S S and M Ceramics Pty Ltd v Kin

[1995] QCA 437

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1995

Brisbane

[S.S. & M Ceramics v. Kin & Ors)

BETWEEN:

S. S. & M. CERAMICS PTY LTD

Appellant/Plaintiff

AND:

YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE, FRANK LEE,

JAMES LEE and PETER LEE

Respondent/Defendants

Macrossan CJ McPherson JA Ambrose J

Judgment delivered 03/10/1995

Separate reasons for judgment of Macrossan CJ, McPherson JA and Ambrose J;
Macrossan CJ and McPherson JA concurring as to the orders to be made, Ambrose J
dissenting.

APPEAL ALLOWED. ORDERS BELOW SET ASIDE AND IN LIEU DECLARE THAT THE INDENTURE OF NOVEMBER 1955 CONFERS NO RIGHT UPON THE RESPONDENTS OF CAUSING OR PERMITTING VEHICLES TO BE STOPPED UPON THE AREA OF THE SERVIENT TENEMENT FOR THE PURPOSE OF LOADING OR UNLOADING GOODS FOR THEIR BUSINESS. THE RESPONDENTS TO PAY THE APPELLANT'S COSTS OF THE APPEAL AND OF THE PROCEEDINGS BELOW.

CATCHWORDS:	EASEMENTS - Whether grant of right to "pass and repass" carries with it a right to stop vehicles upon the servient tenement to load and unload goods.
Counsel:	Mr P. McMurdo QC with Mr Davis for the appellant. Mr P. Keane QC with Mr Webb for the respondents.
Solicitors:	Vandeleur & Todd for the appellant. Arnell & Cooper for the respondents.
Hearing Date:	17/07/1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1995

Brisbane

BeforeMacrossan CJ

McPherson JA

Ambrose J

[S.S. & M. Ceramics v. Kin & Ors]

BETWEEN:

S. S. & M. CERAMICS PTY LTD

Appellant/Plaintiff

AND:

YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE, FRANK LEE,

JAMES LEE and PETER LEE

Respondent/Defendants

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 03/10/1995

The appellant, S.S. & M. Ceramics Pty Ltd is the present owner of land in

Innisfail in an area described as the business district. The respondents own land in

the area on which they conduct a shop selling fruit and vegetables. The respondents'

shop fronts Edith Street and at the rear of the block on which their shop structures

stand, they have the benefit of an easement providing access along a delineated route

from a side street. This easement passes over land in the ownership of the appellant.
In the proceedings below the appellant sought declarations restraining certain

of the respondents' activity purportedly in exercise of their rights under the easement.

Fundamentally, the appellant objects to the actions of those who, in bringing goods to

the respondents' shop and, perhaps, making deliveries from it, park vehicles upon the

easement area during loading and unloading operations.

Restraining orders in rather wide terms were originally sought under the

appellant's notice of motion but the ambit of the order sought became restricted by the

terms of the notice of appeal filed by the appellant following its failure before the Judge

below. After debate which occurred when the appeal hearing commenced, the issue

was further refined and the appellant announced that it contended for no more than a

declaration that the respondents were not, under the easement in question, entitled to

cause or permit vehicles to be stopped upon the easement area for the purpose of

loading or unloading goods. Argument on the appeal proceeded on this issue which

was, in substance, the question which had been decided against the appellant below.

The easement was granted in 1955. It was described as a right of way and

came to be registered as an encumbrance under the Real Property Act. The relevant

terms of the easement were as follows:

"... the grantor hereby as beneficial owner grants unto the Grantee full and free right and liberty for it and its tenants agents servants visitors customers and licenses of any tenant of the grantee in common with all other persons having the like right at all times hereafter on foot or on horseback by day or by night with or without motor cars trucks horses carts carriages or other vehicles of any description for all purposes connected with the use and enjoyment of the said dominant tenement by the grantee for the purpose of any business being carried on on the said dominant tenement by the grantee or by its tenants agents servants or licensees to pass and repass in or through over or along the said servient tenement for all purposes connected with the use and enjoyment of the said dominant tenement to the end and intent and provided that the said grantee shall observe and perform all the terms covenants and conditions herein contained and on its part to be observed and performed and to hold the said right of way hereby created and granted as appurtenant to the said premises of the grantee."

In the argument on the appeal no other parts of the document were referred to

as relevant to the meaning to be attributed to it. Attention concentrated upon the

aspect that the right was one "to pass and repass" with, amongst other things, motor

cars, trucks and other vehicles. However, certain factual circumstances were said to

bear upon the construction of the easement and the extent of the right granted by it.

At the time of the grant in 1955 the dominant tenement had been conducted as

a business. There had been a shop upon the land for some twenty years prior to that

date but the shop premises which had been constructed did not extend over the whole

of the land comprising the dominant tenement. There was a significant amount of

vacant space at the rear not covered by structures. The open space at the rear within

the boundary where the right of way abutted the dominant tenement was not less than

about eleven metres and in places was as much as sixteen metres in depth. The right

of way corresponded in width with the rear boundary of the dominant tenement, i.e.

some 10.2 metres. In making their submissions on what they contended were

relevant features, counsel for the appellant mentioned these matters. Counsel for the

respondent took no issue upon their accuracy and appeared to be content to argue

their case upon the assumption of their correctness. Clearly at the date of the grant

there was a generous area at the rear of the dominant tenement which vehicles

making or receiving deliveries could utilise for parking purposes. The judge below

appears to have decided the matter upon the basis that 'sufficient space' was available

for parking there at the date of the grant.

At some time after 1955 and at least by 1977 the structures on the dominant
tenement were extended to the rear of the allotment so that the capacity to provide

parking within its confines was lost. There was no suggestion that any extensions to

the structures on the dominant tenement were in contemplation at the time the

easement was granted in 1955.

In deciding against the claim made by the appellant the Judge below accepted

that on its face the phrase, "pass and repass" would not, in its ordinary meaning,

include the activity of parking carried out for the purpose of loading or unloading goods

but he considered that certain decisions supported the existence of such a right when

granted in those terms. Sometimes the circumstances as they existed at the date of a

grant supported a broader interpretation of the right and the Judge felt there was an

implication extending the ambit of the right when the dominant tenement was being

used for a substantial business such as a shop. He considered the cases showed that

if the passage of goods to and from a dominant tenement was contemplated at the

date of the grant of a right of way in terms like those here, that is a right to pass and

repass, then unless some "special feature of the grant" excluded the possibility, there

should be regarded as being included a right to park for loading and unloading

purposes. While not defining the special feature which could exclude the right to park

he seemed to consider that it was up to the owner of the servient tenement to show

that the right was not included in a grant in this form and that nothing in the

circumstances here had that effect. Presumably if the grant said specifically that

there was not included any right to park for loading purposes, it would be regarded as

a "special feature" having the effect of excluding the right.

The Judge accepted that the right given by a grant in the form in question would not expand due to some later change in circumstances and that would particularly be the case if it were brought about as a result of the grantee's deliberate

actions, that is unless the changed circumstance could be regarded as being within

the contemplation of the parties at the time of the grant. There could then be an

implication of a more extensive right. The Judge thus identified the precise question

for decision as being whether the right to park for the purpose in question was

excluded because at the date of the grant there was ample parking available on the

dominant tenement itself. The appellant did not accept that it bore any onus, but did

accept that the availability of parking at the time of the grant was the deciding issue in

this case.

The decided cases do not deal with the precise issue that has been identified,

but Counsel for the respondents claimed that two cases in particular, when examined,

sufficiently supported a principle which could be stated and would conclude the appeal

in their favour. It will be necessary to consider these two cases, the appellant's

contention being that they did not offer the support for the respondents which was

claimed. However, it will be convenient first to state more precisely the arguments

presented.

The respondents contended that it had become established by the cases, that

for business premises a right of way in terms to pass and repass carried with it a right

to stop vehicles upon an attached easement area to load and unload goods. The

appellant accepted that an entitlement to reasonable use of the right actually

conferred was carried by the grant and that what was necessary to its enjoyment and

perhaps also what was clearly incidental to it would be implied. However, the

appellant contended that a right to pass and repass did not, by itself, include a right to

park or to stop vehicles for the significant periods that might be involved in the loading and unloading of goods and that an additional right of this nature could not be

regarded as included by implication in the circumstances as they were shown to exist

in the present case. The appellant was prepared to accept that if at the time of the

grant there was no capacity for parking on the dominant tenement, then a bare right to

pass and repass to shop premises of the kind in question would, by implication, have

carried with it the right to stop on the easement area to load and unload. However, it

contended if the right was not to be implied by any considerations of that kind then the

owner of the dominant tenement could not at a later time by voluntary construction

work not shown to have been specifically in contemplation at the date of the grant

cause the grantee's right to be expanded to include it. It submitted that the cases did

not decide anything to the contrary.

Counsel for the respondents contended that where the dominant tenement is

conducted as business premises to and from which the passage of goods is to be

expected, the activity of stopping for the purpose of loading and unloading is as a

matter of construction in such circumstances to be taken as included unless

something specifically excludes it, for example, express words denying it found within

the grant. They relied on two cases in particular, Bulstrode v. Lambert (1953) 2 All

E.R. 728 and McIlwraith v. Grady (1968) 1 Q.B. 468. However, when those cases are

examined and allowance is made for their particular facts, it does appear that they do

no more than encourage an approach of looking closely at the circumstances in

existence at the time of the grant to determine the extent of the right conferred. The

particular facts involved in the two cases have to be borne in mind when the

observations appearing in the Courts' reasons are considered.

In Bulstrode v. Lambert the easement in question gave an express right to pass
and repass providing access to premises on which a business was conducted at the

time of the grant. The access extended across a yard to an entry door at one side

leading into the premises. In the circumstances there was found to be an implied right

to bring in and take out from the premises goods of the nature referable to the

business (it was a furniture business), and to do this using vehicles of a size which

could be expected. A further implication found in the circumstances was that there was

a right to halt in the yard to load and unload because otherwise there would be no

point or utility in the access right conferred. That is, there were two necessary

implications found to arise as a direct result of the condition that the premises were in

at the time of the grant. This case would provide a helpful comparison only if the

present case was one where at the time of the grant in 1955 the back area of the

dominant tenement adjoining the easement access area had been so fully built over

that there was no reasonable opportunity for parking upon it, but this was not so. The

building extension which resulted in the loss of an opportunity to park on the dominant

tenement was made many years after the grant of the right.

In McIlwraith v. Grady the owners of a grocer's shop had the benefit of an

easement giving a right of way to pass and repass with or without horses, carts and

carriages from the back of their premises across a yard to the roadway. Over the

years the use of the dominant tenement changed and it became a sub-post office. At

page 476 the Master of the Rolls, Lord Denning, stating the principle that "every grant

must be construed in the light of the circumstances" and looking at the circumstances

saw that there was "a narrow passageway leading to a small yard" so that "there was

necessarily imported, in addition to an actual right to pass and repass, also a right to

stop for a reasonable time for the purpose of loading and unloading." His Lordship said that he "should have thought it obvious in 1901 (the date of the grant) that carts

could come and unload provisions for the grocer's shop. So also now the post office

vans can come and stop for ten minutes or more to load and unload the letters and

parcels". The case does no more than illustrate an obvious implication arising from

the circumstances of that particular case at the date of the grant. It does not decide,

as Counsel for the respondents wish to contend that where a right of access is granted

to premises on which a business is conducted then from that single fact alone, namely

the existence of a business and regardless of the other circumstances there will

always be implied by a grant of a right "to pass and repass" a right also to stop in the

easement area to load and unload. The emphasis of these two cases is upon the

necessary enquiry into what was in the contemplation of the parties at the time of the

grant. Whenever it is to be suggested that there is any extension of the right as it

would be conveyed by the literal terms of the grant, this is the question that will arise.

The implication for which the respondents contend in the present case does not

arise under the circumstances as they existed in 1955 and further it is not shown that

there were then any plans in the contemplation of the parties for building over the

vacant area at the rear of the dominant tenement. When the terms of the grant were

being drafted it would have been easy to include specifically the right to stop for the

purpose of loading and unloading if it had been intended to cover that situation.

Instead, the parties chose to make the grant in terms of a limited and strictly defined

purpose, namely to pass and repass.

In the end the considerations which have been discussed should be given

effect to. The limited language of the grant which the parties have chosen to employ

should be observed without expansion of meaning beyond what the words on their face would fairly encompass. A right to park vehicles cannot be regarded as obviously

incidental to the express right to traverse nor can the right to park or stop be regarded

as supported by any implication from the circumstances as they existed at the date of

the grant. The authorities upon which reliance was principally placed to extend the

ambit of the right do not, when closely examined, support the contention. The limited

right which is conferred by the grant in this case cannot fairly be construed as giving

the owners of the dominant tenement the right to use the easement area for such

purposes as might suit them in the conduct of their business or which might, from time

to time, match the exigencies of that business as it shall be conducted. Circumstances

as they existed at the date of the grant including what was shown as then in

contemplation will determine the extent of any implications arising from the language

of the grant rather than the changed circumstances as they subsequently came to be.

The appeal should be allowed and the orders made below set aside and in lieu

it should be declared that the indenture of November 1955 confers no right upon the

respondents of causing or permitting vehicles to be stopped upon the area of the

servient tenement for the purpose of loading or unloading goods for their business.

The respondents should be ordered to pay the appellant's costs of the appeal and of

the proceedings below.

IN THE COURT OF APPEAL	[1995] QCA 437
SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Ambrose J.

[S.S. & M. Ceramics v. Kin & Ors.]

BETWEEN

S.S. & M. CERAMCIS PTY. LTD.

(Plaintiff) Appellant

AND

YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE,
FRANK LEE, JAMES LEE and PETER LEE

(Defendant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 3rd day of October 1995

The facts are set out in the reasons of the Chief Justice, which I have had the

advantage of reading.

The critical question is whether the easement of way, granted and registered as a

bill of encumbrance in 1955, confers on the proprietor of the dominant tenement the right

to stop, stand or park vehicles on the servient tenement in order to load and unload goods

destined for the premises on the dominant tenement on and from which the business of

selling fresh produce is carried out. So far as material, the easement confers on the

grantee:

"[the] right and liberty .. at all times hereafter ... with or without motor cars trucks ... or other vehicles of any description for all purposes connected with the use and enjoyment of the dominant tenement ... for the purpose of any business being carried on on the .... dominant tenement by the grantee to pass and repass in through over or along the ... servient tenement ..."

The right is given not only to the grantee but also to the "tenants agents servants visitors

customer and licensees" of the grantee. It therefore includes those who come to the

grantee's premises to make deliveries there.

In essence, the answer to the question posed depends on the meaning of the

expression "right .. to pass and repass" used in the registered instrument. Does it include

the right to halt vehicles on the easement area in order to unload goods for delivery to the

grantee's premises? Read literally, it does not. A right to pass or repass with vehicles

does not in terms confer the right to stop, stand or park vehicles. However, it has been

settled for a very long time that (expressing it in as neutral a fashion as possible) it is not

a misuse of that right to stop and stand for the purpose of off-loading. See generally, Gale

on Easements, 15th ed., at 293ff. After all, it would scarcely be much point in having a right

to unload while the vehicle was moving.

The authorities to that effect are numerous, but they do not distinctly expose the

precise point at issue in the present case. It is whether a right to "pass and repass" carries

with it by implication a further right to halt for the purpose of off-loading; or whether it is

more accurate to say that the right is literally only to pass and repass, while at the same

time it is not an unreasonable exercise of that right to halt in order to deliver goods to (or

receive goods from) the dominant tenement provided it does not unduly impede the

passage of others.

The matter has been stated in one way in some cases; and a different way in others.

In Cannon v. Villars (1878) 8 Ch.D. 415, 420-421, Jessel M.R. said that a grant of a right

of way along a road of requisite width leading to a dwelling house would be a grant of a

right of way for all reasonable purposes of the dwelling house, and would therefore include:

"the right to have a waggon drawn up to the door when the waggon was to bring coals for the use of the dwelling house. Again, if the road is not to a dwelling house, but to a factory, or a place used for business purposes which could require heavy weights to be brought to it, or to a wool warehouse which would require bags or packages of wool to be brought to it, then a grant of right of way would include a right to use it for reasonable purposes, sufficient for the purposes of business, which would include the right of bringing up carts and waggons at reasonable times for the purpose of the business."

The way in which it was stated by his Lordship tends to support the "implied right" theory,

if it may be so called. To the same effect is Elliott v. Renner [1923] St.R.Qd. 172, 176,

180; Bulstrode v. Lambert [1953] 1 W.L.R. 1064; and McIlwraith v. Grady [1968] 1 Q.B.

468, 476. What was said in those cases can be traced back to the remarks of Jessel M.R.

in Cannon v. Villars on the subject.

On the other hand, there are two decisions in New Zealand which seem to me to

approach the question from what I will call the "reasonable user" standpoint. They are

Grinskis v. Lahood [1971] N.Z.L.R. 502, 509-510; and Masters v. Snell [1979] 1 N.Z.L.R.

34, 42, where Chilwell J. said that parking "appears to be a reasonable incidental use of

a right of way". My impression is that in Deanshaw v. Marshall (1978) 20 S.A.S.R. 146,

151, Mitchell J. adopted the same approach. There is a degree of ambivalence in most

of the statements on the subject because in none of the cases has it been strictly necessary

to consider a question of the kind that arises here. This is true also of the American

authorities and commentaries. For example, in 25 Am. Jur. 2d §79, at 487, it said that the

owner of the dominant estate has "no absolute right to park his vehicles on ... the right of way, except in such a manner as not to interfere with the user of the property by the owner

of the servient estate". The passage quoted appears at the end of a paragraph introducing

a discussion of the reasonableness of use of a way granted in general terms. It thus looks

both ways, as I think does the discussion of the question in 37 A.L.R. 2d §2[b], at 946-948.

In these circumstances the matter must be considered as one of principle. The right

conferred is a right only to "pass and repass". The fact that the right to do so is expressed

to be exercisable by using vehicles and it is for business purposes suggests that stopping

to off-load (or load) was something that the parties must have had in contemplation. It is

another question, however, whether they envisaged that the stopping and off-loading would

take place on the easement area. A grantor may not derogate from his grant; equally,

however, the grantee is not entitled to more than is granted. To the extent that more is not

granted, the rights of the grantor remain unqualified and unaffected. Whether the grant of

a right to pass and repass would be rendered nugatory or would be impaired if it did not

carry the right to stop and off-load on the easement area depends on the circumstances

prevailing at the time of the grant. That was the starting point for the interpretation adopted

by Jessel M.R. in Cannon v. Villars. He looked at the nature and dimensions of the road,

the premises to which it led, and the purposes for which the road might be used to serve

those premises. See also St. Emundsbury & Ipswich Diocesan Board of Finance v. Clark

(No. 2) [1975] 1 W.L.R. 468; and ex parte Purcell [1982] Qd.R. 613, 621. Of course, this

consideration would not necessarily exclude possible future redevelopment of the site: cf.

Prospect County Council v. Cross (1990) 21 N.S.W.L.R. 601, 610; but that is something

which is capable of cutting both ways. In 1955 it would have been within the reasonable

contemplation of the parties that either or both of the servient tenement (or the other parts of the adjoining land) or the dominant tenement, might undergo redevelopment at some

time in the future..

The extent of the right therefore falls to be determined in accordance with the

physical facts and circumstances existing at the time of the grant in 1955. At that time the

dominant tenement was so built upon as to leave space for loading and unloading vehicles

on it without the need to stop, stand or park on the servient tenement. It would therefore not

have been necessary at all, or even reasonably necessary, to stop on the easement area

in order to exercise the right of passing and repassing along the easement area. The case

may, to that extent, fairly be compared with one in which a relatively confined right of way

leads through the large area of a dominant tenement which is wholly or partly vacant. In

such a case it would not be a reasonable exercise of the right to pass and repass to insist

on stopping, standing or parking on the easement area when it would be equally convenient

to do so on the dominant land. In such circumstances, it is difficult to see why the servient

owner should have to submit to the exercise of rights over his land which he has never

expressly granted and which were not plainly in contemplation at the time of the grant.

I realise that this conclusion involves an investigation of conditions that prevailed in

the past, and which it may not always be possible to elucidate many years after the event.

To that extent it tends to impair the underlying principle of the Torrens system, which sets

out to maintain the register as the sole repository of parties' rights and duties. But the

same criticism may be levelled with equal force against the principle in Cannon v. Villars

itself. It is that decision which requires an examination of the condition, dimensions, and

uses of passages and buildings at the time of the grant in order to construe the grant and

so found a conclusion that a right to stop, stand or park vehicles was intended to be

conferred by implication.

In these circumstances, it seems to me to be preferable to adhere, so far as

possible, to the terms of the instrument itself, which in this case is the bill of encumbrance

executed in 1955. It conferred the right to pass and repass along the easement area. It

said nothing about parking, stopping, or standing still on that area in order to load or

unload. Such a use would, depending on the particular circumstances prevailing at the

time of the grant, ordinarily be regarded as a reasonable exercise of the power to pass and

repass. But where, as here, the dominant tenement was at that time conveniently available

for that purpose, it would not have been reasonable to use the easement area for that

purpose..

I agree with the order proposed by the Chief Justice.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1995

Brisbane

Before Macrossan CJ

McPherson JA

Ambrose J

[S.S. & M. Ceramics v. Kin & Ors]

BETWEEN:

S.S. & M. CERAMICS PTY LTD

(Plaintiff) Appellant

AND:

YEUNG YAU KIN, NEVILLE LEE, EDWARD LEE,
FRANK LEE, JAMES LEE and PETER LEE

(Defendant) Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 03/10/1995

I have had the opportunity of reading the draft reasons for judgment of the Chief Justice and am

content to adopt the statements of fact contained in them, except with respect to the area of land on the

dominant tenement reasonably available commercially for loading and unloading in 1955 and with the

reservation that in my view there is no evidence as to the use made or contemplated to be made of the

rear part of the dominant tenement in carrying on business at the time when the easement was granted.

The easement in issue was created by deed executed by grantor and grantee on 24 November

1955.

The easement was registered upon the certificate of title of the dominant tenement as a "transfer"
on 18 March 1958 and as an "encumbrance" on the Certificate of Title of the servient tenement on 8

July 1958.

It is the case for the grantor that by its terms the easement only permits travel over the servient

tenement to and from within the boundaries of the dominant tenement and does not even permit goods

to be deposited onto the dominant tenement from a vehicle moving slowly upon the easement past its

rear boundary.

The dominant tenement is a 389.5 m² parcel of land having a 10.4 m frontage to Edith Street

and a 10.2 m rear boundary to part of the servient tenement. It has a depth of about 39 m. These

measurements appear on the plan on the Certificate of Title.

The terms of the easement are set forth in the reasons for judgment of the Chief Justice. The

essential part of the grant reads that the grantor grants to the grantee -

"full right at all times hereafter

for all purposes connected with the use of the dominant tenement by the grantee

for the purpose of any business being carried on on the dominant tenement by the

grantee

to pass and repass

through over or along the servient tenement

for all purposes connected with the use and enjoyment of the dominant tenement."

Under the deed "grantor" and "grantee" include assigns of the grantor and grantee respectively.

The first thing to observe is that by its express terms the easement may be used for the purpose

of any business being conducted on the dominant tenement. It is not limited to the carrying on of the

business which was being carried on upon the dominant tenement at the time the easement was granted

nor indeed to a business of the same kind carried on when the easement was granted.

The terms of the grant with respect to future use of the dominant tenement are such as to

accommodate necessary access to and from the site in the event of a more intensive use of it for

business purposes - Jelbert v. Davis [1968] 1 WLR 589 per Denning MR at 594-5.

In my view, having regard to the object of registration of interests in land under the Real

Property Act compelling reason would have to be shown to read down the express terms of the grant

of easement so that "any business" that might lawfully be conducted on the dominant tenement could use

the easement only if it were conducted in the same manner and with the same structural improvements

as the business conducted by the grantee in 1955.

There is absolutely no evidence as to what use was being made of the rear portion of the

dominant tenement at the time the easement was granted. For all the evidence discloses there may have

been structures of some kind or plant and equipment kept and/or used regularly on the rear portion of

the allotment which would have prevented a vehicle from driving on to it for the purpose of loading and

unloading; even if there were not, the use of land behind any building fronting Edith Street for purposes

other than loading and unloading vehicles may well have been integral to carrying on the grocery

business in a building with customer access from Edith Street. It is a common place for land to the rear

of a shop building to be used for purposes of storing or displaying even if there be no access to that land

from the rear boundary. There was exhibited an application for council approval to build a structure

to the rear of the existing shop building on the dominant tenement to which approval was given on 27

October 1977 - that is 22 years after grant of the easement. I must say I find this evidence of no

assistance in determining what use was being made of the rear portion of the dominant tenement at the

time of the grant of easement. What that plan does disclose however is that between the rear boundary

and the boundary of the "existing building" in 1977 there was an area 10.2 metres wide by 5.2 metres deep upon which construction of a building described as a "new extension" was approved. I have

considered the affidavit of Garry Ernest Hopkins sworn 26 January 1995 and the exhibits thereto. I am

persuaded of the correctness of the view he expressed that the aerial photograph of the dominant

tenement taken on 21 May 1957 shows that at that time the distance between the rear of the main

building and the rear boundary was approximately 16.5 m.

If one accepts that the main building extended from side boundary to side boundary (as

indicated on the building application form), its width was between 10.2 m and 10.4 m.

A simple observation of the dimensions of the building on the dominant tenement depicted in

the aerial photograph shows that its length is 2.2 times its width i.e. approximately 2.2 m x 10.4 m which

is 22.88 m or approximately 23 m.

It would follow that the distance between the rear of the main building and the rear boundary

of the dominant tenement in May 1957 was 39 m less 23 m which is about 16 m, much further than the

5.2 m shown on the building application plan submitted to the council in 1977. In 1957 therefore there

was an area between the rear of the main building and the rear boundary of the dominant tenement of

163 m² approximately. If that area were otherwise unoccupied it would have been sufficient to drive

vehicles on to it for loading and unloading purposes. On the other hand it may have been used to park

private vehicles driven to and from the business premises by people working there or to park and load

delivery vehicles used in the business to deliver goods sold to customers. It may not have been possible

or at least practicable to unload vehicles, perhaps more than one at a time, which delivered stock to the

grocery business upon that area. Although the plan in the building application lodged in 1977

does not purport to be drawn to scale, it does expressly delineate the land then available between the

rear of the existing building and the rear boundary of the dominant tenement as a rectangle 10.2 m by
5.2 m having an area of 53 m².

From the aerial photograph taken in 1957, two years after the grant, showing a distance

between the rear of the then existing main building and the rear boundary of about 16 m, it might be

inferred that between 1957 and 1977 (when the building application was made) the main building had

been extended towards the rear boundary by about 11 m. There is no evidence as to during what

period of time before this action was instituted there had been only 5.2 m between the rear of the

building existing in 1957 and the rear boundary. That was the position certainly by 1977; it may have

been the position shortly after 1957 for all the evidence shows.

Although there is no evidence as to the size of delivery vehicles, I should have thought that it

would have been quite impractical, even if possible, to drive the whole of a moderately sized truck onto

such a small area of 53 m². If one end of the vehicle were brought into contact with the rear of the

"existing building" it seems quite unlikely that the whole of the vehicle could rest on the dominant

tenement without protruding partly over the servient tenement. There would be few trucks or delivery

vehicles which did not exceed 5.2 m in length.

However that may be, it seems unlikely that the business premises would ever have set aside

either the whole or a large portion of the area at the rear of such a small commercial block to be used

only or principally for loading and unloading. It is even more difficult to arrive at such a factual

conclusion when there is no evidence as to the use to which the rear of the premises was being put prior

to or at the time the easement was granted. One can think of many commercial uses to which such an

area - whether 163 m² or 53 m² - could be put today which would not permit occasional loading and

unloading of delivery vehicles. Mr Hopkins expresses the view that the 1957 aerial photograph shows

"a second and much smaller structure at the rear of the main building" 11.7 m from the rear boundary. I am unpersuaded that what is shown on the photograph is necessarily a "structure" - at least one fixed

to the ground. It could be one of any number of items of business equipment, whether fixed or mobile,

appropriate to the conduct of a grocery business dealing also with fruit and vegetables in a tropical city.

In my view it is quite impossible to infer from what the photograph shows to have been on the land on

the day it was taken in 1957, what use was ordinarily made of that land in conducting business on it in

and prior to 1955.

The deficiencies in the evidence as to precisely how the grocery business was being conducted

on the dominant tenement at the time of or prior to the grant of easement, and as to whether any and

what access to the rear of the dominant tenement was permitted over the servient tenement during the

20 years that the grocery business was carried on prior to 1955, and as to whether the land at the rear

of the shop building was being used for the purpose of loading or unloading or some other business

purpose, simply highlights in my view the difficulty and indeed danger of adopting the approach in

construing the deed of grant of an easement 40 years after it was made, of attempting to infer (or

speculate upon) what use was being made at that time of the 163 square metre space which probably

existed between the building fronting Edith Street and the rear boundary of its allotment. For all the

evidence discloses, the grant of easement may simply have regularised a long standing licence enjoyed

by the occupant of the dominant tenement over the servient tenement. The nominal consideration given

for the grant of the easement would be consistent with this having been the situation. If such evidence

were available it could only be used to consider the language of the grant against the background and

in the context of the actual business demands and practice of the occupier of the dominant tenement at

and prior to the grant. The absence of such evidence does not permit any inference to be drawn that

because vehicles could have been loaded and unloaded when driven onto the dominant tenement and entirely off the easement, they therefore probably were and that this assumed fact explains why the

words "pass and repass" only were used in the grant. The decision in Cannon v. Villars (infra) had been

reported three quarters of a century before the grant was drafted and 30 years before it was drafted

the Full Court of Queensland had accepted that what was said in that case was authority for the

proposition that incidental to the right to pass and repass was a right to halt and unload: see Elliott v.

Renner (1926) St R Q 172, 180 and 182 where the view expressed by Shand J at trial at p.176 was

approved.

There is no evidence as to the use made by the grantee and accepted by the grantor of the

easement subsequent to its grant. It is unnecessary therefore to consider the weight which might be

given to such evidence: see Watcham v. East Africa Protector (1919) AC 533 at pp.538-540. In any

event evidence of user would be of no assistance in determining whether a right to load and unload was

incidental to that of one to pass and repass.

In my view, it is unnecessary to go much beyond the terms of the grant of easement in the

context of its shape and dimensions and the size and nature of the dominant tenement to determine the

point in issue in this case. The manner in which business was conducted on the dominant tenement at

any material time could have only marginal relevance in construing the language used in the grant and

there is no extrinsic evidence of that manner in any event.

The essence of the grant is to permit people to pass over the servient tenement for the purpose

of doing such business as is then being conducted on the dominant tenement and to carry things in trucks

etc over the servient tenement for all purposes connected with the use of that dominant tenement - i.e.

the use of the whole of the dominant tenement and not merely the building which happened to be on it

at the time of the grant. Three matters which must be considered when construing the grant of easement
are:

(1)	the locus in quo over which the way is granted;
(2)	the nature of the terminus ad quem; and
(3)	the purpose for which the way is to be used.
In Cannon v. Villars (1878) 8 Ch D 415, in the course of his judgment Sir George Jessel MR

said at p.420-421:

"Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling-house, it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a wagon drawn up to the door when the wagon was to bring coals for the use of the dwelling-house. Again, if the road is not to a dwelling-house but to a factory, or a place used for business purposes which would require heavy weights to be brought to it, or to a wool warehouse which would require bags or packages of wool to be brought to it, then a grant of right of way would include a right to use it for reasonable purposes, sufficient for the purposes of the business, which would include the right of bringing up carts and waggons at reasonable times for the purpose of the business."

One must be careful when considering what was said in Cannon v. Villars to keep in mind that

what the court was there considering was the extent of an implied right of way arising under an

agreement to grant a 14 year lease of a building for the purpose of a specified business. It was not

considering an express grant of an easement for the benefit of land described as "all that parcel of land"

as contained in the registered Certificate of Title referred to in the grant here in issue.

In Bulstrode v. Lambert [1953] 1 WLR 1064, Upjohn J considered the extent of a right of way

reserved by a vendor when conveying part of his property to a purchaser. At the time of conveyance

there were structures on part of the servient tenement in existence which limited to some extent the

passage of vehicles, although passage of people was not limited.

After considering the fact that at time of the reservation in the conveyance there were
obstructions to the passage of certain types of vehicles, which however were removed subsequent to
the grant, he said at p. 1069:

"Pausing there, in my judgment the true effect of those words, that there is a right of way over and along the land coloured brown, cannot be affected by the circumstance that at the date of the grant there was this gate and bar across. The words of the grant are plain and unambiguous, and in my judgment the plaintiff plainly has a right over the whole of the yard coloured brown, and not merely a right to enter through the gates some 6 ft. in width. Not only that: he has a right to enter it with vehicles. That must mean vehicles of any size appropriate to go down the yard, and as the yard is at no stage, until the garage is reached, less than 11 ft. wide, there seems to be no reason why a pantechnicon should not use that yard. Further, the object of the reservation is made perfectly plain: it is 'for the purpose of obtaining access to the building at the rear of the said premises and known as the auction mart." ... it seems to me quite clear that the whole object and purpose of this reservation was to give the plaintiff an alternative means of getting to his business premises; and that means, in the particular case of an auction mart, bringing goods to those premises; furniture and the like for sale on those premises."

His Honour considered whether ancillary to the right to pass and repass for the purpose of

bringing goods to the auction mart the plaintiff had a right "to halt for an hour or more while loading".

At p.1071, he said:

"I again have to look at this reservation and see what it means. I have this in mind: the yard is a cul-de-sac and therefore every car that goes in must at some time come out, and it must halt in that process; further, the plaintiff concedes that the limit of his right must be this, that the car or vehicle or pantechnicon may only halt for so long as required either to remove or stow the furniture, and that there is no other right whatever to halt in the yard.

When I look at this reservation I see that the whole object of it is for the purpose of the vendor, his workmen, and others obtaining access to the auction mart. What is the object of that? It is to get access to business premises, and in particular to a place where goods are going to be auctioned and sold. The plaintiff can do it with or without vehicles. Therefore, as I have already held, he can, in my judgment, bring goods in the vehicles to his auction mart. If he is entitled to do that, then he must, of necessity in my judgment, be entitled to unload them. And if he is entitled to unload them he must, per contra, be entitled to load them.

In my judgment, therefore, the vehicles must be entitled to remain in the yard for such time as is necessary to enable the plaintiff to enjoy his easement of bringing vehicles into the yard; that is, for such time as it takes to load or unload the vehicles. It is only an incident of the right of way expressly granted and may be described as ancillary to that easement, because without that right he cannot substantially enjoy that which has been reserved to him."

In Masters v. Snell (1979) 1 NZLR 34 at p.42, Chilwell J cited Bulstrode v. Lambert as

authority of the proposition that "parking was a reasonable incidental use of a right of way". What is

"reasonable" will depend upon the circumstances of each particular case.

In McIlraith v. Grady [1968] 1 QB 468 Denning MR considered the grant of an easement "to

pass and repass through over and along" an adjacent property to gain access to a grocer's shop. It was

contended by the occupier of the servient tenement that the right to pass and repass gave no right to

stop or halt on the right of way.

His Lordship observed at p.476:

"Mr Howard said: "The deed of grant of the right of way only gives a right 'to pass and repass through over and along'." It does not give any right to stop or halt on the right of way. He submitted that where there is only a right to pass and repass, there is no right to halt except in case of necessity, such as, for instance, if a car broke down or a horse went lame. He suggested that Bulstrode v. Lambert [1953] 1 W.L.R. 1064; [1953] 2 All E.R. 728 supported that proposition. I do not think it does. Every grant must be construed in the light of the circumstances. In that case it was held that there was a right to bring goods to the auction mart and by implication a right to halt to load and unload. So here. There was a narrow passageway leading into a small yard.

There was necessarily imported, in addition to an actual right to pass and repass, also a right to stop for a reasonable time for the purpose of loading and unloading. I should have thought it obvious in 1901 that carts could come and unload provisions for the grocer's shop. So also now the post office vans can come and stop for ten minutes or more to load and unload the letters and parcels. An occasional oil lorry can stay a quarter of an hour. And so forth. If we had taken a different view on the construction of the grant, Mr. Garland said he would have wished to call evidence that over all the years carts and vehicles have stopped in the yard to load and unload. We need not, however, go into it. Suffice it that as a matter of construction the right of way includes a right to stop."

The other members of the court agreed with these observations.

In my view, the circumstances relevant for consideration in determining the extent of the grant of this easement made in 1955 for a nominal consideration are -

(1)	The size of the dominant tenement and the fact that it was used for commercial purposes. It had
a frontage to Edith Street of only 10.43 metres.
(2)	It is one of a number of parcels of land fronting Edith Street from which presumably much of
its retail business was derived and without the easement access to that dominant tenement could
be obtained only from Edith Street.
(3)	For 20 years the land had been used to carry on the business of a grocery shop and farmers
delivered produce to it directly. The size and number of vehicles involved at any one time are
unknown.
(4)	The easement or at least part of it enjoyed by the dominant tenement was enjoyed in common
with the occupiers of three other dominant tenements to gain access to the rear of their parcels
of land with frontages to Edith Street. The size and shape of the easement indicates that the
servient tenement was used principally if not solely for the purpose of giving rear access to a
number of dominant tenements fronting Edith Street of which the defendants land was only one.
Four easements had been granted and registered between 1930 and 1958 when the easement
in issue was registered. Those easements were for the benefit of the defendants' land and the
allotments of land to either side of it.
(5)	To the rear of the dominant tenement the easement has dimensions of about 14.3 m by 10.2 m.

Before reaching the first side boundary of the dominant tenement on approaching it, the

easement has a width of about 5.2 m. The area of easement directly to the rear of the dominant

tenement is therefore about 145 m². Had it been intended to provide an area within the

easement from which vehicles might load and unload goods etc in connection with business conducted upon the dominant tenement and the other dominant tenements adjacent to it, that

purpose could hardly have been better achieved than by making the grant of an easement in the

shape of that in fact made.

The constraint on the extent of use of the easement both by the defendants in the present case

and by the occupiers of the other dominant tenements nearby having a frontage to Edith Street is in

essence its width of 5 m or less and its length and shape until the 145 m² cul de sac is reached behind

the defendants' land, and the fact that part of it at least has to be enjoyed by each dominant tenement

in common with the others. The plans show that for all practical purposes the only function of the area

of the easement within the servient tenement is to provide rear access to allotments of commercial land

with frontages to Edith Street; if the cul de sac area of 145 m² at the end be not used for vehicles to stop

or unload one wonders what the grantor and grantees perceived its use would be. If the appellant's

contention be accepted, the cul de sac would not need to be used for completely turning vehicles within

its perimeter because they would start and finish their journeys over the easement wholly upon the

dominant tenement itself.

In my view, the learned judge was correct in concluding that the right to load and unload upon

the easement within constraints similar to those expressed by Upjohn J in Bulstrode v. Lambert (supra)

was a right necessarily ancillary to the grant of the right to pass and repass for the purpose of the

business carried on for the time being upon the dominant tenement. There is no basis in the evidence

upon which it could properly be concluded that at the time of the grant of easement - or for that matter

at any prior time - goods had not been loaded and unloaded from vehicles stationary or halted on the

area of the easement. They may or may not have been. On the evidence the business of buying fruit

and vegetables from local growers who deliver their produce directly to the dominant tenement has been carried on for 60 years - i.e. for 20 years before the grant of the easement in issue. Even if in fact prior

to 1955 the practice had been for some vehicles to pull on to the dominant tenement or partly on to it

from land within the boundaries of the easement upon the servient tenement when ultimately granted,

for the purpose of loading and unloading goods, that would be no basis in my view for so construing the

terms of the easement on the facts of this case as to deprive the occupier of the dominant tenement of

the ancillary right to load and unload vehicles while they were stationary on the easement if the

constraints of available space from time to time so required.

Having regard to the shape and size of the easement in issue and the location of the 163 m² cul

de sac at its end adjacent to the rear boundary of the dominant tenement, it is difficult to see what

inconvenience to or interference with the use of the servient tenement the exercise of a right to load and

unload upon it would cause. Certainly none was suggested on behalf of the plaintiff which apparently

is a developer which acquired it in 1991 contemplating redevelopment of land in the area. Upon the

evidence I can find no circumstances which justify a construction of the words of grant to exclude the

incidental right to stop vehicles to load and unload goods in connection with the conduct of a grocery

business on the respondents' land as ancillary to that to pass and repass. On the contrary I take the

view that the circumstances support the construction for which the respondent contends.

I would dismiss the appeal.