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 Cavacourt  Pty Limited v Durian (Holdings) Pty Ltd Matter No 2905/98 [1998] NSWSC 787 (18 December 1998)Last Updated: 17 February 1999

  CAVACOURT   PTY LIMITED v DURIAN (HOLDINGS) PTY LTD

2905/98

18 December 1998

Young J

The Supreme Court of New South Wales Equity Division

JUDGMENT

HIS HONOUR: The present proceedings concern a right of way over the defendant's land at 1-3 Ricketty Street, Mascot. The plaintiff is the proprietor of the adjoining land at 5-9 Ricketty Street.

Both properties appear to have been created by the landfill projects associated with the deviation of the Cooks River many years ago. Both parcels are consolidations of smaller lots, but the majority of the land seems at one stage to have been resumed by the Minister for Public Works doubtless in connection with the above dEviation. The defendant's land adjoins the Alexandra Canal (Shea's Creek) and the plaintiff's land adjoins the defendant's land immediately to the east.

The right of way the subject of these proceedings was created by Grant made by the Minister for Public Works to Ansett Transport Industries Limited (Ansett) on 25 September 1964. The Grant is registered No 959 Book 2781. The servient tenement is a strip at the eastern side of the defendant's land. The dominant tenement is the land comprised in two certificates of title and some old system land.

The Grant was in the following terms:-

" The Grantor DOTH HEREBY GRANT AND CONVEY unto

the Company as appurtenant to the land described in the Second Schedule hereto (hereinafter called "the dominant tenement") full

and free right and liberty (but subject to the limitations

and provisions hereinafter contained) for the Company and

all persons authorised by the Company in common

nevertheless with the Grantor his successors and assigns

and all persons bodies or corporations who heretofore have

been or hereafter may be authorised by the Grantor his

successors or assigns or who have or shall hereafter

have a like right whether by grant or licence heretofore

or hereafter and by whomsoever made at all times after the

said Grant by the Grantor to the Company of these rights by

day or by night with or without horses carts carriages motors

and other vehicles of any description to enter upon go return

pass and repass along over and upon the servient tenement for

the purposes of gaining or having reasonable access to and

from the dominant tenement from and to the public highways

adjoining the servient tenement."

In 1973, Ansett lodged a primary application to bring the old system land benefited by the right of way and other old system land in the vicinity under the Real Property Act 1900. This application was granted. By DP 702945 registered 17 September 1984, Ansett consolidated its land. The plaintiff is now the registered proprietor of the consolidated title. Exhibit PX04 is a plan of the part of the consolidated land that has the benefit of the right of way. It is roughly 65% of the site: the easternmost part is not benefited nor is some part with a frontage to Ricketty Street. I will call the land benefited by the right of way the "Benefited Land" and the balance, the "Additional Land".

The plaintiff's land was used for many years by Ansett and connected entities as a freight terminal. It is now vacant and has been so for some years, though the position of former

buildings is still clearly marked on the surface of the land. The plaintiff obtained title to its land by transfer registered 16 February 1998. It wishes to develop its land and has lodged plans to do so with Botany Council. The success of having those plans approved and the land being profitably developed in accordance with those plans depends on the ability to make use of the right of way.

The defendant takes the position that the right of way has been abandoned and has not been used for over 17 years. The defendant acquired the servient tenement in early 1981. It uses its land for industrial and commercial purposes. In accordance with development approval granted to it in 1988, it applied bitumen to the surface and installed parking for its employees and visitors and has installed a drainage system and other minor improvements to the land immediately adjoining the plaintiff's land. Both the current certificates of title to the relevant parts of the plaintiff's land and those covering the relevant parts of the defendant's land show the right of way as either an encumbrance or an appurtenant right.

The plaintiff, by its summons filed 23 June 1998, seeks a declaration that the right of way subsists and also an injunction to prevent the defendant from obstructing its use. The defendant, by its cross claim, seeks an order that the easement be extinguished and a consequential injunction to prevent the plaintiff or its licensees going onto its land.

I heard the proceedings last Tuesday the 15th and Wednesday the 16th including having a view of the site. Many witnesses were called on both sides. Mr S Donaldson for the plaintiff and Messrs R McDougall QC and A Lo Surdo for the defendant, then submitted most helpful and detailed written submissions and spoke to them. I have attributed the defendant's submissions to Mr McDougall QC for the sake of brevity, though I have no doubt that Mr Lo Surdo's input was considerable. In view of the detail in those submissions, it was necessary to defer giving my decision until today.

The logical way to approach this decision is first to deal with a problem that arises under s 88 of the Conveyancing Act 1919 (the Act), then deal with the matters that arise under s 89 of the Act and then consider other problems with the law of easements before reaching a conclusion. I will thus consider the matter under the following heads:-

1. Is the right of way enforceable in view of the provisions of s 88 of the Conveyancing Act?

2. Is the right of way obsolete within the meaning of s 89(1)(a) of the Act?

3. Should the right of way be extinguished because it impedes the reasonable user of the servient land without being of practical benefit within s 88(1)(a) of the Act?

4. Has the right of way been abandoned or may it reasonably be considered to be abandoned under s 89(1)(b) of the Act?

5. Would the extinguishment of the right of way "substantially injure" the plaintiff within the meaning of s 89(1)(c) of the Act?

6. Is the plaintiff intending to use the right of way excessively?

7. What is the result of this litigation?

1. Section 88(1) of the Conveyancing Act 1919 provides that an easement is unenforceable against persons not party to its creation unless the instrument creating it clearly indicates the matters set out in paragraphs (a)-(d) of the sub-section. That this sub-section might have a part to play in this litigation was not raised until closing addresses following my remark that there might be an argument that the whole easement was unenforceable because of this section. Mr McDougall QC then put that as there had been no compliance with the section the easement was unenforceable.

No argument was put to the effect that the description of either the dominant or servient tenements was not sufficiently specified. There was some argument addressed to s 88(1)(c), but, since the 1995 amendment, this paragraph has not applied to easements. No argument was put as to whether that amendment was powerless to save easements that were up until that time unenforceable.

The argument thus turns around paragraph (d), that is, that the Grant does not specify who must consent to any modification of the easement.

Mr McDougall QC simply says that one just looks at the Grant and one can see instantly that there is no specification as required by paragraph (d). Mr Donaldson submits that where there is no such person, none need be specified and relies on the decision of Waddell, J in Vaneris v Kemeny (1977) 1 BPR 9655 which certainly says just that.

Mr McDougall QC says that this is a case where the plaintiff has asked for relief to be given that the easement is subsisting. It is thus incumbent on it to show by evidence that there are no such persons, it cannot be presumed.

It seems to me that the decision in Vaneris has been commonly interpreted as meaning that s 88(1)(d) at least generally has no application to easements, see Woodman & Nettle on The Torrens System in NSW (Butt & Ticehurst ed) [C88.220]. I believe that I should follow this decision as it is now over 20 years old, even though as the losing counsel in Vaneris, I am tempted to be more technical!

Accordingly, in my considered view, section 88 does not affect the result of this case.

2. Is the right of way obsolete within the meaning of s 89(1)(a) of the Act?

Before dealing with this question and questions 3-6, I should set out

s 89(1) of the Conveyancing Act, 1919:-

"89 (1) Where land is subject to an easement or to a restriction or an obligation 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 wholly or partially extinguish the easement, restriction or obligation upon being satisfied -

(a) that by reason of change in the user of any land having

the benefit of the easement, restriction or obligation,

or in the character of the neighbourhood or other

circumstances of the case which the Court may deem

material, the easement, restriction or obligation

ought to be deemed obsolete, or that the continued

existence thereof would impede the reasonable user

of the land subject to the easement, restriction or

obligation without securing practical benefit to the

persons entitled to the easement, or to the benefit

of the restriction or obligation, or would, unless

modified, so impede such user; or

(b) that the persons of the age of eighteen years or

upwards and of full 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, have agreed to the easement, restriction

or obligation being modified or wholly or partially

extinguished, or 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;

(b1) ...

(c) that the proposed modification or extinguishment will

not substantially injure the persons entitled to the

easement, or to the benefit of the restriction or

obligation."

It can be seen that paragraph (a) contains two limbs. I will deal with the first limb that the easement ought to be deemed "obsolete" under this head and the second limb under head 3.

The word "obsolete" as used in this section or corresponding sections in the legislation of other places has been defined sufficiently often not to require me to do more than refer to the principal cases.

In Re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261, 272, C Romer LJ said in respect of a restrictive covenant, that "obsolete" was used in the section in the sense that the original purpose of the covenant can no longer be served. This approach has been adopted in subsequent cases; see eg Re Miscamble's Application [1966] VR 596, 601 and Re Robinson [1972] VR 278, 281.

In C Hunton Ltd v Swire [1969] NZLR 232, 234, Wilson J said that "obsolete" means "no longer relevant to the circumstances presently obtaining".

In Re Mason (1960) 78 WN (NSW) 925, 927; [1962] NSWR 762, 764, Jacobs J said in this court, "I consider that the word `obsolete' can be taken to mean that the object of the covenant is now incapable of fulfillment or perhaps that it serves no present useful purpose."

As Jacobs, J said in Re Mason immediately after the passage I have quoted, that means that one must look to see the object of the easement. However, when doing this, one takes into account not only the use contemplated at the time of grant, but also permitted uses which were not necessarily so contemplated; see Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44, 47, where Eichelbaum J considered that this proposition was correct in principle, but did not have to decide it. However, it follows from what Jacobs J said in Re Mason that the easement or covenant is not to be narrowly construed which, in turn, flows from the principle that the grant is construed most strongly against the grantor: Williams v James (1867) LR 2 CP 577, 581. Again, one must always remember that easements are granted for the long term and modern authorities tend "towards a more liberal construction of grants which, by their nature as a species are immutable in content but create rights of indefinite duration and are destined to enure in a changing environment": Grinskis v Lahood [1971] NZLR 502, 509.

Because of the introductory words to s 89(1)(a), it is necessary to inquire as to whether there have been changes in the character of the neighbourhood which have brought about the situation that it is no longer possible to achieve the purpose of the easement or restrictive covenant: Re Miscamble (supra) at 601. The court also has regard to "other circumstances of the case which the Court may deem material". Under this head, the court is entitled to take into account a wide range of considerations: Re Roseblade [1964-5] NSWR 2044, 2046 and Re Robinson (supra), but not the personal circumstances of the applicant: Cresswell v Proctor [1968] 2 All ER 682, 684.

In determining whether there has been a change in the neighbourhood, the court normally tries to identify what the neighbourhood is in any given case and then analyses the evidence to see if there has been change between the date of the grant and the date of the application. There was no such evidence in this case. Instead, Mr McDougall QC focused on the land 1-9 Ricketty Street and its access to highways at the time the negotiations for the Grant were commenced. I do not consider that this material goes to establishing a change in the neighbourhood at the relevant time.

However, it is also necessary to consider "other circumstances". I do not consider that despite the width of this term, it covers the situation I have just mentioned.

It is next put by the defendant that those circumstances include the fact that on 17 September 1984, the dominant tenement was consolidated into Lot 1 in DP 702945, thereby significantly increasing the size of the parcel of land which, if the plaintiff succeeds, will effectively have the benefit and use of the easement compared to the position as at the time the easement was created.

It is clear from the documents that the only lands which were to have the benefit of the easement were the Benefited Lands that is the lands comprised in certificates of title volume 6061 folio 48 and volume 6081 folio 84, and conveyance No 230 Book 2455, being the parcels identified as numbers 1, 5, and parts of 6 and 7 in the sketch DX1102. The submission is that with the consolidation in 1984 of the Benefited Lands with the Additional Land, the original lots in respect of which the easement was created no longer exist in the same form. Increased use will accordingly be made of the servient tenement to such a degree as to amount radically to a complete change in user. The easement was not intended to service a property such as the plaintiff's land. Accordingly, its original purpose can no longer be served and it must be extinguished.

The bulk of traffic that is now likely to use the right of way as opposed to that of 1964 will be vastly different. According to a transport consultant, Mr Dobinson, the proposed development of the plaintiff's land is likely to generate 140 vehicle trips daily.

I believe that these lastmentioned matters could amount to changed circumstances. It is thus necessary to turn to the question of fact as to whether the object of the grant is incapable of fulfillment.

The object of the grant is actually set out in the document. It is "for the purposes of gaining or having reasonable access to and from the dominant tenement from and to the public highways

adjoining the servient tenement". The court must consider the object of the easement at the time of its creation: Re Stani - Full Court of the Supreme Court of Victoria, 7 December 1976, unreported, at page 8 and the Hunton case (supra) at page 235. In determining what is the contemplated use, the court has regard to the terms of the grant of the easement and relevant surrounding circumstances: Hunton at p 235. It is nowhere suggested that the relevant date is the date when negotiations for the easement commenced. As with all other deeds, they are construed as at the date they are delivered.

Mr McDougall QC again goes back to the time when the negotiations for the Grant commenced, namely August 1959. The forensic reason he wishes to do this is that it was only in 1960 that Ansett acquired lands fronting Gardeners Road which at this point runs parallel to Ricketty Street. Thus in 1959, access to the plaintiff's land was markedly inferior to the situation in 1964. With respect, I cannot see how this is helpful. The exercise the court has to perform is to see the purpose of the Grant when it was made. If there had been some serious change of circumstances between the time negotiations for the Grant commenced and the time when the Grant was made, one can normally expect that such would have influenced the form of the Grant.

Mr McDougall QC puts the argument that by the time of the Grant the circumstances necessitating its creation had changed. That argument falls for the same reason that I have previously given.

Then the submission is put that the easement is obsolete in that it has not, since the date of its creation, been used for the purpose it was created. It has not been used for that purpose because circumstances changed when Ansett acquired access and egress to and from Gardeners Road. That circumstance has remained unchanged to the present day. This again confuses the "object of the Grant" and the circumstances which led to the negotiations for the Grant being commenced.

The words of the Grant refer to reasonable access not just to Ricketty Street, but to "public highways adjoining". This may have had a particular meaning in 1964 because it appears that there were proposals at that time to dedicate some part of the lands then held by the Minister of Public Works as public roads. This did not occur. However, the wider expression "public highways adjoining" shows that the object of the Grant was not just to gain access to Ricketty Street.

In fact, it may well be correct to say, as Mr McDougall QC submits, that by August 1971 all vehicles owned by Ansett and those of its regular sub-contractors used the Gardeners Road entrance, because access was not possible for large vehicles through Ansett's Ricketty Street entrance. Indeed, the evidence indicates that after the Grant, the easement was only used with any regularity by vehicles wishing to park in the car park at the corner of Ricketty Street.

In November 1971, both access to and egress from the Ansett properties had been confined to Gardeners Road. At that time, an application had been made by Ansett to Botany Council to alter the traffic arrangements with access from Gardeners Road and egress to Ricketty Street. This application was rejected by the Commissioner of Police and the Department of Motor Transport in January 1972. The defendant submits that thereafter, the easement was used not for its

intended purpose, that is, as a means of effecting reasonable access from the dominant tenement to Ricketty Street.

In my view these submissions should be rejected. The object of the easement was access. Whilst one looks at the situation at the time of the Grant, one does not do so narrowly. It is, with respect, artificial to construe the object of the Grant narrowly both with respect to circumstances in 1959 or with respect to the type of vehicles that were or were not using the access in 1964-1972 or thereafter. That the object of access is still capable of performance and is of value is shown by the fact that the plaintiff thought that such access was a selling point when it acquired the land and the value it has for more flexible use of the land.

One point that did occur to me, but was not argued, was whether the plaintiff was entitled to access along any part of the common boundary or at certain points only. However, as it was not argued, I will merely flag it in case it is necessary at a later stage of this litigation or in subsequent litigation to determine the point.

3. Does the continued use of the easement unreasonably impede the use of the defendant's land without securing practical benefit to the plaintiff?

An easement will impede the reasonable user of servient land without securing any practical benefit where it can be shown that the restriction "...hinders, to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and to the purpose" of the easement. This quotation is from the judgment of Lord Evershed MR in Re Ghey and Galton's Application [1957] 2 QB 650, 663, a case dealing with restrictive covenants, but the words can equally be applied when one is considering easements. See also Re Henderson's Conveyance [1940] Ch 835, 846 per Farwell J; Heaton v Loblay (1960) SR (NSW) 332, 335 per Myers J; Re Stani supra, at 8 and Re Alexandra [1980] VR 55, 58-59 per Menhennitt J.

The first submission here is much the same as that advanced under the first limb of paragraph (a), that is that as the circumstances necessitating the creation of the easement ceased to exist prior to the easement's creation and as the dominant tenement, which is now part of the plaintiff's land has unfettered access to Ricketty Street and Gardeners Road, the easement no longer secures any practical benefit to the person entitled to it. This must be rejected for reasons closely allied to the reasons I gave when dealing with the first limb of paragraph (a).

Then it is put that the existence of the easement will also impede the continued use of the servient tenement by the defendant as approved by Botany Council on 20 September 1988 and in respect of which the defendant has relied.

The evidence is that the servient tenement has been used exclusively by the defendant since 1981 as a parking lot. Further, on 11 August 1988, the defendant lodged a development application with Botany Council for the redevelopment of the defendant's land, including the servient tenement. That development application was approved on 20 September 1988. The defendant was at no time informed of any objection being lodged with the Council to the development application, nor was any objection made directly to the defendant. The defendant says that in

reliance upon that development approval, it carried out certain works, including works on the servient tenement, such as constructing dwarf retaining walls, car park kerbing, and landscaping.

There is no doubt that the present use of the defendant's land is impeded by the existence of the right of way. However, it must always be remembered that an applicant for relief under s 89 of the Conveyancing Act must show not merely that a reasonable user of the land would be impeded but that any reasonable user of the land would be impeded: Heaton v Loblay (supra) at 335; Stannard v Issa [1987] AC 175.

However there are two requirements for applicants who seek to pass through this gateway. First there must be an impediment to any reasonable user, but secondly that impediment must not secure practical benefits to the owners of the dominant tenement.

It is difficult to see on the evidence how it can be suggested that the right of way does not secure practical benefits to the owner of the dominant tenement. The ability to utilise additional access space through the servient tenement is, as Mr Donaldson submits, self evidently a "`practical benefit"'. The evidence of Messrs Dobinson and Rowlands makes it clear that this is so.

Thus, in my view, the case does not fall within paragraph (a).

4. I then pass to consider whether the easement has been abandoned either under the general law or under s 89(1)(b) of the Conveyancing Act 1919.

Abandonment is a strange conception in the common law, but to the canon lawyers it was commonplace. It is found, for instance in the principle of desuetude whereby a law is null and void by non-use in circumstances where the law maker's non-enforcement of it for a long period shows that the law maker impliedly repealed it.

Both counsel recognized that an easement may be lost by abandonment. They also recognized that mere non-user of an easement will not, of itself, constitute abandonment, see Gale on Easements 16th Ed at page 448. In order to constitute abandonment, the conduct of the owner of the dominant tenement must demonstrate a fixed intention that neither it nor any successor in title will make use of the easement: Treweeke v 36 Wolseley Road Pty Limited [1973] HCA 27; (1973) 128 CLR 274; Proprietors of Strata Plan No 9968 v Proprietors of Strata Plan No 11173 [1979] 2 NSWLR 605; Guth v Robinson (1972) 1 BPR 9209. The relevant intention must be ascertained as a matter of fact taking into account all the relevant circumstances: James v Stevenson [1893] AC 162. "Owner" in this connection includes the dominant owner's predecessors in title.

Mere non-user of an easement, even for a considerable period, does not of itself constitute abandonment: Re Marriott [1968] VR 260, although it will be an important factor when taken into account with other evidence, including use of the servient tenement, which is inconsistent with the continuation of the easement.

Mr McDougall QC submits that there is strong evidence of abandonment in the instant case. First the easement has not been used since the defendant acquired the servient tenement in early 1981.

Secondly, it has been incapable of being used over most, if not all of that time for a number of reasons. Mr McDougall QC developed these reasons at some length; I will only note the principal reasons.

First, there has existed, at least since the defendant acquired the servient tenement, a brick wall of approximately half a metre in height and 15 metres in length along the boundary between the dominant and servient tenements and a wire fence along that same boundary commencing from the end of the brick fence and extending the full length of the boundary until it meets with the property known as 697 Gardeners Road, Mascot, obstructing access to the servient tenement. The brick wall was probably constructed well prior to 1981. However, it would appear to have at least one opening in it before 1981.

Secondly, the wire dividing fence was replaced in the mid 1980s by the defendant with the permission of a manager employed by the occupier of the plaintiff's land. The defendant's witnesses recalled that the original fence contained double-gates that were at all times since the defendant purchased the servient tenement secured by a padlock and chain. Those gates were not able to be opened as the bottom rail of the gates was embedded into the ground and covered with soil and debris. When the fence was replaced, double gates were not installed. The defendant received no comment or complaint following the installation of the replacement fence.

The plaintiff's witnesses, being retired Ansett employees or employees of TNT Seafast (a company in the Ansett group which was the tenant of the plaintiff's land between about 1987 and 1991) do not agree. They remember that there was a disused driveway crossing between the two parcels and that the odd vehicle used the crossing. Although Mr McDougall QC criticized this evidence, I believe I should accept it. I consider that the contrary evidence by the defendant's people is coloured by what might be called a reverse application of the presumption of continuance. They remember well what was there after 1987, and have projected that recollection back too far.

Thirdly, the elevation of the dominant tenement has, at least since 1981, been approximately 70 centimetres higher than the servient tenement.

Fourthly, up until the plaintiff acquired its land, there was a row of established trees and shrubs which had grown on the defendant's side of the boundary and had been undisturbed for about 20 years.

Fifthly, the servient tenement has been used exclusively by the defendant since 1981 as a parking lot without protest.

Sixthly, the traffic authorities' restrictions on access to Ricketty Street has meant that it was difficult to use the right of way lawfully.

In addition, there was evidence given by employees and former employees as to their memory of the use of the right of way and the parcels of land in the 1970s. As would be expected, their accounts did not tally, and, again as one would expect, their memories were by now so fixed that they could not be shaken. I am sure that each of these gentlemen intended to tell the truth, the

whole truth and nothing but the truth, but they cannot all be correct. There is little purpose in evaluating this evidence, but, for the reasons already given, I tend to favour the evidence of the plaintiff's witnesses. Access via the right of way continued, on any view of the evidence, until 1981. What happened after then is fairly clear, so what happened before that is of little moment.

However, the evidence on post 1981 non-user is not as strong as the defendant would have it. DX1103 is an aerial photograph from 1982 which appears to me to show access points from the right of way to the dominant tenement in both the car park and the depot areas. The photograph also does not show vegetation along the rear section of the boundary between the dominant and servient tenements.

Further, the lease to Sydney Electricity dated 1 March 1995, Exhibit PX28, evidences an appreciation on the part of the defendant of the continuing existence of the easement. Again, the traffic impact report obtained by the defendant in June 1994 casts doubt as to whether the suggestion that the right of way was not in use is correct.

Both sides rely on the fact that the other acted with its eyes open. Mr Donaldson points out that the defendant purchased a property whose title was clearly encumbered by the right of way. Any landscaping or other works were done with this knowledge. Mr McDougall QC argues that the survey report prepared by Whelans Australia Pty Ltd dated 8 September 1997 for the immediate previous owner of the dominant tenement and annexed to the property report prepared by Jones Lang Wootton in September 1997, DX1157 at 1171 states that "The site of the Right of Way does not appear in use by the subject land and is used in part by the adjoining land as a parking area and accessway." The plaintiff purchased the property in that knowledge. Both matters are to be taken into consideration.

As Mr Donaldson points out, the defendant places substantial weight in the non-user by the tenant TNT Seafast. Generally speaking, non-action on the part of a tenant does not go to the intention of the owner of the land to abandon an easement unless there is evidence to show acquiescence by the owner: see Davis v Morgan [1825] EngR 507; (1825) 4 B & C 8; 107 ER 962; Butt (1979) 53 ALJ 661, 663-4 and Bradbrook & Neave, Easements and Restrictive Covenants in Australia (Butterworths, Sydney, 1981) para [1914]. It is probably correct to say that one might find acquiescence more readily where the tenant is a subsidiary company to the owner, but that is as far as the relationship of the parties is relevant.

There is no evidence as to the acquiescence of Ansett in the non-user of its tenant.

Furthermore, the land appears to have been unoccupied since TNT left in 1991. Non-occupation or demolition of buildings is again not necessarily a reason for inferring abandonment, even in the case of Ancient Lights, see Tapling v Jones [1865] EngR 333; (1865) 11 HLC 290; 11 ER 1344; Staight v Burn (1869) LR 5 Ch App 163.

The defendant strongly relies on the evidence that the traffic authorities did not permit the access to Ricketty Street that was provided by the Deed of Grant. However, in my view this factor works against the defendant. Just as physical barriers to use which in fact have led to non-use are not conclusive (see Treweeke's case and PSP 9968 v PSP 11173 both supra) so too a non-

permanent legal barrier tends to be more a reason for non-use than evidence of an intention never to use the easement.

The defendant also uses the evidence of the plaintiff's proposals to develop its site in a new way with the easement being utilized for emergency vehicle purposes and to make the site more flexible in its use as showing an intention to abandon the original object of the easement which was for reasonable access to the highway. I am not impressed with this argument. However, as discussed under head 6, the easement is only for a limited purpose and any excess user could be restrained.

Abandonment is not to be lightly inferred The authorities show that there are at least two very good reasons for this rule. First, once abandoned, the easement is gone forever: Tapling v Jones (supra) at HLC 319; ER 1356. Secondly, an easement is a right of property, an incorporeal hereditament and under the Torrens system a registered and indefeasible interest in land. One must not deprive a registered proprietor of its land without due cause; cf Pieper v Edwards [1982] 1 NSWLR 336.

The question is one of fact. Weighing all the facts and arguments noted above, I do not consider that there is sufficient to establish abandonment.

5. I now pass to the claim under s 89 (1)(c) of the Conveyancing Act.

Under this paragraph, the court may make an order for extinguishment if it will not "substantially injure the persons entitled to the easement". The words "substantially injure" do not require that the injury be "large or substantial", but that the injury not be merely "theoretical" and have "present substance". The legislation is designed to allow extinguishment or modification only of easements of no practical utility, which should be removed or modified to "clear the title": Re Mason; Guth v Robinson, both supra and Webster v Bradac (1993) 5 BPR 12,032.

Mr Donaldson submits that the defendant cannot succeed under this paragraph as the evidence of Messrs Dobinson, Rowlands and Jones establishes beyond argument that the plaintiff will suffer substantial injury by extinguishment of the easement.

Mr McDougall QC submits that it is not necessary for the purpose of section 89(1)(c) to show that the existence of the restriction impedes the reasonable user of the land. All that need be established is that the extinguishment will allow use of the burdened land which will not substantially injure the persons entitled to the benefit of the restriction (see "Vendor and Purchaser - Restrictive Covenants - Proceedings to Modify" in (1959) 32 ALJ 382).

The test to be applied "...is similar to that to be applied in determining under para (a) namely, whether the continued existence of the restriction would secure practical benefit to other persons"; Re Stani, supra at 10; Re Ghey and Galton's Application, supra, at 659-60 and Re Robinson, supra, at 284.

In Heaton v Loblay, supra at p 335, Myers J drew a clear distinction between what had to be shown under paragraph (a) and what had to be shown under paragraph (c). His Honour said,

"Under par. (a) the inquiry concerns the effect of the restriction or its effect if not extinguished or modified. Under par (c) the enquiry concerns the effect of the desired modification" (or, in the present case, the extinguishment).

The cases show that the injury to the dominant owner is not just to be measured in terms of loss of value of the land. Even legitimate fears that, while the subject of the current application will of itself cause no injury, it could be the "thin edge of the wedge", may be sufficient to prevent an application succeeding: Re Snaith & Dolding's Application (1995) 71 P & CR 104.

The defendant puts that the easement was created for the purpose of providing "reasonable access" to the dominant tenement. It was not created to preserve the value of the dominant tenement. Accordingly, in so far as it may be submitted that if the easement is extinguished the plaintiff may be deprived of a valuable asset, value is not a relevant factor. This is a clever argument, but it ignores the fact that the right of additional access, however limited, is of obvious benefit to any landholder.

I am not satisfied that the extinguishment of the easement will not substantially injure the plaintiff.

It must be remembered that the court has a discretion, even if a gateway has been safely passed, to decline to make an order under s 89. I mention this as both sets of counsel have raised it. However, as I find that the gateways have not been breached, there is no purpose in developing this subject.

6. Is the plaintiff seeking to use the right of way excessively?

This question is really premature. Until planning permission is given and buildings erected, no-one really knows what user will be involved.

Mr McDougall QC submits that the grant must be construed from the words of the grant itself, regard being had "...to the state of affairs at the time of the grant." (Rodwell v GR Evans & Co Pty Ltd ( 1977) 3 BPR 9114; see also Cannon v Villars (1878) 8 Ch D 415, 420; Paterson & Barr Ltd v University of Otago [1925] NZLR 191, 194; Flavell v Lange [1937] NZLR 444, 447). That state of affairs shows that the easement was granted for the purpose only of reasonable access to and from the dominant tenement. However, according to Mr Roncolato, the chief witness for the plaintiff, the easement is to be used for the purpose of providing perimeter vehicular access to the proposed development thus enabling the development to be considered to be a "large isolated building" pursuant to clause C2.3 of the Building Code of Australia thereby enabling the erection of a Type C construction. A consequence will be the easement potentially accommodating up to 140 vehicle trips daily.

A further point is that it is a basic principle of the law of easements that an easement accommodates the dominant tenement only. Thus, a right of way cannot be used for the service of tenements other than the dominant tenement. It cannot, for example, be used as a means of access to tenements which lie beyond the dominant tenement, unless at the time of the grant the dominant tenement forms a means of access to tenements beyond the dominant tenement:

Williams v James (1867) LR 2 CP 577, 580; Harris v Flower (1904) 74 LJ Ch 127; Paterson & Barr Ltd v University of Otago [1925] NZLR 191; Re Ellenborough Park [1956] Ch 131 and Nickerson v Barraclough [1980] Ch 325.

All this correctly states the law. However, it cannot be applied until the facts are known. If the plaintiff does use the right of way excessively, an injunction may then be granted against it.

Because of this, I will merely note Mr Donaldson's submissions on this point. He says that there is no basis in the evidence for suggesting that the use of the right of way by future occupants of the proposed units 1, 2 and 3 (as shown on the plan, Exhibit PX65) would constitute excessive use. These units basically occupy the area benefited by the easement. The easement was granted for the purpose of providing access to a freight terminal and there is nothing in the proposal which suggests that use of the right of way will be "beyond anything which was contemplated at the time of the grant" (Jelbert v Davis [1968] 1 WLR 589).

7. What order should I make?

As the cross claim has failed, it should be dismissed with costs. Similarly it is clear that the plaintiff is entitled to some relief. However, as Mr Donaldson recognized at the hearing and as discussed under head 6, the relief to which the plaintiff is entitled is not as broad as set out in the summons.

I agree with Mr Donaldson's submission that as the easement has not been abandoned, the conduct of the defendant in refusing to permit reopening of the fence to facilitate access to the dominant tenement is a clear and substantial interference with the plaintiff's rights under the terms of the right of way. In the face of such interference, the plaintiff is entitled to an injunction to prevent recurrence of the violation (Gale on Easements 16th Edition at page 502). Again it needs to be noted that the threatened and actual interference with the plaintiff's rights complained of was not limited to refusing excessive or unauthorised use of the right of way. Access was denied completely and that denial provides a sufficient and proper basis for the grant of injunction.

I consider that the plaintiff is entitled to some declaratory and injunctive relief. However in view of the time of year, and in view of the fact the plaintiff is not currently using the land, I believe it is best to allow some time for these reasons to be studied and for the plaintiff to bring in short minutes of order in the new Term. I will list the matter for that purpose before me at 9:50 am on Wednesday 10 February 1999, but, if counsel contact my Associate at least the week before, some other day in that week may be substituted.

Might I conclude by thanking counsel for the thoughtful way they each presented their evidence and submissions.

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