JUDGES:	KYROU, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 335
JUDGMENT APPEALED FROM:	Laming v Jennings [2017] VCC 1223 (Judge Cosgrave) Laming v Jennings [2017] VCC 1932 (Judge Cosgrave)

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REAL PROPERTY – Easements – Easement by prescription arising from doctrine of lost modern grant – Knowledge of owner of servient tenement of acts of user – Actual and constructive knowledge – Where knowledge of agent binds owner – Presumption of knowledge of open user – Where certain acts of user transient and sporadic – Where state of land would not put reasonable, diligent owner on inquiry – Appeal allowed – Pugh v Savage [1970] 2 QB 373; Diment v NH Foot Ltd [1974] 1 WLR 1427; Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 considered.

REAL PROPERTY – Easements – Nature and scope of easement – Validity of easement for recreation, storage of firewood and burning of green waste – Where land is part of private land holding – Re Ellenborough Park [1956] Ch 131; Jackson v Mulvaney [2003] 1 WLR 360 distinguished.

REAL PROPERTY – Easements – Nature and scope of easement – Easement for recreation, storage of firewood and burning of green waste – Whether easement amounts to joint possession of land.

REAL PROPERTY – Easements – Easement by prescription arising from doctrine of lost modern grant – Whether owner of servient tenement bound by acquiescence of predecessors in title – Transfer of Land Act 1958 s 42(2)(d).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Colbran QC with Mr G D Bloch	Tisher Liner FC Law
For the Respondent	Mr R Hay QC with Mr K E Mihaly	Megan Copas

KYROU JA
McLEISH JA
NIALL JA:

Introduction and summary................................................................................................................ 1
The County Court proceeding............................................................................................................ 3
The judge’s reasons.............................................................................................................................. 3

The disputed land................................................................................................................................ 4
Use of the disputed land...................................................................................................................... 5
The adverse possession claim............................................................................................................... 9
The claim for an easement................................................................................................................. 10

The judge’s further reasons............................................................................................................... 15
The orders........................................................................................................................................... 18
The proposed grounds of appeal..................................................................................................... 19
Ground 1 — knowledge.................................................................................................................... 19

The parties’ submissions.................................................................................................................... 19
Relevant principles............................................................................................................................ 21
Consideration.................................................................................................................................... 28

Ground 2 — the easement is too broad.......................................................................................... 32

The parties’ submissions.................................................................................................................... 32
The easement as found....................................................................................................................... 33
Re Ellenborough Park....................................................................................................................... 35
Mulvaney.......................................................................................................................................... 36
Australian authorities....................................................................................................................... 39
Consideration.................................................................................................................................... 39

Ground 3 — the easement amounts to a right to possession...................................................... 44

Consideration.................................................................................................................................... 46

Ground 4 — s 42(2)(d) of the TLA................................................................................................... 48

Consideration.................................................................................................................................... 50

Conclusion.......................................................................................................................................... 55

Introduction and summary

This is an application for leave to appeal from a declaration and other orders made by a judge of the County Court upholding a claim for an easement for recreation over land in Ferny Creek, Victoria. The disputed land over which the easement was granted forms part of a larger parcel of land owned by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laming v Jennings

Details

AGLC: Laming v Jennings [2018] VSCA 335
Case: [2018] VSCA 335
Decision Date: 7 December 2018

CaseChat Overview and Summary

In Laming v Jennings, the dispute between the parties centred on the existence and extent of an easement by prescription over a parcel of land. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether an easement by prescription had been established through the doctrine of lost modern grant, given the knowledge of the owner of the servient tenement of the acts of user. Additionally, the court had to determine the nature and scope of the easement, specifically whether it included recreational use, storage of firewood, and burning of green waste, and whether these activities amounted to joint possession of the land.

The court examined whether the acts of user were sufficiently open and notorious to bind the owner of the servient tenement, considering both actual and constructive knowledge. It was determined that the acts of user, although transient and sporadic, were sufficient to establish the easement given the circumstances. The court held that the state of the land did not put a reasonable, diligent owner on inquiry, thus the owner was bound by the acts of user. Furthermore, the court examined whether the easement was valid for recreational use, storage of firewood, and burning of green waste, distinguishing it from cases where such activities would amount to joint possession of the land.

In reaching its decision, the court relied on a number of precedents, including Pugh v Savage, Diment v NH Foot Ltd, and Sunshine Retail Investments Pty Ltd v Wulff. The court found that the easement was valid and not an instance of joint possession. The court also concluded that the owner of the servient tenement was bound by the acquiescence of their predecessors in title under the Transfer of Land Act 1958. The appeal was allowed, and the easement was recognised as valid and enforceable.

The court's final orders recognised the easement for recreational use, storage of firewood, and burning of green waste as valid, enforceable, and not amounting to joint possession of the land. The owner of the servient tenement was found to be bound by the acts of user, and the easement was upheld.

Orders