Theunissen v Barter

[2025] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Theunissen v Barter [2025] NSWCA 50

Hearing dates:

13 September 2024

Date of orders:

31 March 2025

Decision date:

31 March 2025

Before:

Mitchelmore JA at [1];
Kirk JA at [2];
Griffiths AJA at [161].

Decision:

In matter 2024/300418:

(1) The application for leave to appeal is dismissed.

(2) The respondent is to pay the applicants’ costs.

In matter 2024/139728:

(1) The respondent’s competency motion filed on 11 July 2024 is dismissed with costs.

(2) Appeal allowed.

(3) Orders 3, 8, 9 and 12 made by Richmond J on 15 April 2024 are set aside, and in lieu thereof:

(a) Declare that, upon its proper construction, the easement provided for in Transfer Granting Easement 939404 provides the owners of the dominant tenement with sole use and enjoyment of the rooftop area for the purposes of recreation and enjoyment and as a balcony, terrace or garden, subject to the limitations expressed in the easement.

(b) There be no order as to the costs of the proceedings.

(4) The respondent is to pay the appellants’ costs of the appeal.

Catchwords:

APPEALS — leave to appeal — whether leave required

LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public

LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 88B, 88K, 89

Government Information (Public Access) Act 2009 (NSW)

Supreme Court Act 1970 (NSW), s 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), r 51.41

Cases Cited:

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292

Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635

Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39; [2023] NSWCA 22

Barrett-Lennard v River Wind Pty Ltd (2019) 55 WAR 403; [2019] WASCA 199

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Brydall v Owners of Strata Plan 66794 [2009] NSWSC 819; (2009) 14 BPR 26,831

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] HCA 9

Cannon v Villars (1878) 8 Ch D 415

Chick v Dockray (2011) 20 Tas R 167; [2011] TASFC 1

Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845

Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1987) 149 CLR 337

CurrumbinInvestments Pty Ltd v Body Corp Mitchell Park Cts [2012] 2 Qd R 511; [2012] QCA 9

Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39

Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209

Ex parte Professional Engineers Association (1959) 107 CLR 208; [1959] HCA 47

Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; [1998] HCA 15

Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74

Harrington v Browne (1917) 23 CLR 297; [1917] HCA 36

In reEllenborough Park [1956] Ch 131

Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267

Keppell v Bailey (1834) 2 M & K 517 at 536, 39 ER 1042

Laming v Jennings [2018] VSCA 335

Life Insurance Company of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18

Lowe v Kladis [2018] NSWCA 130; (2018) BPR 38,599

Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184

McWilliam v Hunter [2022] NSWSC 342

Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; [2002] FCAFC 228

Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54

Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8

Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337; (2007) 12 BPR 23,793

Petrie v Dickson [2024] NSWSC 972

Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64

Regency Villas Title Ltd v Diamond Resorts Ltd [2019] AC 553; [2018] UKSC 57

Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74

Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13

Sader v Langham [2018] NSWSC 727

Sertari Pty Ltd v Nirimba Developments Pty Ltd

[2007] NSWCA 324; (2008) NSW ConvR 56-200

SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540

Stolyar v Towers [2018] NSWCA 6; (2018) 19 BPR 38,287

Tempe Recreation Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437

Timpar Nominees Pty Ltd v Archer [2001] WASCA 430

Towers v Stolyar [2017] NSWSC 526; (2017) 18 BPR 36,963

Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWSC 716; (2006) ANZ ConvR 453

Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCATrans 336

Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45

Texts Cited:

Matthew Barber, “Problems with Westfield” (2013) 22 Australian Property Law Journal 143

Brendan Edgeworth, Butt’s Land Law (7th ed, Lawbook Co, 2017)

P Herzfeld and T Prince, Interpretation (Lawbook, 3rd edition, 2024)

Macquarie Dictionary

Professor Michael Weir, “Westfield 5 years on” (2012) 21 Australian Property Law Journal 166

Category:

Principal judgment

Parties:

Joshua Reynold Theunissen (First appellant)
Michelle Mei-Ling Theunissen (Second appellant)
Marie Annette Barter (Respondent)

Representation:

Counsel:
J Lazarus SC and R Size (Appellants)
T Alexis SC and C Winnett (Respondent)

Solicitors:
Speiser Lawyers (Appellants)
Hones Lawyers (Respondent)

File Number(s):

2024/300418; 2024/139728

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Real Property List

Citation:

[2024] NSWSC 326

Date of Decision:

28 March 2024

Before:

Richmond J

File Number(s):

2022/00358499

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants and the respondent live on adjoining blocks of land in Mosman, being respectively Lots 1 and 2 in the deposited plan (DP). Lot 1 is a battle-axe block located to the rear of, and at a higher elevation, than Lot 2. The creation of the lots resulted from a subdivision effected by the registration of the DP in July 1994. An instrument setting out five easements was registered at the same time. In February 1996, the precursor to the easement in dispute on this appeal was replaced by the easement now in dispute (the Easement).

The Easement relates to the 78 m² flat rooftop terrace area of the dwelling on Lot 2 (the servient tenement). That area sits immediately in front of the dwelling on Lot 1 (the dominant tenement). To the west the terrace has views over Middle Harbour. The appellants’ home is located on the eastern side of the terrace where there are short steps leading up to an entryway outside glass sliding doors. There is also an openable skylight on the roof of the dwelling on Lot 2. The respondent can currently access the rooftop by attaching a foldable metal ladder to the skylight from a hallway on the top floor of her home, to ascend the ladder, through the skylight and onto the roof, where one side of the railings surrounding the skylight is openable. There are no other ways for the respondent to access the rooftop from her property. The primary judge found that as originally constructed the skylight was not trafficable. He also found that the other features of the lots as described have not changed since the grant of the Easement.

In dispute was whether the Easement grants to the owners of the dominant tenement (the appellants) an exclusive set of rights to use the rooftop terrace for the stated purposes of, relevantly, “the use and enjoyment of the servient tenement for the purposes of recreation and enjoyment and as a balcony, terrace or garden”. The respondent commenced proceedings in the Supreme Court seeking clarification of the parties’ rights on this issue, amongst others. The primary judge held that the set of rights was not exclusive. The appellants appealed from that decision. The respondent filed a notice of motion objecting to the competency of the appeal. The issues to be determined were:

1. whether leave to appeal was required;

2. whether the primary judge erred in holding that on the proper construction of the Easement the rights granted to the dominant owner were not exclusive and, in that regard, whether and to what extent physical characteristics of the tenements could be taken into account (ground 1);

3. whether the Easement would be invalid if construed as granting such exclusive rights (raised by the respondent); and

4. if the rights were not exclusive, whether the primary judge erred by holding that the servient owner was entitled to use the area at the same time as the dominant owner (ground 2).

The Court held (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing), determining that leave to appeal was not required and allowing the appeal (noting that it was not necessary to consider ground 2):

As to leave to appeal

1. It is clear from both the valuation evidence and from a basic understanding of the practical realities that there is at the least a realistic prospect that the appeal would change the wealth of the appellants by more than $100,000. Leave to appeal was therefore not required: at [1].

As to construction of the Easement

2. Construction of an easement in a written instrument involves determining the party or parties’ intention in light of the instrument’s text, context and purpose, assessed from the perspective of a reasonable person in the party or parties’ position, and in light of admissible evidence: at [27].

Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45; Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337; (2007) 12 BPR 23,793; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, considered.

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1987) 149 CLR 337, referred to.

3. Various factors support, to varying degrees, the appellants’ position that the rights for the stated purposes are exclusive, including the practical reality that it is evident from the Easement and the DP that the servient owner had no ready means of access to the rooftop: at [33]-[51]. The only factor supporting the respondent’s argument is that it is not expressed exclusively, where that could readily have been done. A reasonable person in the parties’ position would conclude that the rights were exclusive : at [51].

4. It may be difficult to understand the rights intended to be granted by an easement without understanding its subject matter: at [85]. When construing a registered easement, it is permissible to take into account relevant physical characteristics of the servient and dominant tenements, and the surrounding land, at the time of the grant which were reasonably ascertainable by a third party at that time. The significance (if any) of those characteristics will depend upon the particular case. The characteristics which may be considered are the broad and reasonably enduring characteristics, not fine details of the land or of its fixtures. Relevant sources generally would include, for example, what can be observed from outside the properties along with publicly available maps. It would not include material that could have been ascertained by searches under freedom of information laws. It is not necessary to determine whether in some exceptional cases features not visible from the boundary may be taken into account: at [108]. In this case, the specific nature of the skylight may not be taken into account. However, the physical layout of the tenements and the location of the rooftop terrace, and the privacy implications of a shared use of this area, can be considered. These strengthen the conclusion that the rights are exclusive: at [109]-[117].

Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45; Deguisa v Lynn (2020) 268 CLR 638; CurrumbinInvestments Pty Ltd v Body Corp Mitchell Park Cts [2012] 2 Qd R 511; [2012] QCA 9; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74; [2020] HCA 39; Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337; (2007) 12 BPR 23,793; Barrett-Lennard v River Wind Pty Ltd (2019) 55 WAR 403; [2019] WASCA 199; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, considered.

As to the claimed invalidity of the Easement on an exclusive construction

5. Every easement prevents some ordinary use of the servient tenement, perhaps to a very significant extent. The question is whether a putative easement substantially deprives the servient owner of proprietorship or legal possession to such an extent as to be inconsistent with ownership, which is a matter of fact and degree. It involves considering the physical area affected by the putative easement by reference to the servient tenement as a whole. The greater the proportionate area affected, the more likely that the restriction cannot be characterised as an easement. The assessment also involves considering the effect of the easement on the servient owner’s positive rights (what the servient owner may do) and negative rights (what the servient owner may require the dominant owner not to do) with respect to the burdened land. A complete transfer of the servient owner’s rights cannot be an easement. A grant of a sole right to the dominant owner to use the subject area for some particular purpose (as opposed to having exclusive possession for all purposes) does not of itself establish that the easement is invalid: at [140]. It cannot be said in this case that the servient owner has been substantially deprived of proprietorship or legal possession to such an extent as to be inconsistent with ownership of the servient tenement: at [141]-[150].

In reEllenborough Park [1956] Ch 131, applied.

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] HCA 9; Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620; Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605; Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74; Stolyar v Towers [2018] NSWCA 6; (2018) 19 BPR 38,287; Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292, considered.

JUDGMENT

1. MITCHELMORE JA: I have had the advantage of reading the comprehensive reasons of Kirk JA, with which I agree.  I also agree with the orders his Honour proposes.

2. KIRK JA: This appeal concerns the construction of an easement (the Easement) which was registered in 1996, affecting two adjoining blocks on steeply sloping land in Mosman. The Easement relates to the flat rooftop terrace area of the dwelling on the lower front lot (the servient tenement). That area sits immediately in front of the dwelling on the back lot (the dominant tenement). The dispute is whether the Easement grants to the owners of the dominant tenement, Mr and Ms Theunissen (the appellants), an exclusive set of rights to use the rooftop terrace for the stated purposes or whether the servient owner, Ms Barter (the respondent), is also entitled to use the area for those purposes. The respondent commenced proceedings in the Supreme Court seeking declarations and orders clarifying the parties’ rights on this issue, amongst others. The primary judge, Richmond J, held that the rights were not exclusive: Barter v Theunissen [2024] NSWSC 326 (J).

3. In this Court the appellants raised two grounds of appeal. The respondent raised an additional issue which should have been formalised by way of a notice of contention but which will nonetheless be considered. The three substantive issues in dispute were whether:

1. the primary judge erred in holding that on the proper construction of the Easement the rights granted to the dominant owner were not exclusive and, in that regard, whether and to what extent physical characteristics of the tenements could be taken into account (ground 1 of the appeal);

2. the Easement would be invalid if construed as granting such exclusive rights (raised by the respondent); and

3. if the rights were not exclusive, the primary judge erred by holding that the servient owner was entitled to use the area at the same time as the dominant owner (ground 2 of the appeal).

4. The respondent also filed a competency motion seeking that the appeal be dismissed, in response to which the appellants filed a summons seeking leave to appeal.

5. Leave to appeal was not required and the competency motion will thus be dismissed (see below at [7]-[13]). Ground 1 of the appeal should be upheld (see below at [26]-[117]). The Easement would not be rendered invalid by being construed as granting an exclusive set of rights to use the rooftop for recreational purposes (see below at [118]-[150]). It is not necessary to address ground 2.

6. It is convenient first to address the leave issue, then set out the context of the matter (at [17]-[25]), before addressing ground 1 and the invalidity issue.

Leave to appeal and the absence of a notice of contention or cross-appeal

7. When the appellants filed their notice of appeal they filed an affidavit of their solicitor which annexed a 47 page report by Mr Angelo Konidaris, a valuer, concluding that the difference between the value of the appellants’ property if the Easement was for joint use with the owners of Lot 2, as opposed to the sole use of Lot 1, was $525,000. It appears that the solicitor for the respondent made various criticisms of this valuation, including that the valuation was conducted taking account of renovations planned for the house on Lot 1. As a result, Mr Konidaris produced a supplementary report which sought to clarify various aspects of his first report. He concluded that if the proposed renovations were excluded from consideration and adjustments were made in accordance with other criticisms the difference in value would be at least some $370,000. The supplementary report was annexed to another affidavit of the appellants’ solicitor.

8. In the meantime the respondent had filed a motion seeking that the appeal be dismissed as incompetent pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW). Subsequently the respondent indicated to the Court that this motion was pressed despite the further evidence. The appellants then filed a summons seeking leave to appeal in order to protect their position in light of the approach taken by the respondent.

9. The application for leave to appeal, the appeal and the competency motion were all listed for hearing before the Court together. The respondent filed three pages of objections to the affidavits and reports although, unsurprisingly, at the hearing these were not pressed. The respondent had foreshadowed an application to cross-examine Mr Konidaris but at the hearing that, too, was not pressed. Written submissions had been filed arguing in support of the competency motion but no oral submissions were made by the respondent in support of the motion. However, the respondent did not concede that leave to appeal was not required.

7. Section 101(2)(r) of the Supreme Court Act 1970 (NSW) provides that leave to appeal is required from a final judgment in proceedings of the Supreme Court other than an appeal:

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.

11. In her written submissions on the motion the respondent made two main points. First she submitted that the valuation exercise undertaken by Mr Konidaris “is wholly directed towards identifying the value of the appellants’ entire property, and expresses a view on the value of their claim only as a function of its effect on that property value”. So much is true. However, calculating the difference between the value of the subject property in scenarios where the appellants did or did not have the sole use that they assert seems a reasonable means of assessing whether the value of the claim at issue amounted to $100,000 or more. Second, various submissions were made that the two scenarios had not been accurately identified. There was some limited force in these criticisms but not so much as to undermine substantially the assessments of Mr Konidaris.

12. There was always an air of unreality about the submissions of the respondent on this issue. What is in dispute in this case is whether or not the appellants have in effect the sole right to recreate on the 78 m² terrace in front of their house, located in one of Sydney’s most expensive suburbs, which has views over Middle Harbour. The unreality was illustrated when senior counsel for the respondent, responding to a submission by the appellants that the area in question was not large, said:

In our submission it's not only a very large area, but it's a very valuable area, having regard to its location, its vista and the spectacular views it enjoys – it's obvious from the photographs – over the Middle Harbour of Mosman.

13. It is clear from both the valuation evidence and from a basic understanding of the practical realities that there is at the least a realistic prospect that the appeal would change the wealth of the appellants by more than $100,000: note eg Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80(4)]. Leave to appeal was thus not required. The competency motion in the appeal should be dismissed with costs. The summons seeking leave to appeal was unnecessary. As a matter of formality it should be dismissed. However, the summons was only filed in response to the respondent’s competency motion, which the respondent indicated she was going to pursue even after Mr Konidaris’ second report had been filed. The respondent should pay the costs of the application for leave.

14. There were other procedural oddities in the position adopted by the respondent. In her substantive submissions she put that if, contrary to her main arguments, the arguments of the appellants were accepted then the consequence was invalidity of the Easement. It was said that “[i]f the Court considers it necessary for Ms Barter to formalise this by cross-appeal, then that can be regularised at the hearing”. No notice of cross-appeal nor notice of contention was proffered at any stage by the respondent, even after the Court queried the respondent’s approach at the commencement of the hearing.

15. The approach taken was inappropriate. It is not for the Court to advise a party whether or not it should file a notice of cross-appeal; that is for the litigant to decide. Senior counsel for the respondent explained to the Court at the end of the hearing that he had advised against filing such a notice for reasons which included that “we would have been told that’s incompetent, and we'd have to go through the whole valuation exercise like occurred with the primary appeal”, doing so in circumstances where a cross-appeal “was probably utterly irrelevant anyway”. In other words, the respondent made a rational forensic decision. In the end, the respondent did not attempt to rely on a cross-appeal.

16. In any event, in substance the argument really seemed to involve a notice of contention point, that is, arguing that the conclusion of the primary judge could be supported for the additional reason that otherwise the Easement would be invalid. This argument was not abandoned by the respondent. She should have filed a notice of contention raising the point. However, senior counsel for the appellants indicated that his clients did not object to the point being considered by the Court despite the absence of such a notice. In light of that concession I will proceed accordingly.

Background

17. The following background is substantially taken from J [1]-[14]. The appellants and respondent live on adjoining blocks of land, labelled Lots 1 and 2, resulting from a subdivision effected by registration of deposited plan 841127 (DP) on 15 July 1994. On the same day an instrument pursuant to s 88B of the Conveyancing Act 1919 (NSW) was registered setting out five easements, four burdening Lot 2 in favour of Lot 1 and one the other way around.

18. Lot 1 is a battle-axe block which is located to the rear of, and at a higher elevation than, Lot 2. Lot 1 includes a thin strip of land to the north of Lot 2 – on the left as one looks towards the two lots – which contains steps leading up to the house located on Lot 1. There is a relatively large garden area located behind the house on Lot 1. The houses are connected at the boundary where the roof of the respondent’s home connects with the steps at the front of the appellants’ home.

19. The appellants live on the back lot (Lot 1), having become the registered proprietors in August 2001. The respondent lives on Lot 2 and became the registered proprietor of that lot in July 2008. The house on Lot 2 is three storeys (excluding the rooftop), the bottom of which contains two garages with separate doors.

20. Three of the easements burdening Lot 2 in favour of Lot 1 were in dispute at first instance. Beyond the Easement, those were a right of carriageway which is located on a strip of the driveway on Lot 2, and an easement for parking which is located within part of the garage area on Lot 2. The latter two easements are sourced in the 1994 s 88B instrument. They are not in issue on the appeal.

21. A precursor to the Easement was also contained in the 1994 s 88B instrument. That easement was released and immediately replaced by the Easement, registered on 26 February 1996.

22. The Easement relates to the flat rooftop of the respondent’s home. As noted, it covers an area of approximately 78 m². The terrace formed by this rooftop area is surrounded by a wall topped with metal railings, which runs across the northern, western and southern sides of the terrace. To the west, the terrace overlooks the driveway on Lot 2 and has views over the street and Middle Harbour. The appellants’ home is located on the eastern side of the terrace. There are short steps on the southern segment of that side of the terrace leading up to a small entryway outside glass sliding doors (the entryway and doors form part of Lot 1).

23. There is an openable skylight on the roof which is surrounded by protective metal railings. One side of the railings can be opened. Below the skylight is a hallway on the top floor of the respondent’s house. The respondent can currently access the rooftop by attaching a foldable metal ladder to the skylight from her hallway to ascend the ladder, through the skylight and onto the roof. There are no other ways for the respondent to access the rooftop from her property.

24. The primary judge indicated that there was no direct evidence as to what form the skylight took at the time of grant of the Easement. His Honour found that, as originally constructed, the skylight was not trafficable and the protective railings were a different design and material (J [14], see also [29]). He also found that each of the other features of Lots 1 and 2 described have not changed since the grant of the easements (J [14]; see also [44]).

25. The primary judge, having found in favour of the respondent on the contested issues in relation to the Easement, relevantly made the following orders:

3. A declaration that the Easement provided for in Transfer Granting Easement 939404 does not provide the owners of the dominant tenement with exclusive or sole use of the rooftop area for recreation, or permit the owners of the dominant tenement to use the rooftop area for activities:

(a) which cause unreasonable disturbance to the servient owner, including activities of a nature such as basketball; or

(b) which interfere with or restrict the skylight or the gate on the rooftop area from opening.

8. An order that the defendants be restrained from obstructing or preventing the plaintiff from having reasonable access to the rooftop area.

9. An order that the defendants be restrained from using the rooftop area for activities:

(a) which cause unreasonable disturbance to the plaintiff, including activities of a nature such as basketball; or

(b) which interfere with or restrict the skylight or the gate on the rooftop area from opening.

Ground 1: construction of the Easement

26. The appellants assert that the primary judge erred by finding that, on the proper construction of the Easement, the rights granted to the dominant owner did not import a right of exclusive or sole use of the easement area for the identified purposes.

27. Construction of an easement created by a written instrument involves determining the intention of the party or parties to the grant in light of the text, context and purpose of the instrument, assessed from the perspective of a reasonable person in the position of the party or parties, and in light of admissible evidence: note Perpetual Trustee Co Ltd v Westfield Management Ltd [2006] NSWCA 337; (2007) 12 BPR 23,793 at [25]-[29] (an appeal against this decision to the High Court was dismissed in Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45); Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [158]; P Herzfeld and T Prince, Interpretation (Lawbook, 3^rd edition, 2024) at [19.80]. There may be only one relevant party as an easement might be created by a unilateral act, for example when an easement is created as part of a subdivision. As addressed further below, the High Court held in Westfield that “rules of evidence assisting the construction of contracts inter partes, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority of NSW, did not apply to the construction of the Easement” at issue there (at [37], citation omitted). The statement was addressed to rules of evidence relevant to contractual interpretation, not to the basic approach to construction of the legal document.

28. The extent to which the context and purpose of the Easement can be established by extrinsic evidence beyond the term of the grant, as recorded on the Register, is a question that arises in this case. The appellants sought to rely not only on the terms of the Easement and the DP but also on certain physical characteristics of the site. It is appropriate to start analysis with consideration of the terms of the Easement, before considering whether and to what extent it is permissible to take account of physical characteristics, and then addressing the arguments about those characteristics.

The terms of the Easement

29. The terms of the Easement are as follows (as written):

Full and free right for every person who is at any time entitled to an estate or interest in possession of 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 him, to go, pass and repass on foot at all times and for all purposes with or without animals to and from the dominant tenement, and also the use and enjoyment of the servient tenement for the purposes of recreation and enjoyment and as a balcony, terrace or garden, together with the rights for the owner of the dominant tenement and every person authorised by him with any tools implements or machinery necessary for the purpose to enter upon the servient tenement and remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining or reviewing the surface of the servient tenement to such extent as may be necessary having regard to the nature of this easement, PROVIDED THAT:-

(i) The proprietor of the dominant tenement and the persons authorised by him will in doing any such work take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and will restore that surface as nearly as possible to its original condition;

(ii) nothing in this easement shall bind the owner of the dominant tenement to effect any repairs or maintenance to the servient tenement except insofar as damage is caused by or as a consequence of any act by the owner of the dominant tenement or any person authorised on his behalf;

(iii) the owner of the dominant tenement shall not use or enjoy the servient tenement or permit anything to happen thereon in any manner that shall be capable of causing damage to the servient tenement (including, without limiting the generality of the foregoing, the placing of excessively heavy objects upon the surface of the servient tenement or other acts or omissions such as permitting the blocking of the drains which may damage the structural integrity or waterproofing integrity of the surface of the servient tenement or covering, or interfering with in any way, the structure of the skylight on the servient tenement), nor in any fashion which causes unreasonable disturbance in all the circumstances to the owners of the servient tenement; and the owner of the dominant tenement shall forthwith repair or remedy any damage or disturbance which is caused in breach of this clause;

(iv) in all other respects the owners of the servient tenement shall be responsible for the maintenance and repair of the roof of the servient tenement, in as good and substantial state of repair as the same is in at the date of this instrument (fair wear and tear excepted), and for the purpose of such repair the owner of the dominant tenement will permit the owner of the servient tenement to enter into and upon such roof in order to inspect the state of repair and to attend by himself and those authorised by him to the repair of such buildings and improvements as form the roof;

(v) the owner of the servient tenement shall not erect or cause to be erected any structure or improvement either on or in the vicinity of the dominant tenement which would have the effect of interfering with the use, enjoyment or views of the dominant tenement;

(vi) no fencing shall be erected between the points marked “X” and “Y” on the plan;

(vii) the covenants and conditions contained herein shall bind and be enforceable by the owners of the dominant and servient tenements and their respective heirs, successors and assigns;

(viii) in the event of any dispute between the owners of the dominant and servient tenements it is agreed that such dispute shall be referred to arbitration by an arbitrator appointed by the President for the time being of the Australian Institute of Arbitrators or any corresponding body replacing it;

(ix) The owners in fee simple for the time being of the dominant tenement have the rights to release the easement; and

(x) The consent of the owners of the servient tenement, which shall not be unreasonably withheld, is required for any variation or modification of this easement.

30. The transfer granting the Easement said it was an easement “to be described as ‘fifthly’”, and referred to a marking on the DP delineating the area covered by the easement. The easement it replaced had been listed as the fifth easement. The replaced easement had been limited to a depth of RL65.315 Australian Height Datum (AHD), which was the level of the rooftop on Lot 2. The Easement had no such restriction. However, the appellants accepted that it was not intended that the Easement reach below the rooftop and, unsurprisingly, the respondent did not dispute this understanding. No doubt it reaches upwards to encompass reasonable airspace to enable enjoyment of the rights granted, subject to the servient owner’s right under the third proviso not to have the skylight covered.

31. The following three sets of rights are given to the dominant owner and persons authorised by them with respect to the rooftop area:

1. the full and free right to go, pass and re-pass on foot at all times and for all purposes with or without animals to and from the dominant tenement;

2. the use and enjoyment of the area for the purposes of recreation and enjoyment and as a balcony, terrace or garden; and

3. the right to enter upon the area and remain there for any reasonable time for the purpose of laying, inspecting, cleaning, repairing, maintaining or reviewing the surface of the servient tenement to such an extent as may be necessary having regard to the nature of the Easement.

32. The appellants’ argument was that the second of these set of rights was exclusive. The instrument does not state that they are. The issue is whether, construed in context, it should be understood in that way despite the absence of express words. The following textual points are noteworthy in that regard.

33. First, the appellants sought to place much emphasis on the words “full and free right”. Yet they do little to advance debate. It is reasonably arguable that those words do apply to the second set of rights, and I will assume that to be so. However, of themselves they do not suggest exclusivity. The appellants referred to a case in which such words had been construed in that way: Brydall v Owners of Strata Plan 66794 [2009] NSWSC 819; (2009) 14 BPR 26,831. That decision merely illustrates that in a particular context they might be understood in that way. Justice McDougall there considered that a full and free right in the dominant owner to park could not be exercised if the servient owner (or those authorised by that owner) could also park on the land in question: at [18]. But a right of recreation and enjoyment is not inherently exclusive, as it may be possible for people to recreate in an area at the same time. As the primary judge indicated (at J [52] and [110]), so much is illustrated by In re Ellenborough Park [1956] Ch 131 at 168-169, where a reference to “full enjoyment” was taken to refer to the park area as a whole (note also Barrett-Lennard v River Wind Pty Ltd (2019) 55 WAR 403; [2019] WASCA 199 at [71]). Put simply, it all depends on the context.

34. Next, the language in the second set of rights of “use and enjoyment” might be argued to imply exclusivity of use. For similar reasons, however, it is neutral. The question is whether the appellants’ rights to such use and enjoyment are exclusive or shared.

35. Next, the words “balcony” and “terrace” (at least) do have an overtone of exclusivity. A balcony or terrace connected to a residence would in general be understood to be something for the sole use of the occupants of that residence. That being said, it is not an inevitable implication. This factor thus offers some, limited, support for the appellants’ argument.

36. Next, the dominant owner’s third set of rights – relating to laying, maintaining or reviewing (etc) the surface of the servient tenement – tend to suggest that the dominant owner is entitled to control the way in which the rooftop area is presented, which is suggestive of it being substantially the dominant owner’s domain. That is so even though the dominant owner is not required to undertake repairs to the rooftop area, as indicated in the second and fourth provisos. The primary judge said that the third set of rights “would not be necessary if it was intended to grant to the dominant owners sole or exclusive use of the servient tenement as a balcony, terrace or garden” (J [111]). However, the claimed exclusivity is not for all purposes. The appellants only claim an exclusive use for the purposes identified in the second set of rights. Those rights could be enjoyed exclusively without the dominant owner necessarily being empowered to do what is addressed in the third set of rights. That the owner is so empowered tends to suggest that the second rights are exclusive.

32. Next, and relatedly, the third proviso offers reinforcement for such a conclusion. It requires that the dominant owner not, for example, engage in activities of placing “excessively heavy objects upon the surface” or “permitting the blocking of the drains” (the third proviso also refers to a skylight, which I will come back to). Those statements contemplate that the dominant owner may undertake activities which involve placing objects on the rooftop area and doing works which might affect drainage, albeit to an extent expressly limited so as to protect the interests of the servient owner. The primary judge suggested that either the dominant or servient owner might bring potted plants or a barbeque onto the rooftop (J [108]). Justice McDougall noted in Brydall at [18] that to the extent the servient owner (or those authorised by that owner) parked on the relevant area the right of the dominant owner was cut down. Whilst a battle of potted plants may be of lesser significance, the arrangement of objects in a confined garden area is not the sort of task readily shared. And one person’s beautiful shrubs in planter boxes may be another’s infringement of recreational space.

33. The primary judge said that the rooftop area “is relatively large … so that it can be enjoyed by both the dominant owners and the servient owner at the same time” (J [113]). Many people would not feel comfortable having other people in what they considered their garden, even if it was 78 m². This point does not advance debate either way.

34. His Honour also said that without the rooftop area “the servient owner would not have a significant area for a garden” (J [113]). The appellants disputed any suggestion that the servient owner otherwise had no garden. In any case, there is no natural assumption that residences in Sydney will have gardens. Whether or not there is such a garden will, no doubt, be reflected in the market value of the property. Again, this point is neutral.

35. The primary judge further referred to the fact that the area was the rooftop of the house on Lot 2, which would necessarily restrict the nature of the recreational activities that could be undertaken there by precluding actions causing unreasonable disturbance to the servient owner (J [112]). That the dominant owner must not exercise the recreational rights in an unreasonable way does nothing to suggest that those rights are or are not exclusive.

36. Next, when the fourth proviso states that “in all other respects” the owners of the servient tenement shall be responsible for the maintenance and repair of the roof of the servient tenement it provides in terms that “for the purpose of such repair the owner of the dominant tenement will permit the owner of the servient tenement to enter into and upon such roof …”. That statement provides reasonably significant support to the appellants’ argument. It implies that otherwise, at least in general, the servient owner will not have such access to the rooftop area.

37. The primary judge reasoned that this proviso makes “clear that the dominant owners’ rights under the Easement must give way where that is necessary for the purposes of repairing the surface (which is the obligation of the servient owner)” (J [111]). It is true that sometimes matters are stated expressly just to put the point beyond doubt, which is why expressio unius arguments are often of limited force. Nevertheless, that possible explanation does not deprive the point of all force here.

38. Next, the fifth proviso prevents the servient owner from erecting any structure or improvement “on or in the vicinity of the dominant tenement which would have the effect of interfering with the use, enjoyment or views of the dominant tenement”. Presumably the proviso is meant to refer to the servient tenement, as the servient owner would have no right to erect anything on the dominant tenement. This proviso offers some support to the appellants’ argument. It reinforces the significance of the rights held by the dominant owner. It tends to suggest again that that owner has use of the rooftop area which should not be interfered with by the servient owner. The point has limited force, however, as the dominant owner might want to have an uninterrupted view even if the rights of enjoyment and use were not exclusive.

39. Finally, to return to the third proviso, it requires the dominant owner not to engage in “covering, or interfering with in any way, the structure of the skylight on the servient tenement”. As noted above, the primary judge found that when originally constructed the skylight was not trafficable and the protective railings were a different design (J [14]). His Honour noted at [29] that subsequently “the skylight was changed to be an openable skylight with an attachable ladder”, and that prior to that the servient tenement did not have any means of accessing the rooftop. The primary judge reasoned that “nothing in the terms of the easement precludes the servient owner … adding a point of access to the rooftop area, either by installing stairs on Lot 2 which access the roof or changing the skylight from a fixed to a trafficable one” (J [115(2)], see also J [115(3)]).

40. The significance of the skylight also was raised in the context of considering the extent to which the physical characteristics of the site can be considered in construing the Easement, as addressed below. Here I am addressing it just as a matter of construction of the Easement in the context of the DP (which itself is a registered document).

41. The Easement itself indicates it applies to a rooftop area. So much is implicit in the acceptance that it did not go below RL65.315 AHD (see above at [30]) and the fourth proviso refers to “the roof of the servient tenement”. There was no reference in the Easement to the servient owner having any ready means of access to the rooftop, and no such means are depicted in the DP (recognising that that is not a building plan). As noted above at [41], the fourth proviso tends to suggest there is no ready means of access. The primary judge noted at J [115] that nothing in the Easement precluded the servient owner from installing stairs on Lot 2 to access the rooftop. Given the protection the Easement affords to the skylight, and what is said in the fourth proviso, if there was such a means of access within the servient tenement it would be expected that it would also have been addressed.

42. Thus, leaving aside the skylight, the natural reading of the Easement in the context of the DP is that the servient owner had no ready means of accessing the rooftop area. That fact would offer significant support to the argument that the rights of use and enjoyment of the rooftop area were exclusive.

43. Does the reference to the skylight undermine the point? To my mind the suggestion that it does is rather unreal. The definition of “skylight” in the Macquarie Dictionary is:

1. an opening in a roof or ceiling, fitted with glass or other such translucent material, for admitting daylight. 2. the frame set with glass fitted to such an opening.

49. True, as the primary judge said (and the respondent reiterated), there was nothing in the Easement which limited the purpose for which the skylight could be used. And it can be accepted that some skylights can be opened. It can also be accepted that it is possible that an opening skylight could be used to get out onto a roof. But that use is not what is implied by the ordinary meaning of the word. And the protection of the servient owner’s right not to have the skylight covered – protecting access to light – which is afforded by the third proviso suggests it is that ordinary meaning which was invoked. In any event, it could hardly be said that climbing up from a building below through a skylight is a ready means of access.

50. The practical reality is that it is evident from the Easement and the DP that the servient owner had no ready means of access on to the rooftop terrace. And that reality offers significant support to the appellants’ argument.

51. In sum, the only factor supporting the respondent’s argument that the second set of rights are not exclusive is the not insignificant point that it is not expressed in that way, where that could readily have been done. No other factors support that conclusion, and there are many factors pointing the other way. Some of those factors are of limited weight; others have significant force. Taking them as a whole, a reasonable person in the position of the parties would conclude that the Easement grants the dominant owner the exclusive use and enjoyment of the servient tenement for the purposes of recreation and enjoyment and as a balcony, terrace or garden. That conclusion suffices to uphold Ground 1, subject to addressing the issue raised by the respondent about the validity of the Easement on this construction (see below).

Consideration of the physical characteristics of the tenements

52. The appellants also sought to rely on two physical characteristics of the tenements in support of its construction argument: that the servient owner had no means of accessing the rooftop terrace when the Easement was created; and that “the rooftop looks directly into the ground floor living room” of the house on the dominant tenement. The former point has been addressed to a significant but not complete extent above as a matter of construction, without regard to the actual physical characteristics of the site in February 1996. The appellants sought to rely on the specific fact that the skylight originally installed was not capable of opening as a physical characteristic, distinct from issues of construction.

53. The latter point, in effect about privacy, has not been addressed above. The primary judge dismissed its relevance as follows:

[118] It is true that the use by Ms Barter of the rooftop area might impact the privacy of the defendants on the dominant tenement. However, that is not a matter relevant to whether, on its proper construction, the easement prevents Ms Barter from exercising her rights as owner to use the rooftop area. The easement operates to confer rights on the dominant owners to use the servient tenement and not (as in the case of a restrictive covenant) to restrict the servient owner’s use of the servient tenement to preserve the privacy of the dominant tenement.

54. In my view the privacy point in particular – if it may be taken into account – would offer significant reinforcement to the conclusion on construction I have reached above. Lest my reasoning be in error in with respect to any of the factors set out above, it is appropriate to consider if either or both of the identified physical characteristics can be considered. Issues arise not only as to whether physical characteristics can be taken into account, but what sort of characteristics, and as at what time, that is, whether at the time of the grant or the time of the hearing before the court.

The parties’ submissions

55. The respondent accepted that the Court is able to consider physical characteristics of the land or tenements, but said this did not include physical attributes of dwellings constructed on tenements. In oral submissions, senior counsel for the respondent drew a distinction between “the physical structure of the dwelling” on one hand and “attributes or aspects or architectural features” of the dwelling on the other.

56. The respondent also submitted that “it is erroneous to have regard to features of the land where ‘some material change in [those] circumstances has occurred since the creation of the easement’”, arguing that this “follows from the rationale underpinning the Westfield principle” and implying that this aligns with what was said to be the reasoning of the Queensland Court of Appeal in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Cts [2012] 2 Qd R 511; [2012] QCA 9 at [49]. However, the respondent appeared to take inconsistent positions, as her written submissions also quoted approvingly a statement by Slattery J to the effect that it was present physical characteristics which were relevant: Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635 at [97]. Yet a further position was taken by senior counsel for the respondent in oral submissions, who said what was relevant was “present physical characteristics at the time of the grant”. So the respondent’s position was variously that what was relevant was: physical characteristics at the time of the grant; not physical characteristics at the time of the grant if those had changed; physical characteristics at the time of the hearing.

57. The appellants submitted that the “traditional approach” should be preserved:

Before Westfield, it was well-established that an easement is to be construed having regard to the physical characteristics of the land that existed at the date of its creation. Since Westfield, no appellate court has departed from that well-established principle. However, some appellate judges have expressed reservations about whether the principle should apply where there has been a change in the physical characteristics.

58. The appellants sought to support the relevance of the nature of the skylight at the time of the grant by arguing that this would have been apparent from the building plans for the dwelling on Lot 2. They said that the development application containing those plans could have been obtained by an interested member of the public pursuant to the State’s freedom of information law – the Government Information (Public Access) Act 2009 (NSW) – and environmental planning regulations, or under predecessor statutory schemes. The respondent disputed that there would always be a public right to access such information, and argued that in any event such materials could not permissibly be considered.

59. Thus issues arose of what physical characteristics, and as at what time, could permissibly be taken into account.

Westfield

60. In 2007, in Westfield, the High Court rejected the approach of previous authorities which had equated the principles of construction of easements at common law to those of construction of easements under the Torrens system. It said the following (citations omitted):

[39] … The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee.

[40] It is true that in Overland v Lenehan Griffith CJ admitted extrinsic evidence to show a misdescription of the boundaries of the land comprised in a certificate of title. This is a matter now dealt with in the RP Act by the provisions in Pt 15 (ss 136-138) for the cancellation and correction of instruments. Subsequently, in Powell v Langdon Roper J accepted as applicable to the construction of a particular grant of a right of way (apparently over land under the RP Act) a statement by Sir George Jessel MR in Cannon v Villars. This was that the content of the bare grant of a right of way per se was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied.

[41] The situation with which the Australian courts were concerned in the above cases bore little resemblance to that in the present case, where the evidence goes to the intentions and expectations of the parties to the Instrument respecting the development of an area in the central business district of Sydney.

[42] To some degree the attraction of “the common law approach to the construction of grants of easement” has been to counter arguments that a right of way may be used only for the purposes for which the way was used at the time of the grant. But to accept the proposition that the user under a registered easement may change with the nature of the dominant tenement, so long as the terms of the grant are sufficiently broad, does no violence to the principles of the Torrens system.

[43] Subsequent changes in circumstances may found an application under s 89 of the Conveyancing Act for modification or extinguishment. The conduct of the immediate parties to a dispute may found a personal equity of the kind considered in Mayer v Coe and accepted in Breskvar v Wall, and also may bear upon a claim for injunctive relief, as Kearney J indicated in Andriopoulos v Marshall. But this was not what was involved in the significance attached by the primary judge to the evidence of what may or may not have been in the contemplation of Jamino and Mastwood, or their affiliates and advisors, at or before the grant of the Easement in 1988. These matters were used to guide, if not control, the construction of what appeared on the Register.

[44] It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in this case on the DP.

[45] But none of the foregoing supports the admission in this case of evidence to establish the intention or contemplation of the parties to the grant of the Easement.

61. The Court had earlier stated at [5] that an important element of the Torrens system is to “provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question”.

62. In its analysis the High Court did not limit the permissible materials to the registered instrument recording the easement. Rather, at [39] it referred to what would be revealed by inspection of the register, and at [44] it contemplated that account might be taken of what was on a deposited plan. Thus other relevant material on the register may potentially be considered (see also Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200 at [16]), at least if its existence is apparent from the certificate of title (note Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39 at [71], [85] and [88]).

63. At [44] of Westfield the High Court also contemplated evidence explaining terms or expressions appearing on such material. Further, the Court referred without apparent disapproval to earlier authority that “the content of the bare grant of a right of way per se was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied” (at [40], emphasis added). The Court was not seeking exhaustively to list permissible materials.

64. In the decision of this Court under appeal and upheld in Westfield, being Perpetual Trustee, Hodgson JA had indicated that regard may be had to “the physical circumstances of the dominant and servient tenements and the use actually being made of them at the time of the grant” (at [26]). The High Court did not comment on that statement. However, as noted, at [40]-[41] the Court seemed to accept that the “nature of the surface” could be relevant to the construction of at least “the bare grant of a right of way”. The High Court there referred to Jessel MR’s judgment in Cannon v Villars (1878) 8 Ch D 415 at 420. That judgment noted that the grant of a right of way “may be a right of footway, or it may be a general right of way”, and said that in resolving that question “a very material circumstance, is the nature of the locus in quo over which the right of way is granted”. It said that if the road at the time of the grant was paved in such a way as to be suitable for horse and cart, then that would indicate a right not limited to foot traffic (ibid). If the road led up to a dwelling house, or a factory, or a wool warehouse, these features could also be relevant to construction of the right (at 420-421).

61. A “bare” grant of a right of way is presumably one in which its terms are not spelt out. Professor Michael Weir has said that “bare easements” are ones which “do not contain substantial covenants”: “Westfield 5 years on” (2012) 21 Australian Property Law Journal 166, 171. Justice White contrasted a bare grant to one “whose terms were fully described”: Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 at [32], [35] and [39]. As is implicit in those statements, issues of degree arise. The nature of the right may be expressed in one respect and bare in another.

62. In Westfield the High Court also said at [43] that “[s]ubsequent changes in circumstances” could be addressed by applications under s 89 of the Conveyancing Act. That provision authorises, amongst other things, modification of an easement including in light of “change in the user of any land” (s 89(1)(a)). The Court’s acknowledgement is at least consistent with potentially taking account of the physical characteristics as at the time of the grant in construing an easement, with subsequent changes capable of being addressed in another way.

63. Beyond these matters, the High Court did not address in terms whether, when and to what extent physical characteristics could be taken into account. In Barrett-Lennard in 2019 the Western Australian Court of Appeal suggested that the High Court itself had taken some physical characteristics into account in Westfield:

[85] In Westfield, the court appeared to approach the question of construction having first outlined, in broad terms, the nature and physical characteristics of the dominant and servient tenements and the easement, and the location in which the easement operated. The High Court referred to ‘King Street’ (evidently on the basis that it was known to be a vehicular public road) and said that what was ‘at stake’ was ‘access to from and over several parcels of land in the [CBD] … in Sydney’. The court also referred to the facts that the dominant tenement had erected upon it multi-storey commercial premises known as Skygarden, that the land of the servient tenement also had erected upon it commercial premises known as Glasshouse, that the easement in question was a ‘vehicular ramp under’ the servient tenement, that Glasshouse fronted both King Street and a pedestrian precinct known as the Pitt Street Mall, that Skygarden abutted the Pitt Street Mall, and that the pedestrian precinct lacked ordinary vehicular access. …

68. It is difficult to ascertain from the High Court decision, or the two decisions below, whether these characteristics would have been evident from material on the register, but there is nothing to suggest that they were. Whilst exchanges in argument must be approached with caution, Gleeson CJ did say that “[t]he register would not even tell you that there was a big shopping centre on this site”: Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCATrans 336 at 466-467.

69. In Perpetual Trustee, after making the observation at [26] about the potential to have regard to the physical circumstances of the tenements and the use being made of them at the time of the grant, Hodgson JA went on to say this:

[27] This in turn gives rise to the question of whether other circumstances may be taken into account, such as communications between the parties prior to the grant of the easement. One view could be that such circumstances can be taken into account, to the extent to which they can be taken into account in construing an ordinary contract: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1987) 149 CLR 337. Another could be that, because easements are documents of title and operate in rem, the surrounding circumstances to which regard can be had should be more limited, and in particular limited to objective circumstances readily ascertainable by the public in general: cf House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 ; [2000] NSWCA 44 at [23] and [37]; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433–4.

[28] As a matter of general principle, I would have preferred the latter approach: the meaning and effect of a document of title, that binds successors in title to both dominant and servient tenements for indefinite and possibly very long periods, should not in my opinion depend on anything other than the terms of the document and ascertainable objective circumstances existing at the time of the grant. However, there is authority supporting the former approach which I believe I should follow. …

70. One possible way of understanding Westfield is that the Court adopted the second of the two views identified by Hodgson JA. The first involved taking account of surrounding circumstances to the extent permitted for an ordinary contract on Codelfa principles, being an approach expressly rejected by the High Court at [37]. The primary judge in the case had, in supposed compliance with Codelfa principles, admitted “evidence of facts existing at and about the time of the grant, including the contemporaneous acts and statements of one or other of the parties to the creation of the easement”: Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWSC 716; (2006) ANZ ConvR 453 at [3]. Such evidence was said to be capable of casting light on “the facts known to that party, the purpose of that party in the transaction, and the use which that party contemplated might be made of the dominant tenement”: ibid at [4].

71. The High Court observed that Hodgson JA had remarked, correctly, in allowing the appeal that “the decision of the primary judge appeared to be the product of an error in preparedness to look for the intention or contemplation of the parties to the grant of the Easement outside what was manifested by the terms of the grant” (quoting Westfield at [35]). This Court overturned the decision of the primary judge on that basis, finding his Honour had let in too much even applying Codelfa. The High Court confirmed this Court’s decision, albeit on the broader basis that the rules of evidence identified in Codelfa did not apply. That decision was consistent with the second approach identified by Hodgson JA. That approach is consistent with still taking account of physical characteristics, at least insofar as they were “objective circumstances readily ascertainable by the public in general”. That being said, the High Court did not refer to or adopt what his Honour said about the two approaches.

72. In the end what can be said of Westfield on the question of taking account of physical characteristics when construing a registered easement is the following: the Court did not address the issue in terms, that not being the relevant focus of the appeal; the Court appeared to accept that the nature of the surface could be referred to at least with respect to a “bare grant” of a right of way; the Court itself may have taken some physical characteristics not apparent on the face of the registered instruments into account; and the decision does not seem to rule out taking account of physical characteristics.

Cases subsequent to Westfield

73. Since Westfield this Court has held a number of times that it is permissible to take into account the physical characteristics of the servient and dominant tenements when construing a registered easement: Sertari in 2007 at [15]-[16]; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [16]-[18]; Tempe Recreation Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437 at [77]; Lowe v Kladis [2018] NSWCA 130; (2018) BPR 38,599 at [88]. The statements in those cases have not addressed in terms the as of when question, nor the precise nature of the characteristics that may be taken into account. Nor did they consider in any detail how doing so was reconcilable with Westfield.

74. In 2011 the Full Court of the Tasmanian Supreme Court said that the “only extrinsic evidence that may be used is that necessary to make sense of terms or expressions identified in the property register, such as surveying terms, or abbreviations, which appear on a plan”: Chick v Dockray (2011) 20 Tas R 167; [2011] TASFC 1 at [20]. Insofar as the Court meant to suggest that account could not be taken of physical characteristics it is notable that it did not refer to Sertari, which had been decided by then. The decision is thus of limited weight.

75. In Currumbin, in 2012, the Queensland Court of Appeal considered the construction of a registered easement. Justice Fryberg delivered the longest judgment, and said the following of Westfield:

[46] … The High Court was not saying that a third party who inspects the register never needs to look further. It was not saying that extrinsic evidence of facts and circumstances existing at the time of the creation of the easement must always be disregarded. On the contrary, it referred to situations where extrinsic evidence might be taken into account. What the court held was to be disregarded was evidence which not only established facts and circumstances at the time of the creation of the registered dealing but which also placed the third party in the situation of the grantee (or for that matter, the grantor – the reasoning would be the same). That was the reason for the court’s emphasis on disregarding “evidence to establish the intention or contemplation of the parties to the grant of the Easement”.

…

[49] Acceptance of the relevance of that circumstance is not inconsistent with what the High Court wrote about the position of third parties. Usually, the physical characteristics of the tenements may freely be observed by any third party interested in them. But depending on the nature of the characteristic in question or the possibility of change in the characteristic over the period since the easement was granted, cases may arise where even a physical characteristic may not be able to be taken into account consistently with the principles of the Torrens system. For similar reasons, Hodgson JA’s reference to the use being made of the tenements at the time of the grant is problematic. In a dispute not long after the grant, that information may be readily available to third parties, but this may not be the position many years later. If the question of construction is to be approached from the point of view of a third party inspecting the register, it may be that the scope for consideration of extrinsic evidence is reduced over time. The consequences of such an approach would need to be considered carefully. I express no opinion on the matter. …

76. His Honour also said that “an important consideration in determining whether information or a document can be so used is whether the information or document was and remains publicly available to third parties without unreasonable effort, expense or delay” (at [53]). Justice Campbell made a somewhat similar point in Phoenix at [162], suggesting that the last sentence of [39] in Westfield was concerned with “the inherent probabilities concerning the inquiries that a purchaser of Torrens title land will make”. At [61] of Currumbin, Fryberg J said he expected that the information in a publicly available planning certificate could be used in construction of an easement if relevant.

77. The other two members of the Court in Currumbin, McMurdo P and Fraser JA, agreed with Fryberg J’s conclusion in the case and with parts of his reasoning. But their Honours – no doubt carefully – did not express agreement or disagreement with what his Honour said in the passages to which I have just referred. What his Honour said is not a holding of principle of at least a majority in an intermediate court of appeal decision.

78. Whilst addressing Queensland authority, in SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540 it was held that an easement was to be construed in light of the physical circumstances at the time of the grant (Macrossan CJ at 545, McPherson JA at 547). Whilst that decision was prior to Westfield, and must be understood as subject to it, the temporal point made is not undercut by the High Court’s decision.

79. In Hare Barrett JA, speaking for this Court, said:

[18] By resorting to evidence of physical characteristics of the tenements, a court does not have regard to matters which, like the intentions of the original grantor and grantee, are unavailable to third parties inspecting the register. The physical features are there for all to see, at least as they stand today. Different considerations may apply if it is suggested that some material change in physical circumstances has occurred since the creation of the easement: see the observation of Fryberg J, with whom Margaret McMurdo P and Fraser JA agreed, in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; [2012] 2 Qd R 511 at [49]. There is no such suggestion in this instance.

80. As just indicated, I respectfully do not agree that McMurdo P and Fraser JA aligned themselves with the observation of Fryberg J. Further, Barrett JA himself was not adopting the views of Fryberg J; he was noting them (“[d]ifferent considerations may apply”). In the case at hand, when construing an easement Barrett JA took into account the topography of the site (which had a steep slope from the street down to harbour shoreline) and the fact that a mechanical inclinator had been installed over the area covered by the easement (see at [19]-[22]). He noted that both characteristics had existed when the easement was registered and still existed at the time of the hearing. It is implicit in his Honour’s reasoning that it was relevant to take account of the characteristics at the time of creation of the easement.

81. In Barrett-Lennard, in 2019, the Western Australian Court of Appeal considered whether various physical characteristics were relevant to construction of an easement. The as of when issue was not addressed by the Court. A notable feature of the judgment is that it suggested that matters which would not be “readily accessible to a third party who is seeking to understand the scope of the grant, and who is, at least principally, otherwise confined to a search of the register” were not able to be considered (at [88]). On that basis the Court was prepared to assume without deciding that it could take into account that the dominant and servient tenements were pasture land, that the only proximate sealed road was a particular highway, and that the track going over the easement was substantial and gravel (at [83] and [87]). However, the Court seemed to reject referring to the placement of infrastructure on the dominant owner’s farm, even though “a view from the air [of the infrastructure] might theoretically be possible” (at [88]).

82. A number of first instance decisions have also considered the issue. Notably, Darke J in Sader v Langham [2018] NSWSC 727 recorded that there was no “direct evidence” of the physical characteristics of the land in question at the time the easements were created (at [11]). However, his Honour, sensibly, said that “evidence concerning the present physical condition of the land, at least insofar as the land has not been developed, may allow inferences to be drawn about the physical features likely to have been present at the time of grant” (ibid). However, in McWilliam v Hunter [2022] NSWSC 342, at [40], Darke J doubted that evidence relating to the existence of a garage on a property could be taken into account because the garage no longer existed, citing Hare at [18].

83. As noted above, the respondent invoked the decision of Slattery J in Australian Unity in 2019. His Honour there held that it was only the present physical characteristics to which reference could be made. He considered that cases such as Sertari and Hare “do not authorise the Court to embark on an inquiry back to the time of the grant”, saying “[s]uch an inquiry would be contrary to the principles stated in Westfield” (at [94], see also [97]).

84. Finally, on this front, the High Court in Deguisa in 2020 gave emphasis to the Westfield decision in rejecting an argument that restrictive covenants in a common property scheme bound an owner where those covenants were not notified on the certificate of title. That was so even though the covenants could have been discovered by a search of records on the register. Unless “reference to an interest is endorsed on the certificate of title or incorporated by reference in a registered instrument notified on the certificate of title, the interest has not been notified on the certificate of title” (at [71]). The Court characterised Westfield as holding that “it is contrary to the purpose of the Torrens system to seek to establish the intention or contemplation of the parties to an instrument registered under the NSW Act by reference to material extrinsic to the instrument” (at [66]).

Drawing together the strands in the case law

85. Easements grant rights over particular land. Parties may be more or less extensive, and more or less clear, in articulating what rights are intended to be granted. It may be difficult to understand what was intended without an understanding of the subject of the grant. It is a key part of the context. And as Edelman J has observed, “[n]o meaningful words, whether in a contract, a statute, a will, a trust, or a conversation, are ever acontextual”: Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 at [83]; see further Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [73]-[76]. Words in a legal document are used by people to create or clarify a set of legal rights or relations. That is why they are meaningful and significant. Thus the law seeks to ascertain, usually in an objective manner, what was intended by the party or parties involved. People do not speak in a vacuum; they do so in a particular context. For such reasons, Campbell JA in Phoenix rejected the “discredited exercise of seeking to construe a document simply by reference to a supposed ‘natural and ordinary meaning’ of the words” (at [158]). As Leeming JA has said, “[w]ords do not have a ‘natural’ meaning that can be determined in isolation”: Mainteck at [75].

86. The High Court has not rejected all contextual considerations beyond the registered instrument itself when construing a registered easement. Thus, for example, a deposited plan may be considered. But it is clear that what may be considered is a narrower class than the sorts of surrounding circumstances that may permissibly throw light on the intentions of the parties when construing contracts.

87. As was noted in Currumbin and Hare, physical characteristics of land are distinct from “evidence to establish the intention or contemplation of the parties to the grant” that was the subject of dispute in Westfield (quoting [45] of that decision). Moreover, the practical context has particular importance with respect to easements. Easements involve a legal abstraction applying in very practical terms on the ground: note Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 at [29]. Justice Slattery captured the point well in Australian Unity:

[96] It is difficult to give content to the rights under an easement unless some account is taken of the physical characteristics of the dominant and servient tenements, as Westfield permits. Otherwise the parties are engaged in an empty debate about the meaning of words in an instrument without reference to what is happening on the ground. …

88. On the other hand, the High Court has made clear that there are limits on the extent to which material which is extrinsic to what is on the register may be considered. That restriction seeks to protect the ability of third parties to ascertain the extent to which a property title, created by registration, is burdened by other registered property rights (see Westfield at [5], [37] and [39]; Deguisa at [66]). It promotes certainty and stability of title. Westfield has had its critics: eg Matthew Barber, “Problems with Westfield” (2013) 22 Australian Property Law Journal 143. Yet the duty of courts in Australia is to follow what the High Court decided there and to develop principle in a manner consistent with it.

118. The respondent’s second argument on this front is without merit. There is nothing uncertain about construing the Easement as granting an exclusive set of rights of the kind identified over the rooftop terrace area, being a space clearly delineated on paper and on the ground. This case bears little resemblance to Laming, which involved an easement by prescription.

119. As for the first argument that, too, is not made out for the reasons which follow.

Relevant principles

123. In Ellenborough Park the English Court of Appeal referred to four conditions said to be necessary for a valid easement (at 163). The fourth was that the right conferred is “capable of forming the subject-matter of a grant”. This condition in turn was said to raise various cognate questions, one of which was whether the right “would amount to rights of joint occupation or would substantially deprive the … owners of proprietorship or legal possession” (at 164). Lord Scott has described this limitation as the “ouster principle”: Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 at [47]. However described, it is that question which the respondent raises here.

124. In Clos Farming (SC), at [27], Bryson J said that the authorities preceding Ellenborough Park “are a much trodden path”. The path has since been well worn with consideration in and of subsequent Australian and English authorities, which do not all speak with one voice. Justice Parker summarised notable cases in Petrie v Dickson [2024] NSWSC 972 at [113]-[263]. The legal test to be applied was not the subject of significant attention from the appellants or the respondent in this matter. In that context it suffices to note the following relatively recent statements of principle.

125. In Ellenborough Park itself the servient owner retained the right to share with the dominant owners the use of a garden area subject to the easement. It was held to be valid.

126. In Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] HCA 9 the High Court held that the transfer of rights over a building on a property “without any reservation of a right by the transferor amounts … to a conveyance of the exclusive ownership of the building” which was “inconsistent with the concept of easement” (quoting Windeyer J at 91, Barwick CJ agreeing at 76, and see also Menzies J at 83-84).

127. In Clos Farming (SC) Bryson J identified the key principle from Ellenborough Park as being whether the right “is inconsistent with the proprietorship or possession of the servient owners, and … if the right conferred amounted to a joint occupation with the owners, or excluded the proprietorship or possession of the owners it would be so inconsistent” (at [44], see also [24]). His Honour gave context to the principle, and alluded to its policy foundation, by referring to the “limits on the kind of interests in land, including easements, which the law will allow to be created” (at [29]). He quoted Lord Brougham LC saying in Keppell v Bailey (1834) 2 M & K 517 at 536, 39 ER 1042 at 1049, that:

great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote.

128. As the High Court said in Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; [1998] HCA 15 at [15], in the context of restrictive covenants, the common law has been “wary of long-term inhibitions to the realisation of the full potential of the servient tenement”; note further Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39; [2023] NSWCA 22 at [163]-[174].

129. The putative easement in Clos Farming (SC) gave the dominant owner the right to plant and maintain a vineyard on certain land. Justice Bryson held that this was not a valid easement:

[41] … The servient owners’ opportunity for recreational activity, whether it is enjoyment of rustic tranquillity or anything more active, is merely nominal having regard to the dominant owner’s entitlement to carry out vineyard establishment works, plant and replant grapevines and crops, plant harvest slash and spray crops, and carry out vineyard maintenance and harvesting. It is true that the owner will not be a trespasser provided that he keeps out of the dominant owner’s way, but his rights are no more than a shadow of ownership and possession of a freehold and do not have any reality beyond the opportunity to experience a sense of proprietorship and the opportunity to receive and pay bills for municipal rates.

130. An appeal in Clos Farming (SC) was rejected: Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605. Justice Santow, speaking for this Court, said that “it is necessary to assess the degree to which the rights conferred interfere with the servient owners’ exclusive possession of the site” (at [45]). His Honour noted that the restriction at issue there only applied to part of the servient owner’s land, but said that fact was “insufficient to preclude the finding that the rights so vastly interfere with the servient owners’ rights, were they exercised, as to preclude them constituting an easement” (at [46]). When the covenant was “placed in its context of those further restrictions that apply to the lot in total, the servient owner's rights are so attenuated as no longer to meet the description of exclusive possession” (ibid).

131. Lord Scott’s judgment in Moncrieff in 2007 has attracted subsequent attention in this area. Amongst other things, his Lordship argued that the relevant focus in assessing validity is “the land over which the servitude or easement is enjoyed, not the totality of the surrounding land of which the servient owner happens to be the owner” (at [57]). He expressed the test as “whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land” (at [59]).

132. His Lordship had earlier made the following forceful observations:

[54] … Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice. A viaduct carrying water across the servient land to the dominant land will prevent the same things. Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude. There will always be some such use that is prevented. …

[55] In Wright v Macadam [1949] 2 KB 744, the Court of Appeal had to consider whether the right to use a coal shed could exist as an easement and held that it could: see per Jenkins LJ, at p 752. It has been suggested that the case may have turned on whether the claimant had sole use of the coal shed, but it is difficult to see any difference in principle between a case in which the dominant owner has sole use of a patch of ground for storage purposes, eg a coal shed, and a case in which the dominant owner is the only user of a strip of road for access purposes or of a viaduct for the passage of water. Sole user, as a concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any purposes of his own that do not interfere with the dominant owner's reasonable use for the storage of coal. The dominant owner entitled to a servitude of way or for the passage of water along a viaduct does not have possession of the land over which the road or the viaduct passes.

133. The case of Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 concerned a grant of an easement in a transfer of property which required one of the lots transferred to be used by the servient owner for no purpose other than as a car parking area for free use by, amongst others, the servient and dominant owners and those authorised by them. The restriction was expressed not to apply below ground or above 12 feet from the ground. The Court upheld Windeyer AJ’s conclusion that the easement was valid (although the primary decision was overturned on another ground). In so doing, Bathurst CJ and Beazley P addressed an argument that there was a material difference between the approach taken in the Clos Farming decisions and what Lord Scott had said in Moncrieff:

[64] … we do not consider that Clos Farming Estates stands only for the proposition that the owner of the servient tenement must have reasonable use of the servient tenement in its entirety. That is a relevant consideration and, in a given case may be decisive, but it is also relevant to consider the extent of the interference with the rights of ownership on that part of the servient tenement actually affected by the easement. ... It may be that if the interference with possession amounts to an effective interference with ownership rights, that may be sufficient to deny the validity of an easement.

134. On the facts of the case, their Honours agreed with Windeyer AJ’s conclusion that the servient owner still “enjoys a very substantial use of the land”, including rights to use the servient tenement for parking, to put advertising on the fencing, and the right to use both the airspace above and the subterranean land below (at [64]).

135. Justice Basten reached the same conclusion for similar reasons (at [152]-[153]), noting that such questions “inevitably involve matters of degree and evaluation which will depend on the circumstances of each case” (at [150]). As to Lord Scott’s judgment in Moncrief, Basten JA agreed with a statement in a leading text that its effect was to “rationalise the case law in a manner notably more sympathetic to easements which involve substantial exclusion of the servient owner from his land” (at [151]). His Honour considered that “[s]tatements in more extreme cases of exclusion, such as Clos Farming, are not inconsistent with that approach”.

136. In Towers v Stolyar [2017] NSWSC 526; (2017) 18 BPR 36,963, Darke J summarised the law on the point as he understood it, following Jea Holdings (citations omitted):

[49] … It is thus necessary to consider the extent of interference with the servient owner’s rights of ownership on that part of the servient tenement actually affected by the Easement, and on the servient tenement as a whole ... Included in that analysis is a consideration of whether the servient owner retains reasonable use of the servient tenement in its entirety, and an assessment of the degree to which the rights conferred by the Easement interfere with the servient owner’s exclusive possession of the land … Questions of degree and evaluation are involved.

137. Justice Darke’s decision was upheld on appeal in this Court: Stolyar v Towers [2018] NSWCA 6; (2018) 19 BPR 38,287. Justice Gleeson, speaking for the Court, noted that the parties had not suggested departing from the approach in Jea Holdings (at [55]). His Honour held that “the rights given by the easement to the dominant owner … did not substantially deprive the servient owner … of her rights of proprietorship or possession in respect of the easement area”, and the servient owner “retained reasonable use of the servient tenement in its entirety” (at [73]).

138. The case of Laming, in 2018, concerned a claimed easement by prescription to use an area for the purposes of recreation, with the “permitted usage” stipulated to include the storage of firewood and burning green waste. The Victorian Court of Appeal found that one of the elements for recognising such an easement had not been made out. It also considered an argument that such an easement would not have been valid because it amounted to a right to possession. The Court rejected that argument, saying that if the easement had been sufficiently certain to be recognised at law then it would not have been persuaded that the easement “confers exclusive or joint possession or control of the disputed land on the dominant owner” (at [170]). The Court noted that “the cases reveal a very uncertain line between what is permissible and what encroaches too far on the possessory rights of the servient owner” (at [167]). The Court (at [167]) also quoted with approval the observations by Lord Scott in Moncrief at [54] which I have quoted above at [132].

139. In Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292 the owner and the lessee of land together sought the imposition of an easement pursuant to s 88K of the Conveyancing Act on a portion of land adjacent to theirs which belonged to the local council. The land in question was between the appellants’ land and a drainage channel owned by the council. Part of that in-between land had been enclosed by a predecessor in title of the owner, and it was that area over which the easement was sought. Justice Basten, speaking for the Court, upheld the primary judge’s conclusion that the application should be rejected because the proposed easement involved “a wholesale occupation of the Easement Land to the exclusion of the Council” (quoting the primary judge – see Basten JA at [21]). Justice Basten said, citing Moncrieff, that “rights conferred on the dominant tenement may be extensive and provide for exclusive occupation of the land, but must be compatible with the continued beneficial ownership of the servient tenement” (at [23]). As to the facts, his Honour stated:

[25] In the present case, the appellants had enclosed an area constituting 68% of the Council’s lot, in a manner which practically excluded the Council from use of the enclosed land. As a matter of degree, the appellants’ claim could not qualify as an easement, but as the appropriation of a large part of the Council’s lot for the appellants’ commercial benefit.

140. Drawing these various statements of principle together, the following may be said. Every easement prevents some ordinary use of the servient tenement, perhaps to a very significant extent. The question is whether a putative easement substantially deprives the servient owner of proprietorship or legal possession to such an extent as to be inconsistent with ownership. That assessment is a matter of fact and degree. That assessment involves considering the physical area affected by the putative easement by reference to the servient tenement as a whole. The greater the proportionate area affected, the more likely that the restriction cannot be characterised as an easement. The assessment also involves considering the effect of the easement on the rights of the servient owner with respect to the burdened land. Those rights are positive: what the servient owner may do on and with the land. They are also negative: what the servient owner may require the dominant owner not to do on the easement area; or, put conversely, the extent of the positive rights held by the dominant owner. If there is a complete transfer of the servient owner’s rights, as in Bursill Enterprises, the instrument cannot be an easement. Anything less than that is a question of degree. That the instrument grants a sole right to the dominant owner to use the subject area for some particular purpose (as opposed to having exclusive possession for all purposes) does not of itself establish that the easement is invalid.

Resolution

141. The Easement, construed in the manner sought by the appellants, grants the dominant owner sole use of the rooftop terrace for a significant purpose, being recreation and enjoyment and as a balcony, terrace or garden. However, it is not a grant of exclusive possession for all purposes.

142. In that regard this case bears some similarity to Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209, which concerned a situation where lot 2 in a deposited plan was divided into two sections by a cliff and a balustrade which ran along the contours of the cliff. There was no means of access between the upper and lower parts of the lot except through neighbouring properties. The upper part of lot 2 adjoined lot 1. Justice Brownie said that “[i]n a practical sense it is now the garden area pertaining to lot 1” (at 211). An easement had been granted favouring lot 1 whereby that lot had what was called a “right of footway” over the upper part of lot 2, with the servient owner covenanting that she would not “traverse or otherwise use the land” subject to the grant other than on one nominated day each year. His Honour upheld the validity of the easement. One of his reasons for doing so was the fact that the rights held by the dominant owner were limited to what was granted by the “right of footway”. His Honour said that “whilst the registered proprietor of the dominant tenement can in a practical sense have what amounts to an exclusive use of the affected land, that person can himself or herself only use it in a quite limited way” (at 212).

143. Here, the dominant owner’s exclusive set of rights (on the construction adopted above) is also limited. They do not encompass other use of the airspace such as for building or storage. The servient owner retains negative rights to restrict what the dominant owners may do in the affected area.

144. It can be accepted that the appellants’ construction means that the servient owner can make little positive use of the rooftop or the airspace above it. But it is an overstatement to say that all that is left, in practical terms, is the ability to enter the area for repairs. The servient owner has the right to access sunlight through the skylight, as protected from interference by the dominant owner by the third proviso. In any case, as explained, neither a grant of sole use for a particular purpose, nor the fact that this may involve a substantial restriction on what the servient owner may do with that area, necessarily establish invalidity. It is necessary to consider the degree of restriction on rights and area.

145. The respondent argued that the Easement covers a large area, being some 78 m², or approximately 27% of the land area of Lot 2. It was said that it is “a very valuable area, having regard to its location, its vista and the spectacular views it enjoys … over the Middle Harbour of Mosman”. That the views from the Easement area have significant market value says little if anything as to whether the Easement substantially deprives the servient owner of proprietorship or legal possession.

146. As for the percentage of area point, as the appellants argued, the rooftop itself serves functions other than providing a space for recreation, including protection from the elements and insulation. Senior counsel for the respondent responded by saying:

No doubt all that’s true, but the roof is not the subject of the grant. This is not unimportant. The right is a right to access and use the surface of the roof. Your Honours might think I’m splitting hairs, but it’s important to appreciate that the right is actually over in the horizontal plane.

147. The Easement benefits the dominant owner above the surface of the rooftop. As noted above (at [30]), the parties accepted that the Easement did not go below RL65.315 AHD. It is necessary to look at the practical reality. The respondent erroneously focused only on two dimensions. Land, as understood at common law, is “never simply two-dimensional, as the term ‘surface’ implies, but is any area of three-dimensional space”: Brendan Edgeworth, Butt’s Land Law (7^th ed, Lawbook Co, 2017) at [2.10]; note further eg Bursill Enterprises at 91. Thus it was significant in Jea Holdings that the servient owner could use the space above and below the area set aside for parking.

148. Even leaving aside the insulating and protective effects of the roof itself, the fact is that the servient owner has substantial benefit from the land area covered by the Easement, being the ability to use the airspace below RL65.315 AHD. That very space is where the respondent has her three storey house. Furthermore, as noted, the servient owner has the benefit of accessing unobstructed sunlight through the skylight.

147. In this context it cannot be said that the servient owner has been substantially deprived of proprietorship or legal possession to such an extent as to be inconsistent with ownership of the servient tenement. The area affected by the Easement (as a proportion of the property) is significant but limited. Even over that area the servient owner retains substantial positive and negative rights.

148. The respondent’s argument of invalidity is not made out. It therefore does not preclude the appellants’ construction – the better construction – being adopted.

Costs and orders

151. The appeal should be allowed with costs. It is appropriate to make a declaration relating to the construction of the Easement.

152. The appellants also sought an injunction restraining the respondent, or those authorised by her, from using the rooftop area for recreation. However, they have pointed to no evidence suggesting that the respondent would not abide by the decision of this Court as to her rights, as crystallised in the declaration. An injunction is not warranted.

153. The appellants sought that orders 3, 8, 9 and 12 made below be set aside. The first three of those orders are set out above at [25]. Order 3 was a declaration crystallising the construction of the Easement proposed by the respondent. Order 8 was an injunction restraining the appellants from obstructing the respondent’s access to the rooftop area. Those orders depended upon the respondent’s construction and cannot be sustained.

154. Order 9 restrained the appellants from using the rooftop area for activities which (a) cause unreasonable disturbance to the plaintiff, such as basketball, or (b) restrict the skylight or the gate on the rooftop area from opening. On one view order 9 is not necessarily undermined by the determination made in this appeal. However, the primary judge noted at J [28] that the appellants proffered an undertaking that the basketball hoop would be removed within four weeks, and I assume that has taken place. In that context order 9(a) seems unnecessary. As for order 9(b), whether or not opening of the skylight was per se inconsistent with the Easement was not the subject of argument (as opposed to the respondent using it to climb up onto the rooftop area for the purpose of recreation). In that context it, too, should be set aside.

155. Order 12 was that the appellants pay 90% of the respondent’s costs. The respondent explained that the order had been made on the basis that she was successful before the primary judge on three claims concerning the three easements at issue below (each deemed to constitute 30% of the costs of the proceeding), and each side had some success on a fourth issue related to competing claims about CCTV cameras. In light of the appellants’ success with respect to the Easement, that order should be set aside.

156. The appellants sought, in lieu thereof, an order that the respondent pay two-thirds of the costs of the proceeding below. Senior counsel for the appellants made relatively little effort to defend this ambit claim, but did submit that “the main game” below had been the Easement.

157. Senior counsel for the respondent submitted that the appropriate order would be that the respondent pay 30% of the appellants’ costs, which was said to be consistent with the approach taken by the primary judge. However, that submission appeared to manifest the error of not taking into account costs on both sides of the ledger, because senior counsel also accepted a characterisation of his submission as being that in retrospect his client “won two out [of] three of the main issues below and the 10% we just ignore again”. On that understanding, one way of dealing with costs below would be ordering that the appellants pay two-thirds of the respondent’s costs and the respondent pay one-third of the appellants’ costs – or, to net those orders off, that the appellants pay one-third of the respondent’s costs. I will take that to be the respondent’s submission.

158. There is some force in the appellants’ submission that the Easement was a more significant issue than either of the other two issues on which the respondent succeeded. A reasonable characterisation is that the parties had about an equal degree of success relative to the attention directed to the issues. On that basis each side should bear its own costs of the proceedings below.

159. In the application for leave to appeal (file number 2024/300418) the orders of the Court should be as follows:

1. The application for leave to appeal is dismissed.

2. The respondent is to pay the applicants’ costs.

160. In the appeal (file number 2024/139728) the orders of the Court should be:

1. The respondent’s competency motion filed on 11 July 2024 is dismissed with costs.

2. Appeal allowed.

3. Orders 3, 8, 9 and 12 made by Richmond J on 15 April 2024 are set aside, and in lieu thereof:

1. Declare that, upon its proper construction, the easement provided for in Transfer Granting Easement 939404 provides the owners of the dominant tenement with sole use and enjoyment of the rooftop area for the purposes of recreation and enjoyment and as a balcony, terrace or garden, subject to the limitations expressed in the easement.

2. There be no order as to the costs of the proceedings.

4. The respondent is to pay the appellants’ costs of the appeal.

161. GRIFFITHS AJA: I agree with Kirk JA.

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Amendments

31 March 2025 - Typographical correction re legal representation on coversheet.

Decision last updated: 31 March 2025