2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews [2016] QSC 40

SUPREME COURT OF QUEENSLAND CITATION: 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40 PARTIES: 2040 LOGAN ROAD PTY LTD (Applicant) v BODY CORPORATE FOR PADDINGTON MEWS CTS 39149 (Respondent) FILE NO/S: SC No 11223 of 2014 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 7 March 2016 DELIVERED AT: Toowoomba HEARING DATE: 29, 30 and 31 July 2015; written submissions on behalf of the applicant dated 6 August 2015; written submissions on behalf of the respondent dated 6 August 2015 JUDGE: Burns J ORDER: Application dismissed CATCHWORDS: REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE – STATUTORY EASEMENTS – where the applicant applied for a statutory right of user pursuant to s 180 of the Property Law Act 1974 (Qld) – where an easement was sought over a private driveway to facilitate access to two proposed carparks on the applicant’s land – whether the proposed easement was reasonably necessary in the interests of the effective use of the applicant’s land – whether the grant of an easement would be in the public interest – whether the respondent -- 1 of 22 -- 2 unreasonably refused to agree to accept the imposition of the easement Property Law Act 1975 (Qld) s 180 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504, cited Blulock Pty Ltd v Majic (2001) 10 BPR 19,143, cited Bradshaw v Griffiths [2016] QCA 20, applied Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073, cited Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86, cited Hanny v Lewis (1998) 9 BPR 16,205, cited Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303, cited Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42, applied Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove Community Title Scheme 37148 [2015] QSC 179, cited Lynch v White [1987] Q Conv R 54-257, cited Nelson v Calahorra Properties Pty Ltd and Ors [1985] Q Conv R 54-202, cited Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259, cited Re Hodgskin [1999] Q Conv R 54-535, cited Re Kindervater [1996] ANZ Conv R 331, cited Re Seaforth Land Sales Pty Ltd’s Land [1976] Qd R 190, cited COUNSEL: MD Martin QC with A Stoker for the applicant APJ Collins with JPD Trost for the respondent SOLICITORS: Mills Oakley Lawyers for the applicant Craig Ray & Associates for the respondent -- 2 of 22 -- 3 [1] There is a block of housing units on the eastern side of Fernberg Road at Paddington known as Cambridge Court. It is an older building, having been constructed in the 1960s for the Vasey Housing Auxiliary of the War Widows’ Guild. To the rear of that property sits a more contemporary residential complex known as Paddington Mews, the access to which is via a driveway that runs alongside Cambridge Court from Fernberg Road. The applicant would like to use part of that driveway to access the courtyards to two of the units owned by it in Cambridge Court so that those areas can be used as car parks for those lots.1 The driveway is part of the common property of the respondent, the body corporate for Paddington Mews. [2] The applicant has accordingly applied to the court pursuant to s 180 of the Property Law Act 1974 (Qld)2 for the grant of a statutory right of user over the driveway in the form of an easement. [3] Although the respondent advanced various grounds to resist the application, its outcome very much depended on whether such an easement would be reasonably necessary in the interests of the effective use of the applicant’s land. For the reasons that follow, I am not satisfied that it is. I am also not persuaded that each of the preconditions to the exercise of the power to grant a statutory right of user specified in s 180(3) PLA have, in this case, been met. It follows that the application must be dismissed. The evidence [4] With one exception, the hearing proceeded on affidavit evidence with cross- examination of the deponents. For the applicant, evidence was adduced in this way from one of its directors, Mr Mark Smith, along with a cadastral surveyor, Mr Byrom, and a registered valuer, Mr Bremner. For the respondent, evidence was adduced in the same way from its chairperson, Mr Wilson, a transport engineer, Mr Douglas, and a registered valuer, Mr Kogler. In addition, the respondent called Mr Robert Smith, a registered electrical engineer, to give oral evidence at short notice. I was also assisted by a view of various features of Cambridge Court and Paddington Mews that was conducted on the first morning of the hearing after the applicant opened its case.3 [5] What follows are the facts as I find them to be on my assessment of the written and oral testimony together with the photographic and other exhibits that were tendered during the course of the hearing. Material facts [6] Cambridge Court is made up by 15 community titled units and associated common property. In August 2013, the applicant purchased all of the units but it has since sold most of them. At the time of the hearing, the applicant retained ownership of unit 3, unit 4 and unit 5. These are respectively lots 105, 104 and 103 on the registered title. In addition, the directors of the applicant, Mr Smith and Mr Loel, separately own unit 6 (lot 102) and unit 7 (lot 101). They are the only units in Cambridge Court that have 1 Lots 103 and 104 on Survey Plan 257202, County of Stanley, Parish of Enoggera. 2 The PLA. 3 The features viewed are detailed at page 1-53 of the Transcript. -- 3 of 22 -- 4 dedicated car parking spaces or, for that matter, vehicular access to Fernberg Road,4 although the owner of unit 1 uses the courtyard associated with her unit as a car park. To access that area, it is necessary for that owner to drive to and from the driveway for Cambridge Court and across a segment of the common property that is used as a garden bed. Although the body corporate is yet to formally approve this arrangement, no other unit owner has objected to the use of the common property for this purpose. [7] Paddington Mews consists of five townhouses over three levels. The living areas for each townhouse are situated on the upper two levels, with a two bay garage on the bottom level. The driveway leading from Fernberg Road is the only means of vehicular and pedestrian access to and from Paddington Mews. [8] By the Amended Originating Application filed on 8 May 2015, the statutory right of user sought by the applicant is specified to be “a right of way over such part of that land which is marked as ‘Easement B’ on plan No. 14491-02 prepared by Goodwin Midson5 dated 14 October 2014”. That plan is in evidence,6 and a copy forms Annexure A to these reasons. The proposed easement is marked on that plan as “Emt B” and is otherwise represented by the shaded area adjacent to the south-eastern boundary of Cambridge Court. It is 41.2 m in length and 5.1 m in width, with an overall surface area of 210 m2. The area marked on the plan as “Emt A” relates to an earlier proposal that is no longer pursued and may therefore be ignored.7 [9] As already mentioned, the easement is sought in order to provide unit 4 (lot 104) and unit 5 (lot 103) with a dedicated car parking space and access to and from Fernberg Road. Neither unit has been inhabited since they were acquired. As the registered proprietor of those units, the applicant also owns the land comprising the courtyards adjoining each; that land is not part of the common property. The applicant wishes to convert both areas to car parks, but that development will obviously be useless unless the easement sought by it is granted. Annexure B and Annexure C to these reasons are a copy of two drawings, also prepared by Goodwin Midson, that are in evidence.8 These were drawn by Mr Byrom on 3 July 2015 to illustrate the expected “car manoeuvring” to and from the proposed car parks if an easement were to be granted. It will be seen that Annexure B is concerned with the vehicle access lines to and from unit 5 (marked on the drawing as lot 103) and that Annexure C is concerned in the same respects with unit 4 (marked on the drawing as lot 104). However, the annexures also conveniently indicate where the courtyards adjoining those units are located. [10] The courtyard to unit 49 is 2.6 metres wide and 6.3 metres in length. That area is too narrow to meet the minimum requirements of the policy of the Brisbane City Council 4 Depicted in photographic exhibit 2.1. 5 Mr Byrom’s firm. 6 Affidavit of Mr Smith filed on 24 November 2014, Exhibit MS5. 7 There is, however, an existing easement that is not marked on the plan, a copy of which is Annexure A to these reasons. It benefits the Brisbane City Council, is described as “Easement A” and was registered on 16 October 2008. See affidavit of Mark Smith filed on 24 November 2014, Exhibit MS2. 8 Exhibit 1. 9 See photographic exhibits 2.10, 2.12, 2.13 and 2.16. -- 4 of 22 -- 5 governing approvals for the development of car parks10 or the same requirements in the Australian Standard.11 As Mr Douglas reported: “A minimum width of 3.2 metres is … required between the fence and the building for this courtyard to be re-purposed as a compliant parking space”.12 Of course, in certain circumstances, Council planning policies may be relaxed but, here, no application for approval had been made by the applicant and no evidence was called from the Council as to the prospects that a relaxation might be allowed in this case. The only evidence on that point came from Mr Douglas who expressed this opinion when giving evidence: “I would suggest that the conversion of the courtyard to unit [4] is, in my view, probably highly unlikely to be acceptable to Council … because it is just too narrow. Its manoeuvring is very difficult. It’s the loss of a courtyard.”13 I accept Mr Douglas’ evidence on this point. It is highly unlikely that approval to convert the courtyard to unit 4 to a car park would be forthcoming from the Brisbane City Council if an application to that end was to be made by the applicant. [11] The courtyard to unit 514 is 4 metres wide and 5.25 metres in length. As such, it meets the minimum width requirements of the Council’s policy as well as the Australian Standard, but it is too short – the minimum length under the policy is 5.4 metres.15 This may be thought to be less concerning than the position as regards unit 4 because it may be that the body corporate for Cambridge Court can be persuaded to allow for part of its common property to used so as to increase the space to the required length. However, Mr Douglas was of the opinion that the proposal as it concerns unit 5 “needs more work”.16 He said, and I accept: “I suspect the conversion of the courtyard to [unit 5] is not the appropriate response, and you might find Council would actually instead push you to put that space somewhere in the common property. You might have to lose or modify the shape of the courtyard, but would probably amend that whole working of the back of Cambridge Court so that the vehicle can exit and enter the Paddington Mews driveway in a forward direction. In other words, the manoeuvring would happen on Cambridge Court’s common land. That’s what I expect to happen.”17 [12] A high, timber fence is erected on the boundary between Cambridge Court and the driveway for Paddington Mews. This was described in evidence as an “acoustic fence”, 10 Exhibit 15. 11 Australian Standard AS2890.1 Parking Facilities: Off-street parking. See affidavit of Mr Douglas sworn on 29 July 2015, Exhibit AJD1, par 36. 12 Affidavit of Mr Douglas sworn on 29 July 2015, Exhibit AJD1, par 36. 13 Transcript, 2-115. 14 See photographic exhibits 2.14, 2.15 and 2.18. 15 Affidavit of Mr Douglas sworn on 29 July 2015, Exhibit AJD1, par 39 and par 40. 16 Transcript, 2-115. 17 Ibid. -- 5 of 22 -- 6 presumably because it has some degree of sound-deadening properties, but any such effect must be regarded as being for the benefit of the residents of Cambridge Court rather than the residents of Paddington Mews. The applicant proposes that part of this fence be removed and that a remote-controlled, self-closing, electric gate be erected in that space to allow for the ingress and egress of the vehicles belonging to the residents of units 4 and 5. [13] The driveway along the length of the proposed easement has a predominantly concrete surface, but there are sections of landscaping along most of its border with Cambridge Court.18 These sections include a place for the storage of refuse bins for the residents of Paddington Mews as well as a number of raised garden beds.19 Underneath the surface of the ground, but at a depth that is not defined by the evidence, runs a series of utilities on the driveway side of the same border. These service Paddington Mews and are understood to provide electricity,20 cable television, water, gas and telephone lines.21 There is also said to be underground drainage of some description in this vicinity of the driveway. In the area where the applicant proposes vehicles from units 4 and 5 will traverse, there is a raised garden bed with established plants including a palm tree.22 There is also a power pole in the same garden that is adjacent to the palm tree. The pole is owned by the body corporate of Paddington Mews and serves to transmit electricity from an Energex cable buried beneath the ground, up cabling on the pole and then to Paddington Mews by overhead line. [14] The driveway is relatively level over the area of the proposed easement.23 However, at a point roughly adjacent to the eastern extremity of the easement, there is a steep segment leading to the garages for the Paddington Mews residents.24 The driveway then continues down past each of the garages, but at a reduced gradient. [15] The body corporate for Cambridge Court was not represented at the hearing, and no witness was called from the body corporate to establish its attitude to the applicant’s proposal. Plainly, the approval of the body corporate will be required because, even leaving aside the need to use some of common property to lengthen the proposed car parking space for unit 5, any vehicle travelling to or from any car parks established for unit 4 or 5 will need to traverse an area of the common property between the driveway and those car parks. Much effort was made at the hearing by the respondent to support an argument that the body corporate would be unlikely to agree to any such use. However, I am not persuaded that the applicant’s prospects of obtaining approval from the body corporate are as bleak as the respondent submitted. Five of the 15 units in Cambridge Court are either owned by it or under its effective control and, at a meeting of the body corporate on 11 June 2015, the owners of other units who were present at the meeting agreed that there was merit to the proposal and that they were “happy to work with Mr Smith to come to a resolution which is acceptable to the body corporate 18 The overhead view provided by photographic exhibits 2.11 and 5 best depict the width of the landscaped areas. 19 See photographic exhibits 2.2, 2.3, 2.4, 3.8, 3.9 and 3.10. 20 There is underground electrical cabling to a power pole which is situated adjacent to the boundary of the driveway with Cambridge Court. 21 Affidavit of Mr Wilson sworn on 29 July 2015, par 8(c). 22 See photographic exhibits 2.3, 2.4, 2.7 and 3.8. 23 See photographic exhibit 3.2. 24 See photographic exhibits 2.3, 3.3, 3.4, 3.5 and 3.6. -- 6 of 22 -- 7 as a whole”.25 The point, though, was made that “more consultation was required with” the other owners of units in Cambridge Court.26 I proceed on the assumption that there would be a real chance that body corporate approval for permission to use parts of the common property might be secured, although that will ultimately depend on what precisely is proposed by the applicant. [16] Turning then to that proposal, in broad terms, it may be shortly stated. It is for the grant of the easement marked “B” on the plan, a copy of which is Annexure A to these reasons. But there is more to what is proposed than that. In order to facilitate access to and from Cambridge Court, part of the timber fence will need to be removed and then replaced with an electric gate, the power pole will need to be relocated, the raised garden removed and traffic mirrors installed. These changes to the physical environment that would follow the grant of the easement by the court were the subject of much criticism during the course of the hearing which was articulated through the cross-examination of the applicant’s witnesses, the evidence called by the respondent and in the course of incidental argument. Not all of that criticism was meritorious, but there was substance in the respondent’s complaint to the effect that there was an absence of any specific detail regarding precisely what was proposed with respect to these physical changes. The submission was made that, without the detail of what was proposed in these respects, it was not possible for the respondent to give proper consideration to the overall proposal. [17] Largely it seems in response to this criticism, and just prior to the close of the applicant’s case on the second day of hearing,27 its solicitors communicated to the solicitors for the respondent an offer to settle the proceeding.28 In this regard, it is to be noted that there had been an earlier offer to settle which was made on 9 December 2014,29 but that was when the proceeding was differently constituted – the body corporate for Cambridge Court was then named in the proceeding as the applicant30 – and it related to a more expansive proposal – to facilitate general car parking for six to ten cars on the common property of Cambridge Court at the rear of that property.31 Be that as it may, the offer made on the second day of the hearing was communicated in the form of a proposed draft order of the court. It contains the following essential features: (a) The grant of a statutory right of user over the area marked “Easement B” on the drawings constituting Exhibit 1, a copy of which forms Annexures B and C to these reasons;32 25 Exhibit 7. 26 Ibid. 27 31 July 2015. 28 Exhibit 13. 29 Exhibit 8. 30 The present applicant, 2040 Logan Road Pty Ltd, was substituted as the applicant by order of the court made on 6 May 2015. 31 The proposal was rejected by a counter-offer on behalf of the respondent to walk away from the proceeding with no order as to costs. See affidavit of Murray Wilson sworn on 16 March 2015, Exhibit MW4. 32 This is different in terms to the order sought in the Amended Application, but the area over which the easement is sought is identical. -- 7 of 22 -- 8 (b) An order that the statutory right of user provide “the owners for the time being of” units 4 and 5 with “a right to pass by vehicle at any time of day or night for the purpose of access to their respective courtyards to allow for a single vehicle to be parked in each”; (c) An order that the statutory right of user be subject to the conditions set out in the schedule to a draft form of easement that is in evidence;33 (d) An order that the applicant “install and maintain at its own cost” a traffic mirror or mirrors to allow “vehicles travelling from Paddington Mews towards Fernberg Road to sight whether there are vehicles moving from” units 4 or 5 “and vice versa”; (e) An order that the applicant “install and maintain at its own cost” an “automatically closing electric powered gate on the northern boundary of Easement B, with an opening of not more than 10 metres with a supporting fence or wall of similar length (if required) to be erected on that boundary, with access remote controls to open the gate to be supplied only to the owners” of units 4 and 5; (f) An order that the applicant will, at its own cost, “engage Energex or a qualified contractor to relocate the power pole” to a location which “does not interfere with the movement of vehicles or pedestrians along Easement B” and which “allows all services and/or utilities currently supplied by the power pole and its attachments to continue to be supplied to … Paddington Mews”, with such relocation “to occur with all reasonable efforts made … to ensure minimal disruption to the provision of services/utilities currently delivered by the power pole and its attachments”; (g) To the extent that the above works “disrupt the landscaping in which the power pole is presently located”, an order that the applicant, at its own cost, “ensure that the landscaping is replaced with landscaping of a similar nature, style and size”; (h) An order that the applicant not proceed with the above works “unless and until all necessary Cambridge Court Body Corporate and Brisbane City Council approvals and permissions are obtained by the applicant”; (i) An order that the applicant “not register Easement B … unless and until the approvals and permissions” referred to in the preceding subparagraph have been obtained; (j) An order that the applicant pay compensation in “the sum of $27,000 upon registration of Easement B”; and (k) An order that each party bear their own costs. 33 See affidavit of Mark Smith sworn on 24 November 2014, Exhibit MS6. -- 8 of 22 -- 9 [18] On the following day,34 and prior to the resumption of the hearing, the respondent’s solicitors replied to the offer made on behalf of the applicant to settle the proceeding.35 Among several points, the respondent’s solicitors pointed to the conditional nature of the proposed orders, the absence of any consent from the body corporate for Cambridge Court or the Brisbane City Council, the absence of any evidence as to “the type of gate that would be necessary”, the failure to “ascertain the positioning of the power pole … or the requirements for removing the pole”, the lack of “any proper enquiry as to what services may be affected by the removal of the pole” or “what might be needed in respect of the destruction, removal and placement of the existing landscaping” and the feature that the applicant’s offer was “contingent on” the respondent “foregoing all of its costs”. The letter concluded in these terms: “In the circumstances, given the contingent nature of the easement now sought and the mandatory conditions which are to be attached to same, the absence of any proper expert evidence to identify the number of features which will be compromised by [the respondent] and the approach in respect of costs, [the respondent] is not in a position to accept the proposal”.36 [19] At the conclusion of the evidence later that day, counsel for the parties addressed and, to that end, written submissions prepared by the respective counsel were received by the court. Appended to the submissions prepared for the applicant was a draft order. The submission was made that this draft represented “a specific outline of the current proposal”. That draft is in terms that are substantially identical to the terms of the offer made on behalf of the applicant on the previous day save that the order sought with respect to compensation in the latter draft was in these terms: “The applicant pay to the respondent: a. the sum of $27,000 upon the registration of Easement B; OR b. such compensation as the Court considers appropriate, upon the registration of Easement B.” (Emphasis in original) [20] It is to be observed that the proposed conditions contained in the draft form of easement are pro forma and, probably for that reason, do not align in all respects with what the applicant actually seeks. By way of example, the applicant seeks only vehicular access but the conditions provide for a right of way “with or without vehicles”.37 Further, the applicant seeks a grant limited to the owners for the time being of units 4 and 5, but the conditions would allow those owners to authorise their “servants, agents, visitors, employees, customers, contractors and tenants (and the tenant’s servants, agents, visitors, employees, customers and contractors) to use the easement.38 Of more concern though is that what is proposed in terms of the changes to the physical environment remain largely devoid of any detail. So, too, is it concerning that the potential safety implications for other users of the driveway do not appear to be sufficiently addressed by the proposal. 34 31 July 2015. 35 Exhibit 13. 36 Ibid. 37 Clause 2.1. 38 Clauses 1.1 and 2.2. -- 9 of 22 -- 10 [21] In that regard, the precise location and number of traffic mirrors is not specified and nor has there been any proper on-site assessment of the degree of functionality traffic mirrors might offer. Indeed the evidence of Mr Douglas would rather suggest that even a combination of three traffic mirrors would be of limited benefit, and that must be especially so at night time.39 The dimensions or manner of operation of the electric gate are not detailed in the proposal. No one was called from, for example, a manufacturer or supplier of electric gates to explain how such a gate might operate or, indeed, whether such a gate was suitable to meet the access needs of this particular case. In that regard, it is proposed that the gate would be of a length of up to 10 metres, but nothing is said about the composition of the gate or the remaining portions of the timber fence, and the evidence does not descend to that degree of detail. It seems to me that this was an important matter to be covered by both the proposal and the evidence because such matters would affect the extent to which the driver of a car moving from Cambridge Court could see pedestrians on the driveway and those pedestrians could, in turn, see a moving car.40 In short, both the proposal and the evidence are in an unsatisfactory state as they concern those lines of vision. In a case where the applicant accepts that it will be necessary for cars moving to and from Cambridge Court to engage in a degree of complicated manoeuvring in order to do so, including travel in a rear direction, this question of visibility assumes considerable importance. It is not adequately addressed, let alone satisfactorily answered, by either the applicant’s proposal or the evidence adduced in support of it. [22] So, too, is the proposal deficient so far as it concerns the relocation of the power pole and the potential interference with what lies beneath the raised garden bed in that position. Although, based on the evidence of Mr Robert Smith, I accept that the power pole can be relocated, precisely where it could be relocated and what impact its removal and relocation might have on the underground utilities has not been investigated. For the same reason, nor can the impact on the driveway and its surrounds by the removal and relocation of the power pole be properly estimated. The jurisdiction to grant a statutory right of user [23] Section 180 PLA provides as follows: “(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order. (2) A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable – 39 Transcript, 2-112, 2-124. 40 See the evidence of Mr Douglas on this point: Transcript, 2-112. -- 10 of 22 -- 11 (a) by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and (b) on 1 or more occasions; or (c) until a date certain; or (d) in perpetuity or for some fixed period; as may be specified in the order. (3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that – (a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and (b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and (c) either – (i) the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or (ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation. (4) An order under this section (including an order under this subsection) – (a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and (b) may include such other terms and conditions as may be just; and (c) shall, unless the court otherwise orders, be registered as provided in this section; and (d) may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that – (i) the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or (ii) some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and -- 11 of 22 -- 12 (e) shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not. (5) The court may – (a) direct a survey to be made of any land and a plan of survey to be prepared; and (b) order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and (c) order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and (d) give directions for the conduct of proceedings; and (e) make orders in respect of the costs of any of the preceding matters and of proceedings generally. (6) In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner. (7) In this section – owner includes any person interested whether presently, contingently or otherwise in land. statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land. utility includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility. (8) This section does not bind the Crown.” [24] It will be seen from its terms that s 180 PLA is a remedial provision that offers considerable flexibility to grant a statutory right of user in such terms as may be just. However, the court’s power to do so is not simply there for the asking. It is a power that will only be exercised in favour of an applicant for relief where what is proposed is reasonably necessary in the interests of the effective use in any reasonable manner of the applicant’s land and where the court is satisfied about the existence of each of the preconditions to its exercise specified in s 180(3) PLA. -- 12 of 22 -- 13 [25] Thus, the court is empowered to grant a statutory right of user in the “form of an easement, licence or otherwise”41 where that is “reasonably necessary in the interests of effective use in any reasonable manner of any land”.42 However, the court must not do so unless it is also satisfied, relevantly, about three things: first, that the proposed use of the dominant land is consistent with the public interest, secondly, that the owner of the servient land can be adequately recompensed in money, and thirdly, that the owner of the servient land has unreasonably refused to agree to the imposition of the obligation that is sought to be imposed. [26] I consider each of these matters below. Consideration Is the proposed easement reasonably necessary? [27] Whether the grant of easement proposed by the applicant is reasonably necessary in the interests of the effective use in any reasonable manner of any land falls to be determined in accordance with well-settled principles. These were collected by Douglas J in Lang Parade Pty Ltd v Paluso & Ors43 in a passage recently affirmed by the Court of Appeal44 and are as follows: “(a) One should not interfere readily with the proprietary rights of an owner of land.45 (b) The requirement of ‛reasonably necessary’ does not mean absolute necessity.46 (c) What is ‛reasonably necessary’ is determined objectively.47 (d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree.48 41 PLA s 180(2). 42 PLA s 180(1). 43 [2006] 1 Qd R 42 at [23]. 44 Bradshaw v Griffiths [2016] QCA 20 at [44] per Morrison JA (Fraser and Gotterson JJA agreeing). 45 Re Seaforth Land Sales Pty Ltd’s Land [1976] Qd R 190 at 193 per Douglas J (appeal dismissed: Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317); Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 at 91 per Andrews J; Re Worthston Pty Ltd [1987] 1 Qd R 400 at 402-3 per Carter J; Lynch v White [1987] Q Conv R 54-257 at 57,770 per de Jersey J (Connolly and Carter JJ agreeing); Re Kindervater [1996] ANZ Conv R 331 at 332 per Derrington J. See also Hanny v Lewis (1998) 9 BPR 16,205 at 16,209 per Young J. 46 Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317 at 322 per Hanger CJ; Re Kindervater [1996] ANZ Conv R 331 at 333 per Derrington J; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508 per Hodgson CJ in Equity; Re Hodgskin [1999] Q Conv R 54-535 at 60,386 [18] per Wilson J; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073 at 58,964-5 [19]-[20] per Macready M; Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 124-6 [8]-[11] per Hamilton J. 47 Re Seaforth Land Sales Pty Ltd’s Land [1976] Qd R 190 at 194 per Douglas J; Re Kindervater [1996] ANZ Conv R 331 at 333 per Derrington J. 48 Lynch v White [1987] Q Conv R 54-257 at 57,770 per de Jersey J (Connolly and Carter JJ agreeing); Re Kindervater [1996] ANZ Conv R 331 at 333 per Derrington J; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508-9 per Hodgson CJ in Equity; Re Hodgskin [1999] Q -- 13 of 22 -- 14 (e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.49 (f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user.50 (g) Regard must be had to the implications or consequences on the other land of imposing a right of user.51” [28] The enquiry whether what is proposed is “reasonably necessary in the interests of the effective use in any reasonable manner of any land”52 involves two steps, although they are more often than not taken together. The first is whether the proposed use of the dominant tenement is a use in a reasonable manner of that land and the second is whether that use is reasonably necessary. That said, an applicant for relief does not have to demonstrate that “each and every use (in a reasonable manner) of its land is one for which the obligation of user is reasonably necessary”53 for it is enough if the applicant “can point to a particular use and seek to make its case in relation to it”.54 [29] The applicant’s director, Mr Mark Smith, attempted to address these considerations in the affidavit he swore with respect to the earlier, more expansive proposal brought in the name of the body corporate for Cambridge Court.55 There, he deposed that: “Currently the common property of Cambridge Court in particular the area at the rear thereof which adjoins the common property owned by the respondent cannot be used in any reasonable manner as it can only be accessed by foot and serves no other useful purpose. However if access was granted over the driveway … the common property [of Cambridge Court] could be properly used as a car park to service the requirements of the individual owners of the units in Cambridge Court. Conv R 54-535 at 60,386 [18] per Wilson J; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073 at 58,964 [19]-[20] per Macready M; Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 124-5 [8]-[9] per Hamilton J. 49 Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,308 [42] per Hodgson CJ in Equity; Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 126-7 [12] per Hamilton J. For example, Katakouzinos involved the grant of a temporary easement for the purpose of scaffolding during construction. 50 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508-9 per Hodgson CJ in Equity; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148-9 [14] per Windeyer J; Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073 at 58,964-5 [19]-[20] per Macready M. Cf Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 124-5 [8]-[9] per Hamilton J. 51 Nelson v Calahorra Properties Pty Ltd and Ors [1985] Q Conv R 54-202 at 57,342 per McPherson J (Andrews ACJ and Demack J agreeing); Re Hodgskin [1999] Q Conv R 54-535 at 60,386 [18] per Wilson J. 52 PLA s 180(1). 53 Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 at [15] per McMurdo J. 54 Ibid. 55 It should be noted that the affidavit was nonetheless read in support of the current application. -- 14 of 22 -- 15 Access to the rear of Cambridge Court for car parking purposes will remove vehicles from parking on Fernberg Road which is very busy thus increasing amenity to the surrounding area as well [as] the subject property and increase the value and saleability of units in Cambridge Court and surrounding properties. It [would] also provide access to the rear of Cambridge Court for emergency services such as the fire brigade should there be a fire at the rear of the property.56 [30] Although relating to the earlier proposal to develop a car park for several vehicles on the common property at the rear of Cambridge Court, it may be accepted that the rationale behind this application is much the same, that is to say, to “service the requirements of the individual owners” of the units, to put the courtyards attached to units 4 and 5 to better use, to remove two vehicles from Fernberg Road, to increase the amenity of the area and to add “value and saleability’ to the units. However, when Mr Smith was cross-examined at the hearing, it was suggested to him that there was “no way [to] identify whether it’s proved to be inconvenient, not having a car park … in respect of those units”. In response, Mr Smith said: “I know what residents in the building have told me after they’ve moved in, how dangerous the road is to park on the other side in peak traffic flows and trying to cross.”57 Mr Smith then went on to state that he believed the provision of car parks for units 4 and 5 “would be of benefit to society”.58 [31] Mr Smith’s assertion about the dangers associated with parking on Fernberg Road was not only based on hearsay, it was not supported by any other witness. Moreover, such a proposition was not put to Mr Wilson when he gave evidence, none of the current residents of Cambridge Court (or Paddington Mews for that matter) were called to attest to any such concern and the only expert witness who might have been in a position to speak with some authority about the issue, Mr Douglas, was not asked about it when he gave evidence. It is otherwise an assertion that is confined to parking on the opposite side of Fernberg Road during the peak hour. Although it may be accepted that Fernberg Road carries a high volume of traffic at most times of the day,59 it is quite another thing to assert that the traffic flow at peak times puts residents in danger. It is also to be observed that Mr Smith did not advance any concern about the dangers associated with parking on Fernberg Road in any of his affidavits that were relied on to support the application but, rather, expressed the opinion that the removal of vehicles from parking on that road would increase the amenity of the “surrounding area”. In these circumstances his assertion under cross-examination should be accorded little, if any, weight. [32] Turning then to the first of the two steps I have identified, the proposal to convert the courtyards to units 4 and 5 may appear at first glance to concern a use in a reasonable manner of that land. However, at least as concerns unit 4, I am not satisfied that is so. 56 Affidavit of Mark Smith sworn on 24 November 2014, par 8 and par 9. 57 Transcript, 1-100. 58 Ibid. 59 See affidavit of Mr Bremner sworn on 11 December 2014, Exhibit BG1, page 7. -- 15 of 22 -- 16 For the reasons previously stated,60 it is highly unlikely that approval to convert the courtyard to unit 4 into a car park would be forthcoming from the Brisbane City Council. It is simply too narrow to have any realistic hope of obtaining Council approval for its use as a car park. Accepting that to be so, the proposal can then hardly be regarded as one which involves a use in a reasonable manner of that land. To the extent that the easement is sought to provide a means of ingress and egress for the courtyard to unit 4, it fails for this reason alone. [33] Turning then to the second step – whether the proposed easement is reasonably necessary in the interests of the effective use of the courtyard areas – the need identified by Mr Smith in the affidavit to which I have already made reference was to “service the requirements of the individual owners” of the units, to put the courtyards attached to units 4 and 5 to better use, to remove two vehicles from Fernberg Road, to increase the amenity of the area and to add “value and saleability’ to the units. [34] Even though no evidence was called from any of the current residents of Cambridge Court about a need for off-street car parking, I have little difficulty accepting as a proposition that the provision of car parks as well as access to and from Fernberg Road for the owner and ultimate residents of units 4 and 5 would be both desirable and convenient to them. However, I am not persuaded that the need for such a provision rises to the level of reasonable necessity. As Morrison JA (with whom Fraser and Gotterson JJA agreed) recently said in Bradshaw v Griffiths,61 “mere desirability or preference … does not meet the test” under s 180 PLA.62 [35] I am therefore not satisfied that the imposition of a statutory right of user in the form of the easement sought by the applicant is reasonably necessary in the interests of the effective use of the courtyard to either unit 4 or unit 5. [36] It should be added that, even if I was of the view that the provision of car parks as well as access to and from Fernberg Road was a reasonable necessity from the point of view of the owner or future residents of units 4 and 5, the risk of harm to pedestrians, including children, that is presented by the applicant’s proposal would tell against the grant of an easement in this case.63 Such a risk would be by no means fanciful, as Mr Douglas explained: “[Y]ou’ve got to consider pedestrians in all of this as well. I mean, again, they’re low numbers, but that leads to people not expecting to see them, and if someone steps out of, particularly, the nearest unit [in Paddington Mews] – there’s a pathway that runs around the side that appears from pretty well where that pole is. [You would] want to hope that anyone there, and if they were a child or something – you would be relying on them seeing the reversing vehicle and taking – you know, stopping or moving out of the way.”64 60 At [10]. 61 [2016] QCA 20. 62 Ibid [59]. 63 Discussed at [21]. 64 Transcript, 2-125. -- 16 of 22 -- 17 The public interest [37] Although the submission made on behalf of the applicant that it would be “in the public interest that the residents of Cambridge Court park their vehicles, insofar as it is possible, within the unit complex rather than adding to the demand for parking on Fernberg Rd”65 may be accepted, such a consideration is far outweighed by the safety concerns I have just outlined. I am not persuaded that the public interest favours the grant of the easement. Compensation [38] As a proposition, I am satisfied that the respondent could be adequately recompensed in money for any loss or disadvantage which it may suffer from the imposition of an easement. However, it is quite impossible to properly assess compensation given the lack of appropriate detail about the matters to which I earlier referred.66 Much would depend on how the applicant would propose to address the safety concerns that arise and to what extent the physical environment might be impacted by the need to relocate the power pole. It is therefore unnecessary to resolve the competing approaches to the question of compensation advanced by the parties’ respective valuers, Mr Kogler and Mr Bremner. Was there an unreasonable refusal? [39] As Andrews J held in Ex parte Edward Street Properties Pty Ltd,67 in order to justify the imposition of a statutory right of user, the case in favour of the applicant should be “clear and persuasive”.68 Furthermore, such a case must establish the conditions for the making of an order with an equal degree of clarity. If the applicant does not discharge that burden then “the occasion to include in any such order terms and conditions that are just does not arise”.69 [40] This does not mean that every detail of an applicant’s proposal must be worked out in a final way or that every necessary approval or permission is obtained in advance of the hearing of the application, but it does mean that matters of substance are satisfactorily defined and established by the evidence. If otherwise then the court cannot properly assess the merits of the application, let alone settle on conditions to accompany the grant. The words in s 180(3)(a) PLA, “in the manner proposed”, contemplate that an applicant for relief “will come to court with a particular proposal – to use the land in a 65 Applicant’s Outline of Argument dated 29 July 2015, par 15. 66 At [21] and [22]. 67 [1977] Qd R 86. 68 Ibid 91. 69 Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove Community Title Scheme 37148 [2015] QSC 179 at [132] per Applegarth J. -- 17 of 22 -- 18 particular manner”,70 and that expectation will not be met where, as here, there are substantial gaps in the detail of what is proposed. [41] Furthermore, without appropriate definition in detail of the proposal, an applicant for relief runs the risk that it cannot be established that the respondent has unreasonably refused to accept the imposition of the statutory right of user. That is in fact what happened in this case. The applicant commenced with a proposal that was put in broad terms and, when that proposal was exposed for its generality during the course of the hearing, the applicant was moved to put an amended proposal towards the conclusion of that hearing. That final proposal contained greater detail than had been advanced before but it was still insufficiently clear in its essential detail to permit proper consideration by the respondent or the court. [42] In summary, it is my opinion that the proposal formulated by the applicant on 30 and 31 July 2015 was not sufficiently detailed for the respondent to make a properly informed decision whether to accept or reject it. The respondent’s solicitors were right to respond to the offer made on behalf of the applicant on 30 July 2015 in the terms in which they did; their client was “not in a position to accept the proposal”. To the extent that such a response is to be read as a refusal to agree to accept the imposition of the proposed easement, that refusal was not in all of the circumstances unreasonable. Conclusion [43] It follows that I am not satisfied that the proposed easement is reasonably necessary in the interests of the effective use of the courtyards to units 4 and 5. In the case of unit 4, I am also not satisfied that the use of the courtyard as a car park could be regarded as use in a reasonable manner of that land. [44] I am also not persuaded that the public interest favours the grant of the easement due to the real safety concerns raised by the proposal and the risk of harm that it would create with respect to pedestrians using the easement, and especially children. [45] Although I accept as a proposition that Paddington Mews could be adequately recompensed in money for the grant of the easement, a proper assessment of that compensation cannot be undertaken given the deficiencies in the applicant’s proposal. [46] Lastly, it has not been established to my satisfaction that Paddington Mews has unreasonably refused to agree to the imposition of the easement. Disposition [47] For these reasons, the applicant has failed to demonstrate that this is an appropriate case for the exercise of the discretion conferred by s 180 PLA for the grant of a statutory right of user in favour of the applicant. 70 Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317 at 321 per Hanger CJ. -- 18 of 22 -- 19 [48] The application will accordingly be dismissed. [49] I shall hear the parties on the question of costs. -- 19 of 22 -- 20 “Annexure A” -- 20 of 22 -- 21 “Annexure B” -- 21 of 22 -- 22 “Annexure C” -- 22 of 22 --