Bemco Pty Ltd v Tremayne Holdings [1999] QSC 421

3--Z7/1 Sc 7r.V.2f • •JUSllCE _._-=-- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be :made or sold without the written authority of the Director, State Reporting Bureau. () (\ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J No 9108 of 1999 BEMCO PTY LTD (ACN 010 638 329) and TREMAYNE HOLDINGS (ACN 010 019 904) BRISBANE .. DATE 01/11/99 JUDGMENT ·1111 FIllllr. Tile L:I\V Courts. Gl'urge Sln:el. Brish:llle. Q . .tlH)O 1 REVISED COPfES ISS1£D State Reporting Bureau Oate / / If / Applicant Respondent TcIephllll\:: I1l7) .12.t7 ·UIlIl F:I'c (07) .12.t7 5532 -- 1 of 11 -- 011199 T2/HMH8 M/T 6401/99 (Wilson J) HER HONOUR: This is an application pursuant to section 181 of the Property Law Act 1974 for the extinguishment of an easement. The relevant lands are commercial properties in Gyrnpie Road, Chermside zoned "business" under the Town Plan. The servient tenement is situated at the corner of Gyrnpie Road and Latham Street. It is described as Lot 1 on RP94905 in the county of Stanley parish of Kedron, having an area of 382 square metres (15.1 perches). A two-level office building is constructed on the land. The easement runs along the back of the servient tenement from the Latham Street frontage to the adjoining land which it benefits. The easement has an area of 35.4 square metres (1.4 perches). It is for the purpose of a right of way with or without vehicles to a height of 4.27 metres (14 feet) from ground level. It was granted in July 1957 by the then owner of the servient tenement, the National Bank of Australasia Limited, in favour of one Fisher, his executors, administrators and assigns, the registered proprietor in fee simple of the adjoining dominant tenement. At that time the dominant tenement was described as subdivision 44 of portion 545 being the whole of the land in certificate of title volume 2949 folio 44 containing 17.2 perches (435 square metres). As the result of a re- survey, the dominant tenement is now part of lot 3 on RP228814 which has an area of 5,825 square metres (230.33 perches) . 2 JUDGMENT 10 20 o 50 60 -- 2 of 11 -- ( o , ./ 011199 T2/HMH8 M/T 6401/99 (Wilson J) A commercial complex known as "Chermside Gardens" has been 1. constructed on lot 3. It has frontages to Gympie Road and Sparkes Street. It would also have access to Latham Street behind the servient tenement were it not for an access restriction strip held by the Brisbane City Council. I 10 refer to the plan which is Exhibit 1 in this application. The precise dates of the amalgamation of the lands and the construction of Chermside Gardens are not in evidence. I infer from the town planning documents, which are exhibited 20 to the affidavit of Mr Samut filed by leave on 21 October 1999, that the amalgamation took place in approximately 1986, that the construction of the complex took place in approximately 1989 and that it was extended in approximately 1993. Mr Ruddle has deposed to being familiar with the servient tenement from 1989. He worked in the building there for 12 months in 1989 and since 1990 he has been the estate agent responsible for managing the servient tenement on behalf of its owners. He has deposed that from the time he became closely involved with the property (1989) until three years ago (1996) the easement was not used because of the , presence of a brick wall along the boundary of the servient and dominant tenements sealing off the access gr~nted by the easement. During that time the servient tenement effectively had space .,f) 30 2(: 40 50 for the parking of six vehicles plus another in the garage. 1\( 60 3 JUDGMENT -- 3 of 11 -- 011199 T2/HMH8 M/T 6401/99 (Wilson J) with the re-opening of the easement that car parking was reduced to four vehicles plus one in the garage. Since its re-opening the easement has been used by vehicular traffic. There was some difference in the evidence as to the amount of such traffic and whether use of what is, in effect, a 10 single lane for two-way traffic is dangerous. The Chermside Gardens complex includes a large open air car park. Most of the vehicles access/exit the car park via Sparkes Street. By comparison, the use of the easement has 20 not been substantial. There was evidence that if the easement were extinguished it might be possible to increase C) the number of parking spaces on the amalgamated site by at least two. 1 ,-) 30 The applicant·s counsel described lithe fact of the in the case. He submitted that in practical terms the oamalgamation and what flows from it ll as the critical issue easement is now being used for the benefit of the whole amalgamated site, not just the dominant tenement. When a dominant tenement is amalgamated with other land an easement continues to benefit only that part of the amalgamated land which was the former dominant tenement: A' .)0 Re: Eddowes [1991] 2 Queensland Reports 381 at 383 per Ambrose J. Intensification of the use of an easement, if excessive, may be restrained because it exceeds the terms of the grant or because it constitutes a nuisance: Harris v. 4 JUDGMENT 50 4() 60 -- 4 of 11 -- ( o ( ~ \ .. ~/ 011199 T2/HMH8 M/T 6401/99 (Wilson J) Flower (1904) 74 Law Journal Chancery 127, 91 Law Times 816, National Trust v. White [1987] 1 Weekly Law Reports 907. The Chermside Gardens complex has been constructed partly on what used to be Fisher's land,the dominant tenement, and partly on other parts of the amalgamated site. Similarly, car parking is now available on both. It could not be said that in so far as the easement is used to gain access to part of the amalgamated site other than the dominant tenement, such access is necessarily ancillary to the enjoyment of the dominant tenement, unlike the situation in National Trust v. White. So far as relevant, section 181 of the Property Law Act provides: (1) "Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied - (a) that because of change in the user of any land having the benefit of the easement or restriction, or in the character of the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed obsolete; or (b) that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either - (i) does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or (ii) is contrary to the public interest; 5 JUDGMENT 10 20 20 40 3J 50 40 60 -- 5 of 11 -- 011199 T2/HMH8 M/T 6401/99 (Wilson J) (c) and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification; or _____ ; or (d) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the 10 restriction. (2) In determining whether a case is one falling within subsection (1) (a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance." In so far as he submitted that the easement "ought to be deemed obsolete", the applicant's counsel relied on change in user of the dominant tenement, change in the character of the neighbourhood and other circumstances as together providing sufficient justification. He submitted that it was not necessary to establish disuse of the easement before it ought to be deemed obsolete. He submitted that it was sufficient that its purpose could no longer be achieved and that it was not relevant to circumstances presently obtaining. By subsection (2) the Court is directed to take into account the period at which, and the context in which the easement .:as granted and any other material circumstance. In Re: ~01..1well. Australia Proprietary Limited (1999) Queensland 6 JUDGMENT 20 o 2G 400 30 50 40 60 -- 6 of 11 -- :0 011199 T2/HMH8 M/T 6401/99 (Wilson J) Conveyancing Reports 44,521, de Jersey CJ considered whether an easement which had not been used for many years ought to be deemed obsolete. At paragraph 11 His Honour said: "The ordinary meaning of 'obsolete' is disused, discarded, antiquated or, as put in some cases, 'no longer relevant to the circumstances presently obtaining' (Re: Eddowes [1991] 2 Queensland Reports 381, 391.) This easement has certainly been unused for a very long time but it has not yet been 'discarded' or abandoned. Such a view would be inconsistent with [the respondent's] wish to retain the benefit of it, perhaps enhancing some further possible development of her own land. It could, therefore, still be quite 'relevant'. I accept the views that the potential use of the easement prevents a conclusion that it is obsolete in terms of paragraph (a}." The present case is not one of disuse. There has been a change in the user of a dominant tenement from its use as a discrete block to use as part of an amalgamated site. It was submitted by the applicant that there had been a change in the character of the neighbourhood from one containing a number of individual shops, offices, et cetera to a modern aggregation in the Chermside Gardens Business Complex. Although the evidence does not establish the use to which the various parcels were put at the time the easement was granted, I accept that the fact of amalgamation and the construction of the Chermside Gardens Complex are redolent 10 20 20 40 of some change from the previous position characterised by 30 50 discrete parcels of land. While "obsolete" can mean no longer relevant to circumstances presently obtaining, I consider that the 60 7 JUDGMENT -- 7 of 11 -- 011199 T3/MLM22 M/T 6401/99 (Wilson J) present use of the easement prevents a conclusion that it is obsolete. Under paragraph (b) of subsection (1) the applicant must establish three things - one, that the continued existence 10 of the easement would impede some reasonable user of the servient tenement and two, that it does not secure to persons entitled to its benefit any practical benefits of substantial value, utility or advantage or that it is contrary to the public interest, and three, that money would 20 be adequate compensation for loss occasioned by its extinguishment. It has been held that the word 1I0rll which precedes the clause beginning IIthat the easement or restriction in impeding that userll should be read as lIand ll . See Ex parte Melvin [1980] Queensland Reports, 390 at 392; Ex parte Proprietors IIAveril Courtll Building Units Plan 2001 [1983] 1 Queensland Reports, 66 at 70. Oi It was not suggested that the use of the servient tenement for office accommodation and associated car parking is other than a reasonable user. The applicant submitted that the benefits which the easement bestows on those entitled to it have a value in the sense of convenience only and that there would be no loss if the easement were not there. Indeed, 30 50 there could be an increase in the respondent's car parking spaces by at least two. The respondent submitted that the very fact that the easement is used indicates that there are practical benefits 60 8 JUDGMENT -- 8 of 11 -- ( \ 011199 T3/MLM22 M/T 6401/99 (Wilson J) of substantial value, utility or advantage. However, this must be seen in the context of the principal access to Chermside Gardens being from Sparkes Street. The respondent's counsel drew my attention to the Chermside 10 Regional Business Development Control Plan, paragraph 3.3.3.2 as a statement of planning intent encouraging developments which rationalise vehicle access points by way of shared driveways. He also drew my attention to the existence of the access restriction strip which prevents the 20 amalgamated site from having access to Latham Street. The Brisbane City Council holds this in fee simple on trust for town planning purposes: Mareen Development pty Ltd and Brisbane City Council [1972] Queensland Reports, 203. If the respondent wanted access to Latham Street it would have to persuade the Brisbane City Council to dedicate part of that strip is a road. The Council might take into account the statement of planning intent encouraging shared access between developments and by implication avoiding a mUltiplicity of accesses. In my view this argument is quite speculative. In any event, if the easement were extinguished, it would no longer be a factor which the Council could take into account. In short, I accept the easement affords some practical benefit to the respondent but I am not satisfied that the benefit is one of substantial value, utility or advantage. 9 JUDGMENT 30 50 4~ 60 -- 9 of 11 -- 011199 T3/MLM22 M/T 6401/99 (Wilson J) The applicant submitted also that in impeding the reasonable user of the servient tenement the easement is contrary to the public interest. Its counsel submitted that it is not in the public interest that a landowner not be permitted to use his or her land to its full potential where there is no 10 concomitant benefit otherwise. The respondent's counsel submitted that having regard to the provision of the Development Control Plan encouraging shared access, it could not be said that the continued existence of 20 the easement is contrary to the public interest. However, in my view the encouragemeht of shared driveways is not a factor of much weight in all the circumstances. If it were necessary I would be prepared to hold that in impeding user of the servient tenement the continued existence of the easement is contrary to the public interest. Further I am satisfied that money would be adequate compensation for the loss which the respondent would suffer from the extinguishment of the easement. Thus I am satisfied that the requirements of paragraph (b) of subsection (1) have been made out. The applicant relied also on paragraph (d) - that the proposed extinguishment would not substantially injure the persons entitled to the easement. On the facts of this case the relevant considerations overlap with those under 10 JUDGMENT :0 30 ",r', o 50 -- 10 of 11 -- 011199 T3/MLM22 M/T 6401/99 (Wilson J) paragraph (b). I am satisfied that paragraph (d) is also made out. In all the circumstances it is appropriate that there be an order for extinguishment. However, compensation is still to be assessed. I propose adjourning the matter to a date to be fixed. In the meantime it may be possible for the parties to agree on the amount of compensation, perhaps with the assistance of a mediator, and upon the appropriate terms of the order to be made. ( ( I shall reserve costs at this stage but I intimate that, given the nature of the relief sought, I would not be inclined to make an order for costs against the respondent. o 11 JUDGMENT 10 20 ~ 40 50 60 -- 11 of 11 --