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[2001] QSC 440
respondent. Amended application filed 6 August 2001 refused; paragraphs 1 and 3 of cross-application filed 16 August 2001 allowed; declaration made that the Hoys and Ms Stewart have no rights to draw or pump...
The Court held that a registered easement permitting laying of pipes and services did not, without express wording or necessary implication, allow the dominant owner to draw water from a bore or use the servient owner's pump. The Hoys' application for a declaration and, alternatively, modification of the easement under s 181 was refused. The Allertons' cross-application for a declaration that the Hoys had no rights to draw water was allowed (paras [22], [25], [29]–[33]).
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This dispute concerned the construction and possible modification of a registered easement burdening Lot 6 and benefiting land originally described as Lot 7 (later subdivided into Lots 8 and 9). The operative easement, executed in December 1992 and registered on 20 January 1993, granted “the full right and liberty of laying mains pipes wires cables and drains under or over the said Servient Tenement for the purpose of the supply of water gas telephone electricity drainage and the like services to any house or building now erected or to be erected on the Dominant Tenement” [2]. The central factual background is that there was a bore located on Lot 6 supplying water to the house on the dominant land; subsequent purchases and subdivisions led to a dispute when the Allertons bought Lot 6 in 1997 and questioned the legal basis on which the Hoys continued drawing water from the bore [4], [7], [12]–[15].
No linked legislation citations have been extracted yet.
The Hoys sought a declaration that the easement entitled them to draw water from the bore and, in the alternative, application for modification of the easement under s 181 of the Property Law Act so that the parties would share access and costs (three days per week / four days per week regime proposed) [28]. The Allertons sought a declaration that the Hoys had no rights to draw or pump water from the bore [33]. At trial Atkinson J held that the easement did not confer a right to draw water or to use the pump belonging to the servient owner, and refused the application to modify the easement; the Allertons’ declarations were made and prior consent orders discharged (orders and paras [22], [29]–[33]).
Three lines of reasoning determined the outcome.
Construction of the instrument: The Court applied orthodox principles of construction for registered easements under a Torrens title regime. A registered easement is ordinarily limited to the rights expressed in the instrument, or those rights to be implied by necessary implication. The Court emphasised the primacy of the register as the repository of rights, subject only to a narrow gloss allowing consideration of the parties’ contemplation at the time of grant as an aid to interpretation but not as a licence to expand the grant on the basis of private, unexpressed intentions [23]–[26]. On that basis the words in the easement (the right to lay pipes “for the purpose of the supply of water”) were held insufficient, on their face, to import a right to draw water from the servient owner’s bore or to use the pump located on the servient land [22].
Ancillary rights boundary: The Court considered the scope for ancillary rights, those incidental rights reasonably necessary for enjoyment of the easement. It accepted that certain ancillary rights (for example, entering the servient land to repair a pipe) may be implied, but held that such ancillary rights do not extend to using fixtures or equipment owned by the servient owner. The dominant owner could not assert a mere ancillary right to make use of the bore and pump owned by the servient tenement; the implication of such a right would effectively give the dominant owner rights in another’s chattels or installed fixtures, which is not permissible absent express grant or necessary implication [27].
Statutory modification limit: The Court interpreted s 181 Property Law Act in a restrictive way. The judge concluded that the word “modify” primarily means to limit or restrain rights (that is, to reduce or alter existing easement rights), not to enlarge them; the statutory power was therefore not a clean instrument to grant new rights to the dominant owner. Even if broader meanings were entertained, the Court emphasised statutory requirement that modification must not “substantially injure” persons entitled to benefit of the present restriction. The proposed amendment, imposing duties on the servient owners to share pump use, maintenance, and costs, would cause real and present injury and was refused [29]–[31].
On these grounds Atkinson J concluded the Hoys had no right to draw water under easement no 601418401 and that the proposed modification should not be made; the Allertons were entitled to the declaratory relief sought [32]–[33].
Before Hoy v Allerton
After Hoy v Allerton
Paragraph [22], Judicial statement of construction: "A proper construction ... entitles the owner ... to lay pipes ... It does not ... entitle ... to draw water from the bore ... nor to the use of the pump ..." Plain English: The document allows you to install pipes to carry services to your land; it does not automatically let you take water from your neighbour’s bore or use their pump unless the easement clearly says so.
Paragraph [25], On implication and register integrity: "What can be implied into an easement cannot depend on the private unexpressed views ... To hold otherwise would be an unacceptable undermining of the integrity of the register." Plain English: You cannot expand the rights created on paper by referring to what the parties privately thought or wanted but did not write down; the registered title must be reliable.
Paragraph [29], On the statutory power to modify: "The word 'modify' has as its primary meaning to 'limit or restrain' ... the court's power to modify an easement is a power to limit or restrain rights given under an easement." Plain English: The court’s statutory power is mainly to reduce or restrain easement rights, not to create new ones for a dominant owner.
Paragraph [31], On 'substantial injury': "The word 'substantial' ... does not mean a large and considerable injury but means an injury which has present substance; that is to say, not a theoretical injury ..." Plain English: The court will refuse to change an easement if the change would cause a real and immediate disadvantage to those who currently benefit from the restriction.
Hoy v Allerton is directly on point where:
In these fact patterns Hoy v Allerton signals that courts will require explicit drafting or agreement for water-taking rights and will be cautious about implying rights that impose burdens on the servient owner.
This judgment records its own engagement with prior authorities but does not contain material about how later courts treated Hoy v Allerton. Practitioners wishing to know subsequent judicial treatment must consult a current citator or law report service to trace later consideration, citation, approval or distinction. The decision itself aligns with established authorities it cites (for example SS & M Ceramics v Kin, Bulstrode v Lambert, Jones v Pritchard) and applies those principles in the Queensland Supreme Court context (see paras [23]–[27]).
Scope of 'ancillary' in other contexts: Hoy v Allerton draws a line against implying rights to use servient fixtures, but does not fix every boundary of ancillary implication. In cases where the servient owner has installed plant to facilitate shared services with a clear historical practice and evidence of negotiation, courts may still find implication; Hoy leaves uncovered borderline situations where physical necessity and clear contemporaneous conduct point strongly toward implication.
The meaning of 'modify' in different statutory contexts: Atkinson J interprets 'modify' narrowly in s 181, relying on historical drafting and authority [29]. Different jurisdictions or amended statutory wording could attract different approaches; the question whether a broader purposive approach to 'modify' might be available remains open in other contexts.
Management of shared limited resources: Hoy is cautious about imposing court-made sharing regimes where practical enforceability and resource depletion are concerns [30]. But the decision does not provide a blueprint for cooperative management orders (for example, detailed cost-sharing and scheduling mechanisms) where parties have overlapping rights; whether a carefully framed consent modification or an agreed statutory contract would be upheld remains factual and contextual.
Interaction with subsequent conveyancing: The judgment recognises that parties can expressly create the water-taking rights (as to Lot 9 in this case via a specific instrument) [10]. A practical question is whether a later owner’s acquisition with knowledge and use can, by acquiescence or proprietary estoppel, establish broader rights, Hoy emphasises the limitation of private unexpressed intentions but leaves open complex equitable claims based on reliance and representation, issues not litigated or decided on the present facts.
Practical takeaways: ensure express drafting where water-taking, shared use of plant, maintenance obligations, cost-sharing and access regimes are intended; do not rely on generic service easement language to secure rights to use another’s bore or pump; and be mindful that statutory modification is unlikely to be used to enlarge a dominant tenement’s rights where this would present a real burden to the servient owner (paras [2], [22], [25], [29]–[31]).
[1] Richard Derick Hoy and Mary Rose Hoy (Mr and Mrs Hoy) and Anthony David Allerton and Roslyn Myrna Allerton (Mr and Mrs Allerton) own properties in Mapleton. Mr and Mrs Hoy have the benefit of an easement over the property owned by Mr and Mrs Allerton. Both Mr and Mrs Hoy and Mr and Mrs Allerton have brought applications in this court which essentially require a determination of the meaning of the easement and, in the event that it does not have the meaning for which either party contends, the amendment of the easement pursuant to s 181 of the Property Law Act 1974.
[2] The grant given by the easement in question is in the following terms:
"The full right and liberty of laying mains pipes wires cables and drains under or over the said Servient Tenement for the purpose of the supply of water gas telephone electricity drainage and the like services to any house or building now erected or to be erected on the Dominant Tenement.
The Grantees will not at any time obstruct the Servient Tenement in any manner whatsoever AND it is agreed that the rights and liberties hereby granted shall be forever appurtenant to the Dominant Tenement without any unnecessary obstruction whatsoever by the registered proprietor of the Servient Tenement."
[3] The essential question of construction is whether or not this easement entitles Mr and Mrs Hoy to draw water from a water bore ("the bore") situated on Lot 6 within the area of the easement which is registered over property now owned by Mr and Mrs Allerton.
[4] It is necessary to recount the circumstances which led to the current application. In about 1988, Klaus Tschech and Roswitha Wuerden-Tschech acquired land then described as Lots 6 and 7 on RP 849831, County of March, Parish of Kenilworth ("Lots 6 and 7"). Mr Tschech and Ms Wuerden-Tschech resided on Lot 7 and regularly drew water from the bore situated on Lot 6. There was a bore on Lot 7 but it was dry. Lot 7 has since been subdivided into Lots 5, 8 and 9 on RP 889075, while Lot 6, which has a road frontage to Obi Obi Road, has remained the same. Lot 6 is 8,135 square metres in area. Lot 8 is 4,000 square metres in area. Lot 9 has a designated although un-constructed road running through it. Lot 9 is much larger with a total area of 6.4241 hectares.
[5] In December 1992, Mr Tschech and Ms Wuerden-Tschech engaged a surveyor and solicitors to register an easement over Lot 6. In her affidavit, Ms Wuerden-Tschech says that this was "for the purpose of formalising rights for Lot 7 to draw water from the bore located on Lot 6." However, in oral evidence she conceded that she could not remember whether or not she mentioned the bore to the solicitor who drew up the terms of the easement. She says that she relied upon the advice given by the surveyor and solicitors when the easement was created. She says in her affidavit that had she known that the easement did not specifically provide for the entitlement for the then Lot 7 to draw water from the bore, she would have ensured the wording was altered so it did.
[6] On 14 December 1992, Mr Tschech and Ms Wuerden-Tschech executed the grant of easement which is the easement the subject of these proceedings (easement no 601418401 being "A" on RP 849831). Both the grantors and the grantees were Mr Tschech and Ms Wuerden-Tschech. That easement was registered on 20 January 1993.[1]
[7] On 11 July 1994, Mr and Mrs Hoy purchased Lot 7 on RP 849831 from Mr Tschech and Ms Wuerden-Tschech. Lot 7 was the dominant tenement for the easement. As well as being the vendor, Mr Tschech was the real estate agent from Crest Realty who marketed the land. The marketing brochure for the sale of the property said "a bore supplies unlimited pure drinkable water." Mr Hoy was told by Mr Tschech that the property drew water from a bore which was located on an adjoining property. Mr and Mrs Hoy intended to use the property to develop bed and breakfast accommodation.
[8] In December 1995, the Maroochy Shire Council approved Mr and Mrs Hoy's application for use of the residence on Lot 7 as bed and breakfast accommodation for a maximum of six occupants.
[9] From the time when they commenced residing on the property on Lot 7, Mr and Mrs Hoy drew water from the bore on Lot 6. There is not at present any articulated town water supply. The bore pump was operated by an electric switch which had been installed on their property on Lot 7 prior to their purchase of it.
[10] On 1 May 1997, Mr and Mrs Hoy subdivided Lot 7 into two allotments. It became instead Lots 8 and 9 on RP 889075. In this subdivision, easements were created over Lot 8 and Lot 9. These easements were easement no 701949532 over the land on easement A on RP 889075 and easement no 701949535 over the land covered by easement B on RP 889075. Easement no 701949532 is in the same terms as easement A on RP 849831, the easement in question in these proceedings, the terms of which are set out in paragraph [2] of this judgment. Easement no 701949535 however provides:
"The Grantor will permit the Grantee their licensees, invitees, successors in title and all persons authorised by the Grantee or their successors in title or any of them free and uninterrupted right to take water from a dam adjoining the servient tenement through pipes situated on or under the servient tenement to pipes situated on or under the dominant tenement together with the right at all times and from time to time to enter upon the servient tenement for all purpose incidental to the installation, use, maintenance, repair and replacement of pipes on or under the servient tenement for the purpose of taking the said water to the dominant tenement PROVIDED THAT they will not at any time obstruct the servient tenement in any manner whatsoever AND PROVIDED FURTHER that the registered proprietor of the dominant tenement shall install any pump or other device for taking the said water on the dominant tenement and not elsewhere AND it is agreed that the rights and liberties hereby granted shall be forever appurtenant to the dominant tenement without any necessary obstruction whatsoever by the registered proprietor of the servient tenement PROVIDED HOWEVER that the registered proprietor of the dominant tenement shall be responsible for the upkeep and maintenance of the servient tenement AND PROVIDED FURTHER that the Grantor and his successors in title to the servient tenement shall be entitled to the full and free use of the servient tenement for such purposes as they may think fit subject only to the rights hereby conferred on the Grantee his successors in title and the occupier or occupiers for the time being of the dominant tenement. The words "Grantor" and Grantee" shall include the singular as well as the plural and reference to any gender shall include all other genders where the context requires."
It explicitly gives the right to take water which easement A fails to give.
[11] Easement A now covers the eastern boundaries of Lot 8 and Lot 6. It is approximately 4.43 metres wide (widening to 7 metres when it reaches Obi Obi Road) and travels the length of Lots 6 and 8 between Lot 9 and Obi Obi Road. The bore and pump are approximately half way along the eastern boundary of Lot 6 in the area covered by easement A. There is underground poly pipe and power running along the easement from Lot 9 to the bore on Lot 6. Also in easement A on Lot 6, about 18 metres from Obi Obi Road, are two power poles with separate electricity supplies, one of which is used to supply power to Mr and Mrs Hoy and one of which is used to supply power to Mr and Mrs Allerton. Easement B travels from the boundary of Lot 8 over Lot 9 to a dam in Lot 9. Lot 8 has since been purchased by Patricia Anne Stewart who was served as the second respondent in the cross-application but took no part in these proceedings. The transfer of Lot 8 to Ms Stewart was registered on 3 August 2001.
[12] On 12 October 1997, Mr and Mrs Allerton entered into a contract to purchase Lot 6 on RP 849831 which is situated at 210 Obi Obi Road, Mapleton, from its then owners, Ian Wallace Macqueen and Beverley Joy Macqueen. Mr Allerton says in his affidavit that he and his wife wished to purchase land on which to build a residence, which could also be used as bed and breakfast accommodation, and on which they could establish an agricultural enterprise. Mr Allerton noticed that there was a bore on Lot 6 which was in the area covered by the easement but was unaware that it was being used to provide water to Lot 9. He said the presence of the bore was the deciding factor in their decision to buy the property because they wished to use the property for agriculture as well as a residence. He spoke to his father-in-law, who has a commercial bore operation in South Australia, about how to make the bore, which they thought was derelict, operational.
[13] Mr and Mrs Allerton engaged solicitors to act on their behalf with respect to the purchase and to undertake the necessary conveyancing, including title searches, on the property. The title searches showed that the property was burdened by easement no 601418401. Mr and Mrs Allerton were aware before settlement of the purchase of the land of the terms set out in the easement and the lots benefited and burdened by that easement. As a result of the searches conducted by their solicitor, Mr and Mrs Allerton were satisfied that there were no covenants, obligations or rights over the land except those disclosed by those searches. On the basis of those satisfactory services, Mr and Mrs Allerton proceeded with settlement which was completed on 12 November 1997.
[14] Mr Gardiner, the solicitor who acted for Mr and Mrs Allerton in that conveyance and who acts for them in these proceedings is an experienced solicitor with extensive experience in conveyancing. He has drawn many easements, especially in rural and rural-residential circumstances, that provide for services and, more specifically, water supply. In an affidavit sworn by him in these proceedings he exhibits a number of the styles of easement which would be more appropriate if the owners of the lot benefited by the easement were to draw water from the lot burdened by the easement. This is not such an easement. His experience is that the easement in question in this case is the form of easement commonly used to provide for services only and not for the supply of water or, in particular, bore water. In his opinion, a water supply easement is a specific document that is drawn for such a purpose, which makes specific reference to the supply of water, and the means of supply and appropriate covenants and conditions to facilitate that supply. Of course, it must be steadily borne in mind that Mr Gardiner, while experienced, is not independent in this case and his opinion is not determinative. Nevertheless, he appears to be clearly right. His view is one with which I agree. As Mr Macklin submitted on behalf of the Allertons, the Australian Encyclopaedia of Forms and Precedents[2] sets out a standard form of water agreement which may be used to give effect to the right to draw water from a bore on another's land.
[15] The property was registered by Mr and Mrs Allerton on 18 November 1997. Between December 1999 and August 2000, Mr and Mrs Allerton constructed a residence on Lot 6. They installed a 12,000 gallon rainwater tank to collect rain water. However, when Mr and Mrs Allerton moved in, the tank was empty and it was therefore necessary for them to purchase water for domestic use. Mr Allerton then discovered that the bore on his property was supplying water exclusively to Mr and Mrs Hoy and that the electric switch to activate the pump in the bore was on the Hoys' property. Ad hoc arrangements were made for the Allertons to also make use of water from the bore but difficulties arose because of the impracticability of the arrangement due to the fact that Mr Allerton had to enter Mr and Mrs Hoy's property to use the electricity for the pump to access water from the bore. Mr Allerton doubted Mr Hoy's legal right to use the pump and bore situated on the Allertons' property.
[16] Towards the end of September 2000, Mr Allerton told Mr Hoy that he would provide his own tap and pipe system at the bore head, to enable Mr Allerton to draw water from the bore when he wished to use it. Mr Hoy did not then oppose the proposal. Mr Allerton installed stopcocks to each of the water pipes leading to the two properties so that water could be used by one party or the other. The water flow was not sufficient to supply both properties at the same time.
[17] Mr Allerton and Mr Hoy agreed to the installation of a dual electrical switching system on the pump and towards the end of October 2000, Mr Allerton engaged an electrician, Mr Domenic Stilla, from BBS Electrics. Mr Stilla is an experienced electrician with particular expertise in the electrical installation of bore pumps. However, Mr Allerton continued to express his concern to Mr and Mrs Hoy about the Hoys' lack of legal right to use the bore and the pump. Mr Stilla advised Mr Allerton after his inspection that it was not possible to have two concurrent power supplies to one pump, nor was it possible to have a dual switch device installed whereby either party could operate the pump independently of one another. Mr Stilla repeated that opinion, which I accept, in sworn evidence before the court. I agree with his reasons for rejecting an alternative view given in a quotation by another electrician who did not give evidence. Mr Stilla recommended that a manual switch be installed to operate the pump.
[18] Mr Allerton then advised Mr Hoy that the dual switching arrangement was not possible and that the most logical solution was to install a manual switch at the bore head because this was where the stopcocks were located so as supply the correct flow once the pump was manually activated. This would prevent the accidental activation of the pump while the stopcocks were closed which could cause damage to the pump. Mr Hoy agreed to that proposal and a verbal arrangement was entered into whereby Mr or Mrs Hoy would contact Mr or Mrs Allerton and request that the bore pump be turned on. Mr Allerton told Mr Hoy that he would pay for the alteration of the power supply and that he would be prepared to pay for electricity power costs for the running of the pump while Mr Hoy used it and that no payment was required from him. In spite of his denial of it in evidence, I accept that Mr Hoy agreed to that proposal.
[19] On 9 November 2000, BBS Electrics, on instructions from Mr and Mrs Allerton, disconnected Mr and Mrs Hoy's electricity supply to the pump and installed a new control unit which has valves which can be manually switched to provide water to the property owned by Mr and Mrs Hoy or to the property owned by Mr and Mrs Allerton.
[20] From 12 December 2000 until 28 February 2001, Mr and Mrs Hoy were overseas. Upon their return, they instructed solicitors to write to Mr and Mrs Allerton proposing an amendment to the easement explicitly providing for the right "to pump water from the bore on the servient tenement" to conform with what they said was the intent and usage of the easement. Attempts at co-operative arrangements had by that time broken down and the relationship between the neighbours had deteriorated. Since then, limited sharing of the water pumped from the bore has been achieved by interlocutory orders of the court made with consent of the parties.
[21] On 15 August 2001, Paul Markwell, a licensed water driller, ground water consultant and pump sales operator, produced a report on the bore on Lot 6. He gave evidence as to the construction of the bore. First, a cylindrical hole is drilled through the rock and other material until the aquifer is found in decomposed basalt. Then a sleeve is put down the cylindrical hole to stop the hole falling in. Then a pump is installed to pump the water up to the surface. His report shows that the bore is approximately 60 metres deep and 100mm in diameter. The bore has a Grundox submersible pump which is used to pump water from the underground aquifer to the surface. The bore is only a minimum sized domestic bore. It does not, in his opinion, have the capacity for commercial use, nor does it have the capacity to be shared by three land owners with normal usage, or commercial usage by one or more of such owners. Mr Markwell gave evidence that a bore could be drilled on the Hoys' property. The total cost of such a bore would not exceed $7,000.00 but there would be no more than a 50 percent chance of finding water on any drilling of the Hoys' property.
[22] A proper construction of the easement is that it entitles the owner of Lot 7 to lay pipes and wires across the area of Lot 6 covered by the easement for the purpose of the supply of water, gas, telephone, electricity, etc. It does not, on its face, entitle the owner of the dominant tenement to draw water from the bore owned by the holder of the servient tenement, nor to the use of the pump owned by the holder of the servient tenement. The applicants submitted that the easement could be construed to give rise to these rights either by having regard to all of the material facts existing at the time of execution of the grant of the easement or by treating the right to draw water and use the pump as ancillary rights which are reasonably necessary to the exercise or enjoyment of the rights given by the easement.
[23] The easement is a registered instrument on land subject to the Land Title Act. The underlying principle of the Torrens system is, as McPherson JA stated in SS & M Ceramics Pty Ltd v Kin,[3] to maintain the register as the sole repository of parties' rights and duties. However in the case of easements, there is a recognised gloss on that principle. Where it is suggested that the rights conveyed by an easement are greater that would be conveyed by the literal terms of the grant of easement, then it may be necessary to consider what was in the contemplation of the parties at the time of the grant.
[24] This gloss does not, however, change the fundamental principle that a grantor may not derogate from the grant, and the grantee is not entitled to more than is granted. An examination of the facts and circumstances existing at the time of the grant can be used as an aid to interpret the meaning of the grant. In Bulstrode v Lambert,[4] the right to pass and repass was held to include the right to stop to load and unload. Such a right has generally not been considered a misuse of the grant. It has been held in many cases that the right to halt and unload is incidental to the right to pass and repass.[5] At the time the easement in Bulstrode was entered into, the right to pass and repass would have been devoid of utility had it not included the right to load and unload since there was no space available on the dominant tenement to stop. However, in the case of SS & M Ceramics Pty Ltd v Kin the right to pass and repass was held not to imply the right to stop for the purposes of loading and unloading because at the time the easement was created such an implication was unnecessary. At that time, there was sufficient space on the dominant tenement to stop and engage in that activity. Changes made to the buildings on the dominant tenement had meant that it was no longer possible to stop and load or unload, but this could not be used to increase the grant once made.
[25] In the present case, an examination of the facts and circumstances which existed at the time of the grant does not, however, assist the owners of the dominant tenement, Mr and Mrs Hoy, in this case to expand the grant beyond the words used. I accept that at the time the easement was created, Mr Tschech and Ms Wuerden-Tschech must have had in mind that it would be desirable to allow access by the dominant tenement to the water pumped from the bore on the servient tenement. However, Ms Wuerden-Tschech is uncertain whether she mentioned this to the solicitor who drew up the terms of the easement. Such a right could have been incorporated into the terms of the grant but was not. It is my view that she did not specifically mention the matter to the solicitor. What can be implied into an easement cannot depend on the private unexpressed views of the grantor or the grantee of what it would have been desirable to grant. To hold otherwise would be an unacceptable undermining of the integrity of the register.
[26] As Macrossan CJ held in SS & M Ceramics Pty Ltd v Kin:[6]
"The limited language of the grant which the parties have chosen to employ should be observed without expansion of meaning beyond what the words on their face would fairly encompass."
Only in the clearest of cases should it be otherwise. As McLelland J said in Zenere v Leate:[7]
"The dominant owner only has such rights as are to be found expressly or by necessary implication in the terms of the grant. The servient owner has all the rights of an owner except those which are inconsistent with the exercise by the dominant owner of the rights expressly or by necessary implication conferred on him by the terms of the grant."
[27] Is the right to draw water ancillary to the rights given? A grant may also grant such ancillary rights as are reasonably necessary to the exercise or continued enjoyment of the easement granted.[8] Although there may be no duty on the owner of the dominant tenement to repair,[9] for example, there is an implied right to enter the servient tenement and repair so long as it causes no undue interference to the holder of the servient tenement.[10] In this case, however, the dominant tenement has to assert a right to use the bore and the pump owned by the servient tenement in order to draw the water. The difficulties of sharing the equipment aside, there can be no mere ancillary right to make use of fixtures and equipment belonging to another.
[28] Mr Dawson of counsel, on behalf of Mr and Mrs Hoy, submitted finally that if the court did not find that the grant of easement enabled the Hoys to draw water from the bore, then the easement should be modified under s 181 of the Property Law Act so that Mr and Mrs Hoy have access to the bore three days a week, and Mr and Mrs Allerton four days a week, with equal sharing of the cost of repairing and maintaining the bore and the pump and with each party being responsible for their own electricity costs.
[29] Section 181 of the Property Law Act does not provide for an easement to be modified unless to do so would not substantially injure the persons entitled to the benefit of the present restriction. The power given to the court is to "modify or wholly or partially extinguish the easement." The word "modify" has as its primary meaning to "limit or restrain". In my view, the court's power to modify an easement is a power to limit or restrain rights given under an easement. The phrase is taken from s 84 of the Law of Property Act 1925 (UK) drafted at a time which suggests that it should be understood in this precise sense. The word "modify" does not have the same meaning as change, amend or vary.
[30] Even if it is given a wider, less precise meaning, the court would be reluctant to amend an easement in a case such as this, which would increase the rights granted to the dominant tenement. To do so would mean that the court would impose a duty on the servient tenement to provide equipment for the use of the dominant tenement and to impose a regime of sharing resources which would be onerous and difficult to enforce while at the same time proving likely to deplete the very resource which the parties would be forced to share.
[31] This would be an injury of substance to the owners of the servient tenement. In so finding I respectfully agree with the interpretation of an equivalent section by Jacobs J in Re Mason and the Conveyancing Act[11] that the word "substantial" in this context does not introduce a comparison between the disadvantage to the subject land and the disadvantage by modification of the easement to the land having the benefit of the easement. It does not mean a large and considerable injury but means an injury which has present substance; that is to say, not a theoretical injury but something which is real and has present substance. Any amendment of the easement as proposed by the Hoys would have such an effect.
[32] The easement does not give Mr and Mrs Hoy the right to draw water from the water bore situated on Lot 6. No amendment should be made to the easement pursuant to s 181 of the Property Law Act. It follows that the orders sought in the amended application filed by Mr and Mrs Hoy on 6 August 2001 should be refused.
[33] In their application filed on 16 August 2001, Mr and Mrs Allerton sought a declaration that Mr and Mrs Hoy and Ms Stewart have no rights to draw or pump water from the bore on the servient tenement (owned by Mr and Mrs Allerton) pursuant to easement no 601418401 registered over Lot 6 on RP 849831, County of March, Parish of Kenilworth. It is appropriate for the court to make that declaration and to discharge the consent orders which have been made in this matter.
[1] Pursuant to s 86 of the Land Title Act.
[3] [1996] 2 Qd R 540 at 548
[5] Elliot v Renner [1923] St R Qd 172 at 180, 182; SS & M Ceramics v Kin (supra) at 551 per Ambrose J; Robmet Investments Pty Ltd v Don Chen Pty Ltd [1997] NSWSC, No 3874 of 1996, 23 May 1997, Windeyer J at 7; Grieve v Macarthur Capital Pty Ltd [2000] QSC No 7874 of 1999, 6 April 2000, Wilson J.
[6] (supra) at 545; Jones v Pritchard [1908] 1 Ch 630 at 638.
[7] (1980) 1 BPR 9300 at 9304 quoted with approval by Young J in Finlayson v Campbell [1997] NSWSC, No 4796 of 1994, 4 September 1997 at 15.
[8] Jones v Pritchard (supra); Prospect County Council v Cross (1990) 21 NSWLR 601; The Owners of SP 48754 v Anderson [1999] NSWSC 580, No 1765 of 1999, 15 June 1999 at [27] - [30].
[9] Neither, in the absence of agreement, is there any duty on the owner of the servient tenement to repair: Frater v Finlay (1968) 91WN (NSW) 730 at 333; Jones v Pritchard (supra) at 637.
[10] Bland v Levi [2000] NSWSC 161, No 1456 of 2000, 6 March 2000, at [13], [14] and [22].
Hoy
Allerton & Anor [2001] QSC 440
(1990) 21 NSWLR 601
Amended application filed 6 August 2001 refused; paragraphs 1 and 3 of cross-application filed 16 August 2001 allowed; declaration made that the Hoys and Ms Stewart have no rights to draw or pump water from the bore on the servient tenement and prior consent orders discharged (order; paras [32]–[33]).