Castle v Achdjian [2022] NSWSC 1340
In the case of Castle v Achdjian [2022] NSWSC 1340, the Supreme Court of NSW had to decide whether a right of carriageway was abandoned and could be obstructed by the owners of the burdened land. This case demonstrates the continuing complexities and evidentiary requirements that must be satisfied in an application made under section 89(1) of the Conveyancing Act 1919 (NSW) (Act) to extinguish an easement.
Background
The Castles, the Plaintiffs, are the owners of the property at 20 Vista Close (Lot 30). Lot 30 is adjoined to the property at 8 Marlee Street in Hornsby (Lot 29). Lot 29 is owned by the Achdjians, the Defendants. A right of carriageway (Easement) was created in 1967 such that Lot 29 was burdened, and Lot 30 was benefitted with the Easement. The terms of the Easement are those contained in Part 1 of Schedule 8 of the Act.
The Easement site had for many years been blocked by fences at each end. The children of the previous owners of Lot 30 used the Easement occasionally by climbing over the fences that had been constructed on it. The Plaintiffs acquired Lot 30 which was marketed as having rear access to Marlee St via the Easement site only to observe the “encroachments” on it. As the Defendants’ refused to remove the fences and allow the Plaintiffs to use the Easement, the Plaintiffs brought proceedings seeking an injunction restraining the Defendants from restricting this right. Additionally, the Plaintiffs sought orders requiring the Defendants to remove, at their own cost, the fences interfering with the Plaintiffs’ enjoyment of the Easement. The Defendants made a cross-claim that the Easement had been abandoned and should be extinguished.
Issue
The NSW Supreme Court considered whether to exercise its power to extinguish the Easement under section 89 of the Act.
In making this determination, the NSW Supreme Court was required to address the following issues:
- Has Lot 30 been changed such that the benefit of the Easement ought to be deemed obsolete (s89(1)(a))?
- Does the continued existence of the Easement impede Lot 29 (the land subject to the easement) without securing practical benefits to Lot 30 (the land with the benefit of the easement) (s89(1)(a))?
- Has the Easement been abandoned by the previous owners of Lot 30 for at least 20 years (s89(1)(b))?
- Would the proposed extinguishment of the Easement substantially injure the Plaintiffs (s89(1)(c))?
Summary of argument
The Defendant’s arguments were as follows:
- In terms of s89(1)(a), the Defendant argued that the construction of a house at the front of the Plaintiffs’ property in 1969 with a driveway and “parking pad” and an informal footpath had changed the use of the benefitted land. Further, amongst other things, the planting of a pine tree (which is subject of a tree preservation order) would make it impossible to fulfil the original purpose of the Easement. The Defendant argued, for these reasons, that the NSW Supreme Court should deem the Easement obsolete.
- In terms of s89(1)(b), the Defendant argued that Plaintiffs’ predecessors in title had abandoned the Easement as there was no evidence that the Easement had been used for at least 20 years including an intention or request to use it. Even if the children of the previous owners had made use of the easement in the manner claimed, it had been abandoned except to the extent of a footpath.
- In terms of s89(1)(c), the Defendant argued that the extinguishment of the Easement would not substantially injure the Plaintiffs, as the Plaintiffs had other convenient alternatives for vehicular access from their property. Further, it would likely be impossible to obtain approval for construction of a driveway on the Easement, by reason of the now existing tree or would otherwise be too expensive.
The Plaintiffs argued that the Easement was clearly recorded on the folios of the Register for both properties. Their use of the Easement is entirely reasonable and consistent with the recorded terms. The Defendants’ fences amount to substantial interference with their rights pursuant to the Easement.
Held
As a starting point, the NSW Supreme Court confirmed that:
- s 89 of the Act should be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights;
- the Easement should be construed in context; and
- the Easement was created to endure a ‘changing environment’ and last for an ‘indefinite future’.
In determining the issues and the arguments above, the NSW Supreme Court held as follows:
Has Lot 30 been changed such that the benefit of the Easement ought to be deemed obsolete (s89(1)(a))?
The terms of the Easement allow both vehicular and non-vehicular access.
Whilst vehicular access is unlikely to be achievable due to features of the land (such as the large pine tree making it difficult to obtain council approval), the Easement can still be used for pedestrian access.
Given the circumstances, the Easement is still capable of fulfilment and cannot be said to serve no present useful purpose. It is not an easement of no practical utility which ought be removed in order to “clear the title”.
Does the continued existence of the Easement impede Lot 29 without securing practical benefits to Lot 30 (s89(1)(a))?
To satisfy this limb, it must be shown that no reasonable user of the land is possible unless the easement is extinguished.
The NSW Supreme Court agreed that the construction of a driveway might make it impossible to reasonably use Lot 29 as a domestic residence. However, given Council approval for such a driveway is unlikely, the NSW Supreme Court was unable to conclude that the Easement would impede the reasonable user of Lot 29 in such a manner.
Given the Easement is capable of use by pedestrians, the NSW Supreme Court does not think that the continued existence of the Easement secures no practical benefit to the Plaintiffs as the persons entitled to the Easement.
Has the Easement been abandoned by the previous owners of Lot 30 for at least 20 years (s89(1)(b))?
The NSW Supreme Court considered that the previous owners of Lot 30 did not abandon the whole of the Easement given:
- they were aware that their property had the benefit of the Easement to access Marlee Street which they intended to use as a driveway however were unable to do so due to the existing wooden fences;
- the previous owner’s children used the Easement as a shortcut to go on delivery runs by jumping the fence a few times a week up until 2005;
- they rejected the defendant’s proposal to cancel the Easement and instead responded with an interest to use it; and
- there was no evidence that they had an opportunity to reject the Defendant’s installation of the fence; and
- although the original purpose of the Easement was to facilitate vehicular access between the rear of the Defendant’s property and Marlee Street, this was but one purpose. Access can also be construed to include non-vehicular access.
Therefore, the previous owners are taken to have only partially abandoned the Easement.
Would the proposed extinguishment of the easement substantially injure the Plaintiffs (s89(1)(c))?
A “substantial injury” means an injury that is “real” and has present substance.
The NSW Supreme Court found that the extinguishment of the Easement would substantially injure the Plaintiffs. Although it is unlikely a right of carriageway can be developed to suit vehicular access, it can still be suitable for pedestrian access if the fences were removed. Extinguishment of the right would deprive the Plaintiffs from the ability to make use of the Easement for pedestrian access between the rear of Lot 29 and Marlee Street which constitutes ‘substantial injury’ under s89(1)(c).
Therefore, the Easement serves a present and useful purpose for the Plaintiffs. The NSW Supreme Court found it reasonable to order the removal of the fences on the Defendants’ property to allow the Plaintiffs’ entry into the Easement site.
Key takeaway
This case demonstrates that abandonment of an easement should not be lightly inferred. A mere failure to use a right of carriageway in all available ways should not lead to the conclusion that the right had been abandoned.
When drafting express terms of an easement, property lawyers should be careful as to the construction of the words describing the right allowed. An express right of ‘traversal’ granted (to go to and from the said dominant tenement) will be read as such to be enjoyed in various ways, including a right of footway. Where such broad express language is used, it will be more difficult to establish that the whole right of carriage had been abandoned, as one of the multiple permitted uses may still be exercised.
If you would like to discuss this article with us, please contact Mike Ellis, partner, or Yanlie Leung, Senior Associate on (02) 9261 5900.