Thomas v Pearson

The plaintiffs and defendant own adjoining properties in Cowdroy Street in Cammeray, NSW.

The double garage used by the plaintiffs, to park motor vehicles in, is located on the Defendant’s Property (defined below). The plaintiffs’ rights to use the garage as such derive from certain easements created by transfer in late 1988.

It is not in dispute that since about the early 1990s, the area immediately above the garage has been fenced by an earlier owner of the Defendant’s Property and decking has been placed on the area immediately above the roof of the garage to enable it to be used by the occupiers of the Defendant’s Property as an outdoor area adjacent to the pool that was constructed on the Defendant’s Property in the early 1990s.

The defendant bought his property in 2016. Neither the plaintiffs nor the defendant presently resides in their properties.

In about September 2023, the defendant obtained development consent for certain works to be carried out above the garage including replacing the existing timber deck and constructing a pavilion roof over the deck in the area located above the garage. The defendant did not seek the consent of the plaintiffs to lodge the development application that led to the development consent. Shortly after the grant of development consent, the plaintiffs wrote to the defendant requiring the defendant to, amongst other things, remove the timber fence on the street line above the garage and remove that part of the timber decking that is located on the roof of the garage. The defendant did not agree to this request and wishes to continue with the work the subject to the development consent.

The plaintiffs then commenced these proceedings on 13 June 2024 by summons. By these proceedings the plaintiffs contend, in effect, that certain activities engaged in by the defendant either were, or in the case of giving effect to the development consent granted in September 2023 would amount to, a nuisance having regard to the proper construction of the easements benefiting the Plaintiffs’ Property (defined below) and burdening the Defendant’s Property. The essence of the claim advanced by the plaintiffs is that the easements properly construed do not contain any vertical restriction such that the plaintiffs ought to be permitted to increase the height of the garage. Any actual or proposed activity of the defendant that would prevent this increase in height is said to amount to a nuisance. The defendant rejects the contention that there is no vertical restriction.

The proceedings were heard on 15 September 2025. Mr Peter Thomas, the first plaintiff, appeared as did his brother, Mr Jenkin Thomas who is also a director of the second plaintiff. Most of the advocacy was from Mr Jenkin Thomas, who said he has some legal training or experience. The defendant took a commendably practical approach in the circumstances and did not object to this course.

The defendant was represented by Mr T Alexis SC and Mr B Michael of counsel.

For the reasons set out below the plaintiffs’ claims fail. The amended statement of claim should be dismissed with costs.

Both Mr Peter Thomas and Mr Jenkin Thomas made affidavits which were read in the proceedings. Mr Peter Thomas was briefly cross-examined. He gave his evidence in a clear and honest manner. I did not understand the defendant to make any credit attack on Mr Peter Thomas or contend that any aspect of his evidence should not be accepted.

Mr Jenkin Thomas was not required for cross-examination.

An affidavit made by the defendant was served, but ultimately not read. I do not regard his failure to give evidence as of any significance.

A bundle of documents was tendered.

The Plaintiffs’ Property and the Defendant’s Property were created as part of a subdivision of a larger parcel of land in the late 1980’s. That larger parcel which also contained a third lot, runs in an approximately north to south direction between Alan Street to the south and Cowdroy Avenue to the north in Cammeray.

On 31 December 1987, Mr Peter Thomas and his wife Judy Thomas entered into a contract with John, June and David Mansell to purchase a property described in “annexure “A” hereto” which was in the following terms:

Special Condition 30 to the contract provided (emphasis added):

The schedule of finishes in schedule B included as “Exterior works” – “Double Garaging to be completed as per plans (storage in roof)”.

The plans included, relevantly, plans of a double garage with a gabled roof.

Annexure C referenced in sub-paragraph (ii) of Annexure A as setting out certain easements benefitting the land to be purchased, was as follows:

As events transpired, a plan of subdivision was registered on 18 February 1988 consistent with Annexure D to the contract.

On 12 April 1988, amended plans in relation to the proposed garage were approved by North Sydney Council (the Council). Relevantly, the roof for the proposed garage was now a flat concrete roof in place of the proposed gabled roof. Mr Peter Thomas gave evidence that having purchased the Plaintiffs’ Property whilst it was under construction he then had negotiations with one of the owners, David Mansell as to the garage structure, leading to the amended plans.

The garage was then constructed in accordance with these plans and completed by 25 July 1988, which appears to be the date when the Thomases moved into their property. The garage as built was with a flat concrete roof. Its dimensions were and are approximately 5.4m x 5.7m within the area marked “Y” on the plan. Its internal height is a little over 2m (Garage Structure). It is of some significance that the garage was constructed prior to the execution and then registration of the transfer containing the easements.

On 21 December 1988, Mr Peter Thomas and Judy Thomas became the registered proprietors of their land - Lot X in DP/X and known as X Cowdroy Avenue, Cammeray (Plaintiffs’ Property or Dominant Tenement as the case may be) – by a Transfer under the Real Property Act 1900 (NSW) (Transfer), registered on that day.

What is now the defendant’s land is Lot Y in DP/Y, known as Y Cowdroy Avenue, Cammeray (Defendant’s Property or Servient Tenement as the case may be).

The Transfer stated that the date of transfer was 25 July 1988.

Schedule One to the Transfer set out the easements created – benefitting the Plaintiffs’ Property and burdening the Defendant’s Property – in the following terms:

The plan annexed to the Transfer was in similar terms to the survey plan extracted above.

Set out below is an extract from the plan, taken from the defendant’s opening submissions which is helpfully marked up in highlighting to show the approximate boundaries of the Plaintiffs’ Property in blue, boundaries of the Defendant’s Property in green, location of the right of carriageway (ROC) and the easement for support in yellow (Easement for Support) and the location of the right of footway in orange.

By s 181A(1) of the Conveyancing Act 1919 (NSW) (CA), the ROC is in terms of Part 1 of Schedule 8 to the CA, which provides:

It is of some significance in the defendant’s case that the garage was constructed at the time of the Transfer, both its date of registration and date of effect, and indeed was constructed at the time the Thomases moved into the Plaintiffs’ Property.

A photograph taken from the front of the two properties in about 2023 appears immediately below. The plaintiffs’ garage is on the right hand side of the picture with a white car parked in front of it. The Defendant’s Property is to the left and includes the garage which does not have a car parked in front of it.

Although taken in 2023, the photo shows the relative location of the plaintiffs’ garage on the Defendant's Property, and the fence (as described below) immediately above.

A Mr Bob Head (Mr Head) and his wife (the Heads) purchased the Defendant’s Property in January 1989. At the time, the rear of the Defendant’s Property was apparently filled with builder’s rubble.

After about two to three years, the Heads apparently built a swimming pool in their backyard. A Building Application for this work dated 4 October 1989 was in evidence. Mr Peter Thomas says that he gave consent to Mr Head to construct some portable decking immediately above the garage, but not to be affixed, and also a lattice fence on the basis they could be removed easily when he wanted them to be removed. He said in cross-examination that this was to allow the pool to be constructed and suggested that once the pool was completed it had its own decking which was separate from the portable decking above the garage.

No detail was given by Mr Peter Thomas as to how this so called temporary decking was constructed.

Mr Peter Thomas gave evidence that at no stage did he give any approval to any owner of the Defendant’s Property to erect or install any more permanent decking above the garage roof.

Mr Peter Thomas admitted that a lattice fence was erected by the Heads at or about the time that the pool was installed in the area where a paling fence appears in the photograph above. The paling fence is apparent in photographs from August 2008.

In 1998, Amatrin Pty Ltd (the second plaintiff) replaced Judy Thomas as a registered proprietor of the Plaintiffs’ Property as tenant in common in certain shares with Mr Peter Thomas.

A number of photographs of the outdoor area on the Defendant’s Property, including above the garage were in evidence. The earliest appears to be from about March 2004. All of the photographs depict the area above the garage with decking and outdoor furniture together with the fence around the side of the deck where it faces the street. At some stage, the initial lattice fence was replaced by a paling fence – prior to August 2008. It is also apparent from the photographs that the decking has been changed at some stage as the direction of the decking has changed from north-south to east-west.

Mr Peter Thomas admitted that he has been aware of the existence of a form of decking and fencing since approximately two to three years after he purchased the Plaintiffs’ Property, although he denied ever giving approval for more permanent decking. He admitted he must have been aware of the change in the fence from a lattice fence to a paling fence.

On 16 June 2016, the defendant became the registered proprietor of the Defendant’s Property.

On or about 17 January 2023, the defendant lodged a development application with the Council for works to replace the existing timber deck, construct a pavilion roof over the deck in the area located above the garage, reduce the size of the of the swimming pool, and create external access to the garden from the street via a staircase. The plaintiffs were not asked to provide their consent to the lodging of the development application. They subsequently objected to the development application by letter to the Council dated 10 February 2023 and one subsequent letter. In those objection letters they referred to the rights which they contended they possessed by reason of the easements.

On 8 September 2023, the Council granted development consent subject to various conditions (Development Consent). The plans approved as part of the Development Consent clearly depict a pavilion above the garage. The plans also note “existing decking to be replaced with new decking pending sub-strata review”.

The Council report prepared in connection with the grant of the Development Consent contains the following note:

On 16 October 2023, Mr Peter Thomas wrote to the defendant in the following terms:

This was the first occasion on which Mr Peter Thomas had ever made a complaint or a demand for the timber deck or the fence above the garage to be removed.

A further letter was sent by Mr Peter Thomas to the defendant dated 6 November 2023 seeking a response to his 16 October 2023 letter.

On 14 November 2023 a further letter was sent by Mr Peter Thomas to the defendant in the following terms:

On 3 December 2023, the defendant provided a substantive response to Mr Peter Thomas.

In relation to the request for access, the defendant indicated that the plaintiffs’ representatives were welcome to come over and look underneath the deck and referred to the fact that there was an access hatch for this purpose. In relation to the contention that the defendant was somehow infringing on the plaintiffs’ rights, the defendant stated:

On 23 November 2024, Mr Peter Thomas wrote to the defendant in the following terms:

On 2 December 2024, the defendant (through his lawyers) responded as follows:

It would appear that at some later stage Mr Peter Thomas inspected the area under the decking above the garage roof and took a number of photographs. The photographs depict that there are number of brick piers supporting the timber decking. Mr Peter Thomas gave evidence that the height of the brick pillars on the garage roof (seven brick courses plus ant cap) is 600 mm and the height of each timber joist and beaver is 125 mm. The height of the decking is 30 mm.

Post the inspection, Mr Peter Thomas wrote to the defendant on 26 January 2025 in the following terms:

No response to this letter was in evidence.

Mr Peter Thomas admitted that at no stage during the 30 plus years that the decking has been located above the garage has there been any need to carry out any maintenance to the area of the garage. There has not been any water ingress or any other problems.

There was also no evidence adduced of any problems ever being experienced over the past 30 plus years of difficulties in the garaging of vehicles on the Plaintiffs’ Property.

As set out above, the proceedings were originally commenced by summons. On 9 August 2024, Peden J directed the plaintiffs to file a statement of claim to stand in lieu of the summons. A statement of claim was filed on 26 August 2024. Parts of the statement of claim were struck out by further orders of Peden J made on 8 November 2024, and the plaintiffs filed an amended statement of claim on 11 November 2024 (ASOC).

By the ASOC the plaintiffs seek the following relief:

Significantly, certain relief that was previously claimed has been struck through as a result of the earlier argument before Peden J on 8 November 2024. The struck through relief included declarations that the Development Consent is void and an order varying or amending the Development Consent to delete works relating to, pertaining to or concerning the Easement for Support or the Garage Structure thereon and an order compelling the owner of the Defendant’s Property to consent to a development application being lodged by the plaintiffs to the Council in respect of the Easement for Support.

As previously pleaded, elements of the claim made by the plaintiffs sought to challenge the validity of the Development Consent granted by the Council. Aspects of the arguments advanced by the plaintiffs before me continued this theme alleging that the Development Consent was invalid. As had previously been made clear to the plaintiffs and as I sought to make clear during the course of the hearing, this Court does not have jurisdiction to declare void a Development Consent. Such proceedings need to be brought in the Land and Environment Court.

Aspects of the case previously made by the plaintiffs also sought to contend that the defendant is required to consent to any Development Application being lodged by the plaintiffs in respect of the area covered by the ROC and the Easement for Support. As was made clear by Peden J in an earlier argument in relation to the pleading, such mandatory orders cannot be made in a vacuum but need to be founded on a contention that by failing to consent to a particular Development Application, the defendant was substantially interfering with the rights of the plaintiffs in relation to the easements benefitting the Plaintiffs’ Property. In the absence of a particular request for consent and refusal, there is no basis for seeking such a general order. I have set out above the request subsequently made by Mr Peter Thomas to the defendant seeking his consent and the defendant’s response. This correspondence does not advance matters and in any event no application was made to amend the relief claimed to reinstate a claim based on an unreasonable refusal to consent.

At the same time as certain prayers for relief set out in the ASOC were struck through, the allied material fact allegations in the ASOC itself were also deleted.

The essence of the claim advanced by the plaintiffs in the ASOC commenced with the contention that the Easement for Support has the following characteristics:

Second, that the maximum height of NSLEP (clause 4.3(2)) at 8.5 metres and the placement of any works on the top of the Garage Structure in the Easement for Support would prevent increasing the height of the garage up to 8.5 metres and the plaintiffs or future owners would have an equitable right to have a garage up to the height as set at any time by the Council (see ASOC [18(i)]).

Third, that an owner of the Plaintiffs’ Property may want to increase the height of the Garage Structure within the Easement for Support or make other alterations/additions to enable motor vehicles of all types and sizes to fit into the garage and at the present heights in respect of the present Garage Structure were established in 1988 when the garage was built and that the height of motor vehicles has increased from the 1980s to 2024. Allied to this, an owner of the Plaintiffs’ Property may want to install a stacker system for motor vehicles to enable more motor vehicles to be garaged in the Garage Structure and that the installation of a stacker system would also involve increasing the roof height or maybe not having a roof at all and that this would not change the use of the Easement for Support (see ASOC [18(j)]).

In terms of the carrying out the works proposed under the Development Consent, the ASOC contended that this would “require movement of materials both building and waste and plant and equipment and tools at various stages of construction and that these movements may cause damage to the garage structure on the Easement for Support” (see ASOC [18(m)]).

The defendant contended that the plaintiffs were not entitled to any of the relief in the ASOC. The defendant’s principal contention was that the Easement for Support was not unlimited in height but rather was limited by the height of the garage at the time of the Transfer. The defendant also relied upon a defence of laches, relying upon the factual position that the decking of some sort had been in place for over 30 plus years.

The relevant legal principles were not in dispute.

The starting point is that one of the bundle of rights held by an owner of realty is the power to decide what is to be done on that land including what, if any, development is to be undertaken there. The owner may exercise that power in their own self-interest. Exercise of the owner’s power is subject to any applicable legal restrictions or requirements including private law rights of others such as if the land is subject to an easement: see Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 (Random Primer) at [25] per Kirk JA.

Allied to this, the owner of a dominant tenement benefited by an easement enjoys the rights expressed in the easement and any rights ancillary to those express rights. Ancillary rights are those implied by virtue of being reasonably necessary for the owner’s enjoyment of their express rights: Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 at [23] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. An owner may obtain relief from a court to protect its ability to exercise the rights possessed by the owner of the dominant tenement pursuant to an easement, where actions of the owner of the servient tenement constitute a substantial interference with that right: Random Primer at [26] per Kirk JA. Such actions amount to an actionable nuisance.

Each owner has rights that must be accommodated to that of the other. In deciding what is a substantial interference with the dominant owner’s reasonable rights under an easement, all the circumstances must be considered. Neither party may exercise his or her rights (the rights arising from the dominant owner and the rights incidental to ownership of the burdened fee simple in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. What amounts to a substantial interference with the reasonable use of an easement for the purposes of a dominant tenement is essentially and ultimately a common sense judgment founded upon the circumstances of each particular case. The notion of “common sense” is consistent with treating the issue as an evaluative question of fact to be assessed in a practical manner. See Random Primer at [26]-[29] per Kirk JA.

The position was summarised in this regard by Kirk JA at [29] as follows:

At the heart of the present case is what rights are possessed by the owners of the Plaintiffs’ Property pursuant to the ROC and the Easement for Support. This involves the proper construction of the ROC and the Easement for Support.

Construction of an easement created by written instrument involves determining the intention of the party or parties to the grant in light of the text, context or purpose of the instrument assessed from the perspective of a reasonable person in the position of the party or parties, and in light of admissible evidence: see Theunissen v Barter [2025] NSWCA 50 (Theunissen) at [27] per Kirk JA, with whom Mitchelmore JA and Griffiths AJA relevantly agreed.

Further, when construing a registered easement it is permissible to take into account relevant physical characteristics of the servient and dominant tenements, and the surrounding land, at the time of the grant that were reasonably ascertainable by a third party at that time. The significance, if any, of those characteristics will depend upon the particular case. The characteristics which may be considered are the broad and reasonably enduring characteristics, not fine details of the land or its fixtures. Relevant sources would relevantly include, for example, what can be observed from outside the properties along with publicly available maps. It would not include material that could have been ascertained by searches under Freedom of Information laws: see Theunissen at [108] per Kirk JA.

In the present case, the plaintiffs’ rights are said to derive principally from the Easement for Support. In considering an Easement for Support, it is important to bear in mind what was said by Megarry J in Byard v Co-operative Permanent Building Society Limited (1970) 21 P. & C.R. 807 at 820:

At 821, Megarry J also stated:

The present case is somewhat unusual in the manner in which it is presented to the Court. One would normally expect the plaintiffs to have prepared a development consent to alter the existing Garage Structure in a particular way and to have sought the defendant’s consent to such an application which consent has been refused. The plaintiffs would then seek an order requiring the defendant to consent on the basis that the refusal to consent substantially interferes with the rights of the plaintiffs. Questions of reasonable use by both parties would then likely loom large: see Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [25] per Barrett JA (Hare v van Brugge). One or more of the parties may seek modification orders under s 89 of the CA.

No such proposal was prepared by the plaintiffs. The consent sought by letter dated 23 November 2024 (extracted above) was in general terms and the lack of specificity was the reason consent was not given.

No attempt was then made to reinstate a claim for relief by reference to particular activities which the plaintiffs’ contend they wish to engage in, which they contend they have a right to engage in and which they contend the defendant’s refusal to consent constitutes a substantial interference with the plaintiffs’ rights.

The case is presented in somewhat abstract terms, seeking the relief set out above. It is premised on general notations of the plaintiffs’ or perhaps subsequent owners of the Plaintiffs’ Property wanting to increase the height of the Garage Structure to enable larger vehicles to be garaged, including a car stacker and/or even removing the roof of the Garage Structure altogether or replacing the existing flat roof with a gabled roof. As propounded, aspects of it are quite hypothetical.

The cases demonstrate that what is required in determining whether the owner of the servient tenement is infringing the owner of the dominant tenement’s rights, is a common sense judgment founded upon the circumstances of each particular case. The lack of any particular circumstances is a reason in itself for dismissing the claim.

Depending on the circumstances, even if the plaintiffs have rights to alter the existing structure, questions may arise as to whether what the plaintiffs propose is a reasonable use if the effect on the Defendant’s Property is to prevent any use of the area above the garage roof. For example, what if, as appears to be the case, the existing Garage Structure is perfectly suitable for the garage of most passenger vehicles and the plaintiffs simply propose to erect a gabled roof with little to no improvement on the functionality of the garage.

Nonetheless, I deal below with what appeared to me to be the point the parties wanted determined – namely whether the plaintiffs’ rights were in effect, unlimited in height.

For the reasons set out below, I do not accept the plaintiffs’ contentions to the effect that the proper construction of the easements granted by the Transfer, including the Easement for Support, is that the plaintiffs’ rights with respect to maintaining a structure to garage motor vehicles is unlimited in height, and thus would permit the plaintiffs or any subsequent owner of the Plaintiffs’ Property, to remove or raise the roof of the existing garage.

The question is obviously one of construction of the rights granted to the plaintiffs’ as owner of the dominant tenement under the Transfer: see Finlayson v Campbell (1997) 8 BPR 15,703 at 15,710.

The Right of Footway can obviously be put to one side as irrelevant.

The Transfer otherwise contains:

It seems relatively clear that the overall intent of the Transfer was, relevantly, to provide for a garage for use by the owners of the Plaintiffs’ Property/Dominant Tenement. The drafting was, however, a little unusual.

There does not appear to be any reason why there could not have been an express grant of a right to park motor vehicles: see for example, Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74. There is no express grant to this effect.

In relation to the ROC, the rights conferred under Part 1 of Schedule 8 to the CA would not ordinarily allow parking, but rather the right to pass and repass. A right of way is, also, not the equivalent of ownership: see Butler v Muddle (1995) 6 BPR 13,984 at 13,986.

The area covered by the ROC is the same as that covered by the Easement for Support – that marked “Y” on the Plan. The same area being covered, coupled with the concluding words of the Easement for Support, evince the intention that the area is for the garaging of motor vehicles.

At the time of the grant, a garage (the Garage Structure) had already been constructed on the area marked “Y” on the Plan. That structure was readily observable and was suitable for the garaging of motor vehicles. It had a particular height and a flat concrete roof. Like the inclinator in Hare v van Brugge, the completed garage is probably the most significant feature of the land at the time of creation of the easement: see Barrett JA at [22]. This is what was actually happening on the ground at the time of grant: see Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No 10) Pty Limited [2019] NSWSC 635 at [96] per Slattery J; Theunissen at [87] per Kirk JA.

The terms of the Easement for Support are to permit the owners of the Dominant Tenement “to maintain on the boundaries of and within that part of the Servient Tenement marked “Y” in the plan … a structure suitable for the garaging of motor vehicles.” It does not contain positive rights, only a negative right not to have support removed.

Whilst I accept that the position is not entirely free from doubt, in the context of the present case, and in particular where the Garage Structure had already been built at the time of the grant, a reasonable person in the position of the parties would determine that what the parties intended from the terms of the grant, including the ROC and the Easement for Support, was that the owner of the Dominant Tenement would have the right to use the existing structure to garage motor vehicles and the owner of the Servient Tenement would have the obligation to support that existing structure.

It is significant, in my view, that the easement is one for support and not one that confers any greater or positive rights on the owner of the Dominant Tenement. Whilst in other contexts the word “maintain … a structure” could be construed so as to confer on the owner of the Dominant Tenement a right to alter or modify or even demolish the existing structure and construct a new structure “suitable for the garaging of motor vehicles”, I do not regard this as the preferred construction in this context. There is nothing in the words used in the Easement for Support, in my view, to suggest to a reasonable person that this is what was intended.

It was also not suggested, rightly in my view, that the terms of the ROC confer positive rights to alter the structure. As set out above, a right of way is not the equivalent of ownership.

Put another way, the Transfer assumes, as was the case, that a structure exists and permits the owners of the Dominant Tenement to use the structure to garage motor vehicles and requires the owners of the Servient Tenement to support it and precludes interference with its physical existence.

Further, there was no suggestion that at the time of grant, or at the present time if that be relevant, the structure was not suitable for the garaging of motor vehicles. It clearly was and is. The natural and ordinary meaning of the words “a structure suitable for the garaging of motor vehicles”, in my view, does not require the structure to be suitable for the garaging of any motor vehicle used by owners of, or visitors to, the Plaintiffs’ Property, at any point in time. This appears to be the effect of the construction contended for by the plaintiffs – namely that because motor vehicles apparently have changed over the last 30 years, including the rise of the SUV and utility trucks, which apparently do not fit in or are difficult to park in the existing structure – that the plaintiffs now have the right to alter the Garage Structure so that it can now garage bigger vehicles.

A reasonable person in the position of the parties would not conclude that this is what the parties intended in the present case. The easement is to be construed at the time of the grant.

The words of the maintenance obligation contained in the grant also lend some support to the construction I have reached above. They impose an obligation on the owners of the Plaintiffs’ Property (Dominant Tenement) to keep relevantly the Easement for Support in a good, tidy and serviceable state of repair but “limited in height to the outer surface of the roof of the said structure.” These words to my mind, suggest that the structure intended to be referred to was that which was already constructed on the Defendant’s Property – which had a roof – and, perhaps more importantly, suggest that the owners of the Plaintiffs’ Property had no rights above the roof of the structure. On the plaintiffs’ construction, the garage need not even have a roof.

The plaintiffs placed some reliance on three cases which have considered, in substance, whether a defendant building a structure over a right of carriageway would constitute an unreasonable interference because it would restrict the height of vehicles that could use the right of carriageway. The three cases are: Middleton v Arthur [2002] NSWSC 627 (Palmer J); Philip v JPM Developments Pty Ltd (2015) 17 BPR 33,887; [2015] NSWSC 145 (Sackar J); and McWilliam v Hunter [2022] NSWSC 342 (McWilliam) (Darke J).

I do not regard these cases as determinative in the plaintiffs’ favour or of considerable assistance in the present case. Each involved, principally, the construction only of a right of carriageway and a consideration of whether, on the facts of each case, the defendant’s proposed activities would cause a substantial interference. Understandably, on the facts of each of those cases, the court did not construe the relevant rights as containing any height restriction on the vehicles able to use the rights of carriageway.

The relevant issue in the present case is different, focussing on what can be constructed by way of a garage having regard to the ROC, the existence of a structure at the time of the grant and the terms of the Easement for Support. I have set out above what a reasonable person in the position of the parties would conclude the parties intended in the present case.

The plaintiffs also placed some reliance on the fact that as owners of the Dominant Tenement they not only have the rights expressed in the terms of the easement, but also have such ancillary rights as may be implied where such right is reasonably necessary for the enjoyment of the rights expressly granted. Such ancillary rights may be accepted: McWilliam at [37].

In my view, this is not a case about ancillary rights but rather more a question about what rights are expressly granted. It is, in my view, a stretch to say that the right to extend the garage vertically is reasonably necessary in circumstances where the existing structure is not shown to be unsuitable for the garaging of motor vehicles.

For these reasons I reject the plaintiffs’ contention that the rights granted to the Dominant Tenement by the Transfer, including the ROC and the Easement for Support are not limited as to height.

I turn now to consider briefly the plaintiffs’ contentions in relation to substantial interference.

I reject the contention that the erection of the paling fence on the roof of the garage where it abuts Cowdroy Street, and the existence of the current decking above the garage roof, is currently causing any substantial interference with the plaintiffs’ rights.

It is clear that there has been no need for the plaintiffs to perform any maintenance pursuant to their obligations in the 30 plus years that the fence and a form of decking have been in place. The top of the roof of the garage is accessible by a hatched door on the decking and Mr Peter Thomas was able to access the area and inspect it.

Whilst Mr Peter Thomas speculated as to the ability to carry out repairs given the limited space between the underside of the decking and the top of the concrete roof, this was nothing more than speculation.

A number of contentions were also advanced by the plaintiffs to the effect that the existing decking, and use of the area as a terrace, was not approved by the Council. Such contentions are, in my view, irrelevant to the issues for determination.

There is also no probative evidence that the carrying out of the approved works, or the finished development in accordance with the Development Consent, would cause any substantial interference with the Easement for Support. No case was really advanced by the plaintiffs in this regard separate from the contention that the plaintiffs' rights were unlimited in height, which I have rejected above.

Again, the plaintiffs’ contentions, or more accurately fears in this regard, were nothing more than speculation. If any problems do arise in this regard during the course of construction activities, and they constitute an actionable wrong, they can be dealt with.

A concern was also raised by the plaintiffs based on the fact that they are not insured for certain liabilities in connection with the garage area. Such issues are, in my view, irrelevant.

The views expressed above make it strictly unnecessary for me to consider the laches defence raised by the defendant. Had it been necessary for me to consider the defence I would not likely have upheld it. This is for the simple reason that I am not satisfied that there is any substantial prejudice to the defendant by reason of the delay: see Crawley v Short (2009) 262 ALR 654; [2009] NSWCA 410 at [163].

For these reasons the claims advanced by the plaintiffs fail. The amended statement of claim should be dismissed.

There is no reason why costs should not follow the event.

The orders of the Court are: