The Owners of SP 48754 v Anderson [1999] NSWSC 580

Reported Decision : [1999] 9 BPR 17,119

New South Wales Supreme Court CITATION : The Owners of SP 48754 v Anderson [1999] NSWSC 580 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1765/99 HEARING DATE(S) : 06/05/99 JUDGMENT DATE : 15 June 1999

The Owners of Strata Plan 48754 (P) PARTIES : Peter Anderson (D1) P D Anderson Holdings Pty Limited (D2) JUDGMENT OF : Young J

COUNSEL : Plaintiffs: P Walsh Defendants: G C Lindsay SC and A J Silink SOLICITORS : Plaintiffs: Hansens (Newcastle) Defendants: Mallesons Stephen Jaques CATCHWORDS : Real Property [411]; Easements; Right of way in basement; Ancillary right to have it lit; Disability of servient owner to decrease lighting ACTS CITED : (NSW) Strata Schemes (Freehold Development) Act 1973 ss 8AB, 51, Sch 1B (NSW) Strata Schemes Management Act 1996 Jones v Pritchard [1908] 1 Ch 360 Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640 CASES CITED : Mt Holyoke Realty Corp v Holyoke Realty Corp (1935) 198 NE 242; 101 Am LR 1289 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 White v Taylor (No 2) [1969] 1 Ch 160 DECISION : See para 37

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

TUESDAY 15 JUNE 1999

1765/99 - THE OWNERS OF STRATA PLAN 48754 V ANDERSON & ANOR

JUDGMENT 1 HIS HONOUR : The present proceedings concern the extent of the rights granted when the plaintiffs obtained a right of footway burdening Lot 9 SP 48754. The dominant property is the common property of the strata building. 2 The strata plan refers to a building at 28 Stevenson Place Newcastle. The building is 6 storeys high. One enters the building onto Level 3 which, passing through an entrance lobby, contains parking spaces. One then goes down below street level to Level 2 where there are two units and then to Level 1 which is constituted by Lot 9 in the strata plan. There is at present no physical access between Level 1 and Level 2. Anyone who wishes to enter the building at Level 1 from the outside must do so through parklands which adjoin Level 1 at ground level. In other words, there is a drop of two floors between street level and the park. The park would appear to have been originally part of the railway sidings that formerly extended east from Newcastle railway station and the land had been excavated and made level for this purpose. It would seem that the park is vested in the Newcastle City Council. The evidence is there is no plan of management in respect of the park. 3 The three upper storeys of the building each have two units more or less identical with those on Level 2. The only appreciable difference is that the ceiling above the entrance lobby on Level 3 is cut away so that from the front door of the building one can actually see the lift lobby on Level 4. 4 It would seem that when the building was originally constructed it was envisaged that Lot 9 would be used for commercial purposes such as, for instance, family shops and refreshment facilities for members of the public using the parklands. I had a view of the premises and Lot 9 (Level 1) is completely undeveloped being just bare walls and bare floor. There are three sets of windows and three sets of doors facing north to the Hunter River. 5 The building has a lift which services Levels 2 to 6. Below the lift shaft is a space on Level 1 for the lift to descend in an emergency and also some works for the lift. Adjoining the shaft on Level 1 is a room containing the computer and other equipment to operate the lift. Both the lift shaft and the access room for the lift on Level 1 are part of the common property. 6 The strata plan shows that commencing at the inside of the centre door leading on to the parkland and proceeding in a straight line until level with the southern side of the lift shaft there is a right of footway one metre wide. That right of footway makes a 90 degree turn to the east and continues to the eastern extremity of the lift access room. 7 The second defendant is the registered proprietor of Lot 9. The first defendant is the second defendant's controller and the person who has done the relevant physical acts which the second defendant has authorised. The second defendant has obtained a consent from the Newcastle City Council to convert Lot 9 into two three-bedroom dwellings. It would seem that the second defendant is quite keen to have its two new dwelling units connected to the rest of the building so that its tenants or purchasers can enter the building and their units from Stevenson Place via the lobby on Level 3. The remaining unit holders would appear to be completely opposed to this and are anxious that there be no access to their units from the park via Level 1for security reasons. I do not have to make any judgment on this matter. I merely note it for the purpose of background to the dispute. It would seem that the present dispute has arisen because the defendants consider that strict adherence to their rights with respect to the use of the right of way may improve their bargaining position on what appears to be their main objective. 8 Again by way of background in a matter which really does not affect the decision I have to make, the lift is inspected periodically by WorkCover. WorkCover requires, and there are regulations to enforce its requirements, that it have lighted access to the lift shaft. If this is not provided then WorkCover may order that the lift be shut down. As some of the inhabitants of the units appear to be elderly people, the non-provision of a lift will severely inconvenience them, and in any event, the resale value of the units will decrease. 9 There is some natural lighting during daylight hours to the right of footway. There have been some allegations that the defendants have erected black plastic over the windows to reduce this amount of light, which has been done quite effectively. The defendants say that this is irrelevant to the present dispute, and they may well be right. However, it should be noted that the owner of the dominant land must not so use his or her land where he or she would have reasonable grounds for believing that such use would affect the enjoyment of the easement: Du Plessis Estates Ltd v South African Railways and Harbours [1933] EDL 140, 167. 10 If a right of way is lit at the time of the grant, or if plans of a building to be built show windows that will light it, the servient owner may not cover the apertures admitting the light, at least without providing alternative lighting of equal luminosity: Atkins v Bordman 2 Metcalf 457 (Mass) conveniently found in (1841) 37 Am Dec 100, 113. 11 The defendants say in any event that there is not sufficient lighting of the exterior of the building or the means of access from the park so that no matter what the decision in the present case, WorkCover's regulations will not be complied with. Moreover, they further say that as there is no plan of management for the park, there is no way in which exterior lighting can be erected. There are two lights outside the building on the parkland side at the moment, but it is not quite clear as to whether these are sufficient for WorkCover's requirements. I merely note these matters: I do not really consider that they are necessary to deal with in these reasons. 12 I do not need to deal with all the past machinations. Suffice it to say that there are three fluorescent light fittings after the right of footway makes its 90 degree turn, which were installed by the plaintiffs, the power for which comes from the common property on Level 3 where the switches are located. At some time in the past the first defendant has removed these tubes. However, they have been restored and the status quo pending giving these reasons has been preserved by interim orders. 13 The basal question is whether the plaintiffs are entitled to have the right of footway lit. 14 Before dealing with that matter, I need to briefly note the previous proceedings there have been between the parties before the Strata Schemes Adjudicator and on appeal to the Strata Schemes Board. 15 On 19 September 1997, the plaintiffs applied for an order that the owner of Lot 9 desist from interference with the common property and be required immediately to reinstate a concrete floor pad outside the lift motor room and the lighting within the right of footway. The Adjudicator dismissed that application because he said it was misconceived. The Adjudicator found that the right of footway "giving a right to pass from outside the parcel to the common property located within Lot 9 was not common property." He found that the concrete brick pad was a layer of bricks covered with concrete laid upon sand which lay on top of the floor surface of Lot 9 and that it was therefore part of Lot 9 and was not common property. He found that the light fittings were within the air space of Lot 9 and did not constitute common property. He did not accept the submission that because the power was supplied from the house supply and the Owners' Corporation met the costs of the power supply, that the light fittings above the right of footway were common property. 16 On appeal, the second defendant was ordered to restore the ramp and pad outside the lift access room which it has done; the appeal was otherwise dismissed. 17 The Board held that the submission on behalf of the plaintiffs that whilst the lights were not themselves common property they were amenities which were essential to give effect to or facilitate the enjoyment of the right of the right of way was one which was not within the jurisdiction of the Board to determine and was a matter for the court. Other arguments put so far as the lights were concerned were in the opinion of the Board, correctly decided by the Adjudicator. The Board held that the light and light fittings are within the air space of Lot 9 and form part of Lot 9; therefore it refused an order that the respondent reinstate the lighting. 18 The present summons was issued on 19 March 1999. It was amended on 23 April 1999 to seek a declaration "That it is an implied incident of the right of footway appurtenant to the land in Certificate of Title CP/SP48754 and burdening Lot 9 SP 48754 that the plaintiffs shall have the right to install and maintain such artificial lighting as is necessary to illuminate the right of footway to render it safely trafficable". An injunction was also sought to prevent interference with such lighting. 19 I heard the matter in Sydney on 6 May 1999. Mr P Walsh of counsel appeared for the plaintiffs and Mr G C Lindsay SC and Ms A Silink appeared for the defendants. The evidence finished during the morning and on the afternoon a view was held of the building and its environs in Newcastle. Thereafter the parties submitted written submissions, the last being received on 7 June 1999. 20 The defendants submitted that the plaintiffs were bound by an issue estoppel to accept that the light and light fittings located in the vicinity of the easement formed part of Lot 9 and not part of the common property. That may well be right, but it does not seem to me that it gets anyone anywhere. The real question is whether it is incident to the right of footway that the plaintiffs may have it lit, a matter which the Strata Schemes Board rightly considered was not within its jurisdiction. 21 There is, at least at first blush, clear authority in favour of the plaintiffs' proposition, Mt Holyoke Realty Corporation v Holyoke Realty Corporation (1935) 198 NE 242; 101 Am LR 1289, a decision first discovered by the industry of the Equity Division's researcher, Ms Angela Seward. In that case, the Massachusetts Supreme Judicial Court held that a person having an easement in the stairways and halls in another's building which were artificially lighted when the easement was acquired has a right to install and use electric lights for which he supplies the current. 22 In the present case it has been submitted by the defendants that the right of light is an easement that must be granted and there are no ancient lights rights still existing in NSW. The same sort of argument was put up and rejected by the Massachusetts Court and I do not need to repeat its reasoning, with which I entirely agree. The court merely said at Am LR p 1291 "This argument is not applicable to the facts of this case." The court said at Am LR p 1292, "The defendant does not seek, and the final decree does not command, that the plaintiff either maintain electric light fixtures or supply electric current. The defendant's right is supported by the general rule that an owner of an easement has a right to go upon the servient land to do acts reasonably necessary for a proper use and enjoyment of the easement. (Authorities omitted). In the case at bar it seems that the right to go on to the plaintiff's premises, restore the electric fixtures and cause a current of electricity to pass to the bulbs is reasonably necessary to the proper enjoyment of the easement." 23 Mr Lindsay SC and Ms Silink submit that, properly analysed, the Mt Holyoke case does not assist the plaintiff. They submit that, in order to understand the decision, one must go back to the earlier decision in a case between the same parties reported in (1933) 187 NE 227. They point out that the Mt Holyoke case concerned an easement of necessity not an express grant. The Massachusetts Court was thus concerned with a necessity incidental upon a necessity. However, this is a distinction without a difference. In theory all easements derive from a grant, express, implied or presumed. The fact that one implies a grant from reasonable necessity (as in Wheeldon v Burrows (1879) 12 Ch D 31, not of course, an easement of necessity strictly so called) does not affect the notional derivation of the easement. 24 Then counsel for the defendants say, " Upon the assumption...that the court could properly ignore the fact that it is dealing with an express as distinct from an implied easement, the terms of the Holyoke easement are different from the terms of the easement under consideration in these proceedings and the differences are significant." As to this, I say, first, that I did not appreciate the implied slur that if I rejected the defendants' first submission, I would be "ignoring" something significant. Secondly, there are, of course, differences, but I fail to understand how they are significant. In each case, the real question was whether the person having a right of way was entitled to light it. 25 Then it is put that the American law as to secondary easements is different from the law of New South Wales on easements of necessity. Whether this is so or not, is quite immaterial. The easement in question is the subject of a grant and the question really is what ancillary rights appertain to it. 26 When answering this question, one of course looks at the words of the grant. However, one does not stop there. It does not matter how explicit those words are, there may always be some ancillary right that was not considered at the time of the grant, but which, in hindsight, a reasonable bystander would have considered was ancillary. "There are many easements which depend...not upon the terms of the grant but upon the circumstances under which the grant was made", Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640, 655 applying what Lord Parker said in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646. Thus the right to have water flow into a dam carries with it the right to remove silt: Bloemfontein TC v Richter [1938] AD 195, 227. 27 The test for an ancillary right is set out in the 15th edition of Gale on Easements (Sweet & Maxwell, London, 1986) p 45, "The grant of an easement is also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment." See to the same effect the 3rd edition of Butt, Land Law (LBC, Sydney, 1996) p 447. The authority for this statement is Jones v Pritchard [1908] 1 Ch 630, 638. In Auerbach v Beck (1985) 6 NSWLR 424, 444, Powell J said, "...it is open to the court to imply into a conveyance or demise the grant of such rights as are absolutely necessary to the enjoyment of the subject matter of the conveyance or demise, or of such rights as are reasonably necessary for the use and enjoyment, in the way contemplated by the parties in the conveyance or demise, of the subject matter of the conveyance or demise." (This decision was affirmed by the Court of Appeal (1986) 6 NSWLR 454 without further comment on this point). 28 In White v Taylor (No 2) [1969] 1 Ch 160,196, Buckley J said, "...where the right claimed is necessary for the enjoyment of some other right expressly granted, a grant of the former right will be implied....Necessity, for this purpose means reasonable necessity." 29 In Phillips v Low [1892] 1 Ch 47, 50, Chitty J dealt with the case of a conveyance of land with a house on it whose window looked onto other land of the vendor. He held that there was an implied ancillary right that the window would not be obscured by act of the vendor. He quoted the judgment of Twysden and Wyndham JJ in the Kings Bench in Palmer v Fletcher (1664) 1 Lev 122; 83 ER 329 that "..the lights are a necessary and essential part of the house" and said, "In other words, what is conveyed is not a mere brick or stone building with apertures called windows, but a house with windows enjoying light. This is the broad, substantial reason which commends itself at once to the common sense of mankind." 30 Another approach to this problem which produces the same result is to say that there is a derogation from the grant of the easement if an ancillary right which a reasonable bystander would have expected to have passed with the grant is denied; see eg Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476, 481 (PC). 31 Counsel for the defendants point to the fact that in the Australian book on easements by Bradbrook & Neave Easements and Restrictive Covenants in Australia (Butterworths, Sydney, 1981) only three ancillary rights to a right of way are noted and there is no mention of a right to light. The answer to this submission is that it is always impossible to list exhaustively any set of easements or ancillary rights. 32 In the present case, there was an express grant of a right of way in what is really a basement. In my view that grant cannot reasonably be used unless it is illuminated. The case thus falls within the Pwllbach principle. 33 Because reasonable necessity is all that is required, it is not helpful to look to cases such as Ray v Hazeldine [1904] 2 Ch 17, 20 that state that while a window or light in a room is essential to the comfortable enjoyment of a room, as the room can be used as a room without light, no easement of necessity can be implied. 34 The land in question in the instant case is Real Property Act 1900 land but the law clearly is that ancillary rights are held in respect of easements even though the land is under the Torrens system and even though the rights are not spelt out in detail on the certificate of title: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343. 35 However, counsel for the defendants submit that the Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes Management Act 1996 preclude the solution that would be applied to Old System land. This is said to be because that legislation constrains a dominant owner from modifying the property of the servient owner without the latter's express consent. 36 I was not told the parts of the legislation that are said to have this result. Indeed section 8AB and Schedule 1B of the Freehold Development Act would tend to go in the other direction recognizing ancillary rights with respect to rights of way for access. 37 It follows that the plaintiffs are entitled to the orders sought and also that the defendants pay the costs of the proceedings. 38 I will, however, also reserve further consideration. I will do this because my view is that the defendants' submissions that because there is no legal entitlement to traverse public land to gain access to Lot 9 and there is no right to have external lighting the present order will not be sufficient to allow the plaintiffs to have WorkCover service the lift. As I say I think this is irrelevant, but if there is a problem in this area, it may be necessary to come back to the court and consider the defendants' alternative suggestions that there be a variation of the Strata scheme under s 51 of the Strata Schemes (Freehold Development) Act 1973. ******************

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