Trewin v Felton

In the Supreme Court of Queensland, Trewin v Felton was heard, involving a dispute over the use of an easement for a carriageway, which runs along the boundary between two properties. The plaintiff, Trewin, alleged that the defendant, Felton, obstructed the easement and trespassed by parking vehicles on it. The court was tasked with determining the extent of the easement, the rights of the servient owner to gate and fence it, and whether the easement could be modified or extinguished.

The legal issues before the court included the interpretation of the easement as created by a section 88B instrument, the permissible extent of access points from the easement to the dominant land, and the rights of the servient owner to gate and fence the easement. The court also had to consider whether the easement was obsolete, impeded reasonable use of the servient land without securing practical benefit to the dominant land, or had been abandoned. Additionally, the court examined whether the easement could be modified without substantial injury to the dominant owner and if the defendant had trespassed by excessively using the easement and parking vehicles on it.

The court found that the easement was not obsolete, as it still served a practical benefit to the dominant land. The servient owner had the right to gate and fence the easement, but the gate and fence could not be placed in a manner that obstructed the reasonable use of the easement. The court held that the dominant owner was not entitled to park or remain on the easement, and the defendant had trespassed by excessively using the easement and parking vehicles on it. Consequently, the court issued a mandatory injunction to remove the obstructions and an injunction restraining the plaintiff from authorising use of the easement without ensuring users do not park on it.

The court ordered that the defendant remove the gateposts, gate, and fence that obstructed the easement. Additionally, the court restrained the plaintiff from authorising use of the easement without ensuring users do not park on it, and from parking vehicles on the easement. The court's decision provided clarity on the extent of rights and obligations of both parties regarding the easement.