Court of Appeal (WA)|2001-10-10|Before: Mr J, Dr J, Wallwork J, Steytler J

Shean Pty Ltd v The Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 & Anor [2001] WASCA 311 (10 October 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHEAN PTY LTD -v- THE OWNERS OF CORINNE COURT 290 STIRLING STREET, PERTH STRATA PLAN 12821 & ANOR [2001] WASCA 311

THE OWNERS OF CORINNE COURT 290 STIRLING STREET, PERTH STRATA PLAN 12821

Easements - Right of way - Used for purpose of accessing parking lot on land adjacent to dominant tenement but serving dominant tenement - Whether being used for the proper enjoyment of dominant tenement - Parking lot not in existence at time of creation of easement - Whether use contemplated by deed of easement

Appellant (First Defendant) : Mr J A Chaney & Ms B Longfield-Turner

C Hunton Ltd v Swire [1969] NZLR 232

Callard v Beeney [1930] 1 KB 353

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

Della-Vedova v State Energy Commission of WA (1990) 2 WAR 561

Driscoll v Church Commissioners for England [1957] 1 QB 330

Farrow Finance Company Ltd (in liq) v Farrow Properties Pty Ltd (in liq) [1999] 1 VR 584

Frazer v Wakjer [1967] 1 AC 569

Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624

Greenwood v Burrows (1992) V Conv R 54-444

Grinskis v Lahood [1971] NZLR 502

Jelbert v Davis [1968] 1 WLR 589

Kort Pty Ltd v Shaw [1983] WAR 113

Lock v Abercester Ltd [1939] Ch 861

Newcomen v Coulsen (1877) 5 Ch D 133

Owners of Kintail v Camm, unreported, SCt of WA; Library No 950009; 17 January 1995

Pieper v Edwards [1982] 1 NSWLR 336

Re Ghey & Galton's Application [1957] 1 QB 650

Re Truman, Hanbury, Buxton & Co Ltd's Application [1956] 2 QB 261

Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163

Southern Eastern Railway Co v Cooper [1924] 1 Ch 211

White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113

1 WALLWORK J: I agree with the reasons for judgment and with the conclusions of Steytler J. There is nothing I wish to add.

2 STEYTLER J: The appellant is the owner of two adjacent pieces of land. The first, to which I shall refer as "Lot 19", is on the corner of Bulwer and Stirling Streets in Perth. The second, to which I shall refer as "Lot 20", fronts onto Bulwer Street and is adjacent to, but extends slightly further north than, Lot 19's eastern boundary. The first respondent is the owner of land, to which I shall refer as "Lot 18", which fronts onto Stirling Street and is adjacent to Lot 19's northern boundary. It is also adjacent to Lot 20's northern boundary and to so much of Lot 20's western boundary as extends past Lot 19's northern boundary.

3 The owner or owners for the time being of Lot 19 were, in 1985, granted an easement in the form of a right of carriageway over part of Lot 18. These proceedings arose when the first respondent applied, in mid-1999, for an order extinguishing the easement. The trial Judge dismissed that application but made a declaration to the effect that the easement "does not permit vehicles to use the right of way as a means of obtaining access to or as a means of moving to and from any parking area established on the land known or formerly known as Lot 20 ...".

4 The appellant has appealed against the trial Judge's order by which the declaration was made and the first respondent has cross-appealed against the order dismissing the application for an order extinguishing the easement. Because the cross-appeal has since been discontinued, it is necessary only to consider the appeal.

5 Before turning to the grounds of appeal I should place them in context by saying something about the background to the creation of the easement and about events which have since occurred.

6 In mid-1985 Mr Graham Norton and his sister, Mrs Corinne Kobelke, were the owners of Lot 19. Their family company, Premier Nominees Pty Ltd, owned Lots 18 and 20. Mr Norton and Mrs Kobelke consequently controlled all three pieces of land.

7 There was then, on Lot 19, a single-storey office building. It incorporated a suspended concrete slab as a means of providing for the addition of a second storey in due course. Mr Norton said in evidence that a second storey had not been constructed from the outset because its construction would only be approved if sufficient car parking space could be provided for the occupants of the building. The tenants of the office building had, until 1983, been persons involved in the film industry but,

between 1983 and 1985, those tenants progressively relocated and were replaced by other commercial tenants.

8 There was, on Lot 20, a house and a very large shed. The shed was at the back of the property. The house was leased to two tenants. One was a florist and the other was the owner of a business known as "Great House and Land Giveaway". The shed and the house were used by the tenants of Lot 20 for the storage of dried flowers and advertising material. The shed was also used for storage purposes by the tenants of Lot 19, as it had been for many years. Indeed, the shed's sliding doors opened onto Lot 19.

9 That brings me to the right of carriageway. There was, along, but inside, the eastern boundary of Lot 19, a laneway ("the laneway"). Vehicles, including trucks, could access it from Bulwer Street and then travel along it until they arrived at the double doors of the shed. These were situated along the northern part of the boundary between Lots 19 and 20. The laneway, and hence the doors, could also be accessed from Lot 18. There was, in mid-1985 (as there still is) a block of flats on Lot 18. There was also a carriageway ("the carriageway") which ran from Stirling Street along, but inside, the southern boundary of Lot 18 (and therefore immediately to the north of Lot 19), which terminated on the northern part of Lot 20's western boundary. Vehicles could use the carriageway in order to enter the northern part of the laneway and, by that means, obtain access to the shed. Carriers making deliveries to or collecting items from the shed often entered the laneway from Bulwer Street, completed their business at the shed, drove from there onto the carriageway, and then exited it at Lot 18's Stirling Street entrance. Other vehicles entered the carriageway from Stirling Street, drove onto the laneway on Lot 19, completed their business at the shed, and then left Lot 19 by means of its Bulwer Street entrance.

10 The office block on Lot 19 could then, and can still, be accessed at two points. The first is its front entrance which is located on the corner of Bulwer and Stirling Streets. The second is its back entrance which is located at the north eastern corner of the building. The back entrance led onto the laneway.

11 In 1985 Mr Norton and Mrs Kobelke decided to convert Lot 18 to a series of strata titles and then to sell each of the existing flats (known as "Corinne Court") separately. It seems that they appreciated that, upon registration of a strata plan in respect of Lot 18 pursuant to the Strata Titles Act 1985, the owners of the various flats comprising Corinne Court would be able to exercise dominion over the whole of the common property, including the carriageway, part of which was then also the principal means of access to Corinne Court. Mr Norton said in evidence that he and Mrs Kobelke considered it important that the occupiers of Lots 19 and 20 (and they had in mind that these properties, too, would ultimately be sold) should continue to have access to Stirling Street. They sought legal advice. This appears to have led to a decision to convert the carriageway on Lot 18 to a formal easement in favour of the registered proprietor or proprietors, from time to time, of Lot 19.

12 On 3 July 1985 various dealings were lodged for registration at the Land Titles Office. One of these was an application for registration of strata plan 12821 in respect of Lot 18. Another was a grant of easement by the first respondent who had, by then, become the registered proprietor of Lot 18. This was effected by transfer number D059531, which recorded that:

"A right of carriageway over the portion of the common property on strata plan 12821 coloured brown on the map in Transfer D59531 [being the area of the carriageway] is granted to the proprietor or proprietors for the time being of the within land as set out in the said Transfer."

13 The transfer records, on the following page, that the first respondent certified, "with relation to the undermentioned instrument", that "the Resolution was duly passed and that all necessary consents were given." The "Resolution" referred to was, no doubt, one to grant the easement and the "undermentioned instrument" is described, in the transfer document, as being "Easement dated 3rd July, 1985 to Premier Nominees Pty Ltd of part of the common property in Strata Plan 12821."

14 The deed of easement which was so described bears registration number D059530. The operative part of that document reads as follows:

"The Grantor [the first respondent] HEREBY TRANSFERS AND GRANTS unto the Grantee [Premier Nominees Pty Ltd] and its successors in title the owners and occupiers for the time being of all that land being ... Lot 19 ... and their respective servants agents invitees and licensees (in common with the Grantee and all others having like right) at all times with or without vehicles of any description and for all purposes connected with the use and enjoyment of those lands and [sic] right to pass and repass over that part of the common property in Strata Plan 12821 delineated on the plan annexed hereto and thereon marked shaded brown."

15 The shaded area on the annexed plan was that which comprised the carriageway.

16 The next matter of importance, so far as is relevant to the appeal, is that, on 25 June 1996, the appellant acquired the title to Lots 19 and 20 from Premier Nominees Pty Ltd. It did so because it wished to redevelop the land so acquired. The office building on Lot 19, then rented out to some 12 tenants, was substantially run down.

17 In August 1997 the appellant demolished the existing structures on Lot 20 and commenced a major refurbishment of the office building on Lot 19. Lot 20 was, after its structures had been demolished, used as a car park for the purposes of Lot 19. What had been the laneway on Lot 19 was also used as a car park. There was painted onto it markings for a number of car bays. These markings extended on to the western portion of Lot 20. A second group of markings for car bays was painted on to the eastern side of Lot 20 and the two sets of markings (there are 37 car bays in all) were separated by an area through which vehicles could drive in order to access the car bays. The 37 car bays (to which I shall refer as "the car park") can be accessed by the Bulwer Street entrance to Lot 20 or by means of the carriageway on Lot 18.

18 As part of the redevelopment, galvanised iron gates at either end of what had been the laneway were removed. These had previously been closed outside office hours in order to prevent the laneway being used as a thoroughfare by members of the public. There is now no gate which might be used to block access to the car park from Bulwer Street after hours or to block access to the car park from the carriageway after hours.

19 Ms Shelley Middleton has become the owner of a flat in Corinne Court. She swore an affidavit and gave evidence in the proceedings. She said that, from her observation, all of the tenants of Lot 19 enter and leave the car park by means of its Bulwer Street entrance. She said that none appeared to use the carriageway. However, she said, members of the general public use the carriageway as a means of taking a shortcut (on foot) from Stirling Street to Bulwer Street. She said that this is particularly so when the local Perth Glory soccer team plays at the nearby Perth Oval. She said that this pedestrian usage, and the use of the car park by prostitutes, has become a nuisance to the owners of Corinne Court. This, she said, could be ameliorated by the extinguishment of the easement which, she contended, is no longer needed.

20 Mr Michael Frawley, a director of the appellant, also gave evidence. He disputed that pedestrians had become a nuisance. He said that any problem in this respect could, in any event, easily be resolved by the installation of a gate between the carriageway and the car park. He also said that, although the primary access to the car park (and hence to the office building on Lot 19) is by means of the Bulwer Street entrance, he and other tenants of the office building will continue to use the carriageway as a means of leaving the car park and entering Stirling Street because Bulwer Street is a very busy and potentially dangerous road. He said that it is often difficult for traffic wishing to turn in either direction from the car park onto Bulwer Street because visibility is poor.

21 That brings me to the grounds upon which the first respondent sought to have the easement extinguished. Three of them are relevant to the appeal. The first was that there had been "a change in the user of the dominant tenement", after the grant of the easement, "whereby the Easement [is] being utilised by persons other than the dominant tenement". The second was that the amalgamation of Lots 19 and 20 (and these, at the date of the hearing, had either become or were shortly to become amalgamated into a new lot to be known as Lot 100) has made the right of carriageway obsolete "as the right of access by way of ingress and egress to what was formerly Lot 19 is now being effected through the amalgamation of the said lots". The third was that the easement, if not extinguished, will "become by way of continual user by the public at large a public right-of-way".

22 The trial Judge made a number of findings which bear upon these grounds and which are relevant to the appeal.

23 His Honour first turned his attention to the use of the carriageway which had been contemplated at the time of the grant of the easement. He said, in that respect, the following:

"I have already noted that the court will not construe the grant in a way that would enable the easement to be used in a manner that goes beyond the use contemplated at the time of the grant. In the present case ... the evidence, viewed objectively, shows that Corinne Court on Lot 18, which was destined to be the servient tenement, was intended to be rendered attractive for residential purposes. There is no reason to suppose that any burden was to be imposed beyond the liability imposed by the express words of the deed [His Honour was here referring to the deed of easement numbered D 059530]. It is true that prior to 3 July 1985, Mr Norton and his sister were the owners of Lot 18 and, through the agency of their family company Premier Nominees Pty Ltd, were also effectively the owners of Lot 19 and Lot 20. They were giving thought to improving Lots 19 and 20 for commercial purposes, but the fact remains that as at 3 July 1985 their plans had not crystallised. I must also keep steadily in mind that the carriageway on Lot 18, which was destined to become the right of way, was essentially the main approach or entrance to Corinne Court, at least for vehicles, and thus, it seems unlikely that the grantor of the easement had in mind that any excessive use of the right of way would be permitted.

It was open to Premier Nominees Pty Ltd in its role as grantor to arrange for the terms of the easement to be expressed in terms sufficiently wide to embrace activities taking place not only upon Lot 19 as the dominant tenement identified expressly by the grant, but also Lot 20, but it did not do so. The court is left with the language used in the deed and the grant of a right of way in favour of the owners and occupiers of Lot 19 and their successors in title and their respective servants, agents, invitees and licensees to use the right of way for all purposes connected with 'the use and enjoyment of those lands', that is to say, the lands comprising Lot 19.

Prima facie, the grant of easement was intended to facilitate the use and enjoyment of the office premises on Lot 19, but in a limited manner, namely, by continuing to use the Premier Film Centre thoroughfare [His Honour was there referring to the laneway, the office building having been originally known as "the Premier Film Centre"] as a thoroughfare for vehicles and pedestrians to obtain access to the single-storey office block on Lot 19 and the shed on Lot 20. In other words, the grant allowed for a continuance of the existing use whereby vehicles and pedestrians could obtain access to the office premises on Lot 19, either from Stirling Street or Bulwer Street, via pavement crossovers at each point of entry situated close to the premises, and without any allowance for the possibility that either vehicles or pedestrians would enter upon the right of way directly from Lot 20."

24 His Honour went on to say that, if there was any ambiguity in the terms of the grant of the easement itself, the surrounding circumstances, as at the date of the grant, suggested that "the grant should be construed as being intended to facilitate commercial activities taking place upon Lot 19 only as the dominant tenement". He pointed, in this last respect, to the fact that, in 1985, it was physically impossible for vehicles to enter the carriageway from Lot 20 because of the existence of the shed and the presence of a fence along the balance of the boundary between Lots 19 and 20.

"In my view, the language of the deed is consistent with and seems to reflect the circumstances prevailing as at 3 July 1985. The deed of grant in its terms allows for pedestrians to obtain access to the building via the rear entrance and for vehicles to service the office premises on Lot 19 by using the right of way. It seems to me, however, that where, as happens at the present day, vehicles are being attracted to the car park established substantially on Lot 20, albeit having some association with businesses being conducted on Lot 19, a user of the right of way for that purpose exceeds the intended use. The movement of vehicles to and from the car park established substantially on Lot 20 marks a significant departure from what was envisaged by the language of the deed, having regard to the circumstances existing at the time the easement was granted."

26 The trial Judge next expressed the opinion that the use of the carriageway by vehicles moving to or from the parking area substantially on Lot 20 might be found to constitute a nuisance. He said that this might pave the way to an application for a restraining order on the grounds of excessive user. However, he said, no such application had been made. Rather, what had been sought was the extinguishment of the easement pursuant to s 129C of the Transfer of Land Act 1893 ("the Act") and the criteria for the making of an order extinguishing the easement under that section had not been satisfied. His Honour said, in this respect, that he was not satisfied, upon the evidence, that the easement ought to be deemed to have been abandoned or to be obsolete or that the easement did not continue to secure practical benefits for the owner of Lot 19. He referred to the fact that pedestrians having business at the office premises on Lot 19, either because they are tenants or the clients or customers of tenants, are still able and apparently accustomed to approach the rear entrance of the building by making use of the right of way. He also mentioned that service vehicles could approach the rear entrance of the office building on Lot 19 by entering the carriageway from Stirling Street.

27 His Honour next considered whether, in the circumstances of the case, there was a basis for modifying the easement. He said that there were two difficulties in the path of such an order. The first was that it had not been sought. The second was that an order restricting the use of the carriageway to pedestrians might be one which defined the limits of the easement, when properly construed, rather than one which modified it. He said, in this last respect, that if the limits of the easement, properly construed, had been exceeded, there was no need for modification.

28 His Honour then turned to the provisions of s 129C(3)(aa) of the Act which empower the court, on the application of an interested person, to make an order declaring what is the nature and extent of an easement and whether the same is enforceable and, if so, by whom. He said that, while the first respondent had not applied expressly for declaratory relief, the section was apparently intended to allow to the parties another means of resolving their differences and O 18 r 16 of the Rules of the Supreme Court provided that the court might make binding declarations of right whether or not any consequential relief was or could be claimed. His Honour also referred to s 24(7) of the Supreme Court Act 1935. This provides that:

"The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided."

"It is apparent from my earlier observations that, in the circumstances of the present case, I consider that the right of way as defined by the terms of the deed of easement does not extend to vehicles passing or repassing over the right of way in the course of moving to and from the car park established substantially on Lot 20 and that a user of that kind should be regarded as excessive. This issue arose in the context of a justiciable controversy brought before the court by the plaintiff's application for extinguishment as a consequence of which both parties had an opportunity to present evidence and were inevitably obliged to make submissions concerning the meaning and limits of the original grant. Accordingly, I consider that a declaration should be made reflecting the view I have expressed with a view to resolving the controversy.

I will hear the parties as to the precise terms of the order to be made. Subject to further submissions in that regard, there will be a declaration in favour of the plaintiff that the grant of easement the subject of transfer D59531 conferring a right to pass and repass over the designated right of way for all purposes connected with the use and enjoyment of Lot 19 does not permit vehicles to use the right of way as a means of obtaining access to or as a means of moving to and from any parking area established on the land known or formerly known as Lot 20."

30 That brings me, at last, to the grounds of appeal. It is unnecessary to set them out in full. They advance two broad propositions. The first is that the trial Judge erred in concluding that, on its proper construction, the easement does not permit vehicles to use the right of way as a means of obtaining access to or as a means of moving to or from any parking area established on Lot 20. The second is that his Honour erred in making the declaration to which I have referred, no such declaration having been sought by the first respondent and the appellant not having been given any notice of the prospect that it might be made.

31 As to the first of these propositions, it seems to me, with due respect, that it was not open to the trial Judge to have found that the deed of easement, on its proper construction, does not extend to vehicles passing or repassing over the right of way in the course of moving to and from the car park.

32 In my opinion the deed of easement is unambiguous. The grantee and its successors in title and their respective servants, agents, invitees and licensees are given the right "at all times with or without vehicles of any description" to pass and repass over the carriageway "for all purposes connected with the use and enjoyment of ... [Lot 19]". There can be no doubt that the carriageway can be crossed by the persons mentioned "with ... vehicles". The deed of easement says so expressly. Consequently, the issue is whether a crossing for the purpose of parking upon Lot 20 (and nothing turns, for the purposes of the appeal, upon the question whether Lots 19 and 20 have or have not yet been amalgamated in a new lot), or for the purpose of returning to Stirling Street after leaving that part of the car park which is on Lot 20, is a purpose "connected with the use and enjoyment of ..." Lot 19. In my respectful opinion it is.

33 The only purpose which those who park on Lot 20 have is that of visiting the office building on Lot 19. The car park may not be used for any other purpose. Consequently, use of the carriageway so as to gain access to, or to depart from, the car park is, in my opinion, undoubtedly a use for a purpose "connected with the use and enjoyment of" Lot 19. Indeed, it seems to me to be no less a use for that purpose than one by way of loading or unloading, on behalf of occupants of Lot 19, goods or materials at the shed which had been built on Lot 20, being the principal use to which the carriageway appears initially to have been put.

34 There is undoubtedly authority to support the proposition that an easement, in the form of a servitude right of access, enures to the benefit of the dominant tenement and not to the benefit of any other tenement. So, in Harris v Flower (1904) 74 LJ Ch 127 Romer LJ said, at 132:

"If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over the Close A to Close B."

The defendant had there been granted a right of way over the claimant's land in order to enable him to access what was referred to as "the pink land". Adjoining the pink land was another property referred to as "the white land". On it was built a public house which had its own access. The land at the back of the public house adjoined the back part of the pink land. Some years after the grant, a factory was built partly on the white land and partly on the pink land. The public house was severed from the land at its rear. The question arose whether the right of way could be used in order to gain access to the factory, including that part of it which was built on the white land. The Court of Appeal held that it could not be used for that purpose.

35 Another example is provided by the Scottish case of Alvis v Harrison (1990) 62 P & CR 10. There Lord Jauncey of Tullichettle said (at 15 - 16) that a servitude right of access enures to the benefit of the dominant tenement and no other and that the owner of the dominant tenement may not use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement. His Lordship went on to say that the owner may not, in short, increase the scope of the right of access, in particular, for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the right of access and the non-dominant subjects.

36 These, and other, cases were referred to by Schiemann LJ (who delivered the judgment of the court) in Peacock v Custins [2001] 2 All ER 827, a recent decision of the Court of Appeal in England. The question which arose in that case was whether, in circumstances in which the owner of a dominant tenement possessed a right of way for all purposes over a servient tenement, that owner might make use of the right of way to access and cultivate (in conjunction with the dominant tenement) other property of his which lay adjacent to the dominant tenement. The claimants in that case owned a parcel of land, described as "the red land", which enjoyed the benefit of a right of way over a roadway owned by the defendants. That right, which had been granted in the conveyance of the red land to the claimants, was expressed to be "at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed". The claimants owned other land, described as "the blue land", which was adjacent to the red land. The two parcels of land were farmed as one unit by the claimant's tenant, who used the right of way for the purpose of farming both parcels. The Court of Appeal held that the right was to use the way for the purposes of the dominant tenement only and that the use, insofar as it extended to the purpose of cultivating the blue land, was not permissible. The court said (at 835) that the right was one to use the way for the purposes of the dominant tenement only.

37 However, each of these cases (and there are other, similar, cases) is readily distinguished from this case. In this case, unlike each of those to which I have referred, the carriageway is being used for the purposes of the dominant tenement only. Those who park on the car park do not do so for any purpose associated with Lot 20. As I have said, they park there solely for the purpose of visiting the office building on Lot 19.

38 In Harris v Flower, above at 132, Vaughan -Williams LJ said that the burden there under consideration could not have arisen without the user of the white land as well as of the pink. He said that it was not "a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land". Rather, he said, the "whole object" of the scheme in that case was "to include the profitable user of the white land as well as of the pink ... ". Romer LJ, in that case at 132, expressly distinguished the case from one in which it could be said that "every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink".

39 It seems to me that, unlike the situation in Harris v Flower, every user of the carriageway in this case is one for the proper enjoyment of Lot 19.

40 Moreover, it could not be said, in this case, as it was in Alvis v Harrison, above, that the right of access is being used for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the right of access and the non-dominant subject. The use of the carriageway in this case, for the purpose of parking on Lot 20, is merely one to enable readier or more comfortable access to Lot 19. It seems that those entitled to make use (with vehicles) of a right of way may, at least in some circumstances, also be entitled to park on the way: Graham v Philcox [1984] QB 747 at 757 - 758, 765. An incidental right to park elsewhere would be a fortiori.

41 The use of an adjacent tenement as a car park, solely for the purposes of the dominant tenement, is one which also seems to me to be far removed from the kind of situation which arose in Peacock v Custins, where adjacent land was cultivated and the right of way was used, in part, for that purpose. As was said by the court in that case, at 836, a use of that kind could not sensibly be described as "ancillary to the cultivation of the ... [dominant] land". When a right of way is used to gain access to the dominant tenement, the question is whether the use is genuinely for that purpose or colourable: Skull v Glenister [1864] EngR 82; (1864) 16 CB (NS) 81 at 103; [1864] EngR 82; 143 ER 1055 at 1063, per Erle CJ; Finch v The Great Western Railway Co [1879] 5 Exch D 254 at 264, per Stephen J; Bowman v Taylor [1934] VicLawRp 9; [1934] VLR 34 at 41 - 42; and see B B Katiyar's Easements and Licenses, 9th ed (1979) at 582; Gale on Easements, 15th ed (1986) at 298. Gale cites Lawton v Ward [1792] EngR 1392; (1697) 1 Ld Raym 75, note (a); [1792] EngR 1392; 91 ER 946 for the proposition that "the true point to be considered ... should seem to be, quo animo the party went to the close; whether really and bona fide to do business there, or merely in his way to some more distant place."

42 The conclusion at which I have arrived in this respect is supported by the case of National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907. The court (Warner J) had there to deal with a situation in which access to an historic site, owned by the National Trust, was afforded by a track which, except for the first 100 yards, crossed the defendants' farm. The National Trust was the grantee of a right of way over the entire length of the track and it treated the right as allowing it to authorise both its own staff and the general public to use the track for the purpose of visiting the site. Some 50 years after the date of grant of the right of way, the County Council, in response to local complaints of congestion caused by the parking of visitors' cars on the track and surrounding land, constructed a one and a half acre car park on adjacent land leased to the County Council by another owner. The track was used in order to gain access to the car park and the defendants complained that an increase in the volume of traffic was adversely affecting the enjoyment of their property. The National Trust and the County Council jointly sought a declaration that the National Trust and those persons authorised by it were entitled to use the track in conjunction with the car park for the purpose of visiting the site.

43 In granting the declaration, Warner J held that, although the owner of the right of way was not entitled to increase the burden on the servient tenement by enlarging the dominant tenement so as to include land to which the right of way was not appurtenant, he was entitled to use it for access to land adjacent to the dominant tenement if access to that land was ancillary to the enjoyment of the dominant tenement. Because access to the car park was required, not for the enjoyment of the car park itself, but in order to visit the historic site, use of the track for the purpose of accessing the car park was to be regarded as ancillary to the enjoyment of the dominant tenement and, as such, within the terms of the grant.

44 The situation is no different in this case, in which, as I have said, access to the car park is required only in order to visit the office building on Lot 19.

45 It is perhaps noteworthy that, while National Trust v White was cited in argument in Peacock v Custins, it was not referred to by the Court of Appeal in the course of its judgment, presumably because it dealt with an issue which was readily distinguishable from that which confronted the court in the later case.

46 It consequently seems to me, as I have said, that the use to which the carriageway is being put is one which is connected with the use and enjoyment of Lot 19 and therefore within the plain meaning of the terms of the deed of easement.

47 I should add that I respectfully differ, also, from the trial judge's conclusion that a use of this kind would not have been envisaged at the

time of the registration of the deed of easement. I have mentioned that, at the time, the office building incorporated a suspended concrete slab as a means of incorporating a second story in due course, if sufficient car parking space could be provided for the occupants of the building. That being so, it must always have been envisaged that, one way or another, additional car parking space would be provided and that this might involve some increased vehicular use of the carriageway. It seems to me to matter little whether the additional car parking space was to be provided under the office building or next to it. Either way it raised the prospect of increased use of that kind.

48 I should also add that, on the available evidence, the use is one which could not, in my respectful opinion, be said to be excessive. Indeed, the first respondent appears never to have contended that it was excessive. Rather, as I have said, the evidence led on behalf of the first respondent seems to have been to the effect that the use of the carriageway by vehicular traffic appeared to have fallen away and that the real problem was one occasioned by pedestrians. Of course, if there was excessive use, that would not have affected the easement, although it might have led to an injunction restraining use of that nature: Graham v Philcox, above, at 756.

49 There was, in my opinion, consequently no adequate basis for making the declaration the subject of this appeal. That being so, it is unnecessary for me to consider the second of the propositions advanced on behalf of the appellant.

50 It follows that the appeal should, in my opinion, be upheld. There should be substituted, for the orders made by the trial Judge, an order dismissing the whole of the first respondent's application.

51 BURCHETT AUJ: I have read in draft the reasons for judgment of Steytler J. I agree with them and the orders he proposes.

Shean Pty Ltd v The Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 & Anor [2001] WASCA 311

At a glance

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Decision date

Before

Catchwords

Source

Catchwords

Judgment (93 paragraphs)

Shean Pty Ltd v The Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 & Anor [2001] WASCA 311 (10 October 2001)

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Legislation Cited (3)

Cases Cited (7)