Body Corporate for Vision Centre Gold Coast Community Title Scheme 29190 v Nerang Qld Pty Ltd [2024] QSC 152

SUPREME COURT OF QUEENSLAND CITATION: Body Corporate for Vision Centre Gold Coast Community Title Scheme 29190 v Nerang Qld Pty Ltd [2024] QSC 152 PARTIES: BODY CORPORATE FOR VISION CENTRE GOLD COAST COMMUNITY TITLE SCHEME 29190 (first applicant) and DR ROGER THOMAS WELCH (second applicant) v NERANG QLD PTY LTD ACN 667 994 569 (respondent) FILE NO/S: BS 1203/24 DIVISION: Trial PROCEEDING: Originating Application, Cross Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 July 2024 DELIVERED AT: Brisbane HEARING DATE: 13 June 2024; 14 June 2024; 15 July 2024 JUDGE: Freeburn J ORDERS: 1. The applicants’ application filed on 1 February 2024 is dismissed. 2. The interlocutory injunction made by order number 2 of the orders made by Kelly J on 7 February 2024 is discharged. 3. The respondent’s cross-application filed on 6 March 2024 is dismissed. 4. I will hear the parties on costs. CATCHWORDS: REAL PROPERTY – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – where the applicants, Vision Centre, hold a right of way easement to pass through the land of the respondent, Nerang – where Vision Centre would pass through Nerang’s land with a constructed driveway – where both parties were mistaken on the location of the easement, and the driveway was in fact adjacent to it – where vegetation and other impediments to a right of way had formed on the easement – where Nerang erected temporary fences at each end of the driveway that could only be opened by combination locks – whether Nerang have obstructed the applicants’ right of way – whether the court should order a -- 1 of 22 -- 2 mandatory injunction for Nerang to remove the trees on the easement – whether the court should order a prohibitory injunction for Nerang to not create any obstructions REAL PROPERTY – PARTICULAR EASEMENTS AND RIGHTS – SUPPORT – where there is an easement for support over a small portion of Nerang’s land – where a portion of a utilities building is situated on the easement – whether the portion of the utilities building is an encroachment – whether the court should make orders pursuant to s 185 Property Law Act 1974 Property Law Act 1974 s 184, s 185 Buckley v Timbury [2013] NSWSC 1009, cited Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511; [2012] QCA 9, cited Panfili v Lawless [2010] NSWSC 79, cited Staley v Pivot Group Pty Ltd (No 6) [2010] WASC 228, applied Tucker v News Media Ownership Ltd [1986] 3 NZLR 121, cited Weigall v Toman [2008] 1 Qd R 192; [2006] QSC 349, applied COUNSEL: V Brennan for the applicants A Skoien for the respondent SOLICITORS: Sarah Davies Legal Pty Ltd for the applicants Kekatos Lawyers for the respondent REASONS [1] For many years Vision Centre has operated from a three-storey building, with underground parking, on Nerang Street at Southport.1 For all of that time Vision Centre staff, patients and visitors have used, or at least had access to a driveway to access Cougal Street at the rear. All concerned have assumed that the driveway was located on and protected by three registered easements through neighbouring blocks adjacent to and at the rear of the Vision Centre block. [2] In fact, the three registered easements have a dog leg bend in them, and the driveway has been constructed straight through the neighbouring blocks at the back. The easements start with Easement D which runs from Nerang Street north along the western boundary of the Vision Centre block. At about the northern boundary of Vision Centre, there are two relatively small easements, Easements D and T. Easement T is at an angle and leads to Easement P.2 Easement P again tracks north and meets the footpath at Cougal Street. The result of the dog leg in the registered easements is that the section of the driveway nearest Cougal Street is not protected 1 The location of Vision Centre is in central Southport. Nerang Street is busy and is now on the route for the Gold Coast light rail. 2 There is a fourth easement shown on some of the plans, Easement C, which is between Easement D and Easement T, but neither party attached any significance to that easement, and it does not matter for present purposes. -- 2 of 22 -- 3 by the easements and instead runs roughly parallel to Easement P. That error in the placement of the driveway was not realised until March 2024. [3] In the meantime, a dispute had been brewing between Vision Centre and the new owners of the neighbouring blocks at the rear – Nerang Qld Pty Ltd.3 On about the weekend of 26-28 January 2024, Nerang blocked access along the driveway by erecting temporary fencing4 at two points. The first blockage was at the rear of the Vision Centre property, and at the northern end of Easement D. For convenience I will refer to this as the southern gate. The second blockage was at the driveway’s Cougal Street entry/exit. For convenience, I will refer to this as the northern gate. [4] In response to those two blockages, Vision Centre and its founder, Dr Welch, brought this proceeding. On 7 February 2024, Vision Centre and Dr Welch obtained an interlocutory injunction from Kelly J requiring Nerang to remove the temporary fences and for Nerang to not create any fresh obstruction on the easements. [5] Because of the error in the placement of the driveway, there was an inherent problem with the terms of the injunction obtained from Kelly J. The order granting the injunction required Nerang to remove: (a) the obstructions as depicted in a photograph attached to the order which showed the southern gate in the foreground and the northern gate in the background; and (b) the obstructions on the three easements, including Easement P; Those two things were different. The photograph depicted the southern gate, which was on the easements, and the northern gate, which was not on the easements. [6] Thus, the problem with the order – which nobody realised at the time – was that the driveway was only partly on the easements. And so, if Nerang was to comply with the order in so far as it referred to the obstructions depicted in the photograph, it was required to remove both temporary fences – because both the southern and northern gates are shown in that photograph. On the other hand, the requirement in the order that Nerang remove the obstructions ‘on the easements’ would only require Nerang to remove the southern gate. That is because the northern gate was about 10 metres or so from the actual location of Easement P.5 [7] As it turned out, when Nerang discovered the error, it reinstated the two obstructions. Given the ambiguity in the interlocutory orders, and the fact that the trial had been set down, it was a bold move.6 Mr Palasty, the director of Nerang, said that the fencing comprised gates which were locked with a combination lock. He says he supplied the four digit code to Vision Centre’s lawyers. 3 There had been a previous dispute about locked gates in late 2023 – at roughly the time Nerang acquired the property. 4 The temporary fencing is variously described as fencing and as gates. The type of fencing is shown in the photograph attached to the order made by Kelly J on 7 February 2024 (discussed below). 5 The injunction restraining Nerang from creating any obstruction in order 2 required that Nerang not create “any obstruction on the Easements (referred to in paragraph 1 above) which prevents or restricts the free and uninterrupted right-of-way created by the Easements.” Probably that part of the injunction orders is confined to the Easements. 6 Nerang maintained that the obstruction at the rear of the Vision Centre property was erected by mistake. -- 3 of 22 -- 4 [8] In any event, both of the fencing or gate obstructions were removed by agreement pending the trial. [9] On 6 March 2024 Nerang bought its own cross-application against Vision Centre and Dr Welch. That application sought extinguishment or modification of the easements so that the easement was straightened to conform to the present driveway and orders under ss 184 and 185 Property Law Act 1974 certain encroachments constituted by a utilities building on Easement M be removed or that compensation be paid. [10] And so, two broad issues are raised. The first is whether the court should enjoin Nerang from obstructing the driveway or Easement P. The second is whether, on Nerang’s cross-application, the court should order that Vision Centre remove parts of a utilities building at the rear of the Vision Centre’s property which Nerang alleges constitutes an encroachment on Nerang’s land. Alternatively, Nerang seeks compensation for the encroachment. Issue 1: The Right of Way Easement [11] The terms of Easement P are: 1. The Grantors will not at any times during the currency of the right-of-way hereby granted obstruct the right-of-way or do anything which will or may at any time or from time to time prevent or restrict the Grantee and the other persons for the time being entitled to use the said right-of-way going to or returning from the said dominant tenement with or without vehicles aforesaid. 2. Neither the Grantors nor the Grantee nor their tenants, agents, employees, workmen, visitors or licensees shall permit or allow any vehicles of any description or any animal or any obstruction of any kind to stand or remain in or upon the said right-of-way so as to delay or interfere with the traffic thereon. 3. The Grantors will permit the Grantee free and uninterrupted right-of-way over the servient tenement. 4. It is hereby agreed that the proprietors from time to time of Lots 20, 21, 22 on SP 128317 and Lot 16 on SP 113766 shall each be responsible to pay one quarter of all costs and expenses of and incidental to repairing, keeping repair [sic] and maintaining the surface of the carriage way. … 7. It is expressly agreed between the Grantors and the Grantee that the benefit and burden of the covenants, agreements and stipulations contained in this Easement shall pass with and bind the Servient Tenement and Dominant Tenement respectively so as to exist for the benefit of and bind all persons deriving title thereto from or under the Grantors and the Grantee respectively and that on ceasing to be the registered proprietors of Servient Tenement or Dominant Tenement respectively the Grantors and/or the Grantee as the case may be shall be under no further liability for any event or occurrence thereafter or be entitled to the benefits hereof thereafter.7 [emphasis added] [12] In broad terms therefore, Nerang is not entitled to obstruct the right of way. They must permit and allow Vision Centre, or other persons, to have a free and uninterrupted right-of-way along the easement. But, by its terms, Easement P does 7 Some sections have been omitted. -- 4 of 22 -- 5 not oblige Nerang to build or construct the right of way. Vision Centre, as the owner of the dominant tenement, has the right to make a road or driveway at its own expense.8 Nerang’s only obligation is to contribute to the repair and maintenance of the surface of the carriageway.9 [13] The terms of Easement P preclude Nerang from obstructing the right of way by positive action. Nerang’s construction of a temporary fence plainly falls within that concept because the easement requires Nerang to afford Vision Centre “free and uninterrupted right of way” over Easement P. The terms of Easement P also prohibit Nerang from permitting or allowing obstructions to the right of way by inaction, for example by permitting vehicles, animals or any obstruction of any kind to stand or remain on the right of way so as to delay or interfere with the traffic on the right of way. The Relief sought by Vision Centre [14] Vision Centre now wishes to enforce its right of way to and from Cougal Street. It seeks a permanent injunction.10 However, as explained, the problem is that Vision Centre has no legal right to gain access to or from their block via the existing driveway to or from Cougal Street. That part of the driveway in not even partly on Easement P. Instead, the existing driveway runs parallel to Easement P. [15] Easement P has never been used for access. And, there are a number of practical impediments to using Easement P as access to and from Cougal Street. The impediments referred to in the evidence were as follows: (a) the need to remove some trees; (b) the topography, including a culvert; (c) the requirement to construct the new section of driveway along Easement P;11 (d) the need to remove a small tree on the footpath – presumably on council controlled land; (e) the need to construct a pavement ‘cross-over’ to enable trafficable access onto and from Cougal Street; (f) the necessity for the council to move some marked on-street parking in Cougal Street; and (g) the likely prerequisite that all of that will require council approval.12 [16] Those seven impediments were not substantially dealt with in the evidence. The council is not a party to the proceeding and its attitude to the use of Easement P is not known. No steps have been taken by Vision Centre to establish the new section of 8 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Newcomen v Coulson (1877) 5 Ch D 133. 9 See clause 4 of Easement P which allocates 25% of that expense to each of the owners of the four blocks. 10 As will later be discussed, the permanent injunction sought has both a mandatory and prohibitory aspect. 11 Presumably the new section of driveway will need to be surveyed, designed, costed and constructed. 12 Another of the impediments, a section of the boundary fence adjacent to Easement P, had been removed by the time of the trial. Note that even the removal of the trees, which are mature trees, may require council approval. -- 5 of 22 -- 6 driveway. There is no proposal or even a rough plan of how the right of way might be established. Counsel for Vision Centre pointed out that there is no evidence that the steps necessary to establish a new driveway on Easement P cannot be taken, and there is no evidence that council approval of the cross-over is doomed to fail. That is true. But it reflects a weird stand-off. There is no evidence that Vision Centre intends to take the steps necessary, let alone the prospects of the project. The Obvious Solution [17] There is an obvious solution.13 Easement P could be re-positioned so that it aligns with the existing driveway and, by that means, provide staff, patients and visitors to Vision Centre with access to and from Cougal Street. That is the means of access that has been used for many years. It is difficult to imagine that either party, or the council, could have any objection to Easement P being adjusted so that it conforms to the driveway that has actually been used for many years. In fact, a development proposal for the Nerang site shows a straight accessway that roughly conforms to the footprint of the existing driveway. Dr Welch explicitly says that Vision Centre is content to continue with the ‘convention’ of using the driveway.14 And Nerang had previously sought modification of the easement as part of its cross-application. [18] When this obvious solution was raised with counsel for the parties, there was (rare) agreement between them that the court did not have power to alter the easement. I disagree. The court holds the power to ‘Modify or Extinguish Easements’ under section 181 Property Law Act 1974.15 However, neither party sought such an order correcting the easement so that it conformed to the easements. As explained, Nerang’s cross-application did originally seek either extinguishment or modification of the existing easements, but Nerang did not proceed with that part of its claim. [19] That being said, neither party was interested in what I have described as the obvious solution. This means that, as in Buckley v Timbury,16 the court must decide the case based on the rather limited basis on which the case was fought. More creative and mutually satisfactory solutions17 for the parties may have been possible by agreement or by either party prosecuting the obvious solution. As in Buckley v Timbury the parties here were bitterly divided. Both Dr Welch and Mr Palasty, the principals for each party, gave evidence. The prospect that they might ever agree looked rather bleak. Vision Centre’s Application for a Permanent Injunction [20] The permanent injunction sought by Vision Centre has undergone some modifications. The Originating Application filed on 1 February 2024 sought to enjoin Nerang from obstructing the right-of-way created by the easements and to restrain 13 During the course of submissions counsel for Nerang described it as ‘the sensible solution’. 14 See paragraph 20 of Dr Welch’s second affidavit. 15 The court has a discretion under s 181 Property Law Act 1974 to make an order extinguishing or modifying an easement: Wallace, Weir and McCrimmon, Real Property Law in Queensland (Law Book Co, 5th ed, 2020) at pg 828. 16 [2013] NSWSC 1009 at [5], [6]. 17 As might be expected, a traffic engineer, Mr Trevilyan, says that the straight driveway would have significant advantages over the ‘dog-leg’ version. There are slight differences between the area covered by the easements, and the area utilised by the existing driveway, and a new driveway proposed by Nerang. -- 6 of 22 -- 7 Nerang from preventing or restricting Vision Centre and others from using the right- of-way. By the time of the second day of the hearing Vision Centre sought the following orders: Without the Applicants’ prior written consent, the Respondent [Nerang] and its servants and agents be restrained from obstructing the right-of-way created by the Easements D, T and P more properly described in the schedule to this Order by allowing any trees to stand or remain upon the said Easements or do anything which will or may at any time or from time to time prevent or restrict the Applicants’ or other persons for the time being entitled to use the said right-of-way created by the Easements going to or returning from the former Lot 21 on Survey Plan 128317 (now Common Property and Lots 1 to 10 on Survey Plan 139092).18 [21] Counsel for Vison Centre further modified the orders sought in his written submissions filed on the third day of the hearing so that the orders sought were as follows: 1. The Respondent is to remove or cause to be removed the mature trees standing within Easement P (being Easement No. 704421675 and more properly described as such in the Schedule to this Order) being trees more particularly shown in photographs 4 and 5 in Exhibit WG-10 to the affidavit of Mr Geradts and Exhibit 5. 2. Without the Applicants’ prior written consent, the Respondent and its servant and agents be restrained from obstructing the right-of-way created by the Easements D, T and P more properly described in the schedule to this Order by installing constructing or otherwise placing up the Easements any gates or fences. 3. The parties have liberty to apply on 3 days’ notice. Schedule to the Order The Easements referred to in Order 1 of these orders are relevantly the registered easements over Lot 2 Survey Plan 318622 Title Reference 51241448 burdening the land to the former Lot 21 on Survey Plan 128317 being more particularly described as: a. Easement D, being Easement No. 704421613; b. Easement P, being Easement No. 704421675; and c. Easement T, being Easement No. 704421692.19 [22] And then, to accommodate a further problem, in his oral submissions on the third day of the hearing, counsel for submitted that the order he proposed ought to be preceded by the words: “subject to the applicants undertaking to create a driveway on easement P within one year…”. [23] For present purposes though, the relief claimed has narrowed to a restraint on obstructing the right-of-way created by the easements by: (a) a mandatory injunction requiring Nerang to remove or cause to be removed the mature trees standing on Easement P and shown in photographs 4 and 5 in exhibit WG-10 to the affidavit of Mr Geradts and exhibit 5; 18 This relief was sought in a draft order that was supplied to the court on the second day of the hearing. 19 Some of the modifications were because I had expressed concern about the vagueness created by the double-negative in the previous version of the injunction. -- 7 of 22 -- 8 (b) a prohibitory injunction restraining Nerang from obstructing the right of way by installing, constructing or otherwise placing gates or fences on the easements. The Mandatory Injunction: Wielding the Axe? [24] The trees on and near Easement P have been living a peaceful and unthreatened existence on what is now Nerang’s property for many years. Only on the second day of the hearing did they become a target. How many of them are under threat is not clear. The two photographs referred to in Mr Geradts’ affidavit show a large clump of trees, but it is unclear which trees are to be condemned. Exhibit 3 is an aerial shot which includes the easements overlayed onto the photograph. That photograph shows Easement P running through the clump of trees with greenery either side of the marked easement. The width of the clump of trees looks to be almost three times the width of the easement but that includes foliage. And so, it is not clear whether all of the trees are to be destroyed. Nor is it clear whether it would be possible for some trees to overhang the easement without affecting, for example, the right of way for service vehicles or garbage trucks.20 [25] Possibly all of the trees would need to be removed. Possibly some would survive. It is difficult to know in the absence of a survey and a design for any proposed driveway. [26] This practical difficulty is a significant one. The order, a mandatory injunction, would require Nerang to wield its axe but with the risk that, if it spares any of the trees, or omits to remove any branches or roots affecting the easement, it will be in breach of a court order. In Panfili v Lawless,21 a case where the court ordered that vegetation be removed, the court order expressly identified the trees to be removed. That was done in this way: The defendants and each of them, at their expense, promptly do all things necessary to be done on their part: (a) to remove or cause to be removed: (i) the three trees at the eastern extremity of the right of carriageway on lot C in DP 416799 and associated garden bed and retaining walls; and (ii) the most easterly six trees of the plantings at the eastern end of the Gladstone Avenue frontage to the west of the current gap in such plantings, and the associated garden bed and retaining wall at the position of those trees… [emphasis added] [27] Here, where the parties are bitterly opposed, there are risks in the court making an order that required one party to remove trees without precisely identifying those trees. There are also difficulties in specifying that a party remove the mature trees that stand within Easement P and are shown in three different photographs.22 There may be differences in those four reference points, or even a debate about what trees are shown or intended. 20 Some of the trees may have trunks located outside of the boundaries of the easement may still impact the right of way. Possibly the same may apply to tree roots – depending on the type of driveway to be constructed. 21 [2010] NSWSC 79. 22 This was the problem with the order that Vision Centre obtained from Kelly J. -- 8 of 22 -- 9 [28] There is another problem with the relief sought by Vison Centre. Why is it that it is Nerang that should be required to remove the trees, presumably at its own expense? Easement P does not oblige Nerang to build or construct the right of way. Vision Centre, as the dominant tenement, has the right to make a road or driveway at its own expense.23 And it is up to Vision Centre to maintain the right of way. Nerang’s only obligation as the servient tenement is to contribute to the repair and maintenance of the surface of the carriageway.24 [29] It is true that Nerang’s predecessors in title have permitted this small forest of trees to grow on their land, at least partly in area covered by Easement P. However, they have done so in circumstances where another parallel part of their land has been used for access. The trees grew because the driveway that was used was placed somewhere else. Only clause 2 of Easement P proscribes Nerang or its predecessors from standing by and permitting an obstruction. Clause 2 is in these terms: Neither the Grantors nor the Grantee25 nor their tenants, agents, employees, workmen, visitors or licensees shall permit or allow any vehicles of any description or any animal or any obstruction of any kind to stand or remain in or upon the said right-of-way so as to delay or interfere with the traffic thereon. [emphasis added] The Prohibitory Injunction: Installing Gates [30] The second part of the relief sought by Vision Centre is a prohibitory injunction restraining Nerang from obstructing the right of way by installing, constructing or otherwise placing gates or fences on the easements. Again, Vision Centre’s legal rights depend on the terms of the three easements – which are all in the same terms as Easement P quoted above. Nerang’s obligation under the easements is: (a) not to obstruct the right of way or do anything that prevents or restricts Vision Centre, or others, from going to or from the Vision Centre block (clause 1); (b) not to permit or allow any vehicles, or any animals, or any obstruction of any kind, to stand or remain in or on the right-of-way so as to delay or interfere with the traffic thereon (clause 2); (c) permit Vision Centre free and uninterrupted right-of-way over Nerang’s block (clause 3). [31] Properly interpreted, the easements are designed to ensure that Vision Centre and its visitors have a freedom of movement to and from the Vision Centre block. In other words, the prohibition is on any action or inaction on the part of Nerang that impairs that movement along the right of way. The focus is on an interaction: conduct of Nerang that prevents Vision Centre’s use of the right of way. [32] As events have transpired, any movement by Vision Centre or its staff or visitors using the Nerang block is now stymied. That is because Nerang now forbids the use of the driveway that has been used for 24 years. And, as mentioned, there are practical impediments to any use of Easement P. There is, at the least, a clump of trees, a 23 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Newcomen v Coulson (1877) 5 Ch D 133. 24 See clause 4 of Easement P which allocates 25% of that expense to each of the owners of the four blocks. 25 Clause 7 extends the operation of clause 2 so that it binds successors in title. -- 9 of 22 -- 10 culvert, the construction of a driveway, and possibly council approval, required before Easement P could be used as a right of way. [33] The southern and northern gates need to be considered separately. The northern gate, near Cougal Street, cannot constitute an interference with the right of way because it is not on any of the easements. The southern gate was located on Easement D26 and so would constitute an interference with the use of the easement but for the problem that there is no driveway or even a walkway that has been built along the easements. I am unable to conclude that Vision Centre staff, patients and visitors are prevented from using the right of way by any fence or gate when no driveway has been built on the easements, no right of way is presently able to be used, and there is not even a proposal or plan that there will be a driveway over the easements, including Easement P. [34] The right of way permits use by vehicles or pedestrians. But there is no evidence that the driveway was regularly used by pedestrians and there is no evidence that pedestrians are presently making their way, or attempting to make their way, through the small forest on Easement P – to or from Cougal Street. The Importance of Access [35] Dr Welch carefully explained the importance of the right of way. In his first affidavit, he said this: 22. The area around the Vision Centre is quite congested, being a high traffic area close to the Southport Business District. For that reason, the easement access is extremely important to the conduct of the Vision Centre. It allows access into the Vision Centre carpark and passenger drop-off area from both Nerang Street and Cougal Street. It also allows traffic to turn around and exit the site onto Cougal Street. Nerang Street is only one land outside the Vision Centre driveway and is frequently congested because there is a tram line outside as well which affects the operation of the traffic lights. 23. The drive-through access between Cougal Street and Nerang Street enables much easier set down and pickup of patients for the Vision Centre, many of whom use wheel chairs or walking aids. The access is used at all times while the Vision Centre is operating and it is quite busy with patients coming and going. On irregular but frequent occasions, patients are delivered to the drop-off area by ambulance (either because they are elderly and require ambulance transport to get to medical appointments or because they are coming to an appointment from hospital). It is also used by me, the other doctors, Vision Centre staff and by service vehicles such as the rubbish collection trucks. [36] Dr Welch explains that on surgery days patients can be asked to arrive at Vision Centre by 6.30am and that doctors and other staff work long hours. He explains that the availability of the easement access is becoming more important as the road network becomes busier, particularly since the installation and commissioning of the tram on Nerang Street. [37] Given the importance that Vision Centre attaches to the right of way, it is surprising that no steps have been taken by Vision Centre to re-establish the right of way, but 26 The plan which is at page 102 of the exhibits to Dr Welch’s second affidavit shows the southern gate on Easement C adjacent to the northern boundary of the Vision Centre block. That accords with the photographs. -- 10 of 22 -- 11 on its correct alignment. There is no stated intention by Dr Welch that he intends to construct a driveway on its correct alignment. There are no plans or surveys or quotes or cost estimates. As previously explained, there is no survey or plan that identifies the trees that need to be removed. [38] Incidentally, it seems clear from the way in which Dr Welch describes the importance of the right of way that the driveway has been used and had importance as vehicular access. He places no emphasis on it as a pedestrian access-way. Vision Centre contends that Easement P cannot be traversed without considerable difficulty on foot. But, if the right of way were established on Easement P, there is no evidence that pedestrians would be frequent users. The Principles [39] Counsel referred the court to a collection of principles for right of way easements explained by Martin J in Staley v Pivot Group Pty Ltd (No 6).27 There, His Honour stated the following principles which can be used as a starting point (omitting the footnotes): (a) Subject to the rights of the dominant owner, a servient landowner retains full dominion over servient land. The dominant owner holds only such rights as are expressly or by necessary implication found in the terms of the relevant grant or reservation. The servient owner retains all ownership rights, except for the rights inconsistent with a dominant owner's exercise of rights conferred under the terms of the grant or reservation. (b) A grant of a private carriageway, ordinarily speaking, confers only a right to reasonable use by the grantee, in common with others. (c) If a servient owner acts inconsistently against a reasonable exercise of a dominant owner's rights, in a manner which causes substantial interference to the dominant owner, such conduct can amount to an actionable nuisance, which a court may restrain by injunction (an injunction being, of course, ultimately a discretionary equitable remedy). (d) In an exercise associated with interpreting the terms of a grant or reservation that is the basis of an easement holder's rights, evidence of mutually known surrounding circumstances, at the time the easement was created, will not be admissible. The only admissible evidence is that necessary to make sense of terms or expressions identified in the property register, such as surveying terms, or abbreviations which appear on a plan (e) The permissible use of an easement right could change with changes in the nature of the use of the dominant tenement, if the terms of the grant are sufficiently broad. (f) What constitutes reasonable conduct by a dominant owner in relation to a right of carriageway, is essentially determined by reference to the express terms of the grant or reservation. (g) A term will be implied in a grant or reservation of an easement, to the effect that the dominant owner has such ancillary rights as are reasonably necessary to the effective and reasonable exercise and enjoyment of the rights expressed. 27 [2010] WASC 228 at [93]. -- 11 of 22 -- 12 (h) An ancillary right, deriving from the terms of a grant or a reservation of a right of carriageway, is the right to carry out such work on the servient land as is reasonably necessary to create or to maintain relevant vehicular access to the dominant land. (i) Notwithstanding that the terms of a grant may be expressed as “for all purposes”, a carriageway must not be used to unreasonably interfere with the lawful use of the servient land by others. (j) In the case of private carriageway rights, an obstruction is not actionable unless it is substantial. There must be a real and substantial interference with the enjoyment of the carriageway.28 [40] The following additional observations can be made: (a) The express terms of an easement are the overarching consideration in determining whether a breach is present.29 The court’s task is to interpret them. (b) The exact purposes of the easement, which are dependent on its terms, can vary significantly.30 (c) Care needs to be exercised if the court is invited to use extrinsic evidence to interpret the meaning of terms in an easement.31 The “express terms of the registered easement, deposited plans and folio identifiers”32 are the sole reference points, with very minor exceptions, although the physical characteristics and circumstances at the time of the grant may be of assistance. An Obstruction to the Right of Way? [41] As I have explained, Vision Centre complained about the erection of the northern and southern gates. The northern gate was erected at the Cougal Street end of the driveway and so not within any of the areas protected by the easements. Nerang had a legal right to erect that gate. [42] The southern gate blocked Easement D which prevented Vision Centre from accessing Easements T and P and by that means Cougal Street. Nerang has provided a combination lock code to open the gates. But for the problem that there is no usable right of way, the provision of a combination for a lock on the gates would not assist Nerang. Even with the provision of the code to the combination lock, the right of way is obstructed. Easement P expressly grants to the Vision Centre “free and uninterrupted right-of-way over the servient tenement”. That is in an urban context where Vision Centre’s doctors, staff, patients and visitors may not, in a practical sense, be able to easily obtain the combination, leave their vehicle, enter the code, and move the gate/fence, and then repeat that procedure in reverse when they have moved their vehicle beyond the gate. Vision Centre is a medical facility including a day hospital. And so, patients come and go at regular intervals. Access to the building 28 There are 5 further principles outlined by His Honour. 29 Staley Principle (f) above. 30 Staley Principle (e) above. 31 See Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511 at [39]-[53]. See also Staley Principle (d) above. 32 Anne Wallace, Michael Weir and Les McCrimmon, Real Property in Queensland (5 th ed) at page 813, discussing Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45. -- 12 of 22 -- 13 is required for council and garbage trucks, service vehicles, staff and patients, including some with disabilities and some arriving by ambulance.33 [43] In a rural setting, an insistence on a closed gate may not constitute a real and substantial interference34 with the right of way.35 But the situation is very different where there is a closed and locked gate in an urban environment, particularly given that the easement services a three-storey building which includes a medical facility and day hospital.36 [44] Nerang’s argument that Vision Centre has “adequate access” via Nerang Street is irrelevant. The easements expressly give Vision Centre a right of way to Cougal Street. [45] However, by its terms, the easements are blunt. Nerang is not entitled to permit “any obstruction of any kind to stand or remain in or upon the said right-of-way so as to delay or interfere with the traffic thereon” [emphasis added]. As explained above, the prohibition is on anything that impairs that movement along the right of way. The focus is on the freedom of movement along the easements. Vision Centre’s freedom to move along the right of way is not impaired by anything Nerang has done. A vital piece of the right of way has yet to be constructed and there are significant impediments standing in the way of any sensible use of the right of way. [46] It is true that Vision Centre is entitled to “free and uninterrupted right-of-way over the servient tenement” but that too implies some interruption to movement that would otherwise take place, but for Nerang’s obstruction. [47] Therefore, in my view, on the proper interpretation of the easements, the prohibition is on any action or inaction on the part of Nerang that impairs that movement along the right of way. The installation of the gates does not impair movement along the right of way because the right of way is not in use and is not proposed to be used and is not able to be used until a number of impediments are overcome. The position is similar for the trees. [48] There is a further question. Even if the gates or trees could be regarded as a real and substantial obstruction to the right of way, should the court exercise its discretion to grant a permanent injunction? Should an injunction be ordered? [49] It will be recalled that principle (c) from Staley v Pivot Group Pty Ltd (No 6) provides: If a servient owner acts inconsistently against a reasonable exercise of a dominant owner's rights, in a manner which causes substantial interference to the dominant 33 Affidavit of Mr Le of 5 March 2024 at page 10. 34 The test used is one of reasonableness and common sense: “For the purpose of assessing arguments of private nuisance, the issue of reasonableness, in terms of the degree of interference, is to be assessed using common sense, taking account of all relevant factors in each case, including the ideas of reasonable people, the nature of the location of the land, as well as the character, duration and time of the interference and the effect(s) of the interference”: Staley at [93] subparagraph (12). See also the discussion by Morrison JA in Multiplex Bluewater Marina Village v Harbour Tropics Pty Ltd [2017] QCA 202 at [65]. 35 See for example, Pullen v Smedley [2017] NSWSC 1721 and Gohl v Hender [1930] SASR 158. 36 Much depends on the nature of the property. See the discussion in Brendan Edgeworth, Butt’s Land Law (Lawbook Co, 7 th ed, 2017) at [9.710]. -- 13 of 22 -- 14 owner, such conduct can amount to an actionable nuisance, which a court may restrain by injunction (an injunction being, of course, ultimately a discretionary equitable remedy). [50] The granting of an injunction is a discretionary equitable remedy. It can either be an order “restraining a person from performing a specified act or requiring a person to perform a specified act”.37 As explained, Vision Centre seeks both types of injunctions. [51] A stark factor here is the futility of the proposed injunctions. Courts have refused injunctive relief where it would not serve any useful purpose. For example, in Tucker v News Media Ownership Ltd, it was held to be futile to restrain a media publication, as there were many others that were at liberty to publish material of the same subject matter.38 [52] At the outset, I am reluctant to require Nerang to destroy the trees on the easement. Those trees to be destroyed have not been precisely identified and the destruction of the trees may be a town planning issue on which the local council would wish to be heard. And the whole exercise may be pointless. The council may not approve the cross-over, or the removal of the on-street parking, or they may not approve the construction of the driveway on the correct easement. Or the quote or tender that Vision Centre receives for the construction of the driveway along Easement P to Cougal Street may be for a sum that Vision Centre declines to spend. In other words, the construction of the driveway may not survive a cost-benefit analysis. [53] Vision Centre has not stated that it has a desire to build a new section of driveway on Easement P, and it has taken no steps to embark on that process. There is not even a rough plan for the new section of driveway. All seven of the impediments to the use of the right of way (referred to in paragraph 15 above) remain. [54] Courts are also hesitant to order injunctions where enforcing them would require continuing curial supervision and a factor that is to be taken into account is that injunctions need to be phrased in clear terms.39 [55] Here, if the court were to order that Nerang must destroy the trees, it will be necessary to identify precisely the trees that are to be condemned, and to make that part of the order subject to council approval. That means that one or other of the parties will need to arrange a survey, identify the trees to be removed and apply for council approval. If it was Vision Centre that applied for council approval it would presumably need Nerang’s consent. And, if was Nerang that applied for council approval, Nerang would be applying for approval to remove trees in order to facilitate Vision Centre’s as yet unidentified plan for the driveway. And there is no clarity as to who will pay for the removal of the trees. Vision Centre’s orders assume that Nerang should pay for the exercise. However, for the reasons already discussed, I am unable to see the justification for Nerang being required to do so at its own expense. Certainly, Vision Centre has not offered to meet any of the cost. And so orders would need to be made requiring Vision Centre to pay the costs. In the context where the parties are bitterly opposed, those are large tracts of territory requiring court supervision. 37 G E Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 8 th ed, 2023) pg 955, citing Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231. 38 [1986] 3 NZLR 121. 39 Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 at [60]. -- 14 of 22 -- 15 [56] Perhaps appreciating the likely need for court supervision, the latest version of the orders sought by Vision Centre includes liberty to apply. A concern, though, is that events may occur which will require something more than just machinery provisions designed to give effect to the principal relief already granted.40 For example, if the council decides not to approve the re-alignment of the driveway, substantive and different orders may be required. That is not the role of an order giving liberty to apply. [57] Those are the practical problems with the mandatory aspects of the proposed injunction. [58] With the prohibitory aspects of the proposed injunction, the order sought is to restrain Nerang from obstructing the right of way by installing, constructing or otherwise placing gates or fences on the easements. But, again, practicalities intrude. Would Nerang be obstructing the right of way by reinstalling the southern gate? Vision Centre may never proceed with forging a right of way through to Cougal Street. The cost of the new driveway project may be disproportionate to the benefit. In that event, the injunction will have served no useful purpose. [59] It is true that Vision Centre has offered to make the injunction subject to Vision Centre giving an undertaking to create a driveway on Easement P within one year. But that illustrates two things. The first is the prospect that the injunction may be entirely pointless. Vision Centre may not give such an undertaking and so Nerang will have been subject to a contingent injunction for 12 months. The second is that there is an odd incongruity in Dr Welch giving evidence as to the importance of access to Cougal Street, and yet proffering a 12 month period in which he would decide whether or not to undertake to proceed with the right of way. [60] From a practical and common sense viewpoint, even if the terms of the easements justified an injunction, there is no practical utility in the court making the orders. I am not persuaded that the court ought to exercise the discretion to order a permanent injunction. [61] For those reasons, Vision Centre’s application is dismissed. Issue 2: Removal of Encroachments [62] Nerang’s cross-application seeks the removal of part of a utilities building at the rear of the Vision Centre property. The utilities building houses, from west to east, a fire pump room, an Energex facility and a garbage room. The building is about 20m by 4m. About 1.5m of the 4m width is located on Nerang’s land and the remaining 2.5m is located on the Vision Centre land. In other words, the building straddles the boundary between the two properties. The building has stood in that position for roughly 24 years. The easements were created soon after the Vision Centre building and the utilities building were constructed. Nobody has objected until now. [63] Nerang does not seek to interfere with Energex’s facility, which is in the middle of the utilities building and is protected by Easement R. Nerang seeks the removal of roughly 3.4m at the western end of the building (the fire pump room part of the utilities building) and 5.5m at the eastern end (the garbage room) – a total of 11.9 40 On ‘liberty to apply’ see Nicholson v Nicholson (1974) NSWLR 59 at 63. -- 15 of 22 -- 16 square metres. Those two sections at both ends of the utilities building are protected by Easement M.41 However, Nerang argues that Easement M – which has a stated purpose as being for “support” - does not protect the building and that those parts of the building are encroachments. [64] Nerang seeks an order from the court that the encroachments be removed. In the alternative, an order for compensation is sought for the following amounts: (a) $51,096; or (b) alternatively, $40,901 [65] Counsel for Nerang said that the method of calculation for the former amounts was by multiplying the amount based on a Land Valuation Act 2010 valuation.42 The Background [66] Mr Stewart McIntyre, a surveyor, explains that both the Vision Centre building and the utilities building were built at the same time – in 1999 and early 2000. Mr McIntyre was the surveyor who drafted the relevant plan with the easements. Mr McIntyre explains the easements: 9. The boundary between the Vision Centre land (Lot 21) and what was then Lot 22 (but which is now Lot 2 on SP318622) was drawn through the Utilities Building in its current location as it aligns with the basement wall of the Vision Centre below ground. I recall that the basement level wall was included in the plans (and built consistently with the plans) with the intention that in the event the subsequent purchaser of Lot 2 wanted to develop the lot, the basement wall would provide further support for the development of Lot 2 including at the basement level. This was considered to be an advantage to a developer of Lot 2, bearing in mind the location of the land and the likelihood that there would be a multi-storey development on it at some stage. 10. At the time I conducted the original survey for the proposed subdivision, I also understood that the Utilities Building would provide electrical infrastructure to any development of Lot 2. It was for these reasons that: (a) The boundary between the lots was not simply drawn by me in a location that encompassed all of the Utilities Building within the Vision Centre lot, and (b) Easement H and Easement M provide mutual support to the Vision Centre and Lot 2 on each side of that boundary line. [67] Mr McIntyre’s explanation continued: 15. As noted above, the Vision Centre and the Utilities Building already existed at the time that I was drafting the easements for the purposes of the subdivision of the land. In my view, it was sufficient to cover the area of 11.9 sqm (referred to above) under Easement M as support easements because those areas do in fact support the roof and wall structures for the whole of the Utilities Building and for those parts of the fire pump room and the garbage room which are located on the Vision Centre land. 41 Easement R, which protect the Energex part of the utilities building, is wholly within Easement M, which protects the whole utility building (or at least that part of the utilities building on Nerang’s land. 42 These figures were provided by Dr Welch. -- 16 of 22 -- 17 [68] That evidence was admitted without objection. Given the principles stated above,43 care needs to be exercised if the court is invited to use extrinsic evidence to interpret the meaning of terms in an easement. As will be explained, it is unnecessary to use any extrinsic evidence to interpret Easement M. [69] It is important to bear in mind that the easements are reciprocal in the sense that just as Nerang’s land is burdened by easements in favour of Vison Centre covering the utilities building, Vision Centre’s land is burdened by equivalent easements in favour of Nerang. The patchwork of easements covers the whole of the footprint for the utilities building – on both sides of the boundary between the two properties. And, of course, Energex has the advantage of Easement R which covers the centre of the utilities building. [70] Not surprisingly, the building task of excising the two ends of the utilities building would pose some difficulties. A builder, Mr Simon Caruana, describes the task as “logistically very difficult”. Mr Caruana explains that view: (a) It appears to me that the building was designed to ensure that the weight was not supported solely by the carpark level beneath it on the Vision Centre side of the boundary. As that basement area was not capable of taking the load of the Energex building, separate pillars were drilled into the ground outside of the carpark area to take the weight of the building. The utilities building was cantilevered over part of the underground carpark (which is on the Vision Centre side); (b) The pillars are supported at each corner of the ground slab and ceiling slab for the building. Removing the corners of the building (marked in pink44) would significantly undermine the support structure and make the balance of the building unsafe; and (c) Whilst it may be possible to remove part of the walls and roof from those areas of the building, it would require some significant engineering design in order to accomplish this. It would be very risky to attempt to demolish those parts of the building without having an engineer design an alternative support structure for the remainder of the building; (d) I cannot see any simple or cost-effective way of accomplishing this outcome;45 and (e) In my opinion it is not practicable to demolish that part of the building marked in pink.46 [71] Mr Caruana was cross-examined on this paragraph. He was a careful witness. He readily agreed that an engineer would need to be engaged before any work was carried out. He resisted the idea that no part of the footings or foundations could be seen. He pointed out that the tops of the structural footings could in fact be seen in the photographs. I accept Mr Caruana’s evidence. As an experienced builder, he had relevant expertise. There is no evidence that contradicts him. And it seems to me perfectly logical that the utilities building is likely to have been constructed in the way he describes and that the task of lopping off the ends of the building would pose some significant problems to the overall integrity of the structure. 43 See paragraph [39]-[40] above. 44 The section marked in pink comprises the ends of the building on Easement M but excluding Easement R (i.e. the Energex part of the building). 45 Mr Caruana’s quote for the exercise is $352,000 but excluding building consultation, certification, utilities, engineering or amended plans. 46 Mr Caruana’s affidavit at [9]. -- 17 of 22 -- 18 Easements M and R [72] Easement R was granted by Dr Welch, when he owned the property, to Energex.47 The purpose of the easement was described as “Electrical Works”. Easement M was also granted by Dr Welch, but this easement was granted to himself as the owner of the adjoining block. The purpose of Easement M is merely stated as “Support”. [73] Even without these easements, the effect of s 179 Property Law Act 1974 is that adjoining landowners have an obligation to not to do anything on their land which will withdraw support from their neighbour’s land, or any building or structure on that land.48 For that reason, any construction that Nerang proposed on its land near the boundary of the Vision Centre land would require that assuring of support for that land and structures. Nerang’s Argument [74] Counsel for Nerang argues that the utilities building is not protected by Easement M. The argument, as I understood it, had these components: (a) An easement for “support” does not justify the construction of the utilities building; (b) Easement M can only be justified if it provides support to a building or structure on the dominant tenement, i.e. Vision Centre’s land; (c) Easement M cannot be support for a building or structure that the owner of the Vision Centre chooses to build on the neighbouring Nerang land; (d) What is required for a valid easement is that the servient tenement, here Nerang’s land, provide some support for the dominant tenement’s land, building or structures; (e) It is important that, here, the owner of the dominant tenement, Dr Welch, chose to build the utilities building on both blocks of land.49 [75] There are conceptual and factual problems with the argument. In short, Nerang’s argument applies a far too narrow and restricted view of the role of an easement and of the task of this particular easement for support. Is Easement M invalid? [76] One conceptual problem is the idea that as a matter of law an easement for ‘support’ on the servient tenement can only be justified if it provides support to the land or a building or structure on the dominant tenement. An easement is a right of a definite and limited character attached to the enjoyment of the dominant tenement pursuant to which the owner of the servient tenement is bound to: (a) permit the owner of the dominant tenement to do something related to the land; or 47 Energex were not a party but agreed to abide the order of the court. 48 In states other than Queensland there is a common law principle to similar effect. 49 This is a rough summary of the oral argument put by counsel for Nerang: transcript T2-109 line 8 to T2-112 line 42. The argument was not explained in written submissions. -- 18 of 22 -- 19 (b) abstain from exercising one or more of the ordinary rights of ownership; or (c) in rare cases, do something for the benefit of the occupier of the dominant tenement.50 [77] An easement is a species of property right attaching to land, which confers rights over neighbouring land; the rights are proprietary in nature and so run with the land both for the successive owners of the dominant tenement and by way of burden on the successive owners of the servient tenement.51 [78] Those legal principles do not limit the scope of easements. The only limit is that the easement cannot purport to confer on the owner of the dominant tenement a right of an exclusive character to use the servient tenement such that it robs the servient owner of the reasonable use of his land; such an easement is invalid.52 However, as Wilson J explained in Weigall v Toman, the question of whether the easement robs the servient tenement of the reasonable use of the land is a question of degree and involves the weighing of a number of factors, including: (a) proportionality between the servient tenement as a whole and that part of it over which the exclusive right is given; (b) the extent of the exclusivity claimed; (c) whether the easement arose by prescription or by express grant; and (d) practicalities.53 [79] In Weigall Wilson J applied those factors in this way: [25] In the present case the respondent’s predecessor in title was expressly and unambiguously granted an exclusive right to use a garage which occupied only a small part of the servient tenement. That right was counterpoised against an exclusive right in the applicant’s predecessor in title to use the smaller garage (which was also on the servient tenement). At the time of the grant, it was physically impossible for motor vehicles to proceed along the servient tenement beyond the garages because of the steep, scrubby nature of the pathway along it, and the easement with its reciprocal exclusive rights afforded the grantor and the grantee places to park their vehicles and pedestrian access to their respective dwellings. I conclude, therefore, that the grantee’s exclusive right to use the larger garage did not rob the grantor of the reasonable use of the servient tenement as a whole. [26] I decline to make a declaration that the easement is invalid in whole or in part. [80] Here, applying those principles, it is plain that, when the easement was granted in 2000,54 the evident objective was that the utilities building would be a facility used by both neighbouring blocks. That was why the building was constructed where it was, and why the Energex facility was incorporated, and it is why there are reciprocal 50 This is a paraphrased and modernised version of the definition in Winfield, Jenks’ English Civil Law (Butterworths, 4 th ed, 1947) quoted in Real Property Law in Queensland at [15.20]. 51 Real Property Law in Queensland at [15.20], quoting Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553 at [2]. 52 London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 at 1288. 53 [2008] 1 Qd R 192 at [13]. 54 The grant of an easement is to be construed having regard to the physical facts and circumstance existing at the date of the grant: SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540. -- 19 of 22 -- 20 easements over each property. The relevant parcel of land is roughly 11.9 square metres. That is a proportionately small section of land.55 The reciprocal rights afforded by this collection of easements does not rob Nerang of the reasonable use of its land as a whole.56 There is no proper basis on which it could be concluded that Easement M is invalid. [81] Of course, it is necessary to consider the terms of Easement M. The registered easement records that: The Grantor for the above consideration grants to the Grantee the easement over the servient tenement for the purpose stated in item 7 [Support] and the Grantor and the Grantee covenant with each other in terms of the attached schedule. [82] There is no attached schedule, although there is a consent from the mortgagee, Westpac Banking Corporation. An Easement for ‘Support’ [83] That rather sparse documentation does not support Nerang’s argument. The simple word ‘support’ is not by its terms limited to support for the dominant tenement’s land, building or structures. [84] There are three categories of case involving boundary easements: (a) an easement over an adjoining property may merely require the servient tenement not to do anything on their land which will withdraw support from their neighbour’s land, or any building or structure on that land – although that may achieve little more than is already achieved by s 179 Property Law Act 1974; (b) a mutual or reciprocal easement may enable both parties to have the advantage of a structure constructed on the boundary or straddling the boundary, for example, easements may be granted to give both neighbours the benefit of ‘party walls’; (c) an easement may enable the dominant tenement rights over the land of the servient tenement or over a structure entirely on the servient land – see, for example, Weigall v Toman where the easement granted the dominant tenement an exclusive right to use a garage on the servient tenement. [85] There is no reason for interpreting Easement M as an easement for support – but only for a building or structure on the dominant tenement, i.e. Vision Centre’s land. The word ‘support’ is not confined. Nothing in Easement M justifies reading the word so narrowly. And so the word ‘support’ can be regarded as support for the utilities building itself. [86] The physical characteristics and circumstances at the time of the grant may be of assistance in construing Easement M.57 The utilities building was constructed before 55 Nerang’s land is 6,910 square metres. 56 One development plan has been approved by the council and that plan does not envisage any alteration to the boundary or the utilities building. 57 See Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] 2 Qd R 511 at [39]-[53]. -- 20 of 22 -- 21 the subdivision of the neighbouring properties. The evident purpose of the small network of easements was to give both neighbours rights over the utilities building and to give Energex rights over the centre of the utilities building. That multi-purpose feature of the utilities building was a part of the circumstances at the time the easement was granted, which is the relevant time for construing the easement.58 [87] The utilities building straddles the boundary between the two properties. In that sense, it falls within the second of the three categories explained above. In principle it is no different from a party wall. Importantly, the evidence of Mr Caruana is that the utilities building is an integrated structure, obtaining support from each corner of the ground slab and ceiling slab for the building. As he said, removing the corners of the building would significantly undermine the support structure and make the balance of the building unsafe. The very purpose of these easements was to enable the utilities building to remain standing with both neighbours having some measure of control over that part of the utilities building on their neighbour’s property. [88] It follows that Easement M is valid, and there is no encroachment. [89] However, it is appropriate to consider whether, if I am wrong, and the utilities building is not protected by Easement M, the court should make an order as to the encroaching parts of the utilities building. Discretion to make Orders [90] Once it is determined that an encroachment is present, the court has a discretion as to what relief can be ordered. Section 185 Property Law Act 1974 provides for the “Powers of court on application for relief in respect of encroachment”: (1) On an application under section 184 the court may make such order as it may deem just with respect to— (a) the payment of compensation to the adjacent owner; and (b) the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and (c) the removal of the encroachment (2) The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other matters— (a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and (b) the situation and value of the subject land, and the nature and extent of the encroachment; and (c) the character of the encroaching building, and the purposes for which it may be used; and (d) the loss and damage which has been or will be incurred by the adjacent owner; and 58 SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540. -- 21 of 22 -- 22 (e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and (f) the circumstances in which the encroachment was made. [91] Here, the utilities building has stood for 24 years. It has been used for a variety of purposes during those 24 years. It is on a very small section of land at the boundary – only 11.9 square metres. The utilities building must have been obvious to Nerang as a purchaser of the Nerang block. Parts of the utilities building are protected by other easements, one of which being for the benefit of Energex, a non-party to the proceedings.59 And, as Mr Caruana explained, to remove the ends of the building would be a very expensive and uncertain exercise. Whatever development proceeds on Nerang’s site could do so whilst accommodating the present location and use of the utilities building. No actual loss or damage has been proved by Nerang and any loss and damage which may be incurred by Nerang is likely an insignificant amount. [92] This is a poor candidate for the exercise of the discretion to grant relief to Nerang. There is no basis for the court to exercise its discretion to order compensation, or to order the transfer of property, or to order removal of the ‘encroachment’. [93] For those reasons, I decline to make any order under s 185 and Nerang’s cross application is dismissed. 59 As stated previously, Energex said that it would abide the orders of the court. Nevertheless, Energex is still a non-party. -- 22 of 22 --