Maher v Bayview Golf Club

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

4626/02 REGINALD BEDE MAHER v BAYVIEW GOLF CLUB LIMITED JUDGMENT 1 HIS HONOUR: This case concerns the extent of a right of way to which the plaintiff ("Mr Maher") is entitled by prescription over land of the defendant ("the Club"). 2 The Club does not contest that Mr Maher is entitled to a prescriptive right of way. However it says that the right of way to which he is entitled is one which: · exists only during daylight hours; · accommodates only one dwelling; · is of a width sufficient to allow the passage of one lane of vehicles only; · allows the passage only of non-industrial and non-commercial vehicles.

Mr Maher contends he is entitled to a right of way which is exercisable 24 hours a day, is subject to no restriction about the number of dwellings it can accommodate, is twenty feet or six metres wide, and is exercisable with or without motor cars or other vehicles laden or unladen. Layout of the Locality 3 Mr Maher's land is Lot 1 in Deposited Plan 230607. The Club owns Lot 2 in that same Deposited Plan. The layout of land in the Deposited Plan, editing out many details irrelevant to the case, is as follows:

In reality, Darley Street runs in a direction which is roughly northwest to southeast. For ease of description in this judgment, however, I will treat it as running in an east-west direction. 4 The Club, as it name suggests, operates a golf course. As well as owning Lot 2 in DP 230607, the Club owns other land which lies to the west of that Lot, and forms part of the golf course. The Club also owns the three lots shown as 7, 8 and 9 in the diagram, which are lots in a separate Deposited Plan. Lots 7, 8 and 9 have, at all relevant times, been used as part of a carparking area for the Club. Land other than Lots 7, 8 and 9, which lies to the east of the eastern boundary of Lots 1 and 2 in DP 230607, is subdivided and has houses built on it. 5 From the diagram it is apparent that Lot 1 is a battleaxe shaped block. Running roughly northwest from the northernmost part of the handle of that battleaxe is an area, twenty feet wide, over which Lot 1 has a right of way, which was created by the registration of DP 230607. That right of way is used to obtain access from Lot 1 to Pittwater Road. Lot 1 has erected on it a single dwelling with garage attached (which has been there many decades) and a newer detached double garage. 6 The right of way which Mr Maher claims to be entitled to by prescription, in these proceedings, is one which leads, in roughly a southerly direction, from the southern boundary of Lot 1 to Darley Street. Darley Street has less traffic than does Pittwater Road, and a driver seeking to use the registered easement leading to Pittwater Road has his or her vision of other traffic on the road somewhat obscured. This is at least part of the explanation for why Mr Maher wishes to assert the prescriptive easement leading from Lot 1 to Darley Street. It is, however, irrelevant to any decision about the extent of the prescriptive rights which Mr Maher has. 7 The southern boundary of Lot 1 has erected on it a low sandstone wall. It has a gap in it, which is (as ascertained by a measurement conducted on a view) 3 metres wide. Immediately inside each end of that gap is a metal post, of a kind adapted to carrying a gate. The distance between those metal posts is 2.8 metres. The gap has been in the wall since at least 1949. At one stage that gap had a gate constructed in it, which was a "locking type gate". Evidence does not establish whether at any time the gate was actually locked, or who had any keys which there might have been to it. Any such gate had disappeared by 1960. At some time after December 1961 there was a loose chain across the gap, but that chain was never padlocked. At some stage (which the evidence does not enable to be fixed even roughly) that chain was removed. 8 At all relevant times the Clubhouse has been erected on Lot 2, in the area which lies to the south of Lot 1. The shape of the Clubhouse, on its eastern side, is that of an "L", with the southern part of the Clubhouse forming the foot of the "L". The southern part of the Clubhouse has a set of steps lying on its eastern side. The part of those steps which is the closest to the eastern boundary of Lot 2 is more than 6 metres from that boundary. 9 The defendant was incorporated as a company in 1948. It has conducted a golf course on land which includes Lot 2 since at least 1951. There has been a golf club on the site since as early as 1938, and maybe earlier. History of Conveyancing and Title Concerning the Land 10 Title to the land comprised in Lots 1 and 2 in DP 230607 was, from at least February 1925, held under old system title. The parcel of land now making up Lots 1 and 2 was purchased on 2 February 1925 by John Orr, by conveyance Registered Number 920 Book 1381. He and Christina Orr lived in the house which is now occupied by the plaintiff from at least 1939 onwards. After the death of John Orr in 1941, Christina Orr was appointed his executrix. She was also the devisee of that parcel of land, and other land used for the golf course, under his will. 11 On 9 July 1963 Christina Orr leased to the Club various parcels of land, including the land in conveyance Number 920 Book 1381, for a term of five years from 10 August 1963. The lease was subject to an exception of: "ALL THAT piece or parcel of land comprising one and one-quarter acres a little more or less upon which is erected the dwelling house of the Lessor and which said piece of land is enclosed and is situated in the South-western corner of the land hereby demised."

The lease was also subject to a reservation: AND RESERVING unto the Lessor her executors administrators assigns servants and all other persons authorised by the Lessor her executors administrators and assigns full and free right and liberty at all times hereafter and for all purposes to pass and repass with or without horses or other animals carts carriages motor cars and other vehicles laden or unladen from Darley Street to and from the dwelling house of the Lessor through the parking area contained within the lands hereby demised as a private right of way to Darley Street for all purposes to the end and intent that the right of way hereby reserved shall be appurtenant to the area of One and one-quarter acres hereinbefore excepted."

The lease imposed an obligation on the lessee to pay rent by quarterly instalments, in advance. One of its recitals recorded that by a Memorandum of Lease made on the same day certain lands held under the Real Property Act 1900 were leased by the Lessor to the Lessee. The Deed of Lease contained an agreement: "… that all the covenants both express and implied and all the agreements conditions and stipulations in the said Memorandum of Lease contained shall be deemed to have been incorporated in this demise." 12 The evidence does not disclose what right the Club had, before this lease was executed, to occupy the land on which it had its golf course, Clubhouse and parking area. 13 Deposited Plan 230607 was registered on 27 September 1966. That Deposited Plan created Lots 1 and 2, earlier described, and the right of way to Pittwater Road earlier described. 14 On 20 January 1967 Christina Orr (called "the Vendor"), executed a conveyance in favour of the defendant (called "the Purchaser") of the land in Lot 2. After reciting some earlier history of the conveyancing of the land, the deed continued: "AND WHEREAS by Deed of Lease dated the ninth day of July in the year one thousand nine hundred and sixty three Registered Book 2662 Number 16 the lands hereinafter described were with other lands demised to the Purchaser for the term of five (5) years from the tenth day of August in the year one thousand nine hundred and sixty three at the rent and subject to the covenants on the part of the Lessee and the conditions therein contained. AND WHEREAS the Vendor as such Executrix as aforesaid has agreed to sell and the Purchaser has agreed to purchase the said lands together with certain other lands the title to which is under the provisions of the Real Property Act 1900 (as amended) subject to the said Deed of Lease for the sum hereinafter mentioned. NOW THIS DEED WITNESSSETH that in pursuance of such agreement and in consideration of the sum of one hundred and forty thousand dollars ($140,000.00) (being the same consideration as is mentioned in a Memorandum of Transfer of even date herewith from the Vendor to the Purchaser) paid by the Purchaser to the Vendor (the receipt whereof is hereby acknowledged) the Vendor as Executrix of the said Will in pursuance of the power conferred on her by the Wills Probate and Administration Act 1898 (as amended) and the Conveyancing Act 1919 (as amended) and of every other power her hereunto enabling DOTH HEREBY CONVEY and the Vendor as beneficial owner DOTH HEREBY CONFIRM unto the Purchaser in fee simple all those pieces or parcels of land described in the First Schedule hereto situated in the Shire of Warringah Parish of Narrabeen and County of Cumberland subject to the said Deed of Lease."

The first schedule to that Deed identified various parcels of land, including: "… ALL THAT piece or parcel of land containing 7 acres 0 roods 7¼ perches being Lot 2 in Deposited Plan Number 230607 and being part of the land described in Conveyance Registered Book 1381 Number 920 RESERVING thereout as appurtenant to Lot 1 in the said Deposited Plan a right of carriageway over the land shown therein as "Right of Carriage Way 20 feet wide …"

Thus, the only right of way which Christina Orr expressly reserved in this conveyance was the right of way which is used to obtain access from Lot 1 to Pittwater Road. 15 Christina Orr died on 7 April 1971, and by her Will left her cottage at Mona Vale to Henry Johnson. The terms of the bequest are recorded in an acknowledgement which the executors of her estate made in favour of Mr Johnson, as being a devise of: "her cottage at Mona Vale (in which she was then residing) together with the land occupied therewith and together with a parcel of land leading therefrom to Mona Vale Road in order to give access thereto such parcel of land to be in a position and of such dimensions as should be determined by her Trustees."

The acknowledgement, made on 2 December 1971, was that the executors of her estate "do hereby acknowledge that the said devisee is entitled for the estate for which the same is devised to him by the said Will to the real estate described in the said Will which is identical with the said Lot 1 DP 230607." 16 By a conveyance made on 12 March 1974 Henry Johnson conveyed to Mr Maher, and his then wife, the land in Lot 1 of DP 230607. 17 Lot 1 came under the provisions of the Real Property Act 1900 in April 1985, when the then mortgagee, Westpac Banking Corporation, transferred the land, presumably on a discharge of mortgage, to Mr and Mrs Maher. On a date in May 1985 Mr and Mrs Maher transferred Lot 1 to Mr Maher alone, under a deed made under section 87 Family Law Act 1975 (Cth) which had been approved in the Family Court. Mr Maher has remained the registered proprietor of Lot 1 ever since. The only right of carriageway endorsed on its certificate of title is the benefit of the right of carriageway created by DP 230607. 18 Title to Lot 2 remained under the old system until 26 February 1999, when a qualified certificate of title issued. The certificate of title shows the only right of way to which the land is subject as being the right of carriageway created by DP 230607. The certificate of title of Lot 2 bears a caution pursuant to section 28J Real Property Act 1900. Correspondence Before Action 19 On 31 January 2002 the Club's solicitors wrote to Mr Maher, saying: "We are instructed that our client has, for the past number of years, permitted you to gain access from Darley Street West to the rear of your property by virtue of the use of our client's carparking area. We note that the use of that access is restricted by virtue of the fencing erected by our client at the entrance of its carpark facing Darley Street West."

After a reference to increasing premiums for public liability insurance and concerns about safety, the letter continued: "Accordingly, we advise that our client will be taking steps to close the dividing fence between your property and our client's property on or shortly after 15th February 2002. We note that your property continues to enjoy a right of carriageway over our client's land abutting Pittwater Road, Mona Vale. We note that you currently use this right of carriageway from time to time for access to your property. We trust that you understand why our client cannot continue with the informal arrangement currently provided to you." 20 Mr Maher's solicitors wrote back on 12 February 2002, referring to the long history of access from the property to Darley Street, and saying: "About two years ago our client was approached by a person on behalf of your client who informed him that it was proposed to construct gates at the Darley Street entrance to your client's property and at this time the Secretary Manager of your client offered our client keys to the gates as he was informed that the gates would be closed at night time. Our client chose not to accept this gesture as he did not wish to have the responsibility of having to lock the gates. Given time, we are instructed that further information will be available in support of our client's claim that he and previous owners have established and obtained an Easement by Prescription in respect of the Right-of-Carriageway from Darley Street to our client's property. … The arrangement is not an informal arrangement as suggested in the last paragraph of your letter. There is in fact, no arrangement, as our client and previous owners of his property have used the Right-of-Carriageway for a period of at least 69 years and our client may in fact be able to establish a longer period of usage once he has had the opportunity of carrying out further investigations. All elements necessary to establish an Easement by Prescription can be established. Please confirm by return mail that your client will not take any steps to: i) Close the dividing fence between our client's property and your client's property. ii) Seek the removal of the Caution currently registered on your client's title pursuant to section 28J of the Real Property Act and that iii) It is agreeable to making application to the LPI pursuant to section 28K of the Real Property Act to have recorded upon its title a memorandum of our client's subsisting interest. Failing our hearing from you in this regard within the next seven (7) days, we are instructed to proceed to commence Equity Court proceedings necessary to have our client's Easement recorded on the Title to your client's property." 21 The Club's solicitors replied on 14 February 2002, seeking further time to investigate and offering to withhold erecting the dividing fence between Lot 1 and Lot 2 so that discussions could occur. 22 On 26 March 2002 Mr Maher's solicitors wrote to the Club's solicitors saying that Mr Maher would be taking proceedings, but that he was awaiting finalisation of an unrelated matter before commencing them. Mr Maher began the present proceedings by filing a summons on 17 September 2002, seeking a declaration of his entitlement to a right of way over the carpark area. 23 On 11 November 2002 the solicitors for the Club wrote to Mr Maher's solicitors an open offer, consenting to a right of way being "appropriately recorded with the relevant authorities", and the Court making orders that the right of way exists subject to the limitations which the Club contends for, and which I have set out in para [2] of this judgment. Another condition on the right of way which the Club offered was that its site was as shown in a diagram enclosed with the letter. That site is one wholly within Lot 2, such that someone travelling along it from Darley Street enters at the eastern end of the Clubhouse, goes north alongside the southern part of the Clubhouse, then veers to travel roughly north-northwest until in a position south of the gap in the sandstone wall, and from there proceeds in a northerly direction to the gap in the sandstone wall. 24 The course of the right of way for which Mr Maher contends follows roughly the same path as that for which the Club contends, though is wider. Both of the easements contended for lie wholly within Lot 2. 25 I shall use the expression "the Site" to refer, in a way which is not intended to be precise, to the general location of the rights of way for which Mr Maher and the Club respectively contend. The Legal Basis for Prescriptive Easements 26 The common law developed a principle whereby if one landowner had made use of the land of another, for twenty years or more, in a way which was capable of being permitted by the grant of an easement, an easement of a type which would make that use of the land legitimate could come into existence by operation of law. There were various conditions for the arising of such an easement. One trio of conditions, expressed in the Latin slogan "nec vi, nec clam, nec precario" required that the first landowner had not made that use of the land of the second landowner by force, or by stealth, or by permission. There were various other conditions not relevant to this judgment. 27 The way in which this principle was applied, in the context of a jury trial, was by the judge directing the jury that if they found the appropriate type of use for more than twenty years, they were to find that there had been a grant of an easement permitting that use, but that the grant had been lost. This way in which a legal right equivalent to an easement could come into existence by usage or prescription - a prescriptive easement - was referred to as the "doctrine of the lost modern grant". The "modern" part of the expression "lost modern grant" is derived by contrast with the other way at common law of acquiring a prescriptive easement, which involved usage from time immemorial (fixed, by the Statute of Westminster I 1275 as being the accession of Richard I in 1189): R v Oxfordshire County Council and Another; Ex parte Sunningwell Parish Council [2000] 1 AC 335 at 347, 349-350. The doctrine of lost modern grant was used not only to give legitimacy to long continued use of another's land of a type which could be rightful if an easement existed, but also to legitimate a variety of other activities which might have a lawful origin by grant or licence from the Crown or from a private person: Gale on Easements, 17th ed (2002) para 4-14; Stephen, Digest of the Law of Evidence (NSW edition, 1909) Article 100. 28 The doctrine of lost modern grant applies in New South Wales: Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 at 298; Rodwell and Another v G R Evans & Co Pty Ltd and Another [1978] 1 NSWLR 448 at 451; Hamilton v Joyce [1984] 3 NSWLR 279 at 287; Dobbie and Another v Davidson and Others (1991) 23 NSWLR 625 at 638, 670-671. The other variety of common law prescription does not apply in New South Wales: Hamilton v Joyce [1984] 3 NSWLR 279 at 287. 29 The direction to the jury requiring them to find that there had been a grant of an easement, but that it had been lost, in many cases involved a blatant fiction. However, that fiction is not the essence of the present basis for the doctrine in Australian law. In Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 Griffith CJ explains how the fiction relates to the underlying principle. The case involved whether the English law as to acquisition of an easement to light by prescription after twenty years use applied in New South Wales. The trial judge had held it did not, because that law had not been received in New South Wales. He regarded s 24 of the Statute 9 Geo IV Chapter 83 (which provided that all English laws and statutes at the time of passing of the Act "shall be applied in the administration of justice in the Courts of New South Wales … so far as the same can be applied in the said colonies") as conferring on the Court a power to decide whether the English law was beneficial. The trial judge had concluded that the fiction of lost modern grant was not beneficial, and so had not been received in New South Wales. Griffith CJ, delivering the judgment of the High Court which reversed that decision, said, at 298-9: "If the question for our determination were only whether the legal doctrine or fiction of a lost grant in such cases is part of the substantive law introduced into New South Wales, either on settlement, or by the Act of 9 Geo IV chapter 83, we might have some difficulty in coming to a different conclusion from that arrived at by the learned Chief Judge." 30 Griffith CJ continued at 299: "There is indeed ground for saying that the doctrine of a lost grant never formed part of the substantive law of England, but was, at best, and for a short time only, adopted as an artificial rule of pleading … And the doctrine has of late years been much discredited in England, even if it is not now definitely discarded.

His Honour gave three quotations from English judges who were unimpressed and unconvinced by the fiction, and continued, at 299-300: "But the rejection of the fiction of a lost grant does not conclude the question whether the law of ancient lights is part of the law of New South Wales. The law as to the acquisition of the right to light is a branch of the law of prescription, and the real question for our decision is whether this branch of the English law of real property became part of the law of New South Wales, either on settlement, or by the Statute of Geo IV. If it was part of the substantive law of England in 1828, there is, prima facie , no reason why it should form an exception from the general rule, which has never been in controversy, that the English law relating to real property, as regards its acquisition, disposition and devolution, became part of the law of New South Wales … And very different considerations must weigh with the Court in determining whether a particular branch of the substantive law of real property was introduced on settlement, or by the Act of 9 Geo IV, from those which would affect its judgment on a question of whether a particular fiction of law was so introduced." 31 Griffith CJ went on to expound the fundamental role of acquisition of titles by prescription in English law, and found that by 1828 the acquisition of easements by prescription after twenty years use was firmly established. In the course of so doing he noted (at 300) that the Roman law, as noted in the Digest, allowed for "the acquisition of a right of property by the continuance of possession for a time prescribed by law", and that the reason for it was that: "Title by prescription is introduced (into the law) for the public benefit, that is to say, in order that the rights of property with respect to certain things may not remain uncertain for a long time and practically for ever, when the space of a definite and prescribed time would be sufficient to enable the true owners to ascertain their rights." 32 Griffith CJ said, at 308-309: "No doubt, in some cases, where the matter came before a jury, the jury were directed to presume that a grant of the right had once existed and had been lost. But, if the distinction between the substance of the law and its temporary formal expression is borne in mind, the difficulty was never very formidable. The law of prescription says that a right of property in certain things may be acquired by long, continual, and peaceable possession. The reason of the law is given in the passage above quoted from the Digest. It was adopted on grounds of public policy, in order that the right of property in these things might not be for ever uncertain. But it was assumed that the origin of the title thus recognized by the law was itself lawful and not unlawful. And, since an easement over the land of another could only be lawfully created by his consent, the law … implied that that consent had been given. This was the substance of the law. The mode of giving the consent was an accident. But, as the usual mode of creating an easement was by grant, it was not a great step to take to say, when the conditions which conferred the right were proved to exist, "Here is an incorporeal hereditament in lawful existence and of lawful origin. There must therefore at one time have been a grant." In the case of Bedle v Beard, the assumption, after a lapse of 303 years, of the existence of a grant which had been lost was not in itself absurd. But in the later cases no one pretended to believe in the actual existence of such a grant. It appears, however … that as a matter of pleading it was the practice, if it was not absolutely necessary, to allege a lost grant (as was done in the present case). The issue of the existence of such a grant having been formally raised, it was necessary to leave it to the jury, but with a direction to the effect that if the facts proved showed 20 years' continuous possession, unexplained, the law inferred a lawful origin for the possession, and that, as the formal way of alleging that origin was by alleging a grant, they should accept the allegation in that sense, and, having regard to the substance of the law and not to its mere form, should find that the plea was proved. It is quite plain, when all the cases are considered, that the doctrine of lost grant was never regarded as anything more than an artificial and subsidiary rule designed for the purpose of giving effect to a substantial right." 33 At 313-4 Griffith CJ said: "The foundation, however, of the plaintiff's right being a grant or agreement on the part of the owner of the adjoining land, using those terms in the sense, not of an actual document which has been lost, but in the sense of a contractual obligation which is implied by law from proved or admitted facts, it is, of course, still open to the defendants to show such a state of facts as will exclude the implication."

(By that last remark about what was "still open" , his Honour referred to showing the non-existence of one or other of the conditions for the prescriptive right arising.) I strongly suspect that if the High Court were to reconsider this matter now, it would hold that prescriptive easements arise simply by operation of law, when the necessary conditions are fulfilled, without resorting to the device of a contractual obligation implied by law: cf Pavey & Matthews Proprietary Limited v Paul (1987) 162 CLR 221; Australia and New Zealand Banking Group Limited v Westpac Banking Corporations (1988) 164 CLR 662; David Securities Pty Limited and Others v Commonwealth Bank of Australia (1992) 175 CLR 353; Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51. However, unless and until that happens, and in circumstances where the High Court has not examined the principles underlying prescriptive easements since 1904, the law as laid down as in Delohery will continue to be applied. Starting Date for any User Giving Rise to a Prescriptive Easement 34 Another of the conditions for the prescriptive easement to arise is that a landowner cannot obtain such an easement by use of the land let to his own tenant: Wheaton v Maple & Co [1893] 3 Ch 48 at 63; Kilgour v Gaddes [1904] 1 KB 457 at 462-3, 466, 467; Simmons v Dobson and Another [1991] 1 WLR 720 at 723-724. Applying that principle in the present case, until Lot 2 was conveyed to the Club on 20 January 1967, any use which the owner of Lot 1 made of the premises then occupied by the Club was explicable by reference to ownership of that land or, after 10 August 1963, to the express reservation, in the lease made on 9 July 1963, of a right for Mrs Orr to have a private right of way. Hence user prior to 20 January 1967 cannot give rise to a prescriptive easement. 35 Counsel for Mr Maher submits that the user prior to 20 January 1967, and the terms of the right of way reserved in the lease of 9 July 1963, can each be regarded as casting light on the user which occurred after 20 January 1967, and can help in ascertaining the scope of any easement which arose after that date. I will consider that submission later. Effect of Lot 2 Coming Under Qualified Title 36 I have earlier recorded (para [18]) that a qualified certificate of title for Lot 2 issued on 26 February 1999, bearing a caution pursuant to s 28J Real Property Act 1900. 37 Part 4A Real Property Act 1900 contains the following provisions: "28A In this Part and in all instruments purporting to be made or executed under this Act, unless inconsistent with the context or subject matter: … Subsisting interest , in relation to land for which a qualified folio of the Register has been created, means: (a) any contingent or vested estate or interest in that land that was in existence at the date on which the qualified folio of the Register was created and would have been enforceable against the person for the time being registered in that qualified folio as the proprietor had that qualified folio not been created and had any dealing registered therein been effected by a corresponding instrument duly registered under Division 1 of Part 23 of the Conveyancing Act 1919 at the same time as the dealing became registered in the Register, and (b) any estate or interest in that land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created. … 28I Subsisting interests to be entered on qualified folio (1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio any subsisting interest then apparent to the Registrar-General, but shall not be concerned to make searches or inquiries as to the existence of any such interest. (2) The Registrar-General may, at any time after the creation of a qualified folio of the Register, record in that folio any additional subsisting interest in the land comprised therein. 28J Cautions (1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio a caution warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not. … 28K Additional subsisting interests may be notified The registered proprietor of land for which a qualified folio of the Register has been created may lodge with the Registrar-General a memorandum in the approved form setting out particulars of any subsisting interest affecting that land and not already recorded in that folio, and the Registrar-General shall thereupon make such recording in that folio in respect of that subsisting interest as the Registrar-General considers appropriate. … 28M Lapsing of caution on qualified folio created after registered deed for value (section 28J(1)) (1) This section sets out the 2 ways in which a caution recorded on a qualified folio of the Register under section 28J (1) that does not include a notation under section 28J (1A) or (1B) may lapse. (2) Firstly, if after the creation of the qualified folio, a person for valuable consideration and without fraud to which the person is a party becomes registered or, pursuant to section 36 (8), is deemed to have become registered, as proprietor of an estate or interest in the land comprised in the folio, the caution recorded on the folio lapses as regards the estate or interest: (a) on the expiration of 6 years after the creation of the folio, or (b) when the person becomes, or is deemed to have become, registered, whichever is the later. (3) Secondly, if immediately before the expiration of 12 years after the creation of the qualified folio, the caution affecting the folio has not lapsed as regards all estates and interests in the land comprised in the folio or been cancelled, the caution lapses on the expiration of that period." 38 Because the caution remains on the title to Lot 2, and the Club remains registered as the proprietor of Lot 2, the title of the Club is subject to any prescriptive easement which had arisen by 26 February 1999, or that was in the course of being acquired at 26 February 1999. If usage of the right of way after 26 February 1999 is needed to complete a prescriptive easement of which Mr Maher has the benefit, the fact that Lot 2 has been brought under qualified title does not prevent that user from counting towards the twenty year period necessary for the acquisition of that prescriptive easement. This is not a case in which the question arises of whether a prescriptive easement can be acquired by user of land which is held under an unqualified certificate of title under the Real Property Act 1900. Ascertaining the Scope of an Easement Acquired by Prescription 39 Because of the Club's concession that Mr Maher is entitled to a limited right of way, and because no issue concerning it was raised at the trial, there is no occasion to decide whether any traversing of the carpark area of Lot 2 by Mr Maher, his predecessors in title, or those living with or visiting him, was by permission. The principal question for decision relates to what is the scope of the right to use Lot 2 which, from the use proved, should be held to exist. A related question concerns the extent to which it is possible for the nature and extent of use of a prescriptive easement to alter from the nature and extent of the use which gave rise to the easement. 40 Where there is an expressly granted easement, the scope of the rights of use permitted by it is ascertained as a matter of construction from the words in the grant, taking into account facts which were known to the parties at the date of the grant: Cannon v Villars (1878) 8 Ch D 415 at 420 per Jessel MR; White v Grand Hotel, Eastbourne Limited [1913] 1 Ch 113 at 116; Rodwell v G R Evans & Co Pty Ltd (1977) 3 BPR 9114 at 9117; Gallagher v Rainbow and Others (1994) 179 CLR 624 at 639-641 per McHugh J (dissenting, but the majority decision does not deny this proposition). Because the use of the servient tenement which is permitted by an express grant of easement depends upon the construction of the grant, it is possible for the nature and extent of use actually made of such an easement to alter quite significantly with time: eg Dand v Kingscote (1840) 6 M&W 174; 151 ER 370 (right of way to a colliery able to be exercised by railway, even though railways not invented at time of grant); Attorney-General v Hodgson [1922] 2 Ch 429 (grants of "a right of carriage horse and footway" made between 1853 and 1861 not restricted to carriages drawn by horses, but can apply to motor vehicles); Jelbert v Davis and Another [1968] 1 WLR 589 (express grant of right of way "at all times and for all purposes", but "in common with all other persons having the like right" to land used for agricultural purposes at time of grant allows user of the right of way with caravans, so long as it is "not in such manner as to cause substantial interference with the use of the right of way by [others entitled to use it] or to cause a nuisance to [owners of the servient tenement]"). 41 The same expansion of the scope of user which actually occurs cannot be gone through with easements arising from prescription, because there is no real grant. In United Land Company v Great Eastern Railway Company [1875] 10 Ch App Cas 586 Sir G Mellish LJ said, at 590: "Where a right of way is claimed by user, then, no doubt, according to the authorities, the purpose for which the way may be used is limited by the user; for we must judge from the way in which it has been used what the purposes were for which the party claiming has gained the right. But when a right of way is created by grant, or by Act of Parliament, then it must depend on the proper construction of the grant, or Act of Parliament, whether the right of way is to be used for all purposes, or only for limited purposes." 42 It is part of the nature of a prescriptive easement that the extent of use of the servient tenement which can be made under it derives from the kind of use which was made of the servient tenement during the period in which the prescriptive easement was accruing. A prescriptive easement amounts to a right to continue the kind of use which was so made. However, there is a problem concerning the degree of specificity or generality with which the use giving rise to the prescriptive easement, and hence the prescriptive easement itself, should be described. The more general the description of the use which is adopted, the greater will be the scope for the actual use which is made to differ from the use which gave rise to the easement. 43 In Williams v James (1867) LR 2 CP 577 the defendant had a prescriptive right of way over the plaintiff's field, for the benefit of his own field. The defendant had stacked on his own field hay grown somewhere else, and transported that hay across the right of way. The jury found that the prescriptive right of way existed, that the stacking of the hay "was done honestly, and not to get the way further on", and assessed the damages which were appropriate if the use of the way to transport the hay in question was not within the defendant's prescriptive right. The question for the Court of Common Pleas was whether that use was within the prescriptive right. They held it was. Bovill CJ said, at 580: "In all cases of this kind which depend upon user the right acquired must be measured by the extent of the enjoyment which is proved. When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen."

He held, at 581, that the jury's finding that the defendant acted honestly was "equivalent to finding that what had been done was done in the ordinary and reasonable use of the land to which the right of way was claimed, and in the ordinary and reasonable use of the right of way itself" . 44 Willes J said, at 581-582: "The distinction between a grant and prescription is obvious. In the case of proving a right by prescription the user of the right is the only evidence. In the case of a grant the language of the instrument can be referred to, and it is of course for the Court to construe that language; and in the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against the grantor must be applied … I agree with the argument of [counsel] that in cases like this, where a way has to be proved by user, you cannot extend the purposes for which the way may be used, or for which it might be reasonably inferred that the parties would have intended it to be used. The land in this case was a field in the country, and apparently used only for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine acre field, not colourably for other closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place."

He said later, at 582, that the finding that the land was used honestly "is equivalent to finding that the stacking of the hay on the Nine acre field was in the reasonable and ordinary use of it as a field." Montague Smith J held that the question of whether the user was excessive was not a question of law but one of fact, which the jury had decided. 45 Considered as isolated pieces of English, Bovill CJ's test of "all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant", and Willes J's test which looks to the actual purpose of use of the dominant tenement, appear to differ. Bovill CJ's test, taken literally, might mean that if land was ripe for development at the time of the grant, the way could be used for that land in its developed state. However later cases have not treated the tests as different, and Williams v James was not a case where any question of developing the dominant tenement was a live one. Hence Bovill CJ's test should not be taken to its full literal extent. 46 In Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362 long term use of a track to enable the dominant tenement to be used for agricultural purposes was established, so as to give rise to an easement by prescription. There was slight evidence of it having been used on a few occasions to carry building materials. The defendant wished to use it to carry building materials to enable the dominant tenement to be redeveloped for housing, and to have an unrestricted right of way once that redevelopment had occurred. James LJ said, at 367: "I am of opinion that the mere fact that over a common some building materials were taken for the purposes I have mentioned, is not sufficient to justify the inference of fact that the right of way belonging to the house and property was to be an unlimited right of going to and from the land for all purposes, to whatever purposes the land might be applied. The way has also been used for ordinary agricultural purposes - for sporting, which seems to me the same thing as an agricultural purpose, and for taking gravel from a gravel pit in one of the fields. That is insufficient, as it seems to me, to enable us to draw the inference of fact that the extended right claimed by Mr Dixon ever existed."

And at 368: "… you cannot from evidence of user of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or whatever purpose that property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purposes of the manufactory or town so built."

Mellish LJ, at 369, said he was of the same view. At 371 he referred to Williams v James , and said: "In my opinion, the true rule is that stated by Lord Chief Justice Bovill, that when a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Mr Justice Willes evidently agrees with that view." 47 In Milner's Safe Company, Limited v Great Northern and City Railway Company [1907] 1 Ch 208 two houses had acquired a prescriptive right of way over a passage, at a time when those houses contained some room or rooms which were used as a warehouse. It appears that at some stage one of the houses was also used by paper manufacturers, who had goods delivered to it via the right of way. The houses were pulled down, and a railway station constructed on their site, and the new owners encouraged members of the public to use the passage for access to the station. Kekewich J said, at 227: "It is urged on behalf of the defendants that the site of the two houses is still being used for business purposes, and that as the implied grant extended to business purposes the present user is within it. The answer, to my mind, is that not only was the erection of a railway not contemplated by the grantor, but it could not possibly have been within his contemplation, and a railway station is not merely in its construction, but in its mode of occupation, something entirely different from any dwelling-house, warehouse or even manufactory which could have been erected on the land. If the owner of these two houses had thought fit to erect an attractive monument on this site, or to convert it into a place of public recreation, could it be contended that those who resorted to it were entitled to use the passage for ingress, egress, or regress? It seems to me that such a contention would have been wholly untenable …" 48 Lock v Abercester, Limited [1939] 1 Ch 861 concerned a prescriptive right of way to a property which was used as a residence during the time that the prescriptive right was accruing. During the time that the right was accruing various horse drawn vehicles used the site of the right of way. Bennett J held that the right of way could be used by mechanically propelled vehicles. He so found, notwithstanding that he also found that the mechanically propelled vehicles weighed more than did the horse drawn vehicles which were used in the days before internal combustion engines had been invented. He said, at 864: "The point which Mr Grant has taken is that, in order that a way may be claimed by prescription for motors, there must be proof that the way has been used by mechanically propelled vehicles for the period of time specified in the Prescription Act. In my judgment that is not the law. What is claimed and what is prescribed for is a carriageway. The right, if established, is for the use of the way by carriages, not for a particular type of carriage or for carriages drawn by a particular kind of animal. The law must keep pace with the times. As a matter of law I propose to decide that, where proof is given of the user of a way by carriages drawn by horses for the required period so as to establish the right to an easement for a carriageway, the right so acquired is one which enables the owner of the dominant tenement to use the way with mechanically propelled vehicles."

(It appears that part of the reason for the increased use of the right of way was that the dominant tenement began to be used for agricultural purposes, which required the importation of quantities of animal feed. However it does not appear to have been submitted that this change in the purpose of use of the dominant tenement was outside the scope of the prescriptive right of way.) 49 RPC Holdings, Ltd v Rogers [1953] 1 All ER 1029 concerned a prescriptive right to cross part of a golf course to get to a field. The owner of the dominant tenement wished to use the field to house up to 116 caravans and a number of tents, and to conduct a shop for the campers. Harman J held, at 1032, that the use which had been proved was confined to use for agricultural purposes. At 1035-6 his Honour stated: "… the question of the extent of the right is one of fact which I as a juryman have got to determine, but … I am not to conclude from the mere fact that while the property was in one state the way was for all purposes for which it was wanted, therefore, that is a general right exercisable for totally different purposes which only came into existence at a later date. Sitting as a juryman I can feel no doubt that the way here was a way limited to agricultural purposes, and that to extend it to the use proposed would be an unjustifiable increase of the burden of the easement." 50 British Railways Board v Glass [1965] Ch 538 concerned land which was severed by construction of a railway. On the conveyance of land for the railway, the owner of the two severed portions reserved a right to cross the line at a particular spot twelve feet wide. For many years he had had six caravans on one side of the line, which crossed the railway at that twelve feet wide place. He claimed a prescriptive right which would allow 28 or 29 caravans to use the site of the level crossing. The majority of the English Court of Appeal held he had such a right. Harman LJ quoted from the judgments of Bovill CJ and Willes J in Williams v James, and continued, at 562: "Applying that to the present case, you must do what the judge did, namely, base your conclusion on a consideration of what must have been the supposed contents of the lost grant on which the prescription rests. If this be supposed to be a grant of the right to use the "blue land" as "a caravan site" then it is clear that a mere increase in the numbers of the caravans using the site is not an excessive user of the right. A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition. The obvious example is a change of a small dwelling-house to a large hotel, but there has been no change of that character according to the facts found in this case."

Davies LJ at 567, said: "… it is not easy to contemplate an express grant of a right of way in respect of a specified or limited number of caravans. The "blue land" is still being used as a caravan site. Its use as such has been intensified. But there has been no alteration in the nature of its use. The question whether a mere increase without any alteration in the character of the use of a right of way can be prevented by the owner of a servient tenement is oddly free from authority. We were referred in this connection to Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362, CA. It must be observed that in that case the court came to the conclusion that there had been a substantial alteration in the nature of the use of the dominant tenement and so of the right of way; consequently any observations as to mere increase in the use were obiter." 51 After concluding that none of the judges in the Wimbledon case were considering a mere increase in the use of the right of way, Davies LJ continued, at 567-8: An increase of burden in this context must, I think, be taken to mean a different or additional burden. If there is a right of way to and from a particular house, it does not seem that the owner of the servient tenement could successfully complain if the number of persons living in the house was greatly increased or if the occupier of the house chose to use the right of way very much more frequently than previously. Suppose, as was said in the argument, a golf club were entitled to a right of way over adjoining land: if such a club were to double its membership, the burden on the servient tenement would be greatly increased, but it is impossible to think that the owner of the servient tenement could prevent such user. So here, once it is admitted, as it has been admitted, that the "blue land" as "a caravan site" acquired by prescription a right of way, it does not seem to me that the plaintiffs can prevent a mere increase in the number of caravans upon the site and the consequent increase in the use of the right of way. An increase in the number of caravans on a site is quite a different thing from the erection of a number of new houses, though no doubt from the point of view of the servient tenement the effect is somewhat similar." 52 In Woodhouse & Co Ltd v Kirkland (Derby) Ltd [1970] 1 WLR 1185 the dominant tenement was a city building which had acquired a prescriptive right of way over a passageway leading to its premises. Over the period that the prescriptive right of way was accruing, the site of the right of way was not much used by its customers, and only to some extent by suppliers of the business of the owner of the dominant tenement. Later, the owner of the dominant tenement opened the passageway and encouraged suppliers and customers to use it. Plowman J held that the prescriptive right of way extended to that increased use. He said, at 1190-1: "One of the matters which I have to decide, therefore, is whether the plaintiffs' right of way extends to their customers who, as I have said, made minimal use of the passage before the plaintiffs' gate was left open. In my judgment it does. Once the plaintiffs have established a right of way for their reasonable business purposes the identity of the persons using it for those purposes is in my judgment immaterial. It seems to me that the defendants' suggestions to the contrary might lead to absurd results. Suppose, for example, the access to a private house lay over a path in a different ownership and the evidence was that during the statutory period the path had been used as access to the house by the occupiers and the postman and trades people, could it be said that the gardener or the doctor or the builder were excluded from going to the property via the path simply because there was no evidence of user by gardeners, doctors or builders during the 20 year period? In my judgment clearly not. If, then, the plaintiffs' customers are entitled to use the defendants' passage, is it an objection that the number of such user considerably increased after 1963? Is this "excessive" user, within the principle that the owner of the dominant tenement is not entitled to increase the burden on the servient tenement? Again, in my judgment, the answer is "No." Distinction has to be drawn between a mere increase in user and a user of a different kind or for a different purpose. The former is not, in my judgment, within the principle, the latter is." 53 Cargill v Gotts [1981] 1 WLR 441 concerned a prescriptive easement to draw water from a pond. The water was all used for a particular nearby farm, Grove Farm. The usage relied on was for the period commencing before 1927 and until 1965. A claim that changes in the amount of water extracted, and the purpose for which the water was extracted, over that period, prevented the acquisition of a prescriptive right, was rejected. Templeman LJ said, at 447-8: "The defendant claims that, down to 1953, the evidence only established user of water from the mill pond to the extent of 300 gallons a day for the purpose of watering stock and operating steam machinery on Grove Farm. Between 1953 and 1965 the quantity of water abstracted was increased and the purpose for which the water was used was altered. The plaintiff cannot demonstrate 20 years' definite and continuous user necessary to found any prescriptive right. Alternatively, if the plaintiff began to establish a separate easement to use water for crop spraying in 1953 that did not ripen into an easement before 1965 when the user became illegal. The argument is that the introduction of crop spraying made a substantial change in the rights claimed by the dominant tenement and imposed a substantial additional burden on the servient tenement. In my judgment, it is a mistake to concentrate on gallonage and detailed user. When Grove Farm, in or before 1927, took 100 gallons from the mill pond to water 100 bullocks, Grove Farm did not begin to acquire an easement to take 100 gallons to water 100 bullocks but began to assert a right which, after 20 years, ripened into an easement to take water from the mill pond for the benefit of Grove Farm for all purposes according to the ordinary and reasonable use to which Grove Farm might be applied at the time when the right was and continued to be asserted. To state the obvious, Grove Farm was and at all times remained a farm. The right to take water from the mill pond was and at all times remained a right to take water for farm purposes. If bullocks were replaced by sheep, if pasture became arable, if beetroot was substituted for barley, the right was asserted for the benefit of Grove Farm, provided that the right asserted over the requisite period of 20 years, was a right to take water for farm purposes and that right did not cease to be asserted by fluctuations from time to time in the amount and application of the water, fluctuations which were attributable to changes in the type and method of farming currently pursued at Grove Farm. Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired. The principle in relation to prescriptive rights of way was enunciated in Williams v James (1867) LR 2 CP 577, 580 and applied in RPC Holdings Ltd v Rogers [1953] 1 All ER 1029. The principle is "When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant." In my judgment, the same principle must apply to a right to take water. The right to take water for the benefit of Grove Farm is a right to take water for farming purposes, that being the ordinary and reasonable use to which Grove Farm has at all times been applied. There may in other cases be some scientific developments which completely change the character of the right asserted. Thus in Rugby Joint Water Board v Walters [1967] Ch 397 the right of a riparian owner to take water for ordinary purposes, including agricultural purposes, did not extend to taking 60,000 gallons a day for the purposes of spray irrigation. In the present case the improvement of farming methods by crop spraying and the quantity of water employed for that purpose do not jointly or separately amount to the assertion of a new right or the excessive exercise of an ancient right. On the evidence in this case, the right asserted in 1977 was no different from the right asserted in 1927, namely, the right to use the water in the mill pond for the agricultural purposes of Grove Farm. The introduction of crop spraying did not effect a radical change in the dominant tenement." 54 Lawton LJ, at 451, gave judgment to similar effect: "When, in or before 1927, water from the mill pond first came to be used on Grove Farm, it was for the needs of that farm at that date. Those needs were principally for watering cattle and providing water for steam driven farm machinery such as a threshing machine. The probabilities were, as Mr Knox accepted, that from time to time small quantities were used for other farm purposes. A farm's needs for water can change with the seasons, with changes in the demand for agricultural produce and with improvements in agricultural methods. What is wanted in a dry summer may not be needed in a wet one. At one time it may be worthwhile fattening store cattle on arable land which has been turned into pasture. A few years later it may be more profitable to change from raising beef to growing corn and when this is done less water will be needed. Crop spraying is an example of the improvements in agricultural methods which have come about since 1927. In those days farmers often dressed their seed corn with chemicals which were reputed to deter birds, field mice and other rodents but they had few, if any, means of protecting their crops from insects and plant diseases. Now, by means of spraying, they can give their crops this kind of protection but such spraying has to be done with water based chemicals. When water is so used it is for a normal agricultural purpose just as in 1927 water was used on farms to generate steam in threshing machines. The fact that spraying is a new way of protecting growing crops whereas threshing machines are now more often seen in museums than on farms does not confine the user of the easement of water appertaining to Grove Farm to the purpose for which water was used in or about 1927 or to the quantities which were used before 1953, when large scale spraying started. The legal position would be different if water were used on Grove Farm for some abnormal agricultural purpose as might happen, for example, if part of the farm were turned into a trout hatchery. Whether a particular purpose was a normal or abnormal agricultural use would be a question of fact." 55 The only Australian case on the topic appears to be Nelson v Hughes [1947] VLR 227. Most of the reasons for judgment concerned whether an easement may be acquired by prescription over land under the Transfer of Land Act 1928 (Vic). Lowe J held that it could, and that (at 228): "… from at least about 1906 and probably from 1903 the plaintiffs' predecessors in title, and from 1919 onward until the interruption in 1944, the plaintiff, L G Nelson, used the road in question in a way which in the case of land under the general law would prima facie have given the plaintiffs an easement for the road over the servient tenement."

His Honour continued at 231-232: "There still remains the question of the purpose for which such right of way is acquired. Up to thirteen years ago the right of way was restricted to ingress and egress for the purpose of carrying on farming operations on the dominant tenement and for ingress and egress of the occupants of and visitors to the residence thereon, and the use was by vehicle, animal or on foot. All of these uses the plaintiffs are entitled to continue for themselves, their servants and agents. The difficulty arises from the fact that about thirteen years ago the plaintiff, L G Nelson, started a carrying business and has used the road for the passage of his vehicle by which he carries on that business. This business has no necessary connection with the dominant tenement and the traffic arising from it has not lasted for the prescriptive period, nor are such acts necessary or reasonable for the enjoyment of the dominant tenement. With some doubt, I think the plaintiffs have no right to continue it over the way in question and the declaration I make does not extend to such traffic." 56 It is not possible to give a neat formula which states the degree of specificity or generality with which the use which gives rise to a prescriptive easement, and hence the easement itself, should be described. That is a topic concerning which the law involves not just a rule or principle, but a method of reasoning which can be grasped only through examples. To decide in the present case how to describe the user of Mr Maher and his family and visitors, the approach I take is to see how the courts have dealt with such problems in the past, and try to reason in a like manner in the present case. It is for that reason that I have set out at some length the reasoning process in other cases. 57 But, while these are not the whole story, some patterns can be seen in the previous cases. An essential part of arriving at an appropriate description for the user involves looking at the nature of the activities carried out on the servient tenement. However in doing so, one does not describe them too precisely - it suffices if those activities are described as crossing the servient tenement, on a particular path, with vehicles, to get to the dominant tenement; or drawing water from a particular pond for use on the dominant tenement. But one does not look only at the activities on the servient tenement. The purpose for which the dominant tenement is used at the time of the fictional grant (which in practice involves looking at the use of the dominant tenement while the easement is accruing) can also enter into how the easement is described. However no great precision is used in describing that use of the dominant tenement - use "for agricultural purposes", or "as a caravan site" will suffice. But there is a limit to the generality with which the use of the dominant tenement can be described - "use for business purposes" is too general. Once the degree of generality of the description of the easement has been fixed on, that provides the measure of what is the "nature" of the easement. There can be a change in the extent to which an easement is used, from that which existed while the easement was accruing. There can also be changes in the detail of how the easement is used, so long as the use is still of the same nature - eg drawing water for crop spraying rather than watering bullocks. But a change in the nature of use of the easement - eg if the dominant tenement comes to be used not only for agricultural purposes but also for a carrying business - is beyond the scope of the prescriptive easement. Findings About Nature and Extent of Use 58 From the time the Club commenced operations until around 1994, that part of Lot 2 which lies to the east of the Clubhouse, and Lots 7, 8 and 9, were used for carparking by Club members. The area was not sealed, and its condition was frequently fairly rough. There was no fence separating that area used for car parking from Darley Street. Nor was there any curbing and guttering on the side of Darley Street adjoining that carpark. In consequence, vehicles could be driven into the carpark from anywhere along the boundary between the carpark and Darley Street. There was, however, a strip of bitumen leading from Darley Street into the carpark, just to the east of the Clubhouse building. It overlapped the boundary between Lot 2 and Lot 7, being to a somewhat greater extent on Lot 2 than on Lot 7. 59 In about 1994, the Club arranged for the carpark area to be sealed and laid out with proper carparking bays. At a later time, not before 21 April 1995, and probably after 5 June 1995, the Club caused a fence to be erected along the boundary between the carpark and Darley Street, and caused lockable gates to be placed in that fence, at a spot in Lot 2 and near its eastern boundary. These dates can be fixed because a Mr Spinks was the Principal Executive Officer of the Club over a period from 25 March 1992 to 21 April 1995. Mr Spinks recollects that the carpark was sealed during his term of office, but no fence or gate was erected during that time. Further, Mr Maher recollects having a conversation with the Secretary/Manager of the Club before the fence was built, concerning the proposal to build a gate, knows that person was not Mr Spinks, and is confident that that Secretary/Manager was a man, not a woman. Records show that between 21 April 1995 and 5 June 1995 the Principal Executive Officer of the Club was a woman. Mr Spinks recollects various conversations with Mr Maher, but no conversation regarding gates, locks or keys. Mr Maher gave evidence that the fence and gate were erected "maybe even a year or two" after the sealing of the parking lot was completed. Mr Maher was an honest witness, but concerning some matters, including the length of time between completion of the carpark and erection of the fence, his recollection was not very good. Hence, I would not place much weight on this particular piece of evidence from him, though to the extent that it is consistent with the other evidence, I give it some weight. 60 The effect of the construction of the proper car parking bays was that the entrance to the carpark area from Darley Street was moved slightly west of the position which the strip of bitumen previously used for access had occupied, so that thenceforth the easiest point of ingress and egress to Darley Street was completely on Lot 2. From at least the time of construction of the fence there was only one possible place of access between the carpark and Darley Street. This might possibly have been the case from the time of construction of the carparking bays - the evidence does not establish whether laying out the carparking bays had the effect of creating only one possible point of exit to and entrance from Darley Street. 61 There is evidence of access being gained to the house which Mr Maher lives in, over a track which runs from Darley Street, at a point just to the east of the Clubhouse building, to the gap in the sandstone fence, over a period from 1939. Mr Kevin Johnson is a son of the Henry Johnson who sold Lot 1 to Mr and Mrs Maher. Henry Johnson worked as a greenkeeper and groundsman at the Club in 1939-40, and became friendly with Mr and Mrs Orr. At some stage in the early to mid 1960s (one piece of evidence says 1961, another says 1966, and I have no basis for choosing between them) Henry Johnson and his wife moved in with Mrs Orr and acted as carers to her. Mr Kevin Johnson recalls visiting the house from 1939 onwards. In 1939 the only entrance to the house was from Darley Street. Mr Kevin Johnson gives evidence of the house being accessed from Darley Street by the Orr family, by his own family, visitors and friends, and in latter times nursing care workers. 62 Another son of Henry Johnson, Mr Louis Johnson, recalls Mrs Orr driving in and out of her property via the carpark area of the Club from as far back as 1957. During the period 1963 to 1965 he acted as a driver to Mrs Orr, and used the site of the claimed right of way "on a very regular basis as often as three times per week". 63 The other evidence called by the plaintiff relates to use of the site of the claimed right of way in the period from when Mr and Mrs Maher purchased the property. While one piece of evidence suggests that they may have occupied the property from a date in 1973, I am not prepared to find that they took up occupation any earlier than the date of the conveyance to them, 12 March 1974. 64 At the time Mr and Mrs Maher purchased the property they had two children - James, born in April 1969, and Katie, born in 1970. After moving into the property they had two other children, Sara born in 1974 and Benjamin born in 1977. From the time the Mahers moved into the property the Site was used with vehicles not only by them, but also by the parents of friends of their children. The Maher house was a social centre for families whose children attended the same school as the Maher children. Mr Maher is a pharmacist, and throughout the time he has lived at the house, staff Christmas parties were held there. One of the pharmacy staff regularly called at the house, from the time the Mahers moved in, for various purposes such as picking up and dropping off work associated items. 65 After Mr Maher's divorce, the children continued to live with him. While the divorce marks some decline in the amount of social activities carried on at the Maher house, the children continued to have friends visit. 66 I am satisfied that the Site was used regularly by the Maher family, and those visiting them, for more than twenty years in the period from 12 March 1974 onwards, not only for the passage of vehicles, but also for getting to and from Darley Street on foot, and by bicycle. On occasions it was also used by vehicles towing boats and trailers to and from Lot 1. 67 Evidence called by the Club confirms the regular usage of the Site. Mr Brown has been the professional at the Club since January 1986. Apart from public holidays, he has worked from 7:00am to 5:00pm each Monday to Friday, and about 6:00am to 1:00pm on Saturdays and Sundays. He gives evidence that: "I recall that I did see people, obviously occupying or visiting the occupants of 1825A Pittwater Road Mona Vale, drive a car from Darley Street West across part of the unformed carpark and then through the gap in the sandstone boundary fence. Initially, whilst the car park area was unformed, there was not many cars passing from Darley Street West across to the gap in the sandstone boundary fence. At most, I would see one or two movements from Darley Street West to the gap in the sandstone boundary fence, or in the opposite direction, each day. From my recollections, the movements were haphazard and there were no particular times when I observed a car passing from Darley Street West across to the gap in the sandstone boundary fence."

He says that after the carpark had been sealed there appeared to be an increase in the use of the access route, initially by motor cars, but in the period of approximately four years before 2003, by commercial style vehicles such as utilities and trucks. 68 Mr Spinks (Principal Executive Officer of the Club from March 1992 to April 1995) also gives evidence that he would occasionally observe a vehicle going in and out of the gap in the sandstone wall. All the vehicles which Mr Spinks observed were non-commercial type vehicles. 69 The Club has also put on evidence from twenty-four Club members, who played golf at the Club with some regularity. While many of these witnesses did not notice, or do not recall, any usage of the Site by vehicles going to and from the Maher residence, in the period prior to the carpark being sealed, eight of them give evidence of having seen such a vehicle during that period, and another recalls having seen Mrs Orr's vehicle using the Site. Given the limited opportunity for observation which all these witnesses had, I do not regard their failure to see usage of the Site, or anything more than occasional usage of the Site, as of significance. Particularly is that so when there was no cross-examination of witnesses called by the Mahers, where the cross-examination sought to challenge their evidence about the nature and extent of use of the Site. 70 The findings of fact which I have made so far are ones which show use of the Site for more than twenty years. While the precise track over which the usage occurred may not have always been the same, if there has been long usage of land to go from one point to another, though by different tracks, there can still be a prescriptive right of way over that land: Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362 at 368-9. If a prescriptive right of way is accruing, or has accrued, and the dominant and servient owners agree that thenceforth access should be over some different course, the user over the new course can be added to the user over the original course for the purpose of deciding whether a prescriptive right of way has accrued: Davis and Another v Whitby [1974] 1 Ch 186 at 191-193; Sunset Properties Pty Ltd v Johnston (1975) 3 BPR 9185 at 9192. The Club was right in accepting that any easement which the Court now recognises will lie wholly within Lot 2, even though some of the usage which gives rise to it might have been, before the carpark was sealed, or the fence constructed, other than over Lot 2. Hours of Use of Site of Right of Way 71 In my view the evidence of regular usage of the Site to enable Lot 1 to be used for dwelling purposes is enough, by itself, to establish a prescriptive right of way which enables the Site to be used at all hours of day and night. The Site was in fact used as though Mr Maher had a right of way over it, and, without any attempt by the Club to close it off at night, for more than twenty years. To establish the nature of the easement which has been created by that use, it is not necessary to go into detail about whether use was in fact made of it at night. 72 In case I am wrong about that conclusion, and it is necessary to prove specific use outside daylight hours for twenty years if a prescriptive easement which extends to use outside daylight hours is to be established, I turn to consider the evidence on that topic. 73 Kevin Johnson and Louis Johnson, the only witnesses who give evidence about usage of the site of the right of way prior to Mr and Mrs Maher's moving into the house, say nothing about the right of way being used outside daylight hours prior to March 1974. 74 Mr Raymond Grellis, one of the parents who had children attending the same school as the Maher children, regularly visited the Maher's residence during the period 1974 to 1985, both on daylight occasions and late night or early evening occasions, and always entered using the access from Darley Street. 75 Mr Maher has operated a pharmacy for the entire time he has lived at Lot 1 - which is now thirty years. Generally, he left for work just before 9:00am, and returned around 7:00pm, though on occasions he would attend meetings or have other commitments and return later, often as late as 11:00pm or later. On these occasions, until the gates separating the Club carpark from Darley Street were constructed, and were often locked at night, he used the Site for access. I can take judicial notice of the fact that in Sydney in winter it is dark at 7:00pm. 76 Even since the gates were constructed, Mr Maher sometimes uses the Site for access at night: "… there are many times when the Club is open fairly late, or the gates are not closed. I always drive up Darley Street to check if the gates are open. Even if it's midnight, I still do that."

Even though Mr Maher does not now attend the pharmacy full time, he still occasionally calls there between 6:00pm and 6:30pm, before the pharmacy closes, often returning home late at night. 77 James Maher gives evidence that once he began driving (which, given that he was born on 26 April 1969, and could not legally drive unaccompanied until he was aged 17, would be April 1986 at the earliest) he used the access from Darley Street on a regular basis from as early as 5:30am, on the way to work, to as late as the early hours of the morning if he had been out in the evening. 78 James Maher continued to live at his father's house until 1993. Between 1993 and 1995 he was overseas, but on his return resumed living at his father's house. The evidence is imprecise about exactly when he was overseas. In circumstances where the onus is on the plaintiff to prove user giving rise to a prescriptive easement, and when evidence about precisely when he was overseas was within the power of the plaintiff to call, I do not take it as proved that James Maher used the Site at any time in 1993, 1994 or 1995. He bought a house at 1 Delwood Close, Mona Vale in about early February 1997, which at first he rented to someone else. He lived in the house at Delwood Close for about 12 months, at some stage between the time he purchased it and early 2002, but after that 12 month period moved back into his father's house, knocked down the existing house at 1 Delwood Close and built a new house there. He moved into that new house in early 2002, and continues to live there. The evidence which he gives about using the Site out of daylight hours for matters not connected with his work, must necessarily relate only to the period when he was living in the house - ie 1986 to 1992, and 1996 to 2002 minus an imprecisely placed period of 12 months. He gives no clear evidence about using the Site out of daylight hours as an adjunct to his business. 79 Case law gives some guidance about the frequency with which user must occur before a prescriptive easement can arise. White and Others v Taylor and Another (No.2) [1969] 1 Ch 160 concerned a prescriptive right to depasture sheep on a common. Such rights (which are profits à prendre, because the right for the sheep to consume the grass involves severing and removing part of the realty) can be acquired by prescription in the same way as easements: Tehidy Minerals Ltd and Another v Norman and Others [1971] 2 QB 528. In White v Taylor (No.2) at 192 Buckley J said: " To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continually. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all around the year. But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed." 80 In Ironside, Crabb and Crabb the Cook, Cook & Barefoot (1980) 41 P&Cr 326 at 334 Goff LJ with whom Eveleigh and Buckley LJJ agreed, quoted from Gale on Easements, 14th edition, 1972: "In those easements which require the repeated acts of man for their enjoyment, as rights of way, it would appear to be sufficient if the user is of such a nature, and takes place at such intervals, as to afford an indication to the owner of the servient tenement that a right is claimed against him - an indication that would not be afforded by a mere accidental or occasional exercise."

(The same passage appears in the 17th edition of Gale on Easements , 2002, at 4-103.) 81 In Carr v Foster and Others (1842) 3 QB 581; 114 ER 629 Lord Denman CJ said (at 587, 632) that where there had been a two year intermission in use of the right of way, that did not necessarily stop time running: "Where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time."

Patteson J said (at 588, 632): "How many times the right has been exercised is not the material question, if the jury are satisfied that the claimant exercised it as often as he chose. It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine."

While that case concerned an easement obtained under the Prescription Act 1832 (UK) the principles for what counts as sufficient prescriptive use are not relevantly different under that Act to under the doctrine of lost modern grant. 82 In Hollins v Verney (1884) 13 QBD 304, another case under the Prescription Act, Lindley LJ (delivering the judgment of the Court) held that user of the site on three occasions at intervals of 12 years was not enough. He said, at 307-8, that: "… actual enjoyment for the full period of twenty years may be established by evidence which falls short of proving actual user for the whole of that period without any cessation. Common sense, moreover, is enough to shew that in order to establish a right of way under s.2, it cannot be necessary to prove an actual continuous user of the way by day and by night for twenty years without any cessation whatever. Whatever fairly amounts to an actual enjoyment as of right of the way claimed for the full period of twenty years mentioned in s.2, is sufficient. But it is obvious, and it has often been pointed out, that in the case of a discontinuous easement like a right of way, it is extremely difficult, if not impossible, to say exactly what cessations of actual user are, and what are not, consistent with such an actual enjoyment for the full period of twenty years …"

And at 315: "Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended." 83 Applying these principles, the Full Court of the Supreme Court of Western Australia in Gangemi and Another v Watson (1994) 11 WAR 505 held that a prescriptive easement was on the facts established, notwithstanding an interruption of user for a period of four years. In applying these principles, it should also be borne in mind that actual knowledge of the usage on the part of the owner of the servient tenement is not necessary. It suffices if it is "of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment": Union Lighterage Company v London Graving Dock Company [1902] 2 Ch 557 at 571. 84 In the present case, if specific proof of use of the Site out of daylight hours for twenty years were necessary to establish a prescriptive right to use it 24 hours a day, I would find that such use has been proved. Use Connected with Commercial Purposes/By Commercial Vehicles 85 When James Maher started his own business as a builder in 1990 he conducted it from Lot 1. In 1996 a new double garage was erected on the land, which James Maher used as a storage/workshop area. He has continued to carry out activities connected with his business, from that garage, up to very nearly the present time. He describes his activities at the property as follows: "As a builder you need a storage area to store your timber, bricks, left over material you need an office for your contractors to come so you can pay them and that was basically our base, like any other builder in Sydney who works out of a home office would have the same type of set up."

He had a workbench with a table saw in the garage, and carried out some carpentry work there. He carries out business under a business name, which since November 1997 has had its registered address at Lot 1. 86 Over the years he has employed from six to ten employees at any one time, and many of them have used the carpark of the Club as a means of access to Lot 1 on a daily basis, both in the morning and afternoon. 87 He has purchased a strata title factory, the purchase of which settled in May 2002. Since Christmas of 2003 he has been moving items connected with his business from the garage, and other places on his father's property, into that factory. When that move is complete he intends to still use Lot 1 for business purposes in a limited way, for storage of material which cannot be conveniently stored at the new factory. This is because his factory is "not big enough to store stone, bricks and stuff you saw the other day." He envisages using "large trucks" from time to time to deliver or collect that stored material, and is concerned that the Pittwater Road access to Lot 1 would be quite difficult for large trucks. He plans to move his office from Lot 1 to the new factory. 88 Mr David Mestrov is a friend of Mr Maher and James Maher. He is also a builder who has been getting about 80% of his work from Mr James Maher since the mid-1990s. He acts as a sub-contractor. For two to three days per week over that time he has carried out his work in the garage at Lot 1. On some occasions Mr Mestrov has had goods delivered to him at Lot 1, for purposes connected with the 20% of his business which is not for Mr James Maher. 89 There has been some use of the Site by vehicles which are of a type used for commercial purposes, but where that use has not been connected with any business being conducted on Lot 1. Ben Maher resumed living in the house at Lot 1 in early 2002. He is a carpenter, and used the Site as a means of driving his work utility or station wagon to and from work. Mr Hugh Monnock is a builder, who is friendly with the Maher family, and since around 1975 has visited the house about once a week for purely social purposes. Since around 1987, when he obtained his driver's licence, he has often been driving his own truck or utility. Counsel for the Club accepts that the Site is also likely to have been used by vehicles of tradesmen, like plumbers, doing work of the type which any house needs to have done on it from time to time. 90 The prescriptive easement which began accruing in 1974 was one for all purposes according to the ordinary and reasonable use to which Lot 1 might be applied at the time of the supposed grant, and which is of the same nature as that to which Lot 1 was put while the easement accrued. As the time of the supposed grant pre-dates the period of the user, it is the ordinary and reasonable use to which the land might be applied prior to 12 March 1974 which matters. The usage of Lot 1 for the purpose of James Maher's business involves a usage which is different in nature, not merely in extent, to that which occurred while the easement was accruing, which was a usage for residential purposes. I would accept that it might sometimes be an ordinary incident of using land for residential purposes that business is conducted on that land, in a minor way, and by activities which are the type of activities which it would not be unusual for a person to conduct in his or her own home. However, the activities of James Maher on Lot 1 go beyond that. Before there could be a prescriptive easement which justified the use of the Site for the purposes of that business, it would be necessary for a further prescriptive period of twenty years to have run since the business began, in 1990. That has not happened. Thus, the use of the Site for purposes connected with that business is (especially now that James Maher no longer lives at Lot 1) beyond the scope of the easement. 91 The ordinary and reasonable use of Lot 1 for residential purposes does not require the easement to be restricted, in the manner the Club claims, so that it allows the passage only of non-industrial and non-commercial vehicles. Even without proof of specific use of the Site by industrial or commercial vehicles, it is an ordinary part of use of land for residential purposes that it will be visited by such vehicles. Specific proof of use of the right of way by such vehicles runs only from 1990 (and so is not for a full twenty year period), but that does not matter, because being visited by such vehicles is part of the nature of land being used for residential purposes. Illegality and Commercial Use 92 The Club submits that the use of Lot 1 for commercial purposes has been illegal under the provisions of the Pittwater Local Environmental Plan 1993 ("Pittwater LEP 1993"), and for that reason could not give rise to any prescriptive right to an easement aimed at continuing the illegal use. 93 The Pittwater LEP 1993 came into effect on 4 February 1994. Planning in the area had previously been controlled by the Warringah Local Environmental Plan 1985, the terms of which are not in evidence, and were not relied on by the Club. 94 Under the Pittwater LEP 1993, Lot 1 lies within a zoning 6(b) (Private Recreation "B"). Clause 9 of the Plan has the effect that within that zone no development may be carried out without development consent. Categories of development which may be carried out only with development consent include dwelling houses and "commercial premises or industries required in connection with a purpose permissible under this heading". Clause 6 of the Pittwater LEP incorporates within it (with some exceptions and modifications) the Environmental Planning and Assessment Model Provisions 1980. Clause 35 of those Model Provisions, as so amended, says: "Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit - … (c) home occupations." 95 Clause 5 of the Pittwater LEP says: "home occupation" means an occupation carried on in a dwelling by the permanent residents of the dwelling and which does not involve - (a) the registration of the building under the Factories, Shops and Industries 1962 or the licensing of the premises under the Dangerous Goods Act 1975; (b) the employment of persons other than those residents; (c) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil or otherwise; (d) the display of goods, whether in a window or otherwise; or (e) the exhibition of any notice, advertisement or sign (other than a notice, advertisement or sign exhibited on that dwelling to indicate the name and occupation of the resident)." 96 The definition of "development" in s.4, s.76A, and s.125 Environmental Planning and Assessment Act 1979 combine to make use of land without development consent a criminal offence. 97 Sections 106 and 107 Environmental Planning and Assessment Act 1979 permit land to continue to be used for a purpose which was lawful immediately before the coming into force of an environmental planning instrument. Pittwater LEP 1983 is an environmental planning instrument. Hence whatever uses of Lot 1 were lawful before it came into effect, can be continued. 98 During the time that James Maher ran his business from Lot 1 until the construction of the double garage, planning controls were, until 4 February 1994, under an instrument other than the Pittwater LEP 1993. There is no evidence of whether he obtained any approval under the Warringah Local Environmental Plan 1985 to commence his building activities on the Site, or, if he did, what the terms of that approval were. James Maher carried out no business activities on Lot 1 during 1994 and 1995, because he was overseas. The precise date of construction of the double garage in 1996 does not emerge from the evidence. Nor is there evidence of the terms of any development consent which was granted for the garage. Against that evidentiary background, the Club has not satisfied me that any use which James has been making of the garage, or Lot 1, is illegal. In so deciding, I take into account that s.140(2) Evidence Act 1995 requires me to take into account, in deciding whether I am satisfied of any matter, the gravity of the matter alleged. 99 I was referred to various authorities which bear upon whether prescriptive easements can arise when there is an illegality: Rochdale Canal Co v Radcliffe (1852) 18 QB 287; 118 ER 108; Neaverson v Peterborough Rural District Council [1902] 1 Ch 557 at 573, 577, 579; Hulley v Silversprings Bleaching and Dyeing Company Limited [1922] 2 Ch 268 at 281-2; Oakley and Another v Boston [1976] 1 QB 270 at 280-1, 284-5; Cargill v Gotts [1981] 1 WLR 441 at 446; Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 at 20. See also Bakewell Management Ltd v Brandwood and Ors [2004] UKHL 14. In the circumstances I do not need to consider those cases further. Two Way Use 100 Ms June Brooks has been an employee of Mr Maher for the whole time he has lived at Lot 1. She has used the Site on a regular basis, throughout that time, for picking up and dropping off work associated items, at a time when she was helping Mr Maher with housekeeping in 1983, and in connection with staff Christmas parties and other social gatherings. She gives evidence, which I accept, that: "Now and then I was confronted with a vehicle travelling in the opposite direction to me between the Maher property and Darley Street. I am unable to recall whether the drivers of such vehicles were visiting the Maher property or were club members but I do recall that when this occurred there was enough room for both vehicles to pass provided the drivers were careful." 101 Mr David Glading was a regular visitor at the Maher house for about 10 years from 1974. He gives evidence, which I accept: "On occasions when the children met after school at the Maher house on my observations parents were coming and going at various times to collect their children. Often this led to more than one vehicle at a time attempting to enter or exit the "break in the stone wall" and when this happened common courtesy would prevail to the extent that one vehicle would pull to the side and let the other vehicle pass." 102 Mr Raymond Grellis is another person who regularly visited the Maher residence over the period 1974 to 1985 for social functions. He gives evidence, which I accept, that: "When attending these occasions I also observed other attendees at such occasions entering and leaving the property via Darley Street. On some occasions whilst so entering the Maher's property or so leaving the Maher's property I encountered a vehicle going to or coming from the Maher's property in the opposite direction to me. On some of these occasions I recall acknowledging the other vehicle's occupants. I even recall on occasions stopping my vehicle and speaking to the occupants of the vehicle travelling in the opposite direction. Two of these people spoken to by me on such instances are Robin Owens and Peter Atkins who at the time were travelling with their families." 103 Mr Maher gives evidence, which I accept that: "… on very many occasions when I have been entering my property from Darley Street I have observed a vehicle leaving my property and it has been necessary for me to wait briefly and let such vehicle pass before entering my property and vehicles entering my property also extended the same courtesy to me when I was leaving my property and they were entering my property. I have also observed other family members and access users extending the same courtesy to each other. The point at which it was or is necessary to halt and wait varies depending upon the number of cars parked adjacent to the stone wall boundary fence of my property in the area now defined as "Directors/Executive Parking". … When vehicles pass one another they can do so at all times from the Darley Street entrance to a point about 12 metres from the stone wall. Between this lastmentioned point and the entrance to my property it is sometimes not possible to pass and re-pass depending upon whether or not cars are parked in the "Directors/Executive Carpark" and in the event that there are no cars parked in such carpark, cars can pass and re-pass up to a point much closer to the entrance to my property." 104 Mr Mestrov has been a friend of Mr James Maher since they were both school boys. Between 1986 and 1994 he visited the house at least four times per month, and since 1994 he has visited the house most days. He gives evidence, which I accept, that before the Club carpark was sealed, he observed vehicles leaving the gap in the sandstone wall travelling towards Darley Street, and passing vehicles travelling from Darley Street to that gap. He gives evidence, which I accept, that: "Following the sealing of the parking area and surrounds … on my observations the usage of the access way has increased and the incidence of vehicles passing one another going to or coming from the Maher house to and from Darley Street has increased. When ever I am passing a vehicle travelling in the opposite direction when I am entering or leaving the Maher property and the driver of such vehicle is known to me we normally greet each other by waving or stopping and having a chat." 105 Mr Monnock is another longstanding friend of Mr James Maher. He has been visiting the house from around 1975. He has continually visited the house around once a week. Since 1987 he has driven there. He gives evidence, which I accept: "Both before and after the car park area and surrounds were sealed there were instances when I would be going towards the Maher house or towards Darley Street and I would observe a vehicle travelling in the opposite direction driven by a person I know, specifically the Plaintiff or James or Jill (Mrs Maher, and in her case only prior to the resealing) in these instances depending on the point at which the two vehicles were approaching one another they would either pass each other or if near the "gap in the sandstone wall" one vehicle would pull over and let the other one pass. I recall on occasions when James Maher or Reg Maher were travelling in the opposite direction and we actually stopped and spoke with each other." 106 Of the 26 witnesses called by the Club (24 members of long standing, 14 of whom became members prior to 1967, plus Mr Brown and Mr Spinks) all except four gave evidence in a common form that: "I have not, at any time that I have been at the Club, seen a motor vehicle driving from Darley Street West to the gap in the sandstone wall on the boundary at the same time as a vehicle is looking to or has passed from the gap in the sandstone wall boundary fence and driven in the direction of Darley Street West. In other words, I have not seen vehicles passing in opposite directions using the sealed car park area as an access from Darley Street West to 1852A Pittwater Road, Bayview."

One member, Mr Allan Lewis, gives evidence that it has only been in the year before swearing his affidavit (which was sworn 7 May 2003) that he has seen, on one or two occasions, a vehicle going out of the property and the vehicle's driver having to wait because there was another vehicle being driven through the gap. The other three Club members, who did not give evidence in the common form, gave evidence in such terms that I would not conclude that they had actually seen vehicles passing on the Site. 107 While I accept this evidence filed on the part of the Club, the opportunities for observation of the deponents are not such as to lead me to reject the evidence filed for the plaintiff on this topic. 108 In the circumstances, I find that there has been use of the Site for more than twenty years, in circumstances sufficient to require it to be wide enough for two vehicles to pass. 109 The parties have conducted the case on the basis that if a right to only one-way access had been established the site of the easement was that shown in the plan enclosed with the letter of the solicitors for the Club dated 11 November 2002 (para [23] above), while if two-way access had been established the site of the easement was that identified as Proposed Right of Carriageway Variable Width in a plan of Paul Keen & Company dated 5 October 2002. One Dwelling 110 In June 1998 Mr Reginald Maher made an application to Pittwater Council for approval to subdivide Lot 1. That approval was granted in 1999. The approved plan was one which showed access to both the Lots thereby created, as being from Pittwater Road. The parties agree that a 1980 application to the relevant council, and 1996 and 1998 applications to Pittwater Council, made no mention of any right of way from Darley Street through to the plaintiff's property as claimed by him or otherwise. 111 While Mr Maher gives evidence, which I accept, that he has no present intention to go ahead with the subdivision, he also declined, in cross-examination, to give an undertaking that he would not subdivide Lot 1. Thus, I approach this matter on the footing that Lot 1 is inherently subdivisible, even though there is no present intention to subdivide it. 112 Gallagher v Rainbow and Others (1994) 179 CLR 624 concerned an express grant of right of way "for all purposes ordinarily incidental to or connected with domestic use and enjoyment of the dominant tenement or any part thereof". The majority of the High Court (Brennan, Dawson and Toohey JJ) held that this easement was capable of benefiting each of the parts into which the dominant tenement was subdivided. The reasons of their Honours recognised, but did not critically turn upon, the fact that the words of the grant included "or any part thereof". They said, at 632-633: "The terms of the respective easements contain no prohibition against the transfer of a subdivided lot or the enjoyment of the easement by the purchaser of a subdivided lot. The enjoyment of the easement by the registered proprietor of a subdivided lot is wholly consistent with the language of the grant. Whether the owners of subdivided lots of a dominant tenement are entitled to the benefit of an easement is a question of construction of the grant. Subject to a qualification relating to excessive user, the general principle is that stated by Jessel MR in Newcomen v Coulson (1877) 5 Ch D 133, at p 141: "It was said that as this was a grant to the owner and owners for the time being of the lands, if the lands became severed the owners of the severed portions could not exercise the right of way. I am of opinion that the law is quite clear the other way. Where the grant is in respect of the lands and not in respect of the person, it is severed when the lands are severed, that is, it goes with every part of the severed lands. On principle, this is clear." Australian authority is in line with Newcomen v Coulson . Thus in Re Maiorana and the Conveyancing Act , Hope J said [1970] 1 NSWR 627, at p 634: "Where a vendor owns a parcel of land and conveys part of it to a purchaser, and in the relevant conveyance also grants to the purchaser a right of way from some street or public road to a place within the land conveyed or contiguous with the land conveyed, there is a presumption that the dominant tenement is the land conveyed and every part of it ... prima facie the inference to be drawn is that the right of way is appurtenant to every part of the land retained and not merely to some part of it." Other Australian decisions supporting a presumption that an easement is appurtenant to the dominant tenement and to each part of it are mentioned in Butt, Land Law 2nd ed (1988), pp 307-308, citing as well as Re Maiorana : Guth v Robinson (1977), 1 BPR 9209, at pp 9210-9211; Edwards v Pieper (Supreme Court of NSW; 2 March 1981; reported only in part in [1981] 1 NSWLR 46); cf Jennison v Traficante (1980), 1 BPR 9657." 113 Their Honours continued, at 633-4: "However, the owners of subdivisions of the dominant tenement may be restricted in their use of the servient tenement within the limits stated by Gale, Gale, A Treatise on the Law of Easements , 7th ed (1899), p 77. The discussion does not appear in the current edition: 15th ed (1986): "If a severance of the dominant tenement takes place, all its easements which are attached to the tenement and not to the person of the owner will attach to the severed portions." But, he adds: "It is obvious, however, that by such severance no right is acquired to impose an additional burthen on the servient tenement. However numerous the occupants of the severed tenement may be, they must still confine themselves within the limits of the right existing at the time of severance." Goddard [Goddard, a Treatise on the Law of Easements, 8th ed (1921), p 392. See also Innes, A Digest on the Law of Easement, 8th ed. (1911), pp 65, 86-87 edited by Goddard to like effect] puts the matter this way: "The result ... appears ... to be, that if a dominant tenement is divided between two or more persons, a right of way appurtenant thereto becomes appurtenant to each of the severed portions, if such distribution of the easement is not at variance with the actual or presumed grant under which the right has been acquired ." (Emphasis added.)" 114 Their Honours then turned to the question of whether the fact that the easements were part of a plan for land development which involved various owners of lots in a subdivision contributing to the cost of maintaining a private road over the site of the easements, rebutted the presumption; they held it did not. 115 Gaudron and McHugh JJ dissented, in circumstances where they regarded the upsetting of the scheme for maintaining and repairing the private road, which would be involved in subdivision, as showing that the benefit of the right of way was not one which attached to each subdivided portion of the dominant tenement. Gaudron J, at 636 noted that the express grant was to "the grantee and the registered proprietors and occupiers for the time being of the dominant tenement", and took the view that it was unclear "whether that expression covers the registered proprietors and occupiers of the several lots into which an original lot is or may be subdivided … or whether it refers solely to the proprietor(s) and occupier(s) of an unsubdivided original lot." She continued: "Given that a right of way is a right attaching to land and not merely a personal right, there is much to be said for the view that, in the absence of definite indications to the contrary, a right of way should be construed on the basis that, if the original dominant tenement is subdivided, the right of way attaches to each and every lot in that subdivision. However, in this case there are strong and definite indications to the contrary."

Thus, Gaudron J, along with the majority, accepted that there was a presumption that a right of way could attach to each lot into which the dominant tenement was subdivided. McHugh J (at 642-643) was the only judge who denied that any such presumption existed. 116 The operation of the presumption in construction of an express grant of easement is illustrated in Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996, where Mahoney JA, at 14,001, (with whom Handley JA agreed) said of an easement expressly created as being "appurtenant to the said Lot 4": "… I do not accept that the statement "appurtenant to the said Lot 4" does not state "clearly" that the right of way may become appurtenant to or available for relevant parts of Lot 4 of the resubdivision. If the law be, as Gallagher v Rainbow and the earlier cases there cited have evidenced it to be, that such words may have the effect that the right of way is appurtenant to and available for the resubdivided lots, then those words "clearly" indicate that fact."

Meagher JA, at 14,003, said: "… in the case of easements there is, on the authorities, a prima facie presumption that an easement is intended to be appurtenant to the dominant tenement and every part of it. See Callard v Beeney [1930] 1 KB 353 and Re Maiorana and the Conveyancing Act (1970) 92 WN (NSW) 365. In the case of restrictive covenants, on the other hand, there is a prima facie presumption that the benefit of the covenant expressed to be for the benefit of a parcel of land is annexed to the land as a whole, and not to each and every part of it; this rule was laid down in Drake v Gray [1936] Ch 451, a case which has been followed times without number both in England and in Australia." 117 When there is this presumption concerning an express grant, I see no reason why it would not have been applied concerning the fictional grant which was regarded as the basis of acquisition of an easement by prescription through lost modern grant. The substantive law of prescription is that the same result is achieved as if such a grant had been made. 118 If one tests the matter by looking at whether making the benefit of the easement available to the subdivided portions of Lot 1 involves a user of the servient tenement in a way beyond the scope of the original prescriptive grant, I do not see that it does. After any such subdivision, the servient tenement is still being used for the same purpose, namely providing access to Lot 1 for residential purposes. Even if it were to be the case that any subdivision of Lot 1 had the effect of increasing traffic on the servient tenement, that is the type of increase in extent of use, without change in nature of use, which is permissible in an easement arising by prescription. In any event, there is no inevitability that subdivision of Lot 1 would bring an increase in the extent of user of the right of way. The vehicular traffic generated when the Maher home was the social centre for children attending the local school, and their parents, or when Mr Maher was sharing the house with four teenagers or young adults, would not necessarily be less than the traffic generated by two separate dwellings. Abandonment 119 The Club alleges that any prescriptive easement has been in part abandoned, so that the Site can no longer be used as of right outside daylight hours. The Club contends that this abandonment arose from the time the Club began locking the gates leading to Darley Street at night. 120 The conversation between Mr Maher and the Secretary/Manager of the Club, which I have found, at para [59] above, probably occurred after 5 June 1995, was as follows: "A. He said the golf club intends fencing the entire course and they will then put a gate and lock on the parking lot. He said words to the effect that I apologise for any convenience [as said] this may cause but of course I remember distinctly the words, "Of course", he said, "Of course I will speak to the committee about having a key made available to you when this is done."

Q. Did you say anything in response to him? … A. I said, "I don't know I would want the responsibility of locking up at night.""

Nothing else was said in the conversation concerning the gate. After that conversation, the gates were erected and were often locked at night - though sometimes, even after the fence was erected, Mr Maher was able to obtain access to the Site at night - see para [76] above. 121 Following erection of the gates, Mr Maher made no request for a key until a letter from his solicitors dated 14 November 2002, to the solicitors for the Club, sought such a key. Another letter from Mr Maher's solicitors to the Club's solicitors on 30 July 2003 repeated that request. 122 After the gate was erected, Mr Maher made no "official approaches" to the Club seeking a key, but he had various customers and friends who were golf club members, and he mentioned his concern about being without a key to "a limited number of those one of whom had been a committee member." 123 An easement, once in existence, can be abandoned. Further, an easement can be abandoned in part: Proprietors Strata Plan No 9,968 and Another v Proprietors Strata Plan No 11,173 and Others [1979] 2 NSWLR 605 at 612 per Needham J. In that case, at 617, Needham J said: "In Tehidy Minerals Ltd v Norman [1971] 2 QB 528, at p. 553, the Court of Appeal said: "Abandonment of an easement or of a profit à 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." Gale on Easements , 14th ed., p. 337 says that non-user accompanied by the intention to relinquish the right can be sufficient. It is clear enough that non-user alone is insufficient: cf Cooke v Bath (1868) LR 6 Eq 177; Ward v Ward (1852) 7 Exch 838; 155 ER 1189; R v Chorley (1848) 12 QB 515; 116 ER 960; Swan v Sinclair [1925] AC 227, and there are many others. In James v Stevenson [1893] AC 162, at p. 168, it was said that "it is one thing not to assert an intention to use a way, and another thing to assert an intention to abandon it." Abandonment is not to be lightly inferred: Gotobed v Pridmore (1970) 115 Sol Jo 78." 124 In the present case, Mr Maher has not abandoned the right to use the Site outside daylight hours. He has never demonstrated a fixed intention never at any time to assert the right himself, or to attempt to transmit it to anyone else. His conversation with the Secretary/Manager did not amount to saying that under no circumstances would he lock up. His occasional expressions of concern to club members he knew, about not having access, are inconsistent with him having any such intention. His actual user of the Site, on those occasions when the gates were open at night, is strongly indicative of him having no such intention. Whether Right of Way to be Registered 125 Counsel for the Club expressed a concern, in submissions, about whether any right of way which was granted in consequence of these proceedings, would actually be registered. Counsel for Mr Maher thereupon proffered an undertaking that any right held to exist would be registered. When that undertaking was proffered, I stopped Counsel for the Club from making further submissions on that point. Thus, as the trial was conducted on the basis that there would be such an undertaking, I will require it as a condition of granting relief to Mr Maher. Equitable Defence - Unclean Hands 126 The Club submitted that the illegality of the commercial activities being conducted by James Maher on the premises had the effect that an injunction to protect Mr Maher's right to use the Site would be denied on the basis of unclean hands. In circumstances where I have not found that any such illegality exists, I consider this defence no further. Equitable Defence - Laches 127 The Club raises a further equitable defence to the grant of an injunction, namely laches, arising from the long delay of Mr Maher in seeking enforcement of his right to use the right of way outside daylight hours. The onus of establishing the length of time for which Mr Maher has delayed exercising his rights, when it wants to establish delay for the purpose of a defence of laches, rests on the Club. While the fence was probably erected some time after 5 June 1995, the evidence does not precisely establish when. However, even if I were to assume that it was erected fairly soon after 5 June 1995, Mr Maher's delay in asserting his rights lasted only until 12 February 2002 (para [20] above). The only prescriptive right which he failed to assert a right to during that period concerned night time access. The Club took no step to its detriment in reliance upon any apparent non-assertion by Mr Maher of his rights. I do not regard that delay on the part of Mr Maher as precluding him from obtaining an injunction, to the extent to which he might otherwise be entitled to one. As the Club has, up to now, continued to lock the gates at night from time to time, and its stance in this litigation has been that Mr Maher is entitled only to the limited right set out in para [2] of this judgment, it is appropriate for an injunction to issue forbidding the Club from preventing the full use of the easement as I have found it to exist. Practicalities Concerning Keys to the Gates 128 Ordinarily, a servient tenement owner is entitled to fence the boundaries of its land, provided that the fencing includes gates which enable the dominant tenement owner to have access to the site of the right of way: Dunnell v Phillips (1982) 2 BPR 9517 at 9522; Butler v Muddle (1995) 6 BPR 13,984 at 13,986; Walker v Espie [2003] NSWSC 559 at [26]-[30]. If that gate is locked, it is a question of fact and degree whether, in the particular circumstances of that easement, and in particular taking into account any arrangements there are for obtaining a key, the locking amounts to a substantial interference with the easement. To avoid argument concerning that, Mr Maher offers that any easement which is declared to exist be subject to a proviso in the following terms: "PROVIDED THAT the owner of the servient tenement shall be at liberty to have erected a fence and/or gate and/or other means of security blocking access to the said right of way: (a) so long as the owner of the dominant tenement is given the means of gaining access to the right of way by provision of a key or such other device as may be necessary to freely exercise the rights conferred under the said right of way; and (b) so long as any such barrier to access ordinarily does not exist during daylight hours." Terms of the Right of Way 129 Section 181A Conveyancing Act 1919 provides: "(1) In an instrument executed or made after 1 January 1931 (the commencement of the Conveyancing (Amendment) Act 1930 ) and purporting to create a right-of-way, the expressions right of carriageway and … have the same effect as if there had been inserted in lieu thereof … the words contained in Part 1 … of Schedule 8." 130 Part 1 of Schedule 8 reads: "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."

The terms of the right of way which Mrs Orr reserved in the lease of 9 July 1963 (para [11] above), would be a piece of background information known to both parties to the notional grant of easement, and therefore could be taken into account in construing that notional grant of easement, if it were ambiguous. The terms of that right of way can also be taken into account, in my view, in deciding what right of way is inferred from usage, to have been granted. However the terms of the right of way reserved by Mrs Orr in the lease are not decisive of the scope of the right of way held to arise from the subsequent user. Just as background facts known to both parties can be used only to clarify ambiguities in an actual grant, the terms of the easement reserved in the lease can be used only to the extent to which the inferences arising from user might be uncertain. 131 If one compares the terms of the right of way which Mrs Orr reserved in the lease with the terms of the right of carriageway set out in Part 1 of Schedule 8 of the Conveyancing Act 1919, one sees that both forms of words state that the right to pass and re-pass exists at all times and for all purposes. The easement expressly reserved by the lease confers a right to pass or re-pass with or without "carts carriages motor cars and other vehicles laden or unladen", while the easement in Schedule 8, Part 1 says that the right is to pass or re-pass with or without "vehicles". 132 In my view, the verbiage in Schedule 8 Part 1 sets out, with one exception, what one would infer from the fact of usage of the Site as being the scope of the right claimed by the fact of usage. That exception relates to the words "and for all purposes". The case law discussed earlier shows that, when a prescriptive easement is claimed, the purpose of use of the dominant tenement is a part of the formulation of the easement which arises by the operation of law. That is one reason why I do not accept Mr Maher's submission that the terms of the easement reserved in the 1963 lease ought be taken as the right which Mr Maher was claiming by his use of the Site over the years. Another reason why I do not accept that submission is that, when the express easement had been reserved in the lease, but was not reserved by the conveyance, there is no reason to believe that it was the intention of Mr Maher that the easement which he claimed by usage would continue to operate in exactly the same way as the easement reserved by the lease. 133 I have already held (para [34] above) that user of the Site prior to 20 January 1967 (the date of the conveyance of Lot 2 to the Club) cannot give rise to a prescriptive easement. A different question is whether the nature and extent of user of the Site prior to 20 January 1967 can cast a different complexion on user after that date, to that which it would otherwise have. I will assume, without deciding, that in theory user before 20 January 1967 might cast a different light on how one characterised or described user of the Site after that date. Making that assumption, I do not see how user before 20 January 1967 in fact makes any difference to how the user after that date is described or characterised. 134 When the parties have argued, in the present case, about the particular factors which they have argued concerning the scope of the prescriptive right of way, it is, it seems to me, desirable to supplement the wording of Part 1 Schedule 8 (modified to refer to the purpose of use of Lot 1 as a dwelling) to make express my findings on those issues. Proposed Orders 135 Before making orders, I should give the parties an opportunity to be heard concerning the precise form of the orders. However as at present advised, it seems to me that orders in the following form would give effect to the conclusions reached in this judgment. The Second Amended Summons seeks an order appointing the Registrar to execute any instruments required to obtain registration of the easement. In circumstances where there is no reason to believe that the Club will not act in accordance with the orders, I will not make that order, but will instead reserve liberty to apply. 136 The draft orders are:

Upon the plaintiff by his counsel undertaking to the Court that he will promptly take all necessary steps to register with the Registrar General an easement of the type hereinafter declared to exist:

(1) declare that the plaintiff is entitled to a right of way appurtenant to his property known as 1825A Pittwater Road Mona Vale being Lot 1 in DP 230607 conferring full and free right for every person who is at any time entitled to an estate or interest in possession in the said Lot 1 or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and re-pass at all times of the day and night with or without animals or vehicles or both and whether any such vehicles be laden or unladen to and from the said Lot 1 or any such part thereof, over the land identified as Proposed Right of Carriageway Variable Width in the plan of Paul Keen & Company dated 5 October 2002 being part of Lot 2 in DP 230607 for the purpose of the use of the said Lot 1 or any part thereof as a dwelling PROVIDED THAT the owner of the servient tenement shall be at liberty to have erected a fence and/or gate and/or other means of security blocking access to the said right of way: (a) so long as the owner of the dominant tenement is given the means of gaining access to the right of way by provision of a key or such other device as may be necessary to freely exercise the rights conferred under the said right of way; and (b) so long as any such barrier to access ordinarily does not exist during daylight hours.

(2) Declare (for the sake of clarity) that the benefit of the right of way declared by paragraph 1 to exist will enure for the benefit of any lots into which Lot 1 may be subdivided.

(3) Order that the defendant, by itself its servants and agents, be restrained from interfering with the exercise of rights under the right of way the subject of the foregoing declarations.

(4) Order that the defendant cause a key to be provided to the plaintiff within seven days of the order being made to enable the plaintiff and persons authorised by him to gain access through the gate presently constructed in the fence on or near the boundary between the said Lot 2 and Darley Street West, Mona Vale.

(5) Order that the defendant, by itself its servants and agents, take no step to cause the Qualified Title issued on 26 February 1999 in respect of Lot 2 in DP 230607 to become unqualified prior to the registration of the said right of way.

(6) Order the defendant to do all things necessary to execute all documents required to enable the Plaintiff to secure registration of the said right of way.

(7) Liberty to apply. 137 Any argument about costs can take place at the same time as any argument about whether amendment of these draft orders is appropriate. I direct that within 14 days of the date of delivery of these reasons, the parties obtain from my Associate a date for any argument about costs and the form of orders. **********

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