Thanks to Jim Helman and Sahe McCrystal – errors are mine

Thanks to Jim Helman and Sahe McCrystal – errors are mine
Easements and Profts Cameron Stewart Thanks to Jim Helman and Sahe McCrystal – errors are mine

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.

Positive easments An easement may be a positive easement - a right to do something on someone else's land. Examples of recognised positive easements include: the right to place electricity and telephone wires over neighbouring land; a right of way over a neighbour's land; the right to discharge water onto neighbouring land from a drain; the right to fix a signboard on a neighbour's land.

Negative easments An easement may also be negative, which restricts what the neighbour can do on his or her land. Examples of recognised negative easements are: an easement of light to receive light for a certain window; an easement of air, to receive air through a defined channel like a ventilation shaft; an easement of flow of water, to receive a flow of water along the waterways - ie the neighbouring owner cannot block the flow of water.

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

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.

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

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

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.

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

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?

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?

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?

How do you show accommodation? Lord Evershed 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.

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.

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.

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).

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.

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.

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”.

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.

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 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.

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”.

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.

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.

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.

Copeland v Greenhalf [1952] 1 Ch 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.

Moncrieff v Jamieson [2007] 1 WLR 2620 – Land A was a small cottage at the bottom of a cliff. The only access to the cottage was by boat or by means of stairs in the cliff, leading to a private road which led to a public road. The cottage had an easement attached to use the private road. Could the easement extend to a right to park on the servient land at the top of the hill or did it only allow the owner of the dominant land to drive across the land? Was a right to park capable of being an easement or did it amount to a grant of exclusive possession?

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?

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.

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.

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.

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.

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).

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).

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.

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.

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.

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.

117 York St Pty Ltd v Proprietors of Strata Plan No (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 $ extra – but this was very expensive. Negotiations broke down. The builders thought that $ was fair compensation for the right to swing the crane; the neighbours wanted $ (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.

Hodgson CJ at 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.

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 $ and the inconvenience to the neighbour was minor. Easement granted; compensation awarded = $23 000

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

Implied easements Abutting Road Common intention
Non-derogation from grant Continuous and apparent easements Easements by necessity

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

Abutting Private Road In Dabbs v Seaman (1925) 36 CLR 538 the High Court considered whether Emily Dabbs was entitled to a right of way over land adjoining the land owned by her and marked on her Certificate of Title as “20 feet lane”. Isaacs J: When the mists of irrelevancy disappear, the question resolves itself into the following proposition, which I hold to be good law and to be absolutely necessary if titles under the Real property Act are to be indefeasible: Where A, a registered proprietor of land under the Real Property Act, transfers to B a part of his land described by a plan indicating that the transferred land is bounded on one side by a 20' lane situated on the other part of the transferor's land and the transfer is duly registered, the, in the absence of either a provision to the contrary on B's certificate of title or some subsequent personal legal or equitable relation to the contrary between B and the owner of the adjoining land, B, so long as he remains the registered proprietor of the land so transferred and described, is entitled (1) to have the land marked “20 feet lane” preserved as such, and (2) to a right of way over the lane. Limited to where the road is also Torrens land: Cowlisaw v Ponsford (1928) SR(NSW) 331 at 336

Common Intention Easement
Where both parties to a grant share a common intention as to the use to be made of the land by the grantee and an implied easement is necessary to give effect to that common intention (common intention easement). The reverse applies where implication is needed to give effect to the parties common intention as to the use of the reserved land by the grantor. Courts are jealous of these because grantor should have made an express grant and will only find them where necessary (for example – grant of a house with shared wall – easement of support for grantor).

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).

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.

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.

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.

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

Easements by Necessity
“If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant ….. [but there is] the well-known exception which attaches to cases of what are called ways of necessity” per Thesinger LJ at 48 in Wheeldon v Burrows (1879) 12 Ch D 31

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.

Easements by Necessity
The council offered to buy the land but at a price that was unacceptable to the P. So the P sought an easement of necessity over the land that they had sold. P had decided to build his own carpark and needed the easement to create a driveway into the land. The P argued that easements of necessity arise as a matter of public policy whenever land becomes landlocked. Therefore intention is irrelevant. The court rejected this argument holding that easements of necessity are based on the presumed intentions of the parties and therefore may be rebutted by evidence of actual intention. As P had never intended that an easement should be created, had not thought it was needed, the court would not find an easement of necessity.

Easements by Necessity - usage
Corporation of London v Riggs (1880) 13 Ch D 798 the Court considered whether a right of way of necessity in favour of a landlocked piece of land over the surrounding land is a general right “for all purposes” or whether it is limited to the uses to which it had been put at the time when the action first arose. In his judgment, Jessel M.R. said: ...the only scintilla I can find going anywhere near the point is an observation of the Lord Chancellor Cairns in Gayford v. Moffat (1), in which he says, reading from Mr. Seargeant Wiliams’ note to Pomfret v. Ricroft (2): “This principle seems to be the foundation of that species of way which is usually called a way of necessity:” and then he goes on to say, “Now, that is exactly the interpretation of the words used in this grant; ‘with all ways to the premises appertaining;’ it means, with such a way as the law would hold to be necessarily appertaining to premises such as these – that is, a way of necessity; therefore, immediately after this lease was granted, this tenant occupying the inner close became entitled to a way of necessity through the outer close, and that way must be a way suitable to the business to be carried on the premises demised, namely, the business of a wine and spirit merchant. It is therefore obvious to me that Lord Cairns thought a way of necessity meant a way suitable for the user of the premises at the time when the way of necessity was created; and that is all I can find in the shape of authority on the subject.

Implied Easements - Torrens
Australian Hi Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618. In this case land was owned by the Savage family. During their ownership a block of shops was erected and subsequently an office block. At that time there were two buildings on the land. The land was subdivided such that lot 1 comprised the shops and some of the land and lot 2 comprised the office block and the land adjoining it. The Savage family sold lot 1 to Gehl and several years later sold lot 2 to Australian Hi-Fi Publications Pty. Ltd. There was no reference in any of the contracts or transfers or the certificates of title to any easements providing for rights of way.

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.

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.

McGrath v Campbell [2006] NSWCA 180 The case involved a Wheeldon v Burrows easement where one grantor made two simultaneous grants of land to two separate parties. There was a continuous and apparent easement being exercised before the sale. Under Wheeldon v Burrows principles, the court would presume that the vendor and each purchaser intended in their contracts that the easement would be granted. The question came to court when the owner of the dominant tenement tried to enforce their rights to use the easement against the owner of the servient tenement. Both were RP’s. Could the owner of the dominant tenement enforce the easement against the owner of the servient tenement and then force them to register that easement?

Easements by Necessity - Torrens
The NSWCA held in this case that in order for the owner of the dominant tenement to enforce the easement against the owner of the servient tenement they would, at very least, have to show an inpersonam claim – some claim in law or equity that arose and gave the owner of the dominant tenement a legal or equitable right against the owner of the servient tenement.

The court sidestepped the registration question by finding that there was no impersonam claim in the case. The court found that for there to be an inpersonam claim, the RP had to live with the consequences of the transactions that they created. In this case they had not created the transaction – it was a consequence of the presumed intentions of the vendor of the land when he sold the two pieces of land simultaneously. As any Wheeldon v Burrows right emerged out of the presumed intention of the vendor and the new owner of the dominant land in ANOTHER TRANSACTION, despite the fact that the court also presumed the intention into the transaction that bought the servient land, you couldn’t enforce it in personam.

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 [ ])

This quote suggests that if the matter arises for determination, neither prescriptive easements nor implied easements operate under the Torrens system – you can’t force the owner of the servient land to register such an easement; you can’t enforce such an easement against an RP or the successor in title of the RP of the servient land as the easement can’t be registered and doesn’t fall under the easement exception to indefeasibility of title.

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.

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

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 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 commencement of the proceedings in which the claim is made.

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.

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

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.

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.

Dobbie v Davidson (1991) 23 NSWLR This involved a dispute between the owners of adjoining rural properties in the Goulburn area. From the early 1900s, the owners of "Ellerslie" used an access road through "Lumley Park"(LP) daily. (Note that there was no other means of access. There was a route for a road marked on the local government map, but it had never been built, and would be very expensive, involving a bridge over a creek.)

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.

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.

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

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.

Exceptions to indefeasibility - Omitted or misdescribed easements
Australian Hi Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618. In this case land was owned by the Savage family. During their ownership a block of shops was erected and subsequently an office block. At that time there were two buildings on the land. The land was subdivided such that lot 1 comprised the shops and some of the land and lot 2 comprised the office block and the land adjoining it. The Savage family sold lot 1 to Gehl and several years later sold lot 2 to Australian Hi-Fi Publications Pty. Ltd. There was no reference in any of the contracts or transfers or the certificates of title to any easements providing for rights of way. Evidence was adduced that prior to the first sale the tenants of the shops constructed on what became lot 1 used part of the land that became lot 2 to access a public road. The Court considered that if the land had been under old system title then the rule in Wheeldon v Burrows would have allowed the subsequent owners of lot 1 to claim a right of way over those parts of lot 2 used as the right of way. In his judgment in the Court of Appeal, Mahoney J.A. considered the application of the rule in Wheeldon v Burrows to land held under the Real Property Act and said: The argument that such an exception should be created has been put, in substance, upon the following basis: that interests such as Wheeldon v. Burrows easements are interests well recognized by the law; that, as they are incapable of being registered or noted on the register, they will, unless protected by s. 42 (b), be incapable of existing; and that it could not have been the intention of the Act to destroy such interest. But, in my opinion, such an argument involves at least two difficulties.

Rights, such as those which arose upon the sale of the land by the Savage family to the defendant and his wife, would normally be within the class of rights existing personally against the Savage family as proprietors and so enforceable against them notwithstanding s. 42. Those rights would not be enforceable against a subsequent registered proprietor taking without fraud; the existence of such rights is proscribed by s. 42 to that extent. There is, in my opinion, nothing special in this, such as would warrant the creation of an exception to the ordinary effect of s 42 or the extension of the term “omission” to make such rights enforceable against the subsequent registered proprietor. I see no reason why, for example, a Wheeldon v. Burrows interest should be in a better position than he interest which would have arisen had the Savage family, by deed, purported to grant to the defendant exactly a right in similar terms. The right created by that deed would not be enforceable against a subsequent registered proprietor. (c) Cameron Stewart 2009

McGrath & v Campbell [2006] NSWCA 180 – (from the headnote) Two adjoining lots were owned by a single registered proprietor. The northern lot (Lot 6) faced a main road, while the southern lot (Lot 12) was bounded by a street known as Brighton Avenue. A registered easement had been created over both lots in favour of a third adjoining property, which permitted access to the third lot from Brighton Avenue. The easement had also been used for some years as an access point for Lot 12, although this use had never been noted on the register. In 1980, Lot 6 was sold to the respondents and Lot 12 was sold to the appellants and the transfers of title were recorded in the register as having occurred on the same day. The respondents continued to use the easement over Lot 12 to access Lot 6 until a dispute arose in The respondents argued that the circumstances of the sale gave rise to an implied easement over Lot 12 for the benefit of Lot 6, and that the simultaneous transfers of the two lots gave rise to an equity or right in personam enforceable against the appellants. The appellants argued that the indefeasibility provisions of the Real Property Act 1900, and the circumstances of the transfers in this case, prevent the recognition of any such equity.

Aldridge v Wright [1929] 2 KB 117 4. Where an owner executes contemporaneous conveyances of adjoining plots with the houses erected on them, and there exists a made road across the land of one plot to an entrance to the house on the other plot, and it is proved that the road was constructed for the use of both houses, there will be implied a grant in the one conveyance of a right to use the road and a corresponding reservation in the other conveyance. Implied easements can arise but they are equitable : 79 One might accept, for present purposes, that had Lots 6 and 12 been under old system title, the authority of Aldridge v Wright may have carried the day in favour of the Campbells. According to Professor Butt in Land Law (2006, 5th ed) at 446, such an easement would be a legal and not merely an equitable interest. Professor Butt refers to the statement of Priestley JA in Dobbie v Davidson (1991) 23 NSWLR 625 at 646 to the effect that easements such as those arising under the doctrine of Wheeldon v Burrows are equitable, and suggests that this approach may be explained upon the basis that the easement in that case arose over Torrens title land and was, at the time of the litigation, unregistered. As an unregistered interest it could only be an “equitable” and not a “legal” interest. The finding by the primary judge in [71] that the Wheeldon v Burrows implied easement in the present case brought about “in equity, the result that lot 6 had the benefit of, and lot 12 was burdened by” may be explained in a similar way.

While the original title holders may be bound in equity, the personal equity will not be created in the case of simultaneous transfers of title in circumstances where the new owners of the putative servient tenement have not in any way contributed to the creation of the implied easement or conducted themselves in any way which could be regarded as unconscionable

Easements by prescription (long use) – 20 yrs - doctrine of the lost modern grant - Dobbie v Davidson (1991) 23 NSWLR 625, The Court was asked to consider whether a track used for access to a property across another property for a period of 60 years prior to the land being brought under the Real Property Act constituted a right of way and further considered whether the “omission” from the certificate of title after the land was brought under the Real Property Act constituted an exception to indefeasibility within what was then s 42(b).

In his judgment in the Court of Appeal Kirby P made the following observations:- The purpose of the rule by which a prescriptive right is upheld by the law is ultimately to guard the peaceful enjoyment of the use of land where that use has endured for more than twenty years, as of right.” The evidence showed that the use of the road constituting the right of way to “Ellerslie” was extensive. In connection with access to that property it had been used by bullock drays and bullock wagons; horse drawn vehicles carrying products; carts, trucks, cars and tractors; visitors, tradespeople, shearing teams, droving stock, electricity and bush fire brigade vehicles; shooters; for carting and bailing hay and by children. None of the aforementioned people using the road over this time ever sought permission from the owners of “Lumley Park”. They just used it without dispute until the present litigation began. Relevant to assigning conduct to one category rather than the other will be: (i) the time during which the conduct has been peacefully followed; (ii) the persistence of the conduct, despite supervening sale and the acquisition of new owners by the dominant and servient tenements; (iii) the unlimited variety of the persons who have utilised the alleged right-of-way; (vi) the absence of physical impediments or obstructions to that use; and (v) the knowledge of the use by the owners of the servient tenement yet their failure to attempt to forbid, limit or control the use of the right-of-way by the owners of the dominant tenement and those having dealings with them. Both Kirby P and Priestly JA found that the missing easement had been omitted in the conversion

Williams v State Transit Authority of NSW [2004] NSWCA 179 the Court of Appeal considered an appeal from a judgement of Young CJ in Eq. In the case before Young J, the court was asked to consider whether the doctrine of lost modern grant applied to claim for rights of way over land under the provisions of the Real Property Act. In his judgment Mason P deals with the doctrine commencing at paragraph 78. He says: At common law an easement may be created by twenty years uninterrupted enjoyment of the right claimed. This doctrine of “lost modern grant” requires the court to presume, even if contrary to the truth, the existence of an express grant which has been lost. The presumed grantor must have the legal capacity to have executed the grant.” In particular, s46 of the Real Property Act relevantly provides that “where any easement…..affecting land under the Act is intended to be created, the proprietor shall execute a transfer in the approved form”. Until the present case, there was an unbroken stream of authority in New South Wales to the effect that easements by prescription could not arise over land subject to the Real Property Act where the acts of user occurred during the time the land was under the Act. (c) Cameron Stewart 2009

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.

Extent of use Express easements – grant of reservation – check the intention – construed in its natural meaning White v Grand Hotel, Eastbourne [1913] 1 Ch 113 the case concerned a right of way over a privately owned laneway which was granted to the owner of a private house to allow him to access the rear of his property through a gateway. The owner of the dominant tenement sold the premises to a hotel and the rear yard was used as a garage for motor cars belonging to visitors staying at the hotel with the drivers of those vehicles staying in the previously private premises.

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.

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.

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

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

Extent of use In Gallagher v Rainbow (1994) 179 CLR 624 McHugh J set out some general principles at pages 639 – 641 on the construction of easements: At common law the meaning of an easement conferred by a deed of grant is determined by reference to the language of the grant construed in the light of the circumstances …. The principles of construction that have been adopted in respect of the grant of an easement at common law .. are equally applicable to the grant of an easement in respect of land under the Torrens System … In construing the grant of an easement … the court will consider (1) the locus in quo [site of the easement] over which the way is granted; (2) the nature of the terminus ad quem [the nature of the servient tenement] and (3) the purpose for which the way is to be used.

Extent of use Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 –Westfield are the owners of the Skygarden complex in Pitt St Mall. Perpetual are the owners of the GlassHouse complex. Glasshouse abuts Pitt St Mall and King St. Former owners of GlassHouse granted an easement to former owners of Skygarden to run an access ramp and driveway UNDER Glasshouse in order to access Skygarden from King St. The terms of the grant of easement read: Full and free right of carriageway for the grantee its successors in title and registered proprietors for the time being of an estate or interest in possession of the land herein indicated …… to go, pass and repass at all times and for all purposes with vehicles to and from the said lots benefited or any such part thereof across the lots burdened.

Extent of use Westfield acquired more shopping complexes – namely Imperial Arcade and Centrepoint. It decided to redevelop them and use its access under GlassHouse as the central access point to those malls too – so cars accessing the land on the other side of Skygarden would drive under Glass house and Skygarden to Imperial / Centrepoint. They sought a declaration that they could use the right of way for this purpose and Glasshouse defended arguing that they could only use the right of way to access Skygarden.

Extent of use Westfield argued that the words ‘for all purposes’ meant that the purpose of driving under Glasshouse in order to cross Skygarden and get to Imperial was covered. Perpetual argued that the grant only encompassed ‘going, passing and repassing’ over Glass House “to and from’ Sky Garden, not across Sky Garden.

Extent of use The High Court held that Perpetuals submission was correct. They said the phrase ‘for all purposes’ had to be read in the context of the grant as a whole – granting the capacity to use the easement for all purposes connected with the grant of the easement. The easement in this case was granted for all purposes involving travelling to and from Sky Garden not across Sky Garden. So, Westfield had the right to cross Glass House for ANY purpose provided that that crossing was just to and from Sky Garden not across Sky Garden. The court said that any other construction would impost a greater burden on the owners of Glass House than had been intended by the original grant.

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.

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.

Extinguishment Express release – deed or registration
Abandonment – must be intent to relinquish Non-use is not abandonment – more is needed

Extinguishment Common ownership – OST and Torrens
Section 89 CA – obselete Section 49 RPA – 20 years of non-use RG may treat easement as abandoned but does not effect CL rules

Extinguishment Treweeke v 36 Wolsely Road Pty Ltd (1972) 128 CLR this case involved two blocks of land in Double Bay that were subdivided in 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 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.

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.

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.)

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.

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.

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.

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.

Thanks to Jim Helman and Sahe McCrystal – errors are mine

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Thanks to Jim Helman and Sahe McCrystal – errors are mine

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