Received a letter from our neighbour Monica Thom's new solicitor, dated 30 March 2011 with a copy of a surveyors report as commissioned by Monica. Also included were copies of the DP 615751 and the accompanying 88B instrument. Colour coding had been applied to the plan as an aid to understanding the Right of Carriageway as it applies to both properties. However, for some reason no mention is made in the cover letter to the restriction to user clause within the title. Attention is drawn to the holes that we have drilled in our driveway (the access handle that is part of our property) along the common boundary and a statement is made that if we erect a fence at this location then we are put on notice that Monica Thom will, without resort to further correspondence commence legal proceedings against us. We are advised to seek further legal advise as court proceedings would involve substantial legal costs for both parties and in the event that Ms Thom is successful (it is noted that Ms Thom has been advised that this is the likely outcome) then the resultant court order would require us to pay Monica's costs for the proceedings.
We replied to the solicitors letter via email on 2nd June 2011, as below, and received confirmation on 6th June that our correspondence would be forwarded to our neighbour Ms Monica Thom Thank you for your letter of 30th March 2011 your reference DB:11/3034 Monica Thom - Right of Carriageway We appreciate the information provided with your letter although having lived at this address for the last 28 years and been friends for many years with the original owners of Lot 21 who created the subdivision, we already had all the documentation to hand. We also have all the documents from the council subdivision file in order to reach a better understanding of the restriction to user clause within the Deposited Plan (DP). As per your suggestion we are seeking further legal advice regarding the Right of Carriageway and restriction to user provisions within our title as we require the re-instatement of a fence along the common boundary of the access handle in line with the restriction to user provisions as specified in the referenced documents. It is our understanding that the intended use of the Southern section of the Right of carriage way is to allow the owners of lot 21 to access the garage under the SE corner of the original house by means of driving from Albion Street in a forward direction in order to park. Subsequent exit from the garage, is by means of reversing out of the garage, and reversing further down our (Lot 22) access handle (greater than 16m from Albion Street) prior to driving forward out to Albion Street. The fact the restriction to user clause allows for a fence to be erected along this Southern section of the handle clearly supports this construal. To argue that the intention was to allow access into the rear of Lot 21 would be in contradiction with the restriction to user clause and clearly doesn't make sense. How could access be achieved when a fence is constructed in this area according to the restriction to user clause. We wish to again advise how distressed our family has been throughout this whole experience. When we received the letter from Ms Thom's previous solicitor, regarding a request to remove the fence, we replied advising our understanding of the terms of the RoC and the associated restriction to user clause hoping to engage in a dialogue to resolve the dispute. We had an expectation that a reply to our letter would be forthcoming. Instead your client, Ms Monica Thom, caused to have 2 male workmenforcibly remove the fence with no prior warning. Inspection of the video images from our CCTV security camera suggest that during this activity, although the fence palings were removed intact, each was subsequently snapped in half before being removed from site along with our brass house numbers. In this way $550 of relatively new and reusable / recyclable copper chrome arsenate treated material, purchased by Robyn and myself, as well as house numbers with sentimental value, were destroyed presumably to end up as landfill. Inspection of the video images suggest that the $120 of Aluminium bar, also purchased by Robyn and myself and used to repair damage to the fence at a time when it was utilised by the builder as the site perimeter safety fence was thrown into Ms Monica Thom's rear garden thus preventing us retrieving the material without resorting to trespass. Images from further photographic artefacts suggest that this material was later moved well away from the driveway builders fence further out of our reach and later removed from site completely. I (Peter Helm) would also like to note that I attended a mediation session in good faith, at the Parramatta Justice centre at Ms Thom's request and gave up 5 hours of my leisure time on Saturday morning the 12th of February in order to discuss a compromise solution to the issue of this fence. Despite independent requests from both Robyn and myself to allow Robyn to attend this mediation session, Robyn was expressly excluded by your client Monica Thom. Robyn even suggested that Monica's brother or other family members / friends could attend to provide a degree of balance at the meeting and to provide Ms Monica Thom a more comfortable environment in which to participate in the discussions. Unfortunately Ms Thom insisted that the meeting should go ahead without Robyn in attendance which essentially prevented any firm decision being reached on the day of the initial meeting noting that Robyn Helm is a joint owner of the title. My (Peter Helm's) understanding of the mutually accepted outcome of this mediation session was that Ms Monica Thom agreed to organize a survey to establish if the original wooden fence and subsequently installed metal fence posts were positioned on the boundary rather than solely on Monica's land as was originally alleged by Ms Thom both in the letter from her previous solicitor and verbally at the justice centre meeting. Having now sighted the copy of the survey that you supplied with your letter, that I understand was as commissioned by Ms Monica Thom on the 11 October (2 weeks prior to the original solicitors letter dated 21 October ), I note the statement "The erection of a recent timber Paling Fence along part of the Eastern common boundary between Lot 21 and Lot 22, whilst in accordance to the restriction to user does not allow the owner the full enjoyment of the RoC....". I am therefore at a loss to understand why the letter we received from Ms Monica Thom's previous solicitor, dated 21 October 2010 included a statement as per Ms Thom's instruction "With 6 of the 7 posts erected on our clients property". Our family was further distressed to find on the 24th of February at approx 09:25 some of the metal posts had been removed while our family members were out at work. Inspection of the video images from our CCTV suggests that a young male was involved in removing these posts, which were purchased by Robyn and myself, and which were presumably taken away from the area as they have not been seen since. I understood that this action was not in line with the agreement reached at the mediation session where all parties agreed to re-convene the meeting at a mutually agreed date, to be initiated by your client, Ms Monica Thom, to review the outcome of the survey, and discuss fencing and other privacy barrier options put on the table at the initial meeting. Having received no further feedback for a period of 4 weeks from the first meeting, I wrote to the Justice Centre to ask if a date had been proposed for the next meeting. I was subsequently advised that Ms Thom had declined to attend any further discussions. Finally on 1st April 2011 just prior to the receipt of your letter, inspection of the video images from our CCTV footage suggest that a number of workman were involved in removing the remaining posts which in this instance were left on our property. The metal fence post at the point 16m from Albion street, originally the support for the post onto which our brass house numbers were affixed, was I suggest caused to be cut in 2 with only the larger portion of the 2 returned onto our property. We would appreciate if you would convey our concerns to your client. Thank you for your assistance in this matter,
The DA submitted to council stated "The impact of the proposed development on views from nearby properties have been considered" - I never understood what that implied!! (Conclusion of the consideration - they may now view a huge vertical wall, approx 9.3m high instead of trees and grass - like living next to an apartment block)
View from our front garden during construction looking North towards 22 Albion Street
Looks like OUR front yard
New extension rising above the hedge
Views from #20 looking East prior to building work - The DA stated "The impact of the proposed development on views from nearby properties have been considered" Yes considered but now a view of the side of a house is the outcome
Heavy plant on our drive (RoC) while we were away in Queensland. Surely you would ask first!!
Our House was built in 1982 and encompasses passive solar design features to create a low impact environmentally sustainable dwelling. It is located in Sydney, New South Wales, Australia at latitude 33.868° South. All worked well until 2010 when Hornsby council allowed a non compliant over-height structure to be built to our North thus compromising our design & restricting solar access during the winter months. (Council stated "The proposed 9.3m height of the addition does not comply with the prescriptive measures of the Height element" Refer Hornsby council report D01352004 {ref2} -http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/applicationmaster/default.aspx?page=wrapper&key=345686). (I have since performed my own assessment, based on a trigonometric calculation, of the finished building and note a height of 10 meters which I suggest is a gross exceedance of the planning regulations. My understanding of the NSW planning legislation, is that the maximum building height allowable in these circumstances is 8.5 metres. (See Ref 26 “State Environmental Planning Policy [Exempt and Complying Development Codes] 2008 at paragraph 3:13 clause 1, and Ref 27 “Complying-Development-Customer-Guide-issued-APRIL-2011” at section 4.5). More significantly, this high point at 8.5 meters must be set back 8 meters from the rear boundary (See Ref 26 paragraph 3:17 clause 2a and Ref 23 section 4.6 clause 3:17). What a difference it would make to our solar access if these, what I understand to be mandatory legislated requirements, were imposed by council on this development application. We articulated this point very clearly in our submission to council in response to the DA, clearly stating that the building appeared to be close to 10 meters high with sections of the extension 5 to 6 meters from our boundary. How is it that Hornsby Council can allegedly so blatantly disregard the NSW state planning legislation especially in light of our detailed submission in response to DA94/2010 noting the significant impacts that such a tall structure would have on our property.) The main features of our design centre around the use of floor to ceiling glass on all doors and windows along the entire length of the large North facing profile. The use of a carefully calculated veranda geometry along this North profile allowed low elevation winter sun to heat the house while successfully screening the heating impact of high elevation summer sun. In this classic solar design, the objectives of winter solar heating are achieved whilst still providing shading from the impact of the heat of the summer sun. The original concept worked in harmony with the adjacent properties as the design allowed for the full benefit of all sun’s rays at an elevation of greater than 22.5 degrees as recommended in the Land and Environment planning guidelines. The distance from, height differential to, and other contributing factors of adjacent properties, in particular #22 to our North, were all allowed for in the creation of our passive solar house. The use of vegetation privacy screens on both sides of the common boundary with #22 to our North allowed a high degree seclusion noting our large glass frontage. Whilst the height of the vegetation screen is maintained at the ideal level, a perfect balance is achieved between privacy and solar access. Unfortunately as we learned in 2010, there is no protection of such designs from the impact of buildings constructed on adjacent properties. At the time our house was constructed the building regulations prevented any encroachment on our solar access. It appears that planning controls, as interpreted by local councils (Hornsby in our case), are unsympathetic to the needs of designs which attempt to reduce environmental impact.
In a passive Solar Design (Sydney Latitude) the low angles of sunlight at less than 22.5 degrees are regarded as having little effect* and so the impact of the original dwelling to the North (#22 Albion St) may be ignored. This is particularly true for our design when considering the suns winter trajectory in relation to the East West position of structures to the North. Thus in our design we make full use of the critical sun angles between 22.5° and 45°. ( *Ref 3 Land and Environment planning principles )
Having lived in this sustainable environment for 28 years our dreams were shattered in 2010 with the news that our new neighbour, Monica Thom, in the house to our North (#22) had submitted an application to Hornsby council to construct an extremely high extension under DA 94/2010. Unfortunately we received no prior warning of the intention to build this extension or any opportunity to engage in preliminary discussion about the impact of the proposed design on our lifestyle and solar access. We hurriedly put together what we thought was a comprehensive submission to Hornsby council clearly identifying the areas of negative impact on our property. We thought that the building regulations covering privacy, solar access and impact on private open space we be sufficient to offer a level of protection against such a design proposal. We were particularly upset with the wording used in the DA such as “We believe the effect of additional shadow cast from the proposed additions will not have any adverse effect on the adjoining properties” and “The proposed development has been designed to have minimal effect on the private open space of the subject property and adjoining properties” “The impact of the proposed development on views from adjoining and nearby properties have been considered”. We were never consulted in relation to any of these issues. You would think placing a 9.3m high structure 5m from your neighbour’s boundary would necessitate some level of discussion. (Refer Ref 1 Statement Of Environmental Effects D01332749)
In the submission to Hornsby council we went to considerable lengths to explain the passive solar design features of our house, with diagrams showing sun angles and the expected impact of the proposed development on the all important winter sun. Our understanding of NSW planning guidelines is that “Windows to north-facing living rooms on adjoining development to receive 3 hours of sunlight on 22 June (the winter solstice). We also clearly articulated that being a Battleaxe block, our very private front garden is designed as the principal private open space and is used for winter entertaining. Hornsby council has a clear definition of a dwellings principal private open space in their dwelling house development control plan {Ref 5). That is – an extension of the function of the dwelling house for relaxation, dining, entertainment, recreation and children’s play and to be accessible from the dwelling house. Orientation of private open space should provide for maximum year round use of sunlight. Our house design clearly utilizes our front garden area to our North (the only outside area to receive winter sun) with two large sliding glass doors opening out to the garden as our principal private open space. It is our only garden area that satisfies these council guidelines. Again with reference to NSW planning guidelines – provision should be made to allow 4 hours of sunshine to the private open space of adjacent dwellings when assessing DA’s.
When assessing the DA Hornsby council appeared to go out of their way to avoid the issue of sunshine to the private open space of adjacent dwellings. As noted above, living in a battleaxe block we use our very private front garden at the North of our property for entertaining during winter. We made 3 distinct references to this fact in the submission to council (Our outdoor setting is visible in the Satellite photos). Hornsby council however, decided that we should use our rear yard in future as our private open space even though this in no way satisfies councils own guidelines. As this rear garden area to the South was not impacted by the proposed development, the plans were passed. In their report, {ref2 Hornsby council Delegated Report Alterations & Additions D01352004}, Hornsby council stated “The shadow diagrams submitted with the application indicate that the shadows cast from the proposal would allow at least 4 hours of sunshine to the private open space required for adjacent dwelling-houses on 22 June (the winter solstice).” Hornsby council should have assessed the shadow impact to our all important front garden area. We informed Hornsby council that our rear garden was already in the shade during winter as it is to the South and approx 3.5m below the house floor level. It is a sloping area, hard for elderly relatives to reach and impossible for disabled friends to access. Hornsby council replied that the DA was approved and could only be overturned by a full Land and Environment court hearing. (Solicitors advice – you are looking at $25,000 to mount a challenge, $5000 to start)
In relation to solar access to North facing windows, in councils report, {ref2} they wrote in justification of allowing additional shading by the new building work – “Overshadowing already occurs of the front yard and north facing windows to the living areas of the adjoining property to the south, No. 22A Albion Street as a result ofthe vegetation adjacent to the northern allotment boundary and a 1.7m wide awning adjoining the northern side of the dwelling-house. The rear of No. 22A Albion Street is considered as the principal private open space “
When I subsequently questioned council about this statement (1.7m wide awning adjoining the northern side of the dwelling-house) they confirmed that they were referring to my veranda that forms the passive solar design of my house. Clearly, the whole intention of passive solar design is to block high elevation sun angles through summer to keep the house cool while allowing low elevation winter sun angles for winter heating. To try and suggest that it is acceptable to allow additional low elevation shadowing from adjacent structures, because the passive design feature is already providing shadow, is absurd (See Hornsby council Masterview hsconline). I thought that the planning guidelines (“Windows to north-facing living rooms on adjoining development to receive 3 hours of sunlight on 22 June (the winter solstice)”would have influenced the assessment. However Hornsby council wrote in their report “the north facing windows to living areas of adjacent dwelling-houses will receive 3 hours of sunshine over a portion of their surface on 22 June.” When I questioned what was meant by the term “portion of their surface” no explanation was provided. I understand that the NSW Land and environment court rulings state – “For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight”. Clearly no attempt was made to assess the existing level of solar exposure in terms of glass area illuminated (never 100% for passive solar design) or the resultant loss from the proposed development.
In terms of the statement in Hornsby councils report “Overshadowing already occurs of the front yard and north facing windows to the living areas of the adjoining property to the south, No. 22A Albion Street as a result ofthe vegetation adjacent to the northern allotment boundary”. Noting that council performed their assessment in February, the question must be askedhow the impact of the vegetation screen shadowing was estimated for the June solstice (Refer also Ref 4 AMCORD guidelines on vegetation). Inspection at that time would indicate no shadows with such high elevation sun angles. Surely to ask the owners who have lived in the house for the last 28 years would be a good starting point. (This was not done) Also, from my reading of the land and environment court’s planning principle relating to solar access they state. “Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal’s design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours.” A simple change in roofline from gable as was shown in the plans to a hipped roof which as per the existing house would have made a significant difference. However, no attempt was made to look at possible options. From Hornsby council's report the statement is made – “The proposed 9.3m height of the addition does not comply with the prescriptive measures of the Height element”
As a footnote - We moved into our house in 1982 and under the planning rules in place at the time we were guaranteed that we would never have any issues with regards to loss or compromise to our solar access. Even as recently as 2007 the planning rules would have prevented such significant development to our North. When in that year a neighbour to the west put in a DA (DA767/2007) to build an extension and a ground level deck we did not object as we felt it had minimal impact on our property. The council refused permission for the deck anyway stating “No approval is granted for the proposed ground floor level deck at the rear of the dwelling-house as it does not satisfy the objectives of the Privacy element of the Dwelling House DCP. The location size and height of the deck will have a detrimental privacy impact on the amenity of the adjoining allotments at No 22 and No 22A Albion Street. In 2010, a deck with views straight into our house is allowed.
Battered Retaining Wall Construction -Clearly NOT intended for pedestrian access let alone vehicular access. This demonstrates the agreed scope of the easement hence the clause allowing a boundary fence in this section.
…use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner [that is, the owner of the burdened land] agreed to accept. Reference (Harris v Flower) -http://www.stewartau.com/PUBLIC/multimedia/EasementsCovenantsCLESeminarPaper.pdf. See also Westfield V Perpetual trustee
It was understood that building regulations in place at the time the easement was created limited the ability to build any closer to the boundry with 22a
Clearly no pedestrian let alone vehicular access intended over the retaining wall - hence the provision in the title, at the time the easement was created, for a boundary fence To suggest otherwise clearly doesn't make sense.
…use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner [that is, the owner of the burdened land] agreed to accept.Reference (Harris v Flower) -
How could you walk or drive on this steep retaining wall - clearly not possible when the easement was drawn up
Moved into 22a Albion Street November 1982 and were welcomed by a number of our new neighbours. They were all very friendly with bottles of champagne from some and good wishes and small gifts from others. In the early days got to know Jack and Roselea at #22 and had initial discussions about the title with respect to the RoC easement and the provisions in the title for fencing along the common boundary of the battle-axe handle (South Eastern corner of #22 block of land). Jack was a keen gardener and asked if we would be happy to leave the driveway unfenced such that he could more easily tend to his lemon trees, vegie patch and flower garden. We readily agreed as it was early days since we moved in and we were happy to leave the status quo and wait and see how things worked out. It was not clear how access was achieved to the rear garden of #22 post tennis court and pre the provision of the driveway to #22a that was built in line with the requirements of the subdivision. The subdivision plans show a steep gradient, falling away North to South, with a sizeable gum tree at a point approximately in the centre of the current driveway just to the south of the original house (see title plans). The original subdivision plans submitted to council allowed for fencing along the entire length of the battle-axe handle on both sides with a restriction imposed on the type of fencing permitted closest to the street to be in line with the style of fence appropriate to the area. At the last moment, just prior to registration of the subdivision, a request was made to council to alter the fencing provisions to allow #22 the use of their existing driveway to access the garage under the South East corner of the original house (refer letter to council requesting changes to access provisions). This was bought about due to the fact that insufficient width was left in the remaining land allocated to #22, post subdivision, to allow vehicular entry without encroaching on #22a access handle. In this way the title for #22a had a limitation imposed to restrict the placement of any fence along the common boundary of the battle-axe handle closer than 16m from Albion Street. (16m is the point just past the Southern wall of #22 and roughly the point where the retaining wall falls sharply away to the South). The present and future occupiers of #22 could therefore still make full use of their driveway and gain access to their garage. Provision was also included in the subdivision deposited plans to allow certain use of the Southern section of the Right of carriage way to permit the owners of lot 21 to access the garage under the SE corner of the original house by means of driving from Albion Street in a forward direction in order to park. Subsequent exit from the garage was by means of reversing out of the garage, and reversing further down Lot 22 (22a) access handle (greater than 16m from Albion Street) prior to driving forward out to Albion Street. It was clear at that time that the fact the restriction to user clause allows for a fence to be erected along this Southern section of the handle that this was the intended use. An argument was put forward in 2010 that the intention of the easement was to allow vehicular access into the rear of Lot 21 but this would be in contradiction with the restriction to user clause and clearly doesn't make sense. How could access be achieved when a fence is constructed in this area according to the restriction to user clause? In hindsight it would have been better if more precise wording was used to describe the intended use of the shared Southern section of the battle-axe handle. At the time that the agreement was reached in the early eighties, the planning laws would have prohibited further development of #22 and in any case the terrain prevented vehicular access except to the very Southmost limit of the plot. Clearly there are also legal implications with any proposed changes that impact the servient tenement which should be explored in the first instance as it is understood that the use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner [that is, the owner of the burdened land] agreed to accept. Reference (Harris v Flower) - As time went on and friendships developed the need for a fence and the resultant privacy was far from our thoughts. After Jack passed away thoughts went back to the issue of privacy and the first post was erected in our front garden to the East, approximately 2 meters in from the existing fence. See photo
The Fence PART 1
Started to put money aside to re-locate the water meter and concrete the remaining driveway section at the top (North East section) of the drive. The work involving re-locating the driveway lights, digging up the flower bed and other landscaping tasks were left to yours truly. Even a chance to do my own concreting - I get to control the concrete mixer shute!!!!
What a shock when we received the letter from council regarding the intended development, by our new neighbour Monica Thom, of the rear of #22. No prior discussion to ask how it might impact us or what future plans we might have. How would our retirement dreams for the future layout of our front yard be taken into account if this proposed development took place? How upsetting especially noting the following situation. We were gathered at a BBQ (25th Jan) on the Australia day long weekend a few days before the DA went to council (2nd Feb) at the house of our neighbour to the SE. At that BBQ, I was enthusiastically prattling on about the impending installation of our roof mounted solar panels following the receipt of the applicable government grant in the 6th October 2009 (Ref AGO255105 ). I recall our neighbours to the South, who were long time friends with Monica’s brother, asked in front of us if Monica had any plans for alterations / extensions. Monica for some reason chose not to discuss the issue. In hindsight we realise that our neighbours to the South (friends of Monica’s brother) must have known what was about to happen, with the imminent submission of the DA, and wanted to give us an opportunity to discuss the impact on our house and garden (Yes Solar access is IMPORTANT for solar panels and a passive solar house). Imagine all this at a time when my mother had just passed away in the UK and we were making plans to return to the UK to pay our respects. At least we received a lot of support from the neighbours at the Australia day BBQ. How hard for us to have to deal with the DA, with its huge impact on our house and our way of life, while our thoughts were obviously with the family in the UK. On our return from the UK, Robyn and I went to talk with Monica about her approved plans. Our recollection of the discussion was that received lots of re-assurance, she told us that she may never go ahead, or she might sell and in any case she didn't intend to do anything until August / September. We talked about the significant shadow impact and recall Monica advised it was never her intention to take away sunlight. Talked with Monica about the possibilities of changing the roof line to minimize shadowing impact. Recall that Monica said she would talk with Jeremy. I later asked her about both drainage concerns (she said she would consider improving the easement capacity) and driveway access (I recall she stated she had no need for additional access). Suggested Monica talked to owners at #20 to gauge their opinion on the impending loss of view - said to Monica it would be a good idea if she asked if she could take a look from the next door deck to see the possible impact for herself. As the weeks and months passed it became apparent that the extension was going ahead no matter what. Detailed design drawings up on council web site, survey and mark outs on site. Started to realise that we were left with no option but to erect the fence. How could we justify the clause in the title regarding the fence after the extension was built and the access from our driveway was changed by means of the major earthworks and topographical transformation!!! My understanding is that "No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant; see generally the 1994 judgment of the High Court of Australia Gallagher v Rainbow and in particular the judgment of McHugh J Westfield / perpetual". Reference http://www.fig.net/pub/fig2012/papers/ts02j/TS02J_rendel_5711.pdf See video of initial fence cutting and our subsequent letter to Monicas first solicitor
As it turned out Roselea continued to reside at #22 and the above plans were forgotten for the time being. In the latter months of 2007, as #22 was prepared for sale, we started to negotiate with Energy Australia (enquiry. Ref=ENEB-79TSJZ) to have the replacement power pole (See red marker on diagram ) located to the East of the existing pole (pole ID 6102 and 1300 Green marker on diagram). This allowed for the driveway to be re-algned with the original sub-division plans permitting a straightforward entry and exit from our house up and down the access handle without the previous dog-leg configuration. The gate and fence half way down the drive would give a very defined delineation of our property (See Blue line on diagram)
This was all part of the "Grand Plan" to fence the Southern section of the drive, open up the front garden to allow vehicular turning and create a more permanent entertaining area. (See sketch)
Reference:- http://www.fig.net/pub/fig2012/papers/ts02j/TS02J_rendel_5711.pdf "No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant; see generally the 1994 judgment of the High Court of Australia Gallagher v Rainbow and in particular the judgment of McHugh J Westfield / perpetual".
Looks like no intended access Certainly not contemplated by the parties at the time of the grant
helmatoz@gmail.com
No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant!!!! See Ref 25 below
