Yes, unless the plaintiffs hold a licence required under of the Water Act 1912 or any other Act.
Question 3: Whether the written and/or alleged implied terms of the said Easement entitle the Plaintiffs to operate and maintain a pump shed and pump and electrical connections thereto on the Defendants' land for the purpose of pumping the water from the said Dam situate on the Defendants' land to the Plaintiffs' land by reason of the alleged ancillary rights reasonably necessary for the exercise and/or enjoyment of the Easement.
14 There was a considerable body of evidence going to the necessity to have the pump and associated shed adjacent to the dam or whether the pump house and pump could be placed on the dominant tenement and work effectively. What that evidence established was that if the pump were located on the dominant tenement, the model of the pump used to the present time would not be effective to draw water, and a deep well pump would be effective but not as convenient.
15 I should deal with the evidence of a Mr Alan Palmer, solicitor, which was given on the voir dire on the basis that if I considered it admissible it would be taken into evidence in the proceedings. Generally speaking that evidence was of the type which might be given in a professional negligence case. Insofar as it went to the question of the proper construction of the wording of the easement, in my view, it was inadmissible and is rejected. The proper construction of the easement must be determined by its words but having regard to the matrix of facts which would include the physical facts relating to the lands in question. I therefore reject that evidence.
16 I conclude that this question is easily determined by the fact that the easement is described as one for water and electricity. The easement for electricity extends to the same place or, in traditional terms, terminus as the water easement. There would be no purpose whatever in having an easement for electricity extending to the edge of the dam unless it were for the purpose of making power available to a pump to be sited at that edge. It is apparent therefore that the proper construction of the easement is to allow the operation and maintenance of the pump and pump shed and electrical connections on the servient tenement. In those circumstances it is really unnecessary to have regard to the objective ascertainable circumstances existing at the time of the grant, but circumstances such as the existence of the pump and shed at grant only go to support the construction I have reached. As to admissibility of such evidence see Perpetual Trustee Company Limited v Westfield Management Limited [2006] NSWCA 337 and particularly paragraphs 26-28.
17 The precipitant action of the defendants of removing the pump and shed was an unauthorised interference with the rights accorded to the plaintiffs under the easement.
Question 4: Whether the words "the Registered Proprietor of the servient Tenement will at all times cease irrigation from the Dam when the capacity thereof has been lowered to a level of four megalitres" form the subject matter of a grant of an easement, is appurtenant to the dominant tenement and amounts to a use of the land and runs with the land.
18 I have commented on the positioning of these words. I should add that their meaning is, in my view, perfectly clear. The purpose of the words was to ensure that the owner of the dominant tenement had a reasonably secure source of water. It may be that the words somewhat rephrased would be more appropriate for a restrictive covenant appurtenant to the easement - (Conveyancing Act 1919 s88AC) - but that is not the question for decision, which is whether they can form part of the subject matter of a grant.
19 The first thing to mention is that it is obvious that both the parties to the original grant, and to the variation, considered that the words had a meaning. The second matter to mention is that the same must apply to the defendants who negotiated amendments to the easement under the terms of their contract for the purchase of Lot 4. It is accepted by the parties that irrigation does not extend to use of water for stock watering or domestic use. The words on their face are not purely contractual as they refer to obligations of the registered proprietor or imposed restrictions on the use of the dam water by the registered proprietor of Lot 4. However, Ms Burke argued that they required positive action by the servient owner. I think this is incorrect. In ordinary expression ceasing to do something is not a positive act. On the other hand capacity referred to was obviously not intended to mean a lowering of the dam wall but intended to refer to the volume of water in the dam at a particular time. I consider that the words are intended to, and on proper construction do, relate to the extent of the grant by limiting the right in the servient tenement to joint use for all purposes when the dam level drops to a certain figure, thereby having the effect of prolonging the benefit of the easement by ensuring that the resource is not exhausted by excessive usage if the water volume falls. I consider it clear that the restriction is the same as would be brought about by the following words: