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High Court of Australia |
GALLAGHER v RAINBOW AND OTHERS [1994] HCA 24; (1994) 179 CLR 624
(1994) 121 ALR 129, (1994) 68 ALJR 512
F.C. 94/023
Number of pages - 20
Easements
HIGH COURT OF AUSTRALIA
BRENNAN(1), DAWSON(1), TOOHEY(1), GAUDRON(2) AND McHUGH(3) JJ
CATCHWORDS
Easements - Right of way -Subdivision of dominant tenement - Whether subdivided parts entitled to benefit of easement.
HEARING
1993, BRISBANE, June 30; 1994, CANBERRA, June 1ORDER
Appeal dismissed with costs.DECISION
BRENNAN, DAWSON AND TOOHEY JJ This appeal concerns a scheme
The easements
2. In 1985 the Brisbane City Council approved a subdivision of about
6 hectares of land in St Johns Wood, Brisbane into 23 lots. Lots 13
to 18 cluster around Buckingham Street. Lots 13 and 18 have a
frontage to Buckingham Street. Lots 14 to 17 do not; they depend for
access to Buckingham Street on a private road running between Lots 13
and 18. The private road is constructed on four slivers of land,
each being approximately 1.5 metres in width and being part of one of
Lots 14 to 17. Each of the registered proprietors of Lots 14 to 17
therefore owned one quarter of the private road; each had an
easement of way over the other three quarters.
3. The scheme appears in the plan accompanying this judgment. From
the plan it can be seen that Lots 17, 16, 15 and 14 are respectively
the servient tenements of the slivers marked "D", "E", "F" and "G".
The scheme came into effect on 5 November 1987 in accordance with
grants made as follows:
Easement No. Dominant tenement Servient tenement
J347385R 17 E, F, G
J347386V 14, 15, 16 D
J347388B 16 F, G
J347390M 14, 15 E
J347393V 14 F
J347394X 15 G
4. All easements were registered under the provisions of the
Real Property Act 1861-1988 (Q.) ("the Act"). In each case the terms
of the grant of easement were identical. It is sufficient to set out
the following covenants:
"1. The grantor and the grantee covenant and it is aThe respective grantors and grantees were named on the first page
condition of this easement that for the duration of
the easement the grantor will maintain and repair the
servient tenement in a proper state of repair fair wear
and tear excluded.
2. The grantor and the grantee covenant and it is
a condition of this easement that the costs of
maintenance and repair of the servient tenement shall
be borne by the registered proprietors for the time
being of Lots 14, 15, 16 and 17 on Registered Plan 209227
Parish of Enoggera, County of Stanley as to one quarter
each respectively.
3. The grantor and the grantee covenant and it is a
condition of this easement that if the condition of
the servient tenement deteriorates to such an extent
as to necessitate or require replacement thereof the
registered proprietors for the time being of Lots 14,
15, 16 and 17 on Registered Plan No. 209227, Parish of
Enoggera, County of Stanley, shall bear the costs of
replacement as to one quarter each respectively.
4. If there is any dispute relating to the need to carry
out work under this grant of easement; the nature
of the work; its reasonable cost or the parties'
contribution to the costs, that dispute shall be
determined on the application of either the grantor
or the grantee by a single person appointed by the
President for the time being of the Institution of
Engineers Australia Queensland Division. The person
appointed shall be a member of the Institution of
Engineers Australia Queensland Division having at least
five years standing and he shall act as an expert and
not as an arbitrator. Each party shall pay its own
costs of the determination and the person appointed
shall nominate which party or parties shall bear his
costs. The determination of the person appointed shall
be conclusive and binding on the parties."
(emphasis added)
"And it is hereby further agreed and declared that the
expression 'the grantor' shall where context so admits or
requires include Clive Sydney Appleby and Merril Lucienie
Appleby and Maree Elizabeth Rainbow and the transferees
and assigns of the grantor and the registered proprietor
or proprietors owner or owners (and their respective
successors executors administrators and assigns as the case
may be) and the occupier or occupiers for the time being
of the servient tenement and the expression 'the grantee'
shall where the context so admits or requires include the
transferees and assigns of the grantee and the registered
proprietor or proprietors owner or owners (and their
respective successors executors administrators and assigns
as the case may be) and the occupier or occupiers for the
time being of the dominant tenement." (emphasis added)
5. Again in each case, the purpose of the easement was identified in
these terms:
"A right of way for the grantee and the registered
proprietors and occupiers for the time being of the
dominant tenement and all persons authorised by them
together with all others having the same rights as the
grantee but in common with the grantor and every other
person who is for the time being the registered proprietor
of the servient tenement at all times day or night and for
all purposes ordinarily incidental to or connected with
domestic use and enjoyment of the dominant tenement or
any part thereof with or without animals carriages wagons
motor vehicles and all vehicles of any other description
whatsoever, laden or unladen to pass and repass over along
or across the servient tenement."
6. It is clear, as the trial judge held, that the easements were
intended to be reciprocal. His Honour also found that at the time
the easements were granted no further subdivision of the land
was contemplated by the owners of the lots. The basis on which
special leave to appeal to this Court was granted precludes any review
of the rejection by the trial judge and the Court of Appeal of the
appellant's argument that one of the registered proprietors of Lot 17
held that land on trust not to subdivide it. It was the proposed
subdivision of Lots 16 and 17 by the respondents that gave rise to
this litigation. The grant of special leave confines the appeal to
"the question of construction of the easements". At the same time,
the question of construction cannot be divorced from general
principles governing the creation and operation of easements or from
the background against which the easements were granted.
The dispute
7. What Lee J, the trial judge, described as "this bitter dispute
between neighbours" began with the purchase by the appellant,
Lorraine Cheryl Gallagher, of Lot 14 in the subdivision from
Clive Sydney Appleby, Merril Lucienie Appleby and one of the
first respondents, Maree Elizabeth Rainbow. The appellant bought
under contract dated 27 February 1988 and by March 1991 she had
completed the building of a substantial home on the land.
8. The first respondents, Allan Roy Rainbow and
Maree Elizabeth Rainbow, are the registered proprietors of Lot 17.
The second respondents, Owen Peter Coaldrake and Lee Ann Coaldrake,
are the registered proprietors of Lot 16. The respondents decided to
further subdivide Lots 16 and 17 into three parcels each. Assuming
the purchasers of the subdivided lots are entitled to the benefit
of the easements, the result is that the registered proprietors of
eight parcels of land are entitled to the benefit of the easements.
Four of those parcels, being newly subdivided from the original
Lots 16 and 17, are separated from the slivers of land on which the
road is constructed.
9. The respondents sought and obtained from the Brisbane City
Council approval to subdivide Lots 16 and 17 into six lots. The
appellant, who claimed that the value and her enjoyment of Lot 14
would be adversely affected by the presence of four additional homes
on Lots 16 and 17, objected to the proposal. Her concern extended to
the additional use to which the private road would be put by reason of
the added owners.
The litigation
10. The appellant brought an action against the respondents, claiming
that the grants of easement precluded further subdivision of the lots
concerned or, at the least, use of the private road by anyone other
than the registered proprietors of Lots 14 to 17 in the form in which
those lots stood at the time of grant. She claimed as well that
Mrs Rainbow was bound by statements made by her co-owner and partner
in Lot 14, Mr Appleby, those statements resulting in a trust not to
further subdivide the lot. But, as mentioned earlier, the trust
argument was rejected below and is not before this Court.
11. In her action against the respondents the appellant sought
declaratory and injunctive relief. Lee J granted a declaration that
the respondents were entitled to the rights of way provided for by
easements D, E, F, and G "only in respect of the undivided properties
comprising lots 16 and 17 respectively". However, his Honour refused
to make declarations that the respondents were not entitled to
exercise their rights of way for the purposes of subdividing Lots 16
and 17 or that they were not entitled, in the event of subdivision,
to exercise rights of way by virtue of the easements "in respect of
each or any of such subdivided parts of Lots 16 and 17". His Honour
awarded $2 nominal damages "past and future" for some acts of
trespass. He refused the injunctive relief claimed relating to the
proposed subdivision except to maintain the status quo until the
resolution of an appeal by the appellant. This was on the footing
that the appellant would not suffer any substantial damage if the
subdivision proceeded and indeed might enjoy an advantage. The
appellant appealed to the Court of Appeal; her appeal was dismissed.
However, while agreeing with the trial judge that the appellant was
not entitled to an injunction or to other than nominal damages, the
Court of Appeal (McPherson and Pincus JJA. and Thomas J) held that
the benefit of the easements would attach to the dominant tenements in
their subdivided form.
12. By her notice of appeal to this Court the appellant sought
similar declaratory and injunctive relief as asked for in her
statement of claim. But circumstances had changed since Lee J had
delivered judgment and granted an interlocutory injunction. At that
time a plan of subdivision had been approved and lodged with the
Registrar of Titles. The Court of Appeal refused to grant any further
injunction and the plan of subdivision was thereafter registered and
new certificates of title issued. The appellant's property has now
been sold. In consequence, by the time the appeal to this Court was
argued the appellant sought only an inquiry as to damages in lieu of
the injunction which was no longer available to her. She accepted, as
her counsel said, that "the jurisdiction to grant equitable damages in
lieu of an injunction depends upon the plaintiff having had that right
at some stage during the proceedings".
The Real Property Act
13. The Act provides for the registration of easements "annexed to or
used and enjoyed together with other land under the provisions of this
Act" ((1) s.51(1); see also s.119A as to the registration of a plan
designating a proposed easement.). The Act does not dictate the scope
of an easement; it provides that, on registration, the estate or
interest intended to be granted passes to the registered proprietor of
the dominant tenement ((2) s.43.). When a plan of subdivision of a
dominant tenement is registered, the registered proprietor of each
subdivided lot must apply for and receive a certificate of title for
the particular lot ((3) s.119(4).). Section 67 of the Act implies a
covenant that the grantor do what is necessary to give effect to the
instrument of grant ((4) ss.43, 44.). Section 53 of the Property Law
Act 1974 (Q.) provides that, subject to any contrary intention
expressed and the provisions of the Real Property Act, covenants
relating to any land of a covenantee are deemed to have been made with
his or her successors in title.
Construction of the easements
14. In each case the easement granted in respect of Lots 14 to 17
is expressed to be "for all purposes ordinary (sic) incidental to or
connected with domestic use and enjoyment of the dominant tenement or
any part thereof". As Thomas J observed in the Court of Appeal:
"Subject to the constraints of domestic use in the purposeFurthermore, the terms of each easement are, as Thomas J noted,
covenant, there is no restriction upon the intensity of the
use, or the number of co-owners or the number of persons
who might come and go from each lot."
15. The terms of the respective easements contain no prohibition
against the transfer of a subdivided lot or the enjoyment of the
easement by the purchaser of a subdivided lot. The enjoyment of the
easement by the registered proprietor of a subdivided lot is wholly
consistent with the language of the grant. Whether the owners of
subdivided lots of a dominant tenement are entitled to the benefit of
an easement is a question of construction of the grant. Subject to a
qualification relating to excessive user, the general principle is
that stated by Jessel MR in Newcomen v. Coulson ((5) (1877) 5 Ch D
133 at 141.):
"It was said that as this was a grant to the owner and
owners for the time being of the lands, if the lands became
severed the owners of the severed portions could not
exercise the right of way. I am of opinion that the law is
quite clear the other way. Where the grant is in respect
of the lands and not in respect of the person, it is
severed when the lands are severed, that is, it goes with
every part of the severed lands. On principle, this is
clear."
16. Australian authority is in line with Newcomen v. Coulson. Thus
in Re Maiorana and the Conveyancing Act Hope J said ((6) (1970) 92 WN
(NSW) 365 at 374.):
"Where a vendor owns a parcel of land and conveys part of itOther Australian decisions supporting a presumption that an easement
to a purchaser, and in the relevant conveyance also grants
to the purchaser a right of way from some street or public
road to a place within the land conveyed or contiguous with
the land conveyed, there is a presumption that the dominant
tenement is the land conveyed and every part of it ...
prima facie the inference to be drawn is that the right of
way is appurtenant to every part of the land retained and
not merely to some part of it."
17. The presumption favouring accommodation of each part of a
dominant tenement when subdivided is also supported by the decision
of the Supreme Court of Rhode Island in Crawford Realty Company v.
Ostrow ((8) (1959) 150 A 2d 5 at 9; see also Rusciolelli v. Smith
(1961) 171 A 2d 802 at 806 to like effect.). The Supreme Court there
cited with approval a passage from American Law of Property ((9)
(1952), vol.2 at 285-286.) stating that if a dominant tenement is
subdivided, "the easements appurtenant to it become subdivided and
attach to each separate part of the subdivided dominant tenement unless
this result is prohibited by the terms of its conveyance" ((10) The
Court did suggest that in some circumstances a subdivision of the
dominant tenement may have the effect of extinguishing an easement by
rendering the easement of no value to the land in its subdivided form.
But that is not a situation with which we are concerned. Nor are we
concerned with a situation in which the easement does not accommodate
the subdivided portions for the benefit of which an easement is
claimed.).
18. Commenting on Crawford Realty Company v. Ostrow, Siedel
says ((11) Real Estate Law, (1979) at 92.):
"Easements appurtenant are considered apportionable for twoThis statement tends to explain rather than to offer a principle.
major reasons: first, because subdivision is so common
that it is assumed that the parties are considering it as
part of normal real estate development, and second, because
the benefits to the dominant tenement generally outweigh
the burden to the servient tenement."
19. However, the owners of subdivisions of the dominant tenement may
be restricted in their use of the servient tenement within the limits
stated by Gale ((13) Gale, A Treatise on the Law of Easements, 7th ed.
(1899) at 77. The discussion does not appear in the current edition:
15th ed. (1986).):
" If a severance of the dominant tenement takes place,But, he adds:
all its easements which are attached to the tenement and
not to the person of the owner will attach to the severed
portions."
"It is obvious, however, that by such severance no right is
acquired to impose an additional burthen on the servient
tenement. However numerous the occupants of the severed
tenement may be, they must still confine themselves within
the limits of the right existing at the time of severance."
20. Goddard ((14) Goddard, A Treatise on the Law of Easements, 8th ed.
(1921) at 392. See also Innes, A Digest of the Law of Easements,
8th ed. (1911) at 65, 86-87 edited by Goddard, to like effect.) puts
the matter this way:
"The result ... appears ... to be, that if a dominant
tenement is divided between two or more persons, a right of
way appurtenant thereto becomes appurtenant to each of the
severed portions, if such distribution of the easement is
not at variance with the actual or presumed grant under
which the right has been acquired". (emphasis added)
21. The effect of subdivision on the prescribed contribution to the
cost of maintaining the private road was considered by the Court of
Appeal not to rebut the presumption because the contribution required
from each of the original lots would remain the same. The absence
of any express provision relating to the liability of owners of
subdivisions to contribute to the cost of maintaining the road is
no reason for denying to those owners the benefit of the easements
appurtenant to the subdivided lot. The covenant in the easement that
each original lot will bear a quarter of the cost remains unaffected
by the subdivision. It was not necessary for the Court of Appeal (nor
is it necessary for this Court) to determine whether the owner of a
subdivided lot who discharges the liability of all owners of the
original subdivision is entitled to contribution from the owners of
the other subdivided lots of that subdivision.
22. It may be that the effect of the Act is that the covenant to
contribute to "the costs of maintenance and repair of the servient
tenement" is so intimately connected with the enjoyment of the
dominant tenement that it runs with the land so as to bind purchasers
of subdivided lots ((15) See, by way of analogy, Mercantile Credits
Ltd. v. Shell Co. of Australia Ltd. [1976] HCA 9; (1976) 136 CLR 326.). But the
issue was not pursued in argument and it is unnecessary to reach a
conclusion on this matter.
23. Another matter which did not have to be determined by the
Supreme Court was the extent to which use of the right of way by
purchasers of Lots 16 and 17 in subdivided form might be intensified
to such a degree as to be restrainable as exceeding the subject matter
of the grant. Because Lots 16 and 17 had not then been subdivided no
factual situation had arisen for determination; the question does not
arise before this Court. However, Thomas J considered an argument
on behalf of the appellant that the construction of houses on new
allotments by the first respondents, who are builders, for the
purposes of sale was not "domestic use" within the terms of the
covenants. His Honour said, and we respectfully agree, that the use
would still be for a purpose incidental to or connected with domestic
use.
24. Once it is accepted that the benefit of the easements would pass
to the registered proprietors of the lots into which Lots 16 and 17
were subdivided, there can be no question of an injunction to restrain
the subdivision or to preclude the consequent attachment to the new
allotments of the benefit of the easements. And if an injunction was
not available at any stage to the appellant, there can be no question
of equitable compensation or damages in lieu of an injunction. This
much was accepted by the appellant.
25. The appeal must be dismissed.
GAUDRON J The facts are set out in other judgments. All that
need be noted for present purposes is that the proprietors of four
residential allotments ("the original lots") granted reciprocal
rights of way and, thus, created their own private road. It is
in that context that a question arises as to the meaning of the
expression "the grantee and the registered proprietors and occupiers
for the time being of the dominant tenement". More particularly, the
question is whether that expression covers the registered proprietors
and occupiers of the several lots into which an original lot is or may
be subdivided, as the respondents contend, or whether it refers solely
to the proprietor(s) and occupier(s) of an unsubdivided original lot,
as the appellant claims. If the words are viewed in isolation, either
meaning is open.
2. Given that a right of way is a right attaching to land and not
merely a personal right, there is much to be said for the view that,
in the absence of definite indications to the contrary, a right of way
should be construed on the basis that, if the original dominant
tenement is subdivided, the right of way attaches to each and every
lot in that subdivision. However, in this case there are strong and
definite indications to the contrary.
3. As appears from the judgment of McHugh J, each grantor and
grantee covenanted for the maintenance and repair of the servient
tenement which he or she owned. A further covenant between grantor
and grantees provided that the maintenance and repair costs should
be borne equally by the registered proprietors of each of the four
original lots which were precisely identified as "lots 14, 15, 16 and
17 on Registered Plan No. 209227". If the words "the grantee and the
registered proprietors and occupiers for the time being of the
dominant tenement" are construed on the basis that they extend to the
registered proprietors and occupiers of the several lots into which
an original lot is or may be subdivided, the cost-sharing covenant is
rendered unworkable. The position is even more unsatisfactory if the
matter is approached on the basis which the respondents' argument
would seem to allow, namely, that each of the four original lots can
be subdivided and re-subdivided into as many new lots as size and
shape permit.
4. As McHugh J illustrates, the cost-sharing covenant simply cannot
work according to its terms if the right of way is construed in the
manner for which the respondents contend. That being so, that
construction should be rejected.
5. I would allow the appeal.
McHUGH J The question in this appeal is whether the owners of parts
of a subdivided dominant tenement are entitled to the benefit of an
easement granted for the enjoyment of that tenement. The appeal is
brought against an order of the Court of Appeal of the Supreme Court
of Queensland. The Court of Appeal reversed an order, made by Lee J
in the Supreme Court, which had declared that the owners of the
subdivided tenement were not entitled to the benefit of the easement.
In my opinion, the appeal against the order of the Court of Appeal
should be allowed.
The nature of the dispute
2. The appellant and the respondents were neighbours. They owned
land in a subdivision of 23 lots which had been conditionally
approved in 1985. The appellant purchased lot 14 by a contract dated
27 February 1988. The first respondents owned lot 17; the second
respondents owned lot 16. A private roadway gave lots 14, 15, 16 and
17 access to a public street. The roadway had been formed from strips
of land belonging to each of those four lots. Reciprocal easements
over each portion of the roadway were given and taken by the owners
of those lots. The easements were registered under the Real Property
Act 1861 (Q.). A plan of the four lots is annexed to the judgment of
Brennan, Dawson and Toohey JJ
3. By the terms of the grant of the easement, the owner of each lot
was responsible for one-quarter of the cost of maintenance and repair
of the roadway. Each grant was in identical terms. It contained the
following covenants:
"1. The grantor and the grantee covenant and it is a
condition of this easement that for the duration of
the easement the grantor will maintain and repair the
servient tenement in a proper state of repair fair wear
and tear excluded.
2. The grantor and the grantee covenant and it is
a condition of this easement that the costs of
maintenance and repair of the servient tenement shall
be borne by the registered proprietors for the time
being of lots 14, 15, 16 and 17 on Registered Plan 209227
Parish of Enoggera, County of Stanley as to one quarter
each respectively.
3. The grantor and the grantee covenant and it is a
condition of this easement that if the condition of
the servient tenement deteriorates to such an extent
as to necessitate or require replacement thereof the
registered proprietors for the time being of lots 14,
15, 16 and 17 on Registered Plan No.209227, Parish of
Enoggera, County of Stanley, shall bear the costs of
replacement as to one quarter each respectively.
...
6. And it is hereby further agreed and declared that the
expression 'the grantor' shall where the context so
admits or requires include (the named grantors) and
the transferees and assigns of the grantor and the
registered proprietor or proprietors owner or owners
(and their respective successors executors
administrators and assigns as the case may be) and
the occupier or occupiers for the time being of the
servient tenement and the expression 'the grantee'
shall where the context so admits or requires include
the transferees and assigns of the grantee and the
registered proprietor or proprietors owner or owners
(and their respective successors executors
administrators and assigns as the case may be) and
the occupier or occupiers for the time being of the
dominant tenement.
...
A right of way for the grantee and the registered
proprietors and occupiers for the time being of the dominant
tenement and all persons authorised by them together with
all others having the same rights as the grantee but in
common with the grantor and every other person who is for
the time being the registered proprietor of the servient
tenement at all times day or night and for all purposes
ordinary (sic) incidental to or connected with domestic use
and enjoyment of the dominant tenement or any part thereof
with or without animals carriages wagons motor vehicles and
all vehicles of any other description whatsoever, laden or
unladen to pass and repass over along or across the servient
tenement."
4. The present dispute arose out of a decision by the respondents to
subdivide their lots (16 and 17) into three lots each. That meant
that eight parcels of land would rely upon the private road for access
to the street. The appellant objected to the use of the roadway by
the lots resulting from the subdivision.
5. In the Supreme Court, the appellant argued that she was entitled
to damages for trespass and nuisance and for an injunction restraining
the respondents from using the easement for the purposes of carrying
out the subdivision of the land and from proceeding with the
subdivision itself. However, after the judgment of the Court of
Appeal was delivered, the plan of the subdivision was registered; new
certificates of title were issued; and new easements were created.
The appellant has now sold her property. As a result, in this Court,
the only order that she seeks against the respondents is an order for
an inquiry as to damages.
The Supreme Court of Queensland
6. Lee J held that the terms of the grant of the easement precluded
the occupiers of the subdivided land from enjoying the easement.
His Honour held that the expression "incidental to or connected with
the domestic use" in the grant was inconsistent with the subdivision
of the land for profit. However, he held that, because the appellant
had suffered no damage and might even enjoy an advantage if the
subdivision proceeded, she was only entitled to nominal damages of
$2.00.
The Court of Appeal
7. The Court of Appeal dismissed an appeal by the appellant ((16)
Gallagher v. Rainbow (1993) Q Conv R 54-443.). Thomas J (with whom
McPherson and Pincus JJA. agreed), rejected the contention that the
subdivision was inconsistent with the stipulation that the easement be
used for purposes "incidental or connected with domestic use". His
Honour held that it would not infringe the domestic use requirement of
the easement because the proposed subdivision was for residential
purposes. He also rejected the contention that it was intended that
there should be only four users of the easement. His Honour regarded
the inequality of liability for repair as immaterial because the
appellant was also entitled to subdivide her land. Accordingly, there
was no legal inequality.
The construction of a grant conferring an easement
8. At common law the meaning of an easement conferred by a deed
of grant is determined by reference to the language of the grant
construed in the light of the circumstances ((17) Waterpark v. Fennell
[1859] EngR 880; (1859) 7 HLC 650 at 684; [1859] EngR 880; (11 ER 259 at 272- 273); Newcomen v. Coulson
(1877) 5 Ch D 133 at 141; Cannon v. Villars (1878) 8 Ch D 415 at 420;
Callard v. Beeney (1930) 1 KB 353 at 360; Johnstone v. Holdway (1963) 1
QB 601 at 612; The Shannon Ltd. v. Venner Ltd. (1965) Ch 682 at 691;
Bracewell v. Appleby (1975) Ch 408 at 416-417; St. Edmundsbury and
Ipswich Diocesan Board of Finance v. Clark (No.2) (1975) 1 WLR 468 at
477; Proprietors Strata Plan No.9,968 v. Proprietors Strata Plan
No.11,173 (1979) 2 NSWLR 605 at 610-611.). In Waterpark v.
Fennell ((18) [1859] EngR 880; (1859) 7 HLC 650 at 684; [1859] EngR 880; (11 ER 259 at 272-273). This
passage was cited and applied by Wright J, as he then was, in Callard
(1930) 1 KB at 360 in relation to the creation of an easement
made by deed. In the same case, Talbot J said (at 358) that
evidence of the circumstances existing at the date of the deed
are admissible "to see whether there is anything in them which
makes it impossible or unreasonable to apply the words according
to their primary meaning". However, that is too restricted a
view of the use of the extrinsic circumstances surrounding the
execution of a deed. See St. Edmundsbury (1975) 1 WLR at 477.), Lord
Wensleydale said:
"The construction of a deed is always for the Court; but,An easement over Torrens system land is not created by deed. But a
in order to apply its provisions, evidence is in every case
admissible of all material facts existing at the time of the
execution of the deed, so as to place the Court in the
situation of the grantor."
9. In construing the grant of an easement - whether at common law or
under the Torrens system - "the court will consider(1) the locus in
quo over which the way is granted;(2) the nature of the terminus ad
quem; and(3) the purpose for which the way is to be used." ((21) Gale
on Easements (1986) 15th ed. at 292.) Thus, in Cannon v. Villars
((22) (1878) 8 Ch D at 421. See also Todrick v. Western National
Omnibus Co. (1934) Ch 190; Bulstrode v. Lambert (1953) 1 WLR 1064.),
Jessel MR said:
"Prima facie the grant of a right of way is the grant of a
right of a way having regard to the nature of the road over
which it is granted and the purpose for which it is intended
to be used; and both those circumstances may be legitimately
called in aid in determining whether it is a general right
of way, or a right of way restricted to ...".
10. In the absence of a contrary indication, the grant is construed
against the grantor ((23) Williams v. James (1867) LR 2 CP 577 at 581;
Wood v. Saunders (1875) LR 10 Ch App 582 at 584; Callard (1930) 1 KB at
358.). Nevertheless, the Court will not construe the grant in a way
that would enable an easement to be used in a manner that goes beyond
the use contemplated by the parties at the time of the grant ((24)
Todrick (1934) Ch at 206-207; Jelbert v. Davis (1968) 1 WLR 589 at
595.). The reason for this rule is that every easement is a
restriction on the property rights of the owner of the servient
tenement. Speaking generally, where there is an alteration in the use
of the dominant tenement, the grantee has no right to use the easement
for any new and additional purpose of the dominant tenement. This
proposition applies to grants by prescription ((25) In Williams (1867)
LR 2 CP at 580, Bovill CJ said: "In all cases of this kind which
depend upon user the right acquired must be measured by the extent of
the enjoyment which is proved. When a right of way to a piece of land
is proved, then that is, unless something appears to the contrary, a
right of way for all purposes according to the ordinary and reasonable
use to which that land might be applied at the time of the supposed
grant. Such a right cannot be increased so as to affect the servient
tenement by imposing upon it any additional burthen." See also
Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D
362; RPC Holdings Ltd. v. Rogers (1953) 1 ALL ER 1029;
British Railways Board v. Glass (1965) Ch 538.) as
well as to express grants.
11. Accordingly, no alteration can be made in the use or purpose of
the easement that goes beyond that contemplated by the parties at the
time of the grant ((26) The South Metropolitan Cemetery Company v. Eden
[1855] EngR 432; (1855) 16 CB 42 at 57 [1855] EngR 432; (139 ER 670 at 676); Harris v. Flower (1904) 74
LJ Ch 127 at 132; Bracewell (1975) Ch at 417.). So, in Harris v.
Flower ((27) (1904) 74 LJ Ch 127 at 132.), Romer LJ said:
"If a right of way be granted for the enjoyment of Close A,In Bracewell v. Appleby ((28) (1975) Ch 408 at 418.), Graham J
the grantee, because he owns or acquires Close B, cannot use
the way in substance for passing over Close A to Close B."
"(T)he true proposition is that no one of those entitled to
the right of way must use it to an extent which is beyond
anything which was contemplated at the time of the grant."
12. These cases may be contrasted with White v. Grand Hotel Eastbourne
Limited ((32) (1913) 1 Ch 113.) and Robinson v. Bailey ((33) (1948) 2
All ER 791.). In White, the conversion of a private residence on the
dominant tenement to a lodging house for the drivers of cars whose
owners stayed at a nearby hotel owned by the defendants was held not to
subject the easement to a use not contemplated at the time of the grant
in 1883. At that time, the dominant tenement had one resident with two
vehicles. After the conversion it had "many residents of a shifting
character with vehicles that do not belong to them" ((34) White (1913)
1 Ch at 117.). Nevertheless, the Court of Appeal held that the
different use was within the terms of the grant. Hamilton LJ said
((35) ibid.):
"The house in the present case was used as a private-White v. Grant Hotel Eastbourne Limited was applied in Robinson where
dwelling house in 1883, but with the consent of a third
person it might be, as in fact it was, turned into a house
which could be used for the purpose of trade."
13. Subdivision of a dominant tenement is not of itself sufficient to
make any increased use of the servient tenement unreasonable. When a
dominant tenement is subdivided, the easement may continue to attach
to the subdivided parts ((38) Newcomen (1877) 5 Ch D at 143.). It
will usually do so if the grant was made in favour of "every part" of
the dominant tenement ((39) See, for example, Flavell (1937) NZLR
444.). Indeed, it has been said that the prima facie inference to be
drawn is that the easement "is appurtenant to every part of the land
retained and not merely to some part of it" ((40) Re Maiorana and the
Conveyancing Act (1970) 92 WN(NSW) 365 at 374; see also Callard (1930)
1 KB at 358; Guth v. Robinson (1977) 1 BPR 97017 at 9210-9211.). I am
unable to accept that there is any such rule.
14. It is, or at all events was, an established rule of construction
that, if a covenant was given for the benefit of the whole of a parcel
of freehold land, the presumption was that the covenant did not enure
for the benefit of subdivided parts of that land unless a development
scheme applied to the land ((41) Russell v. Archdale (1964) Ch 38; In
re Jeff's Transfer (No.2) (1966) 1 WLR 841; In re Selwyn's Conveyance
(1967) Ch 674; Re Roche and the Conveyancing Act (1960) 77 WN(NSW) 431;
Ellison v. O'Neill (1968) 88 WN(NSW) 213 at 221-222 per Walsh JA).
If that presumption still exists ((42) In England, the presumption now
seems to be reversed: Federated Homes Ltd. v. Mill Lodge Properties
Ltd. [1979] EWCA Civ 3; (1980) 1 WLR 594 at 606-607. In Gyarfas v. Bray (1990) NSW Conv R
55-519 at 58,879, Bryson J referred to a number of cases in the Equity
Division of the Supreme Court of New South Wales where judges had
acted on the basis that there was no presumption that a covenant was
for the benefit of the land as a whole and did not apply to the
subdivisions of that land. His Honour construed the covenant in
question without regard to any presumption.), it is not easy to see
any basis for construing a covenant for the benefit of land differently
from the grant of an easement for the benefit of land. But in any
event, whether or not a covenant or easement is for the benefit of each
part of the land affected must depend upon the intention of the
parties. That intention is gathered from the terms of the covenant
read in the light of the surrounding circumstances. There is no place
for artificial presumptions in this process. In The Commonwealth v.
Amann Aviation Pty. Ltd. ((43) [1991] HCA 54; (1991) 174 CLR 64 at 166.), I pointed
out that the history of the law of evidence had seen an increasing
rejection of presumptions and other forms of artificial reasoning. The
modern approach favours allowing tribunals of fact to give such
probative force to evidentiary materials as they think fit, after
having regard to all the relevant circumstances.
15. Moreover, even if the prima facie inference to be drawn from
the grant of an easement is that it is for the benefit of each and
every part of the dominant tenement, it does not follow that, upon
the subdivision of that tenement, each of the subdivided parts
automatically obtains the enjoyment of an easement identical in scope
and nature to that enjoyed by the dominant tenement. A dictum of
Jessel MR in Newcomen v. Coulson ((44) (1877) 5 Ch D 133.) has been
treated as an authority for that proposition ((45) Guth v. Robinson
(1977) 1 BPR at 9210-9211.). But I doubt that his Lordship was
attempting to lay down any presumptive rule. In Newcomen ((46) (1877)
5 Ch D at 141.), Jessel MR said:
"It was said that as this was a grant to the owner andThe point that Jessel MR appears to have been making was that, in
owners for the time being of the lands, if the lands became
severed the owners of the severed portions could not
exercise the right of way. I am of opinion that the law is
quite clear the other way. Where the grant is in respect of
the lands and not in respect of the person, it is severed
when the lands are severed, that is, it goes with every part
of the severed lands. On principle, this is clear. It
never could have been contemplated in the case of an award
like this that the property was never to be divided, nor is
it to be contended that if a man died and left two or three
daughters co-heiresses, and they partitioned the estate,
the right of way was lost, and their allotments for ever
deprived of access to the highway."
16. Whether identical easements attach to the subdivided parts depends
upon the construction of the grant and what was in the contemplation
of the parties at the time when the easement was created. When an
interest in land is created by contract, the intention of the parties
is determined by the terms of the grant read in the light of the
circumstances known to the parties at the time of the contract. In
determining what can fairly be regarded as within the contemplation of
the parties in respect of an easement, two circumstances leading to
opposite conclusions are usually of great importance. The first is
that residential land is so frequently subdivided in Australia that
the future subdivision of a dominant tenement can often be regarded
as being within the contemplation of the parties to the grant of an
easement ((48) This is the assumption in the United States. See
Siedel, Real Estate Law, (1979) at 92.). The second is that every
easement is a restriction on the property rights of the owner of the
servient tenement. Consequently, the general rule is that "the burden
on the servient tenement cannot be increased either by a substantial
alteration in the character and mode of user of the dominant tenement
or by an extension of its area" ((49) Callard (1930) 1 KB at 359 per
Talbot J). However, ultimately it is a question of the intention of
the parties.
The construction of the grant in this case
17. In the present case, the purpose of the easement was to give
the owners of the four blocks of land access to a public street. To
achieve that purpose each owner gave the other three owners an
easement over his or her portion of the roadway. Plainly, the parties
to each grant intended that the four owners should have equal access
and equal obligations in respect of the private roadway. Furthermore,
the grant established a relationship between the parties and their
successors which was intended to endure indefinitely and which
required continual co-operation between the owners of the four
domestic blocks. In practice, the parties would need to agree as to
whether work was needed on the roadway, when and at what price it
should be carried out and who should carry it out. The need for
continuing co-operation clearly imported into the agreement both a
duty of co-operation and a duty to deal in good faith with each other.
Although the benefits and obligations bound the successors of the four
owners, the existence of these duties makes it unlikely that it was
intended that more than four proprietors would have the benefit and
burdens of the grant.
18. With great respect to those who hold the contrary view, I find
it impossible to conclude that the parties contemplated that the
carefully worked out scheme entered into by the four proprietors could
be thrown out of balance by lots being subdivided. To subdivide two
lots into three parcels each would double the amount of wear and tear
on the roadway in normal times. Carrying out the subdivision and
building new residences would also require a greatly increased use of
the roadway by heavy vehicles and equipment. Yet the owner of a lot
who did not subdivide would still be obliged to pay one-fourth of the
cost of repair and maintenance and, when necessary, replacement. I do
not think that it is a compelling or even a persuasive argument that
each owner had the legal right to subdivide. No doubt each owner had
that right. But the question is, was it within the contemplation of
the parties to the grant that the right of way could be used by the
owners, occupiers and assigns of further lots arising out of the
subdivision of an original lot? I can see nothing in the grant or the
surrounding circumstances for thinking that it was.
19. Nothing in the grant indicates that the parties contemplated that
one or more lots might be subdivided and the owners of the new lots
entitled to use the roadway. When the grant refers to the grantee
as including "the transferees and assigns to the grantee and the
registered proprietor or proprietors owner or owners ... and the
occupier or occupiers for the time being of the dominant tenement", it
is surely referring to the transferees etc. of the original lot, not
portions of it. If that is so, the respondents gain no assistance
from the words "use and enjoyment of the dominant tenement or any part
thereof" (my emphasis). In any event, the words "any part thereof"
seem more consistent with conferring a right on the grantee to use the
roadway for every purpose affecting the lot than with attaching the
easement itself to each part of the lot.
20. Not only do the terms of the grant fail to indicate that the
parties contemplated that the roadway might be used by the owners
of subdivided portions of a lot, but the surrounding circumstances
also give no support to that contention. The lots were part of a
subdivision "in a small and exclusive estate" approved by the Brisbane
City Council on 14 October 1985, subject to a large number of
conditions being observed. The reciprocal easements were entered into
on 5 November 1987 and entered in the Register book on 15 February
1988. One important condition of the approval of the subdivision was
that reciprocal access easement rights be granted over the various
access strips. The four easements granted in the present case were
identical in terms with easements granted in order to obtain access
to lots in three other parts of the subdivision. It is difficult to
accept that in November 1987 those entering into the various grants
of easements assumed that there would be further subdivisions of the
lots of this estate. The assumption that the parties to a grant of
easement contemplated that the dominant tenement might be subdivided
cannot be made in this case.
21. Furthermore, under the terms of the grant, the grantor was to
"maintain and repair the servient tenement in a proper state of repair
fair wear and tear excluded" and "the registered proprietors for the
time being of lots 14, 15, 16 and 17" were to bear the costs of
maintenance and repair "as to one quarter each respectively". If lots
16 and 17 were subdivided, those obligations would cease to exist
because the lots themselves would cease to exist. How then could the
appellant, as owner of the servient tenement, enforce the obligations
of the registered proprietors of lots 16 and 17? The answer made in
the Court of Appeal by Thomas J, who gave the leading judgment, was
"that the new owners, as assignees of parts of the dominant tenement,
will remain bound by the covenant" ((50) (1993) Q Conv R at 59,396.).
His Honour also said that it would seem that, as between themselves,
the new owners would have a right of contribution, but that it was
unnecessary to pursue the point. His Honour went on to say ((51) ibid.
at 59,397.):
"(T)he substance of the matter will be that the benefit of
the existing easements over Lot 14 will continue in favour
of all persons to whom the subdivided parts of Lots 16
and 17 are assigned, and so that such persons remain
collectively liable for the burdens of the existing
easement; and the existing easements in relation to which
Lots 16 and 17 are the servient tenements will continue in
favour of the proprietors of Lot 14 who will remain liable
for their quarter contribution to the repair and
maintenance."
22. It appears that his Honour thought that each owner of the new lots
had the same obligation as the original registered proprietor. His
Honour cited no authority in point for that proposition. After
referring to cases concerning leasehold covenants, where assignees had
been held bound by the burden of the covenants, however, his Honour
said that there was no reason why a similar approach should not be
taken in relation to covenants in easements. But, it is not easy to
see any relevance between the burden of covenants running with a
leasehold and the owner of a freehold being bound by a covenant
entered into by an owner of the land of which the freehold was once
part ((52) See Skapinker, "Does an easement accommodate each
subdivided part of the dominant tenement?", (1993) 67 Australian Law
Journal 606 at 611.). I do not think that cases on leaseholds are any
authority for holding that the owners of the subdivided lots are
responsible for the obligations of the owners of the original lots.
23. A person who is named in a deed and accepts a benefit under that
deed is bound by any associated obligation under the deed. In Tito v.
Waddell (No.2) ((53) (1977) Ch 107 at 289.), Megarry V.-C., after
referring to the "benefit and burden" principle, said:
"One form of the principle is as a technical rule relatingFurthermore, a successor in title to a person bound by a deed may be
to deeds. If a person is named as a party to a deed, but
does not execute it, the deed will nevertheless be held to
bind him if he knowingly takes the benefit of it. In that
form, it is not much more than part of a rule for
determining who are to be treated as being parties to a
deed. In another form, the rule is that if by an indenture
to which A and B were the only parties A granted land to B
for life with remainder to C, on terms that the land was to
be held subject to certain conditions, then if C entered
after B's death and took the land by virtue of the
indenture, he thereupon became bound by the conditions, even
though he was no party to the indenture."
"I am not prepared to recognise the 'pure principle' thatfor
any party deriving any benefit from a conveyance must accept
any burden in the same conveyance. Sir Robert Megarry V.-C.
relied on the decision of Upjohn J in Halsall v.
Brizell ((56) (1957) Ch 169.). In that case the defendant's
predecessor in title had been granted the right to use the estate
roads and sewers and had covenanted to pay a due proportion
the maintenance of these facilities. It was held that the
defendant could not exercise the rights without paying his
costs of ensuring that they could be exercised. Conditions
can be attached to the exercise of a power in express terms
or by implication. Halsall v. Brizell was just such a case
and I have no difficulty in wholeheartedly agreeing with the
decision. It does not follow that any condition can be
rendered enforceable by attaching it to a right nor does it
follow that every burden imposed by a conveyance may be
enforced by depriving the covenantor's successor in title of
every benefit which he enjoyed thereunder. The condition
must be relevant to the exercise of the right."
24. Assuming that the benefit and burden principle extends to persons
who are not parties to or named in a deed ((57) Cf. Tito v. Waddell
(No.2) (1977) Ch at 294-295.), it is difficult to fit the principle to
the facts of this case. It is hardly to be supposed that each owner of
a subdivided lot acquired an obligation to pay to the appellant a
one-fourth share of the costs of maintenance and repair although the
new owner obtained a substantially lesser interest in the roadway. And
I can see no basis in legal principle for holding that the owners of
the subdivided lots became collectively liable for that one-fourth
share. Furthermore, a parcel of land created by the subdivision need
not necessarily be part of the private roadway. Indeed, that appears to
be the case with all the newly created parcels not retained by the
respondents. In re Ellenborough Park ((58) (1956) Ch 131.)
establishes that land may be entitled to the benefit of an easement
although it does not adjoin the servient tenement. But the fact that
immediate access to these new lots is from other lots and not from the
roadway makes it difficult to hold the owners of the subdivided land
liable to contribute to the repair of the roadway. It is even more
difficult to see the basis on which each owner of the subdivided land
would have a right of contribution from owners whose lands form no part
of the roadway.
25. Furthermore, it is difficult to see how the owners of the new
lots could enforce the obligation to repair against the original
parties to the grant or their successors. In Liverpool City Council
v. Irwin ((59) [1976] UKHL 1; (1977) AC 239 at 259.), Lord Cross of Chelsea said that
"the general principle (is) that the law does not impose on a servient
owner any liability to keep the servient property in repair for the
benefit of the owner of the easement". The owners of the new lots are
not parties to the grant and they are not the successors of the
original owners who continue to retain their ownership of the strips of
land which make up the road.
26. When regard is had to the terms of the grant and all the
circumstances of the case including the recency, form and conditions
of the subdivision, I think that the best interpretation of the grant
is that the parties contemplated that the roadway would be used by
four domestic households only. Because that is so, the appeal must be
allowed.
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