Another Easement Issue

In Lolakes & Anor v Konitar [2002] NSWSC 889 (4 October 2002) Campbell J adjudicated on a dispute between adjoining owners concerning the existence of an easement (a right of way) for the benefit of the plaintiffs land and burdening the defendant's land

Facts

A predecessor in title to the defendant had granted the easement by way of transfer to a predecessor in title to the plaintiff. There was a covenant in the transfer that the proprietor of the dominant tenement would erect and maintain a fence on the western boundary of the easement and this had never been done. There were attempts by the plaintiff to establish their right to the easement, but they were deterred by the defendants' reaction to their attempts. Eventually the defendant made application to the Registrar General for the removal of the easement, that acting bringing the parties before the court.

Comment

1       The case provides a concise guide to the authority in existence guiding the court in the exercise of its discretion under S89 of the Conveyancing Act 1919 (NSW) for the modification and extinguishment of easements and covenants. The defendant argues that the extinguishment was justified on the basis of

  1. Obsolence (S89 (1) (a) first limb)
  2. Impede reasonable user without securing practical benefit (S 89 (1) (a) second limb)
  3. Extinguishment not causing substantial injury (S 89 (1) (c)

In following the authorities Campbell JJ adopted the meaning of obsolesence (first limb) "serving no useful purpose". On the basis of that metric he found the easement was not obsolete. In dealing with the second limb of S89 (1) (a) he followed the restrictive interpretation adopted by most authorities. There has been an issue in the authorities regarding the interpretation of the wording in the second limb:  "The continued existence thereof [the easement] would impede the reasonable user of the land subject to the ... restriction".  Does  "reasonable user" in this context mean "no reasonable user" or "some reasonable user" (the open interpretation). The Courts in England have decided that in respect of the English equivalent to S 89 that the interpretation to be follows is a restrictive one. Accordingly, in England, only if no reasonable user is available to the owner of the servient tenement will grounds for extinguishment follow. If some reasonable use is still available to the servient tenement proprietor, consistent with the easement or covenant, then grounds for extinguishment are not made out.  The Australian courts have favoured the English approach although, as Campbell J noted, "there has been some questioning of it". In TZ Developments Pty Ltd v Reckman Pty Ltd (1993) 7BPR [97582] the Court of  Appeal left the question open. On the basis the English approach is the more favoured approach in Australia, Campbell J found that the grounds under the second limb were not made out. Further on applying the law to the facts the grounds under S 89 (1) (c) were found not made out.

2       The defendant argued unsuccessfully that the plaintiffs had abandoned the easement.  Campbell J referred to and applied the principles relevant to a finding of abandonment set out in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 244 and Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605. Activity on the part of the plaintiffs' predecessor indicative of abandonment were equivocal and inaction by the plaintiff empowering their rights was not enough to establish abandonment.

3       An attempt to argue that the transfer and grant of easement failed because it effectively amounted to a grant of exclusive possession (and so was not capable of forming the subject matter of a grant - re Ellenborough Park [1956] 1 Ch 131 at 163 ) was also unsuccessful. In referring to Copeland v Greenhalf [1952] 1 Ch 488 Campbell J disagreed with the view expressed by the authors Bradbrook and Neave in Easements and Restrictive Covenants in Australia that there was inconsistency with that decision and the earlier case of Wright v Macadam  [1949] 2 KB 744. Copeland v Greenhalf, it will be remembered, held that the right to leave any number of trucks on a strip of land for any length of time for repair purposes was too wide to be an easement as it amounted to exclusive possession. In Wright v Macadam it was held that the right to store corn in a shed in the landlord's premises for use in the demised premises was in face a right capable of existing as an easement.  Campbell J took the view that the issue of whether there existed the right possess (such a right would have been inconsistent with a right established an assessed) had not been properly argued and the case was distinguishable on that basis from Copeland v Greenhalf.

Originally published in the Student Law Journal