Armishaw v Denby Horton

LEGISLATION CITED : Conveyancing Act 1919, s 89 Real Property Act 1900

Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 Ashoil Holdings Pty Limited v Fassoulas & Ors (2005) 12 BPR 23,525 Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363 Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833 Chiu v Healey (2003) 11 BPR 21,241; (2003) NSWSC 857 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18,099 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 Re Ghey & Galton's Application [1957] 2 QB 650 Grill v Hockey (1991) 5 BPR 11,421 Heaton v Loblay (1960) SR (NSW) 332 In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261 CASES CITED : Markos v OR Autor Pty Ltd [2007] NSWSC 810 Pieper v Edwards (1982) NSW ConvR 56-060 Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605 Re Markin [1966] VR 494 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Re Roseblade; Re Foenander [1964 -5] NSWR 2044 Swan v Sinclair [1925] AC 227 Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Tujilo v Watts (2005) 12 BPR 23, 257 Webster v Bradac (1993) 5 BPR 12,032 Williams v Usherwood (1981) 45 P & Cr 235

TEXTS CITED : Bradbrook & Neave "Easements and Restrictive Covenants In Australia" Butterworths 2nd Ed, 2000 at [19.27]

PARTIES : Plaintiff- Rosedale Farm (NSW) Pty Limited

SOLICITORS : Plaintiff- David Francis Hawdon, BHM Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2126/09 RE: THE APPLICATON OF ROSEDALE FARM (NSW) PTY LTD JUDGMENT 1 HIS HONOUR: The village of Rosedale is a coastal hamlet in the Eurobodalla Shire south of Sydney. Rosedale stands on either side of a tidal waterway known as Saltwater Creek that divides the village into its two parts, North Rosedale and South Rosedale. In part because of its attractive beaches and secluded environment the Eurobodalla Shire has become a popular south coast destination in recent decades. North and South Rosedale were originally surrounded by local dairy farming communities. The proximity to nearby beaches meant that over the last 50 years these communities have expanded with the increase in local residential housing development. 2 Rosedale is approximately seventeen kilometres south east of Bateman's Bay town centre. It is two kilometres south of the coastal village of Malua Bay and approximately four kilometres north east of the coastal village of Tomakin.

3 Rosedale Farm Pty Limited ("Rosedale Farm"), the plaintiff in this proceeding, owns a six-hectare farming property ("the property") situated about two kilometres west of the coast and west of Rosedale village. The property was used for dairying throughout the later nineteenth and early twentieth centuries and for general grazing after that. Rosedale Farm now wishes to develop the property as a retirement village.

4 Rosedale Farm applies to the Court to extinguish an easement created in 1929 that gives rights of way and rights of carriageway over the southern portion of the property for the benefit of certain land in the South Rosedale area. Rosedale Farm's application seeks orders in exercise of the Court's power under Conveyancing Act 1919 s 89(1) to extinguish the easement. Rosedale Farm wishes to develop the site as a Senior Living Community.

5 The easement benefits certain land east of the property and closer to the coast. The land with the benefit of the easement ("the benefited land") affected by this application is now subdivided into many allotments used both for holiday and permanent housing.

6 The application has been extensively advertised and notice of it has been given to the Eurobodalla Shire Council and some other interested persons. Despite the publicity given to the application no one has appeared in these proceedings to oppose it. Communications received in relation to the application have expressed a lack of opposition to it. This is not surprising given the very substantial changes that have occurred to the Rosedale area since 1929 when the easement was created.

7 The easement served an important need in 1929. It was originally created to allow people living in the village of Rosedale to gain access to the nearest public road ("the old road"), which ran in a north - south direction and was located on a ridge line just west of the property. Curiously, the old road is only described in the evidence in these proceedings by the name "Road 100 Wide" and nothing more. The old road seems in the early twentieth century to have been an important means of travelling north and south by vehicle to get to and from Rosedale. However the old road's course was an inconvenient distance from Rosedale village. In the early twentieth century the old road would not have been quickly accessible to residents of Rosedale village without their seeking the permission of the property's owners to transit across the property. In the 1920's no other direct pedestrian or vehicular access existed from the old road to the village. There were probably more circuitous routes between the old road and the village at the time. What these may have been is no longer very clear on the evidence. Parts of the old road became Bevian Road, which continued to provide a route for some traffic between Malua Bay and Tomakin. The easement was used for both pedestrian and vehicular traffic until before the mid 1970's when such usage stopped. Changes to the local built environment account for the cessation of usage at this time. 8 George Bass Drive is now the major north-south highway in the Rosedale area. George Bass Drive was constructed between 1969 and 1975 east of the property and runs along the coast but between the property and Rosedale village. George Bass Drive does not make use of the route of the old road west of the property. Positioning George Bass Drive west of the village but east of the property meant that the Rosedale community and its visitors used the more convenient George Bass Drive not the less convenient easement for road access to and from the village. Pedestrian and vehicular access to the old road was no longer necessary.

9 The question for determination in these proceedings is whether, given these changes to the area, Rosedale Farm can make use of the statutory power under Conveyancing Act s 89(1) to extinguish the easement that burdens the property.

10 After several procedural hearings in relation to the advertising of the application and the giving of notice to potentially affected persons the Court heard the matter on 7 December 2009. The Court made orders on 8 February 2010 extinguishing the easement, as requested in the application. The summons also sought the extinguishment of another easement that burdens the northern portion of the property. Rosedale Farm does not now press for relief in respect of that northerly easement and this part of the summons has been discontinued as part of the final orders. I now publish my reasons for the relief already given in respect of the southerly easement.

11 Consideration of the issues for determination requires a closer examination of the history of Rosedale village, of the easement itself and of the course of these proceedings.

The Easement and Titles to the Servient and Dominant Tenements

12 Rosedale Farm is the registered proprietor of all the land comprising the property, which consists of the following three lots in the Eurobodalla Shire:

(a) Lot 1 in Deposited Plan 403372 described in Title Diagram DP403372 as "Lot 1";

(b) Lot 12 in Deposited Plan 755902 described in Title Diagram Crown Plan 967.2013 as "Lot 12"; and

(c) Lot 122 in Deposited Plan 755902 described in Title Diagram Crown Plan 2600.2013 as "Lot 122".

At the time of the hearing these three lots comprised a single farming property. Since the 1870's Rosedale Farm's various predecessors in title had used the property for either dairying or grazing purposes. 13 Lot 122 lies to the north of Lots 1 and 12. Only two of the three lots, namely Lots 1 and 12 above, are the subjects of the present application. The easement, which burdens Lots 1 and 12 is actually comprised of two parallel and contiguous rights of way, which together are referred to in the evidence as "the southern rights of way" and are created by Dealings B914851, B914852, B914153, B914154, B914857 & F116322 as shown in DP 16191, and by F58442 as shown in DP 109681. Lot 122 is burdened by a right of way referred to in the evidence as "the northern right of way" the title details of which are not relevant for present purposes. Throughout these reasons the southern rights of way are referred to either as "the easement" or "the southern rights of way". 14 The summons filed by Rosedale Farm originally sought modification or extinguishment of both the northern right of way and southern rights of way. As indicated earlier Rosedale Farm did not finally press its application for extinguishment of the northern right of way.

15 The subdivision of the principal lands in Rosedale and the associated creation of the easement reflect demographic and physical changes occurring to the neighbourhood. This section describes the Rosedale district in 1929 and the physical and demographic changes to the neighbourhood since then. These changes have generally affected the eastern end of the course of the easement and the dominant tenement. Very little has changed on the servient tenement itself, which remains undeveloped rural property as it was in 1929 when the easement was created. Although that state of affairs is about to change with the proposed development of the plaintiff's Senior Living Community on the property. This short account of the district starts with the early settlement of Rosedale taken partly from the useful histories tendered by the plaintiff.

16 The Rosedale valley includes portions 11,12, 32, 81, 98, 122, 213, 214 and 215 in the Parish of Bateman, County of St Vincent. These portions of about 40 acres each were set-aside during early European settlement, based on an administrative theory that a 40-acre parcel was an adequate living area for farming. Some of them can be seen in the rough sketch Figure 1 at the end of these reasons. The property, which was and still is known in the district as "Rosedale Farm" comprising portions 11 and 12 (now Lots 1 and 12) has been occupied for farming purposes, together with other adjacent lands, since about the 1870's. Amongst the many early pioneers of the area James and Wilhelmina Sebbens cleared the property and established on it a substantial and efficient farming, dairying and highly-regarded cheese-making operation from about 1870. James and Wilhelmina Sebbens left the area in 1908. The property was farmed by a number of subsequent owners until World War I. But they were less successful as the limitations of European farming methods on the poor clay and shale-based soils in the area became evident. 17 Prior to World War I travel to Rosedale had been by boat and bullock and horse drawn vehicles. The invention of the motorcar and the forming of local roads of reasonable quality opened up the Rosedale district to more visitors by the early 1920's. Nearby Broulee was being promoted as a popular seaside destination by the end of World War I. Rosedale attracted incidental tourist attention as a result. In the 1920's families travelled to Broulee by car for holidays both from Sydney and from Goulburn and the southern tablelands. Some of them camped, fished and holidayed at Rosedale. This early tourism to the area became well established and led to the emergence of an investor, Horace Benjamin O'Neil, who foresaw the possibility of future subdivision in the district. He purchased the property in October 1921 and leased it to tenants who continued to operate it as a dairy farm. He and group of Goulburn businessmen became the first subdividers of the property in 1929. Their subdivision seems to have been organised out of Goulburn as the solicitors who acted upon it practised in Goulburn. When the 1929 subdivision occurred it would be fair to describe the Rosedale district as a farming area visited by a few casual holidaymakers.

Creating the Easement 18 The southern rights of way were created by seven dealings that transferred each of seven new subdivided lots to their new owners and provided for both vehicle and pedestrian access back over Horace O'Neil's land to the old road, then the only access to the area which was also known as Ridge Road. The seven new lots were shown in DP 16191 and were clustered around the picturesque local waters, the beach and the Saltwater Creek inlet. The seven new Lots and the right of way back to Ridge Road are clearly depicted on the rough sketch Figure 1 at the end of these reasons. Of the seven lots, only Lots 1,2,3,4, and 7 were created on the southern side of Saltwater Creek and were accessed by the southern rights of way over Horace O'Neil's land. Lots 5 and 6 were set out on the northern bank of Saltwater Creek and were accessed by the northern rights of way over Horace O'Neil's land. These reasons only analyse the subsequent development of Lots 1,2,3,4 and 7.

19 Five dealings created easements connecting the five different parcels of land, Lots 1,2,3,4, and 7, which lots constitute the dominant tenement for the southern rights of way. Transfers all dated 11 November 1929 created the easements from Horace Benjamin O'Neil to various persons from Sydney and Goulburn. The transfers were transfer B914851 (Lot 1) to Percival Reeve Holme, a retired engineer of Randwick, transfer B914852 (Lot 7) to John Edward Knowlman, a storekeeper of Goulburn, transfer B914853 (Lot 3) to Thomas Richmond Mallet a schoolmaster of Sydney, transfer B914854 (Lot 4) to Percy William Browne salesman of Sydney and transfer B914857 (Lot 2) to Andrew McDougall Watson a schoolmaster of Sydney. The northern Lots 5 and 6 were sold to a secretary and an architect from Goulburn. All the lots referred to are lots in DP16191, which is further described in the transfers as consisting of parts of Certificate of Title volume 1849 folio 109 and Certificate of Title 1886 folio 63. 20 After World War 2, in 1946 a Kathleen Wilhemina Jolly became the registered proprietor of the property and other lands all then known as Rosedale Farm. She began to further subdivide it through transfers in 1949 that created more rights of way in favour of new subdivided parcels of land. These new rights of way ran adjacent to the course of the original 1929 rights of way across her land. On 21 October 1949 by transfer F116322 she transferred more land out of the original Rosedale Farm, which by then had become the land comprised in Certificate of Title volume 4427 folio 57. The land she transferred was Lots 2 and 3 in DP21641 and was transferred to Margaret Friend. 21 At the same time in 1949 Kathleen Wilhemina Jolly transferred by transfer F58442 other subdivided land being another part of Certificate of Title volume 4427 folio 57 to Leslie Harold Stewart and Eileen Beatrice Stewart. The land so transferred was a substantial part of the original Portion 11, Portion 12 and Portion 122 plus other lands. In this same transfer F58442 she also reserved for the benefit of the residue of the land described in Certificate of Title volume 4427 folio 57 a right of way adjacent to and parallel with the right of way created in the earlier transfers B914851, B914852, B914583, B914855, B914584, B914857 and F116322 so as to be become part of the rights of way collectively referred to as "the southern rights of way" or "the easement". Subdivision of the Dominant Tenement and the Building of George Bass Drive 22 The five parcels of land that Horace O'Neil transferred in 1929 together with the land Kathleen Wilhemina Jolly transferred in 1949 to Margaret Friend and the residue of the land in respect of which she reserved rights of way over the property have all been subdivided many times in the last sixty years as South Rosedale developed as a holiday destination. The larger properties within the dominant tenement have been sub-divided extensively since 1929. This subdivision accelerated after George Bass Drive opened up South Rosedale.

23 The state of the public Register is of some importance in this case. A large percentage of the certificates of title issued for residences on the southern side of Saltwater Creek contain no reference whatsoever to the easement, even though these residences are successors in title to the area benefited by the dominant tenement.

24 A brief summary of the course of that further subdivision of the dominant tenement shows how substantial the subdivision has been and how many of the resulting certificates of title do not refer to the easement. The summary also shows the difficulty that the plaintiff would have encountered in trying to find and contact each one of the registered proprietors of the subdivided dominant tenement. 25 It is convenient to analyse the parcels of land derived from each of the lots that Horace O'Neil transferred in 1929 and that Kathleen Jolly transferred or reserved in 1949. These subdivisions can be seen from a cadastral plan of the area. There have also been amalgamations of land with other parcels, which makes anything more than a summary description of these subdivisions impossible. First the land Horace O'Neil transferred was subdivided. Lot 1 in DP 16191 has now become 5 parcels in separate ownership. Lot 7 has now become 2 parcels in separate ownership. Lot 3 has been partly amalgamated with other land and the southern rights of way have been released in respect of the remaining parcel. Lot 4 has also been the subject of amalgamation and has become one parcel. Lot 2 has now become two parcels. The plaintiff's evidence shows that there are now 14 registered proprietors and 2 mortgagees of land originally transferred by Horace O'Neil. 26 But the great mass of subdivision occurs in relation to the land that Kathleen Jolly either transferred or reserved in 1949. The land transferred in transfer F116322 has now become two parcels in separate ownership. After transfer F58442 a further 15 transfers of subdivided land from Certificate of Title Volume 4427 Folio 57 occurred. These were all part of the residue of the land, which had the benefit of the adjacent and parallel rights of way in transfer F58442. The land transferred in these 15 transfers has itself now been subdivided and all the derivative titles would have the benefit of the southern rights of way. There are many of these. The plaintiff's research has found 79 of these allotments. After Certificate of Title Volume 4427 Folio 57 was cancelled and replaced by Certificate of Title Volume 6987 Folio 231 more land was subdivided and transferred that would have the benefit of the southern rights of way by reason of the original reservation in F58442. Because of the quantity of these further transfers the plaintiff has not undertaken a search to ascertain all the derivative titles. However the plaintiff estimates that there are more giving a total quantity of no less than 116 and possibly many more than that number. Given the volume of titles that emerged from this search process the plaintiff applied to Barrett J and myself to advertise notice of the application rather than individually serve these registered proprietors.

27 The next significant event in the chronology commenced about 20 years later when the Department of Main Roads constructed George Bass Drive in this area between 1969 and 1975. This new road cuts the easement in two and its full width covers the easement completely where the two intersect. The intersection of the two and their relative positions in the district is shown in the rough sketch Figure 1 annexed to these reasons. George Bass Drive completely altered vehicular access to South Rosedale village by providing a direct public route in and out. It provided motor vehicle access between Bateman's Bay and Tomakin, connecting a number of communities on the coast including Rosedale. Prior to the opening of George Drive, access to Rosedale was obtained through the old road, now called Ridge Road, which followed the ridgeline above the coastal strip and linked with Bevian Road near Rosedale. After George Bass Drive was built all access to South Rosedale was by that route rather than the easement. Other specifically features of George Bass Drive are described later in these reasons. 28 Once George Bass Drive was built, all the land east of it towards the beach and the Saltwater Creek inlet was transformed through housing and infrastructure development. But there was little change to any of the land to the west, including the servient tenement itself.

29 The evidence as to the state of the easement today confirms that it cannot readily be used and is not being used after the building of George Bass Drive. This conclusion is confirmed by many sources both in the oral and written evidence.

30 Mr William Sellick has farmed the property since August 1984. He has continuously lived at the property during that period. He has not observed vehicles or pedestrians using the easement. No one has approached him about maintaining or using the easement. He says: a stock fence without a gate in it runs across the easement; the course of easement cannot even be discerned in parts; the easement is generally in disrepair; and it is impassable near Saltwater Creek. Mr Sellick cannot recall the easement being used by anyone even for many years before George Bass Drive was built.

31 Mr John Murray often visited Rosedale as a youngster during the 1960s. During this time he does not ever recall the old easement being used for access to Rosedale village. After George Bass Drive was built he observed residents using it in preference to any other means for travelling to and from Rosedale. 32 Mrs Deborah James has lived in the Rosedale area for 24 years. She has never known or heard of anyone utilising the easement to gain access to or from Rosedale village. She confirms the evidence to the same or similar effect from the other witnesses. 33 The plaintiff's witnesses' evidence is well confirmed by the video evidence taken over the course of the easement, which shows that it is fenced off at its western end and overgrown and generally impassable to vehicles in many places. There is still a gate but the gate where it intersects with George Bass Drive and the easement show no signs of recent use. Aerial photographs taken over time show how the easement has disappeared into the surrounding bush and farmland west of George Bass Drive so that it cannot be discerned throughout much of its course over the servient land. In South Rosedale east of George Bass Drive the easement does not follow any made road or path.

Notice of these Proceedings to Potentially Affected Persons 34 The proceedings have been extensively advertised in local newspapers. Rosedale Farm also notified its application to the local government authority in the area, the Eurobodalla Shire Council and to a local association concerned with the environment of the district, the Rosedale Association. None of these forms of notification has resulted in anyone appearing in the proceedings. No one opposes the relief sought. The absence of any adverse public response to this extensive notice supports the inference that the application does not adversely affect the interests of any persons with the benefit of the easement. Several procedural hearings led to the giving of these notices in local newspapers, to the Eurobodalla Shire Council and to the Rosedale Association. As the account below shows the publication of this application has been extensive. The Directions before Barrett J in May 2009 and the First Advertisement

35 Direction hearings were held before Barrett J on 18 and 27 May 2009 to determine the appropriate form of public notice of this application. Neither Barrett J, nor I in the later directions hearings, ordered that notice be given to individual registered proprietors of the benefited land. Possibly several hundred such notices would have been required. All persons living in South Rosedale were affected in much the same way, if they were affected at all, by a successful application. Directions were made for the giving of notice to persons resident in or identifying with South Rosedale who might appear to oppose the application. Barrett J made orders for the notification of the Eurobodalla Shire Council and advertising of the application in two local newspapers. 36 The Council was notified and the notices were published in two local newspapers, published by Rural Press, The Bay Post Moruya Examiner and the Independent in accordance with Barrett J's orders. These orders required publication of the advertisements on two occasions at weekly intervals in a period of four weeks and in a reasonably prominent position. The advertisements contained a copy of the rough sketch Figure 1 attached to these reasons. These advertisements were in substantially the same form as the later advertisement of the 7 December hearing which appears later in these reasons. 37 A further procedural hearing took place on 28 August 2009 to determine what further notice should be given to persons possibly affected by the proposed orders. At the conclusion of the 28 August hearing the matter was adjourned on the basis that Rosedale Farm could re-list the matter once it had undertaken further investigation of the Rosedale Association Inc and made further inquiries of the Council. A final directions hearing took place on 5 November 2009. The plaintiff's investigations with the Council and the Rosedale Association before that time were important in allowing the matter to be fixed for hearing after a final round of advertising. Notice to Eurobodalla Shire Council. 38 Rosedale Farm also gave notice to the Eurobodalla Shire Council. This notice was required in Barrett J's original orders on 27 May. The Council quickly indicated a position that supported the extinguishment. On 22 June 2009 the Council wrote to Rosedale Farm's solicitors advising that "Council has no objection to the extinguishment of these rights of way". The Council's position was subject to it receiving a dedication of part of Rosedale Farm's property on which George Bass Drive was encroaching. This was to resolve an unrelated issue that existed between the Council and the plaintiff. Rosedale Farm agreed with this condition. 39 The Council also commented by letter about the changes effected by the building of George Bass Drive. The Council stated that, "The construction of George Bass Drive negated the requirements for the subject rights of way." This statement from a local government authority representing the local community supports the inference that is to be drawn from the other evidence that the original purpose of the easement has now been entirely displaced by George Bass Drive. 40 The Council has been contacted since the letter of 22 June 2009. Its support for the application has not changed. The Rosedale Association 41 The Rosedale Association Inc ("the Association") was another important means of bringing these proceedings to the notice of potentially interested persons. The Association's existence was identified early. At the 28 August directions hearing the Court gave directions for the plaintiff to file further evidence about its contacting the Association to ascertain whether the Association was interested in appearing in the proceedings and taking a position in relation to Rosedale Farm's application. Pursuant to these directions Rosedale Farm filed two affidavits that offered more information about the Association and its awareness of these proceedings.

42 Rosedale Farm's solicitor, Mr David Hawdon caused Ms Lalaine Beck, an employed solicitor in his firm, to make specific enquiries about the Association. Ms Beck undertook an ASIC search in relation to "Rosedale Association Incorporated". Her enquiries identified the Association's ten board members and revealed its constitution as amended up to 22 March 2008. The Constitution included a statement of the objectives of the Association as follows: "a. The Rosedale Association consists of residents and ratepayers of a small coastal community in the Eurobodalla Shire on the south coast of NSW. The Association was formed over twenty years ago with its main objective being to prevent commercial development of the area.

b. Other objectives of the Association are to maintain the existing environmental character of the Rosedale area, to represent residents and ratepayers of that area who are members of the association, and, in association with the Eurobodalla Shire Council and other appropriate bodies and individuals, to assist in the orderly development and progress of the area."

43 As a result of Ms Beck's enquiries Mr Hawdon realised that he knew two people on the Association's committee, a Mr David Boardman and Mr Michael Skipper. He telephoned Mr Boardman first.

44 In his conversation with Mr Boardman he recounted the course of argument before the Court that had led to the idea of inquiries being made of the Association. Mr Boardman made it clear in this conversation that the Association was aware of the application before the Court. Mr Boardman had himself seen the advertisement about the application that Rosedale Farm had published. He told Mr Hawdon that some emails had been exchanged within the Association about the issue raised by the advertisement. Mr Boardman gave Mr Hawdon contact details for the other committee members including an email address for Ms Sue Falk. Ms Falk had recently stood down as the President of the Association. Although the Association was without a President at that time Mr Boardman explained that Ms Falk was performing a current secretarial and administrative role for it.

45 Mr Hawdon then contacted Mr Skipper, who confirmed much the same as had been said by Mr Boardman. In response to Mr Hawdon's explanation of the nature of the proceedings before the Supreme Court, Mr Skipper said to Mr Hawdon, "Yeah I know about it from the ad and there were some emails from the Committee. But we took the view that it was a 'lay down misere' that the rights of way would be closed. I don't think anybody really cared. The truth is that most people wouldn't know that the rights existed." Mr Skipper then gave Mr Hawdon the email contact details for Ms Falk.

46 Mr Hawdon sent an email to Ms Falk that clearly explained the issues to her. The email attached a copy of the published advertisement of Rosedale Farm's application.

47 Ms Falk replied quickly, generating an email conversation that resulted in some further advertisement of the existence of this application to all the members of the Association. Ms Falk indicated that she would publicise the matter in the Association's next newsletter, Number 107, which was to be sent to the members by the end of September 2009. No specific amended date for persons to notify the Court was available at the time of publishing Newsletter 107. Ms Falk creatively improvised indicating in the newsletter that readers could get in touch with Mr Hawdon at his address. The evidence is that the Newsletter reached approximately 160 members. Members of the Association generally own real estate in Rosedale. Some members live there and some use their properties as holiday homes. The Association's newsletter was a more targeted notice to the persons potentially affected by the application than the original newspaper advertisements. The newsletter notice was well calculated to provoke a response from any persons who opposed the application or who perceived their interests might be adversely affected by the application. No member of the Association contacted Mr Hawdon in response. 48 The only member of the Association to contact Mr Hawdon did so not in response to the newsletter but after personally receiving a copy of Mr Hawdon's correspondence with the Association. Mr David Mackenzie communicated a concern about the possible use of the easement as a fire trail in the event of a bushfire in the area. He did not want to see the material behind the application and did not oppose the application. He seemed content that his interest in the fire trail issue be managed by his contacting the Council. The Final Directions Hearing

49 In the light of this additional evidence Rosedale Farm put in a short written submission dated 2 September that the appropriate course in the circumstances was to: "a. require Rosedale Farm to serve the application and supporting affidavits on the proper officer of the Association;

b. receive from the court an amended return date to place in the Association's newsletter;

c. allow a period for response from the Association or any of its members by the date indicated by Ms Falk for distribution, the end of September;

d. set a directions hearing date for a period after that (about 15 October was suggested) when any affidavit of service and response could be considered; and finally

e. prior to the directions hearing the plaintiff will have any additional material of interest to the court."

50 Rosedale Farm also made clear in the 2 September submission that it proposed to discontinue its application to the extent that it sought to extinguish the Northern Right of Way. Rosedale Farm only continued with the application for extinguishment of the southern rights of way. The final orders made in the proceedings record this discontinuance.

51 Thursday 5 November 2009 was fixed for a further directions hearing. At this directions hearing Rosedale Farm filed further evidence of Mr Hawden as to the service of the evidence in these proceedings on the Association and of his communications with the Executive Officers of the Association. 52 After considering that evidence the Court fixed a final date for hearing on 7 December 2009. Further directions were made for the service of notice of the date for final hearing on the Association and others to ensure that they were aware of the actual date for hearing of 7 December. This was in addition to the notice already given to them. The directions for further service were: 1. Grant leave to the Plaintiff to file in Court the affidavits of Phillip Alexander Purdie of 2 November 2009 and David Francis Hawden of 2 November 2009.

2. Note that the Plaintiff reads the affidavits of Phillip Alexander Purdie of 2 November 2009 and David Francis Hawden of 2 November 2009 on this application for directions in relation to service of notice of these proceedings.

3. Fix these proceedings for final hearing on 7 December 2009.

4. Direct that the plaintiff provide notice of the hearing date to a. the Rosedale Association Inc by giving notice to its secretary Susan Falk, b. Mr David McKenzie who is the author of the email, annexure, "I" to the affidavit of David Francis Hawdon dated 2 November 2009. c. the Eurabodalla Shire Council, by giving notice to its General Manager or other proper officer.

5. Direct that the plaintiff further advertise the final hearing date of these proceedings including the substance of the application in its amended form in a local newspaper circulating in the Rosedale area.

53 At that procedural hearing the Court authorised the further publication of the following notice in the same newspapers as before. The notice was in substantially identical terms to the previous notice. This notice was designed to notify any interested persons of the hearing date on 7 December. Like the previous advertisement it contained a copy of the sketch in Figure 1. " NOTICE

IN THE MATTER of certain land situate at George Bass Drive Rosedale being the land comprised within Lot 1 Deposited Plan 403372, Lot 12 Deposited Plan 755902, Lot 122 Deposited Plan 755902 collectively described in Folio Identifier Auto Consol 11374-176 ("the land").

NOTICE IS HEREBY GIVEN that application ("the application") will me made to the Supreme Court of New South Wales, Queens Square Sydney on 7 December 2009 by Rosedale Farm (NSW) Pty Limited the registered proprietor of the land, for an order extinguishing only the following easements: 1. Rights of Way 10.06 wide affecting part of Lot 1 Deposited Plan 403372 and part of Lot 12 Deposited Plan 755902 shown as rights of way 50 links wide in Deposited Plan DP16191 being Dealings B914851, B914852, B914853, B914854, B914857, F116322. 2. Rights of Way 10.06 wide affecting part of Lot 1 Deposited Plan 403372 and part of Lot 12 Deposited Plan 755902 shown as rights of way 50 links wide in Deposited Plan 109581 Dealing F58442.

Included with this Notice is a plan as at 1930. This plan depicts the portions of land as they existed at that time, the position of the easements, and the position of George Bass Drive superimposed upon that plan. The land to the east of George Bass Drive has since been the subject of multiple subdivisions and some parts of that land (and Portion 80) may have the benefit of one or both of the easements sought to be extinguished.

A copy of the Summons and Affidavits in support of the application may be inspected at the offices of: BHM Lawyers 8 Beach Road Batemans Bay NSW 2536 Tel 02 4472 6377 Fax 02 4472 5654 Email bbadmin@bhmlawyers.com.au during ordinary business hours.

Any person having any objection to the proposed order may lodge a notice in writing stating the nature and grounds of the objection at the office of BHM Lawyers referred to above on or before 6 December 2009.

If any person wants their objection to be considered by the Court they should attend at their own risk as to costs on the hearing of the application on 7 December 2009.

The plaintiff in the application will object to the allowance of more than one set of costs, if any are allowed to objectors.

The undersigned will supply to any person who lodges notice of an intention to oppose the application or who is considering the advisability of doing so with the names and addresses of any person who has previously lodged a notice of intention to oppose the application, in order that several objectors may I if they wish, arrange between themselves as to which solicitor should act on behalf of all of the objectors in the same interest.

David Francis Hawdon Solicitor for Rosedale Farm (NSW) Pty Limited."

54 The notice was published in accordance with the Court's orders. This means that this form of notice had been extensively published before the proceedings were heard in December 2009. 55 At the final hearing on 7 December 2009 further evidence was available of service of notice on the Association and these other parties in accordance with these orders. This additional notice did not evoke any response from the Association, the Eurobodalla Shire Council, Mr Mackenzie or any resident of Rosedale. 56 Additional indirect evidence as to the lack of local opposition to the application comes from the affidavit of Mr Phillip Purdie a director of the plaintiff sworn 2 November 2009. He says that the company's lodgement of its development application for the site with the Eurobodalla Shire Council did not generate any objections, other than some relating to environmental conditions for Saltwater Creek.

Applicable Principles of Law 57 The principles that apply to the exercise of the power conferred by Conveyancing Act s 89(1) to modify or extinguish an easement may be clearly stated. The power conferred in Conveyancing Act s 89(1) creates an important statutory qualification to the common law rights of the owner of an easement. Section 89(1) relevantly provides: "89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants

(1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land , by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied: (a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or

(b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part, (b1) in the case of an obligation: (i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation's being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or

(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or (c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation. " 58 Conveyancing Act s 89(1) is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting the common law property rights. The starting point for the Court's consideration is the easement itself, its terms and its objects derived from construing those terms in context and bearing in mind that the easement was created for an indefinite future and destined to endure in a changing environment: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at [47]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [4]. 59 The power to modify or extinguish an easement conferred by s 89 (1) requires proof of one or more circumstances to the satisfaction of the Court coupled with the favourable exercise of judicial discretion: Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [2]. The circumstances required to be proved are set out in Conveyancing Act s 89(1). Extinguishment Pursuant to s 89(1)(a) 60 Conveyancing Act s 89(1)(a) grounds the exercise of the power to extinguish an easement on two independent bases connected with changing circumstances. The first basis is that by reason of the change in use of the land having the benefit of the easement or in the character of the neighbourhood, the easement ought to be deemed obsolete. The second is that the continued existence of the easement would impede the reasonable user of the land subject to the easement without securing any practical benefit to the persons entitled to the easement. 61 In relation to the first basis, to determine whether there has been a change in the neighbourhood, the Court identifies what the neighbourhood is in any given case and then analyses the evidence to see if there has been change between the date of grant and the date of the application: Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833; [2000] ANZ ConvR 22; (1999) NSW ConvR 55-891 per Young J. 62 The term "obsolete" has explained in a number of authorities. Indeed obsolescence:

(a) can be established in the sense that the original purpose of the easement can no longer be served: In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261 at [272]; and

(b) can also mean that the object of the easement is incapable of fulfilment any longer or perhaps serves no presently useful purpose: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at [927]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18,099; [2000] NSWCA 28 at [3]-[6]. 63 The second basis involves an assessment of whether or not the continued existence of the easement would impede the reasonable user of the servient tenement without securing practical benefit to the persons entitled. 64 To establish that a covenant impedes the reasonable user of the servient land, it must be shown that no reasonable use of the land is possible unless the easement is modified or extinguished: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 per Brereton J at [14]. 65 It is insufficient for a Conveyancing Act s 89(1) applicant to establish that its own proposal is a reasonable use of the servient land. The applicant must show that no reasonable use of the land is possible unless the easement is extinguished or modified: Heaton v Loblay (1960) SR (NSW) 332, at 335 per Myers J. The applicant must also show that the continuance of the easement unmodified "hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and the purpose of the [easement]": Re Ghey & Galton's Application [1957] 2 QB 650 at 663. The question as to whether the continued existence of the right of way secures a practical benefit to the beneficiaries is one that does not require extensive analysis. But what is a "practical benefit" is capable of ready assessment. 66 Finally, Conveyancing Act s 89(1)(a) allows the Court to take into account such "other circumstances of the case which the Court may deem material". These words permit the Court to take into account "the widest field of evidentiary material": Re Roseblade; Re Foenander [1964 -5] NSWR 2044 at [2046] and Markos v OR Autor Pty Ltd [2007] NSWSC 810 per Austin J at [90]. Extinguishment Pursuant to s 89 (1)(b) - Abandonment 67 Lots 1 and 12 of the property are Torrens title land. It is clear that rights of way created by registered easements over Torrens system land can be abandoned so as to attract the jurisdiction of the Court under Conveyancing Act s 89(1): Grill v Hockey (1991) 5 BPR 11,421; Chiu v Healey (2003) 11 BPR 21,241; (2003) NSWSC 857 at [36]; Bradbrook & Neave "Easements and Restrictive Covenants In Australia" Butterworths 2nd Ed, 2000 at [19.27] and following. Conveyancing Act s 89 is applicable to land under the Real Property Act 1900: Conveyancing Act s 89(8). The mere circumstance that an easement was noted on the register when land under the Real Property Act passed to a new registered proprietor would not furnish a reason for refusing as a matter of discretion to make an order under s 89(1) or s 89(3): Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. The relevant principles in relation to abandonment of easements in relation to the exercise of Conveyancing Act s 89 jurisdiction are the following:

(a) abandonment occurs both at common law and under the Conveyancing Act when the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement, though it is not to be lightly inferred: Grill v Hockey (1991) 5 BPR 11,421 and Williams v Usherwood (1981) 45 P & Cr 235, 256;

(b) one must look for evidence that there has been an implied (or lost) modern deed of release of the easement - long non-use would be good evidence but would not necessarily be sufficient to establish abandonment: Swan v Sinclair [1925] AC 227, Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 and Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605; and,

(c) the longer the period of non-user the more readily the conclusion will be reached that the beneficiaries of the rights of way may be deemed to have abandoned it: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, per Walsh J at 288. s 89(1)(c) - Lack of Substantial Injury to Beneficiaries 68 The power to extinguish an easement is also conferred by Conveyancing Act s 89(1) on the basis that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement. Rosedale Farm claims that the Court can exercise the power to extinguish in the present case based upon this ground. As with the other heads of power to extinguish, judicial exposition has assisted in explaining how this power should be exercised. The relevant principles in relation to Conveyancing Act s 89(1)(c), are the following:

(a) a "substantial injury" is one that has real and present substance but need not be large or considerable: Re Mason and the Conveyancing Act (1961) 78 WN (NSW) 925 & (1962) NSWR 762 and Tujilo v Watts (2005) 12 BPR 23, 257, especially at [37]; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [24];

(b) a wide variety of tangible and intangible potential injuries are encompassed by the expression "substantial injury" in s 89(1)(c): Webster v Bradac (1993) 5 BPR 12,032; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [27]; and

(c) there must be an injury of "real and present substance" and examples of how this the statutory language has been applied with this concept in mind are usefully summarised by Young CJ in Eq, (as His Honour then was) in Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363 at [42]-[43]. The Exercise of the Conveyancing Act s 89(1) Discretion 69 The grant of relief under established s 89 grounds is discretionary: Pieper v Edwards [1982] 1 NSWLR 336. The facts relevant to the exercise of this discretion include matters such as the history of the property, the conduct of the owners of both the dominant and servient tenements, the acts of a prior registered proprietor and the state of the register. No one factor is decisive: Pieper v Edwards (1982) 1 NSWLR 336 at 340D-E. 70 The question of who has the burden of showing that the discretion ought be exercised once jurisdiction is established will itself depend upon the circumstances. This is explained by Hutley JA in Pieper v Edwards (1982) 1 NSWLR 336 at 340 as follows: "the burden may not always be on one side or the other. Where the acts of abandonment relied on are those of the dominant owner the burden of showing the order should not be made could reasonably be laid on him. Whereas here, the acts relied on are of a predecessor in title of the applicant, of which the respondent had no notice, the burden could well be thrown on the applicant." 71 Rosedale Farm accepts in the circumstances of this case that as the owner of the servient tenement, it has the burden of showing that the discretion ought be exercised in its favour. 72 The Court will normally exercise caution in acceding to an application for the extinguishment or modification of an easement, which is a proprietary right: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 per Brereton J at [29]. Application of These Principles to the Facts

73 The Court will extinguish the easement under the powers conferred by Conveyancing Act s 89 (1) (a), (b) and (c). The circumstances of this case engage each one of these powers. Extinguishment Pursuant to Conveyancing Act s 89(1)(a) - Easement Obsolete

74 Extinguishment of the easement in this case is justified on the first basis for the exercise of the power in Conveyancing Act s 89 (1) (a) (change in user of the dominant tenement) but not on the second basis (impeding the reasonable user of the servient tenement). 75 In the Rosedale area there has been a "change in user of" the land having the benefit of the easement and a change in "the character of the neighbourhood" of the easement and "other circumstances" that will justify extinguishment under the first basis in Conveyancing Act, s 89 (1) (a) as the easement "ought be deemed obsolete". The facts establish each of these statutory preconditions for the exercise of this Conveyancing Act, s 89 (1)(a) power. At the time of the grant of the southern rights of way in 1929, the neighbourhood was sparsely populated farming land surrounded by bush land with an adjacent coastal hamlet. There have been significant changes in the use of the dominant tenement and in the character of the neighbourhood between the time of the grant of easement and the date of the Rosedale Farm's application. Public and private development has changed the Rosedale area during that period. These several changes to the neighbourhood are identified below. 76 First, perhaps the most significant change to the "character of the neighbourhood" during this period has been the construction of George Bass Drive. This major public work created direct vehicle access between the public highway system of New South Wales and Rosedale village for the first time in 1975. George Bass Drive gave public vehicular and pedestrian access for travellers to and from North and South Rosedale. It substitutes a public and convenient connection to the highway system for what was previously only foot and limited vehicle access over the much longer southern rights of way. George Bass Drive, not the old road, is now the main coastal traffic route north and south from Rosedale. Now that George Bass Drive exists there is no practical reason for anyone to use the easement, which has become a non-functional access from Rosedale to the old road, a road that is itself no longer used to travel to and from Rosedale. The circumstances identified in this paragraph would justify the conclusion that the easement was "obsolete" because the easement serves no presently useful purpose: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at [927].

77 Secondly, apart from George Bass Drive's superior efficiency in functioning as an access between Rosedale and the highway system, the foundations of George Bass Drive have physically wholly blocked the southern rights of way towards their eastern end, so that the original purpose of the easement for complete pedestrian and vehicular access can no longer readily be served. This circumstance would also well justify the conclusion that the original purpose of the easement can no longer be served and should also be deemed to be "obsolete" on this ground: In re Truman, Hanbury, Buxton & Company Ltd's Application (1956) 1 QB 261, at 272. 78 Thirdly, the lack of any party opposing or even appearing upon the application from South Rosedale, from the Association or from the Council are all a basis to strengthen the inference from the first and second matters mentioned above that the easement is obsolete. The Rosedale community's perception seems to be that the easement does not serve a presently useful purpose. After appropriate notification of the application to the Rosedale community the lack of response is a basis to infer that that the easement does not in fact serve any presently useful purpose. None of the people who would be expected to use the easement for their own purposes have come to articulate to the Court any purpose for which they could use the easement. But the lack of such opposition is not just a negative factor. The circumstances indicate that the lack of any opposition is because the community is not troubled by the proposed extinguishment. One of the Association's members described the application as "a lay down misere". The Council said in it letter of 22 July 2009 that it had no opposition to the application. The matters identified in this and the next paragraph constitute in my opinion "other circumstances" within Conveyancing Act s 89 (1) (a) that justify a finding that the easement "ought be deemed obsolete".

79 Fourthly, a very large number of the South Rosedale properties subdivided since 1929 from the land comprising the original dominant tenement do not have the easement recorded on their Certificates of Title. The local completion of George Bass Drive in 1975 opened up Rosedale to more visitors and also accelerated subdivision in the area. It is these more recently subdivided properties especially that do not have the easement recorded on their Certificates of Title. This indicates that after the construction of George Bass Drive successive subdividers of the dominant tenement did not perceive the easement as having any presently useful purpose or other significance such that they should take care to have it recorded on the new Certificates of Title being issued.

80 Finally, the plaintiff appropriately describes Rosedale as now being a "modern seaside suburb". It has been created out of former bushland and the original seaside hamlet. The sub division of larger properties within the dominant tenement, the creation of road paving and the regular configuration of a well-populated suburb of Rosedale have changed the "character of the neighbourhood". These changes are inconsistent with the present occupants of the dominant tenement gaining acceptable access to the right of way. If the right of way were actually to be used by the concentrated population in this area by attempting to cross George Bass Drive the result would be chaos. The photographic and direct observational evidence of the nature of the track is wholly inconsistent with it being used efficiently and safely by the large numbers of people now living in South Rosedale. 81 The plaintiff's surveyor, Mr Graham Beasley, offers an expert opinion that the southern rights of way ought be deemed obsolete. He does so for some of the same reasons that the Court has identified. He also says that Bevian Road, which runs west of the property also offers another access route that would formerly have been taken by persons wishing to use the easement. His opinion gives grounds for the Court's conclusion that the easement is to be deemed obsolete.

82 Proving the second basis of s 89(1)(a) is more problematic. It is difficult for the Rosedale Farm to establish that the continued existence of the easement would impede the reasonable user of the servient tenement. Development of the servient tenement for the purposes now proposed by the plaintiff is not the only possible reasonable user of the property. The plaintiff has not made out a case that no reasonable use of the land would be possible unless the easement is modified or extinguished: Frasers Lorne Pty Limited v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743. The plaintiff's evidence does not extend to showing all the various kinds of use of the land that are possible and that each of these uses is precluded by the existence of the easement. It is not surprising that Rosedale Farm's solicitor and counsel did not attempt this. I doubt that it could have been done. The failure to satisfy Conveyancing Act s89 (1)(a) on this second basis does not preclude the Rosedale Farm from succeeding in its application on the first basis. Extinguishment Pursuant to Conveyancing Act s 89 (1)(b) - Abandonment

83 The evidence establishes that the registered proprietors of the land derived from the dominant tenement have abandoned the southern rights of way. Features of the evidence before the Court on this subject are: a lengthy, at least 35 year period of non-use, Treweeke v 36 Wolseley Road Pty Limited (1973) 128 CLR 274, at 288 per Walsh J, and clear indications that the dominant owner will not make use of the easement, Grill v Hockey (1991) 5 BPR 11,421. This evidence comes from three sources, from the circumstances and form of the construction of George Bass Drive, from the failure of any dominant owner to claim any right to use the easement, and from the actual lack of use of the rights of way. These are now each dealt with in turn. 84 The physical construction of George Bass Drive is evidence of abandonment. The substantial earthworks of George Bass Drive completely cover the course of the southern rights of way at their eastern end. The former course of the easement in this area is now buried under many cubic metres of landfill and road base. After the construction of George Bass Drive pedestrians would encounter personal safety hazards in using the southern rights of way in trying to get on and off the traffic pavement of George Bass Drive itself. The owners of the dominant tenement must have acquiesced in the interruption of the southern rights of way for the extensive period of the planning, construction and use of George Bass Drive for public purposes. The construction of George Bass Drive approached the Rosedale area between 1969 and 1975. There is no evidence before the Court that the approaching construction inspired anybody from Rosedale South to seek that the easement be preserved through, for example, the construction of a tunnel under the planned earthworks. On the contrary the arrival of George Bass Drive was welcomed. 85 Further, the owners of the dominant tenement have not sought to assert their rights as dominant owners for at least 35 years. The evidence of that is strong. There is direct oral evidence as to the behaviour of these persons, including residents of the Rosedale area, confirming their lack of objection.

86 The dominant owners have allowed other practical impediments to the use of the easement. The witnesses Mr Sellick and Mr Beasley identified these. They include fencing across the easement west of George Bass Drive, a lack of discernable vehicle tracks over much of the right of way and topography that would present a significant challenge to ordinary vehicle access over most of the course of the easement. Even at its eastern end the easement is paved over in South Rosedale and not discernable. The development of the various impediments over time further supports the inference of abandonment that arises from the failure to claim the right to use the easement. 87 Finally, the easement has not been used for at least 35 years. The Rosedale historian Mr Harrison and the witnesses Mr Sellick and Mrs James and Mr Murray have powerfully chronicled the long period of the easement's non-use. Their evidence compels the conclusion that no attempt to use the easement has occurred during that period. The current dominant owners use George Bass Drive to enter and exit the Rosedale area rather than the easement. This is further evidence of abandonment. There is some doubt with respect to Torrens title system land, where title is acquired by registration, whether the Court can have regard to the evidence of the dominant tenement holder's predecessors in title: Ashoil Holdings Pty Limited v Athanasia Fassoulas & Ors [2005] NSWCA 80, per Handley JA at [5]. That is not a difficulty in this case because the current registered proprietors of the dominant tenement are continuing even now to make the daily choice of using George Bass Drive rather than the easement for travel to and from Rosedale village. Extinguishment Pursuant to Conveyancing Act s 89(1)(c) - No Substantial Injury 88 The evidence already analysed also makes out the Conveyancing Act s 89(1)(c) ground that "the proposed…extinguishment will not substantially injure the persons entitled to the easement". There is no injury demonstrated here which has "real and present substance": Castagna v Great Wall Resources Pty Limited (2005) 12 BPR 23,363 at [42] - [43]. The analysis above in respect of both Conveyancing Act s89 (1) (a) and (b) equally compels the conclusion that there will be no substantial injury arising from the extinguishment to the persons entitled to the easement. Exercising the Discretion 89 The plaintiff submits and I accept, that this case does not exhibit the usual features of cases in which the discretion has been refused. The prevalent factors here that call for the exercise of the discretion requested by the plaintiff are numerous. It is not easy to identify any factors that would weigh against its exercise. However great caution is required in acceding to an application for extinguishment of an easement which after all is a proprietary right: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke and Ors [2008] NSWSC 743 at [29] per Brereton J and Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332 at [20] per Hamilton J. 90 Three general considerations favouring the exercise should be mentioned. First, the Court made directions on a number of occasions for the advertising of the plaintiff's application and the notification of potentially affected parties. Those directions resulted in communications with the local council, advertising in the local press, notification to the local progress association and communication with residents of the area affected. Despite this wide publicity and the extensive range of communication attempts, no objectors to the plaintiff's application have emerged. 91 Second, the local Council supports the plaintiff's application subject to conditions. The Council's conditions include specific road dedications. The plaintiff has agreed to these conditions. The Council's consent can be taken as a valuable expression of local public interest in favour of this application. 92 Third, the easement no longer serves any useful purpose. The purpose of the easement, which can be inferred from the historical record, was for persons wishing to gain access to the southern bank of Rosedale Creek from a road on the western side of the plaintiff's property. The construction of George Bass Drive means that no resident of the area has any motivation to use the rights of way to access the road on the western side of the plaintiff's property rather than using the far more convenient George Bass Drive. All the residents on the southern side of Rosedale Creek could reasonably be expected to use George Bass Drive for access to their homes. The evidence supports that this is just what they now do on a daily basis.

Conclusion and Orders 93 For these reasons I am prepared to make the orders sought.

1. Rights of Way 10.06m wide affecting the parts of Lots 1 in Deposited Plan 403372 and Lot 12 in Deposited Plan 755902 shown as right of way 50 links wide in Deposited Plan 16191 and being Dealings B914851, B914852, B914853, B914854, B914857 and F116322 be wholly extinguished.

2. Right of Way 10.06m wide affecting the parts of Lots 1 in Deposited Plan 403372 and Lot 12 in Deposited Plan 755902 shown as right of way 50 links wide in Deposited Plan 109681 and being Dealing F58442 be wholly extinguished.

3. Leave granted to the Plaintiff to discontinue that part of the Summons that sought to extinguish the Rights of Way affecting that part of Lot 122 in Deposited Plan 755902 shown as Rights of Way 50 Links wide in Deposited Plan 16191 and being Dealings B904559, B907463 and B990310.

4. Grant liberty to the plaintiff to apply in relation to the carrying into effect of these orders.

6. These orders may be taken out forthwith. Figure 1

          I certify that this and the preceding 36 pages are a true copy of the reasons for judgment of Justice Slattery delivered on 22 November 2010.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.