PROSPEROUS TONE LTD. v. PEARL FAME DEVELOPMENT LTD.

CACV 1128/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1128 OF 2001

(ON APPEAL FROM HCA NO. 2196 OF 2000)

____________________

____________________

____________________

J U D G M E N T

____________________

Hon Le Pichon JA:

1. This appeal concerns a right of way over of a single lane private road that is situated in a quiet and exclusive part of Victoria Peak. Part of the private road falls within land belonging to the plaintiff known as No. 7 Pollock's Path. The defendant is the owner of No. 10 Pollock's Path having acquired it in early 1997 for redevelopment purposes. The house that once stood at No. 10 known as "Sky High", formerly the residence of chief executives of HSBC, has been demolished. The proposed redevelopment is a residential complex consisting of 5 houses. The proceedings below arose when, in connection with the redevelopment, the defendant used 24 tonne lorries over the private road.

2. The front entrance of No. 7 abuts the south side of Pollock's Path and faces north. At the rear but still forming part of the plaintiff's property is part of a private road. The private road itself leads off the southern part of Pollock's Path shortly after the junction with Plantation Road, running more or less parallel to Pollock's Path. It is both narrow and steep and leads up a slope from Pollock's Path. Prior to the present proceedings, it was the sole means for gaining access to Nos. 4 and 6 Pollock's Path (formerly known as RP of section E of RBL1), No. 8 Pollock Path (formerly subsection 2 of section B of RBL1) and No. 10 Pollock's Path which lies at the end of the private road. That part of the private road which is the subject matter of this action is at the rear of No.7, running along and forming its southern boundary. It belongs to the plaintiff and has been referred to during the trial and in the judgment below as the "access ramp" although as the judge noted, the description was not entirely apt. It is relevant to note that the northern boundary of No. 10 abuts onto Pollock's Path and since March 2000, vehicular access to No. 10 from Pollock's Path which is a public road is possible. A very steep haul road has been created on the site by the defendant. Accordingly, there is no question of No. 10 now being landlocked.

3. The central issue in this appeal is whether the judge was correct in holding that the defendant is entitled to use 24 tonne vehicles over the access ramp. The plaintiff seeks to limit the defendant's user to vehicles not exceeding 5.5 tonnes in weight. In practical terms, even if the plaintiff were to succeed, the redevelopment would not be jeopardized but it would have an impact on both time and cost: the project would take longer to complete and it would be more costly.

Background

4. The main events leading up to present proceedings may be summarised as follows. In March 1998, the defendant commenced demolition work at No. 10. Shortly thereafter, on 12 March 1998 the plaintiff obtained an ex parte injunction restraining the defendant from, inter alia, "severing, removing, defacing or damaging any building or structures" on No. 7. The plaintiff complained of trespass and damage to its property. One of the complaints was that, in total, nine sections of steel railings belonging to the plaintiff and attached to its land which served to fence off the access ramp on its edges against the slope had been sawn off. That action (HCA No. A3919/1998) was settled when the defendant and the plaintiff entered into a Deed of Undertaking on 9 July 1999 ("the undertaking"). Under the terms of the undertaking, the defendant undertook to refrain from, inter alia, being at or upon No. 7 "save to pass along the right of way granted to [the defendant] under the government lease" of No. 10 and "severing, removing, defacing or damaging any building or structures" on No. 7. It is worth noting that the lorries used for the demolition work were 5.5 tonne vehicles.

5. In about February 2000, site formation work commenced at No. 10. Lorries of 24 tonnes were used and these gained access to the site via the access ramp. The plaintiff alleged (in paragraph 10 of the Statement of Claim) that the defendant had wrongfully and in breach of the undertaking committed the following acts:

(a) dismantling the plaintiff railings and relocating them from their original position to new locations;

(b) defacing, damaging and/or removing the plaintiff's railings;

(c) damaging by breaking, cracking, dislodging or causing to subside parts of the access ramp, including the road surface, kerb and foundation of the plaintiff's railings;

(d) without the consent authority or knowledge of the plaintiff, placing steel protection plates along the access ramp; and

(e) without the consent, authority or knowledge of the plaintiff, injecting construction materials namely epoxy into or onto the surface of the access ramp.

It was the plaintiff's case that these acts amounted to acts of trespass and/or damage to No. 7. It was also the plaintiff's case that the defendant's right of way was restricted by the physical characteristics of the access ramp (in particular the design surcharge loading of the caisson wall supporting it,) to use by vehicles not exceeding a gross maximum weight of 5.5 tonnes.

6. On 1 March 2000, the plaintiff obtained an ex parte injunction from Deputy Judge Chu (as she then was) restraining the defendant until the hearing of the inter partes summons or further order whether acting by itself or by servants or agents from passing and re-passing in vehicles with a gross weight in excess of 5.5 tonnes over the access ramp and further relief. On 20 March 2000, by consent, Waung J continued the injunction granted on 1 March 2000 until further order. The trial before Deputy High Court Judge Longley commenced on 18 December and lasted some 20 hearing days.

7. The relief claimed by the plaintiff may be summarised as follows:

(1) An injunction to restrain the defendant whether acting by itself or its servants or agents or any of them or otherwise howsoever from:

(i) passing and re-passing along the access ramp in vehicles with maximum gross weight exceeding 5.5 tonnes otherwise than in lawful exercise of the right of way granted to the defendant by virtue of the 1995 Memorandum;

(ii) further severing, removing, re-locating, defacing or damaging any structures constructed on the access ramp;

(iii) further damaging the access ramp whether by cracking, breaking, dislodging or howsoever otherwise damaging its surface;

(iv) further leaving or placing steel protection plates or other construction materials along the access ramp or injecting epoxy or other construction materials on/into the access ramp or on any other part of No.7."

(2) An order that the defendant restore and/or repair to the satisfaction of the plaintiff's expert the railings, the broken foundation of a part of the plaintiff's railings and the damaged parts of the kerb along the access ramp.

(3) An order that the defendant restore and/or repair the damaged parts of the access ramp where cracking, breaking or subsistence of cement appeared upon practical completion of all construction works at the defendant's construction site as certified by the defendant's architect.

(4) An order for the removal of all steel protection plates left or placed on the access ramp.

(5) An order that the defendant do forthwith at its own cost set up checkpoints to monitor the vertical and horizontal movements of the caisson wall and L-shaped wall of No. 7, collect readings from those checkpoints and forward such readings to the plaintiff's appointed surveyor in such manner, at such locations, and at such intervals as directed by the plaintiff's expert.

The plaintiff also asked for damages for (a) breach of the undertaking; and (b) trespass and/or damage to No. 7 as well as interest and costs.

8. The judge granted relief substantially under heads (1)(ii), (2) and (5) in the preceding paragraph but refused the other relief sought.

Conveyancing history

9. No. 7 formed part of the land which was the subject matter of Re-grant No. 4784 made on 5 April 1952 ("the 1952 Grant") to the Asiatic Petroleum Company (South China) Limited later known as the Shell Company of Hong Kong Limited ("Shell"). The subject matter of that grant comprised a large piece of land situated on the northern side of Pollock's Path and a much smaller piece of land on the southern side of Pollock's Path trapezoidal in shape. It is this latter piece of land that is now No.7. The access ramp ran along the southern side of the trapezoid forming its southern boundary. The land immediately south of No. 7 is RBL 540 or No. 8 Pollock's Path, currently the residence of the French Consul General. Although the 1952 Grant itself made no reference to the access ramp, it is depicted on the plan annexed to it and signed by the parties thereto.

10. On 23 February 1955, Shell (formerly the Asiatic Petroleum Company (South China) Limited) the then lessee of No. 7 and the Registrar General for and on behalf of the Governor entered into a memorandum of agreement ("the 1955 Memorandum") to the following effect:

"(a) that the existing right of way over the private road situate at the southern boundary of Rural Building Lot No. 671 and shown hatched green on the plan hereto annexed is exclusively reserved to and for the benefit of the Lessees of Rural Building Lot Nos. 540 and 513

(b) that the within-named Lessee is and shall be relieved from the liability for upkeep and maintenance of the said private road and

(c) that so far as hereby modified the terms and conditions of Renewal (NO. 4784) shall remain in full force and effect."

(emphasis added)

As noted above, RBL Nos. 540 and 513 were referable to No. 8 and No.10 respectively.

11. By an indenture dated 9 July 1960 ("the 1960 lease"), a lease of No. 10 was granted to the defendant's predecessor-in-title, namely the Hong Kong and Shanghai Banking Corporation ("the Bank")

"TOGETHER with a free and uninterrupted right for the [Bank] its tenants servants visitors workmen and other persons authorized by the [Bank] in that behalf from time to time and at all times during the continuance of this demise for all purposes connected with the proper use and enjoyment of the said demised premisee to pass and repass on along over by and through those portions of the Remaining Portion of Section B of Rural Building Lot No. 1 aforesaid [i.e. No. 7] and the Remaining Portion of Section E of Rural Building Lot No. 1 [i.e. Nos. 4 & 6] coloured green on the said plan and thereon marked 'Right of Way'".

Notwithstanding this express grant, it is apparent that the Crown was not the immediate owner of the land over which this right of way existed. Moreover, it is also clear that the Crown was not in a position to grant a right more extensive than what it had expressly reserved to itself by virtue of the 1955 Memorandum.

12. But what was the "existing" right of way referred to in the 1955 Memorandum? The only conveyancing document in evidence that throws any light on that question is a memorial of an agreement dated 25 June 1948 ("the 1948 Agreement") made between Jardine Matheson and Company Limited ("Jardines") of the first part Cable and Wireless Limited ("C&W") of the second part and Reidar Johannessen ("Mr Johannessen") of the third part, being respectively the owners of Nos. 4 and 6, No. 8 and No.7. Pausing here, it is to be noted that in 1948 the owner of No. 7 was Mr Johannessen although by 1952 Shell had become its owner. It recited, inter alia, that C&W and Mr Johannessen respectively the owners of No. 8 and No. 7

"... had been granted or were otherwise well and sufficiently entitled to a right of way over and along a private road ... shown on a Plan attached to certain Conditions of Grant of a New Crown Lease of RP of Subsection 1 of section B of RBL1 dated the 27th day of February 1948 and signed by [Mr Johannessen] and the Director of Public Works ... such Plan being dated the 28th day of February 1948 and thereon coloured Green and which said private road was used by the parties thereto in common as a means of ingress and egress to and from the thereinbefore mentioned pieces or parcels of ground held by them respectively from the Crown." (emphasis added)

It then recorded that the parties to the 1948 Agreement had agreed to make provision for the maintenance and upkeep of that private road (of which the access ramp formed part) and for the apportionment amongst them of the cost of so doing. The body of the 1948 Agreement provided that

"(a) So long as the said private road ... shown coloured Green on the [1948] Plan or that of it situate on the Remaining Portion of Section E of RBL1[viz. Nos. 4 & 6] should not be repairable as a public road or highway ... they should keep the said private road in a state of good and sufficient repair and condition jointly."

It was further provided that the cost of maintaining the private road was to be borne as to one third by each of the parties to the deed which was expressed to have been made and binding on their successors and assigns.

13. Neither the 1948 plan nor the 1948 Conditions of Grant was in evidence. However, several matters are reasonably clear from the 1948 Agreement. First, the "private road" referred to meant the entire length of the private road leading off Pollock's Path rather than just the access ramp which is part of No. 7. Second, it would appear that that portion of the private road between Pollock's Path and the access ramp belonged to the owners of Nos. 4 and 6. Third, even at that time it was inconclusive whether the right of way enjoyed by the owners of No. 7 and No. 8 over the private road was by grant or acquired by prescription. (Strictly speaking, the right of way enjoyed by the owner of No. 7 would have been over part only of the private road viz. between Pollock's Path and the access ramp i.e. that part on the Remaining Portion of Section E (Nos. 4 & 6).) Fourth, no reference was made to No. 10 or to any right of way in its favour over the private road including the access ramp.

14. Shell became the new lessee of No. 7 under the 1952 Grant. So far as concerned No. 8 (i.e. RBL 540), the 1948 Agreement is evidence that the owner of No. 8 did enjoy a right of way over the private road as at its date. Accordingly, "the existing right of way" referred to in the 1955 Memorandum could very well have been referable to the right of way mentioned in the 1948 Agreement. So far as No. 10 (RBL 513) was concerned, its owner was not a party to the 1948 Agreement and no reference (express or implied) to No. 10 or its owner is discernable from the 1948 Agreement.

The right of way

15. It would appear that by the time the 1955 Memorandum was executed, the owner of No. 10 did have a right of way over the access ramp and that, as a matter of inference, it was similar to the right of way the owner of No. 8 had over it. However, how that right was acquired is not known. Counsel for the defendant accepted that he could not point to any documentary evidence evidencing a grant of a right of way by the owner of a No. 7 in favour of his client's predecessor-in-title. Indeed, it would appear that there was no attempt at locating documents of title relating to No. 10 prior to the 1960 Lease. It would also appear that a key question i.e. the source of the right of way claimed by the defendant as owner of No. 10 had somehow been lost sight of.

16. As noted above, the right of way in question could have been by grant and, equally, it could have been acquired by prescription. Counsel for the defendant sought to suggest that prescription is not possible in Hong Kong relying on the decision of Deputy High Court Judge J Chan (as he then was) in Tang Tim-fat v Chan Fok-kei [1993] 2 HKLRD 373. However, the Court of Appeal in Chung Yeung Hung v Law Man Nga [1997] HKLRD 1022 doubted the correctness of that decision. Both Godfrey JA and Mortimer JA (at 1025H and 1028J respectively) considered it arguable that the common law and the Prescription Act 1832 had been modified so that in Hong Kong a leaseholder may acquire a right of way under the Prescription Act or by way of lost modern grant over another leaseholder's land. Where the easement is acquired by long user, the right acquired must be measured by the extent of the enjoyment which is proved. See per Bovill CJ in Williams v James (1867) LR2 CP 577 at 580.

17. In construing the defendant's right of way, the judge and, it would appear, counsel appearing below, mistakenly believed that the predecessor-in- title of the defendant was a party to the 1948 Agreement. That apart, the judge approached the construction of the right of way on the basis that it was created by an express grant contained in the 1960 Lease. Since that grant was "for all purposes connected with the proper use and enjoyment of the premises", he held that it included the right to develop the property such that the passage of construction vehicles fell within the express terms of the right granted to the owner of No. 10. He concluded that the express wording of the grant of the right of way contemplated vehicular traffic and was sufficiently wide to cover the use of the access ramp by construction vehicles including those of 24 tonnes.

18. But this was not a case where the Government was in a position to create a fresh right of way over adjoining land which it owned in favour of the owner of No. 10. At the time of the 1960 Lease, all the Government had was what it had reserved to itself through the 1955 Memorandum which was limited to the right of way as it had existed in 1955. The judge's finding referred to in the preceding paragraph was accordingly based on a wrong premise. There was no evidence before him to support any finding that the right of way granted in the 1960 Lease accurately encapsulated the scope of the right of way that existed at the time of the 1955 Memorandum. The grant contained in the 1960 lease was not the source of the defendant's right. In my view, his finding (at 11F of the judgment) that the express wording of the grant of the right of way was sufficiently made to cover the use of the access ramp by construction vehicles including those of 24 tonnes cannot be sustained and must be set aside.

19. Until the mid-1970s, the site upon which No. 7 now stands was an empty site. The house now standing on No.7 was effectively built on a slope with the upper storeys rising from and leaning against the retaining walls of the slope. A caisson and retaining wall were built at that time to support the access ramp which is located south of the house and at a higher elevation. The steepness of the site falling from the access ramp to Pollock's Path is evident from the fact that the front entrance of the house opens onto Pollock's Path whereas the access ramp at the rear is level with the 3rd floor and upwards of the house. At the trial below, the focus was on the loads designed for the caisson and retaining wall. This was because the parties and the judge proceeded on the basis that this would have been designed to support the traffic load of the right of way.

20. It was common ground that in designing the caisson and retaining wall the architect had provided for an equivalent surcharge on the right of way of a uniform load of 11.5 KPa. What was in dispute was whether this was to cater for a traffic loading and, if so, whether it would accommodate the use by 24 tonne trucks. This inquiry in turn focused on the stability of the slope. The judge found that the design loading of 11.5 KPa was a design sufficient to cater for normal traffic HA loading and that HA loading was sufficient to cater for the passage of 24 tonne trucks. Based on that finding, he drew the further inference that the physical characteristics of the right of way at the time of its grant were not such as to limit to vehicles of gross maximum weight of 5.5 tonnes or less. In passing, it is worth remarking that the design standard for HA loading was subsequently changed from 11 KPa to 20 KPa.

21. Whilst a finding that the design loading of the caisson and retaining wall does not cater for trucks of 24 tonne would have been conclusive that the right did not extend to the use of 24 tonne trucks, the reverse does not necessarily follow. In other words, a finding that the design loading does cater for such traffic does not mean that the defendant's right so extended. In my judgment, to extrapolate from the design loading of the caisson and retaining wall built in the mid-1970s in connection with the construction of No.7 an inference that it reflected the extent of the right of way was to approach the problem from the wrong end. This is because the relevant inquiry is the nature and extent of the right as it existed at the time of the 1955 Memorandum rather than the design loading of what was constructed in the mid-1970s. As such, it could shed little light on the design loading of the access ramp prior to the work being carried out in the mid-1970s. If in fact the design loading was relevant, it is unclear whether the access ramp could have supported normal traffic HA loading (and therefore could have sufficiently accommodated the use by 24 tonne vehicles) prior to the construction of the caisson and retaining wall in the 1970's. Since it is the defendant who is asserting that the access ramp was suitable for use by 24 tonne vehicles prior to the construction work carried out in the mid-1970s, it bears the burden of proof. In my judgment, that it has failed to do.

22. It is to be noted that there was another aspect of the evidence that the judge appears to have overlooked and that is whether the road pavement was built for heavy loads. The surcharge applied to designing the retaining walls is not necessarily the same as that applied in designing the pavement for the access ramp. This is evident from the evidence of the experts for both parties. At section 5 of the report dated July 2000 from the plaintiff's expert, Atkins China Limited, it is recorded that:

"Logically, the surcharge load should be equal to the design load on the pavement. In reality, however, it is possible that the pavement might have been designed and built for a lower load intensity because of the remoteness of location, narrow width discouraging usage by heavy vehicles and the low volume of traffic. The actual capacity of the pavement cannot be ascertained without a proper ground investigation of the site. Nevertheless, it is clear that the road surface is cracking up badly under the usage by the heavy construction lorries weighing up to 24 tonnes. This is a strong indication that the pavement had not been designed and built to accommodate usage by such heavy vehicles....."

At para. 4.2.3 of his report, Dr Littlechild, the defendant's expert, opined that:

"I consider that the damage to the road surface is due to the road pavement not having been built for heavy loads. I am not in a position to form an opinion as to how much deterioration of the road pavement is due to recent traffic. This has nothing to do with the performance or design of the retaining wall and anchors."

This matter was not addressed by the judge at all. On the experts' evidence, the implication to be drawn is that the road pavement was not designed to withstand the load intensity required by 24 tonne vehicles.

23. Whilst it is regrettable that no effort appeared to have been made to ascertain the source of the right of way claimed by the defendant, it is accepted by the plaintiff that the defendant does have a right of way over the access ramp and that such right was not restricted to a right on foot only. The plaintiff acknowledged that it extended to vehicles but that given the situation and physical characteristics of the access ramp, i.e. its steepness and narrow dimensions, it was not meant to accommodate 24 tonne vehicles.

24. Such evidence as there is concerning the right of way in 1955 points to the private road being used for ingress and egress to the properties abutting it. Houses had been erected on Nos. 4 and 6, No.8 and No. 10 as is apparent from the 1952 plan. The then ownership of the properties concerned and the location of the private road in an exclusive enclave on the Peak are telling factors: these were residences of taipans of post-war Hong Kong. That being so, I agree that access would have extended to vehicular access. But it does not follow from the fact that the right of way extended to vehicles that the defendant had a right to use any type of vehicles, regardless of size and weight. The nature of a right of way reserved in a conveyance must be ascertained from the words of the reservation read in the light of the surrounding circumstances which included the width and physical characteristics of the track. See White v Richards (1993) 68 P & CR 105. At its narrowest, the access ramp measures only 2.6 metres exclusive of the gutter. It was also on a steep gradient. Given the physical characteristics of the private road, its location, the surface paving and the absence of credible evidence in terms of traffic loading prior to the mid-1970s, the judge could not reasonably have found that the right of way extended to construction vehicles of 24 tonnes.

25. If (contrary to my view) the right did extend to 24 tonne vehicles, it would be relevant to consider the question of excessive user.

Excessive user

26. From the outset, the plaintiff complained that the use by the defendant of 24 tonne trucks caused cracks to the road surface. The judge noted that prior to the plaintiff obtaining an interlocutory injunction, the defendant had effected repairs by the use of epoxy and concrete and protected cracked surfaces by placing steel protection plates on the road surface. At the site visit, the judge noted that cracks to the road surface were visible. The road surface consisted of a number of concrete slabs. The damaged slabs tended to be those which had metal strips exposed in the concrete at the edges. The judge found that "the use of 24 tonne trucks had further damaged these older vulnerable and already cracked concrete slabs and the curb (sic)". He proceeded to set out in some detail the evidence which supported such a finding. He referred to the evidence of the surveyor who had paid site visits on 11, 14 and 26 February 2000. The judge was satisfied that the photographic evidence showed that damage was caused to the access ramp during the course of the 15 days between the first and the last visits mentioned. In his report, the surveyor had referred to cracks which appeared in photographs 11, 21 and 22. The judge found that

"... those cracks had probably either first occurred between 14 February and 26 February or at least their condition had worsened between those two visits. Bearing in mind that it was over the period in question that the 24 ton trucks were using the ramp, I consider it probable that the damage to the curb (sic)and these cracks were attributable to the use of the access ramp by 24 ton trucks."

As the judge pointed out, the laying of metal plates on the damaged areas in the road itself suggested that the defendant's contractors were aware that the lorries were causing additional damage to road. The report of Paul Tong and Associates who were responsible for category 1 supervision reports concerning the site formation works at No. 10 confirmed that fact. The report for the month of February 2000 commented that

"[t]he road surface of the right of way was deteriorating due to frequent use of construction vehicles ... Protective steel plates were adopted to protect the concrete surface from construction traffic ..."

27. There is thus clear evidence of physical damage not only to the surface of the road but also to the kerb and railings. Mr Scott SC submitted that any user of a positive easement of a right of way does not extend to permit damage to a roadway. Where the road is a made road it is a structure and any damage to the structure amounts to excessive user. Further, physical damage would be sufficient to establish private nuisance. Mr Scott SC referred to White v Richards (supra). Having found that in the four month period from October 1989 there were on average 14 to 16 heavy lorries of 38 tonne laden weight using the track in and out every day, the judge concluded in these terms:

"The essence of excessive user is that it is user to such an extent as to interfere with the reasonable right of other persons to use the like right and this must include use which damages the surface of the route itself making it less easy and comfortable to use. In my opinion the events of October 1989 to January 1990 were the plainest of cases of excessive user. Not only were very heavy lorries constantly using the track, some at excessive speeds, but the track itself and its surroundings were being torn apart."

The judge's conclusions appear in the judgment of the Court of Appeal at 113.

28. It is well-established that a user which interferes with the rights of others amounts to excessive user. See Jelbert v Davis [1968] 1 WLR 589. In that case, agricultural land had been conveyed together with "the right of way at all times and for all purposes over the driveway .... leading to the main road in common with all other persons having the like right". Whilst the wide terms of the grant permitted use of the driveway for vehicular traffic of a kind different from that contemplated at the time of the grant, and therefore for caravans, the Court of Appeal held that excessive user of the way such as would interfere with the rights of "other persons having the like right" or cause a legal nuisance would fall outside the terms of the grant, looked at in the circumstances at the date when it was made. White v Richards was but an application of that principle. The approach of the judge in that case was upheld by the Court of Appeal. I would respectfully agree. I would add that in the present case, it is quite clear from the photograph at page 176 of the Core Bundle that the access ramp is not sufficiently wide to accommodate user by a 24 tonne vehicle and pedestrians at the same time.

29. There was also the evidence of Dr Roger Sze, the plaintiff's consulting engineer. He gave evidence to the effect that between 10.00 a.m. and 11.00 a.m. on 21 February, no fewer than five 24 tonne lorries went along the access ramp. That is equivalent to one every 12 minutes. The following passages from his evidence illustrate, almost graphically, what the passage of a 24 tonne truck down the access ramp entails:

" .... when the lorry passing through the narrow bank. When the lorry approaching this narrow bank, because the road is very, very narrow, it has to be stopped and stopped and stopped ....

Court: So you were standing really on the access ramp at the western end of ...

A. That's right.

Court: Behind - behind the western end of 7 Pollock's path?

A. Western end, yes, that's right.

Q. Just at the lower boundary?

A. Yes, just at the lower boundary. I can --I can feel severe vibration.

Court: So you were standing actually on the roadway?

A. That's right. The other location where ....

Court: And it -- can you say that that is close to where the road is narrowest, is that right?

A. That's right.

Court: Where you were standing is close to where the road is narrowest?

A. Yes, and bend as well; the road is bended as well.

Court: So close to where the road bends ...

A. And narrows.

....................

A. My Lord, I prepared a slide showing why the lorry has to be stopped and go near this narrow -- narrow bank. We have another set across that path which is tracing the -- the movement of the lorry when this -- when it come in view.

Q. So it is to explain why there is this dynamic loading?

A. That's right.

Court: I'm not sure that I understand this dynamic loading. I can understand what you mean by jumping up and down on the scales, but these lorries are not bouncing up and down, or are they bouncing? You say the braking causes some sort of bounce, is that what you're saying?

A. Because the lorry is carrying load and the suspension holding the load and the lorry as well and the two steel plate here and one steel plate here, and the steel plate is they got iron bar welding on the steel plate to prevent the lorry steering and the manoeuvring of this lorry when it running down here and there's a combination of action of either turning the narrow bank, stop and go, and causing suspension and the bouncing of the -- causing the bouncing of the steel, the lorry is jumping up and down, jumping up and down, something like that."

In all the circumstances, I have little hesitation in concluding that user of 24 tonne trucks along the access ramp constituted excessive user.

Breach of the undertaking and trespass

30. The judge found that the dismantling and relocation of the plaintiff's railings at the western end of the access ramp as well as the damage to the kerb along the access ramp amounted both to trespass and breach of the undertaking. He therefore made an order restraining the defendant from further severing, removing, relocating, defacing or damaging any structures belonging to the plaintiff on the access ramp. However, he specifically held that the surface of the roadway was not a structure for that purpose. It is that latter finding that is challenged by the plaintiff. A consequence of the judge's finding as to the meaning of structure was that it led him to hold that the use of epoxy and the placing of steel plates over cracked areas amounted neither a trespass nor a breach of the undertaking. He therefore declined the relief sought under heads (1)(iii) and (iv), (3) and (4) of the prayer for relief set out in [7] above.

31. Mr Scott SC submitted that a structure meant nothing more than a thing constructed and did not need to enclose anything. The surface of the roadway was man made and three dimensional. I am inclined to agree. It is not apparent why the surface of the roadway which had to be constructed by the laying of concrete slabs is any different from the railings erected by the plaintiff on its land. In my judgment, the surface of the road as well as the kerb is a 'structure' for the purposes of the undertaking. It would follow that the injection of epoxy and the placing of steel plates over the cracked areas constituted both a trespass and a breach of the undertaking.

Order

32. I would allow the appeal and set aside the order dated 30 March 2001 save for paragraphs 2, 3 and 4 of that order. In addition, I would propose that:

(1) The defendant be restrained whether acting by itself or its servants or agents or any of them or otherwise howsoever from doing the following acts or any of them, namely:

(i) passing and re-passing along the access ramp in vehicles with maximum gross weight exceeding 5.5 tonnes;

(ii) damaging the access ramp whether by cracking, breaking, dislodging or howsoever otherwise damaging its surface;

(iii) leaving or placing steel protection plates or other construction materials along access ramp or injecting epoxy or other construction materials on/into the access ramp or on any other part of No. 7, Pollock's Path;

(2) The defendant do forthwith restore and/or repair the damaged parts of the access ramp where cracking, breaking or subsistence of cement surface have appeared as identified in Appendix III to Exhibit "LBY-8" of Ling's Affirmation.

(3) The defendant do forthwith remove all steel protection plates left or placed on the access ramp as identified in Appendix III to Exhibit "LBY-8" of Ling's Affirmation.

(4) The defendant do pay damages to be assessed for breach of the Deed of Undertaking and/or for trespass, together with interest.

I would also make an order nisi that the costs here and below be to the plaintiff.

Hon Chung J:

33. I agree.

Hon Rogers VP:

34. I also agree with the judgment of Le Pichon JA. There will therefore be an order as proposed.