Treweeke v 36 Wolseley Road Pty Ltd

[1973] HCA 27

HIGH COURT OF AUSTRALIA

. McTiernan, Walsh and Mason JJ.

TREWEEKE v. 36 WOLSELEY ROAD PTY. LTD.

(1973) 128 CLR 274

17 August 1973

Real Property

Real Property—Easements—Right of way—Abandonment—Non-user—Erection of fence blocking way—Installation of swimming pool obstructing passage—Availability of alternative route by trespass—Conveyancing Act, 1919 (N.S.W.), s. 89*. *Section 89 of the Conveyancing Act, 1919 (N.S.W.) provides so far as material as follows: "(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user thereof, the court may from time to time, on the application of any person interested in the land, by order modify or partially extinguish the easement or restriction upon being satisfied—... (b) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed, ... by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part or waived the benefit of the restriction wholly or in part."

Decisions

August 17.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal from the judgment of the Supreme Court of New South Wales pronounced by Hope J. after hearing the application on behalf of Mrs. Treweeke to which the appeal relates. The learned judge refused the application. This Court is asked to set aside the judgment and make an order granting the application. (at p277)

2. The application is brought in relation to a right of way created in 1927. It is a right to utilize a strip of land three feet wide along the north-west boundary - a side boundary - of Mrs. Treweeke's property as a means of access to the beach at Double Bay. She is registered proprietor. The right of way as granted is appurtenant to the allotment on which the premises, no. 36 Wolseley Road, Point Piper, are built. The respondent is the registered proprietor of this property. The existence is shown on Mrs. Treweeke's title to her property and on the respondent's title to its property. They hold an estate in fee simple in their respective properties. Mrs. Treweeke's estate is diminished to the extent of the right of way. The respondent's estate is amplified to that extent. Mrs. Treweeke asked the Supreme Court to grant her one of three orders the terms of which respectively are set out in the summons commencing the application. The orders sought are stated to be alternatives. The first is asked for in terms adopted from s. 89 (3) of the Conveyancing Act, 1919-1969 (N.S.W.). The second is asked for in different terms also adopted from s. 89 (3). The third is asked for in terms adopted from s. 89 (1). (at p278)

3. Section 89 (3) provides that the Supreme Court may on the application of any person interested make an order declaring whether or not in any particular case any land is affected by an easement, and the nature and extent thereof, and whether the same is enforceable, and if so by whom. The relief claimed pursuant to this sub-section is: (1) a declaration that Mrs. Treweeke's land, no. 34 Wolseley Road, is not affected by the easement the subject of the grant mentioned above; and (2) a declaration that the said easement is not enforceable by any person. No ground is prescribed by the Act on which an order may be sought pursuant to s. 89 (3). The summons does not state any ground on which either order is sought. Section 89 (1) provides that where land is subject to an easement the Supreme Court may from time to time, on the application of any person interested in the land, by order wholly extinguish the easement upon being satisfied that by their acts and omissions, the persons referred to in (b) may reasonably be considered to have abandoned the easement wholly. Such persons are the persons of full age and capacity for the time being entitled to the easement. This ground is not mentioned in the summons initiating the application. It seems that from the matters to which Mrs. Treweeke deposed in her affidavit that nothing in par. (a) or par. (c) of s. 89 (1) was relied upon. No oral evidence was given at the hearing. Section 89 applies to the right of way by virtue of sub-s. (6) of the section. The section applies to - "land under the provisions of the Real Property Act, 1900". This is expressly enacted by sub-s. (8). The expression, "land under the provisions of the Real Property Act, 1900" is defined by s. 7 of the Conveyancing Act, 1919-1969. The allotments of land, which are in relation to the right of way, the servient tenement and the dominant tenement, are within the expression first mentioned. (at p278)

4. The strip of land in respect of which the right of way was granted slopes downwards to the beach over ledges of rock. At these places the strip of land is impassable. During the period of Mrs. Treweeke's residence at no. 34 Wolseley Road, which began in 1928, she has made improvements within the vicinity of the north-western side boundary of the property, but not on a large scale. The improvements consisting of steps and paths were to facilitate walking along that side of the fence. These improvements do not reach as far as the precipitous part of the land. They included a low retaining wall to retain the soil where Mrs. Treweeke has made a garden. She also planted shrubs at other places. A comparatively low fence was placed across each of the two of the ledges of rock - it would seem for reasons of safety. Before Mrs. Treweeke resided there bamboo was planted in the vicinity of the north-western boundary, on Mrs. Treweeke's side. She increased this plantation of bamboo. The growth covers the strip of land established by the grant as the locus in quo of the right of way. Mrs. Treweeke deposes by her principal affidavit that the part of the strip of way over which the bamboo extends is impassable. Passage over the strip of land is obstructed by a swimming pool, the framework of which extends above and beyond high-water mark, the limit of Mrs. Treweeke's water frontage. The swimming pool was built by Mrs. Treweeke in 1956. The other works which have been mentioned were constructed later, at intervals. (at p279)

5. The case upon which Mrs. Treweeke's application rests is stated in par. 20 of her principal affidavit. The strip of land the part of the right of way is referred to in the paragraph as "the blue strip", an expression used in a plan. The paragraph reads:

"I am not aware of any person ever having passed or attempted or sought to pass along the blue strip or any part thereof from the property no. 36 Wolseley Road or in exercise or purported exercise of any right of way along the blue strip or any part thereof, nor has any person ever complained to or communicated with me concerning any obstruction to passage along the blue strip or any part thereof, until the receipt by

me of a letter from Messrs. Freehill, Hollingdale &Page the

Solicitors for the Respondent hereto in September 1968." (at p279)

6. No. 36 Wolseley Road is a building divided into home units, the owners of which are shareholders of the respondent company. It acquired this property in 1959, shortly after the company was incorporated. Under the terms of the grant of the right of way the registered proprietor of the dominant tenement, his tenants, servants and persons authorized by the registered proprietor are entitled to pass and repass on the strip of ground between the place at which it is in contact with the dominant tenement and the place at the other end at which it is in contact with the high-water mark. The respondent, of course, is not capable of enjoying the right of way personally. There is no suggestion that it disclaimed the right of way. Mrs. Treweeke's statement is relevant in so far as it applies to owners or tenants of the home units and the respondent itself. The solicitor's letter includes the following:

"We are instructed that you have caused a swimming pool to be built on the boundary of your property at the edge of Double Bay in such a manner and position that it obstructs our client's right of way, so making it impossible for the right of way to be used by our client. This obstruction to our client's right of way caused by the construction of your pool amounts to a wrongful interference with it, such as to entitle our client to various remedies, including the right of removal of the obstruction, or bringing an action for damages, or suit for an injunction against the continuance of the interference. We are instructed that our client has no desire at this stage to take legal action but wishes to settle the matter with you amicably. No doubt some arrangements can be made, acceptable to both parties, for the granting of a new right of way which would enable the residents of our client's building to reach the beach." (at p280)

7. The letter does not refer to the fences or the retaining wall or the plantation. No proceedings were brought before Mrs. Treweeke commenced her application, nor since that time. The summons commencing the application is dated 16th February 1971. (at p280)

8. It was always impossible to use the right of way at the place where each fence was put, by reason of the steepness of the place. In any case, neither fence is immovable. It would appear that at the place where the low retaining wall is built the strip of land was usable as a means of passage towards the beach. The wall is not immovable. As regards the obstruction caused by the growth of bamboo, this could be dealt with by removing some of the growth by a job of pruning. It is a curious feature of the case that the owner of the servient tenement is relying upon things done by herself which she says are obstructions to passage along the strip of land subject to the right of way. (at p280)

9. It is said in Gale on Easements, 14th ed. (1972), p. 351: "It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total destruction of the easement". It is said at pp. 352, 353: "As regards the disturbance of private rights of way, it has been laid down that... in the case of a private right of way the obstruction is not actionable unless it is substantial": Pettey v. Parsons (1914) 2 Ch 653, at p 662 . The passage continues: "Again, it has been said that for the obstruction of a private way the dominant owner cannot complain unless he can prove injury; unlike the case of trespass, which gives a right of action though no damage be proved": Thorpe v. Brumfitt (1873) 8 Ch App 650, at p 656 . The passage further continues: "In Hutton v. Hamboro (1860) 2 F &F 218, at p 219; (175 ER 1031, at p 1032) , where the obstruction of a private way was alleged, Cockburn C.J. laid down that the question was whether practically and substantially the right of way could be exercised as conveniently as before. In Keefe v. Amor (1965) 1 QB 334, at p 347 Russell L.J. said that the grantee of a right of way could only object to such activities of the owner of the land, including retention of obstructions, as substantially interfered with the use of the land in such exercise of the defined right as for the time being was reasonably required." (at p281)

10. Presumably the complaint on behalf of the respondent company was made only in respect of the swimming pool because no other interference with the right of way appeared to the company's advisers to be actionable. A question which I think arises in respect of the extent of user of the right of way is whether, having regard to the difficulties of passage due to the physical features of servient tenement a right to deviate onto the land within the servient tenement adjoining the strip of land is implied in the grant and whether by reason of the construction of the swimming pool such a right arose. It is said in A Treatise on The Law of Easements, Goddard, 7th ed., at p. 425: "... it may happen, and frequently has happened that a way has become impassable from want of ordinary repair, or it may happen that it is impassable through the act, right or wrong, of the owner of the soil. In all these, and possibly in other cases, an important question is likely to arise whether a person entitled to use the way may pass over the adjoining land, or whether he must keep to the path, however inconvenient it may be, or give up his right altogether if the way is absolutely stopped; and it is clear that these questions may arise, both as to private and as to public ways"; and at p. 429: "If a way is rendered impassable by the act of the grantor, the authorities show that the owner of a right of way would be justified in passing over the adjoining ground, provided it belongs to the grantor of the easement, and provided the act of deviation was a reasonable thing in connection with the user of the right". The construction of the swimming pool is not the act of the grantor of the right of way now in question. It is Mrs. Treweeke's act. The persons entitled under the grant of the right would in my opinion be justified in passing over the ground within the servient tenement that adjoins the swimming pool (cases are cited at the foot of p. 429). In my opinion the absence of any complaint by any person entitled to the enjoyment of the right of way does not in the circumstances raise an equity upon which Mrs. Treweeke can obtain either declaration sought pursuant to s. 89 (3). Each declaration is sought in the face of the existing registered title of the respondent to the easement. As regards the request for an order under s. 89 (1) (b), there is no proof of extinguishment of the right of way by agreement, that is by express release. Mrs. Treweeke's case is that extinguishment was effected by acts and omissions amounting to abandonment of the right of way. "As a general rule a release, whether express or implied, must be made by a party whose estate or interest in the dominant tenement is, as regards duration, either greater than or at least co-extensive with the period for which the easement exists": Halsbury's Laws of England, 3rd ed. vol. 12, p. 562, par. 1222. On the subject of "Duration" this principle is enunciated at p. 530, par. 1151: "An easement may be created by express grant for interests analogous in their duration to an estate in fee simple, an estate for life, an estate for years, or even a smaller interest." It is clear from the express grant of the right of way that its duration is intended to be co-extensive with the duration of the estate in fee simple. The relevant "acts or omissions" would need to be things done or omitted by a dominant owner holding an estate in fee simple in the dominant tenement which would amount to abandonment of the right of way or from which abandonment could be reasonably presumed. "Extinguishment by release may be effected either by express release or by circumstances occurring from which a release must be presumed (Crossley &Sons, Ltd. v. Lightowler (1867) 2 Ch App 478 ). In all cases of release the competency of the releasing party is of the utmost importance... ": Halsbury's Laws of England 3rd ed., vol. 12, p. 563, par. 1221. "The extinguishment of an easement by implied release must be based upon the presumed intention of the dominant owner (Crossley &Sons, Ltd. v. Lightowler (1867) 2 Ch App 478 ). It is a question of fact whether an act amounts to an abandonment or was intended as such": Halsbury's Laws of England, 3rd ed., vol. 12, p. 564, par. 1226. There is no proof of any act or omission on the part of the respondent which has the character of abandonment in relation to the right of way. The same is true as regards previous dominant owners. Mrs. Treweeke's evidence in her affidavit is tendered presumably to prove lack of use of the right of way by the occupants of the premises on the dominant tenement, which, as already stated, are home units. It is not shown that any occupant was competent to extinguish the right of way by express or implied release. It is said in Gale on Easements, 14th ed. (1972), at p. 317: "... as an easement, when once created, is perpetual in its nature, being attached to the inheritance and passing with it, some acquiescence on the part of the absolute owner of the dominant tenement is necessary to give effect to any act of abandonment". There is no evidence of such acquiescence on the part of the respondent. It cannot reasonably be presumed that the intention of any occupant of the home units was to abandon the right of way. Residents of the home units gave evidence that they were informed by the agent of the respondent of the existence of the right of way. The evidence, which the learned judge acted upon to make his finding of some use of part of the right of way, prevents an inference from Mrs. Treweeke's evidence that no person from the home units ever went along any part of the strip of land in respect of which the right of way was granted. Mrs. Treweeke relied upon an incident as evidence of abandonment as to which the learned judge made this finding: "In 1933, following an incident in which an occupant of no. 36 Wolseley Road fell down the steep incline near the boundary between the two allotments and damaged a tree on the applicant's land, a fence was built between the two allotments, although it would appear that probably this fence stands on the respondent's land. This fence was a wire fence, and some of the wire in the fence was replaced in August or September, 1967. Half the cost of the original construction of the fence was paid by the owners for the time being of the respondent's land". Assuming the competency of the occupant to release the right of way, I do not think that it is a reasonable conclusion that the building of the fence amounted to an abandonment of the right of way or was intended as such. The evidence shows that it was not expensive; it is movable; and it is within the dominant tenement. A gate could be inserted in the fence to admit of egress from and access to the servient tenement. The evidence of this incident is not, in my opinion, so cogent that it is reasonable to find that the erection of the fence amounted to a renunciation or disclaimer of the right of way. In any case the last-mentioned finding as to user appears to relate to after 1933. (at p283)

11. The important element in the case is non-user of the total length of the strip of land as a way. Part of it was frequently used as far as an opening in the boundary fence to which the strip of land is adjacent. Residents of the home units went through that opening and proceeded from there over the neighbouring allotment to the beach. Their reason for turning aside from the boundary would appear to be that the strip of land was not passable further on. The grant by which the right of way was created imposes no obligation on either the servient owner or the dominant owner to make the strip of land passable. An obligation to do so does not arise at law or in equity. The case is one of mere non-user. It is established that a right will not be extinguished by non-user alone: Seaman v. Vawdrey (1810) 16 Ves 390 (33 ER 1032) . In Ward v. Ward (1852) 7 Ex 838 (155 ER 1189) , a right of way was held not to have been lost by mere non-user for a period much longer than twenty years, it being shown that the way was not used because the owner had a more convenient mode of access through his own land. (I quote the summary of the facts of the case in Gale on Easements, 14th ed. (1972), at p. 340.) In that case Alderson B. said: (1852) 7 Ex 838, at p 839 (155 ER 1189, at p 1190) "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption... The non-user, therefore, must be the consequence of something which is adverse to the user". Other decisions on the point are Crossley &Sons Ltd. v. Lightowler (1867) 2 Ch App 478, at p 482 and Bulstrode v. Lambert (1953) 2 All ER 728 . There is no proof of user of the right of way along the total length of the strip of land since the creation of the right of way, a period longer than forty years. "The duration of the period of non-user is only material as one element from which the dominant owner's intention to retain or abandon his easement may be inferred; and what period may be sufficient in any particular case must depend on the strength of the other indications of intention and all other accompanying circumstances. If, however, the period of suspension of user is of very long duration, it appears that the suspension alone may raise a prima facie presumption of abandonment to the extent of throwing upon the person seeking to uphold the right the burden of showing that some indication of his intention to preserve the right was manifested during the period of suspension": Halsbury's Laws of England, 3rd ed., vol. 12, p. 564, par. 1228. (For a review of cases, see Gale on Easements, 14th ed. (1972), pp. 339-343.) The non-user of the total length of the way can reasonably be put down to its precipitous condition at places. It is not reasonable to attribute non-user to renunciation of such a pleasant amenity as a path to the beach at Double Bay. There is ample evidence of the utilization of passable parts of the locus in quo of the right of way as the first stage of daily journeys to the beach by residents of no. 36 Wolseley Road, the dominant tenement. There is evidence of a survey being procured by the owner of one of the home units to determine the precise course of the right of way along the north-western boundary of the servient tenement. There is evidence that the respondent's agent informed some of the people residing at no. 36 Wolseley Road about the existence of the right of way when purchasing their home units. The correspondence which is in evidence proves that the respondent complained to Mrs. Treweeke about the swimming pool when the survey established that it obstructed the right of way. In my opinion, upon the whole of the evidence there is clear proof of the intention of the respondent to retain the right of way. I do not think it can be presumed that release of the right of way occurred at any time before or since the respondent acquired the property, no. 36 Wolseley Road. (at p285)

12. In my opinion the appeal should be dismissed. (at p285)

WALSH J. The facts with which this appeal is concerned are set out in the judgment of Mason J. I shall discuss the questions raised by the appeal upon the basis of an acceptance of his Honour's statement of the facts, making such further reference to matters of fact as seems necessary in order to explain the reasons for my conclusions. (at p285)

2. It is natural, I think, to feel some reluctance in accepting and applying two propositions upon which the appellant must rely in order to maintain that she was entitled to an order under s. 89 of the Conveyancing Act, 1919 (N.S.W.), as amended. The first is that an easement formally created by express grant may be lost by the grantee or his successors in title, without any express release or surrender and without any written declaration of an intention to abandon it or to give up the benefit of it. The second is that even where the dominant land and the servient land are registered under the Real Property Act and notifications of the existence of the easement appear on the certificates of title relating to both parcels of land, the easement may become liable to be extinguished and may cease to be enforceable by the person for the time being registered as proprietor of the dominant tenement. But the first of those propositions is firmly established and is not in dispute. The second of them must be accepted because of the express provision contained in s. 89 (8) of the Conveyancing Act. That sub-section is applicable in the form in which it stood before the amendment made by the Conveyancing (Amendment) Act, 1972, but the changes then made are not material for present purposes. It makes s. 89 applicable to land under the provisions of the Real Property Act and authority is conferred upon the Registrar-General to make such amendments and entries in the register book as are necessary to give effect to an order made thereunder. The provision clearly contemplates that orders will be made which affect rights which were vested in the registered proprietor, according to the state of the register, at and after the time when he acquired his title to the dominant tenement. It is, of course, the function of the Court to give effect to the intention which it finds to be expressed in the provision, notwithstanding that it may operate as a limitation upon the conclusiveness of the register, which is conferred, as to matters of title, subject to specified exceptions, by the provisions of the Real Property Act. (at p286)

3. In his judgment Mason J. raises the question whether the Court, when the circumstances specified in s. 89 (1) are established, has a duty to make an order or has a discretion to make or to refuse an order. His Honour mentions as a fact which, if the Court has a discretion, might be taken into account, the reliance by a purchaser of the dominant tenement on the existence of an easement as shown by the register. However I am in agreement with his Honour in thinking that in this appeal it is not necessary to resolve this question. As his Honour states, if the ground upon which the application in the Supreme Court of New South Wales was decided is not shown to have been erroneous, the question of discretion does not arise. On the other hand, if this Court holds that it ought to have been found that the respondent or its predecessors in title by their acts or omissions might reasonably be considered to have abandoned the easement, I am of opinion that upon the assumption that the Supreme Court retained a discretion to make or to refuse to make an order, there was in this case no ground upon which that discretion could properly have been exercised against the making of an order. It has been submitted on behalf of the respondent that it came late upon the scene and that the evidence does not support a view that the respondent itself by its own acts or omissions exhibited any intention to abandon the easement and it has been put that the requirements of par. (b) of s. 89 (1) are not satisfied, unless all the persons of full age and capacity from time to time entitled to the easement have shown by their acts or omissions such an intention. If those arguments were accepted, the appellant would fail, not because the Court's discretion ought to be exercised in favour of the respondent, but because of a lack of proof of the necessary requirements for the making of an order. However, they should not be accepted. My reason for not accepting them will appear later in this judgment. But at this point it is appropriate to say that, in my opinion, the mere circumstance that the existence of an easement was noted on the register at the time when the title passed to a new owner would not furnish a reason for refusing, as a matter of discretion, to make an order under s. 89(1) or s. 89(3). If the new owner could show, also, that he took steps promptly to make use of the easement, or to claim the right to use it, it may be that the Court could take that into account, together with any evidence which might be provided as to the conduct and attitude of the owner of the servient tenement at the time of the change of ownership of the dominant tenement, in determining whether or not an order should be made. But this is a question which does not arise in this case, in which no such claim was made for several years after the acquisition by the respondent of its title. (at p287)

4. The primary facts are not in dispute. The critical matter is the ultimate conclusion which should have been reached, by way of inference from those facts, upon the question of abandonment. In considering that question it is no doubt convenient to discuss separately different aspects of the facts, such as, (1) the length of time during which a failure to use the right of way and to make a claim to use it continued; (2) the effect of obstacles to its convenient use already existing at the time of its grant; (3) the effect of the creation by the appellant of further obstacles to its use and of the acquiescence therein by the respondent or its predecessors in title; (4) the failure of the respondent or its predecessors in title to take any action to render the right of way available for use; (5) the effect of the contribution by the respondent and by one of its predecessors in title towards the cost of a fence which cut off ready access to the right of way; and (6) the effect of the availability of another path from the dominant land to the waterfront. But in the end a decision has to be taken as to the inferences to be drawn from the whole of the relevant evidence, taking into account all the matters of fact which may tend towards or against a conclusion that the easement may reasonably be considered to have been abandoned. Each of the circumstances upon which an applicant seeks to rely may be insufficient in itself to support that conclusion, yet in their cumulative effect the circumstances may show that it is the right conclusion. (at p287)

5. It has been stated in several cases, e.g., Ward v. Ward (1852) 7 Ex 838, at p 839 (155 ER 1189, at p 1190) , that "mere non-user" is not enough to raise a presumption of abandonment. This may be accepted, but in most cases, of which the present case is one, the Court is not required to decide what would be the effect of "mere non-user". There is evidence of other important circumstances in addition to the non-user of the right of way. But in my opinion the authorities do not warrant the view that the length of time during which non-user continues is unimportant. I think that the longer it continues the more readily will the conclusion be reached that the person entitled to the benefit of the easement may be deemed to have abandoned it, unless of course there is proof of facts or circumstances which provide a satisfactory explanation for the non-user and which negative any intention of abandonment. (at p288)

6. It has been stated frequently that the question of abandonment is one to be decided upon the facts of each particular case: see Ward v. Ward (1852) 7 Ex 838 (155 ER 1189) ; Crossley and Sons Ltd. v. Lightowler (1867) 2 Ch App 478, at p 482 and Cook v. Mayor and Corporation of Bath (1868) LR 6 Eq 177, at p 179 . (at p288)

7. The evidence fails to provide a complete account of the successive ownership of the dominant land. The transferee in the transfer which created the right of way in 1927 was a Mrs. Dibbs. There is evidence that in 1933 a Mrs. Brooke was the owner and that in 1950 Miss Fairlie was the owner. The respondent became the 1950 Miss Fairlie was the owner. The respondent became the owner at some time after, and probably shortly after, it was incorporated on 31st July 1959. There is no evidence that any other company was the owner before that time. In that state of the evidence it may be taken that for a large part of the period during which the right of way has existed, the registered proprietors of the dominant land have been individual persons. Any problem that may arise, as was suggested in argument, concerning the persons to whose acts or omissions regard must be had for the purposes of s. 89(1) (b) when a company is the owner are, it seems, of no relevance in considering the period from 1927 to 1959. As will appear later, I am of opinion that prior to 1959 the acts and omissions of the respondent's predecessors had been such that if the question had arisen then it would have been right to conclude that they might reasonably be considered to have wholly abandoned the easement. I am also of opinion that the evidence does not disclose anything that occurred after 1959 which showed that that conclusion would have been erroneous or precluded the appellant from asserting against the respondent that the easement had been abandoned by its predecessors in title. (at p289)

8. At the time of the grant of the right of way the physical state of the strip of land over which it was granted was such that for practical purposes it was not capable of being used. It has been said for the appellant that it was to be expected that the grantee of the right would take action to make it trafficable and that the failure to do so at that time and afterwards is itself evidence of an intention not to make any use of the right of way and, ultimately, of an intention to abandon it. On the other hand, it might be argued, I think, that at, least in respect of a period extending for some considerable time after the grant, the physical unavailability of the right of passage reduces or removes the effect which the non-user of the right of way during that period might otherwise have had as indicating an intention of abandonment. But I find no necessity to decide what significance should be attached to the failure by the respondent's predecessors to take active steps to get rid of the obstacles which existed at the time of the grant. The reason is that the repeated instances of acquiescence in the addition of fresh obstacles to those which already existed must outweigh greatly in importance the acceptance of the continued existence of the original barriers. (at p289)

9. The additions to the obstruction of the path began as early as 1928, when a stone retaining wall was erected. I need not set out the details of the subsequent creation of new obstacles by fencing and vegetation. But the erection in 1933 of a wire fence calls for particular mention. It is, in my opinion, an important fact in the case to which I think, with respect, the learned trial judge failed to give due weight. It appears likely that this fence was intended to be placed along the boundary between the two properties. In fact it was placed within the respondent's land a couple of feet from the boundary. Although for that reason it was not actually an obstruction athwart the right of way, it formed in a practical sense an obstruction of reasonable access to the right of way and whilst it remained it prevented normal use of the right of way. In this instance there was not merely an acquiescence in the erection of the obstacle. The respondent's predecessors contributed to the cost of erecting it. I do not regard the amount of expenditure involved in this, or in the creation of other obstacles, as being important. What is important in the present instance is the participation in the effective fencing off of the strip of land over which the right of way existed from the occupants of the respondent's land. It was submitted for the respondent that the minds of the parties were not then directed to any question as to the right of way and that they were concerned only with preventing the recurrence of the accident in which the husband of the owner of no. 36 Wolseley Road had fallen down from that property on to the appellant's land. But that risk could have been avoided without closing off access to the right of way, by putting a gate in the fence or by leaving a small gap in it. (at p290)

10. It is suggested that this incident and, also, other acts of acquiescence in the creation of obstructions were consistent with an intention on the part of the owner of no. 36 to refrain temporarily from any use of the right of way but to take up its use at some future time, if and when this should become necessary by reason of the loss of other convenient means then available of getting to the waterfront. That is a suggestion which deserves consideration, but I do not find it convincing. It is one thing to say that if another convenient way is available that may explain the non-user of a right of way and prevent the drawing of an inference from that non-user that the right will be given up permanently: see Ward v. Ward (1852) 7 Ex 838 (155 ER 1189) . It is a different thing to say, in the absence of any evidence produced by the respondent to explain an acquiescence in the adding of obstructions rendering any future use of the right of way more and more difficult, that it is reasonable to suppose that the intention was to give up the use of the right of way for a temporary period only, which might be long or which might be quite short. (at p290)

11. In August or September 1967 wire was replaced in the fence that had been put up in 1933. The appellant paid for this and the respondent refunded half the cost of replacement. The amount involved was quite small. But it is a significant fact, in the light of the argument that the respondent itself was not a party to any act or omission relevant to the question of abandonment, that this payment was made some eight years after the respondent had acquired title and some time after the survey had been obtained by Dr. Aroney which, it was submitted, disclosed for the first time to the present occupants of no. 36 Wolseley Road the location of the strip over which the right of way existed. Instead of raising an objection that the fence should not have been placed there at all, or stating that the respondent intended to remove it or to alter it so as to prevent it from obstructing the entry to the right of way, the respondent contributed to the cost of its repair. Another year was to go by after that before the solicitors for the respondent wrote a letter referring to the right of way and then the complaint made was that the right of way was obstructed by the construction of the swimming pool, that being an event which had taken place much earlier and before the respondent acquired title. (at p291)

12. In my opinion, it was not necessary for the appellant to establish that the abandonment of the easement had become complete at a particular date which could be specified as the definite date of its extinguishment. Section 89(1) of the Conveyancing Act is in a form which provides for an order extinguishing an easement and not, as does s. 89(3), for a declaration as to the existence or the enforceability of an easement. It may be said, therefore, that in form s. 89(1) contemplates that the easement continues to bind the land until an order is made. But the terms of par. (b) are such that the making of such an order is dependent upon a conclusion by the Court concerning acts or omissions which have already occurred in the past. The paragraph indicates, in my opinion, that the Court will be able to decide that, at some point of time before the application was made, there have been acts or omissions from which the inference should be drawn that the easement has already been abandoned. This does not mean, in my opinion, that it is essential to be able to fix upon a particular date at which it can be found that that has taken place. But even if this were necessary, the appellant had in my opinion strong grounds for contending that after the swimming pool was erected in 1957 (if not at an earlier time), the respondent's predecessors in title should have been found to have completed their abandonment of the benefit of the easement. The swimming pool constituted an obstruction to the use of the right of way at its lower end. Effective access to it at the upper end had long since been blocked by the fence which has already been discussed. At various places other new obstructions to its use had been created. Then in 1957 the blocking of the strip near the waterfront, to which the right of way was intended to give access, could be regarded as a final step in a process of cumulative obstruction, in which at all times the respondent's predecessors acquiesced. Subject to certain arguments advanced for the respondent to which I shall refer later, I am of opinion that by this time it would have been unreal to treat that acquiescence as being directed only to a temporary state of affairs that would continue only so long as other means of access to the waterfront remained available. It seems clear that the installation of the swimming pool could not reasonably be considered as a mere temporary obstruction which need cause no concern to the owner of the dominant land, nor could the view be taken that an owner would expect that it would be removed at any time when need might occur to use the right of way. It is true that the lease which the appellant had of the greater part of the land on which the pool was constructed was a lease which at that time had a term of only about three years. But she had held the boat shed lease for some fifteen years and there is nothing to show that the owner of no. 36 Wolseley Road had reason to suppose that the lease would not be extended or that the pool would remain in position for a short time only. There is no evidence that in fact the owner did so suppose. (at p292)

13. The learned judge considered that he should not infer an intention to abandon the easement from the fact that there was no objection to the construction of the swimming pool. His Honour said that he had regard to a lack of awareness of the extent, if any, to which the swimming pool protruded onto the site of the right of way, to the extent to which it does so protrude, and to the nature of the tenure of the land on which the greater part of the pool is constructed. But with due respect to his Honour, it seems to me that this part of his judgment exhibits, as do other parts of it, an approach which considers separately each particular circumstance in order to form a judgment whether or not from that circumstance the requisite intention should be inferred. I have referred earlier to what I regard as the error of an approach which does not take sufficient account of the cumulative effect of a long and consistent course of conduct. The question of the lack of awareness of the relationship between the obstructing pool and the site of the right of way is a question which needs to be considered in relation to other obstructions, as well as the swimming pool, and I shall refer to it later. As to the extent to which the pool does protrude onto the site of the right of way it is true that it blocks only a part of it. But as to that part the obstruction is complete, and it prevents the use of the right of way for its intended purpose. It is little to the point to say that persons entitled to use the right of way were not prevented by that obstruction from travelling most of the way to their objective, which was the beach, if they were prevented from ever reaching it. (at p292)

14. Whether or not I am right in my view that by the end of 1957 the owners of the dominant land had so acted that the intention wholly and finally to abandon the easement could properly have been then attributed to them, there were later events which could be regarded, I think, as confirmatory of that intention, or as further evidence from which that intention could ultimately be inferred. In fact, those later events extended into the period of the respondent's ownership. A chain wire fence was erected in 1959 and its height was increased in 1967 and in that year, as already mentioned, repairs were effected to the fence erected in 1933. (at p293)

15. For the reasons that I have indicated in my opinion a strong case for the making of an order was established by the appellant. In so far as it may be of assistance to refer to a decision in another case as to the proper inferences to be drawn from non-user over a long period, coupled with acquiescence in acts which were adverse to the user of the right of way, I am of opinion that there were stronger grounds in the present case for reaching the conclusion for which the appellant contended than the grounds which were regarded as sufficient by Warrington L.J. and Sargant L.J. in Swan v. Sinclair (1924) 1 Ch 254, at p 269 and, at pp 273-275 and by Viscount Cave L.C. in the same case on appeal: see Swan v. Sinclair (1925) AC 227, at p 237 and, also, per Viscount Findlay (1925) AC, at p 240 . (at p293)

16. But there are some other aspects of the facts to which it is necessary now to refer. I think that it is right to treat the case on the footing that for relevant purposes there was no user of the right of way by the respondent or its predecessors in title. It is true that there is evidence that the occupants of no. 36 Wolseley Road made some use of a concrete path which had been constructed after a block of flats was erected in 1928 on the appellant's land. It was erected four feet or four feet six inches from the boundary of the appellant's land adjacent to the site of the right of way and about twenty-three feet from the boundary between the appellant's land and no. 36 Wolseley Road. Some persons who used the concrete path between the block of flats and the nearby boundary continued on over the land of the appellant in order to reach the waterfront but this was on a course which diverged from the site of the right of way. According to the learned primary judge a path which leads from some steps at the upper end of the concrete path to a strip which gives access from the appellant's property to Wolseley Road "runs for some feet along the site of the right of way, but for the rest runs within no. 34 Wolseley Road". In my opinion such use as was made of this path (which does not seem to have been an extensive use) ought not to be regarded as having been an exercise of the right of passage with which this appeal is concerned. The path where it followed the course of the right of way was wider than the strip over which that right extended, so that it was a matter of chance whether a person walking along that part of the path was walking within or outside the site of the right of way. The path followed that site for only a relatively short distance and it did not of course provide any means of access to the waterfront by means of the right of way. If a person walked along the path beside the flats and then continued to walk over the appellant's land away from the site of the right of way it is difficult to think that he could have meant to go as of right for a short distance along the path and then to continue his journey as a trespasser. As I understand the reasons for judgment of the learned trial judge his Honour did not attach importance to this fortuitous and limited use of a part of the strip over which the right of way was granted and in my opinion it does not cut down the claim of the appellant that there was no user of the right of way and no assertion of a claim to that right. (at p294)

17. It was argued that in the light of the fact that the occupants of no. 36 Wolseley Road were able to reach the waterfront by a track traversing no. 38 Wolseley Road or, alternatively, by going across the appellant's own land, no finding should be made that a failure to object to the obstruction of the right of way was indicative of an intention to abandon it. This is a question to which I have already made some reference. I think that undoubtedly the availability of another method of reaching the waterfront is a relevant factor to be considered in evaluating the consequences of non-user and of acquiescence in the obstructions to the right of way. The weight of this factor must vary according to the circumstances of the case. I do not accept the view that it cannot be taken into account at all when the other method of passage is not available as of right but constitutes a trespass on another's land. But plainly I think it must be regarded as being less convincing as an explanation of the conduct of the respondent or its predecessors in title in this case than it would have been if the alternative way was one of which they had a secure enjoyment. As an explanation of mere non-user of a right of way which is ready for use and to which resort can be had without difficulty at any time when its use may become necessary, the availability of another convenient means of passage would have much force. But in my opinion it should not be found that the availability of a way which may be at any time lost is a reasonable explanation of a continued course of conduct by which the difficulties of making use of the right of way are progressively increased over a long period of time. (at p294)

18. The respondent sought to rely upon a claim that there was a lack of knowledge on the part of both the respondent and its predecessors in title concerning the location of the site of the right of way and it was contended that this had an important bearing upon the conclusions that should be drawn from their conduct. This argument requires consideration in two stages. In relation to the period before the respondent became owner, there does not appear to be any evidence that anyone was mistaken as to where the site of the right of way was. It may no doubt be inferred that the children who traversed no. 38 Wolseley Road in the early days did not know and did not care whether or not a right of way existed or where it was located if it did exist. But in the absence of evidence there is in my opinion no ground for finding that what occurred in that period was attributable either to an actual mistaken belief or to a lack of any knowledge or belief as to where the right of way was. It was bounded by a boundary of the appellant's land the greater part of which was fenced. Although the fence was in disrepair and in places obscured by vegetation, it seems unlikely that an owner of no. 36 Wolseley Road would have believed that the right of way ran outside that fence and within no. 38 Wolseley Road. At all events it was not shown that such a belief was then entertained. Although the onus of proving her case rests on the appellant I do not think that she bears an onus to disprove something that is put forward by the respondent as an explanation of facts which tend prima facie to establish the appellant's case. (at p295)

19. In relation to the period after the respondent became owner the evidence stands in a different position. But if I am right in the view that by this time the previous owners had already demonstrated the intention to abandon the easement, then any mistake or doubt in this later period about the location of the right of way has little significance. In any event it does not appear to me that the respondent can place much reliance upon any such mistake or doubt. The affidavit of Mr. Goldstein, the Chairman of Directors of the respondent and a co-owner of one of the units in its building, states that it was when the building was commenced in 1967 at no. 38 Wolseley Road that he found that he was unable to gain access to the beach because the appellant had a swimming pool across the actual right of way and that prior to this the deponent "did not realise" that the swimming pool blocked the right of way. It is not there affirmed that he believed that in going down to the beach across land which was in fact part of no. 38 Wolseley Road, he was making use of the right of way. Dr. Aroney stated, however, that he used what he thought was the right of way and that he assumed that it lay on the north side of the northern boundary of the appellant's property. The survey which he caused to be made revealed the true path of the right of way and the numerous obstructions across it. There are some other pieces of evidence, of a somewhat unsatisfactory kind, as to a mistaken belief on the part of some other occupants of no. 36 as to the location of the right of way. In my view the most that can be said of this evidence is that it affords some explanation of the failure on the part of some of the persons interested in the respondent company and in its building to make or to cause to be made an objection to the obstruction by the swimming pool of the right of way. It has no effect in diminishing the consequences that ought to be attributed to all the events that had occurred up to 1959. Nor does it alter the fact that at the time when the respondent acquired the land and for some years afterwards no attempt was made, so far as the evidence shows, by anyone on behalf of the respondent to ascertain the position of the right of way or any of the facts as to the condition of the land over which it had been granted or as to its availability for use. (at p296)

20. I have dealt with the facts at considerable length because I find myself unable to accept the view that the decision of the learned trial judge should stand. I am conscious of the difficulty with which an appellant is faced when challenging the view taken by the Court of first instance upon what is ultimately a question of fact. I have therefore thought it right to state in some detail the reasons that have led me to a conclusion that it should have been found that the requirements of s. 89 had been made out and that an order should have been made. The principles upon which an appellate court should act in deciding whether or not to interfere with the conclusion of the primary judge have been discussed in several recent cases in this Court. I shall not go over that ground again. But it is appropriate I think to refer to the concluding portion of what was said by the Chief Justice on this matter in Whiteley Muir and Zwanenberg Ltd. v. Kerr (1966) 39 ALJR 505, at p 506 . His Honour there indicated that it is open to an appellant to establish that the Court ought to interfere "by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong". If those criteria are applied in the present appeal, then on the view I take of the matter I think it is clear that the Court is justified in disturbing the finding of the Court of first instance. I have indicated earlier in these reasons that in my view his Honour gave insufficient weight to some of the material facts. But even if he did not do so, I regard this case as one in which the inference in the opposite sense to that chosen by his Honour is "so preponderant" that I should hold that his conclusion should be set aside. (at p297)

21. In my opinion a convenient way of dealing with the matter to give effect to my view of it is to make an order as asked in par. 3 of the summons. (at p297)

22. In my opinion the appeal should be allowed. (at p297)

MASON J. This is an appeal from a decretal order made by a judge of the Supreme Court of New South Wales sitting in Equity dismissing an application by the appellant under s. 89 of the Conveyancing Act, 1919 (N.S.W.), as amended. The appellant is the registered proprietor for an estate in fee simple under the Real Property Act of no. 34 Wolseley Road, Point Piper, near Sydney, on which is erected a block of flats. The land is a battleaxe allotment which has a water frontage to Seven Shillings Beach, Double Bay and a narrow frontage to Wolseley Road. The respondent is the registered proprietor for an estate in fee simple of no. 36 Wolseley Road, Point Piper. The respondent's land has a frontage to Wolseley Road but it does not have a water frontage. The respondent claims to be the registered proprietor of a right of way over a strip of land three feet wide which runs from the western corner of its land along the north-western boundary of the appellant's land to the boundary of that land along high water mark on Seven Shillings Beach. (at p297)

2. The appellant's land and the respondent's land were originally in the one ownership. It seems that the land was subdivided into its existing titles in or about the year 1927. By an instrument of transfer dated 29th August 1927 from Amy Martha Cecelia Pitt, a predecessor in title of the appellant, to Phyllis Enid Rosalind Dibbs, a predecessor in title of the respondent, a right of way was granted in the following terms:

"FULL RIGHT AND LIBERTY for the said Transferree her executors administrators and assigns or other the registered proprietors or proprietors for the time being of the land hereby transferred and her and their servants and tenants and all other persons authorised by her or them from time to time and at all times hereafter at her or their will and pleasure to pass and repass over and along a strip of land Three feet wide along and within the N.Wn boundary of Lot B from the North eastern corner of Lot B to Double Bay as shown by the said plan and thereon edged Green." (at p298)

3. The appellant became the registered proprietor by transfer of one undivided moiety as tenant in common of no. 34 Wolseley Road in January 1928 and on 24th April 1929 she became and has since remained the registered proprietor of the entire fee simple in the land. (at p298)

4. The respondent was incorporated in July 1959 and shortly thereafter became the registered proprietor of no. 36 Wolseley Road. There is erected on that property a block of flats containing four home units but the evidence does not reveal precisely when it was that the building was erected. (at p298)

5. The right of way is noted on the appellant's certificate of title and as well on the respondent's certificate of title. (at p298)

6. The appellant sought an order that her land was not affected by any easement over and along the strip of land three feet wide on its north-western boundary. In the alternative she sought an order that the easement was not enforceable by any person and, again alternatively, that the easement should be wholly extinguished. The grounds taken in support of the application were that the respondent and its predecessors in title had abandoned the easement by failing to use it, that they had failed to make the land the subject of the easement trafficable and that they had stood by while obstructions were created on the land and had co-operated in the erection of a fence which made it impossible for persons entitled to the benefit of the right of way to gain access to and traverse it. The appellant submits that the learned judge erred when he declined to hold that the grounds taken in support of the application were not made out. (at p298)

7. It is necessary in the first instance to refer to the lie of the land and to the impediments which obstruct or hinder free passage along the site of the right of way. The land is and has been precipitous at all times. The learned judge held, and his finding has not been challenged in this appeal, that it would be impossible to pass along it except by means of steps or the like. Many of the obstructions have been placed there since creation of the right of way, but it is apparent from the evidence that before artificial improvements were made the natural topography of the land precluded free passage along it. At a distance of twelve feet above high water mark there is a vertical rock face four feet in height. At a distance of twenty-eight and a half feet above high water mark there is another vertical rock face seven feet in height. At a distance of 111 feet there is now a stone retaining wall which was erected in 1928 which is not less than four feet in height and which seems to mask a precipitous slope which had earlier existed at this point. (at p299)

8. In addition, there are artificial obstructions which have come into existence in the intervening years. There is a swimming pool which was erected by the appellant in 1956 and lies right across the right of way at high water mark and for a distance of four feet above it. At a short distance again above that there is an iron fence which was erected in 1958 and which runs across the site of the right of way. There is a chain wire fence some twenty-six feet above high water mark which runs across the right of way. There is an impenetrable bamboo plantation blocking the right of way at a distance of thirty to forty-five feet above high water mark which has been in existence since 1928. There is thick vegetation between the stone retaining wall to which I have earlier referred and the boundary of the respondent's land where there is erected at the very commencement of the right of way a wire fence which was initially placed in position in 1933 and renewed in 1967. The appellant's and the respondent's predecessors contributed to the cost of erection and renewal. (at p299)

9. The evidence discloses that there has been no user of the entire right of way by the respondent, its predecessors in title or the occupants of the flats erected on its land. There is evidence that there was some use of a path which existed in the vicinity of the north-western boundary of the appellant's land. The block of flats which was erected on no. 34 Wolseley Road in 1928 is approximately four feet from the north-western boundary of the land and approximately twenty-three feet from the boundary of the respondent's land. Between the block of flats erected on the appellant's land and its north-western boundary there is a pathway with steps at either end. Between the bottom of the lower steps and the waterfront the path follows a route within the appellant's land and does not run along the site of the right of way. The path which leads from the top steps runs for some feet along the site of the right of way but otherwise runs within no. 34 Wolseley Road away from the site of the easement. The respondent and its predecessors in title have done nothing to make any part of the site of the right of way suitable for pedestrian use. Some parts of the site have been made suitable for the purpose of pedestrian use by the appellant, but in the light of what I have said it is apparent that there are a number of constructions which prevent the use of the whole of the site as a means of passage from the respondent's land to the waterfront, although on isolated occasions occupants of no. 36 Wolseley Road have used the path alongside the appellant's flats in the course of proceeding to the waterfront. (at p300)

10. There is evidence that occupants of the respondent's land and children coming from it used a track which led from that property to the waterfront and traversed no. 38 Wolseley Road. It seems that on some occasions they used the path which had been constructed by the appellant alongside her block of flats and proceeded through the lower part of her property to the waterfront or reached it by proceeding through the lower part of no. 38. The only part of the right of way which they used was the path which had been constructed by the appellant adjacent to her block of flats. Between 1931 and 1937 children and in the 1960s various occupants of the respondent's property used the track leading over no. 38 to the waterfront. In 1967 when the owner of no. 38 built a house on that property he also erected a fence along the boundary between his land and no. 34, thereby denying use of the path in his property to occupants of the respondent's land. (at p300)

11. In February 1967 Doctor Aroney, an occupant of no. 36 Wolseley Road, obtained a survey of the right of way and, according to the evidence, the present occupants of no. 36 discovered for the first time the site of the right of way along the appellant's north-western boundary. (at p300)

12. The learned judge declined to infer from the non-user of the right of way by the respondent and its predecessors in title that it or any of them intended to abandon the right of way over the appellant's land or that there had been any such abandonment. In expressing his reasons for that conclusion his Honour stated that mere evidence of non-user is not of itself sufficient to justify an inference of intention to abandon and that the reason why the right of way had not been used was that it could not be used without the making of expensive improvements and that more convenient means of access to the waterfront from no. 36 was to be found through no. 38 or through no. 34 otherwise than by means of the right of way, except in so far as use was made of the path constructed by the appellant alongside her flats. (at p300)

13. The learned judge then considered the artificial obstructions which had been placed upon the site of the right of way. He held that the respondent's acquiescence in the placing or maintenance of these obstructions was not enough to justify the inference of abandonment. Except as to the swimming pool, the obstructions involved insignificant expense. As to the pool his Honour said that it was constructed for the most part, as indeed it was, on land leased from the Maritime Services Board and that it occupied a small part only of the right of way. (at p301)

14. It is necessary to refer in the first instance to s. 89 of the Conveyancing Act and the manner in which the appellant seeks to take advantage of it. Section 89 (8) contains an express statement that the section applies to land under the Real Property Act. The application of the section to Real Property Act land gives rise to some difficulty. At common law an easement may be lost by abandonment, but does this doctrine apply to land which is under the Real Property Act and, if it does, what is the consequence when the easement remains on the register and a purchaser acquires the dominant tenement relying on the state of the register? In so far as the appellant seeks an order under s. 89 (3) that the land is not affected by the easement or that the easement is not enforceable by any person, the appellant's case proceeds on the footing that although there was at one time an enforceable easement it came to an end at some undefined point of time as a consequence of abandonment, notwithstanding that it is noted on the certificates of title of the dominant and servient tenements. The jurisdiction to make an order under sub-s. (3) is discretionary as it is declaratory in character. (at p301)

15. The case for an order under sub-s. (1) (b) proceeds differently. Here the appellant seeks to show "that the persons of full age and capacity for the time being or from time to time entitled to the easement ... by their acts or omissions may reasonably be considered to have abandoned the easement wholly" and that the Court should therefore make an order extinguishing the easement. It is acknowledged that under sub-s. (1), considered alone, the easement is valid unless and until it is extinguished by the making of an order. However, the appellant submits that once she succeeds in establishing the existence of the condition or circumstances mentioned in sub-s. (1) (b) the Court is bound to make an order in her favour and has no discretion to do otherwise. This is the view which was taken of the sub-section in Re Rose Bay Bowling and Recreation Club Ltd. (1935) 52 WN (NSW) 77 . It is a view which would preclude the Court from having regard to the interests of a respondent who had acquired the dominant tenement by purchase, relying on the existence of an easement as shown by the register under the Real Property Act. Moreover, it is a view which differs from that taken by the Court of Appeal of the similar provisions contained in s. 84 (1) of the Law of Property Act 1925 (Eng.). There it has been held that even if any of the conditions mentioned in s. 84 (1) are made out the Lands Tribunal has a discretion to refuse to make an order - see Driscoll v. Church Commissioners for England (1957) 1 QB 330 ; in Re Ghey and Galton's Application (1957) 2 QB 650, at pp 659-660 , per Lord Evershed M.R. (at p302)

16. It is, I think, unnecessary to resolve these questions in this appeal because in the circumstances of this case it is for the appellant to show on any view that the learned judge was incorrect in refusing to draw the inference that the respondent or its predecessors in title intended to abandon the easement. If the appellant fails to show that this Honour was incorrect in this respect, she has no ground for relief under sub-s. (1) or sub-s. (3) . Conversely, if she is held to be successful on this issue and it is held that the respondent or its predecessors intended to abandon the easement then she is entitled to an order, either under sub-s. (1) or sub-s. (3). The fundamental question for this Court is therefore whether his Honour was incorrect in declining to draw an inference of abandonment. (at p302)

17. In argument there has been much discussion of the authorities. For my part I do not consider that they provide decisive assistance in resolving the present case. They are decisions upon their own facts and the question here is essentially one of fact. They contain statements of general application, which nevertheless require an evaluation of the particular facts. It has been said, for instance, that mere non-user of a right of way the subject of a grant, even for a long period of time, does not necessarily indicate an intention to abandon (Ward v. Ward (1852) 7 Ex 838 (155 ER 1189) ). Non-user may be referable to the absence of a need to use the right of way and the use of an alternative and more attractive means of access; then it may be thought that the non-user indicates, not so much an intention to abandon the right of way, as a preference for the alternative means of access so long as it remains available. This, so it seems to me, but for the evidence of acquiescence or standing by, is the conclusion which should be reached here where the persons having the benefit of the easement had no right to use the alternative means of access which was therefore liable to be terminated at any time. A further circumstance which affords some slight support for this conclusion is that there has been a limited use of that part of the right of way on which is the path which the appellant constructed adjacent to her block of flats along her north-western boundary. (at p303)

18. However, the failure of the persons having the benefit of the easement to take any action concerning, and their participation in, the construction of obstructions placed along the site of the right of way raise a different and more difficult problem. Acquiescence in, and failure to object to, the placing by the owner of the servient tenement of obstructions on the site of a right of way which are inconsistent with the exercise of rights by persons having the benefit of the right of way may lead to an inference that they intended to abandon it. The question here is whether that inference should be drawn. It is of some importance that the right of way over no. 34 Wolseley Road could not be effectively used until it was made suitable for pedestrian use by appropriate expenditure. To my mind the inference that should be drawn is that the persons having the benefit of the easement preferred to resort to the alternative means of access to the waterfront so long as it remained available and that, during that time, they had no objection to the use by the appellant of the site of the easement for her own purposes. (at p303)

19. The participation by the respondent's predecessor in the erection and renewal of the fence near the common boundary is again consistent with an intention not to use the right of way until occasion for that use should arise as a result of the loss of the means of access through no. 38. The fence seems, according to the evidence, initially to have been constructed as a safety precaution, there being a slope down which the husband of the respondent's predecessor in title had fallen in 1933. The construction of the swimming pool athwart the end of the right of way stands in a somewhat different position in that it involved greater expenditure on the part of the appellant. However, it occupies only a small section of the right of way and for the most part it is the subject of land leased from the Maritime Services Board. The respondent did object to the swimming pool once it ascertained the precise location of the easement. (at p303)

20. Although the evidence leaves me with the general impression that the respondent and its predecessors did little or nothing over a long period to exercise the rights conferred by the easement I am in agreement with Hope J. that, when the evidence is considered in its entirety, an inference of abandonment should not be drawn. In my view the non-user and other acts and omissions of the respondent and its predecessors were equally consistent with the existence of an intention not to use the right of way whilst an alternative means of access remained available. (at p304)

21. In my opinion the appeal should be dismissed. (at p304)

Orders

Appeal dismissed with costs.