Powell v Langdon (1944) 45 SR (NSW) 136
Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605
Re Henderson's Conveyance [1940] 1 Ch 835
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Re Roseblade; Re Foenander [1964-5] NSWR 2044
Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Shelbina Pty Ltd v Richards [2009] NSWSC 1449
Swan v Sinclair [1924] 1 Ch 254
Tanlane Pty Limited v Moorebank Recyclers Pty. Limited [2008] NSWSC 1341
Tehidy Minerals Ltd v Norman [1971] 2 QB 528
Thorpe v Brumfitt (1873) LR 8 Ch App 650
Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Tujilo v Watts [2005] NSWSC 209
Ward v Ward (1852) 7 Ex 838
Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528
Williams v James (1867) LR 2 CP 577
Williams v Usherwood (1981) 45 P & CR 235
Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6
Texts Cited: Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia (2nd edn)
Butt P, Land Law (5th edn)
Cairns B, Australian Civil Procedure (5th edn)
Gale on Easements (17th and 18th edn)
Goddard on Easements (8th edn)
Category: Principal judgment
Parties: David James Effeney (Plaintiff)
Millar Investments Pty Ltd (First Defendant)
Caroline Balog (Second Defendant)
Wingecarribee Shire Council (Third Defendant)
Representation: D L Warren (Plaintiff)
B DeBuse (Third Defendant)
K A Garling (Plaintiff)
Garland Hawthorn Brahe (First Defendant)
Marsdens Law Group (Third Defendant)
File Number(s): 10/091577
[2]
Judgment
1HER HONOUR : The plaintiff (Dr David Effeney) is the registered owner of a property at Burradoo (to which I will refer as Lot 2). By summons filed on 14 April 2010, he seeks a declaration that an easement presently registered on the title of his land is not enforceable and/or that the easement be wholly extinguished.
2Following various subdivisions of the land comprising the original dominant and servient tenements, as at the commencement of these proceedings the easement (created by a deposited plan registered on 3 December 1990), benefited three separate parcels of land (Lot 20, owned by the first defendant, which is located on both sides of the Wingecarribee River; Lot 21, owned by the second defendant, which is on the western side of the river to the north of Lot 20; and Lot 19, owned by the third defendant, which is on the eastern side of the river adjoining Lot 2 along its northern boundary).
3By the time of the hearing the only party contesting the extinguishment of the easement was the third defendant (the Wingecarribee Shire Council). The second defendant (Ms Balog), whose land is not adjacent to Lot 2, filed a submitting appearance (except as to costs) on 27 September 2010 and has played no part in the proceedings. As to the first defendant, Millar Investments, the dispute as to the continuation of the easement over Lot 2 was resolved by agreement between the parties shortly prior to the hearing (as a result of which an easement over another part of Lot 2 is to be created for the benefit of Lot 20, the agreement in that regard being evidenced by an exchange of correspondence comprised in Exhibit 7). (Some of the affidavits that had been served by Millar Investments prior to the hearing, sworn by Mr Peter Bray and Mr George Hogge, respectively, were then read in the Council's case.)
4Counsel for Dr Effeney (Mr Warren) submits that in relation to Lot 19, the grant of the right of way, properly construed, is for the use of that lot only and that it is not permissible for the Council to use the right of way in order to gain access, through Lot 19, to other lots to the south or north of Lot 19. This is relevant in that the Council, in contending that the easement has not become obsolete and that it will suffer substantial injury if it is removed, points to the need for the right of way to be preserved in order to be able to use it in the future for maintenance or repair of areas beyond Lot 19. It is submitted by Mr Warren that use of the right of way in order to go across Lot 19 to other lots would be an impermissible and not lawful use of the easement and therefore that there would be utility (if the easement were not to be extinguished or modified) in there being a declaration that such use is in excess of the rights of the Council.
5Mr de Buse, appearing for the Council, objected to there being any such declaration in the absence of any application having been made for amendment to the Summons. Mr de Buse submitted that the Council was not in a position properly to consider its position in relation to, and the import of, any limitation on the use of the easement by virtue of such a declaration.
6A claim for declaratory relief was not ultimately pressed in argument before me and I have therefore proceeded on the basis that the relief sought is that contained in the Summons. However, I note that, of necessity in addressing the issues raised on the present application, I have considered the proper construction of the easement in question (having regard to what was said in Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528) and have expressed my view as to the permissible use of the easement (insofar as access beyond Lot 19 is concerned) on the proper construction of its terms.
Background
7The easement in question is a 10m wide "right of carriageway". It was created in December 1990 by the registration of an s 88B instrument (Deposited Plan 643913) burdening what was then Lot 12 in DP 64913 (a larger parcel of land of which Lot 2 then formed part), which was owned by Dr and Mrs Woolridge. The lots benefited by the easement at the time it was created were Lots 15 and 16 (those being further subdivided in 1995 to create Lots 17, 18 and 19 by registration of DP 850447 and Lots 17 and 18 subsequently becoming Lots 20 and 21 in DP 1034316). Lot 15 was immediately adjacent to Lot 12; Lot 16 was adjacent to Lot 15 but not adjacent to Lot 12. Therefore, access to or from Lot 16 by way of the easement always required access across Lot 15. (For convenience, I will generally refer to the various parcels of land by lot number. However, on occasion reference is made to the particular DP in order to avoid confusion between similarly numbered lots in different deposited plans.)
8The site of the easement is a strip of land which runs mostly in an east/west direction across Lot 2 but which, approaching the western boundary of Lot 2, turns north and leads to the north/western corner of the property. A simple map (not to scale and not purporting to be more than an indicative outline of the respective areas) illustrating the approximate position of the easement on Lot 2, certain features of the lot as it was in 2003 and the position of Lot 2 with respect to the adjacent lots, is attached as an appendix to these reasons.
9As noted earlier, the right of way over Lot 2 is described on the 88B instrument as a "right of carriageway". That short form description is to be read, by virtue of s 181A of the Conveyancing Act 1919 (NSW), as:
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 . (my emphasis)
10The fact that the instrument does not include the words "and across" after the words "to and from" is what gives rise to the issue as to whether the easement permits the Council, as owner of the dominant tenement, to use the right of way in order to travel across Lot 19 to adjacent land.
11The afternoon before the commencement of the hearing a view was conducted of the area over which the easement is situated, during which Counsel for the respective parties pointed to various features of the land and surrounding area (to which I will refer, as relevant, during the course of these reasons).
History of the successive subdivisions
12The present configuration and ownership of the various lots in question is a result of a number of subdivisions that took place in the Burradoo area over the period leading up to and after 1990 (the detail of which is set out in Dr Effeney's affidavit sworn 13 April 2010 and the respective deposited plans exhibited to his affidavit). As the history of the land usage is of relevance to the question whether the easement is now obsolete (or has been abandoned) it is necessary to summarise the changes to the configuration and use of the land in question.
13As at 1982, the land now owned by Dr Effeney (Lot 2) was part of a larger parcel of land (Lot 1 in DP 622701) to the eastern side of the Wingecarribee River through to Moss Vale Road. In June 1987, that parcel of land was subdivided, by the registration of DP 740903, into 3 main lots (Lots 10,11 and 12), the westernmost and largest lot being Lot 12 and the easternmost and smallest of the three being Lot 10, and a fourth (smaller) lot (Lot 13) being a 13m wide strip of land running along the whole of the western boundary of Lot 12 alongside the river. Lot 13 was transferred to the Council as part of the subdivision and dedicated as a public reserve. An easement to drain water across the northern boundary of each of Lots 10, 11 and 12 down to the western boundary of Lot 12 (but not across Lot 13) was created at that time, but no right of way burdening Lot 12 in favour of Lot 13 was created. Relevantly, therefore, at no time has Lot 13 (owned by the Council since the creation of the Lot in June 1987, some 3 and a half years before the creation of the subject right of way) had the benefit of a right of way over the area that is now Dr Effeney's land.
14In 1985, Dr and Mrs Woolridge acquired two lots of land, comprising 200 acres, on the western side of the Wingecarribee River (i.e. the opposite side to the then Lot 12), those being Lots 13 and 14 in DP 715209, from which they operated a horse stud, known as the Inverness Stud, for some years up until around 2007. (Lot 13 DP 715209 is not to be confused with Lot 13 in DP 740903, the latter being a relatively narrow strip of land located on the eastern side of the river and dedicated to the Council as a public reserve in 1987 as referred to above).
15In March 1987, Millar Investments acquired Lot 11 in DP 715209 (that having been part of the same subdivision by which Lots 13 and 14 in DP 715209 were created). That Lot 11 (to be distinguished from the Lot 11 in DP 740903 which is adjacent to Lot 12 at the eastern end of Lot 12) was comprised of two discrete parcels of land - part on the eastern side of the river and part on the western side of the river.
16Dr and Mrs Woolridge (jointly with Millar Investments) acquired Lot 12 at auction in July 1987 (they later acquired Millar's half share in that land in February 1988). As at that time, therefore, Dr and Mrs Woolridge owned two large parcels of land on the western side of the Wingecarribee River (Lots 13 and 14 in DP 715209); Millar Investments owned Lot 11 in DP 715209; the Woolridges and Millar Investments shared ownership of Lot 12; and the Council owned the public reserve on the strip of land (Lot 13) between Lot 12 on the eastern side of the river and Lot 14 on the western side of the river. Access to Lot 12 from the Woolridges' land across the Wingecarribee River was through Millar Investments' Lot 11.
17At the time of the sale by Millar Investments of its half interest in Lot 12 (in 1988) to Dr and Mrs Woolridge, agreement was reached for the grant by each of the Woolridges and Millar Investments of a right of way over their respective parcels of land (Lot 12 in DP 740903 and Lot 11 DP 715209) in favour of the other (thus formalising the right of the Woolridges to cross between Lot 14 on the western side of the river and Lot 12 on the eastern side of the river through Millar Investments' land).
18It was this agreement that ultimately led to the registration of DP 643913 on 3 December 1990, creating the right of way the subject of the present litigation. However, in the meantime, (by registration of DP 786728) Millar Investments had subdivided Lot 11 in DP 715209 into two further lots - Lot 15, part of which was adjacent to Lot 12 on the eastern side of the river and part of which was on the western side of the river, and Lot 16, which was adjacent to Lot 15 but not to Lot 12.
19The registration of DP 643913 burdened Lot 12 (owned by the Woolridges) with a right of way in favour of both Lots 15 and 16 in DP 786728 (owned by Millar Investments). On the same date the registration of DP 643911 burdened Lot 15 with a right of way in favour of Lot 12. (Presumably, the reason that there was no corresponding right of way burdening Lot 16 in favour of Lot 12, as was the case for Lot 15, was that it was not necessary for the Woolridges to cross through Lot 16 in order to have access to Lot 14.) There was no right of way burdening Lot 15 and benefiting Lot 16 that would allow the owner of the latter lot from time to time to cross Lot 15. (Therefore, the practical benefit of the easement granted in favour of Lot 16 over Lot 12 would seem to have been one subsisting only while Lots 15 and 16 remained in the same ownership.)
20Lots 17, 18 and 19 were later created by way of a subdivision in 1995 of Lots 15 and 16. That subdivision involved an area of approximately 1.176ha out of the initial Lot 11 in DP 715209 (which had formed part of Lot 16 DP 786728) becoming part of the parcel of land that (together with the previous Lot 15) became Lot 18 in DP 850447. The lot previously known as Lot 16 at the same time became Lot 17 (with the removal of the 1.176ha portion now forming part of Lot 18). As part of the condition of approval for this subdivision, Lot 19 was transferred to the Council and was dedicated as a public reserve.
21Lot 19 is a relatively narrow U-shaped strip of land (largely comprising a cycleway to which I will refer shortly), which meets Lot 13 (through which the cycleway continues to the south) at the north-western corner of Dr Effeney's property. Lot 19 proceeds from that north-western corner along the northern boundary of Dr Effeney's property and then turns first west and then south to complete the U shape. (Lot 19 does not adjoin Lot 2 along the western boundary of Lot 2 - that area being Lot 13.)
22As Dr Effeney explains, in his affidavit sworn 13 April 2010 at [32], Lot 19 is not burdened by the right of way that had been granted in favour of Lot 12 by DP 643911. Nor is there any right of way granted to the owners of Lot 17 or Lot 18 over the land that is now Lot 19. (Dr Effeney points out that the result of this is that while Lot 17 then had registered on its title a right of way over Lot 12, as created by DP 643913, it had no right of access to Lot 12 either through Lot 18 or through Lot 19; and that Lot 18 was in a similar position having no right of access through Lot 19.)
23Lot 18 (being the former Lot 16 and a small part of the former Lot 15 and being adjacent to Lot 12) was the subject of an unregistered lease from Millar Investments to the Woolridges from 1 August 1999 to 30 April 2005.
24Lot 17 (being most but not all of the former Lot and not adjacent to Lot 12) was transferred by Millar Investments to Setera Pty Limited on 10 July 1995 and then in due course to the second defendant (Ms Balog first acquired a joint interest in the land and then, in 2004, became the sole owner of the land).
25In 2001, there was a boundary adjustment (DP 1034316) between Lots 17 and 18, the former (owned by Ms Balog) then being designated as Lot 20 and the latter (still owned by Millar Investments) as Lot 21.
26In around 2007, Dr and Mrs Woolridge carried out a subdivision of their land on the eastern side of the river (i.e. Lot 12) in order to create what is now known as the Songline Place subdivision, as part of which Lot 2 (now owned by Dr Effeney) came to be created.
27As a result of the above, by the time of the present proceedings, the three lots benefited by the easement over Lot 2 (the former Lot 12) were those known as Lots 19, 20 and 21, those belonging variously to the three defendants to these proceedings (but, as noted earlier, the only party resisting the extinguishment of the easement was the Council as owner of Lot 19). The easement does not benefit (and never has benefited) Lot 13, which is also owned by the Council.
I dismiss the application by the plaintiff for extinguishment of the easement on the title to its land which burdens the land owned by the third defendant.
Pursuant to s 89(1)(a) of the Conveyancing Act 1919 (NSW), I order that the easement on the title of the plaintiff's land insofar as it burdens the land owned by the second defendant be extinguished.
254I will hear Counsel as to costs.
[3]
Map
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Decision last updated: 08 July 2011
Cycleway
28In 2002/2003, the Council built a 4.5km cycleway and walkway for public use, generally following the path of the Wingecarribee River from Moss Vale to Burradoo (known as the Burradoo-Moss Vale cycleway).
29Part of the land on which the cycleway is built (including Lot 13) as well as part of Lot 12 is a flood plain (and, as that description in terms suggests, prone to flooding, though the land was easily traversable and by no means a boggy swamp when I was there). (The Council's Parks and Property Manager, Mr Bowmer, annexed to his affidavit various photographs showing flooding in the area and over the cycleway.) The Council points to the flood prone character of the land both as to the potential for the need to repair the cycleway in due course and as to the likelihood that the use, or any development, of Lot 2 beyond a rural use will be limited.
30The circumstances in which the cycleway was built are relevant to the question of the use (if any) of the right of way by the Council over the period prior to the present proceedings and will be considered in that context later in these reasons. A major point of contention was as to whether the Council or its contractors had used the right of way (for access by concrete or other trucks) during the course of construction of the Burradoo-Moss Vale cycleway (this being the only time at which the Council suggests that any use was made by it of the right of way in the period from 1995, when it acquired Lot 19, to date). The Council says that during that period it laid road base (variously described as red bauxite or as crushed road base and concrete) along the right of way to permit access by trucks to the construction site (and that it took either 2 hours or, according to one witness, 2 days for the road base to be laid). During the view, I saw no evidence of road base on the area of the right of way that I was shown (nor, it must be said, was there evidence of road base in the area of the horse laneways that I was shown), though Mr McLean suggested that this was because the area appeared to have been graded (but there was no evidence as to this or as to what occurred when the fencing in the paddocks for the horse laneways was removed).
31Construction of that part of the Burradoo-Moss Vale cycleway that is adjacent to Dr Effeney's land (stage 2 of the project) occurred in around September 2002. (The Council received a written quotation dated 26 July 2002 from Seovic for the laying of the concrete and wrote a letter of acceptance of that quotation on 5 August 2002. An invoice was issued for that work on 30 September 2002.) The whole of the cycleway was finally completed in 2003.
32The construction process involved the creation of earthworks on the site, the delivery of concrete to the site, its reinforcement on the ground and it then being lifted up into place by use of a 'slipformer'. Further earthworks were then carried out by use of one or more bobcats. The method of construction was said to have been a conservative one designed to maximise the life of the concrete (and hence minimise the need for repair/maintenance).
Acquisition of Lot 2
33Dr Effeney acquired Lot 2 from Dr and Mrs Woolridge in November 2009. At the time, he was clearly aware of the easement (it was the subject of a special condition in the Contract for Sale, the vendors agreeing to assist in relation to its extinguishment) but says that he was not aware at the time of exchange of contracts that the Council had the benefit of the easement (T 28.7). Dr Effeney accepted in the witness box that he bought the land with the intention of seeking to extinguish the easement. (In the context of the sale, Dr and Mrs Woolridge provided a statutory declaration that the right of way had not been used by the first defendant while they owned the property - a matter disputed by the first defendant but which it is not necessary for present purposes to determine. No reference was made in the statutory declaration to the position of the Council.) Dr Effeney is currently using the land only to cut grass for silage (T 35). There was no evidence as to any proposed future use of the land.
34Shortly prior to the completion of the sale to Dr Effeney, agreement was reached (on 16 September 2009) between the Council and Millar Investments pursuant to which the latter was granted a licence to traverse the cycleway from its land (Lot 20) for purpose of moving livestock and vehicles (two crossing points being specified for particular purposes).
Features of the land and its use
35By way of further topographical information relevant to the current application, as I observed on the view Lot 2 slopes downwards to the Wingecarribee River and is on the eastern side of the river. Access is from the Songline Place subdivision. There are presently (and, though this is somewhat contentious, it seems that there were at the relevant time during the construction of the cycleway) two gates on the fence along the western fence boundary of Lot 2 - a white gate that is located on the western boundary opposite the Wingecarribee River and a wooden gate at the north-western corner of Lot 2. The former gate gives access onto Lot 13 (over a depression in the ground in which there are irrigation pipe outlets visible); the latter gives access to the intersection between Lots 13 and 19. (At the time of the view, both gates were inspected.) The white gate is not directly in the path of the right of way, the latter running down Songline Place. (The white gate is, however, at the end of what was formerly an east/west horse laneway and in a direct line to the octagonal crossing between laneways.)
36In around July 2002 part of the fencing was taken down (and then replaced) along the western boundary of Lot 2 (a section along the southern paddock to the south-west corner of the lot). There was a dispute between the Woolridges and the Council as to the type of fence that was installed at that time (it not being considered by the Woolridges to be suitable for the safety of their horses). The removal of this fence (which might otherwise have explained the discrepancy in the evidence as to how the Council says that access was gained through Lot 12 to Lot 13 for the purposes of construction of the cycleway) seems to have occurred prior to the laying of the concrete or the carrying out of the earthworks on that section of the cycleway (having regard to the date of the invoice issued for those fencing works and the fact that it refers to the works as having been installed). In evidence was a copy of a letter dated 11 June 2002 from the Council to the Woolridges referring to the installation of fencing on the common boundary between the horse stud and the Council recreation reserve (Lot 13), which advised them of the cost of "the fencing [that] has now been installed" as well as of the "relocation of the timber horse fence at the south western corner of the horse paddock complex", which work it was said "has now been finalised".
37Therefore as at June 2002 (before commencement of the cycleway construction) the portion of fencing on the border of the southern paddock (where an old windmill is located) had been completed and access could not have been possible to the cycleway construction site through that fence.
38There is also a question as to whether the gate at the north-western corner of the property had been moved (Mr de Buse pointing to a hole in the ground at the north-western corner that was said to have been where the gate post had formerly stood - though whether this was a corner gate post hole was itself disputed). The former manager of the Woolridges' horse stud (Mr Ross Bone) was adamant that the gate on the north western corner had not been removed (rather, the fence had been realigned) and he gave a physical demonstration in the witness box of the manner in which the fence had been realigned but the gate itself had remained as it was.
39Before the sale of Lot 2 to Dr Effeney, Dr and Mrs Woolridge had used that land in connection with their horse stud, the main operation of which was conducted from Lots 13 and 14 on the western side of the river (Mrs Woolridge referred in her evidence, as did Mr Bone, to the West Stud and East Stud respectively). The main breeding and foaling facilities were on the West Stud and the East Stud seems to have been used (certainly around the time of year that the cycleway construction works were carried out) to graze yearlings. Both Mrs Woolridge and Mr Bone gave evidence that the horses were never transported across the river but were transported between the respective studs by truck through the Songline Place access to Lot 12.
40The significance of this use of the land for present purposes is that Lot 12 was at that time divided by fences into a number of paddocks (one large paddock to the south and four smaller paddocks to the north) and there were fenced horse 'laneways' through which the horses were given access from time to time to various of the paddocks.
41For the purposes of the view, Dr Effeney had placed white flags along the course of the laneways to indicate what he understood to be their general location and had placed red flags to indicate the location of the right of way (as well as red flags to indicate an octagonal area at the junction of the laneways, opposite the white gate). Dr Effeney, in his 22 February 2011 affidavit, described how he had located and marked the right of way and cycleway and noted that part of the earlier north/south and east/west laneways had been obliterated by construction of a water retention pond required by the Council and Sydney Catchment as part of 2007 subdivision.
42Although it was not conceded by the Council that these were accurate markers, there did not seem to be any real dispute that the flags gave a general indication of the location of the horse laneways (and, indeed, the photographs tendered from Google Earth support this). (The right of way itself is indicated on the relevant deposited plan.)
43Opposite the white gate at the western boundary, in the middle of the area formerly occupied by the four smaller horse paddocks, there had been an octagonal area with double gates (2.4m wide) at each of four access points, through which horses could be taken from the laneways through the gates to particular paddocks. (Although some witnesses referred to a single gate, I accept the evidence of Mr Bone and Mrs Woolridge in that regard, as they are the persons likely to have been most familiar with, and have the best recollection of, the workings of the horse laneways).
44It is Dr Effeney's contention that the right of way could not physically have been used as the Council contends it was during the construction of the cycleway while the layout of the paddocks was as the Woolridges had used them for the horse stud. This is supported by the evidence of Mrs Woolridge and Mr Bone, in that they say that the gates on the western boundary fence opened only onto the laneways and not into the paddocks themselves (whereas the right of way crosses the paddocks). In other words, during the period that the fenced horse laneways were in existence, access from inside the paddocks to either Lot 19 or Lot 13 was possible only by going back through the octagonal gate to a horse laneway leading to one of those boundary gates.
45Immediately outside the white gate was an area in which there were irrigation pipe outlets. Mrs Woolridge said that in about 1988 or 1989, an irrigator pump was placed on a concrete slab outside the white gate (T 43). (Mrs Woolridge gave evidence that she could not imagine that one could drive over the concrete slab - T 43). The location of the irrigator pump was confirmed by Mr Bone whose evidence was that there could not readily have been access through the white gate to Lot 13 without moving the (heavy) irrigation pump that was then in place. That said, Mr Bone also volunteered that the pump had been moved at some time before the construction of the cycleway and not replaced. Therefore, it would not have precluded access through the white gate (to anyone moving along the east/west laneway).
46Mr Bone also gave evidence that four concrete slabs had been placed in the area of the east/west laneway in order to block access to the white gate when the irrigation pump was there (and it is not clear whether they had been moved at the time of construction of the cycleway, though they are not there now). Again, this is relevant to the use that is said by Council to have been made of the right of way during the period of construction of the cycleway.
Grounds on which extinguishment of easement is sought
47Dr Effeney seeks the extinguishment of the easement on the grounds that:
(i) it has been abandoned (relying largely on the deeming provision contained in s 89(1A) of the Conveyancing Act 1919 (NSW)) (the 89(1)(b) abandonment ground);
(ii) it is obsolete and serves no presently useful purpose (this was put by reference to the following: first, the changing character of the neighbourhood - from that of rural to semi-rural or hobby-farm use; second, that no reasonable use of the land is possible unless the easement is modified or extinguished (although this contention was largely abandoned during submissions); and, third, by reference to the circumstance, if it be held to be the case, that the easement on its proper construction does not permit access other than for the purposes of Lot 19) (the 89(1)(a) obsolescence ground); and
(iii) there will be no substantial injury to the Council by its extinguishment (the 89(1)(c) lack of substantial injury ground).
48It was accepted that even if one or more of the grounds for extinguishment is made out, there is still a discretion as to whether the easement should be extinguished ( Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18, 099 per Mason P at [2]; Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321 per Slattery J at [59]).
49Although it was conceded that the statutory power to modify the easement does not permit the Court, in effect, to relocate the easement to another (perhaps more suitable) part of the land, it was submitted by Mr Warren that the same result might be able to be achieved (novel though it was conceded this would be) by extinguishing the easement subject to a condition in relation to the grant of an alternative easement at a different location on the property.
50The Council opposes the extinguishment of the right of way. Apart from its denial that the basis for any application of the deeming provision (i.e. 20 years' non-use) has been (or had, as at the time the proceedings were commenced, been) established, it is submitted by the Council that the right of way has not in fact been abandoned; that the continuation of the right of way is necessary and continues to serve a useful purpose (and hence the easement is not obsolete) to enable access to the cycleway (though Council considers that such access is not limited just to that part located within Lot 19) for the purpose of maintenance and repairs or for emergency access; and that extinguishment of the easement would cause a substantial risk of injury.
51The Council maintains that it cannot use (or cannot as cost-effectively use) other means of access to the cycleway due to the fact that trucks from the south cannot drive across Bong Bong Common (as it is an archaeological site) and that access from the north would be at the risk of damaging the concrete or otherwise more expensive. Dr Effeney contends that the Council does have a means of access to the cycleway from Phillip Street, Burradoo (although it is conceded that this access has not yet been formed and developed to permit use by trucks) and that this is a circumstance to be taken into account when deciding if the easement should be extinguished. The Council further maintains that access otherwise than through Dr Effeney's land would be inefficient (by which I understand the Council's witnesses really to be saying that such alternative access would be more expensive). It was asserted by one of the Council's witnesses (though it seemed to me to be a rather broad submission without being linked to particular evidence) that if the easement were to be extinguished then the Council would not be able to maintain the cycleway and it would have to be closed. (I would simply comment that the evidence did not suggest that a thorough review had been made of alternative options in this regard.)
52Finally, by way of comment at the outset of these reasons, in my view the most sensible solution to the current dispute would be to relocate the easement to the side of Dr Effeney's property (down what is the former horse laneway on the northern boundary of the property), as I understand has been the result of the agreement now reached with Millar Investments. I am, of course, not privy to the reason why any such arrangement could not be agreed between Dr Effeney and the Council. Although I encouraged the parties (when reserving my judgment) to give consideration to a resolution of the dispute along such lines, I can only assume that no such accommodation has been attempted or reached. Nevertheless, if what the Council in fact requires is access to more than Lot 19 alone for the purpose of repair and maintenance of the cycleway (an important public asset) and the right of way does not, as properly construed, permit this, then it would seem in all parties' interests to reach agreement as to the substitution of an alternative easement that would clearly permit the Council to have the access it seeks to areas along the cycleway beyond Lot 19 (and to remove the disadvantage that there presumably is for Dr Effeney in relation to the current location of the easement).
Legal Principles
53Section 89(1) of the Conveyancing Act confers power on the Court to modify or extinguish an easement. As noted by Slattery J in Rosedale (where his Honour helpfully summarises the principles applicable in relation to the exercise of that power, which summary I gratefully adopt in these reasons), s 89(1) creates an important statutory qualification to the common law rights of the owner of an easement.
54Section 89 provides:
89 Power of Court to modify or extinguish easements, profits prendre and certain covenants
(1) Where land is subject to an easement or a profit prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit prendre, restriction or obligation upon being satisfied:
(a) that by reason of change in the user of any land having the benefit of the easement, profit prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or
(b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit prendre or the benefit of the restriction is annexed, have agreed to the easement, profit prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit prendre wholly or in part or waived the benefit of the restriction wholly or in part,
(b1) in the case of an obligation:
(i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation's being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or
(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or
(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit prendre, or to the benefit of the restriction or obligation.
(1A) For the purposes of subsection (1) (b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.
55As noted by his Honour at [58] in Rosedale :
Conveyancing Act s 89(1) is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting the common law property rights. The starting point for the Court's consideration is the easement itself, its terms and its objects derived from construing those terms in context and bearing in mind that the easement was created for an indefinite future and destined to endure in a changing environment: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at [47]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [4].
56In considering the exercise of power under s 89 of the Act, "the widest field of evidentiary material" is admissible ( Re Roseblade; Re Foenander [1964-5] NSWR 2044 Else Mitchell J (at p 2046); Markos v. OR Autor Pty. Limited [2007] NSWSC 81 per Austin J at [90]).
57For present purposes, there are five issues to be determined:
(i) What is the proper construction of the easement?
(ii) Does s 89(1A) apply to deem the easement to have been abandoned and, if not, has it otherwise been abandoned for the purposes of the common law test of abandonment?
(iii) Is the easement now obsolete?
(iv) Would extinguishment of the easement cause substantial injury to the Council?
(v) If one or other of the circumstances set out in s 89 is satisfied, should the discretion be granted in favour of the exercise of power to extinguish the easement?
Summary
58In summary, for the reasons set out below, I am not satisfied that the right of way has been intentionally abandoned by the Council; further, while I find that the Council has not used the right of way along its actual path (other than at most a small part of the right of way at the Songline Place entry to the land) since its creation, I consider that the use by the Council's contractors of an access path through the horse laneways (in circumstances where ready access to the right of way was blocked by the improvements placed on the land) is such as to warrant the refusal of an order for extinguishment of the easement even if there has been a deemed abandonment of the actual right of way by reference to its non-use for a 20 year period (the doubt as to the possible user of that part of the easement off Songline Place meaning that I am unable to make a finding of deemed non-user); and I am not satisfied that the right of way is obsolete or that the Council would not be at risk of substantial injury (even if in none other than in economic terms) if the right of way were to be extinguished.
59Nor am I persuaded that it is appropriate (notwithstanding that I am firmly of the view that this would be the sensible result) for me to impose on the parties a relocation of the easement by granting the relief sought subject to the creation of an alternative easement. That would seem to me to be, in substance, a modification of the easement outside the Court's statutory powers. Therefore, while I have every sympathy for the proposition that the right of way should be relocated so as to permit use by the Council if and when that may be necessary for cycleway repair/maintenance purposes (both within Lot 19 and outside its confines) but without hindering the reasonable use by Dr Effeney of the land (whatever that might ultimately be), I can do no more than once again encourage the parties to explore a sensible consensual arrangement of that kind.
Issues
(i) Construction of the terms of the easement
60The issue in relation to the construction of the terms of the easement in the present case (as expanded by reference to s 181A of the Conveyancing Act ) is whether the easement permits the Council (as it maintains it is able to do) to use the right of way in order to gain access not simply to Lot 19 but also through or across Lot 19 to Lot 13 or to the lots to the north of Lot 19 (for the purpose of repair or maintenance of the cycleway or otherwise).
61As noted earlier, the easement permits the owner of the dominant tenement (the Council) to "pass and repass at all times ...... both to and from the said dominant tenement or any such part thereof". Neither the words of the grant as they appear on the registered instrument nor the words as incorporated in the grant by reference to s 181A include specific reference to the right to passage "across" the dominant tenement to another parcel of land.
62In Westfield, the High Court considered the terms of an easement conferring a right of way by means of a vehicular ramp under the servient tenement (on which there was a multi-storey building in the central business district in Sydney - the Glasshouse) in favour of the dominant tenement (on which was erected another multi-storey commercial building - Skygarden). The opening words of which easement (set out in [15] of the judgment) were as follows:
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 . (emphasis in original)
63The High Court noted the affinity between this form of words and that appearing in s 181A of the Conveyancing Act (which I have extracted above), but also that the meaning given to the expression "right of carriageway" by the statute may be varied by the instrument in which it is used (s 181A(3)). There was, however, a distinction between the terms of the easement in that case and the words otherwise read in by the statute, as discussed in [17] of the judgment:
[17] The phrases "to go, pass and repass at all times and for all purposes ... to and from the said dominant tenement ['lots benefited'] or any such part thereof" 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 is apt to describe entry from King St, 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).
64The High Court expressed its agreement with the following observation made by Hodgson JA in the Court of Appeal at [65]:
Although the words 'to and from [the dominant tenement] or any such part thereof' 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 in original)
65Pausing there, in the present case, unlike in Westfield , there is no reference in the terms of the easement to travel from the dominant tenement "across" the servient tenement. However, the terminology of the Westfield easement is otherwise relevantly on all fours with that of the subject easement.
66At [30]-[32], Hodgson JA had referred to three principles as relevant when determining whether certain use of the servient tenement is authorised by an easement:
First, there is the principle that, for a grant of an easement to bind the servient tenement rather than merely to operate as between the parties, the use authorised must be such as to benefit the dominant tenement: Attorney-General v Horner (No 2) [1913] 2 Ch 140 at 196; Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 at 579-80 and 591.
Second, there is the principle of the law of nuisance that unreasonable use of land causing unreasonable damage to other land is actionable nuisance; so that even though a use of the servient tenement may otherwise be within what was granted by the easement, if this use is carried out unreasonably so as to cause unreasonable damage to the servient tenement, it may be restrained as a nuisance. This was an alternative ground on which relief was granted in Todrick both at first instance and on appeal; and sometimes it is not entirely clear whether the Court is acting on this principle or acting on a construction of the grant as to what use was authorised by it.
Third, there is the rule that, if there is ambiguity in an instrument granting an easement, the instrument will be construed against the grantor. However, I agree with the primary judge that this rule is one of last resort: see para [5] of his judgment.
67In the Westfield case, emphasis was placed by Westfield on the phrase contained in the Instrument "for all purposes". The High Court had regard to cases in which the phrase "for all purposes" in the grant of a right of way had been considered ( Thorpe v Brumfitt (1873) LR 8 Ch App 650 and Peacock v Custins [2002] 1 WLR 1815; [2001] 2 All ER 827), noting that the decision in Thorpe was of significance, inter alia, in that 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" (at [21]).
68The High Court was of the view that 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. Their Honours added that if the construction of the Instrument urged by Westfield were to be 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 as to 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 also being the owner of the other parcels of land to which access from Skygarden might thereby be obtained).
69The High Court noted the statement in Gale on Easements (17 th edn (2002) at 334 [9-27] that "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" and the analysis of the English authorities that there followed, adopting the analysis in Gale on Easements of the judgment in Harris v Flower (1904) 74 LJ Ch 127 (that the excessive user by which it was attempted to impose an additional burden on the servient tenement there consisted in the use of a right of way for obtaining access to buildings erected partly on the land to which the right of way was appurtenant and partly on other land).
70Their Honours emphasised (at [29]) 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" but said that it did provide a starting point for consideration of the terms of any particular grant. Their Honours also emphasised the importance, in litigation regarding title to land under the Torrens system, of the principle of indefeasibility expounded in Breskvar v Wall (1971) 126 CLR 376 (referring also to Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245 at 264 [26]-[27]). In relation to the question of extrinsic evidence in the construction of a registered easement, at [39] the High Court said:
...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. (footnote omitted)
71Evidence to establish the intentions and expectations or contemplation of the parties to the Instrument respecting the development of an area in the central business district of Sydney at the time of the grant of the easement was not said to be admissible in construing the grant.
72Reliance is placed by Mr Warren on Westfield (and also Shelbina Pty Ltd v Richards [2009] NSWSC 1449) to support the proposition that the terms of the right of way granted in favour of Lot 19 would not permit the Council to use its right of access over Lot 2 in order then to obtain access through to Lot 13 to the south or to the areas of the cycleway to the north of Lot 19 (referring also to Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324).
73In response, Mr de Buse, though accepting that the grant of the easement recorded in the 1990 instrument does not use the word 'across', notes that it conferred the benefit of the right of way on both Lot 15 and Lot 16 (the relevant lot numbering at that time) and that, in order to have access from the servient tenement to Lot 16, it was necessary to pass across Lot 15. It was submitted that therefore the right of way must have contemplated the owner of Lot 16 being permitted to use the right of way in order to travel across Lot 15 in order to reach Lot 16 and that this would have been obvious to anyone inspecting the register at the time. The Westfield decision is therefore said to be distinguishable on the basis that the terms of the instrument in the present case convey a variation in meaning to the words used and considered in Westfield.
74I note that in Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54, White J considered the question as to the use of extrinsic material in order to construe the terms of a registered easement, noting (at [33]) that prior to the Westfield decision it was commonly accepted that even an easement granted under the Torrens system should be construed having regard to all material objective facts at the time of the grant (citing Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia (2 nd edn) at [6.7]; Butt P, Land Law (5 th edn) at [1,693]-[1697]).
75His Honour considered that where there was a bare grant of a right (such as in Powell v Langdon (1944) 45 SR (NSW) 136, to which reference had been made without disapproval in Westfield ), Westfield would not preclude recourse to all of the objective matrix of facts bearing on the construction of the instrument)at [35]), suggesting at [37] that the reason that different principles might apply in that context may be one of necessity:
... In the case of a bare grant, if ambiguities cannot be resolved by recourse only to the text of the registered instrument and plan, the person proposing to buy, or to deal with, registered land is necessarily thrown back to an examination of the extrinsic circumstances to see the extent of the rights which have been conferred on the owner of the dominant tenement.
76Nevertheless, his Honour considered that he was bound to apply the statement of principle appearing at [15] - [16] of the Court of Appeal in Sertari, to the effect that the only matters to which it is legitimate to have regard in construing an instrument of this kind registered under the Real Property Act 1900 (NSW) are the folio identifiers, the registered instrument, the deposited plans and the physical characteristics of the tenements.
77It is submitted by Mr de Buse that if the proper construction of the expression used in the 1990 instrument is that it includes by necessary implication an easement to carry persons who are to travel 'across' Lot 15 in order to reach Lot 16, then necessarily it means that the easement permits travel across Lot 19 (which was carved out of Lot 15) and thus it is said that there could in those circumstances be no objection to use of the easement to enable (for example) concrete trucks to cross Lot 19 in order to travel to other lots if that be necessary for maintenance of the cycleway on those other lots.
78That seems to give rise to the kind of question that it was not necessary for the High Court to determine in Westfield , namely whether a grant in those terms would be appurtenant to the particular lot (in the sense that the right to travel across over Lot 15 to Lot 16 could be said to be an ancillary right necessary for the enjoyment of the rights expressly granted to Lot 15) or "be but a personal advantage" accruing to the present owner of the relevant lot.
79Even if the grant in favour of Lot 16 could be said implicitly to confer a right to use the easement in order for the owner of Lot 16 to cross over Lot 15, that does not seem to me to be a right appurtenant to Lot 15. It does not seem to be necessary for the enjoyment of the right in favour of Lot 15 that the owner of that lot be permitted to use the easement in order to gain access to lots beyond Lot 15 (including that of Lot 16), such that once the ownership of those lots passed into different hands there would be no reason to suppose that the owner of Lot 15 would continue to have a right to use the easement over Lot 12 to travel across Lot 15 for the purpose of access to other lots. Even of the grant in favour of Lot 15 did carry with it the implicit right to use the easement to cross into Lot 16 (by reason of the grant of the easement in favour of Lot 16) it is difficult to see how it could be said that the same process of construction leads to the grant being construed as extending to a right to gain access to Lot 13 (which was never the subject of any right of way burdening Lot 2). In order to maintain that argument, the Council is thus forced to rely on the character of Lot 13 as a public reserve.
80Reference was made to the judgment of Sir Robert Megarry V-C in Nickerson v Barraclough & ors [1979] 3 All ER 312; 3 WLR 562, where the Vice-Chancellor considered the "so-called" rule in Harris v Flower and the view that had been expressed that "although the general rule was that the grant of a right of way to reach plot A cannot be used as a means of access to plot B, which lies beyond, this rule would not apply if, at the time of the grant, plot A forms a means of access to plot B", giving by way of example the following situation (at [324]):
Let me take as an example a case where plot A consists of a footpath some three feet wide and a hundred yards long, running from land near a public highway up to plot B. If there is an express grant of a right of way to plot A over land which lies between plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means of access to plot A for the purposes for which plot A is used, namely, as a means of access to plot B. In the result, the way can be used as a means of access to plot B via plot A, notwithstanding Harris v Flower . If plot A is not used as an actual means of access to plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply.
81However, it cannot be said that there was an access way between Lot 19 and Lot 13 prior to the grant or that there was an area used in this way to gain access from the area that was Lot 15 to any public area. Moreover, Nickerson was overturned on appeal ([1981] 1 Ch 426 at [444]).
82Construing the right of way by reference to the registered instrument, the deposited plans and the location of the respective parcels of land, it seems to me that the reasoning in Westfield is equally apt to the facts of the present case - had the parties intended that the right granted to the owner from time to time of Lot 15 should extend to going across that land to have access to Lot 13 (then a public reserve) or to any other land that the owner of Lot 15 might own, this could have been stated in the instrument creating the easement. Significantly, had it been the intention that the easement noted on the title of the freshly created Lot 19 by registration of the relevant Deposited Plan 643913 should permit the owner to go across Lot 19 to that or other areas of land, then it could easily have been identified as having done so.
83I am not satisfied that either the circumstance that the easement initially benefited both Lots 15 and Lot 16, or the public nature of the land in Lot 13, leads to a construction of the easement in favour of Lot 19 as extending to an easement to pass across Lot 19 either to Lot 13 or to the lots to the north of Lot 19. (This has implications as to the present utility of the easement and as to the injury that would be sustained by its extinguishment.)
(ii) Abandonment?
84In Gale on Easements (18th edn) the learned authors (at [12-99]) cite the following dicta of Silber J in Odey v Barber [2006] EWHC 3109 (Ch) at [103] as a helpful summary of the principles to be applied by the courts when considering whether (at common law) a right of way has been abandoned:
(a)whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;
(b)abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement; (emphasis in original)
(c)abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;
(d)non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.
85At [12-66], the authors outline that the "true rule" in relation to abandonment of easements such as rights of carriageway is that "mere non-user without more, however long, cannot amount to abandonment" (citing, inter alia, Benn v Hardinge (1992) 66 P & CR 246; Ward v Ward (1852) 7 Ex 838 at [839]) and state that "such non-user is evidence from which abandonment may be inferred but must be regarded in the context of the circumstances as a whole" (citing Swan v Sinclair [1924] 1 Ch 254 at [274] per Sargant LJ, his Lordship in turn citing Goddard on Easements (8th edn) at p 521).
86At [67] in Rosedale , Slattery J summarised the principles applicable where extinguishment of an easement is sought pursuant to s 89(1)(b) of the Act, as follows:
...The mere circumstance that an easement was noted on the register when land under the Real Property Act passed to a new registered proprietor would not furnish a reason for refusing as a matter of discretion to make an order under s 89(1) or s 89(3): Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. The relevant principles in relation to abandonment of easements in relation to the exercise of Conveyancing Act s 89 jurisdiction are the following:
(a) abandonment occurs both at common law and under the Conveyancing Act when the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement, though it is not to be lightly inferred: Grill v Hockey (1991) 5 BPR 11,421 and Williams v Usherwood (1981) 45 P & Cr 235, 256;
(b) one must look for evidence that there has been an implied (or lost) modern deed of release of the easement - long non-use would be good evidence but would not necessarily be sufficient to establish abandonment: Swan v Sinclair [1925] AC 227, Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 and Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605; and,
(c) the longer the period of non-user the more readily the conclusion will be reached that the beneficiaries of the rights of way may be deemed to have abandoned it: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, per Walsh J at 288.
Abandonment at common law?
87Leaving aside the potential operation of the deeming provision for the moment, it is difficult to see that abandonment could be established on the facts of this case. The Council (as dominant owner) has hardly made it clear that no use will be made of the easement - at most it has not used, and has not had cause to use, the easement for a period of time (the length of which is disputed). When the issue was raised with it, Council made clear its intention to maintain an easement (though the evidence suggests that it was prepared at least at one stage to consent to a modification of the easement - when this was a matter in discussion between Millar Investments and the Woolridges prior to the sale to Dr Effeney).
88In Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554, Gzell J considered the question of abandonment (as well as obsolescence) of an easement to give access to the rear of buildings on two sites having a frontage to The Boulevarde at Punchbowl. His Honour adopted the discussion of the principles in relation to the abandonment of easements (in the context of s 89(1)(b) of the Conveyancing Act ) contained in the judgment of Austin J in Long v Michie [2003] NSWSC 233.
89At [19], his Honour noted what had been said by Buckley LJ in Gotobed v Pridmore (1970) 115 SJ 78, and cited with approval by the Court of Appeal in Williams v Usherwood (1981) 45 P & CR 235 at 256, that being:
To establish abandonment the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title should thereafter make use of the easement. The circumstances might be that he was estopped from denying such an intention. Abandonment was not to be lightly inferred. Owners of property did not normally wish to divest themselves of it unless it was to their advantage notwithstanding that they might have no present use for it.
90His Honour also referred to what was said by the Court of Appeal in Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at 553:
Abandonment of an easement or of a profit prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.
noting that this approach had been adopted by Powell J in Guth v Robinson (1977) 1 BPR 9209 at [9214] and by Needham J in Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 at 617.
91In Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, to which Slattery J referred in Rosedale , Mason J (as his Honour then was) noted that "mere non-user", even for a long period of time, did not necessarily indicate an intention to abandon:
It has been said, for instance, that mere non-user of a right of way the subject of a grant, even for a long period of time, does not necessarily indicate an intention to abandon (Ward v Ward (1852) 7 Ex 838 (115 ER 1189)). Non-user may be referable to the absence of a need to use the right of way and the use of an alternative and more attractive means of access; then it may be thought that the non-user indicates, not so much an intention to abandon the right of way, as a preference for the alternative means of access so long as it remains available.
92In the Court of Appeal in Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80, Tobias JA noted that where both tenements are under common law title the Court, in considering the question of abandonment, could have regard to the acts and omissions of the persons who have owned the dominant tenement since the easement was created but expressed the opinion that it was not clear that the position is the same when the titles are under the Real Property Act, suggesting that Treweeke and Pieper v Edwards (1982) NSW ConvR 56-060 may leave open the question whether it is necessary, when the dominant tenement is under the Real Property Act , to establish that the current registered proprietor, as one of the persons for the time being entitled, has also abandoned the easement. Here, the focus has been on whether the current registered proprietor has abandoned the easement so the issue raised by Tobias JA does not arise. The Council does, however, maintain that insofar as it did not receive the benefit of the easement until 1995 it can rely on the prior use by Millar Investments of the easement.
93The evidence does not establish any clear or fixed intention (whether on the part of Millar Investments or on the part of the Council) to abandon any future use of the right of way. The evidence (though disputed by Mr Bone as to use by Millar Investments' employees during non-flood periods) seems to establish at the very least that at the time of a June 1987 flood access through part of Lot 12 was used by Millar Investments to move cattle to higher ground (although the route taken for that purpose was not clear). As for the Council, even assuming that there was no use of the easement at the time of construction of the cycleway (which is a matter hotly in contention and which I will address shortly), it seems unlikely on the principles espoused in Treweeke that the fact that the Council has not needed to make use of the easement to rate would amount to abandonment at common law.
Does the deeming provision apply?
94The question then is whether s 89(1A) operates to deem the easement to have been abandoned. That provision was introduced into the legislation in order to deal with the difficulties encountered in establishing abandonment at common law. The explanatory memorandum for the Real Property and Conveyancing Legislation Amendment Bill 2009, which provided for the introduction of s 89(1A), noted that one of the objects of the bill was to facilitate the removal of abandoned easements.
95As a preliminary point the question is whether the section can be invoked at all in proceedings commenced less than 20 years after the easement was created. Although Lot 19 only obtained the benefit of the easement in 1995, the right of way was initially created by Deposited Plan 643913 on 3 December 1990. However, the summons was filed on 14 April 1990 (less than 20 years after the easement was created). The Council contends, in effect, that Dr Effeney commenced these proceedings some 8 months too soon - on the basis that an application for extinguishment or modification of an easement for the purposes of the deeming provision in s 89(1A) is 'made' when the summons is filed.
96Mr de Buse thus submits that a 20 year period of non-use cannot be established in this case as giving rise to a deemed abandonment, irrespective of what findings might be made in relation to the use of the land by the Council during the construction of the cycleway.
97For Dr Effeney it is submitted that the application is made when the applicant moves on the originating process at the hearing (which was over 20 years since the creation of the easement in 1990).
98Little light is shed on that issue by the explanatory memorandum issued in relation to the bill that introduced this provision. It describes the provision simply as being that an easement "may be treated as abandoned (for the purposes of allowing the Court to modify or extinguish the easement under section 89 on the application of any person interested in the relevant land) if the Court is satisfied that the easement has not been used for at least 20 years before the application under section 89 is made".
99The relevant part of the Second Reading Speech provides as follows:
The Bill proposes to amend the section of the Conveyancing Act 1919 that deals with abandoned easements. As I have previously explained easements that have not been used for at least 20 years may be considered to be abandoned. Under section 49 of the Real Property Act 1900 a person may apply to have the easement be removed from the Register if it can be proven that the easement is abandoned. As it has proven almost impossible to establish abandonment according to the complex rules that apply at common law this provision provides a simplified statutory basis for abandonment of easements. As such the provision allows a practical means of removing from the register notifications of easements that are no longer relevant to the land.
However should someone dispute an application to the Registrar General for abandonment of easement then this issue is dealt with by the Supreme Court under section 89 of the Conveyancing Act 1919 and not section 49 of the Real Property Act 1900. In the small number of cases that have been litigated under section 89 of the Conveyancing Act 1919 it has become apparent that there is a conflict between section 49 of the Real Property Act and section 89 of the Conveyancing Act 1919.
In adjudicating on a disputed application for abandonment of easement the Supreme Court under section 89 of the Conveyancing Act 1919 applies the common law rules of abandonment that require an applicant to establish that the owner of the easement "intended" to abandon the easement. The difficulties in supplying such evidence to the Court make it almost impossible for an applicant seeking abandonment to succeed. This difficulty was part of the reason for the introduction of the objective test of 20 years non-use that is applied in section 49. Accordingly it is also proposed to remove the inconsistency between the two sections by providing that the Court may apply the same criteria as that applied by the Registrar General under section 49 of the Real Property Act. This may be achieved by providing in section 89 of the Conveyancing Act 1900 that where an application is made to the Court for an order extinguishing an easement abandonment may be inferred if the Court is satisfied that the easement has not been used for at least 20 years . (my emphasis)
100If s 89(1A) had referred to the commencement of proceedings or the filing of an application for the requisite order, then the position would be clear. It has been held that a proceeding is commenced once the steps prescribed in the court's rules for its commencement are completed ( Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15). That occurs in New South Wales when the originating process is filed (Rule 6.2(1) of the Uniform Civil Procedure Rules 2005 ).
101In Gower , in the context of limitation periods and the rules there applicable, McPherson J stated at [23]:
Section 10(1) of the Limitation of Actions Act 1974-1981 speaks of an action being "brought" within a specified time. No one in this matter questions that an action is brought when it is commenced, and that it is commenced when the writ issues. That is implicit in O.2, r.1, which provides that "causes ... in the Supreme Court may be commenced by writ of summons ... Causes commenced by writ of summons are called actions". When, then, is the writ issued and action commenced? The answer is that it is commenced when the writ has been "signed and sealed by the proper officer". It is "thereupon ... deemed to be issued": O.7, r.1.
102Similarly, in Australian Civil Procedure (5 th edn), Bernard Cairns states (at p 79) that a "proceeding is commenced when the originating process is issued by the registry of the court".
103In Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 , Bell JA (as her Honour then was) observed (at [9]) that the "bringing or commencement of proceedings is a procedural matter that is dealt with by the rules of court" (citing Rule 6.2 of the Uniform Civil Procedure Rules ). Her Honour further noted that:
The same obtains in Queensland under r 8 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR (Qld)). In Cameron v National Mutual Life Assn of Australasia Ltd (No 2) [1992] 1 Qd R 133 at 136 McPherson SPJ observed that for the purposes of s 10(1) of the Limitation of Actions Act (Qld) an action is brought when a writ is issued, or more specifically, when it is sealed.
In Ketteman v Hansel Properties Ltd [ 1987] 1 AC 189 at 200 Lord Keith of Kinkel observed:
A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action that is referred to must be the bringing of the action against that defendant in respect of that cause of action...
104The language of s 89(1A), however, is as to the 'making' of an application and there is nothing in s 89 to suggest precisely what the legislature intended by the use of that expression. With no indication to the contrary in the statute one would ordinarily give those words their ordinary construction.
105A practical consequence of the interpretation for which Dr Effeney contends is that a person interested in land burdened by an easement could commence proceedings (say, by relying on abandonment) at some time within 20 years of its creation, when the parties could not be able to determine whether the deeming provision could conceivably ultimately operate (since they could not know at that stage, absent some event giving rise to impossibility of future use, whether a 20 year period of non-use would potentially be able to be established on the facts - not knowing what would happen in the balance of the time leading up to the end of the 20 year period). Whether the deeming provision could even conceivably operate in such a case would depend on when the matter came to be listed for hearing. It seems unlikely that such an arbitrary result could have been intended.
106Then again, this is not a provision that must be satisfied in order to constitute a cause of action - it is a deeming provision to facilitate the removal of abandoned easements in circumstances where the applicant would otherwise be put to proof of intentional abandonment. As Mr de Buse, notes s 89(1A) is permissive in that allows the Court to take the passage of 20 years into account but does not require it to make any findings or reach any conclusion as a result.
107I have considered whether an interpretation of the section that permits the commencement of proceedings at a time when it is not (and cannot on any view of the facts be) known whether the deeming provision could operate would be an interpretation consistent with the statutory objective of ensuring the quick, just and cheap resolution of the real issues in dispute in the proceedings. However, it seems to me arguable that there is nothing inconsistent with the said statutory objectives (or necessarily objectionable) in a situation where a party who does not know at the time of commencement of the proceedings whether the facts will ultimately support reliance on a deeming provision may nevertheless commence proceedings of this kind, provided that there is a reasonable basis on the facts to hand at that stage to allow the view bona fide to be formed that there is a basis for the claimed relief on other grounds so as to permit the proper commencement of the proceedings. In that situation the applicant would simply be in the position of later invoking the deeming provision in support of, or as an additional, ground for extinguishment when and if it subsequently becomes available due to continued non-use to the end of the 20 year period. (In one sense, this might provide a window of opportunity for the owner of the dominant tenement to take steps in the interim to use the easement and thus preclude any deemed abandonment.)
108No authority was cited as to the meaning of "making" of an application for the purposes of the section, nor have I been able to find one precisely on point. However, in Leue v Reynolds (1986) 4 NSWLR 590, Hodgson J (as his Honour then was) considered a not dissimilar issue in the context of an application under the Family Provision Act 1982 (NSW). His Honour there held that the references in s 41A(1) of the Wills Probate and Administration Act 1898 to the making of an application (that section providing for the circumstances in which the court had jurisdiction to grant administration to permit a Family Provision Act application to be made) did not refer merely to the filing of the originating process but referred "to the whole process of making an application from the time of commencement of the proceedings up to the time of the making of a final order" (at p 597).
109His Honour accepted that an application was made for the purposes of s 16 of the Family Provision Act when the originating process was filed but did not accept that this required references in s 41A to the making of an application to be variously construed as referring only to the "mere filing of the originating process".
110Thus his Honour considered that an order could be made under s 41A for the purposes of an application under the Family Provision Act that was commenced prior to the making of the s 41A order. (Section 7 of the Act provided that an order could only be made on an "application in relation to a deceased person in respect of whom administration had been granted" but his Honour considered that the application did not need to bear that description from its inception.)
111Having regard to the fact that s 89(1A) is a deeming provision intended to facilitate proof of abandonment, and having regard to the reasoning in Leue , I am inclined to think that the deeming provision can operate in a case such as the present (provided that, as at the date that an applicant moves on the application for extinguishment of the easement, there has been at least 20 years' non-use of the easement). In the present case, however, ultimately nothing turns on this because, even assuming the deeming provision is capable of operation and that there has been no use of the easement for the requisite period (as to which there remains some doubt), I am nevertheless not satisfied that in the circumstances I should exercise a discretion to extinguish the easement (in light of the fact that there has been access to the property over the 20 year period, possibly over part of the right of way, and on that occasion it would not have readily been possible to use the actual easement due to improvements obstructing the right of way).
Has there been use of the easement within the past 20 years?
112I turn then to the evidence as to the use/non-use of the easement over the period in question. In so doing, it is important to note that at all relevant times, any use of the right of way along its exact route would have been prevented by the fenced horse laneways. That is because the easement crossed the northern paddocks and was not in a direct line from Songline Place to (or contiguous with) the white gate. Therefore, any use through the white gate would not have been in accordance with the easement, nor would any use of the kind that the Genner Constructions witnesses said they made (through the octagon and horse laneways to the north-western corner) have been a use strictly in accordance with the right of way. I accept the evidence of Mrs Woolridge and Mr Bone that the gates on the western boundary opened only to the horse laneways and not the paddocks. This is consistent with the evidence of the Genner Constructions witnesses (whose account seemed more reliable than that of some of the other witnesses involved in the construction of the cycleway) and with the account given by Mr Bray and Mr Hogge (the Millar Investments' witnesses).
113The Council points to evidence from Millar Investments as to use of the easement prior to 1990 (the extent of which is denied by the Woolridges, though it is conceded that there was some access to the property during the June 1987 flood in order to move cattle from the Millar Investments' property to higher land). In that regard, Mr Bray, a director of Millar Investments, swore an affidavit on 3 July 2010 in which he deposed to the use by his company employees of the right of way and "the horse corridor beside fencing near the actual right of way". This indicates an appreciation by Mr Bray that the right of way did not encompass the area comprised by the horse laneways. (His son's email communications with Mrs Woolridge about the proposed relocation of the easement, and an agreement to move the right of way to the eastern boundary of Lot 21, subject to council agreement to cross bike track at that point, also reflect an understanding of the area of the easement.)
114Mr Hogge, a farm manager employed by Millar Investments at its Burradoo property from 1993 to 2001 (and therefore not at the property when the cycleway was built) deposed by affidavit sworn on 29 June 2010 to having used the right of way at least 150 times in a 4WD utility ("sometimes" using the horse lanes) and says he was able to gain access through the gate on the northwestern corner with a key. While this was denied by Mr Bone (the Inverness farm manager) and Mr Bone's wife said that she did not observe Mr Bray's employees using the right of way, Mr Hogge seemed to have no reason to invent such a story and gave his evidence in a matter of fact way without embellishment. I accept that it is likely that employees of Millar Investments did use the north-western gate from time to time (although, as noted above, any vehicle so used would have had to be driven through the horse laneways and not across the paddock).
115There is no suggestion that the Council itself used the right of way since the completion of the construction of the cycleway in 2003. However, the Council relies heavily upon use of the right of way during the process of the construction of the cycleway in 2002. The evidence in this regard was in conflict not simply as to whether the property was so used but as to the precise manner in which it is said that it was used.
Council employees
Mr McLean
116Mr Don McLean, who affirmed an affidavit on 7 October 2010, was the project officer of the Council at the relevant time with responsibility for the inspection of work sites. Mr McLean says that he reviewed Council records (which ones were not identified) and deposed that completion of the cycleway occurred in 2003.
117Mr McLean was involved in the planning and construction of the cycleway and says that he attended the site on a daily basis at the time of construction. Mr McLean deposed that it was necessary to transport 125 cubic metres of concrete to Lot 13. (This is consistent with the evidence from the Seovic construction company witnesses who confirmed that the concrete was supplied to the site by the Council and supported by contemporaneous correspondence in which complaint was made by Seovic as to the delivery of the concrete on the first morning of the pour, which it says led to the rejection of the first 60m of concrete as laid).
118Mr McLean deposes that he saw concrete trucks pass on what he refers to as the 'approximate' path of right of way (both 8 wheeler and 6 wheeler concrete trucks) and says that the rejected concrete was transported from cycleway back through Dr Effeney's land as well.
119Mr McLean says that at the time that the concrete trucks accessed the land there were horses in the paddocks (4-5 in northern paddock and 2-3 in the southern paddock and that the horses in the former were relocated to the latter). (This is directly in conflict with the evidence of Mr Bone who denies that any horses were moved from the paddocks.) Mr McLean gave evidence (in [18] of his affidavit as to his observation of the horses in the southern paddock around a trough and a conversation he had with Mr Bone as to broken pipes in the trough, which suggests that at least at one stage he was in the paddock but this does not seem to address the difficulty that once in the paddock (unless the fence was down) there was no access to Lot 13 and Mr McLean subsequently, in the witness box, said that he was not sure with whom he had had the conversation in relation to the broken pipes. (Mr McLean was adamant that access was not gained to the cycleway while the fences on the boundary were removed - and in that regard I accept his evidence as being consistent with the timing of the fence removal works.)
120Mr McLean seems to have understood that access across the paddock was permissible after a conversation with Mr Nathan Lammers (to whose evidence I will refer shortly). Relevantly, however, it was impossible (with the fencing of the paddock as it was at that time) for access to have been obtained to the cycleway through either of the southern or northern paddocks (as opposed to such access through the laneways).
121Annexed to Mr McLean's affidavit was a typed document headed 6/5/02 "written authority to cross path with farm machinery including large tractor and all livestock" but it is by no means clear whose document this was or what it represented (it seems to be signed by a G Selby, whose identity is a mystery) and, in any event, this cannot have been relevant to the Council's use of the right of way since there is no suggestion that it was intending to use or did use the right of way for farm machinery or livestock of any description). I can place no weight on this document.
122In cross-examination, Mr McLean showed some uncertainty as to the precise route the concrete trucks he said he had seen on the property had taken. At T 25, he said that he thought the trucks had stayed on the northern side of fence all the way down but accepted that some one else had drawn the plan for him and that he was asked to accept what it showed as being access way.
123Mr McLean was nevertheless adamant (at T 25) that the trucks went into the paddock itself to drive along the paddock to access cycleway and that they had not accessed the area from north of the route (T 32).
124It may be that there was some room for confusion as to what was meant by access into the paddock, in that (as I understand the evidence of those more familiar with the structures on the land during its operation as a horse stud) there seems to have been a distinction drawn between the paddock area and the laneways. However, unless Mr McLean's reference to the paddocks included the laneways, it is difficult to see how what he described was physically possible at the time.
125Mr McLean was unsure as to other features on the land - he thought there was a single (not double) fence; could not recall that there was a 4m wide laneway between 2 paddocks; could not recall that there were 4 paddocks at the northern end of the property (only the 2 - north and south).
126Although there was some confusion (perhaps only on my part) as to the thrust of his evidence as to where Mr McLean was standing when he observed the concrete trucks, ultimately Mr McLean clarified that he had not been in the paddocks when the trucks were driving through (T 26) but had observed them from the area on which the cycleway was being laid (Lot 13) from where he said (and I accept this would have been the case) he had a view up the hill to Songline Place (T 32). He also says that he saw the "bogie tippers" (carrying the rejected concrete) travel that way across the property (T 35).
127In summary, Mr McLean's evidence is that the access to the cycleway was through the gateway on the western end of the north paddock (T 21.7) (to which I understood him to be referring to the what I have called the north-western gate) not the white gate. At T 38, he said that at the end of property the trucks came out of a gate and that there was a concrete slab there a little bit to the north west corner of were the trucks actually drove down (the only evidence as to a concrete slab, however, was the concrete slab outside the white gate). Mr McLean marked the gate from which he said access to the cycleway construction area was gained at the end of the dotted line on Exhibit 5. Accepting that to be the gate, it would still have been necessary for the trucks to be in the horse laneways not the paddock.
128Mr McLean also gave evidence as to the road base said to have been laid at the time in order to enable the concrete trucks to access the right of way. At T 28, Mr McLean said that two loads of base material had been tipped in the northern paddock to get over a depression in the ground (if so, this would surely suggest it cannot have been on a horse laneway since I would assume that it was unlikely that the horse laneways would, for reasons of safety of the horses, have been left with depressions of such an extent that filling would be necessary) and that this was 3 parts of the way down the northern paddock towards the cycleway. On the view, I was shown where it was contended roughly that the road base had been laid and this was in the horse laneway leading to the white gate. (No one has found any evidence of road base). Mr McLean says that there were 2 loads tipped and that he would expect that normally it would stay there but then said that it appeared as though the actual track had now been ploughed and graded over (that suggests that Mr McLean considered that the road base had been laid in the horse tracks, since there is no suggestion that the paddocks have otherwise been ploughed and graded over, nor that there would be any reason to do so).
129There is some discrepancy as to this evidence on the part of the Council witnesses as well. Mr McLean says that it took 2 hours to lay the road base on the Woolridge property (not 2 days as Mr Lammers deposed) and there was some doubt as to whether the base was the reddish bauxite used for the earthworks or other compacted concrete. On the evidence it is impossible to come to any finding as to whether and where road base was laid on any part of the Woolridge property.
Mr Bowmer
130By affidavit affirmed 7 October 2010, Mr Peter Bowmer, the Parks and Property Manager of the Council, who was also involved in the planning and construction of the cycleway, gave evidence as to the means by which access was obtained for the construction works. Mr Bowmer says that he attended the site approximately 15 times during the construction period.
131Mr Bowmer says that he saw Council trucks travelling over Dr Effeney's land to deliver concrete for construction of cycleway. In cross examination he was adamant that the trucks used the access way "because it was the only way they could get in " (which rather seems to beg the question).
132Mr Bowmer says that he walked the easement with Mr Lammers and another Council officer, Mr Charles Dunlop (who did not give evidence) and with Dr and Mrs Woolridge. He said at T 45:
I walked a laneway down through the property, which was presumed to be the easement at the time down a laneway and it took a turn to the left or right - not sure
but was unable to recall if the trucks he had seen went down the laneway or through the paddock.
133At T 52, Mr Bowmer said that the way in which the trucks had access to the cycleway site was from the end of what is now called Songline Place along the "approximate path" of the easement - he made reference to the route indicated in the dotted line (consistent with that referred to by Mr McLean).
134Mr Bowmer also said that he saw red bauxite in the area along the dotted line laid out as part of road base down what he referred to as the access path - T 51.
135(Mr Bowmer also referred to the removal of fences along the boundary and says that this occurred both before and after the cycleway was constructed.)
Mr Lammers
136The third of the Council employees to be called by the Council to give evidence in the matter was Mr Nathan Lammers, who (during the relevant period held the position of works engineer for the Council and, from 2005 to 2007 as Manager of Roads and Traffic for the Council).
137Mr Lammers says that he was involved in the planning and construction of the cycleway, that consisting of his attendance at the site on a daily basis during construction and the coordination of materials needed to complete the cycleway. He deposes to having had a meeting with Mrs Woolridge (and with Mr Dunlop the former director of corporate services for the Council) as to the proposed access over the property and as to the putting of road base on the property for that purpose ([7]).
138Mrs Woolridge does not recall such a meeting and deposes to her belief that it would be extremely unlikely that she would have attended an important meeting without her husband. Mrs Woolridge further deposes that the only meeting she recalls with Mr Dunlop were well before the construction of the cycleway in relation to the construction of the replacement western boundary fence along the cycleway (along the edge of the southern paddock).
139I interpose at this stage to note a number of things about the conversation to which Mr Lammers has deposed (and of which it appears there was no file note or other record): first, that if Council had identified, through plans, an "access point" through the property, then it seems surprising that neither Seovic nor Genner was apparently directed by Council to use that "access point"; and it does not explain why anyone from the Council would have thought that the right of way covered the entire property (though Mr Lammers in cross-examination said that was his understanding); second, there having been a dispute between the Woolridges (or their manager) as to the replacement fence in the southern paddock, if this conversation occurred after that dispute (and there is no time placed on this conversation by Mr Lammers other than that it occurred during the planning for the construction of the cycleway in 2002), then it might be surprising for Mrs Woolridge to be willing to accept arrangements put to her at face value by the Council without wishing some form of commitment on the Council's part as to how access was to be achieved without disruption or damage to the stud or to the horses. (The explanation for this second point might well be that the conversation to which Mr Lammers refers was one that related to the western boundary fence and not the construction of the cycleway itself.)
140Mr Lammers (who it may be recalled was the person who Mr McLean says told him there was permission to have access across the property) said in cross-examination that he thought there was a right of way over whole property (T 67) (something that no one suggests is in fact the case and that is inconsistent with the plans to which the Council, according to what Mr Dunlop is said to have said, had access).
141At T 70, Mr Lammers says that he saw concrete tucks using the path marked with the dotted line through the fenced laneway over a concrete slab at the end of the laneway near the gate. He seems to be referring to the white gate. At T 71.18, Mr Lammers then said that he actually drove through the same access point himself over the concrete slab near the white gate. If so, then this is a route which is completely different to the route that Mr McLean and Mr Bowmer say the concrete trucks took (and a route different from that which the earthworks contractors say they took). It is also something to which Mr Lammers made no reference in his sworn affidavit (notwithstanding that one would have thought this would be an important matter to have raised).
142Mr Lammers said, at T 74, that he saw road base on parts of the path indicated by the black dotted line (and expressed the view that road base does not 'evaporate') but that he does not believe there was any bauxite in it. Contrary to Mr McLean's evidence, Mr Lammers says that it took 2 days to lay the road base (T 75) (which in his affidavit he describes as being a mixture of crushed road base and concrete). There is no apparent explanation for the inconsistency in the evidence as between the time it took to lay the road base or the material of which it was composed.
143I am left to conclude that Mr Lammers' recollection of events may not be wholly reliable. While I accept that he has a genuine recollection of seeing trucks and machinery crossing the property along what he describes as the "easement path" and through two separate gates within the paddocks, and he recalls crossing through a gate on the western boundary over a concrete slab, I consider that it is likely that he is mistaken in his former recollection and I have no confidence that the latter relates to travel through the white gate as such. (I note that Mr Lammers does not differentiate in this regard between the paddocks and the laneways, a distinction which seems to be critical when considering the access, if any, that could physically have taken place in light of the fencing on the property, and which may be a cause for any confusion on his part.)
Mr Lewis
144I include under the heading of Council employees Mr John Lewis (although he was called as a witness not by the Council but by Dr Effeney) as he was the Manager Design & Projects of the Council between 2002/03 and undertook the role of preparation of the plans and specifications for construction of cycleway (for approval by the Council). Mr Lewis swore an affidavit in these proceedings on 9 December 2010.
145Mr Lewis said that the Council had rejected the alternative slipforming method proposed by Seovic on the basis that it did not meet the Council's requirements for strength and durability of the concrete in the cycleway. In Mr Lewis' opinion, one of most important requirements for the design was to ensure that emergency vehicles (less than 2 tonnes in weight) could traverse the entire length of cycleway. He says that the design was also to permit larger service vehicles to use/maintain cycleway, though he concedes that larger vehicle access would only be available for access from the Moss Vale end (i.e. not completely through to Burradoo).
146Mr Lewis explained that the process of construction involved reinforcement of the concrete on the ground and it then being lifted up into the slip machine. As I understand it, his evidence was that the reinforced concrete meant that vehicles below a 2 tonne limit would be able to use the cycleway without the likelihood for it to need to be reconstructed but that other trucks or loaders could not be so used (T 96). He confirmed that it had been constructed on the basis that water would "sheet over" the cycleway.
147Mr Lewis was shown in the witness box a plan of the property (Exhibit C), bearing his name, that shows an emergency access corridor along the northern boundary of the Woolridge property. (Mr Lewis, in his affidavit, had said that the cycleway had been designed for such access to be through the cycleway itself.) Mr Lewis was adamant that the plan was wrong and says that the intention was to have main access from either the Moss Vale or the Burradoo end of the cycleway for less than 2 tonne vehicles such as ambulances. Mr Lewis denied that this was a plan he had approved (and suggested that it might have later been altered on the Council's electronic record filing system without his knowledge).
148It was put to Mr Lewis that this response was an attempt to reconcile an inconsistency between his evidence and the plan. My observation of Mr Lewis in the witness box was that this was not the case; rather that he was genuinely bemused as to why it was that his name was on the plan at all (indeed, he was preoccupied with that during much if not all of the rest of his cross-examination).
149Mr Warren submits that this puts in doubt the validity of the Council's assertions as to the plan (T 275). For my part, I doubt that much weight can be attributed to the plan (whether or not it had been approved by Mr Lewis at the time) since I do not consider that it establishes any intention to abandon the easement altogether, even if alternative (or perhaps main) access was envisaged for ambulance or emergency vehicles along that route rather than the right of way.
Evidence from others involved in the construction of the cycleway
150Reliance was placed both by the Council and by Dr Effeney on evidence from others involved in the construction of the cycleway as to the access over Lot 2 during that period. The Council called evidence from the engineers (Seovic) who performed the concrete construction works and the earthworks contractors (Genner and Simpson).
Mr Stewart
151By affidavit sworn 7 December 2010, Mr David Stewart, who is a qualified civil engineer and the Engineering Manager for Seovic Civil Engineering Pty Limited (and held that position at time of cycleway construction) gave evidence as to the works carried out by Seovic in 2002 in relation to the construction of the concrete for the cycleway. Seovic was engaged to perform the works on stages 2 and 3 of the cycleway (thus including the Lot 13 works) not stage 1.
152Construction followed acceptance by the Council of a quotation to "slipform" the cycleway which was provided on 26 July 2002. (Hence the conclusion that the construction works on this stage of the cycleway occurred after the removal and replacement of the fence on the western boundary of the southern paddock.)
153Mr Stewart says that Seovic (in fact his then Business Operations Manager, Mr Andrew Zarins) submitted a Vehicle Movement Plan to Council (which provided for access to the construction site from three named streets (none of which was linked to the right of way). Although Mr Stewart, in his affidavit, said that this had been agreed by the Council, it seems clear from his evidence in the witness box that he assumed that it had been agreed as Seovic was not asked to change it. Even absent any express acceptance by Council, the significance of this rests in the fact that it does not appear that on receipt of the Vehicle Management Plan anyone at the Council informed Mr Stewart that access could instead be obtained by using a right of way over what is now the Effeney property.
154Mr Stewart was not aware of any Seovic construction vehicles passing over the land nor was he aware of any road base laid on the land ([14] of his affidavit). The process of construction involved the supply of concrete by the Council's concrete trucks to Seovic's paving machines on site. Mr Stewart says that all access to the Seovic paving machine by concrete trucks was by way of the trucks reversing, when laden, directly in front of the machine up to the nearest public road entry.
155In relation to the works themselves, Mr Stewart has deposed to the use of what he says was a more expensive and conservatively designed steel reinforced mesh pathway than the alternative suggested by Seovic. Mr Stewart was aware that the area in question was a floodplain and suggested that the construction of the cycleway had taken into account the need for the use of light maintenance vehicles (to minimise cracking) and various other considerations (such as the need for it to be 'low bump', presumably for the comfort or safety of cyclists).
Mr Zarins
156Mr Andrew Zarins, to whom Mr Stewart referred in his evidence, swore an affidavit on 8 December 2010. He is now the Eastern Sector OHS adviser for the Greater Southern Area Health Service but in September 2002 he was Seovic's Business Operations Manager.
157Mr Zarins had a clear recollection (expressed with some feeling in the witness box) as to the difficulties associated with the commencement of the construction work on the area of the cycleway adjacent to Lot 12 (on Lot 13). He adverted to many issues arising in relation to the "bad concrete pour" on the first day of construction, which he recalled was either 5 or 6 September 2002, and to the subsequent rejection by Council of 60m of formed concrete. Mr Zarins says that he was on site at time (and it was he who seems to have taken the running with Council of the claim for an adjustment to the contract price in order to reflect some responsibility on the part of the Council for the fact that the concrete had not properly formed - I refer in this regard to Mr Zarins' letter of 12 September 2002 to Mr Lammers in relation to the concrete dispute.)
158Mr Zarins' evidence is that he was not aware of any agreement to cross the Inverness Stud land; he did not see any concrete trucks cross that land; and he says that the rejected concrete was not removed across that land (significantly, he says that to do so would have caused serious damage to the cycleway).
159The completion date for the slipforming was 1 October 2002. Mr Zarins (who was somewhat loquacious in the witness box) explained in cross-examination that the process of construction (involving the lifting up of the reinforced concrete into the slip forming machine and it being laid in place as formed) meant that it was important that trucks not drive over the cycleway as it was formed. He said that it was necessary "to walk" in the slipformer in some cases (T 103).
160Mr Zarins' recollection was that the concrete trucks were "pretty much" trucks carrying 6 cubic metre loads. He was, however, rather vague as to this (being "not really up on trucks") and as to whether the slipformer had been left on the property overnight during the slipforming process or brought in and taken out each day.
Mr Genner
161The other contractors involved in the construction of the cycleway were those responsible for the earthworks involved in the construction, carried out by Genner Constructions. By affidavit sworn 25 February 2011, Mr Peter Genner, a director of Genner and its managing director from its incorporation in July 1981 to his retirement in June 2007, now a consultant to the company, deposed as to the occasions on which the company had performed works at or around the Inverness Stud. In particular, the company had built the entrance to Songline Place; had been involved in widening the eastern side of Moss Vale Road; had performed earthworks in relation to the construction of the cycleway; and had later conducted works in relation to the subdivision of the horse stud including further widening works.
162Mr Genner explained that the cycleway earthworks involved the establishment of a road base under the proposed cycleway and then re-laying top soil in and around the cycleway (after the concrete was laid). He said that for that work the company used a caterpillar scraper and 2 bobcat machines.
163Mr Genner deposed to a conversation with a man whom he assumed to be the manager of the stud (but whose identity was not established) in which he asked whether his company would be able to access the river by way of the horse stud and the response was that this would be all right as long as the gates were not damaged. (Pausing there, while I do not cast any aspersions on Mr Genner's credibility - and I regarded his evidence as to the manner in which access was obtained as the most reliable evidence of use during the course of construction - it seems somewhat unlikely that if the other party to this conversation was a person connected with the stud that his primary concern would be damage to gates as opposed to the horses, but nothing turns on this.)
164Mr Genner says that he marked the route to be taken on a map and showed his machine operator that this was the route to be taken. Mr Genner says that the company's machine operators transported machines across the stud over a 3-7 day period in order to complete earthworks (until access was available via the cycleway). The route so marked followed the horse laneways to the north-western corner of the property (not the right of way as such), not the east/west horse laneway to the white gate that Mr Lammers said he used). That is consistent with the way one would have to pass (according to the evidence of Mrs Woolridge and Mr Bone in order to move from Lot 12 through the western boundary to Lot 13 or Lot 15 as it then was (i.e. through the laneways not the paddocks). Mr Genner says that this was the only access available to his company at the time (it not being able to use the Sullivan Road access).
165In cross-examination at T 89, Mr Genner described the road base laid for the cycleway as a bauxite road base reddish in colour (thus, to the extent that some of the Council witness said that they observed reddish bauxite material as the road base laid in the access way, it is at least possible that this was a recollection as to the road base for the cycleway.)
166I found Mr Genner's evidence to be compelling. He was able to describe the area that was traversed and the difficulties in so doing with admirable recall (compared, for example, with the vagueness of others such as Mr Lammers, who referred to the approximate path that was taken). Mr Genner said the caterpillar scraper drove in through the laneways and that the bobcats were taken in on tip truck through the same way. He described the caterpillar machine as 10m long and 2.4 m wide. He said that they had trouble getting it into the site because they had to go through 2 corners - one being the octagon - and 2 gates. Mr Genner explained that when the machines came down to the octagon they could not go ahead because there was no gate at end of laneway (he did not recall a white gate, but his recollection that they could not continue straight down to the western boundary would be consistent with such a route being blocked by concrete slabs as Mr Bone said it was, so as to prevent access that way) so that the machines turned north and went out the gate at end (the north-western gate).
167Mr Genner did not see any concrete trucks during that time (not surprisingly, perhaps, since the earthworks had to be laid before the concrete could be laid) and says that the company used the access way for 5-7 days before it was able to gain access to the cycleway from the Bowral end (this last comment supporting the view that access for machinery of this kind was possible from the northern end of the cycleway in due course.
168I considered that Mr Genner's explanation of the route that was taken and his recollection of the difficulties encountered was both logical and consistent with the physical features of the land and I consider that this is the most likely route that was taken not only by Mr Genner's vehicles but also by any Council concrete trucks that were not otherwise able to have access to the site.
Mr Simpson
169Finally, there was evidence by affidavit sworn 25 February 2011 from Mr Daniel Simpson, an employee of Genner Constructions, who had operated a bobcat in order to carry out the earthworks on the cycleway. Mr Simpson says that he transported his bobcat (a caterpillar 226 skidsteer) to the construction site over the Effeney land by way of a truck over 3-4 days. Mr Simpson says that he travelled the route some 6-8 times; that the external gates were closed on those occasions but the internal gates were either open or closed (and he was careful to ensure the gates were left open or closed as he found them). Mr Simpson witnessed 2 others on that route and indicated that they had taken the same route as that shown by Mr Genner. There is no reason not to accept Mr Simpson's evidence in this regard, nor is there any reason to think that he would not have followed the instructions given by Mr Genner as to the means of access to the work site.
Evidence from the Woolridges/Bones
170The main evidence adduced for Dr Effeney in relation to the alleged non-use of the right of way was from Dr and Mrs Woolridge and from Mr and Mrs Bone.
Mrs Bone
171Mrs Bone gave evidence by affidavit sworn 10 December 2010 that she had lived at the Inverness stud from 1995-2005 (in a house on Lot 1 DP 567282 next to the East Stud) and that she had not observed either Mr Bray's employees using the right of way or any concrete trucks crossing the property (at T 90 in perhaps a significant difference in terminology she said that no trucks went "through the paddocks") and had observed no road base laid on the property. In the witness box she confirmed that she and her husband had kept dogs on the property and that they would have barked at concrete trucks going onto the property. (Mrs Bone also said that she did not think anyone could cross the concrete slab outside the white gate in a vehicle but that seemed to be based on the fact that she did not think she could have done so - T 89.)
172I have no reason to think Mrs Bone is anything other than a truthful witness. It is, however, difficult to reconcile the evidence that the dogs always barked when there were strangers on the property with the evidence from Mr Genner and Mr Simpson (and which I accept) that they accessed the property to carry out the earthworks. I am left to conclude that, for whatever reason, either the dogs were not aware of the earthwork machinery passing through the property or Mrs Bone does not now recall the fact that they had barked at the time.
Mr Bone
173Mr Ross Bone, the manager of the Inverness Stud from 1995 to 2005, swore an affidavit on 14 December 2010 in which he deposed to various matters in relation to the operation of the Inverness stud up until the time of the disposition of the West Stud in 2005 (and the retention of the East Stud with its subsequent subdivision as the new Songline Place development).
174Mr Bone noted that the West Stud was the location of the main breeding operations and that the busiest time of the year for this and any horse stud was 1 August to 30 November (therefore making it somewhat unlikely that as the manager he would have been as sanguine about the prospect of concrete trucks across the stud as it is suggested by the Council's witnesses that he was).
175Mr Bone confirms that the configuration of the East Stud was that there were 5 paddocks separated by horse lanes (4 in a square formation to the north with an octagonal gate in middle) and that there was a horse lane on the northern boundary that led to a gate at the north-western corner of the property. He said that the white gate on the western boundary was at the western end of the central east/west horse lane. Mr Bone said that the white gate was not used and was always locked; and that it provided access to an irrigation pump located there.
176Mr Bone, as did his wife, maintained that it was not possible for strangers to be on the property without him being alerted to their presence by the dogs barking.
177Mr Bone denied that Millar Investments' employees used the horse corridors and said that he had never seen cattle traverse the stud.
178As to the removal of boundary fences, Mr Bone deposed to a conversation in May 2002 with Mr Dunlop at the Council in relation to the proposal to erect a boundary fence from the south western boundary adjacent to the big (southern) paddock and that this had led to a dispute. He said that the fencing works were completed by June 2002 and that construction of cycleway had not commenced until September that year. This is consistent with the documentation to which I have earlier referred.
179Relevantly, Mr Bone says that for the Council's concrete trucks to have traversed the path described by Mr McLean, parts of a number of fences would have had to have been removed. Further, Mr Bone says that in each of the 4 northern paddocks at that time of year there were about 10 yearlings. He says that they could not have managed the horses with the passage of concrete trucks (across the paddocks); denies that the horses were relocated as described by Mr McLean, and says that Mr McLean was wrong when he referred to 2 paddocks. He says that there were no gates leading into the paddocks as described by Mr Lammers.
180I accept Mr Bone's evidence as to the layout and configuration of the property. He is the person one might expect to have the clearest familiarity with and recollection of those matters. There is no reason for him to misrepresent the position in this regard, nor was it suggested that he did. Where the evidence of the Council witnesses is inconsistent with the physical layout and configuration of the land as described by Mr Bone, I prefer his evidence as being the most reliable.
181Mr Bone denied that the rejected concrete from the cycleway was transported through the Inverness stud (as, I might add, is consistent with Mr Stewart's recollection) and denies that road base was laid on the property. Mr Bone did accept that there had been some recycled concrete laid at the bottom of the laneways and the bottom of Songline Place going into the paddocks. Mr Bone said (at T 61.50) that he did not see any concrete trucks using Songline Place and accessing the cycleway through the property. (As I understand his evidence it seems likely that what he was denying was that there was access through the paddocks as opposed to denying that there was any access at all through the horse laneways.)
182Mr Bone accepted that some 40m of fence was relocated following completion of the cycleway ([48] of his affidavit) but denies that this involved the relocation of the gate itself at the north-western corner of the property and I accept his evidence as being logical in that regard. At T 71, he said that the north-western corner fence was realigned after the cycleway by the Woolridges' fencer (because the fence was in the wrong spot) but that the gate remained in the same position.
183Although at T 66, Mr Bone seemed to suggest that the north west corner gate was not in the laneway but led into the property, he later clarified that by saying at T 72/73, when referring to the gate at the river end (by which I understood him to mean the white gate) that while one could go straight from Songline Place through the octagon to paddock 2 (the north western of the four smaller paddocks) it was not possible to exit the paddock at the north western corner since that gate was on the laneway (and led onto the cycleway).
184At T 63, Mr Bone referred to the white gate on the western boundary (on the laneway side of and a metre from the irrigation pump that was situated on a concrete slab). At T 64, he volunteered the fact that this was removed prior to the cycleway being made and said that it was never put back. There was no hesitation on his part when giving that evidence and no reason equally not to accept that when he said that concrete blocks had been laid to prevent access to the irrigation pump this was also the case.
185Again, at T 72 Mr Bone confirmed that there was only gate to paddock 1 (that being in the cross section or octagon) and that the gates in the octagon were all across the laneways, none of those gates led into a paddock. Thus the only way into (or out of) the northern paddocks was from the octagonal point (noting that the gate with irrigator was at end of laneway but never used for horses).
186I accept Mr Bone's evidence that if the trucks had gone down into paddock 2 (i.e. the north western paddock) they could not have come to the part of the fence that was removed (that being the southern paddock fence) and they could not have exited otherwise than going back through a laneway. Mr Bone accepted that the north-western corner gate was at the end of the laneway and that it led onto cycleway (and that one could get through there in a car or vehicle with small trailer -T 74). He said that on his smokos he regularly went across the horse laneway and through the northwestern gate in his ute.
Dr and Mrs Woolridge
187Dr Woolridge gave evidence that he drove around the stud from time to time using the horse laneways (which is consistent with the layout of the property as described by Mr Bone). His wife appears to have had more involvement in the operation of the horse stud. By affidavit sworn 4 February 2011 she described the acquisition of the land and the configuration of the paddocks. Mrs Woolridge noted that the subdivision of Lot 12 in 1996 was to provide house for one of their daughters and that Lot 1 567282 was where Mr and Mrs Bone had their residence.
188Significantly, Mrs Woolridge's evidence was that the middle east/west laneway was not contiguous with the dirt track that became Songline Place. This was not challenged by any evidence to the contrary (and consistent with my recollection of the property from the view). If so, then the only part of the right of way that could have been used by means of the route described by the Genner Constructions witnesses (that being the only route physically feasible having regard to the layout of the land) would have been the commencement of the right of way at the Songline Place end - diverting at some point to the horse laneways - and even then that would not necessarily explain how the trucks found their way into the horse laneways from the easement along the Songline Place track. (I note that Mrs Woolridge has commented at [26] of her affidavit, with justification on the evidence before me and consistently with Mr Bone's evidence, that for the route taken by the Council trucks to have been that indicated by Mr McLean, at least four fences would have needed to be taken down as well as the fence along the western boundary near the north western corner gate).
189Mrs Woolridge's evidence (again consistent with that of Mr Bone and with the course taken across the property being that indicated by the Genner employees) was that the only access over the land to the north/west corner gate was via the laneways and that there was no access to the north/west gate through the paddock itself.
Conclusion as to use/non-use
190As to the evidence of use by the Council's predecessor (Millar Investments), I accept that there is evidence of cattle having been moved onto higher ground during the flood of June 2007, although Mrs Woolridge says that it was not possible for the whole right of way to have been used because of the horse fences. It seems that on that occasion the cattle were moved across the cycleway to the property adjacent to Lot 2 (being Lot 1 of the Songline Place subdivision). There is a dispute as to the extent of any other use by the Millar Investments employees.
191As to use by the Council, the physical configuration of the paddocks on the property is such that I am unable to conclude that there was any use of the right of way along the whole of its actual path (or even along the approximate course of the whole of that right of way) during the construction of the cycleway. The logical conclusion from the physical layout of the property at the time (given that the right of way went through the northern paddocks and that the gates on the western boundary opened only onto the horse lanes, which in turn led onto the octagon in the middle of the four northern paddocks) is that there was no use of the right of way by the Council in the manner it contends.
192Both the McLean/Bowmer version of the access route and the Lammers version are inconsistent with the layout of the horse stud (let alone it being inherently unlikely that such access could have occurred during a busy period of an operational horse stud without those responsible for the stud being aware or remembering it). Mr Stewart was also very clear that Seovic did not have access to the property and it seems surprising that the Council would not have directed him to use such access had the Council trucks themselves been doing so.
193That said, I accept the evidence of the Genner employees that there was access through the horse laneways to the construction site through the octagon and then through the north-eastern corner gate. Mr Genner's account of the difficulties of manoeuvring the caterpillar scraper through the gates on the octagon and out of the gate at what is now the junction of the cycleway bore the hallmarks of genuine recollection and is consistent with the manner in which Mr Bone himself crossed the property on a regular basis. If so, then it seems likely that there was use of part of the right of way along the Songline Place dirt track.
194What then is the significance of there being access across Lot 12 (albeit in a path that did not follow the actual course of the right of way (except perhaps a small portion at the start along the Songline Place dirt track)?
195Mr de Buse submits that if there was a deviation from the path of the easement due to improvements placed on the land (in the form of fences put in its way by the owners from time to time) or as a matter of convenience and with the express or implied licence of the owners of the land, then there can be no inference (adverse to his clients) drawn from that evidence as to the abandonment of the easement (and therefore that even if no use, as the Council has maintained there was, can be established, the court's discretion should be used not to extinguish the easement in those circumstances). Further, it is submitted that if there is a doubt as to whether the easement was in fact used in some fashion, then Dr Effeney has not satisfied the onus he bears of establishing non-use (or abandonment).
196I accept that on the evidence before me, on the balance of probabilities, Dr Effeney is correct in contending that the Council has not used, other than in perhaps in a small portion, the easement (whether for construction of the cycleway or for its maintenance and repair). The doubt in my mind is as to whether there was a use by the Genner employees and the concrete trucks of the portion of the right of way which runs along the Songline dirt track. (Although I find that the concrete trucks did not follow the course identified by Mr McLean, Mr Bowmer and Mr Lammers, it seems to me likely that they did cross the property by some other route, having regard to the lack of any other immediately apparent access point at that time.) Given that the onus of establishing non-use rests on Dr Effeney, the doubt remaining as to the use from the Songline access point seems to me to preclude a finding of deemed abandonment.
197Even if that be incorrect, I am satisfied that there was a use of the land (albeit not along the whole of the actual path of the right of way) during the course of the construction of the cycleway and even if that be only due to comity on the part of the Woolridges, the fact that the Council did have an entitlement to access along the right of way and was unable to use it due to obstructions placed in the path of the right of way would lead me to conclude that there has been no intentional abandonment of the easement and that, even if the deeming provision did operate (on the basis that the application could be said to be made at the time the plaintiff moved on the summons in these proceedings), the Woolridges' obstruction of the easement would weigh against the exercise of discretion in favour of extinguishment of the easement.
(ii) Obsolescence?
198The second ground on which extinguishment is sought is that of obsolescence pursuant to s 89(1)(a) of the Act.
199In Rosedale, Slattery J explained that the power to extinguish an easement pursuant to this subsection is grounded on two independent bases each connected with changing circumstances, saying at [60] and [61]:
..... The first basis is that by reason of the change in use of the land having the benefit of the easement or in the character of the neighbourhood, the easement ought to be deemed obsolete. The second is that the continued existence of the easement would impede the reasonable user of the land subject to the easement without securing any practical benefit to the persons entitled to the easement.
In relation to the first basis, to determine whether there has been a change in the neighbourhood, the Court identifies what the neighbourhood is in any given case and then analyses the evidence to see if there has been change between the date of grant and the date of the application: Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833; [2000] ANZ ConvR 22; (1999) NSW ConvR 55-891 per Young J
and (at [63]) that the second basis "involves an assessment of whether or not the continued existence of the easement would impede the reasonable user of the servient tenement without securing practical benefit to the persons entitled".
200As noted by the Court of Appeal in Ashoil (at [39]-[40] and by Slattery J in Rosedale at [63], obsolescence is established if either the original purpose of the easement can no longer be served ( Re Truman, Hanbury, Buxton & Company Limited's Application [1956] 1 QB 261 at [272]) or the right of way is currently incapable of fulfilment or serves no presently useful purpose ( Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 927; Durian at [18,099] - [18,100] per Mason P (with whom Stein JA agreed).
201As to the former, the original purpose of the easement was to facilitate the passage by the owner of Lots 15 and 16 (those lots then being in the same ownership) to and from Moss Vale Road through Lot 12. There is nothing to suggest that this purpose cannot still be achieved for the benefit of the owner of Lot 19.
202As to the latter, Slattery J noted in Rosedale at [64] - [65] that:
To establish that a covenant impedes the reasonable user of the servient land, it must be shown that no reasonable use of the land is possible unless the easement is modified or extinguished: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 per Brereton J at [14].
It is insufficient for a Conveyancing Act s 89(1) applicant to establish that its own proposal is a reasonable use of the servient land. The applicant must show that no reasonable use of the land is possible unless the easement is extinguished or modified: Heaton v Loblay (1960) SR (NSW) 332, at 335 per Myers J . The applicant must also show that the continuance of the easement unmodified "hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and the purpose of the [easement]": Re Ghey & Galton's Application [1957] 2 QB 650 at 663. The question as to whether the continued existence of the right of way secures a practical benefit to the beneficiaries is one that does not require extensive analysis. But what is a "practical benefit" is capable of ready assessment. (my emphasis)
203In Ashoil at first instance Gzell J also referred to the principle that the grant is construed most strongly against the grantor ( Williams v James (1867) LR 2 CP 577 at [581]). His Honour noted that the second limb of s 89(1)(a) requires the court to be satisfied that the continued existence of the easement would impede the reasonable user of the servient tenement without securing practical benefit to the persons entitled to the easement, citing Farwell J in Re Henderson's Conveyance [1940] 1 Ch 835 at [846] for the proposition that such a provision was not designed to enable a person to expropriate the private rights of another purely for personal profit. See also the discussion by Young CJ in Eq, as his Honour then was, in Castagna v Great Wall Resources Pty Limited [2006] NSW Conv R 56-148, [2005] NSWSC 942 at [43], namely that:
To get through this gateway an applicant must show not merely that what it wishes to do on the subject land is reasonable, but rather that no reasonable user of the land is possible unless the easement is restricted. This flows from the decision of Myers, J. in Heaton v. Loblay [1959] 60 SR NSW 332 at 335 and the decision of Simos, J. in Coles Meyer NSW Limited v. Dymocks Book Arcade Limited [1996] 9 BPR 16939 at 16,955-6. See also the decision of the Privy Council in Stannard v. Issa [1987] AC 175.
204The easement in question roughly bisects Lot 2. In this regard, Mr Warren submits that this is an impediment on the reasonable user of the land in circumstances where the character of the neighbourhood and the use of the land has changed from rural acreage to residential hobby farms. I accept that there is evidence of the changing character of the neighbourhood in this regard (to which Mrs Woolridge has deposed and which is supported by the existence of subdivisions such as the Songline Place subdivision itself). I also accept that the area in which the Lot is found is capable of constituting a neighbourhood (having regard to Alliance Economic Investment Co. Limited v. Berton [1923] 92 LJ KB 750 per Bankes LJ (at p.723-3); Markos per Austin J at [88]).
205However, what I do not accept is that the land as it is could not be used for hobby farm or other purposes consistent with the surrounding neighbourhood (and there was no evidence to that effect). It is currently being used for silage and there is nothing to suggest that it could not be used for the grazing of cattle or other agistment purposes. I accept that the opinion indicated in the Water Cycle Management Study (a copy of which was in evidence) was that the new lots in Songline Place were "rural residential in nature and are considered to be too small to be viable standalone agricultural holdings". However, that does not mean that there is no reasonable user possible with the easement remaining in place. (Mr de Buse points out that Dr Effeney has not given evidence as to any particular proposed use and submits that it is unlikely (given the restrictions as to user contained on the title and the existence of flood risks) that he would receive permission for any other use. I am not in a position to, and do not, make any comment on that aspect of the matter.)
206I note in this regard that although it was submitted in the written submissions served prior to the hearing that, with the easement in its current position, no reasonable user of the land is possible, this was not strongly pressed at hearing.
207Therefore, it does not seem to me that it has been established that the original purpose of the easement can no longer be served ( Re Truman, Hanbury, Buxton and Company Limited's Application at p 272) or that the object of the easement is no longer capable of fulfilment or serves no presently useful purpose ( Re Mason at [927]; Durian at [3] - [6]). It is still possible to use the easement to have access to Lot 19 and (even though that would not permit access to other lots) there is nothing to suggest that it would not be of use in relation to any necessary repair or maintenance of the cycleway portion that is situated in Lot 19. The fact that access might also be achieved through other sections of the cycleway (even if, which is a matter of some doubt, this access would be "equal" to that through the right of way) does not in my view mean that it serves no useful purpose.
208I find that the easement has not become obsolete.
(iv) Substantial injury if extinguished?
209The third ground relied upon is that contained in s 89(1)(c), namely lack of substantial injury to the persons entitled to the easement. As noted by Slattery J in Rosedale at [68], the following are the relevant principles in this context:
(a) a "substantial injury" is one that has real and present substance but need not be large or considerable: Re Mason and the Conveyancing Act ( 1961) 78 WN (NSW) 925 & (1962) NSWR 762 and Tujilo v Watts (2005) 12 BPR 23, 257, especially at [37]; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [24];
(b) a wide variety of tangible and intangible potential injuries are encompassed by the expression "substantial injury" in s 89(1)(c): Webster v Bradac (1993) 5 BPR 12,032; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [27]; and
(c) there must be an injury of "real and present substance" and examples of how this the statutory language has been applied with this concept in mind are usefully summarised by Young CJ in Eq, (as His Honour then was) in Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363 at [42]-[43].
210The words 'substantial injury' have wide meaning ( Tujilo v Watts [2005] NSWSC 209 per Campbell J at [37]). In Castagna, Young CJ contrasted what was necessary to establish the circumstances in (a) as opposed to (c):
Accordingly I need to consider whether the cross claimant passes through gateway (c), that is, that the proposed extinguishment or modification will not substantially injure the persons entitled to the easement. As has been pointed out in the authorities, when looking at gateway (c), the enquiry concerned the effect of the desired modification whereas under the paragraph (a) gateway, the enquiry concerns the effect of the easement if not extinguished or modified. Under gateway (c) the only question is whether the proposed modification would substantially injure the present plaintiff (Heaton v. Loblay at 335). (my emphasis)
211The Council submits that it requires the easement for access to Lot 19 but goes on to submit that it requires the easement for access "through that to the balance of the adjoining reserve for the purpose of potential repair reconstruction". The basis for this is that it maintains that it cannot use trucks greater than 2 tonnes in order to obtain access from elsewhere along the cycleway. It also requires access for emergency vehicles.
212As to the potential need to repair the cycleway, although there was evidence that the cycleway had been designed to minimise the risk of damage to the concrete (and to withstand the impact of floodwater), it seemed to be accepted that there remained a risk to damage (say, if a vehicle ran over the edge of the cycleway) and it cannot be assumed that the concrete will have an indefinite life in that regard.
213There was in evidence an assessment by geotechnical engineers carried out in October 2010 (Network Geotechnics Pty Ltd) in which it was said that the bearing load of the cycleway was such that it would be unable to sustain weight with axle loads of 5 tonne or greater and that even light vehicles could cause damage. The maximum load bearing capacity that it was said could be sustained was about 2 tonnes.
214In this regard, Mr Stewart, as a qualified engineer involved in construction of the cycleway, expresses the opinion that the cycleway can be used on a "shared basis" by emergency vehicles and light trucks and "occasional infrequent passage of heavier 10 tonne Council vehicles". He explained in the witness box that his reference to occasional use or infrequent use was to use by one or 2 vehicles and that once or twice a week by a vehicle up to 10 tonnes was "probably ok".
215Mr Stewart explained that the cycleway was on a prepared material base and that, if well graded, the base would not hold moisture (that being one of the reasons that there might otherwise be encountered a problem with concrete). He explained that the reinforcement to which reference was made in the materials was for the purpose of holding the concrete together and to control shrinkage (not for the strength of the concrete as such).
216It would seem therefore that the design and construction of the cycleway was with a view to minimising the need for repair and in the knowledge that this was in a flood plain area (and, as I understand it, the initial problem with the concrete pour on the first day of construction was the fact that there was insufficient moisture - as noted by Mr Zarins). Nevertheless, Mr Stewart conceded the possibility that repair might be necessary, accepting that the track could break if run over on an edge or if it were laid on bad ground (though noting that it is presently in good condition).
217Mr Mark Roebuck, who was the Manager, Roads and Traffic for the Council for 2 and a half years and prior to that was the Divisional Engineer and a traffic engineer at Wollongong Council, has provided an opinion (having regard to the expert witness code of conduct) as to the weight bearing capacity of the cycleway. By affidavit sworn 19 October 2010, Mr Roebuck has deposed to his experience in the construction of roads, his inspection of the cycleway, his finding that it has a low California Bearing Ratio (which means that when the path and surrounding area are saturated then water may seep underneath and undermine the path), his view that repair to the cycleway may be necessary if it is damaged and that if so there would be a need to transport machinery from less than 5 tonnes up to 15-30 tonnes.
218Mr Roebuck's opinion is that the cycleway would sustain damage such as joint displacement and edge cracking as a result of the weight of such machinery both individually and collectively if it were to be driven over the cycleway. He notes that there would be a large turning circle necessary for the machines required to repair the cycleway.
219Mr Roebuck noted that there was restricted access at the Bong Bong common end of the cycleway and to the north but eventually appeared to concede that if the Council had to do so it could access the cycleway north of Lot 19 for the purpose of repair. He accepted that there had been no cause for maintenance or repair to date. (He expressed the opinion that the Council would have little difficulty traversing across path of easement with machinery of the kind to which he had referred - which presumably is the case now that the fences for the horse laneways have been removed.)
220The easement is said by the Council to be variously the only or the best or "at the very least an important alternative" access to the cycleway. It is said that Lot 19 contains an extensive section of the cycleway (though I have not attempted to calculate in geographical terms what proportion of the 4.5km cycleway is within this lot) and that the significance is that the easement provides access at approximately midway on the cycleway (reducing the distance that trucks or machinery may have to pass to repair or reconstruct the cycle way).
221Mr Warren submits that if the Council wishes to traverse or repair or maintain Lot 13 or areas to the north of Lot 19 then it must obtain alternative access since it cannot use Lot 19 to access its other land and therefore in circumstances where Council could be assumed to use Lot 13 by other means and, by using Lot 13 it can similarly gain access to Lot 19, there is no reason why the Council could not continue to use this access over its own land and not by means of Dr Effeney's land.
222As to the question whether use of a concrete truck on the cycleway would damage the concrete in the cycle way, and whether there is alternative access, there is conflicting evidence.
223Mr McLean says that the Council cannot gain access to the cycleway under the Moss Vale Railway Bridge or across Bong Bong common with a concrete truck (although did accept this would be possible with a smaller 2 tonne truck). He says that access by smaller trucks would be "totally ineffective" both because the costs would be too high and because (assuming access was for the purpose of repairing the concrete) smaller trucks could not keep up to the requirements needed to 'slip form' the concrete. Mr McLean asserts that for 'slip forming' it would be necessary to use 6 or 8 wheeler concrete trucks and that this would be detrimental to the cycleway (T 21/22).
224Mr McLean did, however, seem to accept that works had been carried out after the cycleway construction in order to allow access by heavy trucks from a Sullivan Avenue access point (T 23) and that one could now obtain access through Sullivan Avenue (T 36) although this would mean a difficult sharp turn at end of Sullivan Avenue where it joins the cycleway.
225Mr Bowmer commented in his affidavit on the possibility of alternative access points to the cycleway and dismissed those as being unsuitable (Hurlington Avenue, because it is a cul de sac and vehicles greater than 1.5m wide cannot use it; Oxley College and Sullivan Avenue because trucks could only drive to the beginning of the cycleway; Bong Bong common because trucks again could only drive to the commencement of the cycleway and it is a heritage listed site; Riversdale Avenue, because there is no vehicular access.) As to the suggestion that access could be obtained through the Phillips St access point, Mr Bowmer dismissed this due to there being rough vegetation and bush and no vehicular access (although it is not suggested that this could not be remedied by removing the vegetation).
226Mr Bowmer says that it is not possible for vehicles to travel along the cycleway "for any great distance" without driving across the cycleway because there are trees and shrubs on the site.
227Mr Bowmer's conclusion seems to be that the Council cannot gain access from south (because Bong Bong common is an archaeological site - although the conservation plan for the common does seem not to prohibit entry with heavy machinery or trucks of this is for the purposes of repair) and that access from the north would have to be along the cycleway and would risk damaging the cycleway. Therefore, he asserts that if the easement is extinguished the Council will have no means of accessing the land within Lot 19 (which seems to me to be somewhat of an overstatement of the position).
228He also asserts that if the cycleway is unable to be maintained the Council may be forced to close the cycleway (though to me that had the ring of a desperation appeal to the public interest without being based on any empirical evidence as to the problems that lack of access through the subject easement would pose).
229In cross-examination Mr Bowmer was unable to comment on tolerable truck weights on the cycleway and seems to have based his opinion on the access route from the Moss Vale end of the cycleway on an assumption that trucks could not fit under the bridge.
230Mr Lammers is relied upon by Mr Warren as one of the defendant's own witnesses who agrees that access can be achieved by a concrete truck over the cycleway. It is said by Mr Warren that all of the plaintiff's witnesses indicate that the cycle way can support vehicles up to two tonnes (Messrs Lewis, Roebuck and Stewart) and that Mr Stewart additionally says that it can support the occasional use of a ten tonne truck driving over the cycle way (which seems to accord with Mr Lammers' view). There is also a possibility of access to the cycleway via Bong Bong Common, off Moss Vale Road. Thus it is said by Mr Warren that if the Council wishes to repair the cycleway without damaging its concrete it can use a smaller truck rather than a large concrete truck (which has been the case in the past at least for aspects of the construction).
231Further, Mr Warren submits that if the Council is unable to use an easement to access any area other than Lot 19, then it will be necessary for the Council to obtain access elsewhere along the cycleway in any event and so there is no need at all for this particular easement. Insofar as there is such alternative access then it is said that the Council will suffer no substantial injury from the extinguishment of the easement.
232I accept that the benefit to the Council of the easement (and hence the injury it may suffer by its extinguishment) is diminished if, as I consider to be the case, it is not permissible for the Council to have access by way of the easement for the purpose of access to other lots. However, what I cannot draw from that is that there will be no injury to the Council if access to Lot 19 is no longer possible through the easement. Even if that cost is simply that it incurs additional expense in utilising 2 tonne rather than 10 tonne trucks, or in carrying out works to remove vegetation from other access points, that is a real and substantive detriment.
233Therefore I consider that the additional cost imposition likely to fall on the Council by reference to the extinguishment of the easement (even as so construed by me) is an injury of real and present substance for the purposes of the applicable test on this ground.
(v) Discretionary matters
234As to the exercise of the discretion, relevant matters to take into account include the history of the property, the conduct of the owners of both the dominant and servient tenements, the acts of a prior registered proprietor and the state of the register ( Rosedale at [69]); and no one factor is decisive ( Pieper at [340]).
235At [70] in Rosedale , Slattery J noted that the question as to who nears the burden of showing that the discretion ought be exercised once jurisdiction is established depends upon the circumstances, referring to what was said by Hutley JA in Pieper at [340]:
the burden may not always be on one side or the other. Where the acts of abandonment relied on are those of the dominant owner the burden of showing the order should not be made could reasonably be laid on him. Whereas here, the acts relied on are of a predecessor in title of the applicant, of which the respondent had no notice, the burden could well be thrown on the applicant.
236In Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743, Brereton J at [29].noted the caution that the Court will exercise in acceding to an application for the extinguishment or modification of an easement, which is a proprietary right (as did Hamilton J in Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332 at [20] ).
237Mr Warren submits that that there would be no reason why the Court, in the exercise of its discretion, if satisfied that a ground had been made out, would not exercise its discretion in favour of Dr Effeney.
238While the question of discretion does not strictly arise given the findings I have made as to the grounds on which the extinguishment has been sought, I have some difficulty with the proposition that, simply because there may be an available alternative means of access, the Council should be deprived of its proprietary right (particularly where use of the alternative access may be more expensive or less convenient to it).
239As matters to be taken into account in the exercise of the discretion, Mr de Buse points to the fact that Dr Effeney only purchased the property in 2009 and thus became as a result a person interested only a year before he made this application (although that does not seem to me to be a relevant factor where what is to be tested is use of the easement by the owner of the dominant tenement) and that the Council only became entitled to the benefit of the easement on registration of its interest in the newly created Lot 19 in 1995 (i.e. 15 years prior to the application). He points out that if it is the Council's acts or omission which must give rise to the conclusion that it has abandoned the easement then it has, in terms of non user, been a relatively short time and far less than that raised for consideration by s 89(1A). Again, that seems to me not to be strictly to the point - it is the whole of the period that needs to be considered (and the fact that the Council itself may not have used the easement for only 15 years does not seem to me to assist it).
240I have indicated already that I consider the most logical solution would be to relocate the easement along the lines of the arrangement now apparently reached with Millar Investments, to follow the northern boundary line of the property. However, I accept that the statutory power to modify an easement does not extend to moving it to a new route on the servient tenement ( Markos at [117]; Tujilo at [52]).
241Mr Warren notes that there is an unresolved issue as to whether a court can move an easement to another area on the servient tenement if undertakings or other enforceable obligations were given to the court, noting that in Loclot Pty Limited v Pullen [2003] 56 NSWLR 592 Gzell, J. concluded at [18] that it was an "over generous" interpretation of s 89 to suggest that the power extends to the imposition of conditions upon a modification or extinguishment but that in Tamlane Pty Limited v Moorebank Recyclers Pty. Limited [2008] NSWSC 1341 Young J (as his Honour then was) did not share that view and said at [83] that he could see no problem in the court deciding in its discretion "only to extinguish an easement if undertakings or the like were given to the court."
242While there may well be a basis on which the court could take into account undertakings proffered in relation to alternative easement locations as a factor in deciding to exercise a discretion to extinguish an easement on undertakings (so as to facilitate the relocation of the easement) - either because, for the purposes of s 89(1)(a) the decision to move the easement to another site on the servient tenement, and undertakings having been given, this would then constitute a "circumstance of the case which the court may deem material" and hence, if the easement was to be moved, the existing easement would be deemed obsolete or , for the purposes of s 89 (1)( c ) this might enable the conclusion that the extinguishment of the existing easement would not substantially injure the person entitled to the easement if a new easement is to be created pursuant to certain undertakings given by the owner of the servient tenement.
243However, this seems to me to be a moot point where no undertakings have been proffered and I do not consider that it is consistent with the statutory limitations on the Court's power under s 89 to impose as a condition of the grant of relief a requirement that is necessary in order to satisfy the gateways in the first place (to use the terminology in Castagna ).
Conclusion
244The right of way initially granted was in favour of both Lot 16 and Lot 15. I accept that it must have contemplated that the owner of Lot 16 would be permitted to pass across Lot 15 in order to obtain access to Lot 16 (since otherwise the grant in favour of Lot 16 would be meaningless). However, there seems no reason to construe the easement as permitting the owner of Lot 15 to pass across to another lot (Lot 16 or otherwise) if that other lot came to be held in separate hands. I do not accept that the easement as properly construed permits the owner of the dominant tenement to pass across its tenement to have access to other land. Even if that be wrong, there could be no basis to suggest that because the easement should be construed as permitting passage across Lot 19 to the land that was formerly Lot 16, it should similarly be construed as permitting access across to Lot 13.
245I accept the evidence of Mrs Woolridge and Mr Bone that both the gate at the north-western corner and the white gate on the western boundary were at the end of the laneways. This is consistent with the markings observable on the aerial photographs and by the holes left by the removed fencing from the laneways. The white gate clearly gives access only to Lot 13; the north western corner gate, although at roughly the intersection between Lots 13 and 19, appears mainly to open onto Lot 13 as well. I also accept the evidence that, once in the northern paddocks themselves there was no access to the cycleway (it being necessary to pass through the horse laneways for that purpose). That is consistent with the manner in which Mr Genner and Mr Simpson gained access to Lot 13 for the purpose of the earthworks being carried out by Genner Constructions in relation to the project. Further, I accept Mr Bone's evidence as to the placement of concrete slabs in the east/west laneway blocking access to the white gate in about 1995. What became of those slabs is a mystery.
246There is, however, uncertainty as to how access to the construction site was in fact obtained by the Council itself and there is every possibility that they used the same access as Genner. What I am satisfied about is that some access over Lot 2 was obtained during the course of construction of the cycleway by at least some of the Council's contractors via the horse laneways. I also think it possible that the use involved some portion of the right of way at the Songline Place dirt track end.
247I do not accept that the easement has been intentionally abandoned, having regard to the test of abandonment at common law. If, as I am prepared for present purposes to accept, the deeming provision can be invoked where there has been a 20 year period of non-use prior to the applicant moving on an application for relief under s 89 (even though as at the time the proceeding was commenced the easement had not been in existence for a 20 year period), there remains a doubt in my mind as to whether a portion of the right of way might have been used during the construction of the cycleway at the Songline Place end. That doubt precludes a finding as to deemed abandonment.
248In any event, the fact that use of the easement was rendered physically difficult (thus making it necessary for a different route to be followed as a practical matter) is a factor that would lead me to exercise discretion against the extinguishment of the easement on the ground of deemed abandonment. In this regard, I have in mind the great caution that must be exercised when dealing with applications for the extinguishment of a proprietary right.
249As to the usefulness of the easement, the fact that it does not permit access across to other lots does not mean that it is of no use to the Council (or that its extinguishment would be of no substantial injury to it) given that there is a portion of the cycleway within Lot 19 that may in future need repair or maintenance for the purposes of which the Council may wish to use the easement.
250As to the question of substantial injury if the easement were to be extinguished, it is conceded that the suggested alternative access is over land that is covered with rough vegetation and bush - therefore, for the Council to develop it for the purpose of access there would no doubt be expense - and the evidence is that if alternative access would be at a restricted weight bearing load then there will be increased cost to the Council in the event that repair/maintenance of the concrete becomes necessary.
251I was invited to consider relief by way of extinguishment subject to conditions that would impose on the parties an alternative easement arrangement. I accept that if the parties were now to agree that the easement benefiting Lot 19 should be located elsewhere on Lot 2 then it would be appropriate to extinguish existing easement because it could then properly be regarded as obsolete. However, absent the parties' consent in that regard, the caution that must be exercised when considering an interference with property rights leads me to conclude that I should not attempt to impose a solution on the parties by a novel use of the s 89 power.
252Therefore, I find for the third defendant and dismiss the application for extinguishment or modification of the easement insofar as it benefits Lot 19. (As far as the second defendant is concerned I am satisfied that the easement is now obsolete the respective lots no longer being adjacent and there being no easement burdening Lot 19 in relation to access over the Council's land for the benefit of Lot 20. Therefore I consider that it would be appropriate to extinguish the easement insofar as it benefits Lot 20. In relation to the first defendant, no such order seems to be necessary having regard to the agreement reached between Dr Effeney and Millar Investments but based on that agreement, it would be appropriate if requested to extinguish that easement as well.)
Orders
253Subject to any submissions as to the form of the orders, I propose to order as follows