Presentation is loading. Please wait.

Presentation is loading. Please wait.

Easements Cameron Stewart Thanks to Jim Helman and Shae McCrystal – errors are mine (c) Cameron Stewart 2014.

Similar presentations


Presentation on theme: "Easements Cameron Stewart Thanks to Jim Helman and Shae McCrystal – errors are mine (c) Cameron Stewart 2014."— Presentation transcript:

1 Easements Cameron Stewart Thanks to Jim Helman and Shae McCrystal – errors are mine (c) Cameron Stewart 2014

2 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

3 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

4 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

5 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

6 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

7 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

8 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

9 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 (c) Cameron Stewart

10 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

11 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

12 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 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

13 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

14 Accommodation of the dominant tenement 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. (c) Cameron Stewart

15 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

16 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

17 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

18 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

19 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

20 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

21 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

22 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

23 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

24 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

25 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

26 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

27 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. (c) Cameron Stewart

28 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

29 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

30 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

31 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

32 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

33 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

34 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

35 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

36 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

37 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

38 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

39 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

40 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

41 Jea Holdings (Aust) Pty Ltd v Registrar- General 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

42 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

43 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

44 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 plaintiff has far more than nominal proprietorship (c) Cameron Stewart

45 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

46 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

47 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

48 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

49 Conveyancing Act s 88(1) P apdopolas 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

50 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

51 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

52 117 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. (c) Cameron Stewart

53 117 York St Pty Ltd v Proprietors of Strata Plan No (1998) NSWLR 504 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. (c) Cameron Stewart

54 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 $ and the inconvenience to the neighbour was minor. Easement granted; compensation awarded = $ (c) Cameron Stewart

55 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

56 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 (c) Cameron Stewart

57 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

58 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

59 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

60 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

61 Implied easements Abutting Road Common intention Non-derogation from grant Continuous and apparent easements Easements by necessity (c) Cameron Stewart

62 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

63 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

64 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

65 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

66 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

67 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 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

68 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

69 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

70 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

71 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

72 Continuous and Apparent Easements Aldridge v Wright [1929] 2 KB 117[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

73 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 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

74 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

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

76 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

77 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

78 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

79 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

80 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 (c) Cameron Stewart

81 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

82 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

83 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

84 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

85 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 [ ]) So more than knowledge is need for an in personam – some promise/statement is necessary (c) Cameron Stewart

86 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

87 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

88 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

89 Kitching v Phillips [2011] WASCA 19 No implied term meant no case of non- derogation of grant No estoppel could be raised either (c) Cameron Stewart

90 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

91 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

92 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 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. (c) Cameron Stewart

93 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

94 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

95 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

96 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

97 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

98 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

99 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

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

101 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

102 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

103 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

104 (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

105 (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.

106 (c) Cameron Stewart McGrath & v Campbell [2006] NSWCA 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.

107 (c) Cameron Stewart McGrath & v Campbell [2006] NSWCA 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?

108 (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 same way.

109 (c) Cameron Stewart 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.

110 (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”

111 (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

112 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

113 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.…s 42(1)(a1)Act s 42(1)(a1)Section 42(1)(a1)[31]Section 42(1)(a1) (c) Cameron Stewart

114 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.s 42(1)(a1).s 42(1)(a1) (c) Cameron Stewart

115 Jea Holdings (Aust) Pty Ltd v Registrar- General 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

116 Jea Holdings (Aust) Pty Ltd v Registrar- General 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

117 Jea Holdings (Aust) Pty Ltd v Registrar- General 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

118 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

119 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

120 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

121 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

122 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

123 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

124 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

125 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

126 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

127 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

128 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

129 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 Say- Dee 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

130 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 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

131 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

132 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 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

133 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 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

134 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 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

135 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 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

136 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

137 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

138 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 Muddle (1995) 6 BPR 13,984 (c) Cameron Stewart

139 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

140 Extinguishment Express release – deed or registration Abandonment – must be intent to relinquish Non-use is not abandonment – more is needed (c) Cameron Stewart

141 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

142 Extinguishment Treweeke v 36 Wolsely Road Pty Ltd (1972) 128 CLR 274 – 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 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. (c) Cameron Stewart

143 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

144 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

145 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

146 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

147 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

148 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

149 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

150 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

151 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

152 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

153 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


Download ppt "Easements Cameron Stewart Thanks to Jim Helman and Shae McCrystal – errors are mine (c) Cameron Stewart 2014."

Similar presentations


Ads by Google