20 As to cases decided after Harris v Flower , in Paterson & Barr v University of Otago , a right of way was expressed to accommodate a warehouse to be built on Lot 6, solely for the purpose of taking goods to and from the warehouse, but it became apparent that when constructed the warehouse was to be built on the adjoining Lot 5 as well as on Lot 6. Sim J, after referring to Harris v Flower , said:
It seems to me, however, that, even if the grant could not be construed in the circumstances as extending to the whole warehouse, the claimant would have been entitled, at any rate, to use the right of way for the purpose of conveying goods to the part of the warehouse standing on section 6. In connection with this question reference may be made to the case of Williams v James . In that case there was a right of way in connection with a particular field. The way was used for the purpose of carting from the field some hay which had been grown partly there and partly on land adjoining. This was held not to constitute necessarily an excess of user of the right of way. The matter is not clear, …
21 In Alvis v Harrison (1991) 62 P&CR 10, 15-16, the House of Lords explained the rule in Harris v Flower in terms that the dominant owners "may not, in short, increase the scope of the right of access". In Gallagher v Rainbow (1994) 179 CLR 624, McHugh J (in a dissenting judgment, but the dissent does not affect this point) said (at 640 - 641) that Harris v Flower illustrated the rule that the use or purpose of an easement could not be altered beyond that contemplated at the time of the grant:
Accordingly, no alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant. So, in Harris v Flower, Romer LJ said:
If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.
In Bracewell v Appleby, [1975] Ch 408 at 418 Graham J applied this dictum of Romer LJ and held that the owner of a dominant tenement was not entitled to use a right of way for the purpose of gaining access to a house that he subsequently built on adjoining land. In Jelbert v Davis, the defendant who owned agricultural land had a right of way to that land over land owned by the plaintiff. Subsequently the defendant converted his land to a caravan park which had more than 200 camping sites. The plaintiff objected to the use of the right of way by caravans and cars that were using the park. The English Court of Appeal held that use of the right of way for such a large number of camping sites was impermissible, as it could not have been within the contemplation of the parties upon the original grant of the easements. The underlying principle was stated by Lord Denning MR as follows:
… the true proposition is that no one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant.
22 In Shean Pty Ltd v Owners of Corinne Court [[2001] WASCA 311, [46]], the Western Australian Court of Appeal held that the rule in Harris v Flower was not infringed where the conduct complained of was "within the plain meaning of the terms of the deed of easement". And in Strata Plan No 8450 [2002] NSWSC 780, Bergin J held that the rule in Harris v Flower was not applicable in circumstances where the intention of the parties at the time of the grant, as appeared from the surrounding circumstances, was that the dominant land would be consolidated with remoter land, and would then enjoy the benefits of the right of way for the purpose of accessing the remoter land. Her Honour, before referring to the absence of conduct "in excess of the grant" [77], said (at [76]):
In other words, in contrast to the position in Harris v Flower , I am satisfied from the words of the grant, read in the context of the Plan and the surrounding circumstances, that it was intended that Mr and Mrs Miles were entitled to use the way for passing over Lot A to Lot 2.
23 The explanation of Harris v Flower by the Court of Appeal of England and Wales in Peacock v Custins [2001] 2 All ER 827 confirms that the true question is whether the proposed use of the right of way to access a remoter property is within the scope of the grant, having regard to the identity and purposes of the dominant tenement, and that the burden on the servient owner is not to be increased without its consent. Schiemann LJ said (at [24]-[25], emphasis added):
24. The right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purposes of which the right is created. Trespass is whatever is not permitted by the grant. The right is not to use the way for the purposes of benefiting any property provided that the total user does not exceed some notional maximum user which the beneficiary might have been entitled to make for the purposes of the dominant tenement. If that were the test, the beneficiary might in some circumstances use the way entirely for purposes other than those of the dominant tenement. The right is to use the way for the purposes of the dominant tenement only. The grant, when made, had a notional value which would be identified by reference to those purposes and their likely impact. Use for other purposes would be likely to carry its own notional commercial value. … The court is not concerned with any comparison between the amount of use made or to be made, of the servient tenement and the amount of use made or that might lawfully be made within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicate that the burden on owner of the servient tenement is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden, and one must ask whether the grantor agreed to the grantee making use of the way for that purpose.
24 In my opinion, therefore, the true basis of the so-called rule in Harris v Flower is no more than that use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept. What burden the servient owner agreed to accept depends, at least ordinarily, upon the contemplated use or uses of the dominant land at the time of the grant, because it was to accommodate the dominant land, in the light of its anticipated uses, that the easement was created. It is not in excess of the grant to use a right of way to access the dominant tenement for those purposes that were contemplated at the time of the grant. Whether the servient owner agreed to accept use of the right of way for the purpose of access not only to the dominant land, but also to transit the dominant land to gain access to the remoter properties, depends on whether at the time of the grant, it was contemplated that the dominant land would be used as a means of access to the remoter property - whether or not it was then actually so used. So in Williams v James , use of the right of way from Lot A to cart hay harvested from lot B was permissible, because the legitimate use of lot A included storage of hay harvested from lot B. In Megarry VC's example in Nickerson , use of the right of way to Lot A to gain access from lot A to Lot B was permissible, because at the time of the grant it was obvious that Lot A would be used for that purpose, or alternatively it was intended that it be used for that purpose. And in SP8450 , use of the right of way to lot A to gain access from lot A to Lot B was permissible, because at the time of the grant it was intended that it be used for that purpose.
50 My only disagreements with this discussion are (1) in so far as it suggests that the intention or contemplation of the parties is something other than the intention manifested in the grant itself, construed in the light of circumstances admissible in aid of construction of the grant; and (2) in so far as it suggests that the purpose of an easement can be other than a purpose beneficial to the dominant tenement. However, as regards the second matter, I note that the primary judge did quote the statement by the English Court of Appeal in Peacock v. Custins [2001] 2 All ER 827 at [24] that the right granted by an easement is the right "to use the way for the purposes of the dominant tenement only".
51 Two cases discussed by the primary judge which approved the use of an easement for access to land other than the dominant tenement do not fall outside the principles I have stated.
52 In Shean, the dominant tenement (Lot 19) was an office block, and the person visiting that office block by car passed over the right of way in question and parked their cars on another lot (Lot 20). The Full Court of the Western Australian Supreme Court held that this was within the grant of a right of way "for all purposes connected with the use and enjoyment of" Lot 19, because those who parked on Lot 20 did so only for the purpose of visiting Lot 19. I note that a similar result was reached in National Trust v. White [1987] 1 WLR 907.
53 In Strata Plan No.8450, the owner of Lot A and Lot B in a Miscellaneous Plan of Subdivision transferred Lot B, with a reservation of two rights of carriageway over it in favour of Lot A. Lot A was very small (107.5 sq. metres), and the Miscellaneous Plan of Subdivision referred to in the transfer stated that it was intended to consolidate Lot A with another lot (Lot 2). About two years later, the transferor transferred Lot A to the owners of Lot 2; and much later, Lot A and Lot 2 were consolidated. Because Lot A was too small to be used on its own for any purpose requiring access through the right of way, and because the Plan referred to and incorporated in the document creating the right of way showed that it was intended to consolidate Lot A and Lot 2, Bergin J held that the use of Lot A intended by the parties to be supported by the right of way was as part of, and for access to, the consolidation of Lot A and Lot 2, and thus that the right of way could be used for that purpose. Her Honour referred to the terms of the grant resulting from the application of s.181A(1) and Pt.1 of Schedule 8 of the Conveyancing Act 1919 (NSW):
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.
54 Her Honour noted that the words "for all purposes" appeared without any qualifying words, and apparently relied on this also to support her conclusion.