Rixon v Horseshoe Pastoral Co Pty Ltd

1. [1]

   Lot 5 in Deposited Plan 835976 (the plaintiff’s land; it was formerly Lot 27 in DP755902) and Lot 130 in DP755902 (the defendant’s land) are adjacent parcels, located some short distance south of the village of Mogo, lying between the Princes Highway to the west and the Tomakin Road to the east: Lot 130 is to the west, adjacent to the Princes Highway, and Lot 5 to the east, proximate to Tomakin Road. [1] Prior to 1971, Rawlinson Cecil Brown and Heather Mavis Brown (Mr & Mrs Brown Snr) owned a dairy farm known as Horseshoe Farm at Mogo. In about 1971, they and their son Raymond Cecil Brown (Mr Brown Jnr) acquired some adjoining properties, including relevantly what became Lots 27, 130, 204 and 208 in DP755902. In about 1974, the defendant Horseshoe Pastoral Pty Limited was incorporated; Mr and Mrs Brown Snr, and Mr Brown Jnr, were its shareholders and directors. [2] Lot 130 (which the Browns intended to retain) was transferred to the defendant on 14 December 1978, but Lots 27, 204 and 208 (which were intended to be sold) apparently were not.

2. [2]

   In 1982, Horseshoe Pastoral sold Lot 27 to the plaintiff Mrs Susan Rixon and her then husband Mr Tom Hurst, who separated soon after; Mrs Rixon is now the sole proprietor of her lot, apparently pursuant to a property settlement with Mr Hurst, who has since died. Since then, a track from the Princes Highway over Lot 130 has been her only means of vehicular access to Lot 5 (“the track”), and in particular to Mrs Rixon’s home on it. In 2014, Mr Brown denied that Mrs Rixon was entitled to use the track, and took steps to obstruct it. In these proceedings, Mrs Rixon claims an easement, or alternatively a licence, in respect of the track, on various bases: by implied grant, by equitable estoppel, or pursuant to (NSW) Conveyancing Act 1919, s 88K.

3. [3]

   At Mogo, north of the subject properties, there is an intersection between the Princes Highway (which runs approximately north-east to south-west) with Tomakin Road (which runs to the east from the intersection for about 400 metres, before bending to the south).

The land and its access

1. [4]

   Together, Lots 5 and 130 form a reverse L shape; while the southern boundaries of both lots are aligned, Lot 5 (a square in shape) extends further to the north than Lot 130 (a right-angled trapezoid), a number of other allotments separating the northern part of Lot 5 from the Princes Highway, which forms the western boundary of Lot 130.

2. [5]

   The evidence and submissions explored eight potential means of gaining access to Lot 5. They are described below, in anti-clockwise geographical order, and using the numerical designations attributed to them during the hearing; because some emerged later than others, their numerical designation does not correspond with their geographical arrangement.

3. [6]

   There is a corridor of crown land (Lot 7010 in DP1023835) from the north-western corner of Lot 5, running approximately north to the Princes Highway near its intersection with Tomakin Road, and just north of land occupied by the Mogo school as a playground. Construction of a track or road over it would impinge on the environmentally sensitive area of Mogo Creek, and Roads and Maritime Services (RMS) would not permit an access to the Princes Highway to be constructed at this point, because it would not achieve a compliant safe intersection site distance (SISD) at Princes Highway.

4. [7]

   The northernmost of the allotments separating the northern part of Lot 5 from the Princes Highway is in the ownership of the Department of Education and occupied by the Mogo School (Lot 63 in DP 755902). Immediately to its south is a very narrow (perhaps 10m wide) strip of crown land which runs from Lot 5 to the Princes Highway. Initially it appeared that a compliant SISD would not be achieved, but during the hearing it emerged that it could. However, such an access point would require extensive work to widen the Princes Highway, and to build up the steep slope to the east of the highway; it would not be supported by RMS.

5. [8]

   To the south of the school corridor, and north of the northern boundary of Lot 130, several other allotments lie between Lot 5 and the Highway. The northern boundary of Lot 130 is formed by an unconstructed crown road (“Queen Street”), over which the defendant has an occupancy permit. There is a wire guard rail along the side of the highway, which would have to be penetrated if this were to be a point of access, and the land, which falls steeply away to the east of the highway, would have to be built up. Although at first it appeared that a compliant SISD could not be achieved, during the hearing it became apparent that this was not so and that, while it was not the preferred option of RMS, if no legal access were otherwise available to Lot 5, it would be possible to construct an access from the highway at this point and over the unconstructed part of Queen Street – either with the co-operation of the Council, or by closing and acquiring the crown road – albeit that significant engineering effort and considerable expense would be involved.

6. [9]

   To the south of Queen Street, at about the midpoint of Lot 130’s western boundary, the track joins the Princes Highway and transits from west to east, across the middle of Lot 130 to its boundary with Lot 5. There is no SISD issue at this point, and this is the RMS’ preferred point of access.

7. [10]

   As an alternative to the track, during the proceedings, proposals were developed for an easement running north from the gate from the Princes Highway to Lot 130, along the inside of the western boundary of Lot 130 parallel to the Highway until it reached the Queen Street reservation, thus avoiding the steep incline where the Queen Street reservation abuts the Highway (option 7; in some contexts also called “access option 1”). Its attraction, when compared to the track, was that by running along the western boundary of Lot 130 and then the Queen Street reservation, it minimised the impact on Lot 130. A variation on this theme involved the grant of an easement in a similar location but further from the western boundary, then splaying across the north-western corner of Lot 130 and continuing along the northern boundary until it reached Lot 5, without entering the Queen Street reservation (option 8; in some contexts also called “access option 2”); its perceived advantage was that it would require significantly less construction works, and in particular earthworks, than option 7, by avoiding a gully in the north-western corner of Lot 130, but it would have a greater effect on Lot 130 than option 7.

8. [11]

   The southern boundary of Lot 130 is formed, at its western end, by the Mogo cemetery. Although there is an access (“Jock Hendry access”) in that vicinity, it is not contiguous with and does not provide direct access to Lot 5; an additional easement, along the southern boundary of Lot 130, would have to be acquired if it were to be used for access to Lot 5. Moreover, a compliant SISD is not achieved.

9. [12]

   The balance of the southern boundary of Lot 130, and that of Lot 5, is provided by Lot 204. A crown road running from the Princes Highway south of the cemetery along the southern boundary of Lot 204 provides access to Lot 204, from the south. From it, another unconstructed crown road runs north across Lot 204 to Lot 5; however, it is the subject of an enclosure permit in favour of the owners of Lot 204, who have erected structures on parts of it.

10. [13]

    The Tomakin Road, which generally lies to the north and then a little to the east of the eastern boundary of Lot 5, is separated from the northern boundary by several others lots, but at one point about 150 metres beyond where it bends to the south is contiguous with the north-eastern corner of Lot 5. At this point there is a rudimentary Queensland gate (“cocky’s gate”), and it may be that, as Mr Brown Jnr maintained, at some point in the past access to Lot 5 was gained from this point. However, the Tomakin Creek, which runs roughly along but inside the northern and the eastern boundary of Lot 5, separates this entry point from the main part of the property, and if there was ever a bridge over it, there has not been for many years, and I accept Mrs Rixon’s evidence that there was no such track or bridge when she purchased the property, as is implicit in her evidence, referred to below, that she was not taken to inspect the property via any such route, and that when she asked how to move the home she had purchased onto the property, she was told to use the track over Lot 130. Moreover, RMS would not support construction of an access road at the Tomakin road entry point, because a compliant SISD cannot be achieved.

Mrs Rixon’s purchase of Lot 5

1. [14]

   In 1981, Mrs Rixon lived, with her then husband Tom Hurst, at Termeil, some distance north of Batemans Bay, but she was working full-time in Batemans Bay, and wished to reside closer to her place of work. She learnt from a work colleague that a farm near Mogo was being subdivided, and was told (on her evidence) that Mr Brown Jnr was the person doing that project. Mrs Rixon says she knew of Mr Brown, because he was a patron of the Batemans Bay Soldiers Club where she worked, but did not know him personally.

2. [15]

   According to Mrs Rixon, she approached Mr Brown Jnr after work one day, when she noticed he was across the road from the Club. Mrs Rixon says that Mr Brown gave her his telephone number, and details of how to get to the property, namely directly opposite Buckenbowra Road, Mogo, a landmark with which she was familiar.

3. [16]

   According to Mrs Rixon, before the arranged inspection of the property, but excited by the prospect, she and Tom went out to have a quick unaccompanied and unannounced look at the property. They went to the cocky’s gate on the Tomakin Road, because they did not at that stage have permission to enter the property and did not want to be seen. When asked, in cross-examination, how she knew to go to the cocky’s gate, Mrs Rixon at first answered, “Because it was described to me when I spoke to Ray”, but it was then put to her:

4. [17]

   According to Mrs Rixon, a few days after their initial conversation she met Mr Brown Jnr at the entrance gate to Lot 130, on the Princes Highway. Mr Brown unlocked the gate (which had been chained and locked), and they drove in their respective vehicles – Mrs Rixon following Mr Brown – across Lot 130 on what Mrs Rixon describes as “an old track that initially went down a small incline then uphill … that commenced at the gate” to a high vantage point on Lot 5 – where her house is now located. She was immediately taken by the property, and told Mr Brown that she would buy it and make arrangements with her bank and solicitor.

5. [18]

   Mr Brown denies that he played any part in the sale of Lot 5, or met or had any conversation with Mrs Rixon at any time prior to the sale; he says that it was his late father who negotiated the sale to Mrs Rixon. Mr Rogers submitted that Mrs Rixon’s version was unreliable, and that Mr Brown’s version should be preferred, but I do not agree. First, my impression was that Mr Brown had little recollection of the events, and denied participating in them as a matter of reconstruction rather than recollection; this is illustrated by his evidence concerning the placement of house on Lot 5, referred to below. Secondly, Mr Brown’s assertion that his father took all the important decisions does not sit well with his demonstrated involvement in cancelling a development application for a manager’s residence on Lot 5, shortly before completion of the sale to the plaintiff in 1982. Thirdly, when the whole of Mrs Rixon’s evidence is reviewed in context, I think the better explanation for the apparent inconsistency about how she first came to enter the property from the cocky’s gate at Tomakin Road is that she misapprehended the question when it was first asked; her answer was directed to how she knew where the property was, rather than where the cocky’s gate was. Finally, Mrs Rixon’s evidence generally was characterised by understatement (of which her restrained response to the suggestion that the location in which the home was placed on the property involved some detriment is an example) and moderation (illustrated by her willing acceptance of the Queen Street option if RMS would permit it); she was a thoroughly credible witness.

6. [19]

   It is possible, though unlikely, that Mrs Rixon has confused Mr Brown Jnr with Mr Brown Snr, 25 years ago. But even if that were so, that would lead to the conclusion that Mrs Rixon was dealing with Mr Brown Snr, and had the same conversations with him. It is highly improbable that she would have purchased the property without an inspection; someone on behalf of the vendor must have showed her the property and, as Mr Rogers accepted, it must have been one or other of the two Mr Browns. Mrs Rixon was shown the property, on behalf of the vendor, by one or other of the Mr Browns, from the high vantage point, which they accessed via the Princes Highway gate and the track.

7. [20]

   After paying the deposit, but before settlement, Mrs Rixon sourced a removable home to be placed on Lot 5. She deposed that she approached Mr Brown and they had a conversation to the following effect:

8. [21]

   Mrs Rixon says that the lock and chain were then removed, and never replaced. The house was moved onto the property and installed near the high point from which she had first viewed the property with Mr Brown. The purchase was completed soon afterwards.

9. [22]

   Mr Brown denies having had any such conversation with Mrs Rixon. But he was clearly aware that she was going to use the track for the purpose of moving the home onto Lot 5: when asked when he first became aware that a house was to be or had been placed on Lot 5, he said at first that he did not recall, but it would have been in the mid-80s; that it was after it had been put there, because Mr Hurst who used to work for him was residing there for a while; that he was not sure what access they were using, though he knew that Mr Hurst was “going across the back of the cemetery” to get to work; that he knew there was supposed to be a locked gate, but could not say what had happened about it, though he thought “the main reason that they used that access was to bring the house in, because it was quite a wide thing … but I didn’t see the house going in there and … I wasn’t sure where it … had been situated on their block”. But an at earlier point he gave this evidence:

10. [23]

    Moreover, as the house was moved onto Lot 5 before completion of the purchase, there is a high degree of likelihood that the purchaser would have sought the vendor’s permission to do so; a purchaser would not likely move a house onto a property before completion without first seeking the vendor’s consent. If Mrs Rixon did not speak to Mr Brown Jnr about installing the house on Lot 5, then she had such a conversation with Mr Brown Snr. The circumstance that, as Mr Brown accepted, the gate thereafter remained unlocked, tends to confirm this.

Subsequent use of the track

1. [24]

   After installing the relocated home on Lot 5, Mrs Rixon moved horses and other stock onto Lot 5, using a horse float, along the track. She has since transported cattle to and from the property, using the track. She has received visitors, family and friends at her home, who use the track to gain access. She has had had power installed to Lot 5, for which purpose the track provided the access; and the authority’s employees use the track for access to read the meter. Replacement gas bottles have been and are delivered via the track. Local council officers have used and continue to use the track to access the property for septic tank inspections. Deliveries of all kinds have been and are made to Lot 5 via the track. She has fenced Lot 5, using the track to bring in materials and the personnel who assisted in its construction.

2. [25]

   From the time of her purchase of Lot 5 to date, Mrs Rixon has slashed, graded and otherwise maintained the track. This, coupled with sustained use of the track, has resulted in its becoming considerably more defined than it was in 1982. However, Mrs Rixon does not suggest that any construction works have been carried, save that:

   1. (1)

      according to Mrs Rixon, in the early 1980s, she obtained Mr Brown’s permission to install a rudimentary cattle grid at the gate from Lot 130 onto the Princes Highway. Mr Brown denies that he was asked or agreed to this, but acknowledges that he has been aware of the grid; based on this acknowledgement and my general acceptance of Mrs Rixon’s evidence, I find that there was such a conversation as Mrs Rixon says; and

   2. (2)

      in the course of roadworks on the Princes Highway, RTA workmen constructed a spoon drain at the entrance gate to Lot 130, and ‘tarred’ the area between the highway and the gate to facilitate the entry of vehicles.

3. [26]

   Mr Brown does not dispute that Mrs Rixon, her family and invitees such as guests and tradespeople have accessed Lot 5 through Lot 130 along the track, and that at least to some extent he knew that to be so, and did not prevent it. He says he did not give “express permission and none was sought.” Nor does he deny that the gate from the Princes Highway onto Lot 130 was unlocked and remained unlocked. Mr Brown does not dispute that, from the time of her purchase of Lot 5 to date, Mrs Rixon has slashed, graded and otherwise maintained the track.

The development plans

1. [27]

   In about 2000, according to Mrs Rixon, she heard a bulldozer operating on Lot 130, and subsequently saw Mr Brown on the track. She had a conversation with him in which he said that he was putting in an industrial subdivision, and assured her that her access would not be affected, and that she would have a tarred street almost all the way to the boundary. Mr Brown denies any such conversation, and says that he was not in Mogo at the time. But Mr Brown was admittedly contemplating development of Lot 130, and had had a concept plan prepared (which he did not adduce). It is not apparent how else Mrs Rixon would have learnt of the proposal and again, coupled with my general acceptance of her evidence, this tilts the balance of probability in favour of her version. However, as will become apparent, ultimately nothing turns on this conversation.

Relations deteriorate

1. [28]

   Following her remarriage in 2002 to Malcolm Rixon, in about 2005 Mrs Rixon and her new husband established a bus business. From about 2005 until 2008-9 (when the first bus business was sold), buses when not in use were parked on Lot 5 (though they were maintained and serviced elsewhere), and moved into and out of Lot 5 over the track.

2. [29]

   Relations between the Rixons and Mr Brown appear to have deteriorated from about 2005. One precipitant appears to have involved a Mr Pakis, who initially stored logs and other items on Lot 5, and paid a fee to Mrs Rixon for doing so. Then he erected a business sign on the gate to Lot 130, which Mrs Rixon says was not authorised by her. Mr Brown raised the issue – including reference to a potential liability risk – with Mrs Rixon.

3. [30]

   Subsequently, a confrontation between Mr Brown and Mr Malcolm Rixon resulted in police attending the property. Mrs Rixon then embarked on exploring a range of alternative means of access to her property – including via Tomakin Road, School Road, Queen Street, and the Jock Hendry Access – none of which provided a resolution. Meanwhile there was an uneasy détente between the parties.

4. [31]

   In April 2010, the Rixons recommenced a bus business, and up to ten buses have been and are parked on Lot 5 from time to time, and enter and exit Lot 5 using the track daily, although once again they are maintained and serviced elsewhere.

5. [32]

   By letter dated 7 August 2014, solicitors for Mr Brown demanded that Mrs Rixon cease exercising access over Lot 130, and threatened an injunction and damages if the alleged “trespass” continued. Mrs Rixon instituted these proceedings on 30 March 2015. By letter dated Friday 10 July 2015, solicitors for the defendant advised that the gate from the Princes Highway to the track would be locked. On the evening of Friday 10 July 2015, Mrs Rixon sought and was granted an ex parte injunction restraining the defendant from denying the plaintiff and her invitees access along the track. The ex parte injunction was on 13 July 2015 continued, and remains in force.

6. [33]

   The Court had the benefit of a view of the properties on the first day of the hearing. The transcript records the observations I made during the view, which are evidence. [3]

Issues

1. [34]

   The main issues are:

   1. (1)

      is there an implied easement, of necessity or pursuant to the rule in Wheeldon v Burrows;

   2. (2)

      is the defendant estopped in equity from denying the existence of an easement or licence over the track, and if so does any such easement or licence extend to use by buses to be parked on Lot 5. (The plaintiff advanced a separate but closely related argument founded on unconscionability, but in my view it is indistinguishable from the equitable estoppel case); and

   3. (3)

      alternatively, should the Court impose an easement pursuant to (NSW) Conveyancing Act 1919, s 88K, over Lot 130 for the benefit of Lot 5, and if so where should it be located, should it permit use by buses to be parked on Lot 5, and what compensation should be required.

2. [35]

   Although the plaintiff’s case was put primarily on the ground of equitable estoppel, it is convenient and logical to deal first with the claim for an easement by implication.

3. [36]

   Where the owner of land alienates part and retains the balance, easements may implicitly be granted over the retained part in favour of the alienated part on a number of bases, including (a) of necessity, and (b) under the rule in Wheeldon v Burrows. [4]

Implied easements and the Torrens system

1. [37]

   However, although there are cases in which implied easements have been recognised in connection with Torrens title land, [5] it is doubtful that such easements can arise in respect of land under the (NSW) Real Property Act 1900, in which s 42 relevantly provides:

2. [38]

   The prevailing view is that easements can be created over Torrens land only in the manner provided by Real Property Act, s 46, [6] and that this does not admit of implied grants of the Wheeldon v Burrows variety. [7] The same considerations apply to easements of necessity. [8] Exceptions in relation to easements created by implied grant before the land is brought under Torrens title [9] are irrelevant for present purposes. However, at least until the decision of the Court of Appeal in McGrath v Campbell, [10] it has generally been accepted that a Wheeldon v Burrows easement, although not noted on the certificate of title of the servient tenement, may be enforced against the registered proprietor of that tenement who created the easement, though not against successors in title. [11]

3. [39]

   In McGrath v Campbell, [12] the common registered proprietor of the dominant and servient tenements who was said to have created the alleged Wheeldon v Burrows easement contemporaneously transferred both tenements to different purchasers. At first instance Barrett J, as he then was, relying on Aldridge v Wright, [13] held that in those circumstances, the transferee of the dominant tenement was entitled to enforce the easement against the transferee of the servient tenement, by requiring the servient owner to execute an instrument in registrable form for the purpose of the Real Property Act granting the easement. This was overturned in the Court of Appeal. Although the principal judgment was that of Tobias JA, the position was concisely summarised by Hodgson JA in the following terms:

4. [40]

   Tobias JA referred [14] to the decision of the Court of Appeal in Williams v State Transit Authority (NSW) [15] – a case involving a prescriptive easement – in which Mason P, with whom Sheller JA and Tobias JA agreed, noted that text writers had expressed the view that prescriptive easements based upon the doctrine of lost modern grant did not trump the registered proprietor's indefeasible title by means of the statutory exception in s 42(1)(a1) of the Real Property Act, [16] and that it was “to pile fiction upon fiction to extend the doctrine of lost modern grant into the Torrens system, because (assuming no relevant exception to s 42 or its equivalents) that system contemplates title at law as arising only upon registration”. [17] His Honour thought that there was much force in the observations of Professor Butt [18] that Williams required reconsideration of the in personam enforcement of unregistered implied easements, in the light of that that “given the relevant similarities between prescriptive and implied easements”, but did not express a concluded view. [19]

5. [41]

   In Cuzeno Pty Ltd v Owners and Strata Plan 65870, [20] Darke J observed that there were unresolved questions, which had been left open in McGrath v Campbell, concerning the extent to which implied easements were capable of enforcement as in personam exceptions to the indefeasibility provisions of the Real Property Act, but proceeded on the assumption that implied easements were capable of enforcement on that basis.

6. [42]

   As it seems to me, while casting doubt on the availability of a Wheeldon v Burrows easement in the context of Torrens land simpliciter, McGrath v Campbell does not overrule the earlier cases in which it had been found available as a personal right enforceable against the transferor though not against successors in title. Moreover, it recognises that if there are circumstances which so implicate the grantor as to make it unconscionable to insist on its strict legal right, a personal equity against the grantor (though not against successor in title) will stand outside the cloak of indefeasibility.

7. [43]

   In the present case, the defendant was the registered proprietor of Lot 130 at the time of the sale of Lot 5 to Mrs Rixon and her husband, and its shareholders were the vendors of Lot 5. No point was taken that the corporate identity of the defendant, as distinct from that of its shareholders, made any difference. Accordingly, like Darke J in Cuzeno, I proceed on the basis that, notwithstanding that the subject land is under the Real Property Act, an easement arising by implication upon the sale of Lot 5 to Mrs Rixon could be enforced against the defendant while it remains the registered proprietor of Lot 130.

Easement of necessity

1. [44]

   An easement may be implied of necessity where, on the sale by a common owner of part of its land, either the grantor or the grantee is left without any access to its property. An easement of necessity is implied where the right claimed is essential for the use of the dominant tenement; it must be more than a matter of convenience. The prevailing view is that this is based on the presumed common intention of the parties. [21]

2. [45]

   The conventional view is that the existence of an alternative means of access exercisable as of right, even if inconvenient, is fatal to a claim of a right of way of necessity. Relevantly, the fact that construction of an access route to a public highway is difficult and/or expensive is insufficient to give rise to an easement of necessity. [22] In New South Wales there are obiter dicta that favour a more liberal view: in Parish v Kelly, [23] Rath J said that the existence of a legal access did not necessarily exclude the implication of a way of necessity, and that matters to be considered included the locality, the use of the land and the nature of the legal access (in particular whether it is constructed and, if not, the problems and expense in constructing it), but rejected the claim for an easement of necessity. This dictum was approved by Cohen J in Lamos Pty Ltd v Hutchison. [24] However, the correctness of these decisions has been doubted, in the light of more recent [25] as well as the earlier authorities.

3. [46]

   The critical time for the implication of an easement by necessity is the time of the sale by the common owner – in this case, the sale of Lot 5 to the plaintiff. Although I accept that there was at that time no alternative constructed access to Lot 5, the property was not legally landlocked: it abutted Tomakin Road; and there were unconstructed crown roads at the school and at Queen Street. Pedestrian access was available, and the land was not incapable of being accessed from a public road: although construction of one or more of these means of access for vehicular use may have involved some planning and engineering challenges and difficulties, as well as expense, that is insufficient.

4. [47]

   In my view, there were alternative means of access available as of right, albeit that they may have been inconvenient and expensive to construct. The conditions for implication of an easement of necessity are not established – even if one can arise in the context of Torrens title land.

Wheeldon v Burrows

1. [48]

   The rule in Wheeldon v Burrows was stated, in the case from which it derives its name, in the following terms: [26]

2. [49]

   While the rule has often been explained as a manifestation of the maxim that a grantor may not derogate from the grant, [27] its juridical basis is the presumed common intention of the parties. [28] The essential elements are that the “quasi-easement” be (1) continuous and apparent, (2) necessary to the reasonable enjoyment of the property granted, and (3) at the time of the grant used by the owners of the entirety for the benefit of the part granted.

3. [50]

   A reasonably close analogy to the present case is provided by Tarrant v Zandstra, [29] in which the plaintiff acquired a block of land which, though it had a frontage to a main road, did not have direct access to it, but gained access via a private road which ran through the adjoining block, which the plaintiff continued to use after the purchase, to the knowledge of the defendants who later bought the adjoining block from the common vendor; the conditions necessary for the implication of a Wheeldon v Burrows easement were satisfied.

4. [51]

   The requirement that the quasi-easement be “continuous and apparent” is satisfied if there is, on the quasi-servient land, a feature visible on inspection which is neither transitory nor intermittent – for example, drains or paths. [30] This is to be judged in the light of each particular case, and the nature of the enjoyment in question. [31] In Ward v Kirkland, the absence of a feature which would be seen on inspection and is neither transitory nor intermittent defeated the claim. [32] However, the notion of a visible mark on the land is crucial; absence of visible physical evidence pointing to the existence of an “easement” precludes its implication. [33]

5. [52]

   As to the second element, the test is less demanding than the absolute necessity required for an easement of necessity; in this context, it means needed or required for the convenient and comfortable enjoyment of the dominant land, as was explained in Wilcox v Richardson by Handley JA: [34]

6. [53]

   To similar effect, Meagher JA said: [35]

7. [54]

   Mr Brown says that in 1982, the track ended about half-way across Lot 130, at the power lines (in the middle of Lot 130). The track is visible, though faintly, on a 1979 aerial photograph; as Mrs Rixon accepted, on the photograph it appears to have then ended “a long way short” of where it does now (near her house, on Lot 5). Mrs Rixon said that on the initial inspection of the property they drove more or less to the location where her house now is. She said that the track was then “just indentations in the ground and lots of grass on it”, but “there was definitely a track there”, although not nearly so well defined as now, and “whether it went much further (than it appears to in the 1979 photo) or whether I just followed the wheel tracks of the car in front of me, I couldn’t say”.

8. [55]

   While it is not possible from the poor-quality photo reproductions in evidence to be certain of where the track then ended, it makes sense that it would then have ended at the powerlines: access to the powerlines would have been required by the authority responsible for their maintenance, but there being no house on Lot 5 there is no reason why the track would have extended beyond the powerlines to the house location. The evidence does not establish that the track extended beyond the powerlines, let alone to the boundary. Although Mrs Rixon was taken via the track (and then, probably across country) to inspect the property, it is not established that prior to the transfer to her, the defendant was in the habit of using the track to access Lot 5; Mr Brown denied that he did so, and there is no evidence to the contrary. In those circumstances, I cannot be satisfied that at the time of the transfer to Mrs Rixon and her then husband in 1982, the track constituted a continuous and apparent quasi-easement, or that it was used by the Browns to access Lot 5.

9. [56]

   Accordingly, on the assumption that there is room within the Torrens system for an easement to arise by implication, at least as against the grantor, the facts here are insufficient to support an easement of necessity, or under the rule in Wheeldon v Burrows. But although insufficient of themselves to warrant implication of an easement under Wheeldon v Burrows, those facts are not irrelevant to the plaintiff’s estoppel case, to which I now turn.

10. [57]

    The plaintiff’s case is put primarily on the basis of an equitable proprietary estoppel, the elements of which were articulated by Brennan J in Waltons Stores (Interstate) Ltd v Maher [36] as follows:

11. [58]

    Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption, in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption. [37] While it is essential to an equitable estoppel that the defendant knows or intends that the party who adopts the assumption will act or abstain from acting in reliance on it, [38] and such knowledge or intention may easily be inferred where the adoption, assumption or expectation is induced by the making of a promise or representation, it may also be found where a defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when, in conscience, objection ought to be stated. [39] The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation, to fulfil it, or otherwise to avoid the detriment which that failure would occasion. [40]

12. [59]

    While numerous judicial and academic attempts have been made over the years to catalogue the elements of an estoppel of this type, [41] it suffices for present purposes to observe that, at least generally speaking, the matters that a plaintiff must establish to found such an equitable estoppel may be characterised as comprising certain conduct of the plaintiff, certain conduct of the defendant, and certain qualities of the subject matter, which for present purposes, may be sufficiently summarised as follows. First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant or that the plaintiff had or would acquire some interest in the defendant’s property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff’s potential detriment, and that the expectation could be fulfilled only by transfer of the defendant’s property, a diminution of the defendant’s rights or an increase in the defendant’s obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy. Ordinarily the relevant conduct of the plaintiff (assumption or expectation) and that of the defendant (encouragement or acquiescence) will be factually interrelated and interwoven. [42]

The plaintiff

1. [60]

   The plaintiff’s case is that in reliance on an assumption that she was and would continue to be entitled to exercise access to Lot 5 over the track, she:

   1. (1)

      located her home on the property by reference to the path of the track and point where it entered her property, at a place which was in a practical sense inaccessible if the track were not available;

   2. (2)

      expended labour and/or money on the maintenance and improvement of the track, including slashing and grading, and extending the track to her home, and installing a cattle grid on Lot 130 at the gate where the track leaves the Princes Highway; and

   3. (3)

      refrained from taking steps to enforce her rights and/or explore alternative means of access.

2. [61]

   Although she did not say so directly in her affidavit evidence, in oral evidence Mrs Rixon gave evidence to the effect that, when she made the decision to purchase the property and until 2005, she believed that the track was the lawful access to the property. She was asked:

3. [62]

   Although I have rejected her claim for a Wheeldon v Burrows easement, it is not without significance, when considering the estoppel case, that the track existed (albeit in primitive form), was visible (at least as far as the powerlines), and crucially, was used as the access when the plaintiff was shown the land by or on behalf of the vendor. If an intending vendor takes the purchaser onto the property to inspect it by a particular access route, and does not then say “Of course, you’re not legally entitled to use this access”, that is calculated to create, or at least contribute to, an assumption on the part of the purchaser that the route used was an available access to the property. Such an assumption is an obvious one to form from being taken onto the property to inspect it via that route, and fortified if the gate, which had been locked, is thereafter left unlocked. It is improbable that Mrs Rixon and her then husband would have purchased a property which, apart from the track, had no obvious means of vehicular access, and to which they were shown no other such means, unless under the impression that the track was lawful access.

4. [63]

   In connection with placement of the house, Mrs Rixon could not be accused of overstatement; when asked whether she would have put the house in the same place if she had thought that she would not be entitled to use the track, she said “Probably not”, and that she would probably have located it closer to wherever the access entered the property. However, the objective facts, visible on the view, are eloquent. The house was placed just inside Lot 5, adjacent to its boundary with Lot 130, on the high point of the property, closely proximate to where the track reached the boundary. It was plainly placed there on the basis that access to and from it would be via the track. If access was to be via the Tomakin Road, then it would have been necessary to construct a road and bridge to reach the place where the house was located. Similarly, if access was to be via Queen Street or School Road, where there was no constructed access, significant construction works – including in the latter case a crossing of Tomakin Creek – would have been required. While the location is less disadvantageous in relation to an access via the Mogo Cemetery and the crown road through Lot 204, through which the suggested access runs, a much lengthier and steeper transit of Lot 5 would have been involved from the access point to the present house location than with access via the track. If access were not via the track, the house would self-evidently have been located closer to the available access. Mrs Rixon’s understated evidence reinforces rather than detracts from her credibility; that the house was located by reference to accessibility via the track is, in the vernacular, as “plain as a pikestaff” on inspection of the property, and bespeaks an assumption that she was entitled to access over the track.

5. [64]

   It does not tell against such an assumption that, as I have found, Mrs Rixon sought the vendor’s permission to place the house on Lot 5. The house was placed on the land before settlement of the purchase, although after exchange, and a purchaser under contract who has not taken possession would not normally assume a right to enter onto the property; in those circumstances a request for permission to take the house onto the property before settlement does not tell against the assumption that she would entitled to use the track as of right upon completion; to the contrary, such a request would be expected if the access were to be used before completion.

6. [65]

   Mrs Rixon’s assumption that she was entitled, as of right, to use the track is manifested by her continual use of the track thereafter, without seeking permission to do so, for 23 years from the time of purchase in 1982 at least until 2005, when Mr Brown began to raise objections. She did not after completion of the purchase seek permission to use, or for her invitees to use, the track, although she did seek permission if works on Lot 130, such as installation of the cattle grid, were proposed. Mr Brown’s evidence, that permission was neither sought nor expressly given for use of the track, fortifies the position that the plaintiff’s assumption was that she was entitled to use the track as of right, rather than by permission of the defendant.

7. [66]

   Mrs Rixon was asked:

8. [67]

   The circumstance that after 2005, Mrs Rixon was prepared to explore alternative access options does not tell against her previously – and critically at the time of purchasing the property and placing her home on it - having assumed that she was entitled as of right to use the track to access the property; her explanation to the effect that from 2005 she began to explore alternative access options because she realised that the use of the track was greatly annoying Mr Brown, and she was seeking to avoid a conflict if she could, is eminently reasonable.

9. [68]

   I am therefore satisfied that when Mrs Rixon purchased Lot 5, and when she caused the house to be located just inside the point where the track leads to the Lot 5 boundary, she did so upon the assumption that she was entitled as of right to use the track to access Lot 5, and she continued to hold that assumption until about 2005.

10. [69]

    Mr Rogers, for the defendant, submitted that detrimental reliance was not established, and in particular that there could have been no detrimental reliance in making the purchase, because before any conversation about using the track to move the house onto the property, Mrs Rixon had already exchanged contracts for the purchase; and in respect of the location of the house, while Mrs Rixon said that she would probably have put the house closer to wherever she may otherwise have had access to or egress from the land, she was not dissatisfied with the location of the house.

11. [70]

    However, while it is true that Mrs Rixon exchanged contracts for the purchase without any express guarantee of access - whether along the track or otherwise - across Lot 130, I do not accept that there could be no detrimental reliant activity in purchasing the property. Given the absence of any other apparent vehicular access, it cannot be supposed that Mrs Rixon (and her then husband) would have purchased Lot 5 at all, had they not assumed that the track over which they were taken by the vendor to inspect the property was not lawful access. And as to the location of the house, that Mrs Rixon is happy with the present location of the house, given the current access arrangements, is beside the point; what is important is that its location is utterly impractical if access were not available from the track. If she were now denied use of the track, Mrs Rixon would be left with a house on Lot 5 to which she could gain vehicular access only by undertaking substantial and expensive works. Access from any of the suggested available alternatives would require substantial construction works: if access were to be via the Tomakin Road, then it would be necessary to construct a 400 metre road, and a bridge over Tomakin Creek, to reach the place where the house is located, and even so it would be subject to occasional inundation; if access were to be via Queen Street, the Council would have to be persuaded to construct the road to the boundary, or to close the road so that Mrs Rixon could construct it (200 metres), and there would then be a further 150 metres of construction within Lot 5 on a steep incline to the house; similarly if access were to be via the school corridor; access via the Mogo Cemetery would not be possible without an easement over Lot 130; and access via Lot 204 would not be possible without arrangements with the owners of Lot 204. In my judgment, there was detrimental reliance in purchasing a property which had no other constructed access, and in placing the house and orienting the layout of the property to and on the basis that access was available via the track, when it would have been placed elsewhere if that access were not available and access had to be exercised from elsewhere.

12. [71]

    The other matters of detriment relied upon on behalf of Mrs Rixon are admittedly less compelling. Although it was submitted that Mrs Rixon had extended the track, it is not suggested that she undertook any construction works in that respect. The track has been “extended” only by use; the repeated passage of vehicles to and fro over it has resulted in its becoming more worn and defined. This has been accentuated by the occasional repair of potholes, the grading of the track and the slashing of its immediate surrounds. However, the slashing and grading of the track, and the installation of the rudimentary cattle grid, involved effort and expenditure of a relatively minor order, and is explicable as no more than would have been undertaken in connection with maintaining the track in a useable condition so long as permission to utilise it continued. Installation of the cattle grid cost nothing. Such acts are consistent with those which anyone who as a matter of fact used the track might undertake to maintain its convenience, and are not necessarily referable to an assumption that Mrs Rixon was entitled as of right to use the track; they are equally consistent with a revocable permit to do so. Any detrimental reliance in this respect was, if not de minimis, then very slight; I accept that those matters would not of themselves constitute such detriment as to render it unconscionable to revoke permission to use the track.

13. [72]

    I also accept that no detriment was incurred in abstaining from taking steps to enforce the plaintiff’s right of access, or to explore alternative means of access, at any earlier time. There is no basis for supposing that the plaintiff would have been any better off had she taken such steps earlier, than she is now. It follows that there was no relevant detrimental reliance in this respect.

14. [73]

    However, it follows that I accept that in deciding to purchase the property (to which there was otherwise no practically available vehicular access), and in locating her house on it (at a place which in a practical sense was inaccessible if the track were not available), Mrs Rixon relied on an assumption that she was entitled as of right to access her property using the track, and that denial of such entitlement now would occasion her substantial detriment, in that she would be left with a property which is in a practical sense land-locked, and a house which she could access only by constructing a new access, at considerable inconvenience and cost.

The defendant’s role

1. [74]

   The matters which potentially implicate the defendant in Mrs Rixon’s assumption and detrimental reliance, so as to preclude it from now denying its truth, are, first, the manner in which Mr Brown showed her the property prior to purchase; secondly, Mr Brown’s grant of permission to use the track prior to the settlement of the purchase to install the house; thirdly, ongoing acquiescence in her use and maintenance of the track; and fourthly, the reassurance given, in connection with the development plans under contemplation by Mr Brown in or about 2000, that she would continue to have access to her property over the track.

2. [75]

   Mr Brown was reluctant to concede that he was aware that Mrs Rixon and her invitees were using the track to access Lot 130. In his affidavit evidence, Mr Brown said that he took little notice of what access Mrs Rixon and her family were using at any given time; that he did not prevent them travelling from their property to the main road via the track, but gave no express permission and none was sought. However, although Mr Brown may have been an infrequent visitor to Lot 130, his quarry business was located nearby. In his oral evidence, it became apparent that although he may not have taken an extensive interest in the manner of use of the track, and how Mrs Rixon was accessing the property, he was aware that she (and her children) were using the track. He had no satisfactory explanation for why the gate at the highway remained unlocked; but the obvious explanation is that the defendant knew that it was being used by Mrs Rixon.

3. [76]

   However, mere knowledge that the plaintiff was using the track does not import knowledge of detrimental reliance. Nor does giving an assurance that access would be unaffected by a development proposal, and even if such an assurance was given, there was no subsequent detrimental reliance on it. It was not established that Mr Brown – or anyone else on behalf of the defendant – was actually aware of the slashing and grading, although a reasonable landowner would have been. In any event, my above conclusion that there is little if any detriment in activity of the plaintiff after the installation of the house means that it is in connection with the purchase of the property, and the location on it of the house, that any relevant involvement must be found; I agree with the defendant’s submission that later events do not avail the plaintiff.

4. [77]

   Although Mr Brown denies that he showed Mrs Rixon and her then husband the property, or took them over the track to it, it is inherently credible and probable that someone on behalf of the vendor did so; as already indicated, it is highly improbable that Mrs Rixon and her then husband would have purchased the property without an inspection, and as Mr Rogers accepted, it must have been one or other of the two Mr Browns who showed them. It would, or at least ought to have been, apparent to the vendor that the purchaser would, in deciding to purchase, in the absence of any other apparent vehicular access, assume that the access they then used was legal access to the property.

5. [78]

   And although Mr Brown also now denies that his permission was sought, let alone granted, to place the house on Lot 5, it is – for reasons already stated – highly probable that Mrs Rixon would have sought permission to move the house onto the property before settlement, and that one or other of the Mr Browns gave her that permission. The defendant must have known that the house was being moved onto the property via the track, that there was no other practical way of getting it there, and that once there, the only practical means of access and egress to and from it would be via the track. Inherent in this is that the defendant must, or at the very least ought to have, also known that the plaintiff was acting on the assumption that, upon completion of the purchase, she would be entitled to use the track. Allowing her to do so before completion was calculated to create the impression that upon completion she would be entitled to access via the track.

6. [79]

   Moreover, the defendant must have known, or at least ought to have known, that the plaintiff would not likely have purchased the property, or placed a house on it via the track, if she were not entitled to access over the track. In those circumstances, the defendant could not, knowing that she was proposing first to purchase the property, and then to locate the house on it, stand by, allowing the plaintiff to act on the basis of her assumption, and later deny its truth. At the least, the defendant acquiesced in the plaintiff’s assumption when, in conscience, any objection ought to have been stated. [43]

7. [80]

   By using the track to show the plaintiff the property for the pre-purchase inspection, and indicating to her that she should use the track to install her house, without stipulating that the track was not legal access or that there was any restriction or limitation on its use, the defendant is so implicated in the plaintiff’s purchase of the property and installation of the house on it reliant on her assumption that she was entitled as of right to use the track, as to render it unconscionable now for it to deny the truth of that assumption, given the detrimental consequences of such a denial.

The remedy

1. [81]

   Although it has sometimes said that the relief granted in a case of equitable estoppel is the minimum necessary to avoid the detriment to the party who has relied on the assumption induced by the party estopped, this is unduly narrow; underlying the doctrine of estoppel in equity is that, when the conditions for its operation are established, it is unconscionable for the defendant to deny the plaintiff’s assumption or expectation, and thus the equity will not infrequently be satisfied only by holding the defendant to the plaintiff’s assumption, though there are cases in which the equity might be satisfied by a charge for expenditure and so on. [44]

2. [82]

   In cases in which rights of access over land owned by others have been upheld on the basis of an equitable estoppel, the equity has sometimes been satisfied by a licence, [45] but in others by an easement. [46] In Thomas v Symons, Windeyer AJ said:

3. [83]

   In Hill v AWJ Moore & Co Pty Ltd, [47] Needham J said:

4. [84]

   These cases indicate that the appropriate remedy is informed by the scope of the plaintiff’s assumption (to the extent that it was or ought to have been known to the defendant), and the proportionality of the remedy to the detriment. Prima facie the relevant assumption defines the remedy, which need not be the minimum, [48] but if it is disproportionate some lesser remedy (such as a charge for expenditure) may be granted.

5. [85]

   In this respect, this is a stronger case than Hill v Moore, in which the plaintiff “did not have a clear view of the basis of his right” and “was undoubtedly of the view that, in some way, whatever rights of user he had were based, at least in part, in the fact that the Council had built the road”. In the present case, although the plaintiff may not have turned her mind to it at the time in legal terms, her assumption was that she was entitled in perpetuity to use the track as of right, not as a matter of permission of the defendant – in legal terms, that she had an easement. On the faith of that assumption, as the defendant must have known, she (and her then husband) purchased Lot 5 and located the house where they did. A personal licence would leave Mrs Rixon with a property which she could not sell with a viable access, when she had purchased it on the assumption that it was entitled to such access. Mrs Rixon’s assumption was to the effect that she had an easement – not a mere licence – over the track, and in those circumstances, the defendant is estopped from denying that she has such an easement; her equity would not be satisfied by a mere licence.

Permissible extent of user

1. [86]

   Prior to its acquisition by Mrs Rixon in 1982, Lot 5 had been used for agricultural purposes; at one stage, it formed part of a dairy farm. When Mrs Rixon acquired it, it was her intention to occupy the property as a residence and to graze horses. There is no suggestion that at the time of her purchase, or when the house was moved onto the property, it was contemplated by Mrs Rixon that it would be used as a bus park, let alone that the defendant was aware of any such notion. The defendant submitted that any easement or licence in favour of Lot 5 would be limited to use of the track for the ordinary incidents of access to the home and property, and would not extend to permit its use by a “fleet of buses”. The defendant also raised related issues:

   1. (1)

      whether the Court would exercise a discretion in favour of the plaintiff where she had not sought or obtained development approval to station buses on her land;

   2. (2)

      whether any easement or licence ought accommodate any business in which Mrs Rixon is not the sole proprietor; and

   3. (3)

      whether any easement or licence ought accommodate any such vehicles (for example, cement trucks) as might be required for the conduct of whatever business (for example, cement works) that Mrs Rixon might decide to establish on Lot 5.

2. [87]

   The extent to which an easement accommodates changes and increases in user varies according to the manner of its creation, and in particular whether it arises by express grant or reservation, implied grant or reservation, or prescription.

3. [88]

   In the case of an easement created by express grant or reservation, the scope of the right of way is prima facie a matter of construction of the words of the grant, although this may be influenced by the circumstances surrounding the grant. [49] A grantee is not confined to the user prevailing at the time of the grant, but may use the right of way for any lawful purpose within the terms of the grant; [50] thus if the grant is in general terms, it can be used for all purposes for which the dominant tenement can lawfully be used, [51] so far as they are compatible with the physical nature of the servient tenement. [52] As Campbell J (as he then was) put it in Maher v Bayview Golf Club: [53]

4. [89]

   Notwithstanding observations to the contrary in the dissenting judgment of McHugh J in Gallagher v Rainbow, [54] the Court of Appeal said in Perpetual Trustee Co Ltd v Westfield Management Ltd [55] that in the case of an express grant, as distinct from a case of prescription, an easement may, on the true construction of the grant, permit user for new or additional purposes of the dominant tenement. Hodgson JA, with whom Beazley JA (as her Honour then was) and Tobias JA agreed, said: [56]

5. [90]

   This appears to have been accepted in the High Court: [57]

6. [91]

   Thus, in the case of an express grant, any user within the terms of the grant and not inconsistent with the physical characteristics of the servient tenement is permissible.

7. [92]

   As is apparent from the above discussion, the authorities indicate that a different approach applies in the case of an easement acquired by prescription. Although the mode of user of such an easement can evolve in the same way as in an express grant – so that a prescriptive right obtained by animal-drawn vehicles can be used by motor vehicles [58] – the purpose of the user is confined to that which gained the prescription. [59] This is because, in the absence of an actual grant, there is no grant to be construed, and the permissible user must be ascertained from the actual user through which the right has been gained. [60] The distinction was explained by Mellish LJ in United Land Company v Great Eastern Railway Company: [61]

8. [93]

   In Maher v Bayview Golf Club, [62] Campbell J (as he then was), after an extensive and illuminating review of many authorities, [63] concluded that while there can be a change in the extent to which an easement is used from that which existed while the easement was accruing, and while there can also be changes in the detail of how the easement is used, so long as the use is still of the same nature, a change in the nature of use of the easement (such as if the dominant tenement comes to be used not only for agricultural purposes but also for a carrying business) is beyond the scope of the prescriptive easement. [64] In my view there are sound grounds in policy and in principle for doubting that a prescriptive easement cannot accommodate a change in user of the dominant land. After all, the concern is the user of and burden on the servient land, and an easement should not control the use to which the dominant land, for which the easement may well be the only access, can be put. If dominant land which was agricultural had the benefit of a right of way, over which on average three cattle trucks transited daily, was converted to commercial use, with three delivery trucks using the right of way daily, it is not apparent how there would be the slightest adverse impact on the servient land. Yet it is accepted that the agricultural use could be intensified (so that the number of cattle trucks increased), without exceeding the permissible use of the easement. However, the principle is too well-established, including in the cases considered by Campbell J, to be discarded by a judge sitting at first instance.

9. [94]

   There has been only limited consideration of the position in respect of an easement created by implied grant or reservation. In Stevens & Evans v Allan & Armanasco, Wolff J held that the extent of an implied (Wheeldon v Burrows) right was limited to the user at the time of the grant, [65] but while the character and purpose of the user cannot be changed, the intensity of use (and thus the burden on the servient land) may be increased. [66] The rationale for this appears to be that where the implication arises from “continuous and apparent user” at the time of the implied grant, the purpose must be assumed to be limited to that user. [67] These authorities therefore treat an implied easement in the same way as a prescriptive easement. This is understandable in the context of a Wheeldon v Burrows easement, which depends on proof that the quasi-easement is “continuous and apparent”, but it is less easily rationalised in the case of an easement of necessity, which does not depend on any evidence of actual user, and will often arise before there has been any user. Implied easements are founded on the presumed common intention of the parties, [68] and in principle there is no reason to confine their presumed intention to the user at the time of the implied grant.

10. [95]

    If the plaintiff’s easement were or analogous to a prescriptive one, or if the plaintiff’s equity depended on a permission granted by the defendant for a limited purpose, then it would not extend to authorise use to access the property for the purpose of parking buses there. However, here the easement is founded on an assumption that the track was the legal access, to which she was entitled as of right, and while at first sight there are some similarities between an equitable easement such as arises in this case and an easement arising by prescription or implication, the closer and preferable analogy is with an express grant. The equitable easement neither depends on nor arises from evidence of actual user, but because the defendant is precluded from denying that an easement has been granted; thus, as in so many instances of equitable estoppel, where the dealings between the parties fall short of creating a legally enforceable contract, nonetheless the matters that found an equitable estoppel produce a comparable result.

11. [96]

    The touchstone is, once again, the scope of the plaintiff’s assumption (to the extent that it was or ought to have been known to the defendant). And again, while neither party may have turned their minds to it at the time in legal terms, Mrs Rixon’s assumption concerning her access was that she had a general right of way for all purposes over Lot 130 via the track. If Mrs Rixon were wrong in supposing that she had unfettered legal access over the track, then in conscience the defendant ought to have stipulated any limitation when showing her the land, and/or when agreeing to her installing her home. Accordingly, the easement to which she is entitled is the equitable equivalent of an express grant in general terms for all purposes – a right of carriage way as defined in (NSW) Conveyancing Act 1919, Schedule 8, Part 1, namely:

12. [97]

    It follows that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land since 1982.

13. [98]

    There is no physical feature of the servient land that would constrain use by the Rixons’ buses. Lot 130 was (and remains) vacant and unimproved; user of the track would not foreseeably (at the time of the purchase) and does not now occasion inconvenience to any occupant or user of Lot 130. While it can be accepted that at the time of Mrs Rixon’s purchase there was no contemplation, on either side, of the establishment of a bus business, nonetheless given the size and rural nature and history of the property, it would have been anticipated that the access to the property would be used from time to time by heavy vehicles – including for example cattle trucks, and/or milk tankers to and from a dairy. While much was made of using the track for buses to pass and repass, there is little practical difference between buses on the one hand, and cattle trucks or milk tankers on the other.

14. [99]

    I do not accept any relief should be conditional upon the plaintiff obtaining such lawful approvals as are necessary to use her property as a bus depot. So far as the evidence reveals, use of the property as a “bus depot” has been permissible under the applicable planning instrument at all material times, subject to the council’s consent; in other words, it is not a forbidden purpose for which the land cannot be used. Council’s consent has not been obtained, but it is not clear that merely parking buses on land constitutes use of the land as a “bus depot”, given that the buses are fuelled, maintained and serviced elsewhere. And even if the use is not permissible under the relevant planning instrument, that is a matter for the relevant planning authorities to address under their laws, not for the defendant to seek to enforce through restricting access. The defendant has a legitimate interest in the use of the easement, to confine it to reasonable user, but it has no legitimate interest in whether or not there has been any requisite planning consent for the parking of buses on the neighbouring property.

15. [100]

    Nor is there any significance in the circumstance that the proprietors of the business (Mr and Mrs Rixon) are not identical with the proprietor of the dominant land (Mrs Rixon alone); for example, an easement is available to tenants of the dominant owner.

16. [101]

    A question remains as to the width of the easement. Although survey evidence was presented of a 10-metre easement, Mrs Rixon indicated that she sought only a 4-metre easement, covering the width of the track; the notion of a 10-metre easement had, she said, emerged from discussions between her and Mr Brown in the course of negotiations between them. It was submitted for the defendant that if there were to be an easement, a 10-metre easement would be preferable, but there was no compelling reason for this contention, which I suspect was derived from the evidence that the compensation for a 10-metre easement, at least if imposed under s 88K, would be greater than for a 4-metre easement. No basis for an easement wider than approximately 4 metres is established.

17. [102]

    Thus, the plaintiff’s assumption that she had legal access via the track in general terms founds the equitable equivalent of an express grant of a right of carriageway over the track, 4 metres in width, in general terms for all purposes, so that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land. Absent any physical feature of the servient land that would constrain such use, the easement accommodates use by the Rixon’s buses. The plaintiff is entitled to a transfer of a right of carriageway to that effect. [69]

18. [103]

    Given that I have concluded that the plaintiff is entitled in equity to an easement over the track, it is unnecessary to resort to (NSW) Conveyancing Act 1919, s 88K, to impose an easement. I shall therefore state relatively shortly the conclusions which I have reached in respect of the s 88K application.

Reasonable necessity: s 88K(1)

1. [104]

   An order under s 88K(1) imposing an easement may be made only if the easement is “reasonably necessary for the effective use or development” of the dominant land. While the words of s 88K(1), rather than some substituted phrase, must be applied, the word “reasonably” points to something less than absolute necessity, but “reasonably necessary” involves more than mere desirability, preferability over the alternative available means, or convenience; the requirement is far closer to necessity than it is to convenience. [70]

2. [105]

   The factors that inform whether an easement is “reasonably necessary” cannot be considered in isolation; ultimately the question is determined by the evaluation of all the factors in conjunction with each other. [71] The relevant factors include the impact of the easement on the servient tenement, the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, and the reasonableness of the use for which the easement is proposed. [72] However, one essential consideration is the alternative methods by which effective use or development of the dominant land could be achieved. [73]

3. [106]

   Even on the assumption that access is not available over the track, I am unsatisfied that an easement under s 88K, whether over the track or one of the alternative proposals, is “reasonably necessary for the effective use or development” of Lot 5. No doubt an easement of the track, or one of the alternative options, would be highly convenient, and much more so than the legally available alternatives; but the Queen Street option, though it would require construction and expense, is not impracticable, and on Mrs Rixon’s own evidence would be acceptable to her; she said:

4. [107]

   Lot 5 can be effectively used and developed by constructing an access using Queen Street, without acquiring an easement over Lot 103. For the purposes of s 88K, an imposed easement is not reasonably necessary.

Other matters: s 88K(2)

1. [108]

   Were I wrong about the question of “reasonably necessary”, I would have concluded that an easement utilising Option 7 (Access Option 1) was to be preferred, on the basis that it involved the minimum disruption to the defendant’s land consistent with providing practical access over Lot 130 to Lot 5. I do not regard Option 5 (the Cemetery) as a practical alternative, due to the environmental constraints which are likely to inhibit it, and because it would not meet SISD requirements. Although Option 8 (Access Option 2) would reduce the scale of earthworks, as compared to Option 7, the evidence does not establish that Option 7 would not be approved. Its impact on Lot 130 would be slight, and it would not preclude any reasonable development or use of Lot 130.

2. [109]

   For the purposes of s 88K(2), I would have accepted that the use of Lot 5 (the land having the benefit of the easement) would not be inconsistent with the public interest, and that the owner of Lot 130 (the land to be burdened by the easement) could be adequately compensated for any loss or other disadvantage that would arise from imposition of the easement. I would also have accepted that all reasonable attempts have been made by Mrs Rixon to obtain the easement or an easement having the same effect but have been unsuccessful. Those efforts include extensive inquiries, correspondence and discussions with the Eurobodalla Shire Council and RMS.

Valuation and compensation

1. [110]

   Evidence of value was adduced, by the plaintiff from Mr Wayne Riches, and by the defendant from Ms Symons. The evidence covered the compensation for an easement over the existing track (Option 4), and alternatively a fee for a license to use the existing track; an easement for “access option 1” (Option 7); and an easement for “access option 2” (Option 8).

2. [111]

   Although they used somewhat different methodologies, for the most part there was remarkable consistency in the outcomes, given the difficulties and scope for difference of opinion in the valuation of an easement. Thus, based on a 10-metre easement:

   1. (1)

      Mr Riches valued Option 8 at $20,428 (as a 4-metre easement) and $29,338 (as a 10-metre easement), and Ms Symons at $20,413.

   2. (2)

      Ms Symons valued Option 7 at $20,780, and while Mr Riches did not value that option, it is broadly consistent with both valuations of the comparable Option 8 – allowing that the impact on Lot 130 of Option 7 would be less than option 8.

   3. (3)

      Ms Symons valued Option 4 (easement) at $33,971. Mr Riches did not directly value a 10-metre easement for this option, but valued a 4-metre easement at $20,000 (on the incorrect assumption that there was no dwelling entitlement). His valuation requires at least the following adjustments:

   4. (4)

      Accordingly, on Mr Riches’ approach, a 10-metre easement over the existing track would apparently warrant compensation in excess of $40,000; I can safely accept Ms Symons’ valuation as not excessive.

3. [112]

   As discussed with counsel during the hearing, on that basis, it was accepted that there could be no serious dispute with allowing compensation of $20,000 for Option 7, $22,500 for Option 8, and $30,000 for the track (Option 4).

4. [113]

   My conclusions may be summarised as follows:

5. [114]

   As there were alternative means of access available as of right, albeit that they may have been inconvenient and expensive to construct, the conditions for implication of an easement of necessity are not established – even assuming that one can arise in the context of Torrens title land.

6. [115]

   Although Mrs Rixon was taken via the track (and then, probably across country) to inspect the property, the evidence does not establish that the track then extended beyond the powerlines, let alone to the boundary; moreover, it is not established that the defendant had been in the habit of using the track to access Lot 5. In those circumstances, I cannot be satisfied that at the time of the transfer to Mrs Rixon and her then husband in 1982, the track constituted a continuous and apparent quasi-easement of the Wheeldon v Burrows variety – again, assuming that one can arise in the context of Torrens title land.

7. [116]

   In deciding to purchase Lot 5 (to which there was otherwise no practically available vehicular access), and in locating her house on it (at a place which in a practical sense was inaccessible if the track were not available), Mrs Rixon relied on an assumption that she was entitled as of right to access her property using the track. Falsification of that assumption now would occasion her substantial detriment, in that she would be left with a property which is in a practical sense land-locked, and a house which she could access only by constructing a new access, at considerable inconvenience and cost.

8. [117]

   By using the track to show the plaintiff the property for the pre-purchase inspection, and indicating to her that she should use the track to install he house, without stipulating that the track was not legal access or that there was any restriction or limitation on its use, the defendant is so implicated in the plaintiff’s purchase of the property and installation of the house on it, reliant on her assumption that she was entitled as of right to use the track, as to render it unconscionable now for it to deny the truth of that assumption, given the detrimental consequences that such a denial would have.

9. [118]

   Although the parties may not have turned their mind to it at the time in legal terms, the plaintiff’s assumption, of which the defendant knew or ought to have known, was that she was entitled in perpetuity to use the track as of right, not as a matter of permission of the defendant – that is, in legal terms, that she had an easement. In those circumstances, the appropriate remedy is an easement, and her equity would not be satisfied by a mere licence.

10. [119]

    The plaintiff’s assumption that she had legal access via the track in general terms founds the equitable equivalent of an express grant of a right of carriageway over the track, 4 metres wide, in general terms and for all purposes, so that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land. Absent any physical feature of the servient land that would constrain such use, the easement accommodates use by the Rixon’s buses. The plaintiff is entitled to have transferred to her such a right of carriageway.

11. [120]

    As Lot 5 can be effectively used and developed by constructing an access using Queen Street, without acquiring an easement over Lot 130, for the purposes of s 88K, an imposed easement is not reasonably necessary. Thus I would not have granted relief under s 88K. Were I wrong in that conclusion, I would have preferred Option 7, being the least intrusive on Lot 130, for which appropriate compensation would have been $20,000.

12. [121]

    The plaintiff has substantially succeeded on her primary case. Although she failed on the “implied easement” case, it had no significant impact on the overall costs of the proceedings, and is not severable from the estoppel case. The plaintiff would also have failed on the s 88K case, but it was an alternative case, brought as a reasonable response to the circumstances which confronted the plaintiff, which overlapped in several respects with the estoppel case, and added little to the overall costs, not least because the options addressed under it were advanced as alternatives to the requirement for access over the track. Essentially, the litigation was caused by what I have found to be the defendant’s wrongful refusal to acknowledge and accept the plaintiff’s rights of access over the track, and for that reason the defendant should be regarded as responsible for the litigation. The defendant should bear the plaintiff’s costs.

13. [122]

    However, this does not extend to the costs of creating the legal easement to which the plaintiff is entitled. The plaintiff as transferee should bear the costs of any further survey (in the event that one is necessary), and of preparation and registration of the s 88B instrument and transfer creating easement.

14. [123]

    The Court:

    1. (1)

       declares that the plaintiff is entitled to an equitable right of carriageway (as defined in (NSW) Conveyancing Act 1919, Sch 8), burdening Lot 130 in DP755902 and appurtenant to Lot 5 in DP835976, over the gravel access track as depicted in the plan prepared by Conway Burrows + Hancock dated 24 August 2015, being exhibit PX11 in the proceedings, save that the easement is 4 metres and not 10 metres in width;

    2. (2)

       orders that the defendant do all things and execute all documents, in registrable form, necessary to transfer to the plaintiff, at the plaintiff’s cost, an easement in accordance with the declaration in par 1;

    3. (3)

       orders that there be liberty to apply in the event of any difficulty arising in the implementation of order 2; and

    4. (4)

       orders that the defendant be permanently restrained from interfering with or obstructing the use by the plaintiff and those authorised by her of the said easement.

    5. (5)

       orders that the defendant pay the plaintiff’s costs.