Effeney v Millar Investments Pty Ltd

[2011] NSWSC 708

Supreme Court

New South Wales

Medium Neutral Citation:	Effeney v Millar Investments Pty Ltd & ors [2011] NSWSC 708
Hearing dates:	7 - 12 April 2011
Decision date:	08 July 2011
Jurisdiction:	Equity Division
Before:	Ward J
Decision:	Application for extinguishment or modification of easement benefiting third defendant dismissed
Catchwords:	REAL PROPERTY - easements - right of carriageway - application for extinguishment or modification of easement benefiting local Council - whether easement has been abandoned pursuant to s 89(1A) and (1)(b) of the Conveyancing Act 1919 (NSW) - whether easement is obsolete pursuant to s 89(1)(a) - whether there would be substantial injury to the Council in the case of extinguishment pursuant to s 89(1)(c) - whether order for extinguishment could be made subject to a condition for relocation of easement - HELD - application dismissed - no intentional abandonment of easement established - doubt as to whether non-use for 20 years - even if deeming provision applied and no use for 20 years, discretion would not be exercised in favour of extinguishment - easement continues to serve useful purpose and has not become obsolete - additional costs likely to be incurred by the Council should extinguishment take place means that it cannot be said that extinguishment would cause no substantial injury - order for extinguishment subject to a condition for relocation would amount to modification of easement outside the Court's power CIVIL PROCEDURE - whether for purposes of deeming provision in s 89(1A) an application is made when summons filed or when plaintiff moves on motion - HELD - obiter dicta - deeming provision can operate provided that as at the date when the plaintiff moves on the application, there has been at least 20 years of non-use
Legislation Cited:	Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Real Property and Conveyancing Legislation Amendment Bill 2009 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alliance Economic Investment Co. Limited v. Berton [1923] 92 LJKB 750 Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80 Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554 Benn v Hardinge (1992) 66 P & CR 246 Breskvar v Wall (1971) 126 CLR 376 Castagna v Great Wall Resources Pty Limited [2005] NSWSC 942 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 Gotobed v Pridmore (1970) 115 SJ 78 Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15 Guth v Robinson (1977) 1 BPR 9209 Harris v Flower (1904) 74 LJ Ch 127 Truman, Hanbury, Buxton and Company Limited's Application [1956] 1 QB 261 Leue v Reynolds (1986) 4 NSWLR 590 Loclot Pty Limited v Pullen [2003] 56 NSWLR 592 Long v Michie [2003] NSWSC 233 Markos v OR Autor Pty. Limited [2007] NSWSC 810 Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 Nickerson v Barraclough & ors [1979] 3 All ER 312; 3 WLR 562 Nickerson v Barraclough & ors [1981] Ch 426 Odey v Barber [2006] EWHC 3109 (Ch) Peacock v Custins [2002] 1 WLR 1815; [2001] 2 All ER 827 Pieper v Edwards (1982) NSW ConvR 56-060 Powell v Langdon (1944) 45 SR (NSW) 136 Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 Re Henderson's Conveyance [1940] 1 Ch 835 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Re Roseblade; Re Foenander [1964-5] NSWR 2044 Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Shelbina Pty Ltd v Richards [2009] NSWSC 1449 Swan v Sinclair [1924] 1 Ch 254 Tanlane Pty Limited v Moorebank Recyclers Pty. Limited [2008] NSWSC 1341 Tehidy Minerals Ltd v Norman [1971] 2 QB 528 Thorpe v Brumfitt (1873) LR 8 Ch App 650 Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Tujilo v Watts [2005] NSWSC 209 Ward v Ward (1852) 7 Ex 838 Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528 Williams v James (1867) LR 2 CP 577 Williams v Usherwood (1981) 45 P & CR 235 Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6
Texts Cited:	Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia (2nd edn) Butt P, Land Law (5th edn) Cairns B, Australian Civil Procedure (5th edn) Gale on Easements (17th and 18th edn) Goddard on Easements (8th edn)
Category:	Principal judgment
Parties:	David James Effeney (Plaintiff) Millar Investments Pty Ltd (First Defendant) Caroline Balog (Second Defendant) Wingecarribee Shire Council (Third Defendant)
Representation:	D L Warren (Plaintiff) B DeBuse (Third Defendant) K A Garling (Plaintiff) Garland Hawthorn Brahe (First Defendant) Marsdens Law Group (Third Defendant)
File Number(s):	10/091577

Judgment

1. HER HONOUR : The plaintiff (Dr David Effeney) is the registered owner of a property at Burradoo (to which I will refer as Lot 2). By summons filed on 14 April 2010, he seeks a declaration that an easement presently registered on the title of his land is not enforceable and/or that the easement be wholly extinguished.

1. Following various subdivisions of the land comprising the original dominant and servient tenements, as at the commencement of these proceedings the easement (created by a deposited plan registered on 3 December 1990), benefited three separate parcels of land (Lot 20, owned by the first defendant, which is located on both sides of the Wingecarribee River; Lot 21, owned by the second defendant, which is on the western side of the river to the north of Lot 20; and Lot 19, owned by the third defendant, which is on the eastern side of the river adjoining Lot 2 along its northern boundary).

1. By the time of the hearing the only party contesting the extinguishment of the easement was the third defendant (the Wingecarribee Shire Council). The second defendant (Ms Balog), whose land is not adjacent to Lot 2, filed a submitting appearance (except as to costs) on 27 September 2010 and has played no part in the proceedings. As to the first defendant, Millar Investments, the dispute as to the continuation of the easement over Lot 2 was resolved by agreement between the parties shortly prior to the hearing (as a result of which an easement over another part of Lot 2 is to be created for the benefit of Lot 20, the agreement in that regard being evidenced by an exchange of correspondence comprised in Exhibit 7). (Some of the affidavits that had been served by Millar Investments prior to the hearing, sworn by Mr Peter Bray and Mr George Hogge, respectively, were then read in the Council's case.)

1. Counsel for Dr Effeney (Mr Warren) submits that in relation to Lot 19, the grant of the right of way, properly construed, is for the use of that lot only and that it is not permissible for the Council to use the right of way in order to gain access, through Lot 19, to other lots to the south or north of Lot 19. This is relevant in that the Council, in contending that the easement has not become obsolete and that it will suffer substantial injury if it is removed, points to the need for the right of way to be preserved in order to be able to use it in the future for maintenance or repair of areas beyond Lot 19. It is submitted by Mr Warren that use of the right of way in order to go across Lot 19 to other lots would be an impermissible and not lawful use of the easement and therefore that there would be utility (if the easement were not to be extinguished or modified) in there being a declaration that such use is in excess of the rights of the Council.

1. Mr de Buse, appearing for the Council, objected to there being any such declaration in the absence of any application having been made for amendment to the Summons. Mr de Buse submitted that the Council was not in a position properly to consider its position in relation to, and the import of, any limitation on the use of the easement by virtue of such a declaration.

1. A claim for declaratory relief was not ultimately pressed in argument before me and I have therefore proceeded on the basis that the relief sought is that contained in the Summons. However, I note that, of necessity in addressing the issues raised on the present application, I have considered the proper construction of the easement in question (having regard to what was said in Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528) and have expressed my view as to the permissible use of the easement (insofar as access beyond Lot 19 is concerned) on the proper construction of its terms.

Background

1. The easement in question is a 10m wide "right of carriageway". It was created in December 1990 by the registration of an s 88B instrument (Deposited Plan 643913) burdening what was then Lot 12 in DP 64913 (a larger parcel of land of which Lot 2 then formed part), which was owned by Dr and Mrs Woolridge. The lots benefited by the easement at the time it was created were Lots 15 and 16 (those being further subdivided in 1995 to create Lots 17, 18 and 19 by registration of DP 850447 and Lots 17 and 18 subsequently becoming Lots 20 and 21 in DP 1034316). Lot 15 was immediately adjacent to Lot 12; Lot 16 was adjacent to Lot 15 but not adjacent to Lot 12. Therefore, access to or from Lot 16 by way of the easement always required access across Lot 15. (For convenience, I will generally refer to the various parcels of land by lot number. However, on occasion reference is made to the particular DP in order to avoid confusion between similarly numbered lots in different deposited plans.)

1. The site of the easement is a strip of land which runs mostly in an east/west direction across Lot 2 but which, approaching the western boundary of Lot 2, turns north and leads to the north/western corner of the property. A simple map (not to scale and not purporting to be more than an indicative outline of the respective areas) illustrating the approximate position of the easement on Lot 2, certain features of the lot as it was in 2003 and the position of Lot 2 with respect to the adjacent lots, is attached as an appendix to these reasons.

1. As noted earlier, the right of way over Lot 2 is described on the 88B instrument as a "right of carriageway". That short form description is to be read, by virtue of s 181A of the Conveyancing Act 1919 (NSW), as:

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person , to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof . (my emphasis)

1. The fact that the instrument does not include the words "and across" after the words "to and from" is what gives rise to the issue as to whether the easement permits the Council, as owner of the dominant tenement, to use the right of way in order to travel across Lot 19 to adjacent land.

1. The afternoon before the commencement of the hearing a view was conducted of the area over which the easement is situated, during which Counsel for the respective parties pointed to various features of the land and surrounding area (to which I will refer, as relevant, during the course of these reasons).

• History of the successive subdivisions

1. The present configuration and ownership of the various lots in question is a result of a number of subdivisions that took place in the Burradoo area over the period leading up to and after 1990 (the detail of which is set out in Dr Effeney's affidavit sworn 13 April 2010 and the respective deposited plans exhibited to his affidavit). As the history of the land usage is of relevance to the question whether the easement is now obsolete (or has been abandoned) it is necessary to summarise the changes to the configuration and use of the land in question.

1. As at 1982, the land now owned by Dr Effeney (Lot 2) was part of a larger parcel of land (Lot 1 in DP 622701) to the eastern side of the Wingecarribee River through to Moss Vale Road. In June 1987, that parcel of land was subdivided, by the registration of DP 740903, into 3 main lots (Lots 10,11 and 12), the westernmost and largest lot being Lot 12 and the easternmost and smallest of the three being Lot 10, and a fourth (smaller) lot (Lot 13) being a 13m wide strip of land running along the whole of the western boundary of Lot 12 alongside the river. Lot 13 was transferred to the Council as part of the subdivision and dedicated as a public reserve. An easement to drain water across the northern boundary of each of Lots 10, 11 and 12 down to the western boundary of Lot 12 (but not across Lot 13) was created at that time, but no right of way burdening Lot 12 in favour of Lot 13 was created. Relevantly, therefore, at no time has Lot 13 (owned by the Council since the creation of the Lot in June 1987, some 3 and a half years before the creation of the subject right of way) had the benefit of a right of way over the area that is now Dr Effeney's land.

1. In 1985, Dr and Mrs Woolridge acquired two lots of land, comprising 200 acres, on the western side of the Wingecarribee River (i.e. the opposite side to the then Lot 12), those being Lots 13 and 14 in DP 715209, from which they operated a horse stud, known as the Inverness Stud, for some years up until around 2007. (Lot 13 DP 715209 is not to be confused with Lot 13 in DP 740903, the latter being a relatively narrow strip of land located on the eastern side of the river and dedicated to the Council as a public reserve in 1987 as referred to above).

1. In March 1987, Millar Investments acquired Lot 11 in DP 715209 (that having been part of the same subdivision by which Lots 13 and 14 in DP 715209 were created). That Lot 11 (to be distinguished from the Lot 11 in DP 740903 which is adjacent to Lot 12 at the eastern end of Lot 12) was comprised of two discrete parcels of land - part on the eastern side of the river and part on the western side of the river.

1. Dr and Mrs Woolridge (jointly with Millar Investments) acquired Lot 12 at auction in July 1987 (they later acquired Millar's half share in that land in February 1988). As at that time, therefore, Dr and Mrs Woolridge owned two large parcels of land on the western side of the Wingecarribee River (Lots 13 and 14 in DP 715209); Millar Investments owned Lot 11 in DP 715209; the Woolridges and Millar Investments shared ownership of Lot 12; and the Council owned the public reserve on the strip of land (Lot 13) between Lot 12 on the eastern side of the river and Lot 14 on the western side of the river. Access to Lot 12 from the Woolridges' land across the Wingecarribee River was through Millar Investments' Lot 11.

1. At the time of the sale by Millar Investments of its half interest in Lot 12 (in 1988) to Dr and Mrs Woolridge, agreement was reached for the grant by each of the Woolridges and Millar Investments of a right of way over their respective parcels of land (Lot 12 in DP 740903 and Lot 11 DP 715209) in favour of the other (thus formalising the right of the Woolridges to cross between Lot 14 on the western side of the river and Lot 12 on the eastern side of the river through Millar Investments' land).

1. It was this agreement that ultimately led to the registration of DP 643913 on 3 December 1990, creating the right of way the subject of the present litigation. However, in the meantime, (by registration of DP 786728) Millar Investments had subdivided Lot 11 in DP 715209 into two further lots - Lot 15, part of which was adjacent to Lot 12 on the eastern side of the river and part of which was on the western side of the river, and Lot 16, which was adjacent to Lot 15 but not to Lot 12.

1. The registration of DP 643913 burdened Lot 12 (owned by the Woolridges) with a right of way in favour of both Lots 15 and 16 in DP 786728 (owned by Millar Investments). On the same date the registration of DP 643911 burdened Lot 15 with a right of way in favour of Lot 12. (Presumably, the reason that there was no corresponding right of way burdening Lot 16 in favour of Lot 12, as was the case for Lot 15, was that it was not necessary for the Woolridges to cross through Lot 16 in order to have access to Lot 14.) There was no right of way burdening Lot 15 and benefiting Lot 16 that would allow the owner of the latter lot from time to time to cross Lot 15. (Therefore, the practical benefit of the easement granted in favour of Lot 16 over Lot 12 would seem to have been one subsisting only while Lots 15 and 16 remained in the same ownership.)

1. Lots 17, 18 and 19 were later created by way of a subdivision in 1995 of Lots 15 and 16. That subdivision involved an area of approximately 1.176ha out of the initial Lot 11 in DP 715209 (which had formed part of Lot 16 DP 786728) becoming part of the parcel of land that (together with the previous Lot 15) became Lot 18 in DP 850447. The lot previously known as Lot 16 at the same time became Lot 17 (with the removal of the 1.176ha portion now forming part of Lot 18). As part of the condition of approval for this subdivision, Lot 19 was transferred to the Council and was dedicated as a public reserve.

1. Lot 19 is a relatively narrow U-shaped strip of land (largely comprising a cycleway to which I will refer shortly), which meets Lot 13 (through which the cycleway continues to the south) at the north-western corner of Dr Effeney's property. Lot 19 proceeds from that north-western corner along the northern boundary of Dr Effeney's property and then turns first west and then south to complete the U shape. (Lot 19 does not adjoin Lot 2 along the western boundary of Lot 2 - that area being Lot 13.)

1. As Dr Effeney explains, in his affidavit sworn 13 April 2010 at [32], Lot 19 is not burdened by the right of way that had been granted in favour of Lot 12 by DP 643911. Nor is there any right of way granted to the owners of Lot 17 or Lot 18 over the land that is now Lot 19. (Dr Effeney points out that the result of this is that while Lot 17 then had registered on its title a right of way over Lot 12, as created by DP 643913, it had no right of access to Lot 12 either through Lot 18 or through Lot 19; and that Lot 18 was in a similar position having no right of access through Lot 19.)

1. Lot 18 (being the former Lot 16 and a small part of the former Lot 15 and being adjacent to Lot 12) was the subject of an unregistered lease from Millar Investments to the Woolridges from 1 August 1999 to 30 April 2005.

1. Lot 17 (being most but not all of the former Lot and not adjacent to Lot 12) was transferred by Millar Investments to Setera Pty Limited on 10 July 1995 and then in due course to the second defendant (Ms Balog first acquired a joint interest in the land and then, in 2004, became the sole owner of the land).

1. In 2001, there was a boundary adjustment (DP 1034316) between Lots 17 and 18, the former (owned by Ms Balog) then being designated as Lot 20 and the latter (still owned by Millar Investments) as Lot 21.

1. In around 2007, Dr and Mrs Woolridge carried out a subdivision of their land on the eastern side of the river (i.e. Lot 12) in order to create what is now known as the Songline Place subdivision, as part of which Lot 2 (now owned by Dr Effeney) came to be created.

1. As a result of the above, by the time of the present proceedings, the three lots benefited by the easement over Lot 2 (the former Lot 12) were those known as Lots 19, 20 and 21, those belonging variously to the three defendants to these proceedings (but, as noted earlier, the only party resisting the extinguishment of the easement was the Council as owner of Lot 19). The easement does not benefit (and never has benefited) Lot 13, which is also owned by the Council.

• Cycleway

1. In 2002/2003, the Council built a 4.5km cycleway and walkway for public use, generally following the path of the Wingecarribee River from Moss Vale to Burradoo (known as the Burradoo-Moss Vale cycleway).

1. Part of the land on which the cycleway is built (including Lot 13) as well as part of Lot 12 is a flood plain (and, as that description in terms suggests, prone to flooding, though the land was easily traversable and by no means a boggy swamp when I was there). (The Council's Parks and Property Manager, Mr Bowmer, annexed to his affidavit various photographs showing flooding in the area and over the cycleway.) The Council points to the flood prone character of the land both as to the potential for the need to repair the cycleway in due course and as to the likelihood that the use, or any development, of Lot 2 beyond a rural use will be limited.

1. The circumstances in which the cycleway was built are relevant to the question of the use (if any) of the right of way by the Council over the period prior to the present proceedings and will be considered in that context later in these reasons. A major point of contention was as to whether the Council or its contractors had used the right of way (for access by concrete or other trucks) during the course of construction of the Burradoo-Moss Vale cycleway (this being the only time at which the Council suggests that any use was made by it of the right of way in the period from 1995, when it acquired Lot 19, to date). The Council says that during that period it laid road base (variously described as red bauxite or as crushed road base and concrete) along the right of way to permit access by trucks to the construction site (and that it took either 2 hours or, according to one witness, 2 days for the road base to be laid). During the view, I saw no evidence of road base on the area of the right of way that I was shown (nor, it must be said, was there evidence of road base in the area of the horse laneways that I was shown), though Mr McLean suggested that this was because the area appeared to have been graded (but there was no evidence as to this or as to what occurred when the fencing in the paddocks for the horse laneways was removed).

1. Construction of that part of the Burradoo-Moss Vale cycleway that is adjacent to Dr Effeney's land (stage 2 of the project) occurred in around September 2002. (The Council received a written quotation dated 26 July 2002 from Seovic for the laying of the concrete and wrote a letter of acceptance of that quotation on 5 August 2002. An invoice was issued for that work on 30 September 2002.) The whole of the cycleway was finally completed in 2003.

1. The construction process involved the creation of earthworks on the site, the delivery of concrete to the site, its reinforcement on the ground and it then being lifted up into place by use of a 'slipformer'. Further earthworks were then carried out by use of one or more bobcats. The method of construction was said to have been a conservative one designed to maximise the life of the concrete (and hence minimise the need for repair/maintenance).

• Acquisition of Lot 2

1. Dr Effeney acquired Lot 2 from Dr and Mrs Woolridge in November 2009. At the time, he was clearly aware of the easement (it was the subject of a special condition in the Contract for Sale, the vendors agreeing to assist in relation to its extinguishment) but says that he was not aware at the time of exchange of contracts that the Council had the benefit of the easement (T 28.7). Dr Effeney accepted in the witness box that he bought the land with the intention of seeking to extinguish the easement. (In the context of the sale, Dr and Mrs Woolridge provided a statutory declaration that the right of way had not been used by the first defendant while they owned the property - a matter disputed by the first defendant but which it is not necessary for present purposes to determine. No reference was made in the statutory declaration to the position of the Council.) Dr Effeney is currently using the land only to cut grass for silage (T 35). There was no evidence as to any proposed future use of the land.

1. Shortly prior to the completion of the sale to Dr Effeney, agreement was reached (on 16 September 2009) between the Council and Millar Investments pursuant to which the latter was granted a licence to traverse the cycleway from its land (Lot 20) for purpose of moving livestock and vehicles (two crossing points being specified for particular purposes).

• Features of the land and its use

1. By way of further topographical information relevant to the current application, as I observed on the view Lot 2 slopes downwards to the Wingecarribee River and is on the eastern side of the river. Access is from the Songline Place subdivision. There are presently (and, though this is somewhat contentious, it seems that there were at the relevant time during the construction of the cycleway) two gates on the fence along the western fence boundary of Lot 2 - a white gate that is located on the western boundary opposite the Wingecarribee River and a wooden gate at the north-western corner of Lot 2. The former gate gives access onto Lot 13 (over a depression in the ground in which there are irrigation pipe outlets visible); the latter gives access to the intersection between Lots 13 and 19. (At the time of the view, both gates were inspected.) The white gate is not directly in the path of the right of way, the latter running down Songline Place. (The white gate is, however, at the end of what was formerly an east/west horse laneway and in a direct line to the octagonal crossing between laneways.)

1. In around July 2002 part of the fencing was taken down (and then replaced) along the western boundary of Lot 2 (a section along the southern paddock to the south-west corner of the lot). There was a dispute between the Woolridges and the Council as to the type of fence that was installed at that time (it not being considered by the Woolridges to be suitable for the safety of their horses). The removal of this fence (which might otherwise have explained the discrepancy in the evidence as to how the Council says that access was gained through Lot 12 to Lot 13 for the purposes of construction of the cycleway) seems to have occurred prior to the laying of the concrete or the carrying out of the earthworks on that section of the cycleway (having regard to the date of the invoice issued for those fencing works and the fact that it refers to the works as having been installed). In evidence was a copy of a letter dated 11 June 2002 from the Council to the Woolridges referring to the installation of fencing on the common boundary between the horse stud and the Council recreation reserve (Lot 13), which advised them of the cost of "the fencing [that] has now been installed" as well as of the "relocation of the timber horse fence at the south western corner of the horse paddock complex", which work it was said "has now been finalised".

1. Therefore as at June 2002 (before commencement of the cycleway construction) the portion of fencing on the border of the southern paddock (where an old windmill is located) had been completed and access could not have been possible to the cycleway construction site through that fence.

1. There is also a question as to whether the gate at the north-western corner of the property had been moved (Mr de Buse pointing to a hole in the ground at the north-western corner that was said to have been where the gate post had formerly stood - though whether this was a corner gate post hole was itself disputed). The former manager of the Woolridges' horse stud (Mr Ross Bone) was adamant that the gate on the north western corner had not been removed (rather, the fence had been realigned) and he gave a physical demonstration in the witness box of the manner in which the fence had been realigned but the gate itself had remained as it was.

1. Before the sale of Lot 2 to Dr Effeney, Dr and Mrs Woolridge had used that land in connection with their horse stud, the main operation of which was conducted from Lots 13 and 14 on the western side of the river (Mrs Woolridge referred in her evidence, as did Mr Bone, to the West Stud and East Stud respectively). The main breeding and foaling facilities were on the West Stud and the East Stud seems to have been used (certainly around the time of year that the cycleway construction works were carried out) to graze yearlings. Both Mrs Woolridge and Mr Bone gave evidence that the horses were never transported across the river but were transported between the respective studs by truck through the Songline Place access to Lot 12.

1. The significance of this use of the land for present purposes is that Lot 12 was at that time divided by fences into a number of paddocks (one large paddock to the south and four smaller paddocks to the north) and there were fenced horse 'laneways' through which the horses were given access from time to time to various of the paddocks.

1. For the purposes of the view, Dr Effeney had placed white flags along the course of the laneways to indicate what he understood to be their general location and had placed red flags to indicate the location of the right of way (as well as red flags to indicate an octagonal area at the junction of the laneways, opposite the white gate). Dr Effeney, in his 22 February 2011 affidavit, described how he had located and marked the right of way and cycleway and noted that part of the earlier north/south and east/west laneways had been obliterated by construction of a water retention pond required by the Council and Sydney Catchment as part of 2007 subdivision.

1. Although it was not conceded by the Council that these were accurate markers, there did not seem to be any real dispute that the flags gave a general indication of the location of the horse laneways (and, indeed, the photographs tendered from Google Earth support this). (The right of way itself is indicated on the relevant deposited plan.)

1. Opposite the white gate at the western boundary, in the middle of the area formerly occupied by the four smaller horse paddocks, there had been an octagonal area with double gates (2.4m wide) at each of four access points, through which horses could be taken from the laneways through the gates to particular paddocks. (Although some witnesses referred to a single gate, I accept the evidence of Mr Bone and Mrs Woolridge in that regard, as they are the persons likely to have been most familiar with, and have the best recollection of, the workings of the horse laneways).

1. It is Dr Effeney's contention that the right of way could not physically have been used as the Council contends it was during the construction of the cycleway while the layout of the paddocks was as the Woolridges had used them for the horse stud. This is supported by the evidence of Mrs Woolridge and Mr Bone, in that they say that the gates on the western boundary fence opened only onto the laneways and not into the paddocks themselves (whereas the right of way crosses the paddocks). In other words, during the period that the fenced horse laneways were in existence, access from inside the paddocks to either Lot 19 or Lot 13 was possible only by going back through the octagonal gate to a horse laneway leading to one of those boundary gates.

1. Immediately outside the white gate was an area in which there were irrigation pipe outlets. Mrs Woolridge said that in about 1988 or 1989, an irrigator pump was placed on a concrete slab outside the white gate (T 43). (Mrs Woolridge gave evidence that she could not imagine that one could drive over the concrete slab - T 43). The location of the irrigator pump was confirmed by Mr Bone whose evidence was that there could not readily have been access through the white gate to Lot 13 without moving the (heavy) irrigation pump that was then in place. That said, Mr Bone also volunteered that the pump had been moved at some time before the construction of the cycleway and not replaced. Therefore, it would not have precluded access through the white gate (to anyone moving along the east/west laneway).

1. Mr Bone also gave evidence that four concrete slabs had been placed in the area of the east/west laneway in order to block access to the white gate when the irrigation pump was there (and it is not clear whether they had been moved at the time of construction of the cycleway, though they are not there now). Again, this is relevant to the use that is said by Council to have been made of the right of way during the period of construction of the cycleway.

• Grounds on which extinguishment of easement is sought

1. Dr Effeney seeks the extinguishment of the easement on the grounds that:

(i) it has been abandoned (relying largely on the deeming provision contained in s 89(1A) of the Conveyancing Act 1919 (NSW)) (the 89(1)(b) abandonment ground);

(ii) it is obsolete and serves no presently useful purpose (this was put by reference to the following: first, the changing character of the neighbourhood - from that of rural to semi-rural or hobby-farm use; second, that no reasonable use of the land is possible unless the easement is modified or extinguished (although this contention was largely abandoned during submissions); and, third, by reference to the circumstance, if it be held to be the case, that the easement on its proper construction does not permit access other than for the purposes of Lot 19) (the 89(1)(a) obsolescence ground); and

(iii) there will be no substantial injury to the Council by its extinguishment (the 89(1)(c) lack of substantial injury ground).

1. It was accepted that even if one or more of the grounds for extinguishment is made out, there is still a discretion as to whether the easement should be extinguished ( Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18, 099 per Mason P at [2]; Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321 per Slattery J at [59]).

1. Although it was conceded that the statutory power to modify the easement does not permit the Court, in effect, to relocate the easement to another (perhaps more suitable) part of the land, it was submitted by Mr Warren that the same result might be able to be achieved (novel though it was conceded this would be) by extinguishing the easement subject to a condition in relation to the grant of an alternative easement at a different location on the property.

1. The Council opposes the extinguishment of the right of way. Apart from its denial that the basis for any application of the deeming provision (i.e. 20 years' non-use) has been (or had, as at the time the proceedings were commenced, been) established, it is submitted by the Council that the right of way has not in fact been abandoned; that the continuation of the right of way is necessary and continues to serve a useful purpose (and hence the easement is not obsolete) to enable access to the cycleway (though Council considers that such access is not limited just to that part located within Lot 19) for the purpose of maintenance and repairs or for emergency access; and that extinguishment of the easement would cause a substantial risk of injury.

1. The Council maintains that it cannot use (or cannot as cost-effectively use) other means of access to the cycleway due to the fact that trucks from the south cannot drive across Bong Bong Common (as it is an archaeological site) and that access from the north would be at the risk of damaging the concrete or otherwise more expensive. Dr Effeney contends that the Council does have a means of access to the cycleway from Phillip Street, Burradoo (although it is conceded that this access has not yet been formed and developed to permit use by trucks) and that this is a circumstance to be taken into account when deciding if the easement should be extinguished. The Council further maintains that access otherwise than through Dr Effeney's land would be inefficient (by which I understand the Council's witnesses really to be saying that such alternative access would be more expensive). It was asserted by one of the Council's witnesses (though it seemed to me to be a rather broad submission without being linked to particular evidence) that if the easement were to be extinguished then the Council would not be able to maintain the cycleway and it would have to be closed. (I would simply comment that the evidence did not suggest that a thorough review had been made of alternative options in this regard.)

1. Finally, by way of comment at the outset of these reasons, in my view the most sensible solution to the current dispute would be to relocate the easement to the side of Dr Effeney's property (down what is the former horse laneway on the northern boundary of the property), as I understand has been the result of the agreement now reached with Millar Investments. I am, of course, not privy to the reason why any such arrangement could not be agreed between Dr Effeney and the Council. Although I encouraged the parties (when reserving my judgment) to give consideration to a resolution of the dispute along such lines, I can only assume that no such accommodation has been attempted or reached. Nevertheless, if what the Council in fact requires is access to more than Lot 19 alone for the purpose of repair and maintenance of the cycleway (an important public asset) and the right of way does not, as properly construed, permit this, then it would seem in all parties' interests to reach agreement as to the substitution of an alternative easement that would clearly permit the Council to have the access it seeks to areas along the cycleway beyond Lot 19 (and to remove the disadvantage that there presumably is for Dr Effeney in relation to the current location of the easement).

Legal Principles

1. Section 89(1) of the Conveyancing Act confers power on the Court to modify or extinguish an easement. As noted by Slattery J in Rosedale (where his Honour helpfully summarises the principles applicable in relation to the exercise of that power, which summary I gratefully adopt in these reasons), s 89(1) creates an important statutory qualification to the common law rights of the owner of an easement.

1. Section 89 provides:

89 Power of Court to modify or extinguish easements, profits prendre and certain covenants

(1) Where land is subject to an easement or a profit prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit prendre, restriction or obligation upon being satisfied:

(a) that by reason of change in the user of any land having the benefit of the easement, profit prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or

(b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit prendre or the benefit of the restriction is annexed, have agreed to the easement, profit prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit prendre wholly or in part or waived the benefit of the restriction wholly or in part,

(b1) in the case of an obligation:

(i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation's being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or

(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or

(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit prendre, or to the benefit of the restriction or obligation.

(1A) For the purposes of subsection (1) (b), an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.

1. As noted by his Honour at [58] in Rosedale :

Conveyancing Act s 89(1) is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting the common law property rights. The starting point for the Court's consideration is the easement itself, its terms and its objects derived from construing those terms in context and bearing in mind that the easement was created for an indefinite future and destined to endure in a changing environment: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at [47]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [4].

1. In considering the exercise of power under s 89 of the Act, "the widest field of evidentiary material" is admissible ( Re Roseblade; Re Foenander [1964-5] NSWR 2044 Else Mitchell J (at p 2046); Markos v. OR Autor Pty. Limited [2007] NSWSC 81 per Austin J at [90]).

1. For present purposes, there are five issues to be determined:

(i) What is the proper construction of the easement?

(ii) Does s 89(1A) apply to deem the easement to have been abandoned and, if not, has it otherwise been abandoned for the purposes of the common law test of abandonment?

(iii) Is the easement now obsolete?

(iv) Would extinguishment of the easement cause substantial injury to the Council?

(v) If one or other of the circumstances set out in s 89 is satisfied, should the discretion be granted in favour of the exercise of power to extinguish the easement?

Summary

1. In summary, for the reasons set out below, I am not satisfied that the right of way has been intentionally abandoned by the Council; further, while I find that the Council has not used the right of way along its actual path (other than at most a small part of the right of way at the Songline Place entry to the land) since its creation, I consider that the use by the Council's contractors of an access path through the horse laneways (in circumstances where ready access to the right of way was blocked by the improvements placed on the land) is such as to warrant the refusal of an order for extinguishment of the easement even if there has been a deemed abandonment of the actual right of way by reference to its non-use for a 20 year period (the doubt as to the possible user of that part of the easement off Songline Place meaning that I am unable to make a finding of deemed non-user); and I am not satisfied that the right of way is obsolete or that the Council would not be at risk of substantial injury (even if in none other than in economic terms) if the right of way were to be extinguished.

1. Nor am I persuaded that it is appropriate (notwithstanding that I am firmly of the view that this would be the sensible result) for me to impose on the parties a relocation of the easement by granting the relief sought subject to the creation of an alternative easement. That would seem to me to be, in substance, a modification of the easement outside the Court's statutory powers. Therefore, while I have every sympathy for the proposition that the right of way should be relocated so as to permit use by the Council if and when that may be necessary for cycleway repair/maintenance purposes (both within Lot 19 and outside its confines) but without hindering the reasonable use by Dr Effeney of the land (whatever that might ultimately be), I can do no more than once again encourage the parties to explore a sensible consensual arrangement of that kind.

Issues

(i) Construction of the terms of the easement

1. The issue in relation to the construction of the terms of the easement in the present case (as expanded by reference to s 181A of the Conveyancing Act ) is whether the easement permits the Council (as it maintains it is able to do) to use the right of way in order to gain access not simply to Lot 19 but also through or across Lot 19 to Lot 13 or to the lots to the north of Lot 19 (for the purpose of repair or maintenance of the cycleway or otherwise).

1. As noted earlier, the easement permits the owner of the dominant tenement (the Council) to "pass and repass at all times ...... both to and from the said dominant tenement or any such part thereof". Neither the words of the grant as they appear on the registered instrument nor the words as incorporated in the grant by reference to s 181A include specific reference to the right to passage "across" the dominant tenement to another parcel of land.

1. In Westfield, the High Court considered the terms of an easement conferring a right of way by means of a vehicular ramp under the servient tenement (on which there was a multi-storey building in the central business district in Sydney - the Glasshouse) in favour of the dominant tenement (on which was erected another multi-storey commercial building - Skygarden). The opening words of which easement (set out in [15] of the judgment) were as follows:

Full and free right of carriageway for the grantee its successors in title and registered proprietors for the time being of an estate or interest in possession of the land herein indicated as the lots benefited or any part thereof with which the rights shall be capable of enjoyment and every person authorised by it, to go, pass and repass at all times and for all purposes with vehicles to and from the said lots benefited or any such part thereof across the lots burdened . (emphasis in original)

1. The High Court noted the affinity between this form of words and that appearing in s 181A of the Conveyancing Act (which I have extracted above), but also that the meaning given to the expression "right of carriageway" by the statute may be varied by the instrument in which it is used (s 181A(3)). There was, however, a distinction between the terms of the easement in that case and the words otherwise read in by the statute, as discussed in [17] of the judgment:

[17] The phrases "to go, pass and repass at all times and for all purposes ... to and from the said dominant tenement ['lots benefited'] or any such part thereof" appear in both the statute and the Instrument. However, for the Easement the activities permitted with respect to the servient tenement (Glasshouse) are "across the lots burdened", an expression not found in the statutory formulation. This expression is apt to describe entry from King St, and passage across the Glasshouse site of the servient tenement to reach Skygarden as the destination. What is significant for the present dispute is that the Easement does not also speak of activities "across" rather than "to and from" the dominant tenement (Skygarden).

1. The High Court expressed its agreement with the following observation made by Hodgson JA in the Court of Appeal at [65]:

Although the words 'to and from [the dominant tenement] or any such part thereof' do not exclude the possibility that the right should extend to going to the dominant tenement and then going across it to further land, and then returning across the dominant tenement and then going from it across the servient tenement, the words tend to suggest that it is access to and from the dominant tenement that is the purpose of the [E]asement, and not access to further land reached only by going across the dominant tenement. Certainly, if it had been intended that the grant extend to the authorisation of others to go across the dominant tenement to further properties, the words 'and across' could readily have been added. (emphasis in original)

1. Pausing there, in the present case, unlike in Westfield , there is no reference in the terms of the easement to travel from the dominant tenement "across" the servient tenement. However, the terminology of the Westfield easement is otherwise relevantly on all fours with that of the subject easement.

1. At [30]-[32], Hodgson JA had referred to three principles as relevant when determining whether certain use of the servient tenement is authorised by an easement:

First, there is the principle that, for a grant of an easement to bind the servient tenement rather than merely to operate as between the parties, the use authorised must be such as to benefit the dominant tenement: Attorney-General v Horner (No 2) [1913] 2 Ch 140 at 196; Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 at 579-80 and 591.

Second, there is the principle of the law of nuisance that unreasonable use of land causing unreasonable damage to other land is actionable nuisance; so that even though a use of the servient tenement may otherwise be within what was granted by the easement, if this use is carried out unreasonably so as to cause unreasonable damage to the servient tenement, it may be restrained as a nuisance. This was an alternative ground on which relief was granted in Todrick both at first instance and on appeal; and sometimes it is not entirely clear whether the Court is acting on this principle or acting on a construction of the grant as to what use was authorised by it.

Third, there is the rule that, if there is ambiguity in an instrument granting an easement, the instrument will be construed against the grantor. However, I agree with the primary judge that this rule is one of last resort: see para [5] of his judgment.

1. In the Westfield case, emphasis was placed by Westfield on the phrase contained in the Instrument "for all purposes". The High Court had regard to cases in which the phrase "for all purposes" in the grant of a right of way had been considered ( Thorpe v Brumfitt (1873) LR 8 Ch App 650 and Peacock v Custins [2002] 1 WLR 1815; [2001] 2 All ER 827), noting that the decision in Thorpe was of significance, inter alia, in that it "emphasises that the "purposes", extensive as they may be, must confer what the law regards as a benefit on the dominant tenement, by making it "a better and more convenient property"; this is something more than a "personal advantage" to the owner of the tenement for the time being" (at [21]).

1. The High Court was of the view that it was not necessary, for the enjoyment of the rights granted for access to the Skygarden land, that those using that access be at liberty to pass beyond Skygarden to other land. Their Honours added that if the construction of the Instrument urged by Westfield were to be accepted (and the grant extended to permit use of Glasshouse to pass across Skygarden to other parcels of land) then a further question would arise as to whether "a grant in those terms would be appurtenant to Skygarden in the sense of the authorities, or be but a personal advantage accruing to Westfield as the present owner of Skygarden" (it also being the owner of the other parcels of land to which access from Skygarden might thereby be obtained).

1. The High Court noted the statement in Gale on Easements (17 th edn (2002) at 334 [9-27] that "The general rule is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant" and the analysis of the English authorities that there followed, adopting the analysis in Gale on Easements of the judgment in Harris v Flower (1904) 74 LJ Ch 127 (that the excessive user by which it was attempted to impose an additional burden on the servient tenement there consisted in the use of a right of way for obtaining access to buildings erected partly on the land to which the right of way was appurtenant and partly on other land).

1. Their Honours emphasised (at [29]) that "care certainly must be taken lest the statement in Gale on Easements set out above be elevated to the status of a 'rule', whether of construction or substantive law" but said that it did provide a starting point for consideration of the terms of any particular grant. Their Honours also emphasised the importance, in litigation regarding title to land under the Torrens system, of the principle of indefeasibility expounded in Breskvar v Wall (1971) 126 CLR 376 (referring also to Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245 at 264 [26]-[27]). In relation to the question of extrinsic evidence in the construction of a registered easement, at [39] the High Court said:

...The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee. (footnote omitted)

1. Evidence to establish the intentions and expectations or contemplation of the parties to the Instrument respecting the development of an area in the central business district of Sydney at the time of the grant of the easement was not said to be admissible in construing the grant.

1. Reliance is placed by Mr Warren on Westfield (and also Shelbina Pty Ltd v Richards [2009] NSWSC 1449) to support the proposition that the terms of the right of way granted in favour of Lot 19 would not permit the Council to use its right of access over Lot 2 in order then to obtain access through to Lot 13 to the south or to the areas of the cycleway to the north of Lot 19 (referring also to Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324).

1. In response, Mr de Buse, though accepting that the grant of the easement recorded in the 1990 instrument does not use the word 'across', notes that it conferred the benefit of the right of way on both Lot 15 and Lot 16 (the relevant lot numbering at that time) and that, in order to have access from the servient tenement to Lot 16, it was necessary to pass across Lot 15. It was submitted that therefore the right of way must have contemplated the owner of Lot 16 being permitted to use the right of way in order to travel across Lot 15 in order to reach Lot 16 and that this would have been obvious to anyone inspecting the register at the time. The Westfield decision is therefore said to be distinguishable on the basis that the terms of the instrument in the present case convey a variation in meaning to the words used and considered in Westfield.

1. I note that in Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54, White J considered the question as to the use of extrinsic material in order to construe the terms of a registered easement, noting (at [33]) that prior to the Westfield decision it was commonly accepted that even an easement granted under the Torrens system should be construed having regard to all material objective facts at the time of the grant (citing Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia (2 nd edn) at [6.7]; Butt P, Land Law (5 th edn) at [1,693]-[1697]).

1. His Honour considered that where there was a bare grant of a right (such as in Powell v Langdon (1944) 45 SR (NSW) 136, to which reference had been made without disapproval in Westfield ), Westfield would not preclude recourse to all of the objective matrix of facts bearing on the construction of the instrument)at [35]), suggesting at [37] that the reason that different principles might apply in that context may be one of necessity:

... In the case of a bare grant, if ambiguities cannot be resolved by recourse only to the text of the registered instrument and plan, the person proposing to buy, or to deal with, registered land is necessarily thrown back to an examination of the extrinsic circumstances to see the extent of the rights which have been conferred on the owner of the dominant tenement.

1. Nevertheless, his Honour considered that he was bound to apply the statement of principle appearing at [15] - [16] of the Court of Appeal in Sertari, to the effect that the only matters to which it is legitimate to have regard in construing an instrument of this kind registered under the Real Property Act 1900 (NSW) are the folio identifiers, the registered instrument, the deposited plans and the physical characteristics of the tenements.

1. It is submitted by Mr de Buse that if the proper construction of the expression used in the 1990 instrument is that it includes by necessary implication an easement to carry persons who are to travel 'across' Lot 15 in order to reach Lot 16, then necessarily it means that the easement permits travel across Lot 19 (which was carved out of Lot 15) and thus it is said that there could in those circumstances be no objection to use of the easement to enable (for example) concrete trucks to cross Lot 19 in order to travel to other lots if that be necessary for maintenance of the cycleway on those other lots.

1. That seems to give rise to the kind of question that it was not necessary for the High Court to determine in Westfield , namely whether a grant in those terms would be appurtenant to the particular lot (in the sense that the right to travel across over Lot 15 to Lot 16 could be said to be an ancillary right necessary for the enjoyment of the rights expressly granted to Lot 15) or "be but a personal advantage" accruing to the present owner of the relevant lot.

1. Even if the grant in favour of Lot 16 could be said implicitly to confer a right to use the easement in order for the owner of Lot 16 to cross over Lot 15, that does not seem to me to be a right appurtenant to Lot 15. It does not seem to be necessary for the enjoyment of the right in favour of Lot 15 that the owner of that lot be permitted to use the easement in order to gain access to lots beyond Lot 15 (including that of Lot 16), such that once the ownership of those lots passed into different hands there would be no reason to suppose that the owner of Lot 15 would continue to have a right to use the easement over Lot 12 to travel across Lot 15 for the purpose of access to other lots. Even of the grant in favour of Lot 15 did carry with it the implicit right to use the easement to cross into Lot 16 (by reason of the grant of the easement in favour of Lot 16) it is difficult to see how it could be said that the same process of construction leads to the grant being construed as extending to a right to gain access to Lot 13 (which was never the subject of any right of way burdening Lot 2). In order to maintain that argument, the Council is thus forced to rely on the character of Lot 13 as a public reserve.

1. Reference was made to the judgment of Sir Robert Megarry V-C in Nickerson v Barraclough & ors [1979] 3 All ER 312; 3 WLR 562, where the Vice-Chancellor considered the "so-called" rule in Harris v Flower and the view that had been expressed that "although the general rule was that the grant of a right of way to reach plot A cannot be used as a means of access to plot B, which lies beyond, this rule would not apply if, at the time of the grant, plot A forms a means of access to plot B", giving by way of example the following situation (at [324]):

Let me take as an example a case where plot A consists of a footpath some three feet wide and a hundred yards long, running from land near a public highway up to plot B. If there is an express grant of a right of way to plot A over land which lies between plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means of access to plot A for the purposes for which plot A is used, namely, as a means of access to plot B. In the result, the way can be used as a means of access to plot B via plot A, notwithstanding Harris v Flower . If plot A is not used as an actual means of access to plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply.

1. However, it cannot be said that there was an access way between Lot 19 and Lot 13 prior to the grant or that there was an area used in this way to gain access from the area that was Lot 15 to any public area. Moreover, Nickerson was overturned on appeal ([1981] 1 Ch 426 at [444]).

1. Construing the right of way by reference to the registered instrument, the deposited plans and the location of the respective parcels of land, it seems to me that the reasoning in Westfield is equally apt to the facts of the present case - had the parties intended that the right granted to the owner from time to time of Lot 15 should extend to going across that land to have access to Lot 13 (then a public reserve) or to any other land that the owner of Lot 15 might own, this could have been stated in the instrument creating the easement. Significantly, had it been the intention that the easement noted on the title of the freshly created Lot 19 by registration of the relevant Deposited Plan 643913 should permit the owner to go across Lot 19 to that or other areas of land, then it could easily have been identified as having done so.

1. I am not satisfied that either the circumstance that the easement initially benefited both Lots 15 and Lot 16, or the public nature of the land in Lot 13, leads to a construction of the easement in favour of Lot 19 as extending to an easement to pass across Lot 19 either to Lot 13 or to the lots to the north of Lot 19. (This has implications as to the present utility of the easement and as to the injury that would be sustained by its extinguishment.)

(ii) Abandonment?

1. In Gale on Easements (18th edn) the learned authors (at [12-99]) cite the following dicta of Silber J in Odey v Barber [2006] EWHC 3109 (Ch) at [103] as a helpful summary of the principles to be applied by the courts when considering whether (at common law) a right of way has been abandoned:

(a)whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;

(b)abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement 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 of his should thereafter make use of the easement; (emphasis in original)

(c)abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;

(d)non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.

1. At [12-66], the authors outline that the "true rule" in relation to abandonment of easements such as rights of carriageway is that "mere non-user without more, however long, cannot amount to abandonment" (citing, inter alia, Benn v Hardinge (1992) 66 P & CR 246; Ward v Ward (1852) 7 Ex 838 at [839]) and state that "such non-user is evidence from which abandonment may be inferred but must be regarded in the context of the circumstances as a whole" (citing Swan v Sinclair [1924] 1 Ch 254 at [274] per Sargant LJ, his Lordship in turn citing Goddard on Easements (8th edn) at p 521).

1. At [67] in Rosedale , Slattery J summarised the principles applicable where extinguishment of an easement is sought pursuant to s 89(1)(b) of the Act, as follows:

...The mere circumstance that an easement was noted on the register when land under the Real Property Act passed to a new registered proprietor would not furnish a reason for refusing as a matter of discretion to make an order under s 89(1) or s 89(3): Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. The relevant principles in relation to abandonment of easements in relation to the exercise of Conveyancing Act s 89 jurisdiction are the following:

(a) abandonment occurs both at common law and under the Conveyancing Act when the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement, though it is not to be lightly inferred: Grill v Hockey (1991) 5 BPR 11,421 and Williams v Usherwood (1981) 45 P & Cr 235, 256;

(b) one must look for evidence that there has been an implied (or lost) modern deed of release of the easement - long non-use would be good evidence but would not necessarily be sufficient to establish abandonment: Swan v Sinclair [1925] AC 227, Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 and Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605; and,

(c) the longer the period of non-user the more readily the conclusion will be reached that the beneficiaries of the rights of way may be deemed to have abandoned it: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, per Walsh J at 288.

• Abandonment at common law?

1. Leaving aside the potential operation of the deeming provision for the moment, it is difficult to see that abandonment could be established on the facts of this case. The Council (as dominant owner) has hardly made it clear that no use will be made of the easement - at most it has not used, and has not had cause to use, the easement for a period of time (the length of which is disputed). When the issue was raised with it, Council made clear its intention to maintain an easement (though the evidence suggests that it was prepared at least at one stage to consent to a modification of the easement - when this was a matter in discussion between Millar Investments and the Woolridges prior to the sale to Dr Effeney).

1. In Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554, Gzell J considered the question of abandonment (as well as obsolescence) of an easement to give access to the rear of buildings on two sites having a frontage to The Boulevarde at Punchbowl. His Honour adopted the discussion of the principles in relation to the abandonment of easements (in the context of s 89(1)(b) of the Conveyancing Act ) contained in the judgment of Austin J in Long v Michie [2003] NSWSC 233.

1. At [19], his Honour noted what had been said by Buckley LJ in Gotobed v Pridmore (1970) 115 SJ 78, and cited with approval by the Court of Appeal in Williams v Usherwood (1981) 45 P & CR 235 at 256, that being:

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.

1. His Honour also referred to what was said 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 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.

noting that this approach had been adopted by Powell J in Guth v Robinson (1977) 1 BPR 9209 at [9214] and by Needham J in Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 at 617.

1. In Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, to which Slattery J referred in Rosedale , Mason J (as his Honour then was) noted that "mere non-user", even for a long period of time, did not necessarily indicate an intention to abandon:

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 (Ward v Ward (1852) 7 Ex 838 (115 ER 1189)). 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.

1. In the Court of Appeal in Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80, Tobias JA noted that where both tenements are under common law title the Court, in considering the question of abandonment, could have regard to the acts and omissions of the persons who have owned the dominant tenement since the easement was created but expressed the opinion that it was not clear that the position is the same when the titles are under the Real Property Act, suggesting that Treweeke and Pieper v Edwards (1982) NSW ConvR 56-060 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. Here, the focus has been on whether the current registered proprietor has abandoned the easement so the issue raised by Tobias JA does not arise. The Council does, however, maintain that insofar as it did not receive the benefit of the easement until 1995 it can rely on the prior use by Millar Investments of the easement.

1. The evidence does not establish any clear or fixed intention (whether on the part of Millar Investments or on the part of the Council) to abandon any future use of the right of way. The evidence (though disputed by Mr Bone as to use by Millar Investments' employees during non-flood periods) seems to establish at the very least that at the time of a June 1987 flood access through part of Lot 12 was used by Millar Investments to move cattle to higher ground (although the route taken for that purpose was not clear). As for the Council, even assuming that there was no use of the easement at the time of construction of the cycleway (which is a matter hotly in contention and which I will address shortly), it seems unlikely on the principles espoused in Treweeke that the fact that the Council has not needed to make use of the easement to rate would amount to abandonment at common law.

Does the deeming provision apply?

1. The question then is whether s 89(1A) operates to deem the easement to have been abandoned. That provision was introduced into the legislation in order to deal with the difficulties encountered in establishing abandonment at common law. The explanatory memorandum for the Real Property and Conveyancing Legislation Amendment Bill 2009, which provided for the introduction of s 89(1A), noted that one of the objects of the bill was to facilitate the removal of abandoned easements.

1. As a preliminary point the question is whether the section can be invoked at all in proceedings commenced less than 20 years after the easement was created. Although Lot 19 only obtained the benefit of the easement in 1995, the right of way was initially created by Deposited Plan 643913 on 3 December 1990. However, the summons was filed on 14 April 1990 (less than 20 years after the easement was created). The Council contends, in effect, that Dr Effeney commenced these proceedings some 8 months too soon - on the basis that an application for extinguishment or modification of an easement for the purposes of the deeming provision in s 89(1A) is 'made' when the summons is filed.

1. Mr de Buse thus submits that a 20 year period of non-use cannot be established in this case as giving rise to a deemed abandonment, irrespective of what findings might be made in relation to the use of the land by the Council during the construction of the cycleway.

1. For Dr Effeney it is submitted that the application is made when the applicant moves on the originating process at the hearing (which was over 20 years since the creation of the easement in 1990).

1. Little light is shed on that issue by the explanatory memorandum issued in relation to the bill that introduced this provision. It describes the provision simply as being that an easement "may be treated as abandoned (for the purposes of allowing the Court to modify or extinguish the easement under section 89 on the application of any person interested in the relevant land) if the Court is satisfied that the easement has not been used for at least 20 years before the application under section 89 is made".

1. The relevant part of the Second Reading Speech provides as follows:

The Bill proposes to amend the section of the Conveyancing Act 1919 that deals with abandoned easements. As I have previously explained easements that have not been used for at least 20 years may be considered to be abandoned. Under section 49 of the Real Property Act 1900 a person may apply to have the easement be removed from the Register if it can be proven that the easement is abandoned. As it has proven almost impossible to establish abandonment according to the complex rules that apply at common law this provision provides a simplified statutory basis for abandonment of easements. As such the provision allows a practical means of removing from the register notifications of easements that are no longer relevant to the land.

However should someone dispute an application to the Registrar General for abandonment of easement then this issue is dealt with by the Supreme Court under section 89 of the Conveyancing Act 1919 and not section 49 of the Real Property Act 1900. In the small number of cases that have been litigated under section 89 of the Conveyancing Act 1919 it has become apparent that there is a conflict between section 49 of the Real Property Act and section 89 of the Conveyancing Act 1919.

In adjudicating on a disputed application for abandonment of easement the Supreme Court under section 89 of the Conveyancing Act 1919 applies the common law rules of abandonment that require an applicant to establish that the owner of the easement "intended" to abandon the easement. The difficulties in supplying such evidence to the Court make it almost impossible for an applicant seeking abandonment to succeed. This difficulty was part of the reason for the introduction of the objective test of 20 years non-use that is applied in section 49. Accordingly it is also proposed to remove the inconsistency between the two sections by providing that the Court may apply the same criteria as that applied by the Registrar General under section 49 of the Real Property Act. This may be achieved by providing in section 89 of the Conveyancing Act 1900 that where an application is made to the Court for an order extinguishing an easement abandonment may be inferred if the Court is satisfied that the easement has not been used for at least 20 years . (my emphasis)

1. If s 89(1A) had referred to the commencement of proceedings or the filing of an application for the requisite order, then the position would be clear. It has been held that a proceeding is commenced once the steps prescribed in the court's rules for its commencement are completed ( Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15). That occurs in New South Wales when the originating process is filed (Rule 6.2(1) of the Uniform Civil Procedure Rules 2005 ).

1. In Gower , in the context of limitation periods and the rules there applicable, McPherson J stated at [23]:

Section 10(1) of the Limitation of Actions Act 1974-1981 speaks of an action being "brought" within a specified time. No one in this matter questions that an action is brought when it is commenced, and that it is commenced when the writ issues. That is implicit in O.2, r.1, which provides that "causes ... in the Supreme Court may be commenced by writ of summons ... Causes commenced by writ of summons are called actions". When, then, is the writ issued and action commenced? The answer is that it is commenced when the writ has been "signed and sealed by the proper officer". It is "thereupon ... deemed to be issued": O.7, r.1.

1. Similarly, in Australian Civil Procedure (5 th edn), Bernard Cairns states (at p 79) that a "proceeding is commenced when the originating process is issued by the registry of the court".

1. In Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 , Bell JA (as her Honour then was) observed (at [9]) that the "bringing or commencement of proceedings is a procedural matter that is dealt with by the rules of court" (citing Rule 6.2 of the Uniform Civil Procedure Rules ). Her Honour further noted that:

The same obtains in Queensland under r 8 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR (Qld)). In Cameron v National Mutual Life Assn of Australasia Ltd (No 2) [1992] 1 Qd R 133 at 136 McPherson SPJ observed that for the purposes of s 10(1) of the Limitation of Actions Act (Qld) an action is brought when a writ is issued, or more specifically, when it is sealed.

In Ketteman v Hansel Properties Ltd [ 1987] 1 AC 189 at 200 Lord Keith of Kinkel observed:

A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action that is referred to must be the bringing of the action against that defendant in respect of that cause of action...

1. The language of s 89(1A), however, is as to the 'making' of an application and there is nothing in s 89 to suggest precisely what the legislature intended by the use of that expression. With no indication to the contrary in the statute one would ordinarily give those words their ordinary construction.

1. A practical consequence of the interpretation for which Dr Effeney contends is that a person interested in land burdened by an easement could commence proceedings (say, by relying on abandonment) at some time within 20 years of its creation, when the parties could not be able to determine whether the deeming provision could conceivably ultimately operate (since they could not know at that stage, absent some event giving rise to impossibility of future use, whether a 20 year period of non-use would potentially be able to be established on the facts - not knowing what would happen in the balance of the time leading up to the end of the 20 year period). Whether the deeming provision could even conceivably operate in such a case would depend on when the matter came to be listed for hearing. It seems unlikely that such an arbitrary result could have been intended.

1. Then again, this is not a provision that must be satisfied in order to constitute a cause of action - it is a deeming provision to facilitate the removal of abandoned easements in circumstances where the applicant would otherwise be put to proof of intentional abandonment. As Mr de Buse, notes s 89(1A) is permissive in that allows the Court to take the passage of 20 years into account but does not require it to make any findings or reach any conclusion as a result.

1. I have considered whether an interpretation of the section that permits the commencement of proceedings at a time when it is not (and cannot on any view of the facts be) known whether the deeming provision could operate would be an interpretation consistent with the statutory objective of ensuring the quick, just and cheap resolution of the real issues in dispute in the proceedings. However, it seems to me arguable that there is nothing inconsistent with the said statutory objectives (or necessarily objectionable) in a situation where a party who does not know at the time of commencement of the proceedings whether the facts will ultimately support reliance on a deeming provision may nevertheless commence proceedings of this kind, provided that there is a reasonable basis on the facts to hand at that stage to allow the view bona fide to be formed that there is a basis for the claimed relief on other grounds so as to permit the proper commencement of the proceedings. In that situation the applicant would simply be in the position of later invoking the deeming provision in support of, or as an additional, ground for extinguishment when and if it subsequently becomes available due to continued non-use to the end of the 20 year period. (In one sense, this might provide a window of opportunity for the owner of the dominant tenement to take steps in the interim to use the easement and thus preclude any deemed abandonment.)

1. The Council submits that it requires the easement for access to Lot 19 but goes on to submit that it requires the easement for access "through that to the balance of the adjoining reserve for the purpose of potential repair reconstruction". The basis for this is that it maintains that it cannot use trucks greater than 2 tonnes in order to obtain access from elsewhere along the cycleway. It also requires access for emergency vehicles.

1. As to the potential need to repair the cycleway, although there was evidence that the cycleway had been designed to minimise the risk of damage to the concrete (and to withstand the impact of floodwater), it seemed to be accepted that there remained a risk to damage (say, if a vehicle ran over the edge of the cycleway) and it cannot be assumed that the concrete will have an indefinite life in that regard.

1. There was in evidence an assessment by geotechnical engineers carried out in October 2010 (Network Geotechnics Pty Ltd) in which it was said that the bearing load of the cycleway was such that it would be unable to sustain weight with axle loads of 5 tonne or greater and that even light vehicles could cause damage. The maximum load bearing capacity that it was said could be sustained was about 2 tonnes.

1. In this regard, Mr Stewart, as a qualified engineer involved in construction of the cycleway, expresses the opinion that the cycleway can be used on a "shared basis" by emergency vehicles and light trucks and "occasional infrequent passage of heavier 10 tonne Council vehicles". He explained in the witness box that his reference to occasional use or infrequent use was to use by one or 2 vehicles and that once or twice a week by a vehicle up to 10 tonnes was "probably ok".

1. Mr Stewart explained that the cycleway was on a prepared material base and that, if well graded, the base would not hold moisture (that being one of the reasons that there might otherwise be encountered a problem with concrete). He explained that the reinforcement to which reference was made in the materials was for the purpose of holding the concrete together and to control shrinkage (not for the strength of the concrete as such).

1. It would seem therefore that the design and construction of the cycleway was with a view to minimising the need for repair and in the knowledge that this was in a flood plain area (and, as I understand it, the initial problem with the concrete pour on the first day of construction was the fact that there was insufficient moisture - as noted by Mr Zarins). Nevertheless, Mr Stewart conceded the possibility that repair might be necessary, accepting that the track could break if run over on an edge or if it were laid on bad ground (though noting that it is presently in good condition).

1. Mr Mark Roebuck, who was the Manager, Roads and Traffic for the Council for 2 and a half years and prior to that was the Divisional Engineer and a traffic engineer at Wollongong Council, has provided an opinion (having regard to the expert witness code of conduct) as to the weight bearing capacity of the cycleway. By affidavit sworn 19 October 2010, Mr Roebuck has deposed to his experience in the construction of roads, his inspection of the cycleway, his finding that it has a low California Bearing Ratio (which means that when the path and surrounding area are saturated then water may seep underneath and undermine the path), his view that repair to the cycleway may be necessary if it is damaged and that if so there would be a need to transport machinery from less than 5 tonnes up to 15-30 tonnes.

1. Mr Roebuck's opinion is that the cycleway would sustain damage such as joint displacement and edge cracking as a result of the weight of such machinery both individually and collectively if it were to be driven over the cycleway. He notes that there would be a large turning circle necessary for the machines required to repair the cycleway.

1. Mr Roebuck noted that there was restricted access at the Bong Bong common end of the cycleway and to the north but eventually appeared to concede that if the Council had to do so it could access the cycleway north of Lot 19 for the purpose of repair. He accepted that there had been no cause for maintenance or repair to date. (He expressed the opinion that the Council would have little difficulty traversing across path of easement with machinery of the kind to which he had referred - which presumably is the case now that the fences for the horse laneways have been removed.)

1. The easement is said by the Council to be variously the only or the best or "at the very least an important alternative" access to the cycleway. It is said that Lot 19 contains an extensive section of the cycleway (though I have not attempted to calculate in geographical terms what proportion of the 4.5km cycleway is within this lot) and that the significance is that the easement provides access at approximately midway on the cycleway (reducing the distance that trucks or machinery may have to pass to repair or reconstruct the cycle way).

1. Mr Warren submits that if the Council wishes to traverse or repair or maintain Lot 13 or areas to the north of Lot 19 then it must obtain alternative access since it cannot use Lot 19 to access its other land and therefore in circumstances where Council could be assumed to use Lot 13 by other means and, by using Lot 13 it can similarly gain access to Lot 19, there is no reason why the Council could not continue to use this access over its own land and not by means of Dr Effeney's land.

1. As to the question whether use of a concrete truck on the cycleway would damage the concrete in the cycle way, and whether there is alternative access, there is conflicting evidence.

1. Mr McLean says that the Council cannot gain access to the cycleway under the Moss Vale Railway Bridge or across Bong Bong common with a concrete truck (although did accept this would be possible with a smaller 2 tonne truck). He says that access by smaller trucks would be "totally ineffective" both because the costs would be too high and because (assuming access was for the purpose of repairing the concrete) smaller trucks could not keep up to the requirements needed to 'slip form' the concrete. Mr McLean asserts that for 'slip forming' it would be necessary to use 6 or 8 wheeler concrete trucks and that this would be detrimental to the cycleway (T 21/22).

1. Mr McLean did, however, seem to accept that works had been carried out after the cycleway construction in order to allow access by heavy trucks from a Sullivan Avenue access point (T 23) and that one could now obtain access through Sullivan Avenue (T 36) although this would mean a difficult sharp turn at end of Sullivan Avenue where it joins the cycleway.

1. Mr Bowmer commented in his affidavit on the possibility of alternative access points to the cycleway and dismissed those as being unsuitable (Hurlington Avenue, because it is a cul de sac and vehicles greater than 1.5m wide cannot use it; Oxley College and Sullivan Avenue because trucks could only drive to the beginning of the cycleway; Bong Bong common because trucks again could only drive to the commencement of the cycleway and it is a heritage listed site; Riversdale Avenue, because there is no vehicular access.) As to the suggestion that access could be obtained through the Phillips St access point, Mr Bowmer dismissed this due to there being rough vegetation and bush and no vehicular access (although it is not suggested that this could not be remedied by removing the vegetation).

1. Mr Bowmer says that it is not possible for vehicles to travel along the cycleway "for any great distance" without driving across the cycleway because there are trees and shrubs on the site.

1. Mr Bowmer's conclusion seems to be that the Council cannot gain access from south (because Bong Bong common is an archaeological site - although the conservation plan for the common does seem not to prohibit entry with heavy machinery or trucks of this is for the purposes of repair) and that access from the north would have to be along the cycleway and would risk damaging the cycleway. Therefore, he asserts that if the easement is extinguished the Council will have no means of accessing the land within Lot 19 (which seems to me to be somewhat of an overstatement of the position).

1. He also asserts that if the cycleway is unable to be maintained the Council may be forced to close the cycleway (though to me that had the ring of a desperation appeal to the public interest without being based on any empirical evidence as to the problems that lack of access through the subject easement would pose).

1. In cross-examination Mr Bowmer was unable to comment on tolerable truck weights on the cycleway and seems to have based his opinion on the access route from the Moss Vale end of the cycleway on an assumption that trucks could not fit under the bridge.

1. Mr Lammers is relied upon by Mr Warren as one of the defendant's own witnesses who agrees that access can be achieved by a concrete truck over the cycleway. It is said by Mr Warren that all of the plaintiff's witnesses indicate that the cycle way can support vehicles up to two tonnes (Messrs Lewis, Roebuck and Stewart) and that Mr Stewart additionally says that it can support the occasional use of a ten tonne truck driving over the cycle way (which seems to accord with Mr Lammers' view). There is also a possibility of access to the cycleway via Bong Bong Common, off Moss Vale Road. Thus it is said by Mr Warren that if the Council wishes to repair the cycleway without damaging its concrete it can use a smaller truck rather than a large concrete truck (which has been the case in the past at least for aspects of the construction).

1. Further, Mr Warren submits that if the Council is unable to use an easement to access any area other than Lot 19, then it will be necessary for the Council to obtain access elsewhere along the cycleway in any event and so there is no need at all for this particular easement. Insofar as there is such alternative access then it is said that the Council will suffer no substantial injury from the extinguishment of the easement.

1. I accept that the benefit to the Council of the easement (and hence the injury it may suffer by its extinguishment) is diminished if, as I consider to be the case, it is not permissible for the Council to have access by way of the easement for the purpose of access to other lots. However, what I cannot draw from that is that there will be no injury to the Council if access to Lot 19 is no longer possible through the easement. Even if that cost is simply that it incurs additional expense in utilising 2 tonne rather than 10 tonne trucks, or in carrying out works to remove vegetation from other access points, that is a real and substantive detriment.

1. Therefore I consider that the additional cost imposition likely to fall on the Council by reference to the extinguishment of the easement (even as so construed by me) is an injury of real and present substance for the purposes of the applicable test on this ground.

(v) Discretionary matters

1. As to the exercise of the discretion, relevant matters to take into account include the history of the property, the conduct of the owners of both the dominant and servient tenements, the acts of a prior registered proprietor and the state of the register ( Rosedale at [69]); and no one factor is decisive ( Pieper at [340]).

1. At [70] in Rosedale , Slattery J noted that the question as to who nears the burden of showing that the discretion ought be exercised once jurisdiction is established depends upon the circumstances, referring to what was said by Hutley JA in Pieper at [340]:

the burden may not always be on one side or the other. Where the acts of abandonment relied on are those of the dominant owner the burden of showing the order should not be made could reasonably be laid on him. Whereas here, the acts relied on are of a predecessor in title of the applicant, of which the respondent had no notice, the burden could well be thrown on the applicant.

1. In Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743, Brereton J at [29].noted the caution that the Court will exercise in acceding to an application for the extinguishment or modification of an easement, which is a proprietary right (as did Hamilton J in Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332 at [20] ).

1. Mr Warren submits that that there would be no reason why the Court, in the exercise of its discretion, if satisfied that a ground had been made out, would not exercise its discretion in favour of Dr Effeney.

1. While the question of discretion does not strictly arise given the findings I have made as to the grounds on which the extinguishment has been sought, I have some difficulty with the proposition that, simply because there may be an available alternative means of access, the Council should be deprived of its proprietary right (particularly where use of the alternative access may be more expensive or less convenient to it).

1. As matters to be taken into account in the exercise of the discretion, Mr de Buse points to the fact that Dr Effeney only purchased the property in 2009 and thus became as a result a person interested only a year before he made this application (although that does not seem to me to be a relevant factor where what is to be tested is use of the easement by the owner of the dominant tenement) and that the Council only became entitled to the benefit of the easement on registration of its interest in the newly created Lot 19 in 1995 (i.e. 15 years prior to the application). He points out that if it is the Council's acts or omission which must give rise to the conclusion that it has abandoned the easement then it has, in terms of non user, been a relatively short time and far less than that raised for consideration by s 89(1A). Again, that seems to me not to be strictly to the point - it is the whole of the period that needs to be considered (and the fact that the Council itself may not have used the easement for only 15 years does not seem to me to assist it).

1. I have indicated already that I consider the most logical solution would be to relocate the easement along the lines of the arrangement now apparently reached with Millar Investments, to follow the northern boundary line of the property. However, I accept that the statutory power to modify an easement does not extend to moving it to a new route on the servient tenement ( Markos at [117]; Tujilo at [52]).

1. Mr Warren notes that there is an unresolved issue as to whether a court can move an easement to another area on the servient tenement if undertakings or other enforceable obligations were given to the court, noting that in Loclot Pty Limited v Pullen [2003] 56 NSWLR 592 Gzell, J. concluded at [18] that it was an "over generous" interpretation of s 89 to suggest that the power extends to the imposition of conditions upon a modification or extinguishment but that in Tamlane Pty Limited v Moorebank Recyclers Pty. Limited [2008] NSWSC 1341 Young J (as his Honour then was) did not share that view and said at [83] that he could see no problem in the court deciding in its discretion "only to extinguish an easement if undertakings or the like were given to the court."

1. While there may well be a basis on which the court could take into account undertakings proffered in relation to alternative easement locations as a factor in deciding to exercise a discretion to extinguish an easement on undertakings (so as to facilitate the relocation of the easement) - either because, for the purposes of s 89(1)(a) the decision to move the easement to another site on the servient tenement, and undertakings having been given, this would then constitute a "circumstance of the case which the court may deem material" and hence, if the easement was to be moved, the existing easement would be deemed obsolete or , for the purposes of s 89 (1)( c ) this might enable the conclusion that the extinguishment of the existing easement would not substantially injure the person entitled to the easement if a new easement is to be created pursuant to certain undertakings given by the owner of the servient tenement.

1. However, this seems to me to be a moot point where no undertakings have been proffered and I do not consider that it is consistent with the statutory limitations on the Court's power under s 89 to impose as a condition of the grant of relief a requirement that is necessary in order to satisfy the gateways in the first place (to use the terminology in Castagna ).

Conclusion

1. The right of way initially granted was in favour of both Lot 16 and Lot 15. I accept that it must have contemplated that the owner of Lot 16 would be permitted to pass across Lot 15 in order to obtain access to Lot 16 (since otherwise the grant in favour of Lot 16 would be meaningless). However, there seems no reason to construe the easement as permitting the owner of Lot 15 to pass across to another lot (Lot 16 or otherwise) if that other lot came to be held in separate hands. I do not accept that the easement as properly construed permits the owner of the dominant tenement to pass across its tenement to have access to other land. Even if that be wrong, there could be no basis to suggest that because the easement should be construed as permitting passage across Lot 19 to the land that was formerly Lot 16, it should similarly be construed as permitting access across to Lot 13.

1. I accept the evidence of Mrs Woolridge and Mr Bone that both the gate at the north-western corner and the white gate on the western boundary were at the end of the laneways. This is consistent with the markings observable on the aerial photographs and by the holes left by the removed fencing from the laneways. The white gate clearly gives access only to Lot 13; the north western corner gate, although at roughly the intersection between Lots 13 and 19, appears mainly to open onto Lot 13 as well. I also accept the evidence that, once in the northern paddocks themselves there was no access to the cycleway (it being necessary to pass through the horse laneways for that purpose). That is consistent with the manner in which Mr Genner and Mr Simpson gained access to Lot 13 for the purpose of the earthworks being carried out by Genner Constructions in relation to the project. Further, I accept Mr Bone's evidence as to the placement of concrete slabs in the east/west laneway blocking access to the white gate in about 1995. What became of those slabs is a mystery.

1. There is, however, uncertainty as to how access to the construction site was in fact obtained by the Council itself and there is every possibility that they used the same access as Genner. What I am satisfied about is that some access over Lot 2 was obtained during the course of construction of the cycleway by at least some of the Council's contractors via the horse laneways. I also think it possible that the use involved some portion of the right of way at the Songline Place dirt track end.

1. I do not accept that the easement has been intentionally abandoned, having regard to the test of abandonment at common law. If, as I am prepared for present purposes to accept, the deeming provision can be invoked where there has been a 20 year period of non-use prior to the applicant moving on an application for relief under s 89 (even though as at the time the proceeding was commenced the easement had not been in existence for a 20 year period), there remains a doubt in my mind as to whether a portion of the right of way might have been used during the construction of the cycleway at the Songline Place end. That doubt precludes a finding as to deemed abandonment.

1. In any event, the fact that use of the easement was rendered physically difficult (thus making it necessary for a different route to be followed as a practical matter) is a factor that would lead me to exercise discretion against the extinguishment of the easement on the ground of deemed abandonment. In this regard, I have in mind the great caution that must be exercised when dealing with applications for the extinguishment of a proprietary right.

1. As to the usefulness of the easement, the fact that it does not permit access across to other lots does not mean that it is of no use to the Council (or that its extinguishment would be of no substantial injury to it) given that there is a portion of the cycleway within Lot 19 that may in future need repair or maintenance for the purposes of which the Council may wish to use the easement.

1. As to the question of substantial injury if the easement were to be extinguished, it is conceded that the suggested alternative access is over land that is covered with rough vegetation and bush - therefore, for the Council to develop it for the purpose of access there would no doubt be expense - and the evidence is that if alternative access would be at a restricted weight bearing load then there will be increased cost to the Council in the event that repair/maintenance of the concrete becomes necessary.

1. I was invited to consider relief by way of extinguishment subject to conditions that would impose on the parties an alternative easement arrangement. I accept that if the parties were now to agree that the easement benefiting Lot 19 should be located elsewhere on Lot 2 then it would be appropriate to extinguish existing easement because it could then properly be regarded as obsolete. However, absent the parties' consent in that regard, the caution that must be exercised when considering an interference with property rights leads me to conclude that I should not attempt to impose a solution on the parties by a novel use of the s 89 power.

1. Therefore, I find for the third defendant and dismiss the application for extinguishment or modification of the easement insofar as it benefits Lot 19. (As far as the second defendant is concerned I am satisfied that the easement is now obsolete the respective lots no longer being adjacent and there being no easement burdening Lot 19 in relation to access over the Council's land for the benefit of Lot 20. Therefore I consider that it would be appropriate to extinguish the easement insofar as it benefits Lot 20. In relation to the first defendant, no such order seems to be necessary having regard to the agreement reached between Dr Effeney and Millar Investments but based on that agreement, it would be appropriate if requested to extinguish that easement as well.)

Orders

1. Subject to any submissions as to the form of the orders, I propose to order as follows

1. I dismiss the application by the plaintiff for extinguishment of the easement on the title to its land which burdens the land owned by the third defendant.

2. Pursuant to s 89(1)(a) of the Conveyancing Act 1919 (NSW), I order that the easement on the title of the plaintiff's land insofar as it burdens the land owned by the second defendant be extinguished.

1. I will hear Counsel as to costs.

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Decision last updated: 08 July 2011