Petrie v Dickson

1. [1]

   These proceedings arise out of a dispute between neighbours concerning a grant of usage rights which was registered as an easement by their predecessors in title. The plaintiff owns the land burdened by the grant and the defendants own the adjoining land which has the benefit of it. The issues concern the extent of the rights granted to the defendants, and the grant’s validity as an easement. It is convenient to refer to the disputed grant as an “easement” despite there being an issue about its validity.

2. [2]

   The parties are neighbours in a duplex (dual occupancy) building development at Palm Beach on Sydney’s Northern Beaches. Both properties are lots in the same Deposited Plan. Lot 1 has the benefit of the easement and Lot 2 is burdened by it.

3. [3]

   Lot 1 is owned by a married couple, Graeme John Dickson and Denise Carmel Dickson. They are the defendants. Lot 2 is owned by Janet Petrie. She is the plaintiff. She shares the property with her husband Maxwell John Petrie. He is not a party to the proceedings, but he appears to have dealt with the Dicksons on his wife’s behalf and he was a witness in the proceedings. For convenience, I will refer to Mr and Mrs Petrie as if they were joint owners of Lot 2.

4. [4]

   The land covered by the Deposited Plan (to which I will refer as the “DP Land”) roughly forms the shape of a kite, with the head (containing the dwellings) facing roughly north and the tail (containing the gardens) facing south. The boundary between Lots 1 and 2 runs for most of its length roughly in a north-south direction, dividing the land into roughly equal halves. At the tail of the kite the boundary deviates to the west so that the point of the tail is within Lot 2. The Deposited Plan is reproduced at [20] below.

5. [5]

   The disputed grant was contained in an instrument made under s 88B of the Conveyancing Act 1919 (“CA”), which was registered in 2003. The instrument described the grant as an easement “for garden use” and gave the owner of Lot 1 the right to use part of Lot 2 for “gardening”. It covered an area of approximately 60 m² on Lot 2 at the tail of the kite, to which I will refer as the “servient area”. The plan attached to the instrument which depicts the servient area is reproduced at [28] below.

6. [6]

   The s 88B instrument also provided that the owner of Lot 1 might construct, and thereafter maintain, a building, described in the evidence as a garden shed, on the servient area. That shed was duly built. The instrument expressly provided that the shed, once built, might be used for the storage of stores and equipment and for installing and using laundry facilities.

7. [7]

   Mrs Petrie purchased Lot 2 in July 2020. The Dicksons contracted to buy Lot 1 about a year later and completed the purchase in September 2021.

8. [8]

   It did not take long after the Dicksons’ purchase for the parties to fall out over the easement. The Petries complained that Mr Dickson was using the area around the shed to store his surfing equipment, and that after surfing he would use a shower affixed to the outside of the shed by a previous owner. Their contention was that the easement was limited to gardening-related activities. Eventually, they cut off the shower head and blocked off the pipe.

9. [9]

   The Petries also complained that the shed was being used to store equipment other than that used for gardening. They also claimed that the easement was for joint use, and that they were therefore entitled to undertake gardening activities themselves in the garden area outside the shed and to use the shed to store gardening-related equipment of their own.

Claims and issues for determination

1. [10]

   The proceedings were begun in May last year. Over time the parties’ contentions have shifted somewhat, but it is unnecessary to go into any detail about this. It is sufficient to refer to the parties’ positions as stated in their opening submissions.

2. [11]

   The s 88B instrument provides for the grant of an easement for gardening purposes over the servient land as a whole, and additional separate provisions dealing with the construction and use of the shed. The Petries accept that, as a matter of language, the use of laundry facilities in the shed is not limited to use which is ancillary to gardening activities. But they maintain that use of the shed for storage is (by implication) so limited. This was disputed by the Dicksons.

3. [12]

   The servient area around the shed (which I will refer to as the “shed curtilage”) is governed only by the gardening grant. The Dicksons accept that their use of this area is confined to gardening and ancillary gardening-related activities. They thus accept that Mr Dickson was not entitled to keep surfing paraphernalia on the curtilage, and that the Petries had been entitled to dismantle the shower.

4. [13]

   But there remains a dispute about the Petries’ rights within the curtilage. The Petries accept that the curtilage must be given over to garden use, but contend that this involves, to some degree, concurrent use and enjoyment by them. The Dicksons’ position is (or at least was at the beginning of the hearing) that any use or enjoyment by the Petries must give way to the exercise or potential exercise of the Dicksons’ gardening rights, which, for practical purposes, means that there is little, if anything, the Petries can actually do on the land.

5. [14]

   There is a similar issue about the shed. The Petries contend that the Dicksons’ storage and usage rights are not absolute and must accommodate a degree of concurrent use of the shed by the Petries. For their part, the Dicksons now accept that they were not entitled to exclude the Petries completely from the shed. They have unlocked it, thus giving the Petries access. The Dicksons’ position, however, is that, while the Petries may have access to the inside of the shed for purposes such as inspection and maintenance, they cannot themselves use the area for storage (or, indeed, other activities which would take up any space), as this would conflict with the Dicksons’ rights.

6. [15]

   The Petries put their case in two ways. Their primary contention is that, as a matter of interpretation of the s 88B instrument, the Dicksons’ rights, as to both the curtilage and the shed, must accommodate a degree of shared use. If this contention is accepted, they seek declarations accordingly and injunctive relief.

7. [16]

   The other way in which the Petries put their case is that, if the Dicksons are correct in their contention as to the scope of their rights, then those rights would, in effect, amount to ownership of the servient area and this would invalidate the easement. If that were so for the curtilage but not the shed, or vice versa, there would be a consequential question as to whether the invalidity of the easement would be total or only partial.

Summary and analysis of the evidence

1. [17]

   Most of the issues in the case depend upon the interpretation of the s 88B instrument and the operation of legal doctrines. There was some evidence from the parties about the current use of the land in question. This evidence came from Mr Petrie on the plaintiff’s side and Mr Dickson on the defendants’. Both were briefly cross-examined, but there was no conflict in the evidence which needs resolution.

2. [18]

   The Dicksons also engaged a surveyor, Mr Jason Raic, who provided a report and some supplementary evidence. He was not cross-examined.

3. [19]

   Originally Lots 1 and 2 seem to have formed part of the same parcel of land. Development approval for the conversion of the land to joint occupancy and the construction of the duplex building was given by the local council in 1995, following proceedings in the Land and Environment Court. The approval resulted from a joint application by Jeffrey Conen, who was to own Lot 1, and Phillipa King, who was to own Lot 2. There was a suggestion that they may have been brother and sister, although the evidence does not confirm this.

4. [20]

   The Deposited Plan which created Lots 1 and 2 was registered in September 1998, after the duplex had been constructed. A copy of the Plan is reproduced below.

5. [21]

   In 1999, Mr Conen and Ms King made a further development application. This covered the construction of the garden shed at the rear of Lot 2 and also a carport on the north-western side of Lot 1. Approval was granted in March 2000. The relevant plan is reproduced below.

6. [22]

   The plan’s title (in the bottom right-hand corner) described the development as “proposed garden shed (1 and 1A) and carport (1)”. The references to 1 and 1A were to the then street numbers and correspond to Lots 1 and 2.

7. [23]

   On the right-hand side of the plan were notes of area calculations, which appear to have been undertaken by reference to permissible development ratios. The notes read:

8. [24]

   There is no evidence which fully defines the boundaries of the reserves referred to, but the approved plan depicted various shapes abutting the northern end of the DP Land and also some areas between the DP Land and the adjoining roads. Along the eastern side, the plan depicted a stone wall running parallel to the eastern boundary, which may have reflected the existence of another reserve.

9. [25]

   In the bottom left-hand corner of the approved plan was a detailed drawing which showed the southern point of the land, outlined in red. The notation read: “area marked in red: easement for storage & right of use created & registered on file by private treaty between Lot 1 & Lot 1A under section 88B instrument”. This language suggests that an easement had already been registered, but that was not the case, and the notation must have been intended to refer to the servient tenement under a proposed easement.

10. [26]

    The area marked in red in the drawing formed a six-sided shape. On its north-western side it followed the boundary between Lot 1 and Lot 2. It then cut back southwards and then eastwards so as to divide the floor area of the proposed shed equally between the proposed servient tenement and the remainder of Lot 2. The drawing is reproduced in magnified form below.

11. [27]

    Also in evidence is the construction certificate. This was undated but referred to plans having been revised to take account of the approval. The revised plans were dated October 2000 and so the certificate must have been issued after that date. The construction plan was relevantly the same as the approved plan and was described in the same way. In particular, it referred to a “proposed carport for number 1 and proposed garden shed for numbers 1 and 1A”.

12. [28]

    The easement itself was not registered until December 2003. This was done by registering the s 88B instrument to which I have referred. A copy of the plan which accompanied the instrument (“the Easement Plan”) is set out below:

13. [29]

    The s 88B instrument provided for three “easements”. The first was the “gardening” grant the subject of these proceedings; its terms are set out at [44] below. It is marked “X” on the Easement Plan. The second was an easement for provision of telephone services. It is marked “Y” on the Plan. Neither party treated the terms of this easement as being of any relevance. The third “easement” was described as a restriction as to user. It created cross-obligations on the owners of Lot 1 and Lot 2 not to fence the boundary between the Lots.

14. [30]

    The servient area depicted on the Easement Plan forms a trapezoidal shape, rather than the smaller six-sided shape shown in the plan which was the subject of prior development approval. The result is that the servient tenement covers the whole, not half, of the floor area of the garden shed. Why this change was made is not revealed by the evidence.

15. [31]

    Following the lodgement of the s 88B instrument, the three easements were separately registered on the titles to Lots 1 and 2. They were referred to as “easement for garden use”; “easement for telephone”; and “restriction as to user”.

16. [32]

    The shed was presumably built after the construction certificate was issued in late 2000 or 2001, but it is unclear whether the building took place before or after the s 88B instrument was lodged in late 2003.

17. [33]

    A survey was undertaken by Mr Raic in July last year. Set out below is Mr Raic’s location plan prepared as a result of that survey:

18. [34]

    Mr Raic also produced a more detailed diagram of the servient land and the shed. This is set out below:

19. [35]

    Mr Raic presented some area calculations. The total area of Lot 2 is 518.3 m². The area of servient land is 63.3 m², representing 12.2% of the total. The footprint of the shed (not including the awnings) is 17.7 m². Ignoring the fact that the footprint encroaches slightly onto Lot 1, it represents 28% of the servient area.

20. [36]

    The shed is a substantial structure. It is a square based building with approximately 4.2 m long walls which appear to be constructed with rendered brick. The roof is made of terracotta tiles and is pyramidal in shape. There are doors on each of the walls except for the western side and there is a large louvered window facing north. The shed is built on top of a concrete slab which extends beyond the northern wall to create a tiled veranda. Reproduced below is a photograph of the shed’s northern and eastern facing sides.

21. [37]

    The shed is equipped with storage shelving, laundry machines and also a tiled bench top and basin fixture. The interior has been used by the Dicksons as a laundry and also as a storage area for various personal, household and gardening items. Reproduced below are three photographs which show the inside of the shed from various angles.

22. [38]

    A photograph from the veranda of the house on Lot 1 looking southwards across the backyard to the shed has been reproduced below. In the shot, the backyard of Lot 2 is on the other side of the hedge which runs along the border between the Lots.

23. [39]

    Reproduced below is a photograph taken from behind the shed looking north across the back yard of Lot 2 towards the house. In the foreground the eastern wall of the shed is visible. The backyard of Lot 2 appears to have been landscaped considerably; pavers and pebbles have been laid and a roofed structure has been erected along part of the eastern boundary. This structure is not depicted in Mr Raic’s drawing (above [33]) and was not referred to by the parties during the hearing.

24. [40]

    On the eastern side of Lot 2, there is a metal fence. The fence actually stands beyond the boundary of Lot 2 and diverges further from the boundary as it heads south. The result is that the fence encloses, as part of the garden area, a sliver of what appears to be a road reserve next to Barrenjoey Road. This is depicted on Mr Raic’s survey drawing reproduced at [34] above.

25. [41]

    The sliver of land is not within Lot 2 and is therefore not within the shed curtilage covered by the disputed grant. Counsel for the Dicksons stated that the Petries use parts of it to store equipment and that they get access to it through the curtilage.

26. [42]

    Reproduced below is a photograph of the area behind the shed looking towards the southern tip of the property. In shot are the metal fence running parallel to the eastern boundary of Lot 2 and a concrete wall which runs along the western boundary of Lot 1. The equipment which can be seen, including a metal watering can, plastic gardening bins, pavers, a ladder and a wheelbarrow, would appear to have been placed on the sliver of land enclosed by the fence which falls beyond the eastern boundary of Lot 2.

Rights created by s 88B instrument

1. [43]

   As already noted, two questions arose for decision. One was the extent of the rights created by the first grant in the s 88B instrument, as a matter of interpretation. The other was its validity. The validity of the easement can only be determined in the light of the rights it actually grants. It is therefore convenient to deal with the interpretation issues first.

2. [44]

   Part 1 of the s 88B instrument describes the first grant as an “easement for garden use”. The terms of the grant are then set out in Part 2 in five clauses:

3. [45]

   Two questions of interpretation were debated by the parties. The first was whether the use of the shed by the dominant owners for storage purposes is confined to the storage of goods and equipment for gardening use. The second was whether the easement permits some degree of shared use by the servient owners.

4. [46]

   Scope of right to store goods in the shed: As already noted, the Petries’ contention was that the dominant owners’ right to store goods in the shed, which is conferred in cl 4(a), is limited to the storage of goods ancillary to the use of the servient area for gardening purposes. The contention for the Dicksons was that there is no such limitation.

5. [47]

   Counsel for the Petries submitted that the starting point for interpretation of the easement as a whole, including cl 4, was cl 1(a), which provides for the grant of an easement for “gardening” purposes. Counsel pointed out that if the shed had not been built, this provision would have governed the whole of the servient area, not just the curtilage. Counsel submitted that the reference to storage in cl 4(a) had to be read, in that context, as a reference to storage for purposes ancillary to gardening activities. Counsel supported this approach to construction by relying on the description of the relevant grant in Part 1 as an “easement for garden use”, without any mention of storage.

6. [48]

   Counsel acknowledged that such reasoning could not be used so as to read down the reference to “domestic laundry activities” in cl 4(b) so as to limit it to activities consequential upon use of the servient area for gardening purposes. Counsel thereby accepted that the terms of the grant, so far as laundry activities were concerned, extended beyond use of the shed for purposes ancillary to gardening. But counsel submitted that cl 4(a) was different. The reference to storage did not necessarily include storage for purposes other than gardening.

7. [49]

   It may be accepted for the sake of argument that the general description of the grant in Part 1 forms part of the context within which Part 2, and in particular cl 4, should be construed. Part 1 is perhaps analogous to a heading in an enactment: cf P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.110]. But I do not think this takes matters very far.

8. [50]

   Clause 1(a) refers to “gardening” but gives the term an extended meaning (“including but not limited to” planting and maintain vegetation). Furthermore, cl 1(b) extends the dominant owners’ rights to landscaping and cl 1(c) to ancillary activities. In these circumstances a heading might be expected to summarise the broad thrust of the rights granted to the dominant owners but cannot realistically be expected to capture the full extent of the express provisions defining those rights. If it had to, much of the point of having headings would be lost.

9. [51]

   In the present case, it is accepted that cl 4(b) involves an extended operation of the grant, which is not limited by the general concept of “garden use”. I see no reason why cl 4(a) should be construed differently. I agree with counsel for the Dicksons, who pointed out that if cl 4(a) where limited to the storage of goods ancillary to use of the servient area for gardening purposes, there would be no need for the express provision for the storage of fuels and chemicals used for domestic gardening purposes at the end of the subclause, and, indeed, little or no point in the inclusion of the subclause at all.

10. [52]

    I therefore reject the Petries’ interpretation of cl 4(a). I conclude that the dominant owners’ right to store goods in the shed extends to the storage of any goods which answer the description of “materials and equipment” (provided, of course, that they are not “dangerous goods”).

11. [53]

    “Shared” or “common” usage of servient area: In written submissions filed in advance of the hearing, counsel for the Petries argued that the Dicksons’ right to use the servient area for “gardening” did not necessarily exclude the Petries from enjoying that land as well. Clause 1 was said, on its true interpretation, to provide for some form of “shared” or “common” usage.

12. [54]

    Counsel for the Dicksons contended that this was not so. In their written submissions, they argued that the Petries could not do anything on the servient area inconsistent with the full exercise of the Dicksons’ right to use it for gardening purposes. The language of cl 1, they argued, gave the Dicksons a level of practical control over the servient area which was inconsistent with the Petries exercising any comparable rights over that land.

13. [55]

    But as the hearing went on, both parties appeared to draw back from the positions they had initially taken. For the Petries, the invalidity argument loomed larger and larger and the interpretation argument became fainter and fainter. Conversely, the Dicksons’ resistance to the concept of some sort of “shared” or “common” usage on the part of the Petries became less trenchant.

14. [56]

    By the end of the hearing, counsel for the Dicksons had, as will be seen, effectively migrated to the position initially taken by counsel for the Petries. But as the Petries’ position had also changed, it was still necessary to deal with the interpretation issue.

15. [57]

    The general principles which apply to the interpretation of s 88B instruments were not in dispute. The court applies the usual principles which apply to the interpretation of deeds, but subject to an important qualification. Ordinarily those principles would permit recourse to the “matrix of fact” for the purpose of interpreting ambiguous language, but, for s 88B instruments, recourse to the matrix of fact is limited to the physical characteristics of the land and what can be discerned from the Register (Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 at [35]-[45]).

16. [58]

    Counsel for the Petries began by pointing out that the easement was defined in cl 1(a) as involving use of the servient area for “gardening”. In counsel’s submission, this word connoted processes of cultivation, such as weeding, fertilising and pruning, which were capable of being undertaken in common. The clause was not expressed in terms of making or building a garden. In this context, counsel submitted, the grant should be understood as conferring rights to maintain an area of garden for the benefit of the owners of both lots. This would be consistent with the physical characteristics of the land in question.

17. [59]

    Counsel further submitted that, in accordance with Westfield interpretation principles, the Court should take into account the council documents associated with the prior development approval granted for the DP Land in 2000. Counsel referred, in particular, to the description of the approved works in the approved development plan ([21] above) and in the construction certificate ([27] above). Both these descriptions, in counsel’s submission, expressly referred to the construction of the shed as being “for” (meaning, in counsel’s submission, for the benefit of) both Lot 1 and Lot 2.

18. [60]

    Counsel for the Petries also appealed to authority in support of their argument. Counsel referred to Miller v Emcer, the lavatory easement case, which is discussed in more detail below (at [141]-[144]), and, in particular, the statement by Romer LJ that exclusion of the servient owners is, to a greater or lesser degree, a feature of many easements ([144] below).

19. [61]

    Easements, in counsel’s submission, nearly always involve a conflict of this type, but the actual conflict is less acute than may at first appear because exclusion of the servient owners only occurs while the dominant owners are actually exercising their rights. Furthermore, both parties are limited in what they can do by considerations of “reasonable use”. In the present case, counsel submitted, “reasonable use” of the Dicksons’ gardening and storage rights had to accommodate the use of the curtilage and the shed by the Petries for gardening and storage of their own.

20. [62]

    In this regard, counsel referred to the decision of the Court of Appeal in Hare v Van Brugge (2013) 84 NSWLR 41. Barrett JA, who gave the leading judgment, stated that “a concept of reasonable use” affects both parties. He explained:

21. [63]

    As well as arguing that Miller v Emcer was an example of shared usage compelled by concepts of “reasonable use”, counsel for the Petries relied on the very well-known decision of the English Court of Appeal in Re Ellenborough Park [1956] Ch 131. The case concerned a subdivision under which the owners of an estate sold off parts of the estate for residential re-development in the form of a square with adjoining roads and plots for the construction of terrace houses. The vendors retained ownership of the parkland and granted rights to the purchasers over it. Many decades later, the parkland was vested in trustees for sale. A point was raised by one of the beneficiaries of the vendors about the enforceability of the purchasers’ rights.

22. [64]

    The terms of the conveyance between the vendors and the purchasers were elaborate. The vendors covenanted to keep the parkland “as an ornamental pleasure ground”. They conveyed to each purchaser the plot of land for building a terrace house together with the use and enjoyment, in common with other purchasers, of the roads forming part of the subdivision and also “the full enjoyment” of the pleasure ground. Each purchaser covenanted, jointly with all other purchasers, “to pay a fair proportion of the expenses of making and at all times keeping” the pleasure ground “in good order and condition and well stocked with plants and shrubs”.

23. [65]

    One of the issues debated before the Court was the nature of a purchaser’s right over the pleasure ground. Counsel for the beneficiary submitted that the right was a “mere ius spatiandi” (a term from the Roman law of servitudes) which Evershed MR, who gave the judgment of the Court, described as a right to “go and wander upon the parkland and every part of it and enjoy its amenities (and even its produce) without stint”.

24. [66]

    The Court rejected the submission. Evershed MR stated that, as a matter of interpretation, the right was more limited. It was “the use of the park as a garden, the proprietorship of which (and the produce of which) remained vested in the vendors”. His Lordship continued:

25. [67]

    As well as Re Ellenborough Park, counsel for the Petries also relied upon Laming ([249]-[260] below). Counsel submitted that “recreational” easements of the type recognised in those cases (and which, in counsel’s submission, would also describe the easement for gardening in the present case) have an “inherently communal” aspect.

26. [68]

    In their opening submissions, counsel for the Dicksons took a diametrically opposed position. In the first place, counsel argued that no reliance could be placed, under Westfield principles, on the council approval documents. Counsel submitted that cl 2 did no more than pick up the dimensions and design of the shed depicted in the relevant plans so as to specify the dimensions of the building which was permissible. It said nothing about the scope of the “gardening” right conferred.

27. [69]

    Counsel submitted that, as a matter of language, the Dicksons’ gardening rights in cl 1 gave them full control over the planting and landscaping of the servient area. Even if, at any particular time, the Dicksons had failed to exercise their rights, it would not be open to the Petries to grow plants or undertake landscaping of their own, because of the need to leave the field clear for the Dicksons to exercise their rights in future.

28. [70]

    Similar observations applied, in counsel’s submission, to the shed. The Petries could not use vacant space in the shed to store goods, even temporarily, because those areas had to be left free to allow the Dicksons to exercise their own right of storage. For practical purposes, while the Petries would have a full right of access to the shed, the right of access could practically only be exercised for the purposes of maintenance or like activities, such as pest control.

29. [71]

    Counsel did acknowledge that the Petries could use the shed structure in a way which did not impinge upon the use of the interior for storage (and laundry) purposes. For instance, the Petries could put solar panels on the roof of the shed so as to generate electricity for themselves, or install a television aerial. But, in counsel’s submission, this was subject to the Dicksons’ right to demolish the shed.

30. [72]

    As already noted, in the course of closing submissions counsel for the Dicksons drew back from the full implications of their opening arguments. In particular, counsel submitted that the Dicksons’ gardening right could not be used to obstruct free movement by the Petries across the servient area. In particular, counsel submitted, the Dicksons could not interfere with the Petries’ use of the sliver of land alongside the eastern boundary of Lot 2 (see [40]-[42] above) for storage. Counsel also disavowed the idea that the terms of the easement permitted the shed, once constructed, to be demolished and removed.

31. [73]

    In written supplementary submissions, counsel for the Dicksons moved even further away from their initial position. The supplementary submissions were prompted by delivery of judgment by Richmond J, a few weeks after I reserved judgment in the present proceedings, in another easement case: Barter v Theunissen [2024] NSWSC 326.

32. [74]

    The parties to the dispute in that case were the owners of adjoining lots, Lot 1 and Lot 2, which had been created as a joint occupancy subdivision with one house on each lot. The house on Lot 2 had a flat roof adjoining the front of the house on Lot 1 (which was higher than, and overlooked, the house on Lot 2). The other sides of the roof, which had views towards Sydney Harbour, were surrounded by a wall topped with a metal railing. On the roof itself was a skylight, which could be opened, above a hallway in the building below.

33. [75]

    Various easements had been granted in favour of Lot 1 over Lot 2. One covered the roof area and gave the dominant owners “full and free right” to pass and repass between the roof area and Lot 1 for any purpose and “the use and enjoyment of” the roof area “for the purposes of recreation and enjoyment and as a balcony, terrace or garden”. It also gave the dominant owners the right to enter upon the roof area for the purpose of repairing and maintaining the surface of the roof.

34. [76]

    The easement was subject to two relevant provisos. One prevented the dominant owners from using or enjoying the servient area in any manner that should be capable of causing damage to it, or in any fashion causing unreasonable disturbance to the owners of the servient lot. The obligation to avoid damage expressly included acts which might damage the structural or waterproofing integrity of the roof area or interfere with the skylight. The other proviso obliged the servient owner to be responsible for the maintenance and repair of the roof and provided that, for the purpose of doing so, the dominant owners would permit the servient owner to enter into and upon the roof to undertake building and repair works on it.

35. [77]

    At the time the easement was granted, there had been no access from the house on Lot 2 to the roof, but the servient owner, Mrs Barter, later reconstructed the skylight and added a ladder which allowed for access from inside the house directly to the roof area. The dominant owners, the Theunissens, objected to this, contending that the easement for recreation and use of the roof area as a “balcony, terrace or garden” gave them effective sole occupation of the area. This argument was rejected by Richmond J.

36. [78]

    His Honour recognised that the right of recreation was not at large. He stated:

37. [79]

    His Honour referred to two textual considerations. One was that, on his Honour’s interpretation of the easement, the initial words “full and free right” applied to the recreation limb. This was not the language of exclusive use (at [109]-[110]). His Honour also considered that the express right to enter the roof area for the purposes of repairs and maintenance would be unnecessary if exclusive occupation had been intended (at [111]).

38. [80]

    His Honour also referred to some physical aspects of the land in question. The first was that the nature of the servient area, namely a building rooftop, itself tended to limit the way in which it might be used (and in fact, there was an express prohibition on using it in a way which could cause unreasonable disturbance to the servient owner). The second was that the roof area was relatively large and could be enjoyed by more than one person, or group of persons, at any one time. There was also the fact that there was no other garden on Lot 2.

39. [81]

    His Honour concluded (at [114]):

40. [82]

    His Honour went on to explain the practical consequences (at [117]):

41. [83]

    In their supplementary submissions, counsel for the Dicksons, reversing the position they had taken initially, argued that the easement in the present case was “recreational” in nature, and, as such, implicitly permitted shared usage of the servient area. They submitted (emphasis added):

42. [84]

    I turn now to the rights conferred by the s 88B instrument, as a matter of language, over the servient area. I do not agree that the initial word “gardening” in cl 1(a) limits the dominant owners’ use of the servient area to processes of cultivation or maintenance, as counsel for the Petries suggested. The remaining words of cl 1(a) expressly provide that for the purpose of the easement, “gardening” encompasses the selection, planting and removal of trees and shrubs. Furthermore, cl 1(b) expressly gives the dominant owners the right to undertake paving and landscaping works. As a matter of grammar, the right in cl 1(b) is independent of the gardening right in cl 1(a) (as the separate reference to cll 1(a) and 1(b) in cl 1(c) emphasises). But even if that were not the case, cl 1(b) would expressly permit the construction of landscaping works for the purpose of gardening.

43. [85]

    It is therefore clear that, as a matter of language, cl 1 permits the dominant owners to use the whole or any part of the servient area for planting and cultivating vegetation, or for paving and landscaping works (not limited to works required for “gardening”). Like any fixture, vegetation planted in the servient area belongs, as against the rest of the world, to the servient owners. But the wording of cl 1(a) makes it clear that, as between the dominant and servient owners, such vegetation is under the control of the dominant owners and may be removed at will. I think it follows that, as between the dominant and servient owners, it is the dominant owners who are entitled to the produce of the garden.

44. [86]

    It was common ground between counsel that the dominant owners’ rights are not limited to establishing and maintaining a garden in the servient area, but extend to use of the garden so created for recreational purposes. I accept that this is so. One of the essential elements of gardening must surely be to enjoy one’s gardening handiwork. Apart from peaceful contemplation, such a right of recreation would, it seems to me, include using the garden for parties or al fresco dining.

45. [87]

    The question is therefore: as a matter of interpretation of cl 1, to what extent are these rights of the dominant owners rights which are shared, or to be exercised in common, with the servient owners.

46. [88]

    In addressing this question, the first point to note is that the right to use the lavatories in Miller v Emcer was expressly a right to use them in common with other tenants of the building and the head lessor. Similarly, the right to use the pleasure ground in Re Ellenborough Park was expressly a right in common with other house-owners ([64] above).

47. [89]

    Quite apart from this, the rights created by cl 1 are very different from those which were under consideration in Re Ellenborough Park. In the present case, the dominant owners’ rights include active rights to undertake planting and landscaping (the latter not limited to garden landscaping); to remove or retain, if they wish, the produce of the garden; and to remove or transplant the vegetation. They are entitled, in effect, to create and enjoy their own garden. Contrast this with the right in Re Ellenborough Park, which was to enjoy a garden built and maintained by the servient owners (to whom, it may be noted, the produce of the garden belonged).

48. [90]

    In the present case, the right to use the servient area to create and maintain a garden is not, in my view, a right which, of its nature, can be shared between, or common to, the dominant and servient owners. The dominant owners’ right to choose the vegetation and landscaping necessarily excludes the exercise of any equivalent rights by the servient owners.

49. [91]

    To my mind, the reference in the supplementary submissions by counsel for the Dicksons to the easement conferring the right to “maintain a garden, such as for the growing of flowers, fruits and vegetables” is telling. Clause 1(a) is clearly not limited to the maintenance of an existing garden, nor does it specify the type of garden which the dominant owners may have. That is up to them. They could have an ornamental flower garden, but they are free to choose a bush garden, a water garden or a rock garden instead.

50. [92]

    Nor is there any reason why the dominant owners should not put a hedge, or a wall, across or around part or all of the servient area. I have some difficulty in seeing why they should have to give the Petries access to the sliver of land alongside the eastern boundary of Lot 2 when the Petries have no right to that land. But there is a more fundamental point.

51. [93]

    Planting a hedge would fall squarely within the dominant owners’ express right to plant the servient area as they wish. And construction of a wall would, I think, likewise fall squarely within their landscaping rights. Even if those rights were limited to landscaping for gardening purposes, growing vegetation on or against walls is a well-known gardening technique. The dominant owners may not, of course, completely prevent access to the servient area by the servient owners, but such access could be provided by means of a gate or door.

52. [94]

    I do not see these conclusions as inconsistent with the decision of Richmond J in Barter. The textual features of the grant in that case, referred to at [79] above, have no equivalent here. Nor do the physical characteristics of the servient land. There was no question of planting vegetation or undertaking landscaping works. Indeed, it is questionable whether using the rooftop as a “garden” could have involved anything more than bringing pot plants onto it, effectively as part of the terrace furniture.

53. [95]

    Indeed, I think there is a broader distinction. In my view, the grant in cl 1 is not properly described as a “recreational” easement in the sense in which that term has been used in cases such as Regency Villas (below [240]-[248]) and Barter. Any right to enjoy the servient area as a garden is consequential upon the creation of a garden by the dominant owners beforehand. There is no freestanding right of recreation in the servient area of the type considered by Richmond J in Barter.

54. [96]

    Are these conclusions affected by what appears in the council approval documents? The construction certificate may be put aside immediately. It was not referred to in the s 88B instrument at all. On no view is it available under the Westfield principles.

55. [97]

    It is true that cl 2(a) did refer to the council approval for the construction of the shed, and thus, indirectly, to the plan which was approved. But the Westfield principles must be applied in a way which is consistent with their purpose. The idea is that interests in Torrens title land can be discerned, and their nature identified, by a person searching the Register. In the present case, neither the approval nor the plan could actually have been found by searching the Register. The plan is now more than 20 years old and the fact that it was available to the parties in the present litigation is merely fortuitous. An ordinary person searching the Register could only hope to obtain the approval and the plan by requesting copies from the local council (if the council was prepared to provide them).

56. [98]

    In the end, however, it is not necessary to decide whether the approved plan is available as an aid to interpretation under the Westfield principles. I agree with the (initial) submission by counsel for the Dicksons that reference to the plan could only be for the purpose for which the instrument refers to it, namely to define the physical characteristics of the building for which authorisation is granted under cl 2. Relying on the plan to characterise the nature of the easement granted in cl 1 would not be permissible.

57. [99]

    The point is graphically illustrated in the present case. The description in the plan upon which counsel for the Petries relied referred to a prospective easement over a servient area which was different from that which was ultimately the subject of the grant: see [30] above.

58. [100]

    Finally, I turn to the limitation allegedly implicit in the concept of “reasonable use”. On the surface, it seems unexceptionable to say that rights conferred should be exercised “reasonably”. But on analysis, questions arise as to the precise content of that limitation.

59. [101]

    It should be remembered that the easement here takes the form of a grant. There is no a priori reason to read it down to limit the exercise of the dominant owners’ rights.

60. [102]

    Where servient land is subject to use by several dominant landowners in common, one has no greater right over the land than the other. By necessary implication, there must be restrictions on each of the co-dominant owners in the exercise of their rights, so as to achieve equality. The same is so if there is an express reservation of an equivalent right by the servient owner. But that is not this case.

61. [103]

    It may be accepted that, where no question of common usage arises, reasonableness may still have a part to play. For example, a right of carriageway cannot be exercised so as to drive vehicles along it at excessive speed (Saint v Jenner [1973] Ch 275, referred to with apparent approval by Lord Scott in Moncrieff ([200]-[208] below) at [45]). It has also been recognised that the owner of land having a right of way over adjoining land which is bounded by a wall or fence is entitled to have the benefit of a gate to provide access, but not necessarily at all points along the boundary (Trewin v Felton [2007] NSWSC 851 at [19], [36]). This, however, may be seen as a limitation on the exercise of incidental rights (which are always limited to what is necessary for reasonable enjoyment of the easement) rather than the exercise of rights to use the land for the purpose stated in the easement itself.

62. [104]

    Outside these examples, it is not easy to identify cases where the scope or nature of the dominant owner’s rights are restricted by concepts of “reasonableness”. For instance, it is difficult to see that, in the absence of an express limitation, the dominant owner could be restricted to certain times of day or a certain number of transits in the use of a right of way.

63. [105]

    I think what I have said is supported by the decision of the Court of Appeal in Hare v Van Brugge on the facts. The case concerned a right of way over a steep strip of land on which there had been constructed, before the grant of the easement, an inclinator. It was contended for the servient owner that the right of way did not give the dominant owners the right to use the inclinator. Counsel for the servient owner argued that, in general, reasonable use means that if there are two ways in which an easement right may be exercised, one of which is more intrusive than the other, the dominant owners must exercise the right in the less intrusive way. It followed, according to the argument, that the easement in question only entitled the dominant owners to climb up the slope on foot or, perhaps, install their own separate cable car above the inclinator.

64. [106]

    This argument was rejected by the Court of Appeal. Following the passage which I have quoted at [62] above, Barrett JA continued:

65. [107]

    Applying these principles in the present case, the requirement of reasonable use cannot limit the exercise of the dominant owners’ rights to plant and landscape the servient area as they wish. They have no obligation to leave that field clear for the servient owners.

66. [108]

    Of course, the servient owners retain the right to go into the garden. But that is not a right of joint recreation. It must allow for the full exercise of the dominant owners’ rights. It seems to me that that would allow the dominant owners, when using the garden for recreation, to exclude the servient owners. I see no scope in the present case for joint usage of the type envisaged by Richmond J in Barter. If the dominant owners build a private garden which they wish to enjoy in peace and quiet, or with their friends and family only, I think they are entitled to do that. There may be reasonableness limits in the exercise of their rights to use the garden for entertaining (for example, as to noise), but that is a different thing.

67. [109]

    For these reasons, I reject the submission that the grant of the gardening and landscaping rights in cl 1 is in some way a right common to, or shared with, the servient owners.

68. [110]

    Similar comments apply to the use of the garden shed for storage (and laundry) purposes. There is, on my interpretation of the grant, no limit on the type or quantity of goods which may be stored in the shed by the dominant owners. It is therefore impossible for the servient owners to identify, at any given time, any particular part of the shed which is available for them to use as storage for their own goods without interfering with the dominant owners’ rights. Even hanging goods from the ceiling would be impermissible as it would prevent the dominant owners from bringing in shelving or suspended storage for further goods of their own.

69. [111]

    In this regard, the points of difference from the right to use the coal shed in Wright v Macadam ([130]-[133] below) are instructive. The coal shed may have been provided for the use of all of the occupants of the building in question, although that is not clear from the judgment. But even if Mrs Wright had the sole right to use the shed, that use was limited to the amount of coal reasonably necessary for heating Mrs Wright’s flat. She would not have been entitled to fill the shed completely with coal as a stockpile for some other purpose, such as selling it or using it elsewhere. No doubt this explains Lord Scott’s comment in Moncrieff ([205] below) that the building owners were able to use other parts of the shed for their own purposes.

70. [112]

    For these reasons I think that the grant in the present case does not provide for any form of joint usage of the shed for storage purposes. Rather, the dominant owners’ rights take up the whole internal space of the shed.

71. [113]

    It is conventional to deal with the validity of a claimed easement by asking whether it satisfies the four conditions discussed by the English Court of Appeal in Re Ellenborough Park. Those conditions were formulated by Dr Cheshire (GC Cheshire, The Modern Law of Real Property (7th ed, 1954, Butterworths) at 460-462) and adopted by the Court. They are:

72. [114]

    There was no dispute in the present case that the first, second and third conditions were satisfied. It was, however, contended by counsel for the Petries that the fourth condition was not.

73. [115]

    For the purposes of the argument before me, counsel for the parties referred extensively to the case law. This will require me to go over what Bryson J described in the Clos Farming case (below at [178]-[191]) at [27], as a “much trodden path”.

74. [116]

    Among the cases, I think that three strands of authority can be discerned. One consists of cases involving grants of rights over spaces such as passages, gateways, cellars, and rooms in buildings in densely populated urban areas. In these cases, the question is typically one of interpretation, namely whether the grant amounts to a conveyance of the space, or merely an easement. Whether the particular grant may take effect as an easement because the easement is one recognised by law only arises incidentally. It is convenient to deal with this strand of authority first.

75. [117]

    In the other two strands of authority the question of validity arises directly (although Wright v Macadam, discussed at [130]-[133] below, is an exception). One line of cases considers the question in the context of storage of goods and carparking (which, as Handley JA said in Wilcox v Richardson (1997) 43 NSWLR 4 at 15, is only a particular form of storage). The other line of cases involves rights of recreation. Because these strands of authority are intertwined, I will deal with them together. I will also include Harada (below at [151]-[154]) and the Clos Farming case, which concerned other (but comparable) types of easement, in my discussion.

76. [118]

    Cases on passageways and parts of buildings: I begin with the decision of the English Court of Appeal in Reilly v Booth (1890) 44 Ch D 12. The case concerned an area behind a row of houses in Oxford Street, London, originally containing some stables, which was accessible from the street through a gateway. The conveyance to the owners included the area itself “together with exclusive use” of the gateway. Later, the property was leased to the defendant, one of the founders of the Salvation Army, who converted it into a Salvation Army meeting hall. The gateway area was used to display advertisements and promotional literature for the Salvation Army. The plaintiff, who was the tenant of one of the houses fronting Oxford Street, objected, claiming that the gateway could only be used as a right of way.

77. [119]

    The claim was overruled. Lopes LJ said (at 26):

78. [120]

    Next is the decision of the High Court in Bursill Enterprises Pty Ltd v Berger Bros Co Pty Ltd (1971) 124 CLR 73. The plaintiff and the defendant were the owners of adjoining parcels of land in Sydney’s central business district. The plaintiff’s land had the benefit of a right of way (up to a height of 12 feet) over a strip of road on the defendant’s land running along the defendant’s side of the border between the two parcels. A building was built, the second storey of which projected across the right of way at a height 12 feet above the road. In 1872, the owner of the defendant’s land granted and transferred to the owner of the plaintiff’s land an extension of the right of way, together with “the buildings at present erected” above the road, with the right to demolish and rebuild such buildings at a height of no less than 12 feet above the ground, and a right of support for such buildings. The transfer was recorded on the title to the two properties as a “right of way”. The defendant claimed ownership of the buildings as the owner of the airspace above the road.

79. [121]

    The defendant’s claim was rejected. The transfer was interpreted as a transfer to the stratum of airspace 12 feet above the road. Windeyer J, with whom Barwick CJ agreed in this respect, stated, at 91:

80. [122]

    The final case in this line of authority to which I will refer is Tileska v Bevelon (1989) 4 BPR 9601, a decision of Waddell CJ in Eq. The case likewise concerned two adjoining blocks in Sydney’s central business district. The boundary between the blocks ran down the centre of a laneway. An indenture of partition dating from 1859 gave the then owner of the plaintiff’s land a right of way over the lane as well as “the right to build over that part of the [lane] to a depth of fifteen feet therefrom leaving twelve feet six inches clear height from the level of the kerbstone”. The plaintiff, as successor in title, claimed to be entitled to a right in fee simple to build in the subject airspace. The defendant resisted the claim, on the ground that the right had been personal to the 1859 owner, or was subject to other conditions which had not been fulfilled, and had not passed to the plaintiff. Alternatively, the grant in the indenture gave rise to an easement rather than a transfer.

81. [123]

    The plaintiff’s fee simple claim succeeded. Waddell CJ reviewed various authorities, including Reilly v Booth and Bursill, and stated (at 9606):

82. [124]

    As a matter of interpretation of the indenture, his Honour rejected the arguments that the right to build had been personal to the 1859 owner of the land, or had been subject to a condition which had not been fulfilled. As to the argument that the indenture only gave rise to an easement, he stated:

83. [125]

    Cases on storage, parking and recreation: The first case to which I will refer is the decision of the House of Lords in Dyce v Hay (1852) 1 Macq 305. It concerned an easement for recreation allegedly arising by prescription. Lady Hay owned a property in New Aberdeen which had a boundary on the River Don. Running alongside the river, across Lady Hay’s land and near to the mansion house in which she lived, was a footpath. The land the subject of the proceedings was a half a mile strip between the footpath and the river of varying depth (between a “couple of yards” at its narrow points and twenty yards at its deeper points). Mr Dyce claimed that this land had been “from time immemorial used and resorted to [by the general public] for the purpose of recreation and taking air and exercise by walking over and through the same, and resting thereon as they saw proper”.

84. [126]

    The claim was rejected. Lord St Leonards LC said (at 309):

85. [127]

    His Lordship acknowledged (at 312-313) that “the character of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind”. But this did not help the plaintiff, because there was nothing novel about using a meadow for recreation, strolling and resting.

86. [128]

    The first storage case to which I will refer is a 1915 decision of the Privy Council, Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599. The case concerned reclaimed land along the shoreline of a district of Lagos, Nigeria. The land had been occupied by merchants who had built jetties and a wharf on it. The question was what compensation was to be paid for roadworks which had been carried out on the land. For that purpose, it was necessary to determine what rights the merchants had over it. The merchants obtained a declaration that one plot of land was the subject of an easement by prescription “for the purpose of storing thereon coopers’ stores, casks, trade goods and produce”. The Crown appealed.

87. [129]

    One argument advanced for the Crown was that the right in question was not one which was known to law. This argument was rejected, although the appeal was allowed on other grounds. Lord Shaw of Dunfermline said, at p 617:

88. [130]

    Wright v Macadam [1949] 2 KB 744, a decision of the English Court of Appeal, concerned the storage of coal on a suburban property on which there was a building which had been subdivided into rooms and flats. In 1940, the owner leased to Mrs Wright a two room flat on the top floor. In 1941, he gave permission to Mrs Wright to use a shed in the garden for storage of coal for her flat. In 1943, he granted Mrs Wright a fresh tenancy, in a written document, of the flat and an additional room. This tenancy agreement did not mention the coal shed, but Mrs Wright continued to use it (rent free) until 1947 when a dispute arose about her entitlement to do so.

89. [131]

    The outcome of the case in the Court of Appeal turned on a provision of the Law of Property Act 1925 (UK) which had been overlooked at first instance. Section 62 provided that a “conveyance” (which included a lease) of land (which included the flat) carried with it all “liberties, privileges, easements, rights or advantages appertaining to” that land. The Court held that the section did not require such an interest or right to have been formally granted for it to pass with a conveyance of the land; all that was necessary was that the right had in fact been “occupied or enjoyed” with the land. On the facts, this requirement was established.

90. [132]

    Jenkins LJ, who gave the leading judgment, said that s 62 was confined to interests known to the law. But this requirement was satisfied. His Lordship said:

91. [133]

    Mrs Wright’s claim therefore succeeded. But as the coal shed had been demolished no injunction was granted and £10 was awarded by way of damages.

92. [134]

    The first case where parking was specifically considered is a 1953 decision of Upjohn J in the Chancery Division, Copeland v Greenhalf [1952] Ch 488. Mrs Copeland was the owner of an orchard, together with a strip of land leading from the road to the orchard which provided access to it via a “gangway”, which presumably was some form of unpaved track. The strip of land varied in width and in some places was substantially wider (up to 35 feet) than the width of the gangway (10 feet). Mr Greenhalf was a wheelwright who carried on a vehicle repair business from land adjoining the strip of land in question. For a combined period of at least 50 years, he, and his father before him, had adopted the practice of leaving vehicles awaiting repair on the side of the strip (but so as to leave a space at least 10 feet wide for access to the orchard). He claimed an easement by prescription over the strip to allow the practice to continue.

93. [135]

    One of the points taken on behalf of Mrs Copeland was that the right claimed was wide and uncertain, in that vehicles could be left, for years if necessary, in a “vague an undefined part of the strip” leaving an “ill-defined gangway” for access. His Lordship upheld this argument. He said:

94. [136]

    Next, I come to Re Ellenborough Park. I have already set out the facts and the Court of Appeal’s conclusions on the interpretation of the grant in question.

95. [137]

    In dealing with the fourth condition of validity, namely, that the right must be capable of forming the subject matter of a grant, the Court identified three more specific questions upon which satisfaction of the condition depended (referred to by Bryson J in the Clos Farming case as the “three cognate questions”). The first was whether the right conferred was “too wide and vague”. The second was whether it was “inconsistent with the proprietorship or position of the alleged servient owners”. The third was whether it was a “mere right of recreation without utility or benefit”.

96. [138]

    On the first question, counsel for the beneficiary submitted that the right was a “mere ius spatiandi” which was not recognised in English law. As already noted, the Court concluded that this was not so. An ius spatiandi, although “easily intelligible as the subject matter of a personal licence”, was an “indefinite and unregulated privilege”. The subject matter of the grant in question was something different, namely “the provision for a limited number of houses in a uniform crescent of one single large but private garden”.

97. [139]

    For similar reasons, the second question was also resolved in the lot owners’ favour. The Court stated that the rights conferred no more amounted to joint occupation and no more excluded the proprietorship or possession of the vendors than a right of way. The Court emphasised that the vendors were entitled to cut the timber growing on the park and retain its proceeds, and likewise that the flowers and shrubs grown in the garden were equally the owner’s property. The Court stated:

98. [140]

    Counsel for the beneficiary relied on the decision in Copeland v Greenhalf but the Court distinguished that decision (which the Court expressly approved on its facts) on the ground that it involved a claimant “occupying and seeking the right to occupy an unspecified part of the land for the purposes of his business, and carrying on such business upon the land so occupied”. As to whether the right was one of “mere recreation or amusement”, the Court stated:

99. [141]

    Miller v Emcer Products Ltd [1956] Ch 304 is another decision of the English Court of Appeal. It was in fact heard and decided in December 1955, only one month after the decision in Re Ellenborough Park, and by the same panel of Judges who had decided that case.

100. [142]

     Miller v Emcer concerned a sub-lease in a building whereby the lessor granted to the lessee the right to use two lavatories on another floor of the building. The sub-lease was of premises in a commercial building. The rooms were on the ground floor of the building. Emcer held the rooms as under lessee of another company known as Englefield, which was referred to in the sub underlease as the “superior landlord”. Englefield was not itself the owner of the building but appears to have been a tenant. Both the underlease from Englefield to Emcer and the sub underlease from Emcer to Mr Miller contained, as a pertinent to the tenancy of the rooms of the ground floor, the right to use the lavatory on the second floor “in common with [Emcer] and [Englefield] and all persons authorised by them and the other tenants of [Groveland House]”. But the second floor was actually occupied by a firm of chartered accountants known as “Smiths” pursuant to a lease which pre-dated Englefield’s lease. Smiths refused to permit Mr Miller and his staff to use the second-floor lavatory.

101. [143]

     The proceedings were brought by Mr Miller against Emcer for damages. The plaintiff could not sue on the covenant for quiet enjoyment because that covenant was in qualified form and limited to Emcer’s liability to interruption by Emcer or Englefield or persons claiming under them, and therefore did not cover Smiths. The plaintiff’s case was that the underlease from Emcer contained an implied covenant that Emcer had title to grant a right to use the second-floor lavatory.

102. [144]

     The case therefore turned on principles of contractual interpretation concerning title and not as such on enforcement of the right to use the lavatories. But Romer LJ, who gave the leading judgment, considered it necessary to decide whether the right was a licence or an easement. He stated:

103. [145]

     I will now summarise five first instance Australian decisions to which reference has been made in the later case law and in the argument before me.

104. [146]

     Riley v Penttila [1974] VR 547 was a decision of Gillard J in the Victorian Supreme Court. This case concerned a subdivision which consisted of a number of housing lots backing onto and surrounding a common area described as a “park reserve”. The vendor retained the reserve and granted to the purchasers of the lots the right “to enjoy the reserve for the purpose of recreation or a garden or a park”. The right was granted in common with other lot owners (although different grants specified different groups of lot owners in this regard) and was to be subject to rules and regulations made by the vendor, or, following the sale of all of the lots, a majority of the lot owners to whom the right had been granted.

105. [147]

     The last allotment was sold in 1928. Over the next forty years, the vendor remained the registered proprietor of the reserve but appears to have taken no action to maintain it. Instead, this was left to the lot owners, some of whom kept parts of it clear from rubbish. No rules and regulations were made by the vendor, or by the lot-owners following the sale of the last lot (and thus the difficulty created by the reference to different groups of lot owners in different grants did not have to be faced).

106. [148]

     The focus of the dispute was part of the reserve which had been fenced by the owner of one of the adjoining lots (lot 36) and used as a tennis court. The tennis court fell into disuse and the disputed area was later used as an extension of lot 36’s garden, which involved the installation of trees, shrubs, stonework and a watering system. The defendants bought lot 36 in 1967 and in 1971 they began excavations in the disputed area in order to build a swimming pool. The plaintiffs, who were other lot owners, objected and sought to enforce the grants as easements over the disputed area. In response, the defendants contended, among other things, that the grants did not create valid easements in favour of the other lots.

107. [149]

     His Honour found that the grants satisfied the four conditions of validity. His Honour rejected an argument that the rights conferred were indeterminate, applying the decision in Re Ellenborough Park (at 559-60):

108. [150]

     Gillard J found that when the tennis court was built it had not been intended to exclude the other lot owners from the disputed area and, in fact, the then owner of lot 36 had promised at least one other lot owner that he could use the court if he wished. Furthermore, there had been plenty of remaining room in the reserve for the other lot-owners to exercise their rights. In these circumstances, his Honour interpreted the construction of the fence and the tennis court as no more than the exercise of the owner of lot 36’s rights under the grant. His Honour saw the subsequent gardening works on the disputed area in the same way. Therefore, the defendants’ adverse possession claim failed. The plaintiffs had not abandoned their rights over the disputed area, which remained enforceable in accordance with the original grants.

109. [151]

     Harada v Registrar of Titles [1981] VR 743 was another decision of the Victorian Supreme Court, in this instance, by King J. It concerned industrial land at Thomastown in outer northern Melbourne. An electricity transmission line operated by the State Electricity Commission (“SEC”) passed over the land, although none of the pylons were actually on the land.

110. [152]

     In 1961, the SEC gave notice, pursuant to its statutory powers, that it intended to acquire compulsorily an “easement” over the land. This “notice to treat” gave a general description of the intended “easement”, which included the right to enter upon and clear part of the land (not specified in the report), and to erect such apparatus and appliances required for transmitting electricity on that land. The “easement” would expressly prevent the owner from building on the area or interfering with the easement or growing trees or erecting buildings or structures. Although the notice was served on the Registrar of Titles, the Registrar did not record the proposed “easement” on the title to the land. The plaintiff bought the land in 1971. She sued the Registrar for compensation on the footing that she should have been notified of the “easement” and that she had sustained loss in purchasing the land as a result.

111. [153]

     Any duty on the Registrar’s part to record the “easement” depended upon whether it was a valid easement in law. King J held that it was not. In the first place, it could not be (and did not purport to be), because it did not relevantly accommodate any dominant tenement. There was no adjoining or nearby land of the SEC to benefit from it. Accordingly, the second condition of validity was not satisfied.

112. [154]

     His Honour, however, also considered the application of the fourth condition, and decided that that condition was not satisfied either. His Honour stated:

113. [155]

     Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 was a decision of Brownie J in this Court. It arose out of a dispute between owners of adjoining residential lots which extended over an area which included a cliff which was two storeys high. On the top of the cliff were Lot 1 and an area of terrace garden which formed part of Lot 2. The rest of Lot 2 was at the foot of the cliff. The garden terrace was not accessible from the lower part of Lot 2 and was the subject of a 1963 grant of a “right of footway” in favour of Lot 1. The grant contained a “proviso” by which the servient owner covenanted not to “traverse or otherwise use” the terrace except on one day a year. The owner of Lot 2 challenged the validity of the grant as an easement.

114. [156]

     Brownie J noted that the terminology of a “right of footway” (which, it was common ground, picked up the standard wording in CA Sch 8) was inapt because the dominant owner was not using the terrace as a means of travelling from Lot 1 to somewhere else, but rather to enjoy it as a garden. His Honour indicated that he would have wished to have more time to reflect on the problem but felt that he had to decide the case immediately. In those circumstances he rejected the challenge to the validity of the easement.

115. [157]

     His Honour rejected an argument based on the first cognate question that the scope of the grant was impermissibly vague. On the second cognate question, he reasoned as follows (at 212):

116. [158]

     Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078 was a decision of McLelland CJ in Eq in this Court. It concerned land opposite the club conducted by the plaintiff which had been used as a carpark. The defendant’s predecessor in title bought the land from the plaintiff and erected a shopping centre, containing a carpark, on it. In the transfer, the plaintiff reserved a right for its employees and customers to use the shopping centre carpark. Later, the plaintiff lodged a caveat claiming that the reservation created an easement in its favour.

117. [159]

     The case came before McLelland CJ on an application to extend the caveat, so it was unnecessary for his Honour to decide finally whether the plaintiff’s claim was valid. Nevertheless, his Honour addressed the question of validity on an interlocutory basis.

118. [160]

     One of the arguments advanced by the defendant against the existence of the easement was that the rights conferred were “too broad or extensive to constitute an easement”, relying on Copeland v Greenhalf. In addressing this argument, his Honour stated, at 15,080:

119. [161]

     Another submission was that “a right of parking cars is a novel right which the law will not recognise as an easement”. His Honour’s response was, at 15,080:

120. [162]

     City Developments Pty Ltd v Registrar General (2000) 135 NTR 1 was a decision of Thomas J in the Northern Territory Supreme Court. This case concerned a resort located on the foreshore of a lake and known as Lake Bennett Resort. The lake was set in a tropical wilderness area and could be used for water sports such as sailing and canoeing. The land which was the subject of the grants in question consisted of a lot (later subdivided), which covered the lake itself and the foreshore around it. Presumably the Resort itself occupied part of the lot, although this is not expressly stated in the judgment.

121. [163]

     The grants in question had been made in favour of a number of lots which had been subdivided off, near to (but not adjoining) the servient lot. One grant conferred on the purchaser the right to “enter upon and use” the servient lot for “private recreational purposes”, subject to a reservation in favour of the vendor, and others authorised by the vendor, in common with the purchaser, of an equivalent right of passage across, and use of, the servient lot. The purchaser was given an express right to keep a catamaran and canoes on the lake and covenanted not to damage the lake’s retaining wall or pollute the lake or interfere with the use of the lake by the vendor or others having a like right to use it. The other grants were in relevantly the same form except that they conferred the right to use the servient lot for “recreational purposes” rather than “private recreational purposes”.

122. [164]

     It was contended that the grant failed both the second and fourth conditions of validity. The challenge based on the second condition failed. In the case of the fourth condition, the challenge was based on both the first cognate question (vagueness) and the second (effective joint ownership).

123. [165]

     In support of the vagueness point, counsel for the plaintiff submitted that the right to use the land for “recreational purposes” could include any number of different types of recreational activity, from horse riding to camping to trail-bike riding, and that “every normal use of the land that one could think of” could be obstructed by some such recreational use or other.

124. [166]

     Thomas J found that the grants formed part of a scheme designed to set aside the lake and the foreshore for recreational use by visitors to the Resort and other surrounding lot owners. The grants in favour of the surrounding lot owners would, for practical purposes, prevent the development of the servient lot except for recreational use. As part of the subdivision, restrictions had also been placed on the development of the surrounding lots which restricted development and clearance of the land. Her Honour considered that the decisions in Re Ellenborough Park and Riley v Penttila were in point and should be applied. As to the vagueness point, she held that the reference to “recreational purposes” had to be, at [41]:

125. [167]

     An appeal from her Honour’s decision was dismissed: City Developments Pty Ltd v Registrar-General [2001] NTCA 7. Angel J, who delivered the judgment, rejected the appellant’s claim that the right granted was merely a jus spatiandi and that it substantially deprived the servient owners of their “proprietorship or possession or ownership of their land”. His Honour stated, at [18] (citations omitted):

126. [168]

     Meanwhile, rights of carparking had been the subject of further consideration in England. A case which proved seminal was London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, a decision of the English High Court (Judge Paul Baker QC, sitting as a Chancery Division Judge). The case concerned a shopping centre development which was to include shops, businesses and a carpark. The plaintiff bought part of the shop area from the developer. As part of the purchase, the developer granted the plaintiff a right, when the development had been completed, to park on such part of the land retained by the developer as might be set aside on that land for carparking. The right allowed customers, clients or employees of any shop or other business conducted on the plaintiff’s land to park in the carpark (if space was available), on the same basis as customers clients or employees of businesses on the retained land, subject to paying a share of the costs of maintaining the carpark.

127. [169]

     It should be noted that Judge Baker considered, as a matter of interpretation of the grant, that it was dependent upon the continued existence of carparking facilities on the shopping centre owner’s land. It would be open to the owner of the land to close those facilities down, whereupon any carparking rights attached to the transferred land would also cease (at 1287H-1288A).

128. [170]

     The plaintiff’s right was expressed to be conditional upon the plaintiff giving notice to be able to exercise it. Before the plaintiff gave the necessary notice the land was transferred by the developer to a third party, who later transferred it to the defendant. The plaintiff claimed to be able to enforce the grant against the defendant. The defendant contended that the right had been lost, and, in the alternative, that the grant was not a valid easement.

129. [171]

     Judge Baker held that this defeated any rights the plaintiff might otherwise have had. But his Lordship also went on to consider the validity of the grant as an easement. He accepted that such an easement was, in principle, permissible. But its validity would depend upon the circumstances.

130. [172]

     Counsel for the defendants relied on Copeland v Greenhalf. Counsel for the plaintiffs submitted that the decision in that case was inconsistent with Wright v Macadam, which had not been cited to Upjohn J. His Lordship stated:

131. [173]

     His Lordship’s conclusion was:

132. [174]

     Judge Baker’s decision was upheld on appeal without it being necessary to consider his views on the validity of the easement: London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31. But the question did arise at appellate level in England in Batchelor v Marlow [2001] EWCA Civ 1051.

133. [175]

     Batchelor v Marlow concerned an undeveloped L-shaped piece of land next to a public highway in what appears to have been a suburban area. The trial judge found that the respondents, who ran a nearby garage business, had acquired an exclusive prescriptive right to park up to six cars on the land in question between 8:30am and 6:00pm Monday to Friday. The land only had space on it for parking of six cars. On appeal, it was contended for the owner that the easement found failed the fourth condition of validity because it effectively deprived the owner of any reasonable use for the land.

134. [176]

     The parties agreed that the test to be applied was that stated by Judge Baker in the London and Blenheim Estates case, quoted at [173] above. Applying that test, the Court of Appeal upheld the owner’s argument. Tuckey LJ, who gave the judgment of the Court, stated:

135. [177]

     Counsel for the respondents argued that it remained open to the owner to sell the land to the beneficiaries of the easement. He could also park on the land himself outside business hours or charge others for doing so. He would be entitled to concrete over the surface of the land without interfering with the garage owner’s rights.

136. [178]

     By coincidence, the decision in Batchelor v Marlow was delivered on the same day as Bryson J, in this Court, delivered his decision on a case which played a critical part in the argument before me, Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525.

137. [179]

     The case concerned an attempt to replicate the “clos” land tenure model used in vineyards in France. Land was subdivided so as to create residential allotments adjacent to an area of farmland intended to be used as a vineyard. Each purchaser acquired two plots of land on the same title, known as part A and part B. Part A was the residential plot, consisting of an area of about 1,500m². Part B was a piece of the agricultural land (not necessarily abutting part A). It was about 1.5 hectares in area. Another lot (to which I will refer as the “Management Lot”) was retained as a controlling master lot from which it would be possible to manage the vineyard operations.

138. [180]

     The scheme was underpinned by an elaborate set of restrictions recorded in a s 88B instrument. The most important of these restrictions was the fourteenth, described as “easement for vineyard”, which authorised the owner of the Management Lot to establish and maintain a vineyard on part B. There were other restrictions which included an “easement for recreation and maintenance” entitling the owner to enter part B, cut and remove timber, landscape the land and build riding trails and picnic areas, structures, works and facilities for recreation.

139. [181]

     The vineyard venture proved unsuccessful and the purchasers wished to be freed of the restrictions. The proceedings were brought by the owner of the Management Lot to vindicate its claimed rights.

140. [182]

     At first instance, before Bryson J, two of Cheshire’s conditions of validity were debated. His Honour found that the restrictions failed the second condition, in that they relevantly failed to accommodate the Management Lot. But he also went on to consider the fourth condition.

141. [183]

     Earlier in his judgment, his Honour explained the policy background for the imposition of conditions upon the recognition of easements. He stated at [15]:

142. [184]

     In his description of the fourth condition of validity, Bryson J referred to the three cognate questions identified in Re Ellenborough Park. His Honour commented that “[a]s with other parts of the subject, considerations raised by these questions are not sharply defined and it is not always easy to see them as aspects of the fourth condition, or as wholly distinguished from each other” (at [23]). He considered that the language of the fourteenth restriction, although wide, was reasonably clear, and therefore addressed the issue of validity by reference to the second cognate question rather than the first.

143. [185]

     The “easement for vineyard” under consideration was novel, in the sense that there had been no attempt (or at least no reported attempt) to create an easement of that type before. Bryson J commented (at [39]):

144. [186]

     His Honour continued by commenting on the cases concerning a right to store goods, which he had described as “not a change in the circumstances of mankind, but a continuation of thousands of years of practice”. He stated:

145. [187]

     Returning to novelty, his Honour went on (at [40], emphasis added):

146. [188]

     His Honour upheld the challenge to validity based on the second cognate question. He stated (at [41]):

147. [189]

     The owner of the Management Lot appealed but the appeal was dismissed: Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389. The Court upheld Bryson J’s conclusions that the grant failed both the second and fourth conditions of validity. Santow JA gave the leading judgment, with which Mason P and Beazley JA agreed.

148. [190]

     On the application of the fourth condition, Santow JA referred, with approval, to the decision in Harada, which his Honour described (at [45]) as having “expressly followed Copeland v Greenhalf (and not the earlier inconsistent Wright v Macadam)”.

149. [191]

     A point taken on appeal, which had not been taken below, was that the vineyard rights only applied to part B of the purchasers’ land. They did not at all affect the purchasers’ entitlement to use and enjoy part A (the residential part of their property). Santow JA acknowledged that this was so. Nevertheless, his Honour upheld Bryson J’s ultimate conclusion. He stated (at [46]):

150. [192]

     Meanwhile, earlier in 2002, the English Court of Appeal decided Jackson v Mulvaney [2003] 1 WLR 360. The case concerned a group of cottages built on suburban land. Initially, the cottages were rented out but from 1950 the owners subdivided and sold them off. The respondent, Mrs Mulvaney, bought her cottage in 1970.

151. [193]

     In subdividing and selling off the land, the owners retained an open area behind the cottage plots, as well as an adjacent strip of land providing access to that area and other properties. Mrs Mulvaney (and the other purchasers) were granted a formal right of way over that backyard and access strip. Over a period of decades, as the cottage plots were gradually sold off and occupied, the open area was used as a communal backyard. By mutual understanding between the cottage owners, “ground rules” developed allocating space next to each cottage for washing lines, lawns and flower beds. The unallocated part of the yard was grassed over, and cottage owners took it in turn to cut the grass and keep the area tidy. There was also what was described as an “access passage” which ran around the outside of the yard, between the flower beds and the cottages, which was grassed.

152. [194]

     In 1996, the owners of the servient land (who by then were successors in title of the original owners) decided to widen the access passage and lay gravel on it so as to improve the access it provided. For these purposes, they ripped up Mrs Mulvaney’s flower bed and removed the grass from the access way. She objected and brought proceedings against the owners.

153. [195]

     At first instance, it was found that Mrs Mulvaney (along with the other cottage owners, but they do not seem to be party to the proceedings) had acquired, by prescription, rights in the nature of easements over the backyard area which went beyond the express right of way. The prescriptive right was described by the trial judge as a right to cultivate, mow and otherwise enjoy the backyard area, and to hang washing there. Mrs Mulvaney was awarded damages for the destruction of her flower bed and a declaration was made that she was entitled to restore it. The trial judge however declined to order the grass on the access passage be restored, because the removal of the grass had not interfered with its use as an access way.

154. [196]

     On appeal to the Court of Appeal, the owners contended that the right found by the trial judge was not an easement known to law. It was argued for the owners that the case was significantly different from Re Ellenborough Park, where the common garden had been maintained by the servient owners. In the instant case, all of the work on the garden had been undertaken by the cottagers, and, so the argument ran, recognition of the prescriptive right amounted to effective exclusion of the owners.

155. [197]

     Latham LJ, who gave the judgment of the Court of Appeal, rejected this argument. His Lordship considered that the cottagers’ prescriptive rights did not exclude the owners, who were free to undertake the maintenance of the servient area themselves. The owners had not in the past done so, but the important point was that they had allowed the area to be used as a communal garden for the cottagers. On this view, the case was not distinguishable from Re Ellenborough Park, and the right which Mrs Mulvaney had been found to have by the trial judge was a right known to law and therefore could arise by way of prescription.

156. [198]

     His Lordship, however, concluded that the declaration went too far in entitling Mrs Mulvaney to restoration of her flower bed in its previous location. Mrs Mulvaney’s prescriptive easement was not specific to her part of the backyard. It was a right, in common with the other cottagers, to use the servient area, as a whole, as a communal garden. Accordingly, the declaration was varied so as to provide that Mrs Mulvaney was entitled to “a right to use [the servient area] as a communal garden for recreational and amenity purposes”.

157. [199]

     So declared, Mrs Mulvaney’s right would not necessarily prevent the owners from widening and laying gravel on the access passage, provided that in doing so they did not alter the character of the servient area, taken as a whole, as a communal garden. But his Lordship considered that they would be required to demonstrate this in advance of undertaking the relevant works, so that for practical purposes, consultation with the cottager, if not agreement, would be required. In removing the flower bed without consultation and without giving Mrs Mulvaney an opportunity to move its contents elsewhere, the owners had interfered with her right, and the award of damages should stand.

158. [200]

     A case involving an easement for car parking reached the House of Lords in Moncrieff v Jamieson [2007] UKHL 42 (the case came from Scotland, but the Scottish law of servitudes was relevantly the same as the English law of easements, so, for convenience, I will use the English terminology). The dominant tenement was a residential block of land by the sea in the Shetland Islands which had been subdivided off from a larger area inland. Vehicular access to the block was not possible because of an escarpment on its inland boundary. At the top of the escarpment was a laneway which led to a main road 140 metres away. The seaside block had the benefit of a right of way over the laneway which had been granted when the subdivision took place.

159. [201]

     The pursuers, who had acquired the seaside block, claimed an entitlement, arising by implication, to park cars on a small section of the land at the clifftop, and also for temporary space to unload vehicles parking there (but not so as to allow permanent storage). The claim was put on two bases. One was that, given the physical characteristics of the seaside block, such a right had been necessarily implicit in the grant of the express right of way. Alternatively, the right was said to be reasonably necessary for the enjoyment of the seaside block and therefore to have arisen by way of separate implicit grant.

160. [202]

     One of the answers to the alternative contention by the defenders was that an easement of the type claimed by the pursuers was not known to law. But this issue did not arise on the primary contention, and that contention was upheld by the House.

161. [203]

     Lord Scott of Foscote, however, went on to consider, and reject, the defenders’ argument that the easement was not known to law. The argument relied, in particular, on Copeland v Greenhalf. It was referred to by his Lordship as the “ouster principle”.

162. [204]

     His Lordship stated, at [54]:

163. [205]

     In connection with Wright v Macadam his Lordship stated (at [55]):

164. [206]

     His Lordship went on to comment on the reconciliation of Wright v Macadam with Copeland v Greenhalf offered by Judge Baker in the London and Blenheim Estates case. He said (at [57]):

165. [207]

     At [59], his Lordship concluded:

166. [208]

     At [143], Lord Neuberger stated:

167. [209]

     The comments by Lord Scott, and the alternative test for the application of the ouster principle which he proposed, have attracted attention in later decisions, although in Virdi v Chana [2008] EWHC 2901 (Ch), Judge Purle QC, sitting in the Chancery Division of the High Court, pointed out that Batchelor v Marlow had not been overruled by the majority in Moncrieff and remained binding: see at [15]-[25].

168. [210]

     In Australia, as I will now describe, Lord Scott’s alternative test has been referred to in at least four first instance decisions of this Court, two of which went on appeal. It has also been referred to in other jurisdictions, including at least one intermediate appellate decision.

169. [211]

     The first decision to which I will refer is the decision of the Western Australian Court of Appeal in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180. The case concerned land which was the subject of strata title (Lot 14). The common property included a carpark. An easement had purportedly been granted over the carpark area in favour of adjoining land which was used as a supermarket (Lot 101). One of the questions which arose was whether the easement satisfied the fourth condition of validity.

170. [212]

     The grant in question created rights in favour of the owner of Lot 101 both of footway and carriageway, and of carparking. The rights of footway and carriageway covered a specified area of the Lot. The right of carparking covered a smaller part of that area. So far as carparking was concerned the right granted was for the “purpose of the parking of motor vehicles…provided that the right to park vehicles shall be transitory in nature”. The rights granted were rights in common with the strata body corporate and all persons authorised by them (which would presumably have included the owners of the individual strata units).

171. [213]

     The validity of the easement was upheld. The leading judgment was given by Buss JA. His Honour noted by reference to earlier English and Australian authority that a right to park cars was capable of being the subject of an easement. The question was whether the rights were not so extensive as to contravene the fourth condition, in the circumstances of the particular case. His Honour noted in this regard the difference between the test propounded by Judge Baker in the London and Blenheim Estates case and by Lord Scott in Moncrieff. He concluded:

172. [214]

     Brydall Pty Ltd v Owners of Strata Plan 66794 [2009] NSWSC 819 was a decision of McDougall J in this Court. This case concerned an easement for parking in a strata title development consisting of factory units. The plaintiff was the registered proprietor of a lot having the benefit of a grant in the following terms: “[f]ull and free right … to park motor cars, motor vehicles, motor carriages and/or trailers on part of the lot burdened, but only within the site of [the] easement”. The defendant was the registered proprietor of the common strata title property which was burdened by the grant. The area the subject of the grant was less than 15 per cent of the servient lot overall.

173. [215]

     His Honour determined, as a matter of interpretation of the grant, that the “full and free” right implicitly excluded the servient owner. In determining whether the easement was valid, his Honour followed the approach of Wilson J in Weigall v Toman [2008] 1 Qd R 192 (see at [14]) which emphasised the importance of considering “proportionality - in the sense of the relative importance or significance of that part of the servient tenement over which an exclusive right is given to the servient tenement as a whole”. McDougall J’s consideration of proportionality occurs at [13]-[15]:

174. [216]

     Ryan v Sutherland [2011] NSWSC 1397 was a decision of Black J. The case concerned two neighbouring lots, apparently residential properties, in the same deposited plan. A s 88B instrument purported to grant, in favour of Lot 1, a right over an area within Lot 2. The right was “to go and repass and utilise [that] area for recreation and the maintenance and establishment of plantings and gardens and/or for the establishment or erection of facilities to the benefit of the dominant tenement”. The judgment does not contain any detail about the physical nature, or the size, of the affected area except that part of a tennis court and concrete supporting wall had previously been erected in that area, and a brushwood fence was later erected in it (see at [6]).

175. [217]

     It was argued for the owner of Lot 1 that the right did not satisfy Cheshire’s fourth condition. His Honour reviewed the case law, including the decision of Bryson J in Clos Farming. In doing so, he stated that Clos Farming was distinguishable from the facts in the case before him in that “the easement affected the entirety of the defendant’s land” (at [17]).

176. [218]

     His Honour referred to the competing tests proposed by Judge Baker and Lord Scott. He addressed both of them. At [22]-[23] he stated:

177. [219]

     Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587 was a decision of Windeyer AJ. The case concerned a commercial development. Part of the development was a hotel (Lot 5). Lot 5 adjoined a block of land (Lot 4) which was a carpark, on which there were 198 car spaces and a telecommunication tower. Other lots in the development included a petrol station (Lot 1), another carpark (Lot 2) and a shopping centre (Lot 3). The grant in question gave the owner of Lot 5, in common with the owners of the other lots, the right to use Lot 4 for car parking for its customers and employees, together.

178. [220]

     One of the questions which arose was the validity of the grant as an easement. The argument for invalidity was based on the second cognate question (effective proprietorship).

179. [221]

     Windeyer AJ referred to the case law and, in particular, tests propounded by Judge Baker and Lord Scott. In passing, he expressed the view that the decision in Evanel was inconsistent with Judge Baker’s test, and that Ryan v Sutherland used reasoning similar to the reasoning in Evanel. But in his Honour’s view, Judge Baker’s test had been endorsed in Clos Farming. His Honour concluded that he was “bound to follow the approach in Clos Farming and London and Blenheim Estates rather than Moncrieff” (at [38]).

180. [222]

     A significant factor for his Honour was that, strictly speaking, “the land subject to a servitude for parking is the surface of the earth and sufficient airspace to accommodate the vehicles which will be parked there” (at [31]). He reasoned, at [39], [40]:

181. [223]

     At [44], his Honour stated:

182. [224]

     The decision was appealed: Registrar General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321. The appeal was allowed on another point, but the Court of Appeal took the same view as Windeyer AJ in relation to the validity of the grant. Bathurst CJ and Beazley P, in a joint judgment, discussed the case law, including Moncrieff, and concluded at [64]:

183. [225]

     But on the facts, the restriction did not fall foul of that principle. Their Honours continued:

184. [226]

     In his concurring judgment, Basten JA reached the same conclusion. His Honour noted the more sympathetic attitude to the validity of easements displayed by Lord Scott in Moncrieff, which involved a preparedness to accept a degree of exclusion of the servient owner from the land in question. He described Clos Farming as involving a “more extreme” case of exclusion which was not inconsistent with the approach in Moncrieff. His Honour stated, at [152]-[153]:

185. [227]

     Towers v Stolyar [2017] NSWSC 526 was a decision of Darke J, which was later the subject of an appeal: Stolyar v Towers [2018] NSWCA 6. The case arose out of a dispute about carparking rights for two adjacent waterfront properties at Rose Bay in Sydney’s Eastern Suburbs. The layout of the properties is shown in the aerial photograph attached to the Court of Appeal’s judgment, which is reproduced below.

186. [228]

     In the photograph, the street giving access to the properties can be seen at the top (east) and Sydney Harbour at the bottom (west). The dominant tenement was known as Lot B, which belonged to the plaintiffs, Mr and Mrs Towers. It was a battle-axe block, the head of which is shaded black and the handle of which, a driveway, is shaded green. Between the head of the battle-axe and the street was another lot (“number 6”), not involved in the proceedings, which is largely unshaded (only the strip of land running along the northern boundary was actually part of Lot B; the part of the driveway running along the western side of the battle-axe head belonged to number 6).

187. [229]

     The servient tenement was known as Lot A and belonged to the first defendant, Mrs Stolyar. In the diagram, most of it is shaded blue. It also contained the areas shaded yellow, brown and red, and the southern part of the area shaded green which did not belong to number 6. Access to Lot A was provided by rights of carriageway over the driveway, to the extent it formed part of number 6 and Lot B. Erected on Lot A and marked yellow was a double garage in which residents or visitors could park.

188. [230]

     The dispute concerned a grant of rights over a strip of land on the eastern side of Lot A. Part of the strip is coloured red and part coloured brown. Most of the brown portion was occupied by a single garage built next to Lot A’s double garage; the southernmost part of the brown shaded area, behind that garage, was vacant. The area in front of the garage, coloured red, was vacant but paved, and was of sufficient width and length to allow a car to be parked there. The grant in question gave the owners of Lot B the right to use the servient area for parking cars and permitted them to maintain the garage building for that purpose. Access from Lot B to the servient area was provided by a right of way over the driveway land on number 6 and on Lot A.

189. [231]

     The dispute between the parties was precipitated by parking disputes between the Towers and Mrs Stolyar’s son, who was occupying Lot A with his family. The Towers were using the red shaded area in front of the garage as a parking space and Mr Stolyar claimed that this interfered with his ability to execute a three-point turn to turn his car around before reversing into his double garage. Ultimately, the dispute turned into a full-scale challenge to the validity of the grant as an easement. It was argued for the Stolyars that the interference with their rights of ownership were so great that the fourth condition of validity was not satisfied. In support of this argument, it was contended that the grant gave the Towers effective control of the garage building as well as the rest of the servient area.

190. [232]

     The challenge failed at first instance before Darke J. In dealing with the issue, his Honour first determined the extent of the rights granted as a matter of interpretation of the s 88B instrument. He rejected the suggestion that the terms of the easement conferred a right to erect a garage of an unlimited height on the servient area. In his Honour’s view, the only right was to maintain, or replace, the existing structure (which, on the probabilities, had already been built when the easement was granted). Nor was there any right to build over the area behind the garage. Nor was the dominant owner entitled to exclude the servient owner from the garage; if the door on the garage was to be locked, the servient owners would need to be provided with a key.

191. [233]

     Darke J addressed the question of validity from two points of view. One focused exclusively on the servient area. The other focused on the servient tenement as a whole.

192. [234]

     So far as the servient area was concerned, his Honour reasoned, at [51]-[52]:

193. [235]

     His Honour concluded that the rights conferred on the dominant owners were not so as to deprive the servient owners of their rights of proprietorship or possession of the servient area.

194. [236]

     So far as the effect on Lot A as a whole was concerned, the only interference alleged was that it prevented the dominant owners from performing three-point turns so as to turn their cars around. His Honour noted that the evidence about this was unimpressive and the area in front of the double garage was large enough to house a turn-table which could be used to turn cars without the need for a three-point turn. He concluded, at [58]:

195. [237]

     The appeal to the Court of Appeal was dismissed. The leading judgment was given by Gleeson JA, with whom Simpson and White JJA agreed. Gleeson JA noted (at [52]) what Lord Scott had said in Moncrieff (at [59], parts of which are extracted at [207] above) about the test to be applied. His Honour also noted the comment by Basten JA, in Jea Holdings, about the increased sympathy towards easements manifested by the decision in Moncrieff. But as I read the judgment, his Honour did not need to reach any conclusion about the test to be applied. His Honour was content to proceed on the same basis as Darke J had proceeded at first instance.

196. [238]

     Following this approach, Gleeson JA upheld the conclusions which Darke J had reached concerning the effect on the easement area. He added, at [71]:

197. [239]

     His Honour likewise rejected a challenge to what Darke J had said about the effect on the servient tenement as a whole. In doing so, his Honour noted that there was no evidence that it was impossible to turn cars around, for instance by undertaking a turn which involved more than three points (at [70]-[73]).

198. [240]

     In 2019, another easement case, this time involving recreation, reached the United Kingdom’s ultimate appellate court. Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553 concerned a country estate of about 90 acres, which had been turned into a “country club” or “leisure complex” known as “Broome Park”. The 17th century house (referred to in evidence as the Mansion House) had on its upper floors been converted into time share apartments giving the owners or occupants for the time being the right to use the facilities, which included a championship golf course and swimming pool, as well as facilities such as a restaurant and billiard and television room in the Mansion House itself. The rest of the estate remained farmland.

199. [241]

     A smaller house known as Elham House had also been part of the estate at an earlier point when the estate had been bigger. After the development of the leisure complex, Elham House was also converted into time share apartments and an easement, or purported easement, was granted in favour of the Elham House land allowing the time share residents use of the leisure complex facilities, both in the Mansion House and in the grounds. The developer who undertook the conversion covenanted to pay a contribution to maintaining the facilities, but, as a positive covenant, this did not run with the land and so did not bind the appellants, who were later purchasers of the Elham House land.

200. [242]

     The appellants contended that the grant entitled them to use the facilities and, there being no obligation to pay in the grant itself, to do so at no cost. In response the validity of the grant as an easement was challenged, both in its application to the facilities in the grounds, and in its application to the facilities in the Mansion House. It was contended that neither the second condition nor the fourth condition of validity was satisfied. By majority (Lord Carnwarth JSC dissenting) the easement was held valid as it applied to all of the facilities (and any future facilities which might have been constructed).

201. [243]

     The judgment of the majority was delivered by Lord Briggs JSC. His Lordship addressed the fourth condition using the “ouster principle” terminology which had been used by Lord Scott in Moncrieff. Lord Briggs’ description of the principle was:

202. [244]

     The argument before the Supreme Court on the ouster principle focused on interference with possession and control, rather than interference with “reasonable beneficial use”. It was common ground between the parties that the servient owner could not be compelled to take any positive action to make the leisure facilities available. If the servient owner ceased to do so, then it would be up to the dominant owners, if they wished to make use of the facilities, to maintain and operate those facilities themselves. The entitlement to do so was referred to as “step-in rights”. The argument for the appellants was that the exercise of such rights would “deprive the appellants of possession or control of the park, or substantial parts of it, thereby amounting to ouster” (at [62]).

203. [245]

     Lord Briggs dealt with this argument as follows (at [63]-[65]):

204. [246]

     Having rejected this argument, his Lordship still found it necessary to consider “the wider question whether the grant for time share owners of comprehensive rights to the use and enjoyment of recreational land and sporting facilities in an adjacent leisure complex is something which the law of easements ought to comprehend”. His Lordship noted that in various respects the case went further than Re Ellenborough Park. He stated at [75]:

205. [247]

     His Honour noted that recreational easements had become “widely recognised in the common law world”, referring, in particular, to Riley v Penttila and the City Developments case. He continued, at [79]-[80]:

206. [248]

     Nevertheless, his Honour stated, at [81]:

207. [249]

     At around the same time, the Victorian Court of Appeal considered a claim for recognition of another type of recreational easement in Laming v Jennings [2018] VSCA 335. The case concerned an area of land forming part of a larger block at Ferney Hill, a suburb on the eastern outskirts of Melbourne. The block in question had previously been owned by the Australian Communications Commission (later Telstra Corporation Limited). It was vacant and part of it was, or had previously been, bushland. It now belonged to Mr Laming.

208. [250]

     Mr Jennings owned and lived in a suburban property which adjoined the block in question. Over many years, he and his family, and before that, the previous owner of his land, had used a large area of the block consisting of 1400 m² as their backyard. They had created and maintained a lawn, removed and planted trees, erected a clothesline and placed garden furniture there. Mr Jennings claimed prescriptive rights over the land as a result of this period of use.

209. [251]

     The primary claim was a claim to ownership based on adverse possession. But on the findings of the County Court Judge, neither Mr Jennings nor his predecessors in title had ever held complete possession. Furthermore, they had acknowledged a lack of ownership by making offers to Telstra to buy the land.

210. [252]

     The claim for an easement by prescription, however, succeeded. The County Court Judge made a declaration that Mr Jennings was entitled to an easement “for the purposes of recreation”. The declaration went on to specify that the permitted usage “includes burning green waste and storing domestic firewood”.

211. [253]

     On appeal by Mr Laming, it was contended that the easement so declared failed to satisfy the fourth of Cheshire’s conditions. The appeal succeeded on another ground (knowledge of the use made of the land by Mr Jennings, and his predecessor in title, could not be attributed to Telstra, preventing any easement arising by prescription) but the contention was nevertheless addressed, in obiter, by the Court.

212. [254]

     The contention was put on two grounds which the Court dealt with separately. One, based on the first cognate question in Re Ellenborough Park, was that the rights declared were too wide and uncertain to merit recognition. The other, based on the second cognate question, was that the easement was “inconsistent with the possessory rights of [Mr Laming] and…unworkable”.

213. [255]

     For the purposes of dealing with the parties’ arguments, the Court reviewed the case law. Two cases, Re Ellenborough Park and Mulvaney, were said to “stand for the proposition that use of a communal garden for recreational and amenity purposes or use of a common area for recreation may be the subject of a valid easement” (at [128]). But the Court pointed out that the servient land in those cases had a “common or communal character”. That was not the way the case for Mr Jennings had been put and the easement, as declared, could not be sustained on that basis (at [143]-[145]).

214. [256]

     Before embarking on the arguments, the Court first determined, as a matter of interpretation, the scope of the rights which had been declared. The Court noted that, although in effect the putative servient area had been used as a backyard, that language had not been used in the declaration. Instead, the term “recreation” had been used. The particular instances referred to in the declaration of burning green waste and storing domestic firewood was seen by the Court as not being subsumed within “recreation” and effectively amounting to specific individual grants (at [125]-[126]).

215. [257]

     It was therefore necessary to determine whether an individual (or as the Court termed it, a unilateral) right of “recreation” was permissible. The Court commented:

216. [258]

     The Court observed, at [154], that disagreements and uncertainty of a similar kind could arise in the context of a right of recreation in common. The Court stated (at [154]-[155]):

217. [259]

     As to whether the easement amounted to a right to possession, the argument for Mr Laming relied on Copeland v Greenhalf and Harada. The Court accepted that a purported right which amounted, in effect, to a claim for possession of the servient tenement was not a proper subject matter of an easement, but stated that the case law revealed a “very uncertain line” between what is permissible and what encroaches too far. The Court’s conclusion was (at [170], citations omitted):

218. [260]

     The Court however added that if the easement had been expressed in terms of use as a “backyard” it would not only have been too wide, it would have impermissibly conferred a right of possession over the disputed land and would thus have been invalid.

219. [261]

     Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] 103 NSWLR 834 was a decision of the Court of Appeal on an easement which would have allowed the dominant owner to wall off part of the servient land. The case concerned a block of vacant land owned by the local council adjacent to a stormwater drainage channel at Strathfield at inner western Sydney. The land lay between the drainage channel and a larger block of land used for industrial purposes. The owner of that land built a waste recycling plant on the land which encroached onto the council’s land. The owner also built a wall (referred to as the “Acoustic Enclosure”) enclosing the plant. The wall ran through the middle of the council’s land, enclosing more than half of it with the plant. When the problem came to light, the owner sought the grant of a compulsory easement over the land. The easement proposed would permit the dominant owner to “construct, maintain and enjoy” the Acoustic Enclosure by obtaining support from the existing structures associated with the plant.

220. [262]

     One of the points taken by the council was that the proposed easement could not be granted because it did not satisfy Cheshire’s fourth condition. This contention was upheld by the trial judge in the Land and Environment Court, and by the Court of Appeal. The leading judgment was given by Basten JA. His Honour accepted the conclusion by the trial judge that for practical purposes the right sought would effectively exclude the council from exercising its ownership rights over the proposed servient area. Under the terms of the proposed easement, the council would remain entitled to enter the area for the purposes of inspection, but this would be, for practical purposes, pointless.

221. [263]

     His Honour referred to the test stated by Judge Baker in the London and Blenheim Estates case and noted that it had been adopted in the Clos Farming case, the East Fremantle Shopping Centre case, and Stolyar. He continued:

222. [264]

     Finally, there is Barter. I have already referred to the facts and the decision of Richmond J that, as a matter of interpretation of the grant, the servient owner had a right to share the usage of the servient land with the dominant owners. As in the present case, counsel for the servient owner presented an alternative argument that, if the grant did not provide for shared usage, it fell foul of the ouster principle. But given his conclusion on the interpretation issue, Richmond J did not need to consider this question.

223. [265]

     Argument: Counsel for the Petries submitted that if (as I have concluded) the Dicksons’ right to use the servient area for gardening and landscaping under cl 1 of the grant was not limited by some notion of shared use, it was effectively indistinguishable from ownership and was for that reason invalid. And, in counsel’s submission, if (again, as I have concluded) the use of the shed for storage purposes did not involve an element of sharing, the same was so, for the right to build, maintain and use the shed under cll 2 and 4.

224. [266]

     Counsel for the Dicksons resisted these submissions. Counsel acknowledged that, if there were no element of sharing, the exercise, by the Dicksons, of their gardening and landscaping rights under cl 1 would greatly limit the scope of what the Petries would be able to do with the servient area. But, in counsel’s submission, the limitation was not total, or practically total. Counsel submitted that the Petries would still be entitled to use the garden area, as developed by the Dicksons, for recreation and enjoyment. The shed could be used, as suggested in Stolyar, as the site for a satellite dish or rooftop solar cells. In counsel’s submission, the Petries remained in occupation and control of the servient area despite the terms of the grant.

225. [267]

     Counsel for the Dicksons also relied on the point (made in Wright v Macadam in the passage quoted at [132] above; see also Lord Scott’s comments in Moncrieff quoted at [204] above) that, to a greater or lesser extent, all easements tend to restrict the use of the servient land which they affect. This includes well accepted easements such as rights of way. Counsel submitted in this regard that the easement did not amount to a substantial interference with the Petries’ ownership and enjoyment of Lot 2 as a whole. Counsel likened the case to Stolyar, where Darke J emphasised that the easement in question left the main features of the property (a substantial area of house and garden, with a water frontage) unaffected.

226. [268]

     The submissions from counsel for the parties thus focused the second cognate question arising under the fourth condition of validity identified in Re Ellenborough Park. In the rest of this judgment, I will use the more recent terminology of the “ouster principle”. It must however be borne in mind that the ultimate question remains whether the subject easement is capable of forming the subject matter of a grant. The terms of the ouster principle are not fixed by statute and there may be overlap with the other cognate questions. The same may be said of the fourth condition itself.

227. [269]

     The application of the ouster principle is complicated in the present case because the servient area represents only part of the servient lot, Lot 2. I propose to discuss the authorities, and address counsel’s submissions, in two stages. First, I will consider whether the degree of interference with the servient owners’ rights would be such as to bring the ouster principle into play, considered by reference to the servient area alone. Then, I will consider the application of the ouster principle in the context of the servient lot as a whole.

228. [270]

     Effect on servient area: It is convenient to deal first with the easement so far as it purports to confer a right to use the servient area for gardening, including the planting of trees and shrubs and the undertaking of paving and landscaping works. In dealing with the case law, I will begin with four preliminary points.

229. [271]

     First, the list of permissible easements may not be closed, but the principle in Dyce v Hay otherwise has no bearing on this case. The grant in the present case is novel only in the sense that no-one, it seems, has previously tried to create an easement of the present type. The comments of Bryson J about “novelty” in Clos Farming, quoted at [185] above, are directly in point.

230. [272]

     Second, I think caution is required in reasoning by analogy from the cases about easements for parking. Such an easement may, for practical purposes, severely limit the use which can be made of the surface of the land. If that part of the land must be kept aside to enable the dominant owner to park cars on it, and the dominant owner is entitled to park cars to the full extent of the space available, little if any practical use can be made of the surface. But that still leaves the use of the subsurface area and the air space above the surface for other uses. This feature of an easement for parking was strongly brought out in Jea Holdings. It can also be seen in Stolyar, where Darke J pointed out that the right to park cars in the garage did not prevent the use of the upper parts of the garage for other purposes. The same point applies to rights of way: cf Lord Scott’s comments in Moncrieff quoted at [207] above.

231. [273]

     An easement which allows the dominant owner to establish and maintain a garden on the servient land stands in quite a different position. Obviously, the servient land cannot be roofed over and the air space above it developed. And, while in theory, some exploitation of the area below the surface would remain possible, that would be limited by the need to ensure that there was no interference with the drainage and root structure of the plants being grown.

232. [274]

     In some cases, the scope of a gardening easement might be limited in practice by the nature of the servient land (for instance, if the servient land was a city rooftop where soil had to be brought in and only certain types of vegetation could be grown). But that is not this case. The dominant owners here have complete discretion as to the vegetation to be grown (and the landscaping to be carried out). For practical purposes, it is difficult to see how that would allow any practical development or use of the airspace above, or the subsurface beneath, the servient area.

233. [275]

     The third preliminary point is that many of the cases involve a facility constructed by the servient owner on the servient land which is then extended by easement to permit the facility to be used by the dominant owner, in common with the servient owner and with other dominant owners. Facilities of this type include carparks (London and Blenheim Estates, East Fremantle Shopping Centre and Jea Holdings) and the leisure complex in Regency Villas. In such cases, for as long as the servient owners wish to continue to operate the facility for their own purposes, there is no question of interfering with their rights to develop the land. And, as already noted, the rights granted to the dominant owner are limited by the requirement that those rights must be exercised in common with others. In Jea Holdings, Basten JA expressly stated that the common nature of the right granted was sufficient to ensure that the ouster principle was not engaged: see the passage quoted at [226] above.

234. [276]

     The pleasure ground in Re Ellenborough Park can, I think, be seen as another “facility” of this type. It was to be established and maintained by the servient owners. They were to select the plants to be grown and the landscaping to be undertaken (and were to retain ownership of any produce of the garden). In fact, it appears that at some later point responsibility for operating the pleasure ground was assumed by what was, in effect, a committee of the dominant owners, and financed by them. But Evershed MR was careful to point out that no party had suggested that this made any difference: at 169. It should also be noted that one of the features of the leisure complex established and maintained by the resort owner in Regency Villas was an “Italianate garden”: at 557. Similarly, the owner of the resort in the City Developments case seems to have been responsible for maintaining the lake foreshore as a recreation area and an access point for the lake itself.

235. [277]

     Similar observations apply to the communal garden in Mulvaney. It is clear from the Court’s decision about the access way that, although consultation might in practice be required with the dominant owners, decisions about the layout of the garden were ultimately up to the servient owners: see at [199] above.

236. [278]

     In Regency Villas, Lord Briggs acknowledged the practical problems which may arise if the arrangement for others to use a facility on the owner’s land is structured by way of easement rather than by way of lease. In particular, the facility may become obsolete, and there is no practical way of compelling the servient owner (or the dominant owners) to pay for its upkeep. In my respectful view, the dissent by Lord Carnwath shows that such problems had not satisfactorily been overcome on the facts of that case.

237. [279]

     A practical answer may lie, in some cases, in the suggestion by Judge Baker in the London and Blenheim Estates case that, as a matter of implication, the easement in that case would last only as long as the servient owner continued to maintain and operate the car parking facilities on the servient land. If that goes too far, there may at least be an implication available that, if the facility became obsolete or fell into disuse, the easement would end; the dominant owners would not be entitled to build a facility of the relevant type on the servient land themselves (compare the interpretation which Darke J placed on the easement in Stolyar, which prevented the dominant owners from doing anything more than maintaining the existing garage). Another answer, not dependent upon implication, would be that, if the facility became obsolete or fell into disuse, the easement could be removed for obsolescence under CA s 89.

238. [280]

     In a case where Judge Baker’s interpretation applied, the servient owner could simply shut down the facility at any time, thus bringing the easement to an end, and use the land for something else. It is hard to see how the ouster principle would have any application in such circumstances. In the alternatives which I have suggested, the ouster principle would still come into play during the operational lifetime of the facility. But in situations where a grant only operates for the operational lifetime of a facility on the servient land, I see no reason why this should not be taken into account when determining the incursion into the servient owner’s rights for the purpose of the ouster principle. In other words, if the servient owner’s rights are only being affected for a finite time, the grant may receive more favourable treatment under the ouster principle than a perpetual one.

239. [281]

     It is, however, unnecessary to develop these ideas any further for present purposes. This is not a case where a servient owner has built a facility, in the form of a garden, and made it available for use by others. Here, the servient owner has made the servient land available for the dominant owners to build their own garden (cf Laming at [154], quoted at [258] above). There is no question of the dominant owners being limited by a need to exercise their rights in common with others.

240. [282]

     The fourth preliminary point concerns “recreational” easements. The approach to such easements in Re Ellenborough Park was cautious. The Court went out of its way to distinguish the right in question in that case from an ius spatiandi. Yet the appeal judgment, City Developments, expressly stated that an easement giving the dominant owner an ius spatiandi was valid (although the use of the term in the two cases may have been different). It is now clearly established in the United Kingdom, following the decision of the Supreme Court in Regency Villas, that there is nothing objectionable about an easement for “recreational” purposes. But it is not necessary in this case to consider the state of Australian authority on that question. For reasons earlier in the judgment, I do not think that the easement for gardening is “recreational” in the relevant sense.

241. [283]

     These preliminary points are sufficient to distinguish nearly all of the cases to which I was referred. What remains are two cases involving the grant of a unilateral right, not enjoyed in common with others, to use servient land for gardening, or something comparable. Those two cases are Ryan v Sutherland and Laming.

242. [284]

     In Riley v Penttila, Gillard J appears to have accepted that the residential lot owners’ rights to use the reserve included rights to undertake their own works on it, such as the establishment of the tennis court and the extension of lot 35’s private garden. But his Honour only considered the fourth condition of validity as it related to the first cognate question (uncertainty). He did not address, at least directly, the consequences, for the application of the ouster principle, of recognising an easement which allowed the lot owners to undertake their own works on the reserve land.

243. [285]

     For practical purposes, there may not have been any reason to do so. Substantial parts of the reserve were unused (or at least undeveloped). Indeed, no rules for the operation of the reserve had been promulgated and the owner of the reserve land (the original vendor) was not even a party to the proceedings. No conflict between development by individual lot owners and development for common purposes had arisen. Had it done so, it might well have been resolved along the lines of Mulvaney, with the lot owners being entitled to undertake their own gardening works, but subject to those works being modified or replaced by works undertaken in the common interest.

244. [286]

     In Ryan v Sutherland, the reasoning on the ouster principle focused on the grant of rights for the “establishment of or erection of facilities for the benefit of the dominant tenement”. The question which has been addressed before me, namely whether the grant of rights to establish and maintain a garden is inconsistent with rights of ownership, does not appear to have been specifically considered. Furthermore, the grant in that case made no mention of paving or landscaping, but was confined to plants and gardens.

245. [287]

     The right under consideration in Laming was a right to use the servient area for “recreation” (together with two other activities, namely burning off and storage of domestic firewood, which would presumably not have extended over the whole of the servient area claimed). The interference with the owner’s rights involved in a grant giving an exclusive right to plant the area with trees and shrubs, and pave and landscape it, was not under consideration.

246. [288]

     In Laming, the Victorian Court of Appeal did express the view that if (contrary to the Court’s concluded view) the grant in question was not too uncertain, then it would not infringe the ouster principle. This was expressly an obiter view based on an assumption. The easement in question was one for “recreation”, which, as I have already said, differs from the easement in the present case. Furthermore, the assumption made by the Court left it unclear whose wishes would prevail in the event of conflict on practical issues such as those identified by the Court in the passage quoted at [257] above. And the Court went on to say that an easement for use “as a back yard” would fall foul of the principle.

247. [289]

     For these reasons, I do not consider any of Riley v Penttila, Ryan v Sutherland or Laming to be clear authority authorising an easement of the present type. I therefore turn to the consider the question of ouster by reference to first principles.

248. [290]

     Lord Scott’s opinion in Moncrieff has been described as adopting a more favourable attitude towards the recognition of servitudes or easements. That statement requires some qualification.

249. [291]

     The view of the law which his Lordship was propounding had two elements. One was that the ouster principle should be confined to cases where the purported easement deprived the owner of the servient land of ownership or control of the land, rather than merely restricting the use which might be practically made of the land. If accepted, this would indeed limit the reach of the ouster principle and thereby expand the scope for the grant of easements. But Lord Scott also propounded a second proposition, namely that for the purposes of applying the ouster principle, reference should be made only to the servient area, rather than the lot of which it formed part, taken as a whole. Acceptance of that proposition, on its own, would make it easier to rely on the ouster principle in a case where the servient area formed only part of the servient lot.

250. [292]

     For the moment, I am considering the first proposition. I agree with Windeyer AJ in Jea Holdings in thinking that the formulation of the ouster principle in Clos Farming is not necessarily consistent with Lord Scott’s proposed formulation of the principle in Moncrieff (and with the approach of Brownie J in Evanel). The Clos Farming formulation adopts a practical test which looks to the extent to which the owner of land may actually use it. It is not a test which fastens only on legal concepts of ownership, possession or control.

251. [293]

     The purported easement in the Clos Farming case was held to fail the second condition of validity (accommodation of the dominant tenement) as well as the fourth (because of the ouster principle). But I do not think it necessary to go into whether, strictly speaking, the decision so far as it concerned the ouster principle was obiter. The decision on the ouster principle was a considered one by the Court of Appeal, upholding a comprehensive judgment at first instance, and I agree with Windeyer AJ that later decisions of the Court have not cast any doubt on that decision. I should apply it.

252. [294]

     But Clos Farming does not merely define, in general terms, the test for application of the ouster principle. I think the case, in its facts, is, out of all of the cases to which I have referred, the closest to the present. As in Clos Farming, the servient owners in the present case can enjoy the servient area, but only in a passive way, and only by keeping out of the way of the dominant owners. The servient owners are, in practice, deprived of any control over how that area may be used or developed. Their ownership of it is effectively sterile and nominal.

253. [295]

     In these circumstances, I consider myself bound by the decision in the Clos Farming case to conclude that the gardening easement in the present case infringes the ouster principle, considered by reference to the servient area. Even if I thought that Laming or Ryan v Sutherland were authority to the contrary, Court of Appeal authority, binding on me, would have to prevail.

254. [296]

     In Moncrieff, Lord Scott asked why owners should not be able to create any servitudes they like. The answer is provided by Bryson J’s explanation in Clos Farming. Owners may indeed create such entitlements as they wish by way of personal licence, as a matter of contract. But the law will not permit them, as a matter of public policy, to attach such entitlements to land in perpetuity. The public policy is designed to secure freedom of later owners to use and develop the land to its best advantage.

255. [297]

     The entitlement to build the shed may be dealt with more briefly. In the first place, a distinction should be noted between the right to build the shed in the present case and the rights concerning the garage in Stolyar. In the latter case, the right was limited to the maintenance and repair of a building already on the site, and did not extend to the construction of a new garage. Furthermore, the easement in Stolyar was drafted in such a way as to make it clear that the rights concerning the garage were ancillary to the right to park.

256. [298]

     In the present case, the purported easement is worded differently. It is expressed in terms of a right to construct the building and then to use it for specified purposes, rather than a right to use the land itself for the defined purposes and, to that end, to build a building.

257. [299]

     Nearly all easements include an ancillary right to undertake building works on the servient land if that is reasonably necessary for the enjoyment of the easement. Thus, for instance, dominant owners having the benefit of a right of way may, at their own expense, lay down a pavement: Bland v Levi [2000] NSWSC 161 at [22]. Often such ancillary rights are express, but even if not express, a right to undertake such works is usually implicit in the grant: see Westfield at 535 ([23]).

258. [300]

     In some cases, the right to undertake ancillary works might extend to the construction of habitable structures. An example of this is a right to use land for pasturage, which might allow, in high or remote places, for the construction of huts for shepherds to shelter in: see Moncrieff at [23], per Lord Hope of Craighead. But a free-standing easement which gives the dominant owner the right to construct a building for themselves on the servient area is quite another thing.

259. [301]

     The limitations on currently recognised forms of easement are, in my view, instructive. CA schedule 8 now recognises a standard “easement for overhang” to enable an overhanging structure to remain in an adjoining airspace (Part 10) and a standard easement to permit encroaching structures to remain on adjoining land (Part 13). But the rights created by these easements are not extensive. In each case, the easement is limited to an overhang or encroachment which existed when the easement was created and only extends to the space occupied by that existing overhang or encroachment. Moreover, the servient owner may insist upon the easement being extinguished if the structure in question is removed.

260. [302]

     Counsel for the Dicksons questioned the authority of the decision in Tileska, and, in particular, Waddell CJ’s statement that that the right to build over the land could not be regarded as an easement because it gave exclusive occupation to the dominant owner. Counsel suggested this was inconsistent with a right, recognised in other cases, “to build over an easement”.

261. [303]

     I do not accept counsel’s criticism of the decision in Tileska. It falls squarely within the line of authority which begins with Reilly v Booth and includes Bursill. The point being made by Waddell CJ was that by constructing a building over the laneway, the adjoining proprietor would, in effect, be appropriating the airspace. The fact that the laneway could continue to be used for access did not alter this fact.

262. [304]

     It is true that in the present case the shed, once built, can only be used by the dominant owner for storage (and laundry) purposes. But for reasons given earlier, usage for those purposes effectively prevents any other use of the interior of the building. The case is different from Stolyar, where, in effect, only a part of the garage space was the subject of the easement, leaving the servient owners to use the rest of the space, and to extend the garage for their own purposes.

263. [305]

     The servient owner, of course, retains ownership of the subsurface area and the airspace above the shed, but it is not easy to see how, in practice, those areas could be exploited, especially given the limitations imposed by the overarching grant for gardening and landscaping (it is not necessary to go into whether, and to what extent, that grant would permit the dominant owners to use the structure of the shed itself to grow vegetation or support landscaping works). In my view, any opportunity to install solar panels on the surface of the roof, during the lifetime of the building, is insubstantial in the scheme of things.

264. [306]

     Effect on Lot 2 as a whole: Lord Scott’s contention that the ouster principle should be applied by reference to the servient land alone (see [206] above) has not, at least so far, been followed in this State. In the most recent case in which the point arose, Stolyar, the Court addressed the effect of the easement in question on the servient lot as a whole, although, whether it was necessary, or sufficient, to do so was not formally addressed.

265. [307]

     On the other hand, authority in this State does not support the converse proposition, that the ouster principle is to be applied by reference to the whole of the servient lot without specific consideration of the effect on the servient area. The Court of Appeal in Jea Holdings expressly stated that the effect of the restriction on the servient area is a relevant factor which may in some cases be decisive (see [224] above).

266. [308]

     In Ryan v Sutherland, the servient area was said to be only a “small part” of the servient lot but the judgment does not contain any further description. I have already pointed out that the effect of the gardening grant does not appear to have received separate consideration, and that in Jea Holdings, Windeyer AJ considered that Black J’s reasoning on this issue paralleled the approach of Brownie J in Evanel which was inconsistent with that taken by the Court of Appeal in Clos Farming.

267. [309]

     In Stolyar, the proportion of the surface area of the Stolyars’ lot which was taken up by the servient area cannot be calculated precisely from the judgment, but from the diagram reproduced at [227] above it would appear to have been small. Moreover, the effective exclusion of the servient owners from the servient area was not total.

268. [310]

     In both Clos Farming and Aussie Skips, the servient area did not extend over the whole of the servient lot, but the exclusion of the servient owners from the servient area was effectively total and the ouster principle applied. In Clos Farming, Santow JA described the servient area as a “very significant portion” of the servient lot, and, in Aussie Skips, Basten JA described the grant which was sought as an “appropriation of a large part” of the servient lot. In Clos Farming, however, the servient area was more than 80% of the surface area of the servient lot as a whole, and, in Aussie Skips, it was almost 70%.

269. [311]

     In Clos Farming the servient, agricultural, portion of the lot in question was not contiguous with the other portion of the lot. But the unaffected portion was still large enough to use for residential purposes. It would have been difficult to argue that the inability to use the servient portion for agricultural purposes made any great difference to the use and enjoyment of the residential portion. Nor was there any enquiry into the relative market value of the servient portion compared with the residential portion. The residential portion may have been more valuable.

270. [312]

     In the present case, the servient area accounts for 12% of the surface area of Lot 2 as a whole. But for reasons I have given, the effective exclusion of the servient owners from the area, including the airspace above it and the subsurface below, is virtually total. In effect, the easement cuts off the garden area in the tail of Lot 2 and gives occupation of it to Lot 1. As the construction of the shed shows, the shape and dimensions of the area are such as to allow for the construction of a substantial, and potentially habitable, building. The land is located in a suburb where property is highly sought-after for residential purposes. In my view, the effective loss of control over the area has a significant impact on the amenity of Lot 2 as a whole. Presumably, it would have a similar degree of impact on the lot’s value.

271. [313]

     There is no authority which requires the servient area to exceed 50% (or any other percentage) of the servient lot as a whole. I see no reason in principle why there should be. The public policy behind the ouster principle would not justify any such restriction: it is concerned with maximising the use and value of land generally.

272. [314]

     In this context, Lord Scott’s point that an easement cannot be valid when initially granted over part of a large area but become invalid if the servient land is subdivided off is difficult to refute. In saying this, I do not suggest that the point turns on whether formal subdivision is currently, or may foreseeably be, available. Part of a parcel of land may be exploited, for instance by way of lease or licence, without necessarily undertaking a formal subdivision.

273. [315]

     In my view, the easement amounts to the effective appropriation of a substantial piece of land belonging to the servient owners, and this is sufficient to invalidate it under the ouster principle. It is not necessary to consider the question of partial validity.

Conclusions and orders

1. [316]

   I have concluded that the first grant in the s 88B instrument is not a valid easement. The plaintiffs thus succeed in the proceedings.

2. [317]

   In their summons, the Petries claimed a declaration of invalidity and an order “rectifying” the Register accordingly. I am not sure the Court has the power to make a on order directly requiring the Registrar to alter the Register, at least in the form proposed. I will adjourn the proceedings for a short time to allow the parties to consider this, and also the question of costs. If they are unable to agree, I will hear further argument.

3. [318]

   The order of the Court is:

   1. (1)

      Order that the proceedings be adjourned to 9:30 am on 23 August 2024 or such other time or date as may be agreed by the parties and notified to my Associate, for the making of final orders.