Kyren Pty Ltd v Cinema Place Pty Ltd - [2006] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KYREN PTY LTD v CINEMA PLACE PTY LTD
Judgment of The Full Court
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
11 April 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
Appeal against orders made by Chief Justice dealing with nature and extent of rights of respondent under registered right of way – application by appellant to adduce fresh evidence – construction of terms of grant – relevant principles – words of Schedule 5 to Real Property Act 1886 considered – held, no reason to disturb findings of fact made by Chief Justice – application to adduce fresh evidence refused – appeal dismissed.
Real Property Act 1886 ss 57, 89; Supreme Court Rules 1987 r 95.15(b), referred to.
Yip v Frolich (2003) 86 SASR 162; Yip v Frolich (2004) 89 SASR 467; Gallagher v Rainbow (1994) 179 CLR 624; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; Cannon v Villars (1878) 8 Ch D 415; Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362; British Railways Board v Glass [1965] Ch 538; Gibbs v Messer [1891] AC 248; Bond & Leitch v Delfab Investments Pty Ltd (1980) 26 SASR 462; Harris v Flower (1904) 74 LJ Ch 127; Bracewell v Appleby [1975] Ch 408; Jelbert v Davis [1968] 1 WLR 589; Todrick v Western National Omnibus Company, Ltd [1934] Ch 190; [1934] 1 Ch 561; White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113; Robinson v Bailey [1948] 2 All ER 791; Ventura v Sustek (1976) 14 SASR 395; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Chapman v Chapman [1946] SASR 217; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280; Shean Pty Ltd v Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 (2001) 25 WAR 65; Barry v Fenton [1952] NZLR 990; United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586; Newcomen v Coulson (1877) 5 Ch D 133; Williams v James (1867) LR 2 CP 577, considered.

KYREN PTY LTD v CINEMA PLACE PTY LTD
[2006] SASC 93

BESANKO J: This is an appeal from orders made by the Chief Justice after a trial in this Court. Generally speaking, the issue before the Chief Justice was the nature and extent of the rights of the respondent under a right of way conferred on its predecessors in title in 1921. The right of way was expressed to be “a free and unrestricted right-of-way” and by virtue of s 89 of the Real Property Act 1886 those words were deemed to imply the words in Schedule 5 of the Act, as follows:
A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.
The relevant orders made by the Chief Justice were as follows:
THE COURT ORDERS AND DECLARES that:
1.The plaintiff as registered proprietor of an estate in fee simple in the land comprised and described in Certificates of Title Register Book Volume 5706 Folios 811 and 812 (the “dominant land”) together with its servants, agents and contractors is entitled to exercise a free and unrestricted right of way over the land comprised and described in Certificate of Title Register Book Volume 5884 Folio 361 (the “servient land”).
2.The plaintiff together with its servants, agents and contractors is entitled to exercise the right of way referred to in Order 1 herein in connection with the erection of the building presently under construction on the dominant land and in connection with the occupation of the retail premises within that building and abutting the servient land.
3.The plaintiff together with its servants, agents and contractors is entitled in exercising the right of way referred to in Orders 1 and 2 herein to bring motor vehicles onto the servient land and to cause such motor vehicles to stand on the servient land for the purpose of loading and unloading those vehicles.
4.The defendant has infringed and obstructed the exercise of the right of way referred to in Order 1 herein by refusing access to the servient land to the plaintiff and its servants, agents and contractors.
5.The question of the plaintiff’s entitlement to damages and the assessment of any such damages be adjourned.
6.The defendant shall pay to the plaintiff its costs of the action but limited to the issues dealt with at trial.
The appellant challenges these orders other than the first order.
The facts are set out in the reasons for judgment of Vanstone J, and I gratefully adopt her Honour’s statement of the facts.
In the court below, the parties were not in dispute as to the applicable principles of law. The Chief Justice said that those principles were conveniently collected in Bradbrook and Neave, Easements and Restrictive Covenants in Australia (2^nd ed, 2000), [6.6]-[6.12]. The Chief Justice said that the process of construing the right of way involved consideration of the terms in which the right of way was granted, the construction of those terms being considered in the light of the circumstances as at the time of the grant. The Chief Justice said:
The terms of the grant are central to the inquiry, but the circumstances at the time of the grant are relevant when one considers the meaning of these terms.
On appeal, the appellant did not challenge that approach. However, the respondent did seek to challenge that approach. It sought to argue that the orders of the Chief Justice could be upheld simply by reference to the terms of the grant, and, those terms being clear and unambiguous, it was not only not necessary, but not permissible to take into account the circumstances at the time of the grant. The legal proposition advanced by the respondent was that reference to the circumstances at the time of the grant was only permissible if the terms of the grant were in some way ambiguous. It said that in this case the terms of the grant were clear and unambiguous because the right was a right “to pass and repass for all purposes” and the surrounding circumstances in 1921 should not be used to limit or qualify that right. It referred to my decision at first instance in Yip v Frolich (2003) 86 SASR 162 at 171-173 [33]-[44].
The legal proposition advanced by the respondent does find support in my decision in Yip v Frolich (supra). More importantly, that case went on appeal to this Court and there is support for the proposition in the decision of the Full Court: Yip v Frolich (2004) 89 SASR 467 at 478-482 [43]-[63] per Bleby J (with whom Perry and Gray JJ agreed).
On the other hand, there is a large body of authority which suggests that, in construing the terms of a grant of an easement, the court will, as a matter of course, consider the locus in quo over which the way is granted, the nature of the terminus ad quem and the purpose for which the way is to be used. It is sufficient to refer to the discussion of McHugh J in Gallagher v Rainbow (1994) 179 CLR 624 at 640-641, and the cases referred to in Bradbrook and Neave (supra).
In my opinion, the difference between the two approaches is more apparent than real. It is unlikely to make any difference in other than perhaps a small number of cases. It is difficult to think that there will be many cases where the words used in the grant are so clear that a court will ignore the physical nature of the site of the right of way and the use to which the dominant tenement was put at the date of the grant. As has been said, there are few words in the English language which are not capable of more than one meaning: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (1992) 27 NSWLR 326 at 358-359. However, if the words of the grant are perfectly clear, then effect must be given to the words.
In my opinion, whichever approach is adopted in this case, the appeal must be dismissed, and in those circumstances, and bearing in mind the approach of the parties in the court below, I think it appropriate to proceed by reference to the approach adopted by the Chief Justice.
The information before the Chief Justice as to the surrounding circumstances in 1921 was limited. The judge drew certain inferences from that information and he reached certain conclusions based on his findings. The appellant’s challenges to the judge’s findings and his conclusions based on those findings are dealt with in the reasons for judgment of Vanstone J and there is nothing I can usefully add to what her Honour has said. I also agree with her Honour’s reasons for rejecting the appellant’s application to call what it said was fresh evidence. I do not think the evidence bears upon the orders made by the Chief Justice and whether the use of mobile cranes falls within the scope of the right of way can, like the concrete trucks, be determined (insofar as it needs to be) on the hearing in relation to damages.
In my opinion, the appeal must be dismissed. The appropriate orders are as follows:
1The application by the appellant by notice for specific directions dated 6 September 2005 is dismissed.
2The appeal is dismissed.
I would hear the parties as to costs.
VANSTONE J:
Introduction
The appellant was the owner of a private road in the eastern end of the city of Adelaide. The respondent had a right of way over the road, attaching to two titles, which were part of its larger holding. It constructed a ten storey building occupying most of its five allotments. A dispute arose over the scope of the respondent’s rights to bring large vehicles into the servient tenement during the construction phase. That culminated in the appellant blocking the respondent’s access altogether. After a trial, mainly on the papers, the Chief Justice made declarations in general terms which (among other things) upheld the respondent’s right to use the easement in connection with the construction work and, later, to use it in connection with the retail premises to be located on the dominant tenements. The appellant complains there was not a sufficient evidentiary basis for some findings leading to the declarations. It says the declarations wrongly failed to restrict the respondent’s rights in respect of use of the easement. In support of that contention it wishes to present fresh evidence as to the respondent’s (then) proposed use of the servient tenement and suggests that this evidence, if available to it at trial, would have given a significantly different flavour to the issues to be determined.
Since the trial, the building has been completed. The servient land has been compulsorily acquired by the Adelaide City Council. It is now a public road. The questions at issue are now relevant only to any claims for damages that either party might make, arising from events during the building work.
Background
The servient tenement is nearly all of that part of Vaughan Place running in a northerly direction and at a right angle to Rundle Street. The dominant tenements together form a rectangular parcel of land of about 1,000 square metres. They abut Vaughan Place on its western side, but do not abut Rundle Street. If not for the rights of way, they would be landlocked. The other three allotments making up the respondent’s parcel have access to roads to their north and west. The great part of the construction was managed from these frontages. However, at the time of the trial, the respondent planned to utilise its rights of way for vans and medium sized rigid body trucks unloading building materials, for four or five concrete trucks per day over two days and for access to the eastern facia of the new building by vehicles with moveable booms. Plainly, such vehicles would stand for a time in Vaughan Place, to some extent restricting other users.
The terms of the grant of each right of way are endorsed on each 1921 Memorandum of Transfer. Once registered, such an instrument is deemed to be part of the Register Book: s 57 Real Property Act 1886. It provided: “…a free and unrestricted right of way over … the servient tenement”. Section 89 Real Property Act provides:
The words “a free and unrestricted right-of-way” in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out in length in such instrument.
Schedule 5 to the Act provides:
A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.
Analysis
The trial judge approached the matter on the basis that it was necessary, in construing the terms of the grant, to examine the circumstances prevailing at the time it was made. Upon the appeal, however, the respondent argued that it was only necessary to resort to matters of history where the words were ambiguous. It was suggested that the words of Schedule 5 could not be clearer or more comprehensive.
The respondent relied on Yip v Frolich (2003) 86 SASR 162. There, Besanko J was called on to determine a slightly different question, namely whether the terms of an easement reserved in the 1933 memorandum of transfer of the property conferred a right of way for all purposes, or merely for purposes relating to laying and repairing water pipes. He determined that it was appropriate to consider the terms of the easement standing alone, and to go on to consider the circumstances surrounding its grant only in case of ambiguity. Finding that he needed to resort to the surrounding circumstances, Besanko J determined that the right of way was for purposes relating to drainage only.
The case went on appeal. Bleby J, with whom Perry and Gray JJ agreed, held that effect must be given to the clear and unambiguous words of a reservation. Contemporaneous factual circumstances were to be consulted where the words were ambiguous: Yip v Frolich (2004) 89 SASR 467, [18-19], [49-56].
It is suggested by the appellant that this approach is contrary to established principles governing the construction of easements and deeds of grant generally. Those principles are said to require that the terms of the grant be construed in light of the circumstances existing at the time it was made; that the meaning be ascertained by reference to what would be conveyed by the words of the instrument to a reasonable person having all the background knowledge available to the parties at the time of the transaction: Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912. Thus the Court is said to be required to consider the terms of an easement having regard to the nature of the land over which the way was granted, the nature of the finishing point and the purpose for which the way was to be used: Cannon v Villars (1878) 8 Ch D 415, at 421.
The principle attributed to Cannon v Villars was established in the context of an implied right of way arising under an agreement to grant a lease of premises for the purpose of a business. Many of the subsequent cases were concerned with the rights acquired by prescription or long user, rather than by express grant. In those circumstances it was often essential to look at the circumstances existing at the time of the grant in order to discern the parties’ intention. (See, for example, Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362; British Railways Board v Glass [1965] Ch 538.)
It seems plain that in cases where the grant is an express one and contains qualifying words as to purpose which indicate no restriction, then absent any physical limitation imposed by the site, there could be no warrant to read down the words of the grant by reference to the purposes of the original grantee. The expression of intention would prevail. However, the difference in the two approaches is fairly subtle. I do not consider that the two approaches are likely to give markedly different results in practice.
The Yip v Frolich approach has the advantage of giving appropriate deference to the fundamental aim of the Torrens system: that the contents of the Register are to be conclusive as to title (except in cases of fraud); that those dealing with registered proprietors should not be required to go behind the Register: Gibbs v Messer [1891] AC 248 and see the discussion by Bleby J in Yip v Frolich at 477-480. As Butt observes in his text, Land Law (5^thed, Law Book Company, 2006) at page 468: “[t]he need to have regard to the circumstances existing at the time of the grant may be somewhat problematical in the case of Torrens Title land.” It seems likely that the purpose underlying the inclusion of Schedule 5 to the Real Property Act 1886 was to facilitate the attainment of the same goal.
It follows that the very terms of the entitlement: “…to pass and repass for all purposes…” dictate that the easement may be used for the purpose of delivering building materials to be used for construction of new premises on the dominant tenements. Applying the traditional test would appear to yield the same result. Indeed, in Bond & Leitch v Delfab Investments Pty Ltd (1980) 26 SASR 462 Mitchell J, applying Cannon v Villars, held that passage for a similar purpose fell within the grant of a right of way elsewhere in Adelaide, expressed in unqualified terms, where the locale was a residential one and where the land under consideration was of a more restricted nature than is Vaughan Place.
For the same reasons, the change of use of the dominant tenements after rebuilding will not, of itself, have any impact on the grantee’s rights.
Cases sometimes cited to support a proposition that where there is an alteration to the use of the dominant tenement the grantee has no right to use the easement for any new and additional purpose, do not always sustain it. So in Harris v Flower (1904) 74 LJ Ch 127 and Bracewell v Appleby [1975] Ch 408, what was in truth prohibited was use of the easement for purposes associated with land adjacent to the dominant tenement. In Jelbert v Davis [1968] 1 WLR 589 – which was really a case of excessive user – what was prohibited was use of the easement to an extent inconsistent with the rights of other users having the same right. In Todrick v Western National Omnibus Company, Ltd [1934] 1 Ch 561, 576 although the use of the dominant tenement had changed, the import of the decision restricting the use of the right of way was that the dimensions of its gateway effectively precluded passage of the heavy motor vehicles which the grantee now wished to take through it. (Compare the summary of McHugh J, dissenting, in Gallagher v Rainbow & Ors (1994) 179 CLR 624, 640-641.)
There are many other cases where, though the use of the dominant tenement had changed, the court would not on that account have precluded ongoing use of the easement: White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113; Robinson v Bailey [1948] 2 All ER 791; Jelbert v Davis per Lord Denning MR at 594. Such an analysis merely reflects the nature of an easement: that it is a right enjoyed by the grantee to carry out some limited activity – short of possession – on the land of the grantor: Butt, Land Law at 419. It is the nature of the use of the easement which is critical, not that of the dominant tenement. For that reason, the ground of appeal alleging that “the proposed use of the dominant tenements for the purpose of construction would fall outside the scope of the right of way” is misconceived.

A similarly liberal conclusion flows, in my view, from the wording of the grant in respect of the type of vehicles which the respondent is entitled to take over the way. The grant refers to passage, not only by the proprietor of the dominant tenement, but by his tenants, servants, agents, workmen and visitors. It refers to that passage being “either with or without horses or other animals, cart or other carriages”. The specification of a variety of users and modes of transport suggests that the nature of permissible traffic should not be confined without pressing reason, which again might be found in the physical characteristics of the way. Consequently, I would uphold the judge’s decision that the right extended to bringing of concrete trucks and other large vehicles onto the easement, and I would do so without reference to the purposes for which the rights were originally utilised.
It may be, however, that there is scope for the intrusion of matters of history in relation to questions of excessive user. Apart from a flavour to be implied from the range of purposes, users and vehicles expressly accommodated by the wording, the grant is silent as to the permissible level of use. It might be strongly arguable that if use for rebuilding is permitted, as I have found, then it follows that the extraordinary use over a limited period by vehicles associated with construction is also permitted. I shall return to that issue in the context of the appellant’s application to tender fresh evidence.
At common law an easement would not be construed so as to encompass a level of use beyond that which was in contemplation at the time of the grant: Jelbert v Davis per Lord Denning MR at 595: “…the true proposition is that no one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant.” There it was held that where the previous use had been agricultural and where (as seen) the right was one held in common with other persons, use of the way for purposes associated with the operation of a caravan and camping park for 200 would be far beyond anything contemplated at the time of the grant.
This is very much the way in which the trial judge approached definition of the entitlements under the easement. Although he generally followed the Cannon v Villars approach, and therefore considered the terms of the grant in the light of contemporaneous circumstances, rather than the stricter Yip v Frolich approach, his findings repeatedly refer back to the terms of the grant.
Whilst the appellant has no quarrel with the approach of the judge to the interpretation of the grant, it submits that his findings as to what was contemplated by the parties were not justified by the evidentiary material before him. On the approach I have taken the relevance of the historical material is very limited, but I deal with it for such relevance as it may have to further litigation.
In 1921 the dominant tenements and Vaughan Place were owned by the East End Market Company Ltd. To the eastern side of Vaughan Place was located the East End Producers’ Market, being a large wholesale outlet for fresh produce. In the same year, that company transferred the dominant tenements to Mr Turner and Mr Dunks, who were pastry cooks. As mentioned, the transfer instruments granted the rights of way under consideration.
Material before the judge going to the nature and circumstances of the dominant and servient tenements in 1921 included a “Conservation Plan” relating to what it described as the “East End Markets Precinct” and providing an history of the precinct and an inventory of buildings. There was also the Sands & McDougall South Australian Directory for 1922. As well, there was material of both a descriptive and pictorial kind relating to the area at later periods.
On the basis of this and other material the judge made a number of findings. They included that in and around the market were a number of buildings and businesses, many of which were linked to the market activity. There were also a number of hotels. The market was a busy one and during its hours of operation generated a good deal of activity in the locality. He found that on market days Vaughan Place was used for selling fruit and vegetables, either from vehicles parked there or from temporary stalls. The judge found that the mouth of Vaughan Place was flanked by the Exeter Hotel on one side and a bank on the other. On the eastern, or market side, of Vaughan Place itself there were buildings connected with the market and on the western side were a number of cottages. On the dominant tenements were two such cottages, constructed of brick and stone, originally as dwellings but used in 1921 as a cake and pastry bakehouse. Other business premises in Vaughan Place included a fruiterer, hawker, producers’ cold storage and electrical engineers. The judge found that the predominant use of the buildings in Vaughan Place was commercial.
Using these findings, the judge went on to infer that in 1921 Vaughan Place was used “extensively by vehicles and people associated with the East End Market” and that it was used by “substantial vehicles (for their time) to bring produce to and from the market”. He found that Vaughan Place “was used as if it was a public road” and had that appearance. The appellant submits that these inferences were not available upon the limited material before the Court.
I consider that the complaints are not made out. Necessarily, inferences such as those drawn will be of a general and qualitative character. But the nature of the market business and the other enterprises found to have been operating in and about Vaughan Place would always have involved handling of bulky and heavy supplies and, as a matter of common sense, the most substantial vehicles available would have been utilised. The finding that Vaughan Place would have looked much like a public road seems to me to be unexceptional, having regard to its location in a commercial precinct in the city, with a number of businesses opening onto it and using it as a delivery point. In my view the findings made were well open on the evidence.
A further observation should be made. It is not clear to me that any of these findings were integral to any of the orders made by the judge. The declarations confirmed the respondents’ right to use the right of way, including for the purpose of delivery of building materials to the dominant land and afterwards for retail premises to be established on that land. The entitlement was declared to extend to allowing vehicles to stand on Vaughan Place for loading and unloading. But the orders did not define the types of vehicles which could use the way, or the extent of interference with other users which was allowable. Therefore even if the Court considered that the findings lacked a proper basis, that would not, of itself, be reason to allow the appeal.
The appellant’s reason for raising them seems to relate to its complaint of the failure to declare that concrete trucks were not entitled to use Vaughan Place and the finding – in the judge’s reasons – that vehicles with moveable booms were entitled to use it. That in turn relates to the matter of fresh evidence, which I now take up.
By notice for specific directions, the appellant applied to tender fresh evidence, being parts of an affidavit emanating from the respondent, to show that in addition to concrete trucks and vehicles with booms, the respondent planned to bring onto the easement one or more mobile cranes to access the eastern facia of the building. The appellant contended that the new evidence undermined assumptions upon which the trial judge acted in deciding the question of excessive user.
Rule 95.15(b) of the Supreme Court Rules provides that when hearing an appeal, the Full Court may, in its discretion, receive further evidence upon any question of fact. The principles governing the exercise of this discretion were set out in Ventura v Sustek (1976) 14 SASR 395.It must be shown that the evidence could not have been obtained for use at trial through reasonable diligence. The evidence must also be credible and be such that it would have had an important influence upon the trial. Where the fresh evidence ought (in the usual course) to have been subject to discovery by the applicant’s opponent, as alleged here, the application will be fortified: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.
Inasmuch as the new material tends to contradict earlier affidavit material from the same witness – implicitly rather than explicitly – I would have been disposed to consider it. However, in my view admitting it would not have any impact on any of the judge’s orders.
As seen, the only potential live issue between the parties now is that of damages for any infringements of the rights of either party during the construction.
The appellant argues that the court should rule, in this appeal, on the question of whether the use of cranes and concrete trucks fell within the scope of the right of way. The appellant suggests that a ruling would clarify the basis for any subsequent action for damages and that such a ruling should encompass the fresh evidence.
The trial judge expressly refrained from ruling upon the precise limits of the use of the right of way, noting that no evidence had been led as to the nature and extent of the other easements over Vaughan Place. He considered that such limits ought to be determined in the context of specific complaints, with evidence of the relevant circumstances.
The orders and declarations made go no further than upholding the respondent’s right of way, and its entitlement to bring motor vehicles onto the land including allowing them to stand for the purpose of loading and unloading. The respondent properly conceded in this appeal that nothing in the orders would preclude a future challenge to the respondent’s entitlement to bring concrete trucks or cranes into Vaughan Place. The nature of an appeal is that it is directed specifically against the orders or judgment made at trial: Chapman v Chapman [1946] SASR 217; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280. It would be unusual for an appellate court to expand the issues beyond those determined at first instance, especially where the evidence led on the additional issues was incomplete. Without specific evidence the court could only attempt to define the respondent’s entitlements in an abstract manner. That is undesirable.
For these reasons I would decline to receive the further evidence.
The consequence of that decision is that the issue of concrete trucks and cranes remains at large. I would only make one further observation on the issue of excessive user. The right is to “pass and repass for all purposes”. There is no express right to stand. Rather, standing for the purposes of loading and unloading is a well established corollary of the expressed rights.
Although the judge’s reasons record his view that a “moving boom lift vehicle” (or cherry-picker) could be brought onto the right of way, and, presumably, could stand there whilst in use, it might be that such a use would test the limits of the respondent’s rights. That would depend on such questions as the extent to which the servient tenement was occupied by the vehicle and the duration, both in terms of continuous hours, and numbers of days of use. The judgment to be made is always what is reasonable.
The appellant further argued that the judge was wrong to accept that the right of way would only be used by the respondent to benefit the dominant tenements, and would not be used to bring materials onto the site to be used elsewhere in the construction. I do not understand the relevant principle to be a matter of dispute. The right enjoyed by the dominant tenements is one to bring vehicles onto the easement in connection only with those properties: Shean Pty Ltd v Owners of Corinne Court290 Stirling Street, Perth Strata Plan 12821 (2001) 25 WAR 65; Bracewell v Appleby. Before the judge, the respondent maintained that the access it sought via the easement was solely referable to the dominant tenements. That was supported by the affidavit material. There was no cross-examination on that assertion. In my view the judge was entitled to act on the basis that the respondent would only use the easement in accordance with the extent of its rights. There is no reason to disturb the judge’s findings to that effect. In my view the appellant has not made good any of its grounds of appeal.
Conclusion
Irrespective of whether account is taken of the circumstances prevailing at the time of the grant, there is no change in the result in this matter. It is not often that the subtle difference in the approaches taken in Cannon v Villars and Yip v Frolich would yield a different result. In any event, the conclusions drawn from the historical material were open to the judge. The fresh evidence sought to be introduced is not such as to have an impact on any of the orders made and it would not be appropriate for this court to widen the ambit of the issues determined or the orders made.
I would dismiss the Notice for Specific Directions dated 6 September 2000 and dismiss the appeal.
LAYTON J: This is an appeal against the decision of a single Judge of this Court concerning the exercise of a right of way over land in Adelaide’s East End. It concerns principles of construction on the terms of a right of way created by a Memorandum of Transfer in 1921.
The plaintiff in the action and respondent on appeal, Kyren Pty Ltd (“Kyren”) is the registered proprietor of five allotments, two of which abut Vaughan Place (“the dominant tenements”). Vaughan Place is a private road. Kyren sought and obtained orders enforcing its “free and unrestricted right of way” over part of Vaughan Place (“the servient land”). Kyren sought these orders enforcing the right of way for the purpose of constructing a ten-storey building (eight above ground). Kyren also sought these orders to allow motor vehicles onto the servient land, and for the purpose of the vehicles being loaded and unloaded in the course of the construction work.
The defendant in the action and the appellant on appeal, Cinema Place Pty Ltd (“Cinema”), was the proprietor of the servient land, and objected to the use made by Kyren of its right of way over that servient land. The action before the trial Judge arose after Cinema obstructed the right of way and refused access to motor vehicles passing over Vaughan Place in order to get access to Kyren’s building site. Cinema argued that the proposed use of the right of way by Kyren was excessive and was not within the scope of the right of way.
Since the decision of the trial Judge, the servient land has been compulsorily acquired by the Adelaide City Council and the appellant is no longer the registered proprietor.[1] The construction which gave rise to the dispute has now been completed.
[1] Transcript 8 September 2005, 7 line 10.
Orders appealed against
The hearing took place over three days in July and August 2004 and on 8 September 2004, the trial Judge handed down his reasons for decision. His Honour later made orders on 24 September 2004, which were subsequently amended on 26 July 2005, that read as follows:
1.The plaintiff as registered proprietor of an estate in fee simple in the land comprised and described in Certificates of Title Register Book Volume 5706 Folios 811 and 812 (the “dominant tenement”) together with its servants, agents and contractors is entitled to exercise a free and unrestricted right of way over the land comprised and described in Certificate of Title Register Book Volume 5884 Folio 361 (the “servient land”).
2.The plaintiff together with its servants, agents and contractors is entitled to exercise the right of way referred to in Order 1 herein in connection with the erection of the building presently under construction on the dominant land and in connection with the occupation of the retail premises within that building and abutting the servient land.
3.The plaintiff together with its servants, agents and contractors is entitled in exercising the right of way referred to in Orders 1 and 2 herein to bring motor vehicles onto the servient land and to cause such motor vehicles to stand on the servient land for the purpose of loading and unloading those vehicles.
4.The defendant has infringed and obstructed the exercise of the right of way referred to in Order 1 herein by refusing access to the servient land to the plaintiff and its servants, agents and contractors.
5.The question of the plaintiff’s entitlement to damages and the assessment of any such damages be adjourned.
6.The defendant shall pay to the plaintiff its costs of the action but limited to the issues dealt with at trial.
7.Liberty to apply.
Whilst there were some 12 grounds of appeal, they essentially fell under two main headings, namely a challenge as to the scope of the right of way and the intended use of the right of way by vehicles as found by the trial Judge.
Description of the subject land
The terms of the right of way created in 1921 are set out in a Memorandum of Transfer 768028 and state:
TOGETHER WITH a free and unrestricted right of way over that portion of the land colored brown in the said plan SUBJECT to such Rights of Way as may exist over that portion of land delineated and marked “Private Road” in the said plan.
The servient land over which this right of way applies is the north-south section of Vaughan Place, being the only portion over which Cinema is the registered proprietor. The north-south section of Vaughan Place runs from the northern side of Rundle Street then makes a right-angled turn to run in an east-west direction to Frome Street.
The parties referred to a coloured map both at the hearing before the trial Judge and on the appeal.
For the purposes of consistency between the description of the land in this appeal and in the judgment appealed from, it is easiest to set out the findings of fact which were made by the trial Judge as set out in [12] – [20] of the reasons for decision. These findings were not challenged on appeal.
The dominant tenements are two rectangular allotments. They adjoin each other. One of them forms the corner where Vaughan Place makes a right angle turn, and the other is immediately south of that allotment. Together they form a rectangular parcel about 38 metres (the frontage to Vaughan Place) by about 27 metres.
Two of Kyren’s allotments adjoin the dominant tenements on their western side. The fifth of Kyren’s allotments is on the western side of those two allotments, with a frontage to Frome Street. Two of the three allotments to which I have just referred have a frontage to the east-west section of Vaughan Place.
All five allotments together form a roughly rectangular piece of land bordered on the north by the east-west section of Vaughan Place (the frontage is about 74 metres long), on the west by Frome Street (the frontage is about 35 metres long), on the south by other land and on the east by Vaughan Place.
The north-south section of Vaughan Place is approximately eight metres wide and approximately 65 metres in length from Rundle Street to the point at which it makes a right-angled turn.
On the western side of Vaughan Place between Rundle Street and the dominant tenements, is the Exeter Hotel, the frontage of which is on Rundle Street.
On the eastern side of Vaughan Place there are two laneways or walkways running in an east-west direction. They provide access to land and premises lying between Vaughan Place and East Terrace. The eastern side of Vaughan Place is also bounded by buildings used for commercial purposes. On the eastern corner of Vaughan Place and Rundle Street is a building with a frontage to Rundle Street. Moving north along Vaughan Place are other commercial premises, a hotel (The Elephant & Wheelbarrow) being at the northern end of Vaughan Place.
A narrow walkway or footpath runs from the northern limit of Vaughan Place, where it makes a right angle turn, through to North Terrace.
The buildings facing onto Vaughan Place are no more than two or three storeys high.
The surface of Vaughan Place is paved with concrete pavers. It is paved from side to side, with a footpath only on the western side adjoining the Exeter Hotel. Three or four small trees are growing along the western side. They appear to have been planted for decorative purposes.
Preliminary issue – introduction of fresh evidence

The appellant sought leave pursuant to rule 95.15(b) of the Supreme Court Rules 1987 to adduce fresh evidence on the hearing of the appeal. The factual material sought to be adduced is set out in [3] - [17] and [20] of an affidavit of Mr Theodore Samaras, developer and principal of Kyren, sworn on 1 July 2005.
The affidavit of Mr Samaras is in response to an affidavit of Nicolas Christopoulos sworn on 19 May 2005. The affidavit of Mr Christopoulos annexes a site management plan (“SMP”) prepared by Kyren’s builder, Hansen Yuncken Pty Ltd, dated 22 November 2002, and includes a number of documents, including the tender lodged by the builder.
In his affidavit Mr Samaras states that the tender documents referred to in the SMP indicate that the builders intended to use “mobile craneage” and would supply two mobile cranes to the site, being an 80 tonne crane and a 25 tonne crane. Mr Samaras further deposes that Kyren or its associates did in fact supply these cranes. Mr Samaras said he believed that the tender was accepted on the basis of the use of the mobile cranes and that the nature of the construction required the use of mobile cranes because access over Cinema Place would be required from all four sides. He further states that the 80 tonne crane was used for the greater part of the construction and that the 25 tonne crane was always available on site to assist.
The appellant submitted on appeal that Kyren knew the information contained in the 1 July 2005 affidavit of Mr Samaras but did not disclose it to the trial Judge. The affidavit material that was before the trial Judge was contained in two affidavits of Mr Samaras sworn respectively on 30 April 2004 and 13 May 2004. The effect of both affidavits is set out in [51] - [54] of the judgment as follows:
It is not possible to be definitive about the type of motor vehicle that can be brought onto Vaughan Place in exercise of the right of way. Mr Samaras, a director of Kyren, has sworn affidavits in which he deposes to the use that Kyren wishes to make of Vaughan Place. They are exhibits P22 and P23. The proposed use will be to deliver building materials for use on the dominant tenements, covering materials such as “bricks, glass, aluminium, plasterboard, mechanical ductwork, fixtures and fittings, tiles, carpets, plumbing …”. He describes the vehicles as “small – medium rigid body trucks (up to 10m long)”. He says that some of the deliveries would be by “small vans”. I consider that a use of this kind is within the scope of the right of way. The use of vehicles of this size and for this sort of purpose was within the contemplation of the parties.
Mr Samaras also says that Kyren wishes to bring “concrete trucks” onto Vaughan Place in connection with the pouring of concrete. Having regard to the time that has passed, I am unsure whether such use is still proposed. Accordingly, at this stage I refrain from deciding whether the use of vehicles of this size is within the scope of the right of way.
Mr Samaras says that on some occasions Kyren will wish to bring onto the right of way “a moving boom lift vehicle” of a kind known as a “cherry picker”. This will allow workmen to work on the eastern façade of the building. I consider that use of this kind is within the scope of the right of way.
It is not possible for me to be definitive about the frequency of use, or the hours of use that is permitted by the right of way. Mr Samaras indicates that delivery vehicles would come to the site up to three or four times a day during the construction phase. Deliveries would take place from Monday to Friday, between about six am and three pm. I consider that the frequency and hours of use proposed are within the scope of the right of way.
The appellant contends that Kyren’s failure to disclose the information in Mr Samaras’ affidavit led the trial Judge to proceed on an incorrect assumption that the extent of the proposed use of the right of way was limited to lighter vehicles and to a shorter period of time. The appellant submits that pursuant to r 95.15(b), this Court should accept the affidavit material as fresh evidence, as it would have had an important influence on the result of the trial.
Counsel for the appellant contended that the fresh evidence was relevant in two ways. First, it was relevant to the question of whether or not the use of the right of way was within the bounds of the grant as construed by reference to the circumstances in existence in 1921. Secondly, if, as the appellant asserts, the use of the right of way was excessive, that the manner and extent to which cranes were used would be relevant to the question of damages, both in the context of disruption caused and whether the use of the servient land was in fact necessary at all.
The respondent Kyren opposed the application for leave to adduce fresh evidence. Counsel for the respondent submitted that the affidavit material was not relevant to any of the discrete issues agitated before the trial Judge. The matter before the trial Judge was limited to certain issues by reason of the fact that the building was by then half-built and the litigation instituted by Kyren was concerned with current and prospective needs, namely to deliver building materials and for finishing work. Indeed, the use of cranes in Vaughan Place was not a matter considered by the trial Judge and it was submitted that the material could not be used now to argue that the trial Judge should not have made the orders or to persuade this Court to qualify them.
It became apparent in the course of argument before this Court that the underlying purpose for the appellant seeking to introduce fresh evidence at this stage, when the construction of the building was completed and Cinema no longer owned the servient land, was essentially related to the yet undecided damages claim. The appellant sought to use the fresh evidence in relation to damages for a twofold use. First, to argue that the right of way sought to be asserted was not in fact required. Secondly, to assert that the cranes should not have been used by the defendant for the construction purposes.
In my view the issue of the alleged past use of cranes was not a matter which his Honour was called on to consider. Secondly, its use cannot now be used to suggest that the orders of the trial Judge should not have been made. Thirdly, as both counsel articulated, such material may potentially be relevant to the question of damages. As the question of damages remains a matter which the trial Judge can assess and determine in due course, it would be both premature and inappropriate for this Court to interfere in that process. I therefore consider that the application for use of fresh evidence should be refused.
The scope of the right of way
The first major issue between the parties on appeal was the extent to which the trial Judge should have had regard to the circumstances which existed in 1921 being the time of the grant of the right of way.
On the one hand, the appellant argues that the right of way is to be determined by reference to the language of the grant construed in the light of the circumstances at the time of the grant in 1921. It is argued that in applying this construction, the right of way did not contemplate the matters which the trial Judge found as set out in [35] and [42] of the reasons for decision.
On the other hand, the respondent’s primary argument was that the circumstances at the time of the grant of the right of way in 1921 were only relevant if there was ambiguity or doubt about the extent of the grant and that as the grant did not contain such ambiguity or doubt, it was not necessary to go to the circumstances existing at the time of the grant. This was not an argument which was addressed to the trial Judge. The respondent’s alternative argument was that if the circumstances at the time of the grant were to be taken into account, this did not restrict those circumstances to those which actually existed in 1921. The circumstances included future changes reasonably contemplated by the proprietor of the dominant tenement at the time of the grant in 1921.
On this appeal, neither party challenged the findings of fact made by the trial Judge as set out in [23] - [25], [33] - [34], [36] – [41] and a portion of [42] of the reasons for decision.
Those paragraphs are as follows:
In 1921 the dominant tenements and Vaughan Place were owned by the East End Market Company Ltd. In 1921 that company transferred the dominant tenements to Mr Turner and Mr Dunks, described as pastry cooks. The instrument of transfer granted to them “a free and unrestricted right of way” over Vaughan Place.
In 1921 the east-west extension of Vaughan Place to Frome Street did not exist.
The land transferred to Messrs Turner and Dunks is now owned by Kyren. Cinema now owns Vaughan Place.
…
By 1921 the East End Market Company Limited was conducting a substantial fruit and vegetable market on the land between Vaughan Place and East Terrace, and on the northern side of Rundle Street. In and around this market were a number of buildings and businesses, many of which were linked to the market activity. There were also a number of hotels. When it was operating, producers brought their produce to the market and sold the produce from within the market, and from surrounding streets, from carts or stalls. The market was a busy one, and when it was operating there was a good deal of traffic in the locality. The market provided the character of the precinct.
Most of the buildings in the precinct, and around Vaughan Place, were used for commercial purposes, although there were probably some residential premises still in use in 1921, in particular, residences above shops in Rundle Street.
…
I find also that when the market operated, Vaughan Place was used as a place for selling fruit and vegetables either from vehicles in Vaughan Place or from temporary stalls.
The Exeter Hotel was established on the western side of the junction with Rundle Street in about 1850. In 1921 it was a busy hotel, and remained one. It is still there. I find that Vaughan Place was used to make deliveries to the Exeter Hotel.
On the eastern corner of Rundle Street there was a substantial two storey building, which in 1921 was being used as a bank, and continued to be so used for many years thereafter.
I find that in Vaughan Place itself there were several “cottages” (single storey buildings originally constructed as dwellings) and, on the eastern side, some buildings connected with the East End Market. In 1921 there were two cottages erected on Kyren’s land, and they continued to be there for some time thereafter.
Exhibit D30 is an extract from “Sands and McDougall’s South Australian Directory” for 1922. This directory lists the names and occupations of the occupiers of premises. In relation to Vaughan Place five occupiers are identified, and the occupations given are cake and pastry bakehouse, fruiterer, hawker, Producers Cold Storage Ltd and electrical engineers. I find that while some of the buildings in Vaughan Place might have been used for residential purposes, the predominant use of the buildings was for commercial purposes, of the kind indicated by the above list.
Until 1965 or thereabouts, when the east-west section of Vaughan Place was created, the north-south section was the only means of access to a public road. I find that the occupiers of the premises in Vaughan Place used it as the means of access to Rundle Street, and used it in connection with their businesses. I have already referred to the fact that Vaughan Place was used by vendors associated with the East End Market. I find also that the occupiers of premises in Vaughan Place used it to bring goods to and from their premises, and on occasions would cause vehicles to stand in Vaughan Place while the vehicles were loaded or unloaded.
Accordingly, I find that in 1921 and thereafter Vaughan Place had the appearance of a public road off Rundle Street, and was much used by vehicles associated with the East End Market and with the premises facing onto Vaughan Place. I find that the grant of the right of way to Mr Turner and Mr Dunks was made in contemplation of them using the dominant tenements in connection with their bakehouse, and that the right of way was used for that purpose.
The dispute as to the facts found by the trial Judge in relation to the scope of the right of way is limited to the findings in [35] and a portion of [42].
Before dealing with these contentions as to fact, it is convenient to discuss the primary argument of the construction of the right of way, as submitted by the respondent; namely, that the need to consider conditions at the time in 1921 only arises where there is an ambiguity or doubt about the grant.
Circumstances at the time of grant only relevant if ambiguity
The respondent contended that Schedule 5 of the Real Property Act 1886 (the “RPA”) was expressed extremely broadly and enabled the right of way to be used for “all purposes” of the dominant tenement. The respondent submitted that there was no restriction expressed in that Schedule as being limited to the time of the grant. The argument continued that because there was no ambiguity in the expression of the grant, it was unnecessary to refer to the use of Vaughan Place in 1921 or the use made of the right of way by the dominant tenement at the time when the grant was made.
As previously indicated, this contention was not put before the trial Judge and is therefore not discussed in his Honour’s judgment.
This interpretation put forward by the respondent counsel is very robust and in my view runs contrary to the authorities. The authorities strongly indicate that when considering the scope of the right of way, one looks at the wording in the context of its use at the time of the grant. This is made clear by McHugh J in Gallagher v Rainbow[2], when he stated:
At common law the meaning of an easement conferred by a deed of grant is determined by reference to the language of the grant construed in the light of the circumstances.
[2] (1994) 179 CLR 624, 639-641.
Numerous cases were then cited in support of this proposition including Newcomen v Coulson[3].
[3] (1877) 5 Ch D 133, 141.
Justice McHugh then went on to say:
In Waterpark v Fennell Lord Wensleydale said:
“The construction of a deed is always for the Court; but, in order to apply its provisions, evidence is in every case admissible of all material facts existing at the time that the execution of the deed, so as to place the Court in the situation of the grantor.”
The same proposition is also supported by the authorities discussed and analysed in the text[4] referred to by the trial Judge at [27] and [28].
[4] Bradbook and Neave, Easements and Restrictive Covenants in Australia (2^nd ed Butterworths 2000) [6.6] – [6.12].
A similar approach to that argued by the respondent, has been adopted in a New Zealand case of Barry v Fenton[5] in which North J stated:
The scope of the right-of-way must, it seems to me, be determined exclusively on the language used, unless the words are susceptible of more than one meaning.[6]
[5] [1952] NZLR 990.
[6] Barry v Fenton [1952] NZLR 990, 991.
In the text of Bradbrook and Neave, the writers analyse the approach as contended by the respondent to the construction of the scope of a right of way. This method of construction is then discussed and the writers reach the conclusion that there are no modern authorities which appear to support that construction. The writers did indicate however that there were many affirmations of the alternative construction, namely that when construing the words of the grant, the court is entitled to take into consideration the circumstances existing at the date when the grant was made.
The respondent also cited a recent authority in South Australia in support of the proposition. The case of Yip v Frolich[7] concerned the interpretation of an easement appearing in a certificate of title which included the terms:
[A] full free and unrestricted right and liberty of entry egress and regress from time to time and at all times hereafter for…the registered proprietors for the time being of the balance of the land … their servants and workmen … and also full free and unrestricted right and liberty for the said persons from time to time and at all times hereafter to break the surface of dig open up and use the said lands is marked Easement for the purpose of laying down, fixing, taking up, repairing, relaying or renewing pipes therein and of using and maintaining such pipes.[8]
[7] (2003) 86 SASR 162.
[8] Yip v Frolich (2003) 86 SASR 162, 165.
The issue in the case was whether the easement conferred a right of way. The plaintiff argued that it did confer a right of way and included a right to lay pipes, namely a drainage easement. The defendants disputed that a right of way was conferred by the terms of the grant and further argued that all rights under the easement had been abandoned.
It was therefore a very specific dispute about whether a right of way existed and an interpretation of its wording in the circumstances. In Yip, Besanko J applied the usual principles of the construction of a contract to the terms of the easement and concluded:
In my opinion the principle which I must apply is that I must give effect to the terms of the easement irrespective of the surrounding circumstances if those terms are clear. If there is a doubt or ambiguity as to the meaning of the terms of the easement, then I may have regard to surrounding circumstances. I turn to consider the terms of the easement.[9]
[9] (2003) 86 SASR 162, 172 [37].
His Honour found that the words of the easement were expressed clearly and that together with the accompanying diagrams indicated that a right of way was not created. It was a very specific grant and it also occurred in relatively contemporary circumstances. It can be seen that the factual circumstances were very different from this case. The consideration here is what is the scope of the right of way created in the memorandum of transfer in 1921 which uses such broad terms as “a free and unrestricted right of way”. That phrase is in turn defined within s 89 of the RPA in accordance with Schedule 5, which refers to “a full and free right and liberty ... to pass and repass for all purposes…”.
Therefore the Yip case should be seen in its context and should not be used to extrapolate a more general principle that circumstances existing at the time of the grant are only relevant if there is ambiguity. Clearly the starting point is the express terms of the grant. The more specific the terms of the grant in a given case the greater the reliance that will be placed upon them.
The appellant’s argument
I turn now to the appellant’s submissions. The appellant did not take issue with the legal principles that the trial Judge enunciated, which were in substantial reliance on the case of Gallagher. Instead the appellant contended that the trial Judge had wrongly applied them in the circumstances of the case and had not had regard to certain other principles also set out in Gallagher. These principles were that:
·In considering a grant of the right of way the Court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used.[10]
·A grantee of a right of way may not use it for any new and additional purpose of the dominant tenement.[11]
·No alteration can be made in the use or purpose of the right of way that goes beyond that contemplated by the parties at the time of the grant.[12]
·The general rule is that “the burden imposed on the servient tenement must not be increased by a substantial alteration in the character and mode of the user of the dominant tenement or planned extension of its area”.[13]
[10] Gallagher v Rainbow (1994) 179 CLR 624, 640.
[11] Gallagher v Rainbow (1994) 179 CLR 624, 644.
[12] Gallagher v Rainbow (1994) 179 CLR 624, 640-641.
[13] Gale on Easements, (15^th ed, 1986) 311.

The appellant contended that the inferences which the trial Judge drew as to the circumstances of Vaughan Place in 1921, as set out in [35] and [42], were not capable of being founded on the evidence and that he had therefore misconstrued the scope of the right of way.
Paragraph 35 states:
I find that by 1921 Vaughan Place was used extensively by vehicles and people associated with the East End Market. In particular, it was used by substantial vehicles (for their time) to bring produce to and from the market. The vehicles were horse – drawn and motorised. Although our private road and subject to rights of way, I find that by 1921 Vaughan Place was used as if it was a public road, and in appearance was indistinguishable from a public road. It was a busy thoroughfare, at least when the market was operating.
The portion of [42] which is challenged is as follows:
I find that while of the width and situation of Vaughan Place limited the size of vehicles that could use it, it was used regularly by substantial vehicles (for their time) and was regularly used as a place to stand vehicles being used in connection with the East End Market and in connection with the premises in Vaughan Place
It was accepted that the trial Judge correctly found that the five occupiers, of Vaughan Place in about 1921 were a cake and pastry bakehouse, a fruiterer, a hawker, Producers Cold Storage Ltd and electrical engineers. Further, that in 1921 the East End Market Company Ltd which owned the dominant tenements and the servient land, transferred to two pastry cooks Messrs Turner and Dunks, with a “free and unrestricted right of way” over the latter. Based on these findings, it was submitted that it was not within the contemplation of the dominant tenement at the time of the creation of the right of way, that a ten storey commercial building with car parking would subsequently be constructed on the dominant tenement. Further, that the servient tenement would be used for rebuilding or erecting premises with the resultant frequency of motor vehicles, such as in this case, passing over the land and standing so as to obstruct the north-western end of the servient land. In short it was submitted that this use was excessive. It was submitted that the trial Judge should have construed the right of way as permitting access for deliveries to commercial premises such as were located in 1921 (including the Exeter Hotel) by vehicles of the size of a van or small truck, which would stand in Vaughan Place only for short periods to make deliveries.
This interpretation sought by the appellant was very limited indeed, and appears to suggest that the grant must be frozen in time to its precise use when it was granted.
In construing this grant, the starting point must be to consider the words of the grant and the relevant legislation.
The term “unrestricted right of way” in s 89 of the RPA states:
The words “a free and unrestricted right-of-way” in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out at length in such instrument.
Schedule 5 of the Act provides:
A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.
Kyren’s rights under the transfer were to be found in the words of Schedule 5, but the terms of the right of way are to be construed in the light of the circumstances at the time of the grant.
The words “full and free right and liberty” of the grant and the words of the Schedule are very broad and includes the expression “for all purposes”.
The expression “for all purposes” has been interpreted very generously where there are no restrictive terms contained in the grant.
In the case of United Land Company v Great Eastern Railway Company[14] Malin VC at first instance, (whose construction was affirmed on appeal) was called on to consider the following situation.
[14] (1875) LR 10 Ch App 586.
Certain lands were owned by the Crown and a right of way was granted to a railway company to:
make and construct such convenient communications across, over, or under the said railway … as shall … be necessary for the convenient enjoyment and occupation of the lands of Her Majesty.[15]
[15] (1875) LR 10 Ch App 586, 587.
At the time when the grant was made, the dominant tenement was used for agricultural purposes only. Many years later part of the land was sold to purchasers to build houses and the owners sought to use the right of way for building purposes. The argument was put that the right of way was limited to the purpose for which the land was used at the time the grant was made. This argument was rejected by the Vice-Chancellor and later their Lordships on appeal.
In construing the clause in the context of the circumstances, James LJ said:
It seems to me impossible to say that that clause involves a restriction that the communication is to be only such as they shall think necessary for the convenient enjoyment and occupation of the lands exactly in their present state, and for their present purposes, and for no others. The object was, of course, that the severance of the land by the railroad should leave the owner of the land as fully master of the land for all purposes as he was before, so that he did not interfere with the working of the line, exactly in the case of the usual reservation of minerals[16]
Lord Justice James then continued:
I think that the construction must be that which the Vice-Chancellor has put upon the clause : that is to say, that these crossings are to be communications for every purpose to which at the time, or at any future time, the owner should think fit to appropriate his land.[17]
[16] United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586, 589.
[17] United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586, 590.
A similar approach was expressed by Mellish LJ:
Where a right of way is claimed by user, then, no doubt, according to the authorities, the purpose for which the way may be used is limited by the user ; for we must judge from the way in which it has been used what the purposes were for which the party claiming has gained the right. But when a right of way is created by grant, or by Act of Parliament, then it must depend on the proper construction of the grant, or Act of Parliament, whether the right of way is to be used for all purposes, or for only limited purposes[18]
And further:
… when we look at the conveyance of the land to the railway company, we find in it no limitation whatever. The deed simply recites that those level crossings have been made, and then the lands are conveyed to the company.
It appears to me that there is nothing which can possibly operate to restrain the Crown, or the persons who claim under the Crown, from using both level crossing for any purposes for which they can be used, subject of course to not improperly interrupting the traffic.[19]
[18] United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586, 590.
[19] United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586, 591.
This case demonstrates that a grant which does not contain express limitations or restrictions is to be treated as though it was “for any purposes”, which in turn is to be interpreted as including future purposes.
A similar approach was again taken by Malins VC in Newcomen v Coulson.[20] In that case a right of way was granted to owners of allotments in the following terms:
… hereafter have a way-right and liberty of passage for themselves and their respective tenants and farmers…as well on foot as on horseback, and with their carts and carriages…doing as little damage to the soil or the corn, grass, or herbage as may be…
[20] (1877) 5 Ch D 133.
The owners of one of the allotments commenced building houses and laid down a “metalled” road where there had originally been an ordinary cart track. The plaintiff sought an injunction restraining the defendants from using the road for anything other than for agricultural purposes.
The right of way granted was expressed very widely. The Vice-Chancellor in his reasons for decision said:
Now, I am at a loss to see any principle on which a person who takes land under an inclosure is bound for all time to use that land for the purpose for which it was used when the inclosure was made. If that is the case here, it is the case all over the country ; and I suppose hundreds of thousands, if not millions, of acres of land would have this principle applied to them, that the owner of the land under the inclosure could only use the land for the purpose for which it was used when the inclosure was made, that is, for agricultural purposes ; because, although they might use the land for other purposes, they could not use the roads for other purposes. The consequence would be most seriously detrimental to the interests of society in general.[21]
Further, he concluded:
I have no doubt whatever that the proper construction is that it is not the case of an easement in any way, but it is the case of a grant of a road, which road is to be used for all purposes.[22]
Finally, he said:
Therefore I am of opinion, on the principle of Dand v Kingscote, that the right of way is one including the right of improving from time to time according to the improvements of the age, and as this right of way can only be used by metalling or laying down some hard material which shall enable the parties to pass over the land with facility, I think the motion should be refused.[23]
(Citations omitted)
[21] Newcomen v Coulson (1877) 5 Ch D 133, 137-138.
[22] Newcomen v Coulson (1877) 5 Ch D 133, 138.
[23] Newcomen v Coulson (1877) 5 Ch D 133, 140.
Therefore these cases support the proposition that broadly expressed grants that are made without limitation are interpreted as though they are a grant “for all purposes” and are not limited to their precise use at the time of the grant.
Both of these cases were subsequently interpreted in a more modified form, but not so as to affect this basic proposition. The concept of “for all purposes”, was qualified as being “all purposes within the reasonable contemplation of the parties”. A case which expressed this qualification was Todrick v Western National Omnibus Company Ltd,[24] in circumstances where the grantor had sold land, reserving a perpetual right of way for all purposes, with or without vehicles and animals. It was construed by Farwell J as a grant for all purposes “within the reasonable contemplation of the parties at the time of the grant”. At 206-207, Farwell J said:
In considering whether a particular use of a right of this kind is a proper use or not, I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made: see United Land Co v Great Eastern Ry Co per James LJ; and in my judgment a grant for all purposes means for all purposes having regard to the considerations which I have already mentioned. It would be ridiculous to suppose that merely because the grant was expressed to be for all purposes it entitled the owner of the dominant tenement to attempt to use it for something for which obviously it could not be used ... [I]n my judgment a grant of this kind must be construed as a grant for all purposes within the reasonable contemplation of the parties at the time of the grant.[25]
[24] [1934] Ch 190 and confirmed on appeal in [1934] Ch 561.
[25] Todrick v Western National OmnibusCompany Ltd (1934) Ch 190, 206.
This approach has been later adopted in Australia in Gallagher case.[26]
[26] Gallagher v Rainbow (1994) 179 CLR 624, 641-642 per McHugh J.
The appellant sought to rely on the case of Wimbledon & Putney Commons Conservators v Dixon[27] in support of the limited construction. In Wimbeldon the dispute concerned an immemorial use, not a grant of a right of way. Evidence was therefore required to prove the existence of the right of way. It was not in dispute that the occupiers of the dominant tenements had from time immemorial enjoyed the right of using the way for all agricultural purposes connected with the farm and adjoining land. Evidence was also adduced to the effect that there had been an enlargement of the farmhouse on the dominant tenement and the erection of a small cottage using the right of way for building purposes. The question was, whether the present owner of the dominant tenement could convert the land into sites for several houses and use the right of way for the purposes of constructing the houses and for all other purposes connected with the houses. The composition of the Court of Appeal included two of the Lords who had sat on the case of United Land Company. James LJ stated:
I am of opinion that the mere fact that over a common some building materials were taken for the purposes I have mentioned, is not sufficient to justify the inference of fact that the right of way belonging to the house and property was to be an unlimited right of going to and from the land for all purposes, to whatever purposes the land might be applied. The way has also been used for ordinary agricultural purposes – for sporting, which seems to me the same thing as an agricultural purpose, and for taking gravel from a gravel pit in one of the fields. That is insufficient, as it seems to me, to enable us to draw the inference of fact that the extended right claim by Mr Dixon ever existed.[28]
[27] (1875) 1 Ch D 362.
[28] (1875) 1 Ch D 362, 367.
His Lordship continued:
We have then to consider whether the character of the property can be so changed as substantially to increase or alter the burden upon the servient tenement. … But when we consider those remarks in connection with the very clear language of the Court of Queen’s Bench in Allan v Gomme, … and of the Lord Chief Justice Bovill and Mr Justice Willes, in the case of Williams v James, … I am satisfied that the true principle is the principle laid down in these cases, that you cannot from evidence of user of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or for whatever purpose that property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, quâ field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purposes of the manufactory or town so built.[29]
(Citations omitted)
[29] (1875) 1 Ch D 362, 368.
Lord Justice Mellish and Bramwell B concurred.
It is to be noted that the case of Williams v James[30] referred to in Wimbledon’s case also concerned immemorial use, and Bovill CJ and Willes J in Williams’ case, both indicated that a distinction was required to be made between a grant and prescription of a right of way. In the case of prescription, the user of the right is the only evidence and the court cannot extend the purposes for which a right of way may be used, or for which it may reasonably be inferred. Further, an agricultural use could not be extended to encompass a use for a manufactory purpose. Further the use must be reasonable for the purposes of the land in the condition in which it was while the use took place.[31]
[30] (1867) LR 2 CP 577.
[31] (1867) LR 2 CP 577.
By contrast, in the case of a grant, the language of the instrument can be referred to and it is for the court to construe the language. In the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against the grantor must be applied.[32]
[32] Williams v James (1867) LR 2 CP 577, 580 – 582.
Therefore neither of these cases supports the construction for which the appellant contends in this case. This is not a case of prescription or immemorial use.
I therefore reject the restricted interpretation of the grant as proffered by the appellant.
Use of right of way
In my opinion, when applying these principles, the approach taken by the trial Judge in the passages of the judgment criticised by the appellant was not in error.
In [35] the trial Judge found that the vehicles used to bring produce to and from the market were horse-drawn and motorised. These were appropriately characterised as being “substantial vehicles (for their time)”. It was also open for the trial Judge to find that although Vaughan Place was a private road subject to rights of way, by 1921 it was used as if it was a public road. It was reasonable for his Honour to infer that it was a busy thoroughfare, at least when the market was operating.
The appellant did not dispute the findings at [41]. They included findings that the occupiers of premises in Vaughan Place used it to bring goods to and from their premises and on occasions would stand their vehicles in Vaughan Place in order to make deliveries. Similar findings of fact are adverted to in [42], with reference to the legal principle of considering what was in the contemplation of the grantor at the time when the grant was made, which was again appropriate and is repeated at [48] of his Honour’s reasons.
The argument of construction that the appellant put to this Court was expressly rejected by the trial Judge at [49] of the judgment. Reference is made to the unqualified terms of the grant. The conclusion is drawn that the proposed use for the dominant tenements is for retail or commercial premises, for the parking of cars (as a business in its own right) and for residential purposes. The trial Judge concluded that these uses fell within the scope of the right of way. This inference is clearly open on the findings made.
At [50] the trial Judge concludes that the parties must have contemplated that there would be occasions when premises on the dominant tenements would require repairing or rebuilding. That is also a reasonable inference which could be drawn. Clearly no building can be expected to last indefinitely.
At [51] to [54], the trial Judge correctly reflects on the type and size of vehicles that would be included as being within the scope of the right of way given the contemplation of the parties as to future use. The trial Judge specifically refrains from considering concrete trucks, but refers only to those vehicles identified as required by Kyren and appropriately regards them as being included within the scope of the grant.
In my view there is no error of principle, fact or implication of fact made by the trial Judge as to the use proposed for the right of way. The trial Judge had regard to the place, nature and purpose for which the right of way was used. The use under consideration was not a new or additional use which was not within the reasonable contemplation of the registered dominant tenement at the time of the making of the grant.
Conclusion
In my view the trial Judge was correct in his interpretation in having regard to the circumstances existing at the time of the grant. The grant was broadly expressed. I consider that the circumstances in 1921 as extrapolated and implied by the trial Judge are appropriate on the evidence and that the use of the right of way was within the reasonable contemplation of the dominant tenement at the time of the grant. I would therefore dismiss the appeal.