Could the Court Extinguish your Obsolete Easement?

By |2022-06-28T15:01:28+10:0014-6-22|

When you were in your early 20’s, you purchased your first home – a three-bedroom Queenslander with a pool and two-bay garage for your “man-toys” (a jet-ski, collection of surfboards and a Kawasaki Ninja 400). During the purchase process, your agent and lawyer informed you that the block of land had a narrow, 40 year old easement (a section of land that forms part of your property, and belongs to you – but someone else has the right to access it) down one side in favour of your neighbour. They told you they did not know what the easement was for, as your neighbour clearly did not need it to access their property. Further, it was blocked by trees, shrubs and a wire fence. At the time, you thought nothing of it. However, 10 years down the track, you have a wife, two kids and a third on the way – you want to extend your home to make room for a fourth bedroom. You’re pretty sure that the easement has never been used, but now your neighbour is kicking and screaming at the prospect of you interfering with their ‘proprietary rights’. You know you can’t just build over the top of it, and attempts to reason with one another have resulted in a cold war. Now, your only hope is to apply to the Court to try to have the easement extinguished. After all, the easement is obsolete! Or is it?

Section 181 of the Property Law Act 1974 (Qld) gives the court the power to modify or extinguish easements in certain circumstances. While courts are generally reluctant to interfere with the proprietary rights of land owners, where courts are satisfied that either of the circumstances described in subsections (a) to (d) of section 181 apply, they may order that an easement be wholly or partially extinguished. Those circumstances include, where the easement is

  • (a) deemed obsolete;
  • (b) where the easement’s continued use would impede some reasonable user of the land while not securing any practical benefit to the persons entitled;
  • (c) where the parties have agreed to the modification or extinguishment, or where the easement has been abandoned; or
  • (d) whether the modification or extinguishment will not substantially injure the persons entitled to the easement.

The Supreme Court has this power in all jurisdictions except the Australian Capital Territory and South Australia. While proving any one of the four circumstances listed above is sufficient for the Court to exercise its power in Queensland, you could argue that the easement along your property is obsolete. The cases included below deal solely with section 181(a), obsolescence. In those cases, the easements may also have been found to fall under the other categories of section 181. However, the same facts and much of the same reasoning is relevant to satisfying the tests.

Case examples of obsolete easements

Verdict: Obsolete

In the recent case of Franciskovic v G & J Tenni Pty Ltd [2020] 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.

Verdict: Not Obsolete

In Franciskovic, the Court had found that the easement was, to apply the meaning of “obsolete”, “not relevant to the circumstances presently pertaining”, and thus likely also met s 181(1)(a). Obsolescence was unsuccessfully argued by the applicant in Hilldon Pty Ltd v JY Building Material & Construction Pty Ltd [2007] QSC 301. In this case, the easement had been granted by one of the applicant’s predecessors and benefited the Commissioner for Railways (Qld). The applicant relied only upon the fact that Queensland Rail no longer required the easement, that the rail tracks had been removed and that the respondent had not used the easement. As mentioned in Franciskovic, to extinguish an easement under obsolescence, you must establish the easement is ‘no longer relevant to the circumstances pertaining’, and the applicant had not provided any evidence of the use to which its land, or that of the respondent was being put.

Verdict: Not Obsolete

The Court considered obsolescence in Averono v Mbuzi [2005] QCA 295  where it was described as

“involving a change from usefulness at the time of creation of the easement to lack thereof at the time of the application for extinguishment or, perhaps, from use to disuse.”

A relevant enquiry is whether the original object of the covenant can be achieved. This case concerned an Applicant who sought to extinguish an easement in favour of the Respondent which reduced its driveway width by half. However, the Court determined that obsolescence is not established merely by demonstrating that removal of an easement of right of way would not prevent alternative, practical access and egress to and from the dominant tenement. Further, it was found that the easement was being used for the purpose for which it was created and subject to its terms. On appeal, the Court affirmed the decision at first instance and reasoned that to show merely that rights are not currently exercised to their fullest extent is to fall far short of showing that the rights are obsolete. To be successful on this ground it must be shown that the purpose for which the easement was granted can no longer be achieved.  Here, the grants were made comparatively recently and there was no evidence to show that the exigencies of the user of such blocks had altered in the six years since the original grant was made. In particular, there was no reason to think that in the future owners of the blocks may not require the wide avenue of access to street frontage to make the best use of their land.

Verdict: Not Obsolete

The Court in Wallace v Goodwin [2004] QSC 042 similarly considered that to succeed under s181(1)(a) on the grounds of obsolescence it is not sufficient to prove only that the continuation of the easement is not essential to the user of the dominant tenement. They found that if an easement is useful it is not obsolete, and an easement may be obsolete when the purpose for which it was created can no longer be achieved. The Court in that case found that the easement in question was not obsolete, as it provided the respondent with an alternative all weather road which was available to the respondent in the event of an overflow of the dam wall spillways. The Court reasoned the value of that benefit cannot be said to be insignificant. Further, even though the easement no longer represented the usual means of access, it was used by the respondent on a reasonably regular basis for morning walks, and therefore had practical value or utility. As can be seen from the above passage, the benefit of the easement to the holder of the dominant tenement need not be continuous. The fact that the right is exercised only as an alternative in the event of a rare or perhaps even unlikely event may well be sufficient to make it sufficiently useful and valuable as to prevent its extinguishment under s 181(1)(a).

Verdict: Not Obsolete

Eucalypt Group Pty Ltd v Robin concerned an easement that was found not to be obsolete because it allowed the passing and repassing of the respondent in times of cyclonic erosion of the beach frontage to their allotment. In refusing to extinguish the easement, the Court observed that:

“although the respondents have not used their easement access over the applicant’s lands for the purpose of passing and repassing, they have walked across it once a year for the purpose merely of avoiding a contention that they have never used it. Obviously, they have never regarded it as being of no value or benefit to them. I infer that they always regarded its value principally as an alternative means of access in the event of cyclonic erosion of the Esplanade. The applicant’s corner allotment however has a fence across the easement access although for exactly how long this fence has been in that position was not canvassed … That obstruction to the easement could easily be removed in the event of imminent erosion of the Esplanade and/or the allotments with a frontage to it.”

Verdict: Not Obsolete

In the matter of an Application by Rollwell Australia Pty Ltd concerned an easement relating to water supply which the applicant argued was rendered irrelevant with the advent of town water, taken with the absence of any use of the easement for more than thirty years. The Respondent submitted that the easement did not relate to water supply and was actually for access. The ordinary meaning of “obsolete” was said to be “disused, discarded, antiquated”, or “not relevant to the circumstances presently pertaining”. The Court accepted the view that the easement “has certainly been unused for a very long time. But it has not yet been “discarded” or abandoned. Such a view would be inconsistent with the Respondent’s wish to retain the benefit of it, perhaps enhancing some further possible development of her own land. It could therefore still be “relevant”. I accept the view that the potential use of the easement prevents a conclusion that it is obsolete in terms of para(a).

Verdict: Obsolete

In Eddowes v Proprietors “Maricopa” [1991] 2 Qd R 381 the applicants wished to develop their land, however it was subject to an easement granted in 1970 in favour of land which, as a result of a later amalgamation, had become part of the common area owned by the respondents under a Building Units Plan. The subject easement inhibited the redevelopment of the applicants’ land and they sought to have it extinguished. The Court noted that no attempt had been made to use the easement since the erection of the wire fence upon the boundary between the applicants’ and respondents’ land in 1985. Further, it was the Court’s view that it had never been used for any purpose in connection with the enjoyment only of that part of the dominant tenement which was within resub. 3 prior to its amalgamation with resub. 2 to become part of the residential block. In this case, the respondents caused to be erected a fence preventing use of the easement for the purpose of passing and re-passing from the residential block in 1985. Since garages numbered 11 and 12 had been occupied, no effort had been made to make use of the easement. It was decided in 1985, on the evidence, to fence off access to the easement because the protection against trespassers that the fence would provide was thought preferable to ability to make use of the easement. The Court determined that the purpose for which the easement has been granted could no longer be achieved, and it was no longer relevant to the circumstances presently pertaining. It was therefore found to be obsolete.

If you need advice on your easement, please get in contact with our team so that we can assist you with your specific circumstances – no two situations are ever the same.

Think Property. Think Nicholsons. 

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