Easements
Cameron Stewart
Thanks to Jim Helman and Shae
McCrystal – errors are mine
(c) Cameron Stewart 2014
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
Positive easements
• 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
Negative easements
• 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Harada v Registrar of Titles [1981] VR
743
• Easement rejected
• Easement for overhead power lines
• King J - the servient owner was left "with very
few rights over her property and [she] could
do little more with it than move over it and
park cars on it" (at 753).
(c) Cameron Stewart
London and Blenheim Estates Ltd v
Ladbroke Retail Parks Ltd [1993] 1 All
• Claim for an easement giving a right of way and a
right for customers of the dominant owner's
business to park on a part of the servient
tenement
• Tried to work with Wright v Macadam [1949] 2
KB 744 in which an easement to store coal in a
coal shed was upheld.
• Baker J at 315: "A small coal shed in a large
property is one thing. The exclusive use of a large
part of the alleged servient tenement is another".
(c) Cameron Stewart
London and Blenheim Estates Ltd v
Ladbroke Retail Parks Ltd [1993] 1 All
• Baker J an easement will be invalid if "the right
granted in relation to the area over which it is
to be exercisable is such that it would leave
the servient owner without any reasonable
use of his land" (at 317).
(c) Cameron Stewart
Evanel Pty Ltd v Nelson (1995) 39
NSWLR 209
• Brownie J - upheld the validity of an easement for
a "right of footway“ for a garden
• Easement excluded the servient owner from the
relevant area of land at all times except on one
day of the year.
• Brownie J considered that the fact that for one
day each year the servient owner was not
excluded from the land demonstrated that
exclusive use of the land was not given to the
dominant owner.
(c) Cameron Stewart
Evanel Pty Ltd v Nelson (1995) 39
NSWLR 209
• The phrase "right of footway" has a particular meaning
by virtue of Schedule 8 of the Conveyancing Act 1919
and that this meaning limited the use to which the
dominant owner could put the land.
• While the limitation on the servient tenement holder
was large it did not amount to complete exclusive
possession as the dominant tenement holder had
limited rights
• The case could be distinguished from Copeland v
Greenhalf, in which the claimed easement placed
negligible limitations on the dominant owner's user.
(c) Cameron Stewart
Clos Farming Estates Pty Ltd v Easton
[2002] NSWCA 389
• An easement for a vineyard
• Dominant tenement holder could enter the land
and control it by means of planting, maintenance,
harvesting, marketing, packaging and selling
• Santow JA rejected the easement
• Followed King J in Harada
• Look at the degree to which the rights conferred
interfere with the servient owners' exclusive
possession of the site
(c) Cameron Stewart
Clos Farming Estates Pty Ltd v Easton
[2002] NSWCA 389
• Santow JA found that the servient owner
lacked exclusive possession
• At 46 – Servient tenement holder left with
“merely his rights of residual recreational
activities that are totally subordinated to the
over-arching rights of the dominant owner”
(c) Cameron Stewart
Moncrieff v Jamieson [2007] 1 WLR
2620
• Scots law
• 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
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
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
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
The right must be capable of forming
the subject matter of a grant
Lord Scott the correct test is "whether the
servient owner retains possession and, subject
to the reasonable exercise of the right in
question, control of the servient land".
(c) Cameron Stewart
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
Jea Holdings (Aust) Pty Ltd v RegistrarGeneral of NSW [2013] NSWSC 587
• Car parking right
• Servient tenement holder could build below
and above the car park
• Capable of being an easement?
• What is the test? Follow Moncrief/Evanel or
Clos/Harada?
(c) Cameron Stewart
Windeyer AJ
• Two issues clearly emerge. The first issue is
whether one examines the impact of the
purported easement on the servient owner's
proprietorship of only that part of the servient
tenement that is actually affected by the
easement or if instead one looks to the effect on
the entirety of the servient tenement. The second
is whether it is enough for a valid easement that
the servient owner maintains possession and
control or if this requires the servient owner to
retain some substantive or reasonable use of the
land.
(c) Cameron Stewart
Windeyer AJ
• Insofar as Moncrieff v Jamieson is inconsistent
with Clos Farming Estates Pty Ltd v Easton, I am
bound to follow the latter. I do not think that the
difference of opinion in White v Betalli renders
that Court's earlier judgment in Clos Farming
Estates Pty Ltd v Easton any less binding. Thus I
am bound to follow the approach in Clos Farming
Estates Pty Ltd v Easton and London and Blenheim
Estates Pty Ltd v Ladbroke Retail Parks Ltd rather
than Moncrieff v Jamieson.
(c) Cameron Stewart
Windeyer AJ
• Moreover, even limiting consideration to the use of the surface of the
land, the plaintiff is not excluded from the land but remains able to use
the land in conjunction with the second defendant. The plaintiff can do as
it pleases with the surface of the land insofar as this does not disturb the
rights of the second defendant to park on the land. The plaintiff, its agents
and its invitees and so on can park on the land. It is true that the second
defendant and its patrons could entirely fill the car park and leave the
plaintiff without any car spaces. This would no doubt substantially detract
from the plaintiff's user of the land if this were to occur. But the practical
reality is that both parties will use the car park simultaneously to a greater
or lesser extent. An easement inherently involves tempering the servient
owner's user of the servient tenement so as to accommodate the
dominant owner's user. In a case such as this where the purported
easement enables both the dominant and servient owners to share a
resource, it is necessary to have regard to how the easement will be used
as a matter of practice rather than focus unduly on the rights available to
one party should the other exercise its rights to the maximum extent
available if such an event is unlikely to occur. The plaintiff is able to use
the car park and from a practical perspective the extent of its user is
substantial in that there are 198 car spaces available for the patrons of
both the plaintiff's and the second defendant's businesses to share. The
(c) Cameron Stewart
plaintiff has far more than nominal
proprietorship
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
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
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
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
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
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
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
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
117 York St Pty Ltd v Proprietors of Strata
Plan No 16123 (1998) NSWLR 504
• 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
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
ING Bank (Australia) Ltd v O'Shea
[2010] NSWCA 71
• ING was mortgagee in possession of a
property on Alma St
• O’Shea held the property on Adelaide St
• Informal family arrangement for vehicle access
between the properties.
• In 1986 an easement was registered for
limited rights of carriageway and footway to
persons in possession of the Alma Street
property over the Adelaide Street property.
(c) Cameron Stewart
ING Bank (Australia) Ltd v O'Shea
[2010] NSWCA 71
• The easement was subject to conditions requiring the
payment of an annual sum and precluding excessive user.
• Successive occupiers and owners of the dominant
tenement breached both conditions.
• The respondents executed a release of the easement based
on the breaches.
• the Registrar General was unwilling to register the
respondent’s document without a court order.
• The respondents commenced proceedings and on 4 June
2009 Rein J made a consent declaration that the
respondents were entitled to have the easement released
• ING filed a cross-claim seeking in the alternative relief
against forfeiture or the imposition by the court of an
equivalent easement under s 88K Conveyancing Act 1919.
(c) Cameron Stewart
ING Bank (Australia) Ltd v O'Shea
[2010] NSWCA 71
• AT trial Forster J refused to grant an equivalent easement
under s 88K.
• The easement had been convenient, and the Alma Street
property would decrease without the benefit of the
easement.
• However, an equivalent easement was not “reasonably
necessary for the effective use or development of” the
dominant tenement because its imposition would interfere
with property rights by having a significant adverse affect
on the servient tenement, and because of its limited value
due to its restrictions, its “evanescent nature”, and the
likelihood of council approval for driveway access on Alma
Street.
(c) Cameron Stewart
ING Bank (Australia) Ltd v O'Shea
[2010] NSWCA 71
• On the s 88K issue:
• Giles JA (Campbell JA agreeing): No error was shown in
the judge’s conclusion that there was not reasonable
necessity for regarding the effective use or
development of the dominant tenement within s
88K(1). The qualification “reasonably necessary”
permits regard to matters beyond the relatively
absolute concept of “necessity”, and requires an
assessment of all relevant matters including the impact
on the easement of the servient tenement and
interference with the property rights of the owner of
the servient tenement.
(c) Cameron Stewart
ING Bank (Australia) Ltd v O'Shea
[2010] NSWCA 71
• Per Young JA: One cannot assess what is “reasonably
necessary” without considering the whole picture,
including the effect of the proposal on the servient land.
Although, considered by itself, the grant of access might be
considered “reasonably necessary” for the use of the
applicant’s land, the court should take into account the
effect on the neighbour and the fact that the necessity was
created by the applicant himself. Further, the discretion
inherent in the word “may” is not the only head under
which these matters may be considered. Accordingly, the
primary judge did not err in concluding that the proposed
easement was reasonably necessary on the basis of the
potential for interference with property rights.
(c) Cameron Stewart
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
Implied easements
•
•
•
•
•
Abutting Road
Common intention
Non-derogation from grant
Continuous and apparent easements
Easements by necessity
(c) Cameron Stewart
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
Dabbs v Seaman (1925) 36 CLR 538
•
In 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
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).:
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
• Richards v Rose(1853) 9 Ex 218: sale of one adjoining
houses which had a common support wall created an
implied right of support
• 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
Lyttelton Times Co Ltd v Warners
Ltd [1907] AC 476
• Lord Loreborn at 481:
• The maxim that a grantor cannot derogate from his grant expresses
the duty ordinarily laid on a man who sells or leases land. But it
does not touch a similar and equally binding duty that may in
certain cases be laid on a man who buys or hires land. If A lets a
plot to B, he may not act so as to frustrate the purpose for which in
the contemplation of both parties the land was hired. So also if B
takes a plot from A, he may not act so as to frustrate the purpose
for which in the contemplation of both parties the adjoining plot
remaining in A's hands was destined. The fact that one lets and the
other hires does not create any presumption in favour of either in
construing an expressed contract. Nor ought it to create a
presumption in construing the implied obligations arising out of a
contract. When it is a question of what shall be implied from the
contract, it is proper to ascertain what in fact was the purpose, or
what were the purposes, to which both intended the land to be put,
and, having found that, both should be held to all that was implied
in this common intention. (c) Cameron Stewart
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
Keberwar Pty Ltd v Harkin (1987) 9
NSWLR 738
• McHugh JA (Samuels & Priestley JJA agreeing) at 741:
• If the sale of land is made for a particular purpose, the vendor is
under an obligation not to render the land sold unfit or materially
less fit for that purpose: Browne v Flower [1911] 1 Ch 219 at 225226 and Nelson v Walker (at 582). If a vendor sells part of his land,
knowing that the purchaser intends to erect a building upon that
land, the vendor impliedly undertakes not to use his adjoining land
so as to injure or interfere with the building: Siddons v Short, Harley
& Co (1877) 2 CPD 572 at 577. However, a right in the purchaser is
only implied if, having regard to the circumstances, the parties must
be taken to have contemplated that the land retained by the vendor
would not be used by him in a manner inconsistent with that
right: Nelson v Walker.
(c) Cameron Stewart
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
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
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
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
Continuous and Apparent Easements
Aldridge v Wright [1929] 2 KB 117
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.
(c) Cameron Stewart
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 wellknown 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
• Can only arise is cases of severance
• Must be essential to the use of the dominant land
rather than merely inconvenient: Union
Lighterage Co v Londo Graving Dock Co [1902] 2
Ch 557
(c) Cameron Stewart
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
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
(c) Cameron Stewart
not find an easement of necessity.
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
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
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
McGrath v Campbell [2006] NSWCA
180
• 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.
(c) Cameron Stewart
McGrath v Campbell [2006] NSWCA
180
• 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.
(c) Cameron Stewart
McGrath v Campbell [2006] NSWCA
180
• 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
McGrath v Campbell [2006] NSWCA
180
• 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 in personam 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
McGrath v Campbell [2006] NSWCA
180
• The court sidestepped the registration question
by finding that there was no in personam claim in
the case.
• The court found that for there to be an in
personam 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.
(c) Cameron Stewart
McGrath v Campbell [2006] NSWCA
180
• 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
McGrath v Campbell [2006] NSWCA
180
• 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])
• So more than knowledge is need for an in personam – some
promise/statement is necessary
(c) Cameron Stewart
Kitching v Phillips [2011] WASCA 19
• Implied easement for dog run and obedience
alleged when the Phillips bought there lot
• Torrens land and zoned as “open space” and
“communal dog area” on planning documents
• Not registered on the title
• Land later subdivided and sold
(c) Cameron Stewart
Kitching v Phillips [2011] WASCA 19
• Implied term of sale?
• 65 In this case, where there was a formal written
contract, and a formal conveyance (the transfer), I see
no scope for inferring a term of the kind alleged. The
parties have gone to considerable lengths to record
their bargain in writing. It may not be supposed that
there was the conferral of an incorporeal right in
perpetuity, by way of a term actually intended by the
parties, but left unexpressed in the written record of
their bargain, in both the written contract and the
transfer. There has been no claim for rectification.
(c) Cameron Stewart
Kitching v Phillips [2011] WASCA 19
• Implied term of sale?
• 65 In this case, where there was a formal written
contract, and a formal conveyance (the transfer), I see
no scope for inferring a term of the kind alleged. The
parties have gone to considerable lengths to record
their bargain in writing. It may not be supposed that
there was the conferral of an incorporeal right in
perpetuity, by way of a term actually intended by the
parties, but left unexpressed in the written record of
their bargain, in both the written contract and the
transfer. There has been no claim for rectification.
(c) Cameron Stewart
Kitching v Phillips [2011] WASCA 19
• No implied term meant no case of nonderogation of grant
• No estoppel could be raised either
(c) Cameron Stewart
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
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
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
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
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
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
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
Dobbie v Davidson (1991) 23 NSWLR
625
• This case 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
Dobbie v Davidson (1991) 23 NSWLR
625
• 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
Dobbie v Davidson (1991) 23 NSWLR
625
• 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.
• We will return to the issue of how this could survive
coversion into Torrens
(c) Cameron Stewart
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-ofway; (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 right-of-way by the owners of the dominant tenement
and those having dealings with them.
(c) Cameron Stewart
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
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.
• But why not an in personam excpetion?
(c) Cameron Stewart
Exceptions to indefeasibility
- Omitted or misdescribed easements
•
•
•
•
•
•
Section 42(1)(b) amended to s 42(1)(a1)
(a1) in the case of the omission or misdescription of an
easement subsisting immediately before the land was
brought under the provisions of this Act or validly
created at or after that time under this or any other
Act or a Commonwealth Act,
Section 46 requires an easement to be in the approved
form
Section 47 requires the easement to be recorded
Original section required that the claimant prove that
it was the Registrar General’s fault that the easement
had been mitted or misdescribed
New subsection does not require this
(c) Cameron Stewart
Australian Hi Fi Publications Pty Ltd v Gehl
[1979] 2 NSWLR 618
Wheeldon v Burrows scenario
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.
S 42(1)(b) requires fault on the part of the RG – this is later overruled by Dobbie
(c) Cameron Stewart
McGrath & v Campbell [2006] NSWCA 180
•
Tobias JA – common ground that s 42(1)(a1) could not apply
•
102 Under the former s42(1)(b) of the RP Act, it was apparent from the decision of
this Court in Australian Hi-Fi Publications (at 627) that an easement by implication
has limited enforceability under the rights in personam exception to indefeasibility
of title. Such an easement was enforceable only as between the proprietors of the
dominant and servient lands which were involved in the transaction which gave
rise to the easement. Further, so long as the registered proprietor of the servient
land at the time the easement arose remained registered as proprietor, the
registered proprietor of the dominant land could seek a court order directing the
servient proprietor to take all steps necessary (including executing the appropriate
documents and lodging them for registration) to secure the benefit of the
easement by having it registered. However, unless the easement was registered in
this way, once the servient land was transferred to a new registered proprietor
taking without fraud, the easement could no longer be enforced.
(c) Cameron Stewart
McGrath & v Campbell [2006] NSWCA 180
• 103 According to Woodman and Nettle, The Torrens System in New
South Wales at 10245, the position under s42(1)(a1) is the same.
Sections 46 and 47 of the RP Act describe formalities for creating
valid easements, the assumption behind these formalities being
that easements will be reduced to writing and registered, but that
until that happens an easement cannot be said to be “validly
created”. Accordingly, by limiting omitted easements to those that
are “validly created” under the RP Act or some other Act, s42(1)(a1)
precludes implied easements from being enforced against a
registered transferee of that land or interest. However, according to
the learned authors, it does not preclude the dominant owner from
enforcing the implied easement against the servient land or interest
where the ownership of the servient land or interest has not
changed since the circumstances that gave rise to the implication of
the easement.
(c) Cameron Stewart
McGrath & v Campbell [2006] NSWCA 180
• 104 In the 5th edition of Land Law, Professor Butt expresses a
similar view (at 779). Although s42(1)(a1) precludes implied
easements from being enforced against a later registered
proprietor of the servient land, it should not negate the
dominant owner’s right to enforce the implied easement
against the servient land if its ownership has not changed
since the circumstances that gave rise to its implication. The
authority for this proposition cited in footnote 515 is the
decision of the primary judge in the present case.
• So are they in personam?
(c) Cameron Stewart
Exceptions to indefeasibility
- Omitted or misdescribed easements
• 118 In my opinion, there is much force in Professor
Butt’s observations about the effect of Williams upon
implied easements of the Wheeldon v Burrows type.
As he observes, and as 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
(c) Cameron Stewart
same way.
Exceptions to indefeasibility
- Omitted or misdescribed easements
• 119 However, it is unnecessary for me to express a concluded
view on this issue. Turning to the Aldridge v Wright exception
to the second rule articulated by Thesiger LJ in Wheeldon v
Burrows, which presumes an implied reservation by the
grantor over the servient tenement where there is a
simultaneous transfer of both the putative dominant and
servient tenements by the grantor to two separate
ownerships, I do not consider that it is sufficient to give rise to
a “personal equity” which bound the McGraths and which the
Campbells were entitled to enforce against them. This is so
notwithstanding the knowledge of the McGraths of the past
use of the driveway over Lot 12 to gain access to the
businesses conducted in the building upon Lot 6 and of their
knowledge of the simultaneous transfer of Lot 6 to the
Campbells.
(c) Cameron Stewart
Dobbie v Davidson (1991) 23 NSWLR 625
Easements by prescription (long use) – 20 yrs - doctrine
of the lost modern grant
Here the omission was in the conversion process
No fault was needed
The easement was “created “ under old system and
then came under s 42(b)
NB: the old subsection did not require the easement to
have been “validly created”
(c) Cameron Stewart
Williams v State Transit Authority of NSW
[2004] NSWCA 179
The prescriptive easement was never
validly created a the land had always
been Torrens land – it could not come
within the exception
(c) Cameron Stewart
Castle Constructions Pty Limited v
Sahab Holdings Pty Ltd [2013] HCA 11
• Can omissions also cover mistakes by the RG to remove easements
from land that was always Torrens?
• Two blocks at Northbridge - 69 Strathallen Avenue and 134 Sailors
Bay Road
• Map
• In 2001 Castle (servient) asked for an old easement to be removed
as it was only intended to be for the benefit of the orginal owners
• The RG removed the easement over both properties after giving
notice to the then dominant tenement holders who did not object
• Sahab asked for the easement to be restored in 2007, disputing the
claims of Castle about the easement
• It argued that s 42(1)(a1) would allow the easement to be restored
because the easement was omitted
(c) Cameron Stewart
Hayne, Crennan, Kiefel and Bell JJ
•
…s 42(1)(a1) both presupposes the continued existence and
provides for the continued effect of that which has been omitted
notwithstanding it does not appear on the relevant folio of the
Register. It is an understanding capable of ready application to an
easement created under a Commonwealth Act or under a
State Act other than the RPA. The presupposition for applying s
42(1)(a1)(that the easement continues to exist) is accurate. Section
42(1)(a1) then provides for its continued effect in respect of the
land. It is an understanding which is also capable of application to
easements created under the RPA, at least in the case of an
easement created by registration[31] of the relevant dealing under
the RPA but not recorded on the folio relating to the servient
tenement. The easement in that case continues to exist because it
has been registered and not removed from the Register. Section
42(1)(a1) then provides for its continued effect in respect of the
land.
(c) Cameron Stewart
Hayne, Crennan, Kiefel and Bell JJ
Other considerations intrude when an easement created under the RPA by
registration of a dealing has later been removed by the Registrar-General.
When an easement has been previously recorded on the Register, but is no
longer recorded because it has been deliberately removed from the Register,
it could be said that the easement was "not there". It is more accurate,
however, to say that the easement is "no longer there because it has been
removed". The significance to be given to the fact of the easement's removal
from the Register requires attention to fundamental principles. The relevant
exception to the paramountcy of the registered proprietor's title is "in the
case of the omission" of an easement (where the hypothesis is that the
easement continues to exist but is not recorded). Because the RPA provided
for title by registration, the deliberate removal from the Register of an
easement created by registration cannot be treated as a "case of the
omission ... of an easement" for the purposes of s 42(1)(a1). The
presupposition for the operation of s 42(1)(a1), that the easement continues
to exist, is not valid. The easement has been removed from the Register.
(c) Cameron Stewart
Jea Holdings (Aust) Pty Ltd v RegistrarGeneral of NSW [2013] NSWSC 587
• Remember facts = Car parking right
• Servient tenement holder could build below
and above the car park
• Was registered as a covenant but only on the
benefitted land not the burdended land Could
s 42(1)(a1) apply?
(c) Cameron Stewart
Jea Holdings (Aust) Pty Ltd v RegistrarGeneral of NSW [2013] NSWSC 587
• In my opinion Professor Butt is correct to state
that an easement is "validly created" under
the Real Property Act by its registration. It
does not exist at law before registration
(except where it was created while the land
was under Old System title or it was created
by another Act of Parliament). Thus the
relevant question is whether the easement
has been registered
(c) Cameron Stewart
Jea Holdings (Aust) Pty Ltd v RegistrarGeneral of NSW [2013] NSWSC 587
• Easements lie in grant, not in contract. A transfer is
equivalent to a grant. Where land is transferred and an
easement granted in favour of the land transferred
over land held by the transferor the appropriate course
is to adopt the form in Schedule 5 so that after the
transfer of land the easement is created by the words
commencing "together with" or "and the transferor
hereby grants". In the present case the covenant-type
wording does not conform with the requirements of s
46. Thus it could not be registered as an easement and
would therefore not have been validly created. It is not
necessary to consider this further as it has not been
registered.
(c) Cameron Stewart
Interpretation
• 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
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
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
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
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
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
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
Westfield Management Ltd v Perpetual
Trustee Company Ltd [2007] HCA 45
• 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
Westfield Management Ltd v Perpetual
Trustee Company Ltd [2007] HCA 45
• 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
Westfield Management Ltd v Perpetual
Trustee Company Ltd [2007] HCA 45
• 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
Westfield Management Ltd v Perpetual
Trustee Company Ltd [2007] HCA 45
• In interpreting the clause the HC found that
the contractual rules of interpretation should
not be resorted to for registered easements –
all that was need was the register and the
topography
(c) Cameron Stewart
Westfield Management Ltd v Perpetual
Trustee Company Ltd [2007] HCA 45
• [38] Recent decisions, including Halloran v Minister Administering
National Parks and Wildlife Act 1974, Farah Constructions Pty Ltd v SayDee Pty Ltd, and Black v Garnock, have stressed the importance in
litigation respecting title to land under the Torrens system of the principle
of indefeasibility expounded in particular by this Court in Breskvar v Wall.
• [39] The importance this has for the construction of the terms in which
easements are granted has been remarked by Gillard J in Riley v Penttila
and by Everett J in Pearce v City of Hobart. The statement by McHugh J in
Gallagher v Rainbow, that: '[t]he 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' is too widely expressed. The third party who inspects
the Register cannot be expected, consistently with the scheme of the
Torrens system, to look further for extrinsic material which might establish
facts or circumstances existing at the time of the creation of the registered
dealing and placing the third party (or any court later seized of a dispute)
in the situation of the grantee.
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• 7 m right of way through car park of the Quakers
Inn Hotel
• Servient tenement holder objected to
development of 236 units and underground
parking for 351 vehicles
• Planning consent was granted for the
development but the easement needed to be
upgraded and planning consent was needed for
the upgrade
• The servient tenement holder refused to agree to
the upgrade
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• (a) Full and free right for every person who is at any time entitled to
an estate or interest in possession in the land herein indicated as
the dominant tenement or any part thereof with which the right
shall be capable of enjoyment and every person authorised by him
and lessees, employees, customers, patrons, invitees and licensees
of any business conducted from the improvements erected or to be
erected on the dominant tenement to go, pass along and re-pass at
all times and for all purposes with or without animals and with or
without vehicles or both to or from the said dominant tenement or
any part thereof.
•
• (b) The site of the servient tenement shall be maintained and
repaired by the registered proprietor thereof, which obligation shall
bind his successors in title and assigns.
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• 16 This Court is therefore limited to the material
in the folio identifiers, the registered instrument,
the deposited plans, and the physical
characteristics of the tenements. These provide
no basis for reading down the clear and
unqualified words of the grant. The grant was for
all purposes, for use at all times, and extended to
every person with an estate or interest in any
part of the dominant tenement with which the
right was capable of enjoyment, and persons
authorised by them.
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• 17 Mr Hale SC for the appellant relied on clause 1(b) of the grant
which placed the whole burden of the maintenance and repair of
the servient tenement on the servient owner and evidence of the
heavy use of the servient tenement which was likely to occur during
the construction phase. The car park, including the pavement of
the servient tenement, had not been constructed to carry heavy
traffic of this nature and the positive obligation imposed by clause
1(b) was likely to prove burdensome to the appellant. The traffic
once the units were fully occupied would also impose an
indefinitely continuing financial burden on the servient owner. This
was likely to increase if there was further development on the
dominant tenement.
•
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• 18 In my judgment this evidence cannot effect the
construction of the clear words of the grant. The dominant
tenement is very large, the servient tenement is very small,
the use is for all purposes, and the whole burden of
maintenance and repair is clearly imposed on the servient
owner. In Westfield (above) the easement made provision
for the cost of routine maintenance, repairs and insurance
to be shared between the owners of the tenements, and
made provision for the cost of repairing accidental damage.
These provisions supported the narrower construction of
the grant adopted by the Court. It is not possible to use
clause 1(b) in this way as no other construction is fairly
open.
(c) Cameron Stewart
Sertari Pty Ltd v Nirimba Developments
Pty Ltd [2007] NSWCA 324
• 23 The management of vehicle and pedestrian traffic over
the servient tenement and in the car park may well create
problems, including problems of public safety, especially at
peak times, but these are matters for the planning
authorities. They do not affect the construction of the
grant, or the question of excessive user. While the servient
owner, and persons authorised by it, are also entitled to
use the servient tenement, the evidence does not establish
that the increased use by the dominant owner would
unreasonably interfere with the reasonable use of the
servient tenement by the servient owner. Accordingly the
principles in Jelbert v Davis [1968] 1 WLR 589 CA do not
assist the appellant at this stage
(c) Cameron Stewart
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
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
Maintenance and repair?
• Servient tenement holders cannot be held to make
repairs unless they have been expressly set out in the
contract
• Such obligations cannot run at common law
• S 88BA CA does allow them to be registered
• (we will discuss this when discussing restrictive
convenants)
• Clifford v Dove [2003] NSWSC 938
• Rural View Developments P/L v Fastfort P/L [2009] QSC
244
• Rights of Way can also be upgraded with paving or
concreting depending on what is reasonably necessary
for his or her enjoyment of the easement: Butler v
Cameron Stewart
Muddle (1995) 6 BPR (c)13,984
Interference
• Interference is a basic nuisance
• If there is an obstruction you can deviate:
Bullard v Harrison (1815) 105 ER 877
• Hemmes Hermitage Pty Ltd v Abdurahman
(1991) 22 NSWLR 343 – compost bin was in
the way so the parties could deviate
(c) Cameron Stewart
Extinguishment
• Express release – deed or registration
• Abandonment – must be intent to relinquish
• Non-use is not abandonment – more is
needed
(c) Cameron Stewart
Extinguishment
• Common ownership – OST and Torrens
• Section 89 CA – obsolete
• Section 49 RPA – 20 years of non-use RG may
treat easement as abandoned but does not
effect CL rules
(c) Cameron Stewart
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
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
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
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
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
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
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
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
Question
• Max was the registered proprietor of Real Property Act
land near Little Beach. His home had a panoramic view
of the ocean. The view was protected by a valid
restrictive covenant which was noted on the register,
and which prevented his neighbour, Craig, from
erecting a building of “more than one storey from the
ground”. Max's land also had the benefit of "a right of
way for all purposes" over Craig's land. This right of
way allows him easy access to the beach and it had
been created and registered in accordance with the
Real Property Act and s 88(1) of the Conveyancing Act.
(c) Cameron Stewart
• In 2000 Max sold his land to Matthew, who
decided to convert the house into a fitness
centre with gymnasium, squash courts and spa.
He anticipated being able to provide services for
approximately 80 customers.
• Matthew had the windows in the rooms facing
the sea bricked in so that those rooms could be
used as squash courts. In 2012, Matthew also
devised a fitness programme which involved his
customers jogging and bicycling across the right
of way to the beach.
(c) Cameron Stewart
• To facilitate this, he wants to upgrade the right
of way, which is presently a sandy path, by
converting it to a bitumen cycle track.
• Matthew also wants Craig to clear the right of
way as it is obstructed in one place by a fallen
tree. Craig is most distressed by Matthew's
plan.
(c) Cameron Stewart
• He tells you:
• (a) That he wishes to prevent Matthew using the
right of way in the manner proposed;
• (b) That he wishes to prevent any alterations to
the right of way;
• (c) That he is not prepared to remove the fallen
tree; and
• (d) That he wishes to have the burden of the
restrictive covenant removed from his land.
(c) Cameron Stewart