Bookville Pty Ltd v O'Loghlen
[2008] VSCA 27
•26 February 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 10389 of 2006
| BOOKVILLE PTY LTD (ACN 058 191 727) |
| v |
| ROSS BRENDAN O’LOGHLEN |
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JUDGES: | BUCHANAN and DODDS-STREETON JJA and PAGONE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 February 2008 | |
DATE OF JUDGMENT: | 26 February 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 27 | |
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Easements – Right of way – Construction of wall blocking access – Evidence of limited use of easement – Abandonment not established.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C W Porter | Kahns Lawyers |
| For the Respondent | Mr A W Sandbach | John O’Brien and Associates |
BUCHANAN JA:
This appeal is concerned with the circumstances in which it may be concluded that an easement of way has been abandoned.
On 19 March 1963 Antonios and Paraskevi Koraitsas were registered as proprietors of a residence situated at 13 Falconer Street, North Fitzroy. On 18 February 2004 the title to the land was transferred to the appellant, a company controlled by Mr & Mrs Koraitsas. The respondent is the proprietor of a neighbouring residence situated at 11 Falconer Street.
Falconer Street runs in a north-east, south-west direction. The appellant’s land runs north to south, save that at its north-west corner it includes a strip of land (‘the laneway’) 2.5 metres wide and 8.7 metres long running in an east-west direction. The western boundary of the laneway abuts Mark Street, which runs north-south and intersects with Falconer Street. Mark Street is on the western boundary of the respondent’s land. The southern boundary of the laneway constitutes the northern boundary of the respondent’s land.
In 1896 an instrument of transfer created an easement or carriageway over the laneway in favour of the proprietor of the respondent’s land. The easement remains noted on the certificates of title of the appellant and the respondent.
When Mr and Mrs Koraitsas purchased 13 Falconer Street in 1963 there was a brick garage at the northern end of the respondent’s land. The garage remains there. A side wall of the garage runs along the south side of the laneway. The garage occupies the full width of the respondent’s land and completely blocks access between the respondent’s land and the laneway. The garage doors open on to Mark Street.
The respondent purchased his property in April 1987. He lived in a house on the land until March 1989 and in February 1992 moved back to the house with his family.
In these proceedings, which were tried in the Supreme Court, the appellant claimed declarations that the easement had been abandoned and that the appellant was entitled to have the easement deleted from the register. The trigger for the proceedings appears to have been a planning permit granted to the respondent to carry out alterations and additions to the buildings on the respondent’s land. The permit entitled the respondent, inter alia, to construct a door in the northern wall of the garage, which would permit access to the laneway.
At the trial the respondent gave evidence that the existence of the easement influenced his decision to purchase the land. He regarded the easement as an amenity which made the property more desirable, both in the light of his plans to expand his family and also from a commercial point of view. Since 1987 the respondent has used the right of way to gain access to the garage roof to cut back ivy once or twice each year except for the period between 1989 and 1991 when he did not live at the property. Since he bought the land the respondent maintained the right of way on approximately a monthly basis by weeding it and moving rubbish, leaves and debris. In 1987 and 1988 the respondent on occasion parked a motor vehicle on the easement. In approximately 1996 the respondent asserted the existence of his right of way in a conversation with one of the sons of Mr and Mrs Koraitsas. In approximately 2000 the respondent’s carpenter used the easement to gain access to the garage for the purpose of removing rotting fascia boards. On each occasion on which the respondent used the right of way, he did so without seeking or obtaining the permission of Mr and Mrs Koraitsas. Early in 2005 the respondent requested a son of Mr and Mrs Koraitsas to remove a motor vehicle which was parked on the right of way.
The trial judge held that the application of common law doctrines did not produce the result that the easement had been abandoned. He held that the respondent and his predecessors in title did not intend forever to forego the easement and never assert rights in respect of it.[1] His Honour held that the construction and continued existence of the north wall of the garage was not sufficient to found an inference that the respondent or his predecessors in title had abandoned the right of way. The trial judge relied upon the facts that the owner of the dominant tenement could insert a door in the northern wall of the garage, as was shown on plans prepared for the respondent in connection with an application he made for a planning permit in 2006, that on four occasions since 1963 transfers of the respondent’s land included the rights in the easement, that the respondent for various purposes had used the laneway to gain access to the garage without seeking the permission of the appellant, and had asserted rights to the easement. In addition, the respondent gave evidence, which the trial judge accepted, that he had never formed an intention to abandon the easement, but rather over the years had planned to open a doorway in the garage wall in order to gain access to the laneway.
[1]See Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 553 (Salmon, Sachs and Buckley LJJ). See also Grill v Hockey (1991) 5 BPR 11,421, 11,424 (McLelland J).
That conclusion was sufficient to dispose of the proceedings. For good measure, the trial judge held that, on becoming registered as proprietor of the land, the respondent derived an indefeasible interest, including an interest in the right of carriageway recorded on the certificate of title as appurtenant to the land.
In this Court it was submitted on behalf of the appellant that the construction and continued existence of the garage with its northern wall preventing anyone crossing between the laneway and the respondent’s land, together with the fact that the proprietor of the dominant tenement had direct access to Mark Street through the door of the garage, demonstrated that it was not the intention of the builder of the garage or succeeding owners who maintained the garage to exercise any rights pursuant to the easement.
In Shelmerdine v Ringen Pty Ltd, Brooking J said:[2]
The cases … show how hard it is to establish abandonment notwithstanding what might appear to a layman to be a strong case of abandonment.
Similarly, in Gotobed v Pridmore[3] Buckley LJ said that abandonment was not to be lightly inferred. This approach is no more than a reflection of the fact that it is unlikely that owners of property will intend to divest themselves of it when it is not to their advantage to do so. Accordingly, it has been stated frequently that mere abstinence from the use of an easement is generally insufficient to establish an intention to abandon it.[4]
[2][1993] 1 VR 315, 339.
[3](1970) 115 Sol J 78.
[4]See, for example, Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017, 1023 (Tadgell J); Swan v Sinclair [1924] 1 Ch 254, 266 (Pollock MR); Keewatin Water Power Co Ltd v Lake of The Woods Milling Co Ltd [1930] AC 640, 657 (Viscount Dunedin); Riley v Penttila [1974] VR 547, 570 (Gillard J); Ward v Ward (1852) 7 Exch 838, 839; (1852) 155 ER 1189, 1190 (Pollock CB); Crossley and Sons Ltd v Lightowler (1866-67) LR 2 Ch App 478, 482 (Lord Chelmsford LC); Re Marriott (decd) [1968] VR 260, 273 (Gillard J); Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, 284 (McTiernan J); McIntyre v Porter [1983] 2 VR 439, 444 (Anderson J); Benn v Hardinge (1993) 66 P & CR 246, 260 (Dillon LJ); Williams v Usherwood (1983) 45 P & CR 235, 256 (Cumming-Bruce LJ); Yip v Frolich (2003) 86 SASR 162, 177-178 (Besanko J).
In the present case an owner of the dominant tenement took the positive step of constructing a wall, barring access between the dominant tenement and the laneway, and his successors maintained the wall. It is, however, one thing for the owner of the dominant tenement to put or leave in place an obstruction which he can readily remove. It is another to alter the dominant tenement so as to make the owner incapable ever again of benefiting from an easement.[5] The former is generally insufficient to disclose an intention to abandon an easement. Thus in Carder v Davies[6], where it was contended that by building a wall the owner of a dominant tenement had abandoned a right of access on to a way adjoining his land, Peter Gibson LJ said:
Where the easement owner is in no way limited by the words of an easement at any particular point, it matters not that he builds a wall, erects a fence or grows a hedge, which by its nature would not allow convenient access under the easement. He is able, if he wishes, to change the access point at any time.[7]
[5]See John Gault and Paul Morgan, Gale on Easements (17th ed, 2002) 438.
[6]Cited in ibid 463. See also Carder v Davies (1998) 76 P & CR D33.
[7]See also Snell & Prideaux Ltd v Dutton Mirrors Ltd (1995) 1 EGLR 259.
The owner of 11 Falconer Street could at any time construct an opening in the northern wall of the garage. The existence of the wall without an opening was evidence that for the time being the owner of the land had no use of the easement, rather than evidence of ’a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else’.[8] It is necessary to examine that state of affairs in the context of the surrounding circumstances. Failure to use an easement alone will rarely determine the question of abandonment. Use or non-use of an easement should not be considered in isolation. It is a circumstance to be weighed in conjunction with all other matters from which the intention of the proprietor of the dominant tenement may be inferred. As Lord Denman CJ said in R v Chorley:[9]
The period of time is only material as one element from which the grantee’s intention to retain or abandon his easement may be inferred against him; and what period may be sufficient in any particular case must depend on all the accompanying circumstances.
[8]Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 553.
[9](1848) 12 QB 515, 519; (1848) 116 ER 960, 962.
In the present case the respondent had made use of the easement.[10] He kept the laneway free of weeds and rubbish and used it to gain access to the garage door and to park a motor car. Counsel for the appellant dismissed the uses made by the respondent of the right of way by stigmatising his activities as ‘limited’ and ‘peripheral’. In fact, however, passing over the appellant’s land for any purpose was the very use contemplated by the grant of the right.[11] In 2000 and 2005 the respondent asserted his entitlement to the easement. Finally, the respondent gave evidence, which the trial judge accepted, that he had never formed an intention to take any step which would deprive him of the right to rely upon the easement.[12]
[10]There was no evidence whether, or to what extent, the respondent’s predecessors in title used the easement, save for the bland assertion in a statement of facts advanced by the appellant and signed by counsel for the appellant that, save for the facts referred to in the respondent’s statement of facts, ‘neither the defendant nor his predecessors in title … sought to use the strip or actually used it for carriageway from Mark Street to their property’. The statement was consistent with predecessors in title of the respondent making use of the easement in the same fashion as the respondent. The onus of proof concerning an allegation of abandonment rests upon the person alleging the abandonment. See MacFarlane v Nairn (1903) 2 N & S 136, 139 (McIntyre J).
[11]See Transfer of Land Act 1958 (Vic) sch 12.
[12]See Riley v Penttila [1974] VR 547, 572 (Gillard J).
In my opinion the trial judge was correct in concluding that in all the circumstances the appellant had not established that any owner of the dominant
tenement had formed a fixed intention of never at any time asserting the right of way or attempting to transmit it to anyone else.
In these circumstances it is unnecessary to determine whether the appellant’s claim is precluded by the indefeasibility provisions of the Act.
I would dismiss the appeal.
DODDS-STREETON JA:
I agree with Buchanan JA.
PAGONE AJA:
I agree with Buchanan JA.
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