BARRETT-LENNARD -v- RIVER WIND PTY LTD [2019] WASCA 199 (6 December 2019)

(2) Midway along the carriageway there had been placed a gate (Mid Way Gate), fence (Mid Way Fence) and fence posts.

1. The primary judge found that on the proper construction of the easement, the carriageway could not be used by the appellant for access beyond lot 200 to other parts of her farm. The judge also found that there was no substantial interference with the use of the carriageway. The judge also ordered, amongst other things, that the appellant pay the respondent damages of $5,000 for trespass for using the easement to go from lot 200 to other parts of her property: Barrett‑Lennard v River Wind Pty Ltd[2] (primary decision).
2. By this appeal, the appellant challenges the above conclusions. She also contends that, in the alternative, this court should find that a prescriptive easement allows the user of the carriageway to access parts of the appellant's farm beyond lot 200.
3. In our view, the easement, on its proper construction, does not provide for the carriageway to be used for access to other parts of the appellant's farm beyond lot 200. Although we reach that conclusion for reasons which differ from those adopted by the primary judge, his Honour's ultimate determination of that question was correct. The appellant cannot raise the alternative argument about the existence of a prescriptive easement on appeal, when that case was not run at trial. The primary judge's conclusions as to the absence of substantial interference with the appellant's use of the carriageway have not been shown to be in error. The appellant's appeal fails in the above respects.
4. However, the appellant has established her contention that there was no evidence that the respondent had suffered loss and damage by reason of excessive use of the carriageway. The damages awarded to the respondent should be reduced to a nominal sum of $100.

1. The appellant's farm comprised five parcels of land, which, at this point, may be conveniently be described as lot 2591, lot 829, lot 830, lot 192 and lot 200. All of the land in question is Torrens system land registered under the TLA, apart from lot 192 which dates back to a period before the Torrens system began. It is not in dispute that the title to lot 192 is recorded in a memorial registered pursuant to the Registration of Deeds Act 1856 (WA).[3]
2. It is not in dispute that the appellant and her husband became the registered proprietors of each of the five lots on 19 February 1988, and that the title to the lots passed to the appellant by survivorship in 2001.[4]

1. The respondent's land is the land comprised in certificate of title volume 1269 folio 621, described as lot 2726 on deposited plan 89951 (lot 2726). The Second Schedule of the duplicate certificate of title for the land records that the land is subject to an 'easement burden' by an instrument registered D676652 on 19 February 1988.
2. In the original certificate of title, a plan shows lot 2726 to the west of and adjoining the Brand Highway, and lots 829, 830, 192 and (Swan Location) '1732' (part of which is now lot 200) further to the west of lot 2726.
3. The original certificate of title, under the heading 'easements and encumbrances referred to', includes the following entry:

Transfer D676652 A right of carriageway over the portion of the within land [ie, lot 2726] marked 'A' on the map in the margin as set out in the said Transfer is granted to the proprietor or proprietors for the time being of [lot 200].

1. On the margin to that entry is a sketch showing a part of the Brand Highway, and the southern portion of lot 2726 with a ribbon of land within it running between the Brand Highway and 'PTN LOC [portion location] 1732'.[6]
2. Although the entry referred to in [13] above referred to 'Transfer' D676652, it is apparent, as noted below, that instrument D676652 did not use a 'Transfer of[7]Land' form,7 and was a 'Deed of Easement' on what was a standard 'Blank Instrument Form'.

Lot 200 of the appellant's land (portion 1732)[8]

1. The duplicate certificate of title volume 1733 folio 669, described as lot 200 on deposited plan 302098 (lot 200), read with the First Schedule, records, amongst other things, that the previous title for lot 200 was certificate of title volume 1048 folio 860.
2. The original certificate of title for lot 200 states that the registered proprietor of the land is 'the registered proprietor of the undermentioned estate in the undermentioned land'.[9]
3. Underneath that, in the section of the original certificate of title for lot 200 headed 'estate and land referred to' is the following:[10]

Estate in fee simple in portion of Swan Location 1732 [being lot 200], delineated on the map in the Third Schedule hereto ... together with a right of carriageway over the portion of [lot 2726] marked 'A' on the said map hereon as set out in Transfer D676652.[11] (emphasis added)

1. Under the section headed 'Third Schedule' there is a map showing (1) a portion of the Brand Highway, (2) a right of carriageway marked 'A' on the southern portion of lot 2726 between the Brand Highway and lot 200, and (3) lot 200 to the west of lot 2726.

1. The instrument registered D676652 is headed 'Deed of Easement' (Easement). On its first page, the form used for instrument D676652 is described as a 'Blank Instrument Form'.[13] It is not described as a 'Transfer of Land' form.[14]
2. D676652 records that on the 'back' of the certificate of title for lot 2726 (the servient tenement):

Transfer D676652. A right of carriageway over the portion of the within land [ie, lot 2726] marked A on the map in the margin as set out in the said Transfer is granted to the proprietor or proprietors for the time being of [lot 200[15]] registered 19/2/88. (emphasis added)

1. Instrument D676652 also records that on the 'front' of the certificate of title for lot 200 (the dominant tenement):

Transfer D676652. A right of carriageway over the portion of [lot 2726] coloured brown on the map in Transfer D676652 is granted to the proprietor or the proprietors for the time being of the within land [ie, lot 200[16]] as set out in the said Transfer [D676652]. Registered 19/2/88. (emphasis added)

1. The schedule to instrument D676652 refers, in effect, to the 'Grantor's Land' as lot 2726 and the 'Grantee's Land' as lot 200.[17]
2. The Deed of Easement provides, relevantly in effect, that the proprietor of lot 2726 as Grantor 'doth transfer and grant' to the proprietor of lot 200 as Grantee and the Grantee's transferees, successors in title and assigns as 'appurtenant to the Grantee's Land [ie, appurtenant to lot 200] ... a right of carriageway in terms of the Ninth Schedule of the [Transfer of Land Act 1893 (WA) (TLA)] over that portion of the Grantor's Land [ie, that portion of lot 2726] delineated and coloured brown on the map annexed ... ['the Carriageway Area']'[18] (emphasis added).
3. The terms of the Ninth Schedule are set out in [30] below.
4. The portion of the land delineated and (apparently) coloured brown on the map in instrument D676652 shows, in effect, a ribbon of land running through lot 2726 from the Brand Highway (at the interface with which the width of the ribbon of land is 10.68 m) to an area of land described as 'PTN LOC [Portion Location] 1732' (at the interface with which the width of the ribbon of land is 11.19 m).[19]
5. The Deed of Easement then provides, in effect, that:
   1. The Grantee shall bear the costs of the repair, maintenance and upkeep of the right of carriageway thereby created, including any gate or cattle grid situated on or appurtenant to the Carriageway Area, except where such costs 'have been definitely ascertained to have been occasioned by some act, default, omission or neglect' on the part of the Grantor or its servants or agents in which case, the costs of the necessary repairs and maintenance or replacement shall be borne by the Grantor.
   2. The Grantee shall keep:

(a) all gates (if any) to and from the Carriageway Area closed; and

(b) all cattle grids (if any) servicing the entrances to and from the Carriageway Area free of debris.

The Transfer of Land Act 1893 (WA) and the Ninth Schedule The TLA

1. Before turning to the Ninth Schedule to the TLA, it is convenient to mention the substantive provisions of the TLA most relevant for present purposes.
2. Section 63A, s 64, s 65, 66, s 66A, 68, s 69 and 88A of the TLA provided, relevantly as at 19 February 1988, as follows:

63A. (1) Any certificate of title may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement or that the land therein described is subject to any right or right‑of‑way or other easement.

(2) Every such statement or entry shall set forth a true and accurate description of the easement, or if the instrument creating the same is deposited in the Lands Titles Office shall refer to such instrument, and the certificate of title shall contain a plan of the land over which such easement extends, or if a plan showing the extent of such easement is deposited in the Lands Titles Office shall refer to such plan.

1. Whenever any certificate of title or any duplicate thereof either already registered or issued or hereafter to be registered ... shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein ... such statement shall be received ... as conclusive evidence that he is so entitled.
2. Whenever any transfer lease or certificate of title shall contain the words 'Together with a right of carriage‑way over' (specifying or describing the road or roads over which the easement is created and referring to a map endorsed whereon such road or roads is or are coloured brown) such words shall have the same effect and shall be construed as if there had been inserted in such transfer lease or certificate of title the words contained in the Ninth Schedule to this Act. A memorandum of any transfer or lease creating any easement affecting any land under the operation of this Act shall be entered on the folium of the register book constituted by the existing certificate of title of such land in addition to any other entry concerning such instrument required by this Act.
3. The Fifth Schedule to this Act shall be deemed to extend to the setting forth of the easements mentioned in the last two preceding sections.

66A. A separate certificate of title for an easement shall not be issued.

...

1. Notwithstanding the existence in any other person of any estate or interest whether derived by grant from the Crown or otherwise which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the folium of the register book constituted by the certificate of title; but absolutely free from all other encumbrances whatsoever except ... provided always that the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof and to any rights subsisting under any adverse possession of such land and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land ...
2. Notwithstanding the reservation in the last preceding section of any easements subsisting over or upon or affecting any land comprised in any certificate of title the Registrar shall specify upon any future certificate of such land and the duplicate thereof as an encumbrance affecting the same any subsisting easement over or upon or affecting the same which shall appear to have been created by any deed or writing.

...

88A A memorial of any transfer or lease creating an easement over or upon or affecting land under the operation of this Act shall be entered upon the folium of the register book constituted by the grant or existing certificate of title of the land, in addition to any other entry which concerns the instrument and which is required by this Act. (emphasis added)

1. The Ninth Schedule to the TLA provided, relevantly as at 19 February 1988, as follows:[20]

Creation of Right of Carriage-way in a Transfer of

Freehold Land

Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.

_________

Creation of Right of Carriage-way in a Lease of

Freehold Land

Together with full and free right and liberty to and for the said lessee and his transferees proprietors for the time being of the land hereby leased or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter during the continuance of this lease and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land and any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.

1. The judge found, in effect, that the Easement, properly construed, did not permit access through lot 200 to other lots that formed the balance of the appellant's farm.[21]
2. The judge's construction of the Easement was influenced principally by two matters. First, he considered that the words 'the said land' in the Ninth Schedule did not refer to the dominant tenement. He said at one point that they referred to the servient tenement, lot 2726,[22] but later also said, in effect, that they referred to the Carriageway Area itself.[23] Secondly, the judge considered that the appellant's construction of the Easement was inconsistent with the High Court's decision in Westfield Management Pty Ltd v Perpetual Trustee Co Ltd.[24]
3. In relation to the appellant's claim that there had been substantial interference with the Easement, the judge found that it was reasonable to install a gate in association with the cattle grid at the Brand Highway end of the carriageway[25] and that while the placing of gates over the cattle grid posed a degree of risk to persons opening or closing the gate, that did not constitute a substantial interference with the Easement.[26]
4. The judge also found that the gates and fence towards the middle of the carriageway known as the Mid Way Gates and the Mid Way Fence did not constitute a substantial interference with the Easement.[27]

Grounds of appeal, submissions and notice of contention The appellant's grounds and submissions

1. The appellant, by her grounds of appeal, alleges that the judge erred:
   1. In the construction of the Easement.
   2. In finding that the construction and maintenance of the Mid Way Gates, Mid Way Fence and fence posts, and the gate over the cattle grid at the Brand Highway, did not constitute a substantial interference with the appellant's right of carriageway under the Easement.
   3. In awarding damages for trespass, when there was no evidence to support the claim.
2. There is also a fourth ground which seeks to raise an issue not raised at trial. The fourth ground alleges that the evidence established rights of prescription under the Prescription Act 1832 (Imp), and that if the Easement did not allow the appellant to travel into lot 200 and thence to her adjoining property, she nevertheless had a prescriptive right to do so.

1. In relation to ground 1, the appellant submitted, in effect, that:
   1. The words 'said land' in the phrase 'into and out of and from the said land' in the Ninth Schedule refers to the Carriageway Area itself.[28] That is because it is the right over the Carriageway Area which is granted by the Easement, and thus the Carriageway Area itself is the 'land hereby transferred' within the meaning of the Ninth Schedule.[29] This means that the Easement is 'simply a right to use the carriageway which starts at the Brand Highway and ends at lot 200' but 'where you go after that is up to you'.[30]
   2. Alternatively, the words 'the said land' in the Ninth Schedule refer to the dominant tenement (lot 200), and the word 'from' in the phrase 'into and out of and from' means, or includes, 'from' lot 200 to any other lots forming part of the appellant's farm.[31] In that regard, it is significant that the TLA register indicates that the other lots were acquired by the appellant at the same time as lot 200.[32]
   3. The Easement in this case is distinguishable from that in Westfield, in that in Westfield, the easement did not use the words 'out of' in conjunction with 'into and from'.[33] Also, the conditions relating to the cost of upkeep of the carriageway in Westfield were materially different from those in the Easement in this case. Here, the dominant tenement owner effectively must bear the costs of upkeep.[34]
   4. Further, the Easement in this case is distinguishable from that in Westfield, having regard to its evident intention objectively ascertained. Here, it is clear from the surrounding circumstances that lot 200 was intended to be benefited by having access to the other lots in the overall farm. The circumstances were that historically, the dominant and servient tenements were owned within the one family, with one brother (Eric) owning the dominant tenement, and another brother (Max) owning the servient tenement. There was a vehicular track running along Max's land across from the Brand Highway through to Eric's land, and it continued through lot 200 on Eric's land, up to the farmstead, thereby giving Eric access to the rest of his farm. Accordingly, the appellant submitted, when Eric sold the farm to the appellant 'he clearly had to get an easement just to make sure that the purchaser of [lot 200] would continue to have that access'.[35]
   5. Further, the court may have regard to the 'physical characteristics' of the land.[36] It is evident from 'aerial photos' of the land that (1) the dominant and servient tenements are pasture land, (2) the only (proximate) sealed road is the Brand Highway, (3) the main infrastructure on the appellant's farm (comprising lots 200, 2591, 829, 830 and 192) is on lot 192, (4) there is one main track leading from the Brand Highway, across the servient tenement, through lot 200 onto lot 192, and then up to the farmhouse on lot 192, and (5) the track is substantial and is gravel, allowing vehicles to pass over the land, both[37] into lot 200 from the Brand Highway, and beyond lot 200, up through lot 192 and to the farmhouse on lot 192.
   6. Also in Westfield, the High Court accepted that there was a line of authority to the effect that on general principles of conveyancing, the grant of an easement carries with it ancillary rights which are necessary for the enjoyment of the rights expressly granted. Here, it was evident that access to the remainder of the appellant's farm was ancillary to the use and enjoyment of lot 200 in that without such access, lot 200 could not effectively be farmed and hence used or enjoyed.[38]
   7. The relevant principle of construction is that if there is any ambiguity in the Easement, it should be construed strongly against the Grantor.[39]

1. In relation to ground 2, the appellant, in her written submissions, contended that:
   1. It was 'self‑evident' that a gate positioned halfway across a cattle grid, particularly a grid with gaps in between each of the grids, constituted a real safety risk, and 'as such the judge should have held that this constituted an unreasonable interference' with the enjoyment of the Easement.
   2. There should 'either be a gate alone, or a cattle grid alone. Not both'. The judge failed to find, and should have found, that not only was the cattle grid a safety risk for humans to walk across, but 'it would be virtually impossible to use the Easement "with ... horses or other animals"'.
   3. The judge wrongly found that the other instances of unreasonable interference 'most of which were proven' would only be unreasonable interference if the Easement permitted access from lot 200 to the remainder of her farm. However, there was considerable evidence that lot 200 itself was used for grazing and yarding of cattle and storage. Accordingly, even if the use of the Easement were limited to lot 200, there was an unreasonable interference with the appellant's right of access to lot 200.
2. The appellant, in her written submissions, made no reference to the Mid Way Gate, Mid Way Fence and fence posts the subject of ground 2. The appellant's written submissions on the Mid Way Gate, Mid Way Fence and fence posts appeared to find expression under ground 3 rather than ground 2.
3. The appellant's written submissions in relation to ground 3 did not address that ground. The appellant's written submissions under ground 3 and oral submissions at the hearing, alleged, in effect, that:[40]
   1. The judge failed to appreciate that the Easement in this case involved 'a transfer of rights over the land comprising the carriageway'.
   2. The judge erred in law when he said at [130] of the primary decision that an owner of land may install a paddock and associated gates over part of an easement providing the paddock and associated gates do not constitute a substantial interference with the easement.
   3. The judge erred in finding that the narrowing of the carriageway from 10.67 m to 4 m by the Mid Way Gate, Mid Way Fence and fence posts did not amount to a substantial interference with the enjoyment of the Easement. The appellant referred to the decision of Brereton J in Trewin v Felton,[41] and Roper J in Powell v Langdon.[42]
   4. The judge failed to take into account the evidence of the degradation of the carriageway due to the appellant's alleged inability to grade the driveway, and, in that regard, 'ignored' the evidence of the appellant's son and the appellant's expert witness.

1. In oral submissions, the appellant adverted to ground 3 and submitted that there was no evidence to support the award of damages of $5,000, and that no reasons were given which would justify the award.[43]

1. The appellant submitted that there was evidence that the roadway had been in existence and used continuously since 1988. The appellant referred in that regard to the evidence of the appellant in two affidavits, and of the appellant's son in one affidavit.[44] The appellant also submitted, in supplementary submissions, that the respondent had not identified 'any evidence which might conceivably ... refute the clear evidence of continuous use and enjoyment of this right of way (for over 40 years) to enable access along lot 2726 not only to lot 200 but to [the rest of the appellant's farm] and the homestead'.[45]
2. The appellant accepted that she did not argue at trial that there was a 'prescriptive right' of passage along the right of way for access to the whole of her farm.[46]

The respondent's submissions and notice of contention

1. In relation to ground 1, the respondent, in general terms, submitted that the judge was correct for the reasons he gave. By its notice of contention, the respondent contended that even if the judge erred in finding that the reference to the 'said land' in the Ninth Schedule was a reference to the servient tenement (or the Carriageway Area), and that the words 'said land' in the Ninth Schedule should be taken to refer to the dominant tenement, the judge's conclusion was ultimately correct. In this regard, the respondent referred to Chick v Dockray.[47]
2. In relation to ground 2, the respondent contended, in effect, that the principles applicable to determining whether interference is unreasonable were accurately summarised by the judge, and applied by the judge in a manner which was open to him on the evidence.
3. In relation to ground 3, the respondent observed, in its written submissions, that there were no submissions advanced by the appellant in support of that ground. In oral submissions, the respondent accepted, in effect, that there was no evidence, or at least no evidence accepted by the judge, to support the award of damages of $5,000. The respondent submitted that the judge treated the sum of $5,000 as an award of nominal damages.[48]
4. In relation to ground 4, the respondent contended, in effect, that this is a new matter, and in accordance with conventional principles, cannot now be raised on the appeal. The respondent submitted, amongst other things, that the following issues would have needed to have been explored and addressed at trial had the appellant run a case of prescriptive right at trial:[49]
   1. The historical acts done by the alleged dominant tenement holder over the servient tenement over a period of 20 years or more.
   2. The absence of right to do that act in the person doing it.
   3. The knowledge of the person affected by it that the act was done.
   4. The power of the person affected by the act to prevent it.
   5. The abstinence of any complaint by the person affected from the interference.
   6. The relationship between the Prescription Act 1832 and the doctrine of lost modern grant with the TLA.
5. The respondent also contended that some of the evidence relied on by the appellant in support of this ground was evidence which was 'struck out' and not led when the affidavits were tendered as exhibits.[50]
6. Further, the respondent submitted that it framed its case in the primary proceedings by reference to the appellant's claim at first instance. Forensic decisions were made as to what evidence would be led, and on what matters the appellant's witnesses would be cross‑examined. Had the claim been advanced at trial, there would at least have been additional evidence from previous owners of the servient tenement.[51] Moreover, there was, in any event, evidence indicating that the respondent had taken steps to show that it did not want the appellant accessing the Easement in the way that she had been.[52]

1. Given the significance of the Westfield case to this appeal, it is appropriate to refer to it in some detail before returning to the question of the proper construction of the Easement.
2. The case of Westfield concerned an easement conferring on Westfield a right of way by means of a vehicular ramp under the servient tenement owed by Perpetual. Westfield was the registered proprietor of land on which was built the multi‑storey premises known as 'Skygarden'. Skygarden abutted a pedestrian precinct known as Pitt Street Mall which lacked vehicular access. Perpetual was the registered proprietor of land on which was built the multi‑storey premises known as 'Glasshouse'. Glasshouse fronted both the Pitt Street Mall and a vehicular road known as King Street. Hence, as the High Court put it, 'the importance for Skygarden of access across the Glasshouse site to King Street'.[53]
3. Westfield proposed a redevelopment of Skygarden and of two other nearby sites which it later acquired, being Imperial Arcade and Centrepoint. Imperial Arcade adjoined Skygarden, and Centrepoint adjoined Imperial Arcade. Both Imperial Arcade and Centrepoint fronted the Pitt Street Mall. Westfield wished to utilise, for that redevelopment, the right of way under Glasshouse, so as to enable vehicular access to those other sites from King Street.[54]
4. The High Court held, in effect, that the easement in question did not extend to travel across the dominant tenement, ie, the Skygarden site, through to the other sites reached only by going across the dominant tenement.
5. The terms of the registered easement stated:[55]

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 as the lots benefited or any part thereof with which the rights shall be capable of enjoyment and every person authorised by it, 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. (original emphasis)

1. The High Court observed that these words had an 'affinity' to the relevant statutory expression in New South Wales of 'right of carriageway', which were:[56]

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 that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. (emphasis added)

The phrases 'to go, pass and repass at all times and for all purposes ... to and from the said dominant tenement ["lots benefited"][58] ...' appear in both the statute and the Instrument. However, for the Easement the activities permitted with respect to the servient tenement (Glasshouse) are 'across the lots burdened', an expression not found in the statutory formulation. This expression [across the lots burdened] is apt to describe entry from King Street, and passage across the Glasshouse site of the servient tenement to reach Skygarden as the destination. What is significant for the present dispute is that the Easement does not also speak of activities 'across' rather than 'to and from' the dominant tenement (Skygarden).

In that regard, Hodgson JA, who gave the leading reasons for judgment in the Court of Appeal, remarked:

'Although the words "to and from [the dominant tenement] ..." do not exclude the possibility that the right should extend to going to the dominant tenement and then going across it to further land, and then returning across the dominant tenement and then going from it across the servient tenement, the words tend to suggest that it is access to and from the dominant tenement that is the purpose of the [E]asement, and not access to further land reached only by going across the dominant tenement. Certainly, if it had been intended that the grant extend to the authorisation of others to go across the dominant tenement to further properties, the words 'and across' could readily have been added.' (emphasis added) (footnote omitted)

1. The High Court then considered the expression 'for all purposes', and said:[59]

In its submissions, Westfield stressed the significance for the construction of the Instrument of the phrase therein 'for all purposes'. This was said to be plainly apt to encompass the purpose of accessing Skygarden, the dominant tenement, and from there travelling to some further property.

The phrase 'for all purposes' appears also in the statutory formulation which has been included in the Conveyancing Act since the commencement of the 1930 Act. Before 1930 it had appeared in easements the construction of whose terms had come before the courts.

One such case was Thorpe v Brumfitt. There, a grant of a right of way 'for all purposes' across the servient tenement did not plainly identify any dominant tenement. Did the grant fail as being an attempt to create an easement in gross? As a matter of construction James LJ and Mellish LJ avoided that result. Mellish LJ construed the phrase 'for all purposes' as identifying all purposes which made it necessary to pass between the servient tenement and a triangular parcel of land indicated in the conveyance creating the easement. This decision is significant in two respects. First, it illustrates the importance of the legislative requirement imposed in New South Wales by s 88 of the Conveyancing Act (also introduced by the 1930 Act) for identification of the lands comprising the dominant and servient tenements. Secondly, it emphasises that the 'purposes', extensive as they may be, must confer what the law regards as a benefit on the dominant tenement, by making it 'a better and more convenient property'; this is something more than a 'personal advantage' to the owner of the tenement for the time being.

More recently, in Peacock v Custins the English Court of Appeal considered the phrase 'a right of way at all times and for all purposes' in favour of the dominant tenement ('the red land') the owners of which also owned adjacent land ('the blue land'). After reviewing many authorities, including Harris v Flower, Schiemann LJ (delivering the judgment of the Court also comprising Mance LJ and Smith J) concluded that the terms of the grant did not permit the extended user in favour of the blue land and, further, that this user could not reasonably be described as 'ancillary' to the use of the red land. (emphasis added)

1. The High Court then referred to the question of 'ancillary rights', and said:[60]

The reference in Peacock v Custins to user which could be described as 'ancillary' to the grant appears to have identified the line of cases holding that, on general principles of conveyancing, the grant of an easement carries with it those ancillary rights which are necessary for the enjoyment of the rights expressly granted. For example, Warner J held in National Trust for Places of Historic Interest or Natural Beauty v White that use by visitors of a car park adjacent to an Iron Age hill fort in Wiltshire known as the Figsbury Ring was an 'ancillary' user in the required sense. However, it is not necessary for the enjoyment of the rights granted for access to the Skygarden land that those using that access be at liberty to pass beyond Skygarden to other land.

It should be added that if the construction of the Instrument urged by Westfield were accepted, and the grant extended to permit use of Glasshouse to pass across Skygarden to other parcels of land, then a further question would arise. This would be whether a grant in those terms would be appurtenant to Skygarden in the sense of the authorities, or be but a personal advantage accruing to Westfield as the present owner of Skygarden. It is unnecessary to determine such a question. This is because the Easement, upon the proper construction of the terms of the grant, does not extend to user of the type for which Westfield contends. (emphasis added)

1. The High Court also referred to a statement in Gale on Easements[61] to the following effect:[62]

The general rule is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant.

1. The High Court said as to this statement:[63]

[I]t is important to remark that care certainly must be taken lest the statement in Gale on Easements set out above be elevated to the status of a 'rule', whether of construction or substantive law. What the statement does provide is a starting point for consideration of the terms of any particular grant. The statement is consistent with an understanding that the broader the right of access to the dominant tenement granted by the easement, the greater the burden upon the proprietary rights in the servient tenement. (emphasis added)

1. After making that observation, the High Court went back to the language of the easement in that case and said:[64]

We return to the terms of the Easement. The access is to go, pass and repass to and from Skygarden and across Glasshouse [to King Street]. The terms do not speak of going, passing and repassing to and from and across Skygarden, and across Glasshouse [to King Street]. The term 'for all purposes' encompasses all ends sought to be achieved by those utilising the Easement in accordance with its terms. (emphasis added)

1. The High Court also referred to the conditions of the easement, which provided (in broad terms) that Skygarden and Glasshouse would equally share the costs of routine maintenance and repair of the carriageway, and said:[65]

In the absence of further clear words it might be considered unduly burdensome upon the owner for the time being of Glasshouse that it meet one half of the costs associated with access to remoter lots. That no such further provision was made is consistent with the construction adopted in these reasons of the terms of the grant of the Easement. Further, cl (4) attributes responsibility to the respective parties for the costs of repair of damage caused to the site of the carriageway by the grantor or grantee, and otherwise provides for them to bear equally the costs of repair. No attention has been given to the costs of repairs occasioned by those utilising the Easement to pass across and beyond Skygarden.

Clauses (7) and (8) are as follows:

'(7) The grantor and grantee shall at their own cost separately insure and keep insured at all times during the life of the right of carriageway the structure of the carriageway and all associated fixtures and fittings (including but not limited to signage) for loss or damage thereto arising as a direct result of their respective use of the carriageway.

(8) The grantor and grantee shall at their own cost separately effect and maintain at all times during the life of the right of the carriageway public risk insurance covering their respective legal liability to third parties (including the other party) for property damage and bodily injury arising out of their respective use of the carriageway.'

No provision is made for insurance against loss or damage arising as a result of use of Glasshouse by the owners for the time being of tenements beyond the boundary of Skygarden. Nor is the obligation to effect public risk insurance so drawn as to deal with the range of uses for which Westfield contends. The same may be said of the limited indemnity required by cl (9). This reads:

'(9) The grantee shall indemnify and keep indemnified the grantor against all actions, claims, suits, demands and losses arising from any default act or omission of the grantee its servants or agents in the use of the right of carriageway.'

On this point, Hodgson JA remarked (and we agree):

'[I]f Skygarden could authorise Imperial Arcade and Centrepoint to use the right of way for access to their premises, it seems anomalous that Glasshouse should be required to submit to this where there is no requirement for Imperial Arcade and Centrepoint to maintain insurance, along the lines provided in cll (7) and (8) of the [E]asement. It would also be anomalous that there was no indemnity from Imperial Arcade and Centrepoint of the kind provided in cl (9) of the [E]asement.'

1. In relation to the proper approach to the construction of a registered Torrens system easement, the High Court said:[66]

Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question. This important element in the Torrens system is discussed by Barwick CJ in Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd ...

...

In going on to allow the appeal, Hodgson JA (again correctly) remarked that the decision of the primary judge appeared to be the product of an error in preparedness to look for the intention or contemplation of the parties to the grant of the Easement outside what was manifested by the terms of the grant. Extensive evidence of that nature had been led by Westfield on affidavit with supporting documentation.

In this Court, counsel for Perpetual submitted that some but not all of the extrinsic evidence had been admissible ...

[I]n the course of oral argument in this Court it became apparent that what was engaged by the submissions respecting the use of extrinsic evidence of any of those descriptions, as an aid in construction of the terms of the grant, were more fundamental considerations. These concern the operation of the Torrens system of title by registration, with the maintenance of a publicly accessible register containing the terms of the dealings with land under that system. To put the matter shortly, rules of evidence assisting the construction of contracts inter partes, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority of NSW, did not apply to the construction of the Easement.

Recent decisions ... 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.

... 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.

...

It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in this case on the DP.

But none of the foregoing supports the admission in this case of evidence to establish the intention or contemplation of the parties to the grant of the Easement. (emphasis added) (footnotes omitted)

1. The Ninth Schedule to the TLA first appeared as the Fifth Schedule to the Transfer of Land Act 1874 (WA) (WA 1874 Act). The WA 1874 Act contained s 63, which is the forerunner of s 65 of the TLA presently under consideration. The WA 1874 Act appears to have been based on the Transfer of Land Statute 1866 (Vic).[67] The parties did not refer to any case law dealing with the wording of the Ninth Schedule, or its predecessor the Fifth Schedule, or the Victorian statute on which it was ultimately based. The court, in its own researches, has not been able to find any case law from a superior court on the point.[68] A review of the second reading speeches in relation to the original Victorian statute does not shed any light on the meaning of the words used in the corresponding schedule to the original Victorian statute.[69]
2. It is nevertheless plain that the words of the Ninth Schedule to the TLA are to be read and understood in the context of s 65 of the TLA (see [29] above). Section 65 contemplates the creation of a carriageway easement, by a transfer or lease of land, where the words 'Together with a right of carriage‑way over' are used. The words 'Together with' in this context signify that in addition to the rights to the land being transferred or leased, the transferee or lessee (as the case may be) has an additional right, being a right of carriageway over the specified roads. Also, s 65 provides, in effect, that a memorandum of any transfer or lease creating an easement 'affecting' any Torrens system land is to be entered on the certificate of title of 'such land'. Indefeasibility arises from the endorsement of the easement on the certificate of title of the servient tenement.[70]
3. In this context, in the Ninth Schedule, the words 'transferee hereunder' and the words 'the registered proprietor ... for the time being of the land hereby transferred' evidently refer to the original transferee of the dominant tenement and his or her registered successors in title.
4. The words 'said land' in the Ninth Schedule evidently refer to the 'land hereby transferred' and, also, accordingly refer to the dominant tenement.[71] The appellant's submissions to the contrary cannot be accepted.

1. When the Deed of Easement (see [24] ‑ [27] above) is read with the words of the Ninth Schedule (properly construed) in it, the Easement provides, relevantly in effect, that:
   1. The registered proprietor of lot 200, his or her transferees, successors and assigns, is granted a right of carriageway 'as appurtenant to [lot 200]' over the Carriageway Area.
   2. The right of carriageway is on terms that 'the registered proprietor or proprietors for the time being of [lot 200] or any part thereof', and their 'tenants servants agents workmen and visitors', have 'full and free right and liberty', with or without animals or vehicles, to:

go, pass and repass at all times ... and for all purposes ... into and out of and from [lot 200] or any part thereof through over and along the [Carriageway Area].

1. The registered proprietor of lot 200 shall bear the costs of the repair, maintenance and upkeep of the right of carriageway thereby created, including any gate or cattle grid situated on or appurtenant to the Carriageway Area, except where such costs 'have been definitely ascertained to have been occasioned by some act default omission or neglect' on the part of the registered proprietor of lot 2726 or its servants or agents in which case, the costs of the necessary repairs and maintenance or replacement shall be borne by the registered proprietor of lot 2726.
2. The registered proprietor of lot 200 shall keep:

(a) all gates (if any) to and from the Carriageway Area closed; and

(b) all cattle grids (if any) servicing the entrances to and from the Carriageway Area free of debris.

1. At the outset, it is to be observed that the High Court in Westfield said that the 'starting point' for the consideration of the terms of the particular grant is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant.[72] That is lot 200 here.
2. The reference to 'appurtenant' in the phrase 'as appurtenant to [lot 200]' expressly states what is otherwise the general law requirement that an easement is to serve the benefit of the dominant tenement by making it a more convenient property, rather than giving a personal advantage to the owner of the dominant tenement for the time being.[73] Thus, the Easement expressly provides that the land to which carriageway is 'appurtenant' is lot 200.
3. The words 'full and free right and liberty' are to be understood and applied in a manner which is qualified by the ordinary incidents and rights which, in common sense and from common use, are understood to appertain to the ownership of the soil of the servient tenement. The words are understood as accommodating the concurrent rights of the owners of the servient and dominant tenements, so that not every physical obstruction to passage is an interference with the rights conferred by the easement.[74]
4. The words 'for all purposes' encompass all ends sought to be achieved by those using the Easement in accordance with its terms.[75]
5. The words 'go pass and repass ... along' in this context refer to the use which may be made of the Easement.[76] They indicate that the purpose of the Easement is for access.[77]
6. The word 'into' is used to express motion 'from without to a point within ... space'.[78] In this context, it is evidently used to express motion from outside of lot 200 to a point within lot 200. Movement 'into' lot 200 is not apt to refer to movement beyond lot 200. It indicates that lot 200 is the final destination.[79] The words 'out of' denote motion in the opposite direction. Thus, the words 'into and out of [lot 200]' are apt to refer to moving from a point outside of lot 200 to a point within lot 200 as the final destination, and back again. Read in the context of the map in the Easement, these words connote movement from the Brand Highway 'through, over and along the Carriageway Area' into lot 200 and back again.
7. The word 'from' denotes 'departure or moving away'. It indicates a 'point of departure or place whence [where from] motion takes place'.[80] In this context, the word 'from' indicates that it is lot 200 which is the point of departure for going 'through, over and along the Carriageway Area'. Read in the context of the map in the Easement, this also indicates that the destination point 'from' lot 200 is the Brand Highway. Whilst the Easement does not expressly refer to the use of the carriageway to go 'across the servient tenement',[81] being lot 2726, no such express words are needed to make that plain in this case.
8. Also, it is of some significance that the language of the Easement does not convey a destination point beyond the dominant tenement at the other (western) end of the carriageway by using words such as 'across the dominant tenement' (to other adjacent land).[82] However, it is to be accepted that its significance cannot be pressed too far in this case as (unlike Westfield) the absence of a reference to 'across the dominant tenement' cannot be contrasted with the use of the word 'across' applying to the servient tenement.
9. The above construction of the phrase 'into and out of and from' may be seen to involve an element of tautology, in that the words 'and from' do not add anything to what would otherwise be the operation of the clause. However, the presumption against surplusage operates with less force in a clause which provides for the transferee and others to 'go pass and repass ... into and out of and from the said land ... through over and along the road or way'. Further, it is difficult to see how tautology is avoided when the reference is to go out of and from the said land 'through over and along' the road. What is necessarily involved in both cases is using the carriageway to go from a point within the dominant tenement to a point outside it.
10. The conclusion to be drawn from the matters in [69] ‑ [77] above is that the Easement, on its proper construction, does not give the right to use the carriageway to go beyond lot 200 to other parts of the appellant's farm.
11. That conclusion tends to be confirmed by the two references to 'on or any part thereof' in the Easement. The words 'or any part thereof' in the phrase 'registered proprietor or proprietors for the time being [of lot 200] or any part thereof' are generally apt to indicate that the benefit of the Easement is to inure to each portion of the land within the dominant tenement.[83] The words 'or any part thereof' in the later phrase 'into and out of and from [lot 200] or any part thereof' tend to confirm that the right of way is to inure for every portion of land within lot 200. There is no indication that the benefit of the Easement is to inure for land outside of lot 200. That is conformable with the express provision that the Easement is 'appurtenant to' lot 200 (only).
12. Further, a 'prudent conveyancer'[84] ascertaining the scope of the grant of the Easement would have no occasion to look beyond the certificates of the title of the dominant tenement (lot 200), the servient tenement (lot 2726) and the registered dealing creating the Easement (D67662). There is nothing in those registered instruments which would put a prudent conveyancer on notice that other registered instruments need to be examined in order to understand the scope of the grant.
13. It is to be accepted that this case is distinguishable from Westfield. It was plain that the easement in Westfield concerned a right of carriageway over land in the CBD in Australia's largest city, whereas this one, as is evident from its terms, relates to a farming property.[85] Also in this case, the conditions governing the user of the carriageway effectively place the costs of upkeep and repair on the dominant tenement owner. That is unlike the shared arrangement in the Westfield case. Those two matters together may arguably indicate that the use of the carriageway to obtain access to other parts of the appellant's farm would not necessarily create any additional substantial burdens on the proprietary rights of the servient tenement.[86] To that extent, those matters might accordingly tend to be confirmatory of a construction in favour of the appellant if such a construction were otherwise open on the language of the instrument. The difficulty for the appellant here is that those matters cannot ultimately be brought to bear in favour of the appellant absent any foothold in the language of the instrument read with the accompanying map. For similar reasons, the appellant's submission that in a case of ambiguity the easement should be construed against the grantor, does not assist the appellant in this case, as the language of the Easement read with the map admits of no real ambiguity.
14. The surrounding circumstances at the time of the grant, referred to by the appellant in [37.4] above, are not admissible in construing the Easement.[87]
15. As noted earlier, the appellant says that the following 'physical characteristics' of the land, which are evident from aerial photographs, are relevant on the question of construction:[88]
    1. the dominant and servient tenements are pasture land;
    2. the only (proximate) sealed road is the Brand Highway;
    3. the main infrastructure on the appellant's farm (comprising lots 200, 2591, 829, 830 and 192) is on lot 192;
    4. the presence of the one main track leading from the Brand Highway across the servient tenement, through lot 200, onto lot 192, and then up to the house on lot 192; and
    5. the track is substantial and is gravel, allowing vehicles to pass over the land both:

(b) beyond lot 200, up through lot 192 to the house on lot 192.

1. The submission effectively seeks to rely on a line of authority commencing with Sertari,[89] which now includes Hare v van Brugge;[90] Tempe Recreation Reserve Trust v Sydney Water Corp;[91] and Lowe v Kladis.[92] Those authorities are to the effect that in the construction of a Torrens title easement, the court may have regard to the physical characteristics of the dominant and servient tenements. In Lowe, the court said:[93]

The justification for this view is that the court is not taking into account matters, such as the intentions of the original grantor and grantee, that are inaccessible to a third party inspecting the register.

1. In Westfield, the court appeared to approach the question of construction having first outlined, in broad terms, the nature and physical characteristics of the dominant and servient tenements and the easement, and the location in which the easement operated. The High Court referred to 'King Street' (evidently on the basis that it was known to be a vehicular public road) and said that what was 'at stake' was 'access to from and over several parcels of land in the [CBD] ... in Sydney'. The court also referred to the facts that the dominant tenement had erected upon it multi‑storey commercial premises known as Skygarden, that the land of the servient tenement also had erected upon it commercial premises known as Glasshouse, that the easement in question was a 'vehicular ramp under' the servient tenement, that Glasshouse fronted both King Street and a pedestrian precinct known as the Pitt Street Mall, that Skygarden abutted the Pitt Street Mall, and that the pedestrian precinct lacked ordinary vehicular access.[94] The line of authority referred to in [84] above is not inconsistent with this aspect of the reasons in Westfield.
2. It is not necessary to express a final view in this case as to the extent to which extrinsic evidence of the kind referred to in [83] and [85] above may be admissible on the question of construction.
3. In this case, it may be assumed, without deciding, that the matters referred to in points 1, 2 and 5(a) of [83] above are admissible on the question of construction. They are matters accessible to any third party seeking to understand the scope of the grant of the registered easement, even without access to aerial photography. However, those three matters do not, in themselves, favour a construction that the grant gives access to places beyond lot 200, other than the Brand Highway.
4. As to the third matter in [83] above, it is contended, in effect, that this would be evident to a third party by reference to aerial photographs. Whilst a view from the air might theoretically be possible, it cannot reasonably be supposed that information obtained from aerial photographs would be readily accessible to a third party who is seeking to understand the scope of the grant, and who is, at least principally, otherwise confined to a search of the register. That matter does not assist the appellant.
5. The matters in points 4 and 5(b) in [83] above proceed on the basis that the carriageway across the servient tenement extends in a similar form through and beyond lot 200, onto lot 192, and up to the farmstead on lot 192. In other words, it relies on characteristics of the land beyond the servient and dominant tenements, and thereby the submission goes beyond the Sertari line of authority. Also, the evidence of this is said to be discernible from aerial photographs. For the reasons given above, information disclosed from aerial photography cannot be regarded as admissible on the question of construction.
6. Further, even if the evidence of the matters in points 4 and 5(b) in [83] were admissible, there is nothing to indicate that lot 200 is, in itself, merely or substantially in the nature of a track to other parts of the appellant's farm. The duplicate certificate of title for lot 200 indicates that it is 40.4686 hectares. On the basis that it is pasture land for cattle (as the appellant contends), this is not a case where the dominant tenement could reasonably be equated with the theoretical 'footpath' constituting the dominant tenement in the example referred to by Sir Robert Megarry V‑C in Nickerson v Barraclough.[95] Also, even if evidence of the continuation of the vehicular track to lot 192 could support a construction that the Easement provides access up to the home on lot 192, that would not support a finding of access from lot 200 to other parts of the farm, including the rest of lot 192 and lots 2591, 829 and 830.
7. Moreover, it cannot be said that any of the characteristics referred to in [83] above confirm a construction otherwise open on the language of t[96] Easement.96 In substance, the appellant seeks to use the physical characteristics referred to points 3, 4 and 5(b) of [83] above as an alternative route to proof of extrinsic circumstances mutually known to the original grantor and grantee, which are otherwise not admissible on the question of construction. The appellant effectively seeks recourse to the aerial photographic evidence to introduce an additional term of the grant, which is not open on the language of the Easement read in the context of the certificates of title of the dominant and servient tenements, or read in that context together with the matters referred to in points 1, 2 and 5(a) of [83] above.
8. The appellant also contends that the use of the Easement carries with it rights of access to other parts of the appellant's farm beyond lot 200 as 'ancillary' rights necessary for the enjoyment of the right of access to lot 200. The question of what is 'necessary' for the enjoyment of the rights granted invites, first, a consideration of the scope of the grant on its proper construction. Factual questions of whether a particular use (typically the use in dispute which has led to the litigation) is 'necessary' or 'ancillary' to the user contemplated by the grant on its proper construction, must ultimately be judged in light of the proper construction of the grant. If the use in question is within the terms of the grant properly construed, a further question may arise as to whether a grant in those terms would be appurtenant to the dominant tenement in the requisite sense required by the authorities.[97]
9. In Westfield, the High Court said that in that case, it was 'not necessary for the enjoyment of the rights granted for access to the Skygarden land that those using that access be at liberty to pass beyond Skygarden to other land'.[98] It is open to construe that passage as taking into account the basic factual setting in which the easement operated[99] (referred to in [85] above).
10. In this case, the use of the Easement to obtain access to the remainder of the appellant's farm is not within the scope of the grant properly construed. In any event, it is not necessary for the enjoyment of the rights granted for access to lot 200 that those using that access be at liberty to pass beyond lot 200 to the remainder of the appellant's farm. Use of the carriageway to obtain access to over 40 hectares of pasture land for cattle provides enjoyment of lot 200 itself. Access to the rest of the farm beyond lot 200 is not ancillary or an adjunct to the enjoyment of lot 200, but is a substantive use in its own right.[100]
11. For these reasons, the judge was incorrect in finding that the words 'the said land' in the Ninth Schedule referred to the servient tenement or the Carriageway Area itself. However, the respondent is correct in its notice of contention that the words refer to the dominant tenement, and that, properly construed, the Easement does not provide for access beyond lot 200 other than to the Brand Highway.
12. It may be noted that that conclusion is not inconsistent with certain observations of the Full Court in Chick v Dockray,[101] where the instrument in question also used the words 'into and out of and from' the dominant tenement.[102] The court in that case said that the purpose of the easement was for travelling 'to and from' the dominant tenement, and to gain access 'to and from' the dominant tenement.[103] Accordingly, in that case, the words 'into and out of and from' the dominant tenement, were effectively equated with the language of 'to and from' the dominant tenement used in the statutory definition of 'right of carriageway' referred to by the High Court in Westfield.[104] However, the point in issue in the present appeal was not the subject of any dispute or consideration on appeal in Chick v Dockray, and ultimately that decision is of no real assistance in the disposition of this appeal.[105]
13. No doubt this is a hard case.[106] But in light of the relevant principles of construction, in respect of easements concerning Torrens system land, the Easement as drafted appears to be singularly inapt to cover what may be inferred to have been the subjective intentions of the two brothers who were the original grantee and grantor of the Easement, and of the appellant and her late husband when they purchased the dominant tenement in 1988 from one of the brothers.
14. Ground 1 should be dismissed.

Disposition of grounds 2, 3 and 4 Ground 2 - substantial interference

1. As the judge observed,[107] without dispute by the appellant, many of the appellant's claims in relation to substantial interference with the use of the Easement fell away once the Easement was construed as not permitting access to the farmhouse on lot 192, and the other parts of the farm. The judge also said,[108] without dispute by the appellant, that the appellant's claims were confined to the 'narrow issue' of whether there had been a substantial interference with the use of the Easement to obtain access to the cattle and cattle yards on lot 200.

1. There was a forensic contest at trial as to whether cattle grids at either end of the Easement were effective to stop cattle escaping, or whether it was reasonable to use a gate in conjunction with the cattle grid. The judge observed that the appellant's son, and the appellant's expert witness, gave evidence to the effect that cattle grids were sufficient in themselves to prevent the escape of cattle onto (relevantly) the Brand Highway. The judge rejected their evidence on this point, including on the basis that the appellant's expert was 'not an expert on cattle grids'. The judge preferred the evidence of a previous owner of the servient tenement (lot 2726), Mr Collard, to the effect that he had seen stock escape, including onto the Brand Highway, where there was a grid but no gate.[109] The judge said:[110]

Ian Collard was an independent witness with recent knowledge of Lot 2726 by virtue of his ownership of Lot 2726. The court accepts Ian Collard's evidence that cattle grids alone were not effective to prevent stock straying from the ends of the Easement. The court rejects [the appellant's son's and the appellant's] evidence that the cattle grids were effective by themselves to prevent cattle straying.

1. It was plainly open to the judge to prefer the evidence of Mr Collard to that of the appellant's son or the appellant's expert witness in the resolution of this forensic contest, which ultimately substantially turned on the judge's assessment as to the credibility and reliability of the witnesses. No error is shown.[111]
2. Further, the judge also accepted Mr Collard's evidence that he had installed the gate at the Brand Highway end of the carriageway because he was concerned about cattle escaping and cattle theft.[112] The judge also accepted the evidence of the director of the respondent (the current owner of lot 2726) to the effect that he used the gates in order to stop cattle straying, and to prevent inter‑breeding with the appellant's cattle.[113] The judge said:[114]

The consequence of cattle straying onto Brand Highway from Lot 2726 are potentially catastrophic if a vehicle collides with them. Although of a lower order, the death or injury of cattle from being hit and killed or injured, or lost due to straying, is a proper concern of a landowner who farms cattle on that land. Loss to theft is also a proper concern.

Given the risks arising from straying it was not unreasonable for [the respondent] to adopt a 'belt and brace' approach to prevent that risk by using a gate and a cattle grid.

Although the risk of cattle straying into and from Lot 2726 into Lot 200 is of a lesser order than stock straying onto the Brand Highway it was a reasonable reaction to the risk to seek to install a gate to prevent the cattle interbreeding.

1. None of the findings of fact in the preceding paragraph is challenged in this appeal.
2. The judge then concluded:[115]

Accordingly, it was reasonable to install gates in association with the cattle grids so as to prevent cattle from Lot 2726 straying on to the Brand Highway or onto Lot 200.

1. That finding is unassailable in light of the matters referred to in [99] ‑ [103] above.
2. The appellant's principal complaint is that the judge should have accepted her submission at trial that the gate should not have been placed over the cattle grid, because it created a hazard. As to that submission, the judge said:[116]

The risk of an injury to a person opening or closing the gate on the cattle grid requires a consideration of competing interests. There has been a gate over a cattle grid since 2008, ie more than 10 years. The evidence is that no one has suffered any injury whilst opening and closing the gate on the cattle grid. While the absence of an injury is not evidence of an absence of risk, it is proper to consider 'how real is the risk?'

[The appellant's expert's] investigation was based on a wide range of users including relatives, friends and contractors. Many of the persons who previously accessed the Easement, such as family and friends, will no longer be able to access the Homestead Lot, Lot 192, or any other lots, other than Lot 200, via the Easement. This is likely to lead to a different type of user of the Easement. In future, users of the Easement will be limited to persons accessing Lot 200, for example, stock agents and cattle truck drivers, who might be expected to be familiar with the hazards of cattle grids and familiar with opening and closing gates (footnote omitted).

The court accepts that there is a degree of risk in placing the gate over the cattle grid. However, the risk is not such as to constitute a substantial interference with the Easement.

1. There was no serious attempt in the grounds of appeal or the appellant's written submissions to challenge, or even engage with, the findings referred to in [106] above. In oral submissions, senior counsel for the appellant submitted that the judge erred in finding that in the future, users would be limited to persons wishing to access lot 200 and its cattle yards, such as stock agents and cattle truck drivers. The appellant submitted that there was no evidence to [118]t effect.118 That submission was not made in the appellant's case, and there is no ground of appeal challenging the relevant finding. In any event, the finding is a fair inference from the unchalle[119]d finding119 to the effect that (on the construction favourable to the respondent) the use of the carriageway to lot 200 will be confined to those seeking access to the cattle and cattle yards on lot 200.
2. Ground 2 should be dismissed insofar as it alleges that the judge erred in concluding that he was not satisfied that a gate over the cattle grid at the Brand Highway end of the carriageway constituted substantial interference with the Easement.

The Mid Way Gate and Mid Way Fence and Fence Posts

1. Insofar as the appellant contends that the judge erred in law by not finding that the Carriageway Area had been 'transferred' to the appellant, the submission lacks merit. Whilst an easement is not merely a personal right, as it is attached to the dominant tenement for the benefit of that land,[120] an easement does not create an estate in the land of the servient tenement. An easement is a privilege without profit, and relates only to the user of the land. It confers neither seisin nor possession in the land over which the easement subsists.[121]
2. Rather, as the Easement was a private right of way, any obstruction of the carriageway was not actionable unless there was 'a real substantial interference with the enjoyment of the right of way'.[122] At least generally speaking, whether there is real substantial interference with the enjoyment of the right of way will involve questions of degree, to be decided in light of all the circumstances of each case.[123] A fence along the right of way, or a gateway across the right of way, will not necessarily involve real substantial interference with the right of way. Each case will turn on its own facts.
3. For example, in Powell, a fence proposed to be erected on the land comprised in the right of way, to the extent of taking up 5 ft of the width of it, was held not to constitute substantial interference, providing that it did not extend beyond the cottage on the servient tenement.[124] A number of the cases involving the erection of gates and fences were also discussed by Brereton J in Trewin, all of which turned on their own facts.[125]
4. In this case, the judge found, without challenge, that the appellant did not plead that the construction of the Mid Way Gate and associated fencing and posts obstructed access to lot 200. So the appellant's case was not pleaded on the basis of obstruction of access. Moreover, the judge made findings of fact about the appellant's use of the carriageway for access to lot 200 by cattle trucks and semi‑trailers, and that access was obtained, without any difficulty.[126] The judge also made findings about the absence of any use of the carriageway by vehicles with 'wide loads'.[127] None of these findings is challenged. Accordingly, the appellant has not demonstrated any arguable error in the ultimate finding that the appellant had not established real substantial interference with the right of way. The decision in Trewin does not assist the appellant. In the passage referred to by the appellant,[128] Brereton J found that on the particular facts of that case, gateposts which narrowed the right of way at the commencement of the last 5 m of the right of way reduced vehicle manoeuvrability at the particular point where maximum manoeuvrability was important to users of the carriageway, thereby reducing the width 'below that of ordinary convenience for its users'.[129] The decision in Trewin is not authority for the proposition that any reduction in the width of the carriageway necessarily involves real substantial interference with the right of carriageway.
5. Finally, the appellant's submission that the judge 'ignored' the evidence of the appellant's son and expert about the grading of the carriageway also lacks merit. The judge addressed the evidence on this topic in detail, including the evidence of the appellant's son and expert.[130] The judge found that the son's evidence was 'not entirely consistent'.[131] The judge concluded his survey of the evidence with the following unchallenged findings of fact:[132]

A large grader has not been used since 2008. [The appellant's son's] oral evidence is that the Roadway in in 'good shape'. The evidence is that a large grader has not been used in over 10 years and that there is no need to use a large grader in the short term.

The amount of maintenance required to date is because the Easement has been used to access the entire farm. The amount of traffic that will pass over the Easement will be limited to vehicles accessing Lot 200 - in contrast to the higher volumes of traffic that used the Easement to access not only Lot 200 but other lots belonging to [the appellant] and, in particular, Lot 192.

1. The respondent's case by counterclaim was that it had suffered loss and damage by reason of the excessive user of the carriageway.[133]
2. Where a plaintiff seeks more than nominal damages, the onus is on the plaintiff to prove the nature and extent of the damages suffered as a result of the defendant's breach.[134]
3. It was not in dispute in this appeal that there was no evidence, or at least no evidence accepted by the judge, that the respondent had suffered any loss or damage as a result of the appellant using the carriageway to obtain access to other parts of the appellant's farm beyond lot 200. The respondent sought, in this appeal, to uphold the finding on the basis that the judge was doing no more than awarding 'nominal damages'.[135]
4. In Baume v Commonwealth,[136] Griffiths CJ referred to Lord Halsbury's statement in The Mediana,[137] where his Lordship said:

'Nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term 'nominal damages' does not mean small damages.

1. Plainly, an award of $5,000 is not nominal damages.
2. It should be added that the respondent did not suggest that it had framed an alternative case on the basis that whilst it had suffered no loss, the appellant should pay, as damages, an amount attributable to the benefit received by the appellant, measured by the price a reasonable person would pay for the right of user.[138]
3. Ground 3 should be upheld.

1. The point raised by ground 4 is not a question of law which could not have been met by further evidence at first instance.[139] On the contrary, even though there was some evidence before the court which may be taken as relevant to the question of whether there was an easement by prescription, it cannot be concluded that additional cross‑examination might not have occurred, or that additional evidence might not have been led, had the issue been litigated by the appellant. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial, and could, or might possibly, have been met by rebutting evidence or cross‑examination.[140] Further, the point required the determination by the judge of factual questions which, because they were not in issue, he did not resolve. The facts necessary to establish this claim were not pleaded in the primary proceedings. Also, had the point been litigated at trial, the judge would have needed to make findings about how such an alleged prescriptive right operated in the context of the express grant of the Easement. That question too was not resolved. In all these circumstances, it is not in the interests of justice to allow the appellant to raise this fresh point on appeal.[141]
2. Ground 4 should be dismissed.

1. The notice of contention should be upheld on the question of the construction of the Easement and the appeal should be upheld in part (in relation to ground 3 only). The following orders should be made:

(2) Order 3 of the orders made by the primary judge on 18 April 2019 is set aside and there is substituted an order that Sandra Kaye Barrett-Lennard pay to River Wind Pty Ltd damages for trespass in the sum of $100.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of P Barrett-Lennard, 24 January 2017, par 57; GB 12; map GB 15.

[2] Barrett‑Lennard v River Wind Pty Ltd [2019] WASC 125.

[7] As to which see the Seventh Schedule to the Transfer of Land Act 1893 (WA) (TLA) at that time.

[11] As to the reference to 'Transfer' D676652, see [15] above.

[14] As to which, see the Seventh Schedule to the TLA at that time.

[15] The reference is to the portion of Swan Location 1732 comprised in certificate of title volume 1733 folio 669.

[16] The reference is to 'CT 1048 - 860 ORIG'. As noted earlier, certificate of title volume 1048 folio 860 was the predecessor title for lot 200.

[23] Primary decision [14]. In setting out the terms of the Easement, the judge referred to the 'land hereby transferred' and the 'said land' as '[the Easement on lot 2726]'.

[24] Westfield Management Pty Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528. See primary decision [36] - [60].

[27] Primary decision [127], [150], [175].

[29] Appeal ts 8, 11 - 13. Reference was also made to the fact that the TLA defines 'land' to include easements: appeal ts 4 - 5.

[33] In this context, the appellant says, in effect, that the words 'to and from' used in Westfield are substantially the same as 'into ... and from' in the Easement: appellant's written submissions, par 1.22; WB 11.

[34] Appellant's written submissions, pars 1.23; WB 11.

[36] Appellant's written submissions, par 1.27; WB 12 - 13. Reference was made in this regard to Berryman v Sonnenschein [2008] NSWSC 213 [28]. Berryman itself cited Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56‑200.

[37] Appellant's written submissions, par 1.27; WB 12 - 13.

[38] Appellant's written submissions, pars 1.28 - 1.29; WB 13.

[39] Appellant's written reply to the notice of contention, par 15; WB 54, citing Chick v Dockray [2011] TASFC 1; (2011) 20 Tas R 167 [27].

[40] Appellant's written submissions, pars 3.1 - 3.3; WB 14 - 15; appeal ts 38 - 42.

[41] Trewin v Felton [2007] NSWSC 851; [2007] 13 BPR 24,579.

[42] Powell v Langdon [1944] NSWStRp 35; (1994) 45 SR (NSW) 136.

[44] Appellant's written submissions, par 4.1; WB 15.

[45] Appellant's supplementary submissions, dated 6 November 2019, par 10.

[46] Appellant's written submissions, par 4.2; WB 15 - 16.

[47] Chick v Dockray [18] - [19], [22], [28], [31].

[49] Respondent's written submissions, par 42; WB 40.

[50] Respondent's written submissions, par 45; WB 41.

[51] Respondent's written submissions, pars 47 - 52; WB 41 - 42.

[52] Respondent's written submissions, par 46; WB 41.

[58] The registered easement, by its terms, used the language of 'lots benefited' rather than 'dominant tenement': see [54] above.

[66] Westfield [5], [35] ‑ [39], [44] - [45].

[67] Harrison WN, 'The Transformation of Torrens System into the Torrens System' [1962] UQLawJl 1; (1962), 4(2) University of Queensland Law Journal 125, 132.

[68] There is, however, a decision in the County Court of Victoria which considers an easement created in 1873 which used the language of the relevant schedule to the Victorian statute. See Lim Group Holdings Pty Ltd v Paragreen [2018] VCC 1677 [17], [84]. So far as is relevant the outcome in that decision is consistent with the conclusion we have come to in these reasons. See at [78] - [79], [168].

[69] Transfer of Real Estate Bill (Vic), Hansard, 28 March 1865, 25 May 1865, 21 June 1865, 26 April 1866, 22 May 1866.

[70] Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633 esp at 636, discussed in Saldanha v City of Belmont [2018] WASCA 7 [86] - [88].

[74] Gohl v Hender [1930] SAStRp 36; [1930] SASR 158, 162.

[76] Dunell v Phillips (1982) 2 BPR 9517, 9519 ‑ 9520.

[78] Oxford English Dictionary Online. See also definition of 'into' in The New Shorter Oxford English Dictionary: 'motion ... to a position within a space'.

[79] See The Ole Bull [1905] P 52, 64 ‑ 66, albeit in a different context.

[80] Oxford English Dictionary Online; see also definition of 'from' in the New Shorter Oxford English Dictionary: 'denoting departure or moving away ... in relation with a ... thing which is the starting point or site of motion'.

[83] Drake v Gray [1936] 1 Ch 451, 461, 468; Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624, 632; R J Finlayson Ltd v Elder Smith & Co Ltd [1936] SAStRp 34; [1936] SASR 209, 239.

[84] See Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9; (1971) 124 CLR 73, 93.

[85] See the reference to the grantee as 'farmer' and conditions relating to cattle grids: GB 154.

[86] cf Westfield [29], [31] - [34].

[87] Westfield [35] - [40], [44] - [45].

[90] Hare v van Brugge [2013] NSWCA 74; (2013) 84 NSWLR 41 [18].

[91] Tempe Recreation Reserve Trust v Sydney Water Corp [2014] NSWCA 437; (2014) 88 NSWLR 449 [77].

[92] Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599 [86] ‑ [88].

[93] Lowe [88]; cf Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; [2012] 2 Qd R 511 [49].

[95] Nickerson v Barraclough [1980] 1 Ch 325, 336.

[100] cf National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907, 913; Shean Pty Ltd v Perth Strata Plan 1281 [2001] WASCA 311 [40] ‑ [43]; Gore v Naheed [2017] EWCA Civ 369 [37] ‑ [38].

[102] Chick v Dockray [13] - [14].

[105] The point was dealt with at first instance by Evans J in a manner consistent with our conclusion: see Dockray v Chick [2010] TASSC 32; (2010) 1 LT(A)R 409 [28] - [29].

[106] Although the appellant still has access into and out of the farm on its western side from Nine Mile Swamp Road.

[109] Primary decision [91] - [106].

[111] See, generally, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] ‑ [28]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; Smart v Power [2019] WASCA 106 [100] ‑ [104].

[114] Primary decision [110] - [112].

[116] Primary decision [124] - [125].

[119] At primary decision [86] ‑ [89].

[120] Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624, 633.

[122] Pettey v Parsons [1914] 2 Ch 653, 662; Powell v Langdon [1944] NSWStRp 35; (1944) 45 SR (NSW) 136, 139; Trewin [73].

[127] Primary decision [151] - [159].

[130] Primary decision [133], [138] - [145].

[132] Primary decision [146] - [147].

[133] Amended defence and counterclaim, 3 July 2017, par 34; BB 83; defendant's closing submissions, pars 32 ‑ 34; BB 135; defendant's schedule of damages; BB 163.

[134] Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 83; (1998) 192 CLR 603, 608, 612, 627, 640; Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 118.

[136] Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97, 116.

[137] The Mediana [1900] AC 113, 116.

[138] As to which, see, generally, eg, Attorney‑General v Blake [2000] UKHL 45; [2001] 1 AC 268, 278; Stoke‑on‑Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406, 1416; Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538, 543 ‑ 544; Inverugie Investments Ltd v Hackett [1995] 1 WLR 713, 716, 718 ‑ 719; Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420 [184] ‑ [185]; Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, 815 ‑ 816.

[139] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) ALJR 1598 [51].

[141] Whisprun [51]; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 ‑ 8; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] ‑ [53].