Biki v Chessells [2002] VSC 501

5. The properties in question are situated in the irrigation district near Shepparton. In the 1980s, one Douglas John Chessells, the brother of the firstnamed defendant, Graeme William Chessells, was the owner of a 108.9 hectare block of land fronting the northern side of Invergordon Road, Invergordon. This was Lot 2 on Plan of Subdivision No. 77655 and the land more particularly described in Certificate of Title Volume 9221 Folio 826. This land is the dominant tenement, the relevant part of which is shown coloured yellow on the attached plan marked "A" which forms part of this judgment.

8. To the south of Invergordon Road opposite the dominant tenement lay Lot 1 on the same plan of subdivision, also owned by Mr D.J. Chessells. This allotment was in 1986 subdivided. The new subdivision, Plan of Subdivision 205342U, contains five allotments of varying sizes. Lot 1 on this plan of subdivision comprising 27.86 hectares has a frontage to Invergordon Road opposite the dominant tenement. This lot is the servient tenement. The certificate of title for the servient tenement, Certificate of Title 9714 Folio 220, shows a water supply easement which is at the heart of this litigation. The servient tenement is shown coloured green, black, orange and pink on the attached plan.

11. The issue before the Court is whether the grant of this easement carries with it the right in the present owner of the dominant tenement to enter upon the servient tenement, other than the 10 metre wide reservation shown on the title as subject to the water supply easement, for the purpose of repairing, maintaining and altering the water channel which has been constructed in that reserved strip of land.

14. The secondnamed defendant, as is customary, has entered an appearance to submit to the order of the Court but has taken no part in the proceeding.

18. By contract of sale dated 2 July 1987, Mr D.J. Chessells sold the dominant tenement to George Ruscoe and Margaret Anne Ruscoe. In or about 1994 the Ruscoes in turn sold the dominant tenement to the plaintiff, Janko Biki and Olena Biki, and on 1 August 1995 they became registered proprietors of that land as tenants in common. Mrs Biki has since died and Mr Biki sues on his own behalf and as executor of her estate. Mr Biki is in this sense the present owner of the dominant tenement and the successor in title of the Ruscoes with respect to that land.

21. When Mr D.J. Chessells sold the dominant tenement to the Ruscoes, he executed in favour of them and their successors in title an instrument of creation of easement over the servient tenement dated 4 December 1987 which is registered in dealing H254437. This 10-metre wide easement runs generally along the western and northern boundaries of the servient tenement and is shown on the attached plan coloured black and orange. The terms of the easement are important and I set them out in full.

"I, DOUGLAS JOHN CHESSELLS of Invergordon (called `the Grantor') being registered as the proprietor of an estate in fee simple in ALL THAT piece of land being the whole of the land more particularly described in Certificate of Title Volume 9714 Folio 220 in consideration of ONE DOLLAR DO HEREBY TRANSFER to GEORGE RUSCOE and MARGARET ANNE RUSCOE of Numurkah (called `the Grantees') their successors in title registered proprietor and proprietors for the time being of ALL THAT piece of land being the whole of the land more particularly described in Certificate of Title 9221 Folio 826 full right and liberty to them or their servants agents and workmen at all times hereafter. 1. To enter in and upon the land coloured [black and] orange on the plan annexed hereto and marked `A' (called `the said land') and to clear the said land of obstructions and to dig excavate and construct a water channel and waterworks for the purpose of water supply through in and upon the said land in such manner of such depth and nature as the Grantees or their successors in title may deem advisable and to use such channel and waterworks for all purposes of water supply and also to repair and alter the said channel and waterworks and also to deposit and place and allow to remain on or along the said land all earth gravel or other substance matter or thing which may be removed or excavated in clearing the said land or in the making or construction of the said channel or waterworks or in repairing or altering the same and also to go pass or repass for all purposes aforesaid either with or without machines plant and equipment through over and along the said land. 2. To construct a fence along part of or the whole of the boundary of the said easement shown with a broken line on the plan annexed hereto and marked A."

25. In 1988, Mr G.W. Chessells purchased the servient tenement from his brother and on 20 June 1989 he became registered proprietor of that land. He is the present owner and successor in title of Mr D.J. Chessells with respect to that land.

28. Following their purchase of the dominant tenement, the Ruscoes in late 1988 or early 1989 caused to be constructed along the easement a water supply channel to serve the dominant tenement. According to Mr G.W. Chessells, this channel was no more than four metres wide from the toe of each embankment except for part of the east/west alignment, which was approximately five to six metres wide. Then, about 12 months later, perhaps in early 1990, Mr G.W. Chessells had a new channel constructed running west, parallel to the southern boundary of the servient tenement, and then north towards the western boundary. This channel was constructed by Andrew Trevor Coulthard who told me that it was about five to six metres wide. It was connected to the north/south portion of the existing channel which had been constructed on behalf of the Ruscoes. This new channel is located on the land shown as coloured pink on the attached plan. The evidence showed that this new channel was about six to seven metres wide from toe to toe, with embankments not more than 450 mm above the natural surface level. It can be seen that this new channel does not run along the southern boundary for there is between it and this boundary a second water channel serving the servient tenement itself.

31. The Ruscoe channel running east/west was closed off at this time so that the water to the dominant tenement ran only along the Coulthard diversion. There was, on the evidence, some dispute as to whether this diversion was done at the behest of Mr Ruscoe or Mr G.W. Chessells and whether it was to be temporary or permanent. It is not necessary that I resolve these conflicts. It is sufficient that I find, as I do, that the Coulthard diversion was constructed and never closed off. In August 2000, Mr G.W. Chessells commenced to do this so as to return the channel to its original location. The Bikis commenced this proceeding to prevent this closure and on 21 September 2000 the parties consented to interlocutory orders keeping the Coulthard diversion open. The evidence shows, too, that the Bikis subsequently carried out work to the channel which has been upgraded and enlarged.

34. Finally, I should record that Mr G.W. Chessells has indicated a readiness to formalise the legal position of the Coulthard diversion by granting an easement over the strip of land 10 metres wide shown as coloured pink on the attached plan and by cancelling the easement over the strip of land shown as orange on the attached plan. This concession has substantially reduced the area of conflict between the parties.

38. It was not in dispute that, where there exists an easement over a servient tenement, the law will accord to the owner of the dominant tenement such secondary rights as are reasonably necessary for the enjoyment and continued existence of the primary rights conferred by that right[1]. Whether such a right is properly to be characterised as an implied right[2], an ancillary easement, a liberty or an appurtenance[3] is of little moment. The secondary right conferred by law will be limited to a right which is no greater than is reasonably necessary to make effectual the primary right granted by the easement[4]. In this context, "necessary" means "reasonably necessary". It is not a question of showing that the easement could not be enjoyed without the secondary right[5]; it will be sufficient if such enjoyment is, for practical purposes, precluded. Furthermore, the extent of the secondary right which the dominant tenant is permitted to enjoy will depend upon the terms of the grant itself. Any activity which the dominant tenant may wish to carry on on the servient tenement and which is lawful in terms of the grant must be accommodated[6]. This said, the requirement of reasonable necessity will not be satisfied by showing no more than that the suggested right would avoid inconvenience[7] or that it was reasonable or common in the district[8]. So, where the easement is to permit the dominant tenement to convey water by open channel over the servient tenement, as in the present case, this right will usually carry with it the secondary right to enter upon the servient tenement to carry out maintenance and repair work on the channel provided that this does not interfere with the right and enjoyment of the servient tenant to a greater extent than is reasonably necessary[9].

41. Notwithstanding some earlier uncertainties, counsel for Mr Biki, as the case unfolded, sought a declaration that his client and his client's workmen and machinery were entitled to enter upon that part of the servient tenement immediately adjacent to the easement reserve as may be reasonably necessary for carrying out repair, maintenance and alterations to the water channel within the easement reserve.

44. On behalf of Mr G.W. Chessells, this was resisted on the basis, first, that it was inconsistent with the terms of the express easement and, second, that, as a matter of fact, it was not necessary for Mr Biki to enter upon the servient tenement beyond the easement reserve in order to carry out this work.

49. The terms of the easement, which are set out at paragraph [7] above, show that there is no stipulated size of the water channel to be constructed: it may be of such depth and nature as the dominant tenant considers advisable. Furthermore, the terms of the grant permit the dominant tenant to enter upon the land reserved to repair and alter the said channel and for this purpose to bring machinery and plant on to the reserved strip of land. It was submitted, then, on behalf of Mr G.W. Chessells that, since the express grant provided for the right to carry out repairs and associated works, all within the 10-metre easement reserve, there could not be an ancillary right to carry out these functions beyond the reservation.

52. It is clear enough that the law will not create a secondary right of the kind under consideration where this is inconsistent with the primary right. Likewise, it cannot be necessary to create such a secondary right where this right is contained expressly in the easement itself. If the dominant tenant is permitted by an express grant to carry out repairs within the 10-metre easement reserve, it cannot be reasonably necessary for him to have access to the land beyond that easement for the same purpose. In the present case, Mr Biki sought to establish this necessity by showing that there was not in fact sufficient space within the easement reserve to bring in the necessary machinery and to carry out the repair work. The difficulty with this contention is that the decision as to the size of the channel and the consequent residual area left for the performance of maintenance work was, in terms of the grant, a matter for the dominant tenant or his predecessor in title. If he requires a four metre strip of the easement to carry out this repair work, he must construct the channel so as to leave this strip. As a matter of construction of this grant, there was no necessity for the law to grant secondary rights of the kind contended for.

55. Insofar as it is necessary or appropriate to have regard to the actual condition of the land at the time of the grant in order to determine the existence and extent of any ancillary right in 1987 when the easement was granted, there was no channel then constructed on the reserved strip of land. The condition of the land at that time did not dictate the size of the permitted water channel and the consequent width of the unused strip, so the secondary right cannot be inferred from the circumstances then existing.

58. I conclude therefore that, as things then stood at the time of the grant, the 10-metre strip was not insufficient, nor was there any reasonable likelihood that it would be insufficient, for the construction of both a water channel, as contemplated by the grant of easement, and the provision of access for maintenance and repair of the water channel. The suggested secondary right of access over the servient tenement outside the easement reserve is, therefore, not reasonably necessary for the enjoyment of the easement. Mr Biki's claim, therefore, must fail.

61. It is, therefore, unnecessary for me to enter upon the factual issue of whether Mr Biki has shown that it is not reasonably practicable for him to maintain and repair the water channel by carrying out this work within the 10-metre reserve and I do not do so.

64. I propose, therefore, that there be judgment for the firstnamed defendant with costs.

Plan forming part of Judgment [2002] VSC 501

[1] Jones v Pritchard [1908] 1 Ch 630; Prospect County Council v Cross (1990) 21 NSWLR 601.

[2] Hoy v Allerton [2001] QSC 440 at [27], per Atkinson J.

[3] Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 354-5.

[4] Blakesley v Whieldon [1841] EngR 1231; (1841) 1 Hare 176 at 180; [1841] EngR 1231; 66 ER 996 at 998, per Wigram VC.

[5] 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 at 508-9, per Hodgson CJ in Eq.

[6] Bowman v Taylor [1934] VicLawRp 9; [1934] VLR 34 at 41, per Lowe J.

[7] Kirkness v Lang (unreported, SC (NSW), 6 August 1992, BC9201700, at p. 20

[8] Pwllbach Colliery Co, Ltd v Woodman [1915] AC 634 at 643, per Lord Atkinson.

[9] Kirkness v Lang (unreported, SC (NSW), 6 August 1992, BC9201700, at p. 20.