and closing of the Vehicle Access Link The Council carpark - for whose benefit? 274 It will readily be apparent from the evidence of the lay witnesses to whom I have referred that the Vehicle Access Link and the Council carpark were available to be used by any member of the public who so chose to use them. In particular, in the period in which Mr Angelopoulos claimed that the bollards had been removed, Mr Angelopoulos himself claimed that he often travelled over the Council carpark, through the Vehicle Access Link and on to Arthur Street, simply to avoid the congestion at the junction of Arthur Street and Unley Road so that he could travel down Arthur Street to King William Road for his own purposes. Similarly, Mr Papetolis and Mr Vassilopoulos gave evidence that they travelled from Arthur Street into the Deck carpark and over the Vehicle Access Link to the Council carpark and beyond when travelling north, again to avoid the buildup of traffic at the junction of Arthur Street and Unley Road. 275 That user had no connection whatsoever relevantly connected to the user or enjoyment of the Deck carpark as such. In particular, it did not serve the purposes of the owner of occupier of the Deck carpark or in any way benefit the Deck carpark. 276 In respect to the use of the Council carpark, any member of the public could park there and there was no part of it reserved for persons who were invitees of the proprietor or occupiers of the USC. In particular, the area was used extensively by trucks servicing the Rossiters Shopping Centre. 277 As to pedestrian traffic, the evidence of Mr Green and Mr Salaman shows that it was used by them simply to access shops at Unley Central. There is no reason to think that their user, unrelated to the USC or the Deck carpark, was unique. It is precisely what many members of the public can be expected to have done. Equally, there was evidence that invitees of the Rossiters Shopping Centre made use of the Vehicle Access Link and the parking within the Council carpark. 278 As we shall we, these circumstances preclude the applicant’s claim for an easement pursuant to s 36 of the LPA and on other grounds. Without a trace 279 The parties adduced expert engineering evidence on the construction processes by which bollards may be installed and removed and the treatment of asphalt surfaces related to those processes. 280 By way of introduction, I summarise that evidence and why it is inconsistent with the Duke Group’s case. Bollards such as the concrete-filled and topped -- 65 of 104 -- [2024] SASC 78 Kourakis CJ 62 bollards which obstructed the Vehicle Access Link are anchored in one way or another to a footing well below the surface. Plainly enough, a footing requires excavation and the pouring of concrete. A bollard might be embedded in the footing or might be screwed into it after the concrete has cured. After the bollard is anchored to the footing, the area must be surfaced, in the case of the Vehicle Access Link, by asphalt. 281 No record was put into evidence of any contract, order, or invoice in respect of the installation of the bollards which replaced the chain in about 1994. Those bollards were within the boundary of the Deck carpark over which Woolworths held the ground lease. It is likely, therefore, that Woolworths arranged or procured the erection of the bollards, probably through Uniscan. The records of that installation, if they remain, are most probably held by Uniscan. 282 On the Duke Group’s case, different bollards were reinstalled shortly after it purchased the USC. As I have already observed, the evidence does not disclose any rational reason for the Council to have installed replacement bollards at that time. There is no record of the Council making arrangements or giving any direction that bollards be installed for a second time. That is surprising for works as extensive as those described by the engineers. Nor is there any evidence that the Angelopouloi or any other officer of the Duke Group, or anyone else for that matter, complained at any time about the installation involving disruption as substantial as that described by the engineers. 283 If, as Mr Angelopoulos contends, the bollards were installed shortly after settlement, it is surprising that the Unley Council was so bold as to trespass onto the Deck carpark land which it had only just sold to the Duke Group. When Duke Group removed the bollards in 2019, the Unley Council, anxious to keep the Vehicle Access Link closed, installed bollards on the Council carpark land. 284 Moreover, the engineering experts who inspected the Vehicle Access Link and who were called to give evidence failed to find any sign of the removal of bollards in 1996 or the installation of replacement bollards in 1997. Indeed, the appearance of the Vehicle Access Link suggested to them that the bollards installed in 1994 were the ones removed by the Duke Group in 2019. 285 An engineer, Mr Tsagouris, who was called by the Council, detailed three methods for the removal of concrete-filled bollards: (1) Cutting them off at ground level, leaving the asphalt and the concrete footing intact but with the remnants of the bollards visible unless patched over. (2) Removal of the asphalt down to the footing level and then either cutting off the bollards from the footing, or unscrewing them, as the case may be, and resurfacing to the existing asphalt level, in which case there is likely to be a visible line between the new and original asphalt surfaces. -- 66 of 104 -- [2024] SASC 78 Kourakis CJ 63 (3) Removal of both the bollards and the concrete footing which requires remediation by backfilling the cavity and resurfacing of the asphalt. That process will leave a visible demarcation where the new and original asphalt meet and, in addition in the case of the Vehicle Access Link, is likely to have some structural effect on the dished invert. 286 In 2019, Mr Angelopoulos removed the three central bollards which he claimed were installed shortly after settlement on Duke’s purchase of the USC in October 1997. The bollards he removed were within the Deck carpark and, therefore, on the property of the Duke Group. The bollards were removed by saw- cutting them down at asphalt level. There is no visible evidence on the surface that other bollards had been installed across the Vehicle Access Link at an earlier time and removed. 287 The first method would leave the remnants of the bollards visible. However, the witnesses who claimed to have passed over the Vehicle Access Link when it was open were not asked whether they noticed those remnants. The second or third of the methods detailed by Mr Tsagouris would involve substantial building work. However, again, no witness who gave evidence of travelling over the Vehicle Access Link when it was open was asked about noticing construction work of that kind. 288 As we shall see, the evidence is that it is generally difficult to insert a bollard in exactly the same location as a pre-existing bollard without evidence of some disruption. There was no indication of any such disruption in the surface of the asphalt around about the location of the bollards which were sawn off. On the Duke Group’s case, when the Unley Council caused a second set of bollards to be installed in 1997, extensive construction work in the nature of excavation and laying of footings would have been required. Moreover, an area of asphalt south and north of the Vehicle Access Link must have been resurfaced. 289 By the time of the supposed installation of a second set of bollards after settlement on the Duke Group purchase, plainly enough, Woolworths could have had no part to play in it. The substantial works required could only have been procured by the Unley Council. The absence of any council record of that work tells against any such event. Documents are sometimes misplaced. However, having regard to the extensive documents, including handwritten notes, which have been discovered and put into evidence, I would favour the hypothesis that the work was never done over the hypothesis that all the records of the work were unable to be located for the purposes of discovery. There is no reason to countenance the possibility of a wilful withholding of the documents. 290 More fundamentally, the work described by Mr Tsagouris and Mr Manning is substantial. The process required, first, excavation and perhaps framing with form work, followed by a pouring and setting of the concrete, the anchoring of the bollards, and finally the asphalt resurfacing. It must have involved contractors fencing off the area in which the work was performed for at least several days. -- 67 of 104 -- [2024] SASC 78 Kourakis CJ 64 291 The work would have required the occupation of a substantial area of the Deck carpark, blocking the Vehicle Access Link whilst that work was performed. It was not put to Mr Green that anyone from the Duke Group, or Mr Angelopoulos or his father in particular, complained about the Unley Council taking unauthorised access to the Deck carpark to install those bollards. Mr Con Angelopoulos did not give any evidence of being called by his father to the site of the Vehicle Access Link to view work of that kind. He did not claim to have remonstrated the contractor, the workers, or the Unley Council at this unexpected turn of events. The absence of any such evidence is particularly significant given the position which was put to Mr Green that the bollards were installed in a fit of anger because Mr Chris Angelopoulos had refused to remove the balustrade, or more strategically in order to leverage his attempts to procure rights of way. 292 Mr Tsagouris and Mr Manning were asked to provide reports answering the following questions: 1. On the assumption that the 1994 Bollards were constructed in the same manner as the bollards shown in the 2019 Bollard Photos (i.e. concrete-filled and topped, with a concrete footing), by what methods could the 1994 Bollards be installed and removed? If applicable, please explain your answer with reference to the technical requirements pursuant to the applicable provisions of the Building Code of Australia and/or Australian Standard(s). 2. With reference to each removal method referred to in your answer to question 1, what physical effect would each removal method have on the surrounding asphalt surface and any concrete footings or the dished invert adjacent to the bollards? 3. With reference to your answers to questions 1 and 2, and on the assumption that the 1994 Bollards are those shown in the 2019 Bollard Photos, which method(s) were likely used to construct, install, and remove these bollards? 4. Please state whether, in your opinion (and taking into account the assumptions set out [in the letter of instructions]): 4.1. the three concrete bollards shown in the 2019 Bollard Photos are the original bollards installed in March 1994, or whether they were installed in 1997 after a removal of the 1994 Bollards in or around 1996 as alleged by the Applicants? 4.2. the state of the asphalt surrounding the three bollards shown in the 2019 Bollard Photos (which asphalt was laid in 1992/3) is consistent with the 1994 Bollards being removed in or around 1996 and replaced in 1997 as asserted by the Applicants? Please explain your reasoning. 293 The letter of instruction is inelegantly expressed because the assumption in question 3 is ambiguous as to whether the question was in respect of the 1994 Bollards or the 2019 Bollards. However, it is clear enough that the experts were being asked to assume that the 1994 Bollards had the same construction as the 2019 Bollards. That is the way in which the question could be properly understood and the way in which the experts answered it. -- 68 of 104 -- [2024] SASC 78 Kourakis CJ 65 294 The ambiguity also infected question 4 because of its reference back to the earlier assumption. However, questions 4.1 and 4.2 do not ask the experts to assume any answer. Those questions elicit reasons for the expert opinion held, one way or another, as to whether the bollards erected in March 1994 were those which were removed in 2019, or whether there was an earlier removal of different bollards in or around 1996. It is plain on the face of the reports of the Mr Tsagouris and Mr Johnston that they so understood the questions. It was obvious to me that they so understood the questions when they gave their testimony. 295 In his report of 31 May 2022, Mr Tsagouris described ‘two practical methods’ for the construction and installation of bollards. The first, embedded bollards, required the following steps: (a) excavation of the footings; (b) installation of reinforcing steel; (c) installation of the steel bollard posts into the excavated footings; (d) pouring the concrete and embedding the steel bollard and filling the steel bollard with concrete; (e) constructing the asphalt carpark surface over the top. 296 The second method, the surface-mounted method, also required excavation and the installation of reinforcing steel, but was followed by pouring the concrete footings without the bollard in place. The steel bollards are fixed with chemical or other anchors to the top of the footing after the concrete had fully cured. The steel bollard is then filled with concrete before resurfacing with asphalt. 297 Mr Tsagouris’ opinion was that the most cost-efficient and practical method for the installation of bollards, particularly after the Deck carpark had been constructed and surfaced, would be embedding the bollards into isolated cylindrical pier footings which were poured at the same time as the filling of the concrete bollards. Mr Tsagouris was not able to confirm that that was the case because the base of the bollards and the concrete footings were no longer visible. 298 Mr Tsagouris’ opinion was that the most cost-efficient and practical method of removal would be sawing off the bollard at the asphalt level. 299 Mr Tsagouris’ ultimate opinion was that the bollards installed in 1994 were not removed until 2019 and, in particular, that there was no removal of the first set of middle bollards in 1996. He based his opinion on his 40 years’ worth of experience as a civil engineer and his observation that there was no sign of disturbance in the asphalt. In particular, it was his view that the asphalt surrounding the bollards was uniform in colour, appearance and weathering. Moreover, the colour and size of the aggregate was uniform both around the -- 69 of 104 -- [2024] SASC 78 Kourakis CJ 66 bollards and the dished invert, indicating that it was ‘laid monolithically with a single asphalt batch and mixed’. 300 Mr Manning has a Bachelor of Civil Engineering from the University of Adelaide. He has worked throughout his career in surfacing, and asphalt in particular. From 2002 to 2008, he was the project contracting and bid manager for Boral Asphalt in South Australia. From 2008 to 2012, he was an operations manager for Boral Asphalt in Western Australia. From 2012 to 2014, he was the State manager of Boral Asphalt. From 2014 to 2016, he was the regional manager for South Australia and Victoria for Rocla Quarry Products. From 2016 to 2019, he was the construction materials aggregate operations manager for the firm Hansen in South Australia and the national asphalt project manager. From 2019, he has been the general manager of his own consultancy firm, Top Coat Asphalt. In short, Mr Manning has substantial engineering experience at the highest levels in asphalt surfacing accumulated over a period of two decades at a national level. 301 In answer to the first question as to the installation of the bollard, Mr Manning, too, described the cylindrical footing method detailed by Mr Tsagouris. In respect of the removal of bollards, Mr Manning described what he called a ‘part removal’ which involved saw-cutting at the asphalt level. His opinion was that displacement of the concrete core would require leveling off of the area to prevent a trip hazard. He described that method of removal as being evident at two of the bollard locations. 302 An alternative removal method described by Mr Manning was full removal of the bollard, including the buried base section. In that event, the cutting or dislodgement of the bollard may cause ground disturbance around the bollard base, in which case a clean and level cut finish could not be achieved. There would be resulting damage to the surrounding asphalt. Mr Manning initially thought that that was the method of removal of the central bollard of the three bollards removed by Duke in 2019, but later altered his opinion and accepted that bollard, too, had been removed at the surface in accordance with the first method he described. 303 Mr Manning, like Mr Tsagouris, thought that the most likely method of installation was the cylindrical footing with concreting with the bollard in place. 304 Mr Manning’s ultimate opinion was expressed as follows: In my opinion, the asphalt on either side of the concrete invert was laid at the same time around 1992/1993. The appearance of each asphalt strip is alike, with the texture, aggregate (stone) pattern and age/discoloured bitumen (oxidised over years of exposure) being the same. 305 Mr Manning deposed that it did not appear to him that the asphalt strips immediately on either side of the concrete invert had ever been re-laid or overlaid. Accordingly, it was his opinion that the three concrete bollards removed in 2019 photographs were the original bollards installed in 1994. -- 70 of 104 -- [2024] SASC 78 Kourakis CJ 67 306 In his reasons, Mr Manning explained that new or replacement bollards could not be placed on top of a ground level cut section of an earlier installed old bollard because there would be no reliable structural connection. Alternatively, if a bollard were installed in the spot from which a bollard and footing had been completely removed, there would be surrounding asphalt damage and reinstatement beyond the diameter of the bollard. He, again, expressed his opinion that the asphalt conditions surrounding the three bollards as seen in the 2019 photographs did not appear to be consistent with a postulated removal and reinstatement of the bollards in 1996/1997. 307 Duke Group relied on the opinions of Mr Johnston, a civil and forensic consulting engineer of some 35 years standing who has published widely, largely in accident reconstruction. He has a Bachelor of Civil Engineering from the University of New South Wales, majoring in transport engineering and engineering construction. He holds a Masters degree in traffic and pavement engineering, which focussed on the role of roadworks in causing vehicle collisions. 308 Mr Johnston deposed that a more comprehensive forensic examination, including excavation and some sawcut cross-sections, would better define the process or processes which had been undertaken in the placement of the bollards. He agreed that the bollards shown in 2019 were most likely installed into isolated concrete footings, which were either drilled cylindrically or dug in a rectangular fashion. His view was that only an excavation would reveal the actual method. Mr Johnston’s opinion can best be described as agnostic because, in his view, it could not:52 … be definitively stated that the pavement to the north of the invert is the original 1992 pavement. It is also my understanding that we do not know for certain that the pavement south of the invert is also the original 1992 pavement as the absence of records of any possible reseal or overlay cannot be taken as proof of the negative as no records are available and it is unknown if any records existed. 309 Mr Johnston observed the entire section of asphalt in the area surrounding the bollards may have been re-laid. 310 However, Mr Johnston agreed that there was no obvious patching on the northern side of the invert in that there were no boundaries or demarcation between asphalt surfaces around each bollard to suggest that an isolated section may have been cut out and replaced. Mr Johnston performed some very minor excavation around the edge of the concrete footing of one bollard to ascertain whether or not either the concrete footings overlaid the asphalt or the asphalt overlaid the concrete footings at the boundary joints. Mr Johnston was unable to make a definitive determination and, in fact, identified evidence of both possibilities. For that reason, he suggested that careful excavation might provide a better insight into which material might have come first and which later. 52 FDN 126 at [4.51]. -- 71 of 104 -- [2024] SASC 78 Kourakis CJ 68 311 Mr Johnston was of the opinion that some asphalt must have been laid after the central bollards were installed in 1994 and, therefore, disagreed with Mr Tsagouris’ opinion that the asphalt was monolithic. Mr Johnston explained:53 On my understanding this cannot be correct unless it is agreed that the asphalt was disturbed at least once after the construction of the USC Carpark in or around 1992 as the images of the carpark from March 1993 only show the two FT bollards as being present at that time. It follows that the CF bollards were installed after March 1993 at the earliest. Therefore, the asphalt must have been disturbed or relaid at the time when the CF bollards were first installed. If the asphalt surface was constructed over the concrete footings of the CF bollards (as Mr Tsagouris opines) then the asphalt surface must have been relaid after the CF bollards were installed, i.e. after March 1993. I accept that evidence. However, its effect is simply to shift the baseline for the asphalt around the Vehicle Access Link from 1993 to 1994, and to recognise that the asphalt in that area is likely to differ from the asphalt in other areas of the carpark. 312 Mr Tsagouris, Mr Manning, and Mr Johnston gave their evidence concurrently. 313 I commenced my questioning of them by informing them that, on my reading of their reports, I understood the major difference between them to be that Mr Johnston, unlike Mr Tsagouris and Mr Manning, still allowed for the possibility that the bollards were removed in 1996 and then replaced with other bollards in 1997. All three experts agreed that that was the difference. Accordingly, I asked Mr Johnston to explain why he allowed for that possibility. Mr Johnston replied:54 Because I don’t know what I don’t know. So I agree with Mr Tsagouris in respect of, if they were the same bollards, so to remove the bollard with a similar size footprint, you actually excavate somewhat outside that footprint, remove it, backfill it and do whatever you want to do with it. If the original bollards were much less substantial with a much smaller footing such that they were removed and, of course, the footprint was expanded slightly to remove them, but that footprint still remains within the square capping that’s on the current bollards, then, effectively, it is possible that the re-infill has masked any removal that might have been visible from the original removal. That only applies, of course, if those first set of bollards were of a smaller construction and a substantially smaller footing that could be then contained within the larger footprint of the newer bollard that has replaced it or, alternatively, that whole strip of asphalt had been replaced at the same time, or at the time of removal, and then the new bollard dug into that new asphalt in ‘97. 314 I understand from Mr Johnston’s answer that if the bollards were installed in 1997, as the Duke Group contends, and they were installed on a larger footprint than the bollards installed in 1994, there would not be any evidence of the 1994 bollards to be seen, at least at the surface. However, there remained a question as 53 FDN 126 at [4.45]. 54 T 427.13-33. -- 72 of 104 -- [2024] SASC 78 Kourakis CJ 69 to any delineation where the new, longer, footing met the asphalt. Mr Johnston went on to testify:55 It would have been the whole strip. There is no join in the strip. If there was a joint in the strip we’d see it. There is no join in the strip, it would have to be the entire strip. 315 In respect of the bollards which were removed in 2019, Mr Johnston identified a rectangular pad of about seven centimetres over what was likely to be a cylindrical piece of concrete beneath it. In his opinion, therefore, that was the method of construction of the central bollards, whether they were installed in 1994 or 1997. 316 Mr Johnston was asked whether he had an opinion on the similarity or dissimilarity between the asphalt surface around the remnants of the bollards in other parts of the surface. His opinion was:56 The appearance, at least macroscopically, of the strip and the remainder of the carpark appears to be the same. So if the strip was relaid in 1996, so it will make most sense when the bollards, if … they were taken out in 1996, were taken out, that strip was relaid in ‘96. And then in ‘97 the new bollards were dug in. We can see there put in after the asphalt on either scenario, would have been laid with, effectively, to use an analogy, if we are baking a cake, an identical recipe and identical ingredients because they are, visually, at least macroscopically, the same. (Underlining added). 317 For that degree of consistency, Mr Johnston was assuming that it was re-laid by ‘the same contractor with the same material supplier and all those things to be that consistent’. However, as I understand Mr Johnston, that process must have been undertaken at least once, i.e., at the time of either of the postulated removal in 1996 or the 1997 reinstallation. It follows that the extent of the resurfacing, and therefore effect on the operation of the Deck carpark shortly after settlement on the sale to the Duke Group, must have been substantial. 318 Mr Tsagouris was then asked to explain why he did not allow for that possibility. Mr Tsagouris explained that the rectangular pad which was exposed with the removal of bollards in 2019 was about a foot by a foot. He explained that if the bollards put in about 1994 had had a smaller footing, they would still needed to have had been in the ground for at least 600 mm and perhaps even deeper if the bollard were smaller. That extra depth was required simply so that they remained straight. Removal of footings of that depth would leave a disturbance in the asphalt because the footing adheres to the surrounding soil. That is particularly so with clay soils found in that area which have high reactivity and highly cohesive qualities. Accordingly, ‘there is an angle where it breaks away and there is no way we would be able to contain that within the 300 mm’. Mr Tsagouris explained that if new bollards had been installed in 1997 next to the spots where bollards had 55 T 427.38-429.3. 56 T 430.10-20. -- 73 of 104 -- [2024] SASC 78 Kourakis CJ 70 been installed in 1994, he would have expected to have seen indication in the asphalt paving. Mr Tsagouris continued:57 What we have agreed, all of us, is that if that was the case, because of the similarity, if that strip was actually replaced, the entire carpark, that carpark would have been replaced because there are no physical construction joints to say that that is extended to a certain point. We all agree on that. In order to do that, based on construction costs and everything is costs in the industry, is you would be looking at today’s terms, if you were to replace the carpark depending on the carpark, you are looking at somewhere between $90,000 and $110,000 based on costs. Plainly, that would be a considerable price to pay for a fit of pique on Mr Green’s part. 319 Mr Manning’s opinion on the issue was that, in pulling out footings, it is ‘rarely ever any neater or tighter than the likes of a 300 mm x 300 mm off the footprint. It tends to be more substantial’.58 Mr Manning also expressed the opinion that there ‘is the high likelihood that that it is the same asphalt on either side due to the matters described in my report, but also that likeness around the aggregate appearance, the mosaic finish, the textural nature of both the asphalt surface alongside that’.59 Mr Manning’s opinion was that it was much more likely that the asphalt surface either side was laid at the same time rather than a strip re- laid. 320 In cross-examination by Mr Whitington KC, Mr Manning confirmed that it was his opinion that the asphalt either side of the invert was laid at the same time. He agreed that bitumen discolours with time and acknowledged the phenomenon whereby over time the colour contrast between bitumen laid at different times diminishes. However, Mr Manning continued:60 I would say that even if the likes of 15-20 years, there could still be a differentiation around the coloration of the bitumen. What I would say, though, to lay even the same asphalt, even a few years later, to come up with the same textural effect in finish and visual appearance, is not that common. 321 Mr Manning explained that it is the colouration of the tar or binding agent which will fade in contrast. 322 Mr Manning agreed that the aggregate may vary even if from the same quarry and that there were different grades of materials. Mr Manning explained that there are ‘job mix formulas’ which target around different gradation in the aggregates. He explained that there was ‘some variability or tolerance levels allowed in the inputs of large aggregate or small aggregate’. He explained that some quarries were highly consistent in the aggregate they produced and others have variation. 57 T 432.28-38. 58 T 433.15-17. 59 T 433.33-38. 60 T 434.35-435.2. -- 74 of 104 -- [2024] SASC 78 Kourakis CJ 71 323 Mr Manning was asked this:61 Q You can’t tell by looking at the surface of the asphalt that we are talking about of the proportion of different sizes, can you. A Not so much proportions, but I would say the angularity and the nature of the aggregate, and the shape and the mosaic of the finish of the asphalt is an indicator of itself. That particular response shows Mr Manning’s high level of knowledge of the nature of asphalt and his visual acuity in assessing the appearance and mosaic of aggregate, in particular. It is a clear manifestation of Mr Manning’s decades of experience at working at a very high level in the asphalt industry. 324 Mr Manning frankly accepted that he could not tell the proportion of different kinds of aggregate from no more than a visual inspection of a surface, nor could he tell the proportion of different shapes. Nonetheless, he continued:62 You can take a fair judgment on visual assessment. You can see the top end of the largest aggregate size to know whether it’s a 10 mm aggregate or a 7 mm asphalt mix. So, visually, you can still get an indication on proportion. There was then this exchange:63 Q We can agree on this, can’t we, two strips of asphalt quite old, can look quite the same, for instance, as to colour and as to the stones in the surface, but to determine whether they have actually been laid at the same time, you need to do an exploration into the nature of the bitumen and the composition of the bitumen, and the nature of the aggregate and the composite of the aggregate one against the other; do you agree with that. A Yes. Q Without doing that, one cannot confidently say, here, that these two sides of bitumen, what I have called the strip and the side to the south of the dish invert, were necessarily or even probably laid at the same time. Do you agree with that. A No, I disagree. You can use the word ‘confident’ I would say it is a high degree of probability. (Underlining added). 325 Mr Johnston was then asked to comment on that exchange, and he answered:64 Yes, I have been listening and in all honesty I have agreed with pretty much everything that has been said. It really comes down to the last question in terms of this debate around ‘probably’, ‘likely’, ‘possible’. I have not commented on whether it was probably the same 61 T 437.29-35. 62 T 438.6-10. 63 T 438.22-37. 64 T 439.8-17. -- 75 of 104 -- [2024] SASC 78 Kourakis CJ 72 or whatever. I cannot exclude the possibility. So I’m sort of almost the double negative. I can’t exclude the possibility that they were laid at different times. I’m not suggesting I wouldn’t go the other way, put it that way. (Underlining added). That answer perhaps best exemplifies what I have described as Mr Johnston’s agnosticism. 326 Later, again Mr Johnston repeated his position, saying, ‘No, I’m just saying I can’t exclude the possibility if these conditions are met’.65 When asked by Mr Whitington KC about the nature of aggregate and the manufacture of aggregate, Mr Johnston concurred with Mr Manning. 327 Mr Tsagouris testified that it was unlikely that any bollard installed in 1997 was placed next to the position of bollards installed in 1994 because there was equal spacing between the concrete-filled bollards and the two bollards across which a chain had been hung. Mr Tsagouris also excluded the possibility of bollards being put in precisely the same space because of the disturbance that would be caused. Mr Tsagouris explained that even if a bolted bollard were used, the footing would have to be removed in order to put new bollards in their place. 328 Mr Tsagouris nonetheless accepted that any sign of disturbance which he thought were necessary if there had been a removal of bollards first installed in 1994 could have been covered up by re-laying the asphalt. 329 In his evidence, Mr Tsagouris drew attention for the first time to the profile of the asphalt where it met the kerb at the eastern end of the dished invert. Mr Tsagouris opined that a peculiarity in that profile was evident in two photographs, the first taken in 199366 and a later one taken in 2019. Mr Tsagouris explained that he did not raise the issue at the conclave of experts and it was not mentioned in the joint report, nor in his earlier reports, because it had only come to his attention in preparing to give his testimony. As part of that preparation, Mr Tsagouris had asked a member of his office to bring him a collection of all the photographs of the bollards that had been provided over time. Those photos expanded and marked by Mr Tsagouris became exhibits R22 and R23 respectively. 330 The feature pointed out by Mr Tsagouris was in the area of the bollard, FT1, which was the easternmost of the bollards across which the chain was hung. Mr Tsagouris gave the opinion that the same peculiarity was unlikely to be produced in the course of laying two different asphalt surfaces years apart. 331 Exhibits R22 and R23 are as follows. The red circle in each image does not form part of the exhibits: 65 T 439.22-23. 66 FDN 126, figure 3.1. -- 76 of 104 -- [2024] SASC 78 Kourakis CJ 73 332 Mr Tsagouris testified that he had gone back to the site and that the feature in the photographs was identical to what was in place as at the time he gave his evidence. Mr Tsagouris rejected the notion that when the asphalt was re-laid it did not extend to the point where the invert meets the kerb because if that were the -- 77 of 104 -- [2024] SASC 78 Kourakis CJ 74 case a construction joint would be visible. There had been resurfacing to the east of FT1 but not at the point of the peculiarity. 333 Mr Tsagouris explained that the angles at which the photographs were taken were slightly different, but that, nonetheless, common features were apparent in the way in which the asphalt was laid. In his opinion, it would be ‘very, very, very difficult’ to replicate the feature on separate resurfacings. Mr Tsagouris testified that he was ‘confident that it’s so similar that it cannot be done because it is almost a mistake’. By that, I take Mr Tsagouris to mean that there was no reason to strive to achieve that particular appearance. It was a feature of a kind which was a peculiarity in laying asphalt. 334 Mr Manning explained that the two photographs showed ‘a slightly higher lip’ of the asphalt up again the upright kerb, just to the west of the bollard with the chain as compared to a little further away where it is essentially matched. The other element was texture in a slightly darker shading which resembles a coarser texture in the finish of the asphalt arising from a slight difference in the compaction or degree of compaction compared to elsewhere where it would have received a standard roller compaction. Mr Manning could see the features on which Mr Tsagouris was relying. His opinion was that there was a ‘very low likelihood that it could be replicated’. 335 Mr Johnston agreed, at least in part: I agree in part, in my forensic work I use cracks in pavements a lot as indicators of landmarks. This is not so much as an artificial crack but it's a join. I agree with what was said except that the environmental constraints of that corner - and Mr Manning alluded to this – because of the environmental constraints of the corner, the presence of the kerb and things like that, a lot of the factors which have created that inability to finish it in the same way are still present. So I agree largely with what's been said but I would add that there are some environmental constraints that make that unlikely possibility in a purely random sense, more likely when the same environmental constraints of getting access in there and rollers in there remain the same. Mr Johnston also postulated that it may be that the concrete kerb itself had dropped away and he again reiterated that it may be that the lip was driven by the boundary surface or the boundary conditions.67 336 Mr Manning accepted that the conditions might constrain how the asphalt was laid, such as preventing the use of a steel drum roller and requiring the use of a whacker plate or hand tamping. Other environmental matters could be the shape or even settlement and sinking of the kerb or concrete or other structures which can occur with differential settlement to the asphalt perhaps. However, he concluded: Again, you can see these things go one way or the other. This happens to appear consistent around the asphalt sitting that bit prouder and higher than the concrete in that very edge. 67 T 452. -- 78 of 104 -- [2024] SASC 78 Kourakis CJ 75 Mr Manning also concluded: Yes, however, to repeat it, I would say it's a low likelihood that you could do it again to that sort of effect and come away with the same appearance in such a localised manner. 337 Mr Tsagouris discounted the environmental constraints leading to such a similarity in appearance in that it would require the same process of compaction on each occasion. 338 Mr Manning explained the processes which might reveal whether or not the asphalt had been re-laid. He testified: … Firstly, visually, the core's by nature have been cut through the aggregates and the stone and, visually, you can see the colouration of the aggregate and the rock, taking the point earlier about, yes, there is geological variation in time, but that, itself, is a visual indicator primarily. And then, beyond that, the next step could be for bitumen recovery through solvents and otherwise, and that's to extract the residual bitumen and then have that tested for certain properties, primarily viscosity. Similarly, the aggregates, you could then have that analysed for likeness around original geological source, again taking the point, that could have been taken from different locations with an inquiry, even within a similar production roll. 339 I accept that all three witnesses are well qualified engineers who approached their task responsibly and diligently. Mr Manning was the most qualified of the three on asphalt surfacing and Mr Tsagouris on construction methods for bollards. I was impressed by both their reasoning and their demeanour. I accept the positive opinions of Mr Tsagouris and Mr Manning that the absence of any indication of resurfacing and the similarities in the asphalt, especially the aggregate, render it improbable that the bollards installed in 1994 were removed in 1996 and replaced by different bollards in 1997. Their opinions are not contradicted by Mr Johnston’s agnosticism. 340 I also accept the opinions of Mr Tsagouris and Mr Manning that there is a particular feature in the profile of the asphalt surface which is unlikely to have been reproduced by successive resurfacing of the asphalt. Conclusion on the removal of the bollards 341 The opinions of Mr Tsagouris and Mr Manning, individually and together, are inconsistent with the key evidence called by the Duke Group, and provide strong circumstantial support for the witnesses, Mr Ports, Mr Salaman, Mr Green, and Mr Keenan (the Council’s witnesses), whose evidence I have accepted. Their evidence is not contradicted by Mr Papetolis or Mr Vassilopoulos. I am deeply sceptical of the evidence of Mr Angelopoulos because of the improbabilities and inconsistencies in his evidence, to which I have referred, and his strong commercial interest in the outcome of the proceedings. To accept his evidence would require me to find that the lapse of time has independently produced the same failing of memory on the part of the Council’s lay witnesses, even though: -- 79 of 104 -- [2024] SASC 78 Kourakis CJ 76 (1) the recollections of Mr Mosel and Mr Separovic and the plan drawn by Mr Separovic, MS-1, is to the same effect, that is that the bollards remained in place; (2) there is no evidence of a complaint by residents of Birdwood Avenue, or of a congratulatory note from Mr Salaman, on the alleged opening of the Vehicle Access Link in 1996 or the converse in 1997 when, on Duke’s case, new bollards were installed; (3) it is improbable that the Council would trespass on the Deck carpark and damage its surface so shortly after it had been sold and there are no documents evidencing the installation by the Council of a second set of the bollards in 1997; (4) there was not a contemporaneous, or even a belated complaint, for that matter, by any officer of the Duke Group about the Council’s installation of bollards in 1997 generally or of the conduct of Mr Green in particular. 342 I find that the bollards installed by Woolworths in 1994 remained in place until 2019. Disposition 343 At [48]-[90] above, I have laid out my reasons for dismissing the applicants’ claim for an equitable easement said to arise from the series of unexecuted Deeds exchanged between the Unley Council, Woolworths, and Australia Post. The other bases upon which the applicants assert an entitlement to the benefit of an easement in favour of the land upon which the Deck carpark is situated are: by reason of statutory metamorphosis of previous user of the Vehicle Access Link to access the Council carpark and, through that, Arthur Street, into an easement either for carriageway or footway by reason of s 36 of the LPA; by reason of the Unley Council’s inability to derogate from the grant of the Deck carpark to the Duke Group; and by reason of the Unley Council’s certification that the Deck carpark complies with the requirements of the applicable fire plan. On the basis of the factual findings that I have made regarding the continued interposition of the bollards until 2019 and the public and non-specific use made of the Vehicle Access Link by pedestrians, and on a proper construction of the fire plan, each of these claims must also be dismissed. Section 36 of the LPA 344 At all relevant times, s 36 of the LPA provided that: 36—General words implied in conveyances (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any -- 80 of 104 -- [2024] SASC 78 Kourakis CJ 77 part thereof, or at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, houses or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses or other buildings conveyed, or any part of them, or any part thereof. (3) This section shall apply only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained. (4) This section shall not be construed as giving to any person a better title to any property, right or thing in this section mentioned than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties. 345 Those conveyances and dispositions into which the general words provided for by s 36 are implied include, by virtue of s 7 of the LPA, a ‘mortgage, charge, lease, assent, vesting declaration, disclaimer, release, surrender, extinguishment and every other assurance of property or of an interest therein by an instrument, except a will’. Section 7 further provides that the term ‘convey’ has a corresponding meaning. 346 The easement claimed for vehicles to travel over the Vehicle Access Link must fall on the finding I have made that there was in fact no such access at any relevant time. The claim fails for the additional reason that, if there were access over the Vehicle Access Link, it was allowed, in the sense of not being forbidden, to any member of the public who chose to travel through it. It was not a liberty or privilege, easement, right, or advantage granted in favour of the users of the Deck carpark. For that reason, claims to pedestrian and parking easements must also fail. The Parties Submissions 347 Ultimately, the parties’ submissions reflected, and proceeded from, the factual contentions advanced at trial. Insofar as the applicants’ case was concerned, its claim to easements under s 36 of the LPA was underpinned by its assertion that, between 1996 and 1997, there was an extant vehicular and pedestrian user of the Vehicle Access Link for the benefit of the putative dominant tenement as such. What follows from that assertion is, in the applicants’ submission, the metamorphosis of those pre-existing users into easements proper by the force of the statute. Against this, the respondent contends that the effect of provisions such as s 36 of the LPA is merely to shorten conveyancing practice rather than to create proprietary rights out of mere factual users. In the event that that contention is not made good, however, the respondent also submits that the continuous interposition -- 81 of 104 -- [2024] SASC 78 Kourakis CJ 78 of the bollards against the Vehicle Access Link, and the fact that pedestrian usage thereof was enjoyed by the public at large without any connection to the dominant tenement as such, militate against the recognition of the easements claimed by the applicants. 348 In line with the factual findings that I have made above regarding the continued presence of the bollards, and the nature of pedestrian user of the Vehicle Access Link, it necessarily follows that the Duke Group’s multitudinous claims in this regard must be dismissed entirely. User and Statutory Metamorphosis 349 It is, perhaps, trite to observe that the forms of conveyancing historically adopted by, and known to, the common law were arcane and oblique.68 At an early point in its history, conveyances of land at common law occurred by livery of seisin, a ritual involving the excision of a clod of earth from the vendor’s land; the tradition thereof to the emptor; and the subsequent shattering of the excising dagger and its placement with sealed and attesting parchment at an area of public significance.69 Perhaps regrettably, the adoption of the deed as a mode of assurance of interests in land, and the statutory shift towards interest in land lying in grant rather than in livery, did little to abate the obliqueness of common law conveyancing.70 350 It is clear that s 36 of the LPA was, and its statutory predecessors were, enacted to simplify the language and practice of conveyancing. Section 10 of the Real Property Act 1852 (SA), annotated as ‘Conveyance of freehold tenements, to include all houses, &c., and the reversion, &c., and all the estate’, prescribed, in the absence of special exclusion, inclusions in a general conveyance of ‘any freehold tenements or hereditaments, whether corporeal or incorporeal in South Australia’ as: … all houses, out-houses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, water-courses, lights, liberties, privileges, easements, profits, commodities, emoluments, and all other rights, easements and appurtenances whatsoever belonging or appertaining to the tenements and hereditaments therein comprised, and whether the same be strictly appurtenant to the same tenements and hereditaments, or appurtenant thereto only by reputation or enjoyment, and also the reversion or reversions, remainder and remainders, yearly and other rents, issues and profits of the same tenements and hereditaments, and of every part or parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever, both at law and in equity, of the grantor or grantors in, to, out of, or upon the same tenements and hereditaments, and every part and parcel thereof, with their and every of their appurtenances. 68 See, eg, TF Kirby, ‘Some Notes on Fourteenth Century Conveyancing’ (1905) 59(2) Archaeologia 225. 69 See, eg, SE Thorne, ‘Livery of Seisin’ (1936) 52(3) Law Quarterly Review 345. It has been observed that livery of seisin descended from ceremonies governing the transfer of property in Italic land in the Roman Law. See David A Pittavino and Xavier P Walsh, ‘donationes mortis causa of Real Property: Missed Opportunities and Foreclosed Possibilities’ (2024) 17(3) Journal of Equity 268, 282. 70 See, eg, Brendan Edgeworth, Butt’s Land Law (Thomson Reuters, 7th ed, 2017) 807-08 [12.120]. -- 82 of 104 -- [2024] SASC 78 Kourakis CJ 79 351 As observed at [350] above, the purpose for which s 10 was enacted was to simply conveyancing practice and language in the colony. 352 That section was followed by s 6 of the Conveyancing and Law of Property Act 1881 (UK) (Conveyancing Act 1881), entitled ‘General words in conveyances of land, buildings, or manor’, which provided that: 6 General words in conveyances of land, buildings, or manor (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to land, or any part thereof, or at the time of conveyance demised occupied, or enjoyed with, or reputed to or known as part or parcel of or appurtenant to the land or any part thereof. (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof. (3) A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quit-rents, rentscharge, rents seek, rents of assize, fee farm rents, services, royalties, jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and hereditaments whatsoever, to the manner appertaining or reputed to appertain, or at the time of conveyance demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof. (4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained. (5) This section shall now be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties (6) This section applies only to conveyances made after the commencement of this Act. -- 83 of 104 -- [2024] SASC 78 Kourakis CJ 80 353 A similarly facultative and simplificative purpose was ascribed to s 6 by Chancery in the 19th Century. In Re a Contract between Peck and the School Board for London [1893] 2 Ch 315,71 for instance, Chitty J remarked that:72 The object of the 6th section, as is apparent from the language of the section itself, is to shew what general words are to be taken as included in a conveyance of land where the conveyance is otherwise silent. It is with the conveyance of land only that the Legislature is dealing, and not with the contract; and it is plain, to my mind that neither party to a contract is entitled to have these general words included in the conveyance unless they are justified by the contract, and appropriate to the proved circumstances of the case. As the section itself states in express terms in sub-sect 4, the section applies only, “if and as far as the contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.” The main object of the section is to shorten the conveyance. Now the words which are included in the 1st sub- section are words that were in general use among conveyancers before the Act passed. There was some variety in the forms used by different conveyancers; and, although this form was, perhaps, not universally adopted, it may be fairly said it was in common use; and the Legislature, thinking that such words would be appropriate in the great majority of cases, has enacted that a conveyance of land shall be deemed to include these things which are included in this 6th section, and it does nothing more.73 354 Section 6 of the Conveyancing Act 1881, as did s 10 of its South Australian forebearer, countenanced the conveyance of not only easements proper appertaining to land, but also of easements reputed so to appertain to land or any part or parcel thereof. Those reputed easements were referred to, as shorthand, as quasi-easements.74 At the turn of the 20th Century, that shorthand was treated by Chancery as giving a mandate to the courts to recognise and effectuate the statutory creation of easements upon conveyance that had, beforehand, only amounted to mere licensed or permissive uses of the land the subject matter thereof. 355 The locus classicus of the principles applicable to that statutory metamorphosis of use into an easement is to be found in the judgment of Farwell J in International Tea Stores Co v Hobbs [1903] 2 Ch 165.75 In that case, the defendant owned two adjoining parcels of residential land, one of which was leased to the plaintiff, which conducted its business therefrom and whose managers and servants resided therein. In order to facilitate its business, the plaintiff sought, and was granted, the defendant’s permission to cross across the defendant’s yard to access a back-entrance at the demised premises. That back-entrance had been constructed by the plaintiff’s predecessor-in-title and existed so as to allow the transport of heavy machinery in and out of the demised premises. At all relevant times, the defendant had prevented such access across his yard by means of a locked wooden gate. Subsequently, when the defendant sold the demised premises to the plaintiff, the plaintiff contended that included in the conveyance, by force of 71 (‘Peck’). 72 Ibid 318. 73 See also Nelson v Walker (1920) 10 CLR 560, 587 (Isaacs J). 74 See, eg, Horsfall v Braye (1908) 7 CLR 629, 649 (Griffith CJ). 75 (‘International Tea Stores’). -- 84 of 104 -- [2024] SASC 78 Kourakis CJ 81 s 6 of the Conveyancing Act 1881, was a right of thoroughfare across the defendant’s yard to the back-entrance. 356 In argument, Lord Coleridge KC and Mr Adams for the defendant contended that, as the plaintiff’s use of the land the proposed subject of the easement had been permissive only, and the evidence did not establish the extent to which that permission extended, the conveyance could not be taken as imposing an easement for the benefit of the plaintiff’s land. Those contentions were rejected by Farwell J. Having found that the path had been used for all purposes of the plaintiff’s business, both for years preceding and as at the date of the conveyance,76 Farwell J observed that: … Lord Coleridge says that such use was wholly permissive. Cases such as the present necessarily arise where the defendant is the owner of the property which he has conveyed to the plaintiff in the action, and is also the owner of other property adjoining which he does not convey, over which the right in question is claimed. If the plaintiff has himself been owner in occupation of both properties, the point taken by Lord Coleridge cannot arise, but the question is one of the mere fact, was there a roadway which was in fact used for the convenience of the particular tenement? … The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way has in fact been used, not under what title has it been used, although you must of course take into consideration all the circumstances of the case, as appears from the Birmingham Banking Co’s Case and Godwin v Schweppes, Limited.77 (Underlining added). 357 Put another way, so long as the plaintiff could, as it ultimately did, prove that it had in fact used the tract the proposed subject of the easement as a thoroughfare as at the date of conveyance, it did not matter whether its use was, as a matter of property law, a real proprietary interest, a licence, or a permissive use. That followed, in Farwell J’s view, from Blackburn J’s observation in Kay v Oxley (1875) LR 10 QB 360 that ‘in each case [it is] a question of fact to be determined … whether it has, or has not been enjoyed within the meaning of the statute’.78 Accordingly, Farwell J recognised and effectuated a statutory metamorphosis of the plaintiff’s former permissive use of the defendant’s land into an easement proper by force of s 6 of the Conveyancing Act 1881. That metamorphosed easement was granted in the same terms as that enjoyed in fact by the plaintiff.79 358 That the party moving for an easement under s 6 of the Conveyancing Act 1881 and its statutory analogues demonstrate the relevant user thereof as at the date of conveyance is one prerequisite to the Court’s recognition and effectuation of such an easement.80 The point was succinctly reiterated by Neville J in Lewis v 76 See ibid 170. 77 Ibid 171-2. 78 Kay v Oxley (1875) LR 10 QB 360, 368. 79 Ibid 173. 80 See also Graham v Philcox [1984] QB 747; Wall v Collins [2007] 3 WLR 459, 466-7 [24]-[26] (Carnwath LJ, Hooper and Mummery LJJ agreeing). -- 85 of 104 -- [2024] SASC 78 Kourakis CJ 82 Meredith [1913] 1 Ch 571.81 In that case, the plaintiff and defendant occupied parcels of land along the Arran river, from which each drew water for business purposes. When the plaintiff’s predecessor-in-title conveyed the plaintiff’s land thereto, there was no mention made about any extant water rights, notwithstanding the longstanding usage of the river’s waters by the plaintiff’s predecessors. Conversely, the conveyance to the defendant contained an express grant of the flow of water as used and enjoyed. Subsequently, the defendant installed metal pipes that had the effect of diverting water from the plaintiff’s land. On this matter, Neville J stated that:82 I come to the conclusion that the date of the grant the water was being and had for a long time been used for the tan pit and the mason’s yard. Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any right or easement by the occupiers, but International Tea Stores Co v Hobbs shews that “a right” permissive at the date of the grant may become a legal right upon the grant by force of the general words in s 6 of the Conveyancing Act, 1881. From this point of view the circumstances under which the quasi right was enjoyed become immaterial so long as it was actually enjoyed and was of a nature which could be granted, that is to say, a right known to law: see Burrows v Lang. In my judgment the diversion of the stream at the intake was not for a temporary purpose, although the water was used for a mill wheel, because I think the evidence precludes the inference that the watercourse was solely for the purpose of the mill. 359 The reference to the requirement that, in addition to extant and demonstrated user of the proposed servient tenement, the right or use sought to be metamorphosed into an easement be of a kind cognisable to the law of easements draws attention to the second prerequisite for the recognition and effectuation of an easement under s 6 of the Conveyancing Act 1881 and its statutory analogues. That was examined by Farwell J in Burrows v Lang [1901] 2 Ch 502,83 a decision referred to in both International Tea Stores and Lewis v Meredith. As Farwell J later explained at 171-2 of International Tea Stores, in relation to an argument raised by Lord Coleridge KC and Mr Adams to the effect that the precariousness of the plaintiff’s ability to traverse the defendant’s yard militated against the recognition of an easement: Lord Coleridge’s argument was founded upon a misconception of a judgment of mine in Burrows v Lang, where I was using the argument of precariousness to shew that the right which was desired to be enjoyed there was one which was unknown to the law—namely, to take water if and when the defendant chose to put water into a particular pond; such a right does not exist at law; but a right of way is well known to the law. The instance suggested by Lord Coleridge in his argument illustrates my meaning: he put the case of a man living in a house at his landlord’s park gate, and having leave to use and using the drive as a means of access to church or town, and to use and using the gardens and park for his enjoyment, and asked, Would such a man on buying the house with the rights given by s 6 of the Conveyancing Act acquire a right of way over the drive, and a right to use the gardens and park? My answer is “Yes” to the first, and “No” to the second question, 81 (‘Lewis’). 82 Ibid 579-80. 83 (‘Burrows’). -- 86 of 104 -- [2024] SASC 78 Kourakis CJ 83 because the first is a right the existence of which is known to the law, and the latter, being a mere jus spatiandi, is not so known.84 360 That point is further illustrated by the judgment of Cross J in Green v Ashco Horticulturist Ltd [1966] 1 WLR 889,85 being a decision on the statutory successor to s 6 of the Conveyancing Act 1881: namely, s 62 of the Law of Property Act 1925 (UK) (LPA UK). 361 In that case, the tenant of a greengrocer shop had been accustomed for approximately two decades to accessing the rear of his shop, for the purposes of parking and unloading vehicles and transporting goods, through an alleyway passing through a courtyard on the landlord’s land. The tenant’s access to the courtyard, and use of the landlord’s land, was always predicated on the landlord’s permission. In this regard, the evidence established that gates obstructed access to the courtyard after business hours, and that such gates were only opened upon request being made of the landlord’s employees. The evidence also established that the tenant’s use of the courtyard was conditional upon the landlord not requiring it for its own business purposes and it being not inconvenient to the landlord’s other tenants. In holding that, upon a re-grant of the lease, s 62 of the LPA UK did not convert the tenant’s user into a right of carriageway, Cross J held that:86 … as Farwell J pointed out in Hobbs’ case and Jenkins LJ repeated in Wright v Macadam, there are two sets of circumstances which may prevent section 62 from operating. In the first place, the section can only operate if the kind of user relied on could have been the subject of a grant of a legal right; and secondly, the section will not operate if at the time of the conveyance or lease in question it was, or should have been, apparent to the grantee or lessee that the enjoyment which he claims to have been converted into a right by the section was only temporary. I do not think that the second qualification on the general rule has any application here … But the first qualification on the general rule appears to me to place an insuperable obstacle in the plaintiff’s way. On the facts as I find them, the consent which Billings Ltd gave to Green to use the back entrance was always subject to the exigencies of their own business and the requirements of the tenants of their garages. They were prepared to let Green use the back entrance if and when it was not inconvenient to them and their tenants. If it was inconvenient they told him so; and for the time being he had to desist from using the back entrance. But a purported grant of a right of way for such periods as the servient owner may permit one to use it would not confer any legal right at all. (Underlining added). 362 To similar effect is the decision of the Court of Appeal in Phipps v Pears [1965] 1 QB 76.87 That case involved a claim by the appellant that, by virtue of s 62 of the LPA UK, his tenement enjoyed the benefit of an easement for weatherproofing that had been infringed by the respondent, who had demolished and reconstructed his neighbouring dwelling in such a way as to leave one of the 84 See also ibid 512: ‘A right unknown to the law cannot pass by implied grant or under the general words of the section’. 85 (‘Ashco Horticulturist’). 86 Ibid 897. 87 (‘Phipps’). -- 87 of 104 -- [2024] SASC 78 Kourakis CJ 84 walls of the appellant’s house exposed to the elements. Lord Denning MR, with whose reasons Pearson and Salmon LJJ agreed, stated that, as a matter of English law, there existed no such easement to have one’s house weatherproofed by a neighbour:88 The case so put, raises the question whether there is a right known to the law to be protected—by your neighbour’s house— from the weather. Is there an easement of protection? There are two kinds of easements known to the law: positive easements, such as a right of way, which give the owner of land a right himself to do something on or to his neighbour’s land: and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land. … a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution. Because the law has been very chary of creating any new negative easements. … if we were to stop a man pulling down his house, we would put a brake on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part … There is no such easement known the law as an easement to be protected from the weather. 363 Of greater relevance to the facts of the present case, however, is the decision of Luxmoore LJ, sitting as an additional Judge of the Chancery Division, in Le Strange v Pettefar (1939) 161 LT 300.89 The plaintiff in that case owned both numerous bungalows on a foreshore and the roadway giving access thereto. The defendant was the lessee of one of those bungalows. Prior to being granted his own lease, the defendant had occupied the demised bungalow as a sub-sublessee of a sublessee of the plaintiff. During the period of the sub-sublease, the defendant, along with the occupiers of neighbouring bungalows and members of the public, had parked his vehicle, without objection from the plaintiff, on the roadway. In 1937, when the relevant lease was granted, the plaintiff constructed a carpark at the end of the roadway and began to charge for the use thereof, departing from the former practice of permitting occupiers of the bungalows to park at sufferance. It was the defendant’s contention that, upon the grant of the lease in 1937, conveyed therewith was a liberty, privilege, right, or advantage for the parking of his motor vehicle. The case was, thus, not strictly concerned with easements, although his Lordship’s discussion bears also thereupon. In this regard, Luxmoore LJ observed that:90 The material words of the section appear to be “liberties, privileges, easements, rights and advantages.” First, what do these words mean? A ‘liberty’ must, I think, be something results from permission given to, or something enjoyed under sufferance by, a particular person or body of persons, as distinguished from something enjoyed by sufferance by al and sundry, while a ‘privilege’ describes some advantage to an individual or group of individuals, a right enjoyed by a few as opposed to a right enjoyed by all. ‘Easement’ and ‘right’ are obviously words not appropriate to universal enjoyment nor is the word 88 Ibid 82-3. 89 (‘Le Strange’). 90 Ibid 301. -- 88 of 104 -- [2024] SASC 78 Kourakis CJ 85 ‘advantage,’ for it necessarily connotes the enjoyment of something which is denied to others. It seems to me that something which by sufferance no one is prevented from doing or enjoying cannot properly be described by any of the words ‘liberty, privilege, easement, right or advantage’ for each connotes something which is the subject of individual or class enjoyment as opposed to general enjoyment. 364 Having found that the defendant’s practice of parking on the roadway, a practice common to members of the public as well, was explicable on the basis that the plaintiff had not objected to anyone so doing, rather than on the basis that it was a liberty, privilege, easement, or right appertaining or reputed to appertain to the defendant’s bungalow, Luxmoore LJ declared that the defendant was not entitled to use the roadway for parking. In the alternative, however, Luxmoore LJ observed that, in any event, the plaintiff’s withdrawal of permission to park had preceded the grant to the defendant of his lease, such that any permissive right was not enjoyed as at the date of conveyance.91 I interpolate here that Professor Edgeworth has commented that Luxmoore LJ’s decision that there is no known easement for public parking ‘was conceded rather than decided’.92 365 Properly understood, the gravamen of Luxmoore LJ’s decision in Le Strange is no more than a rearticulation of the requirement that an easement accommodate the dominant tenement, rather than the owner thereof personally, or members of the public unconnected with, and uninterested in, the dominant tenement.93 366 In addition to the requirements that there be extant and demonstrated user of the land the proposed subject of the easement as at the date of conveyance, and that that use fall within a category of rights the proper subject-matter of an easement, the recognition and effectuation of an easement under s 62 of the LPA UK also demands that the putative conveyor be capable of granting an easement in the terms sought. In Quicke v Chapman [1903] 1 Ch 659,94 decided in the context of s 6 of the Conveyancing Act 1881, the defendant was given the right by the Ecclesiastical Commissioners to enter upon certain land owned by them and to construct a number of residences thereon, with the intention that the Commissioners would thereafter lease each residence constructed to the defendant for a term of 99 years. The defendant and the Commissioners further agreed that such leases would be in a specified form, and that the Commissioners would have power to construct on adjoining land any buildings whatsoever, irrespective of whether those buildings affected or diminished light enjoyed by the defendant as lessee. The initial building agreement between the defendant and the Commissioners further specified that nothing therein was to operate as an actual demise of the land or to create a relation between the parties of lessee and lessor. 91 Ibid 302. 92 Brendan Edgeworth, Butt’s Land Law (Thomson Reuters, 7th ed, 2017) 548 [9.290] fn 212. 93 See, eg, Hill v Tupper (1863) 2 H & C 121; 159 ER 51, 53 (Pollock CB); Concord Municipal Council v Coles (1905) 3 CLR 96, 110 (Barton J). 94 (‘Quicke’). -- 89 of 104 -- [2024] SASC 78 Kourakis CJ 86 367 The plaintiffs bought one of the houses constructed by the defendant therefrom, and were transferred the emphyteutic lease thereof by the defendant. After the transfer, the defendant proceeded to build a residence on an adjoining plot that obstructed the plaintiffs’ access to light from their land. At the time of conveyance from the defendant to the plaintiffs, however, by reason of the defendant’s agreement with the Commissioners, the defendant was incapable of granting easements of light over then-vacant parcels of land. That incapability was treated by the Court of Appeal as dispositive of the plaintiffs’ claim for relief under s 6 of the Conveyancing Act 1881. The Master of the Rolls observed that:95 When you examine critically the defendant’s position in regard to this adjoining land, it seems to me obvious that he could not, if he would, have granted a right to the passage of light over that land. He himself had then at the most a kind of licence, coupled with an interest in the land, which could not ripen into ownership until he had actually completed the building upon the land. In other words, he could not acquire a sufficient interest in the adjoining land to enable him to grant any right to light over it until he had, under the terms of his bargain with the Commissioners, himself created an obstruction to the passage of light over it. 368 And Romer LJ stated that:96 Now, in order to see whether a grant of light over the adjacent land is to be implied, you must inquire into two things. You must first inquire into the title to that adjacent land, to see whether the grantor has such an estate or interest in it as will support an implied grant by him of the right to the access of light over it. That inquiry is purely as to the title, and has nothing to do with the question whether the grantee did or did not at the time of grant know of the state of the title. For, if he did not know at that time of the state of the title, still, if he claims a right over the adjacent land, he was bound to take such title as the grantor had. He is in no better position than he would have been if he had inquired into the title to the adjacent land. 369 It is, accordingly, ‘crucial to the operation of section 62 [and its statutory analogues] that the grantor must have been capable of making an express grant of the easement in question. The burden rests on those asserting that an easement has been granted to show that the person they say has granted them an easement was in a position to do so’.97 370 Next, and also of relevance for the present case, any user metamorphosed into an easement by s 62, and its statutory analogues, cannot extend beyond that actually enjoyed by the dominant tenement as at the date of conveyance. One illustration of this arose in Goldberg v Edwards [1950] Ch 247, a case in which the metamorphosis of a personal right exercised by lessees, inter alia, to ferry goods through the lessor’s land was held by Evershed MR, with whose judgment Cohen and Asquith LJJ agreed, into an easement was limited by the same constrictions as the personal right previously enjoyed thereby. In this regard, for instance, it is not possible for user in the nature of a right of footway during 95 Ibid 668. 96 Ibid 670-1. 97 Re St Clement’s, Leigh-on-Sea [1988] 1 WLR 720, 728 (Cameron QC, Ch). -- 90 of 104 -- [2024] SASC 78 Kourakis CJ 87 business hours to extend to a right of carriageway at all times following the aforementioned metamorphosis. Conclusion and an Alternative Claim to Rectification 371 It follows that, by reason of the factual findings at [274]-[278] and [341]- [342], the claims for pedestrian and vehicular easements over the Vehicle Access Link must fail as must the claimed parking easement. 372 In the event that my conclusion that, as at the date of conveyance, there was no user of the land the proposed subject of the easement in the nature of a right of carriageway, due to the interposition and continued situation of the bollards, and that any user of the relevant land in the nature of a right of footway was insufficiently connected with the USC Carpark land as the purported dominant tenement, is incorrect, the ambit of s 36 of the LPA bears mention. 373 That ambit does not extend beyond the conveyance to the underlying contract itself. Put another way, the statutory metamorphosis effectuated by s 36 of the LPA, as was the case with all of its statutory predecessors, does not effect a change to the parties’ contractual relationship pursuant to which the conveyance is carried out. That distinction, between the contract and the conveyance, was recognised by Chitty J in Peck. In that case, the Court was tasked with determining the proper form of a conveyance compelled by the applicant School Board, pursuant to its powers compulsorily to acquire the respondent’s land. 374 In line with the standard wording of its notice to treat served upon the respondent, the School Board announced its intention to acquire ‘all the lands and hereditaments … of which the particulars are contained in the schedule hereto, with the appurtenances and which said lands and hereditaments are particularly delineated and described’ in annexed plans. Included in those lands and hereditaments was a number of houses, the tenants of which had been accustomed to traversing an open tract of the respondent’s land for the purpose of accessing sheds to the rear of their properties. That traversal does not seem to have been by way of an easement proper, but was rather a permissive use for convenience enjoyed by each tenant without interference by the respondent. 375 The conveyance drafted by the School Board did not advert to any right of traversal over the tract of land. Nonetheless, having formed the view that s 6 of the Conveyancing Act 1881 would metamorphose the tenants’ pre-existing user into a right of way, the respondent insisted that the conveyance be delimited in the following terms: So nevertheless and provided that the grant and conveyance hereby made shall not be construed in any respect by way of creation or grant de novo, but so only as to pass by way of assignment the existing estates and interests of the parties thereto of the first and second parts respectively. 376 In essence, then, the question before the Court was whether the respondent was entitled, in light of s 6, to insist on such a delimitation of the conveyance. It -- 91 of 104 -- [2024] SASC 78 Kourakis CJ 88 was the School Board’s position, as advanced by Messrs Byrne QC and Whiteway arguendo, that the words prescribed by the statute as ordinarily implied into conveyances could not be excluded therefrom at the behest of one of the parties to the contract; 98 conversely, it was submitted by Messrs Farwell QC and Rogers for the respondent that ‘the Conveyancing Act was not intended to alter the rights of the parties to the contract; it was only meant to shorten conveyances’.99 In accepting the respondent’s submission on the ambit of s 6 of the English 1881 Act, Chitty J observed that:100 … the contention of the School Board is, that … the vendor is not entitled to insert any words which would exclude any of the general words in the 6th section. The argument for the School Board on this point, when properly understood, is an argument that this section in the Conveyancing Act has altered contracts, and the rights that flow from contracts. In my opinion … the 6th section has done nothing of the kind. The object of the 6th section, as is apparent for the language of the section itself, is to shew what general words are to be taken as included in a conveyance of land where the conveyance is otherwise silent. It is with the conveyance of land only that the Legislature is dealing, and not with the contract; and it is plain, to my mind, that neither party to a contract is entitled to have these general words included in the conveyance unless they are justified by the contract, and appropriate to the proved circumstances of the case. (Underlining added). 377 Expressed in different terms, whatever effect s 36 of the LPA, as was the case for its statutory forebears, might have on the rights and interests conveyed in the conveyance, there remains the question of what rights and interests the parties to the contract intended to convey.101 In the event that, by force of the statute, a right or interest is conveyed that was not in the contemplation of the parties, in their contractual arrangement, then, for instance, equity may grant rectification of the conveyance in order to bring its terms into line with the underlying contract.102 378 One example of this occurred in Clark v Barnes [1929] 2 Ch 368.103 In that case, the plaintiff agreed to sell two plots of land to the defendant that adjoined his own. The contracts for sale therefor made no mention of any right of way in favour of the defendant’s plot over the plaintiffs’ plots. Nonetheless, when it came time to submit a draft conveyance, the defendant’s solicitors attempted to include such a right of way, which the plaintiff’s solicitors struck out on the basis that no mention was made in the contracts of the grant of a right of way. As executed in October 1926, the conveyance made no express mention, and contained no express grant, of a right of way. Notwithstanding the plaintiff’s intimation that the defendant’s plots were not to enjoy the benefit of any right of way over his land, 98 Peck (n 71) 316. 99 Ibid 317. 100 Ibid 318. 101 Cf Re Walmsley and Shaw’s Contract [1917] 1 Ch 93, 98-9 (Eve J); White v Williams [1922] 1 KB 727, 739-40 (Younger LJ). 102 See, eg, Barkshire v Grubb (1881) 18 Ch D 616, 620-1 (Fry J); Horsfall v Braye (1908) 7 CLR 629, 641 (Griffith CJ). 103 (‘Clark’). -- 92 of 104 -- [2024] SASC 78 Kourakis CJ 89 the plaintiff later discovered that the defendant had been in the practice of traversing a tract of the plaintiff’s land to ferry farm carts onto the road. Before Luxmoore J, the question that fell to be determined was whether the defendant was so entitled to traverse the plaintiff’s land. 379 Were that inquiry delimited only to the operation of s 62 of the LPA UK, the answer thereto would have been affirmative. Although the conveyance was silent on whether a right of way in the terms reflecting the defendant’s user was granted, s 62 had operated to imply into the conveyance such a grant.104 The difficulty, though, for the defendant arose from the fact that, on the evidence before the Court, the parties had expressly agreed that no right of way was to be granted to the defendant. In finding that, on the basis of mutual mistake, the plaintiff was entitled to rectification of the conveyance so as to bring it into concordance with the underlying contracts for sale, Luxmoore J observed that:105 It is plain that if this point had been raised before the conveyance had been executed and the court had been asked to determine what the form of the conveyance would be, such a limitation would undoubtedly have been inserted, and on this ground the plaintiff is entitled to have the conveyance rectified. Further I am satisfied that it was not intended to grant any such right of way. This conclusion depends entirely on the view which I have taken of the evidence of what happened when the agreement was entered into… … I accept the plaintiff’s story that this question of the right of way was discussed, and that it was in fact understood between them and agreed that there should be no right of way over plot 634 and the strip in question. In those circumstances I think the plaintiff is entitled to succeed in his claim to have the conveyance rectified by the insertion of proper words to prevent the implication of a right of way under the Law of Property Act, 1925, s 62. I think the conveyance should be rectified by inserting therein immediately before the acknowledgement of the purchaser’s right to production of the deeds, the words which appear in para 2 of the prayer of the statement of claim: “provided that any implication of a right of way for the purchaser from the north-west corner of the property hereby conveyed over and across the adjoining land of the vendor (being the parcels, numbered 634 and 635 and the strip leading thence to the highway) is hereby expressly excluded.” 380 The statutory metamorphosis of user into easement accomplished by provisions such as s 36 of the LPA does not permit neglection of the actual agreement underpinning a conveyance reached by the parties. It was for this reason that further submissions were sought, following the conclusion of the hearing, from the parties on the question of whether, in the event that s 36 of the LPA were to apply to Torrens Title land, any metamorphosed user enjoyed by the applicant would be subject to a claim for rectification brought by the respondent. No such 104 Ibid 379-80. 105 Ibid 380-2. -- 93 of 104 -- [2024] SASC 78 Kourakis CJ 90 claim for rectification was expressly pleaded by the respondent.106 The effect of the lack of express pleadings to that effect need not be considered in circumstances where the conclusion reached is that, even if s 36 of the LPA were to apply to Torrens Title land in the instant case, it neither operated to convey a right of carriageway nor a right of footway for the reasons given above. It might be thought preferable, if not indispensable, however, for such a claim properly to be pleaded, not least of all so that the Court might be satisfied of the parties’ actual intention to which the document in question does not give effect.107 In any event, this judgment denying the Duke Group’s claims to the easement they suggested will bind their successors. 381 Nor does a concluded view need to be expressed on any potential disconformity between the conveyance of the USC Carpark land to the applicant and the underlying contract of sale, cl 3(a) of which, at least on a plain reading thereof, operates only to convey easements ‘referred to in the Certificate or other muniment of title for the Land’. That is because, for the reasons expressed above, s 36 of the LPA did not operate to include in the conveyance any right of way, whether in the nature of carriageway or footway, of the kind alleged by the applicant. Had it been necessary to decide, there would, on the one hand, be much to be said for the view that, in delimiting the easements conveyed to those referred in the attendant certificate for the land, the parties did not intend for the vendor to convey an easement of the kind sought by the applicant under s 36 of the LPA: expressio unius est exclusio alterius. On the other hand, however, in the absence of a pleaded case of rectification, and convincing evidence establishing a mutual mistake as to operation of s 36 of the LPA,108 it is questionable whether the respondent would be entitled to a rectification of the conveyance so as to bring it into concordance with the contract for sale. As stated, however, this question is irrelevant to the determination of this aspect of the applicant’s claim, in light of the conclusions reached above. Non-Derogation from Grant 382 The findings made above at [341]-[342] regarding the continued presence of the bollards on the USC Carpark land, and the persistent obstruction posed thereby to vehicular traversal of, the tract of land proposed to be burdened by an easement under s 36 of the LPA, as well as the conclusions drawn at [274]-[278] regarding the lack of propinquity between the traversal thereof by foot and the enjoyment of the USC Carpark land as such, also suffice to dispose of the applicant’s argument for the imposition of an easement pursuant to the principles articulated by the Court 106 In this regard, the respondent submitted that, notwithstanding the absence of pleadings directed towards rectification, ‘it may nevertheless be appropriate for the Court to rectify a document where, otherwise, the plaintiff would be getting something to which he would have no right whatever’, citing Butler v Mountview Estates Ltd [1951] 2 KB 563, 571 (Danckwerts J). 107 See, eg, Duke of Sutherland v Heathcote [1892] 1 Ch 475, 483 (Lindley LJ for the Court); Bush v National Australia Bank Ltd (1992) 35 NSWLR 390, 407 (Hodgson J); Public Trustee v Smith (2008) 1 ASTLR 488, 506 [71] (White J). 108 Cf Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 340 (Sheller JA, Mahoney AP and McLelland AJA agreeing). -- 94 of 104 -- [2024] SASC 78 Kourakis CJ 91 of Appeal in Chancery in Wheeldon v Burrows. In broad terms, easements of that nature are recognised by the law as being impliedly granted where to do otherwise would be to permit the grantor to derogate from the terms of his or her grant.109 There are, as Thesiger LJ stated, four elements underpinning the implied grant of such easements, each of which militates against the implied grant of an easement in this case. With the agreement of James and Baggallay LJJ, Thesiger LJ articulated those four elements as follows:110 … on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. 383 Dealing first with the claim for a right of carriageway over the USC Carpark land, the applicant faces two insuperable obstacles arising from the finding that the bollards remained in situ prior to, as at, and well past the date of grant. First, the interposition of the bollards would necessarily have had the effect of precluding any ‘continuous and apparent’ vehicular use of the tract the proposed subject of the easement at the date of grant.111 That feature of the proposed servient tenement would not ‘indicate the existence of the quasi-easement being continuously in existence’.112 Relatedly, the applicant has not established that the respondent, as at the date of grant, used that tract effectively as a carriageway of the kind now sought to be imposed. 384 Secondly, while there might have been user in the nature of a right of footway, notwithstanding the presence of the bollards, that was continuous and apparent, and subsistent at the time of grant, it cannot be said that such user was reasonably necessary for the enjoyment of the proposed dominant tenement as such.113 As Handley JA explained in Wilcox v Richardson (1997) 43 NSWLR 4, the criterion of reasonable necessity ‘means needed or required for the reasonable enjoyment of the property granted’;114 it entails something more than mere convenience.115 In a sense, such a requirement is an emanation of the general principle that an easement must accommodate the dominant tenement as such, rather than convenience, inter alia, members of the public in a way unrelated to the enjoyment of the dominant tenement. It is, once more, difficult to conceive how 109 See, eg, Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144, 175 (Lord Edmund-Davies); Wilcox v Richardson (1997) 43 NSWLR 4, 14 (Handley JA, Powell JA agreeing); McGrath v Campbell (2006) 68 NSWLR 229, 243 [69]-[70] (Tobias JA, Giles and Hodgson JJA agreeing). 110 Wheeldon v Burrows (n 1) 49. 111 Cf Borman v Griffith [1930] Ch 493, 499 (Maugham J); Ward v Kirkland [1966] 1 WLR 601, 617 (Ungoed-Thomas J). 112 McKeand v Thomas (2006) 12 BPR 23,593, 23,603 [69] (Campbell J). 113 Cf Jones v Pritchard [1908] 1 Ch 630, 638 (Parker J); Schwann v Cotton [1916] 2 Ch 459, 469 (Lord Cozens-Hardy MR); Wheeler v J J Saunders Ltd [1996] Ch 19, 31 (Peter Gibson LJ); Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633, [11] (Palmer J). 114 Wilcox v Richardson (1997) 43 NSWLR 4, 15. 115 Cf National Trustees Executors & Agency Co of Australasia Ltd v Long [1939] VLR 33, 40 (Mann CJ). -- 95 of 104 -- [2024] SASC 78 Kourakis CJ 92 pedestrian traversal of the USC Carpark land, which could have occurred for any great number of reasons, was directed toward enjoying the purported dominant tenement as such, or accommodated the dominant tenement in a reasonably necessary way. 385 Of course, the preceding discussion has proceeded on the basis that easements impliedly granted under the principles in Wheeldon continue to have efficacy with respect to land held under the Torrens system.116 However, for the reasons provided, even if such easements may continue to be recognised as burdening Torrens Title land, the elements thereof have not been established by the applicant. The applicant’s claim in this regard must be dismissed. Prescription and the Doctrine of Lost Modern Grant 386 Insofar as the Duke Group sought to establish its easements of traversal over and parking on the Council carpark, by way of the Vehicle Access Link, I note, but do not propose here to resolve, the inherent difficulties in applying the doctrine of lost modern grant, and in recognising easements by prescription, with respect to Torrens Title land.117 That is because, in any event, the critical factual premise that must underpin this claim — that there has been at least 20 years of continuous user of the Vehicle Access Link in the ways alleged — has not been made good. The continued interposition of the bollards amounts to an insuperable obstacle to the Duke Group’s claim. Moreover, the pedestrian user of the Vehicle Access Link by all members of the public for a variety of reasons does not demonstrate prescriptive use of the Vehicle Access Link as a footway. It follows that these claims must be dismissed as well. The Fire Safety Easement – a certificate issued under the Building Act 1971 (SA) does not create a private easement 387 Finally, I turn to the Duke Group’s claims to an easement over the Council carpark pursuant to which it and its invitees are entitled to use the Council carpark in the event of a fire or other emergency. I deal first with that claim in so far as it is founded on the Unley Council issuing a certificate of classification for the Deck carpark. 388 The necessary premises on which that claim rests are: 1. The construction of the deck carpark was subject to the Building Code of Australia 1990 (amendment 3) and in particular its provisions which required that in a building no point on a floor must be no more than 40 metres from an exit and that hose reels must be located no more than 4 116 Notwithstanding s 69 of the Real Property Act 1886 (SA), there would appear to be at least a maintainable argument that an implied easement of the kind recognised in Wheeldon would give rise to a personal action against the registered proprietor of the servient tenement, even if that personal action would not bind the registered proprietor’s successors-in-title. See, eg, Tarrant v Zandstra (1973) 1 BPR 9381, 9384-5 (Mahoney J). 117 See, eg, Williams v State Transit Authority (2004) 60 NSWLR 286, 298-301 (Mason P, Sheller and Tobias JJA agreeing). -- 96 of 104 -- [2024] SASC 78 Kourakis CJ 93 metres from a required exit. (that applies to fire hose reels required by the regulations). 2. Section 9 of the Building Act 1971 (SA) (Building Act) applied to the construction of the deck carpark and provided that the Council must approve building work if it is satisfied that the proposed building work complied with the Building Act including the Building Code of Australia. 3. Regulation 19 of the Building Regulations provided that an owner of a building must not use or permit the use of the building unless a certificate of classification has been issue. 4. Regulation 20 of the Building Regulations provided that a Council must not issue a certificate of classification in relation to a building structure unless a certificate of compliance with essential safety provisions under the Building Code had been submitted by the owner. 5. Regulation 21 of the Building Regulations provided that the Council must issue a certificate of classification on completion of the building work if satisfied that the work had been performed in accordance with the approval given by the Council. 6. The Council was the relevant authority in respect of the approval of the building work on the Deck carpark. Its proper officer Mr Harmer issued a certificate of classification on 24 May 1993. 7. The Deck carpark did not comply with the requirements of the Building Code of Australia in that there was a point in it from which there was a distance of over 40 metres to an exit, unless access was available to the Council carpark. 389 The Duke Group called a building surveyor, Mr Dodd, who gave evidence that the Deck carpark did not comply with the requirements of the Building Code of Australia. A building surveyor expert called by the Unley Council, Mr Olds, gave his opinion that the certificate of classification had been properly issued. 390 The Duke Group contends that by granting the certificate of classification the Council necessarily granted an easement over the Council carpark in so far as it was necessary to ensure that the Deck carpark was compliant with the Building Code of Australia, as so certified, in respect of the fire safety requirements. 391 The contentions of the Duke Group fail at a number of levels. 392 First, the issuing of a certificate of classification amounts to no more than a factum on which the lawful use of a building rests. In issuing, or withholding, a certificate of classification, the Unley Council exercises an administrative power for public purposes. However, the statutory power so exercised has no effect -- 97 of 104 -- [2024] SASC 78 Kourakis CJ 94 beyond that given to it by the Building Code of Australia. The practical legal effect of the issuance of a certificate of classification is that the building owner may use the building without committing an offence against the Building Act. The scope for collateral challenges to the issues, or withholding of a certificate, need not be considered here. 393 However, the statutory power cannot extend to creating a proprietary right to the extent necessary to ensure that the certificate of classification was properly issued. Indeed, an easement granted generally in order to ensure that the certificate of classification was properly issued would necessarily be bad for uncertainty. 394 The difficulty with the contentions of the Duke Group in this respect are exposed if one considers a certificate of classification given by council where the servient tenement for the purpose of an easement necessary to make the certificate of classification effective was not owned by council. Plainly, the granting of a certificate by council could not create an easement over land owned by someone else. If that were the legal effect of the issuance of a certificate of classification, the servient tenement might be made subject to an easement even though the registered proprietor, and others with interest in the property, had no knowledge of the process leading to the certificate of classification or any basis on which it was issued. 395 The circumstance that Mr Harmer, who was exercising the statutory power, was also a Council employee cannot extend the statutory reach of the power. 396 Secondly, the Duke Group put its case on the basis, that to make good its claim, it had to be accepted that Mr Harmer necessarily proceeded on the assumption that the Deck carpark enjoyed an easement allowing persons and vehicles to pass over the Council carpark. However, the validity or invalidity of the issue of a certificate of classification cannot depend on the subjective reasons of the person issuing the certificate. If it did so, the nature and extent of the easement would also depend on that state of mind. 397 Thirdly, there is no documentation either in the approved plans, or on the conditions of approval, or otherwise of a right to access to the Council carpark for that purpose in the time up to and including the issue of the certificate of classification. It was largely common ground that a building surveyor would not rely on access to the property of an unrelated party in the absence of a legally binding arrangement. I accept that Mr Harmer was not relying on any such access when he issued the certificate. 398 It is necessary at this juncture to deal with a line of cross-examination which suggested a sinister reason for the absence of any documentation of a right of access for safety reasons. Mr Harmer was cross-examined to the effect that he had consciously failed to record arrangements for users of the Deck carpark to access the Council carpark for building approval purposes in order to protect the Unley Council’s commercial interests. As can be judged on the evidence adduced before -- 98 of 104 -- [2024] SASC 78 Kourakis CJ 95 me, that allegation of maladministration in the ‘broadest sense of that word’ was little more than speculation. 399 Mr Harmer was taken to a letter to the Unley Council from its solicitor, Mr Davies. Mr Harmer was first asked about enquiries he made of the solicitor concerning the passage of stormwater: Q And you proposing that some form of easements be considered for their benefit but at the same time you didn't want to prejudice the council in [its] ability to sell the council car park land. Do you agree that's what you wrote. A I think the letter generally expresses a concern over the granting of easements on the adjoining allotment. Q But you were looking for some form of guarantee or protection to Woolworths weren't you. A I would take this as I have a building document that shows that storm water's going to be disposed across adjoining land and I'm endeavouring to work out whether I should agree to that or not and I think this expresses a lot of doubt that I shouldn't. Q And you were seeking advice from Mr Davies weren't you. A Indeed. Q And you were prepared to align what advice he gave you weren't you. A Any legal advice you take on board but you don't necessarily act on. Q But Mr Davies was a regular advisor to the Unley Council on such matters at this time. A Yes. Q And if you would turn forward please to p.1026 this is a letter from Mr Davies at Baker O'Loughlin of 30th July. Now he's referring to your letter of 13 July that I've just taken you to, agreed. A Yes. Q And while the letters addressed to the Town Clerk it's marked for your attention. … Q You don't doubt you received this letter do you. A No. Q Do you have any memory of how you interpreted this letter. A No. … Q You don't have any memory of how you interpreted this letter. -- 99 of 104 -- [2024] SASC 78 Kourakis CJ 96 A I don't have a memory of the letter. Q Well, I want to try and prompt your memory. Can I suggest to you that you took this letter to mean that Woolworths could be allowed to have access to the council car park land for the storm water without any need for any formal documentation. A No. Q You say you don't remember interpreting that way or you don't interpret it that way now. A I don't recall the letter and in quickly reading the letter I don't agree with your proposition. Q I see, so you do have a view about what the letter says do you as you read it now. A I quickly read it. Q What's your view about what it says. … 400 At my instigation, Mr Whitington explained the purpose of his questioning in the absence of Mr Harmer as follows: MR WHITINGTON: We say this correspondence indicates that Mr Harmer was of the mind that he may need a formal documentation of some right for Woolworths to access the council car park land for water but that he wanted to be careful about prejudicing the council's right in relation to a future sale and prejudicing a future sale if something was installed. The advice comes back from Mr Davies that you don't need to do it and in fact you will be prejudiced if you have granted an easement which may [a]ffect the value of the land. In other words an easement would be detrimental to the council. Subsequently he doesn't pursue [an] easement. Now, we say the same thing. My learned friend wants to make a case in relation to the fire escape easement or right that there is no way that this man would have assumed or allowed for an exit from the VAL over the council car park land without documenting it. We're saying here he has clear advice that he would be better off not to document a drainage or stormwater easement and we would be submitting your Honour in due course that based upon this advice he saw no need to document the fire escape right if you like, I'll call it a right. He saw no need to document or indeed he thought it better not to document it. Now, he may not be able to remember any of that and - HIS HONOUR: I'd be surprised if he didn't remember something like that but he might. If it happened. If he was thinking that but he might not remember it. 401 I allowed Mr Whitington to put the proposition to Mr Harmer in response to which the following evidence was given: Q I put it to you this way. You have got the letter from Mr Davies in front of you, have you. A I do. -- 100 of 104 -- [2024] SASC 78 Kourakis CJ 97 Q It's the case, is it not, and if you can't remember say so, but from the time you receive[d] this advice you had it in your head that it would be better off not documenting rights available to the occupier of the Woolworths deck car park over the council car park land, whatever those rights might be, and particularly in relation to fire escape. HIS HONOUR: Yes, I think it's better if it's not rolled up. XXN Q You would be better off not documenting those rights - HIS HONOUR: Just stop for a minute. HIS HONOUR Q After you received this letter did you form the view that you would be better off not documenting, and in particular not having an easement allowing Woolworths or Rossiters to use the stormwater pipe. A I don't have a specific recollection, but no, I don't believe that would be the case. XXN Q So does that mean that if you don't believe that's the case, you would have or should have documented the stormwater easement. A It's not for me to document a stormwater easement. Q You should have or would have recommended the documentation of a stormwater easement. A No, I needed to be satisfied that the stormwater was being disposed to an appropriate location. Stormwater easements were nothing to do with me. … Q Can I suggest to you that following the letter from Mr Davies you took no steps to document in any way at all rights which might apply to Woolworths or Rossiters in relation to discharge of stormwater. A It's not my role to do rights and easements over a private allotment. I don't - I'm unclear on your question, that is not a role that I would have taken. HIS HONOUR Q Your role was to approve or not approve the building work. A Yes. 402 It is clear that Mr Harmer was seeking advice, in respect of, and only in respect of, his statutory duty as to the issue of certificates of classification. He was seeking advice on what arrangements on the ground he could have regard to. 403 The cross-examination continued: -- 101 of 104 -- [2024] SASC 78 Kourakis CJ 98 Q I want to suggest to you and if you can't remember, say so, that in 1992 and 1993 at the time you were confirming approval of what had been built, you had it in your mind that it was not appropriate to record in a formal way any right of fire escape exit across council car park land. A Is that a question? Q Yes. … Q Now in that context I'm suggesting to you that you did assume that was a fire escape exit, that's the first point. You understand that's the assumption I'm putting to you. A I understand that's the assumption you are putting to me, yes. Q And I think you disagree with that. A I do disagree with that. Q But of course your disagreement in your second affidavit is not based upon a memory, but it's based upon an assertion of a memory of practice, isn't it. A Yes. Q What I'm suggesting to you is this, are you capable of assuming for a moment that your interpretation of your practice is wrong and that you did treat that as a fire safety exit. A I don't believe that to be the case. Q So, you can't assume that for the sake of argument. A I don't believe that to be the case. Q In any event, I'll come back to my prime proposition and that is that in 1992/1993 following the advice from Mr Davies that I've taken you to, you did not see the need to document rights, at least in relation to water or fire, should they exist, over the council car park land. A Mr Davies[’] letter only relates to water and it's not something that I would have been a part of as a building surveyor. … HIS HONOUR Q What I think is being put to you is that you approved the building in respect of fire exits and fire hoses treating the vehicular access between the deck car park and the council car park to the north, where one of the dished inverts was, as an exit. That you approved the fire exits and hoses an exit to the north but didn't record it any way because you didn't want to adversely affect the value of the council's property at lot 53. -- 102 of 104 -- [2024] SASC 78 Kourakis CJ 99 A Your Honour, I don't believe that to be the case and would never act in that way. That is not something that I even contemplate doing. 404 I have no hesitation in accepting Mr Harmer’s denial that he issued the certificate of classification without documenting agreed access for that purpose on which he relied so as not to adversely affect the value of the Council’s land. It is a serious allegation that Mr Harmer, a council employee, put his employer’s commercial interests ahead of public safety and his statutory responsibility. Moreover, there is simply no evidence of the grant of any rights of passage or use to the users of the Deck carpark for that purpose so soon after the Deck carpark was opened. 405 Fourthly, there has never been any signage in the Deck carpark showing access to the Council carpark as a fire escape. 406 Fifthly, the plans show access to the Council carpark to be obstructed by landscaping. Moreover, the evidence shows that when the certificate of classification was issued, the Vehicle Access Link was obstructed by the chain. True it is that Mr Harmer may have inspected it before the chain was put in place. However, it does not follow that he was not aware of the arrangements made in response to Mr Ports’ complaint. Mr Harmer was the Unley Council’s building surveyor and, as such, reported to Mr Sutcliffe who made the arrangement to install the bollards and chain. Mr Harmer could not recollect the chain and bollards construction. He recalled only the installation of the bollards across the Vehicle Access Link. I am, however, unable to find that Mr Harmer proceeded on the basis that the Vehicle Access Link was open when he issued the certificate of classification. 407 Sixthly, on the evidence of Mr Olds, the view could reasonably be taken that there was compliance or at least substantial compliance, without access to the Council carpark. The additional distance beyond the prescribed 40 metres of 700 mm was minimal. The placement of an additional fire hose reel could not make the conditions of approval burdensome. 408 The Duke Group’s reliance on a common intention to grant a fire escape easement fails for a lack of any evidential foundation. There is no reason to find that the parties did turn or must be taken to have found their mind to such a thing. Nor is there any basis to imply the grant of an easement in the Sale Agreement. To the contrary, its terms preclude any such implication. Finally, the Duke Group relies on the long availability of user of the Vehicle Access Link in the event of an emergency is misplaced. The ‘availability’ is not at all related to the need for safe passage. Nor is it a privilege previously enjoyed by users of the Deck carpark. It is a consequence of the Unley Council’s permission, indeed implied and express invitation to the public generally to use the Council carpark for whatever purpose they choose. -- 103 of 104 -- [2024] SASC 78 Kourakis CJ 100 Conclusion 409 It follows that the Duke Group’s claims must be dismissed in their entirety. I will hear the parties on the costs consequences following these reasons. -- 104 of 104 --