Rixon v Horseshoe Pastoral Co Pty Ltd

Case •

[2017] NSWSC 1293

•

26 September 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293
Hearing dates:12, 13, 14, 15 July 2016 (Batemans Bay); 26 July 2016 (Sydney)
Date of orders: 26 September 2017
Decision date: 26 September 2017
Jurisdiction:Equity
Before: Brereton J
Decision:

Declare that the plaintiff is entitled to an equitable right of carriageway. Order that the defendant transfer to the plaintiff, at the plaintiff’s cost, an easement. Liberty to apply in the event of any difficulty arising in implementation. Order that the defendant be permanently restrained from interfering with or obstructing the use by the plaintiff and those authorised by her of the easement. Order that the defendant pay the plaintiff’s costs.

Catchwords:

REAL PROPERTY – easements – whether plaintiff entitled to implied easement of access over Torrens title land – implied easement available as a personal right enforceable against transferor but not successors in title – no easement of necessity in the context of alternative means of access – no Wheeldon v Burrows easement in the absence of sufficient evidence of continuous and apparent quasi-easement – held, plaintiff’s implied easement case fails.

 

EQUITY – estoppel – whether defendant estopped from denying the right of plaintiff to access her property via a track – where plaintiff purchased property with no practical means of access other than track – where plaintiff located her removable house by reference to endpoint of track – where plaintiff therefore detrimentally relied on assumption she could legally access her property via the track – where defendant used the track to show plaintiff the property for pre-purchase inspection, and indicated she should use track to install her house without relevant words of limitation – held, unconscionable for defendant to deny truth of assumption of access to property via track.

 

EQUITY – estoppel – remedy – where the touchstone of defining the remedy is the scope of plaintiff’s assumption to the extent that it was or ought to have been known to defendant – where the relevant assumption was general right of way for all purposes – where the assumption founds equitable equivalent of express grant of carriageway – held, plaintiff therefore entitled to transfer of that right, at plaintiff’s cost.

REAL PROPERTY – easements – Conveyancing Act 1919, s 88K – imposed easement not reasonably necessary – had it been necessary to decide, plaintiff’s case for an imposed easement under s 88K would have therefore failed.
Legislation Cited: (NSW) Conveyancing Act 1919, s 88K
(NSW) Evidence Act 1995, s 54
(NSW) Real Property Act 1900, s 42, s 46
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Aldridge v Wright [1929] 2 KB 117
Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Bartlett v Tottenham [1932] 1 Ch 114
Beck v Auerbach (1986) 6 NSWLR 454
British Railways Board v Glass [1965] Ch 538
Cannon v Villars (1878) 8 Ch D 415
Cargill v Gotts [1981] 1 WLR 441
Crabb v Arun District Council [1976] Ch 179
Cuzeno Pty Ltd v Owners and Strata Plan 65870 [2013] NSWSC 1385
D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419
Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483.
DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348
Duic v Duic [2013] NSWCA 42
Elliott v Renner [1923] St R Qd 172
Evans v Evans [2011] NSWCA 92
Fenwick v Wambo Coal Pty Ltd (No 3) [2011] NSWSC 788
Gallagher v Rainbow (1994) 179 CLR 624; 121 ALR 129
Grundt v Great Boulder Gold Mines Limited (1937) 59 CLR 641
Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 97,358
Hurt v Bowmer [1937] 1 All ER 797
ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27
Jelbert v Davis [1968] 1 WLR 589
Jobson v Nankervis (1943) 44 SR(NSW) 277
Kostis v Devitt (1979) 1 BPR 9231
Lamos Pty Ltd v Hutchison (1984) 3 BPR 9350
Lancaster v Lloyd (1927) 27 SR(NSW) 379
Lock v Abercester, Limited [1939] 1 Ch 861
Maher v Bayview Golf Club [2004] NSWSC 275; (2004) 12 BPR [98112]
Manjang v Drammeh (1991) 61 P&CR 194
McGrath v Campbell (2006) 68 NSWLR 229; (2006) ANZ ConvR 412; (2006) NSW ConvR 56-159; [2006] NSWCA 180
Milner’s Safe Company, Limited v Great Northern and City Railway Company [1907] 1 Ch 208
Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445
MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1
Nelson v Hughes [1947] VLR 227
Nelson v Walker (1910) 10 CLR 560
Newcomen v Coulson (1877) 5 Ch D 133
Nickerson v Barraclough [1981] 1 Ch 426
North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd [1971] 2 NSWLR 150
O’Neill v Williams [2006] NSWSC 707
Pallister v Clark (1975) 30 P&CR 84
Parish v Kelly (1980) 1 BPR 97,040
Perpetual Trustee Co Ltd v Westfield Management Ltd (2007) 12 BPR 23,793; (2007) ANZ ConvR 103; (2007) NSW ConvR 56-170; [2006] NSWCA 337
Polden v Bastard (1865) LR 1 QB 156
Robinson v Bailey [1948] 2 All ER 791
Rodwell v G R Evans & Co Pty Ltd (1977) 3 BPR 9114
RPC Holdings, Ltd v Rogers [1953] 1 All ER 1029
Silovi Pty Limited v Barbaro (1988) 13 NSWLR 466
South Eastern Railway Co v Cooper [1924] 1 Ch 211
Stevens & Evans v Allan & Armanasco (1955) 58 WALR 1
Suffield v Brown (1864) 4 De GJ & Sm 185; 46 ER 888
Tadrous v Tadrous [2012] NSWCA 16
Tarrant v Zandstra (1973) 1 BPR 9381
Taylor v Browning (1885) 11 VLR 158
Thomas v Symons [2013] NSWSC 490
Thompson v Palmer (1933) 49 CLR 507
Torrisi v Magame Pty Ltd [1984] 1 NSWLR 14
Titchmarsh v Royston Water Co Ltd (1900) 81 LT 673
United Land Company v Great Eastern Railway Company (1873) LR 17 Eq 158
United Land Company v Great Eastern Railway Company (1875) 10 Ch App Cas 586
Waddell v Waddell [2012] NSWCA 214
Walsh v Walsh [2012] NSWCA 57
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Ward v Kirkland [1967] 1 Ch 194
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; (2007) 239 ALR 75; (2007) 81 ALJR 1887; (2007) NSW ConvR 56-196; [2007] HCA 45
Wheeldon v Burrows (1879) 12 Ch D 31
White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113
Wilcox v Richardson (1997) 43 NSWLR 4
Williams v James (1867) LR 2 CP 577
Williams v State Transit Authority (NSW) (2004) 60 NSWLR 286
Willmott v Barber (1880) 15 ChD 96
Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362
Woodhouse & Co Ltd v Kirkland (Derby) Ltd [1970] 1 WLR 1185
Vukic v Grbin [2006] NSWSC 41
Texts Cited: Bradbrook, A & Neave, M, Easements and Restrictive Covenants in Australia, 2nd ed (2000)
Butt, P, Land Law, 5th ed
Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 4th Edition (2002)
Young PW, “Lessees’ Ancillary Rights” (2000) 74 ALJ 384
Category:Principal judgment
Parties: Susan Margaret Rixon (plaintiff)
Horseshoe Pastoral Co Pty Ltd (defendant)
Representation:

Counsel:
M. J. Heath (plaintiff)
A. Rogers (defendants

  Solicitors:
BHM Lawyers (plaintiff)
Carmody & Associates (defendants)
File Number(s):2015/094229

Judgment

  1. Lot 5 in Deposited Plan 835976 (the plaintiff’s land; it was formerly Lot 27 in DP755902) and Lot 130 in DP755902 (the defendant’s land) are adjacent parcels, located some short distance south of the village of Mogo, lying between the Princes Highway to the west and the Tomakin Road to the east: Lot 130 is to the west, adjacent to the Princes Highway, and Lot 5 to the east, proximate to Tomakin Road. [1] Prior to 1971, Rawlinson Cecil Brown and Heather Mavis Brown (Mr & Mrs Brown Snr) owned a dairy farm known as Horseshoe Farm at Mogo. In about 1971, they and their son Raymond Cecil Brown (Mr Brown Jnr) acquired some adjoining properties, including relevantly what became Lots 27, 130, 204 and 208 in DP755902. In about 1974, the defendant Horseshoe Pastoral Pty Limited was incorporated; Mr and Mrs Brown Snr, and Mr Brown Jnr, were its shareholders and directors. [2] Lot 130 (which the Browns intended to retain) was transferred to the defendant on 14 December 1978, but Lots 27, 204 and 208 (which were intended to be sold) apparently were not.

    1. Lot 27 in DP755902 became Lot 5 in DP835976 in 1989 in connection with a widening of Tomakin Road undertaken by Eurobodalla Council. For convenience, it is generally referred to as Lot 5, but when dealing with the early history as Lot 27.

    2. In 1989, Mr Brown Jnr and his wife Anne acquired his parents’ interests in the defendant and so became its sole shareholders.

  2. In 1982, Horseshoe Pastoral sold Lot 27 to the plaintiff Mrs Susan Rixon and her then husband Mr Tom Hurst, who separated soon after; Mrs Rixon is now the sole proprietor of her lot, apparently pursuant to a property settlement with Mr Hurst, who has since died. Since then, a track from the Princes Highway over Lot 130 has been her only means of vehicular access to Lot 5 (“the track”), and in particular to Mrs Rixon’s home on it. In 2014, Mr Brown denied that Mrs Rixon was entitled to use the track, and took steps to obstruct it. In these proceedings, Mrs Rixon claims an easement, or alternatively a licence, in respect of the track, on various bases: by implied grant, by equitable estoppel, or pursuant to (NSW) Conveyancing Act 1919, s 88K.

Background

  1. At Mogo, north of the subject properties, there is an intersection between the Princes Highway (which runs approximately north-east to south-west) with Tomakin Road (which runs to the east from the intersection for about 400 metres, before bending to the south).

The land and its access

  1. Together, Lots 5 and 130 form a reverse L shape; while the southern boundaries of both lots are aligned, Lot 5 (a square in shape) extends further to the north than Lot 130 (a right-angled trapezoid), a number of other allotments separating the northern part of Lot 5 from the Princes Highway, which forms the western boundary of Lot 130.

  2. The evidence and submissions explored eight potential means of gaining access to Lot 5. They are described below, in anti-clockwise geographical order, and using the numerical designations attributed to them during the hearing; because some emerged later than others, their numerical designation does not correspond with their geographical arrangement.

Mogo corridor (Option 1)

  1. There is a corridor of crown land (Lot 7010 in DP1023835) from the north-western corner of Lot 5, running approximately north to the Princes Highway near its intersection with Tomakin Road, and just north of land occupied by the Mogo school as a playground. Construction of a track or road over it would impinge on the environmentally sensitive area of Mogo Creek, and Roads and Maritime Services (RMS) would not permit an access to the Princes Highway to be constructed at this point, because it would not achieve a compliant safe intersection site distance (SISD) at Princes Highway.

The school corridor (Option 2)

  1. The northernmost of the allotments separating the northern part of Lot 5 from the Princes Highway is in the ownership of the Department of Education and occupied by the Mogo School (Lot 63 in DP 755902). Immediately to its south is a very narrow (perhaps 10m wide) strip of crown land which runs from Lot 5 to the Princes Highway. Initially it appeared that a compliant SISD would not be achieved, but during the hearing it emerged that it could. However, such an access point would require extensive work to widen the Princes Highway, and to build up the steep slope to the east of the highway; it would not be supported by RMS.

Queen Street (Option 3)

  1. To the south of the school corridor, and north of the northern boundary of Lot 130, several other allotments lie between Lot 5 and the Highway. The northern boundary of Lot 130 is formed by an unconstructed crown road (“Queen Street”), over which the defendant has an occupancy permit. There is a wire guard rail along the side of the highway, which would have to be penetrated if this were to be a point of access, and the land, which falls steeply away to the east of the highway, would have to be built up. Although at first it appeared that a compliant SISD could not be achieved, during the hearing it became apparent that this was not so and that, while it was not the preferred option of RMS, if no legal access were otherwise available to Lot 5, it would be possible to construct an access from the highway at this point and over the unconstructed part of Queen Street – either with the co-operation of the Council, or by closing and acquiring the crown road – albeit that significant engineering effort and considerable expense would be involved.

The track (Option 4) and the 88K access options (Options 7 and 8)

  1. To the south of Queen Street, at about the midpoint of Lot 130’s western boundary, the track joins the Princes Highway and transits from west to east, across the middle of Lot 130 to its boundary with Lot 5. There is no SISD issue at this point, and this is the RMS’ preferred point of access.

  2. As an alternative to the track, during the proceedings, proposals were developed for an easement running north from the gate from the Princes Highway to Lot 130, along the inside of the western boundary of Lot 130 parallel to the Highway until it reached the Queen Street reservation, thus avoiding the steep incline where the Queen Street reservation abuts the Highway (option 7; in some contexts also called “access option 1”). Its attraction, when compared to the track, was that by running along the western boundary of Lot 130 and then the Queen Street reservation, it minimised the impact on Lot 130. A variation on this theme involved the grant of an easement in a similar location but further from the western boundary, then splaying across the north-western corner of Lot 130 and continuing along the northern boundary until it reached Lot 5, without entering the Queen Street reservation (option 8; in some contexts also called “access option 2”); its perceived advantage was that it would require significantly less construction works, and in particular earthworks, than option 7, by avoiding a gully in the north-western corner of Lot 130, but it would have a greater effect on Lot 130 than option 7.

The cemetery (Option 5)

  1. The southern boundary of Lot 130 is formed, at its western end, by the Mogo cemetery. Although there is an access (“Jock Hendry access”) in that vicinity, it is not contiguous with and does not provide direct access to Lot 5; an additional easement, along the southern boundary of Lot 130, would have to be acquired if it were to be used for access to Lot 5. Moreover, a compliant SISD is not achieved.

The Lot 204 road (Option 8)

  1. The balance of the southern boundary of Lot 130, and that of Lot 5, is provided by Lot 204. A crown road running from the Princes Highway south of the cemetery along the southern boundary of Lot 204 provides access to Lot 204, from the south. From it, another unconstructed crown road runs north across Lot 204 to Lot 5; however, it is the subject of an enclosure permit in favour of the owners of Lot 204, who have erected structures on parts of it.

The cocky’s gate at Tomakin Road (Option 6)

  1. The Tomakin Road, which generally lies to the north and then a little to the east of the eastern boundary of Lot 5, is separated from the northern boundary by several others lots, but at one point about 150 metres beyond where it bends to the south is contiguous with the north-eastern corner of Lot 5. At this point there is a rudimentary Queensland gate (“cocky’s gate”), and it may be that, as Mr Brown Jnr maintained, at some point in the past access to Lot 5 was gained from this point. However, the Tomakin Creek, which runs roughly along but inside the northern and the eastern boundary of Lot 5, separates this entry point from the main part of the property, and if there was ever a bridge over it, there has not been for many years, and I accept Mrs Rixon’s evidence that there was no such track or bridge when she purchased the property, as is implicit in her evidence, referred to below, that she was not taken to inspect the property via any such route, and that when she asked how to move the home she had purchased onto the property, she was told to use the track over Lot 130. Moreover, RMS would not support construction of an access road at the Tomakin road entry point, because a compliant SISD cannot be achieved.

Mrs Rixon’s purchase of Lot 5

  1. In 1981, Mrs Rixon lived, with her then husband Tom Hurst, at Termeil, some distance north of Batemans Bay, but she was working full-time in Batemans Bay, and wished to reside closer to her place of work. She learnt from a work colleague that a farm near Mogo was being subdivided, and was told (on her evidence) that Mr Brown Jnr was the person doing that project. Mrs Rixon says she knew of Mr Brown, because he was a patron of the Batemans Bay Soldiers Club where she worked, but did not know him personally.

  2. According to Mrs Rixon, she approached Mr Brown Jnr after work one day, when she noticed he was across the road from the Club. Mrs Rixon says that Mr Brown gave her his telephone number, and details of how to get to the property, namely directly opposite Buckenbowra Road, Mogo, a landmark with which she was familiar.

Pre-purchase inspection

  1. According to Mrs Rixon, before the arranged inspection of the property, but excited by the prospect, she and Tom went out to have a quick unaccompanied and unannounced look at the property. They went to the cocky’s gate on the Tomakin Road, because they did not at that stage have permission to enter the property and did not want to be seen. When asked, in cross-examination, how she knew to go to the cocky’s gate, Mrs Rixon at first answered, “Because it was described to me when I spoke to Ray”, but it was then put to her:

Q. Now, you have not said in your affidavit that Mr Brown told you there was any other entrance other than the more apparent entrance opposite the Buckenbowra Road. Do you accept that?

A. He didn’t. I went and found a fence and climbed through it.

Q. Well, perhaps I misunderstood you? Did you not say only a few minutes ago that Mr Brown told you where to find the cocky’s gate?

A. No, he told me where to find the property.

  1. According to Mrs Rixon, a few days after their initial conversation she met Mr Brown Jnr at the entrance gate to Lot 130, on the Princes Highway. Mr Brown unlocked the gate (which had been chained and locked), and they drove in their respective vehicles – Mrs Rixon following Mr Brown – across Lot 130 on what Mrs Rixon describes as “an old track that initially went down a small incline then uphill … that commenced at the gate” to a high vantage point on Lot 5 – where her house is now located. She was immediately taken by the property, and told Mr Brown that she would buy it and make arrangements with her bank and solicitor.

  2. Mr Brown denies that he played any part in the sale of Lot 5, or met or had any conversation with Mrs Rixon at any time prior to the sale; he says that it was his late father who negotiated the sale to Mrs Rixon. Mr Rogers submitted that Mrs Rixon’s version was unreliable, and that Mr Brown’s version should be preferred, but I do not agree. First, my impression was that Mr Brown had little recollection of the events, and denied participating in them as a matter of reconstruction rather than recollection; this is illustrated by his evidence concerning the placement of house on Lot 5, referred to below. Secondly, Mr Brown’s assertion that his father took all the important decisions does not sit well with his demonstrated involvement in cancelling a development application for a manager’s residence on Lot 5, shortly before completion of the sale to the plaintiff in 1982. Thirdly, when the whole of Mrs Rixon’s evidence is reviewed in context, I think the better explanation for the apparent inconsistency about how she first came to enter the property from the cocky’s gate at Tomakin Road is that she misapprehended the question when it was first asked; her answer was directed to how she knew where the property was, rather than where the cocky’s gate was. Finally, Mrs Rixon’s evidence generally was characterised by understatement (of which her restrained response to the suggestion that the location in which the home was placed on the property involved some detriment is an example) and moderation (illustrated by her willing acceptance of the Queen Street option if RMS would permit it); she was a thoroughly credible witness.

  1. It is possible, though unlikely, that Mrs Rixon has confused Mr Brown Jnr with Mr Brown Snr, 25 years ago. But even if that were so, that would lead to the conclusion that Mrs Rixon was dealing with Mr Brown Snr, and had the same conversations with him. It is highly improbable that she would have purchased the property without an inspection; someone on behalf of the vendor must have showed her the property and, as Mr Rogers accepted, it must have been one or other of the two Mr Browns. Mrs Rixon was shown the property, on behalf of the vendor, by one or other of the Mr Browns, from the high vantage point, which they accessed via the Princes Highway gate and the track.

The house

  1. After paying the deposit, but before settlement, Mrs Rixon sourced a removable home to be placed on Lot 5. She deposed that she approached Mr Brown and they had a conversation to the following effect:

Rixon: Ray I have been offered a house for removal but I have to move it within the next three weeks. Can I put it on the property? The house will come in two sections.

Brown: Yes.

Rixon: Well how do I get in?

Brown: You can access the land through the front gate along the track. I will unlock the gate.

  1. Mrs Rixon says that the lock and chain were then removed, and never replaced. The house was moved onto the property and installed near the high point from which she had first viewed the property with Mr Brown. The purchase was completed soon afterwards.

  2. Mr Brown denies having had any such conversation with Mrs Rixon. But he was clearly aware that she was going to use the track for the purpose of moving the home onto Lot 5: when asked when he first became aware that a house was to be or had been placed on Lot 5, he said at first that he did not recall, but it would have been in the mid-80s; that it was after it had been put there, because Mr Hurst who used to work for him was residing there for a while; that he was not sure what access they were using, though he knew that Mr Hurst was “going across the back of the cemetery” to get to work; that he knew there was supposed to be a locked gate, but could not say what had happened about it, though he thought “the main reason that they used that access was to bring the house in, because it was quite a wide thing … but I didn’t see the house going in there and … I wasn’t sure where it … had been situated on their block”. But an at earlier point he gave this evidence:

Q. But you came to know where the location of the house was to be on the top of the – at the high point of the property, there, didn’t you?

A. Yes but I’ve always doubted whether I was there when it was put there because you may not be aware but it’s about a metre off our boundary.

  1. Moreover, as the house was moved onto Lot 5 before completion of the purchase, there is a high degree of likelihood that the purchaser would have sought the vendor’s permission to do so; a purchaser would not likely move a house onto a property before completion without first seeking the vendor’s consent. If Mrs Rixon did not speak to Mr Brown Jnr about installing the house on Lot 5, then she had such a conversation with Mr Brown Snr. The circumstance that, as Mr Brown accepted, the gate thereafter remained unlocked, tends to confirm this.

Subsequent use of the track

  1. After installing the relocated home on Lot 5, Mrs Rixon moved horses and other stock onto Lot 5, using a horse float, along the track. She has since transported cattle to and from the property, using the track. She has received visitors, family and friends at her home, who use the track to gain access. She has had had power installed to Lot 5, for which purpose the track provided the access; and the authority’s employees use the track for access to read the meter. Replacement gas bottles have been and are delivered via the track. Local council officers have used and continue to use the track to access the property for septic tank inspections. Deliveries of all kinds have been and are made to Lot 5 via the track. She has fenced Lot 5, using the track to bring in materials and the personnel who assisted in its construction.

  2. From the time of her purchase of Lot 5 to date, Mrs Rixon has slashed, graded and otherwise maintained the track. This, coupled with sustained use of the track, has resulted in its becoming considerably more defined than it was in 1982. However, Mrs Rixon does not suggest that any construction works have been carried, save that:

  1. according to Mrs Rixon, in the early 1980s, she obtained Mr Brown’s permission to install a rudimentary cattle grid at the gate from Lot 130 onto the Princes Highway. Mr Brown denies that he was asked or agreed to this, but acknowledges that he has been aware of the grid; based on this acknowledgement and my general acceptance of Mrs Rixon’s evidence, I find that there was such a conversation as Mrs Rixon says; and

  2. in the course of roadworks on the Princes Highway, RTA workmen constructed a spoon drain at the entrance gate to Lot 130, and ‘tarred’ the area between the highway and the gate to facilitate the entry of vehicles.

  1. Mr Brown does not dispute that Mrs Rixon, her family and invitees such as guests and tradespeople have accessed Lot 5 through Lot 130 along the track, and that at least to some extent he knew that to be so, and did not prevent it. He says he did not give “express permission and none was sought.” Nor does he deny that the gate from the Princes Highway onto Lot 130 was unlocked and remained unlocked. Mr Brown does not dispute that, from the time of her purchase of Lot 5 to date, Mrs Rixon has slashed, graded and otherwise maintained the track.

The development plans

  1. In about 2000, according to Mrs Rixon, she heard a bulldozer operating on Lot 130, and subsequently saw Mr Brown on the track. She had a conversation with him in which he said that he was putting in an industrial subdivision, and assured her that her access would not be affected, and that she would have a tarred street almost all the way to the boundary. Mr Brown denies any such conversation, and says that he was not in Mogo at the time. But Mr Brown was admittedly contemplating development of Lot 130, and had had a concept plan prepared (which he did not adduce). It is not apparent how else Mrs Rixon would have learnt of the proposal and again, coupled with my general acceptance of her evidence, this tilts the balance of probability in favour of her version. However, as will become apparent, ultimately nothing turns on this conversation.

Relations deteriorate

  1. Following her remarriage in 2002 to Malcolm Rixon, in about 2005 Mrs Rixon and her new husband established a bus business. From about 2005 until 2008-9 (when the first bus business was sold), buses when not in use were parked on Lot 5 (though they were maintained and serviced elsewhere), and moved into and out of Lot 5 over the track.

  2. Relations between the Rixons and Mr Brown appear to have deteriorated from about 2005. One precipitant appears to have involved a Mr Pakis, who initially stored logs and other items on Lot 5, and paid a fee to Mrs Rixon for doing so. Then he erected a business sign on the gate to Lot 130, which Mrs Rixon says was not authorised by her. Mr Brown raised the issue – including reference to a potential liability risk – with Mrs Rixon.

  3. Subsequently, a confrontation between Mr Brown and Mr Malcolm Rixon resulted in police attending the property. Mrs Rixon then embarked on exploring a range of alternative means of access to her property – including via Tomakin Road, School Road, Queen Street, and the Jock Hendry Access – none of which provided a resolution. Meanwhile there was an uneasy détente between the parties.

  4. In April 2010, the Rixons recommenced a bus business, and up to ten buses have been and are parked on Lot 5 from time to time, and enter and exit Lot 5 using the track daily, although once again they are maintained and serviced elsewhere.

  5. By letter dated 7 August 2014, solicitors for Mr Brown demanded that Mrs Rixon cease exercising access over Lot 130, and threatened an injunction and damages if the alleged “trespass” continued. Mrs Rixon instituted these proceedings on 30 March 2015. By letter dated Friday 10 July 2015, solicitors for the defendant advised that the gate from the Princes Highway to the track would be locked. On the evening of Friday 10 July 2015, Mrs Rixon sought and was granted an ex parte injunction restraining the defendant from denying the plaintiff and her invitees access along the track. The ex parte injunction was on 13 July 2015 continued, and remains in force.

  6. The Court had the benefit of a view of the properties on the first day of the hearing. The transcript records the observations I made during the view, which are evidence. [3]

    3. (NSW) Evidence Act 1995, s 54.

Issues

  1. The main issues are:

  1. is there an implied easement, of necessity or pursuant to the rule in Wheeldon v Burrows;

  2. is the defendant estopped in equity from denying the existence of an easement or licence over the track, and if so does any such easement or licence extend to use by buses to be parked on Lot 5. (The plaintiff advanced a separate but closely related argument founded on unconscionability, but in my view it is indistinguishable from the equitable estoppel case); and

  3. alternatively, should the Court impose an easement pursuant to (NSW) Conveyancing Act 1919, s 88K, over Lot 130 for the benefit of Lot 5, and if so where should it be located, should it permit use by buses to be parked on Lot 5, and what compensation should be required.

implied Easement?

  1. Although the plaintiff’s case was put primarily on the ground of equitable estoppel, it is convenient and logical to deal first with the claim for an easement by implication.

  2. Where the owner of land alienates part and retains the balance, easements may implicitly be granted over the retained part in favour of the alienated part on a number of bases, including (a) of necessity, and (b) under the rule in Wheeldon v Burrows. [4]

    4. (1879) 12 Ch D 31 (CA).

Implied easements and the Torrens system

  1. However, although there are cases in which implied easements have been recognised in connection with Torrens title land,[5] it is doubtful that such easements can arise in respect of land under the (NSW) Real Property Act 1900, in which s 42 relevantly provides:

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:

…

(a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,

5. Nelson v Hughes [1947] VLR 227.

  1. The prevailing view is that easements can be created over Torrens land only in the manner provided by Real Property Act, s 46, [6] and that this does not admit of implied grants of the Wheeldon v Burrows variety. [7] The same considerations apply to easements of necessity. [8] Exceptions in relation to easements created by implied grant before the land is brought under Torrens title[9] are irrelevant for present purposes. However, at least until the decision of the Court of Appeal in McGrath v Campbell, [10] it has generally been accepted that a Wheeldon v Burrows easement, although not noted on the certificate of title of the servient tenement, may be enforced against the registered proprietor of that tenement who created the easement, though not against successors in title. [11]

    6. Jobson v Nankervis (1943) 44 SR(NSW) 277; Kostis v Devitt (1979) 1 BPR 9231; Torrisi v Magame Pty Ltd [1984] 1 NSWLR 14.

    7. Kostis v Devitt (1979) 1 BPR 9231 (Powell J); Tarrant v Zandstra (1973) 1 BPR 9381; Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 (CA); Australian Hi-Fi Publications Pty Ltd v Gehl [1997] 2 NSWLR 618 (CA).

    8. Parish v Kelly (1980) 1 BPR 97,040; Lamos Pty Ltd v Hutchison (1984) 3 BPR 9350 at 9354-5.

    9. Cf Beck v Auerbach (1986) 6 NSWLR 454.

    10. (2006) 68 NSWLR 229; (2006) ANZ ConvR 412; (2006) NSW ConvR 56-159; [2006] NSWCA 180.

    11. McGrath v Campbell at [7]-[8], [102]-[105] (Tobias JA).

  2. In McGrath v Campbell, [12] the common registered proprietor of the dominant and servient tenements who was said to have created the alleged Wheeldon v Burrows easement contemporaneously transferred both tenements to different purchasers. At first instance Barrett J, as he then was, relying on Aldridge v Wright,[13] held that in those circumstances, the transferee of the dominant tenement was entitled to enforce the easement against the transferee of the servient tenement, by requiring the servient owner to execute an instrument in registrable form for the purpose of the Real Property Act granting the easement. This was overturned in the Court of Appeal. Although the principal judgment was that of Tobias JA, the position was concisely summarised by Hodgson JA in the following terms:

[3] The decision of the primary judge proceeded by the following steps:

(1) The circumstances of the acquisition of Lot 6 by the respondents and Lot 12 by the appellants were such as would, at general law, give rise to an implied easement of the Wheeldon v Burrows type (Wheeldon v Burrows (1879) 12 Ch D 31).

(2) However, since no such easement was created in accordance with the requirements of the Real Property Act 1900, it could be no more than an equitable easement.

(3) Such an equitable easement is binding as between the parties to its creation, though not as against successors in title to the servient tenement.

(4) Such an equitable easement can therefore be enforced as a personal equity against the appellants.

[4] I agree with step (1). However, steps (2), (3) and (4) require close analysis of the kind undertaken by Tobias JA. The question whether an equitable easement arose, and whether that easement was enforceable against the appellants, depend on whether the circumstances were such that there was a personal equity against them. I agree with Tobias JA, for the reasons he gives, that the appellants’ involvement in the relevant transactions was not such as to give rise to a personal equity against them, even though it would have been sufficient at general law to give rise to a Wheeldon v Burrows easement enforceable against them.

[5] Accordingly, s 42 and s 43 of the Real Property Act preclude the recognition of any such easement; and thereby make it misleading to assert that there was an equitable easement of the Wheeldon v Burrows type

12. (2006) 68 NSWLR 229; (2006) ANZ ConvR 412; (2006) NSW ConvR 56-159; [2006] NSWCA 180

13. [1929] 2 KB 117.

  1. Tobias JA referred[14] to the decision of the Court of Appeal in Williams v State Transit Authority (NSW) [15] – a case involving a prescriptive easement – in which Mason P, with whom Sheller JA and Tobias JA agreed, noted that text writers had expressed the view that prescriptive easements based upon the doctrine of lost modern grant did not trump the registered proprietor's indefeasible title by means of the statutory exception in s 42(1)(a1) of the Real Property Act, [16] and that it was “to pile fiction upon fiction to extend the doctrine of lost modern grant into the Torrens system, because (assuming no relevant exception to s 42 or its equivalents) that system contemplates title at law as arising only upon registration”. [17] His Honour thought that there was much force in the observations of Professor Butt [18] that Williams required reconsideration of the in personam enforcement of unregistered implied easements, in the light of that that “given the relevant similarities between prescriptive and implied easements”, but did not express a concluded view. [19]

    14. (2006) 68 NSWLR 229 at 252 [115].

    15. (2004) 60 NSWLR 286. Special leave to appeal was refused on 29 April 2005.

    16. (2004) 60 NSWLR 286 at 297 [111].

    17. (2004) 60 NSWLR 286 at 300 [129].

    18. In Land Law, 5th ed, at 779.

    19. (2006) 68 NSWLR 229 at 252-3 [116]-[119].

  2. In Cuzeno Pty Ltd v Owners and Strata Plan 65870,[20] Darke J observed that there were unresolved questions, which had been left open in McGrath v Campbell, concerning the extent to which implied easements were capable of enforcement as in personam exceptions to the indefeasibility provisions of the Real Property Act, but proceeded on the assumption that implied easements were capable of enforcement on that basis.

    20. [2013] NSWSC 1385 at [93].

  3. As it seems to me, while casting doubt on the availability of a Wheeldon v Burrows easement in the context of Torrens land simpliciter, McGrath v Campbell does not overrule the earlier cases in which it had been found available as a personal right enforceable against the transferor though not against successors in title. Moreover, it recognises that if there are circumstances which so implicate the grantor as to make it unconscionable to insist on its strict legal right, a personal equity against the grantor (though not against successor in title) will stand outside the cloak of indefeasibility.

  4. In the present case, the defendant was the registered proprietor of Lot 130 at the time of the sale of Lot 5 to Mrs Rixon and her husband, and its shareholders were the vendors of Lot 5. No point was taken that the corporate identity of the defendant, as distinct from that of its shareholders, made any difference. Accordingly, like Darke J in Cuzeno, I proceed on the basis that, notwithstanding that the subject land is under the Real Property Act, an easement arising by implication upon the sale of Lot 5 to Mrs Rixon could be enforced against the defendant while it remains the registered proprietor of Lot 130.

Easement of necessity

  1. An easement may be implied of necessity where, on the sale by a common owner of part of its land, either the grantor or the grantee is left without any access to its property. An easement of necessity is implied where the right claimed is essential for the use of the dominant tenement; it must be more than a matter of convenience. The prevailing view is that this is based on the presumed common intention of the parties. [21]

    21. North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd [1971] 2 NSWLR 150; Nickerson v Barraclough [1981] 1 Ch 426 (CA).

  2. The conventional view is that the existence of an alternative means of access exercisable as of right, even if inconvenient, is fatal to a claim of a right of way of necessity. Relevantly, the fact that construction of an access route to a public highway is difficult and/or expensive is insufficient to give rise to an easement of necessity. [22] In New South Wales there are obiter dicta that favour a more liberal view: in Parish v Kelly,[23] Rath J said that the existence of a legal access did not necessarily exclude the implication of a way of necessity, and that matters to be considered included the locality, the use of the land and the nature of the legal access (in particular whether it is constructed and, if not, the problems and expense in constructing it), but rejected the claim for an easement of necessity. This dictum was approved by Cohen J in Lamos Pty Ltd v Hutchison. [24] However, the correctness of these decisions has been doubted, in the light of more recent[25] as well as the earlier authorities.

    22. Tarrant v Zandstra (1973) 1 BPR 9381; Titchmarsh v Royston Water Co Ltd (1900) 81 LT 673.

    23. (1980) 1 BPR 97,040.

    24. (1984) 3 BPR 9350 at 9354-5.

    25. Bradbrook, A and Neave, M, Easements and Restrictive Covenants in Australia, 2nd ed (2000), [4.11]; cf MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1 (CA); Manjang v Drammeh (1991) 61 P&CR 194 (PC).

  1. The critical time for the implication of an easement by necessity is the time of the sale by the common owner – in this case, the sale of Lot 5 to the plaintiff. Although I accept that there was at that time no alternative constructed access to Lot 5, the property was not legally landlocked: it abutted Tomakin Road; and there were unconstructed crown roads at the school and at Queen Street. Pedestrian access was available, and the land was not incapable of being accessed from a public road: although construction of one or more of these means of access for vehicular use may have involved some planning and engineering challenges and difficulties, as well as expense, that is insufficient.

  2. In my view, there were alternative means of access available as of right, albeit that they may have been inconvenient and expensive to construct. The conditions for implication of an easement of necessity are not established – even if one can arise in the context of Torrens title land.

Wheeldon v Burrows

  1. The rule in Wheeldon v Burrows was stated, in the case from which it derives its name, in the following terms:[26]

On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.

26. (1879) 12 Ch D 31 at 49 (Thesiger LJ); see also Wilcox v Richardson (1997) 43 NSWLR 4 at 13ff (Handley JA); Young PW, “Lessees’ Ancillary Rights” (2000) 74 ALJ 384.

  1. While the rule has often been explained as a manifestation of the maxim that a grantor may not derogate from the grant,[27] its juridical basis is the presumed common intention of the parties. [28] The essential elements are that the “quasi-easement” be (1) continuous and apparent, (2) necessary to the reasonable enjoyment of the property granted, and (3) at the time of the grant used by the owners of the entirety for the benefit of the part granted.

    27. Nelson v Walker (1910) 10 CLR 560 at 583 (Isaacs J); Wilcox v Richardson (1997) 43 NSWLR 4 at 14 (Handley JA); Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 at 623 (Mahoney JA).

    28. McGrath v Campbell (2006) 68 NSWLR 229; (2006) ANZ ConvR 412; (2006) NSW ConvR 56-159; [2006] NSWCA 180 at [75] (Tobias JA).

  2. A reasonably close analogy to the present case is provided by Tarrant v Zandstra, [29] in which the plaintiff acquired a block of land which, though it had a frontage to a main road, did not have direct access to it, but gained access via a private road which ran through the adjoining block, which the plaintiff continued to use after the purchase, to the knowledge of the defendants who later bought the adjoining block from the common vendor; the conditions necessary for the implication of a Wheeldon v Burrows easement were satisfied.

    29. (1973) 1 BPR 9381; see also Lancaster v Lloyd (1927) 27 SR(NSW) 379; Taylor v Browning (1885) 11 VLR 158.

  3. The requirement that the quasi-easement be “continuous and apparent” is satisfied if there is, on the quasi-servient land, a feature visible on inspection which is neither transitory nor intermittent – for example, drains or paths. [30] This is to be judged in the light of each particular case, and the nature of the enjoyment in question. [31] In Ward v Kirkland, the absence of a feature which would be seen on inspection and is neither transitory nor intermittent defeated the claim. [32] However, the notion of a visible mark on the land is crucial; absence of visible physical evidence pointing to the existence of an “easement” precludes its implication. [33]

    30. Ward v Kirkland [1967] 1 Ch 194 at 225 (Ungoed-Thomas J).

    31. Pallister v Clark (1975) 30 P&CR 84 at 89 (CA).

    32. Ward v Kirkland [1967] 1 Ch 194 at 225 (Ungoed-Thomas J).

    33. Cf Polden v Bastard (1865) LR 1 QB 156 (unformed and unmade path – no easement); Suffield v Brown (1864) 4 De GJ & Sm 185; 46 ER 888 (Ch) (overhanging bowsprits of ships – no sign of existence unless ship in dock – no easement); Bartlett v Tottenham [1932] 1 Ch 114 (overflow from tank – only temporary and left no mark on the land – no easement).

  4. As to the second element, the test is less demanding than the absolute necessity required for an easement of necessity; in this context, it means needed or required for the convenient and comfortable enjoyment of the dominant land, as was explained in Wilcox v Richardson by Handley JA:[34]

It is clear from the judgment of Thesiger LJ that the test of what is necessary for the purpose of the rule in Wheeldon v Burrows is not the strict test relevant

for the implication of an easement of necessity: see also Wheeler v J J Saunders Ltd [1996] Ch 19 at 31, per Peter Gibson LJ. What is necessary for this rule is what “conduces to the reasonable enjoyment of property” (ibid). Moreover in Schwann v Cotton [1916] 2 Ch 459 at 469, Lord Cozens-Hardy MR said: “The word necessary must not be taken in a rigid sense. The better phrase is that which is used by Lord Campbell … ‘convenient and comfortable

enjoyment of the property’ ….”

Thus the expression means needed or required for the reasonable enjoyment

of the property granted

34. Wilcox v Richardson (1997) 43 NSWLR 4 at 15 (Handley JA).

  1. To similar effect, Meagher JA said:[35]

It is at this point that his Honour's judgment seems, with respect, deficient.His Honour seems to have held that because: (a) there was no exclusive use of lot 276 outside the area found by him; and (b) it was not absolutely essential to the operations of the southern shop that any other area be used, the rights of the sub-lessees did not extend beyond that 4,060 square feet area. This, in my view, cannot be sustained; the appellants have proved that they had rights of a Wheeldon v Burrows (1879) 12 Ch D 31 kind over additional areas, that is, a quasi-easement of a “continuous and apparent” nature which was “reasonably necessary for the enjoyment of the property granted” by the sub-lease. These “additional areas” are the areas which it was proved were used in common with the proprietors of the northern shop. Mr Biscoe QC learned senior counsel for the respondents, resisted this proposition because of his Honour's finding that these areas were not essential for the conduct of the southern shop. In my view this is to apply too stringent a test. The additional areas were “reasonably necessary” within the rule. To take an example: if you are going to fillet fish, it is “reasonably necessary” to have a filleting bay; and this “reasonable necessity” does not disappear because it would be possible to fillet the fish in one's kitchen at home.

35. Wilcox v Richardson (1997) 43 NSWLR 4 at 8 (Meagher JA).

  1. Mr Brown says that in 1982, the track ended about half-way across Lot 130, at the power lines (in the middle of Lot 130). The track is visible, though faintly, on a 1979 aerial photograph; as Mrs Rixon accepted, on the photograph it appears to have then ended “a long way short” of where it does now (near her house, on Lot 5). Mrs Rixon said that on the initial inspection of the property they drove more or less to the location where her house now is. She said that the track was then “just indentations in the ground and lots of grass on it”, but “there was definitely a track there”, although not nearly so well defined as now, and “whether it went much further (than it appears to in the 1979 photo) or whether I just followed the wheel tracks of the car in front of me, I couldn’t say”.

  2. While it is not possible from the poor-quality photo reproductions in evidence to be certain of where the track then ended, it makes sense that it would then have ended at the powerlines: access to the powerlines would have been required by the authority responsible for their maintenance, but there being no house on Lot 5 there is no reason why the track would have extended beyond the powerlines to the house location. The evidence does not establish that the track extended beyond the powerlines, let alone to the boundary. Although Mrs Rixon was taken via the track (and then, probably across country) to inspect the property, it is not established that prior to the transfer to her, the defendant was in the habit of using the track to access Lot 5; Mr Brown denied that he did so, and there is no evidence to the contrary. In those circumstances, I cannot be satisfied that at the time of the transfer to Mrs Rixon and her then husband in 1982, the track constituted a continuous and apparent quasi-easement, or that it was used by the Browns to access Lot 5.

  3. Accordingly, on the assumption that there is room within the Torrens system for an easement to arise by implication, at least as against the grantor, the facts here are insufficient to support an easement of necessity, or under the rule in Wheeldon v Burrows. But although insufficient of themselves to warrant implication of an easement under Wheeldon v Burrows, those facts are not irrelevant to the plaintiff’s estoppel case, to which I now turn.

The estoppel case

  1. The plaintiff’s case is put primarily on the basis of an equitable proprietary estoppel, the elements of which were articulated by Brennan J in Waltons Stores (Interstate) Ltd v Maher [36] as follows:

… it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

36. (1988) 164 CLR 387 at 428-9. See also Duic v Duic [2013] NSWCA 42; Waddell v Waddell [2012] NSWCA 214; Walsh v Walsh [2012] NSWCA 57; Tadrous v Tadrous [2012] NSWCA 16; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; Evans v Evans [2011] NSWCA 92 and Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483.

  1. Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption, in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption. [37] While it is essential to an equitable estoppel that the defendant knows or intends that the party who adopts the assumption will act or abstain from acting in reliance on it,[38] and such knowledge or intention may easily be inferred where the adoption, assumption or expectation is induced by the making of a promise or representation, it may also be found where a defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when, in conscience, objection ought to be stated. [39] The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation, to fulfil it, or otherwise to avoid the detriment which that failure would occasion. [40]

    37. Grundt v Great Boulder Gold Mines Limited (1937) 59 CLR 641, 675; Thompson v Palmer (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 404 (Mason CJ and Wilson J).

    38. Crabb v Arun District Council [1976] Ch 179, 188; Waltons v Maher, 423 (Brennan J).

    39. Waltons v Maher, 423 (Brennan J).

    40. Waltons v Maher, 423 (Brennan J).

  2. While numerous judicial and academic attempts have been made over the years to catalogue the elements of an estoppel of this type,[41] it suffices for present purposes to observe that, at least generally speaking, the matters that a plaintiff must establish to found such an equitable estoppel may be characterised as comprising certain conduct of the plaintiff, certain conduct of the defendant, and certain qualities of the subject matter, which for present purposes, may be sufficiently summarised as follows. First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant or that the plaintiff had or would acquire some interest in the defendant’s property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff’s potential detriment, and that the expectation could be fulfilled only by transfer of the defendant’s property, a diminution of the defendant’s rights or an increase in the defendant’s obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy. Ordinarily the relevant conduct of the plaintiff (assumption or expectation) and that of the defendant (encouragement or acquiescence) will be factually interrelated and interwoven. [42]

    41. See, for example, Fry J’s five probanda in Willmott v Barber (1880) 15 ChD 96; Brennan J’s six proofs in Waltons v Maher, above; Priestley JA’s seven propositions in Silovi Pty Limited v Barbaro (1988) 13 NSWLR 466, as modified in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582; and Meagher, Gummow and Lehane’s six common factors in Equity Doctrines and Remedies, 4th Edition (2002), [17-105]

    42. See generally Waltons v Maher, 428-429 (Brennan J); Meagher, Gummow & Lehane, [17-105]; O’Neill v Williams [2006] NSWSC 707 at [40]; Vukic v Grbin [2006] NSWSC 41 at [28].

The plaintiff

  1. The plaintiff’s case is that in reliance on an assumption that she was and would continue to be entitled to exercise access to Lot 5 over the track, she:

  1. located her home on the property by reference to the path of the track and point where it entered her property, at a place which was in a practical sense inaccessible if the track were not available;

  2. expended labour and/or money on the maintenance and improvement of the track, including slashing and grading, and extending the track to her home, and installing a cattle grid on Lot 130 at the gate where the track leaves the Princes Highway; and

  3. refrained from taking steps to enforce her rights and/or explore alternative means of access.

  1. Although she did not say so directly in her affidavit evidence, in oral evidence Mrs Rixon gave evidence to the effect that, when she made the decision to purchase the property and until 2005, she believed that the track was the lawful access to the property. She was asked:

Q. When you decided to purchase the property, what did you believe were the access arrangements so as the property was concerned?

A. Well I thought we’d just go through the gate that was unlocked to show us the property.

Q. You also tell us in your affidavit and also in your oral evidence that, after you’d contracted to the property but before it was settled, you had a conversation with Mr Brown in which you say you sought permission to take a house onto the property?

A. Yes, that’s right.

Q. Why did you think you needed permission to take the house on?

A. Because we didn’t own it yet.

  1. Although I have rejected her claim for a Wheeldon v Burrows easement, it is not without significance, when considering the estoppel case, that the track existed (albeit in primitive form), was visible (at least as far as the powerlines), and crucially, was used as the access when the plaintiff was shown the land by or on behalf of the vendor. If an intending vendor takes the purchaser onto the property to inspect it by a particular access route, and does not then say “Of course, you’re not legally entitled to use this access”, that is calculated to create, or at least contribute to, an assumption on the part of the purchaser that the route used was an available access to the property. Such an assumption is an obvious one to form from being taken onto the property to inspect it via that route, and fortified if the gate, which had been locked, is thereafter left unlocked. It is improbable that Mrs Rixon and her then husband would have purchased a property which, apart from the track, had no obvious means of vehicular access, and to which they were shown no other such means, unless under the impression that the track was lawful access.

  2. In connection with placement of the house, Mrs Rixon could not be accused of overstatement; when asked whether she would have put the house in the same place if she had thought that she would not be entitled to use the track, she said “Probably not”, and that she would probably have located it closer to wherever the access entered the property. However, the objective facts, visible on the view, are eloquent. The house was placed just inside Lot 5, adjacent to its boundary with Lot 130, on the high point of the property, closely proximate to where the track reached the boundary. It was plainly placed there on the basis that access to and from it would be via the track. If access was to be via the Tomakin Road, then it would have been necessary to construct a road and bridge to reach the place where the house was located. Similarly, if access was to be via Queen Street or School Road, where there was no constructed access, significant construction works – including in the latter case a crossing of Tomakin Creek – would have been required. While the location is less disadvantageous in relation to an access via the Mogo Cemetery and the crown road through Lot 204, through which the suggested access runs, a much lengthier and steeper transit of Lot 5 would have been involved from the access point to the present house location than with access via the track. If access were not via the track, the house would self-evidently have been located closer to the available access. Mrs Rixon’s understated evidence reinforces rather than detracts from her credibility; that the house was located by reference to accessibility via the track is, in the vernacular, as “plain as a pikestaff” on inspection of the property, and bespeaks an assumption that she was entitled to access over the track.

  3. It does not tell against such an assumption that, as I have found, Mrs Rixon sought the vendor’s permission to place the house on Lot 5. The house was placed on the land before settlement of the purchase, although after exchange, and a purchaser under contract who has not taken possession would not normally assume a right to enter onto the property; in those circumstances a request for permission to take the house onto the property before settlement does not tell against the assumption that she would entitled to use the track as of right upon completion; to the contrary, such a request would be expected if the access were to be used before completion.

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

  1. It follows that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land since 1982.

  2. There is no physical feature of the servient land that would constrain use by the Rixons’ buses. Lot 130 was (and remains) vacant and unimproved; user of the track would not foreseeably (at the time of the purchase) and does not now occasion inconvenience to any occupant or user of Lot 130. While it can be accepted that at the time of Mrs Rixon’s purchase there was no contemplation, on either side, of the establishment of a bus business, nonetheless given the size and rural nature and history of the property, it would have been anticipated that the access to the property would be used from time to time by heavy vehicles – including for example cattle trucks, and/or milk tankers to and from a dairy. While much was made of using the track for buses to pass and repass, there is little practical difference between buses on the one hand, and cattle trucks or milk tankers on the other.

  3. I do not accept any relief should be conditional upon the plaintiff obtaining such lawful approvals as are necessary to use her property as a bus depot. So far as the evidence reveals, use of the property as a “bus depot” has been permissible under the applicable planning instrument at all material times, subject to the council’s consent; in other words, it is not a forbidden purpose for which the land cannot be used. Council’s consent has not been obtained, but it is not clear that merely parking buses on land constitutes use of the land as a “bus depot”, given that the buses are fuelled, maintained and serviced elsewhere. And even if the use is not permissible under the relevant planning instrument, that is a matter for the relevant planning authorities to address under their laws, not for the defendant to seek to enforce through restricting access. The defendant has a legitimate interest in the use of the easement, to confine it to reasonable user, but it has no legitimate interest in whether or not there has been any requisite planning consent for the parking of buses on the neighbouring property.

  4. Nor is there any significance in the circumstance that the proprietors of the business (Mr and Mrs Rixon) are not identical with the proprietor of the dominant land (Mrs Rixon alone); for example, an easement is available to tenants of the dominant owner.

  5. A question remains as to the width of the easement. Although survey evidence was presented of a 10-metre easement, Mrs Rixon indicated that she sought only a 4-metre easement, covering the width of the track; the notion of a 10-metre easement had, she said, emerged from discussions between her and Mr Brown in the course of negotiations between them. It was submitted for the defendant that if there were to be an easement, a 10-metre easement would be preferable, but there was no compelling reason for this contention, which I suspect was derived from the evidence that the compensation for a 10-metre easement, at least if imposed under s 88K, would be greater than for a 4-metre easement. No basis for an easement wider than approximately 4 metres is established.

  6. Thus, the plaintiff’s assumption that she had legal access via the track in general terms founds the equitable equivalent of an express grant of a right of carriageway over the track, 4 metres in width, in general terms for all purposes, so that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land. Absent any physical feature of the servient land that would constrain such use, the easement accommodates use by the Rixon’s buses. The plaintiff is entitled to a transfer of a right of carriageway to that effect. [69]

    69. Cf Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR [97,358] at 7.

section 88K EASEMENT?

  1. Given that I have concluded that the plaintiff is entitled in equity to an easement over the track, it is unnecessary to resort to (NSW) Conveyancing Act 1919, s 88K, to impose an easement. I shall therefore state relatively shortly the conclusions which I have reached in respect of the s 88K application.

Reasonable necessity: s 88K(1)

  1. An order under s 88K(1) imposing an easement may be made only if the easement is “reasonably necessary for the effective use or development” of the dominant land. While the words of s 88K(1), rather than some substituted phrase, must be applied, the word “reasonably” points to something less than absolute necessity, but “reasonably necessary” involves more than mere desirability, preferability over the alternative available means, or convenience; the requirement is far closer to necessity than it is to convenience. [70]

    70. 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 508-509; D&D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419; Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at [154]; ING Bank (Australia) Ltd v O’Shea (2010) 14 BPR 27 at [52]-[53].

  2. The factors that inform whether an easement is “reasonably necessary” cannot be considered in isolation; ultimately the question is determined by the evaluation of all the factors in conjunction with each other. [71] The relevant factors include the impact of the easement on the servient tenement, the fact that ordering an easement detracts from the property rights of the owner of the servient tenement, and the reasonableness of the use for which the easement is proposed. [72] However, one essential consideration is the alternative methods by which effective use or development of the dominant land could be achieved. [73]

    71. Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at [159].

    72. ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27 at [48]-[49]; Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at [156]-[157].

    73. Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at [158].

  3. Even on the assumption that access is not available over the track, I am unsatisfied that an easement under s 88K, whether over the track or one of the alternative proposals, is “reasonably necessary for the effective use or development” of Lot 5. No doubt an easement of the track, or one of the alternative options, would be highly convenient, and much more so than the legally available alternatives; but the Queen Street option, though it would require construction and expense, is not impracticable, and on Mrs Rixon’s own evidence would be acceptable to her; she said:

Q. You said in the course of your evidence this afternoon that, if some access other than over the existing rack could be made available, you’d be happy with that, or something along those lines. As I understand the evidence given by Mr Millett yesterday, he essentially says that, if you couldn’t have legal access over the track, option 4, then he would recommend that access be permitted at Queen Street?

A. I think that’s what he said, yes.

Q. So if you could have legal access to the highway over Queen Street, is that an acceptable option to you?

A. Yes, it is.

  1. Lot 5 can be effectively used and developed by constructing an access using Queen Street, without acquiring an easement over Lot 103. For the purposes of s 88K, an imposed easement is not reasonably necessary.

Other matters: s 88K(2)

  1. Were I wrong about the question of “reasonably necessary”, I would have concluded that an easement utilising Option 7 (Access Option 1) was to be preferred, on the basis that it involved the minimum disruption to the defendant’s land consistent with providing practical access over Lot 130 to Lot 5. I do not regard Option 5 (the Cemetery) as a practical alternative, due to the environmental constraints which are likely to inhibit it, and because it would not meet SISD requirements. Although Option 8 (Access Option 2) would reduce the scale of earthworks, as compared to Option 7, the evidence does not establish that Option 7 would not be approved. Its impact on Lot 130 would be slight, and it would not preclude any reasonable development or use of Lot 130.

  2. For the purposes of s 88K(2), I would have accepted that the use of Lot 5 (the land having the benefit of the easement) would not be inconsistent with the public interest, and that the owner of Lot 130 (the land to be burdened by the easement) could be adequately compensated for any loss or other disadvantage that would arise from imposition of the easement. I would also have accepted that all reasonable attempts have been made by Mrs Rixon to obtain the easement or an easement having the same effect but have been unsuccessful. Those efforts include extensive inquiries, correspondence and discussions with the Eurobodalla Shire Council and RMS.

Valuation and compensation

  1. Evidence of value was adduced, by the plaintiff from Mr Wayne Riches, and by the defendant from Ms Symons. The evidence covered the compensation for an easement over the existing track (Option 4), and alternatively a fee for a license to use the existing track; an easement for “access option 1” (Option 7); and an easement for “access option 2” (Option 8).

  2. Although they used somewhat different methodologies, for the most part there was remarkable consistency in the outcomes, given the difficulties and scope for difference of opinion in the valuation of an easement. Thus, based on a 10-metre easement:

  1. Mr Riches valued Option 8 at $20,428 (as a 4-metre easement) and $29,338 (as a 10-metre easement), and Ms Symons at $20,413.

  2. Ms Symons valued Option 7 at $20,780, and while Mr Riches did not value that option, it is broadly consistent with both valuations of the comparable Option 8 – allowing that the impact on Lot 130 of Option 7 would be less than option 8.

  3. Ms Symons valued Option 4 (easement) at $33,971. Mr Riches did not directly value a 10-metre easement for this option, but valued a 4-metre easement at $20,000 (on the incorrect assumption that there was no dwelling entitlement). His valuation requires at least the following adjustments:

  1. substituting his market valuation in 2016 “with dwelling entitlement” of $285,000, for the “without dwelling entitlement” valuation that he used. This results in the analysis producing $3.73sqm. Applied to a 10-metre easement (which, according to the survey plan tendered, would affect 3,259sqm), at an affectation of 50% (reduced from his 85%, on account of the wider easement), the land value component would be $6,078;

  2. the severance component, which he allowed at $2,000 on the basis of only agricultural use, would be increased where the highest and best use is rural residence and the easement runs through the centre of the property, to at least $10,000; and

  3. the decrease in value of the remainder of the land due to the impact of the easement, which he allowed at $15,000 on the basis of agricultural use only, would also increase; he allowed $15,000 for the considerably less intrusive Option 8, which should be increased to at least $25,000.

  1. Accordingly, on Mr Riches’ approach, a 10-metre easement over the existing track would apparently warrant compensation in excess of $40,000; I can safely accept Ms Symons’ valuation as not excessive.

  1. As discussed with counsel during the hearing, on that basis, it was accepted that there could be no serious dispute with allowing compensation of $20,000 for Option 7, $22,500 for Option 8, and $30,000 for the track (Option 4).

Conclusion

  1. My conclusions may be summarised as follows:

  2. As there were alternative means of access available as of right, albeit that they may have been inconvenient and expensive to construct, the conditions for implication of an easement of necessity are not established – even assuming that one can arise in the context of Torrens title land.

  3. Although Mrs Rixon was taken via the track (and then, probably across country) to inspect the property, the evidence does not establish that the track then extended beyond the powerlines, let alone to the boundary; moreover, it is not established that the defendant had been in the habit of using the track to access Lot 5. In those circumstances, I cannot be satisfied that at the time of the transfer to Mrs Rixon and her then husband in 1982, the track constituted a continuous and apparent quasi-easement of the Wheeldon v Burrows variety – again, assuming that one can arise in the context of Torrens title land.

  4. In deciding to purchase Lot 5 (to which there was otherwise no practically available vehicular access), and in locating her house on it (at a place which in a practical sense was inaccessible if the track were not available), Mrs Rixon relied on an assumption that she was entitled as of right to access her property using the track. Falsification of that assumption now would occasion her substantial detriment, in that she would be left with a property which is in a practical sense land-locked, and a house which she could access only by constructing a new access, at considerable inconvenience and cost.

  5. By using the track to show the plaintiff the property for the pre-purchase inspection, and indicating to her that she should use the track to install he house, without stipulating that the track was not legal access or that there was any restriction or limitation on its use, the defendant is so implicated in the plaintiff’s purchase of the property and installation of the house on it, reliant on her assumption that she was entitled as of right to use the track, as to render it unconscionable now for it to deny the truth of that assumption, given the detrimental consequences that such a denial would have.

  6. Although the parties may not have turned their mind to it at the time in legal terms, the plaintiff’s assumption, of which the defendant knew or ought to have known, was that she was entitled in perpetuity to use the track as of right, not as a matter of permission of the defendant – that is, in legal terms, that she had an easement. In those circumstances, the appropriate remedy is an easement, and her equity would not be satisfied by a mere licence.

  7. The plaintiff’s assumption that she had legal access via the track in general terms founds the equitable equivalent of an express grant of a right of carriageway over the track, 4 metres wide, in general terms and for all purposes, so that any user not inconsistent with the physical characteristics of the servient tenement is permissible, notwithstanding changes in use of the dominant land. Absent any physical feature of the servient land that would constrain such use, the easement accommodates use by the Rixon’s buses. The plaintiff is entitled to have transferred to her such a right of carriageway.

  8. As Lot 5 can be effectively used and developed by constructing an access using Queen Street, without acquiring an easement over Lot 130, for the purposes of s 88K, an imposed easement is not reasonably necessary. Thus I would not have granted relief under s 88K. Were I wrong in that conclusion, I would have preferred Option 7, being the least intrusive on Lot 130, for which appropriate compensation would have been $20,000.

  9. The plaintiff has substantially succeeded on her primary case. Although she failed on the “implied easement” case, it had no significant impact on the overall costs of the proceedings, and is not severable from the estoppel case. The plaintiff would also have failed on the s 88K case, but it was an alternative case, brought as a reasonable response to the circumstances which confronted the plaintiff, which overlapped in several respects with the estoppel case, and added little to the overall costs, not least because the options addressed under it were advanced as alternatives to the requirement for access over the track. Essentially, the litigation was caused by what I have found to be the defendant’s wrongful refusal to acknowledge and accept the plaintiff’s rights of access over the track, and for that reason the defendant should be regarded as responsible for the litigation. The defendant should bear the plaintiff’s costs.

  10. However, this does not extend to the costs of creating the legal easement to which the plaintiff is entitled. The plaintiff as transferee should bear the costs of any further survey (in the event that one is necessary), and of preparation and registration of the s 88B instrument and transfer creating easement.

  11. The Court:

  1. declares that the plaintiff is entitled to an equitable right of carriageway (as defined in (NSW) Conveyancing Act 1919, Sch 8), burdening Lot 130 in DP755902 and appurtenant to Lot 5 in DP835976, over the gravel access track as depicted in the plan prepared by Conway Burrows + Hancock dated 24 August 2015, being exhibit PX11 in the proceedings, save that the easement is 4 metres and not 10 metres in width;

  2. orders that the defendant do all things and execute all documents, in registrable form, necessary to transfer to the plaintiff, at the plaintiff’s cost, an easement in accordance with the declaration in par 1;

  3. orders that there be liberty to apply in the event of any difficulty arising in the implementation of order 2; and

  4. orders that the defendant be permanently restrained from interfering with or obstructing the use by the plaintiff and those authorised by her of the said easement.

  5. orders that the defendant pay the plaintiff’s costs.

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Endnotes

Decision last updated: 26 September 2017

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