| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : QUINLIVAN -v- NORRIS [2013] WADC 178 CORAM : GOETZE DCJ HEARD : 21 OCTOBER 2013 DELIVERED : 15 NOVEMBER 2013 FILE NO/S : APP 56 of 2013 BETWEEN : LYNETTE PATRICIA QUINLIVAN Appellant
AND
CARMEL PATRICIA NORRIS
MARK STEPHEN NORRIS
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE BOON File No : PER GCLM 1415 of 2012 Catchwords: Appeal from Magistrates Court - Alleged easement - Trespass - Damages - Turns on own facts
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Legislation: Property Law Act 1969
Prescription Act 1832 (Imp) Result: Appeal dismissed
Representation: Counsel:
Appellant : Mr J G Kitto
Respondents : Mr D J Jackson
Solicitors:
Appellant : Kitto & Kitto
Respondents : Jonathan Eastoe
Case(s) referred to in judgment(s):
Brownsea v National Trustees Executive and Agency Co of Australasia Ltd [1959] VR 243
Gallagher v Rainbow (1984) 179 CLR 624
Kitching v Phillips (2002) 278 ALR 551 [58]; [2011] WASCA 19
Midland Brick Co Pty Ltd v Welsh [2006] WASC 122
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
Re Simeon [1937] Ch 525
Westminster v Guild [1985] 1 QB 688
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Introduction 1 In 1986, the appellant Ms Quinlivan purchased land at 4 Ferndale Street, Floreat. By agreement with her then next door neighbours, Mr and Mrs J P Keys at 6 Ferndale Street, Ms Quinlivan used water from an old well and pump situated almost entirely within her neighbours' property. The well just straddled the boundary of their property onto Ms Quinlivan's land. 2 Ms Quinlivan is a solicitor. In 1997, she prepared a deed of covenant to regulate the shared use of the well and pump. The deed was executed by Mr and Mrs Keys and Ms Quinlivan, who lodged a subject to claim caveat over 6 Ferndale Street to protect her interests arising from the deed. 3 In 2002, Mr and Mrs Keys sold 6 Ferndale Street to the respondents, Mr and Mrs M Norris. Ms Quinlivan's caveat remained registered against 6 Ferndale Street after the registration of the transfer of that property from Mr and Mrs Keys to Mr and Mrs Norris. Subsequently, there was difficulty in the relationship between Ms Quinlivan and Mr and Mrs Norris. 4 In 2008, Ms Quinlivan incurred costs re-boring the well and renewing the electrical system relating to its pump. Further in 2011, she paid for a new pump. Mr and Mrs Norris disconnected power to that pump and they ceased using the well. They arranged for another bore to be installed on their property for their own use. Ms Quinlivan then connected her own power to the well and she upgraded the power supply, all at her own cost. 5 Ms Quinlivan commenced proceedings against Mr and Mrs Norris in the Magistrates Court claiming that she was the 'shared owner' of the well. She sought reimbursement of her costs referred to above, totalling $4,500 plus interest. She also claimed that in 2011, Mr and Mrs Norris abandoned their interest in the well and that they were estopped from preventing her use of the well.
The issues at trial 6 Before the hearing of evidence at trial began, her Honour Magistrate Boon indicated to the parties that the issues at trial, relevant to this appeal, were: (Page 4)
(1) whether Ms Quinlivan had a right to use the well; (2) if so: (3) whether or not the deed of covenant between Ms Quinlivan and Mr and Mrs Keys was binding upon Mr and Mrs Norris. 7 This appears to have been accepted by Ms Quinlivan.
The deed 8 Before proceeding further, it is necessary to consider the terms of the deed. 9 The deed was made between Ms Quinlivan and her personal representatives and assigns of the one part and Mr and Mrs Keys and their personal representatives and assigns of the other part. 10 The recitals in the deed included the following: (1) The parties to it were neighbours. (2) They had agreed to share a private water supply to be used by both parties. (3) The cost of the bore, motor equipment and piping had been contributed to by previous registered proprietors of their respective properties in equal shares. 11 The covenants in the deed included the following: (1) The well could be used by the parties. (2) The well was to be maintained at the cost of the parties in equal shares. (3) Neither party to the deed would transfer their property without first requiring the purchaser of their property to enter into a deed with the other party to observe and perform the covenants of the deed. (4) The deed and the right to use water from the well could be determined by either party upon giving 12 months written notice, (Page 5)
subject to payment to the other party of a sum equivalent to half the value of the well. (5) Each party could enter upon the other's property to generally exercise rights under the deed, including repairs and maintenance. (6) Both parties were entitled to register caveats to protect their interests under the deed and upon termination of the deed, any caveat would be withdrawn. (7) Any dispute under the deed was to be referred to arbitration.
Ms Quinlivan's evidence 12 Ms Quinlivan asserted that pursuant to certain covenants within the deed and the Property Law Act, she had a right to continue using the well even though Mr and Mrs Norris did not wish her to do so. She claimed to be a half legal owner of the well. The parties were to maintain the well. If Mr and Mrs Norris were going to cease using it then, she required compensation as provided by the deed. Hence, her claim. 13 Ms Quinlivan accepted that Mr and Mrs Norris were not parties to the deed. However, in her evidence, Ms Quinlivan said that she had a right to draw water from the well pursuant to the deed which, in certain respects, was binding upon Mr and Mrs Norris. Ms Quinlivan's reason for this was that Mr and Mrs Norris purchased 6 Ferndale Street with notice of the caveat and the deed. The settlement agents who acted for each of Mr and Mrs Keys and for Mr and Mrs Norris on the sale of 6 Ferndale Street contacted Ms Quinlivan before settlement requesting she withdraw her caveat but, she refused to do so. Accordingly, Ms Quinlivan's rights under the deed continued permitting her to draw water from the well after Mr and Mrs Norris became the registered proprietors of 6 Ferndale Street. 14 Ms Quinlivan claimed Mr and Mrs Norris purchased 6 Ferndale Street with the knowledge that the deed operated to create restrictive covenants over the property. Ms Quinlivan referred the learned magistrate to s 45(3) of the Property Law Act 1969 which relevantly provides as follows: 45. Covenants for title implied (3) In every conveyance subject to an encumbrance, there shall be implied a covenant by the person to whom the property is conveyed with the person making the conveyance, to pay the moneys or perform the obligations (Page 6)
secured by the encumbrance, and to perform and observe the covenants and provisions of the encumbrance and to indemnify and keep indemnified the person making the conveyance in respect of all such moneys, obligations, covenants and provisions. 15 Ms Quinlivan also claimed that by reason of s 47(1) and s 47(2) of the Property Law Act, certain covenants within the deed related to property law rights and were deemed to have been made with Mr and Mrs Norris as successors in title to Mr and Mrs Keys. It was only those property law rights in the deed, she said, which were binding upon Mr and Mrs Norris. Those non-property law rights in the deed, such as the rights to terminate the deed and arbitration, did not pass to Mr and Mrs Norris. They were merely personal rights between Mr and Mrs Keys and Ms Quinlivan. 16 Relevantly, s 47 and s 48 of the Property Law Act provide as follows: 47. Benefits of covenants relating to land 48. Burden of covenants relating to land (Page 7)
17 Ms Quinlivan believed the well to have been installed 30 – 40 years previously. Ms Quinlivan agreed that she had said to a Western Power inspector that she had a caveat protecting her interest under the deed, and this was 'like an easement'.
The magistrate's reasons 18 The learned magistrate acknowledged that prior to the transfer of the subject property from Mr and Mrs Keys to Mr and Mrs Norris that Ms Quinlivan's rights arose from the deed. However, she found that by reason of the rules of privity of contract, the deed did not automatically transfer to Mr and Mrs Norris. 19 The learned magistrate correctly found that s 45(3) of the Property Law Act did not assist Ms Quinlivan at all in her action against Mr and Mrs Norris. 20 Section 45(3) refers to a conveyance subject to an encumbrance. In such a conveyance, there is an implied covenant by the person to whom the property was conveyed with the person who made the conveyance to observe the encumbrance over the conveyed property and to provide an indemnity in respect thereof to the person making the conveyance. 21 Assuming, for the purpose of the argument, that the deed created an encumbrance over the subject property, any implied covenant under s 45(3) on the part of Mr and Mrs Norris was with Mr and Mrs Keys to pay money or perform and observe the obligations, covenants and provisions secured by that encumbrance and to indemnify Mr and Mrs Keys in respect thereof. Section 45(3) says nothing of the relationship between Ms Quinlivan and Mr and Mrs Norris. Hence, the learned magistrate found that s 45(3) is not available to Ms Quinlivan against Mr and Mrs Norris. 22 The learned magistrate also correctly observed that Ms Quinlivan wrongly relied upon s 45(3) to create a restrictive covenant on the property of Mr and Mrs Norris because they had purchased their property from Mr and Mrs Keys subject to caveat with full knowledge of the deed. Her Honour referred to the decision of Hasluck J in Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 in which he considered the requirements for restrictive covenants. Hasluck J said that a covenant in a deed of the kind with which this appeal is concerned: [150] … cannot be enforced by or between successors to the original contracting parties unless it runs with the land; that is, unless it possesses a proprietary as distinct from a mere contractual nature. (Page 8)
[151] … if the covenants in question were intended to run with the land and to bind the defendant's successors in title then, being enforceable in equity, the covenants would create an estate or interest in the subject land … . … [153] A restrictive covenant is a promise restricting land use, given for the benefit of other land, the benefit and burden of which will run in equity provided that certain conditions are satisfied. … A restrictive covenant creates an interest in land. [154] the burden of the covenant (must be) intended to run with the land. … [161] The conventional view of s 47 [of the Property Law Act] is that it has no relevance to the issue of express annexation of a benefit to the retained land but simply precludes the need to mention the covenantee's successors in title, if a covenant is annexed: … . As to s 48, it has been suggested that this section does not overcome the common law rules concerning privity in that if a covenant cannot be made to bind successors in title by express agreement it cannot do so any the more where by force of this statutory provision it is merely deemed to be made on behalf of the covenantor and his successors in title. In other words, it is no more than a statutory shorthand provision intended to make it clear that a covenantor remains contractually liable for the acts or defaults of his successors. … [164] The primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. The whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must, if possible, be construed so as to render them more harmonious one with another. If the words used are unambiguous the Court must give effect to them, notwithstanding that the result may appear unreasonable, and notwithstanding that it may be suspected that the parties intended something different. The Court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109. 23 The learned magistrate then applied these observations to the facts as she found them to be and was correctly satisfied on the balance of (Page 9)
probabilities that the covenant in the deed giving Ms Quinlivan the right to draw water from the well was not a restrictive covenant. She said that: It appears to me that the nature of Ms Quinlivan's rights under the deed does not sit comfortably within the law relating to restrictive covenants. The rights under the deed do not, in my view, amount to rights restricting the use of the land by the owners of No 6. The right is to draw water from an old well, which had a finite life span, and does not seem to me to be in the nature of a proprietary right. 24 Further, the learned magistrate correctly identified that the rights Ms Quinlivan had under the deed were purely contractual in nature. The learned magistrate said: The deed itself shows an intention for the agreement to last as long as it suited both parties, and for there to be a payment of compensation amounting to half the value of the well and bore upon determination of the agreement. The agreement indicated the intention was to use the well by agreement and cooperation, and this situation clearly became unworkable sometime ago. I find the registration of the caveat did not create a restrictive covenant. 25 These passages from her Honour's reasons include a clear reference to the fact that the well had a finite life span and that the deed was able to be terminated by either party. Hence the contractual nature of the rights under the deed which did not amount to restrictive covenants. 26 The deed had included a right to enter the other property to conduct repairs and maintenance upon agreement but, that did not give Ms Quinlivan the right to completely re-bore and change the well and to connect completely different equipment to it against the wishes of Mr and Mrs Norris, who were the legal owners of the property on which it was situated.
Substituted grounds of appeal 27 On 11 October 2013, Ms Quinlivan's solicitors filed substituted grounds of appeal as follows: (Page 10)
appellant, as found by the learned magistrate, is not capable of extinguishing that right, whether at law or in equity (sic). 28 Effectively, Ms Quinlivan appeals that the learned magistrate failed to find that her right under the deed to draw water from the well was an easement created by that deed for the benefit of her land. That easement ran with the land. Any misconduct by Ms Quinlivan did not extinguish that easement.
The deed and the caveat 29 Counsel for Ms Quinlivan expressly conceded that the deed was not binding upon Mr and Mrs Norris. He was correct to do so by reason of the rules of privity of contract. 30 The deed defined Mr and Mrs Keys as including only their personal representatives and assigns. Mr and Mrs Norris are not the personal representatives of Mr and Mrs Keys. There was no deed of assignment of the rights and obligations under the deed from Mr and Mrs Keys to Mr and Mrs Norris. 31 The covenants in the deed were enforceable by Ms Quinlivan against Mr and Mrs Keys whilst they were the registered proprietors of 6 Ferndale Street. 32 By the deed, Mr and Mrs Keys covenanted with Ms Quinlivan that they would not transfer, sell or agree to sell any interest in 6 Ferndale Street without first requiring Mr and Mrs Norris to execute a deed covenanting with Ms Quinlivan to be bound by and to observe and perform the various covenants and conditions of the deed. Mr and Mrs Keys may have breached that covenant. Ms Quinlivan may well have taken action against Mr and Mrs Keys for any such breach. It is not necessary to decide such issue in this appeal. However, the fact is that Mr and Mrs Norris did not execute a deed with Ms Quinlivan to bind themselves as Mr and Mrs Keys had done. 33 The covenants in the deed are not enforceable by Ms Quinlivan against Mr and Mrs Norris as successors in title to Mr and Mrs Keys as original parties to the deed unless the covenants run with the land by reason of those covenants being in respect of a proprietary interest in land and not being merely contractual in nature or personal to the parties to the deed. (Page 11)
34 This therefore raises the issue of whether or not the covenants in the deed, or any of them, ran with the land. My finding is that none of those covenants in the deed ran with the land. 35 The deed was able to be terminated in its entirety by 12 months notice in writing by either party to it. This in itself shows that the covenants under the deed were contractual in nature and merely personal to the parties to the deed. The covenants were only in place between the parties to the deed until such time as one party or the other terminated the deed. The covenants were not intended to, and they did not, run with the land or relate to any land within the meaning of s 47 and s 48 of the Property Law Act. The covenants were therefore not proprietary in nature. They do not bind Mr and Mrs Norris. 36 If the covenants in the deed do not bind successors in title like Mr and Mrs Norris then, s 47 and s 48 of the Property Law Act cannot assist Ms Quinlivan because these provisions only concern covenants 'relating to any land'. 37 In other words, the express reservation in the deed to terminate the right to draw water from the well upon 12 months written notice by either party shows an intention by the parties to not have created an easement by deed because if they had so intended to create an easement then, one party to the deed would not have been able to terminate that deed by unilateral notice to the other and perhaps to do so against the wishes of the other party. From Ms Quinlivan's view point, her right to draw water was not an easement created by deed because the deed enabled Mr and Mrs Keys, as the owners of the would be servient tenement, to extinguish such right by giving 12 months notice of termination to Ms Quinlivan, as the owner of the would be dominant tenement. 38 In Brownsea v National Trustees Executive and Agency Co of Australasia Ltd [1959] VR 243, 244, Monahan J found that if an easement is to arise out of contract, there must be consensus between the parties that the qualities to be impressed upon the dominant and servient tenements shall be permanent in their nature; in other words, a right in rem is to arise and not a right in personam. A right in rem is a right which attaches to the land itself and it therefore runs with the land, whereas a right in personam is merely a right personal to the holder of that right. An easement is no mere personal right. It is attached to the dominant land for the benefit of that land: Gallagher v Rainbow (1984) 179 CLR 624, 633. (Page 12)
39 Given the termination clause in the deed, the parties did not contemplate any permanence to the rights and obligations in the deed. They undertook to share in the maintenance and repair of the then existing well and equipment, not to share in the costs of replacing it. Even repairs were only to be undertaken if the parties agreed, or in default of agreement, as determined by arbitration. The parties must be taken to have contemplated that if they agreed, or an arbitrator determined, that the repair of the well and equipment was not reasonable, it would fall into disuse. 40 The deed contained no obligation to completely refurbish or replace the well. There was no provision in the deed to purchase new equipment. Rather, the right was to draw water from an old well which had a finite lifespan as found by the learned magistrate. It was subject to termination by notice. That right was therefore merely personal and not proprietary in nature. Ms Quinlivan did not have proprietary rights under the deed. The learned magistrate was correct to find that the rights by deed to draw water and enter Mr and Mrs Keys' property for maintenance purposes did not restrict the use of their property by Mr and Mrs Keys. 41 Ms Quinlivan lodged a subject to claim caveat against 6 Ferndale Street protecting her interests under the deed. In that caveat, she identified the nature of her interest 'As Licensee' pursuant to the deed. She did not then claim the benefit of an easement or a restrictive covenant. 42 The mere agreement to lodge a caveat cannot, without more, be effective to create an interest in land – Midland Brick v Welsh [224]. 43 Further, the deed provided that upon its termination, any caveat lodged over the other party's property and based upon the deed should be withdrawn. 44 By reason of the above findings, the appeal should be dismissed. 45 However, Mr J G Kitto, as counsel for Ms Quinlivan, also sought to argue that there was an easement of common intention for Ms Quinlivan to access water from the property of Mr and Mrs Norris. 46 Mr D J Jackson, as counsel for Mr and Mrs Norris, indicated that he would oppose any amendment to the substituted grounds of appeal. Mr Kitto did not seek to further amend. The decision in this appeal must therefore be based on the substituted grounds of appeal. (Page 13)
47 However, given the history of this matter, it is appropriate to note why there was no easement of common intention. Before turning to this, it is appropriate to consider easements more generally.
Easements 48 In Charles Edward Gale, 'Gale on Easements', (Sweet & Maxwell) 16th ed, the learned authors state that: An easement was defined by Lord Esher M.R. in Metropolitan Railway v Fowler [1892] 1 QB 165, 171 as 'some right which a person has over land which is not his own', but this definition lacks precision, as not every right which one has over another's land is necessarily an easement, and perhaps no precise definition is possible. The question of easement or no easement usually arises where (1) a right has been granted and (a) the allegedly dominant tenement or the allegedly sevient tenement has since changed hands or (b) the grantee of the right seeks to restrain obstruction by a stranger to the allegedly servient tenement; or (2) a 'right' long enjoyed is alleged to have been acquired, by prescription, or lost grant, as an easement. In such cases it is safer to try to discover the essential characteristics of an easement, and see whether the right in question has them, than to rely on some pretended definition which may or may not be wholly accurate. 49 Easements must originate in a grant express or implied or presumed. However no presumption of grant is required for the purposes of s 3 of the Prescription Act 1832. 50 Certainly, if there has been such a grant then, the necessary characteristics of an easement must exist ie: 1. there is a dominant and servient tenement; 2. the easement must accommodate the dominant tenement; 3. the dominant and servient tenement owners must be different persons; and 4. the alleged subject matter of the grant must be capable of forming the subject matter of a grant. 51 The right to access water from a neighbouring property can amount to an easement – Re Simeon [1937] Ch 525, 537. 52 The grant of an easement also confers the grant of such ancillary rights as are reasonably necessary to exercise or enjoy the easement – Duke of Westminster v Guild [1985] 1 QB 688 following Pwllbach (Page 14)
Colliery Co Ltd v Woodman [1915] AC 634, 646. This will include a right of repair. 53 In Pwllbach, Lord Parker of Waddington said at page 646: There are two classes of cases in which an easement can be granted by implication. The first is where the implication arises because the right in question is necessary for the enjoyment for some other right expressly granted. If there is something ancillary to that right then, it may be implied. 54 This does not assist Ms Quinlivan because there was no grant of easement from which a disputed ancillary right is sought to be implied. 55 Lord Parker also said: The second class of cases in which easements may impliedly be created depends not on the terms of the grant itself but, upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. 56 Again, this does not assist Mr Quinlivan because there was no grant of real property.
The submissions as to easement by mutual intention 57 First, Ms Quinlivan's evidence was that the well had been 'installed 30 - 40 years ago'. The deed recites that the cost of sinking and equipping the well 'was contributed to by previous registered proprietors … in equal shares'. It was not suggested by counsel for Ms Quinlivan that the 'right' of easement was acquired by prescription or the doctrine lost modern grant. 58 Secondly, as noted above, it was conceded by Mr Kitto that the deed is not binding on Mr and Mrs Norris. The deed is not the grant of the easement. In fact, the existence of the deed is inconsistent with any suggested easement prior to the execution of the deed: Kitching v Phillips (2002) 278 ALR 551 [58]; [2011] WASCA 19. If there had been an easement then, it would have been unnecessary to enter into the deed. 59 The issue then is whether the alleged easement has been created by common intention. (Page 15)
60 Mr Kitto submitted that an easement by way of common intention to draw water from the well arose 'out of conduct'. However, even assuming there was such an intention to draw water, that in itself is not the grant or creation of an easement. Such an intention is equally consistent with a mere licence to draw water. 61 Further, the conduct of the parties was not explored on appeal but, to the extent it was at trial, it has to be said that the conduct of Mr and Mrs Norris objecting to Ms Quinlivan's attempt to draw water from the well shows there was no easement by common intention. There was no meeting of the minds. There is no, or no sufficient, conduct since Mr and Mrs Norris purchased 6 Ferndale Street to amount to an easement. 62 Mr Kitto also said, in essence, that the easement is a non-possessory right which entitled Ms Quinlivan to exercise certain rights over land held by Mr and Mrs Keys. Having conceded that the deed was not binding on Mr and Mrs Norris, Mr Kitto submitted that there was not only a right by deed to draw water but, there was also a right by deed to enter upon the land of the other party for maintenance and this resulted in an easement. 63 Mr Kitto submitted that the right to enter the land was a right restricting the use of the land by Mr and Mrs Keys. He said that the finding by the learned magistrate that there was not a restrictive covenant must therefore be an error of law because the right to enter land restricts the use of the land. 64 However, these submissions must be rejected. The covenants under the deed permitting the sharing of water and the right of entry onto Mr and Mrs Keys' property to effect maintenance of the well were not restrictive covenants. Whatever rights were granted by the deed were able to be terminated by notice and so it cannot be said that the covenants ran with the land. Further, Mr and Mrs Norris are not bound by the deed. Even if they were, the right given to access water under the deed was not an easement for reasons previously outlined. The right was consistent with Ms Quinlivan being a licensee under the deed, as she claimed in her caveat. 65 Mr Kitto said that Mr and Mrs Norris could not fill in the well or build over it or restrict access to it. He said these things are also a restriction on the right to use the land. In any event, whatever was granted by the deed did not, in this case, survive against Mr and Mrs Norris once they became the registered proprietors of 6 Ferndale Street. That was conceded. The deed (Page 16)
could not, and did not, confer any rights against Mr and Mrs Norris that survived the deed itself. Ms Quinlivan no longer held a right to draw water and to enter 6 Ferndale Street for maintenance and repairs of the well after registration of the transfer to Mr and Mrs Norris. Mr Kitto conceded that if this ruling was made, and it is, then, the appeal must fail. 66 In all the circumstances, there is no scope to infer any grant of an easement by common intention arising out of conduct. 67 In this case, the supposed grant of an easement is not provided for by the deed. It does not come by prescription or the doctrine of lost modern grant. It cannot be implied. It does not arise from common intention or conduct. There is therefore nothing that can give rise to an easement.
Disposition of the substituted grounds of appeal 68 Ms Quinlivan's first substituted ground of appeal relies on a finding by the learned magistrate that the deed gave her the right, to draw water from her neighbours' well. She claimed that such right was an easement. That claim is without merit for reasons already advanced. 69 The concession and finding that the deed did not bind Mr and Mrs Norris and the finding that Ms Quinlivan never had any proprietary rights under that deed, together with the finding that, in any event, the deed only conveyed personal rights, also means that Ms Quinlivan's second substituted ground of appeal is also without merit. Ms Quinlivan did not have any rights running with the land as claimed in this ground of appeal. There was no other evidence permitting a finding of any rights to run with the land. There is therefore no need to consider whether or not Ms Quinlivan's personal conduct extinguished any such alleged rights under an easement, whether in law or in equity.
Conclusion 70 For the reasons outlined above, this appeal is dismissed.
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