Milne v Recorder of Titles
[2025] TASSC 22
•17 April 2025
[2025] TASSC 22
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Milne v Recorder of Titles [2025] TASSC 22 |
| PARTIES: | MILNE, Christine Anne |
| v | |
| RECORDER OF TITLES | |
| GRIGGS, Phillip John | |
| GRIGGS, Carol Theresa | |
| FILE NO: | 1894/2024 |
| DELIVERED ON: | 17 April 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 April 2025 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Real property – Easements — Proceedings to discharge, extinguish or modify restriction or easement – Restriction obsolete or reasonable user of land impeded – Tasmania – Where the Recorder of Titles refused to extinguish an easement– Where the easement’s original purpose can still be served at least in part– Evidence insufficient to establish obsolescence – Distinction between abandonment and obsolescence - Easement not obsolete.
Aust Dig Real Property [1521]
Leglislation:
Conveyancing and Law of Property Act 1884 (Tas), s 84C(1)(a)
Cases:
Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80
C Hunton Ltd v Swire [1969] NZLR 232
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28
Goddard v Pridmore (1970) 115 Sol Jo 78 (CA)
Griggs v Hobart City Council [1996] TASRMPAT 228
Long v Michie [2003] NSWSC 233
Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6
Pearson v Richardson [2012] TASSC 71
Par 44 - Re Greaves' Application (1965) 17 P & CR 57
Par 46 - Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 927
Par 46 - Re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261 at [272]
Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274
Vrakas v Registrar of Titles [2008] VSC 281
REPRESENTATION:
Counsel:
Appellant: A Walker First Respondent: L Taylor Second Respondents: In Person
Solicitors:
Appellant: FitzGerald and Browne Lawyers First Respondent: State Litigator
| Judgment Number: | [2025] TASSC 22 |
| Number of paragraphs: | 60 |
Serial No 22/2025 File No 1894/2024
CHRISTINE ANNE MILNE v RECORDER OF TITLES
| REASONS FOR JUDGMENT | ESTCOURT J 17 April 2025 |
| The appeal and the background |
1 Christine Anne Milne appeals against a decision dated 23 May 2024 made by the Recorder of Titles (the Recorder), to reject her application made pursuant to s 84C(1) of the Conveyancing and Law of Property Act 1884 (the Act), for extinguishment of an easement over her property at 794 Sandy Bay Road upon the ground that the Recorder erred in law by conflating the concepts of "abandonment" and "obsolescence" and thereby failed to consider or address the appellant's contention that the easement was obsolete for the purposes of s 84C(1)(a) of the Act.
| 2 | Section 84C(1)(a) of the Act provides: "84C Discharge or modification of overriding interests | |
|
(a) that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete…".
3 The appeal is brought pursuant to s 84F(3) of the Act.
4 The appeal is an appeal by way of rehearing (see Pearson v Richardson [2012] TASSC 71, 21 Tas R 461 at [72]). That is to say, the appeal involves a re-determination of the issues raised upon the hearing of the appeal as at the date of the rehearing, relying on the material that was before the tribunal appealed from, subject to the exercise of the power to receive additional evidence in appropriate situations.
5 The approach to an appeal by way of rehearing is summarised by Brett J (with whom Wood and Pearce JJ agreed) in Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6 at [8] and [9].
6 The appellant seeks an order that the Recorder's decision be set aside, an order pursuant to s 84C(1) that the easement described as a right of access appurtenant to the land comprised in the Register Volume 126938 Folio 2 is extinguished and an order that the Recorder cancel the registration of the easement on the Register.
7 The appellant owns 794 Sandy Bay Road, Sandy Bay, and has been registered proprietor since 25 July 2005 (AB2 52-53). She purchased the property from Brenda and Richard McCure.
8 The appellant's property is Lot 1 on SP 126938 and is largely surrounded by Lot 2 on that Plan. Lot 2 is 792 Sandy Bay Road, Sand Bay, and is owned by the second respondent, Mr and Mrs Griggs. They live in a house on their property, which is situated immediately below the appellant's home, on Mitah Crescent.
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9 In 1996 Mr and Mrs Griggs owned two properties in this particular area, being 794 Sandy Bay Road and 7 Mitah Crescent.
10 In about early 1996, Mr and Mrs Griggs applied to the Hobart City Council (HCC) for a boundary adjustment transferring 770 square metres from the area of land, now known as 794 Sandy Bay Road, to 7 Mitah Crescent. This application was refused.
11 In about early 1996, Mr and Mrs Griggs appealed this decision to the Resource Management and Planning Appeal Tribunal (RMPAT).
12 On 14 May 1996, the Griggs entered into a Contract for Sale of 794 Sandy Bay Road to Brenda McCure (and/or nominee). This sale was conditional on the boundary adjustment going ahead and the issue of a title by the Recorder to the land the subject of the contract, to be identified as 794 Sandy Bay Road: clause 17.
13 On 16 October 1996, RMPAT handed down its decision in Griggs v Hobart City Council [1996] TASRMPAT 228. This decision allowed for the boundary adjustment but provided that there was to be no access from 792 Sandy Bay Road to Mitah Lane across 794 Sandy Bay Road. The Tribunal determined that the proposed right of way from the balance lot to Mitah Lane was to be deleted.
14 On 19 November 1996, there was further contract for sale of 794 Sandy Bay Road from the Griggs to the McCures. This contained clause 12 agreeing to creation of an "easement of way" from 792 Sandy Bay Road to Mitah Lane across 794 Sandy Bay Road. The document also contained in Schedule 1, a reference to a carport, property in which passed from the Griggs to the McCures. The easement of way was described as:
"limited to the right of access (with or without vehicles) for building works and thereafter for the purpose of cleansing and maintenance of structures and grounds and for storage, but without undue interference with the right of the Purchaser to park a car from time to time on the area marked Easement of Way on the plan."
15 On about 6 January 1997, the Griggs' signed a Schedule of Easements for SP 126938, which did not include any easement across 794 Sandy Bay Road.
16 On 7 January 1997, Mr. William Lark, Surveyor, as agent for the Griggs' forwarded documents to HCC for the creation of a Sealed Plan in respect of the 2 properties, including the Schedule of Easements.
17 On 13 January 1997, HCC corresponded with William Lark to inform him of the requirements of the RMPAT decision as to deletion of the proposed right of way, and for other conditions to be agreed.
18 On 16 January 1997, in correspondence with William Lark, agent for the Griggs', the HCC confirmed the agreed conditions for approval of the subdivision. These included Condition 6:
"The existing access onto No 7 Mitah Lane is able to remain to serve the existing house. Any future or additional access to serve the new balance lot is to be obtained from Mitah Crescent not from Mitah Lane."
19 On 7 February 1997, GL King, Manager Surveying Services, HCC, submitted a copy of SP 126938, including the Schedule of Easements, to the Recorder of Titles.
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20 On 28 February 1997, SP 126938 was registered with an amended boundary and no easement over 794 Sandy Bay Road. Two folios were created: folio 1 – 794 Sandy Bay Road; and folio 2 – 792 Sandy Bay Road which contained 7 Mitah Crescent and the land excised from 794 Sandy Bay Road.
21 On 6 March 1997 the Recorder of Titles wrote to HCC confirming registration of SP 126938. No easement was recorded over 794 Sandy Bay Road.
22 C32070 is the document referencing the transfer of 794 Sandy Bay Road from the Griggs to
the McCures.
23 On 17 April 1997 C32070 was signed by the Griggs.
24 On 26 June 1997 stamp duty was paid on C32070.
25 On 12 February 1998, C32070 was stamped by the Recorder of Titles. This resulted in the transfer of 794 Sandy Bay Road from the Griggs to the McCures. It also referred to an easement described as a "Right of Access". It did not create a right of way.
26 In 1999 the HCC informed landholders with properties adjoining Mitah Lane that they were intending to place a seal on Mitah Lane.
27 The McCures lodged an application with HCC for works within the easement comprising excavation of the driveway of 794 Sandy Bay Road, and the building of a retaining wall adjoining Mitah Lane.
28 This application for a permit for works was granted.
29 The works were agreed to by the Griggs'. Mr Griggs stated "….. but we did agree to the works that the McCure's performed to make the area more usable for them".
30 The excavation and the building of the retaining wall took place in late 1999 and early 2000. Mr McCure recalls that the works were completed in the year 2000.
31 The building of the retaining wall and the excavation of the driveway removed a ramp which had previously provided access from Mitah Lane across 794 Sandy Bay Road onto 792 Sandy Bay Road (and the carport). The retaining wall and the excavation of the driveway made access across the boundary impossible at the site of the easement.
32 Mr. Adam Griggs, son of Mr and Mrs Griggs, in a Statutory Declaration submitted by them, agreed that it was not possible to drive a vehicle across 794 Sandy Bay Road and onto 792 Sandy Bay Road following the building of the retaining wall.
33 The boundary between Lot 1 and Lot 2 at the site of the easement is blocked by the retaining wall and an earthen embankment. The earthen embankment had existed prior to the building of the retaining wall.
34 In 2004 the Griggs' submitted a Development Application to the HCC for subdivision of 792
Sandy Bay Road.
35 HCC approved the subdivision with a condition that the easement be removed from the titles and that access to the western part of 792 Sandy Bay Road be from Mitah Crescent. This subdivision did not proceed.
36 On 25 July 2005, 794 Sandy Bay Road was transferred from the McCures to Christine Ann Milne by means of C643918.
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37 In November 2008 a dry-stone wall was created on the eastern side of the earthen embankment previously mentioned. It is 5 meters long, 70cm high and 70cm deep. It completely covers the earthen embankment from the retaining wall northwards. There was no modification made to the earthen embankment when the dry-stone wall was constructed.
The Recorder's reasons for decision
38 The Recorder provided the following reasons for decision by letter of 22 July 2024. Although lengthy, it is convenient to set out those reasons in full as the Recorder summarised the evidence of each of the witnesses upon which he based his decision:
"The Applicant applied for an order to extinguish the Easement under section 84C(1) subsections (a) and/or (c) and/or (d) and/or (e) which are each dealt with separately and repeated for convenience.
84C(1)(a)
'that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete.'
Paragraph (4) of the Application states:
'The application is made on the basis that: (a) the building of retaining and other walls significantly diminished the possibility of exercise of the interest; (b) the failure to exercise the interest for at least 20 years; and (c) the existence of such an interest is contrary to the determination of the Resource Management and Planning Appeals Tribunal in Griggs v The Hobart City Council [1996] TASRMPAT 228 of 16 October 1996; has resulted in the interest having become obsolete under paragraph 84C(1)(a) of the Act.'
(a) the building of retaining and other walls significantly diminished the
possibility of exercise of the interest.Case law such as the High Court case of Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274 makes it clear that obstruction in and of itself does not necessarily render an easement abandoned as there must also be an intention to abandon an easement. It is observed that the Easement is not drafted in a way to make it conditional on vehicular use and in fact use of the Easement has and can be used for purposes other than by vehicular access. It was also noted that the case of Long v Michie [2003] NSWSC 233 where a right of way had not been used for more than 60 years and a number of structures had been erected across it did not succeed in abandonment as there was no intention to abandon it on the facts.
Together with the evidence provided to me regarding use that has occurred I am not satisfied that the extent of any obstruction supports a finding by me that the Easement has become obsolete.
(b) the failure to exercise the interest for at least 20 years
I have been presented with a number of statutory declarations, letters and emails in support of the respective arguments put to me by each party. It is noted that a lot of the material was in direct reply to a requisition and notice of the Applicant's Application under section 108 of the Land Titles Act 180 (registered number E266351). For the avoidance of doubt and given that both applications were made at the same time and E266351 was also referred to on the letter dated 28 April 2022 with enclosures from the Applicant I have considered it all as part of this Application as well.
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It is observed that, inter alia, the terms of the Easement provided for it to be used 'with or without vehicles' and further that it was not 'for use as the principal means of access to any house, dwelling or other structure erected on the dominant land or any part thereof.' I am therefore not persuaded that I should be influenced by submissions about intensity of use or whether vehicles are currently capable of passing through the Easement.
The Applicant presented evidence from the prior owners of the Servient Land, Mr & Mrs McCure who said they had not seen Mr & Mrs Griggs make use of the Easement in their time of ownership of the Servient Land (8 years) being from time of creation of the Easement in 1997 until they sold the Servient Land to the Applicant in 2005.
In his statutory declaration of 24 March 2023, Mr Griggs agreed that during the ownership of the Servient Land by Mr and Mrs McCure they seldom made use of the Easement.
In her statutory declaration of 30 March 2023, Mrs Griggs said that the Applicant travelled extensively for many years when she first purchased the Servient Land (in 2005) and spent much of her time away from her home. Mrs Griggs says the Applicant was not present to witness their use of the Easement (from 2005) making it impossible for her to claim it had been abandoned and not used.
Mrs Griggs also said that since Mr Gary Corr ('Mr Corr') became a resident of the Servient Land in February 2019 he had threatened her with action for trespass and breach of a restraining order (which had not been made against her but only against Mr Griggs) and said that Mr Corr had not lived at the premises for 20 years and his evidence should be disregarded.
I observe that the terms of the Easement refer to access (a) for the construction, reconstruction, repair or maintenance of any dwelling, structure or goods; (b) for the delivery of normal household appliances, furniture, furnishings or other goods; and (c) for the removal of rubbish.
In terms of use, Mrs Griggs said that over the years she had entered the Dominant Land through the Easement including helping unload building materials from a vehicle that was reversed over the Easement to access the open carport. In November 2018 Mr & Mrs Griggs re-roofed their house and Mrs Griggs carried all the unused insulation through the Easement to gain access to the carport where the insulation is still currently stored.
Mrs Griggs said she has taken her grandchildren through the Easement to see their uncle and grandfather when they have been working on the Dominant Land either cutting firewood or slashing the property or working within the creek.
Mrs Griggs said she has also used the Easement over the years to gain access for the purpose of taking photos including the carport, creek and plants and on 30 May 2021 of a bathtub containing food matter that the Applicant had placed on the Benefitted Land near the carport without their knowledge. The bath was removed after request and photos were provided to me of the bathtub, pots and timber frame obstructing the right to pass.
Mr & Mrs Griggs stated in their evidence that I should not consider that the Applicant's statutory declaration as it is wholly invalid. However I am entitled to have regard to it as I consider fit.
Further, I am similarly entitled to have regard to the evidence of Mr & Mrs Griggs as I consider fit. I disagree with the letter from the Applicant dated 2 May 2023 that because they have not provided any specific challenge or contradicted statements or attachments provided in support of the Application this means I should assume they accept those statements.
In addition to the statutory declaration of Mrs Griggs, I have considered the other evidence filed in support including the statutory declarations listed and briefly
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summarised below (and I have considered the responses from the Applicant where
relevant in response to that evidence):
Phillip John Griggs, Retired of 792 Sandy Bay Road, Sandy Bay dated 24 March
2023
Mr Griggs said that the respective solicitors for the McCures and for the Griggs established the right of way and no one else needed to be a party to the establishment and essentially says Council agreement is not required and a party can grant a right of way to another.
While the McCures owned 794 Sandy Bay Road, they seldom used the right of way but did agree to the works that the McCures performed to make the area more usable for them. He referred to the photographs provided by the Applicant which he said clearly show that the Griggs' carport was vacant on her taking over the property and it now contains various goods requiring vehicular access over the Easement to unload. Since the Applicant purchased the Servient Land, Mr and Mrs Griggs have used the Easement whenever necessary, but Mr and Mrs Griggs have never had the need to have the Applicant remove her vehicle as for most of the time she was away, and their crossing would have been within normal business hours.
Mr Griggs also said 'never has Mrs Milne addressed our ROW use albeit as pedestrians. She did however express an interest in acquiring more land from us so that she could grow some vegetables and have a few hens. This discussion took place talking to me on the ROW.'
He said the only discussion of the Easement was between himself and Mrs Milne's tenant (suspected to be a reference to Mr Corr given his next mention of him) when Mr Griggs had to explain to him what works he had in mind to enable Mrs Milne to park her car out of the way so that removal of her vehicle would not be necessary.
He said that Mr Corr told him 'that won't be happening' as 'obviously he had no idea of what our rights are.' Mr Griggs said that when Mr Corr sought a restraint order against Mr Griggs that it was noted by the Magistrate that he 'could not prevent Mr Griggs from using his own property' and the terms of the restraining order were appropriately drafted to ensure using the Easement could not be a breach of the restraining order.
Mr Griggs said that in recent years they had asked Mrs Milne by both email and through their solicitor to totally clear the Easement with no effect, hardly suggesting that they have abandoned it or had lost the need for it. Further through their solicitors they had offered to purchase the property in order to assist Mrs Milne in vacating it and moving into a property which better meets her needs. Mr Griggs said that 'Mrs Milne has had poor legal advice both when she purchased the property and lodgement of this flawed abandonment application and that it should be seen for what it is vexatious.'
Adam Leslie Griggs - Carpenter/Builder/Designer of 28 Taronga Road, Bonnet Hill – son of Mr & Mrs Griggs – who detailed his use of the Easement variously including on foot, using the right of way stair access, walking over the Easement to access the Dominant Land with building materials, installing temporary fencing, moving a possum trap and meeting an Environmental Officer, Douglas Summers, on site. I acknowledge that the time of this usage is after the date of the Application being made to me.
Douglas Arthur Summers - Environmental Officer of Lark & Creese surveyors (dated 23 March 2023) who declared no financial or other interest in the matter. He said he was approached by Adam Griggs who is a builder on behalf of the Objectors to carry out and write a report regarding the Waterways and Coastal Protection Area. The report had been undertaken as part of the development application to Hobart City Council for an additional dwelling on the Benefitted Land at 792 Sandy Bay Road
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and the report was finalized in December 2021. He said that he met with Adam Griggs and that they both walked through the car park area on the Easement to access the potential building site and that Mrs Milne asked them what they were doing.
David Kingsley Patmore, Retired of 51 Plaister Court, Sandy Bay dated 30 March 2023 who declared no financial or other interest in the matter - and that he met Mr Phillip Griggs through the Kingston Beach Golf Club. He said he had visited the Dominant Land on a few occasions and assisted Mr Griggs by cutting two large gum trees into firewood lengths after the trees had been fallen by a tree-felling contractor in August 2019. He had also been on site with Mr Griggs to inspect the carport which fronts the car park area that is on the Easement. On a further visit to check the carpark he was approached by a male who he understood to be the Applicant's tenant, and, on this occasion, he made sure he was within the Easement. Access to the Benefitted Land on all these times was through the parking area on the right of way off Mitah Lane (within the Easement)
Graham John Hills, Architect of 31 Roslyn Avenue, Kingston dated 31 March 2023 – who declared no financial or other interest in the outcome of the Application. Mr Hills says he is an architect with G.Hills & Partners Architects. He had been engaged by Phillip Griggs to draw and submit plans for a new house to be built on the Sandy Bay Road frontage on the Dominant Land at 792 Sandy Bay Road. He had been working on plan designs since 2017 and has visited the site on a few occasions since 2017. Access to the proposed house site on the Sandy Bay Road frontage on the Dominant Land was through the parking area on the Easement and they exited the same way onto Mitah Lane.
Patrick Colin Dwyer, Director of DCS Civil (Earth Moving Contractor) of 181 Tinderbox Road, Tinderbox dated 8 March 2023 – who declared no financial or other interest in the outcome of the Application. He entered the property with Mr Phillip Griggs in July 2020 in order to assess and provide a quote on the volume of clean fill on his property which needs to be removed. He said that access to the property was through the parking area on the Easement to the Sandy Bay Road frontage and they exited the same way into Mitah Lane.
I have considered the evidence of the Applicant including statutory declarations, letters and emails in support listed and briefly summarised below. I have considered the responses from Mr & Mrs Griggs where relevant in response to that evidence. Of note, some of the evidence filed in support does not go to the issue of whether the Easement has become obsolete and is therefore not relevant for my consideration of the Application.
Christine Milne (the Applicant) of 794 Sandy Bay Road dated 24 June 2021, 28
April 2022, 17 May 2022 and 14 March 2023, 2 May 2023 and 3 December 2023.She has never seen nor is she aware of Philip Griggs, Carol Griggs or any person driving from Mitah Lane onto 792 Sandy Bay Road via the easement area.
Since she purchased the property (2005) there have been no dwellings, structures or grounds adjacent to the easement area on 792 Sandy Bay Road that would need access from the easement for the purposes of construction, reconstruction, repair or maintenance or for the delivery or storage of normal household furniture furnishings or other goods or the removal of rubbish and she has never observed nor is she aware of the easement area being or ever having been used for such purposes.
It is possible to access that part of 792 Sandy Bay Road closest to Sandy Bay Road by walking from that part of the property closer to Mitah Crescent next to the residence there. She has seen Philip Griggs walking up from that part of the property and onto the part of 792 Sandy Bay Road close to Sandy Bay Road.
It is possible to walk from Mitah Lane:
across the car park part of the Easement and onto land outside the Easement on 794 Sandy Bay Road. Ms Milne recalls seeing Mr Griggs walk from Mitah Lane across
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the Easement across her land outside the Easement and enter his property at 792 Sandy Bay Road on a few occasions over the 16 years she has lived at her property. She recalls an axe in his hand on two occasions. She cannot recall where she was standing when she saw him as the Easement is not visible from the living area of her house except for the bathroom and the garden; and
across the boundary of 794 Sandy Bay Road closest to Sandy Bay Road. Until 2020 it was impassable as it was covered with vegetation and scrub. She cleared the area in the winter of 2020 exposing concrete steps which lead down to the carport (the majority of the area of which is on 792 Sandy Bay Road). These steps pre-existed the boundary adjustment creating the two titles of 794 and 792 Sandy Bay Road. She has never seen Mr Griggs access his property across this area.
Gary Corr (partner of Christine Milne) of 794 Sandy Bay Road dated 29 September
2021, 19 January 2022 and 2 May 2023
Mr Corr is the partner of Christine Milne and has been a frequent visitor to the
Servient Land since 2005 and permanently resident there since February 2019.The property is quite small and there is limited area for growing vegetables etc. and he would like to build a greenhouse/conservatory at the western end of the driveway. This would leave room for one car to park on the driveway and enable them to grow herbs and vegetables without impact from the wildlife.
He has only seen Mr Griggs on the Servient Land on two occasions. The first was in May 2019 when he went onto the property to complain about a temporary sewerage line. The second time was in April 2021 when he came onto the property and cut down a number of trees on our western boundary.
He has only seen Mrs Griggs on the property on one occasion in late April 2021 when she went to the front door at approximately 7pm asking to speak to Ms Milne. Mr Corr informed Mrs Griggs she was in breach of a restraining order and asked her to leave the property and shut the door.
He has never been asked to move a vehicle parked on the Easement by the Griggs for any reason.
It is possible to walk from the grassed area adjacent to the house on 792 Sandy Bay Road onto the rest of the area of that block. On a number of occasions, he had seen Mr Griggs on that part of the block doing things such as digging ditches, collecting firewood and damming the creek 'Riverview Rivulet.'
There is a ramp going down from the Council reserve on Sandy Bay Road to the western edge of the block. The ramp was constructed with the 'acquiescence' of the Griggs prior to constructing a residence at 790A Sandy Bay Road. The ramp allows for movement of heavy equipment and trucks onto both 790A and 792 Sandy Bay Road.
Richard McCure of 451 Sandy Bay Road dated 11 June 2021 and 2 April 2022 – one of the purchasers who bought the Servient Land from Mr and Mrs Griggs and later sold it to Ms Milne
Richard and Brenda McCure had purchased the Servient Land from Mr and Mrs
Griggs and signed a contract dated 19 November 1996.
Richard and Brenda were the registered proprietors of the Servient Land from 17
April 1997 until 25 July 2005.There had been back and forth between solicitors acting for Mr and Mrs McCure, and Mr and Mrs Griggs regarding the terms of the contract and particularly with respect to the Easement.
Transfer C32070 contained an easement in favour of 792 Sandy Bay Road.
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On 24 March 1999 Mr and Mrs McCure applied to Hobart City Council for the right to excavate an area on the property and put in retaining walls to create a level parking area and the parking area was on the Easement land area. Copies of survey plans, the planning permit and 3 photographs showing the condition of Mitah Lane and the driveway from Mitah Lane across the Easement prior to the excavation were provided.
Council approved the application on 23 April 1999 and the work was completed in
2000.The works resulted in a difference in height of approximately 1 metre between the parking area and the small part of the Servient Land which remained between the parking area and the boundary with 792 Sandy Bay Road. After the works were completed, it was not physically possible to drive from Mitah Lane across the Easement and onto 792 Sandy Bay Road.
Mr McCure had never seen Philip or Carol Griggs or any person acting on their behalf pass or repass across the Easement and 'this was for the purposes of the easement or for any other purposes.'
Mr and Mrs McCure sold the Servient Land in July 2005. Up until that point there never were dwellings, structures or grounds adjacent to the easement on 792 Sandy Bay Road that would need the Easement for the purposes of (a) construction, reconstruction, repair or maintenance or (b) for the delivery or storage of normal household furniture, furnishings or other goods or (c) the removal of rubbish.
He has no recollection of being asked to move a vehicle parked on the Easement by the Griggs for any reason.
He has never observed nor been aware of the easement area being or ever being have been used for such purposes. He has passed by 792 and 794 Sandy Bay Road on numerous occasions between July 2005 until the time of making his statutory declaration (April 2022). He had not seen any construction work on 792 Sandy Bay during that time. There is a temporary fence on part of 792 Sandy Bay Road. He said this was erected in November 2021.
Edmund Wale, Retired, formerly Regional Manager Tasmania of Works Australia previously Australian Construction Services of 790B Sandy Bay Road, Sandy Bay dated 6 April 2022
Together with his spouse, Sally Wale, he is the registered proprietor of 790B Sandy Bay Road, Sandy Bay Volume 153051 Folio 1. He resided at 790B Sandy Bay Road from the years 2010 until the present. 790B Sandy Bay Road was constructed on land that was part of 5 Mitah Crescent, Sandy Bay. Also, the registered proprietors of 5 Mitah Crescent, Sandy Bay Volume 24903 Folio 1. Mr and Mrs Wale resided at 5 Mitah Crescent from the years 2000 until 2010. Both of these properties have a boundary on their southern sides with the property known as 792 Sandy Bay Road/7 Mitah Crescent. Philip and Carol Griggs are their neighbours and are known to them. The area to the west of a line drawn along the southern boundary of 794 Sandy Bay Road and extending to the eastern boundary of 790B Sandy Bay Road is undeveloped and has been so since commenced residing at 5 Mitah Crescent. Mr Wale refers to that portion of the property as 'the undeveloped Block.'
There is a carport situated in eastern part of the undeveloped Block near Mitah Lane. The carport has been in that position since Mr and Mrs Wale commenced living at 5 Mitah Crescent. When he moved into the residence in 5 Mitah Crescent both Mitah Crescent and Mitah Lane were sealed and the retaining wall which is on 794 Sandy Bay Road and partially fronts Mitah Lane was in place. There is currently a wire mesh fence on part of the boundary between 792 and 794 Sandy Bay Road. This fence looks to be a temporary structure. It was erected by Adam Griggs in late November 2021. Since he moved to 5 Mitah Crescent there has never been any other structure on the undeveloped Block other than the carport and the temporary fence. Mr Wale built a second residence now known as 790B Sandy Bay Road from 2009 to
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2010. Commenced living at 790B in 2010. Their son continues to live at 5 Mitah Crescent. During the construction of that dwelling an access track was constructed to assist in the construction of 790B Sandy Bay Road. The track ran from Hobart City Council land on Sandy Bay Road to the base of where the residence was constructed. Access to build the trackBay Road. Trees R Us used this access track when they cut down two large trees on the undeveloped Block.
Mr Wale states there was no use of the easement running across 794 Sandy Bay Road in the construction of that access track. Apart from the wire fence he has never seen anyone building anything on the undeveloped Block. Except for the carport he has never seen any structures on the undeveloped Block. He has never seen anyone carrying furniture or household articles on the undeveloped Block. The undeveloped Block is not well maintained but it has been slashed occasionally and some well- established trees have been cut down. He has never seen Carol Griggs on the Block. Examined the portfolio of photographs contained in attachment 'F' of the Statutory Declaration of Christine Milner of 24 June 2021, and said that they are a true and accurate representation of the condition of the easement and of the part of the undeveloped Block closest to it. Mr Wale attached two photographs which were taken from the balcony of 790B Sandy Bay Road and adjacent to the undeveloped Block. They show that Mr Wale has a clear view of the easement.
Aaron Wale, IT Consultant Department of Health of 5 Mitah Crescent Sandy Bay dated 7 April 2022
Mr Wale lived at 5 Mitah Crescent, Sandy Bay from 2000 to 2006 and then from 2008 until the present. His property has a boundary on its southern side with the property known as 792 Sandy Bay Road. Both Philip and Carol Griggs are known to him. The area to the west of a line drawn along the southern boundary of 794 Sandy Bay Road and extending the eastern boundary of 790B Sandy Bay Road is undeveloped and has been so since commenced residing at 5 Mitah Crescent.
Mr Wale refers to that portion of the property as 'the undeveloped Block.' There is a carport situated in eastern part of the undeveloped block where it is closest to Mitah Lane. That carport has been in that position since commenced living in 5 Mitah Crescent. When moved into the residence in Mitah Crescent both Mitah Crescent and Mitah Lane were sealed and the retaining wall which is on 794 Sandy Bay Road and partially fronts Mitah Lane was in place. There is currently a wire mesh fence on part of the boundary between 792 and 794 Sandy Bay Road. That fence was erected in late November 2021. Since lived at 5 Mitah Crescent there has never been any other structure on the undeveloped Block other than the carport and the temporary fence.
A second residence now known as 790B Sandy Bay Road was constructed on 5 Mitah Crescent from 2009 to 2010. During the construction of that dwelling an access track was constructed to assist in the construction of 790B Sandy Bay Road. The track ran from Hobart City Council land on Sandy Bay Road across part of 792 Sandy Bay Road to the base of where this residence was constructed. Access to build the track was from Sandy Bay Road. That track continues to provide 4WD and walking access to 792 Sandy Bay Road.
On 23 August 2019, Mr Wale witnessed the use of the access track by Trees R Us when they cut down two large trees on the undeveloped Block, the right of way was not utilized when the two large trees were cut down. Photos attached show that the access to the undeveloped Block was via the access track from Sandy Bay Road and not the easement from Mitah Lane. Mr Wale states there was no use of the Easement running across 794 Sandy Bay Road in the construction of that access track. Apart from the wire fence, has never seen anyone building anything on the undeveloped Block. Except for the carport has never seen any structures on the undeveloped Block. Has never seen anyone carrying furniture or household articles on the undeveloped Block. The undeveloped Block is not well maintained but it has been slashed occasionally and some well-established trees have been cut down. He has never seen Carol Griggs on the undeveloped Block. He examined the portfolio of photographs contained in attachment 'F' of the Statutory Declaration of Christine Milner of 24 June
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2021 and said that they are a true and accurate representation of the condition of the
easement and of the part of the undeveloped Block closest to it.
Robert Morris-Nunn, Architect, of 29 Salvatore Place, West Hobart dated 30 March
2022Mr Morris-Nunn has been a practicing architect since 1972 and comments on his experience in various developments. He said he had examined the properties at 792 Sandy Bay Road and 794 Sandy Bay Road and the plans for the building of the retaining wall and related excavations and the photographs attached to the statutory declaration of Richard McCure. His evidence focuses on the inability to use the easement for vehicular or pedestrian traffic and potentially how to construct a building on 792 Sandy Bay Road near to Sandy Bay Road including if the eastern bank were excavated. He said he considered that the Easement across 794 Sandy Bay Road is not suitable for moving equipment or building supplies onto 792 Sandy Bay Road. He refers to the steep gradient running from South to North immediately after the easement and that there is a height restriction. He says vehicles such as cranes and concrete mixers would not be able to use the Easement and 'even trucks would not be able to use it.' He then comments that the owners of 792 Sandy Bay Road have two other options for accessing the western end of the property which would both be more convenient than the Easement.
However, the evidence from Mr Morris-Nunn does not go to the issue of abandonment of the Easement.
David Alan Masters, Planner, of 17 Hooper Crescent Mount Stuart dated 25 March
2022Mr Masters is a retired teacher, planner and builder surveyor and is qualified as a building surveyor and town planner. He has worked as a teacher, Local Government manager, building surveyor, town planner and project manager. In 2005 he inspected the Burdened Land. His declaration made comments about the driveway/parking area and retaining wall on the property and earthern bank and said that it was not possible for a vehicle to proceed over the driveway and on to 792 Sandy Bay (the Benefitted Land). He also said it was extremely difficult for a pedestrian to cross from the Burdened Land onto the Benefitted Land by crossing over the earthern embankment.
He examined the Burdened Land in April 2022 and noted that the driveway/parking area was significantly the same as when he examined it in 2005 and noted that there was now a drystone wall in front of the earthern embankment which is approximately 70cm high. He noted that there were a number of planter boxes around the periphery of the driveway and a netted frame in front of the drystone wall containing a number of terracotta pots with miniature fruit trees. He said it was not possible for a vehicle to drive over the driveway on the Burdened Land onto the Benefitted Land. He made the same observations that it would be extremely difficult for a pedestrian to cross from the Burdened Land to the Benefitted Land by crossing over the earthern embankment. He said he had examined the area of the Benefitted Land adjacent to the Easement. He observed there was an open sided shed structure which resembles a carport in its appearance, but which cannot be used as a carport. He noted a large amount of rubbish in the shed and that the area outside of it was covered by noxious weeds and blackberry brambles and there were piles of lumber etc. but that these were largely covered by vegetation. He said there was no construction on the western end of the Benefitted Land other than the shed and from his observations there did not appear to have ever been any construction there. He noted alternative access points to the Benefitted Land. He referred to the narrowness of Mitah Lane for entry to the Burdened Land via the Benefitted Land and the requirement for significant earthworks on the Benefitted Land to enable further access to the site.
The evidence of Mr Masters does not address the issue of abandonment of the
Easement.
Noel Leary, Land Surveyor, of 27 Fitzroy Place, Sandy Bay dated 11 June 2021
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Mr Leary has been a Registered Surveyor in Tasmania since 1975. He provided evidence regarding surveying work he had undertaken including preparing a plan of the Easement as it appeared in 2021. He commented on the significant difference in height between the parking area and the dry-stone wall and Sandy Bay Road.
In his opinion it would not be possible to drive a vehicle from Mitah Lane across the Easement via the parking area onto 792 Sandy Bay Road. He said it is not possible to drive a vehicle from Mitah Lane onto the Easement other than via the parking area (on 794 Sandy Bay Road) due to a retaining wall and a steel safety barrier. He also said it is not possible to drive a vehicle from Sandy Bay Road onto the Easement and then onto 792 Sandy Bay Road due to the steel slope which is approximately 45 degrees.
The evidence of Mr Leary does not address the issue of abandonment of the Easement. The evidence before me did not support a finding by me in favour of the Applicant and I am not satisfied that the Easement has not been used and that it has therefore become obsolete on that basis. In other words, in examining the materials put to me, I have identified evidence provided by both parties that there has been use of the Easement since its creation.
(c) the existence of such an interest is contrary to the determination of the Resource Management and Planning Appeals Tribunal in Griggs v The Hobart City Council [1996] TASRMPAT 228 of 16 October 1996
The Applicant submits that the Griggs were aware that HCC would not agree to a 'right of access' being placed on the sealed plan and referred to clause 12 of the Contract for Sale of November 1996 between the Griggs and the McCures. The Applicant further argues that the Griggs deliberately represented there would be no easements of any sort despite having signed a contract which included an easement. The Applicant further says that even if it is not considered there was 'fraud,' the actions of the Griggs constitute wrongfully obtaining a registration on the Register because their actions constitute a clear intention to not comply with an order of the RMPAT and obtain a benefit as a result.
These issues go to the creation of the Easement and its recording. It is considered that disputing these matters are issues for relief from the Court, not the Recorder. Pearson v Richardson [2012] TASSC 71 ('Pearson') is the authority for the position that an applicant must prove to my satisfaction that an overriding interest either serves no useful purpose or is incapable of being fulfilled. Further, much of the Applicant's evidence is based on abandonment. Section 84C(3) of the Act states:
'Non-use is not conclusive evidence of abandonment; it is only one of
the factors to be taken into account'.
For the purposes of section 84C, abandonment is a question of intention by the owners of the dominant tenement. An easement is a valuable right and for this reason the courts will not lightly infer an abandonment, see Goddard v Pridmore (1970) 115 Sol Jo 78 (CA). In that case, the court added the physical state of affairs could easily have been altered so as to restore the use of the right of way. Accordingly, section 84C(1)(a) is not made out. The Easement has not become obsolete as it is capable of fulfilling its original purpose and further on the evidence before me, I am not satisfied that Mr & Mrs Griggs have actually abandoned or had any intention to abandon the Easement.
84C(1)(c)
"that the continued existence of the interest would impede some reasonable user of the land for public or private purposes, not being a user referred to in paragraph (b) , or, as the case may be, would, unless modified, so impede such a user."
Paragraph (5) of the Application states:
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Alternatively, and in addition, the application is made on the basis that the determination of the Resource Management and Planning Appeals Tribunal in Griggs v The Hobart City Council [1996] TASRMPAT 228 of 16 October 1996 is still in force and that continued existence of the interest would impede the reasonable user of the land by the current owner who is entitled to unrestrained user of the property pursuant to paragraph 84C(1)(c) of the Act.
Subs(1)(c) applies to a user of land where the land is not the subject of any zoning under an interim order or planning scheme, or where the particular user is not regulated at all. See paragraph 57 of Pearson.
The Servient Land is subject to the relevant planning scheme, no relevant use of the land has been identified which is impeded by the Easement, and accordingly section 84C(1)(c) is not made out and I am not satisfied that the provision has application based on the evidence presented to me.
84C(1)(d)
'that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the interest have agreed, either expressly or by implication, to the extinguishment or modification of the interest.'
Paragraph (6) of the Application states:
'Alternatively and in addition, the application is made on the basis that the persons having the benefit of the interest and being aware of the modification to the area subject to the interest and not having acted to protect their interest for a period of at least 20 years have implicitly agreed to the extinguishment of their interest under paragraph 84C(1)(d) of the Act.'
The evidence before me does not support such a finding. Mr and Mrs Griggs have the benefit of a registered Easement which is conclusive evidence of its existence (sections 39 and 106 of the Land Titles Act 1980). Their use was not completely prevented or stopped, their use and objection to the Application by becoming a party to proceedings is evidence that they have not agreed to the extinguishment of the Easement.
Section 84C(1)(d) is not made out.
84C(1)(e)
"that the proposed extinguishment or modification will not injure the persons entitled
to the benefit of the interest."
Paragraph (7) of the Application states:
'Alternatively and in addition, the application is made on the basis that the proposed extinguishment will not injure the persons entitled to the benefit of the interest under paragraph 84C(1)(e) of the Act as they have unrestrained access to the land adjoining the easement by other means and the area currently subject to the interest is impassable.'
Given I have found the Easement is still capable of fulfilling its original purpose, or one of its original purposes, then its removal is likely to injure those entitled to its benefit (paragraph 101 of Pearson). On the facts of this case and in view of the above that the Easement has not become obsolete then its extinguishment is likely to injure those entitled to its benefit. Accordingly, section 84C(1)(e) is not made out.
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DECISION
For the foregoing reasons I was not satisfied that any of the parts under section
84C(1) were made out and the Application was refused."
Appellant's submissions
39 The appellant by her counsel Mr Walker, submits that she relied upon s 84C(1)(a), which raised the issue of the obsolescence of the easement. That section provides that the easement may be extinguished if the "appropriate tribunal" is satisfied:
"that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete."
40 Counsel for the appellant notes that the Recorder stated in his written reasons that:
"Case law…makes it clear that obstruction in and of itself does not necessarily render
an easement abandoned as there must also be an intention to abandon an easement……Together with the evidence provided to me regarding use that has occurred I am not satisfied that the extent of any obstruction supports a finding by me that the easement has become obsolete."
41 And that further the Recorder stated:
"The evidence before me did not support a finding by me in favour of the Applicant and I am not satisfied that the Easement has not been used and that it has therefore become obsolete on that basis".
42 Counsel for the appellant submits that in a number of places, after reciting evidence considered, the Recorder stated that the evidence "does not go to the issue of abandonment of the easement" (Emphasis added.)
43 Counsel submits that the Recorder misdirected himself and failed to consider the evidence of changes in the character of the property, and evidence of other circumstances of the case, and whether by reason of those matters the easement had become "obsolete". Counsel submits that was what the subsection required but instead, the Recorder conflated the concept of obsolescence with the concept of abandonment.
44 The submission continues that abandonment requires an intention to abandon and its focus is on the actions or lack of actions of the beneficiary of the easement, whereas obsolescence is focused on the easement itself, and relevantly, under s 84C(1)(a), changes in the character of the servient tenement (see Re Greaves' Application (1965) 17 P & CR 57 as referred to in Pearson v Richardson [2012] TASSC 71 at [94]) or other circumstances of the case. Thus, the appellant submits, the Recorder erred in that he failed to address a critical distinction between and/or conflated the two concepts.
45 In his written contentions counsel for the appellant, Mr Walker submitted:
"49 The easement is obsolete because:
(a)
there have been the following changes to the character of the servient tenement after the date of registration of the easement:
(i)
with the approval of Hobart City Council and the agreement of the Griggs', works were done within the easement being a new carpark excavated which resulted in an earthen wall
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barrier of between 0.7 and 1.0 metre high at the property
boundary on the easement;(ii) excavation of, and removal of, the other 'parking area' visible in photo F1 in AB2 69;
(iii) construction of a dry stone wall at the rear of the new carpark, approximately 0.7 m high to retain the earthen bank created by the works above;
(iv) with approval and agreement by the Griggs' construction of a concrete block wall across a substantial part of the Mitah Lane boundary of the easement, restricting access to a single narrow uphill access to the new carpark. This wall has been supplemented by a steel barrier running along the wall, in Mitah Lane, constructed by HCC: Leary plan at AB2 77.
(b)
there are the following 'other circumstances of the case' which are material;
(i)
Hobart City Council is of the view that there is currently (after the works referred to above) a lack of sufficient parking available on the servient tenement – 794 Sandy Bay Road;
(ii)
Hobart City Council had approved a subdivision of 792 Sandy Bay Road, but required the easement to be removed;
(iii)
there are multiple other accesses to the Griggs' property at 792 Sandy Bay Road being:
(A) an access from Mitah Crescent, which permits pedestrian and vehicular access to the entire property, and which in recent months was used to give access to an excavator, which could not access across the easement; (B) an access to the Griggs' house at 792 Sandy Bay
Road, directly off Mitah Lane;(C) an access from Sandy Bay Road across Council land by way of a ramp, constructed after the easement was created, in part on 792 Sandy Bay Road to enable the owners of 790B Sandy Bay Road to construct their house: AB2 356 and which has also been used by the Griggs' for tree removal: AB2 365. (iv) the ramp from Sandy Bay Road and the access from Mitah Crescent have both been assessed by an architect as suitable for use in providing access for any construction on 792 Sandy Bay Road. The easement was assessed as not being suitable. AB2-369–370;
(v) the lack of any assertion by the Griggs' that they will suffer any loss or disadvantage as a consequence of the extinguishment of the easement for the purposes of s 84C(7).
(vi) The limited nature of the easement itself is a material circumstance. It is not a right of way. It is described as:
'A right of access…to pass and repass with or without vehicles…for the purpose of access to the dominant land:
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(a) for the construction, reconstruction, repair and maintenance of any dwelling, structure or grounds; (b) for the delivery or storage of normal household appliances, furniture, furnishings and other goods; and (c) for the removal of rubbish but not (d) for the parking of motor vehicles in regular use; or (e) the use as the principal means of access to any house, dwelling or other structure erected on the dominant land or any part thereof PROVIDED THAT the owner …of the servient land may erect a car- port adjacent to the southern side of the existing house on the servient land and use any part of that portion of the servient land subject to this easement for the purposes of parking motor vehicles but such motor vehicles are to be moved to allow the ingress and egress of motor vehicles no more than 2.5 m in height to and from the dominant on request to the occupier of the servient land but only at reasonable times'."
46 Counsel for the appellant submits that obsolescence is established if either the original purpose of the easement cannot be served (Re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261 at [272]) or the easement is currently incapable of fulfillment or serves no useful purpose (Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 927) as referred to and adopted in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 at [3] per Mason P, Stein JA agreeing.
47 The argument runs that the purpose of the easement is expressly stated to be for access to the dominant land for the construction, reconstruction, repair and maintenance of any dwelling, structure or grounds and because of the subsequent changes to the topography and the other circumstances identified, access for the purpose of construction or reconstruction of a dwelling can no longer be served.
48 Counsel submits that insofar as the easement concerns maintenance of any other structure (the dilapidated carport-like roof), and maintenance of the grounds, it is contended the access serves no useful purpose, given the differential height levels, the restricted width of access and the existence of three other accesses. The same pertains it is argued, to the other purposes of the easement, namely, delivery of household appliances, and removal of rubbish.
49 Counsel for the appellant concluded by submitting that no building approval for a dwelling has been obtained in 27 years, and clear access in any event is available for vehicles through Mitah Crescent as indicated in the evidence of the appellant.
The first respondent's submissions
50 The first respondent quite properly adopted a neutral impartial position in relation to the merits of the appeal, and it is noted that his interests in the proceeding were confined to ensuring that the Court had the matters that were considered by him when determining the application and had his
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reasons for determination. While wishing to aid the Court where possible, he noted that he is not the
contradictor in the appeal.
The second respondents submissions
51 The second respondents relied upon the first respondent's reasons for determination.
Discussion and disposition
52 In Pearson v Reardon (above) at [93]-[95] Porter J said:
"The application under s 84C(1)(a)
93 For the application to succeed under this provision, the respondents need to show that by reason of changes in the character of the property or the neighbourhood, or other circumstances of the case which may be deemed material, the restrictive covenant has become obsolete. The notion of obsolescence under this type of provision has been often considered, as have its other operative parts.
94 The following is a summary of the established meaning of the provision, and of its operation in general.
• Obsolescence means that the relevant interest is currently incapable of fulfilment or serves no useful purpose: Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80 at [40], and the cases cited. • The Tasmanian provision, unlike for instance the New South Wales equivalent, requires an objective determination of obsolescence, and not whether the interest "ought to be deemed obsolete". • If a restrictive covenant continues to have any value for the person who is entitled to the benefit of it, then it can rarely, if at all, be said to be obsolete; the inquiry is into the purposes of the covenant: Re Robinson (above) at 281 – 282; Vrakas v Registrar of Titles (above) at [26]. • The points in time that are relevant to the determination are the time at which the restrictive covenant was created, and the time when the application for its extinguishment is determined: C Hunton Ltd v Swire [1969] NZLR 232 at 234. • 'The property' to be considered in the context of changes of character is the servient land: Re Greaves' Application (1965) 17 P & CR 57. 95 As to what constitutes 'the neighbourhood' for the purposes of the provision, this is to be determined by the facts of each case. In this case, the appellants do not disagree with the contention of the respondents that the neighbourhood would take into account land beyond the relevant lands being both the servient and dominant lands. It would seem to be reasonable to take into account areas which may be able to be seen, or which would have to be seen from, or which would have to be traversed to gain access to, the dominant lands." (Emphasis added.)
53 These are the considerations with which I need to concern myself when having regard to the exercise by the Recorder of his discretion under this section.
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54 I accept that the Recorder paid insufficient regard to the distinction between the concept of abandonment and the concept of obsolescence, however, any error so arising was not a material error when in my view there was ample evidence before him to demonstrate objectively that the overriding interest had not become obsolete.
55 The evidence of the witnesses as summarised by the Recorder and which I have set out above, was more than sufficient for the Recorder to conclude that the easement was not "incapable of fulfilment" and could not be said to "serve no useful purpose". Importantly, taken at its highest, the evidence advanced by and on behalf of the appellant did not establish either of those things.
56 Moreover, that evidence did not establish that the easement did not continue to have any value for the owners of the dominant tenement. The evidence of Mr and Mrs Griggs and the witnesses advanced by them, clearly established that the easement continued to have some value. As noted by Porter J, referring to Vrakas v Registrar of Titles [2008] VSC 281, in such circumstances "it can rarely, if at all, be said to be obsolete". Indeed, the application to the Recorder made by the appellant appears to have had its genesis in the assertion of the respondents right to utilise the easement.
57 I took a view of the dominant and servient tenements, and one might well question, looking at the lie of the land, why anyone would possibly want to use the easement on foot. Indeed, it may well be the case that having regard to the changes in the character of the property and the neighbourhood relied upon by the appellant, the easement "ought to be deemed obsolete" but, as was pointed out by Porter J in the passage set out above from Pearson v Reardon (above), unlike its New South Wales equivalent, that is not the test under s 84C(1)(a).
58 On the material before me, I detect no material or vitiating error on the part of the Recorder in reaching his conclusion that the easement was not obsolete. The material did not enliven the Recorder's discretion under s 84C(1)(a).
59 The appeal is dismissed.
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