Easements and Profts
Cameron Stewart
Thanks to Jim Helman and Sahe
McCrystal – errors are mine
(c) Cameron Stewart 2009
What is an easement?
• Halsbury’s Laws of England:
A right annexed to land to utilise other land of
different ownership in a particular manner (not
involving the taking of any part of the natural
produce of that land or any part of its soil) or to
prevent the owner of the other land from utilising
his land in a particular manner.
• Corporeal rights – those things that are tangible
eg. land
• Incorporeal rights – those things that are
intangible eg. easements and other legal rights.
(c) Cameron Stewart 2009
Positive easments
• An easement may be a positive easement - a right
to do something on someone else's land.
Examples of recognised positive easements
include:
• the right to place electricity and telephone wires
over neighbouring land;
• a right of way over a neighbour's land;
• the right to discharge water onto neighbouring
land from a drain;
• the right to fix a signboard on a neighbour's land.
(c) Cameron Stewart 2009
Negative easments
• An easement may also be negative, which
restricts what the neighbour can do on his or her
land. Examples of recognised negative easements
are:
• an easement of light to receive light for a certain
window;
• an easement of air, to receive air through a
defined channel like a ventilation shaft;
• an easement of flow of water, to receive a flow of
water along the waterways - ie the neighbouring
owner cannot block the flow of water.
(c) Cameron Stewart 2009
Easements are not...
• Natural Rights – Rights that are incidental to land
ownership and automatically arise in the bundle of
rights attaching to a freehold estate. You don’t have to
acquire them – they just automatically attach.
– Right to support for land in its natural state (not built on –
right not to have earth undermined);
– Right to the flow of water. Any other rights necessary to
enjoy the land must be acquired as easements.
• Personal Rights – rights enforceable in contract that
don’t attach to the land – for example a licence to
enter land for a certain purpose.
• Exclusive possession – that’s a lease
(c) Cameron Stewart 2009
Four characteristics
Four essential characteristics: Considered in Re
Ellenborough Park [1956] 1 Ch 131
• must be a dominant and servient tenement.
• the easement must accommodate the dominant
tenement.
• can't be common ownership of the dominant and
servient tenement (but see the Conveyancing Act
and section 88B).
• the right must be capable of forming the subject
matter of a grant.
(c) Cameron Stewart 2009
Dominant and servient tenement
• The easement cannot be for the benefit of a
person.
• It must be for the benefit of another piece of
land, the dominant tenement.
• If the benefit merely flows to a person, then it is a
licence, not an easement.
• Ascertaining whether or not a right is attached to
the dominant tenement or is merely a personal
right requires construction of the instrument
which created the right
(c) Cameron Stewart 2009
Dominant and servient tenement
• Whether it creates a right which affixes to land – is it
meant to be enforceable against all the world? Is it
something that the owner of the dominant tenement
will need / want for the enjoyment of that land? (easy
to demonstrate for example in the case of a right of
way for landlocked land).
• What land is intended to be the dominant tenement?if this is not clearly identifiable from the instrument –
extrinsic evidence may be adduced to ascertain this,
but only on the basis of ‘objective factors’ like layout of
the land and actual use at the date of the granting of
the easement
(c) Cameron Stewart 2009
Dominant and servient tenement
• This position has been altered in relation to
some easements classified as ‘easements in
gross’ created pursuant to section 88A of the
Conveyancing Act 1919.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• There must be a connection between the
easement and the enjoyment and occupation of
the dominant tenement. In other words the
easement must confer a benefit upon the
dominant tenement.
• The benefit conferred must be connected to the
land of the dominant tenement and not just be a
personal privilege or commercial advantage
accruing to the current owner of the dominant
tenement
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• The crucial question here is whether the
privilege provided by the easement has a
‘necessary connection’ with the land: is the
easement reasonably necessary for the better
enjoyment of the dominant tenement as a
parcel of land?
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• Must it be adjoining land? No but probably needs to be close to get
benefit
• Re Ellenborough Park [1956] 1 Ch 131
• Estate created in 1855
• The purchasers of the land adjacent to the park and other blocks
within 100 metres of the park were given rights to use the park as
‘pleasure ground’ provided that they contributed to its upkeep.
• During WWII the military had occupied the park and then paid the
owner of the park compensation for use
• Should the owners of the houses (who had long since changed from
the original grantees) get some of the compensation as they had
been denied their rights under their easements?
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
There were two main issues in the case:
• Could a right to a ‘pleasure ground’ constitute
an easement? Did it ‘accommodate’ the
dominant tenement?
• Could the owners of the land not directly
bordering the park also claim an easement
given that they were not directly next door?
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• How do you show accommodation? Lord Evershed MR @ 173:
It is not sufficient to show that the right increased the value of the
property conveyed, unless it is also shown that it was connected
with the normal enjoyment of that property. It appears to us that
the question whether this connexion exists is primarily one of fact,
and depends largely on the nature of the alleged dominant
tenement and the nature of the right granted.
• Was the right to use the pleasure park connected to the use and
enjoyment of the houses that the right had been granted to? The
court said yes because the park was intended to be a garden for
these properties – use of a garden enhances and is connected to
the normal use and enjoyment of land – so is capable of forming an
easement.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• What about the second issue: the houses that
did not border the park?
• Easements were also found to have attached
for these houses as well because, despite the
fact that they were not directly next to the
park, the nexus between the use and
enjoyment of the park and their land could
still be found.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• Land that has the benefit of an easement may
be subdivided and each part of the subdivided
land has the benefit of the easement.
• Land that is consolidated does not confer on
any part of the land that does not have the
benefit of the easement any rights it did not
have before.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• Gallagher v Rainbow (1994) 179 CLR 624
• Private Road jointly owned by lots 14, 15, 16, 17. Each have
¼ ownership and an easement to use the other ¾ of the
road (cross easements). The owners of 2 of the lots decide
to subdivide into 3 smaller lots. The owner of 1 of the lots
that was not going to be subdivided brought an injunction
to restrain the owners of the lots to be subdivided from
using the easement to carry out the subdivision. She
argued that the easement only applied to the larger lot and
if it was subdivided then it would not attach to the smaller
subdivided components. (In this way hoping to prevent the
subdivision because she would then refuse permission for
the owners of the subdivided lots to use her ¼ of the road).
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• Per Brennan, Dawson and Toohey JJ at 633 –
An easement is no mere personal right; it is attached to the
dominant land for the benefit of that land. To the extent that any
part of the dominant land may benefit from that easement, the
easement will be enforceable for the benefit of that part unless the
easement, on its proper construction, benefits the dominant land
only in its original form.
• In this case, the easement would attach to each of the new
subdivisions because the easement provided access for all of the
land of the dominant tenement and was not one that could only
benefit the whole dominant tenement in its original form.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
• Frater v Finlay (1968) 91 WN (NSW) 730
• Easement to receive water with obligation to
pay half the cost of keeping the well and pipes
and tanks and equipment in good order and
condition
• Two easements or one?
• Cannot, in itself, amount to an easement
independent and separate from the easement
to receive water.
(c) Cameron Stewart 2009
Accommodation of the dominant
tenement
Newton DCJ:
Viewed on its own, the obligation to contribute could
not comply with the second essential of an easement,
namely that it must accommodate the dominant
tenement. This means that what is required is that the
right “accommodates and serves the dominant
tenement and is reasonably necessary for the
enjoyment of that tenement; for if it has no necessary
connection therewith, for although it confers an
advantage upon the owner and renders his ownership
of the land more valuable, it is not an easement at all
but a mere contractual right personal to and
enforceable between the two contracting parties”.
(c) Cameron Stewart 2009
The dominant and servient tenement must not
be held and occupied by the same person
• You cannot have an easement over your own land
• Statutory exceptions to this rule now exist:
• CA s 88B – Recording or registering a plan of land
indicating an easement creates an easement even
if the dominant and servient tenement are in the
same ownership (old system or Torrens).
• RPA s 46A –Allows owner of common land to
register easements with respect to that land; Also
not s 47(6) provides that easements recorded on
Torrens Register are not extinguished because
land comes into common ownership.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• What sort of rights can be easements?
• The right cannot be too broad or imprecise. It has to
be defined sufficiently well to be capable of
constituting an interest in the servient tenement.
• Re Ellenborough Park [1956] 1 Ch 131 – mere right of
recreation? No - defined utility
• Riley v Penttila [1974] VR 547. A subdivision for
residential development included an area “for the
purposes of recreation or a garden or a park” and the
Victorian Supreme Court held that the right granted to
the owners of the surrounding residential blocks to use
the communal area was an easement.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Courts will be kinder to express easements
• Jackson v Mulvaney [2003] 1 WLR 360 per
Latham LJ at 368 – “the court will
undoubtedly lean in favour of the creation of
an [express] easement if the intention of the
parties was clearly to that end”.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
Rights that can be too vague:
• Free flow of air – how do you define it? What
are its boundaries? Won’t be too vague if the
right is to air from a defined channel;
• Protection from television interference;
• Protection of privacy;
• Protection of a view;
• Protection from the weather.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Easements cannot be granted that have the
effect of giving rights of exclusive possession
or control to the owner of the dominant
tenement over the servient land, or even
rights to share ongoing possession. If the
substance of the right granted amounts to a
grant of exclusive possession – the right is
really a grant of possession over the land
which is a different interest.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Degree of possession/judicial interpretation –
fact scepticism. Eg’s from Butt:
• A right to store goods in a cellar was not an
easement because it amounted to a grant of
possession but a right to store coal in a shed was
an easement;
• A right to run electricity wires over land which
prohibited the owner from building or planting
trees under the wires was not an easement; but a
right to run pipes underground is.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Copeland v Greenhalf [1952] 1 Ch 488 - right to park trucks – Upjohn J:
I think that the right claimed goes wholly outside any normal idea of an
easement, that is, the right of the owner or the occupier of a dominant
tenement over a servient tenement. This claim (to which no closely
related authority has been referred to me) really amounts to a claim to a
joint user of the land by the defendant. Practically, the defendant is
claiming the whole beneficial user of the strip of land on the south-east
side of the tract there; he can leave as many or a s few lorries there as he
likes for a s long as he likes; he may enter on it by himself, his servants and
agents to do repair work thereon. In my judgment, that is not a claim
which can be established as an easement. It is virtually a claim to
possession of the servient tenement, if necessary to the exclusion of the
owner; or, at any rate, to a joint user, and no authority has been cited to
me which would justify the conclusion that a right of this wide and
undefined nature can be the proper subject-matter of an easement.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Moncrieff v Jamieson [2007] 1 WLR 2620 – Land A was a small
cottage at the bottom of a cliff. The only access to the cottage
was by boat or by means of stairs in the cliff, leading to a
private road which led to a public road.
• The cottage had an easement attached to use the private
road.
• Could the easement extend to a right to park on the servient
land at the top of the hill or did it only allow the owner of the
dominant land to drive across the land?
• Was a right to park capable of being an easement or did it
amount to a grant of exclusive possession?
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
Judges conceded that the grant of the
easement DID have a right to park attached to
itthe parties creating the grant would have
intended that there be a right to park included
with the right – as a necessary incident of the
grant.
But was it possible to make such a grant?
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
Lord Hope of Craighead (Lord Mance in
agreement) – there seems to be no
fundamental objection to an easement which
excludes the owner of the servient tenement
from part of his property while the easement
is being exercised. Doesn’t go much further
than saying that there is no fundamental
objection to such a grant.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
Lord Scott of Foscote – Lord Scott finds that a grant of
‘exclusive possession’ over an area of a servient tenement
cannot be an easement. However, he finds that there was
no such grant here. Instead, he finds that the grant of a
right to park is a grant of ‘sole use’ of the parking area at
any time that the owner of the dominant tenement
chooses to park there. This distinction between possession
and sole use is drawn by Lord Scott by pointing out that the
right of the dominant tenement holder to park on the land
of the servient owner does not prevent the servient owner
from also using the land – from also parking on the land or
from building over the land etc etc. It just stops them doing
anything to the land that would prevent the dominant
owner from parking there.
(c) Cameron Stewart 2009
The right must be capable of forming
the subject matter of a grant
• Lord Neuberger of Abbotsbury – Not satisfied that an easement is
prevented from being an easement simply because the right
granted would involve the servient owner being effectively
excluded from the property. Here Lord Neuberger agrees with
Scott’s distinction between the exclusive occupation of the property
provided the servient owner retains possession and control.
However, Lord Neuberger does something a little strange. He
indicates that if the right to park is a right to park in a large space,
such that the servient owner is not precluded from one particular
spot of the land all the time – instead, the car could be parked in
any number of spots – then that is fine. However, he says that if the
space is only large enough for one car and the car must be parked
in that one spot, it might not be capable of forming an easement as
this would exclude the servient land owner.
(c) Cameron Stewart 2009
Express Creation
• Express easements – Old system land
• At law, easements over land under the old system must be
created by deed. Section 23B Conveyancing Act.
• Easements not validly created by deed may still be
enforceable as 'equitable easements' but the requirement
to show the four matters referred to in Re Ellenborough
Park still exists.
• Mere writing will be sufficient to create an 'equitable
easement' over old system land. Section 23C Conveyancing
Act. Part performance might also found a right to an
'equitable easement' if sufficient evidence can be
produced. Sections 23E and 54A, Conveyancing Act.
(c) Cameron Stewart 2009
Creation of Easements
• When old system land is conveyed, the CA s 67
deems the conveyance to include any
easements attached to the land unless a
contrary intention is expressed (don’t have to
use old forms of conveyance).
(c) Cameron Stewart 2009
Creation of Easements
• Express grant in Torrens
• Torrens – RPA s 46 provides for the creation of
easements through execution and registration of
an approved form of transfer. The easement is
noted on both the folios of the burdened and
benefited land. Registration confers indefeasible
title on the easement (RP Act s 47). A transfer of
an interest under Torrens vests all relevant
interests including easements in the transferee
without the necessity of using specific words (RP
Act s 51).
(c) Cameron Stewart 2009
Conveyancing Act s 88(1)
(1) Except to the extent that this Division otherwise provides, an easement expressed to be
created by an instrument coming into operation after the commencement of the
Conveyancing (Amendment) Act 1930 , and a restriction arising under covenant or otherwise
as to the user of any land the benefit of which is intended to be annexed to other land,
contained in an instrument coming into operation after such commencement, shall not be
enforceable against a person interested in the land claimed to be subject to the easement or
restriction, and not being a party to its creation unless the instrument clearly indicates:
(a) the land to which the benefit of the easement or restriction is appurtenant,
(b) the land which is subject to the burden of the easement or restriction:
Provided that it shall not be necessary to indicate the sites of easements intended to be
created in respect of existing tunnels, pipes, conduits, wires, or other similar objects which
are underground or which are within or beneath an existing building otherwise than by
indicating on a plan of the land traversed by the easement the approximate position of such
easement,
(c) the persons (if any) having the right to release, vary, or modify the restriction, other
than the persons having, in the absence of agreement to the contrary, the right by law to
release, vary, or modify the restriction, and
(d) the persons (if any) whose consent to a release, variation, or modification of the
easement or restriction is stipulated for.
(c) Cameron Stewart 2009
Conveyancing Act s 88(1)
• Papdopolas v Goodwin [1982] 1 NSWLR
43 is authority for the proposition that
‘clearly indicate’ means ‘point to’ rather
than ‘state’. Therefore as long as the land
benefitted and burdened can be clearly
identified from the instrument, this will be
sufficient.
(c) Cameron Stewart 2009
Express reservation
• Reservation occurs when a landowner grants away part
only of her/his land and reserves an easement in
favour of the retained land (the dominant tenement)
over the land granted away (the servient tenement).
• The term ‘reserve’ is a little misleading. In reality what
happens is that the owner of the dominant tenement
sells the fee simple in the servient tenement. At the
same time, the new owner of the servient tenement
makes a grant of an easement back.
• s 44A of the CA validates reservations contained in the
transfer of the fee simple.
(c) Cameron Stewart 2009
Easements created through law
• Easements created by statutes for public utilities
• Section 88K Easements –the court has a right under s 88K
to force a right to use land where it is reasonably necessary
in the interests of the effective use of the neighbouring
land.
• Easement must be ‘reasonably necessary’: this means that
the easement must be reasonably necessary for the use of
the dominant land not just for the convenience of the RP of
that land. Reasonable necessity is not absolute necessity –
so it doesn’t have to be the absolutely only option; but it
should be necessary and the most reasonable option in the
light of other possible solutions to the need for the
easement.
(c) Cameron Stewart 2009
Easements created through law
•
•
•
•
117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) NSWLR 504 – This
case involved a dispute over easements in a redevelopment.
The owners of 117 York St wanted to pull down an existing building and build a
new building that would cover the entire block.
They needed three easements over a neighbouring block of apartments – an
easement to construct a scaffold along the boundary of the land to build the wall
on the boundary, an easement to allow a gutter to hang slightly into the airspace
of the neighbour and an easement to swing a crane into the airspace of the
neighbour to construct the building.
Negotiations proceeded amicably, but got stuck on the crane. The owners of the
building approached the council to find other places to put the crane, but all
involved blocking major CBD roads and the requests were refused. They could
have used an internal crane at a cost of $250 000 extra – but this was very
expensive. Negotiations broke down. The builders thought that $20 000 was fair
compensation for the right to swing the crane; the neighbours wanted $400 000
(they’d worked out what an internal crane would cost – and factored it in). The
matter ended up in court because they couldn’t agree and the owners of York St
sought an easement under s 88K.
(c) Cameron Stewart 2009
Easements created through law
• Hodgson CJ at 508-509 stated that the phrase in s 88K(1) of
the CA “if the easement is reasonably necessary for the
effective use or development of other land” means:
• In my opinion: (1) the proposed easement must be
reasonably necessary either for all reasonable used or
developments of the land, or else for some one or more
proposed uses or developments which are (at least)
reasonable as compared with the possible alternative uses
or developments; and (2) in order that an easement be
reasonably necessary for a use or development, that use of
development with the easement must be (at least)
substantially preferable to the use or development without
the easement.
(c) Cameron Stewart 2009
Easements created through law
• Hodgson J found that the construction of a
building which extended to the boundaries of the
land was a reasonable use of the land as
compared with other options (not building to the
borders or making a smaller building) and the
easements were reasonable for that purpose;
Also, development with the easements was
preferable because otherwise it would cost
another $250 000 and the inconvenience to the
neighbour was minor. Easement granted;
compensation awarded = $23 000
(c) Cameron Stewart 2009
Implied easements
• Common law doctrine
• An implied easement arises when the common
law implies the grant or reservation of an
easement when no easement was expressly
granted. The common law may imply a grant or
reservation of an easement into a conveyance
from the presumed intentions of the parties.
There are a group of circumstances in which it is
established that the law will imply an easement
(c) Cameron Stewart 2009
Implied easements
•
•
•
•
•
Abutting Road
Common intention
Non-derogation from grant
Continuous and apparent easements
Easements by necessity
(c) Cameron Stewart 2009
Abutting Private Road
• Where a conveyance or lease of land is made
and is described as abutting a private road
owned by the vendor there will be an implied
easement for use of the road. Of very limited
use now as very few private roads still exist.
• Applies to Torrens land
(c) Cameron Stewart 2009
Abutting Private Road
•
In Dabbs v Seaman (1925) 36 CLR 538 the High Court considered whether Emily
Dabbs was entitled to a right of way over land adjoining the land owned by her
and marked on her Certificate of Title as “20 feet lane”. Isaacs J:
When the mists of irrelevancy disappear, the question resolves itself into the
following proposition, which I hold to be good law and to be absolutely necessary
if titles under the Real property Act are to be indefeasible: Where A, a registered
proprietor of land under the Real Property Act, transfers to B a part of his land
described by a plan indicating that the transferred land is bounded on one side by
a 20' lane situated on the other part of the transferor's land and the transfer is
duly registered, the, in the absence of either a provision to the contrary on B's
certificate of title or some subsequent personal legal or equitable relation to the
contrary between B and the owner of the adjoining land, B, so long as he remains
the registered proprietor of the land so transferred and described, is entitled (1) to
have the land marked “20 feet lane” preserved as such, and (2) to a right of way
over the lane.
Limited to where the road is also Torrens land: Cowlisaw v Ponsford (1928) SR(NSW)
331 at 336
(c) Cameron Stewart 2009
Common Intention Easement
• Where both parties to a grant share a common
intention as to the use to be made of the land by the
grantee and an implied easement is necessary to give
effect to that common intention (common intention
easement).
• The reverse applies where implication is needed to give
effect to the parties common intention as to the use of
the reserved land by the grantor.
• Courts are jealous of these because grantor should
have made an express grant and will only find them
where necessary (for example – grant of a house with
shared wall – easement of support for grantor).
(c) Cameron Stewart 2009
Non Derogation from Grant
• Under the doctrine of ‘non derogation from grant’
easements may be implied by the court in
circumstances where a grantor grants land to a grantee
for a specific purpose and that specific purpose
requires some sort of easement over neighbouring
land held by the grantor. In these cases the easement is
granted to stop the grantor from doing something on
retained land that makes the land disposed of unfit or
materially less fit for the intended use. The parties
must have contemplated that the intended use of the
land would require some sort of easement over the
retained land (Nelson v Walker (1910) 10 CLR 560).
(c) Cameron Stewart 2009
Continuous and Apparent Easements
• Wheeldon v Burrows (1879) 12 Ch D 31 the Court
considered an application for an implied reservation of
a right to light arising from the sale of land.
• Allen owned adjoining lots. On one lot he built a shed
which had three windows on the side for light and
which was on the border of his property. Allen sold the
property that bounded the shed. A dispute arose years
later between the owner of the neighbouring property
who wanted to build in a manner which would
completely block the light to the shed and the present
owner of the shed claimed that he had a continuous
and apparent easement for light through the windows.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
• Thesiger LJ at 49 stated the principle for continuous
and apparent easements as:
• [O]n the grant by the owner of a tenement of part of
that tenement as it is then used and enjoyed, there will
pass to the grantee all those continuous and apparent
easements (by which I mean quasi easements), or, in
other words, all those easements which are necessary
to the reasonable enjoyment of the property granted,
and which have been and are at the time of the grant
used by the owners of the entirety for the benefit of
the part granteddows.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
Four elements necessary to show a W v B
easement:
• There must be a grant of a part of the land (a
severance);
• At the time of the grant, exercise of the quasi
easement must be continuous and apparent;
• The quasi easement must be necessary for the
reasonable enjoyment of the land granted;
• Just before the time of severance, the grantor
must have been using the quasi easement for the
benefit of the land granted.
(c) Cameron Stewart 2009
Continuous and Apparent Easements
If the grantor grants away both parcels of land at
the same time, the two grantees will get any
continuous and apparent easements that were in
existence at the time of the grant. This is based
on a legal presumption of the parties intention
with respect to the conveyances – that the
common transferor intended one party to take
the burden and another party to take the benefit
of any continuous and apparent easement and
that those parties who knew about the other
transaction also intended that to happen – See
McGrath v Campbell [2006] NSWCA 180
(c) Cameron Stewart 2009
Easements by Necessity
• “If the grantor intends to reserve any right
over the tenement granted, it is his duty to
reserve it expressly in the grant ….. [but there
is] the well-known exception which attaches
to cases of what are called ways of necessity”
per Thesinger LJ at 48 in Wheeldon v Burrows
(1879) 12 Ch D 31
(c) Cameron Stewart 2009
Easements by Necessity - intention
• North Sydney Printing Ltd v Sabemo Investments Co Pty Ltd
[1971] 2 NSWLR 150
• The owners of land subdivided it. The owners had a right under
local council ordinances to require the council to purchase a
piece of the land for the creation of a parking lot. That piece of
land would be landlocked after the subdivision but on one side it
joined a pre-existing council car park. Once subdivided, they sold
off the land they owned to someone else, leaving only the
landlocked bit in the middle in their ownership. The subdivided
(not landlocked) bit was bought by Sabemo. No right of way
easement was created. It was established in evidence that the P
never intended to create an easement when the land was
subdivided because the P intended to sell the landlocked land to
the council.
(c) Cameron Stewart 2009
Easements by Necessity
• The council offered to buy the land but at a price that was
unacceptable to the P. So the P sought an easement of
necessity over the land that they had sold.
• P had decided to build his own carpark and needed the
easement to create a driveway into the land.
• The P argued that easements of necessity arise as a matter of
public policy whenever land becomes landlocked. Therefore
intention is irrelevant.
• The court rejected this argument holding that easements of
necessity are based on the presumed intentions of the parties
and therefore may be rebutted by evidence of actual
intention. As P had never intended that an easement should
be created, had not thought it was needed, the court would
not find an easement of necessity.
(c) Cameron Stewart 2009
Easements by Necessity - usage
•
•
•
Corporation of London v Riggs (1880) 13 Ch D 798 the Court considered whether a
right of way of necessity in favour of a landlocked piece of land over the
surrounding land is a general right “for all purposes” or whether it is limited to the
uses to which it had been put at the time when the action first arose. In his
judgment, Jessel M.R. said:
...the only scintilla I can find going anywhere near the point is an observation of
the Lord Chancellor Cairns in Gayford v. Moffat (1), in which he says, reading from
Mr. Seargeant Wiliams’ note to Pomfret v. Ricroft (2): “This principle seems to be
the foundation of that species of way which is usually called a way of necessity:”
and then he goes on to say, “Now, that is exactly the interpretation of the words
used in this grant; ‘with all ways to the premises appertaining;’ it means, with such
a way as the law would hold to be necessarily appertaining to premises such as
these – that is, a way of necessity; therefore, immediately after this lease was
granted, this tenant occupying the inner close became entitled to a way of
necessity through the outer close, and that way must be a way suitable to the
business to be carried on the premises demised, namely, the business of a wine
and spirit merchant.
It is therefore obvious to me that Lord Cairns thought a way of necessity meant a
way suitable for the user of the premises at the time when the way of necessity
Cameron Stewart 2009
was created; and that is all I can find(c)in
the shape of authority on the subject.
Implied Easements - Torrens
• Australian Hi Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR
618. In this case land was owned by the Savage family. During
their ownership a block of shops was erected and
subsequently an office block. At that time there were two
buildings on the land. The land was subdivided such that lot 1
comprised the shops and some of the land and lot 2
comprised the office block and the land adjoining it.
• The Savage family sold lot 1 to Gehl and several years later
sold lot 2 to Australian Hi-Fi Publications Pty. Ltd. There was
no reference in any of the contracts or transfers or the
certificates of title to any easements providing for rights of
way.
(c) Cameron Stewart 2009
Implied Easements - Torrens
• Evidence was adduced that prior to the first sale the tenants
of the shops constructed on what became lot 1 used part of
the land that became lot 2 to access a public road. The Court
considered that if the land had been under old system title
then the rule in Wheeldon v Burrows would have allowed the
subsequent owners of lot 1 to claim a right of way over those
parts of lot 2 used as the right of way.
(c) Cameron Stewart 2009
Implied Easements - Torrens
•
•
Mahoney JA:
A between the parties actually involved in the Wheeldon v. Burrows circumstances,
rights will be created. Rights, such as those which arose upon the sale of the land
by the Savage family to the defendant and his wife, would normally be within the
class of rights existing personally against the Savage family as proprietors and so
enforceable against them notwithstanding s. 42. Those rights would not be
enforceable against a subsequent registered proprietor taking without fraud; the
existence of such rights is proscribed by s. 42 to that extent. There is, in my
opinion, nothing special in this, such as would warrant the creation of an exception
to the ordinary effect of s 42 or the extension of the term “omission” to make such
rights enforceable against the subsequent registered proprietor. I see no reason
why, for example, a Wheeldon v. Burrows interest should be in a better position
than he interest which would have arisen had the Savage family, by deed,
purported to grant to the defendant exactly a right in similar terms. The right
created by that deed would not be enforceable against a subsequent registered
proprietor.
(c) Cameron Stewart 2009
Implied Easements - Torrens
• McGrath v Campbell [2006] NSWCA 180
• The case involved a Wheeldon v Burrows easement where
one grantor made two simultaneous grants of land to two
separate parties. There was a continuous and apparent
easement being exercised before the sale. Under Wheeldon v
Burrows principles, the court would presume that the vendor
and each purchaser intended in their contracts that the
easement would be granted. The question came to court
when the owner of the dominant tenement tried to enforce
their rights to use the easement against the owner of the
servient tenement. Both were RP’s. Could the owner of the
dominant tenement enforce the easement against the owner
of the servient tenement and then force them to register that
easement?
(c) Cameron Stewart 2009
Easements by Necessity - Torrens
• The NSWCA held in this case that in order for
the owner of the dominant tenement to
enforce the easement against the owner of
the servient tenement they would, at very
least, have to show an inpersonam claim –
some claim in law or equity that arose and
gave the owner of the dominant tenement a
legal or equitable right against the owner of
the servient tenement.
(c) Cameron Stewart 2009
Implied Easements - Torrens
• The court sidestepped the registration question by finding
that there was no impersonam claim in the case. The court
found that for there to be an inpersonam claim, the RP had to
live with the consequences of the transactions that they
created. In this case they had not created the transaction – it
was a consequence of the presumed intentions of the vendor
of the land when he sold the two pieces of land
simultaneously.
• As any Wheeldon v Burrows right emerged out of the
presumed intention of the vendor and the new owner of the
dominant land in ANOTHER TRANSACTION, despite the fact
that the court also presumed the intention into the
transaction that bought the servient land, you couldn’t
enforce it in personam. (c) Cameron Stewart 2009
Implied Easements - Torrens
• Tobias JA (with whom Giles and Hodgson JA were in
agreement) stated:
• [A]s I have endeavoured to demonstrate, such an implied
easement arises out of the common intention of the relevant
parties, which is presumed by operation of law. Prescriptive
easements arise in a similar way. If prescriptive easements are
trumped by the indefeasibility provisions of the RP Act, logic
requires that those provisions should apply to implied
easements in the same way …. However it is unnecessary for
me to express a concluded view on this issue.” (at [118-119])
(c) Cameron Stewart 2009
Implied Easements - Torrens
• This quote suggests that if the matter arises for
determination, neither prescriptive easements nor implied
easements operate under the Torrens system – you can’t
force the owner of the servient land to register such an
easement; you can’t enforce such an easement against an RP
or the successor in title of the RP of the servient land as the
easement can’t be registered and doesn’t fall under the
easement exception to indefeasibility of title.
(c) Cameron Stewart 2009
Prescriptive easements
• In England the existence of an easement not
created by a document was considered to be
proved by evidence establishing that the right
had been used since “time immemorial”. This
eventually came to be fixed a usage since
1189 and subsequently became the rule that if
evidence could be produced that a right had
been exercised for at least twenty years then
an easement by prescription could be claimed.
(c) Cameron Stewart 2009
Prescriptive easements
• Barton v The Church Commissioners for
England [2008] EWHC 3091 – right of piscary
licensed to fishing association – potential
interference by mooring barges business
• The Church Commissioner were found to have
had such rights from time immemorial
(c) Cameron Stewart 2009
Prescriptive easements
•
Prescription at common law is based upon a presumed grant which the law
assumes to have been made prior to 1189, the first year of the reign of
Richard I. Enjoyment of the right must be proved from a time "whereof the
memory of man runneth not to the contrary" that is to say during legal
memory and the period of legal memory runs from 1189. As it is usually
impossible to prove user or enjoyment further back than the memory of living
persons, proof of enjoyment as far back as living witnesses can speak raises a
prima facie presumption of an enjoyment from an earlier time. Where
evidence is given of the long enjoyment of a right to the exclusion of others,
the enjoyment being as of right in a manner referable to a possible legal
origin, it is presumed that the enjoyment in that manner was in pursuance of a
legal origin and in the absence of proof that the commencement of the user
was modern, the user is deemed to have arisen beyond legal memory.
Unexplained user of an incorporeal right for a period of twenty years is held to
be presumptive evidence of the existence of the right from time immemorial
but the rule is not inflexible, the period of twenty years being fixed as a
convenient guide. In a claim to prescription at common law, it is not necessary
to prove user during the specific period of twenty years before the
(c) Cameron Stewart 2009
commencement of the proceedings
in which the claim is made.
Prescriptive easements
• As this rule was ridiculous for Australian
circumstances, the High Court held in
Delohery v Permanent Trustee Co of NSW
(1904) 1 CLR 283 that the doctrine of the “lost
modern grant” was the proper means to
categorise an easement acquired by
prescription.
(c) Cameron Stewart 2009
Prescriptive easements
The matters required to be proved are:
• That the use has been “as of right”.
• That the use has been “not by force, secrecy,
or permission”.
• That the use has been “continuous” for twenty
years”.
• Prescriptive easements are legal
(c) Cameron Stewart 2009
Prescriptive easements
• The use for the 20 year period must be
continuous, but as with W v B easements, the
nature of continuous use needed will depend
on the land and the nature of the right
claimed. So, a support easement (building
support) will be continuous, but a right of way
may not be used every day.
(c) Cameron Stewart 2009
Prescriptive easements
• Can you tack an earlier period of use by another person to
your use in order to make up the 20 years. Probably not –
because a prescription easement does not exist until after
20 years of use, before it comes into existence, the user has
no property interest that they can pass on to the next user
in order to tack the two periods together.
• However, some case law suggests that you can tack periods
of use together – notably a NZ case called Auckran v the
Pakuranga Hunt Club (1904) 24 NZLR 235; however Butt
doubts that such cases are correctly decided as it is unclear
what interest the original user passes to each of the
subsequent users to allow for such tacking to occur.
(c) Cameron Stewart 2009
Prescriptive easements
• Dobbie v Davidson (1991) 23 NSWLR 625 - This
involved a dispute between the owners of
adjoining rural properties in the Goulburn area.
From the early 1900s, the owners of "Ellerslie"
used an access road through "Lumley Park"(LP)
daily. (Note that there was no other means of
access. There was a route for a road marked on
the local government map, but it had never been
built, and would be very expensive, involving a
bridge over a creek.)
(c) Cameron Stewart 2009
Prescriptive easements
• The first question for the court was whether the
use of the road over the long period was as of
right or by express permission.
• The trial judge had commented that the original
use, sometime before 1905, was by an act of
neighbourliness on the part of the owners of LP,
seeing that there was no other means of access
to Ellerslie.
• The owners of LP wanted to rely on that point,
arguing that express permission negatived an
easement.
(c) Cameron Stewart 2009
Prescriptive easements
• The NSW Court of Appeal found that there was
no evidence of specific permission, or of the user
ever asking permission; and there was never an
attempt by the owners of LP to prevent or
interfere with such use, nor to assert that the use
of the access road was only by permission.
(Clearly there were difficulties providing and
testing the evidence.) The Court concluded that
uninterrupted use for so long by so many people
without hindrance, check or control converted
the licence into a right.
(c) Cameron Stewart 2009
Prescriptive easements
• Williams v State Transit Authority (2004) 60 NSWLR 286
• The dominant land was the Randwick Race Course and they
claimed an easement for their sewerage pipes by long use
of land owned by the State Transport Authority which was
next to the Race Course. The STA agreed to sell the land to
a third party but after they exchanged contracts, Randwick
lodged a caveat and the matter ended up in court.
• The question was whether the prescriptive easement gave
Randwick an equitable right to force the STA to register the
easement – and a right at all against Randwick.
• Answer: No
(c) Cameron Stewart 2009
Prescriptive easements
• Mason P - In my opinion, it is to pile fiction upon fiction to extend
the doctrine of lost modern grant into the Torrens system, because
(assuming no relevant exception to s42 or its equivalents) that
system contemplates title at law as arising only upon registration.
To transpose the fiction of lost modern grant into a Torrens context
one has to presume considerably more that the loss of an executed
(and delivered) deed. At the very least, one would have to presume
the execution and delivery of a registrable instrument. But the logic
suggests that one has to go further and presume delivery
accompanied by certificate of title, since that is the normal way in
which the person entitled to have an interest registered goes about
perfecting such title so far as lies in the grantor’s power. Indeed,
title is only perfected through the act of a third party (the Registrar
General), and there is no basis for inferring that officer’s
acquiescence in the user giving rise to the common law doctrine.
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Australian Hi Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618. In this case land was owned by the
Savage family. During their ownership a block of shops was erected and subsequently an office block.
At that time there were two buildings on the land. The land was subdivided such that lot 1 comprised
the shops and some of the land and lot 2 comprised the office block and the land adjoining it.
The Savage family sold lot 1 to Gehl and several years later sold lot 2 to Australian Hi-Fi Publications Pty.
Ltd. There was no reference in any of the contracts or transfers or the certificates of title to any
easements providing for rights of way.
Evidence was adduced that prior to the first sale the tenants of the shops constructed on what became
lot 1 used part of the land that became lot 2 to access a public road. The Court considered that if the
land had been under old system title then the rule in Wheeldon v Burrows would have allowed the
subsequent owners of lot 1 to claim a right of way over those parts of lot 2 used as the right of way. In
his judgment in the Court of Appeal, Mahoney J.A. considered the application of the rule in Wheeldon v
Burrows to land held under the Real Property Act and said:
The argument that such an exception should be created has been put, in substance, upon the
following basis: that interests such as Wheeldon v. Burrows easements are interests well recognized
by the law; that, as they are incapable of being registered or noted on the register, they will, unless
protected by s. 42 (b), be incapable of existing; and that it could not have been the intention of the
Act to destroy such interest. But, in my opinion, such an argument involves at least two difficulties.
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Rights, such as those which arose upon the sale of the land by the Savage
family to the defendant and his wife, would normally be within the class of
rights existing personally against the Savage family as proprietors and so
enforceable against them notwithstanding s. 42. Those rights would not
be enforceable against a subsequent registered proprietor taking without
fraud; the existence of such rights is proscribed by s. 42 to that extent.
There is, in my opinion, nothing special in this, such as would warrant the
creation of an exception to the ordinary effect of s 42 or the extension of
the term “omission” to make such rights enforceable against the
subsequent registered proprietor. I see no reason why, for example, a
Wheeldon v. Burrows interest should be in a better position than he
interest which would have arisen had the Savage family, by deed,
purported to grant to the defendant exactly a right in similar terms. The
right created by that deed would not be enforceable against a subsequent
registered proprietor.
(c) Cameron
Stewart
2009
(c) Cameron
Stewart
2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
McGrath & v Campbell [2006] NSWCA 180 – (from the headnote) Two adjoining lots were
owned by a single registered proprietor. The northern lot (Lot 6) faced a main road, while the
southern lot (Lot 12) was bounded by a street known as Brighton Avenue. A registered
easement had been created over both lots in favour of a third adjoining property, which
permitted access to the third lot from Brighton Avenue. The easement had also been used for
some years as an access point for Lot 12, although this use had never been noted on the
register.
In 1980, Lot 6 was sold to the respondents and Lot 12 was sold to the appellants and the
transfers of title were recorded in the register as having occurred on the same day. The
respondents continued to use the easement over Lot 12 to access Lot 6 until a dispute arose
in 1995.
The respondents argued that the circumstances of the sale gave rise to an implied easement
over Lot 12 for the benefit of Lot 6, and that the simultaneous transfers of the two lots gave
rise to an equity or right in personam enforceable against the appellants. The appellants
argued that the indefeasibility provisions of the Real Property Act 1900, and the
circumstances of the transfers in this case, prevent the recognition of any such equity.
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Aldridge v Wright [1929] 2 KB 117
4. Where an owner executes contemporaneous conveyances of adjoining plots with the houses
erected on them, and there exists a made road across the land of one plot to an entrance to the
house on the other plot, and it is proved that the road was constructed for the use of both houses,
there will be implied a grant in the one conveyance of a right to use the road and a corresponding
reservation in the other conveyance.
Implied easements can arise but they are equitable :
79 One might accept, for present purposes, that had Lots 6 and 12 been under old system title, the
authority of Aldridge v Wright may have carried the day in favour of the Campbells. According to
Professor Butt in Land Law (2006, 5th ed) at 446, such an easement would be a legal and not
merely an equitable interest. Professor Butt refers to the statement of Priestley JA in Dobbie v
Davidson (1991) 23 NSWLR 625 at 646 to the effect that easements such as those arising under the
doctrine of Wheeldon v Burrows are equitable, and suggests that this approach may be explained
upon the basis that the easement in that case arose over Torrens title land and was, at the time of
the litigation, unregistered. As an unregistered interest it could only be an “equitable” and not a
“legal” interest. The finding by the primary judge in [71] that the Wheeldon v Burrows implied
easement in the present case brought about “in equity, the result that lot 6 had the benefit of, and
lot 12 was burdened by” may be explained in a similar way.
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
While the original title holders may be bound
in equity, the personal equity will not be
created in the case of simultaneous transfers
of title in circumstances where the new
owners of the putative servient tenement
have not in any way contributed to the
creation of the implied easement or
conducted themselves in any way which could
be regarded as unconscionable
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Easements by prescription (long use) – 20 yrs - doctrine
of the lost modern grant - Dobbie v Davidson (1991)
23 NSWLR 625, The Court was asked to consider
whether a track used for access to a property across
another property for a period of 60 years prior to
the land being brought under the Real Property Act
constituted a right of way and further considered
whether the “omission” from the certificate of title
after the land was brought under the Real Property
Act constituted an exception to indefeasibility within
what was then s 42(b).
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
In his judgment in the Court of Appeal Kirby P made the following observations:The purpose of the rule by which a prescriptive right is upheld by the law is ultimately to guard the
peaceful enjoyment of the use of land where that use has endured for more than twenty years, as
of right.” The evidence showed that the use of the road constituting the right of way to “Ellerslie”
was extensive. In connection with access to that property it had been used by bullock drays and
bullock wagons; horse drawn vehicles carrying products; carts, trucks, cars and tractors; visitors,
tradespeople, shearing teams, droving stock, electricity and bush fire brigade vehicles; shooters; for
carting and bailing hay and by children. None of the aforementioned people using the road over
this time ever sought permission from the owners of “Lumley Park”. They just used it without
dispute until the present litigation began.
Relevant to assigning conduct to one category rather than the other will be: (i) the time during
which the conduct has been peacefully followed; (ii) the persistence of the conduct, despite
supervening sale and the acquisition of new owners by the dominant and servient tenements; (iii)
the unlimited variety of the persons who have utilised the alleged right-of-way; (vi) the absence of
physical impediments or obstructions to that use; and (v) the knowledge of the use by the owners
of the servient tenement yet their failure to attempt to forbid, limit or control the use of the rightof-way by the owners of the dominant tenement and those having dealings with them.
Both Kirby P and Priestly JA found that the missing easement had been omitted in the conversion
(c) Cameron Stewart 2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Williams v State Transit Authority of NSW [2004] NSWCA 179 the Court of Appeal considered an
appeal from a judgement of Young CJ in Eq. In the case before Young J, the court was asked to
consider whether the doctrine of lost modern grant applied to claim for rights of way over
land under the provisions of the Real Property Act.
In his judgment Mason P deals with the doctrine commencing at paragraph 78. He says:
At common law an easement may be created by twenty years uninterrupted enjoyment of
the right claimed. This doctrine of “lost modern grant” requires the court to presume, even if
contrary to the truth, the existence of an express grant which has been lost. The presumed
grantor must have the legal capacity to have executed the grant.”
In particular, s46 of the Real Property Act relevantly provides that “where any
easement…..affecting land under the Act is intended to be created, the proprietor shall
execute a transfer in the approved form”.
Until the present case, there was an unbroken stream of authority in New South Wales to the
effect that easements by prescription could not arise over land subject to the Real Property
Act where the acts of user occurred during the time the land was under the Act.
(c) Cameron
Stewart
2009
(c) Cameron
Stewart
2009
Exceptions to indefeasibility
- Omitted or misdescribed easements
Mason P:
In my opinion, it is to pile fiction upon fiction to extend the doctrine of lost
modern grant into the Torrens system, because (assuming no relevant
exception to s42 or its equivalents) that system contemplates title at law as
arising only upon registration. To transpose the fiction of lost modern grant
into a Torrens context one has to presume considerably more that the loss of
an executed (and delivered) deed. At the very least, one would have to
presume the execution and delivery of a registrable instrument. But the logic
suggests that one has to go further and presume delivery accompanied by
certificate of title, since that is the normal way in which the person entitled to
have an interest registered goes about perfecting such title so far as lies in the
grantor’s power. Indeed, title is only perfected through the act of a third party
(the Registrar General), and there is no basis for inferring that officer’s
acquiescence in the user giving rise to the common law doctrine.
(c) Cameron Stewart 2009
Extent of use
• Express easements – grant of reservation – check the
intention – construed in its natural meaning
• White v Grand Hotel, Eastbourne [1913] 1 Ch 113 the
case concerned a right of way over a privately owned
laneway which was granted to the owner of a private
house to allow him to access the rear of his property
through a gateway. The owner of the dominant
tenement sold the premises to a hotel and the rear
yard was used as a garage for motor cars belonging to
visitors staying at the hotel with the drivers of those
vehicles staying in the previously private premises.
(c) Cameron Stewart 2009
Extent of use
• The question before the Court was:
• ... whether the use of the right of way must be
restricted so as no longer to enure for the
benefit of the owners of St. Vincent Lodge and
its stables unless the same continued to be
used and occupied precisely as they were in
1883, when the agreement was made, that is
to say, as a private dwelling-house.
(c) Cameron Stewart 2009
Extent of use
• Cozens-Hardy M.R. said:
• ... it is a right of way claimed under a grant and,
that being so, the only thing that the Court has to
do is to construe the grant: and unless there is
some limitation to be found in the grant, in the
nature of the width of the road or something of
that kind, full effect must be given to the grant,
and we cannot consider the subsequent user as
in any way sufficient to cut down the generality
of the grant.
(c) Cameron Stewart 2009
Extent of use
• Jelbert v Davis [1968] 1 WLR 589. In this
matter part of a large agricultural estate was
conveyed to Jelbert 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.”
• Land then used as caravan park
• Massive increase in usage
(c) Cameron Stewart 2009
Extent of use
• Lord Denning MR:
• In my opinion a grant in these terms does not authorise an
unlimited use of the way. Although the right is grant “at all
times and for all purposes,” nevertheless it is not a sole
right. It is a right “in common with all other persons having
the like right.” It must not be used so as to interfere
unreasonably with the use by those other persons, that is,
with their use of it as they do now, or as they may do
lawfully in the future. The only way in which the rights of all
can be reconciled is by holding that none of them must use
the way excessively.
• Excessive use went beyond the grant
(c) Cameron Stewart 2009
Extent of use
In Gallagher v Rainbow (1994) 179 CLR 624 McHugh J set out some
general principles at pages 639 – 641 on the construction of
easements:
• At common law the meaning of an easement conferred by a deed
of grant is determined by reference to the language of the grant
construed in the light of the circumstances …. The principles of
construction that have been adopted in respect of the grant of an
easement at common law .. are equally applicable to the grant of
an easement in respect of land under the Torrens System …
•
• In construing the grant of an easement … the court will consider (1)
the locus in quo [site of the easement] over which the way is
granted; (2) the nature of the terminus ad quem [the nature of the
servient tenement] and (3) the purpose for which the way is to be
used.
(c) Cameron Stewart 2009
Extent of use
• Westfield Management Ltd v Perpetual Trustee Company Ltd [2007]
HCA 45 –Westfield are the owners of the Skygarden complex in Pitt
St Mall. Perpetual are the owners of the GlassHouse complex.
Glasshouse abuts Pitt St Mall and King St. Former owners of
GlassHouse granted an easement to former owners of Skygarden to
run an access ramp and driveway UNDER Glasshouse in order to
access Skygarden from King St. The terms of the grant of easement
read:
• Full and free right of carriageway for the grantee its successors in
title and registered proprietors for the time being of an estate or
interest in possession of the land herein indicated …… to go, pass
and repass at all times and for all purposes with vehicles to and
from the said lots benefited or any such part thereof across the lots
burdened.
(c) Cameron Stewart 2009
Extent of use
• Westfield acquired more shopping complexes –
namely Imperial Arcade and Centrepoint. It
decided to redevelop them and use its access
under GlassHouse as the central access point to
those malls too – so cars accessing the land on
the other side of Skygarden would drive under
Glass house and Skygarden to Imperial /
Centrepoint. They sought a declaration that they
could use the right of way for this purpose and
Glasshouse defended arguing that they could
only use the right of way to access Skygarden.
(c) Cameron Stewart 2009
Extent of use
• Westfield argued that the words ‘for all
purposes’ meant that the purpose of driving
under Glasshouse in order to cross Skygarden
and get to Imperial was covered. Perpetual
argued that the grant only encompassed
‘going, passing and repassing’ over Glass
House “to and from’ Sky Garden, not across
Sky Garden.
(c) Cameron Stewart 2009
Extent of use
• The High Court held that Perpetuals submission was
correct. They said the phrase ‘for all purposes’ had to
be read in the context of the grant as a whole –
granting the capacity to use the easement for all
purposes connected with the grant of the easement.
The easement in this case was granted for all purposes
involving travelling to and from Sky Garden not across
Sky Garden. So, Westfield had the right to cross Glass
House for ANY purpose provided that that crossing was
just to and from Sky Garden not across Sky Garden. The
court said that any other construction would impost a
greater burden on the owners of Glass House than had
been intended by the original grant.
(c) Cameron Stewart 2009
Extent of use
• What about implied easements?
• Corporation of London case, Jessel MR:
• ...it appears to me that the right of way must
be limited to that which is necessary at the
time of the grant; that is, he is supposed to
take a re-grant to himself of such a right of
way as will enable him to enjoy the reserved
thing as it is.
(c) Cameron Stewart 2009
Extent of use
• What of changes in technology? In Lock v
Abercester [1939] 1 Ch 861, Bennett J said:
• The law must keep pace with the times. As a
matter of law I propose to decide that, where
proof is given of the user of a way by carriages
drawn by horses for the required period so as to
establish the right to an easement for a
carriageway, the right so acquired is one which
enables the owner of the dominant tenement to
use the way with mechanically propelled vehicles.
(c) Cameron Stewart 2009
Extinguishment
• Express release – deed or registration
• Abandonment – must be intent to relinquish
• Non-use is not abandonment – more is
needed
(c) Cameron Stewart 2009
Extinguishment
• Common ownership – OST and Torrens
• Section 89 CA – obselete
• Section 49 RPA – 20 years of non-use RG may
treat easement as abandoned but does not
effect CL rules
(c) Cameron Stewart 2009
Extinguishment
• Treweeke v 36 Wolsely Road Pty Ltd (1972) 128 CLR 274 - this
case involved two blocks of land in Double Bay that were
subdivided in 1927. Block A (#36), the dominant tenement, was
granted an express easement involving a 3 foot wide right of way
over block B (#34) (the servient tenement) in order to access the
water. (Block B had water frontage but block A didn’t). Mrs.
Treweeke took the fee simple and possession of block B in 1928.
At this time there was a clump of bamboo growing over the site
at which access to the right of way began for the grant of
easement. Over the next few years she increased the bamboo
plantation, installed a retaining wall, built a fence and
constructed a swimming pool, all of which impeded the right of
way. Mrs T was still the owner when this case arose. The fence
had been built with the consent
and cooperation of block A.
(c) Cameron Stewart 2009
Extinguishment
• The respondents in this case were the body corporate of 4
flats constructed on the dominant tenement. The evidence
demonstrated that over the 40 years since the grant of the
easement, the residents of block A had not used the right of
way to access the water because it was impassable in many
places including a 4 foot sheer rock face. However, they did
cross a small part of the right of way on regular occasions in
order to use an alternative route to access the water. It was
also shown that for some years occupiers of block A had used
a path on another person's land until access to that path had
been blocked off.
(c) Cameron Stewart 2009
Extinguishment
• The dispute arose when the body corporate sought to assert
its rights under the easement and asked Mrs. T to grant a
fresh accessible easement if the body corporate gave up its
rights under the existing easement (and didn't force her to
move the swimming pool). Mrs. T. sought a declaration from
the court that the easement had been abandoned on the
basis of non-use and the construction of the fence. (Bamboo
plantation, retaining wall and swimming pool were all her
own installations and therefore could not be raised as
evidence of abandonment.)
(c) Cameron Stewart 2009
Extinguishment
• the High Court found that the construction of a fence did not
evince a clear intention to abandon the easement because
the fence could be moved or a gate could be inserted. With
respect to non use, the high court found that an easement
will not be extinguished by non-use alone. Instead the length
of non use will be a relevant factor in ascertaining intention
on the part of the owner of the dominant tenement - in
particular whether there was any intention to permanently
relinquish the right. In this case, the non-use of the right of
way could be explained by the state of the path, including the
dangerous rock face, rather than an intention to abandon.
(c) Cameron Stewart 2009
Extinguishment
• Pieper v Edwards [1982] 1 NSWLR 336 – This case
involved an express easement for a carriageway
registered on the folio. Pieper owned the dominant
tenement. He bought the dominant tenement in 1979
at which time the right of way over the servient
tenement was blocked by a fence and a gully pit.
Pieper asked if the right of way was still valid and the
person selling him the land said it was. However, in
1970, an agreement had been entered into by a
previous owner of the dominant land to release the
right of way. The paper work had been completed, but
the transfer had never been registered.
(c) Cameron Stewart 2009
Extinguishment
• Pieper v Edwards [1982] 1 NSWLR 336 – This case
involved an express easement for a carriageway
registered on the folio. Pieper owned the dominant
tenement. He bought the dominant tenement in 1979
at which time the right of way over the servient
tenement was blocked by a fence and a gully pit.
Pieper asked if the right of way was still valid and the
person selling him the land said it was. However, in
1970, an agreement had been entered into by a
previous owner of the dominant land to release the
right of way. The paper work had been completed, but
the transfer had never been registered.
(c) Cameron Stewart 2009
Extinguishment
• When Pieper tried to exercise the right of way,
the owner of the servient land, Edwards, sought
an order under s 89(1) that the easement be
extinguished because the previous owners of the
dominant tenement had agreed to modify or
extinguish the easement (as set out in s 89(1)(b)).
In response Pieper argued that he had
indefeasible title to the registered easement and
had relied on the folio when he bought the land.
He said that to allow extinguishment in these
circumstances would undermine confidence in
the register.
(c) Cameron Stewart 2009
Extinguishment
• The Court found that s 89 of the CA necessarily
assumes that there will be a registered easement
that will be subject to an application for
extinguishment. If the register was deemed to be
conclusive on this point, then the scope and
purpose of s 89 would be destroyed. Therefore in
these cases the state of the register is not
conclusive in the dominant owners favour. The
court exercised its discretion and extinguished
the easement.
(c) Cameron Stewart 2009