In the recent case of Franciskovic v G & J Tenni Pty Ltd  QSC 215, the Supreme Court of Queensland made an order for the extinguishment of an easement that dated back to the 1920s. The properties in question were located in the vicinity of Kamerunga Road in Ernest Street at Redlynch, where Ernest Street did not exist at the time of the creation of the easement. This meant that access to the properties of the first and second respondents was achieved from Kamerunga Road along a thin laneway running at the side fence line of the applicant’s property, which extended along the rear fence line of the second respondent’s property, and reaching what was then the rear corner of the first respondent’s property.
The easement was a laneway linking what was once at the applicant’s property, a bakery, with what was once at the first respondent’s property, a cabinetmaker’s. At the present date, neither of those business existed, and the applicant’s property and second respondent’s property were both domestic residences. The first respondent’s property was an automotive business. When Ernest Street was installed, the use of the horse and buggy-width laneway dissipated to the point of non-use decades prior. Ernest Street provided a wider and paved means of accessing the properties in contrast to the easement. There was no remaining evidence of the existence of the easement and indeed, fences, buildings, trees, and a besser block wall now stood in the way preventing any attempted use. The Court held that the easement had been abandoned decades ago, or at the very least since 1984, the year of the present applicant’s direct knowledge on the topic.
Section 181(2) of the Property Law Act 1974 (Qld) requires the court to take into account
“the town plan and any declared or ascertainable pattern of local government for the grant or refusal of consent, permission or approval to use any land or erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement … was created … and any other material circumstance.”
The Cairns plan in this instance shed no light on the present issue and Council had advised they had no objection to the removal of the easement. Affidavit evidence demonstrated that the neighbourhood decades ago was different than now and that the use of the easement had ceased years ago.
Section 181(4) grants the court the power to direct the relevant applicant to pay the person entitled to the benefit of the easement an amount of compensation the court thinks is just to award. The sum is to make up for any loss or disadvantage suffered in consequence of the extinguishment. Here, the Court considered that there was no evidence of loss or disadvantage which would be suffered by either of the respondents.