Neighbourhood Association DP No 285220 v Moffat

[2008] NSWSC 54

CITATION:	Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
HEARING DATE(S):	29-30/01/08
JUDGMENT DATE :	30 January 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	30 January 2008
DECISION:	Parties to bring in short minutes of order in accordance with reasons.
CATCHWORDS:	REAL PROPERTY - easements - construction of bare easement - matters to which the Court may have regard - extrinsic material other than physical characteristics of tenements not relevant. - REAL PROPERTY - easements - modification of easements - s 89(1)(c) Conveyancing Act not intended to be used to benefit dominant tenement.
LEGISLATION CITED:	Conveyancing Act 1999 (NSW) Community Land Development Act 1989 (NSW) Community Land Management Act 1989 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 81 ALJR 1887;239 ALR 75; Sertari Pty Limited v Nirimba Developments Pty Limited [2007] NSWCA 324 Powell v Langdon (1944) 45 SR (NSW) 136 Yip v Frolich (2004) 89 SASR 467 Cannon v Villars (1878) 8 Ch D 415 Optus Vision Pty Limited v Australian Rugby Football League Ltd [2004] NSWCA 61 Pwllbach Colliery Company Ltd v Woodman [1915] AC 634 Markos v OR Autor Pty Limited [2007] NSWSC 810; (2007) NSW ConvR 56-190
TEXTS CITED:	Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia, Butterworths, 2nd ed, 2000 Butt P, Land Law, 5th ed, Lawbook Co
PARTIES:	Neighbourhood Association DP No 285220 v William Moffat
FILE NUMBER(S):	SC 5045/06
COUNSEL:	Plaintiff: G Sirtes Defendant: R D Marshall, B A Arste
SOLICITORS:	Plaintiff: David Le Page Solicitor Defendant: Sparke Helmore (Newcastle)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 30 January 2008

5045/06 Neighbourhood Asssociation DP No. 285220 v William Moffat

JUDGMENT

1 HIS HONOUR: The principal issue in this case is the construction of an easement "for pipeline and irrigation 1 wide and variable". The issue is whether this easement authorises the plaintiff, as owner of the dominant tenement, to pump effluent through a pipe over the servient tenement and disperse the effluent by irrigation over a designated area on the servient tenement. If such a use is authorised, there is no issue that the plaintiff as owner of the dominant tenement is authorised to have access to the servient tenement to carry out repairs or improvements to the pipe and irrigation system which has been installed, or to install a new system. There are also issues concerning the modification or extinguishment of the easement under s 89 of the Conveyancing Act 1999 (NSW), or the creation of an easement pursuant to an order under s 88K of that Act. The resolution of those issues depends on the proper construction of the easement.

2 The easement was created by an instrument prepared under s 88B of the Conveyancing Act and is shown on deposited plan 843159, registered on 23 September 1994. The servient tenement is lot 2 in deposited plan 835130. The defendant was then, and remains, the registered proprietor of the servient tenement. The dominant tenement was lot 100, deposited plan 843159.

3 As at 23 September 1994, Lloyd Moffat Investments Pty Limited was the registered proprietor of the dominant tenement. It was the developer of that land which is now known as Fisherman’s Village. Fisherman’s Village is near Port Stephens.

4 The easement is in the shape of a narrow strip of land approximately 1 metre wide and 400 metres long from the northern boundary of lot 100 leading to a roughly rectangular block approximately 50 metres wide and 100 metres long. Set out at the end of these reasons is a sketch of the site of the easement taken from the relevant part of the plan of subdivision 843159.

5 One can infer from the site of the easement as shown on the plan that the long narrow strip of land is intended to carry the pipeline and the rectangular area is intended to be used for the irrigation of material carried through the pipe.

6 On 27 September 1994, that is, four days after the registration of the s 88B instrument and DP 843159, lot 100 in that plan was subdivided by the registration of DP 285220. That plan was a neighbourhood plan registered as a deposited plan under s 18 of the Community Land Development Act 1989 (NSW). DP 285220 showed the subdivision of land into neighbourhood property and forty-six individual lots. It can be inferred from the register that the easement was created in connection with the subdivision and intended development of lot 100 as a neighbourhood with shared property.

7 The plaintiff was established as a neighbourhood association on registration of the neighbourhood plan pursuant to s 25 of the Community Land Development Act.

8 Evidence was admitted without objection, and which was in any event relevant to issues in the case other than the construction of the easement, as to the intended purpose and the use of the easement up to 2004. There is a question as to how much, if any, of this evidence can be used to construe the easement (Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 81 ALJR 1887 at [5] and [37]-[44]; 239 ALR 75; Sertari Pty Limited v Nirimba Developments Pty Limited [2007] NSWCA 324 at [15]-[16]).

9 On 15 September 1994, the Environment Protection Authority forwarded to a Mr John Pope of Lloyd Moffat Investments Pty Limited a pollution control licence authorising the discharge of waste water (subject to conditions) from Fisherman’s Village at the authorised discharge point described as "irrigation area at lot 2 DP 835130 Moffat Road, Swan Bay". Subsequent approvals from Port Stephens Council (which was the responsible licensing authority from 1 July 1999) for the operation of the on-site sewage management system also identified the irrigation area at lot 2 DP 835130 as the authorised discharge point for waste water from the on-site sewage management system for Fisherman’s Village.

10 The village consists of two houses, forty cabins and a restaurant. The land is low-lying and is adjacent to water leading into Port Stephens. Sewage from the restaurant, houses and cabins is directed to three aerated waste water treatment systems, and smaller individual systems for the two houses. After aeration, water passes to a clarification tank where solids settle and fats float. The clarified water is pumped to stabilisation ponds. There are three such ponds. The waste matter is pumped between the three ponds to be held for a minimum of 21 days to reduce biochemical oxygen demand, suspended solids and faecal coliforms, through the actions of wind, sun and decay. The aerated waste water treatment systems and the ponds are on the plaintiff's land.

11 Until August 2004, water from the ponds was pumped along the pipes on the servient tenement to the spray irrigation area on the servient tenement and dispersed by spraying.

12 The evidence did not establish whether any work had been done on either the dominant or servient tenement to construct the sewage management system prior to the execution and registration of the s 88B instrument. A Mr Freeman deposed that, in 1994, irrigation lines had been laid upon the defendant's land connected to pipes and spray heads for dispersal of sewage from the plaintiff's property on the defendant's land. However, there was no evidence as to whether this was done before or after, or both before and after, 23 September 1994. Nor was there evidence as to whether construction of the holding ponds or the aerated waste water treatment systems had commenced by 23 September 1994.

13 The present dispute arose in the following circumstances. According to a decision of the Consumer Trader and Tenancy Tribunal dated 30 July 2004, which decision was tendered without objection, at the inaugural meeting of the plaintiff on 10 October 1994, the plaintiff entered into a services agreement with a company called Fisherman’s Village Management Pty Limited and it was appointed as the resort manager. That company was controlled by Mr Lloyd Moffat and his wife. The defendant is Mr Lloyd Moffat's father.

14 On 12 July 2001, the Tribunal appointed a Mr Darren Brown as managing agent for a 12-month period pursuant to s 85 of the Community Land Management Act 1989 (NSW).

15 Again, according to the Tribunal, on 13 February 2002, it was agreed at a meeting between Mr Brown and Mr and Mrs Moffat that Fisherman’s Village Management Pty Limited would be paid $12,000 per annum plus GST for the use of the sullage spray area on the defendant's land.

16 Pursuant to the Tribunal's decision of 30 July 2004, Medium Density Management Pty Limited was appointed as a new managing agent to perform all of the functions of the plaintiff Neighbourhood Association.

17 In finding that the management structure of the scheme was not operating satisfactorily and that a new managing agent should be appointed, the Tribunal found, inter alia, that:

“ Additionally, Mr Moffat's father owned the land used to spray the sullage from the sewerage system. Mr Moffat now charges the Neighbourhood Association $12,000 per annum for the right to use this land. The sewerage system at the scheme is designed in such a way and obtained Council approval on the basis that the association would have ongoing access to the sullage spray area. ”

18 In August 2004, the sprinkler heads, standpipes, and pickets, which secured the standpipes, of the irrigating system used to disperse the waste water to the designated irrigation area were removed. Mr Lloyd Moffat asserted that they were removed by vandals.

19 At or about the same time, the pumps in the holding pond were disconnected. The holding ponds were surrounded by a chain wire fence topped with barbed wire and a locked gate to which Lloyd Moffat had the key. On the spray area on the servient tenement a sign was erected saying "Private property - keep out - trespassers will be prosecuted".

20 Mr Leonard Robinson of Medium Density Management Pty Limited formed the view that the defendant did not then consent to the continued use of the easement to disperse waste water from the sewage treatment system. He has not attempted to have the sprinkler heads repaired or the system put back into operation until what he calls the plaintiff's right to drain sewage into the irrigation area is clarified.

21 Since August 2004 the plaintiff has used tankers to cart waste water from its land.

22 On 20 December 2004 the "Moffat family" wrote to the plaintiff to the following effect:

“ We write regarding our families (sic) land identified as Lot 2 in DP 835130 and the Section 88B easement registered on 23rd September 1994.
We note that you have been previously advised that your irrigation system has not been operational as the pipe line and spray equipment located on our land was vandalised approximately the first two weeks of August 2004.
Please be advised that a recent environmental assessment has been undertaken on the use of the land as to the suitability of the area for continued irrigation.
The preliminary investigations have revealed that the continued effluent disposal by way of irrigation on Lot 2 DP 835130 is environmentally unsustainable.
Therefore, please immediately discontinue the disposal of effluent on Lot 2 DP 835130 as we have been given an opinion that continued discharge may result in a beach (sic) of the Protection of the Environment Operations Act 1997.
Your immediate co operation is appreciated. ”

23 Notwithstanding that assertion, the plaintiff has continued to be licensed to dispose of waste water to the irrigation area. However, it has not sought to use the easement in the face of the defendant's opposition.

24 On 9 October 2005, the plaintiff, through its solicitor, asserted that the purpose of the easement was to permit the treatment and disposal of sewage generated within Fisherman’s Village. The solicitor stated that the terms of the easement were omitted from the instrument and asked the defendant to execute an instrument varying easement to provide:

“ The easement is varied by the incorporation in the instrument under Section 88B of the Conveyancing Act 1919 by which the easement was created, of Part 2 in the following terms:
PART 2
1. The owner of the lot benefited may without charge:
(a) drain sewage, sullage and other fluid wastes in pipes through each lot burdened, but only within the site of this easement,
(b) treat and dispose of sewage, sullage and other fluid wastes drained through those pipes, and for this purpose operate an on-site sewage management system subject to receipt of approval for such a system from Port Stephens Council, but only within the site of this easement, and
(c) do anything reasonably necessary for those purposes, including:

§ entering the lot burdened, and

§ taking anything onto the lot burdened, and

§ using any existing line of pipes and equipment, and

§ carrying out works, such as constructing, placing, repairing or maintaining pipes and equipment.

2. In exercising those powers, the owner of the lot benefited must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and
(c) cause as little damage is (sic) practicable to the lot burdened and any improvement on it, and
(d) restore the lot burdened as nearly as is practicable to its former condition, and
(e) make good any collateral damage. ”

25 The plaintiff's solicitor also accused Lloyd Moffat of having dismantled and disconnected the discharge pipes and required the defendant to repair them.

26 Lloyd Moffat denied having done so. He asserted that the spray heads had been vandalised and by implication denied responsibility for that occurrence. In the present proceeding the plaintiff does not charge the defendant, nor Lloyd Moffat, with being responsible for the removal of or vandalising the spray heads.

27 So far as it appears, there was no response to the request to execute the instrument varying the easement. Nor was there any denial as to the asserted purpose of the instrument.

28 The evidence demonstrates unequivocally that the subjective purpose of Lloyd Moffat Investments Pty Limited and the defendant when the s 88B instrument was executed was that the easement was to be used for the purpose of discharging effluent from the Fisherman’s Village. However, unless the plaintiff can assert a personal equity against the defendant, that is not to the point.

29 The plaintiff pleaded that the defendant is estopped from denying the existence of an easement to drain sewage and for the irrigation of such sewage. However, the plea of estoppel was not particularised or pursued at the hearing.

30 The plaintiff pleaded and the defendant admitted that the s 88B instrument was incomplete insofar as it failed to comply with s 88B(2)(d) of the Conveyancing Act by not setting forth the nature of the restrictions on the use of the land or positive covenants intended to be created benefiting or burdening the land set forth in the plan. However, it was not contended by either party that no valid easement had been created by the registered instrument. Nor, in my view, could it have been. The question is what the bare description of the easement as being for “pipeline and irrigation, 1 wide and variable”, together with the accompanying plan, meant.

31 If regard could be had to the licence issued by the Environment Protection Authority prior to the grant of the easement it would be crystal clear that the easement was for the purpose of disposing of effluent from Fisherman’s Village. I have concluded that authority which binds me precludes regard being had to that evidence on the question of construction of the easement.

32 In Westfield Management Ltd v Perpetual Trustee Co Ltd, the High Court had to construe a right of way the terms which were fully described (at [15]). It was in that context that the High Court emphasised that in construing an easement registered under the Real Property Act 1900 (NSW) (at [36]-[45]), indefeasibility requires that regard be had only to the register, and that the rules as to the admissibility of extrinsic evidence to construe contracts have no place in construing registered dealings (at [37]-[39]). However, the High Court cited Powell v Langdon (1944) 45 SR (NSW) 136 at 137 without disapproval. There, Roper J (as his Honour then was) was faced with the construction of a bare right of way. The High Court said (at [40]):

“ Subsequently, in Powell v Langdon Roper J accepted as applicable to the construction of a particular grant of a right of way (apparently over land under the RP Act [sic] ) a statement by Sir George Jessel MR in Cannon v Villars (1878) 8 Ch D 415. This was that the content of the bare grant of a right of way per se was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied. " (My emphasis)

33 Prior to this decision it was commonly accepted that even an easement granted under the Torrens system should be construed having regard to all material objective facts at the time of the grant (Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia, Butterworths, 2nd ed, 2000 at [6.7]; Butt P, Land Law, 5th ed at [1,693]-[1697]). Professor Butt said (at [1,696]):

“ The 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 infringes one of the cardinal principles of the Torrens system. But it is inevitable, if the parties' intentions at the time of the grant are to be gleaned. And so it now seems clear that, even in the case of Torrens title land, reference is permitted to material extraneous to the Register in order to clarify the parties' intentions at the time of grant of the easement. ”

34 Professor Butt cited Yip v Frolich (2004) 89 SASR 467 at 480 for this last proposition, being a decision of the Full Court of the Supreme Court of South Australia which in turn cited a series of first instance and intermediate appellate decisions.

35 No doubt these authorities must be taken to be overruled by Westfield Management Ltd v Perpetual Trustee Co Ltd in respect of an easement whose terms are fully described. But where there is a bare grant of a right such as in Powell v Langdon, and such as there is in this case, I would not myself have regarded the High Court's decision as precluding recourse to all of the objective matrix of facts bearing on the construction of the instrument.

36 In Cannon v Villars (1878) 8 Ch D 415 at 420, Sir George Jessel MR, (at 820), treated the physical state of land over which the right of way is given as a material circumstance in construing the extent of such a grant, but not as the only relevant material circumstance. This is reflected in what the High Court said in Westfield Management Ltd v Perpetual Trustee Co. Ltd at [40] quoted above.

37 The High Court did not say why different principles might apply to the construction of a bare grant. The reason may be one of necessity. In the case of a bare grant, if ambiguities cannot be resolved by recourse only to the text of the registered instrument and plan, the person proposing to buy, or to deal with, registered land is necessarily thrown back to an examination of the extrinsic circumstances to see the extent of the rights which have been conferred on the owner of the dominant tenement.

38 In Sertari Pty Limited v Nirimba Developments Pty Limited, Handley AJA, with whom Tobias and McColl JA agreed, said (at 130 [13]-[16]):

“ [13] Windeyer J held that the words of the grant were clear and since it was a right for all purposes and at all times all persons connected with the proposed residential development were entitled to use the right of carriageway. In these circumstances the question of excessive user, which was essentially one of construction, could not arise.

[14] The appellant relied on evidence of extrinsic circumstances, including the physical characteristics of the servient and dominant tenements, and the activities being conducted on the dominant tenement at the time of the grant, to support a narrower construction. In particular it relied on the genesis and purpose of the grant evidenced in the report to the Council of its chief town planner of 4 July 1989 which it acted upon when granting the development consent of 18 August that year.

[15] Windeyer J rejected the town planner's report and the terms of the development consent as irrelevant to the construction of the grant. He also held that the physical characteristics of the tenements and the activities being conducted on the dominant tenement at the time of the grant could not cut down its plain words. The appellant again sought to rely on this extrinsic material but the decision in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 has since confirmed that extrinsic material apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900: paras [5], [37]–[41].

[16] This Court is therefore limited to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the tenements. These provide no basis for reading down the clear and unqualified words of the grant. The grant was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the dominant tenement with which the right was capable of enjoyment, and persons authorised by them. ” (My emphasis.)

39 This was said in the context of the construction of a right of carriageway whose terms were fully described (at [11]). The Court of Appeal did not hold that the extrinsic circumstances in that case could not be considered because, even in the case of construing a contract, extrinsic circumstances cannot be relied on to render ambiguous what is otherwise clear (Optus Vision Pty Limited v Australian Rugby Football League Ltd [2004] NSWCA 61 at [25]-[32] and [33]).

40 It is, with respect, doubtful whether Westfield Management Ltd v Perpetual Trustee Co Ltd justifies the statement in the terms described in paras [15] and [16]; a fortiori if applied to the construction of the type of grant considered in Powell v Langdon and in this case. However, the statement of law is unequivocal and formed the ratio of the Court's decision. The statement of law was not confined to the construction of instruments which set out in detail the terms of rights granted.

41 I conclude that the statement of principle is binding on me, and accordingly, that the only matters to which it is legitimate to have regard in construing the instrument are the folio identifiers, the registered instrument, the deposited plans and the physical characteristics of the tenements. As I have said, in this case there was no evidence as to the physical characteristics of the tenements at the time of the grant of easement which assists in that process.

42 Although the issue of the licence by the Environment Protection Authority is as much a matter of objective fact as the physical characteristics of the land, and would be as readily ascertainable by a purchaser of the land as the physical characteristics of the land at the time of the grant (or more so), I do not consider that I am entitled to have regard to the licence in construing the instrument.

43 When regard is had only to the registered s 88B instrument itself and the deposited plan 843153, I would infer that what could be piped and irrigated onto the defendant's land within the area of the easement includes water; whether potable water, or waste water being effluent from a sewage system which might be constructed on the dominant tenement.

44 Counsel for the defendant submitted that the easement did not extend to the irrigation of noxious waste which would include sewage. Counsel correctly pointed out that the draftsman did not use the common expression "easement of drainage of sewage" found in s 181A and which was given a defined meaning by schedule 8 of the Conveyancing Act. However, and understandably, counsel could point to no plausible purpose for the grant of an easement for pipeline and irrigation which authorised the owner of the dominant tenement to irrigate approximately 4,924 square metres of the defendant's land, unless the easement authorised the irrigation with waste water which the occupier of the dominant tenement wished to dispose of. In other words, and having regard only to the registered instrument and plan, one can see that there could be no benefit to the dominant tenement in irrigating the servient tenement, unless it were to be irrigated with fluids the owner of the dominant tenement wished to dispose of. No doubt the owner of the dominant tenement would be required to comply with the environmental laws relating to the disposal of fluids and to use the easement reasonably. However, I see no basis for construing the instrument as being limited to irrigation with pure or potable water, as distinct from waste water. The physical boundaries of the easement showing the large irrigation area hundreds of metres away from the dominant tenement suggests the contrary.

45 Counsel also submitted that the spraying or other irrigation of waste water would constitute a nuisance. Counsel submitted that the easement on its proper construction would not authorise the commission of a nuisance. Counsel relied on Pwllbach Colliery Company Ltd v Woodman [1915] AC 634 where the House of Lords held that a grant of a lease authorising use of premises as a miner did not authorise a colliery company’s operating a screening apparatus for coal in such a way as to create a nuisance through the depositing of coal dust on an adjoining butcher's meat and sausages. It was essential to that conclusion that the creation of a nuisance was not a necessary incident of the exercise of the right granted, and that the use of the coal screen which created coal dust was not within the contemplation of the parties when the lease was granted (at 639, 641, 646, 648, 649 and 652).

46 The evidence in this case does not establish that use of the easement to irrigate waste water on the defendant's land creates, or would create, a nuisance. The land in question is bushland. In any event, given that the easement, in my view, extends to the irrigation of waste water, if a nuisance were created as a necessary incident to the use of the easement, that use would nonetheless be authorised. If there were an unreasonable use of the easement, for example, a use which consistently and substantially breached licence requirements, then that may well constitute a nuisance, but that is a different question. Such a possibility does not affect the construction of the instrument.

47 I infer that the reason the draftsman did not use the expression "easement for drainage of sewage" is that the parties did not intend that "sewage" in the sense of untreated waste matter which would pass into a sewer if the area were sewered, should be piped and irrigated onto the defendant's land. But it does not follow from that conclusion that the parties should be taken to have intended that waste water, being the by-product of the treatment of sewage, could not be irrigated onto the defendant's land. No other possible purpose of the easement was identified. This conclusion is reinforced by the registration four days later of DP 285220 as a neighbourhood plan. It does no violence to the principles underlying the Torrens system to have regard to that instrument. It is the lots in that plan which are entitled to the benefit of the easement.

48 It would be appropriate to declare pursuant to s 75 of the Supreme Court Act 1970 (NSW), or in the Court's inherent jurisdiction, that the plaintiff is entitled to use the easement to pipe and irrigate waste water, that is to say, effluent which is the product of the sewage treatment system on the plaintiff's land. The easement also carries with it by implication all ancillary rights necessary for its exercise and enjoyment. These include the right of the plaintiff through its licensees to enter the site of the easement to repair or to improve or replace the spray irrigation system previously installed.

49 There was expert evidence that a subsurface drip irrigation system would be a preferable mode of irrigation of effluent. That would need Council approval. It suffices to say that such a system, as well as a system of spray irrigation, would be authorised by the easement. I did not understand the defendant to contend to the contrary if it were held that the easement extends to the irrigation of effluent.

50 Such declarations, unless set aside, would bind the present parties. Counsel for the plaintiff submitted that an order could and should be made under s 89(1)(c) of the Conveyancing Act modifying the existing easement so as expressly to provide that it authorised the piping and irrigation of effluent onto the site of the easement and authorised the owners of the land benefited to do anything reasonably necessary for that purpose, including entering the lot burdened, using existing lines of pipe and equipment, carrying out works such as constructing, replacing, repairing or maintaining pipes and equipment, and further providing for the manner of exercise of those powers.

51 Section 89 of the Conveyancing Act provides:

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

(1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied:
(a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or
(b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part,
(b1) in the case of an obligation:
(i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation’s being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or
(ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or
(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation.
(2) Where any proceedings are instituted to enforce an easement, profit à prendre, restriction or obligation, or to enforce any rights arising out of a breach of any restriction or obligation, any person against whom the proceedings are instituted may in such proceedings apply to the Court for an order under this section.
(3) The Court may on the application of any person interested make an order declaring whether or not in any particular case any land is affected by an easement, profit à prendre, restriction or obligation, and the nature and extent thereof, and whether the same is enforceable, and if so by whom.
(4) Notice of any application made under this section shall, if the Court so directs, be given to the council of the area (within the meaning of the Local Government Act 1993) in which the land is situated, and to such other persons and in such manner, whether by advertisement or otherwise, as may be prescribed by rules of Court or as the Court may order.
(5) An order under this section shall, when registered as in this section provided, be binding on all persons, whether of full age or capacity or not, then entitled or thereafter becoming entitled to the easement or profit à prendre, or interested in enforcing the restriction or obligation and whether such persons are parties to the proceedings or have been served with notice or not.
(6) This section applies to easements, profits à prendre and restrictions existing at the commencement of the Conveyancing (Amendment) Act 1930, or coming into existence after such commencement.
(7) An order under this section affecting land not under the provisions of the Real Property Act 1900 may be registered in the General Register of Deeds. No such order shall release or bind any land until it is so registered.
(8) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General shall, on application made in the form approved under that Act, make all necessary recordings in the Register kept under that Act for giving effect to the order.

For the purposes of this subsection, a grant, certificate of title or duplicate registered dealing that is not in the possession of the Registrar-General shall be deemed to be wrongfully retained within the meaning of section 136 of the Real Property Act 1900.

(9) In the case of land which is not under the provisions of the Real Property Act 1900, a memorandum of such order shall be endorsed on such of the instruments of title as the Court directs. ”

52 It was submitted that such an easement as "modified" would bind subsequent proprietors who could not later contest the correctness of the declaration. It was also submitted that the need for "modification" arose because the section 88B instrument was incomplete. It was submitted that such a "modification" was within the power conferred by s 89(1)(c). I do not agree. Such an order, if made, would clarify the nature and effect of the easement granted on 23 September 1994. It would not modify it.

53 In Markos v OR Autor Pty Limited [2007] NSWSC 810; (2007) NSW ConvR 56-190, Austin J considered the meaning of "modify" in s 89(1)(c). His Honour concluded that the Court's power under that provision was confined to limiting or restraining rights given under the easement.

54 Whilst not necessarily accepting all of his Honour's reasoning, I agree with that conclusion. The conclusion is reinforced by s 89(5) which provides for an order under the section, once registered, to bind all persons who are then, or thereafter become, entitled to the easement, but does not provide for the order to be binding on persons who may thereafter become subject to the burden of the easement. That provision also indicates, as Austin J held, that s 89 is not intended to be used for the benefit of the owner of the dominant tenement. It is unnecessary to consider other difficulties in the suggested engagement of s 89(1)(c).

55 It was also submitted that a declaration could be made under s 89(3) as to the nature and extent of the easement. In my view, it is of no moment whether the appropriate declaration is made under s 89(3), or under s 75 of the Supreme Court Act, or in the Court's inherent jurisdiction. However, in my view, if a declaration (or more accurately an order) were made under s 89(3), it would be incumbent on the Court to declare the nature and extent of the easement, and not merely to make a declaration as to the parties' rights in relation to the dispute that has emerged in relation to the interpretation of the easement. There could be merit in making such an order under s 89(3) if its effect would be to bind not only the present parties but their successors in title.

56 Counsel for the plaintiff submitted that that would not be the effect of an order declaring matters under s 89(3). In my view, an order under s 89(3) would be "an order under this section" within the meaning of s 89(5), but it would not bind successors in title to the defendant. Accordingly, I do not consider that an order should be made either under s 89(1)(c) or under s 89(3).

57 The plaintiff also sought an order pursuant to s 88K imposing an easement over the land. Given my conclusion that the plaintiff has an easement for the piping and irrigation of effluent, there is no occasion for the creation of a new easement for that same purpose pursuant to s 88K. In any event, even if I were wrong on the construction of the present easement, I would not be satisfied that the creation of a new easement pursuant to s 88K was "reasonably necessary for the effective use or development of other land that would have the benefit of the easement".

58 The effect of the evidence of the experts retained by both parties was that in their view the preferred method of disposing of effluent was by subsurface drip irrigation onto land within the boundaries of the village, such as an area described as a golf course and other landscaped areas. Such a course would require the approval of Council, but it has not been demonstrated that the existing easement is necessary, or even reasonably necessary, for the effective use or development of the land. That is not to say that the existing easement does not already exist and provides a means of disposing of the effluent.

59 By a cross-claim, the defendant sought an order extinguishing the easement on the ground that it was obsolete. It became clear in the course of submissions that that claim depended on the conclusion that the existing easement did not authorise the piping and irrigation of effluent. If the existing easement only permitted the piping and irrigation of potable water, then, as Mr Robinson acknowledged, it would serve no useful purpose. However, given my conclusion that the easement is not so limited, counsel rightly accepted that it could not be described as obsolete.

60 The plaintiff sought an injunction restraining the defendant from interfering with its enjoyment of the easement. As I have said, the plaintiff does not charge the defendant or anyone acting on his direction or with his knowledge or sufferance with vandalising the spray heads in 2004. However, there was unchallenged evidence that the pumps in the holding pond were disconnected at about the same time as the spray heads were vandalised and that the holding ponds were fenced and gated and that Mr Lloyd Moffat held the key to the gate. Also at about the same time the sign warning trespassers to keep out was erected on the servient tenement. The construction of the fence around the pond was not work done on the servient tenement but on the plaintiff's own land. Nonetheless, it clearly demonstrated the intention of at least Mr Lloyd Moffat that the easement as it had been used up to then, namely for the disposal of effluent, should not continue to be so used. I infer he was acting with the approval of the defendant. A subsequent letter objecting to the continued use of the easement because of environmental concerns was signed for the Moffat family. Enough has been demonstrated to demonstrate a proper ground for apprehension that unless restrained, the defendant would in the future seek to prevent the plaintiff from using the easement for the dispersal of effluent.

61 Subject to hearing counsel as to the precise form of the declarations and orders to be made, I propose to make a declaration that the plaintiff is entitled to use the easement to pipe and irrigate effluent from its sewage treatment system onto the defendant's land within the site of the easement and also to declare that the easement carries with it by implication all ancillary rights reasonably necessary for its exercise and enjoyment, including the right of the plaintiff by itself or persons authorised by it to enter the site of the easement to repair, improve or replace the spray irrigation system previously installed, or to install a subsurface drip irrigation system. Also subject to any further submissions from counsel as to the form of the injunction, I propose to make an order in the terms sought restraining the defendant by himself, his employees or agents from interfering in any way with the plaintiff's use and enjoyment of the easement.

62 I will hear the parties on costs.