Petrie v Dickson [2024] NSWSC 972 | Case summary

Validity

It is conventional to deal with the validity of a claimed easement by asking whether it satisfies the four conditions discussed by the English Court of Appeal in Re Ellenborough Park. Those conditions were formulated by Dr Cheshire (GC Cheshire, The Modern Law of Real Property (7th ed, 1954, Butterworths) at 460-462) and adopted by the Court. They are: (1) there must be a dominant and a servient tenement; (2) an easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit; (3) the dominant and servient owners must be different persons; and (4) the right claimed must be capable of forming the subject-matter of a grant
There was no dispute in the present case that the first, second and third conditions were satisfied. It was, however, contended by counsel for the Petries that the fourth condition was not.
For the purposes of the argument before me, counsel for the parties referred extensively to the case law. This will require me to go over what Bryson J described in the Clos Farming case (below at [178]-[191]) at [27], as a "much trodden path".
Among the cases, I think that three strands of authority can be discerned. One consists of cases involving grants of rights over spaces such as passages, gateways, cellars, and rooms in buildings in densely populated urban areas. In these cases, the question is typically one of interpretation, namely whether the grant amounts to a conveyance of the space, or merely an easement. Whether the particular grant may take effect as an easement because the easement is one recognised by law only arises incidentally. It is convenient to deal with this strand of authority first.
In the other two strands of authority the question of validity arises directly (although Wright v Macadam, discussed at [130]-[133] below, is an exception). One line of cases considers the question in the context of storage of goods and carparking (which, as Handley JA said in Wilcox v Richardson (1997) 43 NSWLR 4 at 15, is only a particular form of storage). The other line of cases involves rights of recreation. Because these strands of authority are intertwined, I will deal with them together. I will also include Harada (below at [151]-[154]) and the Clos Farming case, which concerned other (but comparable) types of easement, in my discussion.
Cases on passageways and parts of buildings: I begin with the decision of the English Court of Appeal in Reilly v Booth (1890) 44 Ch D 12. The case concerned an area behind a row of houses in Oxford Street, London, originally containing some stables, which was accessible from the street through a gateway. The conveyance to the owners included the area itself "together with exclusive use" of the gateway. Later, the property was leased to the defendant, one of the founders of the Salvation Army, who converted it into a Salvation Army meeting hall. The gateway area was used to display advertisements and promotional literature for the Salvation Army. The plaintiff, who was the tenant of one of the houses fronting Oxford Street, objected, claiming that the gateway could only be used as a right of way.
The claim was overruled. Lopes LJ said (at 26): The exclusive use of [the gateway] was given. The exclusive or unrestricted use of a piece of land, I take it, beyond all question passes the property or ownership in that land, and there is no easement known to law which gives exclusive and unrestricted use of a piece of land.
Next is the decision of the High Court in Bursill Enterprises Pty Ltd v Berger Bros Co Pty Ltd (1971) 124 CLR 73. The plaintiff and the defendant were the owners of adjoining parcels of land in Sydney's central business district. The plaintiff's land had the benefit of a right of way (up to a height of 12 feet) over a strip of road on the defendant's land running along the defendant's side of the border between the two parcels. A building was built, the second storey of which projected across the right of way at a height 12 feet above the road. In 1872, the owner of the defendant's land granted and transferred to the owner of the plaintiff's land an extension of the right of way, together with "the buildings at present erected" above the road, with the right to demolish and rebuild such buildings at a height of no less than 12 feet above the ground, and a right of support for such buildings. The transfer was recorded on the title to the two properties as a "right of way". The defendant claimed ownership of the buildings as the owner of the airspace above the road.
The defendant's claim was rejected. The transfer was interpreted as a transfer to the stratum of airspace 12 feet above the road. Windeyer J, with whom Barwick CJ agreed in this respect, stated, at 91: "… when [the defendant's predecessor in title], as registered proprietor for an estate in fee simple, granted and transferred the buildings that were then erected to [the plaintiff's predecessor in title], he conveyed a part of his land, something very different from an easement. The transfer of a building without any reservation of a right by the transferor amounts, I consider, to a conveyance of the exclusive ownership of the building. That is inconsistent with the concept of easement."
The final case in this line of authority to which I will refer is Tileska v Bevelon (1989) 4 BPR 9601, a decision of Waddell CJ in Eq. The case likewise concerned two adjoining blocks in Sydney's central business district. The boundary between the blocks ran down the centre of a laneway. An indenture of partition dating from 1859 gave the then owner of the plaintiff's land a right of way over the lane as well as "the right to build over that part of the [lane] to a depth of fifteen feet therefrom leaving twelve feet six inches clear height from the level of the kerbstone". The plaintiff, as successor in title, claimed to be entitled to a right in fee simple to build in the subject airspace. The defendant resisted the claim, on the ground that the right had been personal to the 1859 owner, or was subject to other conditions which had not been fulfilled, and had not passed to the plaintiff. Alternatively, the grant in the indenture gave rise to an easement rather than a transfer.
The plaintiff's fee simple claim succeeded. Waddell CJ reviewed various authorities, including Reilly v Booth and Bursill, and stated (at 9606): In the light of these decisions it seems to me that, under the general law, it should be concluded that a grant in fee simple may be made of airspace, the dimensions of which are defined by length and breadth and height above the ground. There may be room for argument that where such a grant is made the grantee acquires a title in fee only to such part of the airspace as is occupied by a building. Such a conclusion would, however, create a very complicated situation and, in the absence of argument, the possibility is one which should not receive consideration in these reasons.
As a matter of interpretation of the indenture, his Honour rejected the arguments that the right to build had been personal to the 1859 owner of the land, or had been subject to a condition which had not been fulfilled. As to the argument that the indenture only gave rise to an easement, he stated: It seems to me that the right to build over the lane cannot be regarded as an easement because it gives exclusive occupation of any building erected pursuant to it to the owner of the land now owned by the plaintiff. It is artificial and wrong to say, as the defendants submit, that until such a building is erected the defendants have the right to use the airspace, including the right to erect a building in so much of it as is above its one-half of the reserved lane. For the foregoing reasons, it is my opinion that the right to build over the lane, given by the deed of partition, is a right in fee simple and not any lesser right.
Cases on storage, parking and recreation: The first case to which I will refer is the decision of the House of Lords in Dyce v Hay (1852) 1 Macq 305. It concerned an easement for recreation allegedly arising by prescription. Lady Hay owned a property in New Aberdeen which had a boundary on the River Don. Running alongside the river, across Lady Hay's land and near to the mansion house in which she lived, was a footpath. The land the subject of the proceedings was a half a mile strip between the footpath and the river of varying depth (between a "couple of yards" at its narrow points and twenty yards at its deeper points). Mr Dyce claimed that this land had been "from time immemorial used and resorted to [by the general public] for the purpose of recreation and taking air and exercise by walking over and through the same, and resting thereon as they saw proper".
The claim was rejected. Lord St Leonards LC said (at 309): What is insisted upon, therefore is of this extensive nature, that [Mr Dyce] claims as an inhabitant, but, in fact, on behalf of all the Queen's subjects, the right to go at all times upon the inclosed soil of a portion of [Lady Hay's] property near the mansion house, for the purposes of recreation just as they think proper. Now, that I conceive is a claim so large as to be entirely inconsistent with the right of property; for no man can be considered to have a right of property worth holding, in a soil over which the whole world has the privilege to walk and disport itself at pleasure…I cannot myself imagine the use to which this property could be turned, if that great power claimed on the public behalf was to be held valid…
His Lordship acknowledged (at 312-313) that "the character of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind". But this did not help the plaintiff, because there was nothing novel about using a meadow for recreation, strolling and resting.
The first storage case to which I will refer is a 1915 decision of the Privy Council, Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599. The case concerned reclaimed land along the shoreline of a district of Lagos, Nigeria. The land had been occupied by merchants who had built jetties and a wharf on it. The question was what compensation was to be paid for roadworks which had been carried out on the land. For that purpose, it was necessary to determine what rights the merchants had over it. The merchants obtained a declaration that one plot of land was the subject of an easement by prescription "for the purpose of storing thereon coopers' stores, casks, trade goods and produce". The Crown appealed.
One argument advanced for the Crown was that the right in question was not one which was known to law. This argument was rejected, although the appeal was allowed on other grounds. Lord Shaw of Dunfermline said, at p 617: Their Lordships see no reason why … a right of easement should be exclusive of the storage claim. The law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such.
Wright v Macadam [1949] 2 KB 744, a decision of the English Court of Appeal, concerned the storage of coal on a suburban property on which there was a building which had been subdivided into rooms and flats. In 1940, the owner leased to Mrs Wright a two room flat on the top floor. In 1941, he gave permission to Mrs Wright to use a shed in the garden for storage of coal for her flat. In 1943, he granted Mrs Wright a fresh tenancy, in a written document, of the flat and an additional room. This tenancy agreement did not mention the coal shed, but Mrs Wright continued to use it (rent free) until 1947 when a dispute arose about her entitlement to do so.
The outcome of the case in the Court of Appeal turned on a provision of the Law of Property Act 1925 (UK) which had been overlooked at first instance. Section 62 provided that a "conveyance" (which included a lease) of land (which included the flat) carried with it all "liberties, privileges, easements, rights or advantages appertaining to" that land. The Court held that the section did not require such an interest or right to have been formally granted for it to pass with a conveyance of the land; all that was necessary was that the right had in fact been "occupied or enjoyed" with the land. On the facts, this requirement was established.
Jenkins LJ, who gave the leading judgment, said that s 62 was confined to interests known to the law. But this requirement was satisfied. His Lordship said: … the right was, as I understand it, a right to use the coal shed in question for the purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law will clearly recognize, and it is a right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words …
Mrs Wright's claim therefore succeeded. But as the coal shed had been demolished no injunction was granted and £10 was awarded by way of damages.
The first case where parking was specifically considered is a 1953 decision of Upjohn J in the Chancery Division, Copeland v Greenhalf [1952] Ch 488. Mrs Copeland was the owner of an orchard, together with a strip of land leading from the road to the orchard which provided access to it via a "gangway", which presumably was some form of unpaved track. The strip of land varied in width and in some places was substantially wider (up to 35 feet) than the width of the gangway (10 feet). Mr Greenhalf was a wheelwright who carried on a vehicle repair business from land adjoining the strip of land in question. For a combined period of at least 50 years, he, and his father before him, had adopted the practice of leaving vehicles awaiting repair on the side of the strip (but so as to leave a space at least 10 feet wide for access to the orchard). He claimed an easement by prescription over the strip to allow the practice to continue.
One of the points taken on behalf of Mrs Copeland was that the right claimed was wide and uncertain, in that vehicles could be left, for years if necessary, in a "vague an undefined part of the strip" leaving an "ill-defined gangway" for access. His Lordship upheld this argument. He said: I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription.
Next, I come to Re Ellenborough Park. I have already set out the facts and the Court of Appeal's conclusions on the interpretation of the grant in question.
In dealing with the fourth condition of validity, namely, that the right must be capable of forming the subject matter of a grant, the Court identified three more specific questions upon which satisfaction of the condition depended (referred to by Bryson J in the Clos Farming case as the "three cognate questions"). The first was whether the right conferred was "too wide and vague". The second was whether it was "inconsistent with the proprietorship or position of the alleged servient owners". The third was whether it was a "mere right of recreation without utility or benefit".
On the first question, counsel for the beneficiary submitted that the right was a "mere ius spatiandi" which was not recognised in English law. As already noted, the Court concluded that this was not so. An ius spatiandi, although "easily intelligible as the subject matter of a personal licence", was an "indefinite and unregulated privilege". The subject matter of the grant in question was something different, namely "the provision for a limited number of houses in a uniform crescent of one single large but private garden".
For similar reasons, the second question was also resolved in the lot owners' favour. The Court stated that the rights conferred no more amounted to joint occupation and no more excluded the proprietorship or possession of the vendors than a right of way. The Court emphasised that the vendors were entitled to cut the timber growing on the park and retain its proceeds, and likewise that the flowers and shrubs grown in the garden were equally the owner's property. The Court stated: We see nothing repugnant to a man's proprietorship or possession of a piece of land that he should decide to make it and maintain it as an ornamental garden, and should grant rights to a limited number of other persons to come into it for the enjoyment of its amenities.
Counsel for the beneficiary relied on the decision in Copeland v Greenhalf but the Court distinguished that decision (which the Court expressly approved on its facts) on the ground that it involved a claimant "occupying and seeking the right to occupy an unspecified part of the land for the purposes of his business, and carrying on such business upon the land so occupied". As to whether the right was one of "mere recreation or amusement", the Court stated: No doubt a garden is a pleasure - on high authority, it is the purest of pleasures - but, in our judgment, it is not a right having no quality either of utility or benefit as those words should be understood.
Miller v Emcer Products Ltd [1956] Ch 304 is another decision of the English Court of Appeal. It was in fact heard and decided in December 1955, only one month after the decision in Re Ellenborough Park, and by the same panel of Judges who had decided that case.
Miller v Emcer concerned a sub-lease in a building whereby the lessor granted to the lessee the right to use two lavatories on another floor of the building. The sub-lease was of premises in a commercial building. The rooms were on the ground floor of the building. Emcer held the rooms as under lessee of another company known as Englefield, which was referred to in the sub underlease as the "superior landlord". Englefield was not itself the owner of the building but appears to have been a tenant. Both the underlease from Englefield to Emcer and the sub underlease from Emcer to Mr Miller contained, as a pertinent to the tenancy of the rooms of the ground floor, the right to use the lavatory on the second floor "in common with [Emcer] and [Englefield] and all persons authorised by them and the other tenants of [Groveland House]". But the second floor was actually occupied by a firm of chartered accountants known as "Smiths" pursuant to a lease which pre-dated Englefield's lease. Smiths refused to permit Mr Miller and his staff to use the second-floor lavatory.
The proceedings were brought by Mr Miller against Emcer for damages. The plaintiff could not sue on the covenant for quiet enjoyment because that covenant was in qualified form and limited to Emcer's liability to interruption by Emcer or Englefield or persons claiming under them, and therefore did not cover Smiths. The plaintiff's case was that the underlease from Emcer contained an implied covenant that Emcer had title to grant a right to use the second-floor lavatory.
The case therefore turned on principles of contractual interpretation concerning title and not as such on enforcement of the right to use the lavatories. But Romer LJ, who gave the leading judgment, considered it necessary to decide whether the right was a licence or an easement. He stated: In my judgment the right had all the requisite characteristics of an easement. There is no doubt as to what were intended to be the dominant and servient tenements respectively, and the right was appurtenant to the former and calculated to enhance its beneficial use and enjoyment. It is true that during the times when the dominant owner exercised the right, the owner of the servient tenement would be excluded, but this in greater or less degree is a common feature of many easements (for example, rights of way) and does not amount to such an ouster of the servient owner's rights as was held by Upjohn J. to be incompatible with a legal easement in Copeland v Greenhalf.
I will now summarise five first instance Australian decisions to which reference has been made in the later case law and in the argument before me.
Riley v Penttila [1974] VR 547 was a decision of Gillard J in the Victorian Supreme Court. This case concerned a subdivision which consisted of a number of housing lots backing onto and surrounding a common area described as a "park reserve". The vendor retained the reserve and granted to the purchasers of the lots the right "to enjoy the reserve for the purpose of recreation or a garden or a park". The right was granted in common with other lot owners (although different grants specified different groups of lot owners in this regard) and was to be subject to rules and regulations made by the vendor, or, following the sale of all of the lots, a majority of the lot owners to whom the right had been granted.
The last allotment was sold in 1928. Over the next forty years, the vendor remained the registered proprietor of the reserve but appears to have taken no action to maintain it. Instead, this was left to the lot owners, some of whom kept parts of it clear from rubbish. No rules and regulations were made by the vendor, or by the lot-owners following the sale of the last lot (and thus the difficulty created by the reference to different groups of lot owners in different grants did not have to be faced).
The focus of the dispute was part of the reserve which had been fenced by the owner of one of the adjoining lots (lot 36) and used as a tennis court. The tennis court fell into disuse and the disputed area was later used as an extension of lot 36's garden, which involved the installation of trees, shrubs, stonework and a watering system. The defendants bought lot 36 in 1967 and in 1971 they began excavations in the disputed area in order to build a swimming pool. The plaintiffs, who were other lot owners, objected and sought to enforce the grants as easements over the disputed area. In response, the defendants contended, among other things, that the grants did not create valid easements in favour of the other lots.
His Honour found that the grants satisfied the four conditions of validity. His Honour rejected an argument that the rights conferred were indeterminate, applying the decision in Re Ellenborough Park (at 559-60): Having regard to the decision of the Court of Appeal on the right there granted, it seems to me that the right set out in the instrument of transfer to each of the transferees … was sufficient to found an easement. It was more than a mere personal advantage to the transferee of the lot. It was capable of being the subject of a grant at law. … For gracious living it has been found for a very long time, as the English authorities well illustrate, necessary to have space in areas around a house for the purposes of a garden and recreation, and even of a park. Undoubtedly, it adds to the enjoyment of the occupation of such house property. Although each block here, according to modern standards, would be regarded as a large allotment, nevertheless it would undoubtedly add to the enjoyment and occupation of each block to have the added liberty of using the contiguous large private area, closed to the public, for the purpose of recreation, garden, or a park.
Gillard J found that when the tennis court was built it had not been intended to exclude the other lot owners from the disputed area and, in fact, the then owner of lot 36 had promised at least one other lot owner that he could use the court if he wished. Furthermore, there had been plenty of remaining room in the reserve for the other lot-owners to exercise their rights. In these circumstances, his Honour interpreted the construction of the fence and the tennis court as no more than the exercise of the owner of lot 36's rights under the grant. His Honour saw the subsequent gardening works on the disputed area in the same way. Therefore, the defendants' adverse possession claim failed. The plaintiffs had not abandoned their rights over the disputed area, which remained enforceable in accordance with the original grants.
Harada v Registrar of Titles [1981] VR 743 was another decision of the Victorian Supreme Court, in this instance, by King J. It concerned industrial land at Thomastown in outer northern Melbourne. An electricity transmission line operated by the State Electricity Commission ("SEC") passed over the land, although none of the pylons were actually on the land.
In 1961, the SEC gave notice, pursuant to its statutory powers, that it intended to acquire compulsorily an "easement" over the land. This "notice to treat" gave a general description of the intended "easement", which included the right to enter upon and clear part of the land (not specified in the report), and to erect such apparatus and appliances required for transmitting electricity on that land. The "easement" would expressly prevent the owner from building on the area or interfering with the easement or growing trees or erecting buildings or structures. Although the notice was served on the Registrar of Titles, the Registrar did not record the proposed "easement" on the title to the land. The plaintiff bought the land in 1971. She sued the Registrar for compensation on the footing that she should have been notified of the "easement" and that she had sustained loss in purchasing the land as a result.
Any duty on the Registrar's part to record the "easement" depended upon whether it was a valid easement in law. King J held that it was not. In the first place, it could not be (and did not purport to be), because it did not relevantly accommodate any dominant tenement. There was no adjoining or nearby land of the SEC to benefit from it. Accordingly, the second condition of validity was not satisfied.
His Honour, however, also considered the application of the fourth condition, and decided that that condition was not satisfied either. His Honour stated: … [counsel for the plaintiff] concedes that the requirement that the owner will not build on the easement area, and will not interfere with the use of the easement or grow trees or erect any structure thereon, cannot be incidents of an easement properly so called, but he argues that they in fact go no further than giving effect to the other genuine easement rights referred to in the notice to treat. This may well be true of the obligations not to interfere with the use of the easement by the SEC and not to grow trees, but the restriction on the owner not to build on the easement area and not to erect any structure thereon goes much further than a prohibition of interference with the enjoyment by the SEC of its rights. I think that if the rights the subject of the notice to treat were acquired the plaintiff would be left with very few rights over her property and could do little more with it than move over it and park cars on it. I think that the rights sought go far beyond those appropriate to an easement, and that for this reason also the rights sought to be acquired by the SEC do not fall within the category of a common law easement. They would really amount to rights to joint user by the SEC of the plaintiff's land: Copeland v Greenhalf, at p 498.
Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 was a decision of Brownie J in this Court. It arose out of a dispute between owners of adjoining residential lots which extended over an area which included a cliff which was two storeys high. On the top of the cliff were Lot 1 and an area of terrace garden which formed part of Lot 2. The rest of Lot 2 was at the foot of the cliff. The garden terrace was not accessible from the lower part of Lot 2 and was the subject of a 1963 grant of a "right of footway" in favour of Lot 1. The grant contained a "proviso" by which the servient owner covenanted not to "traverse or otherwise use" the terrace except on one day a year. The owner of Lot 2 challenged the validity of the grant as an easement.
Brownie J noted that the terminology of a "right of footway" (which, it was common ground, picked up the standard wording in CA Sch 8) was inapt because the dominant owner was not using the terrace as a means of travelling from Lot 1 to somewhere else, but rather to enjoy it as a garden. His Honour indicated that he would have wished to have more time to reflect on the problem but felt that he had to decide the case immediately. In those circumstances he rejected the challenge to the validity of the easement.
His Honour rejected an argument based on the first cognate question that the scope of the grant was impermissibly vague. On the second cognate question, he reasoned as follows (at 212): On the plaintiff's case the grant is too wide because the effect of the proviso which I have quoted is to give to the transferee, his executors, administrators and assigns the sole right to use the upper part of lot 2 except one day each year. Whilst this concept is incongruous as an aspect of a conventional right of way or footway, it is, in my judgment, not inconsistent with the grant of an easement, or with the grant of the right in question being held to be a valid easement. The covenant in the proviso prevents the registered proprietor of lot 2 from using the land except one day a year but that provision itself demonstrates that the registered proprietor of lot 1 was not given exclusive use of the land, as was the position contended for by the unsuccessful plaintiff in Copeland v Greenhalf. Further, the description of the right granted to the registered proprietor of lot 1, that is as a right of footway, limits the use which might properly be made by that person in a way which is significantly different to the rights in question in Copeland v Greenhalf. That is, whilst the registered proprietor of the dominant tenement can in a practical sense have what amounts to an exclusive use of the affected land, that person can himself or herself only use it in a quite limited way, defined by reference to Schedule 8 to the Conveyancing Act. It may be that the correct characterisation of the right granted is that it is an easement, but it is not an easement of the kind commonly called a right of way.
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078 was a decision of McLelland CJ in Eq in this Court. It concerned land opposite the club conducted by the plaintiff which had been used as a carpark. The defendant's predecessor in title bought the land from the plaintiff and erected a shopping centre, containing a carpark, on it. In the transfer, the plaintiff reserved a right for its employees and customers to use the shopping centre carpark. Later, the plaintiff lodged a caveat claiming that the reservation created an easement in its favour.
The case came before McLelland CJ on an application to extend the caveat, so it was unnecessary for his Honour to decide finally whether the plaintiff's claim was valid. Nevertheless, his Honour addressed the question of validity on an interlocutory basis.
One of the arguments advanced by the defendant against the existence of the easement was that the rights conferred were "too broad or extensive to constitute an easement", relying on Copeland v Greenhalf. In addressing this argument, his Honour stated, at 15,080: Even if everything said in Copeland could be considered to be good law, which is doubtful (see Wright v Macadam [1949] 2 KB 744) it is clear in my opinion that that case is distinguishable on the facts (see also Hedley v Roberts [1977] VR 282 and Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209; 7 BPR 14,388). In my view a right to use land for the purpose of parking cars cannot be excluded by any principle of the kind expressed in Copeland from the category of permissible easements, which it has been said "must alter and expand with the changes that take place in the circumstances of mankind" (see Commonwealth v Registrar of Titles (1918) 24 CLR 348 at 353, quoting Dyce v Hay (1852) 1 Macq HL 305 at 312).
Another submission was that "a right of parking cars is a novel right which the law will not recognise as an easement". His Honour's response was, at 15,080: I do not accept that submission. I think that it is sufficiently met by the passage quoted from Commonwealth v Registrar of Titles supra and other cases to the same effect.
City Developments Pty Ltd v Registrar General (2000) 135 NTR 1 was a decision of Thomas J in the Northern Territory Supreme Court. This case concerned a resort located on the foreshore of a lake and known as Lake Bennett Resort. The lake was set in a tropical wilderness area and could be used for water sports such as sailing and canoeing. The land which was the subject of the grants in question consisted of a lot (later subdivided), which covered the lake itself and the foreshore around it. Presumably the Resort itself occupied part of the lot, although this is not expressly stated in the judgment.
The grants in question had been made in favour of a number of lots which had been subdivided off, near to (but not adjoining) the servient lot. One grant conferred on the purchaser the right to "enter upon and use" the servient lot for "private recreational purposes", subject to a reservation in favour of the vendor, and others authorised by the vendor, in common with the purchaser, of an equivalent right of passage across, and use of, the servient lot. The purchaser was given an express right to keep a catamaran and canoes on the lake and covenanted not to damage the lake's retaining wall or pollute the lake or interfere with the use of the lake by the vendor or others having a like right to use it. The other grants were in relevantly the same form except that they conferred the right to use the servient lot for "recreational purposes" rather than "private recreational purposes".
It was contended that the grant failed both the second and fourth conditions of validity. The challenge based on the second condition failed. In the case of the fourth condition, the challenge was based on both the first cognate question (vagueness) and the second (effective joint ownership).
In support of the vagueness point, counsel for the plaintiff submitted that the right to use the land for "recreational purposes" could include any number of different types of recreational activity, from horse riding to camping to trail-bike riding, and that "every normal use of the land that one could think of" could be obstructed by some such recreational use or other.
Thomas J found that the grants formed part of a scheme designed to set aside the lake and the foreshore for recreational use by visitors to the Resort and other surrounding lot owners. The grants in favour of the surrounding lot owners would, for practical purposes, prevent the development of the servient lot except for recreational use. As part of the subdivision, restrictions had also been placed on the development of the surrounding lots which restricted development and clearance of the land. Her Honour considered that the decisions in Re Ellenborough Park and Riley v Penttila were in point and should be applied. As to the vagueness point, she held that the reference to "recreational purposes" had to be, at [41]: … construed sensibly and reasonably in the context of rural lakeside recreation. This must include walking across and around the land surrounding the lake; swimming and boating (subject to the restriction of the waterworks licence); and recreational activities such as photography, birdwatching and other types of passive recreational activity. On this basis, her Honour was satisfied that the fourth condition of validity was satisfied.
An appeal from her Honour's decision was dismissed: City Developments Pty Ltd v Registrar-General [2001] NTCA 7. Angel J, who delivered the judgment, rejected the appellant's claim that the right granted was merely a jus spatiandi and that it substantially deprived the servient owners of their "proprietorship or possession or ownership of their land". His Honour stated, at [18] (citations omitted): It is now, I think, reasonably well settled, that a jus spatiandi (a right to wander at will over the whole of the alleged servient land) can be the subject of an easement. It is now, I think, also clearly established that a right of recreation may be the subject of a valid easement.
Meanwhile, rights of carparking had been the subject of further consideration in England. A case which proved seminal was London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, a decision of the English High Court (Judge Paul Baker QC, sitting as a Chancery Division Judge). The case concerned a shopping centre development which was to include shops, businesses and a carpark. The plaintiff bought part of the shop area from the developer. As part of the purchase, the developer granted the plaintiff a right, when the development had been completed, to park on such part of the land retained by the developer as might be set aside on that land for carparking. The right allowed customers, clients or employees of any shop or other business conducted on the plaintiff's land to park in the carpark (if space was available), on the same basis as customers clients or employees of businesses on the retained land, subject to paying a share of the costs of maintaining the carpark.
It should be noted that Judge Baker considered, as a matter of interpretation of the grant, that it was dependent upon the continued existence of carparking facilities on the shopping centre owner's land. It would be open to the owner of the land to close those facilities down, whereupon any carparking rights attached to the transferred land would also cease (at 1287H-1288A).
The plaintiff's right was expressed to be conditional upon the plaintiff giving notice to be able to exercise it. Before the plaintiff gave the necessary notice the land was transferred by the developer to a third party, who later transferred it to the defendant. The plaintiff claimed to be able to enforce the grant against the defendant. The defendant contended that the right had been lost, and, in the alternative, that the grant was not a valid easement.
Judge Baker held that this defeated any rights the plaintiff might otherwise have had. But his Lordship also went on to consider the validity of the grant as an easement. He accepted that such an easement was, in principle, permissible. But its validity would depend upon the circumstances.
Counsel for the defendants relied on Copeland v Greenhalf. Counsel for the plaintiffs submitted that the decision in that case was inconsistent with Wright v Macadam, which had not been cited to Upjohn J. His Lordship stated: It is unfortunate that Wright v Macadam was not cited, but it probably would not have made any difference. The matter must be one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another. Hence I do not accept the submission that Copeland v Greenhalf was wrongly decided.
His Lordship's conclusion was: The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant. The rights sought in the present case do not appear to approach anywhere near that degree of invasion of the servient land.
Judge Baker's decision was upheld on appeal without it being necessary to consider his views on the validity of the easement: London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31. But the question did arise at appellate level in England in Batchelor v Marlow [2001] EWCA Civ 1051.
Batchelor v Marlow concerned an undeveloped L-shaped piece of land next to a public highway in what appears to have been a suburban area. The trial judge found that the respondents, who ran a nearby garage business, had acquired an exclusive prescriptive right to park up to six cars on the land in question between 8:30am and 6:00pm Monday to Friday. The land only had space on it for parking of six cars. On appeal, it was contended for the owner that the easement found failed the fourth condition of validity because it effectively deprived the owner of any reasonable use for the land.
The parties agreed that the test to be applied was that stated by Judge Baker in the London and Blenheim Estates case, quoted at [173] above. Applying that test, the Court of Appeal upheld the owner's argument. Tuckey LJ, who gave the judgment of the Court, stated: I think these suggestions demonstrate the difficulties which Mr West [counsel for the respondents] faces. Sale to the respondents would amount to a recognition that the rights they asserted had given them in practice a beneficial interest and no doubt the price would reflect this fact. The appellant could of course park himself at night or the weekends but the commercial scope for getting others to pay for doing so must be very limited indeed. I cannot see how the appellant would benefit from concreting over the land, although this would certainly enhance the respondents' right. If one asks the simple question: "Would the appellant have any reasonable use of the land for parking?" the answer, I think, must be "No". He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the appellant has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.
Counsel for the respondents argued that it remained open to the owner to sell the land to the beneficiaries of the easement. He could also park on the land himself outside business hours or charge others for doing so. He would be entitled to concrete over the surface of the land without interfering with the garage owner's rights.
By coincidence, the decision in Batchelor v Marlow was delivered on the same day as Bryson J, in this Court, delivered his decision on a case which played a critical part in the argument before me, Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525.
The case concerned an attempt to replicate the "clos" land tenure model used in vineyards in France. Land was subdivided so as to create residential allotments adjacent to an area of farmland intended to be used as a vineyard. Each purchaser acquired two plots of land on the same title, known as part A and part B. Part A was the residential plot, consisting of an area of about 1,500m². Part B was a piece of the agricultural land (not necessarily abutting part A). It was about 1.5 hectares in area. Another lot (to which I will refer as the "Management Lot") was retained as a controlling master lot from which it would be possible to manage the vineyard operations.
The scheme was underpinned by an elaborate set of restrictions recorded in a s 88B instrument. The most important of these restrictions was the fourteenth, described as "easement for vineyard", which authorised the owner of the Management Lot to establish and maintain a vineyard on part B. There were other restrictions which included an "easement for recreation and maintenance" entitling the owner to enter part B, cut and remove timber, landscape the land and build riding trails and picnic areas, structures, works and facilities for recreation.
The vineyard venture proved unsuccessful and the purchasers wished to be freed of the restrictions. The proceedings were brought by the owner of the Management Lot to vindicate its claimed rights.
At first instance, before Bryson J, two of Cheshire's conditions of validity were debated. His Honour found that the restrictions failed the second condition, in that they relevantly failed to accommodate the Management Lot. But he also went on to consider the fourth condition.
Earlier in his judgment, his Honour explained the policy background for the imposition of conditions upon the recognition of easements. He stated at [15]: The Common Law and its judges have for centuries favoured land being fully available for its owner to use and sell, and restricted the creation and operation of interests, including new classes of interests, which might have different effects. ... Relatively simple forms of easements relating to rights of way, the flow of water and natural light have long been known to the law. When in the Nineteenth Century more complex easements began to appear they were received with the same disposition against permitting the creation of new forms of landholding and new restrictions on ownership.
In his description of the fourth condition of validity, Bryson J referred to the three cognate questions identified in Re Ellenborough Park. His Honour commented that "[a]s with other parts of the subject, considerations raised by these questions are not sharply defined and it is not always easy to see them as aspects of the fourth condition, or as wholly distinguished from each other" (at [23]). He considered that the language of the fourteenth restriction, although wide, was reasonably clear, and therefore addressed the issue of validity by reference to the second cognate question rather than the first.
The "easement for vineyard" under consideration was novel, in the sense that there had been no attempt (or at least no reported attempt) to create an easement of that type before. Bryson J commented (at [39]): Novelty has been referred to in some cases which did not relate to activities which were in any way new. Novelty comes under consideration for the second condition, and also for the fourth condition and second question.
His Honour continued by commenting on the cases concerning a right to store goods, which he had described as "not a change in the circumstances of mankind, but a continuation of thousands of years of practice". He stated: Rights to store goods have been variously upheld - Attorney General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd [1915] AC 599 and Wright v. Macadam [1949] 2 KB 744 and held invalid - Grigsby v. Melville [1972] 1 WLR 1355 (affirmed on other grounds [1974] 1 WLR 80). Rights to park motor vehicles have been upheld in London and Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 and held invalid in Copeland v. Greenhalf [1952] Ch 488. Parking vehicles and storing goods are probably older activities than creating easements. In my view these cases were well explained by Judge Paul Baker QC in [London and Blenheim]. … [Bryson J quoted from the passages set out at [172] and [173] above]. The validity of easements for storing goods or parking vehicles depends on the nature and circumstances of the servient tenement, the operation in detail of the purported easements and their effect on the servient tenement.
Returning to novelty, his Honour went on (at [40], emphasis added): … novelty has several aspects. An easement may be novel in that it accommodates the dominant land in a way which only became possible or useful because of some relatively recent invention; and the easements for electricity supply and telecommunications services furnish ready examples. Easements for services of kinds which arise from new technology are novel in the sense that technology is new and until it was invented land was not accommodated by it, but if the dominant land is accommodated and the servient land is burdened in ways analogous to the operation of easements which were earlier known novelty could not be an obstacle to the validity of the easement. Another aspect of novelty is novelty in respect of the manner and degree of intervention in the rights of the servient owner. Evaluation of the degree of intervention will be required. Novelty presents difficulty for the validity of an easement when the intervention with the servient tenement differs from interventions which are already known, and does so markedly as to bring under consideration the question whether it creates an interest of a new kind outside the known concept of an easement. What cannot be done is to create new kinds of interests in land. This cannot be done because it conflicts with the [public policy identified earlier in the judgment].
His Honour upheld the challenge to validity based on the second cognate question. He stated (at [41]): In terms of reality the servient owner has no opportunity to do anything which is related to farming, except in a way which is altogether subordinated to and does not interfere with the rights of the dominant owner. The servient owners' opportunity for recreational activity, whether it is enjoyment of rustic tranquillity or anything more active, is merely nominal having regard to the dominant owner's entitlement to carry out vineyard establishment works, plant and replant grapevines and crops, plant harvest slash and spray crops, and carry out vineyard maintenance and harvesting. It is true that the owner will not be a trespasser provided that he keeps out of the dominant owner's way, but his rights are no more than a shadow of ownership and possession of a freehold and do not have any reality beyond the opportunity to experience a sense of proprietorship and the opportunity to receive and pay bills for municipal rates.
The owner of the Management Lot appealed but the appeal was dismissed: Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389. The Court upheld Bryson J's conclusions that the grant failed both the second and fourth conditions of validity. Santow JA gave the leading judgment, with which Mason P and Beazley JA agreed.
On the application of the fourth condition, Santow JA referred, with approval, to the decision in Harada, which his Honour described (at [45]) as having "expressly followed Copeland v Greenhalf (and not the earlier inconsistent Wright v Macadam)".
A point taken on appeal, which had not been taken below, was that the vineyard rights only applied to part B of the purchasers' land. They did not at all affect the purchasers' entitlement to use and enjoy part A (the residential part of their property). Santow JA acknowledged that this was so. Nevertheless, his Honour upheld Bryson J's ultimate conclusion. He stated (at [46]): The fact that the rights only touch part of the lot is insufficient to preclude the finding that the rights so vastly interfere with the servient owners' rights, were they exercised, as to preclude them constituting an easement. The fourteenth restriction, independent of any further restrictions comprising the system, applies to a very significant portion of the lot. It leaves the owner with merely his rights of residual recreational activities that are totally subordinated to the over-arching rights of Clos Farming. When the fourteenth restriction is placed in its context of those further restrictions that apply to the lot in total, the servient owner's rights are so attenuated as no longer to meet the description of exclusive possession.
Meanwhile, earlier in 2002, the English Court of Appeal decided Jackson v Mulvaney [2003] 1 WLR 360. The case concerned a group of cottages built on suburban land. Initially, the cottages were rented out but from 1950 the owners subdivided and sold them off. The respondent, Mrs Mulvaney, bought her cottage in 1970.
In subdividing and selling off the land, the owners retained an open area behind the cottage plots, as well as an adjacent strip of land providing access to that area and other properties. Mrs Mulvaney (and the other purchasers) were granted a formal right of way over that backyard and access strip. Over a period of decades, as the cottage plots were gradually sold off and occupied, the open area was used as a communal backyard. By mutual understanding between the cottage owners, "ground rules" developed allocating space next to each cottage for washing lines, lawns and flower beds. The unallocated part of the yard was grassed over, and cottage owners took it in turn to cut the grass and keep the area tidy. There was also what was described as an "access passage" which ran around the outside of the yard, between the flower beds and the cottages, which was grassed.
In 1996, the owners of the servient land (who by then were successors in title of the original owners) decided to widen the access passage and lay gravel on it so as to improve the access it provided. For these purposes, they ripped up Mrs Mulvaney's flower bed and removed the grass from the access way. She objected and brought proceedings against the owners.
At first instance, it was found that Mrs Mulvaney (along with the other cottage owners, but they do not seem to be party to the proceedings) had acquired, by prescription, rights in the nature of easements over the backyard area which went beyond the express right of way. The prescriptive right was described by the trial judge as a right to cultivate, mow and otherwise enjoy the backyard area, and to hang washing there. Mrs Mulvaney was awarded damages for the destruction of her flower bed and a declaration was made that she was entitled to restore it. The trial judge however declined to order the grass on the access passage be restored, because the removal of the grass had not interfered with its use as an access way.
On appeal to the Court of Appeal, the owners contended that the right found by the trial judge was not an easement known to law. It was argued for the owners that the case was significantly different from Re Ellenborough Park, where the common garden had been maintained by the servient owners. In the instant case, all of the work on the garden had been undertaken by the cottagers, and, so the argument ran, recognition of the prescriptive right amounted to effective exclusion of the owners.
Latham LJ, who gave the judgment of the Court of Appeal, rejected this argument. His Lordship considered that the cottagers' prescriptive rights did not exclude the owners, who were free to undertake the maintenance of the servient area themselves. The owners had not in the past done so, but the important point was that they had allowed the area to be used as a communal garden for the cottagers. On this view, the case was not distinguishable from Re Ellenborough Park, and the right which Mrs Mulvaney had been found to have by the trial judge was a right known to law and therefore could arise by way of prescription.
His Lordship, however, concluded that the declaration went too far in entitling Mrs Mulvaney to restoration of her flower bed in its previous location. Mrs Mulvaney's prescriptive easement was not specific to her part of the backyard. It was a right, in common with the other cottagers, to use the servient area, as a whole, as a communal garden. Accordingly, the declaration was varied so as to provide that Mrs Mulvaney was entitled to "a right to use [the servient area] as a communal garden for recreational and amenity purposes".
So declared, Mrs Mulvaney's right would not necessarily prevent the owners from widening and laying gravel on the access passage, provided that in doing so they did not alter the character of the servient area, taken as a whole, as a communal garden. But his Lordship considered that they would be required to demonstrate this in advance of undertaking the relevant works, so that for practical purposes, consultation with the cottager, if not agreement, would be required. In removing the flower bed without consultation and without giving Mrs Mulvaney an opportunity to move its contents elsewhere, the owners had interfered with her right, and the award of damages should stand.
A case involving an easement for car parking reached the House of Lords in Moncrieff v Jamieson [2007] UKHL 42 (the case came from Scotland, but the Scottish law of servitudes was relevantly the same as the English law of easements, so, for convenience, I will use the English terminology). The dominant tenement was a residential block of land by the sea in the Shetland Islands which had been subdivided off from a larger area inland. Vehicular access to the block was not possible because of an escarpment on its inland boundary. At the top of the escarpment was a laneway which led to a main road 140 metres away. The seaside block had the benefit of a right of way over the laneway which had been granted when the subdivision took place.
The pursuers, who had acquired the seaside block, claimed an entitlement, arising by implication, to park cars on a small section of the land at the clifftop, and also for temporary space to unload vehicles parking there (but not so as to allow permanent storage). The claim was put on two bases. One was that, given the physical characteristics of the seaside block, such a right had been necessarily implicit in the grant of the express right of way. Alternatively, the right was said to be reasonably necessary for the enjoyment of the seaside block and therefore to have arisen by way of separate implicit grant.
One of the answers to the alternative contention by the defenders was that an easement of the type claimed by the pursuers was not known to law. But this issue did not arise on the primary contention, and that contention was upheld by the House.
Lord Scott of Foscote, however, went on to consider, and reject, the defenders' argument that the easement was not known to law. The argument relied, in particular, on Copeland v Greenhalf. It was referred to by his Lordship as the "ouster principle".
His Lordship stated, at [54]: Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice. A viaduct carrying water across the servient land to the dominant land will prevent the same things. Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude. There will always be some such use that is prevented.
In connection with Wright v Macadam his Lordship stated (at [55]): In Wright v Macadam the Court of Appeal had to consider whether the right to use a coal shed could exist as an easement and held that it could. It has been suggested that the case may have turned on whether the claimant had sole use of the coal shed, but it is difficult to see any difference in principle between a case in which the dominant owner has sole use of a patch of ground for storage purposes, eg a coal shed, and a case in which the dominant owner is the only user of a strip of road for access purposes or of a viaduct for the passage of water. Sole user, as a concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any purposes of his own that do not interfere with the dominant owner's reasonable use for the storage of coal.
His Lordship went on to comment on the reconciliation of Wright v Macadam with Copeland v Greenhalf offered by Judge Baker in the London and Blenheim Estates case. He said (at [57]): I think, with respect, that this attempt to reconcile the two authorities was addressing the wrong point. The servient land in relation to a servitude or easement is surely the land over which the servitude or easement is enjoyed, not the totality of the surrounding land of which the servient owner happens to be the owner. If there is an easement of way over a 100-yard roadway on a 1,000-acre estate, or an easement to use for storage a small shed on the estate access to which is gained via the 100-yard roadway, it would be fairly meaningless in relation to either easement to speak of the whole estate as the servient land. Would the right of way and the storage right fail to qualify as easements if the whole estate bar the actual land over which the roadway ran and on which the shed stood, with or without a narrow surrounding strip, were sold? How could it be open to the servient owner to destroy easements by such a stratagem? In my opinion such a stratagem would fail. It would fail because the servient land was never the whole estate but was the land over which the roadway ran and on which the shed stood. Provided the servient land was land of which the servient owner was in possession, the rights of way and of storage would continue, in my opinion, to qualify as easements.
At [59], his Lordship concluded: In my respectful opinion the test formulated in the London and Blenheim Estates case and applied by the Court of Appeal in Batchelor v Marlow, a test that would reject the claim to an easement if its exercise would leave the servient owner with no 'reasonable use' to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are 'reasonable' or sufficient to save his ownership from being 'illusory'? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. [His Lordship referred to Batchelor v Marlow]. … I can think of no reason why, if an area of land can accommodate nine cars, the owner of the land should not grant an easement to park nine cars on the land. … How could it be said that the law would recognise an easement allowing the dominant owner to park five cars or six or seven or eight but not nine? I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.
At [143], Lord Neuberger stated: … I see considerable force in the views expressed by Lord Scott in paras [57] and [59] of his opinion, to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive occupation, on the basis that the essential requirement is that the servient owner retains possession and control. If that were the right test, then it seems likely that Batchelor v Marlow was wrongly decided. However, unless it is necessary to decide the point to dispose of this appeal, I consider that it would be dangerous to try and identify what degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic.
The comments by Lord Scott, and the alternative test for the application of the ouster principle which he proposed, have attracted attention in later decisions, although in Virdi v Chana [2008] EWHC 2901 (Ch), Judge Purle QC, sitting in the Chancery Division of the High Court, pointed out that Batchelor v Marlow had not been overruled by the majority in Moncrieff and remained binding: see at [15]-[25].
In Australia, as I will now describe, Lord Scott's alternative test has been referred to in at least four first instance decisions of this Court, two of which went on appeal. It has also been referred to in other jurisdictions, including at least one intermediate appellate decision.
The first decision to which I will refer is the decision of the Western Australian Court of Appeal in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180. The case concerned land which was the subject of strata title (Lot 14). The common property included a carpark. An easement had purportedly been granted over the carpark area in favour of adjoining land which was used as a supermarket (Lot 101). One of the questions which arose was whether the easement satisfied the fourth condition of validity.
The grant in question created rights in favour of the owner of Lot 101 both of footway and carriageway, and of carparking. The rights of footway and carriageway covered a specified area of the Lot. The right of carparking covered a smaller part of that area. So far as carparking was concerned the right granted was for the "purpose of the parking of motor vehicles…provided that the right to park vehicles shall be transitory in nature". The rights granted were rights in common with the strata body corporate and all persons authorised by them (which would presumably have included the owners of the individual strata units).
The validity of the easement was upheld. The leading judgment was given by Buss JA. His Honour noted by reference to earlier English and Australian authority that a right to park cars was capable of being the subject of an easement. The question was whether the rights were not so extensive as to contravene the fourth condition, in the circumstances of the particular case. His Honour noted in this regard the difference between the test propounded by Judge Baker in the London and Blenheim Estates case and by Lord Scott in Moncrieff. He concluded: The relevant provisions of [the grant] satisfy the test enunciated by Judge Baker QC in London & Blenheim Estates and also the test articulated by Lord Scott … [The grant] does not confer on [the dominant owners] exclusive and unrestricted use of the defined portion of Lot 14 or Lot 14 as a whole. In particular, [the grant] confers non-exclusive rights and, in addition, those non-exclusive rights to park vehicles only authorise parking which is 'transitory in nature'. That is, the parking must be brief or for a short period having regard, no doubt, to the nature of the business conducted on Lot 101, namely, a shopping centre. Further, subject to the reasonable exercise of the right to park motor vehicles, the appellant has retained possession and control of the defined portion of Lot 14, and Lot 14 as a whole.
Brydall Pty Ltd v Owners of Strata Plan 66794 [2009] NSWSC 819 was a decision of McDougall J in this Court. This case concerned an easement for parking in a strata title development consisting of factory units. The plaintiff was the registered proprietor of a lot having the benefit of a grant in the following terms: "[f]ull and free right … to park motor cars, motor vehicles, motor carriages and/or trailers on part of the lot burdened, but only within the site of [the] easement". The defendant was the registered proprietor of the common strata title property which was burdened by the grant. The area the subject of the grant was less than 15 per cent of the servient lot overall.
His Honour determined, as a matter of interpretation of the grant, that the "full and free" right implicitly excluded the servient owner. In determining whether the easement was valid, his Honour followed the approach of Wilson J in Weigall v Toman [2008] 1 Qd R 192 (see at [14]) which emphasised the importance of considering "proportionality - in the sense of the relative importance or significance of that part of the servient tenement over which an exclusive right is given to the servient tenement as a whole". McDougall J's consideration of proportionality occurs at [13]-[15]: l have no doubt that it would be a convenience for the occupants of [the defendant's land] and those invited by them to come upon that lot, to use the site of the easement for parking or other purposes. But the question of proportionality does not seem to me to turn on questions of mere convenience. I do not see that it would be possible to argue that enforcement of [the plaintff's] rights as exclusive rights…would be so onerous as effectively to deprive either the [defendants] of the effective use of their proprietary and other rights. To the extent that it may be said that the easement … would deprive the [defendants] of the whole beneficial use of the parcel of land subjected to the rights, I am not sure that that is a relevant consideration. I say that for two reasons. One is that the test (referred to in Copeland v Greenhalf) may overstate even the position in England. The second is that, as I have indicated, the trend of authority in this country is to look at whether the rights asserted impede the reasonable use of the servient tenement as a whole. As to the first proposition: to the extent that Copeland is authority for the proposition that I have stated, the decision of the House of Lords in Moncrieff appears to cast doubt on it. See in particular the speech of Lord Scott of Foscote at 2642 [59]. As I understand it, the other members of the House shared his Lordship's views. His Honour therefore concluded that the grant created a valid easement.
Ryan v Sutherland [2011] NSWSC 1397 was a decision of Black J. The case concerned two neighbouring lots, apparently residential properties, in the same deposited plan. A s 88B instrument purported to grant, in favour of Lot 1, a right over an area within Lot 2. The right was "to go and repass and utilise [that] area for recreation and the maintenance and establishment of plantings and gardens and/or for the establishment or erection of facilities to the benefit of the dominant tenement". The judgment does not contain any detail about the physical nature, or the size, of the affected area except that part of a tennis court and concrete supporting wall had previously been erected in that area, and a brushwood fence was later erected in it (see at [6]).
It was argued for the owner of Lot 1 that the right did not satisfy Cheshire's fourth condition. His Honour reviewed the case law, including the decision of Bryson J in Clos Farming. In doing so, he stated that Clos Farming was distinguishable from the facts in the case before him in that "the easement affected the entirety of the defendant's land" (at [17]).
His Honour referred to the competing tests proposed by Judge Baker and Lord Scott. He addressed both of them. At [22]-[23] he stated: In my view, the restriction as to user, if construed as an easement, would satisfy the test set out in London & Blenheim Estates, as applied to the whole of lot 2 in accordance with the trend of the Australian cases to which McDougall J referred in Brydall Pty Ltd v Owners of Strata Plan 66794. It appears from inspection of the plans in evidence before me that the restriction as to user affects a relatively small part of lot 2 and it does not (by contrast with the easement in Clos Farming Estates Pty Ltd (recs & mgrs apptd) v Easton) confer exclusive or unrestricted use of the whole of lot 2 on Mrs Sutherland. I do not think it could be said that the restriction as to user has the result that Mrs Ryan retains no more than nominal ownership of lot 2 (in the language of Clos Farming Estates Pty Ltd (recs & mgrs apptd) v Easton), so far as she continues to have possession and control of the house which occupies the larger part of that lot. On balance, I also consider that the restriction as to user would also satisfy the alternative test set out in Moncrieff v Jamieson, referring to the part of the land which is the subject of the easement rather than the whole of lot 2. The use permitted by the restriction as to user is limited to the specified purposes of (1) recreation, (2) the maintenance and establishment of plantings and gardens and/or (3) the establishment of or erection of facilities to the benefit of the dominant tenement. I would read the third of those purposes as taking its character from the first and second so that it does not permit Mrs Sutherland to use the relevant area for any purpose. While it is not necessary for me to determine the precise limits of that third purpose, it would not, in my view, permit the erection of, for example, an industrial facility on that area of the land. In my view, the owner of lot 2 retains possession and control of the relevant part of the land, including the ability to restrain the use of the land other than for the specified purposes, although the owner of lot 1 is permitted the use of it for the specified purposes. Mrs Ryan also retains some use of the land itself, which she has in fact exercised by reinforcing the brushwood fence on it ...
Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587 was a decision of Windeyer AJ. The case concerned a commercial development. Part of the development was a hotel (Lot 5). Lot 5 adjoined a block of land (Lot 4) which was a carpark, on which there were 198 car spaces and a telecommunication tower. Other lots in the development included a petrol station (Lot 1), another carpark (Lot 2) and a shopping centre (Lot 3). The grant in question gave the owner of Lot 5, in common with the owners of the other lots, the right to use Lot 4 for car parking for its customers and employees, together.
One of the questions which arose was the validity of the grant as an easement. The argument for invalidity was based on the second cognate question (effective proprietorship).
Windeyer AJ referred to the case law and, in particular, tests propounded by Judge Baker and Lord Scott. In passing, he expressed the view that the decision in Evanel was inconsistent with Judge Baker's test, and that Ryan v Sutherland used reasoning similar to the reasoning in Evanel. But in his Honour's view, Judge Baker's test had been endorsed in Clos Farming. His Honour concluded that he was "bound to follow the approach in Clos Farming and London and Blenheim Estates rather than Moncrieff" (at [38]).
A significant factor for his Honour was that, strictly speaking, "the land subject to a servitude for parking is the surface of the earth and sufficient airspace to accommodate the vehicles which will be parked there" (at [31]). He reasoned, at [39], [40]: If the applicable test is whether there remains to the servient owner a reasonable use of the servient tenement in its entirety then I think that the purported easement under consideration here must be capable of being validly granted. It is true that the vast majority of the surface area of the land is affected by the easement. However, the plaintiff is permitted to build above the surface area into the airspace and also to use the subterranean space. The plaintiff thereby enjoys a very substantial user of the land. Moreover, even limiting consideration to the use of the surface of the land, the plaintiff is not excluded from the land but remains able to use the land in conjunction with the second defendant. … The plaintiff is able to use the car park and from a practical perspective the extent of its user is substantial in that there are 198 car spaces available for the patrons of both the plaintiff's and the second defendant's businesses to share. The plaintiff has far more than nominal proprietorship.
At [44], his Honour stated: Even if Moncrieff is correct, the plaintiff's ability to use the airspace and subterranean space is relevant and points in the direction of a valid easement. … Lord Scott [in Moncrieff] referred to the use of the airspace as a relevant consideration despite his view that one should only look to that part of the land actually affected by the servitude. The ability to use the airspace and subterranean space is relevant because it bears upon how the plaintiff can use the surface of the land, being the part of the land subject to the easement. The plaintiff has the ability to use the surface of the land to support whatever developments it might choose to engage in above or below the surface. This is a very real user of the surface of the land and it demonstrates both a use of the land open to the plaintiff and the fact that the plaintiff remains in possession and control of the land.
The decision was appealed: Registrar General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321. The appeal was allowed on another point, but the Court of Appeal took the same view as Windeyer AJ in relation to the validity of the grant. Bathurst CJ and Beazley P, in a joint judgment, discussed the case law, including Moncrieff, and concluded at [64]: … we do not consider that Clos Farming Estates stands only for the proposition that the owner of the servient tenement must have reasonable use of the servient tenement in its entirety. That is a relevant consideration and, in any given case may be decisive, but it is also relevant to consider the extent of the interference with the rights of ownership on that part of the servient tenement actually affected by the easement. That is apparent from the bolded portion of the summary from Bryson J's judgment to which reference is made above. It is also consistent, in our view, with the approach taken in Harada. It may be that if the interference with possession amounts to an effective interference with ownership rights, that may be sufficient to deny the validity of an easement.
But on the facts, the restriction did not fall foul of that principle. Their Honours continued: … In our opinion, Windeyer AJ was correct in his conclusion … that Jea Holdings [the servient owner] "enjoys a very substantial use of the land". It not only has the right to use the servient tenement for parking for itself, its servants, agents and invitees, it could be added for matters such as advertising on fencing and the like, and it has the valuable right to use both the airspace above and the subterranean land below. It also follows that, as his Honour also indicated and for the reasons he gave, the Covenant would be a valid easement if the correct approach was that taken in Moncrieff.
In his concurring judgment, Basten JA reached the same conclusion. His Honour noted the more sympathetic attitude to the validity of easements displayed by Lord Scott in Moncrieff, which involved a preparedness to accept a degree of exclusion of the servient owner from the land in question. He described Clos Farming as involving a "more extreme" case of exclusion which was not inconsistent with the approach in Moncrieff. His Honour stated, at [152]-[153]: The limitation on use of lot 4 by the owner of that lot, while capable of extending from time to time to much or even all of the surface area of the parking lot, was a shared right, with the registered owner, to the use of the lot for car parking. Further, it expressly subsisted with the rights of the owner to use any part of the stratum at a height greater than 12 feet above the surface of the land and to use the underground area to such depth as might be valuable to it. … Disregarding the car parking rights, the rights reserved to the owner of lot 4 (the transferor) would by necessary implication include such use of the surface of lot 4 as would be necessary to erect a building above it, and to obtain egress to the land below it. It is not uncommon for buildings to be erected above ground level, so as to permit parking beneath them. It is also to be expected that not insignificant inroads would be made on the number of parking spaces available if such a building were erected over (or under) lot 4. That would not be inconsistent with the terms of the covenant, which must accommodate reasonable user by the owner of the servient tenement in accordance with its reserved rights. Further, the fact that the use of land by the transferee and its customers and patrons was to be exercised "together with" the transferor and the respective tenants and lessees, invitees and customers of the owners of lots 1-4, was entirely inconsistent with the kind of exclusivity which would prevent the interest being classified as an easement.
Towers v Stolyar [2017] NSWSC 526 was a decision of Darke J, which was later the subject of an appeal: Stolyar v Towers [2018] NSWCA 6. The case arose out of a dispute about carparking rights for two adjacent waterfront properties at Rose Bay in Sydney's Eastern Suburbs. The layout of the properties is shown in the aerial photograph attached to the Court of Appeal's judgment, which is reproduced below.
In the photograph, the street giving access to the properties can be seen at the top (east) and Sydney Harbour at the bottom (west). The dominant tenement was known as Lot B, which belonged to the plaintiffs, Mr and Mrs Towers. It was a battle-axe block, the head of which is shaded black and the handle of which, a driveway, is shaded green. Between the head of the battle-axe and the street was another lot ("number 6"), not involved in the proceedings, which is largely unshaded (only the strip of land running along the northern boundary was actually part of Lot B; the part of the driveway running along the western side of the battle-axe head belonged to number 6).
The servient tenement was known as Lot A and belonged to the first defendant, Mrs Stolyar. In the diagram, most of it is shaded blue. It also contained the areas shaded yellow, brown and red, and the southern part of the area shaded green which did not belong to number 6. Access to Lot A was provided by rights of carriageway over the driveway, to the extent it formed part of number 6 and Lot B. Erected on Lot A and marked yellow was a double garage in which residents or visitors could park.
The dispute concerned a grant of rights over a strip of land on the eastern side of Lot A. Part of the strip is coloured red and part coloured brown. Most of the brown portion was occupied by a single garage built next to Lot A's double garage; the southernmost part of the brown shaded area, behind that garage, was vacant. The area in front of the garage, coloured red, was vacant but paved, and was of sufficient width and length to allow a car to be parked there. The grant in question gave the owners of Lot B the right to use the servient area for parking cars and permitted them to maintain the garage building for that purpose. Access from Lot B to the servient area was provided by a right of way over the driveway land on number 6 and on Lot A.
The dispute between the parties was precipitated by parking disputes between the Towers and Mrs Stolyar's son, who was occupying Lot A with his family. The Towers were using the red shaded area in front of the garage as a parking space and Mr Stolyar claimed that this interfered with his ability to execute a three-point turn to turn his car around before reversing into his double garage. Ultimately, the dispute turned into a full-scale challenge to the validity of the grant as an easement. It was argued for the Stolyars that the interference with their rights of ownership were so great that the fourth condition of validity was not satisfied. In support of this argument, it was contended that the grant gave the Towers effective control of the garage building as well as the rest of the servient area.
The challenge failed at first instance before Darke J. In dealing with the issue, his Honour first determined the extent of the rights granted as a matter of interpretation of the s 88B instrument. He rejected the suggestion that the terms of the easement conferred a right to erect a garage of an unlimited height on the servient area. In his Honour's view, the only right was to maintain, or replace, the existing structure (which, on the probabilities, had already been built when the easement was granted). Nor was there any right to build over the area behind the garage. Nor was the dominant owner entitled to exclude the servient owner from the garage; if the door on the garage was to be locked, the servient owners would need to be provided with a key.
Darke J addressed the question of validity from two points of view. One focused exclusively on the servient area. The other focused on the servient tenement as a whole.
So far as the servient area was concerned, his Honour reasoned, at [51]-[52]: Plainly, the rights conferred by the Easement mean that the ability of the servient owner to use the single garage and the area in front of it is very significantly reduced. Those areas, even when not actually being used by the dominant owner for parking, must be kept available for that use. Nonetheless, the Easement does not amount to a grant to the dominant owner of exclusive possession of those areas. The servient owner may make use of those areas to the extent that it does not unreasonably interfere with the dominant owner's rights. There is evidence, for example, that there is space in the single garage for some storage, consistent with the garage being used for parking. The servient owner is entitled to make use of that space. As I have found, the dominant owner does not have the right to exclude the servient owner from the single garage. The Easement confers rights to use the surface of the Easement area (including any structures built upon it). There is only a limited right to disturb the surface for the purposes of effecting repairs to or replacement of structures. The servient owner otherwise retains its rights in respect of the sub-surface. Subject to not infringing the dominant owner's rights over the Easement area, including its right to "keep erected" car parking structures on the Easement area, the servient owner retains its rights to build structures upon, under or above the Easement area. It may be possible, for example, to increase the height of the single garage to create additional storage space. In any case, the servient owner remains entitled to make use of the roof of the single garage. A satellite dish, or solar panels, could be placed there, for instance.
His Honour concluded that the rights conferred on the dominant owners were not so as to deprive the servient owners of their rights of proprietorship or possession of the servient area.
So far as the effect on Lot A as a whole was concerned, the only interference alleged was that it prevented the dominant owners from performing three-point turns so as to turn their cars around. His Honour noted that the evidence about this was unimpressive and the area in front of the double garage was large enough to house a turn-table which could be used to turn cars without the need for a three-point turn. He concluded, at [58]: I am in no doubt that the servient tenement as a whole is able to be reasonably used notwithstanding the extent of the rights conferred by the Easement. The land contains a two-storey house, gardens and a pool in close proximity to Rose Bay.
The appeal to the Court of Appeal was dismissed. The leading judgment was given by Gleeson JA, with whom Simpson and White JJA agreed. Gleeson JA noted (at [52]) what Lord Scott had said in Moncrieff (at [59], parts of which are extracted at [207] above) about the test to be applied. His Honour also noted the comment by Basten JA, in Jea Holdings, about the increased sympathy towards easements manifested by the decision in Moncrieff. But as I read the judgment, his Honour did not need to reach any conclusion about the test to be applied. His Honour was content to proceed on the same basis as Darke J had proceeded at first instance.
Following this approach, Gleeson JA upheld the conclusions which Darke J had reached concerning the effect on the easement area. He added, at [71]: The present case is not like Clos Farming where the rights to the vineyard were inconsistent with the proprietorship and possession of the servient land by the servient owners. Nor is it like Harada, where the extent of the restriction on the use of the servient land not to build on the easement in favour of an overhead power line transmitting electricity over the servient land meant that the owner of the servient land was left with very few rights over that property, such that the rights claimed by the electricity company were really rights of joint user.
His Honour likewise rejected a challenge to what Darke J had said about the effect on the servient tenement as a whole. In doing so, his Honour noted that there was no evidence that it was impossible to turn cars around, for instance by undertaking a turn which involved more than three points (at [70]-[73]).
In 2019, another easement case, this time involving recreation, reached the United Kingdom's ultimate appellate court. Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553 concerned a country estate of about 90 acres, which had been turned into a "country club" or "leisure complex" known as "Broome Park". The 17th century house (referred to in evidence as the Mansion House) had on its upper floors been converted into time share apartments giving the owners or occupants for the time being the right to use the facilities, which included a championship golf course and swimming pool, as well as facilities such as a restaurant and billiard and television room in the Mansion House itself. The rest of the estate remained farmland.
A smaller house known as Elham House had also been part of the estate at an earlier point when the estate had been bigger. After the development of the leisure complex, Elham House was also converted into time share apartments and an easement, or purported easement, was granted in favour of the Elham House land allowing the time share residents use of the leisure complex facilities, both in the Mansion House and in the grounds. The developer who undertook the conversion covenanted to pay a contribution to maintaining the facilities, but, as a positive covenant, this did not run with the land and so did not bind the appellants, who were later purchasers of the Elham House land.
The appellants contended that the grant entitled them to use the facilities and, there being no obligation to pay in the grant itself, to do so at no cost. In response the validity of the grant as an easement was challenged, both in its application to the facilities in the grounds, and in its application to the facilities in the Mansion House. It was contended that neither the second condition nor the fourth condition of validity was satisfied. By majority (Lord Carnwarth JSC dissenting) the easement was held valid as it applied to all of the facilities (and any future facilities which might have been constructed).
The judgment of the majority was delivered by Lord Briggs JSC. His Lordship addressed the fourth condition using the "ouster principle" terminology which had been used by Lord Scott in Moncrieff. Lord Briggs' description of the principle was: Leaving aside cases where the grant confers exclusive possession, which cannot by definition be an easement, the ouster principle rejects as an easement the grant of rights which, on one view, deprive the servient owner of reasonable beneficial use of the servient tenement or, on the other view, deprive the servient owner of lawful possession and control of it.
The argument before the Supreme Court on the ouster principle focused on interference with possession and control, rather than interference with "reasonable beneficial use". It was common ground between the parties that the servient owner could not be compelled to take any positive action to make the leisure facilities available. If the servient owner ceased to do so, then it would be up to the dominant owners, if they wished to make use of the facilities, to maintain and operate those facilities themselves. The entitlement to do so was referred to as "step-in rights". The argument for the appellants was that the exercise of such rights would "deprive the appellants of possession or control of the park, or substantial parts of it, thereby amounting to ouster" (at [62]).
Lord Briggs dealt with this argument as follows (at [63]-[65]): The judge and the Court of Appeal rejected these submissions, on the basis of a concurrent factual analysis. Even the golf course could have been kept in a playable condition (although not as an immaculate championship course) by the exercise of those step-in rights, without the dominant owners taking possession or control ... This was held not to amount to an ouster. No basis was shown in the appellants' submissions to justify this court taking a different view of that essentially factual question. But I would go further. In my view it is wrong in principle to test the issue whether a grant of rights amounts to an ouster of the servient owner by reference to what the dominant owner may do by way of step-in rights if the servient owner ceases to carry out the necessary management and maintenance of the servient tenement. This is for two reasons. The first is that the ouster question should be addressed by reference to what may be supposed to have been the ordinary expectations of the parties, at the time of the grant, as to who, as between dominant and servient owners, was expected to undertake the management, control and maintenance of the servient tenement. In the present case, as the judge held, the plain expectation was that the relevant part of the park would be managed, controlled and maintained as a leisure complex by its owners, rather than by the owners of Elham House or by the timeshare owners … The exercise of step-in rights by the dominant owners would arise only in the event that the owners of the park gave up the management, control and maintenance of the recreational and sporting facilities. Nothing in the terms of the facilities grant impinged upon those rights of management and control in any way. The second reason is that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, sufficient, but no more than sufficient, to enable the rights granted to be used … The dominant owner's right is "to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner . . .": para 8(6). Provided that, as the courts below have held, the recreational and sporting facilities in the park could be used by the … timeshare owners without taking control of the park, then no question of ouster arises.
Having rejected this argument, his Lordship still found it necessary to consider "the wider question whether the grant for time share owners of comprehensive rights to the use and enjoyment of recreational land and sporting facilities in an adjacent leisure complex is something which the law of easements ought to comprehend". His Lordship noted that in various respects the case went further than Re Ellenborough Park. He stated at [75]: The facilities grant in the present case may be treated as breaking new ground by comparison with In re Ellenborough Park, in three main respects. First, as Lord Carnwath JSC points out, the nature and extent of the recreational and sporting facilities granted at Broome Park was much greater, and their full enjoyment called for much more intensive management, than that afforded in Ellenborough Park. An 18-hole golf course and a heated swimming pool by their nature require more management and maintenance than an ornamental garden, even if Ellenborough Park may also have included tennis courts and a bowling green. Secondly, Ellenborough Park was made available to a limited number of dominant owners, whereas the facilities at Broome Park were available to two, later three, different groups of timeshare owners and to paying members of the public. Thirdly, the cost of managing and maintaining Ellenborough Park was shared among the dominant owners, whereas in Broome Park it was at least expected to be undertaken by the servient owners. Additionally, the grant in this case can only be described as a right of "recreation and amusement". It is a recreational right pure and simple (treating sport as part of recreation) whereas in In re Ellenborough Park the Court of Appeal fought shy of describing it in those terms, preferring to identify its essential feature as the provision of a communal garden for townhouses.
His Honour noted that recreational easements had become "widely recognised in the common law world", referring, in particular, to Riley v Penttila and the City Developments case. He continued, at [79]-[80]: Against the broad recognition of recreational rights over a leisure complex as easements are two main factors. First, if annexed to a freehold, they are indeterminate in length, whereas a timeshare structure is frequently set up for a limited number of years. Furthermore the rights conferred are likely to burden the servient land long after the leisure complex in question has outlived its natural life. There is at present no statutory basis for the modification or discharge of easements, such as exists in relation to restrictive covenants, although the Law Commission's 2011 report proposes that there should be. Secondly, the use of easements as the conveyancing vehicle for the conferring of recreational rights for timeshare owners upon an adjacent leisure complex is hardly ideal, by comparison for example with a leasehold structure of the type used in this case for the BPOC timeshare owners. Although obligations to share the cost of management, maintenance, repair and renewal may be attached as conditions for the enjoyment of an easement (as they were in In re Ellenborough Park) there is no way in which enforceable obligations of that kind may be imposed upon the servient owners so that the burden of them runs with the servient tenement, in the same way that the burden of positive covenants may be made to run with a leasehold reversion.
Nevertheless, his Honour stated, at [81]: In my view this court should affirm the lead given by the principled analysis of the Court of Appeal in In re Ellenborough Park [1956] Ch 131, by a clear statement that the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions which I have described. Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied. Whether the other conditions, and in particular the components of the fourth condition, will be satisfied will be a question of fact in each case. Whatever may have been the attitude in the past to "mere recreation or amusement", recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit.
At around the same time, the Victorian Court of Appeal considered a claim for recognition of another type of recreational easement in Laming v Jennings [2018] VSCA 335. The case concerned an area of land forming part of a larger block at Ferney Hill, a suburb on the eastern outskirts of Melbourne. The block in question had previously been owned by the Australian Communications Commission (later Telstra Corporation Limited). It was vacant and part of it was, or had previously been, bushland. It now belonged to Mr Laming.
Mr Jennings owned and lived in a suburban property which adjoined the block in question. Over many years, he and his family, and before that, the previous owner of his land, had used a large area of the block consisting of 1400 m² as their backyard. They had created and maintained a lawn, removed and planted trees, erected a clothesline and placed garden furniture there. Mr Jennings claimed prescriptive rights over the land as a result of this period of use.
The primary claim was a claim to ownership based on adverse possession. But on the findings of the County Court Judge, neither Mr Jennings nor his predecessors in title had ever held complete possession. Furthermore, they had acknowledged a lack of ownership by making offers to Telstra to buy the land.
The claim for an easement by prescription, however, succeeded. The County Court Judge made a declaration that Mr Jennings was entitled to an easement "for the purposes of recreation". The declaration went on to specify that the permitted usage "includes burning green waste and storing domestic firewood".
On appeal by Mr Laming, it was contended that the easement so declared failed to satisfy the fourth of Cheshire's conditions. The appeal succeeded on another ground (knowledge of the use made of the land by Mr Jennings, and his predecessor in title, could not be attributed to Telstra, preventing any easement arising by prescription) but the contention was nevertheless addressed, in obiter, by the Court.
The contention was put on two grounds which the Court dealt with separately. One, based on the first cognate question in Re Ellenborough Park, was that the rights declared were too wide and uncertain to merit recognition. The other, based on the second cognate question, was that the easement was "inconsistent with the possessory rights of [Mr Laming] and…unworkable".
For the purposes of dealing with the parties' arguments, the Court reviewed the case law. Two cases, Re Ellenborough Park and Mulvaney, were said to "stand for the proposition that use of a communal garden for recreational and amenity purposes or use of a common area for recreation may be the subject of a valid easement" (at [128]). But the Court pointed out that the servient land in those cases had a "common or communal character". That was not the way the case for Mr Jennings had been put and the easement, as declared, could not be sustained on that basis (at [143]-[145]).
Before embarking on the arguments, the Court first determined, as a matter of interpretation, the scope of the rights which had been declared. The Court noted that, although in effect the putative servient area had been used as a backyard, that language had not been used in the declaration. Instead, the term "recreation" had been used. The particular instances referred to in the declaration of burning green waste and storing domestic firewood was seen by the Court as not being subsumed within "recreation" and effectively amounting to specific individual grants (at [125]-[126]).
It was therefore necessary to determine whether an individual (or as the Court termed it, a unilateral) right of "recreation" was permissible. The Court commented: But even if 'recreation' identifies sufficiently what it is that the holder of the present easement is entitled to do, falling short of use as a backyard, it is not at all clear how that entitlement relates to the rights of the applicant as owner. As the matter proceeded before us, counsel dealt with hypothetical questions about potential areas of doubt and dispute in the enjoyment of the granted easement. The scope for debate about the respective rights of the parties in various circumstances was starkly illustrated. For example, who would have priority if both owners wished to hold a party on the disputed land? Who may decide what is planted or stored on, or removed from, the land? Can either party camp on the land?
The Court observed, at [154], that disagreements and uncertainty of a similar kind could arise in the context of a right of recreation in common. The Court stated (at [154]-[155]): It is true that there may also be scope for disagreements and uncertainty between an owner of land and the holders of easements for communal recreation on that land. However, the potential for such issues to arise is significantly limited by the circumstance that the communal nature of the space as one for recreation is intrinsic to its essential character. That provides an important starting point for deciding any dispute between the owner and common holders of the right, and identifies the essential restriction on the owner. It therefore helps to define the easement itself, and the extent to which it limits the rights of the registered proprietor of the land. In the case of a unilateral easement for recreation, that is not the case. There, the owner is not required to ensure that the land remains imprinted with the character of a communal recreational space, but is entitled to use it for myriad non-recreational purposes. That entitlement may give rise to all manner of issues about the scope of the easement. On this aspect of the case, the easement [fails] because the rights of unilateral recreation over private land that otherwise lacks any communal aspect are too uncertain and productive of disputation. In the present case, there was no context that could render the easement sufficiently concrete, especially given that the primary claim was an assertion of possessory title. Accordingly, the uncertainty argument succeeded.
As to whether the easement amounted to a right to possession, the argument for Mr Laming relied on Copeland v Greenhalf and Harada. The Court accepted that a purported right which amounted, in effect, to a claim for possession of the servient tenement was not a proper subject matter of an easement, but stated that the case law revealed a "very uncertain line" between what is permissible and what encroaches too far. The Court's conclusion was (at [170], citations omitted): Had we found that the easement was sufficiently certain to be recognised at law, we would not have been persuaded that the easement, properly construed, confers exclusive or joint possession or control of the disputed land on the dominant owner. On that assumption as to certainty, the enjoyment that is conferred on the dominant owner would not be to the exclusion of the servient owner and would not be inconsistent with the servient owner's possessory rights. The right conferred on the dominant owner to store firewood on the land may limit the servient owner's ability to access certain parts of the servient tenement, but does not constitute an undue interference with his possessory rights, as the authorities make clear. Similarly, again assuming the easement is otherwise valid, the fact that the servient owner cannot use the land for purposes inimical to the dominant owner's enjoyment of the easement would be no more than a recognition of the impact of the easement on the owner's rights otherwise subsisting.
The Court however added that if the easement had been expressed in terms of use as a "backyard" it would not only have been too wide, it would have impermissibly conferred a right of possession over the disputed land and would thus have been invalid.
Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] 103 NSWLR 834 was a decision of the Court of Appeal on an easement which would have allowed the dominant owner to wall off part of the servient land. The case concerned a block of vacant land owned by the local council adjacent to a stormwater drainage channel at Strathfield at inner western Sydney. The land lay between the drainage channel and a larger block of land used for industrial purposes. The owner of that land built a waste recycling plant on the land which encroached onto the council's land. The owner also built a wall (referred to as the "Acoustic Enclosure") enclosing the plant. The wall ran through the middle of the council's land, enclosing more than half of it with the plant. When the problem came to light, the owner sought the grant of a compulsory easement over the land. The easement proposed would permit the dominant owner to "construct, maintain and enjoy" the Acoustic Enclosure by obtaining support from the existing structures associated with the plant.
One of the points taken by the council was that the proposed easement could not be granted because it did not satisfy Cheshire's fourth condition. This contention was upheld by the trial judge in the Land and Environment Court, and by the Court of Appeal. The leading judgment was given by Basten JA. His Honour accepted the conclusion by the trial judge that for practical purposes the right sought would effectively exclude the council from exercising its ownership rights over the proposed servient area. Under the terms of the proposed easement, the council would remain entitled to enter the area for the purposes of inspection, but this would be, for practical purposes, pointless.
His Honour referred to the test stated by Judge Baker in the London and Blenheim Estates case and noted that it had been adopted in the Clos Farming case, the East Fremantle Shopping Centre case, and Stolyar. He continued: In the present case, the appellants had enclosed an area constituting 68% of the Council's lot, in a manner which practically excluded the Council from any use of the enclosed land. As a matter of degree, the appellants' claim could not qualify as an easement, but as the appropriation of a large part of the Council's lot for the appellants' commercial benefit. The appellants contended that there was no major restriction on the Council's use of the residue of its lot. However, once it is accepted that the bulk of the lot was no longer available to the Council for a permissible use, there is no need to determine whether the residue was also unusable in practical terms, or was restricted in its availability, or its continued usage was unaffected. The extent to which the use of the residue of the Council's land was restricted depended upon the available purposes. It was true that when the whole of the area was available to the Council, prior to the construction of a hardstand and the acoustic wall, which occurred between 2003 and 2010, the land had been left in its natural state. That was consistent with the uses permitted under the deed governing use of the reserve of which the lot was a part. The residue could continue in that state, but the effect in providing an area for recreation, or enhancing the amenity of recreation lands on the other side of the drainage channel, was substantially reduced.
Finally, there is Barter. I have already referred to the facts and the decision of Richmond J that, as a matter of interpretation of the grant, the servient owner had a right to share the usage of the servient land with the dominant owners. As in the present case, counsel for the servient owner presented an alternative argument that, if the grant did not provide for shared usage, it fell foul of the ouster principle. But given his conclusion on the interpretation issue, Richmond J did not need to consider this question.
Argument: Counsel for the Petries submitted that if (as I have concluded) the Dicksons' right to use the servient area for gardening and landscaping under cl 1 of the grant was not limited by some notion of shared use, it was effectively indistinguishable from ownership and was for that reason invalid. And, in counsel's submission, if (again, as I have concluded) the use of the shed for storage purposes did not involve an element of sharing, the same was so, for the right to build, maintain and use the shed under cll 2 and 4.
Counsel for the Dicksons resisted these submissions. Counsel acknowledged that, if there were no element of sharing, the exercise, by the Dicksons, of their gardening and landscaping rights under cl 1 would greatly limit the scope of what the Petries would be able to do with the servient area. But, in counsel's submission, the limitation was not total, or practically total. Counsel submitted that the Petries would still be entitled to use the garden area, as developed by the Dicksons, for recreation and enjoyment. The shed could be used, as suggested in Stolyar, as the site for a satellite dish or rooftop solar cells. In counsel's submission, the Petries remained in occupation and control of the servient area despite the terms of the grant.
Counsel for the Dicksons also relied on the point (made in Wright v Macadam in the passage quoted at [132] above; see also Lord Scott's comments in Moncrieff quoted at [204] above) that, to a greater or lesser extent, all easements tend to restrict the use of the servient land which they affect. This includes well accepted easements such as rights of way. Counsel submitted in this regard that the easement did not amount to a substantial interference with the Petries' ownership and enjoyment of Lot 2 as a whole. Counsel likened the case to Stolyar, where Darke J emphasised that the easement in question left the main features of the property (a substantial area of house and garden, with a water frontage) unaffected.
The submissions from counsel for the parties thus focused the second cognate question arising under the fourth condition of validity identified in Re Ellenborough Park. In the rest of this judgment, I will use the more recent terminology of the "ouster principle". It must however be borne in mind that the ultimate question remains whether the subject easement is capable of forming the subject matter of a grant. The terms of the ouster principle are not fixed by statute and there may be overlap with the other cognate questions. The same may be said of the fourth condition itself.
The application of the ouster principle is complicated in the present case because the servient area represents only part of the servient lot, Lot 2. I propose to discuss the authorities, and address counsel's submissions, in two stages. First, I will consider whether the degree of interference with the servient owners' rights would be such as to bring the ouster principle into play, considered by reference to the servient area alone. Then, I will consider the application of the ouster principle in the context of the servient lot as a whole.
Effect on servient area: It is convenient to deal first with the easement so far as it purports to confer a right to use the servient area for gardening, including the planting of trees and shrubs and the undertaking of paving and landscaping works. In dealing with the case law, I will begin with four preliminary points.
First, the list of permissible easements may not be closed, but the principle in Dyce v Hay otherwise has no bearing on this case. The grant in the present case is novel only in the sense that no-one, it seems, has previously tried to create an easement of the present type. The comments of Bryson J about "novelty" in Clos Farming, quoted at [185] above, are directly in point.
Second, I think caution is required in reasoning by analogy from the cases about easements for parking. Such an easement may, for practical purposes, severely limit the use which can be made of the surface of the land. If that part of the land must be kept aside to enable the dominant owner to park cars on it, and the dominant owner is entitled to park cars to the full extent of the space available, little if any practical use can be made of the surface. But that still leaves the use of the subsurface area and the air space above the surface for other uses. This feature of an easement for parking was strongly brought out in Jea Holdings. It can also be seen in Stolyar, where Darke J pointed out that the right to park cars in the garage did not prevent the use of the upper parts of the garage for other purposes. The same point applies to rights of way: cf Lord Scott's comments in Moncrieff quoted at [207] above.
An easement which allows the dominant owner to establish and maintain a garden on the servient land stands in quite a different position. Obviously, the servient land cannot be roofed over and the air space above it developed. And, while in theory, some exploitation of the area below the surface would remain possible, that would be limited by the need to ensure that there was no interference with the drainage and root structure of the plants being grown.
In some cases, the scope of a gardening easement might be limited in practice by the nature of the servient land (for instance, if the servient land was a city rooftop where soil had to be brought in and only certain types of vegetation could be grown). But that is not this case. The dominant owners here have complete discretion as to the vegetation to be grown (and the landscaping to be carried out). For practical purposes, it is difficult to see how that would allow any practical development or use of the airspace above, or the subsurface beneath, the servient area.
The third preliminary point is that many of the cases involve a facility constructed by the servient owner on the servient land which is then extended by easement to permit the facility to be used by the dominant owner, in common with the servient owner and with other dominant owners. Facilities of this type include carparks (London and Blenheim Estates, East Fremantle Shopping Centre and Jea Holdings) and the leisure complex in Regency Villas. In such cases, for as long as the servient owners wish to continue to operate the facility for their own purposes, there is no question of interfering with their rights to develop the land. And, as already noted, the rights granted to the dominant owner are limited by the requirement that those rights must be exercised in common with others. In Jea Holdings, Basten JA expressly stated that the common nature of the right granted was sufficient to ensure that the ouster principle was not engaged: see the passage quoted at [226] above.
The pleasure ground in Re Ellenborough Park can, I think, be seen as another "facility" of this type. It was to be established and maintained by the servient owners. They were to select the plants to be grown and the landscaping to be undertaken (and were to retain ownership of any produce of the garden). In fact, it appears that at some later point responsibility for operating the pleasure ground was assumed by what was, in effect, a committee of the dominant owners, and financed by them. But Evershed MR was careful to point out that no party had suggested that this made any difference: at 169. It should also be noted that one of the features of the leisure complex established and maintained by the resort owner in Regency Villas was an "Italianate garden": at 557. Similarly, the owner of the resort in the City Developments case seems to have been responsible for maintaining the lake foreshore as a recreation area and an access point for the lake itself.
Similar observations apply to the communal garden in Mulvaney. It is clear from the Court's decision about the access way that, although consultation might in practice be required with the dominant owners, decisions about the layout of the garden were ultimately up to the servient owners: see at [199] above.
In Regency Villas, Lord Briggs acknowledged the practical problems which may arise if the arrangement for others to use a facility on the owner's land is structured by way of easement rather than by way of lease. In particular, the facility may become obsolete, and there is no practical way of compelling the servient owner (or the dominant owners) to pay for its upkeep. In my respectful view, the dissent by Lord Carnwath shows that such problems had not satisfactorily been overcome on the facts of that case.
A practical answer may lie, in some cases, in the suggestion by Judge Baker in the London and Blenheim Estates case that, as a matter of implication, the easement in that case would last only as long as the servient owner continued to maintain and operate the car parking facilities on the servient land. If that goes too far, there may at least be an implication available that, if the facility became obsolete or fell into disuse, the easement would end; the dominant owners would not be entitled to build a facility of the relevant type on the servient land themselves (compare the interpretation which Darke J placed on the easement in Stolyar, which prevented the dominant owners from doing anything more than maintaining the existing garage). Another answer, not dependent upon implication, would be that, if the facility became obsolete or fell into disuse, the easement could be removed for obsolescence under CA s 89.
In a case where Judge Baker's interpretation applied, the servient owner could simply shut down the facility at any time, thus bringing the easement to an end, and use the land for something else. It is hard to see how the ouster principle would have any application in such circumstances. In the alternatives which I have suggested, the ouster principle would still come into play during the operational lifetime of the facility. But in situations where a grant only operates for the operational lifetime of a facility on the servient land, I see no reason why this should not be taken into account when determining the incursion into the servient owner's rights for the purpose of the ouster principle. In other words, if the servient owner's rights are only being affected for a finite time, the grant may receive more favourable treatment under the ouster principle than a perpetual one.
It is, however, unnecessary to develop these ideas any further for present purposes. This is not a case where a servient owner has built a facility, in the form of a garden, and made it available for use by others. Here, the servient owner has made the servient land available for the dominant owners to build their own garden (cf Laming at [154], quoted at [258] above). There is no question of the dominant owners being limited by a need to exercise their rights in common with others.
The fourth preliminary point concerns "recreational" easements. The approach to such easements in Re Ellenborough Park was cautious. The Court went out of its way to distinguish the right in question in that case from an ius spatiandi. Yet the appeal judgment, City Developments, expressly stated that an easement giving the dominant owner an ius spatiandi was valid (although the use of the term in the two cases may have been different). It is now clearly established in the United Kingdom, following the decision of the Supreme Court in Regency Villas, that there is nothing objectionable about an easement for "recreational" purposes. But it is not necessary in this case to consider the state of Australian authority on that question. For reasons earlier in the judgment, I do not think that the easement for gardening is "recreational" in the relevant sense.
These preliminary points are sufficient to distinguish nearly all of the cases to which I was referred. What remains are two cases involving the grant of a unilateral right, not enjoyed in common with others, to use servient land for gardening, or something comparable. Those two cases are Ryan v Sutherland and Laming.
In Riley v Penttila, Gillard J appears to have accepted that the residential lot owners' rights to use the reserve included rights to undertake their own works on it, such as the establishment of the tennis court and the extension of lot 35's private garden. But his Honour only considered the fourth condition of validity as it related to the first cognate question (uncertainty). He did not address, at least directly, the consequences, for the application of the ouster principle, of recognising an easement which allowed the lot owners to undertake their own works on the reserve land.
For practical purposes, there may not have been any reason to do so. Substantial parts of the reserve were unused (or at least undeveloped). Indeed, no rules for the operation of the reserve had been promulgated and the owner of the reserve land (the original vendor) was not even a party to the proceedings. No conflict between development by individual lot owners and development for common purposes had arisen. Had it done so, it might well have been resolved along the lines of Mulvaney, with the lot owners being entitled to undertake their own gardening works, but subject to those works being modified or replaced by works undertaken in the common interest.
In Ryan v Sutherland, the reasoning on the ouster principle focused on the grant of rights for the "establishment of or erection of facilities for the benefit of the dominant tenement". The question which has been addressed before me, namely whether the grant of rights to establish and maintain a garden is inconsistent with rights of ownership, does not appear to have been specifically considered. Furthermore, the grant in that case made no mention of paving or landscaping, but was confined to plants and gardens.
The right under consideration in Laming was a right to use the servient area for "recreation" (together with two other activities, namely burning off and storage of domestic firewood, which would presumably not have extended over the whole of the servient area claimed). The interference with the owner's rights involved in a grant giving an exclusive right to plant the area with trees and shrubs, and pave and landscape it, was not under consideration.
In Laming, the Victorian Court of Appeal did express the view that if (contrary to the Court's concluded view) the grant in question was not too uncertain, then it would not infringe the ouster principle. This was expressly an obiter view based on an assumption. The easement in question was one for "recreation", which, as I have already said, differs from the easement in the present case. Furthermore, the assumption made by the Court left it unclear whose wishes would prevail in the event of conflict on practical issues such as those identified by the Court in the passage quoted at [257] above. And the Court went on to say that an easement for use "as a back yard" would fall foul of the principle.
For these reasons, I do not consider any of Riley v Penttila, Ryan v Sutherland or Laming to be clear authority authorising an easement of the present type. I therefore turn to the consider the question of ouster by reference to first principles.
Lord Scott's opinion in Moncrieff has been described as adopting a more favourable attitude towards the recognition of servitudes or easements. That statement requires some qualification.
The view of the law which his Lordship was propounding had two elements. One was that the ouster principle should be confined to cases where the purported easement deprived the owner of the servient land of ownership or control of the land, rather than merely restricting the use which might be practically made of the land. If accepted, this would indeed limit the reach of the ouster principle and thereby expand the scope for the grant of easements. But Lord Scott also propounded a second proposition, namely that for the purposes of applying the ouster principle, reference should be made only to the servient area, rather than the lot of which it formed part, taken as a whole. Acceptance of that proposition, on its own, would make it easier to rely on the ouster principle in a case where the servient area formed only part of the servient lot.
For the moment, I am considering the first proposition. I agree with Windeyer AJ in Jea Holdings in thinking that the formulation of the ouster principle in Clos Farming is not necessarily consistent with Lord Scott's proposed formulation of the principle in Moncrieff (and with the approach of Brownie J in Evanel). The Clos Farming formulation adopts a practical test which looks to the extent to which the owner of land may actually use it. It is not a test which fastens only on legal concepts of ownership, possession or control.
The purported easement in the Clos Farming case was held to fail the second condition of validity (accommodation of the dominant tenement) as well as the fourth (because of the ouster principle). But I do not think it necessary to go into whether, strictly speaking, the decision so far as it concerned the ouster principle was obiter. The decision on the ouster principle was a considered one by the Court of Appeal, upholding a comprehensive judgment at first instance, and I agree with Windeyer AJ that later decisions of the Court have not cast any doubt on that decision. I should apply it.
But Clos Farming does not merely define, in general terms, the test for application of the ouster principle. I think the case, in its facts, is, out of all of the cases to which I have referred, the closest to the present. As in Clos Farming, the servient owners in the present case can enjoy the servient area, but only in a passive way, and only by keeping out of the way of the dominant owners. The servient owners are, in practice, deprived of any control over how that area may be used or developed. Their ownership of it is effectively sterile and nominal.
In these circumstances, I consider myself bound by the decision in the Clos Farming case to conclude that the gardening easement in the present case infringes the ouster principle, considered by reference to the servient area. Even if I thought that Laming or Ryan v Sutherland were authority to the contrary, Court of Appeal authority, binding on me, would have to prevail.
In Moncrieff, Lord Scott asked why owners should not be able to create any servitudes they like. The answer is provided by Bryson J's explanation in Clos Farming. Owners may indeed create such entitlements as they wish by way of personal licence, as a matter of contract. But the law will not permit them, as a matter of public policy, to attach such entitlements to land in perpetuity. The public policy is designed to secure freedom of later owners to use and develop the land to its best advantage.
The entitlement to build the shed may be dealt with more briefly. In the first place, a distinction should be noted between the right to build the shed in the present case and the rights concerning the garage in Stolyar. In the latter case, the right was limited to the maintenance and repair of a building already on the site, and did not extend to the construction of a new garage. Furthermore, the easement in Stolyar was drafted in such a way as to make it clear that the rights concerning the garage were ancillary to the right to park.
In the present case, the purported easement is worded differently. It is expressed in terms of a right to construct the building and then to use it for specified purposes, rather than a right to use the land itself for the defined purposes and, to that end, to build a building.
Nearly all easements include an ancillary right to undertake building works on the servient land if that is reasonably necessary for the enjoyment of the easement. Thus, for instance, dominant owners having the benefit of a right of way may, at their own expense, lay down a pavement: Bland v Levi [2000] NSWSC 161 at [22]. Often such ancillary rights are express, but even if not express, a right to undertake such works is usually implicit in the grant: see Westfield at 535 ([23]).
In some cases, the right to undertake ancillary works might extend to the construction of habitable structures. An example of this is a right to use land for pasturage, which might allow, in high or remote places, for the construction of huts for shepherds to shelter in: see Moncrieff at [23], per Lord Hope of Craighead. But a free-standing easement which gives the dominant owner the right to construct a building for themselves on the servient area is quite another thing.
The limitations on currently recognised forms of easement are, in my view, instructive. CA schedule 8 now recognises a standard "easement for overhang" to enable an overhanging structure to remain in an adjoining airspace (Part 10) and a standard easement to permit encroaching structures to remain on adjoining land (Part 13). But the rights created by these easements are not extensive. In each case, the easement is limited to an overhang or encroachment which existed when the easement was created and only extends to the space occupied by that existing overhang or encroachment. Moreover, the servient owner may insist upon the easement being extinguished if the structure in question is removed.
Counsel for the Dicksons questioned the authority of the decision in Tileska, and, in particular, Waddell CJ's statement that that the right to build over the land could not be regarded as an easement because it gave exclusive occupation to the dominant owner. Counsel suggested this was inconsistent with a right, recognised in other cases, "to build over an easement".
I do not accept counsel's criticism of the decision in Tileska. It falls squarely within the line of authority which begins with Reilly v Booth and includes Bursill. The point being made by Waddell CJ was that by constructing a building over the laneway, the adjoining proprietor would, in effect, be appropriating the airspace. The fact that the laneway could continue to be used for access did not alter this fact.
It is true that in the present case the shed, once built, can only be used by the dominant owner for storage (and laundry) purposes. But for reasons given earlier, usage for those purposes effectively prevents any other use of the interior of the building. The case is different from Stolyar, where, in effect, only a part of the garage space was the subject of the easement, leaving the servient owners to use the rest of the space, and to extend the garage for their own purposes.
The servient owner, of course, retains ownership of the subsurface area and the airspace above the shed, but it is not easy to see how, in practice, those areas could be exploited, especially given the limitations imposed by the overarching grant for gardening and landscaping (it is not necessary to go into whether, and to what extent, that grant would permit the dominant owners to use the structure of the shed itself to grow vegetation or support landscaping works). In my view, any opportunity to install solar panels on the surface of the roof, during the lifetime of the building, is insubstantial in the scheme of things.
Effect on Lot 2 as a whole: Lord Scott's contention that the ouster principle should be applied by reference to the servient land alone (see [206] above) has not, at least so far, been followed in this State. In the most recent case in which the point arose, Stolyar, the Court addressed the effect of the easement in question on the servient lot as a whole, although, whether it was necessary, or sufficient, to do so was not formally addressed.
On the other hand, authority in this State does not support the converse proposition, that the ouster principle is to be applied by reference to the whole of the servient lot without specific consideration of the effect on the servient area. The Court of Appeal in Jea Holdings expressly stated that the effect of the restriction on the servient area is a relevant factor which may in some cases be decisive (see [224] above).
In Ryan v Sutherland, the servient area was said to be only a "small part" of the servient lot but the judgment does not contain any further description. I have already pointed out that the effect of the gardening grant does not appear to have received separate consideration, and that in Jea Holdings, Windeyer AJ considered that Black J's reasoning on this issue paralleled the approach of Brownie J in Evanel which was inconsistent with that taken by the Court of Appeal in Clos Farming.
In Stolyar, the proportion of the surface area of the Stolyars' lot which was taken up by the servient area cannot be calculated precisely from the judgment, but from the diagram reproduced at [227] above it would appear to have been small. Moreover, the effective exclusion of the servient owners from the servient area was not total.
In both Clos Farming and Aussie Skips, the servient area did not extend over the whole of the servient lot, but the exclusion of the servient owners from the servient area was effectively total and the ouster principle applied. In Clos Farming, Santow JA described the servient area as a "very significant portion" of the servient lot, and, in Aussie Skips, Basten JA described the grant which was sought as an "appropriation of a large part" of the servient lot. In Clos Farming, however, the servient area was more than 80% of the surface area of the servient lot as a whole, and, in Aussie Skips, it was almost 70%.
In Clos Farming the servient, agricultural, portion of the lot in question was not contiguous with the other portion of the lot. But the unaffected portion was still large enough to use for residential purposes. It would have been difficult to argue that the inability to use the servient portion for agricultural purposes made any great difference to the use and enjoyment of the residential portion. Nor was there any enquiry into the relative market value of the servient portion compared with the residential portion. The residential portion may have been more valuable.
In the present case, the servient area accounts for 12% of the surface area of Lot 2 as a whole. But for reasons I have given, the effective exclusion of the servient owners from the area, including the airspace above it and the subsurface below, is virtually total. In effect, the easement cuts off the garden area in the tail of Lot 2 and gives occupation of it to Lot 1. As the construction of the shed shows, the shape and dimensions of the area are such as to allow for the construction of a substantial, and potentially habitable, building. The land is located in a suburb where property is highly sought-after for residential purposes. In my view, the effective loss of control over the area has a significant impact on the amenity of Lot 2 as a whole. Presumably, it would have a similar degree of impact on the lot's value.
There is no authority which requires the servient area to exceed 50% (or any other percentage) of the servient lot as a whole. I see no reason in principle why there should be. The public policy behind the ouster principle would not justify any such restriction: it is concerned with maximising the use and value of land generally.
In this context, Lord Scott's point that an easement cannot be valid when initially granted over part of a large area but become invalid if the servient land is subdivided off is difficult to refute. In saying this, I do not suggest that the point turns on whether formal subdivision is currently, or may foreseeably be, available. Part of a parcel of land may be exploited, for instance by way of lease or licence, without necessarily undertaking a formal subdivision.
In my view, the easement amounts to the effective appropriation of a substantial piece of land belonging to the servient owners, and this is sufficient to invalidate it under the ouster principle. It is not necessary to consider the question of partial validity.

Petrie v Dickson

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