Ashoil Holdings Pty Ltd v Fassoulas

[2005] NSWCA 80

Reported Decision: (2005) NSW ConvR 56-125

Court of Appeal

CITATION:	Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80
HEARING DATE(S):	23 February 2005
JUDGMENT DATE:	30 March 2005
JUDGMENT OF:	Handley JA at 1; Tobias JA at 7; Campbell AJA at 66
DECISION:	Appeal dismissed with costs

CATCHWORDS:	CONVEYANCING - Easements - Extinguishment of easements - Right of way - Abandonment - Whether right of way had been abandoned - Whether abandonment should be inferred from non-user, alternative access and/or obstruction - Establishing abandonment where title is under Real Property Act 1900 and easement appears on title - Whether court should have regard to acts or omissions of predecessors in title - Obsolescence - Whether right of way should be deemed obsolete by reason of change in character of neighbourhood and/or change in user of dominant tenement - Conveyancing Act 1919 s 89(1)(a), (b)
LEGISLATION CITED:	Conveyancing Act 1919
CASES CITED:	Gotobed v Pridmore (1970) 115 SJ 78 Grill v Hockey (1991) 5 BPR 11,421 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Re Truman Handbury Buxton & Co Ltd's Application [1956] 1 QB 261 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 Cavacourt Pty Limited v Durian (Holdings) Pty Limited (1998) 9 BPR 16,833
PARTIES:	Ashoil Holdings Pty Athanasia Fassoulas Angela Fassoulas Arthur Fassoulas
FILE NUMBER(S):	CA 40616/04
COUNSEL:	A: P Clay R: J Whyte
SOLICITORS:	A: Denes Ebner, Sydney R: Andresakis & Associates, Parramatta

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2825/03
LOWER COURT JUDICIAL OFFICER:	Gzell J

CA 40616/04
SC 2825/03

HANDLEY JA
TOBIAS JA
CAMPBELL A-JA

Wednesday 30 March 2005

ASHOIL HOLDINGS PTY LIMITED v ATHANASIA FASSOULAS & ORS

The appellant made an application pursuant to s 89 of the Conveyancing Act 1919 for an order extinguishing an easement over its land. The appellant is the registered proprietor of the dominant tenement and the respondents are the registered proprietors of the servient tenement. The easement is a right of way running off the main road, onto which the two tenements front, and down the boundary between the two tenements. Both tenements are under the Real Property Act 1900 and the easement appears on both certificates of title.

The right of way was created in 1920 to provide access from the main road to the rear of the buildings on both tenements. In 1935, a lane was created at the rear of the tenements. From about the 1950s until approximately 1980, a paling fence existed across the right of way's frontage to the main road. In 1979, with the permission of the respondents' predecessors in title, the then servient tenement holder removed the paling fence and installed gates at both ends of the right of way. In 1995, the respondents acquired the dominant tenement. The appellant acquired the servient tenement in 2002.

The appellant submitted that the easement should be extinguished by reason of abandonment by the respondents' predecessors in title (Conveyancing Act s 89(1)(b)). Alternatively, the appellant submitted that the easement should be deemed obsolete (s 89(1)(a)).

Gzell J rejected the appellant's application for an extinguishing order. The appellant appealed to the Court of Appeal.

HELD by Tobias JA, Handley JA and Campbell A-JA agreeing, dismissing the appeal:

(1) The evidence did not establish a clear or fixed intention on the part of the respondents' predecessors in title to abandon any future use of the right of way by themselves or their successors in title ([50], [53]-[54], [60]).

(2) There had been no relevant change in the character of the neighbourhood or in the user of the dominant tenement such that the right of way should be deemed obsolete. The evidence did not establish that the creation of the rear lane had the effect that the easement was no longer capable of serving the purpose for which it was granted ([61], [63]).

Handley JA: Where both tenements are under common law title, the court, in considering the question of abandonment, can have regard to the acts and omissions of the dominant tenement holder's predecessors in title. It is not clear that the position is the same when the titles are under the Real Property Act. This is because where, as in the present case, the easement appears on the certificate of title at the time the dominant tenement is acquired, the benefit of the easement is acquired on and by registration and is not derived from the transferor or any earlier proprietor.

CA 40616/04
SC 2825/03

HANDLEY JA
TOBIAS JA
CAMPBELL A-JA

Wednesday 30 March 2005

ASHOIL HOLDINGS PTY LIMITED v ATHANASIA FASSOULAS & ORS

Judgment

1 HANDLEY JA: I agree with Tobias JA and do not wish to add anything to his reasons for upholding the decision of Gzell J that the subject easement had not been abandoned. However I wish to add some tentative observations on an issue that was raised by the Court on which the parties did not present any argument.

2 Section 89(1)(b) of the Conveyancing Act 1919 which, by sub-s (8), applies to land under the Real Property Act 1900, enables the Court to extinguish an easement upon being satisfied that:

“… the persons … for the time being or from time to time entitled to the easement … whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement … is annexed … by their acts or omissions may reasonably be considered to have abandoned the easement …”

3 Both tenements are under the Real Property Act and the easement, which was created in 1920, remains on both titles. The respondents became registered proprietors of the dominant tenement in February 1995. Their title, as defined in their certificate of title, which includes the benefit of the easement, was acquired on and by registration, and is not in any sense derived from the transferor or any earlier proprietor. See Frazer v Walker [1967] 1 AC 569 and Breskvar v Wall (1971) 126 CLR 376 where Barwick CJ said at 385-6:

“The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.”

4 Where both tenements are under common law title the Court, in considering the question of abandonment, can have regard to the acts and omissions of the persons who have owned the dominant tenement since the easement was created. It is not clear that the position is the same when the titles are under the Real Property Act.

5 If the dominant tenement is under the Act the persons “for the time being or from time to time entitled to the easement” within sub-s (1)(b) include the current registered proprietor. This is clear under the first limb and it seems to me that the current registered proprietor is one of the persons from time to time entitled to the easement. Statements in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 and Pieper v Edwards [1982] 1 NSWLR 336 confirm the relevance of the acts and omissions of previous registered proprietors in cases under sub-s (1)(b). However these cases may leave open the question whether it is necessary, when the dominant tenement is under the Real Property Act, to establish that the current registered proprietor, as one of the persons for the time being entitled, has also abandoned the easement.

6 It is not necessary to further consider this question in the present appeal and I agree that it should be dismissed with costs.

7 TOBIAS JA: This is an appeal from a decision of Gzell J given on 29 June 2004 whereby his Honour rejected an application by the appellant pursuant to s 89 of the Conveyancing Act 1919 (the Act) for an order extinguishing an easement over the appellant's land at Punchbowl.

The relevant facts

8 The appellant is the registered proprietor of 260-264 The Boulevarde, Punchbowl (the servient tenement). The respondents are the registered proprietors of 266 The Boulevarde, Punchbowl (the dominant tenement). The easement the subject of these proceedings is a right of way approximately 8' wide running off The Boulevarde and along the boundary between the two tenements (the right of way).

9 Memorandum of Transfer A531581 dated 12 January 1920 and registered on 3 February 1920 created the right of way. At the time of its creation, the right of way was shown on the plan annexed to the transfer as bisecting Lot 68 Section 6 of the Emerald Hills Estate, Punchbowl. Endorsed on that plan were the following words:

"Access to rear of buildings to be erected on these allotments to be by right of way over 8' shown on plan"

It was common ground that the purpose of the right of way was, at the very least, to provide pedestrian access from The Boulevarde to the rear of the commercial/residential buildings proposed to be erected on each of the tenements.

10 Lots 68, 69 and 70 were bounded on their rear by Lot 71, which had a frontage to what became known as Rossmore Road. In 1916, Lots 64 to 67 (inclusive) were re-subdivided which resulted in the creation of a lane 20' wide extending from Arthur Street to the east across the rear of the former Lots 65 to 67. This lane ended at the rear boundary of Lot 71 and therefore did not extend to the rear of Lots 68 and 69.

11 However, on 25 October 1935, part of Lot 71 was resumed by Canterbury Municipal Council (the Council) which had the effect of extending the lane to the rear of Lot 68. In 1936 the lane was further extended across the rear of Lots 69 and 70 to Rossmore Street. The lane became known as Turner Lane. It remained a dirt lane until the early 1970s when a public car park was constructed (presumably by the Council) behind the lane and the lane itself was laid with asphalt.

12 At all material times there was a two-storey building on the dominant tenement which extended across the whole of its frontage to The Boulevarde but which only occupied approximately one third of the length of the allotment. Erected upon that part of the servient tenement being 260 The Boulevarde was a two-storey Commonwealth Bank building. Erected on 262-264 The Boulevarde (being the balance of the servient tenement) was a part single-storey and part two-storey building. These buildings only covered part of the length of their respective allotments.

13 The area to the rear of these buildings was described in the evidence as a "paddock". Until approximately 1980, when that part of the servient tenement not owned by the Commonwealth Bank was acquired by it, the right of way comprised dirt and grass and a paling fence had been erected across its frontage to The Boulevarde. When that fence was first erected was not revealed in the evidence but there was evidence that it was certainly there in 1966 and probably as far back as the 1950s. The primary judge (at [28]) inferred from the existence of the paling fence that the original purpose of the right of way, to gain access from The Boulevarde to the rear of the dominant tenement, was not exercised.

14 In February 1966, Irene Economos became the owner of the dominant tenement. She remained the owner until February 1995 when she transferred the dominant tenement to the respondents. Mr Nicholas Economos, the husband of the late Irene Economos, gave evidence before the primary judge by way of affidavit. He managed the dominant tenement and its environs on behalf of his late wife. He deposed that at the time of his wife's purchase of the dominant tenement in 1966, the right of way was not visible to outside observers, there being the paling fence between the dominant and servient tenement at its junction with The Boulevarde. Mr Economos said that the area corresponding to the right of way was mainly dirt and grass.

15 In the early 1970s Mr Economos made a development application to the Council to erect a shoe repair shop upon the frontage of the right of way to The Boulevarde, which was approved. However, the proposal was not implemented as the tenant selected for the project decided not to proceed.

16 In November 1979 the Commonwealth Savings Bank of Australia (the Bank) acquired the servient tenement. It remained the owner of the servient tenement until June 1989 when it was transferred to Jules and Jenny Guss who, on 28 March 2002, transferred it to the appellant.

17 On 18 November 1982 the Council granted consent to an application by the Bank to erect a two-storey building on the servient tenement. At some point in time between the date the servient tenement was purchased by the Bank and the erection of the new bank building thereon, an officer of the Bank approached Mr and Mrs Economos and requested their permission to remove the paling fence between the buildings on either side of the right of way in order to provide access for the Bank's customers from the car park at the rear of the servient tenement. Permission was given upon the basis that the right of way was only open during business hours and closed off in the evening. In due course the paling fence was demolished and gates were installed at both ends of the right of way. A proper pathway was also constructed within the right of way from The Boulevarde to Turner Lane. Mr Economos gave evidence that he was not given a key to the gates, nor did he seek one. However, he said that when he was visiting the area he would as a matter of convenience occasionally use the pathway which the Bank had constructed within the right of way when the gates were open during business hours. The purpose for which he used the right of way was not clarified.

18 In 1994 or 1995 the manager of the Bank would cause the gates at either end of the right of way to be opened during business hours. They were padlocked overnight. He said that the padlocks were often broken but he persisted in replacing them for approximately 6 months after which he left the gates open. The right of way was then used by members of the public, including the Bank's staff and customers, as a means of accessing The Boulevarde from the Bank's car park at the rear of the servient tenement. The manager deposed that he noticed people walking on the right of way.

19 Fadia Zakhia, a pharmacist who worked at, and in 1997 purchased, the Punchbowl Pharmacy at 254 The Boulevarde, also gave evidence. She deposed that from 1994 the right of way was open and the gates were not locked. She recalled customers of the pharmacy accessing the business after having passed through the right of way.

20 In 1997 the ground floor shop on the dominant tenement was leased as a grocery shop and suppliers used the right of way from Turner Lane to make deliveries to the front entrance to the shop on The Boulevarde.

21 Finally, Mr Quigley, the tenant of the residence above the shop on the dominant tenement, who had commenced his occupation in June 1992, deposed he accessed his flat via stairs at the rear of the building which he accessed through a gate from Turner Lane. However, there was also a side gate at the rear of the building on the dominant tenement which opened onto the right of way although this was kept locked until early 2002. Mr Quigley deposed that for approximately 40 years (until the early 1980s) the area between The Boulevarde and Turner Lane as occupied by the right of way was vacant and that up to the 1960s, he could not recall the right of way being used. This evidence supported his Honour’s finding to which I have referred in [13] above.

22 In their affidavits, each of the respondents deposed that they had no intention of abandoning the right of way, which they considered a valuable asset in attracting future tenants. However, there is some doubt as to whether they were aware that their land was the dominant tenement with respect of the right of way at the time of their purchase in 1995. However, in my opinion this does not matter, as the case for the appellant was that the right of way had been abandoned, at the latest, by 1980 when the Bank demolished the paling fence that obstructed its frontage to The Boulevarde.

23 In March 2003 the appellant obtained the consent of the Council to a development application to construct two shops and five commercial suites on the servient tenement. The proposed development included construction over the right of way – hence the appellant's application to have it extinguished.

The relevant statutory provisions

24 Before the primary judge the appellant sought an order extinguishing the right of way pursuant to s 89(1)(b) of the Act and, alternatively, s 89(1)(a).

25 Section 89(1)(b) provides that the court may extinguish an easement if it is satisfied that the persons entitled to the easement, by their acts or omissions may reasonably be considered to have abandoned it.

26 Section 89(1)(a) contains two limbs. The first provides that the court may extinguish an easement upon being satisfied that, by reason of change in the user of the land having the benefit of easement or in the character of the neighbourhood, the easement ought to be deemed obsolete. The second limb requires the court to be satisfied that the continued existence of the easement would impede the reasonable user of the land subject to the easement without securing any practical benefit to the persons entitled to the easement.

27 At first instance, the appellant submitted that it was entitled to an order for extinguishment pursuant to both limbs of s 89(1)(a) but its appeal to this Court was limited to the first limb.

The decision of the primary judge

Section 89(1)(b)

28 The primary judge found that the appellant had failed to establish an entitlement to an order for extinguishment based on abandonment of the right of way. Its primary argument before his Honour was that the right of way had been abandoned by the respondents' predecessors in title. As I have noted, before this Court it was submitted that abandonment had occurred, at the latest, by about 1980 when the Bank removed the paling fence and constructed a pathway over the right of way. According to his Honour (at [16]), it was conceded by the appellant that if the respondents' predecessors had not abandoned the right of way, then it had not been abandoned at all. In oral argument counsel for the appellant suggested that his Honour had misunderstood his concession, which was that he wished to assert abandonment later than 1980, but accepted that his stronger case was abandonment by about 1980.

29 The primary judge held that in order to establish abandonment, the conduct of the dominant owner must have been such as to reveal a clear intention that neither he nor any successor in title would thereafter make use of the right of way. His Honour quoted the following passage from the judgment of Buckley LJ giving the judgment of the Court of Appeal in Gotobed v Pridmore (1970) 115 SJ 78:

"To establish abandonment the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title should thereafter make use of the easement. The circumstances might be that he was estopped from denying such an intention. Abandonment was not to be lightly inferred. Owners of property did not normally wish to divest themselves of it unless it was to their advantage notwithstanding that they might have no present use for it."

30 This passage was cited by McLelland J in Grill v Hockey (1991) 5 BPR 11,421 at 11,424 as the applicable principle in the application of s 89(1)(b), his Honour expressing the view that:

" There is nothing in the decision of the High Court in Treweeke v 36 Wolsely Road 128 CLR 274 inconsistent with these principles."

31 The primary judge then continued:

"21. A slightly different emphasis was given by the Court of Appeal in Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at 553:
'Abandonment of an easement or of a profit à prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.'
22. That approach was adopted by Powell J in Guth v Robinson (1977) 1 BPR 97017 at 9214 and by Needham J in Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 at 617."

32 The primary judge then referred (at [23]) to Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. As the appellant relies heavily upon this decision, it is appropriate at this point to refer to it in more detail.

33 The majority in Treweeke comprised McTiernan and Mason JJ. Walsh J dissented. In his judgment McTiernan J said, relevantly, (at 284):

"It is established that a right will not be extinguished by non-user alone: Seaman v Vawdrey . In Ward v Ward , a right of way was held not to have been lost by mere non-user for a period much longer than twenty years, it being shown that the way was not used because the owner had a more convenient mode of access through his own land. (I quote the summary of the facts of the case in Gale on Easements , 14th ed. (1972), at p. 340). In that case Alderson B said:
'The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption … The non-user, therefore, must be the consequence of something which is adverse to the user'.
Other decisions on the point are Crossley & Sons Ltd v Lightowler and Bulstrode v Lambert . There is no proof of user of the right of way along the total length of the strip of land since the creation of the right of way, a period longer than forty years. 'The duration of the period of non-user is only material as one element from which the dominant owner's intention to retain or abandon his easement may be inferred; and what period may be sufficient in any particular case must depend on the strength of the other indications of intention and all other accompanying circumstances. If however, the period of suspension of user is of very long duration, it appears that the suspension alone may raise a prima facie presumption of abandonment to the extent of throwing upon the person seeking to uphold the right the burden of showing that some indication of his intention to preserve the right was manifested during the period of suspension.': Halsbury's Laws of England 3rd ed, vol 12, p 564, par 1228. (For a review of cases, see Gale on Easements , 14th ed. (1972), pp. 339-343). "

34 His Honour then explained the non-user of the total length of the right of way for a period exceeding 50 years as due to its precipitous condition in places, given that parts of the right of way had in fact been used by those entitled to it.

35 Mason J stated the relevant principle in these terms (at 302) (omitting citations):

"It has been said, for instance, that mere non-user of a right of way the subject of a grant, even for a long period of time, does not necessarily indicate an intention to abandon. Non-user may be referable to the absence of a need to use the right of way and the use of an alternative and more attractive means of access; then it may be thought that the non-user indicates, not so much an intention to abandon the right of way, as a preference for the alternative means of access so long as it remains available."

36 His Honour then dealt with the failure of persons having the benefit of the easement in that case to take action concerning, and their participation in, the construction of obstructions placed along the site of the right of way. He considered that acquiescence in and failure to object to the placing by the owner of the servient tenement of obstructions on the site of the right of way, which are inconsistent with the exercise of rights by persons having the benefit of it, may (my emphasis) lead to an inference that they intended to abandon it. However, in the circumstances of that case, his Honour considered that the appropriate inference to be drawn was that the persons having the benefit of the easement preferred to resort to the alternative means of access to the waterfront so long as it remained available and, therefore, did not intend to abandon the easement.

37 The primary judge then reached his conclusion in the following passages from his judgment:

"25. Little is to be served by an analysis of the facts of decided cases. The question whether an easement has been abandoned is essentially one of fact ( Treweeke at 302). In my view, neither the paling fence nor the covered area was a sufficient obstruction of the right of way to justify the inference of abandonment by the by the defendants' predecessor in title. Nor do I think that one should infer abandonment from the development application to use part of the right of way as a shoe repair shop. That venture having failed to eventuate, one cannot infer any intention on the part of the former owner of the dominant tenement to use the right of way for other purposes.
26. There was the gate in the fence along the boundary of the dominant tenement that gave access to the right of way. While the evidence revealed the gate had been locked from 1992 until about the time the plaintiff acquired the servient tenement, there was no evidence that it had not been used in the past as a means of access to the right of way. Indeed, the very purpose of such a gate was to achieve that end.
…
28. Nor do I regard the construction of Turner Lane to the rear of the dominant tenement, thereby creating alternative access to it, as a sufficient basis for inferring that the predecessors in title to the defendants had evinced an intention to abandon the right of way. One can infer from the existence of the paling fence that the original purpose of the right of way, to gain access from The Boulevarde to the rear of the dominant tenement, was not exercised. But that does not mean that the right of way was not used for other purposes. The defendants' father had used it for the purpose of effecting repairs to the building on the dominant tenement. A building on that land existed for as long as the memory of the witnesses extended. There was no other obstruction to the right of way. It was open grass and dirt. It cannot safely be inferred that the predecessors in title to the defendants made no use of the right of way. And even if they did not, I am of the view that mere non-use was insufficient evidence from which an inference of abandonment might be drawn.
29. In my judgment the plaintiff failed to establish an entitlement to an order under the Conveyancing Act 1919, s 89(1)(b)."

Section 89(1)(b)

38 The primary judge found that the appellant also failed to establish an entitlement to extinguishment pursuant to s 89(1)(a). He found (at [33]) that there was no evidence that the establishment of Turner Lane constituted a change in the user of the dominant tenement or in the character of the neighbourhood. There was evidence that a dirt track had preceded the establishment in 1935 of Turner Lane but it was not clear whether that track had been in use as a means of access to the dominant tenement at the time the right of way was granted in 1920.

39 His Honour noted (at [33]) that “obsolescence” had been interpreted as requiring that the original purpose of the easement could no longer be served: Re Truman Handbury Buxton & Co Ltd’s Application [1956] 1 QB 261 at 272). In his Honour’s view (at [32]), the provision of Turner Lane in 1935 and its construction as a pathway in or about the 1970s providing access to the rear of the dominant tenement did not mean that the original purpose of the right of way could no longer be served. It still provided access from The Boulevarde to the rear of the dominant tenement, and the existence of the paling fence prior to its removal by the Bank was not such an obstacle as would prevent that original purpose being achieved.

40 “Obsolescence” has also been interpreted to mean that the right of way is currently incapable of fulfilment or serves no present useful purpose: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 927; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 at 18,099-18,100 per Mason P (with whom Stein JA agreed). Applying this test, his Honour found (at [35]) that it was clear that the right of way continued to serve several useful purposes. It was used by members of the public, including patrons of the premises erected upon the dominant tenement, as a passage between the parking facilities off Turner Lane and The Boulevarde. Deliveries were also made to the dominant tenement via the right of way from Turner Lane. Further, the right of way provided a means for repair and maintenance of the respondents’ premises and also provided the benefit of light to windows within those premises.

The issues on the appeal

Abandonment

41 The appellant submitted that the trial judge erred in failing to find that the right of way had been abandoned. This error stemmed from, firstly, a failure to consider the combination of relevant factors – non-user, alternative access and obstruction – as a whole rather than considering those factors independently; and, secondly, a failure to find non-user on the basis of the possibility of some use which was not for the purpose for which the right of way had been granted.

42 According to the appellant, the combination of the following factors led to the conclusion that the right of way had been abandoned. Firstly, there was no evidence of its use for the purpose for which it was granted, that is, to provide access from The Boulevarde to the rear of the building erected on the dominant tenement. Secondly, alternative access to the rear of that building had been available since around 1935 by means of Turner Lane. Thirdly, there had been interference with the use of the right of way in the form of the paling fence which had been in place for many years up to approximately 1980 and, thereafter by the gates at either end of the right of way constructed by the Bank. Fourthly, the shoe repair shop proposal in the appellant’s submission provided further evidence of an intention on the part of the owner of the dominant tenement to abandon the right of way.

43 The respondents, on the other hand, submitted that they had shown a clear intention not to abandon the right of way. They emphasised that non-user alone was insufficient to establish abandonment. Further, there was evidence of use of, or of an intention to use, the right of way by those entitled to its benefit. This evidence included the existence of a the side gate at the rear of the dominant tenement providing access onto the right of way; evidence that patrons gained access and deliveries were made to the respondents’ premises from the parking facilities off Turner Lane via the right of way; and further evidence that the respondents’ father used the right of way to effect repairs to the building erected on the dominant tenement.

44 In terms of the issue of alternative access, the respondents emphasised that Turner Lane did not provide alternative access between the front and rear of the dominant tenement. With respect to the issue of obstruction, the respondents submitted that a physical obstruction such as a paling fence did not demonstrate abandonment, especially if it could be easily and cheaply removed. In this latter respect, the appellant in its written submissions conceded that the erection of the fence of itself was not necessarily inconsistent with use of the right of way at some future time given the modest cost of its construction and demolition. The respondents further submitted that the decision not to proceed with the shoe repair shop demonstrated an intention not to abandon the right of way.

Obsolescence

45 The appellant submitted that the trial judge erred in failing to find that the right of way should be deemed obsolete pursuant to the first limb of s 89(1)(a). It asserted that there had been a change in the character of the neighbourhood and/or a change in the user of the dominant tenement, as a consequence of the creation of Turner Lane, such that it was no longer necessary to access the rear of the building erected upon the dominant tenement from The Boulevarde via the right of way.

46 The respondents submitted that there had been no change in the user of the dominant tenement – it continued to be used as a small commercial/residential enterprise as it had since the grant of the right of way. Further, there had been no change in the character of neighbourhood, which had continued to be a commercial area.

Discretion

47 The respondents’ final submission was that even if the appellant established one or other of the grounds of extinguishment relied upon, the Court nevertheless had a discretion whether to grant an order extinguishing the right of way which, in the present case, it should exercise by refusing to make such an order. The respondents submitted that a relevant factor in the exercise of this discretion was the extent to which the parties had purchased on the faith of the continued existence of the right of way. The appellant was, so it was submitted, aware through its managing director of the existence of the right of way prior to the appellant's purchase of the servient tenement and the respondents had been aware of, and had made use of, the right of way since they purchased the dominant tenement in 1995.

Has the primary judge erred?

Abandonment

48 The appellant did not suggest that the primary judge had misstated any of the relevant principles applicable to the facts as found in order to determine either abandonment or deemed obsolescence. With respect to the former, the appellant submitted that, although there was clear evidence of non-user of the right of way until approximately 1980 when the paling fence was removed, and although it was accepted that non-user of itself was insufficient to establish abandonment, nevertheless the existence of Turner Lane in providing alternative access to the rear of the dominant tenement, the obstruction for many years of the right of way by the fence erected on its frontage to The Boulevarde and the granting by the Council, at the behest of the owner of the dominant tenement, of consent to the erection of a shoe repair shop upon the right of way, were all factors which, when taken together, evidenced a clear and fixed intention on the part of the then owner of the dominant tenement to abandon her rights.

49 The appellant acknowledged that the primary judge considered each of these factors, its complaint being that he considered each in isolation of the others whereas their cumulative effect should have been considered along with lengthy non-user to determine whether the necessary intention had been evidenced.

50 In my opinion the primary judge did not err in the manner suggested by the appellant. It is true that he considered each of the factors referred to in [48] above and whether each was sufficient to justify an inference of abandonment. His conclusion in [25] of his judgment was that neither the existence of the paling fence nor the consent to use part of the right of way as a shoe repair shop was sufficient to enable an intention of abandonment on the part of the former owners of the dominant tenement to be inferred.

51 In [26] of his judgment, his Honour deals with the counter evidence of the side gate in the fence along the boundary of the dominant tenement that gave direct access onto the right of way. In [28] he considered whether Turner Lane, which created an alternative access to the rear of the dominant tenement, was a sufficient basis for inferring an intention to abandon. Subject to what appears hereafter, it seems to me that his Honour has weighed up the various factors and come to the conclusion that, taken with lengthy non-use, those factors were simply insufficient to satisfy the significant burden that lies upon an applicant who wishes to establish abandonment.

52 There is however one aspect of his Honour's reasons which is open to criticism. In [28] of his judgment, he observes that the fact that, due to the paling fence, the original purpose of the right of way to gain access from The Boulevarde to the dominant tenement was not exercised, did not mean that the right of way was not used for other purposes. He then refers to the use of the right of way by the respondents' father for the purpose of effecting repairs to the building erected on the dominant tenement. Clearly that was not the purpose for which the right of way was granted and it was therefore an irrelevant consideration.

53 Even if it could be said that the primary judge failed to deal cumulatively with all the factors to which he refers in order to determine whether an intention to abandon could be confidently inferred so that error has been shown, nonetheless it would then be a matter for this Court, on facts which were generally not disputed, to determine the issue for itself. In this respect, and taking all the factors together upon which the appellant relies, I would not be satisfied that the evidence establishes a fixed or firm intention on the part of the respondents' predecessor that neither she nor any successor in title should thereafter make use of the right of way.

54 In particular, and accepting long non-use, I would not regard the existence of Turner Lane coupled with the obstruction effected by the paling fence and the consent to the location of the shoe repair shop to be relevantly sufficient. The paling fence was, as I have observed, properly conceded by the appellant to be not inconsistent with future use of the right of way, and the consent for the shoe shop was itself abandoned. The existence of the paling fence explains the non-use of the right of way (as his Honour remarked at [28]) and, therefore, is not a factor independent of that non-use.

55 This then brings me to a submission made during the course of the hearing by the appellant with respect to the use of Turner Lane as an alternative means of access. It was submitted that the present case was on its facts distinguishable from Treweeke where Mason J had held that the non-user of the right of way was referrable to the absence of a need to use it due to the use of an alternative or more attractive means of access which was then available. It was submitted that in that case the alternative means of access referred to by his Honour could be terminated at any time whereas, in the present case, Turner Lane was a dedicated public road and constituted a permanent, practical and legal means of access to the rear of the dominant tenement. Accordingly, so it was submitted, non-user of the right of way, although referrable to the absence of a need to use it due to the availability of an alternative and more attractive means of access via Turner Lane, did evidence an intention to abandon the right of way in preference for Turner Lane because of the latter's permanent availability.

56 Although it is true that in Treweeke the availability of the alternative means of access was terminable so that the need to use the relevant easement would arise if that availability ceased, there is no certainty in the present case that Turner Lane will remain indefinitely as a public road. Public road closures under the relevant legislation, although not an everyday occurrence, are not unknown. In any event, the preference for using Turner Lane to gain access to the rear of the dominant tenement would not necessarily apply to those pedestrians who come other than by motor vehicle to The Boulevarde and wish to gain that access from The Boulevarde end of the right of way. The most convenient and direct means of access would be via the right of way and the side gate to the rear of the dominant tenement.

57 In fact, I would agree with the primary judge that the reason why the right of way was not used prior to 1980 was not so much due to the existence of Turner Lane but because its frontage to The Boulevarde was obstructed by the paling fence. As his Honour seemed to infer (at [28]), and as I have already observed, that was the explanation for its non-user prior to the demolition of that fence. That obstruction was anything but permanent as the appellant properly conceded in its written submissions.

58 The other "obstruction" relied upon by the appellant was the Council's consent obtained by the then owner of the dominant tenement to the use of the site of the right of way and its frontage to The Boulevarde for a shoe repair shop. If this consent had been implemented then it would have constituted strong evidence in favour of an intention to abandon the right of way.

59 As the primary judge noted, that venture was abandoned. That fact evinces an intention not to abandon the right of way. At the very least, the application for the consent was, in my opinion, a neutral factor given that it was not pursued.

60 Accordingly, I can see no error in the primary judge's conclusion that the appellant had failed to establish a clear or fixed intention on the part of the respondents' predecessors in title to abandon any future use of the right of way for access purposes by themselves or their successors in title. On the evidence I would come to the same conclusion. The challenge to his Honour's finding that the appellant had failed to establish an entitlement to an order under s 89(1)(b) of the Act should therefore be rejected.

Obsolescence

61 On the question of deemed obsolescence, I would agree with the respondents' submission that there has been no relevant change in the character of the neighbourhood, or the user of the dominant tenement, by the creation of Turner Lane which, so it was contended by the appellant, removed the necessity to access the rear of the building erected upon the dominant tenement from The Boulevarde via the right of way.

62 The primary judge held that, although the construction of Turner Lane meant that access could be gained therefrom to the rear of the dominant tenement, it did not follow that the original purpose of the right of way could no longer be served. Access could still be gained to the rear of the dominant tenement from The Boulevarde along the right of way including through the side gate. This would be of significant benefit to pedestrians seeking to access the rear of the dominant tenement from that street.

63 In my opinion, the evidence does not come close to establishing that Turner Lane has had the effect that the right of way is no longer capable of serving the purpose for which it was granted. As Young J observed in Cavacourt Pty Limited v Durian (Holdings) Pty Limited (1998) 9 BPR 16,833, the changes in the character of the neighbourhood or other circumstances must have brought about the situation that it is no longer possible to achieve the purpose for which the right of way was granted. Whilst the construction of Turner Lane provided an alternative means of access to the rear of the building erected on the dominant tenement, it obviously did not render the use of the right of way for the purpose of gaining access to that location from The Boulevarde as no longer achievable.

64 In my opinion, the primary judge was therefore correct to reject the appellant's submission to the contrary. No error on his part has therefore been demonstrated.

Conclusion

65 In light of the foregoing I would propose that the appeal be dismissed with costs.

66 CAMPBELL A-JA: I agree with Tobias JA.

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