Lowe v Kladis

1. [1]

   MEAGHER JA: I agree with Sackville AJA.

2. [2]

   WHITE JA: I agree with Sackville AJA. As Sackville AJA says, it is sufficient for the disposal of the appeal to conclude that the proposed development would substantially interfere with the appellants’ rights as owners of the dominant tenements having a right of carriageway over strip 1 from the respective western boundaries of their properties to Musgrave Street and that the proposed development would unreasonably interfere with the rights of the proprietor of no. 28 to use strip 2, being her own land, in a way that would deny her the right to use that land even as a pathway.

3. [3]

   It is not necessary to address whether construction of the proposed roadway would so unreasonably interfere with the owner of no. 28’s use and enjoyment of the whole of no. 28 that it might not have been authorised by the terms of the easement over strip 2, nor the primary judge’s finding that it was not part of the court’s function to consider the effect of the proposed roadway on the amenity of the appellants’ properties.

4. [4]

   SACKVILLE AJA: This is a neighbourhood dispute writ large. The appellants challenge orders made by a Judge sitting in the Equity Division (Beech-Jones J) requiring them to consent to the lodgement of a development application by the respondent (Mr Kladis). [1] The proposed development relates to the construction of an elevated driveway partly on Mr Kladis’ own land and partly on land over which Mr Kladis’ land has the benefit of a right of carriageway. Mr Kladis says the construction of an elevated driveway is the only means of obtaining vehicular access from the nearest street to his land since part of the existing carriageway is too steep for a conventional driveway. The appellants contend, among other things, that the proposed elevated driveway interferes unjustifiably with their property rights and that the primary Judge erred in requiring them to consent to the development application.

5. [5]

   The location of the various lots and the strips of land over which rights of carriageway exist appear on a diagram reproduced by the primary Judge, although not to scale. With minor alterations the diagram is reproduced below:

6. [6]

   As finally formulated, the proposed elevated driveway is to be constructed:

Background

1. [7]

   Mr Kladis is the registered proprietor of No 26, a waterfront property. No 26 is adjacent to Mosman Bay. Ms Lowe is the proprietor of No 28, which is adjacent to No 26 on the latter’s eastern side. SP 30459 is the proprietor of the common property in the strata plan for No 30. No 30 is adjacent to No 28 on the latter’s eastern boundary and comprises two strata units.

2. [8]

   Mr Conen, who is not a party to the proceedings, is the proprietor of all seven lots in SP 30460, known as 34 Musgrave Street Mosman (No 34). Mr Conen is also the proprietor of one of the two strata units on No 30. The Court was informed from the bar table that the proprietor of the other strata unit is Mr Conen’s sister. The eastern boundary of No 34 abuts Musgrave Street.

3. [9]

   The properties depicted on the plan above were originally part of a lot which ran from Musgrave Street to the seawall at Mosman Bay. In 1928 the lot was subdivided into two parcels, Lot A and Lot B. Lot A corresponded to what is now No 34. Lot B comprised the remainder of the original lot. On 21 June 1940, Lot B was subdivided into the three lots now known as Nos 26, 28 and 30. The plan of subdivision of Lot B (being DP 32915) referred to intended rights of way to be created over the site of various coloured strips identified on the plan. However, it seems that the rights of way were not registered on the titles to the various lots until about 1965.

4. [10]

   No 26 is a battleaxe block created by the 1940 subdivision. The rectangular block on which the residence on No 26 is constructed is a considerable distance from Musgrave Street. The rectangular block is connected to Musgrave Street by a narrow strip of land which also forms part of the title to No 26. The narrow strip (referred to in the proceedings and on the diagram as Strip 1) proceeds from the eastern boundary of No 26 in an easterly direction until it reaches Musgrave Street. The route of Strip 1 takes it past the rear boundaries of the three lots located between No 26 and Musgrave Street, namely Nos 28, 30 and 34. Nos 28 and 30, like No 26, are battleaxe blocks created by the 1940 subdivision. Since the eastern boundary of No 34 is on Musgrave Street the proprietor of No 34 has direct access to the street.

5. [11]

   No 26 enjoys a right of carriageway over a second narrow strip of land that is adjacent to Strip 1 to the north (referred to in the proceedings and in the diagram as Strip 2). Strip 2 commences at the eastern boundary of No 26 and, like Strip 1, proceeds in an easterly direction to Musgrave Street. Strip 2 forms part of the title to No 28 and links the house block on No 28 to Musgrave Street.

6. [12]

   No 30 has the benefit of a right of carriageway over Strips 1 and 2. This easement has enabled the proprietors of No 30 (or their predecessors in title) to have the benefit of a pebblecrete driveway over portions of Strips 1 and 2. The driveway commences at Musgrave Street and continues for approximately 30 metres in a westerly direction to a point a little beyond the common boundary (running north-south) dividing Nos 30 and 34. The termination of the pebblecrete driveway is marked “X” on the diagram. The proprietors of No 30 (and No 34) therefore have access via the pebblecrete driveway to their respective garages located at or near the southern boundary of each lot.

7. [13]

   These title arrangements, settled many years ago, create a problem for Mr Kladis as the proprietor of No 26. From the end of the existing pebblecrete driveway, the land comprised in Strips 1 and 2 is essentially a steep winding track, incorporating stairs, which leads down the slope to the house block on No 26. The topography makes it impossible under current conditions for Mr Kladis to have vehicular access to No 26. This is the case notwithstanding that the title to No 26 includes Strip 1 and the benefit of a right of carriageway over Strip 2.

8. [14]

   Even though No 28 has no vehicular access via Strips 1 and 2 to the house on No 28, it does not have the same access problem as No 26. This is because the original lot created in the 1940 subdivision (Lot 2 in DP 32915) has since been consolidated with another lot to the north. The consolidated lot gives No 28 vehicular access to and from McLeod Street, which runs roughly at a right angle to Musgrave Street. The consolidation of the titles explains why No 28 is also known as 8C McLeod Street Mosman. (The diagram does not give a clear sense of the dimensions of No 28.)

9. [15]

   Mr Kladis’ solution to the problem of vehicular access (or lack thereof) is to construct a very substantial ramped concrete driveway, commencing close to where the existing pebblecrete driveway terminates. The primary Judge found that Mr Kladis’ proposal would extend the existing common driveway by 39 metres so as to allow vehicular access between Musgrave Street and an open parking area on the No 26 house block. [2]

10. [16]

    The primary Judge explained Mr Kladis’ proposal as follows: [3]

The proceedings

1. [17]

   Mr Kladis commenced proceedings in the Equity Division on 3 November 2014. By a Second Further Amended Summons filed on 24 August 2015 (Summons), Mr Kladis sought orders that the appellants consent for the purposes of cl 49(1)(b) of the Environmental and Planning Assessment Regulation 2000 (NSW) (EPA Regulation) to the lodgement of a development application on his behalf incorporating plans for the construction of the ramped driveway. Clause 49(1) of the EPA Regulation provides that a development application may be made (a) by the owner of the land to which the development application relates, or (b) by any other person with the consent in writing of the owner of the land.

2. [18]

   The primary Judge delivered the Primary Judgment on 16 December 2016. His Honour concluded that Mr KIadis was entitled to relief against Ms Lowe, but not against SP 30459. However, the primary Judge considered that any relief in favour of Mr Kladis should be subject to a condition removing an aspect of the development application which provided for certain regrading work to be carried out on an area of about 2m2 on No 30. His Honour contemplated that although SP 30459 could not be compelled to consent to work on No 30, it could request Mr Kladis to perform that work. If SP 30459 made such a request Mr Kladis would have to undertake that the work would be carried out. The primary Judge also required Mr Kladis to undertake to provide an access door from each of Nos 28 and 24 to enable pedestrian access to the elevated driveway if the proprietors of Nos 28 and 24 so requested. His Honour directed the parties to formulate orders giving effect to the Primary Judgment.

3. [19]

   A hearing was held on 17 February 2017 to consider competing versions of the proposed orders. In Judgment 2, delivered on 17 March 2017, the primary Judge rejected Mr Kladis’ proposed orders. His Honour directed Mr Kladis to file and serve further orders giving effect to the reasons for judgment.

4. [20]

   Mr Kladis duly filed a second set of proposed orders incorporating a development application exhibited to an affidavit sworn by Mr Spiro Kladis (Mr Kladis’ son). A hearing was held on 16 June 2017 to consider the proposed orders. In Judgment 3, delivered on 23 June 2017, his Honour rejected the appellants’ objections to the proposed orders. His Honour then made the following orders:

5. [21]

   In Judgment 4, delivered on 19 September 2017, his Honour ordered the appellants to pay one third of Mr Kladis’ costs of the proceedings.

The Development Application

1. [22]

   At the hearing of the appeal the Court requested information as to the status of the development application lodged by the respondent in connection with the construction of the elevated driveway. The parties subsequently provided the following information:

2. [23]

   Shortly after the hearing in this Court concluded, the respondent filed an “Irrevocable Undertaking” in which he undertakes to the Court that in the event the appeal to this Court succeeds he will:

Access rights

1. [24]

   I shall refer shortly to the mutual easements existing over the four properties depicted on the diagram. For the sake of completeness the following explanation of access rights repeats some matters already noted:

2. [25]

   The primary Judge found that a series of “rights of carriageway” and “rights of way” were created in 1963 and 1964 over the lots on the plan reproduced above. In fact it appears that the rights were registered in 1965 although nothing turns on this. The relevant interests are as follows:

3. [26]

   The primary Judge found that No 28 acquired a right of carriageway over both Strips A and E, each being within the title to No 30. His Honour attributed the creation of the right of carriageway to a transfer of the fee simple estate in No 28 dated 8 October 1963 (Transfer J477955). Although it is not clear from the material in the Blue Book, (which is not always legible), Transfer J477955 may well have been intended to have that effect. However, Mr Tomasetti SC, who appeared with Ms Hemmings and Ms Hammond for the appellants, challenged his Honour’s finding on the ground that the registered title to No 28 does not record a right of carriageway over Strip A.

4. [27]

   The registered title to No 28 shows that No 28 has a right of carriageway “affecting the land designated (E) in Lot 1 … in DP 32915”. Strip E is within the title to No 30. The register does not expressly refer to a right of carriageway over Strip A, but on one interpretation of DP 32915 the designation “(E)” is intended to encompass both Strips A and E.

5. [28]

   The documentary evidence, in the absence of further explanation, leaves the true position uncertain. The uncertainty was not resolved by the parties’ submissions. Neither party submitted that the precise extent of No 28’s rights of carriageway should be determined by reference to s 42(1)(a1) of the Real Property Act 1900 (NSW) (RP Act), which provides that the title of the registered proprietor of land is free from all unregistered estates or interests except (relevantly) “in the case of the omission or misdescription of an easement … validly created [after the land was brought under the provision of the Act]”.

6. [29]

   In this rather unsatisfactory state of the evidence and submissions, I am not prepared to say that his Honour’s finding was wrong. I therefore proceed on the basis that No 28 enjoys the benefit of a right of carriageway over both Strips A and E.

Legislation

1. [30]

   All of the transfers creating easements use the expression “right of Carriageway” except for No 24’s “Right of Way” over Strip 1. Section 181A(1) of the Conveyancing Act 1919 (NSW) (Conveyancing Act) provides that in an instrument purporting to create a right-of-way, the expression “right of carriage way” has the same effect as if there had been inserted in lieu thereof the words in Part 1 of Schedule 8. Schedule 8 to the Conveyancing Act relevantly provides as follows:

The Judgments

1. [31]

   The primary Judge explained the topography between the end of the current driveway and No 26 as follows: [6]

2. [32]

   The primary Judge continued as follows: [8]

3. [33]

   His Honour continued: [9]

4. [34]

   The primary Judge recorded that Mr Kladis had offered to build gates to enable the proprietors of No 24 and 28 to gain vehicular or pedestrian access to the elevated driveway. Mr Kladis had also offered to construct a stairway under the ramp and partly on No 28’s existing right of way over No 30 so as to provide No 28 and No 24 additional pedestrian access to the street. [10]

5. [35]

   His Honour found that the plans proposed by Mr Kladis required the use of a 2m2 section of Strip A on No 30 as a parking bay. According to Mr Kladis, this had been included in the plans for the benefit of No 30 and 34, to ensure that there was no gap between their current turning area and the new elevated driveway. [11] However, his Honour accepted that the proposed use of this section of land over which No 26 had no rights would constitute an actionable trespass. [12]

6. [36]

   Mr Kladis had submitted that if necessary this aspect of the plans could simply be deleted. The appellants’ response was that if the passing bay was not constructed, it would be impractical for the vehicles leaving the garages on Nos 30 and 34 to manoeuvre. His Honour’s approach to the apparent impasse was as follows: [13]

7. [37]

   His Honour concluded that Mr Kladis was entitled to relief against Ms Lowe, conditional on Mr Kladis giving undertakings relating to:

8. [38]

   The primary Judge next addressed a submission by the appellants that the proposed works would derogate from the rights over Strips 1 and 2 enjoyed by the appellants and the proprietors of No 24 (even though the latter were not parties to the proceedings). The submission was based on the contention that the owners of No 28 and 30 could not be compelled to approve a development application that unreasonably interferes with the owners’ rights. [17]

9. [39]

   The primary Judge summarised the effects of the proposed works as follows: [18]

10. [40]

    His Honour found that these were “not insubstantial affectations” even if Nos 24 and 28 accepted Mr Kladis’ offer to construct gates providing access to the proposed driveway. Nonetheless his Honour was not satisfied that the proposed use of the easement of carriageway was unreasonable: [19]

11. [41]

    The primary Judge rejected the appellants’ contention that the effect of the proposed works would be to deny Nos 24 and 28 the opportunity in the future to build equivalent work for the benefit of their own properties. In his Honour’s view, it was unlikely that No 24 or 28 would ever require such access. In any event, if they ever did so it would be open to them to prepare their own development application for works providing such access. [20]

12. [42]

    At the outset of Judgment 2, the primary Judge stated that it was not part of the Court’s function to consider the effect of the proposed driveway on the amenity of the appellants’ properties. Nor was it the Court’s function to assess whether any of the parties was acting unreasonably. The sole question was whether the respective proprietary interests of the parties warranted the grant of relief to Mr Kladis and, if so, the form of that relief. [21]

13. [43]

    The primary Judge identified the principal difficulty with the short minutes proposed by Mr Kladis as their failure to identify a specific form of development application that the appellants were required to execute. [22] Among other things, the short minutes contemplated that the proposed development application might be modified to extend the driveway over Strip E. The Primary Judgment had not granted relief against SP 30459 because its only relevant interest was in the 2m2 strip on No 30. This small area was not to be affected by the development application unless SP 30459 requested Mr Kladis to perform the work. If works were to be performed on Strip E, further issues would arise. [23]

14. [44]

    A further difficulty was that the Primary Judgment envisaged that the undertakings required of Mr Kladis would enable the affected owners to elect after the development application had been approved but before any works commenced. The development application would then have to be amended. Mr Kladis’ proposed short minutes required the election to be made before the development application was lodged. [24]

15. [45]

    The primary Judge recorded that the appellants had withdrawn their submission that the proposed driveway unreasonably interfered with No 24’s rights of carriageway over Strips 1 and 2. The appellants accepted that there was therefore no utility in Mr Kladis providing an undertaking since the proprietors of No 24 were not parties to the proceedings and their right to sue for any potential nuisance was unaffected. [25] His Honour agreed that there was now no need for the undertaking. [26]

16. [46]

    The primary Judge acknowledged that in the Primary Judgment he had overlooked a submission by the appellants that the proposed works would restrict the ability of the occupiers of No 30 to move from the higher part of the common area at the south-east section of No 30 to the lower part at the south-west section. [27] In order to address this submission his Honour explained the layout of No 30: [28]

17. [47]

    Access between the two sections of No 30 was via a stairway on the steeply sloping land that was partly on Strips 1 and 2 but veered off onto Strip A. The proposed driveway did not facilitate access between the two sections of No 30 because it was elevated from ground level at the point where it was adjacent to the south-western corner of No 30. [29]

18. [48]

    His Honour approached this issue as follows: [30]

19. [49]

    The result was that in order to obtain relief Mr Kladis would have to prepare and serve a revised development application. Any revised development application was to relate only to so much of Strips 1, 2 and E that were to be affected by the proposed driveway. [31] The revised development application was to include provision for so much of the access to the driveway for No 28 that was to be built within Strip 2. Other issues were for Mr Kladis to consider. [32] The primary Judge directed Mr Kladis to file and serve proposed orders necessary to give effect to Judgment 2.

20. [50]

    Judgment 3 addressed the revised set of orders and a revised development application prepared by Mr Kladis. The primary Judge summarised the revisions to the development application as follows: [33]

21. [51]

    The primary Judge noted that Mr Kladis had proffered undertakings: [34]

22. [52]

    The primary Judge observed that a number of objections made to the proposed orders and development application attempted to relitigate matters resolved in the Primary Judgment and Judgment 2. [35] Contrary to the appellants’ submissions, they were not compelled to consent to a development application that involved works on parts of their land over which Mr Kladis had no rights. The works could only take place if the appellants elected to have them included in the development application. [36]

23. [53]

    His Honour rejected all other objections to the revised development application and indicated that, subject to minor amendments he would make the orders sought by Mr Kladis. [37] The orders have been set out earlier. [38]

An observation on the evidence

1. [54]

   Much of the argument in this Court was taken up with counsel endeavouring to explain, by reference to various plans and photographs scattered throughout the appeal books, the effect the proposed construction of the elevated driveway would have on the rights of the proprietors of Nos 28, 30, 34 and 24. This exercise was made considerably more difficult than it should have been because the evidence was incomplete and was not presented in a form that was easy to follow. The Court was not taken, for example, to any report that explained the impact of the proposed elevated driveway on the ability of the proprietors of each lot to gain access to Strips 1 and 2 at current ground level. Nor was the Court taken to any report that explained precisely what each set of owners and occupiers would have to do in order to gain access to the elevated roadway if it were constructed. Consequently, senior counsel on each side attempted, with varying degrees of precision and apparent accuracy, to explain the topography of the land, the location of structures and vegetation on each lot including existing gates or doorways, the position of the proposed elevated driveway in relation to existing boundaries and structures and the means by which the proprietors of the various lots could gain access to the elevated driveway once it was constructed.

2. [55]

   The difficulty can be illustrated by the response to the Court’s queries concerning the distance between the northern side of the proposed elevated driveway and (a) the southern boundary of No 28 and (b) the existing structures on No 28. The Court was taken to a plan designated “Long Section (Looking North)” which is part of the development application to which appellants were required to consent. The plan represents the proposed works, starting at a point near the boundary between Nos 34 and 30 and finishing at No 26, by reference to elevations and existing structures on Nos 28 and 30. The plan is reproduced below:

3. [56]

   The plan shows, among other things, that the proposed driveway (including the balustrades) proceeds from east to west on a falling gradient from east to west near the southern boundary of No 28. The plan also shows the location of a “new pedestrian access gate” at a point where the driveway descends below the level of the existing house on No 28.

4. [57]

   When Mr Grieve QC, who appeared for Mr Kladis, was asked how far the northern edge of the driveway was from the southern boundary of No 28 and from the southern façade of the house on No 28, he suggested that the ramp was 3.66 metres from what he described as a retaining wall on No 28. Although it does not appear from the plan or any other document to which the Court was taken, Mr Grieve suggested that there were two retaining walls on No 28. The more westerly wall was said to be at a lower level and was more or less on the boundary of No 28, while the more easterly wall was higher (reflecting the upwards slope of the land to the east) but was set back 3.66 metres from the boundary. Mr Grieve deduced these conclusions from another plan which contained a reference to a distance of 3.66 metres. Scrutiny of the second plan to which Mr Grieve referred the Court suggests that the recorded distance of 3.66 metres refers to the distance between the northern edge of the ramp and the southern edge of a balcony on No 28. It would seem therefore that Mr Grieve misinterpreted the second plan and that the distance between the more easterly retaining wall (if it indeed continues as far as Mr Grieve suggested) is not necessarily 3.66 metres.

5. [58]

   Mr Grieve was also asked how the occupiers of No 28 would gain access to the proposed gate. He said that it would be a simple matter of descending from the house to what is apparently a landscaped area in the south-western section of No 28. The occupiers would proceed towards what seems to be vegetation growing above the more westerly (lower) wall and then walk along what Mr Grieve described as the 3.66 metre gap between the southern boundary of No 28 and the more easterly retaining wall to the proposed gate. Neither party referred the Court to evidence supporting or refuting this hypothesis. It is possible that the hypothesis is correct but it cannot be verified from the material to which the Court was taken in submissions.

6. [59]

   This is a case which is said to depend, to a large extent, on the impact of the proposed elevated driveway to be constructed over Strips 1 and 2 on the rights over the proprietors of the various lots affected by the development. These include the owner of the servient tenement (No 28 of which Strip 2 is part) and the owners of lots entitled to the benefit of concurrent easements over the land on which the development is to take place (Nos 24 and 30 which have the benefit of easements of carriageway over Strips 1 and 2 and No 28 which has a right of carriageway over Strip 1). In a case such as this it would have been helpful, to say the least, had the parties jointly prepared, if not a computer-generated model of the proposed development (including the access gates), then at least a report explaining the physical consequences of the proposed development on the affected lots.

Submissions

1. [60]

   Mr Tomasetti did not dispute that the primary Judge correctly stated the relevant legal principles. He submitted, however, that his Honour fell into error in applying the principles to the facts. Although the submissions were put in a variety of ways, Mr Tomasetti put three principal arguments.

2. [61]

   First, the primary Judge had accepted that the proposed elevated driveway substantially interfered with the appellants’ proprietary rights. Yet his Honour considered that the interference could be ameliorated by moulding relief in a manner that provided for the appellants to “elect” to permit work on their own land over which Mr Kladis had no rights. According to Mr Tomasetti, the primary Judge was faced with a binary choice: either to approve the proposed development application or dismiss the Summons. His Honour was not entitled to conclude that if the appellants declined to permit works on their own land, any adverse impact on their rights would be a consequence of their own acts.

3. [62]

   Secondly, the primary Judge erred by imposing conditions that gave the appellants no choice but to “elect” to permit the works on their land. Effectively they were required to agree to Mr Kladis using No 30 to rebuild the driveway transition near the existing garages on Nos 30 and 34 and to construct a stairway on No 30 to give access to common property and utility services on the lower south-western section of the property. If the appellants did not make the election proposed to them, they would suffer a loss of rights they currently enjoyed over Strips 1 and 2.

4. [63]

   Thirdly, the primary Judge erred in failing to conclude that the effects of proposed works on their proprietary rights were so unreasonable as to require dismissal of the Summons. Mr Tomasetti submitted that the proposed elevated driveway, among other things, denied the appellants access to their own land; impaired or prevented egress from the existing garage on No 30; provided only unsafe pedestrian access from No 28 to Musgrave Street by means of a small gate in the balustrade onto the steep ramp; created a void under the new ramp; and prevented access from the upper part of No 30 to the lower part unless SP 30459 agreed to the construction of a stairway on Strip A.

5. [64]

   The primary Judge reasoned that to dismiss the Summons would be effectively to deny Mr Kladis the right to build a driveway on Strip 1. But, so Mr Tomasetti contended, Mr Kladis had no such right because his interest in Strip 1 was burdened by the easements of carriageway in favour of Nos 24, 28, 30 and 34. The concept of reasonable use applied both to the servient and dominant owners and the proposed works prevented the reasonable exercise of the rights of the appellants.

6. [65]

   Mr Grieve characterised the primary Judge’s decision as discretionary. Accordingly, so he argued, this Court should interfere only if the appellants could show that the primary Judge committed an error of the kind identified in House v The King. [39] Mr Grieve submitted that no such error had been shown. His Honour had applied the correct legal principles and made a judgment as to whether the proposed elevated driveway unreasonably interfered with the rights of the appellants.

7. [66]

   Mr Grieve contended that in any event the undertakings proffered by Mr Kladis would ensure that the appellants’ rights of pedestrian access to their lots would not be adversely affected. For example, the offer to construct a staircase as specified in par (d) of the orders made by the primary Judge would provide No 30 with access to the lower portion of the lot. While the proposal required work to be done on land over which Mr Kladis had no rights, the primary Judge’s approach struck a “practical and reasonable balance between the respective rights” of Mr Kladis and the appellants. This was particularly the case given that the occupiers of No 28 had alternative access to a public street and, in any case, cannot secure vehicular access from Musgrave Street because of the steep terrain to the west of the pebblecrete driveway.

8. [67]

   Mr Grieve summarised Mr Kladis’ contentions in oral argument as follows:

Should the proprietors of Nos 24 and 34 have been joined as parties?

1. [68]

   As has been noted, neither the proprietors of No 24 nor Mr Conen, the proprietor of No 34, were joined as parties to the proceedings. The question of whether the proprietors of Nos 24 and 34 were necessary parties to the proceedings was raised with both senior counsel at the outset of the hearing.

2. [69]

   Although the issue was primarily for Mr Kladis, since he was the plaintiff in the Equity Division proceedings, Mr Tomasetti indicated to the Court that there would be no difficulty in joining Mr Conen as a party if necessary. Mr Tomasetti pointed out that Mr Conen was effectively actively involved in the proceedings in any event by reason of his ownership of one of the two units on No 30. Moreover he had given evidence in the proceedings in support of the appellants’ case. Mr Tomasetti acknowledged that there might be an issue as to whether the owners of No 24 should have been joined as parties to the proceedings but conveyed his understanding that the owners of No 24, who apparently live overseas, were aware of the proceedings and did not wish to be heard. Mr Tomasetti did not suggest that there was evidence to this effect.

3. [70]

   The principles governing the circumstances in which a party must be joined to proceedings were helpfully stated by Leeming JA in Ross v Lane Cove Council: [40]

4. [71]

   Leeming JA qualified this analysis by observing that because the underlying concern is natural justice, joinder is not always necessary. [41] His Honour pointed out that Uniform Civil Procedure Rules 2005 (NSW) r 6.23 provides that proceedings are not defeated merely because of the non-joinder of a party. His Honour considered that where a party would suffer no prejudice by not being joined to the proceedings, joinder is not essential.

5. [72]

   In the present case, I am satisfied that it was not necessary to join Mr Conen. He not only had notice of the proceedings but actively participated in them. He was clearly fully aware of the impact of the proposed development application on No 34 and had had the opportunity to adduce evidence and advance arguments in opposition to Mr Kladis’ claim for relief.

6. [73]

   The owners of No 24 are, however, in a different position. The primary Judge found that the original development application contemplated that No 24 would lose access to parts of Strips 1 and 2 under the ramp notwithstanding No 24’s rights of carriageway over both Strips. [42] The owners of No 24 would be at the mercy of the owner of No 30 if they wished to walk under the ramp and then emerge at a higher level in order to reach the pebblecrete driveway leading to Musgrave Street. [43] Importantly, his Honour accepted that No 24 would experience “not insubstantial affectations” even if the plans were modified to include a gate providing access from No 24 to the elevated driveway. Nonetheless he did not think that a modified proposal would be so substantial as to interfere with No 24’s rights as to be unreasonable. [44]

7. [74]

   In Judgment 2, the primary Judge recorded that the owners of No 24 were not parties to the proceedings because they were not the owners of the land to which the development application related. [45] His Honour accepted a submission that there was no need for Mr Kladis to give an undertaking concerning access from No 24 to the elevated driveway because the appellants had withdrawn their submission that they could rely on the impairment of No 24’s rights as a basis for refusing their consent to the lodgement of the development application. [46] It was therefore not necessary for the Court to determine whether the proposed driveway unreasonably interfered with the rights of a non-party.

8. [75]

   In Judgment 3, the primary Judge rejected an attempt by the appellants to revive the argument that the amended development application had an adverse impact on No 24. [47] However, he noted that the amended development application provided new pedestrian gates to allow footway access from No 24 to the elevated driveway. Presumably because any adverse effect on No 24 had been removed from consideration, Judgment 3 did not examine what the owners of No 24 would be required to do in order to take advantage of the proposed new gate, which seems to be well above existing ground level. In the course of argument in this Court Mr Tomasetti suggested that the owners of No 24 would have to use some of their own land to erect stairs to the new gate, which otherwise would be more or less suspended above ground level.

9. [76]

   In my view, the owners of No 24 should have been joined as parties to the Equity Division proceedings. It was not simply a matter for the appellants to decide whether or not they wished to advance arguments based on the adverse impact of the proposed development application on No 24. It was the responsibility of Mr Kladis as the party seeking relief from the Court to join all those whose rights were directly affected.

10. [77]

    The orders sought by Mr Kladis would not of themselves result in works that would impair the rights of carriageway appurtenant to No 24. The lodgement of a development application would only result in work being carried out if the Council, as the consent authority, granted development consent. Even so, the orders made by the primary Judge required the owners of the properties on which the proposed development was to take place to give their consent to the development application. The owners of No 24 could still lodge an objection with the Council to the development application. But the objection would be limited to planning matters that a consent authority can take into account under the Environmental Planning and Assessment Act 1979 (NSW). The owners of No 24 could not successfully object to the development application simply on the ground that the proposed works would interfere with their rights of way.

11. [78]

    The effect of cl 49(1) of the EPA Regulation is to require the consent of the owner of the land on which the development is to take place. The consent of a person whose right of carriageway is affected by the proposal is not required. In the present case, the owner of the relevant land refused to consent and Mr Kladis sought orders compelling the owner to consent.

12. [79]

    The orders sought by Mr Kladis would not bind the owners of No 24 if the owners were not joined in the proceedings. Nonetheless, given that neither Ms Lowe nor SP 30459 was prepared to consent to the development application, the proceedings were intended by Mr Kladis to remove an otherwise insuperable barrier to the lodgement of his development application. If Mr Kladis succeeded in removing that barrier the owners of No 24, like Ms Lowe and SP 30459, would be at risk of interference with and derogation from their proprietary rights. As the owners of No 24 were not joined as parties to the proceedings, they lost the opportunity to be heard in opposition to the orders sought by Mr Kladis. The owners therefore were denied the opportunity to prevent the proposed works reaching the stage of development consent.

13. [80]

    It is true that the owners of No 24 would not be prevented from bringing proceedings in nuisance to restrain Mr Kladis from carrying out the works even if development consent was granted. But it is one thing to have the opportunity to be heard, along with others with a similar but not identical interest, in opposition to an application to remove a barrier to the lodgement of a development application. It is another to be forced to institute proceedings to prevent the commencement or continuation of works for which development consent has already been obtained. Among other things an action to restrain the works would almost certainly require the owners of No 24 to give an undertaking as to damages.

14. [81]

    It is also to be borne in mind that s 63 of the Supreme Court Act 1970 (NSW) requires the Court to determine finally and completely, so far as possible all matters in controversy between the parties and to avoid the multiplicity of legal proceedings concerning those matters. Until the appellants withdrew their submission that No 24’s rights would be adversely affected by the proposed development, the parties to the present proceedings were debating an issue in the absence of the owners of No 24 that would necessarily arise in any subsequent proceedings brought by them against Mr Kladis. This would be inconsistent with the policy underlying s 63.

15. [82]

    I consider that the Equity Division proceedings directly affected the rights of the owners of No 24 in the relevant sense. The failure to join the owners as parties denied them the opportunity to be heard to protect those rights.

16. [83]

    The absence of necessary parties to the proceedings would ordinarily justify setting aside the orders made by the primary Judge. However, after the hearing in this Court was concluded, the solicitors for the appellants wrote to the solicitors for the owners of No 24 providing details of the proceedings, including the judgments at first instance and the notice of appeal. The letter invited the solicitors to consider the documents and to advise whether their clients wished to be joined as parties to the proceedings or otherwise to participate in the litigation. The solicitors’ reply included the following:

Rights of carriageway

1. [84]

   The argument in this Court (and it would seem in the Equity Division) tended to conflate the issues arising in relation to the proposed development on Strips 1 and 2. Mr Kladis is proposing to exercise two quite distinct sets of rights. Insofar as the proposed driveway is to be constructed over Strip 1, Mr Kladis is intending to exercise his rights as the owner of a servient tenement subject to rights of carriageway held by the owners of the dominant tenement (Nos 28, 30 and 24). Insofar as the proposed driveway is to be erected on Strip 2, Mr Kladis intends to exercise his rights as the holder of a right of carriageway over Strip 2. He is therefore the owner of a dominant tenement seeking to construct works on the servient tenement (which is also subject to other rights of carriageway).

2. [85]

   Since Mr Kladis is proposing to exercise two different sets of rights, it is necessary to distinguish between them. This requires a restatement of the principles governing the construction of easements of carriageway and reference to the respective rights and duties of the owners of dominant and servient tenements.

3. [86]

   The decision of the High Court in Westfield Management Ltd v Perpetual Trustee Co Ltd [48] marked a significant change in the approach to construction of an easement registered on the title to Torrens system land. The conventional view prior to the High Court’s decision was that the principles of construction applicable to easements under the general law applied to an easement registered under the Torrens system. [49] Thus, consistently with the approach to the construction of contracts, the court could take account of the circumstances known to the parties at the time the easement was created. This principle created difficulties because, as the present case illustrates, questions of construction may arise decades after the easement was created and registered on the title to the dominant and servient tenements.

4. [87]

   In Westfield the High Court held that general contractual principles of construction do not apply to registered easements. The reason is that a third party inspecting the register cannot be expected, having regard to the objectives of the Torrens system and the paramountcy of the register, to ascertain facts and circumstances existing at the time the easement was created. [50] Generally speaking, therefore, the construction of a registered easement is to be determined by the language of the easement itself without reference to extrinsic evidence that might be relevant to the construction of a contract.

5. [88]

   Despite the decision in Westfield, a court is not required to ignore the physical features of the land in question when construing the terms of an easement. This Court has held that for this purpose it is permissible to have regard to the physical features of both the dominant and servient tenements. [51] The justification for this view is that the court is not taking into account matters, such as the intentions of the original grantor and grantee, that are inaccessible to a third party inspecting the register. [52]

6. [89]

   In Westfield, the easement considered by the Court had “affinity to” the language used in Pt 1 of Sch 8 to the Conveyancing Act, [53] but included certain additional words that were critical to the outcome of the case. Nonetheless the Court directed attention to the wording of Pt 1 of Sch 8, which is incorporated in the rights of carriageway in the present case. The Court stated that while the expression “for all purposes” in Pt 1 of Sch 8 is very broad, the purposes for which the right of carriageway is used must confer a benefit on the dominant tenement by making it a better and more convenient property, as distinct from conferring a personal advantage on the owner for the time being of the dominant tenement. [54]

7. [90]

   The purposes for which the dominant owner may use a right of carriageway must also take into account the inherent nature of such a right. [55] The authorities establish that a right of carriageway connotes a right to pass between two places separated by the servient tenement. It follows that, in general, a right of way must have a terminus a quo (point of origin) as well as terminus ad quem (end point), although it is possible to have more than one terminus if the terms of easement so provide. [56] This proposition is relevant to the present case.

8. [91]

   As has been noted, Mr Kladis is the proprietor of Strip 1, which is subject to rights of carriageway. Mr Kladis’ rights in relation to Strip 1 are limited in that the owner of the servient tenement is not entitled to obstruct the use of a right of carriageway by the owner of the dominant tenement.

9. [92]

   In Powell v Langdon, [57] Roper J said that whether an obstruction of a right of way is actionable is a question of degree to be decided in the light of the circumstances of each case. However, the test is whether what has been done or is proposed to be done is a real substantial interference with the right of way. [58] In Zenere v Leate, [59] McLelland J said:

10. [93]

    In Middleton v Arthur, [60] Palmer J explained the relevant principles in terms that accurately reflect the authorities:

11. [94]

    Powell v Langdon and Zenere v Leate provide examples of conduct that has been held to amount to a substantial interference with a right of carriageway. In Powell v Langdon, Roper J held that the conduct of the servient owner in erecting a gate and wall at the terminus of a right of carriageway, the effect of which was to narrow the roadway and to require the gate to be opened and shut by drivers entering the roadway, substantially interfered with the dominant owner’s right of carriageway. In Zenere v Leate, the servient owner was held not to be entitled to carry out works which were designed to make the gradient of the roadway more uniform but which prevented the dominant owner gaining access to his car port. [61]

12. [95]

    The principle applied in these cases does not mean that any interference by the servient owner with the dominant owner’s enjoyment of the right of carriageway is actionable. For example, a right of carriageway does not generally confer upon the dominant owner a right to enter the carriageway from every part of the dominant tenement adjoining the carriageway. [62] The general principle is that the servient owner is entitled to fence the right of way in order to secure the servient owner’s property along the boundary, provided that the dominant owner retains access through gates that permit reasonable exercise of the right of way. [63]

13. [96]

    It follows from what has been said that the dominant owner has a commensurate right to enjoy the easement of carriageway free from substantial interference by a servient owner. In addition, the dominant owner has such ancillary rights as are reasonably necessary for the exercise or enjoyment of the easement. [64] This is a common law principle but it has been applied to easements registered on the title to land under the Real Property Act 1900 (NSW). Thus in Hemmes Hermitage Pty Ltd v Abdurahman, [65] this Court held that the owner of a dominant tenement was entitled to go onto the servient tenement beyond the boundaries of a footway, to undertake works necessary to maintain the trafficability of the right of footway.

14. [97]

    The ancillary rights of a dominant owner include, where appropriate, the right to obtain the written consent of the owner of the servient tenement to the lodgement of a development application by the dominant owner. In Sertari, this Court held that such an order can be made where the development application is for the construction of improvements on the right of way which are reasonably necessary for the proper enjoyment of the easement. [66] Mr Kladis relied on Sertari both in the Equity Division and in this Court to support his claim for relief against the appellants.

15. [98]

    In Sertari, the dominant tenement comprised some 557 acres. The right of carriageway was seven metres wide and gave access to the dominant tenement from a major public road. The dominant tenement had been subdivided and the respondent acquired a two hectare lot in the sub-division. It wished to lodge a development application for the construction of 236 residential units. If approved, the development would greatly increase traffic both during the construction phase and thereafter. The trial judge ordered the servient owner to give its consent to the development application. In affirming the trial judge’s decision, Handley AJA observed that the refusal of a servient owner to consent to a development application, where such consent is legally necessary, infringes the dominant owner’s rights in the same way as physical obstruction prevents use of the carriageway. [67]

16. [99]

    Handley AJA accepted that the servient owner would have a “lawful reason” to refuse consent if the proposed user of the right of way was excessive and therefore not authorised by the terms of the grant. [68] However, his Honour upheld the conclusion of the trial judge that: [69]

17. [100]

    At the conclusion of his judgment Handley AJA noted that while the servient owner and persons authorised by it were also entitled to use the carriageway, the evidence did not establish that the increased use of the dominant owner would unreasonably interfere with the reasonable use of the servient tenement by the servient owner. Accordingly the principles stated in Jelbert v Davis were not enlivened “at this stage”. [70] This comment indicates that the ancillary right of the dominant owner to require the servient owner to consent to the lodgement of a development application raises two separate but perhaps related questions:

18. [101]

    As the judgment of Handley AJA in Sertari indicates, the dominant owner is not entitled to use a right of carriageway in a manner that is not authorised by the terms of the easement. It also follows from his Honour’s analysis that the dominant owner is not entitled to use the right of carriageway in a manner that unreasonably interferes with the use by the servient owner of the carriageway.

19. [102]

    The reasoning in the older authorities that are usually cited for these propositions was influenced by the courts’ assessment of what would have been in contemplation by the parties to the transaction creating the easement. Thus in Todrick v Western National Omnibus Co, [71] Farwell J said that: [72]

20. [103]

    Farwell J’s statement of principle was adopted by the Court of Appeal in Jelbert v Davis, [73] a case that involved an easement of way to be used ín common with all persons having “the like right”. Danckwerts LJ observed that: [74]

21. [104]

    The reasoning in the older authorities, insofar as it is based on matters in the contemplation of the parties to the creation of an easement, departs from the approach taken in Westfield to the construction of easements. But this does not mean that the principles stated in cases such as Todrick v Western National Omnibus Co and Jelbert v Davis no longer apply to easements registered under the Torrens system. The observations of this Court in Hare v Van Brugge suggest that the principles continue to apply.

22. [105]

    In that case, it was argued that a right of way entitled the dominant owner to reasonable use of the carriageway and that if there were two ways in which the carriageway could be used, the dominant owner was bound to use the less intrusive way. In rejecting the argument, Barrett JA: [75]

23. [106]

    I do not understand this passage as intended to detract from the authorities referred to earlier establishing the test for determining whether the servient owner has unlawfully interfered with a right of carriageway enjoyed by the dominant owner. The passage confirms, however, that the decision in Westfield does not affect the principle that the owner of a dominant tenement cannot use a right of carriageway in a manner that interferes with the rights of the servient owner.

24. [107]

    It was common ground in the present case that a dominant owner entitled to a right of carriageway over a particular strip of land on the servient tenement cannot interfere unreasonably with a right of carriageway enjoyed by another dominant owner over the same strip of land. As Lord Denning MR said in Jelbert v Davis a right of carriageway: [76]

Determination

1. [108]

   In applying these principles to the present case, it is convenient to commence with the development application insofar as it relates to Strip 1. Mr Kladis is the registered proprietor of Strip 1 which is subject to rights of carriageway in favour of Nos 28, 30 and 24. As the servient owner, he is not entitled to undertake works on Strip 1 that substantially interfere with the rights of carriageway enjoyed by each of the dominant owners.

2. [109]

   Contrary to what seems to have been assumed by the parties in argument, the rights appurtenant to each of the dominant tenements are not identical. SP 30459, as the proprietor of No 30 (or part thereof) is entitled to use Strip 1 to pass and repass at all times and for all purposes to and from No 30 or any part thereof. Having regard to the location of No 30 in relation to Musgrave Street, the commencement of the right of carriageway (the terminus a quo) is at the junction of Strip 1 and Musgrave Street. The right of carriageway over Strip 1 ends at a point no further from Musgrave Street than at the western boundary of No 30 (the terminus ad quem).

3. [110]

   The existing garage on No 30 is located at the south-eastern corner of the lot, no doubt because of the steep slope of the land to the west. Nonetheless No 30’s right of carriageway over Strip 1 allows access to No 30 “or any … part thereof”. As a matter of construction, therefore, the right of carriageway entitles the owner of No 30 to use the carriageway for pedestrians or vehicular access to the western section of No 30. Strip 1 may not be wide enough to allow a motor vehicle to travel along its length to the western side of No 30 (assuming it is feasible to construct a driveway providing such access). But as a matter of legal entitlement, the owner of No 30 can use the right of carriageway over Strip 1 in combination with such rights as No 30 has over Strip 2 to gain not only pedestrian but vehicular access to and from the western section of No 30.

4. [111]

   Ms Lowe, as the proprietor of No 28 is in a different position. She is entitled to use Strip 1 to pass and repass at all times and for all purposes to and from No 28 or any part thereof. This right of carriageway starts at the junction of Strip 1 and Musgrave Street but extends to the western boundary of No 28. Of course, No 28 has access to a public street by a route other than Strip 1, but that does not detract from the rights Ms Lowe enjoys pursuant to her right of carriageway over Strip 1. She has a right to unimpeded pedestrian access from No 28 along Strip 1 to Musgrave Street. Under the current conditions, pedestrian access to Musgrave Street from No 28 requires use of the steep pathway from No 28 (which deviates from Strip 1) until the pebblecrete driveway is reached and then use of the pebblecrete driveway to Musgrave Street.

5. [112]

   No 24’s right of carriageway over Strip 1 clearly commences at the junction of Strip 1 and Musgrave Street and would extend to the western boundary of No 24. But the location of that boundary at the intersection with Strip 1 was not subject of evidence. Thus the precise linear extent of No 24’s right of carriageway over Strip 1 is not clear.

6. [113]

   The primary Judge found that the proposed works would result in “not insubstantial affectations” of No 28’s rights of carriageway over Strip 1 even if a gate was installed to allow access from one point on No 28 to the elevated driveway. [77] Mr Kladis does not challenge this finding. In any event, it is difficult to see how his Honour could have reached any other conclusion.

7. [114]

   It appears from the revised plan reproduced above [78] that the construction of the elevated driveway would effectively deny the occupants of No 28 access to a substantial segment of Strip 1 at ground level. This is so regardless of the point at which the occupants of No 28 might seek to enter Strip 1 at ground level. As a pedestrian walked to the east under the elevated driveway, he or she would be blocked as the underside of the driveway came nearer to ground level. Thus pedestrian access along the route between No 28 and Musgrave Street via Strip 1 at ground level would be impossible. The installation of a gate would allow the occupants of No 28 to walk to and from Musgrave Street via the elevated driveway. But Strip 1 at ground level, over which No 28’s right of carriageway exists, is to be effectively obliterated between the western boundary of No 28 and the commencement of the pebblecrete driveway. In effect, under the proposed development No 28 has had one set of rights extinguished and replaced by another set of rights.

8. [115]

   The primary Judge found that the proposed works would not be so substantial an interference with No 28’s rights as to constitute an unreasonable interference. The basis of this finding was not that the interference was insubstantial but that otherwise there would be no realistic possibility of constructing a driveway to No 26. One difficulty with the finding is that there does not appear to have been any evidence that the proposed elevated driveway was the only practicable means of securing vehicular access to No 26. It is obvious that the topography presents formidable challenges but this Court was not taken to any consideration in the evidence of possible alternatives.

9. [116]

   More fundamentally, the test to be applied in determining whether the servient owner proposes to obstruct a right of carriageway does not involve balancing the desires of the owner of the servient tenement to gain better access to his or her land and the rights of the dominant owner. The relevant question is whether the servient owner proposes to do something on the servient tenement that substantially interferes with the exercise by the dominant owner of such of the rights conferred by the grant as the dominant owner wishes to exercise. [79] Mr Kladis’ proposal necessarily involves a substantial interference with the rights of the owner of No 28.

10. [117]

    The position with respect to No 30 is not as clear cut since the revised plans for the elevated driveway would not disturb access to and from the garage on No 30 (subject to the issue concerning the grading of the area near the proposed point at which the elevated driveway is to commence). Nonetheless the proposed works would prevent the occupiers of No 30 gaining access along Strip 1 to the western (lower) part of No 30 via No 30’s right of carriageway over Strip 2. Since the right of a carriageway allows the occupiers of No 30 access to and from any part of the dominant tenement the effective destruction of Strip 1 at ground level from just beyond the termination of the pebblecrete driveway constitutes a substantial interference with No 30’s right of carriageway over Strip 1.

11. [118]

    Mr Kladis proposed to ameliorate the impact of the proposed driveway on No 30 by including in the plans provision for a staircase to be erected on No 30 at Mr Kladis’ expense. But this would require works to be constructed on land over which Mr Kladis has no rights. Whether the proposed driveway substantially interferes with the dominant owner’s right of carriageway must be determined by reference to the works to be undertaken on land over which the servient owner (Mr Kladis) has rights. It is not to the point that if the dominant owner agrees to works being constructed on his or her land, over which the servient owner has no rights, the impact might be ameliorated. As the primary Judge observed, [80] the issue was to be determined in accordance with the parties’ strict proprietary rights.

12. [119]

    These conclusions are sufficient to warrant allowing the appeal and setting aside the orders made by the primary Judge.

13. [120]

    The primary Judge found that the works proposed by Mr Kladis on Strip 2 were not so substantial as to interfere unreasonably with the rights of Ms Lowe, the proprietor of No 28 (the servient tenement). Although it is not strictly necessary to address this finding I shall do so.

14. [121]

    Mr Grieve contended that the primary Judge’s decision was discretionary because his Honour granted injunctive relief. However the critical question on this aspect of the case is whether the primary Judge’s finding was in error. The finding did not involve the exercise of discretion that attracts the principles of appellate review stated in House v King. Rather it is to be reviewed in accordance with the principles stated in Warren v Coombes. [81] Due respect is to be paid to the conclusions reached by the primary Judge but the appellate court must make its own judgment as to the proper inferences to be drawn from the undisputed facts.

15. [122]

    The construction of the elevated roadway would effectively deny No 28 the use of Strip 2. The proposed access gate would give the occupiers of No 28 direct access to the elevated driveway at one point. But so far as the plans reveal, the occupiers would not be able to gain access to Strip 2 – its own land – at ground level. Even if the occupiers of No 28 could gain access to Strip 2, they would be unable to use it to walk towards Musgrave Street. Nor would they be able to use that portion of Strip 2 between Nos 30 and 26 to travel between the upper and lower parts of the house block on No 28.

16. [123]

    Moreover, construction of the elevated driveway would deny No 28 the possibility of using Strip 2 (coupled with No 28’s right of carriageway over Strip 1) to gain vehicular access from Musgrave Street to No 28. It is true that at present No 28 does not require that access. However that is apparently a consequence of the original lot being consolidated with another lot to the north. If there were to be a restoration of original boundaries presumably No 28 would require vehicular access along Strip 2.

17. [124]

    In effect the proposed elevated driveway would deny the owner of Strip 2 the right to use that land even as a pathway.

18. [125]

    The primary Judge considered that the decisive factor in determining whether the proposed works interfered unreasonably with No 28’s rights was whether the elevated driveway was necessary if No 26 was to have vehicular access to and from Musgrave Street. In my view there are two difficulties with this analysis.

19. [126]

    The first is that there is no evidence and no finding that the works proposed in the development application constitute the least intrusive means of providing vehicular access to No 26. Having regard to the obvious interference with the rights of the owner of Strip 2, evidence of this kind might have been expected.

20. [127]

    Secondly, I do not accept that the question of unreasonable interference is to be determined simply on the basis that the proposed development is necessary to allow the dominant owner to exploit fully his or her rights of carriageway, regardless of the extent to which the development will interfere with the rights of the servient owner. The emphasis in the authorities is on the extent to which the proposed works by the dominant owner interfere with the rights of the servient owner. The impact on the dominant owner if the works cannot proceed is a relevant consideration on the question of reasonableness, but it cannot be decisive.

21. [128]

    In this case the interference with the rights of the owner of No 28 (as the servient owner) could hardly be any greater. If the works cannot proceed there will be no vehicular access to No 26 from Musgrave Street. However, No 26 will not be landlocked as the right of carriageway can continue to be used for pedestrian access (although arrangements may have to be made at some stage to substitute stairs on Strips 1 and 2 in place of the stairs on Strip A that currently form part of the path from Musgrave Street to No 26). This is the position that has prevailed by reason of the local topography ever since No 26 was created by subdivision in 1940.

22. [129]

    I recognise that the reasoning in relation to Strip 1 departs slightly from the arguments advanced on behalf of the appellants. Neither party disputed the primary Judge’s statement of principles but I have considered it necessary to distinguish between Mr Kladis’ rights as the proprietor of Strip 1 and his rights of carriageway over Strip 2.

23. [130]

    The Amended Notice of Appeal contains grounds that are framed sufficiently widely to embrace the analysis I have adopted in relation to the interference with the rights enjoyed by the appellants over Strip 1. Perhaps more importantly, the appellant’s submissions expressly raised the objection that the proposed elevated driveway would deny the proprietors and occupiers of Nos 28 and 30 access to Strip 1 and thus obstruct their rights of carriageway. Mr Grieve had an opportunity to answer these contentions. In these circumstances there is no injustice in dealing with the interference with the appellant’s rights over Strip 1 as I have.

24. [131]

    For these reasons I consider that the primary Judge erred in finding that the proposed elevated driveway would not interfere so substantially with the rights of the owner of No 28 as to be unreasonable. I do not think it is necessary to consider separately other ways in which the proposed works would interfere with the rights of the owner of No 28. Nor is it necessary to address separately the extent to which the proposal would interfere with the rights of the owner of No 30.

Orders

1. [132]

   The following orders should be made:

2. [133]

   In view of the respondent’s irrevocable undertaking to the Court it is not necessary to make further orders with respect to the DA or the L & E Court proceedings.