Owners Corporation - Strata Plan No. 8450 v Owners Corporation - Strata Plan No. 54547

COUNSEL : T. Alexis (Plaintiff) S.D. Epstein SC (Defendant) SOLICITORS : Robinson & Co (Plaintiff) Kemp Strang (Defendant) CATCHWORDS : [EASEMENTS] - Rights of carriage way - Application for extinguishment of rights of way granted in 1956 - Whether rights of way should be deemed obsolete pursuant to s 89 of the Conveyancing Act 1919 (NSW) - Grant to Lot A with the intention to consolidate Lot A with a Lot adjacent to it - Whether intended that adjacent Lot have the benefit of the rights of way. Conveyancing Act 1919 (NSW), s 89, 181A, Part 1 Schedule 8 LEGISLATION CITED : Real Property Act 1900 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) Alvis v Harrison (1990) 62 P & LR 10 Bracewell & Anor v Appleby [1975] 1 Ch 408 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 Eddowes; Re (1991) 2 Qd R 381 Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 Finlayson v Campbell (1997) 8 BPR 15,703 Gallagher v Rainbow (1993-1994) 179 CLR 624 Graham v Philcox [1984] QB 747 Harris v Flower (1904) LJ Ch 127; (1904) 90 LTR 669 CASES CITED : Jobson v Record [1998] 9 EG 148 Mason and the Conveyancing Act; Re, (1961) 78 WN (NSW) 925 Miller v Tipling (1918) 43 DLR 469 Nickerson v Barraclough [1980] Ch 325 Peacock & Anor v Custins & Anor [2001] 2 All ER 827 Pieper v Edwards [1982] 1 NSWLR 336 Shean v The Owners of Corinne Court, 290 Stirling Street, Perth, Strata Plan 12821 & Anor [2001] WASCA 311 Skull v Glenister (1864) 16 CB (NS) 81; 143 ER 1055 Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 William v James (1867) LR 2 CP 577 Wright v Macadam [1949] 2 KB 744 DECISION : Amended Summons dismissed

• 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2768/00 OWNERS CORPORATION - STRATA PLAN NO 8450 v OWNERS CORPORATION - STRATA PLAN NO 54547 JUDGMENT 1 This is a dispute about rights of carriage way created in 1956 over land between Wrights Road and Drummoyne Avenue, Drummoyne, a suburb of Sydney. Pursuant to section 181A(1) and Part 1 of Schedule 8 of the Conveyancing Act 1919 (NSW), as amended, (the Act) the expression "right of carriage way" in the relevant instruments in this case has the same effect as if there had been inserted in lieu thereof the following: 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. 2 The plaintiff seeks the modification or extinguishment of the right of carriage way reserved to the transferor in Memorandum of Transfer registered No G579287 (the Transfer) dated 20 September 1956 described as being sixteen feet, six inches wide in Lot B in Miscellaneous Plan of Subdivision No 96113 (the Plan) in favour of Lots A and C in the Plan (the first right of way). The plaintiff also seeks modification or extinguishment of the right of carriage way reserved to the transferor in the Transfer described as ten feet wide in Lot B in the Plan in favour of Lot A in the Plan (the second right of way).

3 The plaintiff also seeks declarations: (1) That upon the proper construction of the Transfer, the first and second rights of way became extinguished upon the consolidation of Lot A in the Plan with the land appurtenant thereto; and, (2) That the first and second rights of way were connected solely with the use and enjoyment of the former dominant tenement, being Lot A, and that any use of the first and/or second rights of way for the purpose of access to any other part of the defendant's land is in excess of the grant in the Transfer. 4 The plaintiff seeks an injunction restraining the defendant and its proprietors, invitees, licensees and/or lessees from using the first and second rights of way. In lieu of an injunction, the plaintiff seeks an order that the defendant pay to it damages equivalent to a proper and fair price for the acquisition of the first and second rights of way. 5 This matter was heard on 25 and 26 July 2002 when Mr TA Alexis, of counsel, appeared for the plaintiff and Mr SD Epstein SC appeared for the defendant. 6 Rather than describing all the boundaries of the relevant land holdings over the years I refer to Exhibit 1 in which they can be conveniently located. The plaintiff is the successor in title of Lots B and C shown on the Plan. Lot B is burdened by the first and second right of way and is the servient tenement. The defendant is the successor in title of the former Lot A area that is benefited by the rights of way and is claimed to be the dominant tenement. The relevant Council approved the Plan on 23 February 1956. It contained the following: NOTES: - It is intended to create a Right of Way 10'0 Wide over site of same in Lot B in favour of Lot A. It is intended to consolidate Lot A in plan hereon with Lot 2 in plan with Transfer No. A676334 adjoining. No survey has been made by me and to the best of my knowledge there are no improvements on or adjacent to the new subdivisional boundary. It is intended to create a Right of Way 16'6" Wide over site of same in Lot B in favour of Lot A and C. It is intended to create a Right of Way 16'6" Wide over site of same in Lot C in favour Lots B and A. 7 Lot 2 had a frontage on Drummoyne Avenue and its rear boundary abutted a portion of the north western boundary of Lot B and the whole of the western boundary of Lot A. Alfred Ernest Miles and Ruth Miles purchased Lot 2 in 1950. 8 The Transfer was between Andrew Francis Ritter as transferor and Austin Henry Pigram and Kathleen May Pigram as transferees. It transferred all the estate and interest in Part of Volume 3193 Folio 99 "Being Lot B as shewn in" the Plan: TOGETHER WITH a right of carriage way 16 feet 6 inches wide over the site of same in Lot C in favour of said Lot B as shewn on the said Miscellaneous Plan of Subdivision AND RESERVING UNTO the Transferror a right of carriage way 16 feet 6 inches wide over the site of same in said Lot B in favour of Lots A and C as shewn on the said Miscellaneous Plan of subdivision AND RESERVING ALSO UNTO the Transferror a right of carriage way 10 feet wide over the site of same in said Lot B in favour of Lot A as shewn on the said Miscellaneous Plan of Subdivision. 9 The Certificate of Title for Lot A, Volume 7658 Folio 221 included the following: NOTIFICATION REFERRED TO Right of Carriage Way appurtenant to the land above described affecting the piece of land 10 feet wide and 16 feet 6 inches wide coloured brown in plan hereon created by Transfer No. G579287. 10 Mr Ritter transferred Lot A to Mr and Mrs Miles by Transfer No H223810 dated 20 December 1958. That Transfer recorded that Mr Ritter transferred the whole of the land in Volume 7658 Folio 221. Thereafter there appeared the typed words scored through in hand, "together with the rights of way over Lot B shown on the Miscellaneous Plan of Sub-division on (R.P.) Registered No. 96113." Underneath the scored through words appear the hand written words, "Surplusage" and "right of way already created by Tfr No. G579287". The Transfer also contained typed words "Encumbrances, &c., Referred to" under which there appeared handwritten words scored through in hand "Right of Carriage Way G579287" and then the hand written word "Surplusage". At the time of this Transfer Mr and Mrs Miles were already the proprietors of the Lot 2, having purchased it on 18 September 1950.

11 Lots B and C became subject to Strata Plan 8450 registered on 17 July 1974. There are now two seven-storey apartment buildings on that site. Standing Enterprises Pty Ltd (Standing Enterprises) acquired Lot A and Lot 2 in 1985. At that time, it also owned 65 Wrights Road, the rear boundary of which abutted the north eastern boundary of Lot A. Standing Enterprises also acquired two properties north of Lot 2 and Lot A in Drummoyne Avenue. By registration of Deposited Plan 867273 on 1 April 1997 all of these properties owned by Standing Enterprises were consolidated. The Deposited Plan included a note referrable to the former area of Lot A: "Benefited by right of carriageway - G579287." 12 On 10 April 1997 Strata Plan 54547 was registered in respect of the consolidated land, the Notes to which referred to the former Lot A area as: "benefited by right of carriageway - G579287." Item 5 of the Second Schedule in the Title Search of the common property records: "G579287 right of carriageway appurtenant to that part shown so benefited in the title diagram affecting the land shown in vol 7658 fol 221." The plan of the consolidated land designates the former Lot A area as common property. 13 There are four dwellings on the consolidated land; three on the boundary of Drummoyne Avenue and one on the boundary of Wrights Avenue. No 15 Drummoyne Avenue is on the area of the former Lot 2. This has been referred to in some of the evidence as 15A, however it is a duplex referred to as 15A and 15B. I intend to refer to the property in this judgment as No 15 Drummoyne Avenue. The former Lot A area is comprised of the southern end of a swimming pool, pathways and gardens. Access to the rights of way is through a lattice gate at the south eastern corner of the former Lot A area.

14 The plaintiff relied upon the evidence of Mr Bryan Gayner who has taken a number of photographs of the subject premises and rights of way. Mr Gayner complained that the gate into the pool area of the former Lot A area from the rights of way, was left open on eight occasions in September 2000. On each of these occasions Mr Gayner closed the gate. 15 The defendant relied upon evidence from a number of the residents in various parts of the consolidated land. Mr Serge George Derkatch lives with his wife Angela Maddison in 13 Drummoyne Avenue, of which their company, S & A Investments (NSW) Pty Ltd, has been the registered proprietor since June 2000. No 15 Drummoyne Avenue was purchased by Mr Derkatch in October 1997 and is tenanted. 16 Mr Derktach uses the right of way regularly and in the last six months he has used it five days a week, as it provides access for him to go to the ferry at Drummoyne Wharf. The route that he uses to access the right of way (Ex B) demonstrates that he gains access into the former Lot A area from the northern side, which is also north of the former Lot 2 area, and then travels through the former Lot A area into the rights of way. Ms Maddison also uses the same route describing it as the "most convenient access route" when she is wheeling her baby in the pram. This is in contrast to the many steps at the front of the property on Drummoyne Avenue. Both Mr Derkatch and Ms Maddison stated that when their company purchased No 13 they were aware of the rights of way and that their existence was a significant factor in their decision to purchase the property.

17 Rosalind Janelle Fletcher has lived in the upstairs portion of the duplex at 11 Drummoyne Avenue since she purchased it in May 1997. She too has made regular use of the rights of way and, by reason of her lower back problem, finds the use of the exit through Wrights Road far more comfortable than having to use the steps down from the premises to Drummoyne Avenue. Ms Fletcher suffered a broken bone in her foot during the year 2000 and needed to use crutches for about two months. The use of the rights of way was very convenient to her at that time. Ms Fletcher said that it is more convenient and a short access route between her property and the bus stops and ferry wharf in Wrights Road. She uses the rights of way on a daily basis to go to work. 18 Pasquale Gregory Buonincontri resided downstairs in 11 Drummoyne Avenue from November 1996 until June 2000. He purchased the downstairs duplex in 15 Drummoyne Avenue in April 2000 and moved into those premises in June of that year. Over the five years and nine months that he has lived at the premises, he has regularly used the rights of way. He finds them a more level and direct access from the rear of the property to Wrights Road to catch the bus into the city. 19 Mr Buonincontri has two titanium hips, having undergone a double hip replacement in 1998. Prior to his hip replacements, he could not climb up the steps at the front of the property at Drummoyne Avenue and the use of the rights of way was very much more comfortable for him. Mr Buonincontri also has a close friendship with a quadriplegic and a paraplegic. Both require permanent use of wheelchairs and have utilised the rights of way to gain access to his property. When Mr Buonincontri uses the rights of way, he does so by travelling from the former Lot 2 area through the former Lot A area and into the right of way. Previously when living at 11 Drummoyne Avenue, he accessed the rights of way through the former Lot A area from the north and then through to the rights of way. He said that when he purchased 15 Drummoyne Avenue he was aware of the rights of way and their existence was an important consideration in deciding to make that purchase. 20 Edward John Hogben has lived in the upstairs duplex of 11 Drummoyne Avenue since he purchased the property in 1997. He has made regular use of the rights of way and gave evidence that they provide a shorter and more convenient access route between his property and the bus stop and ferry wharf in Wrights Road. His daughter-in-law also uses the rights of way to bring his young grand-daughter in the stroller to visit him. When Mr Hogben purchased the premises, he was aware of the rights of way and their existence was a significant factor in his decision to purchase the property. 21 Charles Arthur Copeland, the principal of Standing Enterprises, has spent most of his life within or near the vicinity of the consolidated land. From 1988 to 1997 he resided at 13 Drummoyne Avenue. Throughout that period and whilst living close by in earlier years he regularly used the rights of way. When he was a child he had a close friend who lived with his family in 65 Wrights Road and they often used to climb over the back fence to use the rights of way as a means of access to the grounds of Lot 7, (subsequently Lots A, B and C), where they played.

22 When Standing Enterprises purchased 15 Drummoyne Avenue in 1985, Mr Copeland observed that there was a concrete slab within part of Lot A nearest the rights of way, and a gate between it and the rights of way. From that time he frequently used the rights of way for vehicular access, including for a one-tonne truck. When Standing Enterprises renovated and extended 15 Drummoyne Avenue, Mr Copeland used the rights of way as an access route for bringing building materials onto the site from Wrights Road and to remove demolition materials from the site. For about eighteen months in the early 1990's, he parked a boat on a trailer that had been brought from Wrights Road to the former Lot A area via the rights of way. 23 When Standing Enterprises subsequently purchased the remaining properties in the consolidated land, Mr Copeland made gaps in the fences between the properties within that site into the former Lot A area so that the residents of those properties could use the rights of way as a means of access to and from Wrights Road. He also observed various delivery and other motor vehicles using the rights of way to directly access the rear of the properties. When Mr Copeland resided at 13 Drummoyne Avenue between 1988 and 1997, his mother and his mother-in-law used the rights of way as a means of access to that property from Wrights Road because of the difficulty using the steps from Drummoyne Avenue.

24 The plaintiff claims that the rights of way should be extinguished because: (1) In 1958 there was an amalgamation of Lot A with a much larger piece of land so that "Lot A ceased to be land-locked"; (2) The amalgamation in April 1997 rendered it impossible for the rights of way to be used only for the benefit of the former dominant tenement; (3) The construction of the swimming pool on part of the former Lot A area was a change in user or other material circumstance; and (4) That use of the rights of way for the purpose of gaining access to land adjoining Lot A has been in excess of the grant. The plaintiff also submitted that the extinguishment of the rights of way will not substantially injure the defendant. The nub of the plaintiff's case is that the grant in the Transfer was for the benefit only of the former area of Lot A and not for the benefit of Lot 2 or any other part of the consolidated land. 25 It is submitted that it if it had been intended that Lot 2 was to have the benefit of the rights of way there would have been a reference to the benefit flowing through to Lot 2 in the Transfer. Reliance was also placed on the Notes in the Plan. In that regard it is submitted that when properly construed those Notes indicate that the rights of way into Lot A were only ever intended to be temporary until Lot 2 and Lot A were consolidated. That construction derives from the plaintiff's pivotal argument that the reason the rights of way into Lot A were granted was to ensure that Lot A was not landlocked. 26 The defendant submitted that such construction and supporting argument are absurd because it could never have been reasonably expected that there would be a need to ensure Lot A, on its own, was not landlocked. Mr Epstein SC submitted that as the land was so small (107.5 square metres) one could not reasonably envisage it being developed. What, he asks rhetorically, would be the use of providing rights of way into Lot A if one were simply able to walk into it from Wrights Road, enjoy its 107.5 square metres, and then walk out again? 27 The former Lot 2 and Lot A areas are now occupied by the common property and the duplex at 15 Drummoyne Avenue, Drummoyne. In cross-examination Mr Alexis established that the occupants of the duplexes on the other parts of the consolidated land had gained access to the rights of way by entering the former Lot A area, now the common property, from their own properties and not through the former Lot 2 area. Mr Epstein SC submitted that to the extent that such accessing of the rights of way may be in excess of the grant the plaintiff had not at any stage required those occupants to desist from such access. It was further submitted that this application was not the appropriate remedy particularly as no notice has been served on those persons nor have they been joined in these proceedings.

89 Power of Court to modify or extinguish easements, profits a prendre and certain covenants

(1) Where land is subject to an easement or a profit a prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit a prendre, restriction or obligation upon being satisfied: (a) that by reason of change in the user of any land having the benefit of the easement, profit a prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit a prendre, restriction or obligation ought to be deemed obsolete …, … (c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit a prendre, or to the benefit of the restriction or obligation. 29 The purpose of the section is to enable covenants, which have no practical utility to the land intended to be benefited, to be removed and thus to clear the title. Whether the rights of way are "obsolete" has been taken to mean whether their objects or purposes are now incapable of being fulfilled or whether they serve no present or useful purpose: Re Mason and the Conveyancing Act (1961) 78 WN (NSW) 925 at 927 and 929. The power exercised by the Court under this section is discretionary in which the Court may consider a number of factors including the history of the relevant properties, the conduct of the present owners and the previous registered proprietors and the state of the register: Pieper v Edwards [1982] 1 NSWLR 336. It is to be remembered when exercising the discretion that rights of way or easements are proprietary rights that enhance the value and utility of the dominant tenement and are not lightly to be taken away: Pieper v Edwards at 341. 30 In Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099, Mason P agreed with the dictum in Re Mason and the Conveyancing Act and referred to the "latitude" encompassed in the power expressed as one of being satisfied that an easement ought to be deemed obsolete and continued at 18,100: This said, the court's focus must remain the language of the section. Section 89 necessarily qualifies the common law rights of the owner of the easement. The section is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights. The starting point is the easement itself, its terms and its objects derived from construing those terms in context (cf Re Mason at 764) and bearing in mind that the easement was created for an indefinite future and destined to enure in a changing environment: cf Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at 47.

31 Mr Alexis submitted that Bracewell & Anor v Appleby [1975] 1 Ch 408 is probably the most factually analogous to the present case. Six houses were built on an estate forming a cul-de-sac around a private road known as Hill Road, Heath End, Surrey. There was a right of way appurtenant to the six properties over Hill Road. The plaintiffs owned No 4 and No 1 Hill Road and the defendant owned No 3 Hill Road. In April 1971 the defendant purchased land adjoining No 3 Hill Road, referred to as "the blue land", which was effectively landlocked. The only access to the blue land was over No 3 Hill Road. In April 1973 the defendant began to build a house, No 2A, on the blue land and part of the garden of No 3 and the defendant subsequently moved into No 2A and sold No 3. 32 The plaintiffs brought proceedings to restrain the defendant from using the right of way over their properties to access the blue land through No 3. The original grant of the right of way was found by Graham J to be in "clearly very broad words" with the intention of granting a private right of way of "as extensive a nature as legally possible, having regard to the fact that there were private houses on a building estate being developed" (at 417). At the time of the grant to the defendant's predecessors the extent of the property was limited to what became No 3 Hill Road and did not include any part of the so-called blue land the defendant acquired subsequently. Graham J said at 417-418: So far as the grant is concerned the dominant tenement was, and continued to be, no 3, and the defendant has never had any right of way giving him access to any land other than no 3 as it was at the date of the grant. Mr Jackson's sheet-anchor, Harris v Flower , 74 L.J.Ch 127, justifies his assertion that the grant of access to no 3 does not enable the defendant to establish that he has a right to extend his right of way to the blue land to which it is not appurtenant, thereby in practice doubling the burden on the servient tenements of the plaintiffs because there are now two houses and families using Hill Road from no 3 instead of one as before. The words of Romer LJ were, at p. 132: "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." The circumstances in that case and in the present case are parallel and in my judgment the principles of Harris v Flower , as expressed above by Romer L.J., govern this case. His words are quoted in Gale, Easements, 14th ed. (1972), p. 282 and it does not appear that there has ever been any criticism of them as not expressing accurately the true legal position. 33 In Gallagher v Rainbow (1993-1994) 179 CLR 624 the appellant owned Lot 14 in a subdivision of twenty three lots. The respondents owned Lots 16 and 17. A private roadway formed from strips of land belonging to each of Lots 14, 15, 16 and 17 gave access to those four lots. The respondents decided to subdivide their lots into three lots each and the appellants objected to the occupiers of the resulting lots having use of the roadway. The appellant brought proceedings in the Supreme Court of Queensland for damages for trespass and nuisance and sought an injunction restraining the respondents from using the roadway to proceed with the subdivision and an injunction restraining the respondents from proceeding with the subdivision. 34 At first instance Lee J held that the respondents were entitled to use the roadway. His Honour refused to restrain the respondents and awarded the appellant nominal damages in the amount of $2. An appeal to the Court of Appeal (McPherson and Pincus JJA, and Thomas J) was dismissed. The Court of Appeal held that the benefit of the easement would attach to the dominant tenement in the subdivided form. The appellant appealed to the High Court. 35 The term "grantees" included transferees and assigns as well as the occupiers for the time being of the dominant tenement. The High Court held (Brennan, Dawson & Toohey JJ; McHugh & Gaudron JJ dissenting) that the extended meaning of grantees was apt to include transferees of a subdivision of a dominant tenement (at 632). The purpose of the easement was in the following terms: A right of way for the grantee and the registered proprietors and occupiers for the time being of the dominant tenement and all persons authorised by them together with all others having the same rights as the grantee but in common with the grantor and every other person who is for the time being the registered proprietor of the servient tenement at all times day or night and for all purposes ordinarily incidental to or connected with domestic use and enjoyment of the dominant tenement or any part thereof with or without animals carriages wagons motor vehicles and all vehicles of any other description whatsoever, laden or unladen to pass and repass over along or across the servient tenement. 36 The majority referred (at 633-634) to a discussion in Gale, A Treatise on the Law of Easements, 7th Ed. (1899), (which does not appear in the current edition), in which it was stated (at 77) that: "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". Their Honours also referred (at 634) to Goddard, A Treatise on the Law of Easements, 8th Ed. (1921) in which the following appears (at 392): "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." 37 Mr Alexis relied upon the following portion of the dissenting judgment of McHugh J at 640-641: 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 L.J. 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 then 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 M.R. as follows: "The true position is that no one of those entitled to the right of way must use it to an extent which is beyond anything that was contemplated at the time of the grant." 38 McHugh J went on to say that the conclusion as to whether an easement is for the benefit of each part of the land affected will depend upon the intention of the parties which is to be "gathered from the terms" of the easement "read in the light of the surrounding circumstances". His Honour cautioned that there is no place for "artificial presumptions" in that process (at 643). 39 Gallagher v Rainbow was a case dealing with a subdivision of an existing dominant tenement rather than an extension of the benefited land by consolidation with other land as is the position in the present case. Additionally, the relevant Queensland legislation did not contain provisions equivalent or similar to s 181A and Part 1 of Schedule 8 of the Act. Mr Alexis relied upon the following portion of Professor Butt's book, Land Law, 4th Ed, Lawbook Co Ltd, 2001, at [1614], where, by reason of the use of the term "it seems" on two occasions, a somewhat uncertain view was expressed: If instead of being sub-divided, the dominant tenement is consolidated with other land, it seems that the easement does not benefit the whole of the consolidated land. Rather (it seems), the easement continues to benefit only that part of the larger whole that was the (former) dominant tenement. 40 The authority relied upon by Professor Butt in support of this view is Re Eddowes (1991) 2 Qd R 381. That was a case in which the predecessors in title of the applicants and the respondents had granted mutual easements. The applicants were willing to have their easement extinguished but the respondents resisted the extinguishment of the easement benefiting their land. The applicants brought proceedings for the extinguishment of the easements. When the relevant easement was granted the dominant tenement had constructed upon it a single dwelling house. At the time of the proceedings the residential site which previously comprised the dominant tenement had constructed upon it six residential units and part of four other residential units. Ambrose J said at 383: In this case when considering limitations upon user of the easement after amalgamation, it seems to me one must notionally sub-divide the amalgamated lot into its former parts and consider the extent to which user relates only to part of that land which was the former dominant tenement. 41 It is apparent that Professor Butt formed his above-stated view from this portion of Ambrose J's judgment. That case is quite distinguishable on its facts from this case. In that case there was a great deal of evidence indicating a lack of use of the easements over a lengthy period and a use in later years that was inconsistent with a Town Planning Scheme that had subsequently come into force. Ambrose J concluded (at 390) that by reason of the additional residential dwellings upon the former dominant tenement there had been a change in the user of the land since the granting of the easements. His Honour concluded that the easement in issue ought to be deemed obsolete (at 392). 42 Gale on Easements (16th Ed) refers specifically to the enlargement of the dominant tenement and the effect on an existing easement at [9-26], page 332: In considering the quantity and purpose of the user of a right of way regard must be had to the principle that, as every easement is a restriction upon the rights of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant tenement the effect of which will be to increase such restriction beyond its legitimate limit. The mere alteration of the dominant tenement, even though it is physically enlarged, will not, however, have any effect on the existence of the right of way to it, if there is no evidence that there will by virtue of the alteration be excessive user by the dominant owner.

43 The authority relied upon for the first of these propositions is Harris v Flower (1904) 91 L.T. 816; 74 L.J. Ch 127. The authority relied upon for the second proposition is Graham v Philcox [1984] QB 747 applying Wright v Macadam [1949] 2 K.B. 744. The text continues at [9-27], page 332: In Graham v Philcox the existence of a right of way was not affected by the enlargement of the dominant tenement from a first-floor flat into a dwelling comprising the whole of the building. The Court of Appeal distinguished Harris v Flower & Sons where Romer L.J. 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." May LJ was of the opinion that that statement of the relevant principle of law must be considered on the facts of that particular case and observed that Romer L.J., having stated the proposition, went on to say: "The question is whether what the defendant does or claims the right to do comes within the proposition I have stated?" The answer in that case was in the affirmative.

44 After reviewing further relevant authorities the text continues at 334: Subject always to the principle discussed above, it appears now to be settled that, subject to any restriction to be gathered from the words of the grant or the surrounding circumstances, a right of way may be used, in the manner authorised by the grant, for any purpose and to any extent for the time being required for the enjoyment of the dominant tenement or any part of it, irrespective of the purpose for which the dominant tenement was used at the date of the grant. It would seem, also, that user of an authorised kind, e.g. with vehicles, may be had, at least if that particular kind of user is expressly authorised, to any increased extent which the physical state of the locus in quo will for the time being allow. It is still a question, however, whether the description, in the grant, of the terminus ad quem limits the dominant owner to user for the purposes of that terminus as it was at the time. 45 Harris v Flower is propounded as a rule or a doctrine. However May LJ's statement in Graham v Philcox, referred to above, that the statement of the relevant principle of law must be considered on the facts of the case leads to the requirement to analyse those facts. In Harris v Flower the defendant owned No 80 Royal Hill, Greenwich together with a right of way from Prior Street over the plaintiff's land. At the time of the grant the defendant already owned the adjoining land at No 72 Royal Hill that was at the rear of a public house which had its own access from Royal Hill. There was an original plan to construct assembly rooms on No 72 with access into the public house and No 80. The plan was not approved and although some construction occurred, there was no access from No 72 to No 80. Subsequently a plan was proposed for the construction of a factory and warehouse partly on No 72 and partly on No 80. The plaintiff sued claiming there had been a loss of the right of way by abandonment. At first instance Swinfen Eady J held ((1904) 90 L.T.R. 669) there had been no intention to abandon the right of way and that it not been abandoned. The plaintiff appealed. 46 On appeal, No 80 was referred to as "the pink land" and No 72 was referred to as "the white land". Vaughan Williams LJ said at 129: The question that is raised in this case is whether the defendant is entitled to use the right of way, which admittedly is a right of way appurtenant to the pink land, for the purpose of approaching the buildings erected partly upon the part of a white land which is not used for the purposes of the public-house and partly upon the pink land to which the right of way is appurtenant. 47 Vaughan Williams LJ was concerned that the use of the land as a factory would impose a far greater burden on the servient tenement and said at 132: I think if we look at the whole history of this case, including the cutting off of all access to the white land except by this right of way, it is impossible to say that the defendant is not using this right of way for the purpose of access to land to which the right of way is not appurtenant. … … a right of way of this sort restricts the owner of the dominant tenement to the legitimate user of his right; and the Court will not allow that which is in its nature a burthen on the owner of the servient tenement to be increased without his consent and beyond the terms of the grant … The burthen imposed on the servient tenement must not be increased by allowing the owner of the dominant tenement to make a use of the way in excess of the grant. There can be no doubt in the present case that, if this building is used as a factory, a heavy and frequent traffic will arise which has not arisen before. This particular burthen could not have arisen without the user of the white land as well as of the pink. 48 After citing the principle that the grantee cannot use the way in substance for passing over Close A to Close B, Romer LJ said at 133: Similarly, in the present case the defendant might have erected a building on the land coloured pink and used it for a contractor's business and made use of the right of way for that purpose: but what he is really doing here is, under guise of enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white, and using the land coloured pink as a mere continuation of passage from the pink to the white. That is not what is justified by the grant, and the plaintiff is entitled to say it is in excess of the grant … 49 Cozens-Hardy LJ agreed and added, at 133, that it was "impossible to use the right of way so as to enlarge the dominant tenement". 50 Mr Epstein SC relied upon an extract from AJ Bradbrook and MA Neave, Easements and Restrictive Covenants in Australia, 2nd Ed, Butterworths, 2000, at [6.45], page 178, referring to an exception to "the rule" in Harris v Flower where at the time of the grant, plot A forms a means of access to plot B. Authority for that proposition is cited as the following portion in Nickerson v Barraclough [1980] Ch 325 where Megarry V-C said at 336: Let me take as an example a case where plot A consists of a footpath some three feet wide and hundred yards long, running from land near a public highway up to plot B. If there is an express grant of a right of way to plot A over land which lies between plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means of access to plot A for the purposes for which plot A is used, namely, as a means of access to plot B. In the result, the way can be used as a means of access to plot B via plot A, notwithstanding Harris v Flower . If plot A is not used as an actual means of access to plot B but as between the parties the transaction it is intended to be used thus, I think that the same rule would apply. 51 Once again the facts of the case are important. The plaintiff in that case owned a field that was separated from a private road by a ditch or dyke. The private road gave access to a public highway. At the north-eastern border of the plaintiff's field was a gate leading onto a bridge over the ditch. The defendant had demolished the bridge and driven a post into the ground preventing the gate being opened. The conveyance under which the plaintiff acquired the title was expressed to include a right of way over the private road "so far as the vendor has power to convey". 52 The plaintiff commenced proceedings and sought a variety of remedies. Megarry V-C gave judgment in the plaintiff's favour limited to a right of way "as now and heretofore used". Other relief was not granted but liberty to restore the matter to argue it was granted. That liberty was exercised and Megarry V-C posed the question thus at 331: … under what is sometimes called the doctrine of Harris v Flower (1904) 74 L.J. Ch. 127, a right of way to plot A cannot be used as a means of access to plot B which lies beyond it. But where plot A itself is, or is intended to be, a means of access to plot B, does the doctrine apply, or will the grant of such a right by virtue of section 62 of the Law of Property Act 1925 confer a right of access over the way to plot B via plot A?

53 Section 62 provided relevantly that a conveyance was deemed to include all easements "appertaining or reputed to appertain to the land, or any part thereof". Although Megarry V-C used the term "a means of access" as opposed to "the means of access", it appears that the only access in that case was via the bridge. The answer to the question appears at page 336 in the passage cited at par [50] above. 54 In Peacock & Anor v Custins & Anor [2001] 2 All ER 827 the claimants owned a 15-acre parcel of land, referred to as "the red land", that had the benefit of a right of way over a roadway owned by the defendants. The claimants also owned a 10-acre parcel of land adjacent to the red land, referred to as "the blue land". The claimants farmed both the red and blue land and used the right of way for farming both parcels. On appeal the appellants sought a declaration that the claimants were not entitled to use the right of way for the purpose of accessing the blue land in order to cultivate it and contended that such was outside the scope of the grant and constituted a trespass. 55 The English Court of Appeal (Schiemann, Mance LJJ and Smith J) reviewed the law in relation to what was referred to as "the point of general significance" referring to Harris v Flower ; Skull v Glenister (1864) 16 CB (NS) 81, 143 ER 1055; Williams v James (1867) LR 2 CP 577; Jobson v Record [1998] 9 EG 148; Alvis v Harrison (1990) 62 P & LR 10; and Miller v Tipling (1918) 43 DLR 469. The general point of significance was stated at [1]: … where the owner of a dominant tenement possesses a right of way for all purposes over a servient tenement, may he make any and if so what use of the right of way to access and cultivate (in conjunction with the dominant tenement) other property of his which lies adjacent to the dominant tenement?

56 The term "for all purposes" referred to in the stated point of significance needs to be understood in the context of the specific grant of the right of way. That context was: TOGETHER WITH the benefit of the right of way at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed. 57 Schiemann LJ, delivering the judgment of the Court, said: [22] The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However, in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made.

… [25] … In our judgment the authorities to which we have referred, and in particular Harris' case, also confirm that, where a court is being asked to declare the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, 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 the 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. Although in Harris' case Vaughan-Williams LJ mentioned 'heavy and frequent traffic' arising from the factory which 'could not have arisen without the use of the white land as well as of the pink', the view we take of the reasoning in all three judgments in that case, … is that all three judges were addressing not a question of additional user, but the different question: whether the white land was being used for purposes which were not merely adjuncts to the honest use of the pink land (the dominant tenement); or, rephrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement. 58 The court concluded, at [27], that it was clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land and that it could not sensibly be described as ancillary to the cultivation of the red land. 59 In Shean Pty Ltd v The Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 & Anor [2001] WASCA 311 the Full Court (Wallwork, Steytler JJ and Burchett AUJ) distinguished both Harris v Flower and Peacock v Custins. In Shean the grant included the words: "for all purposes connected with the use and enjoyment of those lands". In that case, persons parked their cars on an adjoining Lot (Lot 20) and used the right of way to gain access to the dominant tenement (Lot 19), being an office block, and to return to the car park bays. In distinguishing these two cases Steytler J, with whom Wallwork J and Burchett AUJ agreed, said: [37] However, each of these cases (and there are other, similar, cases) is readily distinguished from this case. In this case, unlike each of those to which I have referred, the carriageway is being used for the purposes of the dominant tenement only. Those who park on the car park do not do so for any purpose associated with Lot 20. As I have said, they park there solely for the purpose of visiting the office building on Lot 19. [46] … the use to which the carriageway is being put is one which is connected with the use and enjoyment of Lot 19 and therefore within the plain meaning of the terms of the deed of easement. 60 There is no issue that the terms of s 181A and Part 1 of Schedule 8 of the Act apply to these rights of way. In those circumstances the relevant grant is in the following terms: AND RESERVING UNTO the Transferor 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 authorized 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 (a right of carriage way) 16 feet 6 inches wide over the site of same in said Lot B in favour of Lots A and C as shewn on the said Miscellaneous Plan of subdivision AND RESERVING ALSO UNTO the Transferor 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 authorized 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 (a right of carriage way) 10 feet wide over the site of same in said Lot B in favour of Lot A as shewn on the said Miscellaneous Plan of Subdivision. 61 In Harris v Flower, the right of way, extracted in full in the report of the judgment at first instance at page 669, was more restrictive. Importantly it did not include the words "for all purposes" as imported into the rights of way in the present case. In those circumstances, Harris v Flower and that portion of McHugh J's judgment in Gallagher v Rainbow relying upon Romer LJ's statement of the principle or rule in Harris v Flower, need to be considered in the light of this important difference. The grant in Gallagher v Rainbow included the words "for all purposes" but those words were qualified by the words that followed, being "ordinarily incidental to or connected with domestic use and enjoyment of the dominant tenement". 62 The grant in Bracewell v Appleby included the words "a right of way of the fullest description". Graham J concluded, at 417, that it was not essential in that case, even if it were possible, to define their scope with precision. The term "for all purposes" in both Peacock v Custins and Shean is limited to "in connection with the use and enjoyment of the property hereby conveyed" and "connected with the use and enjoyment of those lands" respectively. 63 The grant in this case includes the words "for all purposes" and does not include the limiting words used in the cases to which reference has been made. Part 1 of Schedule 8 was introduced into the Act in 1930 and has remained in the same form since that time. In Finlayson v Campbell (1997) 8 BPR 15,703, Young J, (as his Honour then was), referred to the terms of Part 1 Schedule 8 being read into and thus conferring a right "to go, pass and repass at all times and for all purposes with or without animals or vehicles". His Honour found that a grantee is not confined to using a right of way for the purpose prevailing at the date of the grant and may use the right of way for any reasonable different purpose. Finlayson v Campbell was cited with apparent approval by the Full Court of the Supreme Court of Western Australia (Kennedy, Pidgeon and Wheeler JJ) in Timpar Nominees Pty Ltd v Archer [2001] WASCA 430. Part 2 of Schedule 8 "Right of footway" has been considered but without specific reference to the term "for all purposes": Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209. 64 Mr Epstein SC referred to the breadth of the provision, "for all purposes", but submitted that it is not necessary to decide whether its meaning is limited by the common law because the purpose of the grant in this case, as evidenced from the other terms of the Transfer, the Plan and the surrounding circumstances, was to enable access through Lot A to Lot 2 or was to enable access to Lot A as consolidated. 65 It seems to me that from a review of all of the cases referred to above, the irresistible, and perhaps trite, conclusion to be reached is that much will depend upon the facts of each case and in particular the terms of the grant, the surrounding circumstances at the time of the grant and the intention of the parties without allowing any artificial presumptions to trespass into the process. These matters need to be considered with the factors referred to in Pieper v Edwards in deciding whether to exercise the discretion pursuant to s 89 of the Act. 66 Each of the parties to this litigation is an Owners Corporation and Owner of the relevant Strata Plan. Such a corporation holds the common property as agent for the proprietors and in this case holds it for them as tenants in common in shares proportional to the unit entitlements of their respective lots. The beneficial interest of a proprietor of a lot in the estate or interest in the common property held by the corporation is to be dealt with in conjunction with the proprietor's lot and is not capable of severance from that lot: Strata Schemes (Freehold Development) Act 1973 (NSW), s 20(b) and s 24(2). The defendant holds the common property, which includes the former Lot A area, as agent for the proprietors including the proprietors of No 15 Drummoyne Avenue whose property is on the former Lot 2 area.

67 At the time the Plan was approved on 23 February 1956, Mr Ritter was the proprietor of Lot A and Lot B and Mr and Mrs Miles were the proprietors of Lot 2, having purchased it in 1950. Two relevant intentions were noted on the Plan. The first was that it was intended to create the two rights of way in favour, relevantly, of Lot A. The second was that it was intended to consolidate Lot A with Lot 2 "with Transfer No. A676334 adjoining". The first intention was fulfilled by the Transfer on 20 September 1956 when Mr Ritter sold Lot B to Mr and Mrs Pigram, and reserved to himself the two rights of way in favour of Lot A. The second intention was not fulfilled until April 1997 when Lot A and Lot 2 were consolidated with each other and with the additional surrounding land purchased by Standing Enterprises. 68 The term "with Transfer No. A676334 adjoining" has not been the subject of evidence other than some references to it in the documents. The Surveyor's certificate on the Plan states that the Plan was compiled from the information on Transfer A676334 and was accurate. The Certificate of Title of Lot 2 dated 10 May 1922 evidencing the ownership of Lot 2 at that time by Mr and Mrs Bull refers to "Lot 2 as shown in Registered Plan No. 1434 (Real Property) annexed to Transfer No A676334" (Ex 1, p 8). There is also in evidence a Plan for subdivision approved in September 1920 upon which the number A676334 is stamped and written (Ex 1, p 7). That Plan is of Lot 7 showing the then proposed subdivision. It appears that Lot 7 originally included Lot 2 which was subsequently subdivided from Lot 7. The former Lot 7 also included the subsequently subdivided Lots A, B and C. 69 Mr and Mrs Miles purchased Lot A in December 1958 by Transfer, No H223810, which was not registered on the title, Vol 7658 Fol 221, until 4 May 1961. That Certificate of Title refers to the two rights of way as "Right of Carriage Way appurtenant to the land above described affecting the piece of land 10 feet wide and 16 feet 6 inches wide and coloured brown in plan hereon created by Transfer No. G579287" (Ex. 1 p 10). 70 The plaintiff's chronology states that the consolidation of Lot A and Lot 2 occurred on 20 December 1958 when Lot A was transferred to Mr and Mrs Miles, who already owned Lot 2. The position in 1958 under s 110 of the Real Property Act 1900 (NSW) as amended, was that a registered proprietor of two or more certificates had a right to apply to the Registrar General to issue a single consolidated certificate. Baalman, The Torrens System in New South Wales 2nd Ed, Lawbook Co Ltd, RA Woodman and PJ Grimes, deals with the repeal of the section in 1970 at p 377: Largely the 1970s repeal reflects changes in Departmental practice. Firstly, for at least a decade it has been the practice upon registering a plan of subdivision of Torrens title land to automatically issue a new certificate of title for each lot shown in the plan. The Registrar-General requires no prompting to replace a certificate containing a number of lots by a number of certificates each comprising one individual lot; indeed s. 33 (1) specifically authorises him to do so, irrespective of the wishes of the registered proprietor. By adopting this practice the Registrar-General is approaching the ideal of stabilising references to title, so that any searcher knowing a lot number is able to proceed directly from the plan illustrating that lot to the current certificate of title without needing, as in the past, to track through perhaps dozens of successively superseded titles intervening between the original subdivision and the latest transaction. It follows that today a new certificate of title issued for the same land as that comprised in a cancelled certificate retains the volume and folio number of its predecessor. For precisely the same reasons the Registrar-General discourages the disruption of stable title references which could follow consolidation of land in two or more existing titles into a single certificate of title. But the rule is not inflexible; if the applicant can advance a rational reason for requiring consolidation, and is prepared to meet the administrative costs involved, the Registrar-General will accommodate him. It might be mentioned that by the Local Government (Amendment) Act, 1970 the Legislature elected to authorise any local council to require registration of a plan consolidating existing lots as a condition precedent to approving an application for the erection of the building: see ss. 314B and 327AA of the Local Government Act, 1919 . Naturally the Registrar-General has adapted his practice to implement these statutory requirements. 71 Although Baalman refers to the existing right to make a "demand", the section (s 110(1)) provided that on "application" by the registered proprietor, the Registrar-General "may" issue a new Certificate of Title. It does not matter whether the right was to make a "demand" or to make "application" in the circumstances of this case. It is apparent that Mr and Mrs Miles did not make either a demand or an application to the Registrar-General and it was not until Standing Enterprises' Consolidation Plan was approved in April 1997 that Lot 2 was consolidated with not only Lot A, but also with the other land that had been purchased by Standing Enterprises. 72 Mr Alexis submitted that the rights of way were to be only a temporary measure until the consolidation of Lot 2 and Lot A. It was submitted that when consolidation was achieved, Lot A would no longer be landlocked and there would be no utility or purpose in the rights of way. The success of this submission depends upon a finding that the intention of creation or the purpose of the rights of way was to ensure that Lot A was not landlocked. I am unable to come to that conclusion. 73 Lot A was a very small parcel of land that was owned by Mr Ritter at the time the Plan was approved. As owners of Lot 2, Mr and Mrs Miles already had access to Drummoyne Avenue and, if as the Notes to the Plan stated, there was an intention to consolidate Lot 2 and Lot A, there would be no need to create rights of way to ensure that Lot A was not landlocked because access from Drummoyne Avenue was available. The rights of way were created seven months after the Plan was approved and at that time the intention to "consolidate" Lot A with Lot 2 had yet to be fulfilled. When Mr Ritter created the rights of way both the plaintiff's predecessor in title to Lot B and Mr Ritter were well aware of the intention for consolidation or could reasonably be taken to have been aware of that intention by reason of the existence of the Plan and the reference to it in the Transfer. 74 I do not read the Notes to the Plan as suggesting that the rights of way would only be a temporary measure. The context of the reference in the Notes to the intention to consolidate Lot A and Lot 2 is against such a construction. The first Note deals with the intention to create the second right of way and the intention to consolidate Lot A and Lot 2 is noted immediately thereafter. The third Note is a statement by the Surveyor that to the best of his knowledge there were no improvements "on or adjacent to the new subdivisional boundary". The context of that statement leads me to the view that it was a reference to the proposed consolidation of Lot A with Lot 2 with an indication that there was no impediment to the use of the rights of way by such a consolidated Lot. The Notes then refer to the intention to create the first right of way and the additional right of way, not the subject of these proceedings. 75 The physical dimensions of Lot A militate against an intention to grant the rights of way for its benefit alone so that it would not be landlocked. There is no evident purpose in granting a right of way to such a small plot of land. Although the Transfer refers to the rights of way being in favour of Lot A, the reference in the Plan to the intention to consolidate Lot A and Lot 2, the reference in the Transfer to the Plan and the conduct of the predecessors in title and the present owners lead me to the conclusion that it was intended that when Lot A and Lot 2 were consolidated, that consolidated area would have the benefit of the rights of way. 76 In my view, this is not a case in which the "rule" in Harris v Flower is applicable. I am satisfied that it was the intention of the parties at the time of the grant that Lot 2 would be consolidated with Lot A and have the benefit of the rights of way. I am also of the view that in these circumstances it would be artificial to presume that the parties intended that, after Mr and Mrs Miles purchased Lot A but before any formal consolidation occurred, they were able to enter Lot A from the rights of way but were not able to walk from their backyard into their house because the boundary of Lot 2 with Lot A ran across it. 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.

77 If that is wrong and Mr and Mrs Miles conducted themselves in a manner in excess of the grant, it does not seem to me to have a significant impact in this case because nothing was done to prevent the use of the rights of way in this fashion in the thirty-nine years between the date of purchase of Lot A by Mr and Mrs Miles and the date of consolidation in April 1997. It was not until three years after consolidation that the plaintiff filed its Summons. 78 The defendant's position changed during the course of the trial. The defendant's witnesses from parts of the consolidated land other than the former Lot 2 area all gave evidence of the value of the rights of way to them. This was consistent with the mounting of a case that those persons were entitled to the benefits of the rights of way. However in final submissions Mr Epstein SC abandoned any suggestion of an entitlement of those persons to the benefit of the rights of way as of right. The defendant's case was ultimately limited to a claimed entitlement of the proprietors of 15 Drummoyne Avenue, the former Lot 2 area, and those persons authorised by those proprietors, by reason of Part 1 of Schedule 8 of the Act, to use the rights of way by accessing the common property, the former Lot A, from the former Lot 2 area and also travelling in the opposite direction. This approach is consistent with that adopted by Ambrose J in Re Eddowes and Professor Butt's tentative view. I have found that the original grant was intended to benefit the consolidated Lot 2 and Lot A and, in notionally subdividing the amalgamated or consolidated land, it seems to me that it is not impossible for the benefit of the rights of way to be enjoyed by the former Lot 2 and Lot A areas. 79 It may be that the extended meaning imported into the rights of way by s 181A and Part 1 of Schedule 8 of the Act would be a matter to be relied upon by those proprietors entitled to share in the common property now in the former Lot A area, to justify their entry into Lot A from their respective Lots and then into the rights of way. This is not a case that has been propounded by the defendant, and, as I have said, those persons are not parties to this litigation. For the purposes of this case I have assumed that the entries into the former Lot A area in this fashion are impermissible however I am not persuaded that I should deem the rights of way obsolete: Graham v Philcox per May LJ at 756E. 80 The fact that the southern end of the swimming pool is on part of the former Lot A does not, in my view, amount to a material change in user that prevents the rights of way from being enjoyed. The proprietors of 15 Drummoyne Avenue have continued to use the rights of way regularly since 1997 by accessing them by the paths around the pool. There is no evidence from which I could be satisfied that there has been an increase in the burden on the servient tenement. In fact, it is more probable on the evidence before me that the burden has eased. Although vehicular access occurred in the past, it does not seem to occur presently. That is not to say that such use would be impermissible, because Part 1 of Schedule 8 authorises the use of vehicles.

81 The defendant submitted that the Court would not exercise its discretion in the plaintiff's favour by reason of the plaintiff having stood by for years whilst valuable property rights were acquired by third parties. The defendant submitted that the appropriate course for the plaintiff to have adopted was to make this challenge before these acquisitions occurred and at least, at a time when application was made to the local government authorities for the development of the consolidated site. In response to this submission the plaintiff relied upon correspondence written by its solicitors in 1997 and 1998. 82 On 22 December 1997, the plaintiff's solicitors advised the defendant that they had been "approached in connection with the extinguishment of a right of way". The solicitors claimed that the original Lot A was almost fully occupied by a swimming pool and that the property that had the right of way could not use it. Agreement to extinguishment was sought and notice was given that, failing agreement, proceedings under s 89 of the Act would be commenced. A further letter was written on 11 June 1998 seeking the defendant's final response. On 17 August 1998, the plaintiff's solicitor gave the defendant 21 days to agree to extinguishment and advised that they were instructed to commence proceedings if agreement was not forthcoming. 83 On 23 September 1998, the defendant's solicitors wrote to the plaintiff's solicitors advising that the rights of way were used quite regularly. The defendant's solicitors also advised that they were instructed to oppose any proceedings that might be commenced. There is no further evidence as to what happened between 23 September 1998 and 14 June 2000 when the Summons was filed. 84 The plaintiff sought an injunction to restrain the use of the rights of way by reason of what it claims to be a trespass. In Finlayson v Campbell Young J analysed the basis of the law of easements and concluded that trespass does not lie and that an appropriate remedy is an action for nuisance. In any event, the plaintiff has not called any evidence to persuade me that I should grant an injunction five years after this land was consolidated and twenty eight years after the plaintiff's Strata Plan was registered. No steps have been taken over that lengthy period to prevent the use of the rights of way and no real explanation has been given for the delay in making this application now. 85 The rights of way have remained on the Register since they were created forty six years ago. The conduct of the parties' predecessors in title and that of the parties is consistent only with an intention that the rights of way were to allow access to the consolidated Lot A. I am not satisfied that the rights of way ought to be deemed obsolete. These are valuable property rights providing a second street access to the consolidated former Lot A. I am of the view that it could not be said that the extinguishment of the rights of way would not substantially injure the persons who benefit from them. 86 I dismiss the plaintiff's Amended Summons. Should the parties be unable to agree on a costs order, I will hear argument on a date to be fixed. Should that be necessary, the parties are to contact my Associate on or before 17 September 2002 to obtain a date for the hearing of that argument.

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