Clos Farming Estates Pty Ltd v Easton

Clos Farming Estates Pty Ltd (the appellant) and Easton (the respondent) were parties to a dispute concerning a right of way over land owned by the appellant. The respondent sought to establish the existence of an easement, which the appellant contested. The matter was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the right claimed by the respondent was capable of forming the subject matter of a grant, and therefore constituted a valid easement, and whether the appeal against the primary judge's decision was competent. Specifically, the court had to consider the established criteria for the creation of easements, particularly in relation to novel rights, and whether the claimed right accommodated the dominant tenement in a manner recognised by law.

The Court of Appeal affirmed the principles governing the creation of easements, including the requirement that the right must be capable of forming the subject matter of a grant. This involves considering whether the right is too extensive, whether it would leave the servient owner without reasonable use of their land, and whether it is a mere right of occupation. The court found that the right claimed by the respondent did not satisfy these criteria, as it amounted to a claim for exclusive possession of a portion of the appellant's land, rather than a mere right to use or pass over it. Consequently, the court held that the claimed right was not capable of being an easement.

The Court of Appeal dismissed the appeal and the cross-appeal, upholding the primary judge's decision. The appellant was ordered to pay the respondent's costs of the appeal.